Analysis of PAWS (SB1139/HR2669)

-- Click here for more information about PAWS -- To help dog owners better understand the...

-- Click here for more information about PAWS --

To help dog owners better understand the recently introduced PAWS legislation, please see the bill analysis below as prepared by Dr. James Holt, AKC's federal government relations consultant.

SECTION BY SECTION ANALYSIS OF S. 1139/H.R. 2669, THE "PET ANIMAL WELFARE STATUTE" (PAWS) INTRODUCED MAY 26, 2005.

Sec. 1. Short Title

This Act is named the "Pet Animal Welfare Statute of 2005".

Sec. 2. Definitions

This section rearranges the definitions in Section 2 of the Act to place them in alphabetical order, amends the definition of the term "dealer" and adds a definition of the term "retail pet store".

Analysis

Current law defines as a dealer any person who sells dogs for research, teaching, exhibition, or for use in hunting, breeding, security or as a pet and is not a "retail pet store", but does not define the term "retail pet store". The USDA,by regulation, defines a "retail pet store" as any person who sells dogs for hunting, breeding or security or use as a pet exclusively at retail. This regulatory interpretation has been challenged in court as overly broad, but has been upheld. The AKC participated as an amicus in defending the USDA's regulatory interpretation.

It is important to note that current law does not contain any exemption for hobby and show breeders. Hobby and show breeders are exempt from licensing based on the "retail pet store" statutory exemption, coupled with the USDA's regulatory interpretation that any person who sells dogs exclusively at retail is a retail pet store. Thus, hobby and show breeders are currently exempt from regulation solely by virtue of being classified as retail pet stores. While the USDA has interpreted the term retail pet store broadly in regulation for the more than 30 years since the enactment of this exemption, it is just a regulatory interpretation, and it could be changed simply by the USDA writing and justifying a new regulation.

When the current definition of dealer and the exemption for retail pet stores was enacted, the language did, as a practical matter, separate commercial from amateur breeders, because, as a practical matter, it was difficult to sell large numbers of puppies without resorting to selling at least some of them at wholesale. However, with the advent of the internet and mass media outlets, this is no longer true. The USDA, our own inspectors and fancy, and the animal welfare community are all now aware of large breeders who, by any reasonable definition of the term are commercial breeders, but who sell all of their animals at retail over the internet and/or through mass media. These breeders raise dozens, or even hundreds, of litters a year. Yet because all of the puppies are sold at retail, they evade any federal regulation. In the last few years, persons have begun importing increasing numbers of puppies for resale, also largely over the internet and/or through the mass media, although some auction houses and retail pet stores are also importing puppies directly for resale. Since these puppies are bred and raised overseas, and sold directly at retail by the importers, they are completely outside the legal reach of the USDA.

The section amends the definition of "dealer" to include persons who sell dogs at retail regardless of whether or not they bred any of the dogs or cats sold, unless the person is a retail pet store, narrowly defined, or a hobby or show breeder, narrowly defined. It brings under federal regulation persons who import dogs and/or sell dogs at retail who do not meet one of three exemption criteria: (1) they sell 25 or fewer dogs per year; (2) they sell only dogs or cats which they bred or raised on their own premises and whelp 6 or fewer litters per year; or, (3) they meet the statutory definition of a retail pet store. Note the use of the word "or" in the statute. A toy breeder, for example, who sells 25 or fewer dogs per year would not be a dealer, even if they whelped more than 6 litters.

To be defined as a dealer a person must sell dogs "in commerce, for compensation or profit". This language should exclude legitimate not-for-profit rescue groups, shelters, and the like. The language for defining such groups will have to be fleshed out in regulations, however the USDA currently exempts not-for-profits, and there is no reason to believe they will not continue to do so. On the other hand, we will want to advocate for covering organizations that make a profit from importing and/or selling dogs, even if they call themselves shelters or rescue organizations. (The AKC will need to be active in the regulation writing process.)

With respect to co-breeders and co-owners, the USDA defines as the seller of a dog the person who operates the premises from which the dog is sold, not other co-owners or co-breeders. Analogizing from current regulations, the puppies sold from the premises of each party would be attributed to that pary. Puppies sold from the premises of one co-breeder would not be attributed to the other co-breeder.

The amended definition will bring importers, internet retailers and other mass market retailers under regulation, an important goal for protecting purebred dogs. It also for the first time will give hobby and show breeders a specific statutory exemption, rather than having to rely on being classified as retail pet stores.

Sec. 3 Access to Source Records for Dogs and Cats.

This section amends Section 10 of the Act pertaining to required recordkeeping by adding a subsection requiring that all persons defined as "dealers" and "retail pet stores" prepare, retain and make available for inspection by the Secretary records of the name and address of all persons from whom each cat or dog is acquired and whether that person is required to be licensed under the Act.

Analysis

Section 10(a) [as redesignated by the PAWS] of the Act sets forth the authority of the Secretary to require dealers and exhibitors to prepare, retain, and produce upon request records set forth by the Secretary in regulations. Since this requirement applies only to persons defined as "dealers", and the term specifically excludes retail pet stores (and by interpretation, all persons who sell exclusively at retail), the Secretary does not have explicit authority under current law to obtain source records from persons who acquire dogs for resale at retail. The PAWS is intended to strengthen the Secretary of Agriculture's ability to enforce the Act by providing the Secretary the authority to obtaining records from dealers and retail pet stores of the source of the animals they acquire, so that the Secretary can determine whether the entities who sell animals to retailers are properly licensed.

Current law requires all persons to be licensed by the Secretary if they sell more than 25 dogs at wholesale and maintain 3 or fewer breeding females. However, current law does not give the Secretary of Agriculture authority to obtain records of the persons from whom retail pet stores and other persons who sell dogs at retail acquire dogs. This is because under current law, the Secretary has authority only over "dealers", and retail pet stores and others who sell dogs at retail are excluded from the definition of dealer. Furthermore, if the Secretary suspects an operation is required to be licensed and is not, the Secretary can not go directly to the operation and inspect records, because the operation can claim exemption. If this happens, the Secretary must engage in a difficult, expensive and time consuming investigation to obtain evidence sufficient to prosecute an entity which is evade licensing. As a consequence, violation and evasion of the licensing requirement of the Act is rampant. It is estimated that there may be as many as twice as many entities who qualify as dealers and are required to be licensed under current law as are actually licensed. Often, "puppy mills" exposed by sensationalized media stories turn out to be establishments that should have been licensed and inspected by the USDA but were evading the requirement.

This provision is opposed by the retail pet store lobby because they see it as a "slippery slope" toward regulation of retail pet stores under the Act. It is also oppose by some in the industry, who claim that the Secretary of Agriculture already has the authority under the Act to obtain source information from retail pet stores. While there is some merit to this view, the USDA has consistently maintained that it does not have such authority. This provision will unambiguously provide the authority. The industry also claims that the provision is unnecessary because if the Secretary were to request such records from retail pet stores, the stores would voluntarily comply. That argument is, of course, very disingenuous.

Sec. 4. Extension of Temporary Suspension Period.

This section amends Section 19(a) of the Act pertaining to the Secretary's authority to temporarily suspend the license of dealers by adding a new subsection providing that if a suspension of a license is the result of a violation that places the health of an animal in serious danger, and the Secretary believes the violation is likely to continue after the expiration of the 21-day limitation on suspensions provided in Section 19(a)(1) [as redesignated by the PAWS], the Secretary may extend the suspension until the health of the animal is no longer in imminent danger, but not more than 60 days.

Analysis

Section 19(a) gives the Secretary authority to suspend or revoke licenses of dealers for violations of the Act only for a maximum of 21 days without notice and an opportunity for a hearing. Longer suspensions or revocations require notice and an opportunity for a hearing. As a practical matter, it is impossible to provide notice and an opportunity for a hearing within this 21 day period. Such proceedings, even when they are expedited, can take several months or longer. Therefore, the Secretary is in a position of having to reinstate licenses after 21 days, whether the violation has been corrected or not. In "puppy mill" exposes, the media make much over the fact that even egregious violators have had their licenses reinstated by the USDA. In addition, the threat of license suspension has very little deterrent value, because most commercial breeders can withstand a 3 week suspension, even if it occurs, without serious financial harm.

This provision is intended to extend the Secretary's suspension authority and give it real deterrent value in the very limited circumstance where a violation places the health of an animal in serious danger. In other words, an extended suspension can not be levied for paperwork violations or other minor violations. Because a 60-day suspension is long enough to have serious economic consequences, and render stock unmarketable, we believe this will provide a strong incentive to operators to quickly correct violations that put the health of an animal in serious danger, and therefore will be infrequently used.

Sec. 5. Authority to Apply for Injunctions.

This section amends Section 29 of the Act pertaining to obtaining temporary restraining orders and injunctions against violators of the Act to add an additional basis upon which an injunction may be sought and by providing authority for the Secretary to directly seek injunctions rather than having to request the Attorney General to do so.

Analysis

Under current law, if an operation continues to operate after its license is suspended or revoked, there is very little the Secretary can do about it, for two reasons. First, under current law the only bases under which the Secretary can seek a restraining order or injunction is if it can prove that an operation is dealing in stolen animals (which is rarely the case) or it can show that the health of an animal is in serious danger. If an operation merely refuses to obtain a license, or continues to operate with a suspended or revoked license, there is little the Secretary can do to compel the operation to comply, because of the limitation of current law. So an operation that is not licensed and operates in violation of standards can not, as a practical matter, be shut down.

Second, even if the Secretary does have the basis for obtaining a restraining order or injunction, the Secretary can not go to court directly to obtain it. Instead, it must go to the local U.S. attorney and convince the U.S. attorney to set aside its terrorism cases, its capitol murder and rape cases, its white collar crime cases, etc. to prosecute a "cat and dog case". Consequently, very few such cases are ever prosecuted. Violators know that, and know that they can continue to operate with impunity.

This provision is designed to correct both of these shortcomings by providing the Secretary with the authority to go to court directly to obtain restraining orders and injunctions and to add operating without a currently valid license as an additional basis for seeking such a restraining order or injunction.

Sec 6. Conforming Amendment.

This section amends Section 3 of the Act by removing language in conflict with the definition of dealer proposed by the PAWS, and by removing a provision allowing persons not required to be licensed under the Act to voluntarily apply for licenses.

Sec. 7. Effect on State Law.

This section clarifies that the PAWS does not pre-empt state laws containing stricter requirements.