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Now It's the Feds' Turn
Posted on 06/23/2012 in Your Dog, Your Rights.

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by Sara Chisnell, Esq.

Last month, I revisited the state “puppy mill” bill issue as it was rearing its ugly head here in Michigan once again. That apparently was a foreshadowing of what was to come at the Federal level.
Some very significant and disturbing changes have been proposed to the Animal Welfare Act that could negatively impact not only breeders but rescues alike! In this column I will go over those changes and contact info for comments as I urge each and every one of you to have your voice heard on this issue.

APHIS (Animal and Plant Health Inspection Service), which falls under the USDA, has proposed regulation changes under the AWA (Animal Welfare Act). 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. Currently, dog breeders who sell pets only at retail, and “retail pet stores” are exempted from the AWA.

APHIS has now proposed changes that would target sellers of pets over the internet. What has prompted these changes? It’s, in part, due to pressures from animal rights groups, but also due to the growing trend of internet “pet shops”. Over the years, buying a dog from a pet shop has become more and more of a faux pas, as the sources for dogs in many pet stores have been revealed to be questionable. Many of those questionable sources have now resorted to setting up their own shops in the form of websites. You know the ones I’m talking about - they are basically like any other retail website, complete with color choices for puppies, pictures of dogs posed with props, and easy PayPal payment and shipping options already set up.

The theory, according to APHIS, is that sales conducted at actual physical “brick and mortar” establishments are less likely to have the awful conditions and lower standards of care. APHIS believes that having buyers physically present creates public oversight for the seller that, in theory, pushes the seller to have higher standards of care. The belief is that without any public oversight, through internet sales and selling “sight unseen”, horrid conditions can be hidden behind the pretty websites. APHIS reasons that when people physically enter the premises where the animals are sold, the sellers are monitored by the buyers and that there is no need for inspections.

Because of this alleged “loophole” in the AWA, APHIS has proposed rule changes that would supposedly close said “loophole”. However, these changes would be much larger than closing a loophole; instead the changes would be overly broad and sweeping and would bring, at a minimum, thousands more under AWA purview. Keep in mind, it’s not just dog breeders, but breeders of just about any small animal for pets. The sole biggest change to the AWA would be the definition of “retail pet store”. It would be defined as “a place of business or residence that each buyer physically enters in order to personally observe the animals available for sale prior to purchase and/or to take custody of the animals after purchase.”

Retail pet stores would still be exempt from USDA licensing and inspections, but the proposed definition is very narrow. Anyone with four (4) or less “breeding females” would be exempt as well, so long as they sell only offspring “born and raised on his or her premises.” To sum up, if you have five or more “breeding females”, and conduct even one sale over the internet or sight unseen, you would now be required to obtain a USDA license and follow the requirements of the AWA. If you have four (4) or fewer “breeding females”, but sell even one dog that was not born and raised on your premises, you would have to obtain a USDA license.

This is one of those proposals that sounds all well and good on the outset to those who don’t know better (or wonderful to those who want to end all dog breeding!), but will end up having huge unintended consequences. According to the APHIS report in the Federal Register, they predict that the new proposals would likely bring in only 1,500 “new” retail breeders, and even feel that figure is overly inclusive.

Only 1,500? Remember, these laws apply to many other small animal breeders, so 1,500 is an unrealistically low number. In my opinion, APHIS does not know how very widespread this will be, and in no way has the budget or personnel to handle the high number of breeders that would have to be inspected and licensed. Nor has any consideration been given to the number of breeders who keep their dogs in the home and don’t have a physical “kennel”, if they are required to follow the regulations of the AWA, they very well might be put out of business as building the kennels and pens would be unrealistic.

Beyond the fact that the proposed rule changes would reach many more than intended is the myriad of problems with the wording and language. One major problem is that only one off the premise sale would require USDA licensing. While at first I thought this might be an oversight, it was clearly intended by APHIS.

In the Federal Register report, APHIS directly addresses this issue; a percentage threshold was considered but then dismissed by APHIS. They felt it could too easily create a loophole and would be too difficult to ensure that the percentage of offsite sales were legitimate. APHIS also considered an exception for retailers that are already subject to state and local regulations, but felt that none in existence compare to the USDA welfare standards. Looking at the number of animals sold, rather than the number of breeding females kept, was considered as well, but APHIS decided that using breeding females for the exemption was more adequate due to variability in litter size from breed to breed. APHIS also noted it will be easier to ascertain the number of breeding females than it would the number of dogs sold, as that would require burdensome reviews of sales records and documents.

With regards to the term “breeding females” - the term is not further defined anywhere within the AWA. The question was raised on a recent APHIS stakeholder teleconference call, and it was admitted the definition is not clear. No age minimum is given, nor any other specifications, such as whether the female must be actively used in a breeding program to be considered a “breeding female” or merely be intact. According to Dr. Gerald Rushin on the call, it appears the females only need be intact - his interpretation is “the dogs that have the ability to breed.” We all know that not every intact female dog in a kennel is bred, so this is a pretty unfair interpretation of the definition.

The APHIS stakeholder teleconference did more to muddy some of these issues rather than clarify them. Rebecca Blue, Deputy Under Secretary for Marketing and Regulatory Programs at USDA, made some statements at the outset of the call that seemed to demonstrate confusion even within the USDA. She stated that breeders can continue to advertise sales on the internet and newspaper, and would not need to be regulated by APHIS so long as buyers still had the opportunity to come to their place and see the animals prior to buying. Yet she contradicts herself in the very next breath by stating that if a breeder sells just one dog sight unseen, then they would not be exempt from the AWA.

The question of whether or not shelters and rescues would also come under the definition of “retail pet stores” arose on the call as well; the caller was told if the animals are “sold”, then they would come under the rule. One could argue that adoptions count as sales - if that’s the case the number of affected individuals would skyrocket!

To summarize: the proposed rule changes to the AWA would give the USDA authority over a whole new class of breeders - breeders for the pet industry - through a law that was intended to regulate the treatment and care of laboratory animals. While sales via the internet only may be an issue in some cases, the means of sale in itself are not the issue.

Selling animals sight unseen is by no means a new method of sales. People have been selling animals through ads in publications for hundreds of years. There are many instances of buying sight unseen that happen all the time: the buyer might know all of the bloodlines, might be a previous customer, or it could be a rare breed where breeders are few and far between.

Buying an animal sight unseen in and of itself is not a problem; it’s when sales are conducted in this manner only to hide horrid conditions that it becomes an issue. These new rules are not necessarily going to fix those conditions either; not only is APHIS most likely biting off more than it can chew when it comes to enforcement, but it may negatively affect more innocent breeders than it will stop the bad actors.

Fortunately, there are many things that you, as a dog owner and expert, can do in this case! As this is more an administrative rule rather than legislation, a comment period has opened and comments will be considered until July 16. Remember, when making your voice heard, whether it be through an open comment period such as this or contacting a legislator, to first establish yourself as not only an expert, but as someone who will be directly impacted by the potential changes. You should also contact your Congressman or Congresswoman and ask for their assistance. Finally, you can contact USDA Secretary Tom Vilsack and voice your opinion to him as well.

To comment on the proposal:
Visit the Federal eRulemaking Portal at http://www.regulations.gov/#!submitComment;D=APHIS-2011-0003-0001
(and keep in mind that you will only have 20 minutes to complete the page, so have what you want to say ready).

Mail comments to: Docket No. APHIS-2011-0003, Regulatory Analysis and Development PPD APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale MD 20737-1238.

To find your Congressman or Congresswoman:

For tips on contacting lawmakers: http://www.ukcdogs.com/WebSite.nsf/WebPages/ComContactingLawmakers.

Contact information for USDA Secretary Vilsack: U.S. Department of Agriculture, 1400 Independence Ave SW, Washington DC 20250. Information Hotline: 202-720-2791.