The USDA/APHIS Rule: Changes Ahead for Hobby Breeders

The rumblings about new breeder regulations from the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Services (APHIS) division began a couple of years ago. A draft was published about a year ago, there was a public comment period, and the final rule was published September 18th, to take effect November17th, 2013.

The rule was developed to address what HSUS claimed was a problem with “internet puppy mills” shipping puppies sight unseen to consumers. Although APHIS cannot provide any numbers, they said that a large number of these puppies were unhealthy. Since the USDA has historically regulated only breeders who sold at wholesale to pet stores, these “internet breeders” were not inspected by either USDA or by puppy buyers visiting their kennels. APHIS believes the new rule will mean lots more breeders being inspected.

Candy_Skittles     Most hobby breeders will have to change how we breed and/or sell dogs in order to stay legal.
     The alternative is to get a USDA license and very few of us can do that.

Under the old rule — still in effect until November 17th — you are exempt from USDA licensing as
long as you sell only at retail — never to pet shops. Since nearly no hobby breeder sells puppies
wholesale, we have not been affected.

Under the new rule there are two main exemptions:

     1. You maintain four or fewer breedable (unspayed) animals and sell only animals
born and raised on your own premises. You can sell no stud fee puppies back, no dogs
bought from other breeders, and no rescues. (An ‘adoption’ is considered a sale by
law.)

This rule has several questionmarks:

a. The wording probably means that co-owned animals count for all owners: Breeder A maintains (keeps on her property) three bitches that are co-owned with breeder B. Breeder B also maintains three bitches that are co-owned with Breeder A. It is possible that USDA will consider that A and B each maintain six bitches — two too many to use this exemption.

b. USDA has not yet said whether puppies whelped by c-section will count as ‘whelped on your premises.’ If they aren’t, this exemption won’t be allowed if you ever have a bitch needing a c-section.

c. USDA also hasn’t said at what age a puppy becomes ‘breedable.’ It seems certain that even elderly bitches will be counted unless sterilized.

d. All covered species are counted. That means an intact female cat and an intact female hamster count against your total of four. Basically all the common pet species would count. The rule lists “dogs, cats, and/or small exotic or wild mammals, such as hedgehogs, degus, spiny mice, prairie dogs, flying squirrels, and jerboas.”

AKC has asked for clarification on these points.

— OR (the second exemption)

2. You sell your puppies only in face to face transactions on your own premises. No shipping ever, at all.

This exemption too has questionmarks:

a. USDA says that what the rule really means is ‘face to face anywhere.’ You could meet at a rest stop or Walmart parking lot. The trouble with that is that that is not what the rule says. It says, “a place of business or residence at which the seller, buyer, and the animal available for sale are physically present so that every buyer may personally observe the animal prior to purchasing and/or taking custody of that animal after purchase.” Obviously this is intended to snare the breeders selling unhealthy puppies by internet.  USDA employees don’t have the power to change the written rule. Until this is settled, the only way to be safe with this exemption is to have all buyers come to your place.

b. USDA also says that exemptions can be mixed — maybe you could ship pups you whelped and raised but not others. This too isn’t stated in the rule and varies depending on whom you talk to at USDA.

There are a few other exemptions you might have heard about, one being breeding ‘to preserve bloodlines.’ Because it appears that USDA wants nearly all puppies using this exemption sold for the stated purpose this exemption is far from safe.

There are also exemptions for breeders of security, hunting, and working dogs — not the working group, but dogs that actually perform jobs such as Border collies on ranches. These exemptions have the same problem as breeding ‘to preserve bloodlines.’

USDA officials have stated that show, agility, obedience, racing, coursing, and other competitive dogs (etc) are not classified as ‘working dogs.’

So why not just get a license? USDA requirements were designed for large commercial facilities. Among many, many others are requirements that all surfaces dogs touch are able to be chemically or steam sterilized. No more dogs on the couch or whelping boxes in the bedroom. You must have a separate food preparation area for feeding the dogs.You cannot keep puppies under four months old with your adult dogs and you can’t store anything other than “proper dog husbandry materials” in the room with your dogs. Someone must be present during all working hours, five days a week to admit an inspector; these are ‘no notice’inspections. Specific, detailed, records are required. USDA has implied that they will not use the same inspection standards for homes, but that will not be legal and we can count on lawsuits from commercial breeders who have to comply with the more stringent standards.

USDA says the enforcement of these regulations depends on the judgment of the individual inspector.

A USDA license will make you a business for state and local law which will require a business license, payment of sales tax, and very likely cause you zoning problems.

You can read both the USDA discussion of the new rule and the changes themselves, here:

http://www.gpo.gov/fdsys/pkg/FR-2013-09-18/pdf/2013-22616.pdf

Notice that what APHIS says about the new rules is looser than the rules themselves in several ways, but if you’re cited for noncompliance, the actual rule (the last two pages of the above document) are what will count.  If APHIS planned to enforce the looser requirements they’re stating now, why didn’t they just write the final rule that way? The same issues were there in the draft rule, 18 months ago and thousands of breeders commented on them.`

USDA employees have been talking with various breeders for the past month and very little has been clarified. Indeed, the story changes depending on whom you talk to. We can only assume that the actual rule is what will matter in the long run, and not what various employees have said.

The following link will take you to brief training materials (with pictures) on what it takes to have a USDA licensed kennel:

http://www.cfsph.iastate.edu/Education-Training/regulatory-compliance-for-commercial-dog-breeders.php.

Enforcement will be complaint driven. If you have more than four female, unspayed animals, you ship a puppy, and someone reports you, then APHIS may contact you about whether you need a license. You could end up with a hefty fine and be required to jump the hurdles of a USDA license to continue breeding.

For an example of what dealing with APHIS enforcement is like go to http://americanfreepress.net/?p=759  and for more links,  http://www.dollarvaluerabbitry.com/Media_Coverage.html

APHIS also plans to mine data from websites and puppy sale sites to find breeders to investigate. Do not assume you won’t get caught. Figure out how you are going to comply and do it. Yes, maybe the looser interpretations will work for a while or for some people. Even if you win it will cost you tens of thousands of dollars and (probably) your breeding program, even if you get to keep your dogs. It’s not worth it.

If you want to complain to someone, start with your AKC club. Most clubs have shown no concern about this rule. You might send a letter to AKC asking why they have not filed for an injunction. Then contact your (federal) Representative and your two U.S. Senators. Though this is a rule from a federal agency with the power of law, it is not a law passed by Congress. However, they are responsible for the law that allows these regulations. That law — the Animal Welfare Act of 1966 as amended — gives the federal government control over the breeding and sale of pet animals. Does that make sense to you?

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