The following is an interview with AKC's federal government relations consultant Jim Holt in response to dog owners' questions about PAWS. The article originally appeared in Dog News June 10th, 2005.
Who is regulated under current law and how would PAWS change that?
In simple terms, under current law persons who sell dogs for research, teaching, exhibition (which does NOT include dog shows), hunting, breeding or security purposes or as a pet are defined as “dealers” and are regulated, EXCEPT retail pet stores. There is a common misconception that hobby and show breeders are explicitly exempt under current law. This is not correct. We are exempt only because the U.S. Department of Agriculture (USDA), which administers the law, has chosen to classify us as retail pet stores. Under current regulatory interpretation, anyone who sells dogs only at retail is considered a retail pet store by the USDA, and is exempted.
The PAWS narrows the definition of “retail pet store” to include only actual stores, but puts a specific exemption into the law for small retail sellers and hobby and show breeders. It also, for the first time, classifies as dealers persons who import puppies for resale.
Why was this change proposed?
The change was proposed because there are a large and growing number of operations, including breeders and importers, who are breeding and/or selling large numbers of dogs exclusively at retail, over the internet or through mass media channels or other means, and therefore evading regulation. Importation of large numbers of puppies for resale also is a new phenomenon. The AKC has been bombarded with horror stories from fanciers about commercial imports of puppies, and there have been media exposes of breeders raising dogs under inhumane conditions but who evade regulation because they sell all their dogs at retail. These situations did not exist back in the 1970's when the Animal Welfare Act was written, but technology has changed the marketplace for dogs, and the law must change with it.
There is confusion about the numbers – which breeders are covered and which are not. Please put it in simple terms.
Persons are excluded from the definition of dealer if they (a) sell 25 or fewer dogs a year, or (b) sell only dogs bred or raised on their own premises and do not whelp more than 6 litters in a year, or (c) are a retail pet store. A person who meets EITHER criterion (a) or (b) is exempt. Therefore, a toy breeder who has 11 litters in a year, but averages only 2 puppies per litter, or a total of 22 puppies, would be exempt. Likewise, an Irish Setter breeder who whelps 6 litters in a year totaling 60 puppies would also be exempt.
For years you've been telling legislators they shouldn't regulate by numbers. Why did you change your mind?
We would have preferred a definition of hobby and show breeder that was not based on numbers, because we recognize that we will likely have to defend the number for the foreseeable future. But in the end neither we nor anyone else could come up with another legally sufficient definition that didn't create loopholes that would allow the entities that needed to be covered to escape coverage without resorting to a numerical criterion. The core criterion was “persons who breed or raise the dogs they sell on their own premises.” But without a limitation on the amount of breeding, even this definition would allow, for example Lancaster County family farmers who raise dogs as a “crop” to escape coverage. Sen. Santorum made clear to us that he was going to limit the amount of such breeding that would be unregulated. The provisions in PAWS were a compromise which we believe strikes a reasonable balance between protecting hobby and show breeders and covering commercial breeders.
Aren't hobby/show breeders already exempt in the AWA? Why are you caving in so we're no longer exempt?
As I said earlier, there is no exemption in current law for hobby and show breeders. We are exempt only because the USDA has chosen to classify us as “retail pet stores”. The discretion of the USDA to make that interpretation has been challenged and upheld by the courts. But the USDA is not locked into it. They could make a different interpretation at any time in the future based on changing circumstances, and the same litigation that successfully upheld their discretion to make their current interpretation would uphold their discretion to make a different one in the future. The USDA is also very aware of the growing problem of large commercial breeding operations that are escaping regulation by selling all of their puppies at retail, and eventually they will be forced to do something about it.
Did you cave in to animal rights extremists? Isn't Santorum an animal rights extremist?
I'm not going to speculate on Senator Santorum's views about animals rights. He has taken some extreme positions in the past, but to his credit, he has been willing to listen to the arguments pro and con his past proposals, and has had the courage to change his mind. Frankly, not too many politicians are willing to do that. He is now taking a very different tack than he did with the Puppy Protection Act. Most of his current bill, except the dealer provision, consists of provisions the AKC proposed as an alternative to the Puppy Protection Act. We evaluate legislation on its merits, not on the basis of what a legislator may have proposed sometime in the past. And we certainly can't oppose provisions we ourselves proposed, just because they are now supported by legislators with whom we've had differences in the past.
Did you or the AKC write this bill? Did you or the AKC collaborate with HSUS and DDAL?
This bill was written by Senator Santorum's staff. In preparing it, the Senator talked with many groups, including the AKC. Most of the provisions in the final bill, not including the dealer provision, were included in a bill proposed by the AKC several years ago as an alternative to Senator Santorum's Puppy Protection Act (PPA), which the AKC opposed. The AKC did not collaborate, or even discuss, this legislation with the HSUS or the DDAL until Senator Santorum held a meeting of the co-sponsors and various interest groups a few days before introduction.
Some critics have said this is just the Puppy Protection Act in a different form. Is that true?
Absolutely not. This bill is entirely different from the PPA. It does not set breeding standards such as the age and frequency of breeding, does not require socialization standards, and does not contain the “three strikes and your out” provision. There is nothing in this bill that resembles the PPA in any way.
But the bill does regulate some retail sellers. Did the AKC give up the very thing it successfully defended as an amicus with the USDA in fighting the DDAL lawsuit.
What that lawsuit defended was the USDA's discretion to interpret the retail pet store exemption in the way it did. But that also means that the USDA has the discretion to interpret that exemption differently in the future, should they feel the need to do so in order to effectively administer the Act. The fact that the USDA currently interprets hobby and show breeders who sell exclusively at retail as “retail pet stores” is not set in concrete, and could be changed with appropriate justification without any change in current law. With the enactment of the PAWS, we now have a small breeder exemption in statute, and it cannot be changed without further action by Congress. So we have strengthened, not weakened, our protection.
Some critics have said this bill doesn't have a chance to pass, and that we're merely infuriating our supporters with our support for a bill that can't pass. What is your response to that?
I believe this bill has a strong likelihood of passage, with or without the support of the AKC. Sen. Santorum is chairman of the subcommittee of jurisdiction in the Senate and a member of the full Senate Agriculture Committee, and the third ranking majority member of the Senate. Remember that his PPA passed the Senate easily in 2001, even though he was not even a member of the Agriculture Committee, and with the opposition of the AKC and virtually all other animal interest groups. This bill is a much better bill which will easily attract co-sponsor support. It will likely be attached to some other measure coming out of the Senate, as the PPA was, and therefore go directly to a conference committee without action by the House Agriculture Committee or the full House. Sen. Santorum will almost certainly be a conferee of that bill.
The AKC has been working for years with some commercial breeders to have them come into compliance and register with AKC. Won't they now feel that we've sold them out and take their business elsewhere?
This bill does not affect the status of commercial breeders already covered by the law, except to strengthen enforcement. The responsible commercial breeding community supports strengthened enforcement because negative publicity about bad operations hurts their industry most directly. There is nothing in this bill that creates an incentive for a commercial breeder to leave the AKC registry. On the other hand, breeders who have left our registry because of our mandatory inspection program will now be inspected whether or not they register with us and will have less incentive to leave, and perhaps even some incentive to return in order to receive the benefit of AKC registration.
If commercial breeders will now leave you and the fancy will leave you, what's going to happen to the AKC registry? Isn't the AKC, in effect, putting itself out of business?
As I've said above, there is nothing in this bill which creates an incentive for a commercial breeder to leave the AKC registry, nor for a hobby or show breeder to leave us. In fact, the dealer provisions of this bill cover less than 4 percent of all breeders who register with us, and that includes all those who are already required to be licensed.
Breeders don't want the government coming into their residences and telling them how to breed and raise a litter.
Unlike the PPA, this legislation doesn't tell breeders how to breed and raise puppies. The bill will not require persons to “build kennels”, which has been a common criticism. The regulations promulgated under the authority of this Act set certain minimum humane care standards which are not unlike those the AKC itself applies to the breeders it inspects. When this bill is enacted the USDA will have to write implementing regulations, including regulations covering breeders who raise puppies in their own homes. The AKC will certainly be involved in that process, and it is likely that our own standards will be a model the USDA will look to in crafting its regulations.
The AKC already inspects persons who breed 7 or more litters a year and sell more than 25 pups. Why does the USDA have to inspect them too? Can't you work something out with them where only one inspection is needed?
We have suggested to Senator Santorum the inclusion of language that will authorize the USDA to certify the inspection programs of non-governmental organizations such as the AKC and would support the addition of such a provision to the bill.
If this bill passes, will breeders who breed in quantities that qualify for regulation still be able to raise puppies in a whelping box in the kitchen, or will they have to build a kennel?
The USDA's current animal care regulations only cover breeders who sell at wholesale, and usually breed in large quantities, so the current regulations pertain to that environment. With the passage of PAWS, the USDA will have to write additional care regulations appropriate to high volume residential breeders. Nothing in the current law or in PAWS precludes regulated breeders from breeding and raising puppies in their own homes. The AKC is committed to working with the USDA to assure appropriate regulations for implementing all the provisions of the PAWS, including appropriate care regulations for residential breeders.
Will rescue organizations and shelters which charge an adoption fee for placing puppies be regulated under the PAWS?
To be considered a dealer a person or entity must be selling dogs in commerce, for compensation or profit. The USDA does not now regulate non-profit entities such as shelters when they otherwise would qualify as a dealer, and there is no reason to believe they would do so with the enactment of PAWS. On the other hand, organizations that profit from the sale of dogs will be regulated, even if they call themselves a rescue operation or shelter.
How will the PAWS affect a co-owner of a bitch that is bred if the puppies are raised by the other co-owner?
Regulations will have to be written to address this and many other similar situations, but we can analogize from the way the USDA handles similar situations under current law, where co-ownership of bitches is also common. The USDA regulates the person on whose premises the puppies are raised and sold, not other persons who may happen to have an ownership interest in the bitch. Thus, if a person sold puppies from 7 or more litters (and more than 25 puppies in total), that person would be a dealer and would be regulated, regardless of who else may have had an ownership interest in the bitches. If a co-owner of a lot of bitches sold more than 25 puppies per year themselves, even if they didn't raise any of the puppies on their own premises, they would be a dealer and would be regulated.
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The following is an interview with AKC’s federal…