BY DAN FLYNN | NOVEMBER 3, 2013
Friday’s ruling by U.S. District Court Judge Christina Armijo surprised me.
I was expecting New Mexico’s top federal judge to issue a permanent injunction against USDA from providing equine inspection services. Then I thought Department of Justice attorneys assigned to represent USDA would appeal to the 10th Circuit Court of Appeals where Armijo’s ruling would be reversed.
My thinking was that New Mexico’s political leadership, from both parties, are enough anti- horse slaughter that the body politic would influence Armijo. It was part of a stereotype I’ve created in my own mind about New Mexican political groupthink.
But surprise me she did, especially by nailing the legal reasoning I thought we would see from a 10th Circuit panel of judges. After reading Armijo’s 33-page decision, I was struck by how clear everything looks now. With some tweaking along the way, Congress has for more than a century tasked USDA with inspecting meat and meat products, be it from beef, lamb, pork, horse or whatever else has hooves.
The legal challenge was based on apparently misguided readings of the National Environmental Policy Act (NEPA) and the Administrative Procedures Act (APA). Both are about government decision-making where discretion exists, not where government action is mandated.
USDA has a job to do, albeit one that some find unpopular. More at Food Safety News
Sunday, November 3, 2013
Thursday, October 31, 2013
APHIS RETAIL PET SELLERS RULE: Does APHIS have authority to enact this rule?
Re: Docket ID: APHIS-2011-0003, Animal Welfare; Retail Pet Stores and Licensing Exemptions
APHIS issued the Notice of Proposed Rulemaking May 16, 2012. The final rule was published in the federal register September 18, 2013 and goes into effect November 18, 2013. This Rule would extend APHIS authority to include large segments of the retail pet trade as regulated under the Animal Welfare Act (AWA), including pet species as dogs, cats, guinea pigs, rabbits, and hamsters, among others. The overarching intent of the revision is to regulate sight unseen retail pet sales, which, without proof, APHIS claims have dramatically increased as a result of growing Internet usage.
In May, 2010, APHIS received severe criticism from the USDA Office of Inspector General (OIG) regarding lax enforcement of currently licensed dog breeders in the report, “Inspections of Problematic Dealers”. In June 2010 APHIS announced a plan to improve consistency in Animal Care inspectors’ approach for inspections, provide more complete guidance to its employees, and improve regulation of dog dealers particularly those who are repeat offenders. As part of the Longer Term Actions included in the original Enhanced Animal Welfare Act Enforcement Plan in May 2010 APHIS set the following goal: “Develop regulations regarding Internet sales. This will transpire once legislation is passed to close a loophole in the law and enable APHIS to regulate this area of the industry.”
http://www.usda.gov/oig/webdocs/33002-4-SF.pdf
It is very clear APHIS believed this measure was specifically dependent upon legislation; however, unwilling to wait for Congressional action and pressured by the Humane Society of the United States (HSUS), APHIS added the following comment to their enforcement plan in a report which was undated but, from text dates, obviously compiled after May 31, 2011: “USDA has determined that it has legislative authority to regulate Internet sales. A proposed rule will be submitted for departmental clearance in spring 2011 and published in the Federal Register for public comment in fall 2011.”
http://www.aphis.usda.gov/newsroom/content/2010/05/AWA_enforcement_plan.shtml
The retail pet store revision would not improve enforcement of substandard current license holders, the major focus of the original OIG report, but would instead regulate many retailers, hobbyists, rescues, and small business entities far above APHIS claims of closing a so-called “Internet loophole” and restoring the original intent of Congress for administration of the AWA.
It is our impression that the current APHIS administration finds it immaterial that the existing definition of retail pet store and method of enforcement has been upheld in a court of law. Decided January 14, 2003, Doris Day Animal League (DDAL) v. Ann M. Veneman (Secretary, USDA) provides compelling arguments for retaining the construct between wholesale and retail sellers. The issue at hand was to determine if the traditional exemption under pet retail store definition, which exempted breeders who sell dogs as pets from their residences, was valid. In his opinion, Circuit Judge Randolph noted “Hundreds of thousands of dog breeders throughout the United States raise and sell puppies from their homes. Still it is true that in the years since passage of the Act and the Secretary's adoption of the regulation, Congress has not altered the regulatory definition of ‘retail pet store’ although it has amended the act three times.” At that time USDA declined to amend the definition in light of the potential invasions of privacy that would result if federal inspectors began enforcing regulations in private homes. USDA also maintained if they were to regulate these dealers in addition to state and local officials, it would clearly not be the most efficient use of their resources.
Efficient use of resources is just as relevant today, if not more so, considering the agency’s current budget challenges and the general state of the nation’s economy. The proposed rule threatens to exponentially increase the number of entities requiring licensure. Without a corresponding increase in inspection staff, the ability of APHIS to effectively enforce the AWA will be compromised. Besides not being economically feasible, there are many state and local laws and ordinances already in place to monitor the welfare and housing for animals owned by residential retail breeder/sellers.
Revisiting Judge Randolph’s opinion regarding Congressional intent, he stated, “While the regulation's definition of ‘retail pet store’ does not exactly leap from the page, there is enough play in the language of the Act to preclude us from saying that Congress has spoken to the issue with clarity. From what we can make out, Congress has paid little attention to the question posed in this case. Still, it is true that in the years since passage of the Act and the Secretary's adoption of the regulation, Congress has not altered the regulatory definition of ‘retail pet store’ although it has amended the act three times. One line of Supreme Court cases holds that ‘when Congress revisits a statute giving rise to a longstanding administrative interpretation without pertinent change, the “congressional failure to revise or repeal the agency's interpretation is persuasive evidence that the interpretation is the one intended by Congress.”’ Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 846 (1986) (quoting NLRB v. Bell Aerospace Co., 416 U.S. 267, 275 (1974)). The quotation fits this case perfectly.” http://www.cadc.uscourts.gov/internet/opinions.nsf/A30825ECFA88D2C985256F82005F4853/$file/01-5351a.txt
We agree with the Court’s decision and do not think that several decades ago, Congress ever intended USDA to enforce the AWA inside people’s homes. However, now that the current APHIS administration has elected to make a determination granting themselves additional authority of such magnitude, we believe Congress is now obligated to review this issue, and should do so as quickly as possible.
APHIS issued the Notice of Proposed Rulemaking May 16, 2012. The final rule was published in the federal register September 18, 2013 and goes into effect November 18, 2013. This Rule would extend APHIS authority to include large segments of the retail pet trade as regulated under the Animal Welfare Act (AWA), including pet species as dogs, cats, guinea pigs, rabbits, and hamsters, among others. The overarching intent of the revision is to regulate sight unseen retail pet sales, which, without proof, APHIS claims have dramatically increased as a result of growing Internet usage.
In May, 2010, APHIS received severe criticism from the USDA Office of Inspector General (OIG) regarding lax enforcement of currently licensed dog breeders in the report, “Inspections of Problematic Dealers”. In June 2010 APHIS announced a plan to improve consistency in Animal Care inspectors’ approach for inspections, provide more complete guidance to its employees, and improve regulation of dog dealers particularly those who are repeat offenders. As part of the Longer Term Actions included in the original Enhanced Animal Welfare Act Enforcement Plan in May 2010 APHIS set the following goal: “Develop regulations regarding Internet sales. This will transpire once legislation is passed to close a loophole in the law and enable APHIS to regulate this area of the industry.”
http://www.usda.gov/oig/webdocs/33002-4-SF.pdf
It is very clear APHIS believed this measure was specifically dependent upon legislation; however, unwilling to wait for Congressional action and pressured by the Humane Society of the United States (HSUS), APHIS added the following comment to their enforcement plan in a report which was undated but, from text dates, obviously compiled after May 31, 2011: “USDA has determined that it has legislative authority to regulate Internet sales. A proposed rule will be submitted for departmental clearance in spring 2011 and published in the Federal Register for public comment in fall 2011.”
http://www.aphis.usda.gov/newsroom/content/2010/05/AWA_enforcement_plan.shtml
The retail pet store revision would not improve enforcement of substandard current license holders, the major focus of the original OIG report, but would instead regulate many retailers, hobbyists, rescues, and small business entities far above APHIS claims of closing a so-called “Internet loophole” and restoring the original intent of Congress for administration of the AWA.
It is our impression that the current APHIS administration finds it immaterial that the existing definition of retail pet store and method of enforcement has been upheld in a court of law. Decided January 14, 2003, Doris Day Animal League (DDAL) v. Ann M. Veneman (Secretary, USDA) provides compelling arguments for retaining the construct between wholesale and retail sellers. The issue at hand was to determine if the traditional exemption under pet retail store definition, which exempted breeders who sell dogs as pets from their residences, was valid. In his opinion, Circuit Judge Randolph noted “Hundreds of thousands of dog breeders throughout the United States raise and sell puppies from their homes. Still it is true that in the years since passage of the Act and the Secretary's adoption of the regulation, Congress has not altered the regulatory definition of ‘retail pet store’ although it has amended the act three times.” At that time USDA declined to amend the definition in light of the potential invasions of privacy that would result if federal inspectors began enforcing regulations in private homes. USDA also maintained if they were to regulate these dealers in addition to state and local officials, it would clearly not be the most efficient use of their resources.
Efficient use of resources is just as relevant today, if not more so, considering the agency’s current budget challenges and the general state of the nation’s economy. The proposed rule threatens to exponentially increase the number of entities requiring licensure. Without a corresponding increase in inspection staff, the ability of APHIS to effectively enforce the AWA will be compromised. Besides not being economically feasible, there are many state and local laws and ordinances already in place to monitor the welfare and housing for animals owned by residential retail breeder/sellers.
Revisiting Judge Randolph’s opinion regarding Congressional intent, he stated, “While the regulation's definition of ‘retail pet store’ does not exactly leap from the page, there is enough play in the language of the Act to preclude us from saying that Congress has spoken to the issue with clarity. From what we can make out, Congress has paid little attention to the question posed in this case. Still, it is true that in the years since passage of the Act and the Secretary's adoption of the regulation, Congress has not altered the regulatory definition of ‘retail pet store’ although it has amended the act three times. One line of Supreme Court cases holds that ‘when Congress revisits a statute giving rise to a longstanding administrative interpretation without pertinent change, the “congressional failure to revise or repeal the agency's interpretation is persuasive evidence that the interpretation is the one intended by Congress.”’ Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 846 (1986) (quoting NLRB v. Bell Aerospace Co., 416 U.S. 267, 275 (1974)). The quotation fits this case perfectly.” http://www.cadc.uscourts.gov/internet/opinions.nsf/A30825ECFA88D2C985256F82005F4853/$file/01-5351a.txt
We agree with the Court’s decision and do not think that several decades ago, Congress ever intended USDA to enforce the AWA inside people’s homes. However, now that the current APHIS administration has elected to make a determination granting themselves additional authority of such magnitude, we believe Congress is now obligated to review this issue, and should do so as quickly as possible.
Tuesday, October 15, 2013
Legislation Briefs and APHIS Rule Update October 14, 2013
SAOVA Friends,
Since APHIS announced the Final Retail Pet Store Rule a number of commentaries have surfaced as groups and individuals attempt to interpret this rule and provide guidance. The overarching intent of the revision is to regulate sight unseen sales which APHIS claims have dramatically increased as a result of growing internet usage. APHIS has determined that their mission to enforce regulation of listed animal species under the Animal Welfare Act (AWA) now includes those sold in retail as well as commercial markets.
The revised language as set in the APHIS rule now has the force and effect of law. Anything else stated by APHIS staff in response to questions should only be considered as an explanation of pending policy. These policies are not only open to interpretation by individual inspectors, but can be modified by the agency at any time.
Part 3 of the AWA details the Standards of Care for housing, facilities, exercise, cleaning, sanitization, and housekeeping required under USDA/APHIS regulation. Standards will not be revised for home-based retail sellers as APHIS cannot privilege newly licensed breeders over currently licensed breeders. The Final Rule notes: “Several of these commenters suggested that we amend part 3 in the final rule to establish alternate, performance-based standards for dog and cat fanciers and other small-scale residential breeders. We are making no changes in response to these comments. The comments were predicated on an assumption that it will be cost-prohibitive for most residential breeders who are regulated as a result of this rule to meet the standards in part 3; we do not consider that to be the case. (Page 63 of 91)
Below is a short list of noteworthy statements from the Final Rule Discussion of Comments regarding who APHIS intends to license. Access this document at http://www.saova.org/APHIS_rulemaking.html
1. We consider private rescues and shelters that perform any of the activities listed in the definition of dealer, including transporting or offering animals for compensation, to be dealers. We consider acts of compensation to include any remuneration for the animal, regardless of whether it is for profit or not for profit. Remuneration thus includes, but is not limited to, sales, adoption fees, and donations. (Page 13 of 91)
2. If an individual is selling animals at retail for breeding purposes, that individual is not a dealer. We do, however, share the concern that claiming breeding purposes as the purpose for an animal’s retail sale could be subject to abuse. Therefore, if we were to receive word that individuals making such claims are, in fact, marketing their animals as pets, we would consider this to be grounds for initiating an investigation to resolve the matter. (Page 15 of 91)
3. Those who own more than four breeding females and wish to continue selling the offspring as pets, sight unseen, can do so by obtaining a license and allowing APHIS inspectors to inspect their facility. (Page 24 of 91)
4. As is the case with commercial pet retailers, representatives of rescue groups also must be physically present at a place of business so that potential buyers/adoptees can personally observe their animals before purchasing and/or taking custody of them. (Page 35 of 91)
5. In instances where there is some question about the method of sale, APHIS will conduct an investigation and determine whether a sight unseen sale has occurred. (Page 36 of 91)
6. APHIS investigates all credible reports we receive of unlicensed activities involving sales of covered pets. (Page 39 of 91) Note: APHIS stated in a conference call hosted by AKC that complaints of noncompliance will be accepted by email and through their web site and can be anonymous.
7. Farm animals intended for use as food, fiber, or other purposes specified under the definition of farm animal in § 1.1 are exempt from regulation, regardless of whether those animals are sold face-to-face or sight unseen. Farm animals sold specifically as pets in face-to-face transactions are also exempt from licensing. (Page 41 of 91)
8. If sellers of such [working] dogs also sell dogs at retail for pets, any female dogs bred to produce puppies for sale would be counted as breeding females. (Page 57 of 91)
The commentary contains considerable discussion of Breeding Females and Offspring as the final rule exempts anyone who maintains a total of four or fewer breeding female dogs, cats, and/or small exotic or wild mammals, and who sells only the offspring of these dogs, cats, and/or small exotic or wild mammals, which were born and raised on his or her premises. It is important to note that the word “maintains” includes any breeding female even temporarily residing at that premise, and that the exemption refers to the aggregate number of females on premise regardless of species. It is ultimately an APHIS inspector’s responsibility to decide whether an animal is a breeding female and, generally, APHIS assumes that any female capable of breeding may be bred.
When the rule was proposed in 2012 there was uncertainty regarding its effect on sales of farm animals because the definition of retail pet store names domestic farm animals in the list of covered animals. We were told by APHIS personnel this was not an issue as farm animals were excluded from AWA regulation by definition. However, the Final Rule Discussion of Comments raises this concern once again. APHIS acknowledges that farm animals intended for use as food, fiber, or other purposes specified under the definition of farm animal in § 1.1 are exempt from regulation, then adds “Farm animals intended to be used as pets, for biomedical research, or other nonagricultural research are regulated under the AWA. APHIS further stipulates (Page 41) “Farm animals sold specifically as pets in face-to-face transactions are also exempt from licensing.” Does this provision imply that shipping a “farm animal” as a pet requires a license?
APHIS repeatedly states they will determine who requires a license on a case by case basis. We would strongly advise having an attorney assist you in any dealings with APHIS regarding these decisions.
Thanks for reading. Cross posting is encouraged.
Susan Wolf
Sportsmen's & Animal Owners' Voting Alliance
Working to Identify and Elect Supportive Legislators
saova@earthlink.net
UKC COMMENTARY ON NEW USDA RULES
Posted by Sara Chisnell, UKC Legal Counsel under Your Dog, Your Rights
By now, most of you have heard that some changes have been made to the Animal Welfare Act (AWA) that affect dog breeders, but there has been a lot of confusion on exactly how these changes work. I will attempt to clarify and simplify, to the best of my knowledge, but many of the definitions and applications remain unclear.
First of all, what is the AWA? In a nutshell, the AWA was originally created in order to oversee the humane treatment of animals used in research, and was later expanded to include transporting and dealing animals, as well. The law delineates who must be licensed and subsequently adhere to regulations and standards. Dog breeders who sell pets only at retail, and “retail pet stores”, are exempted from the AWA. The changes to the AWA revise and narrow the definition of “retail pet stores”.
The AWA regulates and requires dealers to be licensed and inspected. A “dealer” is defined as “any person who, in commerce, for compensation or profit, delivers for transportation, or transports, except as a carrier, buys, sells, or negotiates the purchase or sale of: Any dog or other animal whether alive or dead (including unborn animals, organs, limbs, blood, serum or other parts) for research, teaching, testing, experimentation, exhibition, or for use as a pet, or any dog at the wholesale level for hunting, security or breeding purposes.” “Retail pet stores” or anyone who sells dogs at retail for “hunting, breeding or security purposes” are exempt from licensing.
Who will be affected by this definition change? It might not be as sweeping and over-inclusive as it first appeared. Basically, the dog breeders it will affect will be those who sell dogs sight unseen, have more than four (4) “breeding females”, and sell dogs as pets. Sounds simple, right? Not so much. Read commentary at link: http://tinyurl.com/mlwqwxj
USDA ORDERS FOSTER FOODS TO CLEAN-UP PLANTS
Foster Farms in California was told to clean-up or shut down after three of their California plants were linked to a salmonella outbreak. This week Foster Farms issued a press release stating plants would stay open. “USDA Food Safety and Inspection Service (FSIS) today reviewed Foster Farms’ safety plan for its three California facilities in Livingston and Fresno. This follows Foster Farms’ implementation of several new food safety controls over the last two months and the company’s commitment to install added processes during an enhanced inspection period over the next 90 days.”
The CDC reported in July of 2013 that testing of samples traced back to two Foster Farms slaughter establishments. The CDC also reported that some of the salmonella strains detected were showing resistance to antibiotics. The L.A. Times reported a statement by John Glisson, director of research for the U.S. Poultry & Egg Assn., defending the use of antibiotics in agriculture. Glisson stressed that salmonella was a formidable challenge to the poultry industry. The bacteria grows in animals' intestinal tracts and is spread through feces. It can contaminate a chicken farm through water, feed, birds and rodents. When infected chicken waste dries, salmonella can spread through dust.
Foster Farms was the first major broiler chicken producer in the nation to carry the American Humane Association seal, ensuring consumers that its farms meet the nonprofit's animal welfare guidelines for raising poultry. Sources: CDC , Foster Farms, LA Times, SF Gate
HSUS SEEKS REGULATION CHANGE IN KANSAS
Proposed changes to the Kansas Pet Animal Act (KPAA) are being considered by a House-Senate committee which will forward its recommendations to the full Legislature when the 2014 session starts in January. HSUS state director, Midge Grinstead, called for more inspections of breeders to make sure that animal housing standards are being met. Advocates claim current regulations are inadequate to ensure animals in crowded conditions have adequate water, are subject to proper temperatures, and given enough room to move around. Several committee members said they did not see the need to regulate "hobby" breeders or animal training businesses. HSUS included 11 Kansas breeders in their Horrible Hundred list — the third highest of the 20 states in the study.
MASSACHUSETTS PAWS ACT
New legislation filed by Minority Leader Bruce Tarr of Gloucester titled An Act Protecting Animal Welfare and Safety (PAWS Act) would raise animal cruelty fines and penalties. Second or subsequent offenses would have increased penalties from 5 to 10 years in state prison and fines up to $20,000. The legislation would create an anonymous animal abuse tip hotline and impose a fine of up to $1,000 on any veterinarian who fails to report a suspected act of cruelty to an animal. A statewide registry of individuals convicted of animal abuse crimes would be established, and all animal shelters, pet stores or animal breeders would be required to check the registry prior to offering, selling, delivering, or giving an animal to any individual.
PENNSYLVANIA SB1126 MOVES DOG LAW TO HEALTH DEPARTMENT
Introduced October 10, 2013 by Senators Dinniman, Alloway, Erickson, Vogel and Greenleaf, SB1126 amends the Dog Law by moving responsibility from the Department of Agriculture to the Department of Health. The Department of Health would carry out all the administrative and oversight tasks currently required by the Dog Law, including the regulation of dog kennels; the collection of complaints and tips alleging violations of the Dog Law; the seizure of dogs from illegal, unlicensed kennels; and the collection of dog-license, kennel and out-of-state-dealers fees. Senators Dinniman (D, Chester) and Alloway (R, Franklin) state with Dog Law enforcement in the Department of Agriculture, dogs are treated as any other agricultural product and moving them under the responsibility of the Department of Health correctly changes the focus to health, welfare and safety. Senators Dinniman and Alloway plan to unveil a package of bills October 22 with a public dog rally at the Capitol.
COBB COUNTY GA ANIMAL ABUSE UNIT
Cobb District Attorney Vic Reynolds names Sherwin Figueroa and Theresa Schiefer, who both joined the District Attorney’s Office earlier this year, as part of a new Animal Abuse Unit. His office prosecuted five felony aggravated cruelty to animal cases in 2011 and 2012 and, so far in 2013, there have been two cases indicted. Misdemeanor animal cases are prosecuted by the Solicitor General’s Office. Figueroa is an advocate of animal protection and serves as the vice president of the State Bar of Georgia’s Animal Law Section. Source: Marietta Daily Journal
Wednesday, September 25, 2013
Dear Congressman
We need everyone to write to Congress. As of this morning, the Final Pet Seller Rule is listed as the 5th most read on the Federal Register website among 2,133 notices and rules posted this month. Make sure your Congressman is aware of this rule. A short, easy letter is below for you to use. More examples will be posted in the coming week. Thank you.
Dear Congressman
I am writing today in opposition to the final rule issued by USDA/APHIS to revise the definition of retail pet store.
The rule changes the Animal Welfare Act (AWA) and USDA responsibility forever by granting authority for federal inspectors to invade the privacy of American homes in order to establish standards for pet care, sanitation, handling, and housing.
While the rule is promoted as closing an “Internet loophole” for unscrupulous puppy sellers, the rule’s dramatic expansion of the AWA would actually encompass many private citizens as well as multiple species of pets. The new rule centers on shipping pets sight unseen requiring certain sellers who do so to be federally licensed. This places unnecessary restrictions on the buyer by limiting the geographic area from which he can purchase a pet without excessive travel. Because the Internet has replaced many traditional advertising methods does not mean it should be used as an excuse to expand the agency's regulatory scope beyond its current enforcement capability.
Considering the agency’s current budget challenges and the general state of the nation’s economy, expansion of this magnitude is not only impractical but irresponsible and is not an efficient use of limited departmental resources.
Please intervene and help us stop this rule.
Sincerely,
Dear Congressman
I am writing today in opposition to the final rule issued by USDA/APHIS to revise the definition of retail pet store.
The rule changes the Animal Welfare Act (AWA) and USDA responsibility forever by granting authority for federal inspectors to invade the privacy of American homes in order to establish standards for pet care, sanitation, handling, and housing.
While the rule is promoted as closing an “Internet loophole” for unscrupulous puppy sellers, the rule’s dramatic expansion of the AWA would actually encompass many private citizens as well as multiple species of pets. The new rule centers on shipping pets sight unseen requiring certain sellers who do so to be federally licensed. This places unnecessary restrictions on the buyer by limiting the geographic area from which he can purchase a pet without excessive travel. Because the Internet has replaced many traditional advertising methods does not mean it should be used as an excuse to expand the agency's regulatory scope beyond its current enforcement capability.
Considering the agency’s current budget challenges and the general state of the nation’s economy, expansion of this magnitude is not only impractical but irresponsible and is not an efficient use of limited departmental resources.
Please intervene and help us stop this rule.
Sincerely,
Wednesday, September 18, 2013
APHIS Final Rule Revising Pet Seller Exemptions and You
SAOVA Friends,
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.
Susan Wolf
Sportsmen's & Animal Owners' Voting Alliance
Working to Identify and Elect Supportive Legislators
saova@earthlink.net
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.
Susan Wolf
Sportsmen's & Animal Owners' Voting Alliance
Working to Identify and Elect Supportive Legislators
saova@earthlink.net
Thursday, August 15, 2013
MO Supreme Court Decision - MoFed wins
Missouri Federation of Animal Owners (MoFed) has received word that the Supreme Court of the State of Missouri just handed down its decision on the HSUS vs. State of Missouri concerning shelter fees for shelters and rescues. The Supreme Court agreed with the lower court and ruled against HSUS in their effort to relieve licensed humane societies and shelters of paying the same fees as dog breeders in Missouri.
MoFed presented the idea in the state legislature and then Representative Brian Munzlinger attached the language to the omnibus agriculture bill several years ago. HSUS immediately filed a lawsuit which was ruled against all the way to the State Supreme Court. The 7 to 0 decision today is yet another defeat for HSUS!
MoFed held its ground and refused to let HSUS' attempts to pass legislation to circumvent the rulings of the courts. Defeating the efforts of HSUS in both the legislature and courts of Missouri is another win for animal owners and another sound defeat for HSUS!!! Read the Ruling
MoFed presented the idea in the state legislature and then Representative Brian Munzlinger attached the language to the omnibus agriculture bill several years ago. HSUS immediately filed a lawsuit which was ruled against all the way to the State Supreme Court. The 7 to 0 decision today is yet another defeat for HSUS!
MoFed held its ground and refused to let HSUS' attempts to pass legislation to circumvent the rulings of the courts. Defeating the efforts of HSUS in both the legislature and courts of Missouri is another win for animal owners and another sound defeat for HSUS!!! Read the Ruling
Thursday, July 11, 2013
Legislation Briefs and PUPS Update July 11, 2013
SAOVA Friends,
This will be a busy month for the members of Congress dealing with priority issues such as a new budget, the farm bill, student loans, and immigration laws, before returning to their districts for the August recess.
Concerns with the PUPS bill, HR847 / S395 do not need to take a backseat to any other legislation. Many of you have already written to your Congressman expressing your opposition, but please do so again. It is especially important to write to Congressmen who were newly elected last year to let them know PUPS is not the welfare bill that HSUS/ASPCA portray.
HR847 now has 127 cosponsors with 11 added during the month of June; S395 has 21 cosponsors with one added this week. HSUS has already sent out two email blasts this year urging their minions to send form letters to Congress from the HSUS website.
The HSUS synopsis is overly simplistic and misleading, stating PUPS closes a “loophole” that currently allows large, commercial breeders to sell puppies online or directly to the public and escape federal licensing and inspection requirements.
WHAT PUPS REALLY DOES
PUPS creates the new definition high volume retail breeder. A breeder only has to have interest or custody of one breeding female dog to fall under the first criteria test. The second criterion includes anyone who sells or offers for sale, via internet, phone, or newspaper more than 50 dogs in a year. Co-ownerships and location of co-owners, age/sex/ownership of the sold dogs are not taken into consideration. Rescue is not exempt.
PUPS reverses a long-standing, court tested basis for pet business licensing and regulation in the commercial sector.
PUPS fails to consider that sight unseen sales have always existed via magazines and printed media and are not a new phenomenon created by the Internet.
PUPS requires specific, excessive, and impractical space for physical exercise. It does not simply ensure that dogs have daily exercise as HSUS and supporters claim.
PUPS allows private, home/hobby breeders to be the subject of activist harassment and Freedom of Information Act requests.
Find more talking points to download for your letters to Congress at the SAOVA website: http://www.saova.org/PUPS.Campaign.html Please do this now! Flyers are also available to use next month when members of Congress are back at local offices.
The world not only belongs to those who show up, it's controlled by the best informed and most motivated. Follow SAOVA on Facebook!
Cross posting is encouraged.
Susan Wolf
Sportsmen's & Animal Owners' Voting Alliance
Working to Identify and Elect Supportive Legislators
saova@earthlink.net
FEDERAL NEWS
AFBF FILES SUIT TO PROTECT FARMERS’ PRIVACY
National farming groups are suing the Obama administration over concerns that thousands of farmers and ranchers will have their personal information compromised. The American Farm Bureau Federation and the National Pork Producers Council filed a lawsuit on Friday to prevent the Environmental Protection Agency (EPA) from responding to information requests from environmental groups that they worry could include personal details about farmers and their families. “We are sticking up for the tens of thousands of farmers and ranchers whose personal information would end up in the public domain,” Farm Bureau President Bob Stallman said in a statement. “This lawsuit is about the government’s unjustified intrusion into citizens’ private lives.” Source: The Hill blogs http://tinyurl.com/m352e3v
Read press release at American Farm Bureau newsroom
GROUPS SUE USDA OVER MEAT LABELING RULE
Eight meat industry groups from the United States and Canada have sued the U.S. Department of Agriculture over the country-of-origin labeling rule finalized in May. The American Meat Institute (AMI), American Association of Meat Processors, Canadian Cattlemen’s Association, Canadian Pork Council, National Cattlemen’s Beef Association, National Pork Producers Council, North American Meat Association and Southwest Meat Association joined in the lawsuit filed in U.S. District Court. The groups argue that the rule violates the Constitution by compelling speech without a substantial government interest; goes beyond the intentions of the original mandate; and is arbitrary and places undue burden on the industry. Read press release at AMI
HSUS FILES SUIT TO STOP HORSE SLAUGHTER
Following USDA's announcement late last week to issue an inspection permit to a New Mexico equine slaughter plant, animal rights organizations have filed suit against the agency and asked for an immediate injunction. HSUS and various organizations are suing under the National Environmental Protection Act, alleging the agency failed to conduct an environmental review before authorizing horse slaughterhouses to operate. The plaintiffs are represented in the case by Schiff Hardin, LLP and attorneys within The HSUS' Animal Protection Litigation section.
Aside from the New Mexico plant, FSIS said it expects requests for inspection from two more plants in Iowa and Missouri in the future.
Earlier HSUS filed a petition with USDA’s Food Safety and Inspection Service and the U.S. Food and Drug Administration to declare horsemeat unfit for human consumption. USDA denied that petition stating, “After carefully considering the issues raised in the petition and the supplemental statement, the Agency finds no merit in the assertion that all meat and meat food products from a horse without a proven lifetime history of all substances administered to it are adulterated under the FMIA. FSIS has concluded that its existing authority under the FMIA and implementing regulations, which include requirements for the disposition of livestock suspected of having biological residues, along with the Agency’s National Residue Program (NRP), will allow the Agency to ensure that carcasses and horsemeat products that bear the mark of inspection are safe for human food.” Full FSIS response http://tinyurl.com/k4ujk6d
RECREATIONAL FISHING AND HUNTING HERITAGE AND OPPORTUNITIES ACT
Introduced by Rep. Dan Benishek (R, MI-1) HR1825 directs Federal public land management officials to exercise their authority under existing law to facilitate use of and access to Federal public lands for fishing, sport hunting, and recreational shooting, and for other purposes. The bill establishes that Bureau of Land Management (BLM) and Forest Service lands are “open unless closed” to hunting, fishing and recreational shooting. HR1825 does not create hunting, fishing or recreational shooting opportunities where they are not already authorized; however it protects congressionally authorized activities from legal challenges that seek to interfere with authorized hunting, fishing and recreational shooting on federal land.
This important legislation was approved by the House Natural Resources Committee with a 28-15 vote and reported to the House Agriculture Subcommittee on Conservation, Energy, and Forestry.
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