APHIS: It’s Not Over ’til It’s Over

There have been a number of developments in the APHIS Retail Pet Store Rule debacle. We’ll take them separately.

Conference Call

A couple of weeks ago, AKC issued a press release stating that due to some amendments made to the Animal Welfare Act included in the Farm Bill, the problems created by the Retail Pet Store Rule were “addressed” for most hobby breeders. The release repeated referred to the rule as if had been amended, stating, for example, “The regulation also would have required small hobby breeders….” We are very concerned that breeders will take this press release at face value and think they no longer have to comply with the APHIS rule. Nothing could be further from the truth.

AKC’s release failed to take into account the following:

1. The change to the AWA law that is in the farm bill (HR 2642) merely gives the Secretary of Agriculture permission to set a de minimis exemption. (A de minimis exemption would define some breeders as having too small an operation for the rule to apply.) He already had that power as evidenced by the fact that those selling only their own puppies are exempt if they have four or fewer breeding animals. Furthermore, giving him permission doesn’t mean he has to do it.

2. The bill manager’s commentary has no force whatever unless in a court of law (not a USDA administrative hearing) there is a question about the intent of Congress. Furthermore this would ordinarily only happen at the appeals level: District courts try only the facts, not the law. In other words, “Did you break the law,?” not “Is the law constitutional?”

For example, say you don’t have a USDA license. You have females aged four months, nine months, two years, four years, five years, and 15 years. You ship the occasional puppy, which you think is okay because you have only three bitches you’d consider “breeding animals.” But APHIS cites you for a violation for each of those sales because they count your females as six ‘breedable’ animals.

You say “No, I would never breed a girl less than two years old and certainly not my 15 year-old senior! We have only three breedable females.”

APHIS fines you, their Administrative judge agrees. You then find a lawyer and sue to reverse the APHIS judgment on grounds that their ‘breedable female’ definition is too vague: There’s no way for you to know exactly what you must do to comply. This question can’t be answered by reading either the AWA or the regulations, so the intent of Congress becomes relevant and H.R. 2642 tells the court that the intent is that ‘breedable’ should mean both capable of breeding and actually being used in a breeding program.

You ought to win that case. However, you’ve probably spent $100k to get there.

From AKC’s press release: “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.” Note that the word used is “urged,” not instructed or ordered.

And APHIS has now stated in writing that it is evaluating the “effect, IF ANY, on the retail pet store rule.” This statement obviously indicates that they do not consider the changes binding, but it tells us that APHIS intends to continue to make subjective decisions and interpretations.

So hobby breeders are still subject to the vague and subjective interpretations of APHIS of “de minimis;” and the definition of a “breeding female.” Nothing has changed as a result of the congressional report language that accompanied the farm bill.

*APHIS in a letter dated February 21, 2014, included the following quote: “USDA is currently reviewing the statutory changes the Farm Bill makes to the AWA and evaluating their effect, if any, on the retail pet store rule. . . .” This was part of a response to the letter submitted to Secretary Vilsack on February 7, 2014 on behalf of the 42 plaintiffs in the Retail Pet Store Rule lawsuit.

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