What The PUPS Bill Could Mean To You

What The PUPS Bill Could Mean To You

Carlotta Cooper

By now you may have heard that Sen. Dick Durbin (D. IL) has introduced Senate S. 3424, a bill to amend the Animal Welfare Act. The bill is supposedly a response to a report from the Office of the Inspector General into the the work of the USDA and their animal control department as they have inspected commercial breeders between 2006-2008. It should be noted, however, that a similar PUPS bill was also introduced last year, before there was a report from the Office of the Inspector General. In both cases the bills have been strongly supported by the Humane Society of the United States.

In some ways PUPS is similar to the PAWS legislation that created such a furor several years ago, with a few important differences.

First, it should be said that the report from the Office of the Inspector General (OIG) was highly critical of the inspectors and the inspection process carried out by the USDA inspectors and their agency. The OIG cited the following main problems with the Animal Care program at USDA:

*AC’s enforcement process was ineffective against problematic dealers. According to OIG, the agency relied too much on trying to use educational efforts to improve breeder/dealer compliance. During fiscal years 2006-2008, 4,250 violators were re-inspected because of violations. Of those violators, there were 2,416 Animal Welfare Act violations. However, the report does not address the fact that many violations may have been minor in nature. All violations were lumped together for the purposes of the report. (It should also be noted that if a breeder/dealer was not home when the inspector called, that was also counted as a violation. So, not all violations were horror stories.)

*AC inspectors did not cite or document violations properly to support enforcement actions. The report indicates that many inspectors were doing a good job. However, they found that 6 of the 19 inspectors that they studied for their report did not correctly report all repeat “direct” (serious) violations. This led to some problematic dealers not being re-inspected frequently. The report also questioned the description of some of the violations that were reported. They believed that better documentation could have led to better cases against dealers when they were brought to court.

*The report cited problems with the new worksheet being used by the department which calculated minimal penalties for violators in some cases.

*The report claimed that the agency misused the current inspection guidelines to lower penalties for violators. In many cases inspectors may use discretionary powers to assess penalties for violations. They may even assess no penalty if they believe that will encourage a dealer to improve the situation, or lower a penalty to encourage a violator to pay a stipulated amount instead of calling a hearing. The report found fault with this system.

*Finally, one of the primary failings the report found was that “some” large breeders circumvented the Animal Welfare Act by selling animals over the Internet. Breeders who sell animals over the Internet are currently exempt from inspection and licensing requirements, thanks to the court ruling in Doris Day Animal League vs. USDA (Veneman, Anne) which ruled that hobby breeders and others who sell dogs on a retail basis do not have to be inspected by USDA.

(It is somewhat disturbing to see that this provision in the law is referred to by the OIG as a “loophole” – the same wording that HSUS uses, when, in fact, this was a hard-won legal point to protect retail breeders.)

These are the main criticisms issued by the Office of the Inspector General regarding the USDA’s inspection process for commercial dog breeding. However, it should be pointed out again that this report focuses on the worst of the worst offenders. As indicated in the 2007 annual report from the USDA Animal Control agency, 97 percent of commercial breeders were classified as being “substantially compliant” with the provisions of the Animal Welfare Act. In most businesses a 97 percent compliance rate is pretty good but that’s probably not a figure that you will hear quoted very often by the agency’s critics.

It should be noted that USDA/Animal Care has already acted on many of the criticisms found in the report. They began writing new guidelines and instituting new training for inspectors as far back as August 2009. So it’s to be hoped that most of the problems found in the report have already been addressed.

There is no denying that some of the problems cited by the OIG report are real and do exist. Not every commercial breeder is a shining example of the profession. On the other hand, the same can be said for show breeders or people in any other area of life. Truly substandard kennel operations should absolutely be addressed and if the owners cannot or will not clean up their act, they should meet the full penalties available to the agency.

As soon as the OIG’s report was released the PUPS bill was ready to be introduced in Congress by Sen. Durbin and his co-sponsor, Sen. David Vitter (R. - LA). A House version was introduced soon after by Representatives Sam Farr (D-CA), Jim Gerlach (R-PA), Lois Capps (D-CA), and Bill Young (R-FL). PUPS stands for Puppy Uniform Protection Statute, S. 3424 and H.R. 5434.

Actually, as far as legislation goes, the bill looks fairly innocuous upon first reading. It’s not a lengthy bill at all. The bill states that is is to amend the Animal Welfare Act to provide further protection for puppies. Sounds good so far, right? Then the bill makes some references to the current Animal Welfare act and adds some wording and punctuation to show how it would read if this bill is adopted.

The first substantial point you come to in the bill is a new term and definition: High Volume Retail Breeder. Currently there is no such person under the Animal Welfare Act. There are only commercial breeders (those who own more than three breeding females and sell dogs to brokers, research labs, or pet stores) and retail pet stores/those who make direct retail sales to the public, such as hobby breeders. So, this new category of breeder is an important issue.

A High Volume Retail Breeder is defined as anyone who has 1) a breeding female dog who is intact and four (4) months or older; and 2) who, in commerce, for compensation or profit, has an ownership interest in or custody of one (1) or more breeding female dogs; and sells or offers for sale, via ANY means of conveyance (including the Internet, telephone, or newspaper) more than fifty (50) of the offspring of such breeding female dogs for use as pets in any 1-year period.

For the purposes of this Act, a High Volume Retail Breeder shall be considered a dealer and subject to all of the provisions of this Act applicable to a dealer. (So the terms “High Volume Retail Breeder” and dealer are used interchangeably here.)

A High Volume Retail Breeder would have to be licensed and inspected in the same way as any other commercial breeder.

Now, why is this important to someone reading DOG NEWS? Afterall, you’re probably thinking that you don’t produce 50 puppies a year so it has nothing to do with you, right? Wrong.

First of all, there are show and hobby breeders who do produce 50 puppies in a year. If you have a large scale show and breeding operation this is not an impossible number to produce. If, for example, you have four or five Labrador Retrievers, they could easily produce litters with 10-12 puppies in them. You would be up to 50 puppies if all of your girls had litters in one year.

However, this bill is much more inclusive than this. It would not just affect people with breeds who had large litters. If you read the wording carefully, it includes any bitch in which you have an ownership interest. That would include bitches that you co-own, whether they reside with you or not. So, if you have been staying on as co-owner of your nice bitches, or perhaps many of your dogs, you would now be liable for all of the puppies produced by those bitches. You may only breed a litter every 2-3 years yourself but if the bitches co-owned by you have litters in a year then those puppies would be counted toward your 50-puppy total. Many, many people in the fancy could quickly find themselves labeled as High Volume Retail Breeders under this bill. They would have to be licensed and inspected by the USDA, not to mention spending the money and making changes to their property to become compliant with USDA kennel regulations — even if they only keep a few dogs in their home.

Is this a mistake? Perhaps you’re thinking that this part of the bill was surely not intended to be aimed at hobby breeders. Well, what better way to limit the breeding of dogs in the U.S. than to make it as difficult as possibly for show and hobby breeders to breed dogs in their home than requiring them to become USDA-licensed?

But there is more in this section. You will notice that it covers any kind of sales — by Internet, telephone, newspaper. If you can think of other kinds of sales, they will probably be written into the bill as well. This is much more than covering what critics of commercial breeding have claimed to be the Internet “loophole.” This is all retail sales of dogs if you produce 50 puppies. This is nothing less than using a number to define what makes a commercial breeder in the United States. It has all the hallmarks of HSUS legislation that has been trotted out in dozens of states in the last two years. And we know from these state battles that the aim of HSUS is to start with a number and then to whittle it down lower and lower.

You should also consider how this law might be enforced. How will USDA locate possible High Volume Retail Breeders? When HSUS has gone state by state to try to enact commercial breeder laws they have started by searching online to count people with web sites offering puppies for sale. However, many times they have included breeders who simply had sites giving breed information for educational purposes. If you have a dog web site, whether or not you breed very often, the USDA could be knocking at your door to find out how many puppies you produce or how many bitches you co-own.

In towns and cities with breeder licensing permits local animal control officers frequently check newspapers to find puppies for sale. Some people who advertise on their breed club sites have also been contacted by state officials asking for back taxes for puppy sales. People have also been contacted through their information in show catalogues. So, there are many ways that USDA could try to track down possible High Volume Retail Breeders. Unfortunately, they may be contacting all of us if this bill passes, as they try to determine how many puppies we produce and how many bitches we have.

There are also provisions in the bill that would affect all commercial breeders (or the High Volume Retail Breeders in the future). It specifies that dogs would have to have access to daily exercise to move sufficiently to develop or maintain normal muscle tone and mass as appropriate for the age, breed, sex and reproductive status of the dog. (Doesn’t sound so bad.) And, the dog has to have the ability to achieve a “running stride”; and is not “forced activity" or other physical activity that is repetitive, restrictive of other activities, solitary, and goal-oriented. So, treadmills are out.

The only exceptions must be approved by a veterinarian or are puppies less than 12 weeks old, or dams with pups.

Just to make sure you get the picture, if you kennel your dogs you must now make sure they have sufficient room to allow them to exercise with room for a “running stride.” We all know how much room the running stride for some breeds takes. It’s hard to imagine how commercial breeders can meet this requirement in any kind of practical way.

The bill also discusses the kind of flooring that is required to be used in kennels, stating that it can’t be too sharp or too small, and so on. If you think this is an easy issue you should ask people in Pennsylvania who have been fighting about what kind of kennel flooring is acceptable for dog kennels for months.

If the bill is adopted then the Secretary of Agriculture has a year to promulgate the specific rules necessary to put the bill into effect. These are the actual nuts and bolts of carrying out the law.

That is a basic description of the PUPS bills. There is much to be concerned about if you breed dogs, whether you breed an occasional litter for the show ring or you’re a commercial breeder. HSUS is currently urging its members to contact their congressmen to ask them to co-sponsor the bill and to create support for the bill.

Of course, there are other, long-term problems with PUPS. Not only would it seriously cut back on the number of small breeders who breed dogs in their homes (because, afterall, who really wants to turn their home into a kennel with a drain in the floor and get a USDA license so they can breed a few litters?), but PUPS would also add lots of new breeders to the number of breeders that the USDA has to inspect. USDA currently inspects around 5000 commercial breeders per year. If the High Volume Retail Breeder definition is adopted and everyone who sells dogs over the Internet has to be inspected by the USDA, the number of breeders that would have to be inspected could triple. If the inspectors are criticized for their performance now, how on earth could they properly inspect that many kennels? They couldn’t. Not without massively increasing the size of the agency and its funding.

There is an easy solution to the problem though. Some people have speculated that the government would outsource the inspections to a national animal organization such as, oh, for instance, the Humane Society of the United States. Afterall, they’ve been training people in quasi-animal control techniques and criticizing inspections for years. Why not let them do the actual inspections? Nevermind their anti-animal, anti-breeder stances. And nevermind the increased costs that typically go along when you hire outside contractors (think KBR and Halliburton).

Naturally HSUS cares about animals...but it’s so convenient when they could also make money from a government contract as an inspection agency for the USDA.

The only way to defeat a bill such as this, which would make so many hobby and show breeders into High Volume Retail Breeders and force them to become USDA-licensed and inspected is by working together with all parts of the dog community. There are NO exemptions in the bill for hunters, service dog or guide dog breeders, police dog organizations or anyone else who breeds. All of these people may breed 50 puppies or more per year with some puppies being sold as pets and become classified as High Volume Retail Breeders under this Act. Not to mention, we should also find ways to work with commercial breeders to fight the bill. This is a case where “the enemy of my enemy is my friend.” And this bill will hurt all of us who breed dogs. Only by working together can we defeat it.

PUPS is a very dangerous piece of legislation. It currently has a short list of co-sponsors but, with HSUS supporters contacting their congressmen, that list may grow longer. People in the dog world need to start contacting their representatives and senators NOW to ask them to oppose PUPS. To find your U.S. representative and senators you can simply go to http://www.congress.org/ and type in your zip code. That process will take you to a page with your officials. Click on their names to see their bios and to contact them by web form. You can also go to their web sites to send an e-mail. Or you can phone them. Ask them to oppose the PUPS legislation. Tell them that the only way the United States can continue to have quality dogs available is if people can breed them in their homes. This is not a job for government oversight.

Make no mistake: this bill is aimed right at home breeders. That’s us. We’re the target of this bill and we need to stop it.