If you pay any attention to internet lists, you may have seen a big flap that started in the middle of May about the new USDA proposed regulations. Well, it is a big deal. Federal regulation impacting your ability to own pets is something you need to understand, form an opinion about, and then submit a comment to USDA during the public comment period. You should also send copies of your comments to your senators and to your congressional representative. If you own pets and want to continue to be able to own the pets of your choice – all pets, not just dogs or cats – you can’t just let this one slide and expect someone else to take care of it for you.

First a little history.

USDA (United States Department of Agriculture), in the person of its enforcement arm APHIS (Animal and Plant Health Inspection Service), has been responsible for the administration of the rules and regulations written to enforce all of the various animal welfare acts beginning with the Laboratory Animal Welfare Act passed in 1966 to the Animal Welfare Act of 1976 and the Food Security Act of 1985. As part of this enforcement, APHIS has been responsible for the licensing and inspection of anyone who, for compensation, acts as a broker or dealer of animals, or operates an auction house, or transports animals, or uses animals in an exhibition such as a zoo or rodeo, or operates a research facility using animals. In other words, APHIS has primarily been concerned with animal wholesalers, exhibitors and researchers. All of these people or businesses or organizations have been required to be licensed and to meet minimum standards for care and treatment of their animals and to comply with the other regulations written for enforcement of these Animal Welfare Acts for many years – those standards being enforced by APHIS through regular inspections of records and property.

The regulations to which we have all been subject since at least 1971 do contain some exceptions. If a person or company meets the exception, they are exempt under the federal law and are not required to be licensed or inspected by APHIS. The current exemptions are for: 1. Retail pet stores that sell nondangerous, pet-type animals at retail only; 2. A person who receives no more than $500 gross income from the sale of animals (not including dogs, cats, or wild or exotic animals) in the course of a year, no matter whether they are sold wholesale or retail; 3. A person who maintains no more than 3 breeding female animals and sells only their offspring born and raised on the person’s premises for pets or exhibition; 4. A person who sells fewer than 25 dogs or cats in a year for any purpose, as long as those animals were born and raised on the person’s premises; 5. A person arranging transportation of animals solely for purposes of breeding, purebred showing, boarding, grooming or medical treatment; 6. A person who buys, sells or transports animals only for the purposes of food or fiber; 7. A person who breeds and raises domestic pet animals for direct retail sales to another person for the buyer’s own use (e.g., a purebred dog or cat fancier); or 8. A person who buys animals solely for his own use or enjoyment.

In other words, under current law and current regulations, if you have any dealings with animals in any way you are required to be licensed and inspected by USDA and to meet all of the housing, sanitary, etc. requirements in the regulations unless you fit into one of the following 8 categories –

1. You are a retail pet store, or

2. You receive no more than $500 gross income from the sale of animals in a year, or

3. You have no more than 3 breeding animals on your property and you sell only their offspring, or

4. You sell less than 25 dogs or cats in a year but they have to have been born and raised on your property, or

5. You transport animals only for a few specific purposes primarily having to do with pet care or purebred showing, or

6. You buy, sell or transport only animals used for food or fiber, or

7. You are a “purebred fancier”, or

8. You are a pet buyer/owner.

There is a lot more than that in the current regulations, and if you want to take a look at them yourself all 164 pages can be found at www.aphis.usda.gov/animal_welfare/downloads/awr/awr.doc but this is the part that APHIS wants to change.

Now a little more history.

In 2010, the results of an audit of the APHIS Animal Care Program by the Office of the Inspector General were published. This report is entitled Animal and Plant Health Inspection Service, Animal Care Program, Inspections of Problematic Dealers and if you want to read the whole thing you can find it at www.usda.gov/oig/webdocs/33002-4-SF.pdf

There is no denying that this document is a horrific indictment. The question is: indictment of whom? The AR (animal rights) contingent¹ would have you believe that this report, even though it contains the words “Problematic Dealers” in the title, is a true representation of the majority of dog breeders. If you do read the report, please make note of the Executive Summary, where it states that this is the latest in a series of audits and where it also states some of the problems the OIG has found with APHIS inspection procedures in the past. This document is an indictment all right – but an indictment of APHIS enforcement and penalty processes.

In any case the ARs (animal rights extremists who oppose the ownership of pets and other animals), and particularly the highly paid lobbying arms of such AR organizations as the HSUS (Humane Society of the United States) and ASPCA (American Society for the Prevention of Cruelty to Animals), ran right to federal legislators they anticipated would be amenable to their position and had them dust off the old, defeated PAWS proposal and give it new life as PUPS – a bastardized, science-lite, opinion-heavy piece of constitutionally questionable legislation if ever there was one – designed solely to make the legal breeding of dogs and cats in this country difficult, if not impossible. Their basis for this action was the OIG report, detailing some of the abuses found (but not punished) by APHIS inspectors. They conveniently glossed over information such as that APHIS at the time had a total of 99 inspectors, the authors of the report followed 19 of them, and 6 of those 19 were found to have problems with paperwork and violation reporting – in other words 32% of those followed by OIG (and by extrapolation, a presumed 32% of the total 99 federal inspectors) were not doing their jobs.

The report also stated that some large breeders circumvent AWA by selling animals over the internet. These breeders were taking advantage of the retail pet store exemption and the report and APHIS called this “a massive loophole”. The ARs jumped on this bandwagon too, equating breeders who use the internet to advertise with “puppy mills” (a term which has lost all meaning except as a pejorative– if it ever had meaning to begin with) and demanding that they be regulated by means of the PUPS proposal. Of course, the term “loophole” has an emotional rule-bending, corner-cutting connotation that does not sit well with people concerned with the well-being of puppies and kittens. But is this truly a loophole in the law, or is it a 40 year long gap in the regulations written and administered by APHIS itself? The internet may not have been around for 40 years, but magazine advertisements and telephone and postal service certainly have been.

Originally, the PUPS proposal appeared to be okay with USDA. In the report, the OIG makes a recommendation to seek legislative change to exclude “Internet breeders” from the definition of retail pet store and APHIS agrees. However, for some reason², APHIS has reversed itself on this and now states that the legislation currently in force does give it the authority to regulate internet sales of animals and all that is required is a regulatory change.

And thus we come to the present.

In May APHIS published a proposed rule to, among other things, revise the definition of retail pet store in the current regulations. You can find the proposed rule here - http://www.aphis.usda.gov/newsroom/2012/05/pdf/docket_APHIS_2011_0003.pdf The comment period is from 5/16/12 to 7/16/12.

The proposed rule change deals with changes to the exemptions discussed above.

1. The retail pet store exemption remains, but the definition of a retail pet store is changed. Under the proposed regulation a retail pet store would be defined as a place of business or residence that every buyer must physically enter in order to personally observe the animals available for sale prior to purchase and/or to take custody of the animals after purchase and where only certain animals are sold or offered for retail sale for use as pets.

2. This one is not changed – the $500 limitation on gross income from sale of animals still remains.

3. The proposed rule increases the number of breeding females allowed from 3 to 4, but it adds persons meeting this criterion to the definition of retail pet store. The effect of stating that this criterion is added to the definition of retail pet store is unclear. The APHIS Factsheet (http://www.aphis.usda.gov/publications/animal_welfare/2012/retail_pets_faq.pdf) states that “these breeders can only sell the offspring of the breeding females that were born and raised on their premises, and sold for only pets or exhibition”.

4. No change is mentioned (this is the selling fewer than 25 animals one).

5. No change is mentioned (this is the transporting animals one).

6. No change is mentioned (this is the food or fiber animals one).

7. The purebred fancier exemption is deleted.

8. No change is mentioned (this is the pet buyer/owner one).

APHIS estimates that increasing the number of breeding females from 3 to 4 will remove about 600 or so breeders from their current licensees while removing the purebred fancier exemption will add about 1500 dog breeders (they do not seem to think breeders of other species will be significantly affected) for a net increase of 900 new licensees.

The justification for this rule change is that APHIS believes there has been such an increase in volume of remote sales, particularly internet sales, in the last 20 years that there is a large population of animals being sold directly to the public, i.e. at retail, as pets that are not being monitored for their health or humane treatment. Retail pet stores are specifically exempt from the provisions of the Animal Welfare Act and are not required to be licensed by APHIS. APHIS’ solution for this problem is to remove from the definition of “retail pet store” any seller who does not require that the buyer physically present themselves at the seller’s facility either prior to or at the time of purchase. APHIS justifies their proposed all-or-nothing rule as written by claiming that they do not have the authority to require retail pet stores to make or retain records that would verify the proportion of remote sales that make up their business.

If even one buyer does not appear in person, then the seller will need to be licensed in accordance with AWA regulations and will become subject to all other applicable AWA provisions. This point is key here. You need to understand that this is not just a matter of filling out an application, paying a fee, and letting an inspector into your house once a year for a few minutes. If you are required to become a “licensed entity” you will need to comply with animal identification and recordkeeping requirements and with standards for facilities and operations (including space, structure and construction, waste disposal, heating, ventilation, lighting, and interior surface requirements for indoor and outdoor primary enclosures and housing facilities); animal health and husbandry (including requirements for veterinary care, sanitation and feeding, watering, and separation of animals); and transportation (including specifications for primary enclosures, primary conveyances, terminal facilities, and feeding, watering, care, and handling of animals in transit). The regulations covering all this stuff are 164 pages long!

So what does this mean? There is a lot of confusion.

Problems – in no particular order of importance.

• If you are a breeder there are only 3 ways to remain legal under this new proposed rule – get licensed under the AWA, upgrade your facilities to be compliant with 164 pages of federal regulation and allow APHIS inspectors into your home OR sell all animals only to buyers who physically enter your home and facilities OR have only 4 breeding females and sell only their progeny.

• There is no written definition of breeding female. According to Dr. Rushin in the transcript of the stakeholders’ conference, APHIS has been using a working definition in their wholesaling inspections of “dogs that have the ability to breed”. It has not been an issue for dog breeders in the past, but with the purebred exemption being removed it will now be of paramount importance. ARs believe, and have advanced legislation in multiple venues to try to codify their belief, that any intact female dog over the age of 4 months qualifies as a breeding female. The vast majority of dog breeders who were previously exempt under the purebred fancier paragraph do not breed their female puppies on their first heat. Some health testing cannot be done until the dog is 2 years old and the overwhelming majority of the breeders who will now be captured under the new rules do not even consider a bitch to be breedable until she is at least 2. Some breeders are concerned with late-onset diseases such as epilepsy known to have a genetic component but no testing available, and prefer to wait until their dogs are 3 or 4 or even 5 years old before breeding the animal for the first time. Some breeders raise up multiple puppies from a litter before deciding who to breed as an adult. Some breeders do not spay their retired bitches. Some view surgical altering as an unnecessary and even detrimental procedure and do not routinely neuter their animals, even if they will not breed them. How will a breeder know what animals count as breeding females?

• The language in the regulation specifies 4 breeding females, and it seems from the context that it is only the number that is important. Species does not matter. As an example, perhaps there is a dog breeder who previously qualified as exempt under the purebred fancier paragraph, without regard to the number of intact female dogs she had. Let’s say she has 3 dogs that will be considered breeding females. Let’s also say that her young son breeds guinea pigs for 4H. If he has more than 1 female guinea pig and if he sells a guinea pig to a friend at the 4H fair, his family will require a USDA license – with all the accompanying expense of kennel construction, licensing and inspection. USDA itself is inconsistent on this point. People who have spoken to Dr. Rushin report that he has said this is not how it will be interpreted, but people who have spoken to other officials with USDA report that they have agreed with this interpretation. Whatever the interpretation, it must be spelled out and not left to the whim of the inspector at the time of inspection.

• “4 breeding females” may include co-ownerships and will include animals shared with family members or animals that are temporarily in residence with the breeder. It is possible that a bitch on your property for stud service or your sister’s bitch that you are boarding while she is on vacation could be included in your count if the inspectors happen to be counting on that day. The actual text of the proposed rule is “maintain on his or her premises”, however there does not appear to be a definition of “maintain” in the regulations.

• Even one sale to a buyer who does not physically enter the breeder’s home/kennel will cause the breeder to lose the exemption from licensing. This is certainly true for anyone exempt from licensing under the retail pet store exemption. It is not clear at all from the various wordings provided in the APHIS documentation whether this will also be true for a breeder exempt by virtue of having 4 “breeding females”, however Dr. Kay Carter-Corker of APHIS, in a telephone conversation on 5/24/12, assured me that breeders having 4 or fewer breeding females who sell only the offspring of those females born and raised on their premises will not lose the exemption from licensing if they sell an animal offsite. Relying on word of mouth interpretations is not a good idea. It must be defined in the ultimate regulation.

• To meet the exemption for 4 breeding females, those breeders can ONLY sell the offspring that were born and raised on their premises. This leads to several problems for breeders. If a breeder gets a puppy back as a stud fee or gets a puppy back from a bitch sold previously, that puppy cannot be sold without the breeder losing the exemption. If a breeder retires a bitch and wants to rehome her, that cannot be done without losing the exemption unless the bitch is one bred and raised by the breeder. If a breeder wants to retire a stud dog and rehome him, same problem.

• To meet the exemption for 4 breeding females, breeders can ONLY sell animals as pets. It appears that dogs cannot be sold for police or military work or hunting or breeding purposes without the breeder accepting the requirements of licensing, upgrading and inspection. It is questionable whether dogs can be sold for search and rescue work, or assistance dog work, or farm work, or any of the multitude of other uses that people have for dogs without losing the exemption.

• Under the current regulations, any person or establishment who deals in dogs used for “hunting, security, or breeding purposes” is not included in the definition of retail pet store even if the dogs are sold at retail. There is, however, no explanation of what is meant by “hunting, security, or breeding purposes” and no clear explanation of the consequences if animals meeting this classification are sold.

• Buyers will be limited to only dogs available within the area the buyer wishes to travel unless the breeder is USDA licensed. There can no longer be arrangements for a puppy to ride along to a show to meet up with a new owner. Sellers can no longer agree to meet a buyer half-way or to deliver the puppy themselves. Buyers can no longer choose to have a puppy shipped. Buyers who have had a long history with a breeder will be forced to go to the breeder’s location for their next dog, even though they know there is no need for them to “inspect” the facilities.

• Breeders will be severely limited in their choices and abilities to maintain genetic diversity in their lines. They will no longer be able to purchase new breeding stock unless the breeder they are purchasing from is either close enough to travel to or is licensed with USDA.

• Breeders will no longer be able to be active in breed rescue. Fostering and selling dogs not of their own breeding for their purebred rescue group will cause them to lose their licensing exemption.

• Rescue organizations have historically been exempt from licensing under the retail pet store exemption. Many rescues will no longer qualify under this new rule. Rescues sell rescued animals, not those born and raised on the premises. Rescues sell animals off the premises at special adoption days. Rescues have special arrangements with other establishments to allow their animals to be showcased and sold from remote locations. Rescues transport animals to buyers who did not physically visit their location.

• Applying different rules to rescues engaged in substantially the same activities as breeders, with whom they are in competition, would lead to constitutional issues.

What can be done?

Comment. Comment. Comment.

APHIS has specifically requested comments on the number of people and/or businesses that will be affected by this proposed rule and also the operational changes – both the changes themselves and the estimated cost of the changes – that will be required for people to meet the licensing requirements.

Your comments need to be personal and to the point. Simply saying “Hey what a stupid idea!” or “About time you guys did something like this!” is not effective. APHIS has come up with this idea. You can bet your boots they like it and they didn’t put it out for comment just to be validated. They put it out for comment because – 1. They are required to and 2. They want to know if there is something drastically wrong with it that they don’t know about.

APHIS is basing their estimates of the financial and regulatory impact of this rule change on the limited data they have available from their historical interactions with regulating wholesale breeders. They seem to think that the retail breeders who will suddenly need to be licensed have business models and practices substantially similar to the wholesale breeders with which they are familiar. They are estimating that only 1500 dog breeders across the country will be added to their enforcement and inspection load.

They have no clue how the whole sub-culture of purebred dogs works.

They have no clue how hobby breeders work. USDA does not even define “hobby breeder”. In their lexicon you are either a “breeder” (Class A license) or a “dealer” (Class B license). They have no clue about co-ownerships and puppies in lieu of a stud fee and puppies back from a litter and leasing animals across country and all the myriad of other common practices used to maintain genetic diversity and maintain and improve lines. They have no clue about the requirements of genetic and health testing and performance testing and temperament and conformation and working ability assessments and how all of that interplays to finally determine whether or not a dog is worth breeding. They have no clue how long it takes to determine if a dog will be bred.

They have no clue how dog sports work. They have no clue about how much time and effort a person looking for a performance dog spends finding the right lines, finding the right breeder, finding the right dog. They have no clue about how common it is for a west coast person to buy an east coast dog, or vice versa. They have no clue about the relationships that often develop between breeders and buyers, making it completely unnecessary for a buyer to come to the breeder’s home.

They have no clue how rescues work. They have no clue about webs of foster homes and internet networking of dogs in need. They have no clue about adoption events and fundraising events. They have no clue about breeders who take in dogs not of their breeding and find them homes.

They have no clue. Period. Comments can be questions. If something confuses you, ask how it is supposed to be interpreted. Ask how APHIS has defined it. Ask why it was defined in that way. Comments need to be written to address how these rule changes will make it difficult or impossible for breeders to continue. Comments need to be written to address how these rule changes will make it difficult or impossible for buyers to choose the puppies they want. The comments need to be specific. You can make multiple comment submissions and I recommend you submit a separate comment for each separate issue. The comments need to be personal.

Tell a personal story about some specific action you took for the betterment of your dogs and your breeding activities that you will not be able to repeat if this rule change is implemented as written. If you are a breeder, provide a cost analysis of what it would take to bring your facility into compliance with the regulations. Tell a personal story about the last dog you bought, about how spectacular he is, and how you would not have been able to buy him if this rule had been in existence when he was a puppy. Tell a personal story about a rescue you took in and rehomed, about what a great dog she is and how she is a delight to the family who now owns her and how you will never be able to do that again if this rule change is implemented as written.

Comments like these are best in your own words, since we all have a different story to tell. Tell the reader immediately what has happened and why it’s important. “Let me tell you about my rescue dog, Murphy. If this proposed rule had been in place 8 years ago, he would be dead.” A good story gets straight to the point and loads in the human interest right at the very beginning. “My friend is a hobby dog breeder and Murphy showed up on her lawn when he was about 6 months old. She found a scared puppy sleeping under a bush when she let her own dogs out in the morning. Someone had dumped him on her country road during the night.” Always set it up to answer the basic journalistic questions - Who? What? When? Where? Why? How? So What? “She tried to find an owner, but she knew he had been dumped. So she had him vetted and then sold him to me for the cost of the vet bills.” Keep it simple with clear, direct language. Use short words instead of long, and omit useless words. “If this proposed rule had been in force at that time she would have taken him to the local pound instead. An untrained, pit bull mix puppy? They would have killed him.” Make sure the comment answers the “so what?” question. It needs to explain the significance of your story and how it relates to the issue. Tell them something you don’t think they understand. “With this rule, my friend can no longer rescue even one dog without being required to be licensed under the AWA.” Come up to the ending with an emotional tag if you can. “If Murphy had gone to the pound, the people at the senior center would not have his visits to look forward to, the “orphans” in the green room during his two runs in “Annie” would not have had him to play with, and I would not have my best friend.” And then, for the finale, tell them what you want them to do. “This rule as currently proposed will be devastating to the activities of hobby breeders and of rescuers. If you cannot find a way to write this rule that will accomplish the USDA’s stated aims without the terrible unintended consequences to families and their pets that will happen if it is enforced as you have proposed, then please leave the regulations as they currently stand. ”

The following quotation is taken from the automated comment form ASPCA has set up for ARs to send.

Finally, in order to ensure that all animals are protected, I urge you to require that buyers be allowed to personally observe all animals on the property and their living conditions prior to purchasing any animal in order for a breeder to qualify for the newly proposed retail pet store exemption. If the USDA intends to exempt a breeder from USDA inspection, all dogs and their living conditions must be open to buyers’ full scrutiny to truly ensure the well-being of all animals, including those used for breeding purposes. This small adjustment to the rule fulfills the original intent of the retail pet store exemption by allowing the public to oversee what the USDA does not.

If you are a small hobby breeder, this should scare the living hell out of you. The ARs are pushing to be able to crawl throughout your home, peeking into your kid’s closets and looking under your sink. In particular, all breeders should be commenting on the potential for egregious invasion of privacy inherent in this proposed rule. Not to mention the health risks to puppies, young dogs, and your geriatric pets.

In addition, the ARs are pushing for rescues to be totally exempted from these regulations. This is a bad idea for many reasons, but the main one is that, based on media reports, there are just as many abusive rescues as there are abusive breeders. If breeders need to be regulated, rescues need to be subject to the same regulations and APHIS needs to see as many comments from the general public in support of this position as they are going to see from the AR automated email comments. (And during the Texas rule-making process a few months ago the AR automated lines generated THOUSANDS of identical emails.)

How to comment

This is the link to the rulemaking portal.

http://www.regulations.gov/#!documentDetail;D=APHIS-2011-0003-0001

Click “Comment Now”. This will display the comment web form. You can then enter your submitter information (if required), and type your comment on the web form. Information such as your name entered on the web form may be publicly viewable. The globe icon beside the field name identifies these fields.

The system allows 20 minutes to complete the comment form. If you need more time to submit your comment, be sure to continue your session when prompted; otherwise, you will be timed-out and your comment will not be submitted.

I would suggest you write your comment ahead of time in your word processor. Then you can just copy and paste and you won’t have to worry about the time limit.

You can also attach additional files (up to 10MB). If you are, for example, submitting a cost analysis of what it will take to bring your facility into compliance I would suggest you do it as an attachment. Also, there appears to be a limit of 2000 on the number of characters allowed in a comment. If your comment is going to be longer than that, you can send it as an attachment.

When you have finished typing your comment, click the "Preview Comment" link to review. Once you are satisfied with your comment, click the "Submit" button to send your comment to the Federal agency. Upon completion, you will receive a tracking number for your submission. To learn more about comment submission, visit the Help section.

In addition, I would suggest you also send copies of every comment you submit to your senators and your federal representative. You can find your senators and their contact information here - http://www.senate.gov/general/contact_information/senators_cfm.cfm and you can find your representative and his/her contact information here - http://www.house.gov/representatives/.

You comment will not be posted immediately to the list of comments, but if you want to read what other people have submitted you can find them by clicking on “View Docket Folder” from the comments page. When the Docket Folder Summary comes up, put a check mark in the box beside “Public Submission”.

Whether you are a breeder or an owner – please comment! Let APHIS know how this change will affect you and your family. Give details. Stay on point. Be polite.