And thus we come to the present.
Last week APHIS published a proposed rule to, among other things, revise the
definition of retail pet store in the current regulations. You can find the
proposed rule here -
comment period is from 5/16/12 to 7/16/12.
The proposed rule change deals with changes to the exemptions discussed above.
1. The retail pet store exemption remains, but the definition of a retail
pet store is changed. Under the proposed regulation a retail pet store would be
defined as a place of business or residence that every buyer must physically
enter 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 retail sale for use as pets.
2. This one is not changed – the $500 limitation on gross income from sale
of animals still remains.
3. The proposed rule increases the number of breeding females allowed from
3 to 4, but it adds persons meeting this criterion to the definition of retail
pet store. The APHIS Factsheet
pdf) states that "these breeders can only sell the offspring of the breeding
females that were born and raised on their premises, and sold for only pets or
4. No change is mentioned (this is the selling fewer than 25 animals one).
5. No change is mentioned (this is the transporting animals one).
6. No change is mentioned (this is the food or fiber animals one).
7. The purebred fancier exemption is deleted.
8. No change is mentioned (this is the pet buyer/owner one).
APHIS estimates that increasing the number of breeding females from 3 to 4 will
remove about 600 or so breeders from their current licensees while removing the
purebred fancier exemption will add about 1500 dog breeders (they do not seem to
think breeders of other species will be significantly affected) for a net
increase of 900 new licensees.
The justification for this rule change is that APHIS believes there has been
such an increase in volume of remote sales, particularly internet sales, in the
last 20 years that there is a large population of animals being sold directly to
the public, i.e. at retail, as pets that are not being monitored for their
health or humane treatment. Retail pet stores are specifically exempt from the
provisions of the Animal Welfare Act and are not required to be licensed by
APHIS. APHIS' solution for this problem is to remove from the definition of
"retail pet store" any seller who does not require that the buyer physically
present themselves at the seller's facility either prior to or at the time of
purchase. APHIS justifies their proposed all-or-nothing rule as written by
claiming that they do not have the authority to require retail pet stores to
make or retain records that would verify the proportion of remote sales that
make up their business.
If even one buyer does not appear in person, then the seller will need to be
licensed in accordance with AWA regulations and will become subject to all other
applicable AWA provisions. This point is key here. You need to understand that
this is not just a matter of filling out an application, paying a fee, and
letting an inspector into your house once a year for a few minutes. If you are
required to become a "licensed entity" you will need to comply with animal
identification and recordkeeping requirements and with standards for facilities
and operations (including space, structure and construction, waste disposal,
heating, ventilation, lighting, and interior surface requirements for indoor and
outdoor primary enclosures and housing facilities); animal health and husbandry
(including requirements for veterinary care, sanitation and feeding, watering,
and separation of animals); and transportation (including specifications for
primary enclosures, primary conveyances, terminal facilities, and feeding,
watering, care, and handling of animals in transit). The regulations covering
all this stuff are 164 pages long!
So what does this mean? There is a lot of confusion.
Problems – in no particular order of importance.
· If you are a breeder there are only 3 ways to remain legal under this
new proposed rule – get licensed under the AWA, upgrade your facilities to be
compliant with 164 pages of federal regulation and allow APHIS inspectors into
your home OR sell all animals only to buyers who physically enter your home and
facilities OR have only 4 breeding females and sell only their progeny.
· There is no written definition of breeding female. According to Dr.
Rushin in the transcript of the stakeholders' conference, APHIS has been using a
working definition in their wholesaling inspections of "dogs that have the
ability to breed". It has not been an issue for dog breeders in the past, but
with the purebred exemption being removed it will now be of paramount
importance. ARs believe, and have advanced legislation in multiple venues to
try to codify their belief, that any intact female dog over the age of 4 months
qualifies as a breeding female. The vast majority of dog breeders who were
previously exempt under the purebred fancier paragraph do not breed their female
puppies on their first heat. Some health testing cannot be done until the dog
is 2 years old and the overwhelming majority of the breeders who will now be
captured under the new rules do not even consider a bitch to be breedable until
she is at least 2. Some breeders are concerned with late-onset diseases such as
epilepsy known to have a genetic component but no testing available, and prefer
to wait until their dogs are 3 or 4 or even 5 years old before breeding the
animal for the first time. Some breeders raise up multiple puppies from a
litter before deciding who to breed as an adult. Some breeders do not spay
their retired bitches. Some view surgical castration as an unnecessary and even
detrimental procedure and do not routinely neuter their animals, even if they
will not breed them. How will a breeder know what animals count as breeding
· The language in the regulation specifies 4 breeding females, and it is
apparent from the context that it is only the number that is important. Species
does not matter. As an example, perhaps there is a dog breeder who previously
qualified as exempt under the purebred fancier paragraph, without regard to the
number of intact female dogs she had. Let's say she has 3 dogs that will be
considered breeding females. Let's also say that her young son breeds guinea
pigs for 4H. If he has more than 1 female guinea pig and if he sells a guinea
pig to a friend at the 4H fair, his family will require a USDA license – with
all the accompanying expense of kennel construction, licensing and inspection.
USDA itself is inconsistent on this point. People who have spoken to Dr. Rushin
report that he has said this is not how it will be interpreted, but people who
have spoken to other officials with USDA report that they have agreed withthis
interpretation. Whatever the interpretation, it must be spelled out and not
left to the whim of the inspector at the time of inspection.
· "4 breeding females" may include co-ownerships and will include
animals shared with family members or animals that are temporarily in residence
with the breeder. It is possible that a bitch on your property for stud service
or your sister's bitch that you are boarding while she is on vacation could be
included in your count if the inspectors happen to be counting on that day. The
actual text of the proposed rule is "maintain on his or her premises", however
there does not appear to be a definition of "maintain" in the regulations.
· Even one sale to a buyer who does not physically enter the breeder's
home/kennel will cause the breeder to lose the exemption from licensing. This
is certainly true for anyone exempt from licensing under the retail pet store
exemption. It is not clear at all from the various wordings provided in the
APHIS documentation whether this will also be true for a breeder exempt by
virtue of having 4 "breeding females", however Dr. Kay Carter-Corker of APHIS,
in a telephone conversation on 5/24/12, assured me that breeders having 4 or
fewer breeding females who sell only the offspring of those females born and
raised on their premises will not lose the exemption from licensing if they sell
an animal offsite.
· To meet the exemption for 4 breeding females, those breeders can ONLY
sell the offspring that were born and raised on their premises. This leads to
several problems for breeders. If a breeder gets a puppy back as a stud fee or
gets a puppy back from a bitch sold previously, that puppy cannot be sold
without the breeder losing the exemption. If a breeder retires a bitch and
wants to rehome her, that cannot be done without losing the exemption unless the
bitch is one bred and raised by the breeder. If a breeder wants to retire a
stud dog and rehome him, same problem.