New USDA Rules -- Questions and Answers

The new USDA rules, which basically change the definition of a "retail pet store" and increase Federal oversight of many breeders selling puppies sight unseen, have not surprisingly generated a number of questions from dog breeders. Some of the most common are addressed here. Again, keep in mind that I am neither a Federal employee nor an attorney. I've provided as many citations as possible to support these answers and help bust the many myths that have already sprung up regarding the rule. For the sake of simplicity, I am limiting the information to the sale of dogs and puppies only; if you also breed and sell other species, a more thorough review of the rule is advised. This is not to be construed as legal advice.

Items Used as Reference
Animal Welfare Act Regulations ("Regulations") -- current as of 9/10/13, do not include new rule (HTML)
Glossary of AWA Terms ("Glossary") -- not updated with new rules as of 9/12/13. (PDF)
Docket No. 2011-2003 ("Docket") -- the Final Rule, as officially published in the Federal Register (PDF)

Press Release Regarding Final Rule ("Release") -- dated September 10, 2013 (HTML)
Questions and Answers Regarding Final Rule ("Q&A") -- Factsheet dated September 2012 (PDF)
USDA Conference Call Regarding Final Rule ("Conference Call") -- Held September 10, 2013 (Vimeo)
Transcription of USDA Conference Call Regarding Final Rule ("Transcript") -- Held September 10, 2013 (PDF)
The Published Final Rule  ("Published Rule") -- as published in the Federal Register on September 18, 2013

* Note that the text of the Final Rule is identical to the text of the Docket, aside from housekeeping changes (such as capitalizing "Amendment" when referring to the Tenth Amendment, etc.). References to the "Docket" will also refer to the "Published Rule", however the published Rule is in a columnar format, where the Docket is not, so the page numbers will be different.

What is a "Breeding Female"?
Honestly, no one knows. It is up to the inspector to determine whether a female is capable of breeding, based on things like age, condition, illness, etc. (see Docket, pages 53, 55, 56). The safest bet is to look at other legislation and figure any intact female, four months of age or older, would be considered a "breeding female".

There are three key points to keep in mind if you think you may qualify for the "four or fewer breeding females" exemption. One is that it applies to all breeding female dogs, cats, and/or small exotic or wild
mammals, such as hedgehogs, degus, spiny mice, prairie dogs, flying squirrels, and jerboas. If you have two intact adult female dogs, two intact adult female cats, and an intact female hedgehog, you have five breeding females and do not qualify for the "four and fewer" exemption. (See Docket, pages 48, 90, 91)

The next key point is that the rule uses the word "maintains". This is not the same thing as "owns". You "maintain" a breeding female if it resides at your premises, even if temporarily. (See Docket, page 60) This may have a significant impact on Boxer handlers who are also breeders, since they often have a string of dogs that live with them for at least a night or two. What is not defined is whether there is a time limit on when you must have "maintained" these females, or whether the count applies at any one moment in time. (For example, a handler returning from a show that is inspected on a Monday might have eight intact females; if she were inspected that Wednesday instead, after five client females had gone home, she might only have three intact females.)

Finally, the rule states that to qualify for the "four or fewer" exemption, you must sell "only the offspring of these [breeding females] which were born and raised on [your] premises". (See Docket, pages 90-91). That means if you get a stud fee puppy back and later sell it to someone, you do not qualify for the exemption. (The Docket does state that the USDA would need to evaluate the situation to determine whether you would qualify for the exemption, but it's good to bet that you won't. See pages 59-60.) If you get a puppy back from a co-owned litter and sell it to someone, you do not qualify for the exemption. If you buy a dog from someone else to breed and show and later sell it to someone else to live out its retirement in luxury, you do not qualify for the exemption. If you foster dogs for a rescue group and sell (adopt, place, whatever) the dog in its forever home, you do not qualify for the exemption.

What About Co-Ownerships?

One area where the rule was changed for the better was in regards to co-owned females. The rule is a little vague but the Docket, the Q&A, and the Conference Call all clarify that the rule is premise-based, and co-owners will only be regulated based on the number of dogs on their own premises. (Docket, page 62: "We acknowledge that co-ownership of breeding females is a standard practice among small-scale residential breeders. Provided that no more than four breeding females are maintained on his or her premises, these individuals would qualify for the exemption"; Q&A, page 3: "Owners (even if they only partially own the animals) with four or fewer breeding females on one premises do not need to be licensed by APHIS."; Conference Call somewhere in the middle, sorry, will get the exact time/quote later!).

Does This Mean I Can No Longer Ship Puppies?

Well, yes and no. You can ship puppies all you want, but you might have to become licensed if you do. If you have four or fewer breeding females and sell only their offspring, you can ship your puppies sight unseen and you do not need a license to do so. (This is a highly contentious bit of the rule and will be addressed more in-depth shortly.) If you have more than four breeding females, or if you sell animals that weren't born and raised on your premises, you must be licensed if you ship even one animal sight unseen.

You can also, however, ship to someone who has seen the animal previously. If you have a buyer who lives out of state but is in town and visits the litter at six weeks of age, you can ship the puppy to that buyer when it reaches eight weeks of age. (See Docket, page 25, talking about a repeat buyer: "each purchase of a pet animal requires that the seller, buyer, and the animal available for sale are physically present so that every buyer may personally observe the animal prior to purchasing and/or taking custody of that animal after purchase. Accordingly, if the buyers observed this second pup during their visit, this condition is fulfilled.")

Clearly, this is a problematic area for many responsible home breeders. Shipping dogs to buyers in other states is a long-practiced way to disseminate different bloodlines across the country. If you have five or more breeding females, however, you simply no longer have that option. The buyer must, at some point, see the dog in the flesh before it is sold or custody is transferred. The one saving grace is that a new owner may appoint a "proxy" of sorts to pick up the puppy for them -- the USDA allows that the buyer may not be the ultimate owner. (See Docket, page 28: "we consider the buyer to be the person who takes custody of the animal after purchase. This person may differ from the ultimate owner of the animal but cannot be acting as a carrier or intermediate handler.") Basically, if someone is not in the business of transporting animals, they can pick up the dog on behalf of the ultimate owner. (Some breeders may find contract modification necessary in this circumstance, just to keep the definitions of "buyer" in sync.)

I Meet The "Four and Fewer" Exemption. Can I Ship A Puppy Sight Unseen?

Yes, you can. There are some who are holding fast to the notion that "if you ship even one puppy sight unseen, you must be licensed." As of yet, however, not one of them has been able to provide a source for that notion. It is not stated that way in any document from the USDA, and as above the exemptions are clearly written so that if you qualify for the "four and fewer" exemption, you are not subject to licensing. To help ease the minds of those who are struggling with this, here are some other citations:

"Small-scale residential hobby breeders -- those who keep four or fewer breeding females on their property, and sell the offspring as pets, do not need to be licensed. If they choose to do so, these small-scale breeders can continue to sell their offspring in sight unseen transactions." (Conference Call, 3:40)

"This final rule will primarily affect dog breeders who maintain more than four breeding females at their facility.and sell the offspring as pets to buyers who do not see the animals prior to taking ownership of them." (Conference Call, 4:13)

[In answer to a buyer with eight breeding females who sells only in face-to-face transactions:] "It won't affect you because you sell dogs to people who come to your home anyway, but if you didn't sell them that way, if you did ship dogs, you would fall under this rule and have to be regulated, have to get a license, because you have more than four." (Conference Call, 26:54)

What is a "Working Dog"?
Retail sellers of working dogs are exempt from AWA licensing. Unfortunately, the USDA has not been clear about what it considers a "working dog", and appear to not understand the concept that a dog can be a working dog and a trial dog and a show dog and a pet dog. Specific examples that have been discussed in the various publications include hunting, security, and stock dogs, with the acknowledgment that "The examples cited in the exemption (hunting, security, or breeding purposes) are only intended to illustrate other purposes for buying or selling a dog at retail. As commenters pointed out, those examples are not exhaustive, and there are many other purposes that a dog can be used or trained for that are not included under the definition of dealer." (Docket, page 16)

The USDA also acknowledges that some dogs will not be suitable for working for various reasons, and that some owners will not work their dogs even if purchased for that reason. The USDA's focus seems to be on the reason the breeder is selling their dogs, the vast majority of the time. The key words seem to be "occasionally" and "intent". Dr. Rushin has invited working dog breeders to call him directly and discuss their particular situation, to see if they would be exempt or not. (301) 851-3751

"So, if your intent was to sell the dog as a working dog, we understand that some dogs may not work out as
working dogs, we are aware of that and we understand that. If you're [sic] overall intent is to sell that dog as a working dog, stock dog and that does not happen, we understand that and you will not be covered under this regulation." (Transcript, page 12)

"Individuals who intend to breed and sell dogs at retail as working dogs may occasionally raise a dog that lacks the characteristics that would enable it to be sold or used for its intended working purpose. As long as the individual originally intended to raise and sell the dog at retail for that purpose and the individual continues to market his or her dogs for that purpose, the individual could sell that dog at retail and remain exempt." (Docket, page 16, Q&A, page 2)


What is a Dog Sold For "Breeding Purposes"?
Another murky area, with much the same answer as the "working dog" question. The NAIA has reviewed the Final Rule and has published their interpretation, which includes these statements:

"A breeding done to maintain bloodlines or to produce [for example] herding dogs may produce an animal not suitable for the purpose for which it is bred.  That animal may be sold as a pet if the intention in breeding was to produce breeding or herding stock and not an animal for sale as a pet and you continue to advertise your animals for sale as breeding or herding stock or another purpose not included in the six dealer purposes."

"It is not the regulatory intent of USDA to regulate residential breeders, unless they are clearly breeding for the purpose of selling pets."

Note that these statements have not yet  been verified by the USDA. While many "show breeders" are taking this to mean that they are exempt from licensing  because they are "breeding to maintain bloodlines", many show breeders also sell the majority of their dogs as pets, on spay/neuter contracts. Given the USDA's emphasis on "intention to sell" the dog for a specific purpose, and the acknowledgment that breeders of working dogs may "occasionally" have a dog that doesn't turn out, I would personally advise caution on taking this stance until and unless the USDA confirms that "breeding to maintain bloodlines" exempts one from licensing, even if most of the puppies are sold as pets. (I very much hope the NAIA is right, but the statements regarding working dogs has me skeptical the exemption would apply to the typical show breeder. Note also that "preservation of bloodlines" was specifically mentioned as an exemption for rabbit breeders, but not for dog breeders. (Transcript, page 2, Release, paragraph 7) If, however, your intention is to sell all of your puppies as breeding prospects, you would likely qualify for the exemption.)

What's Considered "Face-to-Face"? Does Skype Count?
If all of your sales are face-to-face, you are considered a "retail pet store" and exempt from AWA licensing. The USDA has stated "We consider a face-to-face transaction as one in which the seller, buyer, and the animal available for sale are physically present so that every buyer may personally observe the animal prior to purchasing and/or taking custody of that animal." (Docket, page 21). Skype, webcams, and other virtual visualization media would not count as a face-to-face interaction.The Executive Summary of the Docket also addresses the "virtual" question:

"A number of commenters asked why a buyer’s physical presence at a place of business or residence was necessary to protect animal welfare. The commenters pointed out that Web-based technologies allow buyers to “virtually” observe animals that are for sale. On the other hand, several commenters pointed out that virtual technologies can be manipulated to provide an inaccurate depiction of animal care at a seller’s premises.

"While many breeders use Web-based technologies to provide buyers with visual and other information about the animals they sell, we agree with the commenters’ point that such technologies can be used to inaccurately depict the health and condition of the animal for sale." (Docket, pages 28-29)


Does This Mean I Have to Let People Into My Home?
Some home-based breeders prefer not to allow people to come into their home, for safety, security, health or various other reasons. The USDA has acknowledged these concerns, and has stated that the "residence" does not necessarily have to be the seller's residence. Further, they have stated that a "place of business" is essentially anywhere the buyer, seller, and puppy are physically together in the same location. That means you can meet your puppy buyer at a friend's house, at the park, in the shopping center parking lot, or at the airport -- as long as you are all together in person at the same time, it is considered a face-to-face sale. (Note that many municipalities prohibit business transactions in public places, so check the local ordinances of wherever you intend to meet the buyer.)


What If the Buyer Can't Come to Me?
Some buyers aren't able to drive long distances or fly to breeders to pick up a puppy. If it's a timing issue, the buyer can come see the puppy at an earlier date. For example, they could come when the pups are 6 weeks old, and you could then ship the puppy to them when it was 8 weeks without needing a licensing. As long as the buyer, seller, and puppy are physically in the same location at the same time prior to the sale or transfer of custody, it is considered a face-to-face transaction.

"One commenter asked how recently buyers must have visited a facility before a seller can sell them a pup remotely. As an example, the commenter wanted to know whether, if buyers visited her facility 2 years earlier to buy a pup, she could remain exempt if she shipped them a second pup without them visiting her a second time.

"As indicated in our revised definition of retail pet store, each purchase of a pet animal requires that the seller, buyer, and the animal available for sale are physically present so that every buyer may personally observe the animal prior to purchasing and/or taking custody of that animal after purchase. Accordingly, if the buyers observed this second pup during their visit, this condition is fulfilled. If they did not (e.g., if the pup was not yet born when the prior transaction took place), this condition is not fulfilled." (Docket, page 25)

Another option is for the new owner to send someone to observe and pick up the puppy in their place. As far as the USDA is concerned, the buyer is not necessarily the same person as the ultimate owner. The only restriction is that it cannot be a paid agent -- no "carriers" or "intermediate handlers". (A carrier is an animal transportation business, basically, and an intermediate handler is a person in the business of receiving custody of animals in connection with their transport in commerce. (Glossary) Essentially, if they get paid to pick up the puppy, it doesn't count.) So a family member, friend, fellow breeder, etc. could pick up the puppy from you on the new owner's behalf; the person picking up the puppy would be considered the buyer for the intents of the "buyer, seller, and animal must be physically present in the same location at the same time" definition of a face-to-face transaction.

What hasn't really been discussed is whether a seller can utilize an agent, as well. The summary does include the following statement:

"While the seller’s presence at this [face-to-face] transaction was implicit in our proposed definition of retail pet store, we are amending the definition to actually include the word 'seller' in order to underscore his or her presence." (Docket, page 21)

However, that does not necessarily mean the seller can't send the puppy with a friend or relative (again, no paid agents). I have requested some clarification on this point, so hopefully it will be answered soon.

Why Won't This Help Puppies in Substandard Facilities?
This legislation might slightly decrease the number of sight unseen sales, but I don't think it will do much of anything to get rid of substandard breeders or improve conditions of the dogs in those facilities -- many of which are already USDA licensed. Especially if the NAIA's opinion on what "breeding purposes" means is supported by the USDA: none of the "Internet sale" breeders sell their pups on a spay/neuter contract, and thus they're already selling dogs for "breeding purposes". They're also breeding so that they have more dogs to breed in the future. A tiny change in marketing, and those breeders can continue to sell sight unseen over the Internet. Breeders who wish to continue to market their puppies as pets can simply stay local and set up a weekly "puppy pick-up day" in the Walmart parking lot -- it's not too difficult to clean up a puppy for the five minutes a buyer will see it before the transaction is completed. Either way, these breeders are exempt from licensing and essentially any oversight -- which was supposedly the purpose of this rule change in the first place.


Shouldn't We Wait Until the Rule/Regulations Are Published?
As is the normal procedure for any agency rules, the Final Rule will be published in the Federal Register, and will become effective some time after that (in this case, 60 days). Some speculation has gone around that what will be finally published will be different from the Final Rule submitted by APHIS, or that the Regulations will somehow be different from the Final Rule. As far as I have been able to ascertain, neither of those are true. The Final Rule as issued is what will be published in the Federal Register, and the Final Rule details what changes will be made to the Regulations.

Anyone who has belonged to a dog club, for example, that has changed the breed standard, code of ethics, or club bylaws will know how this works. An motion is made to amend the document (the proposed rule), the members discuss, possibly amend, and vote on it, and the motion as passed is the approved amendment (the final rule). The passed motion details what exactly will be changed in the document -- a change to the height or weight, and additional health test required for breeding, or a change in how new members are voted into the club. Those changes are then incorporated into the final document, replacing the old language, but nothing is changed between the vote and the incorporation.

The Final Rule as issued by APHIS amends the following sections of the AWA Regulations:

1.1 (definitions of "dealer" and of "retail pet store")
2.1(a)(3)(i) (exemption of retail pet stores)
2.1(a)(3)(ii) ($500 limit on sales of animals other than dogs or cats)
2.1(a)(3)(iii) (formerly "three or fewer breeding females", now "four or fewer" exemption for wholesalers)
2.1(a)(3)(vii) (formerly "hobby breeder/direct retail sales", now "four or fewer" exemption for retailers)
OMB citation (housekeeping change)

These changes can be found on pages 88 through 91 of the Docket. The current Animal Welfare Act Definitions (including Section 1.1) and Regulations (including Section 2.1 and subsections) can be found online on the Government Printing Office website. Anyone who wants to know how the final Regulations will read can delete the relevant portions of the current Regulations and replace them with the amendments from the Final Rule. The Code of Federal Regulations is updated on an annual basis; Title 9, which includes the Animal Welfare Act, is next set to be updated January 1, 2014 -- until then, the Docket containing the Final Rule will be what is used as the official Regulations for those amended sections.


-- This is my best understanding of the rule at this time, based on the references cited. Changes may be made as more information becomes available, and certain aspects are clarified. --