The proposed changes to the Animal Welfare Act do not solve the so-called “puppy mill” problem
By Laura McFarland-Taylor
originally printed in the Illinois State Bar Association’s Animal Law newsletter
There are numerous problems with the proposed changes (APHIS) to the Animal Welfare Act (AWA), which purport to solve the “puppy mill” problem, the most glaring being that it will do no such thing.
It is interesting to me that in all the “pro-APHIS” articles I have read none of them actually quote the proposed changes or the AWA, but I will get to that in a minute.
First, there is no legal definition for “puppy mill” – the term brings to mind Justice Potter Stewart’s famous quote about hard-core pornography: “I know it when I see it”, and citations to animal rights groups claiming victory over the removal of “puppy mill” ads from various social media sites is a hollow victory – great for raising donations, but it does nothing to actually solve the issue of poor breeding or animals kept in substandard conditions.
The following are not legal definitions either, but they speak much more closely to what actually goes on in dog breeding:
Commercial breeder: breeds pet dogs in larger numbers specifically for the pet market and derives all or a substantial portion of their income from puppy sales; may be sold at wholesale as well.
Pet breeder: breeds pet dogs in small numbers specifically for the pet market and does not derive a large portion of their income from puppy sales.
Purpose breeders: breeds dogs for a specific purpose, working, competition, etc. Puppies that do not fit the purpose are sold in the pet market. These may be large produces or small ones or everything in between.
Shipping dogs and puppies “sight unseen” has never been uncommon in any of these categories. The internet actually gives potential buyers more information than traditionally available – of course, there are still scams, but the scams generally have nothing to do with the puppies themselves; as a matter of fact, the scam is usually that there is no puppy at all. Nothing in these proposed regulations can force a buyer to use common sense. Although the USDA claims that it has received “numerous” complaints about puppies bought over the internet, it has not quantified those complaints nor has it provided objective proof that the complaints were true.
The fact is that a lot of the anti-breeding rhetoric is, at its heart, a moral judgment that breeding dogs for money is wrong. 
As I said, what I find most curious about those championing the proposed regulations is that they never seem to quote from them – instead relying on an emotional reaction to exclamations of “we’re saving puppies!” instead of facts.
Under the proposed regulations dog breeders who maintain more than four females biologically capable of having puppies and who sell a puppy to just one person at a distance would be regulated as commercial breeders under the proposed regulations.
This seems pretty straightforward until you actually read the regulations: the regulation would control breeders who sell online with 4 or more females of ANY SPECIES. So, for example, if someone breeds rabbits and dogs and has four females that COULD be bred (again, they don’t have to actually be bred), this would affect them. Included in the count are any animals that are co-owned (very common among show dogs) and that do not even live on the breeder’s property.
As a sample of the unrealistic requirements that would be applied to small home-based breeders – Section 3.1(b), Housing Facilities, general, states: “Animal areas inside of housing facilities must be kept neat and free of clutter, including equipment, furniture, and stored material, but may contain materials actually used and necessary for cleaning the area, and fixtures or equipment necessary for proper husbandry practices and research needs.”
Sec. 3.2 Indoor housing facilities, states: “(d) Interior surfaces. The floors and walls of indoor housing facilities, and any other surfaces in contact with the animals, must be impervious to moisture. The ceilings of indoor housing facilities must be impervious to moisture or be replaceable (e.g., a suspended ceiling with replaceable panels).”
Obviously, a home contains furniture and stored material and other equipment not related to animal care. Are the floors and walls of most homes “impervious to moisture “? A private home is not an acceptable licensed “animal area” under the AWA regulations. Most home-based breeders will not be able to have a separate animal facility or “animal area”, and will be unable to comply with this regulation. If they can’t comply with ANY ONE PART of the AWA regulations, they can not only lose their license, but they can be fined and fines can go up to $10,000.
Section 3.6, Primary enclosures, states: (c) Additional requirements for dogs, states: (2) Compatibility. … [P]uppies … 4 months of age or less may not be housed in the same primary enclosure with adult dogs … other than their dams or foster dams, except when permanently maintained in breeding colonies;
And Sec. 3.7 Compatible grouping, states: (c) Puppies … 4 months of age or less may not be housed in the same primary enclosure with adult dogs … other than their dams or foster dams, except when permanently maintained in breeding colonies;
Again, a home-based breeder may not have enough room to separate all dogs and puppies and may be unable to comply with this regulation. In addition, socialization of puppies is incredibly important and is best achieved when the animals are raised together.
What about the “exemptions”?: “This term does not include… any retail outlet where dogs are sold for hunting, breeding, or security purposes;…” As stated by Tina Perriguey, President, United States Working Dog Foundation:
“This ‘exemption language’ provides no protection or exemption for current and future generations of large numbers of working dog specialties.
The working dog world is highly esoteric. It’s simply impossible to draw a bright line in the sand between pet dogs and the producers of working dogs. Many puppies who were sold at retail for use as pets (therefore NOT protected by above language) will grow up to become producers of critically important working dogs.”
Another troubling aspect of the proposed regulations are the requirements that (1) the breeder have someone available from 7 a.m. until 7 p.m., Monday through Friday, 12 months a year, for an APHIS inspection, and (2) that the breeder open their home to anyone interested in buying a puppy, raising both bio-security and safety concerns.
Many breeders have jobs outside the home and it is simply not practical or economically feasible to have someone onsite Monday through Friday from 7 a.m. until 7 p.m.
“Parvo” is a highly contagious and easily spread – puppies generally do not receive an initial vaccination before 9 weeks of age (with a booster at 14 weeks) and the vaccine is not immediately effective. It would be very easy for a buyer to inadvertently spread parvo throughout a breeder’s litter.
Most concerning however, is the requirement that a buyer be allowed into a breeder’s home. There is no discretion involved – if a buyer wants to see your puppies, even if they are being raised in the most private portion of your home, the breeder has to allow him or her in.
Many have pointed to the Factsheet issued by APHIS as “proof” that the federal government will not enforce the proposed regulations as they are actually written. Hogwash. There is nothing “ambiguous” about the proposed regulations, and if they are so ambiguous that the USDA has to issue a Factsheet that contradicts the plain language of the proposed regulations, then those regulations clearly need to be re-written.
Then there is the issue of enforcement. An undertaking of this magnitude would require a huge increase in APHIS’s budget – unlikely in the current economic climate. Would APHIS then “farm out” inspections? Very likely it would – and probably to the very entities that want to end the breeding of animals, period, such as the Humane Society of the United States (HSUS) and People for the Ethical Treatment of Animals (PETA). This is especially so since the head of APHIS is a former attorney for the HSUS, Sarah L. Conant. These animal rights groups do not have a good track record in conducting these types of “raids”.
Additionally, there is a growing problem with people posing as animal control officers and then stealing dogs.
No one denies that there are breeders that keep their animals in sub-standard conditions, but painting an entire industry with the “puppy mill” brush does nothing to solve the problem of “bad” breeders, it exponentially expands the reach of the federal government, it places onerous economic and wholly-impractical conditions on people who are “good” breeders, and it endangers the very animals it claims to help.
 II. Summary of Major Provisions (pg 28799), http://www.regulations.gov/#!documentDetail;D=APHIS-2011-0003-0001 “This proposed rule would rescind the “retail pet store” status of anyone selling, at retail for use as pets, the animals listed above to buyers who do not physically enter his or her place of business or residence in order to personally observe the animals available for sale prior to purchase and/or to take custody of the animals after purchase. Unless otherwise exempt under the regulations, these entities would be required to obtain a license from APHIS and would become subject to the requirements of the AWA, which include identification of animals and recordkeeping requirements, as well as the following standards: Facilities and operations (including space, structure and construction, waste disposal, heating, ventilation, lighting, and interior surface requirements for indoor and outdoor primary enclosures and housing facilities); animal health and husbandry (including requirements for veterinary care, sanitation and feeding, watering, and separation of animals); and transportation (including specifications for primary enclosures, primary conveyances, terminal facilities, and feeding, watering, care, and handling of animals in transit).
 Jacobellis v. Ohio, 378 U.S. 184, 197 (U.S. 1964).
 Patti Strand, Animal Rights, Animal Welfare: Which Is It? (Jan. 15, 2012), http://www.naiaonline.org/articles/article/animal-rights-animal-welfare-which-is-it; Darioringach, Animal Rights vs. Animal Welfare 101: A Crash Course for Legislators (Dec. 10, 2012), http://speakingofresearch.com/2012/12/10/animal-rights-vs-animal-welfare-101-a-crash-course-for-legislators/
 For example, the Humane Society of the United States (HSUS) gives less than one percent of the millions of dollars it raises to shelters: Douglas Anthony Cooper, Please Don’t Give to the US Humane Society if You Care About Pets (Oct. 15, 2012, 12:21 PM), http://www.huffingtonpost.ca/douglas-anthony-cooper/humane-society_b_1943902.html?gclid=COTB1q-3kLQCFaGPPAodqVYAlQ&just_reloaded=1; and its actions in the aftermath of Katrina have been called into question, Douglas Anthony Cooper, Will the HSUS Make a Killing Off Hurricane Sandy? (Nov. 2, 2012, 7:53 AM), http://www.huffingtonpost.com/douglas-anthony-cooper/will-the-hsus-make-a-kill_b_2060516.html; People for the Ethical Treatment of Animals (PETA) is no better: Douglas Anthony Cooper, PETA’s Celebs: Naked in the Name of Mass Pet Slaughter (March 22, 2012, 7:27 AM), http://www.huffingtonpost.ca/douglas-anthony-cooper/peta-kill_b_1352462.html,
 “…Illinois adheres to the principle of caveat emptor.” Polansky v. Anderson, 2005 U.S. Dist. LEXIS 37948, 25 n.11 (N.D. Ill. Dec. 29, 2005).
 Anne Marie Duhon, HSUS puts a bounty on breeders, http://www.examiner.com/article/hsus-puts-a-bounty-on-breeders http://tinyurl.com/6v7kmvc; When asked if he envisioned a future without pets, “If I had my personal view, perhaps that might take hold. In fact, I don’t want to see another dog or cat born.” Wayne Pacelle (president and CEO of HSUS), Ted Kerasote, Bloodties: Nature, Culture and the Hunt 266 (1993).
 You can read the proposed changes here: http://www.regulations.gov/#!documentDetail;D=APHIS-2011-0003-0001. In addition, the Hunte Corporation, which is one of the largest suppliers of puppies to pet stores, is in support of the proposed regulations, http://www.regulations.gov/#!documentDetail;D=APHIS-2011-0003-12026; although Hunte is licensed by the USDA and fully compliant with its regulations, I doubt its facilities are exactly what people have in mind when looking for a “home-raised” puppy.
 “Fertile Octogenarian, anyone? “[T]he cases of ‘the fertile octogenarian’, ‘the unborn widow’ and ‘the magic gravel pit’ in Professor Leach’s classic article, ‘Perpetuities in a Nutshell’, 51 Harv.L.R. 638, 642-645 (1938).” American Sec. & Trust Co. v. Cramer, 175 F. Supp. 367, 375 (D.D.C. 1959). “Although a “breeding female” is not defined in the rule, it may be assumed that a breeding female would be broadly defined as an intact adult female. However, the keeping of intact females is not in fact equivalent to breeding and should in no way be treated as proof of breeding or selling puppies. Likewise, when a hobbyist does breed an intact female, it may be the only breeding this dog will ever have despite being kept intact for the majority of her life.” American Kennel Club, Comments on Proposed Rule, http://images.akc.org/pdf/governmentrelations/documents/AKCcommentsAPHIS.pdf
 Sec. 3.1 Housing facilities, general. Facilities and Operating Standards (pgs 54 – 55) http://www.aphis.usda.gov/animal_welfare/downloads/awr/awr.pdf
 Sec. 3.2 Indoor housing facilities (pg 57) http://www.aphis.usda.gov/animal_welfare/downloads/awr/awr.pdf
 Sec. 3.6 Sec. 3.6 Primary enclosures Housing facilities, general. Facilities and Operating Standards (pgs 61 – 62) http://www.aphis.usda.gov/animal_welfare/downloads/awr/awr.pdf
 Sec. 3.7 Sec. 3.7 Compatible Grouping (pg 62) http://www.aphis.usda.gov/animal_welfare/downloads/awr/awr.pdf
 Dr. Karen Becker, Raise Your Puppy to Be a Confident, Balanced Dog (May 3, 2011), http://healthypets.mercola.com/sites/healthypets/archive/2011/05/03/raise-your-puppy-to-be-a-confident-balanced-dog.aspx
 Sec. 1.1 Definitions. Dealer (pg 7) http://www.aphis.usda.gov/animal_welfare/downloads/awr/awr.pdf
 Sec. 1.1 Definitions. “Business hours means a reasonable number of hours between 7 a.m. and 7 p.m., Monday through Friday, except for legal Federal holidays, each week of the year, during which inspections by APHIS may be made.” (pg 7) http://www.aphis.usda.gov/animal_welfare/downloads/awr/awr.pdf
 Summary. “Specifically, we would narrow the definition of retail pet store so that it means a place of business or residence that each buyer physically enters in order to personally observe the animals available for sale prior to purchase and/or to take custody of the animals after purchase, and where only certain animals are sold or offered for sale, at retail, for use as pets.” (May 16, 2012) (pg 28799) http://www.regulations.gov/#!documentDetail;D=APHIS-2011-0003-0001
 Dr. Karen Becker, Protecting Dogs from Deadly Parvo (Sept. 1, 2011), http://healthypets.mercola.com/sites/healthypets/archive/2011/09/01/protecting-dogs-from-deadly-parvo.aspx
 See supra note 20.
 Tina Perriguey, The Gift of Fear. Use It Before It’s Too Late. Fight the USDA/APHIS Proposed Rule Which Strips You of Your Safety (June 30, 2012 8:31 PM), https://www.facebook.com/notes/tina-perriguey/the-gift-of-fear-use-it-before-its-too-late-fight-the-usdaaphis-proposed-rule-wh/10151877481510029
 Questions and Answers: Proposed Rule – Retail Pet Sales (July 2012) http://www.aphis.usda.gov/publications/animal_welfare/2012/retail_pets_faq.pdf
 “The same rules of construction apply to administrative rules as to statutes. In either case, we begin by asking ‘whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.’ A regulation is ‘ambiguous’ as applied to a particular dispute or circumstance when more than one interpretation is ‘plausible’ and ‘the text alone does not permit a more definitive reading.’ If the meaning of the regulatory text is clear, the task is complete.” [internal citations removed] Exelon Generation Co., LLC v. Local 15, IBEW, 676 F.3d 566, 570 (7th Cir. Ill. 2012).
 “We have no ethical obligation to preserve the different breeds of livestock produced through selective breeding. One generation and out. We have no problem with the extinction of domestic animals. They are creations of human selective breeding.” Wayne Pacelle (president and CEO of HSUS), Animal People, May, 1993 (http://www.animalpeoplenews.org/); When asked if he envisioned a future without pets, “If I had my personal view, perhaps that might take hold. In fact, I don’t want to see another dog or cat born.” Wayne Pacelle (president and CEO of HSUS), Ted Kerasote, Bloodties: Nature, Culture and the Hunt 266 (1993).
 “But as the surplus of cats and dogs (artificially engineered by centuries of forced breeding) declined, eventually companion animals would be phased out, and we would return to a more symbiotic relationship ¬ enjoyment at a distance.” Ingrid Newkirk, founder, president and former national director People for the Ethical Treatment of Animals (PETA), quoted in The Harper’s Forum Book 223 (Jack Hitt, ed., 1989); “Pet ownership is an absolutely abysmal situation brought about by human manipulation.”, Ingrid Newkirk, Just Like Us?, Harper’s, Aug. 1988, at 50; “The bottom line is that people don’t have the right to manipulate or to breed dogs and cats … If people want toys, they should buy inanimate objects. If they want companionship, they should seek it with their own kind.”, Ingrid Newkirk, Animals, May/June 1993; “One day, we would like an end to pet shops and the breeding of animals. [Dogs] would pursue their natural lives in the wild … they would have full lives, not wasting at home for someone to come home in the evening and pet them and then sit there and watch TV.”, Ingrid Newkirk, Chic. Daily Herald, March 1, 1990; “The cat, like the dog, must disappear… We should cut the domestic cat free from our dominance by neutering, neutering, and more neutering, until our pathetic version of the cat ceases to exist.” John Bryant, Fettered Kingdoms: An Examination of a Changing Ethic 15 (PETA 1982).
 You can read about Ms. Conant’s involvement in the Dollarhite rabbit debacle here: Jonathan Strong, USDA fines Missouri family $90k for selling a few rabbits without a license (May, 24, 2011 12:55 PM), http://dailycaller.com/2011/05/24/usda-fines-missouri-family-90k-for-selling-a-few-rabbits-without-a-license/#ixzz2Em9HHVig; USDA offers to drop fine against rabbit seller, Nixa man must get rid of animals, can never receive license (June 3, 2011 11:00 PM), http://www.news-leader.com/article/20110604/NEWS01/106040350/USDA-offers-drop-fine-against-rabbit-seller
 Purebred Breeders Seeks Legal Fees From HSUS To Donate, Humane Society of the United States Exposed Again (Dec. 5, 2012), http://www.heraldonline.com/2012/12/05/4464187/purebred-breeders-seeks-legal.html#disqus_thread#storylink=cpy; HumaneWatch.org, Equine Expert on HSUS Raid: Lots of Horsing Around (Mar. 6, 2012), http://www.humanewatch.org/index.php/site/post/equine_expert_on_hsus_raid_lots_of_horsing_around/; Tom Hansen, Dan Christensen Sues Dozens Involved In Dog Raid (Sept. 8, 2010 6:07 PM), http://www.kdlt.com/index.php?option=com_content&task=view&id=4937&Itemid=57.
 Tom Embrey, Men Posing as Animal Control Officers Attempt to Steal Dogs (Oct. 22, 2011), http://www.thepilot.com/news/2011/oct/23/men-posing-animal-control-officers-attempt-steal-d/; Keith Strange, Fake animal control officers plaguing county (Dec. 4, 2012), http://mtairynews.com/bookmark/21010360/article-Fake%20animal%20control%20officers%20plaguing%20county#.UL2_bfCa9Th.facebook; Josh Ault, Horse Haven volunteers warn of imposters using their name to get horses (Dec. 4, 2012), http://www.wate.com/story/20258127/horse-haven-volunteers-warn-an-imposters-is-using-their-name-to-get-horses; Jeri Clausing, Dog theft case ripples through New Mexico town (Dec. 4, 2012), http://news.yahoo.com/dog-theft-case-ripples-mexico-town-101617508.html
 For example, Science News, Old English sheepdog breed “vulnerable” (Oct. 29, 2012), http://www.upi.com/Science_News/2012/10/29/Old-English-sheepdog-breed-vulnerable/UPI-62051351539386/; Katie Thomas, Dog Show’s Rare Breeds Are Glimpse of History ( Feb. 14, 2011), http://www.nytimes.com/2011/02/15/sports/15dogs.html. http://online.wsj.com/article/SB10001424052970204846304578090683395043530.html.
 Julia Flynn Siler, A Breeder’s Quest for Perfect Puppies (Nov. 2, 2012 6:14 PM), http://online.wsj.com/article/SB10001424052970204846304578090683395043530.html.