The impact of USDA’s newly adopted final rule to certain exhibitors of farm animals remains unclear.
A positive result of the rule is the definition of “domesticated farm-type animals.” Farm-type animals are defined as “animals that have historically been kept and raised on farms in the United States.” Except for the use of the term “domesticated” this definition should be adopted by states to insure that livestock and poultry remain regulated by state and local laws even if owned as “pets” or for “companionship.”
However, the term “domesticated” should be replaced by “domestic,” since courts have held that certain dangerous and exotic animals can be “domesticated” based on the case-specific facts. See City of Rolling Meadows v. Kyle, 494 N.E.2d 766 (Ill. App. Ct. 1986) (reversing holding that owners monkey was not a domesticated house pet); Turudic v. Stephens, 31 P.3d 465, 471 (Or. Ct. App. 2001) (concluding that “although the cougar may be more exotic than goldfish or hamsters, they are, nevertheless, indisputably family pets.”). Unfortunately the term “domesticated” instead of “domestic” is used in existing and the amended rule.
Certain exhibitors of ‘domesticated farm-type animals’ are exempt from licensure, including: (1) those who “have a de minimis size of business based on the number of animals maintained, capability of providing adequate care and treatment of such animals, and public oversight . . .”; (2) “country fairs, livestock shows, rodeos, field trials, coursing events . . . and any other fairs or exhibitions intended to advance agricultural arts and sciences, as may be determined by the Secretary”; and (3) owners of “livestock or poultry used or intended for use as food or fiber, or livestock or poultry used or intended for use for improving animal nutrition, breeding, management, or production efficiency, or for improving the quality of food or fiber.”
The amendments exclude from licensure “[a]ny person who maintains a total of eight or fewer pet animals as defined in part 1 of this subchapter, small exotic or wild mammals (such as hedgehogs, degus, spiny mice, prairie dogs, flying squirrels, jerboas, domesticated ferrets, chinchillas, and gerbils), and/or domesticated farm-type animals (such as cows, goats, pigs, sheep, llamas, and alpacas) for exhibition, and is not otherwise required to obtain a license.”
For those who maintain more than eight domesticated farm-type animals, they can also be exempt from licensure if: the animals are used or intended for use as food or fiber; for improving animal nutrition, breeding, management, or production efficiency; or for improving the quality of food or fiber, even if those animals are exhibited. However, that was not the holding in In re: Daniel J. Hill and Montrose Orchards, Inc., AWA Docket No. 06-0006, Chief ALJ Hillson (USDA April 18, 2007).
In this case, a Complaint was issued on January 13, 2006, by Kevin Shea, Administrator of the Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture to “Respondents, Daniel J. Hill and Montrose Orchard, Inc., for operating as exhibitors under the Animal Welfare Act without obtaining the requisite license.”
The Findings of Fact, included, in relevant part:
Respondents operate a business which offers the public an opportunity to purchase apples, blueberries, Christmas trees, asparagus, pumpkins and other products. Most products are sold in the Orchard’s gift shop, and some products are also offered to the public on a self-pick basis.
Respondents display to the public a number of animals including, at various times, a pig, a cow, English fallow deer, Barbados sheep and goats. These animals were displayed in large pens. There were signs directing the public to these pens. There were signs on some of the pens identifying the animal(s) inside. There were food dispensing machines where members of the public could insert some money and buy food to feed the animals, and a hand washing station near the pens available for public use.
The Court rejected Respondents’ argument that it was exempt from licensure because it made less than $500 from its animal operations. It also rejected the argument that Respondents were exempt from licensure because “the animals on display at Montrose Orchards were ultimately raised for food.”
Instead the Court held,
Respondents did operate as an exhibitor under the Animal Welfare Act. I find that Respondents’ operations were in interstate commerce or at least affected commerce, and that the display of animals as part of an inducement to visit a commercial operation constituted the charging of compensation. I find that the exemption for those who make less than $500 from animal operations applies to dealers, and is inapplicable to Respondents. I find that while the animals on display at Montrose Orchards were ultimately raised for food, the fact that they were on display for extended periods of time still requires an exhibitor’s license. Finally, I impose a civil penalty of $1,000 against Respondents jointly.
Whether and to the extent that similar “exhibitors” would be considered exempt pursuant to the newly adopted rules, remains to be seen.
Perhaps further clarity from USDA-APHIS would be instructive.