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HR 847 Puppy Uniform Protection and Safety Act (PUPS) 2013

PUPS text and cosponsors
HR 847 Sponsor Rep Gerlach, Jim [PA-6] (introduced 2/27/2013) Cosponsors (135) Latest Major Action: 2/27/2013 Referred to House committee. Status: Referred to the House Committee on Agriculture.

Senate Companion S 395 Sponsor Sen Durbin, Richard [IL], 26 cosponsors. Latest Major Action: 2/27/2013 Referred to Senate committee. Status: Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry.

SAOVA POSITION: OPPOSE

February 2013
The Sportsmen's & Animal Owners' Voting Alliance (SAOVA) is OPPOSED to HR 835 Puppy Uniform Protection and Safety Act (PUPS) in its entirety.

BACKGROUND
For over a decade the Humane Society of The United States (HSUS) and other anti-animal use groups have introduced federal legislation to restrict breeding of dogs and/or cats at the retail level. Their proposed legislation would amend the Animal Welfare Act (AWA) with strict regulations on retail breeders.

A precursor of PUPS would have required the federal government to set standards for when to breed and how frequently to breed dogs. Currently the Animal Welfare Act (AWA) does not police breeding practices for any species regulated under the Act, and this would have set a dangerous precedent giving the federal government control over the breeding of domestic animals.

Subsequent versions relied on establishing a numerical threshold of numbers sold and litters bred as criteria for adding retailers into the AWA commercial dealer regulations. All versions of proposed regulation reverse a long-standing, court tested basis for commercial pet business licensing and regulation. Bill proponents continue to state their legislation "closes a loophole"in federal law although the AWA was never intended to apply to retail, in-home breeders.

PUPS and all previous versions abandon an existing workable, legally tested basis for commercial pet business licensing and regulation, substituting a more complex, more expensive, and unfunded plan that will be litigated for years. Without precedent, this legislation will invade the privacy of American homes and set standards for pet care and housing. PUPS 2013 is the second introduction of a bill from 2010 that expands enforcement of the AWA into the private sector with a newly created high volume breeders classification based on sales. PUPS sets unworkable facility and exercise requirements for residential breeder/sellers/sheltering organizations.

CURRENT AWA REGULATION AND INSPECTION
The Animal Welfare Act (AWA) requires that minimum standards of care and treatment be provided for certain animals bred for commercial sale, used in research, transported commercially, or exhibited to the public. The AWA is enforced by the Animal Care (AC) program and Marketing and Regulatory Programs Business Services, Investigative and Enforcement Services (IES) within the USDA Animal and Plant Health Inspection Service (APHIS).

In May, 2010, the USDA Office of Inspector General (OIG) conducted a review of APHIS regulation of problematic dog dealers. The report documented and detailed known licensed breeders and brokers, many of whom had been previously cited for violations of the AWA.

The report concluded the enforcement process of APHIS Animal Care Unit (AC) was ineffective against problematic dealers. AC's enforcement process was ineffective in achieving dealer compliance with AWA and regulations, which are intended to ensure the humane care and treatment of animals. The agency believed that compliance achieved through education and cooperation would result in long-term dealer compliance and, accordingly, it chose to take little or no enforcement action against most violators.

The report found further that many inspectors did not adequately describe violations in their inspection reports, support violations with photos, or correctly report all repeat or direct violations (those that are generally more serious and affect the animals health). Consequently, some problematic dealers were inspected less frequently.

Additionally, inspectors miscalculated and misused guidelines thereby incorrectly assessing minimal fines that did not deter violators.

The inadequacy within APHIS inspection units and lack of proper enforcement should not be tolerated. The OIG report focused on the agency's lack of enforcement even against facilities that continually ignored minimum care standards. OIG faulted animal care inspection units for their delay in confiscating dogs from repeat offenders where facility conditions had escalated to grave conditions. The report documented an undeniable need for APHIS/Animal Care to perform its duties as charged under the AWA to ensure humane care and treatment of animals.

The main focus of the OIG report is correction of APHIS/AC methods of enforcing existing law. Fourteen recommendations were offered and the report only included one recommendation to expand the scope of APHIS enforcement responsibility. Recommendation 12 proposed that the Secretary seek legislative change to exclude internet breeders from the definition of retail pet store, and require that all applicable breeders that sell through the internet be regulated under AWA.

June 2010 APHIS announced a plan to improve consistency in Animal Care inspectors's approach for inspections, provide more complete guidance to its employees, and improve regulation of dog dealers particularly those who are repeat offenders. The corrective plan of action included increased training to all inspectors on citing and documenting violations; improving the quality of inspections; addition of trained personnel; removal of no action as an enforcement option; and a revised table of increased penalties. Formal procedures for referring alleged violations to State or local officials that have felony laws for animal cruelty were to be developed.

APHIS was to consider hiring additional staff to support inspection and enforcement of licensed facilities, and increase the frequency of inspections of problematic dealers depending upon obtaining necessary funding.

IMPACT OF PROPOSED PUPS BILL AND REGULATION OF RETAIL DOG SELLERS
PUPS changes the scope and intent of the AWA by covering private breeders, sellers and retail venues with federal regulation for the first time. PUPS adds new problematic definitions to the existing AWA and sets conditions with which many cannot comply. AWA engineered standards are not compatible with most residential home breeder settings.

PUPS adds a new definition of a breeding female dog as an intact female dog aged 4 months or older. It is virtually impossible for a 4 month old female dog to be biologically capable of reproduction and therefore this definition should be rejected. This definition impacts the owner's ability to keep young bitches intact while training or evaluating traits and/or working ability, and any female dog kept intact for any reason whether actually bred or not bred. As defined, this regulation would compel breeders to spay at 4 months in order to keep a dog of this age on the premises without having it count toward the numeric criteria for licensing. Federal government would be well advised to avoid such specifics in light of current research that finds early spay/neuter can be injurious to long term canine health.

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 test of this criteria. The second criteria includes anyone who sells or offers for sale, via any means of conveyance (including the internet, telephone, or newspaper), more than 50 of the offspring of such breeding female dogs for use as pets in any 1-year period."

The 50 offspring are NOT defined by age or as being from litters owned by the breeder or as being personally owned by the breeder. This definition will include puppies, young adults, spayed dogs; older dogs being retired from the breeding program; both male and female dogs; puppies back for stud services offered; previously sold dogs returned and resold. This also raises a concern for co-ownerships, a practice utilized by many purebred dog breeders which enables them to expand resources and gene pools while maintaining a limited number of dogs on premise; and whether cumulative sales among co-owners would count towards the 50 sales limit. There is no consideration that 50 sales could be the exception rather than the rule.

PUPS sets a dangerous federal regulation precedent by mandating specific exercise requirements exceeding those currently required for laboratory animals. PUPS dictates that every dog at least 12 weeks of age must have daily access to exercise that provides the ability to maintain normal muscle tone that is not a forced activity or other physical activity that is repetitive, restrictive of other activities, solitary, and goal-oriented. The provided exercise area must allow sufficient space to reach a running stride.

In simple terms this new requirement mandates redesign of existing facilities to accommodate large enough exercise areas for any dog to reach a running stride.. This also prohibits alternate forms of exercise including walking the dog or puppies on or off leash for exercise; or use of treadmills for exercise in inclement weather. The proposed exercise requirements have not been scientifically proven necessary for the well-being of dogs in laboratory settings and certainly should not be imposed upon dogs in residential environments.

IMPACT ON RESCUE ORGANIZATIONS, SHELTERS
The dealer and/or person to be regulated is defined as any person who, in commerce, for compensation or profit, delivers for transportation, or transports, except as a carrier, buys, or sells, or negotiates the purchase or sale of a dog. Person is further defined as including any individual, partnership, corporation, association, trust, or other legal entity.

These definitions will certainly encompass rescue organizations, including those that sell from their homes and shelters, on Petfinder (internet), and similar venues. The definitions will include veterinary clinics with adoption centers, any nonprofit groups organized specifically for rescue and re-homing/adoption of unwanted dogs, and potentially some animal control departments. The criteria of 50 sales is easily achievable for the majority of rescue and sheltering organizations in most U.S. cities. Not all dogs adopted are altered at time of sale as some are sold under contract with vouchers to spay at a later date therefore qualifying the organization as being in custody of a breeding female. Rescue organizations would also fit the criteria if a surrendered female whelps while in their care and control.

Rescue/shelters/animal control operate under the same exemption from federal regulation that retail sellers have historically been given. Congress never intended the RETAIL sector to be regulated. That is the pivotal point which was upheld in DDAL vs Veneman. Through their PUPS bill and its predecessors, HSUS aims to destroy that commercial /retail construct. Breaking that barrier and defining a select class among the many venues of retail selling should not be legally justified or defended. The pet owning public purchases fairly equal numbers of dogs from both breeders and shelters therefore these sources should be treated equally.

Under PUPS they would be forced to redesign current facilities in order to meet federal housing standards including the new space requirements mandated by the physical exercise standards.Regulating them was not the intent of the AWA and changing the scenario now through PUPS is neither logistically or economically feasible.

It should be perfectly clear to legislators that impact to rescue/sheltering organizations is not accidental. PUPS is crafted from a model developed in 2010 by the American Veterinary Medical Association (AVMA). In the Background and Context paper explaining who will be regulated, AVMA states the goal of their model bill is to provide regulation for all dogs sold to the public irrespective of facility type (i.e., dogs are deserving of a minimum standard of care whether bred/raised/distributed by breeders, shelters, or animal control facilities).

INTERNET SALES
There is continued focus on use of the internet as a means to "evade" AWA regulation. The presumption is that the public purchases sight unseen and sellers can freely operate in substandard conditions. Contact through the internet certainly could be just the initial connection for a purchase. It is not a foregone conclusion that the buyer and seller do not meet in person, and that the buyer has no opportunity to see the seller's facilities. There are many avenues available to the public for buying dogs. It is not the duty of the federal government to monitor and regulate the purchasing habits or prerogatives of the public. Although a few unscrupulous people may sell dogs via the internet that are housed in poor conditions, these people can be dealt with by local cruelty and/or consumer protection laws. Whether by passage of PUPS or USDA/APHIS rulemaking, requiring internet sellers to be licensed is excessive.

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. The OIG report did not discuss whether animals purchased over the Internet suffer from health problems at a greater rate than those sold in traditional, brick-andmortar retail pet stores.

There have been no studies to compare the number of internet pet sales with satisfied customers against pet sales with associated complaints. There is no substantial data available for analysis of any segment of Internet/remote sales in order to determine or justify the need for modification of the AWA and regulation of Internet sales.

BUDGET CONSTRAINTS

The FY 2012 federal Budget has a proposed appropriation for APHIS programs of $837 million, which is 8.3% or $76 million lower than the amount appropriated for APHIS in FY 2011. Included in the modest budget of $29 million for Animal Welfare, APHIS has requested an increase of $6 million for increased investigation of current problematic dog breeders and dealers. Restructuring, retraining, increased staff, and increased funding should allow AC to satisfactorily inspect facilities and follow through with any enforcement measures of current licensees with consistency.

As part of the 2012 farm bill which was not enacted, the FY 2013 federal Budget proposed $25 million, about $3 million below 2012, for Animal Welfare activities, including $0.5 million for enforcement of the Horse Protection Act.

FY 2014 USDA Budget has been released and again there is little revision to the current budget. The APHIS 2014 budget request of $798 million is an overall reduction of $24 million from 2013. Money requested specifically for Animal Welfare activities and enforcement is $29 million, a requested increase of only $1 million which is split between Animal Welfare and Horse Protection. Increase for Horse Protection requested to $893,000 from current $500,000; therefore leaving virtually no additional funds to enact or enforce increased regulation as called for in PUPS bill.

Expansion of regulatory responsibilities into the private sector will most certainly require exponential increases in APHIS staff and funding. Major expansion of current APHIS regulatory responsibilities is not only impractical but irresponsible at as the nation struggles with a government deficit, departmental budget cuts, spending cuts to vital services, and a struggling economy.

SUMMARY
As with all previous versions of HSUS introduced bills intended to break the commercial / retail barrier, PUPS subjects home breeders and rescuers of dogs to USDA licensure. PUPS misleads legislators and the public into thinking this legislation will put an end to puppy mills when in fact PUPS will serve to eliminate many fine sources of home-bred dogs.

PUPS does not address specific problems cited in the OIG report or the past poor enforcement history of APHIS inspectors, but instead focuses on expanding federal regulation into the private sector by creating a complete new class of breeders and sellers. This major expansion of APHIS responsibility is unrealistic and unenforceable.

As written, PUPS will negatively impact many in-home breeders who cannot comply with commercial standards or who refuse to have their rights to privacy invaded by federal inspectors. PUPS will drive many midsize producers of pets and working dogs away from their hobbies and livelihoods. PUPS poor language and arbitrary use of numbers for licensing criteria will potentially impact even the rescue community.

PUPS would force redesign of current facility housing to meet new standards; there is no objective evidence supporting any derived benefits or enhanced animal welfare from enactment of the proposed standards.

Without precedent, PUPS invades the privacy of American homes and sets questionable standards for pet care, sanitation, handling, exercise, and housing.

Expanding federal regulation into the private sector and people's homes is not an efficient use of limited departmental resources.

There is no substantive evidence to prove that expansion of the existing AWA will improve animal welfare to a higher level than properly enforcing current regulations and licensing those kennels operating commercially without USDA licensure.



RELATED DOCUMENTS

Animal Welfare Act (AWA) Title 9 - Animals and Animal Products

FY 2013 USDA Budget Summary and Annual Performance Plan

FY 2012 USDA Budget Summary and Annual Performance Plan

Case Law Doris Day Animal League v. Veneman Doris Day Animal League (DDAL) has been intent on regulating private in-home breeders who sell retail. Their belief is that everyone who breeds even one litter and sells from their home premises should be regulated. As USDA/APHIS currently only regulates commercial (wholesale) sellers DDAL filed suit against USDA contending that current regulation by the USDA was in violation of the Animal Welfare Act.

Animal Welfare Act Integrated PUPS (2011/2013)



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