NAIA’s USDA Comments
By: Patti Strand Date: 08/15/2012 Category: | Animal Legislation |
August 13, 2012
Submitted by US mail and via portal at
Docket No. APHIS–2011–0003, Regulatory Analysis
and Development, PPD, APHIS, Station
3A–03.8, 4700 River Road Unit 118,
Riverdale, MD 20737–1238
Dear USDA APHIS Reviewer:
The National Animal Interest Alliance (NAIA) appreciates the opportunity to comment on Docket No.APHIS–2011–0003 RIN 0579, dealing with Animal Welfare; Retail Pet Stores and Licensing Exemptions. The Proposed Rule is of great interest to all our members, and especially to the hobby breeders of dogs and cats who make up the majority of our membership and who would be impacted by the final rule.
NAIA recognizes that USDA’s current commercial dog-licensing regulations are inadequate for today’s needs, and we support expanding USDA’s ability to regulate large, retail commercial dog breeding kennels that currently operate without adequate oversight.
However, we believe the draft rule overreaches its objective, and we cannot support it in its current form. As proposed, Docket No. APHIS–2011–0003 RIN 0579 will capture thousands more breeders than anticipated by agency analysis (See addendum), invade the privacy of thousands of low-risk in-home breeders without justification, and cause a host of unintended consequences that will harm the welfare of dogs and the best interests of American consumers.
Our major concern centers on the narrowing of the definition of retail store to force it into the current regulatory framework. In the previously regulated wholesale sector, every breeder is a commercial operator – someone who is in business – but in the retail sector there are both commercial breeders who breed dogs to make a living and small-scale hobby breeders who breed dogs as part of a chosen lifestyle with the goal of improving and preserving their chosen breed. Applying commercial standards to small, in-home hobby operations as this proposal does will have a crippling effect on these breeders, and cause many of the finest breeders in the country to quit. This in turn would have a devastating impact on the entire US pet industry without advancing the health and welfare of dogs at all.
Additional concerns flow from this defect in the proposal:
- The low threshold for triggering federal licensing unless all buyers visit the facility;
- The ban on selling animals that were not bred and raised on the premises;
- The lack of definition of a breeding female;
- The potential for placing federal inspectors in private homes, a solution rejected by both USDA and the court in a 2003 decision in federal appeals court; and
- The strain on the USDA budget for regulatory administration and enforcement.
A rule too far
The proposed rule was prompted by an audit finding that some large-scale commercial breeders were using the retail pet store definition to sell puppies through the Internet and thus circumventing the purpose of the Animal Welfare Act. Conducted by the Office of the Inspector General (OIG), this audit focused on problematic dealers (all breeders referenced in the audit had more than 50 breeding females) who were avoiding regulation by selling animals directly to consumers and shipping them to buyers sight unseen. The audit recommended “… that the Secretary seek legislative change to exclude Internet breeders from the definition of 'retail pet store,' and require that all applicable breeders or brokers who sell through the Internet be regulated under AWA.”
The OIG audit described the problem and defined the target of new regulations as: “Large breeders that sell AWA-covered animals over the Internet (hereafter referred to as Internet breeders) are exempt from AC’s inspection and licensing requirements. This occurred because the AWA section that excludes retail pet stores (i.e., stores that sell directly to the public) from its provisions pre-dates the Internet and creates a loophole for these breeders to circumvent AWA. As a result, an increasing number of Internet breeders are not monitored for their animals’ overall health and humane treatment.”
The USDA APHIS summary also captures the OIG’s objective stating that: “This Proposed Rule is necessary to ensure that animals sold at retail are monitored for their health and humane treatment and to concentrate our regulatory efforts on those facilities that present the greatest risk of noncompliance with the regulations.”
So, the objective is clear: the proposed rule aims at solving problems found in the large-scale, commercial breeding facilities, which are not open to the public, not the relatively small, in-home, heritage breeding programs that are also captured by the rule language.
It is also clear that the agency intended to exempt hobby breeders but erred in trying to adapt the draft regulations to the existing wholesale regulatory framework. The USDA Regulatory Impact Analysis and Initial Regulatory Flexibility Analysis estimates that the proposal will bring no more than 1500 new breeders under regulation, and adds, “This figure is likely overly inclusive, as it assumes that all retail breeders except for traditional retail pet stores and hobby breeders would be regulated.” (See addendum)
However, home hobby breeders often have more than the threshold number of reproductively intact females, sometimes sell puppies to buyers who do not visit their premises, and occasionally sell puppies or dogs that they did not produce and raise on their premises. These factors make it likely that the agency estimate is deeply flawed and that thousands of hobby breeders will be caught in the regulatory net.
Breeding dogs is a lifestyle choice for hobby breeders, and the current proposal offers them two unacceptable choices: to operate illegally or provide federal regulators access to their homes for having as few as 5 breeding female dogs. Operating legally is very important to in-home breeders so in order to avoid having federal agents in their homes, they will cease breeding or cut back on the number of breeding animals they keep. Losing these breeders would seriously reduce the availability of healthy, properly socialized, well-bred purebred dogs to American consumers, and endanger the existence of some of the rarer breeds.
In addition to producing the most sought-after purebred dogs in the US marketplace, hobby breeders working through local and national breed clubs and the AKC are the backbone of canine health and welfare in the United States today. They donate more money to canine health research, volunteer as instructors in community dog training clubs and programs, and provide more resources for hands-on dog welfare than any other group. AKC itself has funded and completed more than 55,000 kennel inspections during the last 12 years and donated more than $25 million to canine health research since it founded the AKC Canine Health Foundation in the mid 1990’s. They also publish materials that promote responsible dog ownership, and host thousands of dog shows and trials each year. AKC is the parent organization for thousands of not-for-profit clubs that also donate to causes that benefit dogs. The American Boxer Club, for example, has donated more than $650,000 to canine health research during the last two decades. Diminishing this special community of breeders would negatively impact all American dogs - mixes as well as purebreds
Major considerations when revising the proposal
NAIA believes that a threshold of 4 breeding bitches, with a breeding female interpreted as any female that is capable of having puppies, is an artifact from the wholesale regulations where all licensees are commercial and the regulatory goal is to capture all breeders who use middlemen – a black and white proposition. Trying to apply the same low threshold across the entire retail sector is inappropriate, potentially wasteful of taxpayer dollars, harmful to the goals of the proposal, and will prove harmful to both the welfare of animals and consumers. It’s simply the wrong standard to apply.
Further, we strongly oppose subjecting small, in-home breeders with as few as 5 breeding females to federal regulations, forcing them to give up their privacy and requiring them to replace living and care standards that are appropriate for household pets with ones designed for large commercial settings, especially when oversight from state and local authorities and the AKC is available in many cases at no additional cost to the taxpayer.
Some things to consider:
- Most hobby breeders postpone breeding until the health tests recommended for their breed are completed, a delay that means waiting until their breeding females are 2 years of age or older before the first breeding.
- Many hobby breeders don’t breed their females while they are competing in shows or trials, a period that often spans more than a year.
- Many hobby breeders keep their breeding females intact long after their breeding careers have ended and maintain them without breeding until they die of old age.
- Hobby breeders do not generally breed even those females that are part of an active breeding program on every heat cycle.
- Limiting the number of breeding females an exempt breeder can keep to a maximum of 4 is the wrong standard to impose in the retail sector. It is not the number of intact bitches owned but the welfare of the ones who actually have litters that should determine USDA's involvement, especially when there are state and local laws that regulate ownership and punish cruelty.
- Limiting the number of breeding females an exempt Toy dog hobby breeder can keep to a maximum of 4 would result in federal licensing of breeders who in most cases produce a maximum of 8 -12 puppies a year.
- “Breeding female” is not defined, so a threshold this low and ambiguous will bring thousands of small scale, low-risk breeders under regulation and squander the resources needed to address the genuine problems cited in the OIG audit.
- This proposal came about because of perceived health and welfare problems in large dog-breeding facilities and in the puppies they produced. If it is finalized it should not be applied to breeders of other species for each has its own unique biology, husbandry needs and marketplace.
The requirement that exempt breeders sell only the dogs bred and raised on their property is onerous for small-scale hobby breeders, especially those who maintain rare breeds. This mandate guarantees that several thousand additional small, low-risk breeders will be regulated, threatens the extinction of some rare breeds and unnecessarily limits consumer choice. We know this because:
- Hobby breeders operate with a relatively small number of breeding females so they often work with other hobby breeders in order to maintain genetic diversity in their breeding programs. As part of these working partnerships, they co-own dams and often take puppies whelped by those co-owners, some that they ultimately sell. Under the current proposal, these breeders would lose exemptions if they sell even one puppy that they did not personally breed and raise.
- Hobby breeders sometimes take a puppy in lieu of a fee for stud service and later sell that puppy. Such a breeder, no matter how small or how low the risk potential, would lose their exemption if they sold this puppy since it was not bred and raised on their property. This would bring even more small, low-risk breeders under federal regulation.
- Hobby breeders sometimes buy a puppy or dog to add to their breeding program and decide to sell it because it failed to live up to the desired potential. This, too, would result in loss of exemption.
Redefining a retail pet store so that it "…only includes those places of business or residence that each buyer physically enters in order to personally observe the animals available for sale prior to purchase and/or to take custody of the animals after purchase, and where only certain animals are sold or offered for sale, at retail for use as pets …"
- Would create a hardship for consumers who cannot or do not want to travel to the breeder’s facility to take possession of their puppy in person;
- Would force consumers who want a rare breed puppy not available in their state to travel great distances for their puppy if their breeder isn’t willing to become federally licensed and give up his or her privacy;
- Would undermine the agency's expectation to exclude traditional retail pet stores and hobby breeders, which is expressed in the Regulatory Impact Analysis & Initial Regulatory Flexibility Analysis;
Would undermine the agency's intent to "… concentrate their regulatory efforts on those facilities that present the greatest risk of noncompliance with the regulations ..." by expanding coverage to thousands of small, low-risk breeders who:
- sell an occasional puppy to a person who cannot or does not want to come to their facility, often a repeat buyer who is familiar with the breeder, or someone who knows the breeder by reputation or referral, and executes a contract that satisfies their individual concerns;
- are engaged in a heritage breeding program to preserve rare and endangered breeds, where so few litters are produced each year that there is often great distance between the breeder and the potential buyer. More than a quarter of all the breeds registered with the AKC, the largest US registry, produced fewer than 50 litters last year;
- would become subject to federal inspection of their homes in violation of the privacy guarantee embodied in the Fourth Amendment to the US Constitution;
- would be forced to impose industrial care standards on dogs who are currently treated as well cared for household pets, something that would not improve the welfare of their dogs in any way; and
- would lose their exemption if they sold even one puppy remotely, even using methods such as magazines and referrals that were recognized as providing an acceptable degree of public oversight prior to the advent of the Internet.
New regulations should target the kennels identified in the OIG audit
The OIG audit identified Internet breeders as large scale breeders who sell all or at least most of their puppies without providing their buyers access to their facilities, a practice that prevents consumer oversight. Significantly, no kennel in the audit had fewer than 55 dogs on the property.
Instead of targeting these commercial breeders who sell large numbers of puppies sight unseen, the proposal will force USDA to expand its oversight to thousands of small, low-risk entities that do provide the opportunity for visits but do not insist that all buyers comply. As a result, it undermines the stated intent of the proposed rule as expressed in its summary: "…to concentrate our regulatory efforts on those facilities that present the greatest risk of noncompliance with the regulations."
It is important to remember that long before the Internet, retail breeders sold some of their dogs remotely, using magazines, referrals and other means. It is the ability provided by the Internet to sell all or nearly all of one’s puppies through remote means that leaves some large retail breeding kennels without public oversight. The degree of public oversight is APHIS’ focus as well, as stated in the July APHIS factsheet on the proposed regulations.
Another very important point to consider is that many of the Internet pet sellers generating consumer complaints today are not breeders at all; they are sellers of rescue and shelter dogs. They operate through networks of shelters and rescues, which are aided by Petfinder.com and pet super stores, where giant adoptathons sell thousands of dogs each week end. Of the 4 consumer complaints listed in the OIG’s audit report, it appears likely that at least 2 of the complaints cited were rescue or shelter dogs. One was identified as a pound puppy, the other as sick, unsocialized mutts. This makes sense because in many states today, the practice of humane relocation coupled with strategic use of the Internet and other marketing tools, has made animal shelters and rescue groups the biggest sellers of dogs in the marketplace. This fact is underscored by Petfinder.com’s website banner, which describes itself as follows: “The virtual home of 371,628 adoptable pets from 13,853 adoption groups.”
1. The agency should focus on solving the problems cited in the OIG audit, namely that some unregulated, large commercial breeders were selling their dogs over the Internet and thereby avoiding public oversight. The OIG report didn’t label them Internet breeders because they sold some of their puppies over the Internet, but because they were large business kennels and sold all or nearly all of their dogs remotely without providing customers access to their facilities.
2. The agency should amend the Internet sales provision so that breeders who provide consumers a reasonable opportunity to see the available puppies prior to the sale remain exempt as retail pet stores. (The Internet provision cannot be corrected merely by approving face to face sales because such a change would not allow any remote transactions.)
If an occasional consumer doesn’t take advantage of this access, there is no justification for federal licensing of the breeder, especially if the breeder and buyer execute a contract that satisfies both parties. (Does anyone really believe that the federal government should involve itself in such matters?)
3. Instead of imposing unwarranted licensing requirements on low-risk, in-home breeders that erodes their basic civil liberties and reduces consumer choice - and does so without demonstrating any positive measurable effect on the animals in the process - the Department needs to identify the unregulated large-scale, high-risk breeders whose operations are closed to the public and write appropriate regulations that do not invade the privacy or erode the civil liberties of citizens whose activities pose little risk to anyone. These are the kennels that breeders and pressure groups alike agree should be regulated. As the USDA itself has argued in court, home breeders can be handled by state and local agencies of jurisdiction and the American Kennel Club.
Doing Internet searches for Internet breeders and reviewing Certificates of Veterinary Inspection (CVI’s) would provide more than enough information to begin identifying the breeders who operate in the way described in the OIG report. Currently CVI’s are maintained in state departments of agriculture, often by the state veterinarian. USDA only receives the CVI’s for international animal shipments, today, but to achieve the proposal’s goal they need to be able to review CVI’s for interstate shipments as well.
4. Instead of establishing a licensing threshold for retail breeders that have more than 4 breeding females the Department needs to define and then formally exempt hobby breeders (home breeders) as the Impact Analysis states is the intent. Missouri’s state law has done this with great success, defining a hobby breeder as a non commercial breeder who owns no more than10 intact females. http://mda.mo.gov/animals/ACFA/law.php .
Given the Department’s inability to determine the sales volume of a particular kennel -something that would enable them to identify the breeders who are placing enough dogs to justify federal oversight - it’s understandable that they chose instead to use the number of breeding females a person owns as part of their threshold criteria. It’s black and white; but it is also wrong. The threshold is too low to distinguish between citizens who keep and sometimes breed their dogs as part of a breeding program and lifestyle hobby, and those who are in the business of selling dogs to make a living. Many breed enthusiasts (hobbyists) who participate in canine sports, training, working dog trials and efforts to promote responsible dog ownership keep more than 4 intact females, some that they never breed, let alone with the frequency estimated by USDA, yet the proposed rule will capture them.
5. Although the proposal says that the Department considered exempting breeders who were already subject to state and/or registry inspections and rejected the idea, we think this idea is worthy of more consideration. There are excellent programs available in many states, and the AKC has had substantial experience during the last 12 years inspecting both commercial and home kennels. Delegating this role will enable the department to devote its resources to identifying and licensing the kennels cited in the OIG report. Such an arrangement would also lead to better collaboration between USDA APHIS and others working to achieve the same goal.
6. Finally, if this proposal moves forward, it is imperative that the regulations be drafted as clearly as possible. While we recognize the Department’s authority to write these regulations and determine how they will enforce them, if they are at all ambiguous, animal rights groups that use lawsuits to garner public attention, raise funds and push political agendas, will file lawsuits to force their interpretation on the agency and the breeders it regulates. This coercive tactic can be counted on if the language in the final rule lacks precision.
We recognize that from a regulatory standpoint, all-or-none rules like the one suggested for Internet sales are much easier to enforce than ones that require judgments involving multiple variables. However, an agency’s ease of enforcement should never be given precedence over the protection of an American’s right to privacy or any other civil liberty. In 1999, the Doris Day Animal League filed suit to force USDA to license retail outlets, including home breeders. DDAL won the suit in the trial court and USDA appealed. In 2002, the agency argued before the Ninth Circuit Court of Appeals that home breeders do not need federal oversight because they are not only covered by state and local ordinances but are often self-regulated through breed clubs and registries such as the American Kennel Club.
The DDAL lawsuit took several years for a final appeals court decision, eating up USDA resources along the way. We ask that the department keep in mind that some of the most vocal animal rights organizations supporting this proposal are defendants in a lawsuit alleging racketeering, which stems from one of their previous lawsuits. The most vocal of these, the Humane Society of the US, is the parent organization of Doris Day Animal League, the organization that sued USDA APHIS over this same issue in 1999.Therefore, please take extra care to make sure that the intent is clearly spelled out in the regulations.
Please call on us if our perspective and understanding of the issues can be of help in the future.
Patti Strand, NAIA Chair
Defective estimates undermine the objective
We understand the agency’s desire for clear-cut, uniform, rules and appreciate the need to integrate new regulations into the existing statutory and regulatory framework, but the degree of variation in the dog-breeding world renders any one-size-fits-all approach ineffective, inequitable and ultimately harmful to the department’s goals.
The Impact Analysis uses licensing data for wholesale and retail breeders that were gathered from Kansas, Missouri, and Iowa to determine how many of each there are and to estimate the number of retail breeders that would be affected nationally by the proposed rule. To do this it computes the ratio of wholesale to retail breeders in those states and extrapolates that across the nation. This method produces a much distorted picture, though, because these states have unusually high numbers of wholesale commercial dog breeders compared to nearly all other states. In fact, the ratio is almost certainly reversed in the majority of states where commercial breeding is not a big industry.
Complicating matters further, these three states have different methods for defining retail breeders, making it impossible to draw apples-to-apples comparisons. In Kansas, it is the number of litters produced that determines who needs to be regulated as a state retail breeder, while in Missouri, hobby breeders with 10 or fewer breeding females are exempt from licensing and therefore not included in the state retail breeder totals.
But even if the USDA analysts were able to compensate for the lack of uniformity in state licensing data, the theory behind the methodology is also flawed because the majority of retail breeders are hobby breeders, and their numbers cannot be calculated by using any ratio that relates them to wholesale breeders. This is because hobby breeders who raise dogs as a lifestyle choice, are a unique demographic represented as a percentage of the population in every state regardless of the number of commercial breeders - wholesale or retail - that operate there.
Based on information gathered from dog registration data, and from reviewing the assumptions, methods, and sources used in the government analysis, we estimate that in the vast majority of states, retail breeders that are excluded from the definition of retail pet shop as defined in the proposed rule (which unintentionally includes hobby breeders), would significantly outnumber wholesale breeders, increasing the government’s estimate from 1500 to at least 10 times that number. In other words under the current version of the proposed rule, the 1500 new breeders estimated by the Impact Analysis is actually closer to 15,000 and perhaps much higher.
This article is a reprint of NAIA’s August 12, 2012 comments to USDA APHIS regarding retail pet store and licensing exemptions.
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