> UPDATE: PAWS BILL RESCUE ISSUE, CA SB 861
>
> July 10, 2005
> (Last publication date 7/6/05
> Appropriate forwarding encouraged.)
> Preserving Our Right To Own And Breed Animals Is Your Responsibility
>
> IN THIS ISSUE:
> * CA SB 861 AWAITS VOTE ON ASSEMBLY FLOOR
> * CALIFORNIA CONCURRENCE PROCEDURES
> * FEDERAL "PAWS" BILL - REGULATORY FLEXIBILITY ACT; FEDERAL MEANING
> OF "COMMERCE," INCLUSION OF RESCUE
>
> NOTE: Complete contact information for all California legislators and
> for San Francisco officials is available on our Yahoo sites.
>
> NEW LINK ON OUR YAHOO GROUP SITES:
> Animal Welfare Act: Historical Perspectives and Future Directions
> Symposium Proceedings, September 12, 1996
> <http://www.nal.usda.gov/awic/pubs/96symp/awasymp.htm>
>
> CALIFORNIA SB 861 by Senator Jackie Speier (D-8) of Hillsborough, Co-
> authors Sen. Torlakson, Asm. Member Evans, as amended July 5, to
> modify the comprehensive dog breed specific preemption from Section
> 31683 of the Food and Agricultural Code and create a new Chapter 7 in
> Part 6, Division 105 of the Health and Safety Code, specifically a
> new Section 122330 to allow local jurisdictions to enact breed
> specific mandatory spay/neuter and breeding restrictions is on the
> Assembly Floor.  Procedurally, a bill listed on third reading file is
> taken up for final passage when the author is ready to present it,
> i.e. when there is a good chance of sufficient votes for passage.
> The author of a bill makes the case for approving the bill and floor
> debate may take place.  Members of the House may ask questions of the
> author and make statements of support or opposition to the measure.
> This is strictly a legislative process with no opportunity for public
> participation.  If SB 861 would pass in the Assembly, it would return
> to the Senate for "concurrence."  This process is subject to Rule
> 26.5 of the Joint Rules of the Senate and Assembly (note second
> paragraph about "substantial substantive change" which applies to
> 861:
>
>           "26.5.  Pursuant to Rule 26, whenever a bill is returned
> to its house of origin for a vote on concurrence in an amendment made
> in the other house, the Legislative Counsel shall promptly prepare
> and transmit to the Chief Clerk of the Assembly and the Speaker of
> the Assembly in the case of an Assembly bill, or to the Secretary of
> the Senate and Chair of the Senate Committee on Rules in the case of
> a Senate bill, a brief digest summarizing the effect of the amendment
> made in the other house.  The Secretary or Chief Clerk shall,
> upon receipt from the Legislative Counsel, cause the digest to be
> printed in the Daily File immediately following any reference to the
> bill covered by the digest.  A motion to concur or refuse to concur
> in the amendment shall not be in order until the Legislative
> Counsel's Digest has appeared in the file or an analysis of the bill
> has been prepared and distributed pursuant to Senate Rule 29.8 or
> Assembly Rule77.
>           If the digest discloses that the amendment of the other
> house has made a substantial substantive change in the bill as first
> passed by the house of origin, the bill shall, on motion of the Chair
> of the Senate Committee on Rules, if it be a Senate bill, be referred
> to the Senate Committee on Rules for reference to an appropriate
> standing committee.  If the bill is an Assembly bill it shall be
> referred by the Speaker to the appropriate committee.
>           Upon receipt of the bill, the committee may vote to
> recommend concurrence or nonconcurrence in the amendment or the
> committee may hold the bill.  The committee shall be subject to all
> the requirements for procedure provided under Rule 62 for committees,
> other than committees of first referral, and shall be subject to
> other requirements for normal committee procedure as the Assembly or
> Senate may separately provide in the standing rules of their
> respective houses.
>           Any of the provisions of this rule may be dispensed with
> regard to a particular bill in its house of origin upon an
> affirmative vote of a majority of the members of that
> house."
>
> For a comprehensive reference on California legislative procedure, see
> http://leginfo.public.ca.gov/califleg.html and click on the link
> for "The Legislative Process" for a 37-page PDF file.
>
> Meanwhile, we must continue to urge individual Assembly members to
> not support this bill.  See prior updates for details.  The key issue
> is that the state preemption prohibiting any local regulation of dogs
> as specific as to breed must be maintained in its entirety as enacted
> in 1989.
>
> CAPTION LETTERS:  SB 861, Dangerous and Vicious Dogs, as amended July
> 5. OPPOSE
>
> ALL STRATEGIES AND CONTACTS REMAIN THE SAME.  SEE YAHOO GROUP SITES
> FOR ARCHIVES, FILES AND LINKS.
> *****
>
> FEDERAL S 1139 by Senator Rick Santorum (R-PA,) co-sponsors Richard
> Durbin (D-IL,) and Arlen Spector (R-PA) - shorthand, "PAWS" - the Pet
> Animal Welfare Statute of 2005 would amend the Animal Welfare Act
> with subsequent rules to be adopted and wipe out the USDA's historic
> interpretation of AWA as only requiring licensing and regulation of
> breeders selling at wholesale.  This standard was upheld in the 2003
> United States Court of Appeals For The District Of Columbia Circuit
> case of Doris Day Animal League v. USDA.
>
> Wholesaling is a simple, qualitative measure that is done on a
> business model that includes compliance costs and can be anticipated
> year in and year out until a business decision is made to cease
> operation.  Absent change in federal law, were the USDA to change
> this standard on its own, it would need to comply with the federal
> Regulatory and Flexibility Act (5 USC 601 et seq.) that requires
> agencies to consider the economic effects of rule changes on small
> entities including, businesses, organizations and individuals.  This
> entails estimating the number of operators affected by changes and
> likely dollar impact of rule changes should small entities be those
> most affected by the rule changes and an entire procedural scheme
> enforced by the Small Business Administration.  Agencies can
> impose "significant" regulation on small businesses and non-profit
> organizations but are required consider less burdensome alternatives
> and to explain why it has rejected those alternatives.  This law
> along with some Executive Orders make dubious any USDA instigated
> effort as broad as the PAWS bill.  However, it would force USDA to
> follow these requirements in additional rulemaking pursuant to any
> amendments to the AWA.  This may, or may not, result in changes to
> existing regulation of licensed dealers, many of which are also small
> businesses on a dollar basis.
>
> PAWS AND "RESCUE" ISSUES have inspired claims by proponents that AWA
> only covers "commerce" in a business sense and would exclude non-
> profit rescue organizations.  Rather, the word "commerce" in federal
> law relates to the federal power to regulate commerce under the
> United States Constitution Commerce Clause Article I, §8, of the
> Constitution "[t]o make all Laws which shall be necessary and proper
> for carrying into Execution" its authority to "regulate Commerce with
> foreign Nations, and among the several States."  The term "commerce"
> was included in AWA in the 1970 amendments to provide jurisdiction
> within states as long as an activity had some impact on interstate
> commerce so that there would be no requirement that animals cross
> state lines.  Historically the Commerce Clause has been broadly
> interpreted by the Supreme Court as to what has impact on interstate
> commerce, because this concept enables use of the federal
> government's police power.  The recent Supreme Court decision in the
> medical marijuana case, Gonzales, Attorney General, Et Al. V. Raich
> Et Al. available at
> <http://www.supremecourtus.gov/opinions/04slipopinion.html>
> provides a current reference on the broad judicial interpretation
> of "commerce" for federal purposes.  The Court noted that
> even "Congress' power to regulate purely local activities that are
> part of an economic "class of activities" that have a substantial
> effect on interstate commerce is firmly established."  Such
> activities need not be conducted as a profit-making business.
>
> COMMERCE INCLUDES RESCUE since animals transferred in rescue
> transactions are a significant portion of the total market for
> animals.  Rescue animals are particularly involved with the alleged
> reasons for PAWS, i.e. use of the internet and imports as well as
> frequent interstate transport and sales of animals from undocumented
> sources and unregulated standards of care - often involving large
> numbers of animals.  There are no convincing policy reasons to
> exclude the rescue sector from inclusion in the PAWS dealer
> definition except as to those shelters operated under the PAWS pet
> store definition and thus excluded as dealers.  The additional
> wording in the dealer definition, i.e. "dealer" means any person who,
> in commerce, for COMPENSATION OR PROFIT,  would only exclude
> operators who received nothing of tangible value in exchange for
> placing animals.  It is possible to structure rescue placements with
> no compensation, but many rescue organizations derive significant
> funding from these charges. Rescue transactions are legally treated
> as sales unless expressly excluded or treated differently for
> specific purposes by law, e.g. sales tax, warranties, etc.  Note that
> the "consideration" required for a legally enforceable contract can
> be only a promise to do or not do something and not money or anything
> else of monetary value.  The purposes of the AWA are to ensure the
> welfare of animals in commerce, which includes rescue animals, so
> excluding private rescue from proposed regulation of retail sellers
> defeats the statutory purpose to protect animals.
>
> See our Yahoo Group sites for additional federal resources.
> *****
>
> *a service of THE ANIMAL COUNCIL
> P.O. BOX 168, MILLBRAE  CA  94030
> Contact us at <TheAnimalCouncil@aol.com>
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> Online news updates published sporadically since 1997.
> Legislative tracking subject to change.  CA bill and law information
> http://www.leginfo.ca.gov
> Federal info at <http://thomas.loc.gov/>