Massive last minute comments from industry professionals contribute

to USDA extending comment period.


Update 10/20/17: When we first reported our findings on this topic on October 14, the information went viral and the registered comments took off like a rocket. Just 6 days after our release the USDA has extended the comment period to November 2, 2017, citing the large volume of comments now coming in.


Many zoo professionals, and others have significant concerns about the proposed USDA Rule Change for Procedures for Applying for Licenses and Renewals Docket ID: APHIS-2017-0062 introduced on August 24, 2017. (Click to read)

The USDA is proposing that all USDA license will now completely expire, and each facility will have to reapply and go through the entire initial application procedure, not just once, but each and every time !  This is completely unnescessary !

“APHIS inspectors and supervising staff have a documented notorious history for bias and unfair behavior towards select licensee’s of their own personal choosing.”

In an effort to assist in this comment period the following is a throughly researched and outlined statement of facts that have been passed onto us that is in opposition. 


Even if you have already made a comment, you may make as many as you like!

Do not delay ! With this page you can make your comment in less than 30 seconds.

You can copy the below PDF file, and click the “Comment Now” button below, enter your information, and paste the file. Or, you may copy the below text (which is the exact copy of the PDF file) and edit with your deletions or additions. That’s it, your done !


Docket No. APHIS-2017-0062
Regulatory Analysis and Development, PPD, APHIS
Station 3A-03.8
4700 River Road Unit 118
Riverdale, MD 20737-1238

REF: Comment on Docket 10-0416

Dear Madam or Sir(s):

Please accept the following as my comment on the above reference docket number.

Placing an expiration date for current licenses, then requiring them to go through the entire initial licensing procedures each and every time would be capricious, at best. A recent Federal Judge found that the Eastern Regional Director, Dr. Betty Goldentyer was found to have been instructing APHIS inspectors in which she supervised to make false, and unfounded inspection findings on select licensee’s inspection report. Even after inspectors told her those instructions were a false finding, she ordered them to do it anyway. (Caudill, Kalmanson, et. al, Docket 10-0416, Decision and Order as to Mitchell Kalmanson)

In July of 2017 this dishonest and conniving practice was rewarded by the agency promoting Dr. Goldentyer to Associate Deputy Administrator of Animal Care.

An APHIS inspector of almost 20 years of agency experience was also noted in Federal Court that the APHIS inspections are not fair, and are one sided, and also reports that the Western Regional Director (Dr. Robert Gibbens) continuously instruct his inspectors to write false findings on licensees he is out of favor with, (Terranova, et. al, 15-0058, 15-0059. 16-0037, 16-0038, RX 1 – 20).

APHIS inspectors and supervising staff have a documented notorious history for bias and unfair behavior towards select licensee’s of their own personal choosing.

APHIS Does Not Have The Authority To Set An Expiration Date On A License Under The Animal Welfare Act.

Section § 2133 of the Animal Welfare Act states:

§ 2133 – Licensing of dealers and exhibitors The Secretary shall issue licenses to dealers and exhibitors upon application therefor in such form and manner as he may prescribe and upon payment of such fee established pursuant to 2153 of this title: Provided, That no such license shall be issued until the dealer or exhibitor shall have demonstrated that his facilities comply with the standards promulgated by the Secretary pursuant to section 2143 of this title: Provided, however, That a dealer or exhibitor shall not be required to obtain a license as a dealer or exhibitor under this chapter if the size of the business is determined by the Secretary to be de minimis. The Secretary is further authorized to license, as dealers or exhibitors, persons who do not qualify as dealers or exhibitors within the meaning of this chapter upon such persons’ complying with the requirements specified above and agreeing, in writing, to comply with all the requirements of this chapter and the regulations promulgated by the Secretary hereunder.

By the order of Congress the insurance of a license is valid without interruption, unless the agency starts administrative procedures under Section §2149 Violations by Licensees. The agency is however authorized to prescribe the “form and manner” in which a licensee is maintained, ex: renewal paperwork requirements, inventory updates, contacts, location sites, annual maintenance fee’s, etc.

Just recently Federal Circuit Judge Griffth suggested the same opinion, (Animal Legal Defense Fund, et al vs. USDA, 16-5073)

Failing To Renew A Current License Before a Judicial Review Violates The Administrative Procedures Act. – Final Agency Action

Final Agency Action:

The APA authorizes federal courts to review a “final agency action,” 5 U.S.C. § 704, to determine if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]” 5 U.S.C. § 706(2)(A). The APA “creates a strong presumption of reviewability that can be rebutted only by a clear showing that judicial review would be inappropriate.” Nat’l Res. Defense Council, Inc. v. Sec. & Exch. Comm’n, 606 F.2d 1031, 1043 (D.C.Cir.1979) (“NRDC ”).

The term “agency action” “includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act[.]” 5 U.S.C. § 551(13). “[T]he term undoubtedly has a broad sweep[,]” but it “is not so all-encompassing as to authorize [courts] to exercise ‘judicial review [over] everything done by an administrative agency.’ ” Indep. Equip. Dealers Ass’n v. Envtl. Prot. Agency, 372 F.3d 420, 427 (D.C.Cir.2004) (quoting Hearst Radio, Inc. v. FCC, 167 F.2d 225, 227 (D.C.Cir.1948)).

Bennett, 520 U.S. at 177-78, 117 S.Ct. 1154 (1997) (internal quotations omitted). Put differently, an agency action is “final” if it is “definitive” and has a “direct and immediate £» effect on the day-to-day business” of the party challenging or subjected to the action. Fed. Trade Comm’n v. Standard Oil Co., 449 U.S. 232, 239, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980) (internal quotations omitted). If an agency action is “binding” on the parties it targets, it is likely “final” for the purposes of judicial review. See 5 Jacob A. Stein et al., Administrative Law § 43.01 (2005).

As a general matter of determining reviewability, two conditions must be satisfied for an agency action to be deemed “final”: First, the action must mark the consummation of the agency’s decision making process – it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.

Action of the agency to refuse a “current’ licensee renewal based on an agency inspection would without doubt fall under the reviewable requirements.

While these proposed changes might seem intended to appear as an inconspicuous and simple housekeeping item, the intent and the result is to eliminate more licensees from the licensee rolls, taking advantage of the Animal and Plant Health Inspection Service (APHIS) and Animal Care Division’s arbitrary and capricious interpretation of the Animal Welfare Act (AWA).

Over the last eight (8) years, USDA licensees have faced very adversarial inspection and enforcement action from APHIS. The Agency has made repeated rule changes that have tightened the gauntlet for licensee-required compliance that is unreasonable and inconsistent with the activities being overseen. It would seem as though pet breeders and exotic animal owners and exhibitors are being held to the standards required of a biotech clean-room.

Simply put, this proposed rule would allow USDA/APHIS to deny the renewal of a licensee for a single “direct” violation of the Animal Welfare Act, wherein violations are subjective and arbitrary and can be unreasonable and unfair to licensees. In most cases the subjective interpretation of the rules by the Inspector, VMO’s, Enforcement, or the appeals process, does nothing for the welfare of the animals and makes APHIS/USDA the enemy of rather than the advocate of licensees, while forcing many licensees to relinquish their license and throw in the towel. All of which is motivated by animal rights ideology and activism within the agency.

I also dispute the APHIS position that “public comment on potential revisions to the licensing requirements… better promote sustained compliance with the AWA, reduce licensing fees and burdens, and strengthening existing safeguards that prevent individuals and businesses who are unfit to hold a license…from obtaining a license or working with regulated animals.” It is without any documentation of scientific support or factual evidence that the Public has any expertise that can be offered on these issues. Clearly, APHIS-Animal Care has no interest in actual beneficial input as this effort, and by opening commentary from the Public, it ensures that there will be ample input from the unqualified, at best, and the animal rights extremists, at worst. This indicates that APHIS is only interested in counting votes rather than receiving actual beneficial input. In contrast, is public comment asked for in the consideration of farm subsidies under USDA? No, they are not.

All this further evidences that the intent in this effort is to harm licensees and make compliance under the Animal Welfare Act (AWA) unreachable. In addition, only providing sixty (60) days for comments is drastically inconsistent with other comment periods in recent past and appears that APHIS- Animal Care is attempting to implement this new Rule prior to Senate confirmation of the new Under Secretary of Agriculture for Marketing and Regulatory Programs who would potentially oppose this action. The request for comments should be withdrawn until the new Under Secretary is seated.

I would also make the additional following comments on the topics included in this 9 CFR Parts 1 and 2 Docket No. APHIS-2017-0062 RIN 0579-AE35:

1. The Agency is adding terminology that is not defined in the Act and allows for a wide spectrum of interpretation by Agency employees. These terms include “demonstrate”, “unfit”, “affirmatively”, and “sustained compliance”. We believe that the intent here is to allow negative interpretation of these terms by the Agency and Agency staff to the disadvantage and detriment of the licensee resulting in more violations and subsequently more elimination of licensees.

2. Licensees currently renew on an annual basis and are inspected multiple times a year and in come cases monthly. Changing the licensee term to 3-5 years is acceptable, however we believe the intent requiring “affirmatively demonstrating compliance” is to eliminate licensees through subjective interpretation of the Rules. Changing fees to reflect a change in term of licensure is appropriate.

3. I support notification of licensees of upcoming license renewal deadlines and support a reasonable ” grace period” of sixty days not requiring “affirmatively demonstrating compliance” should a license inadvertably expire.

4. I support requiring licensees to notify APHIS of a change in regulated activities should the number, type and location of animals have a demonstrable impact on the normal operating procedures of the licensee.

5. I support requiring license applicants to specifically disclose any Federal, State or local convictions of animal cruelty. In conjunction, such convictions should not be an automatic rejection of the application and each application should be considered on a case by case basis.

6. I support keeping the pre-licensing inspections to assess compliance at three opportunities to take corrective measures in order to promote successful compliance.

7. I support retaining the current regulations allowing individuals to and businesses to obtain USDA licensure for ownership of exotic and wild animals even if not full time exhibitors as this promotes public safety and compliance with the Act.

8. I believe that the regulations currently to restrict individuals and businesses whose licenses have been suspended or revoked from working for other regulated entities is more than adequate and does not required further strengthening.

9. I do not support “streamlining” the procedures for denying a licensee application, terminating a license and summarily suspending a license. (Is there an official definition for “streamlining?” Does it mean revoking someone’s license without due process?) Any change in these rules are subject to interpretation and abuse which we already see from the Agency. All licensees are entitled to due process and all protections under the Law and the Constitution of the United States of America.

In summary, I am are very concerned about any rule changes, additions, and/or modifications that are attempted to be implemented prior to the confirmation by the Senate of the nominee for Undersecretary of Agriculture for Marketing and Regulatory Programs who is directly responsible for the AWA implementation.

In addition, I strongly object to “public comment” on proposed rules or regulations where the general public has no proven expertise, subsequently encouraging input from those whose ideology is anti-animal ownership and anti-animal enterprise especially since the USDA welcomes animal rights organizations among its definition of “stakeholder.”

Finally, I strongly oppose any Rule or Regulation change that clearly intends to move the bar of compliance to ensure licensee failure rather than success. The USDA has a responsibility to protect those who it requires to be licensed from abuse from the Agency, itself.

Thank you for your time and consideration.




Click to download the Comment Letter