NAIA responds to USDA

Exempt fanciers, regulate kennel businesses

Doris Day Animal League, an animal rights organization, has forced the US Department of Agriculture to consider dropping some kennel businesses from the Animal Welfare Act regulations because DDAL wants all dog breeders to be licensed. Budget and personnel constraints prevent licensing of all breeders even if USDA were inclined to do so, but the DDAL insistence that dog and cat fanciers be treated like commercial kennels has pushed the agency into a corner.

Instead of regulating breeders according to the market they serve (commercial breeders vs fanciers), USDA has proposed regulating breeders by the number of breeding females owned. A low number would obviously catch show breeders in the net; a high number would just as obviously let commercial kennels slip out.

Before the September 23 comment deadline, NAIA sent the following letter to urge USDA to continue to exempt fanciers from licensing (as Congress intended) and to add retail kennels selling pets in interstate commerce to the regulations.

August 28, 1998

Docket No. 97-018-2
Regulatory Analysis and Development
PPD, APHIS, suite 3C03
4700 River Road Unit 118
Riverdale, MD 20737-1238

Dear Sirs:

The following comments concern Docket No. 97-018-2.

The National Animal Interest Alliance (NAIA) is a national coalition of animal interest groups that have joined together to promote socially responsible, practical, scientific and information-based approaches, methods and regulations for improving the welfare of animals and for protecting the public that purchases and otherwise uses and consumes animals and animal products. We are comprised of institutions, associations and individuals who in many cases are recognized experts in their respective animal-related fields. Many of our members participate in professions, practices or scientific pursuits that are currently regulated under the Animal Welfare Act. Other NAIA members may be affected if the USDA regulations are changed as a result of the current proposal. Accordingly, NAIA has a keen interest in the issues dealt with in Docket No. 97-018-2; submits the following recommendations for your consideration; and offers itself as a resource for further assistance.

Congress passed the Animal Welfare Act to regulate businesses that produce and handle animals in interstate commerce away from the scrutiny of potential buyers and the general public. Congress clearly intended to regulate businesses receiving substantial income from interstate commerce in animals (7 USC 2131: Sections 1b & Section 3) and just as clearly exempted "...organizations sponsoring and all persons participating in State and County fairs, livestock shows, rodeos, dog and cat shows, and any other fairs or exhibition intended to advance agricultural arts and sciences..." (7 USC 2131: Section 2b). Congress recognized the value of the advancement of animal husbandry practices with this exemption and separated the regulated from the non-regulated by the purpose for which the animals are raised, not the number of animals owned.

On the other hand, there is no doubt that some commercial kennels have fallen through the regulatory cracks. These are large commercial retail kennels whose primary purpose is breeding and selling pets at profit throughout the country, directly to consumers in the general public who, exactly like pet store consumers, seldom, if ever, observe the premises where the puppy or kitten they purchased was raised or bred. These commercial kennels are in the business of selling dogs and cats through interstate commerce just as much as pet wholesalers; the only difference is that they generally sell one animal at a time to off-premises consumers, rather than litter lots to pet stores.

Therefore, NAIA urges USDA

• to continue categorizing kennels and breeders according to the primary purpose for which the animals are raised, i.e., as a business versus as a hobby or avocation aimed at improving breeds ("...intended to advance agricultural arts and sciences..." 7 USC 2131: Section 2b), not by numbers,
• to abide by Congressional intent to exempt dog and cat fanciers,
• to add to the regulation those breeding businesses that make a substantial portion of their income by selling through interstate commerce direct to consumers in the general public who have little or no opportunity to visit the premises and see the conditions where their pet was bred and raised (7 USC 2131: Section. 1b and Section 3); and
• not to attempt to regulate breeders by the number of breeding females they own.

Why not numbers?

Since animal rights activists seek to regulate everyone with three "breeding females," the ramifications of regulating by the numbers go far beyond the addition of dog and cat fanciers to the regulatory burden, potentially adding tens of thousands of small, household kennels and catteries to the agency's responsibilities. Both pet owners with three intact females and fanciers with one adult female and two up-and-coming females would meet this broad criteria.

Furthermore, the agency acknowledges that enforcement issues increase when numbers exceed 60 animals, a number that would effectively deregulate many of the commercial kennels that Congress meant to regulate. Until studies are done, any number identified between the two would have to be chosen based on the agency's ability to enforce the regulations, not on its obligation to fulfill Congressional intent to protect buyers of pets sold through interstate commerce or to protect the pets produced in commercial enterprises.

Regulation by the numbers would imply federal endorsement of an extremist myth that characterizes all breeders as commercially motivated. But the majority of pet owners who own three or more intact females and breed and sell an occasional litter and members of the dog and cat fancies who breed to improve their breeds and secondarily sell some puppies or kittens as pets, do not keep and breed female animals principally to enhance a bottom line. Fanciers constantly evaluate potential breeding stock in their own kennels, in the show ring, and if appropriate, in the field and other performance trials. It is the female's potential contribution to the breed as evaluated against these standards that drives the fancies, not the number of puppies or kittens produced for sale. For these reasons and others, every female is not a breeding female in a fancier's kennel or in a pet owner's home.

Regulation that hampers fanciers from pursuing their hobby or avocation of breeding dogs or cats and that subjects homes to federal inspection will drive conscientious breeders away or force them to reduce their kennels in order to avoid costly and invasive federal inspection of their homes. Fewer fanciers mean fewer well-bred purebred dogs and pedigreed cats; fewer animal shows; fewer opportunities for public education about dog and cat care; less money for canine and feline research; less attention to breed integrity, good health, and purpose; and less attention to the advancement of agricultural arts and sciences that Congress exempted in the AWA.

Hunting, security & breeding animals

Those who breed dogs for hunting, security, or breeding purposes should continue to be covered under the current regulations that divide the breeding and raising of animals as a business from these activities as a fancy or avocation or for personal use.

Summary:

NAIA proposes that USDA

• continue to exempt the dog and cat fancies from regulation, and
• write a regulation to include kennels and catteries that sell directly to a public that has little or no opportunity to visit the premises to see the conditions under which the animals are raised.

We firmly oppose the use of numbers to define a regulated kennel because

• any number chosen will be tied to the agency's ability to enforce, not to appropriate conditions for the animals;
• it is unfairly burdensome and invasive of privacy to require fanciers or pet owners to submit to in-home federal inspection based on the number of breeding females owned,
• currently regulated kennels are likely to be deregulated;
• a low number will drive many responsible breeders out of the fancies and reduce opportunities for education and the production of well-bred purebred pets; and
• numbers are contrary to Congressional intent to regulate interstate commerce in pets and to exempt fanciers from the provisions of the AWA.

  Sincerely,
  

• USDA will collect, read, and categorize the comments, then propose a rule or give reasons why new rules are not needed. The process is likely to take months. This is the second round of comments on this issue; the first deadline was May 1997, but USDA did not ask for additional comments until June 1998.