APHIS Final Rule Revising Pet Seller Exemptions and You
As you know by now, APHIS published the Final Rule September 10, 2013 which revises the definition of "retail pet store" under the Animal Welfare Act (AWA) licensing and regulations. The new definition of retail pet store means a place of business or residence where the seller, buyer, and animal are physically present in the same location. Not only dogs, but cats, rabbits, mice, small exotic animals, and other small pets will no longer be sold at retail without either public or APHIS oversight. If you cannot qualify for the retail pet store exemption in the AWA by selling only face-to-face, then you must either obtain a federal license or be limited to 4 or fewer females bred and raised on your premises. This limit of 4 is an aggregate number of females regardless of species (i.e., 2 dogs, 1 cat, 1 rabbit).
The transaction does not have to take place at the seller's home. A meeting place can be set up to transfer the animal. However, everyone needs to be aware that many municipalities have ordinances restricting sales in public places and should plan accordingly. It appears APHIS will allow a third party to be designated as the agent to stand in for the breeder or buyer in the face-to-face transaction, but this needs additional clarification.
Anyone selling dogs for hunting, breeding, security purposes, or as working dogs is excluded from the definition of Dealer and from the definition of Retail Pet Store.
APHIS held a teleconference to announce the final rule. If you could not attend, we urge you to read the transcribed call which is posted at the SAOVA website http://tinyurl.com/nyb4s5g
In general, APHIS says this rule is driven by purpose of breeding and method of delivery for the sale; and that their goal is only to end sight-unseen sales. However, since breeding programs do not fall into nice neat categories, and scenarios change from breeder to breeder and species to species, covering the retail sector with such a regulation creates many areas of uncertainty for the average breeder.
The list of questions is long:
Can hunting dog kennel owners sell pets
Can breeders ship sight-unseen where relationships have been well established
Can litters be whelped inside the house
Are rescues still exempt if they ship sight-unseen
Can animals, other than rabbits, be shipped for preservation of the species
Do the APHIS regulations take precedence over state license regulations
How can we believe the answers from APHIS staff who do not understand the questions
Does APHIS plan to offer any protection for newly licensed breeders so that kennel photos are not added to the ASPCA "puppy mill" data base and other sensationalized uses
If you are reported to APHIS as needing a license, are investigators required to have a warrant to enter your premises
Is everyone on the same premise required to be licensed if one person must be licensed
The rule is overly complicated, inconsistent, and certainly not easy to understand. The internet and chat groups are full of conversation about this rule with a number of interpretations and a wide variety of opinions being circulated. APHIS also posted another Question and Answer Fact Sheet with their explanations to some of the major concerns submitted during the rule making process. Again as last year, the Q&A contains many half, incomplete, or misleading answers. The reality is that the final interpretation of the rule and its definitions will be at the discretion of APHIS inspectors and staff.
Rather than attempt to analyze the rule and/or interpret how it will impact hundreds of thousands of breeders in dozens of varying situations we'll review what we do know regarding the new rule and current AWA standards.
The Final Rule was published in the Federal Register September 18, 2013 and is effective 60 days from publication. APHIS plans a phased implementation of the rule. Kevin Shea, APHIS Director, stated in the teleconference, "We will be trying to identify the facilities that aren't currently licensed that should be licensed under the rule. We'll be doing this, using publicly available data - breed registries, advertisements that folks are doing on the internet, etc., to identify the facilities that we need to approach about getting licensed." APHIS is still finalizing their "outreach" plan and we will share that information when it becomes available.
The AWA Standards of Care for housing, facilities, exercise, cleaning, sanitization, employees, housekeeping, and pest control will not be revised.
Living under USDA licensing is NOT an option for the average home-based retail seller. The average house cannot be converted to a USDA compliant facility. Federal standards for licensed facilities dictate sanitation measures not feasible in a normal home, surfaces that are impervious to moisture, ventilation, bio-hazard control, veterinary care, exercise, temperature controls, waste disposal systems, diurnal lighting, drainage systems, washrooms, perimeter fencing, as well as transportation standards for regulated animals.
We are very concerned about the Q&A section regarding use of your homes. The answer is disingenuous and we trust those who have read it do not believe they can continue utilizing their homes once they are licensed. The revised APHIS Q&A asks the question: Will regulated breeders who keep their dogs in their homes have to put them in a kennel? APHIS answers "generally not" and proceeds with a misleading explanation that APHIS will determine if your home meets their standards; and states that a number of currently licensed wholesale breeders maintain their animals in their homes.
IF you can give up a room in your house and convert it to be the moisture proof, sterile environment described above, AND gain approval from an APHIS inspector, you may be able to crate or pen animals in that room. This room would then be for either adults or puppies/kittens but not both. Under the USDA standards puppies and kittens under 4 months of age cannot be housed in the same primary enclosure with adults, other than the dam/queen or foster dam/queen. Since the remainder of your house does not meet the above requirements, allowing animals to roam freely would cause you to be in violation of the AWA. And unless your bedroom is coated in epoxy and has a floor drain, you won't be doing any whelping there.
A separate facility will be needed for females by two weeks prior to whelping. Even if you make one room in your house compliant with the AWA standards, females cannot be whelped in that room. That means an additional room will be required, plus one for each additional litter within the next 3.5 months.
Any room in your home used for whelping or birthing must meet USDA standards – impervious to moisture – meaning tile floor and vinyl-coated walls.
All surfaces touched by animals must be waterproof and sterilized every two weeks with your choice of live steam under pressure, 180 degree water and detergent with disinfectant, or a combination detergent/disinfectant product.
You must have a separate food preparation area from your kitchen.
In addition to a written exercise plan and veterinary plan you must now have an emergency plan that documents your awareness and understanding of your responsibility to protect your animals in emergency situations.
The USDA license may classify you as a commercial business. You will need to know the allowed uses for your property in the current zoning and land use regulations and whether home businesses are allowed. Your property tax status may be affected and your tax liabilities could change, depending on state and local laws.
Finally, your information, photos of your property, and inspection reports will be the subject of Freedom of Information Act requests by activists. Inspectors will always write you up for something or it looks as if they are not doing their jobs, thus giving activists something to read and complain about. Activists are not above taking the information out of context and using it to suit their purposes.
The new rule centers on shipping sight-unseen which at this time presents unanswered questions, and could target you for investigation as to whether you need a license. Until APHIS issues meaningful dialogue on their intentions and we know how inspectors should interpret the new rule, it might be best to delay use of commercial shipping if possible. If you have more than four females, rely on shipping to keep your program viable, and have no alternative options, then you will have to contact USDA and ask for an application kit and begin the licensing process.
When you contact APHIS with questions, record the answers. If you make the decision to go forward and apply for a license, record the conversations and the inspections and have a witness with you during the pre-licensing process.
It is impossible to predict the full impact and potential damage on breeders once this rule is actually in place and enforcement begins. In the meantime, please do not start reducing your kennels, catteries, and small businesses, and jeopardize the years of hard work that went into building your breeding programs. There is more to learn on this rule and what can be done so that we can continue to pursue our hobbies, avocations, and livelihoods. Many people are working on your behalf and we will not go down quietly.
Cross posting is encouraged.
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