Written with assistance from Walt Hutchens.
Walt’s note: I am not a lawyer. The following is based on many hours of study and discussion of the rule, and 10+ years of experience with animal rightist anti-breeding laws through running the pet-law Yahoo Group and fighting bad laws in Virginia. My wife and I breed 1-2 litters of whippets/year.
Where are we now?
The new APHIS rule is vague and slippery and the interpretation changes every time you talk to an APHIS employee. Basically, on November 18th 2013 the old ‘sell at retail only’ rule that made almost all hobby breeder pet sales exempt from federal (USDA Animal and Plant Health Inspection Service or APHIS) regulation was replaced.The new exemption is much smaller, trickier, and not entirely clear.
On some important points APHIS talk contradicts what the new rule itself says. On others they say it will be on a “case by case basis,” meaning breeders have no way to be sure we’re operating legally. I suggest the following:
First, pick your basic approach.
With a rule this complicated and confusing there is no way to be 100% sure you’re okay except to stop selling dogs. The three ways to be almost sure are:
1. Have puppy buyers come to your place at least once for each puppy sale. With this exemption you cannot ship or transport a puppy that the buyer hasn’t seen at your place but there is no APHIS limit on your number of dogs.
2. Keep four or fewer bitches that can be bred and sell only their offspring, whelped and raised on your premises. All intact bitches count. including ‘too young,’ ‘growing out,’ and ‘retired.’ APHIS has not been clear on how coownerships will be handled, and it is possible that they will count for both owners. Visiting bitches count, according to APHIS. With this exemption, you can ship your pups.
3. Get a USDA license. This probably requires a commercial kennel setup ($25,000-100,000 for most hobbyists). In most areas you would need zoning and other local government approval, a business license, and a state tax number. APHIS requires you to follow certain procedures, be inspected, and have someone available to show an inspector your operation and records. They do not provide notice of when they will come to inspect.
Those three ways to get legal are clear in the rule itself; one of them is your best bet.
(APHIS is contradictory about in-home kennels: Both “The standards are the same as for commercial ones” and “Our inspectors are instructed to consider that a kennel is in a home.” If the idea works at all it will be up to the individual inspector. Also we can expect commercial kennels to sue to stop unequal enforcement.
Three more things that might work are:
1. Require every buyer to meet you to buy his puppy but it can be either at your home or someplace else. APHIS has said several times that “face to face” is good enough: The trouble is that what an agency says (or writes) about its rules has no legal force. The written rule is the law. If they want to enforce the rule as written, buyers must come to your premises. Again, you cannot ship under this exemption.
2. Sell your puppies for one of several not-a-pet purposes. Working and hunting dogs, dogs for breeding and preservation of bloodlines, are exempt from APHIS regulation. However APHIS seems to expect that nearly all your puppies are sold for the claimed purpose and will go “case by case” to decide how many can be sold as pets. I think most hobbyists will not be able to make this work. Out of a litter of six, how many are suitable as breeding stock? APHIS says selling the occasional pet is okay, but they have made it clear they will be looking for people who “abuse the system” by selling mostly pets.
3. Spin off parts of your breeding program to other people in order to get to four or under. These must be real sales, with regular paperwork and the bitches must live there, because APHIS counts bitches you ‘maintain.’ We do not have an answer on how cownerships will be counted.
Second, make and carry out a plan.
Write down exactly how you’re going to do things. Change your website so it is very clear what exemption you are using and that there are no exceptions. If you run ads, say ‘we cannot ship’ if that’s how you will do things. Keep records that will prove you are doing what you say. If you are selling all face to face, then photograph puppy buyers at your place and staple that picture to your copy of the contract. If you are relying on four or fewer bitches. get vet paperwork for any you sterilize. Put on your web site ‘Because APHIS limits us to four females, no rescue or boarding’ — and so on.
Keep duplicate records and computer backups off-site.
Watch out for sting operations — someone calling or visiting to buy a puppy but asking you to violate your exemption. Be very careful about visitors you don’t know: They may be looking for violations to report. APHIS won’t do this, but animal rightists will and APHIS will investigate their tips, even if they are anonymous. The animal rightists have been waiting twenty years for this rule: You can count on them using it.
Yes, you have nothing to hide. But if they suspect you, they will come looking. It will be up to you to prove you are in compliance. You want to be so clean and clear on the outside that they go after someone else and don’t bother you.
Third, do not do stuff that will not work!
DO NOT ignore this. It won’t go away. Sooner or later they will find you, and APHIS does not care that you are a Breeder of Merit, have produced 50 champions, or even that 100% of your buyers are happy with their pups. All they care about is that their rule is followed.
DO NOT assume you can just lock your gate and not let APHIS personnel in. That is exactly like telling the IRS where they can put their audit and it will work just as well. It’s the federal government. You have no choice except to comply and if that means letting an inspector in, let him in.
Note: According to APHIS, they do not simply show up at your house if they suspect you should be licensed. They will send you a letter and make an appointment to come.
Fourth, harden your breeding program.
Most serious legal problems for breeders come from a combination of bad events: You’re short of money, it’s a bad winter, you’re sick, you have a small kitchen fire, your helper quits, a partner or family member dies, a neighbor decides you are scum … You can’t make a plan for the details, but do plan for general backup and flexibility. Agree with one or two friends or fellow club members that you will back each other up in case of any sudden disaster and keep some extra cash so you can pay someone to help for a few days in the worst case.
Try to be friends with everyone, especially all buyers and neighbors. Keep even more extra cash so you can make a complete refund if necessary. Try to be like an eBay seller and shoot for 100% positive feedback.
Can you make a plan that would let you go on if you lost everything at your kennel this week? What about making a new breeder a great deal on starting from your dogs with an agreement that you can breed a litter or two if you need to do so?
Fifth, tell the world what APHIS has done.
Inform your past and current puppy buyers and let them know this is a federal regulation so all breeders will be affected. Contact your two U.S. Senators and your Representative, and get an appointment (most often it will be with an aide) to explain the problem. Have a few handouts. The best answer to this rule is a new law that tells APHIS to go back to the old rule, but we have no chance of getting that unless thousands of us ask. This is not a law your congressman voted on; it is a regulation from a federal agency. But your congressman can insist that it be stopped.
Tell other breeders! Our biggest problem trying to fight this was the number of breeders who put their heads in the sand. Remember that the only thing that has legal force is a written official rule.
Here’s the link to the published final rule:
Most of this is APHIS commentary — interesting but without legal force. The changes to the rule itself are on pages 23-24.
It would be good for clubs to have an attorney study the new rule and the federal register announcement and give a presentation.
We will keep you updated on any changes.