Puppy Uniform Protection and Safety Act (PUPS) 2011

HR 835 Sponsor Rep Gerlach, Jim [PA-6] introduced 2/28/2011 Cosponsors (215)
Senate Companion S 707 Sponsor Sen Durbin, Richard [IL] Cosponsors (32)

SAOVA POSITION: OPPOSE

March 2011
The Sportsmen's & Animal Owners' Voting Alliance (SAOVA) is OPPOSED to HR 835 Puppy Uniform Protection and Safety Act (PUPS) in its entirety.

January 8 SAOVA and other groups sent a joint letter to the House Subcommittee on Livestock, Dairy, and Poultry

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 2011 is the reintroduced 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 revises facility standards and sets exercise requirements for residential breeder/sellers/sheltering organizations as well as for USDA/APHIS currently licensed commercial dog breeders.

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 USDA's Animal and Plant Health Inspection Service (APHIS).

In May, 2010, USDA's 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 OIG report's main focus 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' 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 also to be developed.

Creation of a new table of increased penalties is still pending. AC is analyzing the effectiveness of different types of sanctions to determining which will provide a greater deterrent to violations of the AWA.

Hiring additional staff to support inspection and enforcement of licensed facilities and conduct pre-license inspections is pending necessary funding.

Development of a program to increase the frequency of inspections of problematic dealers is pending necessary funding.

While the initial response to the OIG report stated that regulation of internet sellers was dependent upon passage of legislation (i.e. PUPS), USDA has now determined that it has legislative authority to regulate Internet sales. A proposed rule will be submitted for departmental clearance in spring 2011 and published in the Federal Register for public comment in fall 2011.

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 criterion 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 ´┐Ż 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/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. Thru 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 thru 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).

The AVMA model has not been well received by the dog breeding or sheltering communities; and, in fact, has met with criticism for being excessive in scope. The much respected AVMA as a rule promotes animal welfare standards based on sound scientific principles, yet in this case suggests many requirements that are not supported by scientific evidence.

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.

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.

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 and its 60+ pages of regulations. 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.

USDA/APHIS should retain the workable, legally upheld decision to focus its regulation and enforcement on wholesale dealers, where its resources are likely to yield the greatest benefit.

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. A better plan would be to improve USDA's enforcement ability and ensure that commercial kennels are properly licensed.



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