Proposed APHIS Rule Changes Will Affect Hobby Breeders

This article originally appeared in  the May 25, 2012 issue of Dog News and is reposted here by permission of the author.

Proposed APHIS Rule Changes Will Affect Hobby Breeders

Carlotta Cooper

On May 10, 2012, APHIS (Animal and Plant Health Inspection Service), part of the United States Department of Agriculture, held a conference call with stakeholders to announce new regulations that they planned to add to the Animal Welfare Act which covers how animals are bred and kept in the United States. The regulations apply to people who breed dogs, cats, rabbits, and other pets and domestic animals.

You can listen to the conference call here, Or you can read the transcript of the conference call here.

In order to understand the proposed new regulations you need to be aware of the fact that hobby dog breeders (and other small breeders of pets) have long been considered in the same category as “retail pet stores.” This is because we sell directly to the public at retail, instead of selling puppies wholesale. The idea with a “retail pet store” is that you don't have to be inspected by APHIS because your buyers have the opportunity to inspect you. If things were not in good shape where you have your puppies and dogs, your buyers would report you. For USDA inspection purposes, this means that we have not had to be inspected by APHIS. The same is true of retail pet stores. You should also know that rescue organizations have also been considered in this same “retail pet store” exemption category because they sell their puppies and dogs one at a time, on a retail basis, and not wholesale. However, the new regulations proposed by APHIS would remove this exemption from hobby breeders and rescues.

Background

If you are wondering what prompted these proposed new regulations, or if APHIS has the authority to make these rules, here is a little background.

In the 1960s Congress passed the Animal Welfare Act. It was originally set up to ensure better care for animals in laboratories but it was later expanded to provide better care for dogs in large breeding facilities. Under this act the USDA and APHIS have regulatory authority to make rules regarding the care of animals. When they change the rules they do not have to go back to Congress or the president for approval. When there is a proposed rule change, the new rules are posted for public comment and, after consideration, the rules are changed, accepted, or in some cases dropped.

HSUS and other animal rights groups have been pushing to expand regulation to include hobby breeders for 15 years. The Doris Day Animal League (DDAL) and PETA pushed for changes in the rules in 1997. DDAL sued the USDA to force them to license and inspect hobby breeders. The lawsuit continued for several years and the USDA eventually prevailed, leaving the “retail pet store” exemption intact. There were also legislative attempts to create laws that would have included hobby breeders in inspections: the Puppy Protection Acts of 2001 and 2003, PAWS in 2005, a Senate Amendment as a rider to the Farm Bill in 2007, “Baby's Bill” in 2008, and PUPS in 2010 and 2011.

Now the USDA and APHIS, following an Office of the Inspector General's report in 2010 that showed they were not adequately inspecting wholesale commercial dog breeders, have come back with proposed rules that will not significantly affect wholesale breeders. One of the recommendations in the OIG report was to look at people who sell large numbers of puppies online, or “Internet sellers.” These sellers often do sell puppies without a buyer visiting their premises. However, there is scant evidence that this is a huge problem or that large numbers of buyers are dissatisfied with their purchases. In fact, one of the problems with the proposed new rules from APHIS is that they have done little or no research about the problems they claim they are trying to fix. They have not identified how many new pet owners actually have any complaints about dog breeders or other information they would need to know before coming up with new rules.

The Proposed Rules

You should know that the proposed rules will affect anyone who sells any dog or cat during the course of a year. They will also affect other species such as rabbits, guinea pigs, hamsters, gerbils, domestic ferrets, and others for use as pets. Dog breeders currently don't have to have kennels that are Animal Welfare Act-compliant: with waterproof surfaces, separate food preparation areas, floor drains, and always being available for inspection. And we are not fined by APHIS if we have too many issues.

However, if the proposed rules are adopted, there will be new requirements in order to be a “retail pet store” if you are a hobby breeder or rescue:

1. You will have to have every single one of your puppy buyers physically enter your home (which is considered to be your “store”). They have to physically visit your premises at least once for each sale. You cannot ship dogs, meet buyers at shows or rest areas, or at a McDonald's to deliver a puppy unless that buyer has already come to your home at another time *for that same sale*. In this case there are no restrictions on the numbers of dogs (or cats, etc.) that you can keep.

This may be the most practical way to handle the proposed rules for most hobby breeders in order to comply but it certainly won't be easy for you OR for your buyers. If you are caught selling even ONE dog without the buyer coming to your home, you would lose your exemption and have to become USDA-licensed and subject to inspections. If you have a breeder friend across the country and you often swap puppies, you will have to physically visit their home for each puppy you buy. It doesn't matter that you have known each other or co-bred litters together for 20 years. There must be a new visit for each puppy purchased.

OR

2. You can keep four or fewer breedable females (APHIS currently has no definition for “breedable females”) and sell only the offspring of your own females raised on your premises. If you choose this option you can ship dogs, meet people at rest areas so they can pick up a puppy, and so on. However, the four or fewer breedable females you own does include bitches co-owned with others, as the rules are understood at this time.

Breedable Females

As mentioned, APHIS currently has no definition for “breedable female.” In the May 10 conference call this issue was raised and APHIS officials said it would have to be addressed. They urged people to comment on the matter (along with many, many other issues that were raised). It seems likely that a breedable female will be considered a bitch that is intact and over four (or possibly six) months of age. It is not known if there will be an upper age limit. You will probably have to provide paperwork to prove a bitch has been spayed.

It does not matter if you do not intend to breed a bitch, or if you help rescue and you do not breed that particular breed, or if you are keeping a bitch for a friend or family member, or if you are keeping a bitch for one of your puppy owners who is on vacation, or if she is at your home while you are showing her for someone else. The word used in the regulations is “maintained.” If you are feeding her, she counts and she would put you over your four bitch limit.

The proposed regulations also contain wording about bitches maintained “in concert” with other people. This is probably a reference to co-ownerships and it likely means that a co-owned breedable bitch will be counted against all owners who co-own her.

If you believe that a bitch is sterile but you have no paperwork from your veterinarian for a spay for her, she will probably be counted as a breedable bitch.

Wording in the proposed regulations also states that you can “sell only the offspring of your own females, raised on your premises.” This means that you cannot sell a stud fee puppy or any “puppies back” from a bitch you sold.

Impact

As you can tell, these proposed regulations will affect nearly every hobby breeder, whether they breed for show, performance, hunting, or to produce quality pets. If you have more than four bitches, or you ever have more than four girls on your property, as so many of us do, you will have to re-think how you manage your breeding and how you maintain your dogs. You will have to have a visit from every single buyer at some point during a sale. For some breeders, this is too dangerous. They have good reason to fear animal rights fanatics who are opposed to breeding. Others worry about their personal safety, especially if they live alone. And other breeders have legitimate concerns about allowing visitors into the house when they have younger litters.

Many breeders may decide to give up breeding altogether, or cut down to the point where they cannot breed or compete in any meaningful way. You have to imagine that the effect on AKC registrations will be very damaging. This is a body blow to dog breeding in the United States if these proposed rules are put into effect.

Enforcement

How will the proposed rules be enforced? HSUS, the ASPCA, and other animal rights groups were quick to ask this question during the conference call. APHIS said that they had a wide range of ways to enforce the rules. Some of the ways that APHIS may enforce the rules include complaints from puppy buyers, tips from animal rights zealots, and calls from other breeders and perhaps co-owners. AR-leaning vets may report a breeder. And APHIS could obtain information about who is shipping puppies from airlines. Basically, APHIS doesn't have to catch every breeder who breaks the rules. They only have to catch a few people and scare the rest into compliance.

AWA Requirements

If you have more than four bitches and you think you might prefer to become USDA-compliant, you should check out the APHIS inspection forms:

http://www.aphis.usda.gov/animal_welfare/downloads/Inspection_Requirements Attachments.PDF
http://www.aphis.usda.gov/animal_welfare/downloads/Inspection_Requirements
It is impossible to meet these requirements in a home setting. Dogs raised in USDA kennels have to be kept in kennel buildings.

What Can You Do?

These are *proposed rules*. They are not part of the USDA's regulations – yet. But APHIS is quite serious about putting these rules into effect. We are currently in the comment period for the rules. We have until July 16, 2012 to make comments objecting to the rules and urging APHIS to reconsider. So, here is what you can do.

1) Comment
A 60-day comment period began May 16 when the regulations were published
to the Federal Register. Go to

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

To read the regulations for yourself, click on the PDF icon next to VIEW DOCUMENT.

When you comment you should be respectful. Tell APHIS how the change in rules would affect you and your breeding program. Ask APHIS to withdraw the proposed regulations. These regulations are intended to regulate large Internet breeders but no studies have been done about large Internet kennels to see how many there are or find out what kind of problems there might be. The government says there have been complaints from consumers but they can't say how many complaints there have been. These proposed regulations would catch thousands of caring, devoted, ethical hobby breeders in their net and could put an end to many breeding programs. These rules would be especially harmful for rare breeds and breeds with smaller numbers.

2) Send your comment to your senator and representative.
Find out who they are here:
http://www.house.gov/representatives/http://www.house.gov/representatives/
and
http://www.senate.gov/general/contact_information/senators_cfm.cfm

Remember these are *proposed regulations*. They are not a law passed by Congress that has to be voted on. But they would seriously impact the nation's economy. They would also impact APHIS's budget. This is tremendous over-regulation of the worst kind and it will make it much harder to find a good dog and more expensive to buy one.

These regulations would also effect rescues. They would be subject to exactly the same rules that would harm hobby breeders. Anyone who wanted to adopt a rescue dog would have to visit the actual place where the dog was being maintained, even if that was a foster home if the rescue did not have an actual building of its own. If the rescue had more than four unspayed females in a year, they would be subject the same rules as hobby dog breeders and would need to become USDA-compliant. They would not be able to meet new owners off-premises to give them their new dog. Rescues need to comment on these proposed rules, too.

3) Send a copy of your comment to AKC at doglaw@akc.orgdoglaw@akc.org. AKC is collecting comments and will make comments to APHIS based on what they hear from dog breeders.

It's vitally important that you comment on these proposed regulations and tell APHIS how they will affect you and your ability to produce healthy, happy dogs. This is the most serious threat to dog breeding that we have ever faced. Please comment now to stop these harmful regulations.

My thanks to Sharyn and Walt Hutchens, Margo Milde, Susan Wolf of SAOVA, and Donna Fefee who did so much of the heavy lifting to decipher these proposed regulations and make them more comprehensible to the rest of us.