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How will the New USDA Changes Affect You?
Posted on 10/11/2013 in Your Dog, Your Rights.

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By now, most of you have heard that some changes have been made to the Animal Welfare Act (AWA) that affect dog breeders, but there has been a lot of confusion on exactly how these changes work. I will attempt to clarify and simplify, to the best of my knowledge, but many of the definitions and applications remain unclear.

First of all, what is the AWA? In a nutshell, the AWA was originally created in order to oversee the humane treatment of animals used in research, and was later expanded to include transporting and dealing animals, as well. The law delineates who must be licensed and subsequently adhere to regulations and standards. Dog breeders who sell pets only at retail, and “retail pet stores”, are exempted from the AWA. The changes to the AWA revise and narrow the definition of “retail pet stores”.

The AWA regulates and requires dealers to be licensed and inspected. A “dealer” is defined as “any person who, in commerce, for compensation or profit, delivers for transportation, or transports, except as a carrier, buys, sells, or negotiates the purchase or sale of: Any dog or other animal whether alive or dead (including unborn animals, organs, limbs, blood, serum or other parts) for research, teaching, testing, experimentation, exhibition, or for use as a pet, or any dog at the wholesale level for hunting, security or breeding purposes.” “Retail pet stores” or anyone who sells dogs at retail for “hunting, breeding or security purposes” are exempt from licensing.

Selling at wholesale means that the dogs are sold to an intermediary who then sells them at retail, such as a pet store. The original reasoning behind exempting retail pet stores was that some public oversight exists as buyers can see the facilities and therefore curbed the potential for abuse. With the explosion of the internet, some of the bad actors have found a way to sell dogs at retail via the internet instead of through pet stores, thus falling into the exception and avoiding inspection and regulation with USDA.

The retail pet store definition has been narrowed to “a place of business or residence at which the seller, buyer and the animal available for sale are physically present so that every buyer may personally observe the animal prior to purchasing and/or taking custody of that animal after purchase.” It also includes “any person who maintains a total of four or fewer breeding female dogs.”

Who will be affected by this definition change? It might not be as sweeping and over-inclusive as it first appeared. Basically, the dog breeders it will affect will be those who sell dogs sight unseen, have more than four (4) “breeding females”, and sell dogs as pets, Sounds simple, right? Not so much.

1. “Four or fewer breeding females has yet to be completely defined. What is a “breeding female”? According to the official rule publication, “APHIS has to assume that a female that is capable of breeding may be bred” and will count towards the number of females. Inspectors will determine on a case-by-case basis what females are capable of breeding. They will consider factors such as the animal’s age, health and fitness for breeding in making their determination, which does not really make the determination any more objective, or really give breeders much notice as to precisely what females in their kennel count.

Because the definition of “breeding females” has not really been specified or clarified, erring on the side of caution and counting any intact females of breeding age would be best. Breeders with four (4) or less breeding females can ship sight unseen and still remain exempted.

2. Selling dog as pets is not nearly as simple as it sounds, either. Generally, it appears that dogs used for a purpose or use are not considered as being sold for pets, and are exempt from licensing. Selling dogs to preserve a bloodline is another exemption. However, APHIS specifically addressed agility dogs for some odd reason, and it is their belief that dogs marketed for agility are primarily pets and those breeders would be considered pet breeders. Yet APHIS otherwise implied that any other purpose would be considered non-pet and therefore exempt. APHIS listed some examples - guide dog, sled, herding - that they consider purposes that are working and are not pets, and stated that the list is not exhaustive. Not only is the line between working dogs and pet dogs a blurred one, but then you get into the sticky area of mixed kennels. What of a kennel that breeds for many purposes?

For example, many gun dog kennels breed and train for hunting dogs, but will sell puppies as pets. Same with show/conformation kennels. Many hunting dogs are general purpose - sold for some hunting, but primarily as companions. It’s not uncommon for many dog breeders to have a wide range of puppy buyers, from serious/performance homes to pet owners who want a quality purebred companion.

The idea of a mixed kennel has been brought up to APHIS on several conference calls, and no real concrete answer has been given thus far. The Intent of the purpose that the dog is advertised and sold for is what will be examined, not so much the actual use that the buyer ends up applying to the dog. As it has been stated that these would be reviewed on a case-by-case basis, it’s recommended that breeders of mixed purpose dogs should contact USDA for clarification.

3. Selling sight unseen and shipping animals may require dog breeders to become licensed, unless they have less than five (5) breeding females. Remember, the definition states that a retail pet store is “a place of business or residence at which the seller, buyer and the animal available for sale are physically present so that every buyer may personally observe the animal prior to purchasing and/or taking custody of that animal after purchase.” That reads to me as requiring the buyer, seller and animal for sale to all be present at the breeders’ facility, particularly as the reasoning behind the rule change has been that sales conducted at the actual “brick and mortar” establishments provides necessary public oversight to the extent that overrides any need for license or inspection. Not so, according to APHIS. Their interpretation of this definition is that the exchange must take place face-to-face, and the location is irrelevant so long as the seller, buyer and the animal are all physically present so that the buyer can observe the animal prior to purchase. The buyer can have someone stand in for them in the manner of an agent.

In this author’s humble opinion, that interpretation does not really jive with the whole idea of public oversight, because that is the whole idea of narrowing the retail pet store definition, but APHIS felt that interpreting the “retail pet store” to be the seller’s facility itself would be more restrictive than what the AWA was intended to do.

Agree with them or not, these three factors are the main considerations in what will bring breeders into USDA purview. Let’s run through an example to see if we can figure out if the kennel is exempt or needs to become licensed. Consider the following: a breeder of German Shorthaired Pointers markets their dogs as having excellent noses, superb natural retrieve, and a biddable temperament that makes them great companions in the house. This kennels currently has seven females under the age of two, and has bred two litters this year. All of the females are in training and are hunted, and only those females who meet the breeder’s strict standards and succeed in the field will actually be used in the breeding program.

The owner is active in hunt training, and hosts training nights at his kennel, but has some dogs in the house. He does not advertise outside of a website, people hear of him by word-of-mouth and by reputation, and he has a wait list for puppies. Many puppy buyers are return customers and, as such, many puppies are picked by the breeder for the buyer and shipped to the buyer to other states. Does this breeder meet the exemption, or is he required to get licensed?

In applying the three main factors, it really isn’t clear. Shipping sight unseen is the easiest application here; he definitely ships sight unseen, and the buyer, seller, and animal to be purchased are not all present.

What about less than five (5) breeding females? It seems that could be argued either way. Most definitely not all of them will be bred, but all are intact and might be considered “capable of breeding” by APHIS.

The other factor; i.e., the purpose these dogs are being sold for, is yet another gray area. While the main goal of breeding is to produce hunting dogs, and the breeder is very involved in hunting, they are also companions, and some may never hunt a day in their life while many will do both. If the breeder must show intent of the purpose is to hunt, how does he prove that when these dogs are both? Again, it will be up to APHIS to make that determination. If a breeder came to me with this set of facts, I would recommend to them that they contact the USDA to get a direct answer.

While there have been attempts through phone conferences and published FAQs to clarify some of these terms, what is clear is that many questions remain. The rule change takes effect as of November 18, 2013, so if you feel there is some question as to whether or not you need to be inspected and licensed, you should contact the appropriate USDA-APHIS regional office. The USDA-APHIS has created some informational material on their website, with contact information, but unfortunately due to the federal government shutdown, the website has also been shut down and all links are currently unavailable at press time. Another option would be to contact Dr. Gerald Rushin, Veterinary Medical Officer, at 301-851-3751.