APHIS for Breeders

What you need to know about the new APHIS rule...

By now most breeders know that a new rule is in force redefining most home hobby breeders as retail pet stores. While we despise the lunacy of such a characterization, we have to deal with the rule nonetheless. This rule came into effect on November 18, 2013. It should be noted this rule ONLY applies to pets, and it primarily focuses on delivery of pets. It has no effect at all on your ability to ship breeding animals sight unseen. This is fairly complex, but here is some information on what is happening, why it is happening, what breeders can claim as far as exemptions from licensing, what it will mean if you do choose to get a license, and information from APHIS on their plans and the manner in which they will enforce the rule.    

[Here's where I remind you that I'm not an attorney practicing in your jurisdiction, that nothing here should be constituted as legal advice, and utilizing this information does not make me your legal representative or create any inferred or implied representation agreement. As always is the case with legal issues, you should consult your personal attorney if you have concerns about whether or how this rule change affects you.]

Why this rule? Why now?
The "why" behind this rule? This is primarily aimed at what is called sight-unseen shipping - someone buys an animal as a pet from you after you communicate online or on the phone, you put that animal on a plane to them, so that the first time they are seeing the animal in person is this final delivery. The rule is stated to be about animal welfare - where the buyer can see the animal, judge it for themselves that it appears to have not been raised in a cruel or neglectful manner, and formally accept it (or not). 

In the past few years we have seen a push, in particular from national lobbying groups such as the Humane Society of the United States, in regulating sales of pets that utilize the internet. The idea was, that the original law was designed prior to the internet's existence - it was written to ensure animals bred in commercial facilities or on farms producing large numbers of litters, were regularly subjected to some kind of oversight. Today, so the allegation goes, these large scale or sub-standard breeders* can sell direct to the public by the internet, initiating a transaction, getting paid, and then shipping an animal sight-unseen to a buyer, who may then find themselves out the money and with a very sick or poorly bred animal, with no recourse. The USDA has had complaints about this kind of transaction for years - before internet sales - and there has been, according to the USDA, no recent spike in these complaints. It's simply that the lobbyists finally exerted enough influence.

* - I do not use the term "puppy mill" because that term has no meaning. It has no legal definition in any jurisdiction, and is used by animal rights groups to describe everything from a commercial kennel with hundreds of dogs to a home breeder with four dogs. It has developed such a strong negative connotation, however, by design. It doesn't convey any factual information and creates a visceral emotional reaction, meant to prejudice the listener. The issue is not that they produce a lot of puppies for sale; the issue is the environment and method they use to raise those puppies. If they are not giving the right quality of care, that is properly described as a substandard breeder, and that is the phrase I believe is most accurate to the situation. One person may capably care for 50 dogs, while another cannot properly handle 2 - the number of animals is meaningless in assessing quality of care.

However, the USDA says the focus isn't on the internet listing and sale, per se - it's on the welfare of the animals being raised and sold for pets. Here it is nearly indistinguishable from a consumer protection focus (I personally think they are acting beyond their jurisdiction because this is, they way they are enforcing it, in fact a consumer protection issue). The "welfare," they say, can best be evaluated by a buyer at the point of a meeting with the animal and the buyer. It doesn't require it to be in your home, so that would tell a buyer nothing about how the animals were raised...but that is how they are enforcing the rule. This ends up with a practical result of removing your ability to put an animal on a plane and shipping it to a buyer who is a distance away from you. The buyer will now be asked to travel themselves to pick up their pet or to pay several hundred dollars more for the pet to be delivered to them for their in-person meeting. Puppies can be visited prior to 8 weeks of age to qualify for this face to face meeting; kittens are a different story.

Obviously delivering an animal in person is quite useless as far as determining that an animal has been subject to abuse or neglect. The real targets here should have been commercial kennels and substandard breeders, but instead it will net only home hobby breeders, as we are really the only ones affected by this. Most commercial kennels don't sell direct to a buyer; they sell to pet stores. Since a buyer is personally in a pet store to see the animal, they are exempt from licensing. Literally, home hobby breeders are the ONLY ones affected, despite protestations to the contrary. Now, we just have to deal with it.

Your Two Exemptions as a Hobby Breeder

As many other places have pointed out, there are two ways to remain exempt from licensing with the USDA. One, you can place every pet you ever sell only after you have had an in-person, face to face meeting that included you, your pet buyer, and the animal you're selling. Two, you can remain at 4 or fewer breedable females, and sell pets ONLY who have been "born and raised" on your premises. Those are the only exemptions, and they cannot be combined. Your easiest bet is to choose all in-person meetings, to be blunt. I resent the costs that will be passed along to my buyers, but at the end of the day my breed is one where I can benefit a new owner by seeing the environment a very smart and active young cat will be living in, and help the new owner "Turk proof" their habitat.

Exemption One: Face to Face Meetings for Pet Sales
The first exemption is the only one that will give you a 100% exemption. What is a face to face meeting, for the purposes of this rule? It means there must be a time where you, the animal being purchased, and the purchaser (or their agent) are all in the same place. Typically, that is at the time of delivery, but it can be any time. If a buyer comes to see a puppy at 6 weeks, and sees the puppy they will buy, you have met the requirement and you could then ship that puppy. 

This meeting can be anywhere. You might deliver an animal at a cat or dog show. You can meet them at an airport, a transport location, a public business - whatever you wish, you only have to meet them once with both you and the animal in person. When I say a purchaser agent - this is a limited exception. If your buyer has a sister who lives near you, she can have that meeting on the buyer's behalf for you to meet the requirement.

That exception does not go both ways. A breeder generally cannot have an agent, and the rule specifically does NOT allow a transport agency or transporter (volunteer or not) to stand in for the breeder at this meeting. If a breeder uses someone for a stand in, there are other concerns out there - for example, if you were to have all your pet buyers pick up their pets at your vet, without you there, your vet may (inadvertently) become a Dealer under the law - and nobody wants to get into that situation. While the buyer can appoint an agent - the breeder cannot. 

Again - this is a 100% exemption. If you place every pet with a face to face meeting, you can have unlimited females on your premises, and you can freely sell pets that were not born and raised on your premises.

Exemption Two: Four or Fewer Breedable Females, Only Pets Born and Raised on Your Premises

The second exemption is one that is a LOT more fluid.This means you can easily move in and out of exempt status and you need to determine the steps that are appropriate for your program and facility. At its most basic, the rule is simply that if you have four or fewer (so 1-4 inclusive) breedable females, and you place as pets only those cats who are born and raised on your premises, you are exempt from licensing.

As straightforward as that sounds, it really isn't. Obviously saying you can have as many as 4 females makes sense. However, "breedable female" is not a defined term; it is defined as animals the inspector deems to be breedable in age and health. Again all of this relies on breeder reporting, and if they have no reason to believe otherwise if you tell them that a cat of breeding age is spayed, they will believe you. Until we begin to see this rule enforced - we will not know the reasonability of this expectation. For that reason, I highly recommend that if you have any female animals at your premises that are unable to be sterilized, whether for age or health or whatever, that you get a written note from your vet indicating the cat, the color and age, etc., that certifies the animal cannot be safely put under anaesthesia for a spay procedure. If you try to claim breedable females are spayed, and you later advertise kittens from that female on your website, you will have a problem. When you get caught in these things, it will eliminate the presumption that you are telling the truth, and you may have the USDA back at your door and you may need to then produce written records of all the females you claim are spayed.

For now, they are saying they have no interest in co-ownership - they only care about breedable females on your premises. If you have 4 females on your premises, but you co-own 3 more females at another breeder's residence, you do not lose your exemption because you co-own 7 females. Similarly, that other breeder cannot take 3 females out of the number of their females, to stay below 4. The main concern is about animals on your premises, and that is all that matters. 

In case you're taking in additional animals, say you run a boarding kennel, or if you handle cats or dogs for showing, every breedable female will be counted, whether they are yours or just visiting. Here's where your business plan (cattery records) become important, as you show what it is you do - are you merely a handler, do you show but not breed dogs and have a cattery, that sort of thing. Any animals that aren't in the business plan will not count, so if you have 3 intact female cats and 2 intact female dogs for showing, but you breed cats and never dogs - your intact show dogs will not cost you your 4 female exemption. 

This is based on commentary by APHIS personnel to not take breed into account, only species - all intact cats, all intact dogs, no matter the breed. This means if you are a breeder of American Shorthair cats, and you are trying to apply to become a judge in an organization (which of course requires showing of other breeds), If you have 3 ASH females for your program, and you have a whole female Ocicat and whole female British Shorthair, even if they are present only for showing and will be returned to the breeder - you are beyond the limit and lose the exemption. If you have those same 3 ASH females, and you are showing 3 intact female dogs, but your cattery records demonstrate no dog breeding program - you will be under 4 breedable females. Right now, I would plan for this - if you need to show other breeds, try to show kittens, males, or alters just to be sure you aren't jeopardizing your exemption. I would think it is within the realm of possibilities, that if you keep sufficient records in your business plan, you might be able to get a pass on this - for example if you have a written agreement with the breeder/owner of the Oci or BSH, stating that the cat is temporarily in your care to meet the obligations of the judging application, and are specifically not to be bred while in your custody. It may not work, but I would take every step possible to protect your own cattery. (Time for a reminder - until we see this rule enforced, these are all guesses based on APHIS commentary.)

The "on the premises" issue is much more complicated for other situations. First, temporary situations - females present on lease, for example. Because they are present, they will be counted as breedable females on your premises. If that puts you over the 4 limit, even temporarily, even if you are not a co-owner of that female, you lose the exemption until that visiting female returns to her breeder. The APHIS personnel stated that every breeder must evaluate their own situation, because licensing is a lengthy process. To use a feline example, let's say you lease a female for one litter, and she arrives at your home in heat. She is bred, then you have the litter at your home, and the kittens are weaned at 8 weeks and the female returns home. It will probably take longer to apply for the license than the female will be in your home. In those situations, it is up to you to decide whether to initiate the process - which again, I cannot advise you to knowingly be in violation of the rule just because you anticipate the female being home before you can complete the licensing process. In this case, I would recommend you contact APHIS about your personal situation - explain to them the length of the additional female's term, and discuss with them whether it is worth starting the process. 

This is more complicated still if you do outcross breeding. The irony here is that we do at least minimal outcross breedings (purchase and lease/stud agreements with other breeders) to continue a healthy genetic breeding program, and this now catches those who engage in responsible genetic outcross. If you buy a cat from another breeder, and you EVER sell that animal as a pet, you are required to have a license. That cat was not "born and raised" on your premises, because someone else bred it. Even if you get the cat at 4 months, it was not "born and raised" on your premises. The only ways to escape this part of the rule, is to never place those animals as pets. Remember when I said you can't mix and match? You can't place that animal as a pet with an in person meeting, and get the exemption for that non-born and raised on the premises cat. You can only claim either the 100% exemption of EVERY pet placed with a face to face meeting, or you stay under the female limit and you do not place, as pets, any animal not born and raised in your home. Your best option would be to sell the cat as a breeder to another breeder, or return them to their breeder, who can then claim them as cats who were "born and raised" on their premises.

Yes, it's ridiculous. This is why I suggest going the face to face exemption route.

Do You Want to Become a Licensed Breeder?
Of course, any breeder who is outside the exemptions would have to be licensed. Some breeders may choose to do so. What we can say is that complaints about licensing, right now, have not changed - it is still complaint based. APHIS won't know you're shipping pets without a license unless something goes wrong. I say that, but I cannot advise that anyone flaunt the rules thinking APHIS is too busy or doesn't have enough investigators or doesn't really care about home hobby breeders. I personally think making no changes and hoping to go on unnoticed is a mistake. Everyone should prepare, even if it only means you change your record keeping.

Some important concerns if you decide to get a license: First, understand that they will not license you if you do not meet the rule's requirements. If you have only 3 females, or if you sell your pets in person, even if you ask for a license they will not license you. You must be required by the rule to license. They will work with you in the process, which will probably take a few months. During the process of applying - you may continue to operate your kennel/cattery in the way you do now. It's important that you work with them in the ramp up to licensing - they will spend hours with you, working with you, to get you to a point where you are given the license. If you do not voluntarily license, and are found to be in need of a license - you will have to suspend your breeding and pet sales while that process is sorted out. This is why it's important to work with them before getting the license, because even if they visit you more than once and you have to make facility changes, prior to licensing you can continue to operate "business as usual." If you don't and have a deficiency - you cannot continue "business as usual" until the problem is resolved.

If you are captured under the rule and require a license, they will be expecting you to keep extensive records on all of your animals. I may refer to record keeping here as a "business plan" only because it is the phrase the USDA is using. Home hobby breeders aren't usually running a "business" - this is a hobby for us, and for most of us it happens to be a money-losing hobby. We do it for the animals, not for the money. My use of the term, therefore, should not be construed as any kind of admission or change in status - it's merely the chosen phrase of the USDA for your manner of running your kennel or cattery.

Once it's finished, all of your application and license information will be made available to anyone who makes a Freedom of Information Act ("FOIA") claim (and they say that FOIA requests for licensed breeders and animal facilities are the #1 request made of the entire US government). There is no exemption to this requirement. That means your address, how many animals you have at the time of the license issue, and all sorts of things, are available to anyone who asks, for any purpose. I would recommend, and the APHIS agents had no objection to, the use of a Post Office Box or other "mailing address" other than your physical property address. 

Next, having a license means you must allow them to make an inspection of any area of your home that the animals are in. The inspections are during business days, Monday-Friday, from 7am to 7pm. Contrary to rumors, if you are not at home, they will contact you to work out a time when you will be there for the inspection. Unless you are deliberately avoiding inspection, they will work with you. You will not be shut down just because they show up at your home while you're at the grocery store. 

On the plus side they have stated some guidelines for preparing one's home for inspection and licensing, and breeders need to remember that the rules stated in the AWA are the *minimum* standards. They do understand most hobby breeders don't have the money or ability to install impervious surfaces, drains and air exchange systems. So long as surfaces are capable of being cleaned and are cleaned, you will meet the requirements. They approach home hobby breeders with the assumption that they meet the standards. To be honest, for the most part APHIS investigators have no more desire to be in your bedroom than you are to let them in. 

They have now added that sometimes, APHIS investigators may arrive with agents from other agencies. They have affirmatively stated that this happens, but they would not disclose any examples of what agencies would or have accompanied them. Right now most of you are thinking of the HSUS-led raids on breeder homes in past years, where they "accompany" local law enforcement, and it's very troubling. The rule as stated has made clear that if an APHIS officer is with a second officer, they do not have to tell you who the person is, what agency they are from, or why they are present. You will be in violation of the rule if you do not allow any person with the APHIS officer access to your home for investigation. 

The so-called "business plan" is important for many reasons. They are asking, and I highly recommend, that all breeders begin an extensive record-keeping process that indicates information about the animals, their health, their status in your breeding program, their personal reproductive status, and their uses. In addition, make sure you are registering your litters and kittens, particularly those that go on to show and breed. The "why" here is because cats have no purpose-bred exemption, and because you want to be able to prove that your actions are in compliance with the rule. 

First, the purpose-bred "exemption" - dog breeders carved out an exemption for dogs bred and raised for a purpose - working dogs who are trained to hunt, work with the disabled, rescue, guarding and security, that sort of thing. Those kennels, to maintain this exemption, must have records demonstrating that the animals bred there are bred for this purpose, not to be pets. An example: you breed hunting dogs. In ten years, you produce 100 puppies; you made efforts to train them all for hunting, but each year you average 1 puppy per 10 that does not make the grade in training and is sold as a pet only. The "inadvertent" production of a pet in this model will not alter the status of your kennel as breeding working dogs who are exempt from the rule. However, if your 100 puppies average 7 of every 10 failing to make the grade - you are no longer breeding the occasional pet, you're breeding the occasional hunting dog, and now you will lose that working dog exemption. Remember that no matter how the numbers come out - you NEED to have thorough records to demonstrate your program is exempt due to purpose-bred dogs.

Second - you can ship any breeding animal sight unseen without consequence under this rule. This has prompted several people to say they will only sell breeding animals from now on, just allow the pet buyer to spay/neuter the animal. This is also a very bad idea. If you try to take advantage of this loophole, and a complaint is filed, the USDA will want to see your records, and they will expect to see the records of your breeding cats, as well as their offspring, to prove they were in fact breeding cats. If you in 5 years placed 3 breeders and 15 pets as "breeding animals," and none of those 15 pets have offspring, you are asking for a lot of trouble in the form of fines and possible shutdown of your facility until you are in compliance. If you place 15 breeders and 3 pets - again, you can argue for exemption, that you are only breeding for breeding animals. 

Some other tidbits...

In this analysis I've not gone beyond the scope of dogs and cats. Dog breeders scored a big win on the working dogs, and rabbit breeders got more freedom based on the purpose they sold rabbits for. Cats were never given a chance to negotiate any exemptions, which is sad because of just how small the pedigreed cat world is. There is a possibility that based on your business plan, you may be able to craft another niche. Inexplicably, they appeared to lack input on cats in general. APHIS personnel had no idea that we often placed adults free of charge; nor that we can show in an alter class, meaning there is such a thing as a "show" home (as opposed to "pet" home). It is possible, and does happen - I know, I've done it myself - to place an animal in a home for the purpose of showing, that may or may not remain in the home as a pet. Because this was not contemplated, it is possible that with record keeping and thorough information sharing, we may have a small opening. Not something to be relied on, but another reason to keep detailed records on all your cats, even those going to show only homes.

Sadly, in response to this rule change, we're already seeing rescues folding, primarily purebred rescues because of how they are usually organized and operated. This rule change is putting rescues in a terrible position. The vast majority of the animals they are shipping are not "born and raised" on their premises. To keep costs of transport down, they often utilize volunteers driving legs of transport, none of whom can stand in under the rule as a qualifying in-person meeting. A transport-based rescue can't be expected to evaluate and license every foster and transporter they have; no rescue can operate under such an onerous mandate. Local brick and mortar rescues will continue; however, rescues like specialty purebred and pedigreed rescues, which demand a nationwide network of volunteers, will collapse under the requirements of this rule.

Got questions? Let me know at sinend.ta@gmail.com and I'll add more and update as more information becomes available.