Deception from APHIS

This article first appeared in the July 27, 2012 issue of DOG NEWS and is posted here by permission of the author.

Deception from APHIS

Carlotta Cooper

I recently had the pleasure of attending a meeting of many of the people in my state involved in dog legislation. Of course, the proposed APHIS rule changes were one of the topics. It was a very productive meeting but one point mentioned by more than one person was that there were still many people in their clubs who didn't know what APHIS was about. And, when they tried to present legislative reports to their clubs, they were often told to shorten them or they said that club members expressed no interest in legislation that would affect them.

I've heard these same complaints from legislative liaisons with parent clubs, specialty clubs, and local kennel clubs. There are a lot of good legislative liaisons working their tails off, to put it bluntly, trying to keep club members informed about important issues that affect dogs and dog breeding, and a lot of people don't want to hear about the issues. Unless animal control is actually at the door, ready to take their dogs, they aren't interested. When things reach that point, it's usually too late for a legislative liaison to help you. You're just a story on the Internet then, and a lot of people still won't believe it can happen to them. Many dog people will conclude that you must have done something to deserve what happened to you instead of understanding that we have serious problems with dog laws right now and we all need to be paying attention to what's going on.

I hate to compare the situation to the Titanic, but if someone is conducting a lifeboat drill, you would be well-advised to pay attention.

APHIS Proposed Changes

The most important issue for all of us who breed dogs at the moment is the proposed changes to the APHIS rules. Under the proposed changes, anyone who has more than four “breeding females” will have to be USDA licensed and allow unannounced inspections of their facilities. You can be exempt from USDA-licensure if each puppy is sold “face to face.” That means for each puppy sold, the buyer has to make at least one visit to your home to see it, either at the time of purchase or sometime before the purchase. However, if you ship even one puppy to a buyer without the buyer visiting your premises, you would loose your exemption.

You can be exempt if you have four or fewer breeding females. However, you cannot sell any puppies or dogs that were not born on your premises. So, if you get a puppy back from a bitch or a stud fee puppy, you can't sell it. If you buy a show prospect and it doesn't work out, you cannot sell him. If you do any of these things, you would lose your exemptions and have to become USDA licensed.

It's also very important for people to realize that co-owned bitches DO count toward their total number of breeding females. If you take in an occasional bitch as a rescue, she counts, even if you get her spayed later. Do you have bitches come in to visit your stud dog? They count. Also, if you have three bitches and three intact cats, for example, you are also over the limit. “Breeding females” is not restricted to dogs. It refers to any of the species covered under the APHIS regulations, such as rabbits, guinea pigs, and others. It doesn't matter that you never intend to breed these animals. If you have them, they count toward your total number of “breeding females.” If they are intact females on your premises, or you have an ownership interest in them, they count.

USDA-Compliant Facilities

One of the worst and most contentious changes for hobby breeders would affect all of their dogs, not just how they sell puppies. It goes to the heart of hobby dog breeding and how we love and care for our dogs. It concerns kennels vs. keeping dogs in the home.

USDA licensed breeders are required to keep their dogs in primary enclosures that meet the following requirements (Code of Federal Regulations, Title 9 - Animals and Animal ProductsVolume: 1 Date: 2009-01-01Original Date: 2009-01-01Title: SUBCHAPTER A - ANIMAL WELFARE Context: Title 9 - Animals and Animal Products.)

§ 3.6

Primary enclosures.

            Primary enclosures for dogs and cats must meet the following minimum requirements:
            (a) General requirements. (1) Primary enclosures must be designed and constructed of suitable materials so that they are structurally sound. The primary enclosures must be kept in good repair.
            (2) Primary enclosures must be constructed and maintained so that they:
            (i) Have no sharp points or edges that could injure the dogs and cats;
            (ii) Protect the dogs and cats from injury;
            (iii) Contain the dogs and cats securely;
            (iv) Keep other animals from entering the enclosure;
            (v) Enable the dogs and cats to remain dry and clean;
            (vi) Provide shelter and protection from extreme temperatures and weather conditions that may be uncomfortable or hazardous to all the dogs and cats;
            (vii) Provide sufficient shade to shelter all the dogs and cats housed in the primary enclosure at one time;
            (viii) Provide all the dogs and cats with easy and convenient access to clean food and water;
            (ix) Enable all surfaces in contact with the dogs and cats to be readily cleaned and sanitized in accordance with § 3.11(b) of this subpart, or be replaceable when worn or soiled;
            (x) Have floors that are constructed in a manner that protects the dogs' and cats' feet and legs from injury, and that, if of mesh or slatted construction, do not allow the dogs' and cats' feet to pass through any openings in the floor;
            (xi) Provide sufficient space to allow each dog and cat to turn about freely, to stand, sit, and lie in a comfortable, normal position, and to walk in a normal manner; and
            (xii) Primary enclosures constructed on or after February 20, 1998 and floors replaced on or after that date, must comply with the requirements in this paragraph (a)(2). On or after January 21, 2000, all primary enclosures must be in compliance with the requirements in this paragraph (a)(2). If the suspended floor of a primary enclosure is constructed of metal strands, the strands must either be greater than 1/8 of an inch in diameter (9 gauge) or coated with a material such as plastic or fiberglass. The suspended floor of any primary enclosure must be strong enough so that the floor does not sag or bend between the structural supports.
            (b) Additional requirements for cats.—(1)Space. Each cat, including weaned kittens, that is housed in any primary enclosure must be provided minimum vertical space and floor space as follows:
            (i) Prior to February 15, 1994 each cat housed in any primary enclosure shall be provided a minimum of 21/2 square feet of floor space;
            (ii) On and after February 15, 1994:
            (A) Each primary enclosure housing cats must be at least 24 in. high (60.96 cm);
            (B) Cats up to and including 8.8 lbs (4 kg) must be provided with at least 3.0 ft2 (0.28 m2);
            (C) Cats over 8.8 lbs (4 kg) must be provided with at least 4.0 ft2 (0.37 m2);
            (iii) Each queen with nursing kittens must be provided with an additional amount of floor space, based on her breed and behavioral characteristics, and in accordance with generally accepted husbandry practices. If the additional amount of floor space for each nursing kitten is equivalent to less than 5 percent of the minimum requirement for the queen, such housing must be approved by the attending veterinarian in the case of a research facility, and, in the case of dealers and exhibitors, such housing must be approved by the Administrator; and
            (iv) The minimum floor space required by this section is exclusive of any food or water pans. The litter pan may be considered part of the floor space if properly cleaned and sanitized.
            (2) Compatibility. All cats housed in the same primary enclosure must be compatible, as determined by observation. Not more than 12 adult nonconditioned cats may be housed in the same primary enclosure. Queens in heat may not be housed in the same primary enclosure with sexually mature males, except for breeding. Except when maintained in breeding colonies, queens with litters may not be housed in the same primary enclosure with other adult cats, and kittens under 4 months of age may not be housed in the same primary enclosure with adult cats, other than the dam or foster dam. Cats with a vicious or aggressive disposition must be housed separately.
            (3) Litter. In all primary enclosures, a receptacle containing sufficient clean litter must be provided to contain excreta and body wastes.
            (4) Resting surfaces. Each primary enclosure housing cats must contain a resting surface or surfaces that, in the aggregate, are large enough to hold all the occupants of the primary enclosure at the same time comfortably. The resting surfaces must be elevated, impervious to moisture, and be able to be easily cleaned and sanitized, or easily replaced when soiled or worn. Low resting surfaces that do not allow the space under them to be comfortably occupied by the animal will be counted as part of the floor space.
            (5) Cats in mobile or traveling shows or acts. Cats that are part of a mobile or traveling show or act may be kept, while the show or act is traveling from one temporary location to another, in transport containers that comply with all requirements of § 3.14 of this subpart other than the marking requirements in § 3.14(a)(6) of this subpart. When the show or act is not traveling, the cats must be placed in primary enclosures that meet the minimum requirements of this section.
            (c) Additional requirements for dogs—(1) Space. (i) Each dog housed in a primary enclosure (including weaned puppies) must be provided a minimum amount of floor space, calculated as follows: Find the mathematical square of the sum of the length of the dog in inches (measured from the tip of its nose to the base of its tail) plus 6 inches; then divide the product by 144. The calculation is: (length of dog in inches + 6) × (length of dog in inches + 6) = required floor space in square inches. Required floor space in inches/144 = required floor space in square feet.

            (ii) Each bitch with nursing puppies must be provided with an additional amount of floor space, based on her breed and behavioral characteristics, and in accordance with generally accepted husbandry practices as determined by the attending veterinarian. If the additional amount of floor space for each nursing puppy is less than 5 percent of the minimum requirement for the bitch, such housing must be approved by the attending veterinarian in the case of a research facility, and, in the case of dealers and exhibitors, such housing must be approved by the Administrator.

            (iii) The interior height of a primary enclosure must be at least 6 inches higher than the head of the tallest dog in the enclosure when it is in a normal standing position: Provided That, prior to February 15, 1994, each dog must be able to stand in a comfortable normal position.
            (2) Compatibility. All dogs housed in the same primary enclosure must be compatible, as determined by observation. Not more than 12 adult nonconditioned dogs may be housed in the same primary enclosure. Bitches in heat may not be housed in the same primary enclosure with sexually mature males, except for breeding. Except when maintained in breeding colonies, bitches with litters may not be housed in the same primary enclosure with other adult dogs, and puppies under 4 months of age may not be housed in the same primary enclosure with adult dogs, other than the dam or foster dam. Dogs with a vicious or aggressive disposition must be housed separately.
            (3) Dogs in mobile or traveling shows or acts. Dogs that are part of a mobile or traveling show or act may be kept, while the show or act is traveling from one temporary location to another, in transport containers that comply with all requirements of § 3.14 of this subpart other than the marking requirements in § 3.14(a)(6) of this subpart. When the show or act is not traveling, the dogs must be placed in primary enclosures that meet the minimum requirements of this section.
            (4) Prohibited means of primary enclosure. Permanent tethering of dogs is prohibited for use as primary enclosure. Temporary tethering of dogs is prohibited for use as primary enclosure unless approval is obtained from APHIS.
            (d) Innovative primary enclosures not precisely meeting the floor area and height requirements provided in paragraphs (b)(1) and (c)(1) of this section, but that provide the dogs or cats with a sufficient volume of space and the opportunity to express species-typical behavior, may be used at research facilities when approved by the Committee, and by dealers and exhibitors when approved by the Administrator.
            (Approved by the Office of Management and Budget under control number 0579-0093)
            [56 FR 6486, Feb. 15, 1991, as amended at 62 FR 43275, Aug. 13, 1997; 63 FR 3023, Jan. 21, 1998; 63 FR 37482, July 13, 1998]
         
       
       
          Animal Health and Husbandry Standards
         
            § 3.7
            Compatible grouping.
            Dogs and cats that are housed in the same primary enclosure must be compatible, with the following restrictions:
            (a) Females in heat (estrus) may not be housed in the same primary enclosure with males, except for breeding purposes;
            (b) Any dog or cat exhibiting a vicious or overly aggressive disposition must be housed separately;
            (c) Puppies or kittens 4 months of age or less may not be housed in the same primary enclosure with adult dogs or cats other than their dams or foster dams, except when permanently maintained in breeding colonies;
            (d) Dogs or cats may not be housed in the same primary enclosure with any other species of animals, unless they are compatible; and
            (e) Dogs and cats that have or are suspected of having a contagious disease must be isolated from healthy animals in the colony, as directed by the attending veterinarian. When an entire group or room of dogs and cats is known to have or believed to be exposed to an infectious agent, the group may be kept intact during the process of diagnosis, treatment, and control.

(You can find more details about how to keep dogs under USDA licensing and the Animal Welfare Act at http://www.gpo.gov/fdsys/pkg/CFR-2009-title9-vol1/xml/CFR-2009-title9-vol1-chapI-subchapA.xml#seqnum3.2)

As you can see, these are very precise engineering standards which give instructions, down to the inch, of how dogs are to be kept. They are obviously designed for commercial breeders and people who breed dogs on a large scale for wholesale purposes. They are clearly not appropriate for hobby dog breeders and people who keep dogs in their home.

And, yet, when hobby breeders began objecting in large numbers in their APHIS comments that they could not and would not be able to keep their dogs under these conditions, APHIS issued the following response in a revised fact sheet (July 2012):

Q. If this proposal is adopted, would breeders who

come under regulation and allow their dogs to

roam free in their homes have to put their animals

in a kennel?

A. No. The AWA regulations define a primary

enclosure broadly to mean any structure or device

used to restrict an animal or animals to a limited

amount of space. As such, a home can be considered

a dog’s primary enclosure. If a room of a house is used

as a dog’s primary enclosure (e.g., a whelping room or

nursery), APHIS will apply the applicable regulations

and standards to the room.

If, however, a dog breeder allows their dogs to have

free run of the entire house, APHIS will assess whether

the home can house animals within the health and

humane standards contemplated by the AWA. If the

breeder has a kennel or cages that the dogs can stay

in inside the home that meet AWA standards, we would

consider that compliance with the primary enclosure

requirements has been achieved.

Can anyone see how you could possibly keep your dogs in the house and follow APHIS regulations? I can't. And neither can anyone we've checked with on this issue. That includes people who have been involved with commercial dog breeders and the USDA for decades. Dr. Gerald Rushin of the USDA claims that the USDA is currently inspecting some USDA dog breeders who raise dogs in their home but it's hard to see how they do it. They certainly can't have any kind of normal home if they do. It might be possible to meet the requirements listed above if you had a Toy breed and kept the dogs confined to one room, in small crates. You would have to be able to have extremely large crates for the little dogs, much larger than we normally use for dogs for crating purposes (for safety, for sleeping, for potty training purposes, for traveling). The room and all its contents would have to be capable of withstanding sterilization on a regular basis and be able to pass all of the other inspection points. But this is hardly the same as allowing your dogs to roam freely in the house. And it would seem to be impossible to provide this kind of situation for larger dogs. The cost alone of providing super size crates for large dogs would be prohibitive as they would probably have to be custom-made, and no one would want to keep their dogs confined to a crate in the home continually in this manner.

It's ludicrous that APHIS would try to provide this kind of answer to the critical comments they have been receiving from hobby breeders about putting their house dogs in kennels. Not just ludicrous. It appears to be an attempt to deceive. They appear to be trying to allay breeder criticism to try to get us to go along with the proposed changes. But I don't think any of us want to keep our dogs in the house under these conditions! APHIS needs to get some comments on this issue.

There are other items in the fact sheet which are questionable. The fact sheet claims that breeders will be able to meet buyers off their premises to make a sale instead of requiring a face to face meeting. However, this is not in the proposed rules. Call me skeptical, but it's what's in the rules that matter, not what's in some non-binding fact sheet. If an inspector comes to your home, they will follow the rules and regulations. They won't care what was promised in a fact sheet. And the fact sheet doesn't improve anything for breeders who need to ship a puppy occasionally.

I could go on but you see the problems. Please make sure that everyone in your clubs knows what is in the proposed APHIS changes. They would affect ALL of us. You have until August 15 to comment. Go to http://www.regulations.gov/#!documentDetail;D=APHIS-2011-0003-0001http://www.regulations.gov/#!documentDetail;D=APHIS-2011-0003-0001. You can make a comment of 2000 characters (not words). If you need more space you can attach a document such as a PDF or Word document. It's best to have your comment pre-written so you can simply copy and paste it into the text window.

The proposed APHIS changes would be a disaster for hobby dog breeders. Tell everyone you know and get them to comment!