MassFed DOES NOT SUPPORT APHIS Rule Injunction/Lawsuit
At this time, Massfed would like to reaffirm its position of NOT supporting the efforts of the injunction spearheaded by the Associated Dog Clubs of New York State (ADCNYS) in an effort to challenge the legality of the recently adopted USDA/APHIS Rule. On December 16, 2013 a Lawsuit (Case 1:13-cv-01982) was filed in the United States District Court for the District of Columbia that asks the Court to declare that the Retail Pet Store Rule is "arbitrary, capricious and inconsistent" with law, and to remand the Rule back to the USDA.
Because of the changing ways many "retail pet stores" now sell dogs (no physical store - only a website) the definition needed changing. The rule adopted in November of 2013 has many justifiably worried about the new definition. Many points need further clarification and the intended directives need to be clear enough that those who are unsure about their status can confidently make judgements about their own personal situations. Dogs bred for maintaining bloodlines are exempt, an intermediary may be designated in a situation that might otherwise be classified as a "sight unseen" sale and breeding females are only those dogs that are an active part of a breeding program (not all intact females are counted). Granted, all of these are vague, but they do lend themselves to exemptions for the hobby breeder.
The lawsuit filed above is an extreme long shot. This has been confirmed by several legal experts and has even been conceded by the attorney working on the case (Mr. Losey). The amount of money needed for this one case is extraordinary and must be given a great deal of consideration since "our" funds in the legislative battlefield are very limited.
Below are helpful links if you wish to do further research:
Revised definition of "retail pet store":
Details on new rule:
Printable version of frequently asked questions:
USDA QA Conference Call transcript:
USDA Continues to Implement & Enforce New Pet Breeder Requirements
Tuesday, July 22, 2014
Sheila Goffe, Director, Government Relations
It's been more than six months since the U.S. Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) began implementing new federal regulations that narrow the definition of "retail pet store". Prior to this rule change, most small/hobby breeders were considered by the USDA to be retail pet stores and thus exempt from licensing and regulation under the federal Animal Welfare Act (AWA).
Although clarifications to some aspects of the regulation are still pending, breeders should be aware that the USDA is enforcing new regulations that require some previously exempt breeders to now become licensed by USDA as pet dealers.
The American Kennel Club expects responsible breeders to know, understand and obey the laws to which they are subject, and recommends that anyone who has questions about whether they are subject to the licensing contact USDA APHIS directly at (301) 851-3751.
The USDA's purpose in creating the regulatory change was to license and regulate internet-based pet breeders and sellers under the federal AWA. The regulations also expanded USDA oversight of pet breeders to include people who maintain more than four "breeding females" of any species AND sell one pet "sight unseen".
The American Kennel Club (AKC) shares the USDA's concerns about substandard or unscrupulous pet dealers - including some that disguise themselves as rescue organizations - who mislead the public about the pets they sell. However, the AKC has also been concerned that the changes in the rule would unfairly subject many small-scale hobby breeders to the same requirements as large scale commercial breeding facilities. Although the rule provided exemptions for animals not sold as pets, it also potentially characterized and regulated many small breeders/hobbyists as commercial pet dealers because they breed an occasional litter and transfer even a single pet sight unseen to an approved home or participate in rescue activities.
To address these concerns, AKC worked with Congress to direct the USDA to clarify two key issues. The first is that a "breeding female" is one that is both capable of breeding and actively being used in a breeding program. The second is to exempt those that maintain more than four breeding females but do not transfer more than a "de minimis" (minimal) number of pets sight unseen. USDA has been directed to prepare new regulatory language that further address these specifics. The new language, which is expected within a year, will provide regulatory relief for some small hobby breeders but not change regulatory requirements for those who sell significant numbers of dogs online or sight unseen.
In the meantime, the USDA is enforcing the new regulations and expects breeders who are subject to licensing to contact the USDA and seek a licensing application packet. A general outline of whether you may be subject to licensing under the new rules is available from AKC Government Relations. For questions about your own particular situation, contact USDA directly.
If you believe you may be subject to USDA licensing and regulation, here are a few important updates/items to consider.
- The USDA pre-licensing process allows for breeders to meet with inspectors and learn what they need to do—if anything—to bring their facility or those parts of their residence that house breeding animals into compliance. Click here to view a webinar on the pre-licensing process. (http://www.cfsph.iastate.edu/Education-Training/regulatory-compliance-for-commercial-dog-breeders.php)
- Last week, the USDA released information regarding a new process for USDA inspected kennels who wish to appeal an item cited on their inspections report. The goal of the process is "to bring about quicker appeals resolutions, maintain consistency in the appeal process and ensure that subject matter experts are involved in reviewing each appeal". For more information - Facilities that are currently subject to licensing by the USDA must identify themselves and seek a pre-license inspection. Those who do so may continue to operate until their first pre-license inspection. However, they cannot continue to conduct a regulated activity if they are not in compliance after the first pre-license inspection.
- Breeders/Dealers who do not self-identify or seek a license but are found to be non-compliant will be subject to penalties without the benefit of pre-license inspection.
- USDA is continuing to identify breeders who may be subject to licensing through online resources, past USDA licensing records, the public complaint process and other venues.The first contact from USDA to a breeder will be via mail, email or phone call.
- Breeders may use their mailing address as their official address on their licensing records. The official address is the address that would be published. For its own records, USDA also requires an accurate address where the facility is located.
AKC Government Relations will continue to provide you updated information as more information becomes available. For more information, visit AKC's Regulatory Resource Center or contact USDA APHIS directly.
Click here for more info:
CONGRESS PASSES FARM BILL
- Improvements Made to the Animal Welfare Act -
FOR IMMEDIATE RELEASE
Date: February 4, 2014
Contact: AKC Communications
CONGRESS PASSES FARM BILL
- Improvements Made to the Animal Welfare Act -
New York, NY - The American Kennel Club applauds the US Senate today for
passing a new five-year farm bill that addresses AKC concerns regarding recent
regulatory changes to the Animal Welfare Act (AWA) regarding the redefinition of
retail pet stores and licensing exemptions. The House of Representatives passed
the bill last week. The measure now goes to the White House for President Obama's signature.
AKC outlined to farm bill negotiators from the Senate and House Agriculture
committees that although the intent of the changes to the rule was to regulate
large-scale breeders and Internet pet sellers, it also would have required some
small hobby breeders who maintain more than four "breeding females" and transfer
an occasional dog sight unseen, to be licensed and regulated as commercial pet
dealers. The regulation also would have required small hobby breeders who
provide foster homes for rescue dogs to be licensed as commercial breeders if
they maintain more than four female dogs and occasionally use an intermediary to
transfer a foster dog to its new home.
"We believe these changes will be welcome to responsible small breeders who not
only breed occasionally, but also provide foster homes for rescue dogs," said
AKC Government Relations Director Sheila Goffe. "Without these changes, many
could have been forced to give up their rescue activities unless they could
obtain a USDA pet dealer license."
The AWA changes in the Farm Bill (HR 2642) will reduce the number of breeders
and dealers required to obtain a license if the size of their business is
determined to be "de minimis" (minimal). The Farm Bill Conference Report allows
the United States Department of Agriculture (USDA) to "determine if the number
of animals they breed or sell or the gross annual dollar amounts earned are so
minor as to merit disregard." The measure's conference report states that this
will free up more USDA resources and recommends that APHIS finalize a rule
regarding this change within the year.
A second measure supported by the AKC directs APHIS to clarify the term
"breeding female." This term is currently used in AWA regulations to define who
should be regulated as a pet dealer, but it lacks authority because it does not
appear in the underlying statute. House conference managers urged APHIS to
clarify that only those female animals capable of reproduction and actively
being used in a breeding program should qualify as breeding females.
"We thank the many Members of Congress, Congressional staff and AKC club members
whose dedicated efforts made these changes possible," said AKC President and CEO
Dennis Sprung. "We would especially like to thank the leadership of the House
and Senate Agriculture committees, Chairman Frank Lucas, Livestock Subcommittee
Chairman Rick Crawford and ranking member Jim Costa, and Senate Agriculture
Committee Chairwoman Debbie Stabenow and ranking member Thad Cochran for their
leadership in including these beneficial changes to the AWA in the Farm Bill
Click here for more info:
USDA/APHIS New Definition of "Retail Pet Store" - Julian Prager on the Injunction
November 15, 2013
November 13, 2013 Julian Prager, lawyer, NAIA Director, Pennsylvania Federation of Dogs Clubs Director, member of the Bulldog Club of America Executive Committee, AKC Delegate, talked to the Ladies' Dog Club. Subsequently he has kind enough to provide this follow up email explaining why the proposed suit to get an injunction against the implementation of APHIS regulations is not viable.
Sheila Kessler, an attorney, wrote the commentary below the line. I think it nicely explains why an injunction is not viable. I added the language above the line.
The other issue is the following:
A great article from Frank that doesn't answer the question asked. Nowhere in the article does he say why the AKC has legal standing to sue for an injunction. He presents reasons why they might have an interest in suing, but does not address whether they have legal standing. Suits on behalf of members and suits on behalf of the organization have slightly different standing requirement, but the AKC does not meet either. I will explain the requirements for the AKC to sue on its own behalf.
To have standing, a plaintiff must show that there is an injury in fact that will likely be redressed by a favorable decision in the case.
The AKC does not breed dogs and is not subject to the AWA or the APHIS regulations. The regulations do not prohibit anyone from registering with the AKC. Any potential loss in revenue is purely speculative at this point. I believe that the fact that the AKC opposes bad laws is irrelevant to the issue of standing in this case.
Even if they met the first test, they would have trouble demonstrating that the acts of APHIS will lead to the injury they plead. AKC registrations and entries have been declining for dog shows, as compared to companion and performance events, for some time. Since the rules do not prohibit AKC registration, how can they demonstrate that the regulations have a substantial probability of causing them harm?
Finally, the AKC would have to show that it is likely (not merely speculative) that the injury will be redressed by a favorable decision at trial. The problem with this is that, under current law and precedent, they cannot prove that. First, we are only exempt from the AWA in the first place because the APHIS regulations make us exempt - there is nothing in the law that exempts us. Only because APHIS has defined us up til now as retail pet stores can we claim an exemption. Retail Pet Store is not defined in the law and APHIS can define it in any manner that is not arbitrary, capricious or an abuse of authority. As circumstances change, it can reinterpret its regulations to meet the goal of the underlying law. Since throwing out these regulations would most likely lead to more restrictive and legal regulations, this test fails.
In addition to all of these concerns about standing, there is the issue of actually obtaining a temporary restraining order or for an injunction. For an injunction in Federal Courts, the applicant has to show 1) a substantial likelihood of success on the merits, 2) a substantial threat that without the injunction there will be irreparable damage 3) the the threatened injury outweighs any an damage the injunction may cause the other party, and 4) that the injunction will not be a disservice to the public interest. The combination of these factors suggests that injunctive relief would not be granted even if the courts decided that the AKC had standing.
So, assume Frank actually gets a TRO and the lawsuit proceeds. He even wins. APHIS rewrites the rule saying that a Retail Pet Store is defined as an enterprise selling pets directly to the public face-to-face in a commercially zoned area. IMO, that is not subject to challenge. It is within APHIS' authority to interpret the statute. It is the traditional definition of a retail pet store and we are all royally screwed.
We already know that APHIS can pretty much define Retail Pet Store and that changes in circumstance can justify changes in the definition. Why don’t the loud voices understand that under the Animal Welfare Act as written (that is the statute passed by Congress almost 50 years ago) we are all required to be licensed unless APHIS includes us within the definition of retail pet store. Their decision is the only thing that kept us from being incensed until now.
I have asked before for anyone to write a regulation that covered the large commercial kennels that used to be licensed but are now selling directly to the public sight unseen, while exempting all hobby breeders. No one has come up with an answer yet. Sometimes it is good to be paranoid. And sometimes it is just paranoid.
As hoped, Mr. Losey did call me last night. I believe Mr. Losey is passionate in his quest and believes in his cause. That being said, I have serious concerns about the tactic he has chosen. I previously emailed him with case citations and research notes that fairly clearly showed the legal basis for his claim combined with the fact situation that exists creates an almost impossible chance of success. My concerns were twofold:
1) The lack of public disclosure of the basis for his suit and an assessment of success is problematic when there is a public solicitation for funds and plaintiffs to be named in the suit. He apparently has unsuspecting clients unaware of the long shot their funds are supporting.
2) The diversion of group funds from the newest AR battleground, local government. Restrictive breeder ordinances like mandatory spay and neuter ordinances are springing up like yard signs in city, village, county boards all over the country. The new battle ground is clearly local.
3) The potential for activism fatigue should the suit fail.
Mr. Losey acknowledged during our conversation it was a long shot to win his suit. He was unaware of some of the case law and prior rulings that would negatively impact his suit and were predictive of outcome. Mr. Losey asked me to provide those additional case citations to him. I certainly don't mind providing that information, but it is a concern to me that three days prior to filing a suit in federal court, a complete legal analysis hadn't been completed by the attorney posed to take on the matter.
One of the hurdles imposed on a plaintiff in an action for a temporary stay pending judicial review of a permanent stay,(this is what any suit would need to ask for), the plaintiff must be able to convince the judge they are likely to succeed on the merits of the suit. When even Mr. Losey acknowledges a "long shot", how would a judge look at the case as presented and be able to determine it was likely to succeed on the merits? If that first hurdle can't be met, what is the purpose for spending $10K on filing a suit? Based on what Mr. Losey said were the factual and legal foundations of this action, it isn't only my assessment that it wouldn't succeed, Mr. Losey's own words are it is "an uphill battle".
In addition, most courts see themselves as the last alternative in disputes with regulatory agencies regarding their rules or rulings. That means a plaintiff has to exhaust all other avenues to resolve the dispute prior to turning to the courts for relief. In cases where there is a request to delay the implementation of regulations prior to their effective date, there should first be a formal request to the agency to delay, and a rejection by the agency, before suit is filed. It may not be a necessary component, but it is often cited as a good faith efforts on the part of plaintiffs to resolve the conflict prior to judicial intervention. This may have been done, and his named plaintiffs may have been informed of that, but it is not part of any public disclosure to potential plaintiffs.
Basis for Law Suit
Mr. Losey has publically proclaimed that he believes the USDA violated Executive Order 12866. This order is a 15 page document that is be used as in internal guide to government agencies. Sec. 10 of the Order expressly states that there is no private right to sue an agency for violations of the Order. The courts have addressed this question in other cases where plaintiffs have claimed as part of their suit, an agency violated various provisions of the Order. The courts have, in every instance, rejected those claims based on sec. 10.
To prevail on this issue, Mr. Losey would need to convince the court to reach a different conclusion than they have done in the past. This isn't a long shot, it is an almost impossible burden. According to the courts, even if the agency violates EX.Order 12866, it doesn't invalidate the resulting rule. What that means is, even if Mr. Losey can convince the court the rule was violated, it doesn't matter, it doesn't create a basis to sue the agency.
Mr. Losey also claims that the USDA failed to follow the APA (Administrative Procedure Act) and components of the Regulatory Impact Analysis required in the process and therefore the process is fatally flawed. Mr. Losey's claim is not that the USDA didn't conduct an analysis, but the analysis was done incorrectly. I believe this argument will fail for two reasons. The courts have upheld instances where the Secretary can certify, on its own, there is no appreciable impact on small business and hence not conduct a study. Additionally, when a study is done, the courts will only look at the record before the agency when the proposed rule was promulgated. They will only supplement a record with a showing that the Agency had available information, didn't include it in their assessment and it would likely result in a significant change in outcome.
Mr. Losey contends that there are many more breeders who would be negatively impacted by the regulations than identified in the study done during this rulemaking process. He turns to the DDAL decision from 2003 in support of the number of breeders that might have been affected by the interpretation of the "retail pet store" exemption in the previous regulation. DAAL wanted all breeders excluded from that definition unless they had a brick and mortar store. The issues before DDAL differ significantly from the analysis done during the current regulatory process. Plus, in 2003, there were significantly more active breeders than there exist today. Anyone attending a dog show over the past ten years can attest to the decreased entries, fewer participants and reduced numbers of people involved in breed clubs and breeding. Mr. Losey's reliance on figures identified in the DDAL case is misplaced in my opinion.
The second part of this analysis goes to the heart of what we are about. We are not small businesses, we are hobbyists. We do not operate our hobby on a business model. The USDA did an estimate of how many hobby breeders may be effected by the regulations and determined approximately 25% would both have more than 4 breeding females and ship puppies as pets. They surveyed various sources to obtain an estimate of the number of hobby breeders in the US and came up with their calculations. I have anecdotal evidence that those estimates are probably fairly accurate. When I ask groups of breeders how many of them ship pets to buyers, sight unseen, less that 10% of the people in the room answer in the affirmative. My informal study, while interesting, isn't even the issue. The court will not second guess the findings of an agency so long as they reviewed all of the records before them in their analysis. Mr. Losey would have to establish that they withheld information or ignored information in their analysis AND that it would significantly impact the outcome of their assessment. The courts are, by precedent, required to give deference to an Agency's finding unless the plaintiffs have been able to establish an agency intentionally withheld from the record and ignored relevant studies and findings in the process. Mr. Losey was unaware of the cases addressing this issue. I agreed to provide him with those citations.
I told Mr. Losey that people see him as their champion in this cause and look to him for guidance in these difficult and uncertain times in our sport. They believe what he tells them, the USDA did it wrong and because of that, the court would order a "do-over". He insisted he tells people there is no guarantee in the outcome. While that may be true, in my opinion, it is insufficient counsel to clients and potential clients. How many clubs who have signed on discussed the "long shot" with their board before agreeing to proceed and spend their clubs treasury?
Of equal concern, how many dollars have been diverted that could have been spent in an active campaign locally to challenge the HSUS and other AR groups on their new identified battleground, local governments. Clubs and individuals should have the choice in how they spend their resources and which battles to engage in. However, those choices, to be true choices, must be based on an evaluation of all of the facts and circumstances available. They also must be based on sound legal reasoning. Attorneys bear a responsibility to their clients to inform them of all of the issues, and provide them with assessments of their chances of prevailing. People are willing to take risks in legal matters. Mr. Losey is correct, there are never any guarantees in the outcome, but people should be provided with the information to calculate their risk.
Since it appears that this train has left the station, we can only hope I am wrong and that Mr. Losey and his clients will prevail. I also hope, that if it fails, we are not so disillusioned we don't attempt other avenues that may be successful. There are groups that are working diligently to find solutions and provide resources to us as breeders and to our sport. We need to carefully evaluate when someone wants to sell us the cure. We need to ask questions and evaluate the claim. It is human nature to grasp at a life preserver thrown to us when we feel we are drowning, but we need to make sure it is attached to something solid that will eventually save us. Floating in the ocean in a detached life preserver isn't a rescue.
"Nothing is more destructive of respect for the government and the law of the land than passing laws which cannot be enforced." Albert Einstein
Sheila and I have given permission to crosspost.
USDA/APHIS New Definition of "Retail Pet Store"
September 18, 2013
On September 18, 2013, U.S. Department of Agriculture Animal and Plant Health Inspection Service (USDA/APHIS) published new federal regulations that narrow the"retail pet store" exemption which has historically exempted many small/hobby breeders from regulation under the federal Animal Welfare Act (AWA).
The purpose is to bring internet-based pet breeders and sellers under the regulation of the AWA. However, the broadly-based regulation will also expand USDA oversight of pet breeders to also include people who maintain at least five "breeding females" of any species AND sell one pet "sight unseen." There appear to be a number of possible exemptions available for a variety of circumstances. The AKC is currently working with USDA/APHIS to obtain more information and clarification on these and other issues, which we will share with you.
This is a regulatory, not legislative, change. The new regulations will go into effect on November 18, 2013. There was no vote in Congress and AKC has to work within the confines of an administrative - rather than legislative - process. Since the rule was first proposed in May 2012, the AKC has worked to educate USDA/APHIS about responsible breeders and dog owners and the potential impact of this rule change. Unfortunately many of our most important concerns were not addressed.
We strongly encourage you to review the resources below, including the frequently asked questions, to further understand the new rule, and to keep checking back, as we will continue to update this page as information becomes available.
Revised definition of "retail pet store":
Details on new rule:
Printable version of frequently asked questions:
Federal "PUPS" legislation (S 395/HR 847), sponsored by Sen. Richard Durbin (D-Ill.) and Rep. Jim Gerlach reintroduced
March 1, 2013
Federal "PUPS" legislation (S 395/HR 847), sponsored by Sen. Richard Durbin (D-Ill.) and Rep. Jim Gerlach has been reintroduced in the U.S. Congress and assigned to the House and Senate Agriculture committees. The bill is substantially the same as previous versions introduced in 2011 and 2010, which never received committee hearings.
The AKC continues to express grave concerns about this measure. The AKC believes that all dog breeding programs should be undertaken responsibly and does not oppose the concept of regulating high volume breeder-retailers. However, as currently written, the definitions proposed in this bill are misleading, overly broad, and potentially damaging to small responsible breeders who individually maintain and breed only a few dogs in their homes.
Although the stated purpose of PUPS is to regulate internet sales of puppies, S 395/HR 847 as currently written would require anyone who owns or co-owns even a few female dogs that collectively produce 50 or more puppies offered for sale in a year to be regulated under existing USDA dog "dealer" regulations. These regulations are designed for high-volume commercial kennels that produce puppies for wholesale or research, and require a USDA commercial license, maintenance of specified commercial kennel engineering standards and regular inspections. These requirements are not appropriate for small breeders who may keep only a few dogs in their homes.
AKC's specific concerns with PUPS include the following:
- Defines "high volume retail breeder"as someone with "an ownership interest in or custody of one or more breeding female dogs". This definition is overly broad and does not take into account co- and joint ownerships common among dog owners, dog show participants, hunting club members, sporting dog trainers and other hobbyists. This would hurt many small hobby breeders who keep or breed only a few dogs in their homes by subjecting them to commercial standards of regulation as a result of agreements they maintain with other small breeders.
- Defines "high volume retail breeder"as someone with "an ownership interest in or custody of one or more breeding female dogs". Because the threshold for regulation is based on the number of dogs bred and sold, any reference to the number of dogs owned or in custody is unnecessary and potentially misleading.
- Defines "breeding female" as an intact female dog aged 4 months or older. This is misleading and implies that a female dog may be bred at 4 months. Female dogs are not sufficiently mature at 4 months of age to be bred and should not be deemed "breeding females".
- Exercise language should be clarified with respect to the terms "solitary and goal oriented"to ensure that the daily exercise requirements do not preclude training that involves other types of wholesome activity that could fall under this definition (e.g., playing fetch, field training for hunting dogs, or the responsible use of treadmills for keeping canine athletes in top physical condition).
- PUPS would exponentially expand the pool of breeders regulated and inspected by the Animal Care Division of the United States Department of Agriculture's (USDA) Animal, Plant and Health Inspection Service (APHIS). However, a May 2010 audit of this program by the USDA’s own Inspector General demonstrated that the existing inspections program is insufficient to carry out current responsibilities. AKC believes these issues and full funding for the current program and enforcement of current laws should be addressed before attempting to exponentially expand the program’s responsibilities and workload.
AKC encourages you to respectfully share these reasonable concerns about the potential damaging consequences of this bill with your member of Congress.
AKC and AKC's federal representatives will continue to closely monitor and keep you up to date on this measure.
Click here for more info:
The USDA Proposed Rule and You
By: Patti Strand
The US Department of Agriculture has recently published a proposed rule that would expand USDA licensing requirements to dog breeders who were formerly exempt from licensing. Without changes, this new classification would impact many of our members. It is very important that concerned parties comment on the proposal. Please scroll to the bottom to find the proposal and the address for making comments. NAIA is working on our comment letter now and will send it to you along with our recommendations for action as soon as we have fully analyzed the proposal and have considered the best way to respond. Meanwhile, if you have questions or concerns, please feel free to contact us at NAIA@naiaonline.org, or by phone at (503) 227-8450.
When USDA dog licensing regulations were first drafted 40 years ago, most commercial dog breeders sold their dogs through middlemen who distributed them to pet stores where they were ultimately sold to the pet-buying public. The licensing was designed to provide oversight and protection to dogs bred in large commercial kennels operating away from the consumer's view.
Over the last 20 years, though, the Internet has significantly changed the way dogs are sold, rendering those regulations inadequate. By using the Internet, large breeding kennels are able to connect and conduct business directly with consumers, so they are not required to be licensed. Today, many of these kennels operate without oversight and some have developed severe animal welfare problems. Many of the bad breeding operations we see on the nightly news fall into this unregulated category. USDA's proposed rule is aimed at correcting this shortcoming by bringing under licensure those breeders who have more than 4 breeding bitches and sell dogs to consumers at retail, "sight unseen." The proposal exempts all breeders from regulation who keep 4 or fewer "breeding bitches" and it would exempt breeders who sell their pets directly to consumers from their property if they sell only those pets they breed and raise on their own premises.
While this rule would achieve the USDA's goal of capturing virtually all of the large scale commercial breeders selling pets to consumers "sight unseen," the proposal, together with pre-existing regulations, would also capture many breed enthusiasts for whom the commercial standards and operating practices would be inappropriate and even harmful.
Although breed enthusiasts sell the overwhelming majority of their puppies directly to puppy buyers from their residences, nearly all sell a puppy occasionally to someone who lives at a distance or cannot visit the kennel. They also make repeat sales to distant purchasers, people who visited their premises in the past but cannot or choose not to spend the extra time and money to make the trip again.
NAIA will be addressing several concerns in our comment letter. Here are a few that we will be focusing on:
- the definition of breeding bitch;
- how the regulations would treat shared ownership interests in breeding bitches between parties living on separate premises;
- how the consequences of these rules could prove fatal to the rarer breeds, where maintaining genetic diversity is so critically important;
- practices, which under the proposed rule would cause a breed enthusiast to lose their exemption; selling even one dog remotely, even to a repeat purchaser, even in a rare breed where consumers and breeders are separated by hundreds or thousands of miles; selling even one puppy taken in lieu of a stud fee or from a co-owned breeding bitch (selling puppies not bred or raised on seller's premises).
USDA is seeking your help in developing the best possible regulations. It is extremely important that you take the time to read the proposal carefully and comment on it. We have been through the comment process many times before with several agencies, including USDA. They have always treated our comments in a thoughtful manner with due consideration and have made changes based on our input. The comment period is open for 60 days, until July 16. This is an important process that everyone needs to be part of. Your input is vitally important and will make a difference!
Our alert was aimed primarily at purebred dog enthusiasts, but it is very important to note that this rule will affect breeders of many different species, including: Cats, rabbits, guinea pigs, hamsters, gerbils, rats, mice, gophers, chinchilla, domestic ferrets, domestic farm animals, birds, coldblooded species
Click to download opposed rule
Click here to read the factsheet
Make your comments to USDA here.
Docket No. APHIS-2011-0003
Regulatory Analysis and Development
PPD, APHIS, Station 3A-03.8
4700 River Road, Unit 118
Riverdale, MD 20737-1238
Federal PUPS Legislation Information Update
January 3, 2012
The American Kennel Club and our Washington, D.C.-based advocacy team continue to closely monitor the federal Puppy Uniform Protection and Safety (PUPS) legislation introduced last spring as Senate Bill 707 and House Bill 835. Each of the bills has been assigned to the Agriculture Committees of their respective chambers. To date, no hearings have been scheduled and no formal action has been taken on this bill.
PUPS would purportedly require anyone who owns or co-owns dogs that produce 50 or more puppies offered for sale in a 12-month period to be regulated under existing USDA dog "dealer" regulations. These regulations are designed for high-volume commercial kennels that produce puppies for wholesale, and require a USDA commercial license, maintenance of specified commercial kennel engineering standards and regular inspections.
The AKC does not oppose the general concept of reasonable regulations for high volume breeder/retailers. However, the PUPS bill is misleading because such regulations would hurt responsible small breeders who raise only a few litters of puppies each year in their homes, while also reducing the availability of resources needed to enforce against abusive or negligent operations.
The AKC also has a number of serious concerns with the bill as introduced and does not support this measure. These concerns include:
- Definition of "breeding female" as an intact female dog aged 4 months or older. This definition is misleading because female dogs are not sufficiently mature at 4 months of age to be bred. Additionally, such a definition should not be necessary if a "high volume retail breeder" is to be based on sales, rather than the number of dogs owned.
- Definition of "high volume retail breeder" as someone with "an ownership interest in or custody of one or more breeding female dogs." This definition is overly broad and does not take into account the tradition of co- and joint ownerships common among dog show participants, sporting dog trainers, hunting club members, and other hobbyists. Additionally, a reference to the number of dogs owned by a breeder is unnecessary and potentially misleading in legislation that does not limit ownership rights per se.
- Current exercise language is overly vague and should be clarified to ensure that the daily exercise requirements do not preclude use of legitimate training or exercise equipment or other types of physical activity.
- This legislation calls for exponentially expanding the numbers of breeders regulated and inspected by the Animal Care division of the United States Department of Agriculture's (USDA) Animal, Plant and Health Inspection Service (APHIS). However, a May 2010 audit of this program by the USDA's own Inspector General demonstrated that the existing inspections program is insufficient to carry out current responsibilities. The AKC believes these issues and full funding for the current program should be addressed before attempting to exponentially expand the program's responsibilities and workload.
Although PUPS is not actively being considered in Congress at this time, we encourage responsible dog owners and breeders to share their concerns about this measure with their federal representatives.
Click here for details http://www.akc.org/news/index.cfm?article_id=4543
New Rule Will Limit Importation of Puppies for Resale in the United States
September 2, 2011
Yesterday, the United States Department of Agriculture's Animal and Plant Health Inspection Service (APHIS) distributed proposed rules that provide guidance to federal agencies tasked with enforcing a 2008 law that amends the federal Animal Welfare Act. This measure limits the importation of dogs under the age of 6 months into the United States for the purpose of resale. The proposed rule is necessary to implement this law and further ensure the health and welfare of America's dogs. The AKC believes the proposed regulations, as written, are a reasonable interpretation of the statute.
As far back as 2007, the AKC Government Relations Department worked with members of Congress and federal agencies to ensure the reasonableness of parts of the federal agricultural authorization (the "farm bill ) that impact dogs. Since the bill became law in 2008 as the Food, Conservation, and Energy Act, the AKC has continued to work with APHIS to ensure that any proposed regulation that focuses on dogs ensures the health and safety of American dogs and the wellbeing of the dog-owning public.
Strong enforcement of the Animal Welfare Act as amended law is supported by the American Kennel Club and other animal welfare organizations, recognizing that a large number of puppies are being bred overseas and imported into the United States in order to bypass the welfare regulations and standards required of American breeders. In many cases, irresponsibly bred and undocumented foreign puppies end up at shelters, rescues or other informal or unregulated retail venues. Diseases borne by such animals can create public health issues for both animal and human populations.
WHAT THE PROPOSAL DOES:
The new regulations provide specific guidelines needed by US Customs to prevent the continued "dumping of unregulated foreign puppies for resale onto US markets. The underlying law (7 U.S.C. 2133) defines resale to include "any transfer of ownership or control of an imported dog of less than 6 months to another person, for more than de minimis consideration.
Specifically, the rules "prohibit the importation of dogs from any part of the world into the continental United States or Hawaii for purposes of resale, research or veterinary treatment, unless the dogs are in good health, have received all necessary vaccines and are at least 6 months of age".
Dogs intended for resale, research, or veterinary treatment may be allowed into the U.S. as long as they obtain an import permit from APHIS, import that dog within 30 days of the proposed import date stated on the permit, and abide by other requirements including:
- The dog is not younger than 6 months of age.
- Dogs imported into the United States for resale, research, or veterinary treatment must be accompanied by an import permit issued by APHIS. This would help ensure that the requirements for importing dogs are understood and met by the importer.
- Detailed health and rabies vaccination certificates are provided for each dog imported into the United States. The certificates must be in English and signed by a licensed veterinarian. The veterinarian must provide his license number on the certificate. By providing proof of having received vaccinations necessary to protect against distemper, hepatitis, leptospirosis, parvo, parainfluenza-DHLPP-and rabies, personnel at a port of entry will be able to best determine that each dog is in good health for importation.
- Improved identification and tracking requirements. Under the regulation, importers and exporters are required to provide personal identification and contact information and detailed information for each dog imported. This will help APHIS to determine whether dogs are eligible for importation, to identify dogs at a port of entry, and to contact appropriate parties if any questions arise concerning the importation.
The proposed rule also provides sanctions for those who attempt to import dogs without complying. In addition to penalties already available under the Animal Welfare Act, non-complying importers will be required to provide for the cost of care (including appropriate veterinary care), forfeiture, and adoption of the dog, at his or her expense. This will help ensure the welfare of dogs imported into the U.S., serve as a punishment for violators, and provide a deterrent against potential non-compliance.
The import permit does not guarantee entry into the US, and any dog may be refused entry for non-compliance with requirements.
WHAT THE PROPOSAL DOES NOT DO:
These proposed rules do not prohibit individuals from bringing foreign dogs into the United States for their own use or breeding programs, nor target certain breeders for undue hardship.
WHAT YOU CAN DO:
Comments on the proposed rules will be accepted until October 31, 2011. If you would like to comment, please go to
http://www.regulations.gov/#!documentDetail;D=APHIS-2009-0053-0001 and click "Submit a Comment.
For more information, contact:
Dr. Gerald Rushin, Veterinary Medical Officer
Animal Care, APHIS
4700 River Road Unit 84
Riverdale, MD 20737-1231
Phone (301) 734-0954
Click here for details http://www.akc.org/news/index.cfm?article_id=4474
Federal PUPS Legislation Information Update
July 22, 2010
The American Kennel Club and our Washington, D.C.-based advocacy team continue to closely monitor S. 3424/H.R. 5434, the federal Puppy Uniform Protection and Safety (PUPS) Act. There has been no official action on the bill since its introduction in late May.
As previously reported, the 2010 PUPS bill seeks to expand federal regulation of dog breeders who breed and sell more than 50 puppies a year directly to consumers. This version is a significant improvement over previous versions, which focused on the number of dogs owned, regardless of what was bred or sold. This version would require the new category of breeders to abide by basic minimum standards of care and conditions and to abide by new performance-based exercise requirements.
However, the AKC also has a number of serious concerns with the bill as introduced. Some of these concerns include:
- Definition of "breeding female" as an intact female dog aged 4 months or older. Female dogs are not sufficiently mature at 4 months of age to be bred.
- Definition of "high volume retail breeder" that is overly broad and does not take into account co- and joint ownerships. Additionally, a reference in this definition to the number of dogs owned by a breeder is unnecessary and potentially misleading.
- Exercise language should be clarified to ensure that the daily exercise requirements do not preclude training that involves other types of activity as well.
We will continue to monitor this legislation vigilantly and to outline our concerns regarding PUPS legislation to appropriate members of Congress and staff. Given the issues that AKC and other responsible dog owner groups have raised, and that Congress will be in session for fewer than six weeks prior to the November elections, it is not likely that there will be action on PUPS in the near term.
AKC will continue its education campaign with legislators and we will keep you up to date on any new developments.
Click here for details http://www.akc.org/news/index.cfm?article_id=4163
Grants for States that pass Devocalization Legislation!
May 27, 2010
U.S. Representative "Dutch" Ruppersberger (D-MD) has introduced HR5422, A Bill to Authorize the Secretary of Agriculture to make grants for the prevention of Cruelty To Animals, which will authorize the Secretary of Agriculture to make grants up to $1,000,000 to states that have enacted laws prohibiting the performance of devocalization procedures on dogs and cats for purposes of convenience.
Federal PUPS legislation introduced
May 27, 2010
U.S. Senator Richard Durbin (D-Ill.) introduced US Senate bill S. 3424 late Tuesday evening. The bill is designed to close the "internet loophole" in the Animal Welfare Act which allows breeders who sell numerous puppies over the internet or directly to the public to avoid the USDA regulation required of other breeder-retailers.
The measure, called the Puppy Uniform Protection and Safety Act (PUPS) is a complete revision of previous measures by the same name. This bill would require individuals who breed and sell more than 50 puppies a year over the internet or directly to the public to be regulated by the USDA.
The bill amends the Animal Welfare Act in the following specific way:
1. Defines anyone who breeds and sells more than 50 puppies a year as a High Volume Breeder Retailer. High Volume Breeder Retailers would be required to abide by current USDA dog dealer regulations. These regulations require kennels to: Obtain a USDA license; Meet federal minimum standards of care; Be inspected (generally not less than once every two years) by the USDA.
2. Requires new exercise standards that allow a dog daily access to exercise that enables it to move sufficiently to maintain normal muscle tone and mass, the ability to achieve a running stride, and is not a forced activity.
The area for exercise should have flooring that allows for this type of exercise.
- It should be constructed of solid flooring or non-solid, non-wire flooring that is safe and appropriate for the breed, size and age of the dog, is free from sharp edges, and is designed so that the paw cannot extend throughout and become caught in the flooring.
- The flooring must be cleaned at least once daily, be free of infestation and designed to prevent escape.
- The bill provides an exemption from exercise for dogs that should not exercise for reasons of health/condition/well-being as certified by a licensed veterinarian.
This measure does not limit the number of dogs a person/kennel may own or define commercial breeders based on the number of dogs they own.
The measure would go into effect one year after the date of the enactment of this bill.
For a fact sheet on USDA Animal Care compliance inspections, click here http://www.aphis.usda.gov/publications/animal_welfare/content/printable_version/fs_awinspect.pdf
For a copy of USDA/APHIS animal care inspections checklists, click here - http://www.aphis.usda.gov/animal_welfare/downloads/Inspection_Requirements_Attachments.PDF
The AKC is currently studying the impact of this measure.
Government Relations Department
American Kennel Club