APHIS Retail Pet Store Final Rule to be Published

The finalized USDA APHIS rule redefining retail pet stores has been released and will be officially published later this week, going into effect 60 days after publication. This is a federal rule that will affect the entire USA.

A few highlights:

Food, fiber and breeding stock sales, and the sale of certain types of working dogs, are exempt if the animals are not being sold/marketed/raised for the purpose of being pets.

The rule change will affect breeders, rescues and others who sell animals as pets in situations where the seller does not personally meet the buyer face to face when selling or delivering the animal, whether the internet is involved or not.

Other situations, such as selling to laboratories, at wholesale or for exhibition will still be covered as before under AWA/APHIS regulations.

The exemption on number of breeding females for cats, dogs, small exotics, and wild animals has been raised from 3 to 4, and APHIS has clarified that this is calculated as a per-household number of animals capable of breeding, not per species (in other words, one dog, one cat, and one hedgehog, and one spiny mouse female capable of breeding would meet the threshold, even if they were not all actually being used for breeding). This exemption only applies if all the cats, dogs, small exotics or wild animals being sold were born and raised by the seller on their premises.

The $500 threshold for other types of animals remains the same, but APHIS is removing the "limits on the source of gross income" to include retail sales under that umbrella. The under-$500 exemption applies to "any person who does not sell or negotiate the purchase or sale of any wild or exotic animal, dog, or cat and who derives no more than $500 gross income from the sale of the animals other than wild or exotic animals, dogs, or cats during any calendar year.”

APHIS clarified that shelters, rescues and other nonprofits are subject to the same standards as breeders in determining whether they need to be licensed; adoption fees and donations are considered the same as sales for their purposes.


The requirements for facilities, paperwork, etc. in order for a seller to be licensed remain the same. Nothing has been changed in that respect to make it possible for small breeders, foster homes, etc. to be USDA licensed and raise animals in a typical home/family type setting. The AWA rules still require that licensed facilities must keep animals only in a sterile commercial/laboratory-type setting with staff present at all times during business hours, and other elements discussed in our previous post about what USDA licensing entails: http://waanimal.blogspot.com/2012/06/why-not-just-apply-for-usda-license.html

Some relevant links:

USDA/APHIS News Release:

"The U.S. Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service (APHIS) has revised the definition of “retail pet store” under the Animal Welfare Act to restore an important check and balance that helps ensure the health and humane treatment of pet animals sold sight unseen."

http://content.govdelivery.com/accounts/USDAAPHIS/bulletins/8a7273

FAQs on the Retail Pet Store Final Rule:
http://www.aphis.usda.gov/newsroom/2013/09/pdf/faq_retail_pets_final_rule.pdf

PDF of the Final Rule:
http://www.aphis.usda.gov/newsroom/2013/09/pdf/pet_retail_docket_2011-2003.pdf

Recording of the APHIS-Retail Pet Rule Conference Call 9/10/13, courtesy of The Cavalry Group: http://tiny.cc/zyp72w

Updates on WA Animal Legislation

A few quick updates on several items of WA animal-related legislation:

There is a hearing on HB 5102, the veterinarian immunity law, scheduled on Wednesday, March 13th at 8am in the House Committee on Judiciary in Olympia. http://apps.leg.wa.gov/billinfo/summary.aspx?bill=5102&year=2013

You may see the previous WA Animal Watch post about veterinary immunity laws here: http://waanimal.blogspot.com/2013/02/why-veterinarians-should-not-be-immune.html

HB 1202, "Animal Cruelty Prevention," has been placed on the House floor calendar, which makes it eligible for a vote by all members of the State House of Representatives. If it passes that, the next step would be the Senate. http://apps.leg.wa.gov/billinfo/summary.aspx?bill=1202

SB 5202, the spay/neuter assistance bill, was moved on March 8th from the Senate Rules Committee to the Senate floor calendar. The next step would be a vote by all members of the Washington State Senate. An amendment and the substitute bill change the funding mechanism to donations rather than a tax on pet food or pet licensing. http://apps.leg.wa.gov/billinfo/summary.aspx?bill=5202&year=2013

Two new animal-related laws were introduced in the WA state legislature on Feb. 8th:

HB 1786 would require registration of animal abusers (defined as anyone convicted of 1st or 2nd degree cruelty, animal fighting, or poisoning animals). http://apps.leg.wa.gov/billinfo/summary.aspx?bill=1786&year=2013

See our previous post about animal abuser registry bills here: http://waanimal.blogspot.com/2011/12/animal-abuser-registry-bills.html

HB 1787 would ban the tail docking of dairy cows, outlawing both the act of docking and also essentially banning ownership of already-docked cows, in addition to forbidding bringing them into the state. http://apps.leg.wa.gov/billinfo/summary.aspx?bill=1787&year=2013

Rep. Derek Stanford is the prime sponsor of HB 1786 and 1787.

A few more animal-related pieces of legislation in WA:

HB 1830 would change the crime of causing harm to a service animal or search and rescue animal from a gross misdemeanor to a Class C felony if done "with reckless disregard". In previously existing law, a Class C felony under this statute required intent to harm the animal. As of today, it has received a first reading and been referred to the Judiciary committee. http://apps.leg.wa.gov/billinfo/summary.aspx?year=2013&bill=1830

  
HB 1024 and SB 5645 revise the language in WA statutes regarding service animals to more closely align with federal law.

HB 1024: http://apps.leg.wa.gov/billinfo/summary.aspx?year=2013&bill=1024

SB 5645: http://apps.leg.wa.gov/billinfo/summary.aspx?year=2013&bill=5645

HB 1886 adds data entry and processing expenses to the costs that can be recovered by the Dept. of Agriculture in disease control and traceability actions. http://apps.leg.wa.gov/billinfo/summary.aspx?year=2013&bill=1886 

SHB 1010 expands the requirement to add an aversive agent to antifreeze/coolant to include wholesale containers of 55 gallons or more, and exempts spent antifreeze/coolant being stored/transported for disposal. http://apps.leg.wa.gov/billinfo/summary.aspx?bill=1010&year=2013

Update on HB 1201, 1202. Judiciary committe executive session on 1202

The WA House Judiciary Committee did not take action on HB 1201 (the bill on selling animals) today.  They did take action on 1202, the bill making a number of changes to the animal cruelty statutes.

Rep. Roberts proposed a substitute bill for HB 1202 making fairly significant changes to the proposed bill, and this was passed out of committee with a vote of 8 yeas and 5 nays for a "do pass" recommendation.

The new version of the bill no longer creates a new infraction for animal cruelty, and takes out several of the proposed changes to the definitions section.

It does retain the addition of a section on leaving animals in vehicles, and the changes to add "injury" and "food and water" to the 2nd degree cruelty statutes, as well as the changes to the animal fighting statutes which would make it apply to all types and species of animals. It removes the word "knowingly" from section 3(1)(b) on animal fighting, but retains the word "knowingly" in section 3(1), which would cover 3(1)(b) as well, making the second instance of the word redundant.

The substitute bill adds "and condition" to the definition of necessary food, along with retaining the language "or as directed by a veterinarian for medical reasons" in the definitions of necessary food and necessary water, as follows:

(j) "Necessary food" means the provision at suitable intervals of wholesome foodstuff suitable for the animal's age ((and)), species, and condition, and that is sufficient to provide a reasonable level of nutrition for the animal and is easily accessible to the animal or as directed by a veterinarian for medical reasons.

The substitute bill leaves out the other suggested changes to the definitions section that were in in the original bill. It does still remove economic distress as an affirmative defense for 2nd degree animal cruelty, and retains several of the other changes to the wording of the laws as well.

The substitute bill is not yet available on the bill's homepage as of this writing, but you can read it from the committee meeting documents here: http://app.leg.wa.gov/m/cmd/main.htm?aid=18667#items_page

Click on Amd/Proposed Subs and then on 01 - PSHB 1202 With Effect Adopted (91k), and a PDF file of the substitute bill should open. Remember, in general the existing law is in regular font. Crossed-out portions in double parenthesis ((like this)) are the parts the current bill is proposing to remove, and underlined portions would be added in the proposed bill.

Here is the video of today's Judiciary Committee executive session, 1/14/2013 at 10AM.
http://www.tvw.org/index.php?option=com_tvwliveplayer&eventID=2013021100

And here is a rough transcript of the executive session from the video. The initial discussion is from near the beginning of the video, and the recommendations and voting are from about 28 minutes in. Again, this is not an official transcript; just notes taken by one of our volunteers.

WA Animal cruelty bills scheduled for executive session Feb 12th

The Washington House Judiciary Committee is scheduled to have an executive session on HB 1201 and HB 1202 on Feb 12, 2013, at 10:00AM. This is where they will be voting on whether to pass the bills out of committee to go on to the next step in the process of becoming a law or not.

Again, HB 1201 (companion bill SB 5203) would make selling animals in public places or private places open to the public, with certain exceptions, an animal cruelty crime.

HB 1202 (companion bill SB 5204) adds a new animal cruelty infraction for issues not rising to the level of 2nd or 1st degree cruelty, and makes several other changes to the animal cruelty laws.

If you would like to make your opinion known and hopefully influence the way the committee members vote, please contact the judiciary committee members ASAP.


Contact Information for the WA House Judiciary Committee:
http://waanimal.blogspot.com/2013/02/2013-wa-house-judiciary-committee.html


See the following posts for more information:

Washington Animal Cruelty Legislation for 2013: HB 1201 and HB 1202 (This post contains a summary of the two bills and the changes they would be making to existing law):
http://waanimal.blogspot.com/2013/01/wa-animal-cruelty-legislation-for-2013.html

Unofficial Transcript of Public Hearings on HB 1201 and HB 1202, including a link to video of the hearing:
http://waanimal.blogspot.com/2013/02/unofficial-transcript-of-public.html

Why Veterinarians Should Not be Immune from Responsibility

The veterinary immunity bill passed out of committee in the Washington State Senate as well as the House, and is up for debate and discussion among those lawmakers who will be voting on it next. In the WA house it is HB 1186, where it was placed on 2nd reading Feb 7th, and in the senate it is SB 5102, where it passed the 3rd reading with unanimous yes votes. Links to the pages for these bills are at the bottom of this post.

This bill would hold veterinarians immune from all civil and criminal liability for "good-faith" reporting of animal cruelty in the course of their practice. It ignores the fact that someone can "in good faith" still be negligent or commit malpractice, and leaves owners with no recourse in these situations.

The WA legislative website is trialing a new option to allow people to leave comments directly on the bill's page. Look for the "comment on this bill" link at the top of the page.

You should also contact the bill's sponsors and your representatives and let them know that animal owners need to be able to take appropriate measures if veterinarians knowingly, maliciously or negligently make false reports of animal abuse; or make a diagnosis of abuse so careless and wrong that it would be equivalent to medical malpractice.

Washington laws about false and malicious reporting, slander, etc. already require that such actions be negligent, malicious, knowingly false, etc. in order to successfully pursue action against the person. We believe there are already adequate protections in place to protect veterinarians or anyone else who makes a good-faith report of animal cruelty with legitimate reason to believe cruelty is taking place, even if the accused is not convicted of cruelty.

If it becomes commonplace for people to be unfairly prosecuted for animal cruelty when they take an animal to the vet, this will only discourage people from seeking veterinary treatment for their animals.

We know of several cases in which veterinarians reported people for animal cruelty for not purchasing a product or service they were trying to sell, or for wanting to wait or get a second opinion instead of immediately euthanizing an animal or doing an invasive and unnecessary procedure the vet recommended.

Here is one example: http://bluedogstate.blogspot.com/2012/07/cat-killer-vet-drops-dime.html

The family adopted an FIV-positive cat. When veterinarian Holly Cheever recommended euthanizing it, they decided that since the cat did not seem to be suffering they would like to try to keep it comfortable at home a little longer. They might have sought a second opinion, but the veterinarian immediately called authorities who seized the cat and brought it back to Cheevers, who euthanized it that same day (removing the owners' right to get a second opinion, and the evidence they needed to defend themselves) and insisted that they (including a family member who did not even live with the cat, but helped transport it to the vet) be charged with animal cruelty for their refusal to immediately euthanize the cat based on her recommendation.

Several of our team have personally experienced veterinarians prescribing medications or procedures contraindicated for the condition or species of animal they were treating, making severe misdiagnoses, or doing things like prescribing blacklisted medications (unsafe for use in meat animals) for livestock that were being raised for human consumption.

Animal owners should not be prosecuted because they refused the recommended treatment or went for a second opinion when the vet made a mistake like that.

No type of malpractice should be immune from consequences. If a veterinarian makes a significantly negligent diagnosis of animal cruelty, the owner should have recourse to pursue appropriate civil or criminal remedies. A veterinarian who has a pattern of reporting people in retaliation for refusing something the veterinarian was trying to sell, or for seeking a second opinion from another vet, should be disciplined. Veterinarians should have no more freedom than anyone else to make an allegation of animal cruelty without good reason to believe cruelty is actually taking place.

In fact, veterinarians should know even better than the general public how to evaluate animals' health, and so should not be excused when they make a significantly stupid diagnosis that could rise to the level of malpractice. If they do not know how to evaluate and diagnose a species, they should refer the case to a vet who can instead of making a wild, uninformed guess that could lead to someone's conviction for a crime they did not commit.

A few potential examples of this sort of thing:

* Reporting an owner for starving an animal, in the absence of reason to believe they were withholding food and without considering or checking for any medical conditions that could be causing the animal to lose weight.

* Diagnosing neglect or abuse in a healthy animal because the vet did not know how to properly evaluate the species and were diagnosing a type of animal they did not normally treat or examine. For instance, using a horse-specific body scoring system to score a dairy cow and declaring it to be starving because it had normal bone structure visibility for a dairy cow but did not fit the normal ranges for the horse scoring system, misidentifying a healthy alpaca as a severely underweight llama, or diagnosing a common and harmless anomaly normal for a given type of animal as being caused by neglect or abuse.


* Reporting an owner for animal cruelty because they refused to do immediate exploratory surgery on a dog that had a routine issue normally handled far less invasively. Since the owners were visiting family in another town and this wasn't their regular vet, they decided to instead immediately take the dog home to their regular vet for a second opinion. If the dog did need surgery, they would rather have their regular vet that they knew and trusted perform it. The first vet (who had never seen them before) tried to talk them out of this, saying that they were just trying to "save money" and that seeing another vet "wouldn't help."

Their normal vet treated it in the standard way, and the issue resolved just fine without surgery.

In making a report of animal cruelty on these clients, the vet reportedly stated that people should not be allowed to own any animals at all if they could not afford or were not willing to do any treatment recommended by this vet. Again, this was a routine issue very common to the breed, and exploratory surgery as a first resort would have been an inappropriate and unnecessarily dangerous and invasive treatment option. The owners didn't just refuse treatment and let the dog suffer; they were essentially reported for seeking a second opinion.

We love our veterinarians, and know that many are extremely competent and would not lightly or inappropriately report people for animal abuse. But veterinarians, just like anyone else, are not infallible, and there are situations where negligence or malpractice happen, or even where veterinarians commit crimes.

Do you have any stories of veterinarians making significantly negligent errors in diagnosis or treatment, or making clearly inappropriate reports of animal cruelty? We'd like to hear them, and we think our lawmakers should hear them too.

It is important to realize that these are not just situations where a person is making a report that is then going to be checked out and verified by experts--the vet IS the expert, and in multiple cases people have been convicted of cruelty based on a vet's word, when the veterinarian was not knowledgeable about the species and testified in court that something actually normal for a healthy animal of that type was proof of neglect or abuse.

Again, you can comment both by contacting your own representatives, the bill's sponsors and the committee members individually, by calling the legslative hotline, and by leaving a comment on the bill's homepage (links below).

We tried using the widget for leaving a comment on the bill's homepage, but kept getting an error message. Please let us know if you get it to work.

If you call the hotline or use the "contact" widget on the legislative hotline for individual legislators, they will request your home address to verify what district you are in and who your representatives are, but you can request that your message be sent to the bill's sponsors and the committee members working on it as well. You can tell the operator whether you oppose or support the bill, and they will also write down your comments to forward to the lawmakers.

On the actual homepage for each representative, you can generally email them directly without going through the legislative website widget.


Legislative Toll-free Hotline:
1-800-562-6000
1-800-635-9993 (TTY)

Here is the link to HB 1186: http://apps.leg.wa.gov/billinfo/summary.aspx?bill=1186&year=2013

And here is the page for SB 5102: http://apps.leg.wa.gov/billinfo/summary.aspx?bill=5102&year=2013

(If you are not from Washington, check to see if your own state is trying to pass or already has similar legislation, and contact your own legislators. Many states have or are trying to pass these types of laws.)

Unofficial Transcript of Public Hearings on Animal Cruelty Bills, Jan 31, 2013

Please note, this is not an official transcript of the 1/31 House Judiciary Committee Public Hearings. This is just notes taken by one of our volunteers, for those who need (or prefer) to read rather than listen to it. Please let us know if you notice any major errors and what the timestamp on the video was so we can double check it.

This post is extraordinarily long, so only the first several paragraphs will appear on the main blog page. Click on the "read more" link for the rest of the post.

The video is here: http://www.tvw.org/index.php?option=com_tvwplayer&eventID=2013010137

HB 1186 (27:55 on video)

Omeara Harrington, Counsel (staff):"House Bill 1186 provides legal immunity for licensed veterinarians who report animal cruelty. The animal cruelty statutes outlaw killing or harming animals or engaging in a number of practices that are hazardous to animals, including unsafe confinement, animal fighting and poisoning animals.

Veterinarians can be involved in animal cruelty investigations in a number of ways. The animal cruelty statutes specifically permit law enforcement officers to solicit the help of veterinarians in determining whether animal abuse or neglect has occurred to such a degree that would justify the law enforcement officer in removing the animal for care. Veterinarians may also be called on to advise and assist the law enforcement officers in the euthanasia of an animal that has been seriously injured and is suffering, and there is statutory immunity provided to veterinarians participating in these activities as long as they are carried out with reasonable prudence. Veterinarians may also encounter evidence of animal cruelty in the course of their practices.

State law does not require that animal cruelty is reported, and veterinarians are not provided with immunity from liability in statute if they do decide to voluntarily report.

House Bill 1186 would provide licensed veterinarians with immunity from criminal and civil liability for reporting suspected animal cruelty in good faith and in the normal course of business.

And I can answer questions.

Rep. Jamie Pedersen (D): Thank you, do you have any questions for staff? OK. Our resident veterinarian, the lady from the 35th, is not with us at this point. We'll give her a chance to testify if she comes a little bit later. In the mean time, Mr. Vice Chair, let's bring up the witnesses.

May we please hear from Mr. Greg Hanon and Dr. Mike Anderson?

2013 WA House Judiciary Committee

Contact Information for the WA House Judiciary Committee Members, as of Jan 2103
 http://www.leg.wa.gov/House/Committees/JUDI/Pages/MembersStaff.aspx

Legislative Toll-free Hotline:
1-800-562-6000
1-800-635-9993 (TTY)

Tara Weaver, Legislative Asst.     JLOB 204A     (360) 786-7122     tara.weaver@leg.wa.gov
(Ms. Weaver is the person who can put your testimony or comments into the case file for the law under consideration.)
Representative    Room    Phone    Email    FAX

Pedersen, Jamie (D) Chair     LEG 436B    (360) 786-7826    jamie.pedersen@leg.wa.gov

Hansen, Drew (D) Vice Chair     JLOB 369    (360) 786-7842     drew.hansen@leg.wa.gov

Rodne, Jay (R) *     JLOB 430    (360) 786-7852    jay.rodne@leg.wa.gov

O'Ban, Steve (R) **     JLOB 424    (360) 786-7890    steve.oban@leg.wa.gov

Goodman, Roger (D)     JLOB 328    (360) 786-7878    roger.goodman@leg.wa.gov

Hope, Mike (R)         JLOB 466    (360) 786-7892    mike.hope@leg.wa.gov

Jinkins, Laurie (D)     JLOB 311    (360) 786-7930    laurie.jinkins@leg.wa.gov

Kirby, Steve (D)     LEG 437B    (360) 786-7996    steve.kirby@leg.wa.gov

Klippert, Brad (R)     JLOB 410    (360) 786-7882    brad.klippert@leg.wa.gov

Nealey, Terry (R)     JLOB 404    (360) 786-7828    terry.nealey@leg.wa.gov

Orwall, Tina (D)     JLOB 326    (360) 786-7834    tina.orwall@leg.wa.gov

Roberts, Mary Helen (D)     JLOB 420    (360) 786-7950    maryhelen.roberts@leg.wa.gov

Shea, Matt (R)     JLOB 437    (360) 786-7984    matt.shea@leg.wa.gov

*Ranking Minority Member  **Asst. Ranking Minority Member

Video of Jan 31st Public Hearings in Olympia

Video footage of the proposed animal-related laws that had public hearings in the House Judiciary Committee on Jan 31, 2013 is now available, here:

http://www.tvw.org/index.php?option=com_tvwplayer&eventID=2013010137

Public Hearings on Proposed WA Animal Cruelty Laws, Jan 31st

Three animal cruelty-related bills proposed in WA state are scheduled for public hearings on Jan 31st, 2013 in the House Committee on Judiciary at 1:30 PM.

Please note that these bills HAVE NOT yet become law; currently they are in the public hearing stage of the process and could be withdrawn or changed as a result of public feedback.

****
HB 1201/SB 5203 would make animal sales/barters/etc. illegal in most public places or private property open to the public, with certain exceptions. It defines unathorized sales as animal cruelty crimes.

This law would, for instance, make exchanging money/animal on the street or sidewalk in front of a buyer's home after a home check; or a member of the public selling animals at a Saturday market, at a swap meet, in a parking lot, or inside a store an animal cruelty crime--even if, for instance, a feed store gave a non-employee permission to sell animals there.

It does include exemptions for shelters, rescues, bona-fide exhibitors at sanctioned shows, fairs, 4-H/FFA activities, pet store sales by the store owner/operator, and licensed livestock auctions, among other things.

http://apps.leg.wa.gov/billinfo/summary.aspx?year=2013&bill=1201

****
HB 1202/SB 5204 makes numerous significant changes to the animal cruelty statutes, including the following:

adds a new civil infraction level of animal cruelty for issues that don't rise to the level of 2nd degree misdemeanor cruelty (2nd degree cruelty currently requires some negligence or knowing act/failure on the owner's part, and that the animal either has been abandoned or that it experience some sort of pain or suffering to rise to the level of cruelty ["mild discomfort" defined as sufficient pain for a conviction in precedent-setting rulings]); this new law does not appear to require any harm or risk to the animal (or negligence on the owner's part) for a law enforcement or animal control officer to issue an animal cruelty citation for care they consider inadequate;

adds the word "injury" to the 2nd degree cruelty statute so that allowing an animal to experience a minor injury that is not severe enough to cause pain or suffering could qualify as 2nd degree cruelty;

changes the animal fighting statutes to add "causing a minor" to the language and changes definitions to cover all animals rather than just dogs or roosters, but also removes the word "knowing" from the statute so that anyone involved in any way (such as a taxi or bus driver transporting someone to a location, or the owner of a building) could be guilty of felony animal cruelty even if they had no knowledge it had anything to do with fighting;

adds multiple new definitions to the animal cruelty statutes, and also adds several new terms to the animal cruelty laws that are left undefined and open to interpretation;

adds a requirement of "prompt and appropriate treatment of an animal's illness or injury," but leaves those definitions open to interpretation and does not clarify whether home treatment or monitoring for minor routine issues would be acceptable or not;

also adds a statute on leaving animals in vehicles, and makes a number of other changes.

It's a very long and involved bill, covering many different topics and editing many portions of existing animal cruelty law.

http://apps.leg.wa.gov/billinfo/summary.aspx?year=2013&bill=1202

****
HB 1186/SB 5102 removes any civil or criminal liability for a veterinarian reporting suspected animal cruelty.

http://apps.leg.wa.gov/billinfo/summary.aspx?year=2013&bill=1186


****
HB 1194, limiting a landowner's liability when their land is used for habitat projects on the official habitat project list, is also scheduled to be heard during this time slot.

http://apps.leg.wa.gov/billinfo/summary.aspx?year=2013&bill=1194

***

You can see a more detailed post about HB 1201 and HB 1202 on the Washington Animal Watch Blog here:

http://waanimal.blogspot.com/2013/01/wa-animal-cruelty-legislation-for-2013.html

****

House committee hearings are generally held in the John L. O'Brien next to the Legislative Building in Olympia, WA. You can call the legislative hotline at 1.800.562.6000 to verify when and where the hearings are.

The page on how to testify at these hearings is at: http://www.leg.wa.gov/legislature/Pages/Testify.aspx

It also says, "If you cannot appear before a committee, contact your legislator making your position on a bill known. You can do so by writing a letter, sending an e-mail, calling the legislator's Olympia office, or by calling the Legislative Hotline at 800.562.6000."

It is important to make your voice heard. Public feedback could have a huge influence on the final wording of these laws.

A summary of the various arguments and points of view on both sides is generally compiled from the public hearing process and posted on the bill's page of the legislative website, so this is a particularly good opportunity to make your input count.

~~ Washington Animal Watch ~~

**Forwarding or reposting of this message is permitted, but please leave the message and links intact.**

WA Animal Cruelty Legislation for 2013: HB 1201 and HB 1202

As we begin the 2013 legislative session, there are several animal-related laws that have already begun the legislative process, and several more that are in working groups and committee meetings at present.

You can go to the Washington State Legislature website at http://apps.leg.wa.gov/billinfo/ and click on "bills by topic" to keep abreast of the latest legislation on any topic.

As of this writing, a number of laws have been introduced and are listed under the categories of "animals" and "livestock." Please be sure to check out the WA Legislature site to see all the proposed legislation for yourself. There are others besides these listed already, and new bills can be added at any time.

The links go to the home page for each bill--click on the links on that page to see the original text of each proposed law and any revisions and additional information as the law progresses through the legislative process. Each house bill will also gain a companion bill in the senate as it proceeds through the process, with additional sponsors for the companion bill. A link to the companion bill is added to the bill's home page on the legislature's website and to the search results as it reaches that point.

Only laws that have officially been introduced and have started the process of becoming law are listed on the WA Legislature site; laws that are still in the formation and discussion stage will not be posted yet. For instance, a new law about humane restraint is in the works, but has not yet been introduced for this session.

As a quick review, RCW 16.52, the section of the law on animal cruelty, defines animal this way for purposes of animal cruelty in RCW 16.52.011:

 (2)(b) "Animal" means any nonhuman mammal, bird, reptile, or amphibian.

This definition applies when the term "animal" is used in all of the RCW 16.52 animal cruelty laws unless there are specific changes to the definition within a given statute.

Also, remember that WA law imposes certain mandatory penalties for animal cruelty convictions, including a prohibition on "owning, caring for, or residing with any similar animals" for a period of two years for a first conviction of 2nd degree animal cruelty, or permanently for a first conviction of 1st degree animal cruelty or a second conviction of any degree of animal cruelty (in some circumstances, with the option to petition for reinstatement of the right to own animals after 5 years), as well as making anyone convicted responsible for all costs involved in the legal proceedings and the seizure and care of the animals in addition to any other fines or penalties imposed.

Some of the consequences for conviction under animal cruelty laws can be found in RCW 16.52.200 at  http://apps.leg.wa.gov/rcw/default.aspx?cite=16.52.200 as well as in the various sections outlining specific crimes and penalties under each statute.

It would be helpful to keep the possible penalties in mind as you consider whether these are reasonable consequences for any newly proposed laws falling under the category of animal cruelty. Keep in mind, also, that there has been a repeated push for measures such as mandatory registration on an offender list, including public publication of personal information, for anyone convicted of an animal cruelty offense.

Here are summaries of two proposed laws that we found to be of particular concern.

*** HB 1201, Preventing Animal Cruelty. This bill would make it a crime to "sell, offer for sale, barter, or auction an animal upon any public property or upon private property open to the public," with certain exceptions (please read the entire text of the bill for more details).

This law calls for this new section to be added under RCW 16.52, Prevention of Cruelty to Animals. This would define the unauthorized selling of animals as animal cruelty, even if no actual harm or risk came to any animal in the process.

The link to the HB 1201 homepage is http://apps.leg.wa.gov/billinfo/summary.aspx?year=2013&bill=1201

*** HB 1202, Preventing Animal Cruelty. This bill covers a number of different topics, adds several entire new sections to the animal cruelty laws, and revises several others. 

Section 1 creates a new crime that people can be charged with, a "civil infraction," adding several new categories and milder severities of neglect to the law. Any law enforcement or animal control officer is empowered to issue the infraction.

"An owner who, under circumstances not amounting to animal cruelty in the first or second degree, fails to provide an animal with necessary food, water, shelter, ventilation, rest, sanitation, space, or medical attention has committed the civil infraction of failure to provide care."

Note that this law does not require that the animal suffer any ill effect, injury, discomfort or risk from this failure in order for the owner to be convicted of animal cruelty under this statute, since it specifies conditions not rising to the level of 1st or 2nd degree animal cruelty. There is also no requirement of intent, knowledge or recklessness on the owner's part.

Many of the definitions about what qualifies as adequate or necessary care are left open to interpretation, with no real guidelines about what constitutes appropriate care, or whether ideal vs. adequate practices are being judged.

A person can attempt to contest the infraction as outlined in RCW 7.80.080, but with the law so vague and not requiring any actual risk or injury to the animal for an infraction to take place, it could be difficult to contest a difference of opinion regarding animal husbandry practices.

Section 2 is about leaving animals in vehicles, and says, in part:

"A person may not leave or confine any animal unattended in a motor vehicle or enclosed space in such a manner that places the animal in a life or health-threatening situation by exposure to excessive heat or cold or deprivation of ventilation.

It also authorizes "an animal control officer, law enforcement officer, or employee of a fire and rescue organization . . . to enter a vehicle or enclosed space to remove an animal by any means reasonable under the circumstances" and holds them free of liability in such circumstances.

It does not require that the animal be harmed by such confinement in order for a person to be charged with a civil infraction, and also clarifies that:

"In the event that an animal suffers physical pain, injury, or death from unsafe confinement in a vehicle or enclosed space, nothing in this section prevents the person who has confined the animal in the vehicle or enclosed space from being convicted of separate offenses for animal cruelty under RCW 16.52.205 or 16.52.207."

Section 3 revises the definitions in the animal cruelty statute under RCW 16.52.011.

It adds the phrase, "or as directed by a veterinarian for medical reasons" to the definitions of "necessary food" and "necessary water" in sections (j) and (k).

Then it adds sections (p) through (s) as follows:

(p) "Necessary medical attention" means prompt and appropriate treatment of an animal's illness or injury.

(q) "Necessary rest" means the provision of regular rest intervals sufficient to maintain an animal's health.

(r) "Necessary shelter" means a constructed or natural structure that provides adequate space, light, ventilation, protection from the elements and protection from heat and cold, suitable to the species, age, condition, size, and type of the animal, and that is sufficiently clean and safe to minimize the risk of injury, physical suffering, or impairment of the animal's health.

(s) "Necessary space" means space sufficient to allow an animal to move in a manner that does not cause injury, disfigurement, or impairment of the animal's health, suitable to the species, age, condition, size and type of animal, and that allows normal movements of the animal, such as sitting, standing, lying down, and turning around, except when confinement of an animal is necessary for medical treatment or transportation. "Necessary space" includes space sufficient to allow an animal to reasonably avoid injury by other animals in the same space.

Notice that it does not define several of the terms added in section 1, including ventilation, rest or sanitation. Many terns are left open to interpretation, such as what constitutes "adequate light" and how broadly or narrowly things like "prompt and appropriate treatment of an animal's illness or injury" could be defined.

For example, does prompt mean within minutes, hours, days? Is home treatment of routine injuries and illnesses considered to be appropriate, or not? Could the mere presence of even a minor issue such as a scratch, a missing chunk of fur, or evidence of a flea or tick be prosecuted as cruelty if the owner could not prove it had already been treated by a veterinarian, even if the injury or condition had just taken place or wasn't of a severity to require being seen by a veterinarian?

Since husbandry practices vary widely, not all law enforcement officers are thoroughly trained and knowledgeable in the appropriate care of every species, and the law does not establish specific standards in every aspect; this could leave the definition of appropriate care open to broadly varying opinions and standards.

Section 4 amends the animal fighting statutes to make it a crime to cause a minor to do any of the things listed in the law, but also makes several other quite major changes.

For example, it removes the word "knowingly" from the law, removing the requirement that a person's actions must be knowing or purposeful in order to be convicted of being involved in animal fighting.

It also removes all the clarifications and definitions as to type of animal (making it no longer apply to just dogs and roosters) and whether the animal is a stray or a pet or not.

This makes it a class D felony for any person, knowingly or not, who is involved or present in any way with any sort of animal fight, whether it be owning the property, transporting a person or animal, holding money, preparing the facility, or being present.

This proposed change to the law could make any transporter, carrier or person who cared for or handled an animal at any step in the process guilty of a felony even if they did not know the animal was intended to be used for animal fighting, training or baiting--for instance, making an airline and its employees guilty of a felony even if they had no idea the animal was being shipped to a location for the purpose of fighting. It also makes transporting any person to or being present at an animal fight a felony whether the person is aware of the situation or not--making a taxicab driver delivering a passenger or a pedestrian walking through the area guilty of a felony, even if they did not know about the fight. It could make the owner of a facility and anyone helping clean, prepare or maintain the facility guilty even if they do not know what the facility is being used for.

This law also makes the mere possession or handling of any animal with the apparent intent or purpose of animal fighting to be a felony, even if an actual fight never takes place.

Section 5 revises the definitions of animal cruelty in the first and second degree to add the word "injury" to the definitions as follows:

A person is guilty of animal cruelty in the second degree if, under circumstances not amounting to first degree animal cruelty, the person knowingly, recklessly, or with criminal negligence inflicts unnecessary injury, suffering, or pain upon an animal.

This could potentially make it a crime to allow an animal to become injured even if the injury is so mild that it does not cause suffering or pain, such as a minor scratch or broken toenail.

It also makes the abandoning of any animal to be 2nd degree animal cruelty, cleaning up the language in 2 (b) and removing the clause saying that the animal must suffer or be at risk of suffering substantial harm from being abandoned in order for the crime to rise to the level of 2nd degree cruelty.

Finally, this section removes the possibility of taking the person's financial situation into consideration in convicting them of 2nd degree cruelty, deleting the following paragraph:

(((4) In any prosecution of animal cruelty in the second degree under subsection (1) or (2)(a) of this section, it shall be an affirmative defense, if established by the defendant by a preponderance of the evidence, that the defendant's failure was due to economic distress beyond the defendant's control.))

Section 6 changes the wording to refer to animals instead of livestock in making it a crime to harm or kill someone else's animals.

Section 7 changes the amount from two to seven hundred dollars in the threshold below which stealing an animal qualifies as a misdemeanor under RCW 9.08.070 and 2003 c 53 s 9 ., and adds "or under chapter 16.52 RCW for animal cruelty" to the section starting, "Nothing in this section shall prohibit a person from also being convicted of separate offenses under" a list of various laws.

The link to HB 1202 is http://apps.leg.wa.gov/billinfo/summary.aspx?year=2013&bill=1202

You can take action on anything that concerns you in these proposed laws by contacting the sponsors initially. As they progress through the lawmaking process, you may contact committee members as the bills go through various committees, and then the lawmakers who will be voting on them at different stages.

Particularly in the early stages, there is still time and opportunity to push for changes and revisions to the law, or even for the sponsors to withdraw them.

Each law's home page on the WA Legislature website will have information about things like sponsors and committees that are working on the law.

Time is running out

There are just a few hours left to comment on the proposed rule that would drastically expand the USDA/APHIS' authority over private pet breeders in their homes throughout the USA. Comments need to be in by 11:59PM Eastern time tonight, Wednesday August 15th, 2012, but don't try to cut it too close.

Please comment and tell them this rule needs to be withdrawn. Remember, you can make as many comments as often as you like, and substance is more important than number. But HSUS and other anti-breeding organizations are blitzing the comments in these last few hours, and we need to make sure they are outnumbered and we make our voices heard. It's important to use your own words, but here are some ideas for you to use if desired.

Some talking points (Please use your own words when commenting, as duplicate comments are treated as one, even if posted multiple times):

* It's not APHIS' job to regulate private breeders in their homes. The Animal Welfare Act was never intended to regulate private retail sales, and the courts have affirmed that this is not USDA's job.

* People are perfectly capable of making their own decisions about how and where to buy a pet. We don't need the government regulating that.

* There is no evidence that animals purchased sight-unseen or shipped/transported to the buyer have a higher incidence of *anything* than animals purchased any other way, and APHIS themselves has admitted they have no data whatsoever on this. This makes this rule arbitrary, specious and capricious; based on anecdotal and emotional claims rather than on real data supported by evidence.

* We don't need more small hobbyist breeders forced to raise pets in sterile laboratory-style facilities, and AWA standards do not allow for home-raised pets. A small hobbyist breeder is not able to be home from 7AM to 7PM every weekday for inspections, and the requirement for sterile facilities with no impermeable surfaces, no animals raised with other types of animals, etc. makes it impossible for a home environment to meet AWA standards.

* Not being able to ship or transport breeding stock will destroy the genetic diversity of rare breeds and harm breeding programs, and will harm the production of working/service dogs, as well as preventing people from doing their own research and buying pets where and how they choose.

*  Animals have been purchased remotely and transported sight-unseen for thousands of years. The internet makes it easier, not harder, to research a breeder and make an informed purchasing decision.

* If they are going to pass this rule they need to make the "face to face" exemption clearly outlined in the text of the rule itself. Simply promising not to enforce the rule as written (as the current plan is) is not a good solution.

* Any problems can be dealt with simply by APHIS enforcing their own standards on existing licensed breeders, and by enforcing existing animal cruelty and mail fraud laws. All states already have laws with potentially severe penalties for dealing with animal cruelty.

* The USDA/APHIS is required to do an impact analysis when creating new rules. Their calculated cost of this rule both to breeders and to APHIS is severely underestimated to the point that it is laughable. Their data does not even attempt to include species other than dogs that will be impacted, and grossly underestimates even the number of dog breeders that will be impacted and the costs associated with that.

* The information given to the public and the way APHIS has described this rule during the comment period is grossly misleading and undermines transparency.

* $500 is an extremely low threshold for requiring breeders to be licensed, especially since it is calculated based on raw income rather than on profit.

The AWA says in Sec. 2133. Licensing of dealers and exhibitors,

"That any retail pet store or other person who derives less than a substantial portion of his income (as determined by the Secretary) from the breeding and raising of dogs or cats on his own premises and sells any such dog or cat to a dealer or research facility shall not be required to obtain a license as a dealer or exhibitor under this chapter."

$500 is no longer a substantial portion of the average person's income and this needs to be updated. If inflation continues at the same average rate as it has since the AWA was passed, by 2020 it will take about $5,000 to have the same buying power that $500 had in 1966. The exemptions for cats, dogs and exotic animals allow for the potential sale of many thousands of dollars worth of animals before licensing is required; it is unfair and capricious to have a so much lower threshold for other types of animals.

* Breeding females are not clearly defined, and several other definitions in the rule are not clearly defined either. 4 intact females is a very low threshold to reach, and owning them does not necessarily mean they are being bred. This threshold for determining licensing is also unfair, capricious and specious, as is the requirement that a breeder must never sell any animal that was not bred and raised by them in order to be exempt from licensing.

* This rule is being pushed by anti-breeder animal rights organizations such as HSUS that have the ultimate agenda of eliminating all existence and use of domestic animals. No amount of regulation will make them happy unless we do away with all breeding and animal ownership completely, and the U. S. Dept. of Agriculture should not be pandering to them.

Read and comment on the proposed rule here:
http://www.regulations.gov/#!documentDetail;D=APHIS-2011-0003-0001

Permission to repost granted; the original post is from Washington Animal Watch blog at http://waanimal.blogspot.com/2012/08/time-is-running-out.html and updates and any edits/corrections will be posted there.

Our thoughts on the APHIS fact sheet and ARBA/APHIS teleconference notes

[**Update** We have taken the Karen Horn conversation post offline for the moment, until we can further clarify a few points and allow ARBA and APHIS time to communicate with each other to ensure accuracy and clarity in their statements. Since APHIS has extended the comment period, this makes addressing these issues a bit less time-critical. At this time we are only going to address statements that have officially been published to the public.

Meanwhile, see our post, What is a place of business? at  http://waanimal.blogspot.com/2012/07/what-is-place-of-business.html for another possible angle on the "face to face" exemption mentioned in the APHIS FAQ document.]

APHIS has come out with a new FAQ document on the proposed rule, APHIS 2011-0003. http://www.aphis.usda.gov/publications/animal_welfare/2012/retail_pets_faq.pdf

The problem is, the FAQ document and what APHIS is reported as telling some people over the telephone seems to directly contradict the actual wording in the proposed rule.

For instance, the FAQ document says,

"Q.  How will this affect Internet, phone- and mail 
order retailers?
A.  The proposal will affect these retailers if they
currently sell their pet animals to buyers sight-unseen.
Pet animal retailers will have a choice. They can
either sell their animals to buyers who physically
enter a place of business or residence to observe
the animals available for sale prior to purchase or to
take custody of the animals after purchase, or they
can obtain a license under the AWA and allow APHIS
inspectors to inspect their facility."

But then it goes on to say,

"Q. How will this affect retailers who sell their animals to buyers in face-to-face transactions at a location other than their own premises?
A. The proposed rule is designed to close a loophole in the current regulations that allows pet animals to be sold sight-unseen, without any oversight by the public or APHIS. Pet animal retailers who sell their animals to their customers in face-to-face transactions at a location other than their own premises are subject to some degree of public oversight and therefore are not the focus of this proposed rule and would not need to obtain a license."

And,

"Q. How would this proposal affect rescue groups that participate in off-site adoption events?
A. As mentioned above, persons who engage in face-to-face transactions at a location other than their premises, which include off-site adoption events, are subject to some degree of public oversight and therefore are not the focus of this proposed rule and would not need to obtain a license."

http://www.aphis.usda.gov/publications/animal_welfare/2012/retail_pets_faq.pdf

Notice that they say these face-to-face transactions are "not the focus" of the proposed rule--they do not specifically say that they are not actually included in the proposed rule. They do not even state here that they will be changing the wording in the final draft of the rule to clearly and specifically allow a face-to-face exemption. Hopefully that will be the case. We encourage people to request that in their comments to APHIS.

Unless they actually are going to change the wording in the rule itself, this could mean little or nothing in practicality. It appears tatamount to saying that, while these transactions may technically violate the proposed rule, they are supposedly not going to enforce the rule in these situations. This does NOT, however, guarantee that it will not be enforced as written in the future.

It's never a good idea to take the lawmakers' or lobbyists' word that a law will not be enforced as it is written. They can tell you from here to the moon that they won't enforce the law the way it is written, but there is nothing to hold them to such assurances. What is going to ultimately matter is what the rule or law actually says in plain language, not what they told you over the phone or in some fact sheet about how it's not really going to do what it says it will do. You will not be able to use, "But so-and-so said that someone at APHIS told them over the phone that they weren't actually going to enforce the rule the way it is written" as a valid defense in court.

Even if they don't intend at this point to enforce it as written in most situations, you can guarantee that organizations such as PeTA and HSUS will quickly be putting pressure on them to enforce it stringently it as written, and will be making reports about facilities to try to force APHIS to shut down breeders.

In actuality there is nothing in the actual proposed rule that contains a clearly delineated "face to face" exemption that would apply at shows, sales at a neutral location, etc. The rule itself requires that all pet buyers physically enter your actual home or place of business. 

[Update: The definition of "place of business" itself may offer some sort of loophole, however: http://waanimal.blogspot.com/2012/07/what-is-place-of-business.html ]

The proposed APHIS rule 2011-0003 says,

"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)."

The proposed wording of the actual law is as follows:

2. In Sec.  1.1, the definition of dealer and the introductory text of the definition of retail pet store are revised to read as follows:
Sec.  1.1  Definitions.
* * * * *
    Dealer means 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: Any dog or other animal whether alive or dead (including unborn animals, organs, limbs, blood, serum, or other parts) for research, teaching, testing, experimentation, exhibition, or for use as a pet; or any dog at the wholesale level for hunting, security, or breeding purposes.
This term does not include: A retail pet store, as defined in this section; any retail outlet where dogs are sold for hunting, breeding, or security purposes; or any person who does not sell or negotiate the purchase or sale of any wild or exotic animal, dog, or cat and who derives no more than $500 gross income from the sale of animals other than wild or exotic animals, dogs, or cats during any calendar year.
* * * * *
    Retail pet store 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 the following animals are sold or offered for sale, at retail, for use as pets: Dogs, cats, rabbits, guinea pigs, hamsters, gerbils, rats, mice, gophers, chinchilla, domestic ferrets, domestic farm animals, birds, and coldblooded species. A retail pet store also includes any person who meets the criteria in Sec.  2.1(a)(3)(iii) of this subchapter. Such definition excludes--"
* * * * *
PART 2--REGULATIONS
    3. The authority citation for part 2 continues to read as follows:
    Authority:  7 U.S.C. 2131-2159; 7 CFR 2.22, 2.80, and 371.7.
    4. Section 2.1 is amended as follows:
    a. By revising paragraph (a)(3)(i) to read as set forth below.
    b. In paragraph (a)(3)(ii), by removing the words ``to a research facility, an exhibitor, a dealer, or a pet store''.
    c. In paragraph (a)(3)(iii), in the first sentence, by removing the words ``three (3)'' and adding the word ``four'' in their place, and in the second sentence, by removing the word ``three'' each of the three times it appears and adding the word ``four'' in its place.
    d. By removing paragraph (a)(3)(vii) and redesignating paragraph (a)(3)(viii) as paragraph (a)(3)(vii).
Sec.  2.1  Requirements and application.
* * * * *
    (a) * * *
    (3) * * *
    (i) Retail pet stores as defined in part 1 of this subchapter;
* * * * *

[emphasis added]

http://www.regulations.gov/#!documentDetail;D=APHIS-2011-0003-0001


There is a similar disconnect in ARBA's report about their teleconference with APHIS. In addition to the "face to face" exemption previously mentioned, the teleconference notes also say,

2) If you require licensing
a) There is only an application
b. No inspection is required unless abuse is reported but a pre or post licensing visit may be done at the applicant's request. 
c.Upon receiving an abuse complaint, depending on the nature of the complaint, the USDA/APHIS will arrange to visit the facility without warning.

http://www.arba.net/PDFs/USDA_Teleconference07112012.pdf

[Note: This post has been updated to reflect ARBA's 7/13/2012 correction of what was apparently a typo or misunderstanding regarding inspections being unannounced. There will likely be further updates as ARBA and APHIS communicate further with each other, as some issues will be discussed and clarified more next week.]

The Animal Welfare Act itself, the AWA Regulations, APHIS' published standard operating procedures, and and APHIS's numerous Fact Sheets state that inspections are required in order to obtain and maintain a USDA license. The APHIS publications also make it very clear that routine APHIS-initiated inspections, as well as inspections following up on a complaint, will be unannounced.

This requirement for inspections of licensed facilities is encoded in The Animal Welfare Act:

"Sec. 2133. Licensing of dealers and exhibitors
". . . Provided, That no such license shall be issued until the dealer or exhibitor shall have demonstrated that his facilities comply with the standards promulgated by the Secretary pursuant to section 2143 of this title."
"Sec. 2146. Administration and enforcement by Secretary
-STATUTE-
(a) Investigations and inspections 

The Secretary shall make such investigations or inspections as he deems necessary to determine whether any dealer, exhibitor, intermediate handler, carrier, research facility, or operator of an auction sale subject to section 2142 of this title, has violated or is violating any provision of this chapter or any regulation or standard issued thereunder, and for such purposes, the Secretary shall, at all reasonable times, have access to the places of business and the facilities, animals, and those records required to be kept pursuant to section 2140 of this title of any such dealer, exhibitor, intermediate handler, carrier, research facility, or operator of an auction sale. The Secretary shall inspect each research facility at least once each year and, in the case of deficiencies or deviations from the standards promulgated under this chapter, shall conduct such follow-up inspections as may be necessary until all deficiencies or deviations from such standards are corrected."

http://www.aphis.usda.gov/animal_welfare/downloads/awa/awa.pdf

Both prelicensing and routine inspections are required in the AWA Regulations (the codification of the rules the Secretary "deems necessary" as instructed in the AWA--the rules about how the AWA is enforced):

"Sec. 2.3 Demonstration of compliance with standards and regulations.
(b) Each applicant for an initial license must be inspected by APHIS and
demonstrate compliance with the regulations and standards, as required in paragraph (a) of this section, before APHIS will issue a license."
"Sec. 2.126 Access and inspection of records and property.
(a) Each dealer, exhibitor, intermediate handler, or carrier, shall, during business hours, allow APHIS officials:
(1) To enter its place of business;
(2) To examine records required to be kept by the Act and the regulations in this part;
(3) To make copies of the records;
(4) To inspect and photograph the facilities, property and animals, as the APHIS officials consider necessary to enforce the provisions of the Act, the regulations and the standards in this subchapter; and
(5) To document, by the taking of photographs and other means, conditions and areas of noncompliance.
(b) The use of a room, table, or other facilities necessary for the proper examination of the records and inspection of the property or animals must be extended to APHIS officials by the dealer, exhibitor, intermediate handler or carrier, and a responsible adult shall be made available to accompany APHIS officials during the inspection process."

"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." 

http://www.aphis.usda.gov/animal_welfare/downloads/awr/awr.pdf

The USDA Inspection Requirements document makes it very clear that, with the exception of prelicense inspections, all inspections must be unannounced:

"ATTEMPTED INSPECTION
All animal welfare inspections, with the exception of prelicense inspections, are to be conducted on an unannounced basis. An attempted inspection occurs when an authorized person is not available to accompany the inspector, and no inspection is conducted. NOTE: The person accompanying the inspector must be an adult, i.e. 18 years of age or older.
If nobody is present at the facility, you should call the phone number(s) provided by the licensee/registrant to contact him/her, and determine if an authorized person can be at the facility within 30 minutes. You should wait for 30 minutes, and if nobody shows up, you should cite section 2.126(b), and the narrative should read: 'On (date) at (time), licensee failed to have a responsible person available to conduct an animal welfare inspection.'"

"PRELICENSE INSPECTION
An applicant's facility must meet all applicable regulations and standards to obtain a license. Prelicense inspections are scheduled at a time agreeable to the applicant and the inspector. In addition to determining if a facility is in full compliance, prelicense inspections are the best time to educate the applicant about the AWA regulations and standards. Required written records must be completed and inspected during a prelicense inspection in order to consider the facility in compliance, including the PVC . . . There must be a written record of animals on hand with as much of the required information completed as possible." 

http://www.aphis.usda.gov/animal_welfare/downloads/Inspection_Requirements.PDF

[Note that not being present for an unannounced inspection is considered an Animal Welfare Act violation and will be written up as such, with potentially severe consequences.]

The Animal Welfare Act Fact Sheet published by the USDA says that inspections based on complaints are IN ADDITION to regular inspections, not instead of them:

"Before APHIS will issue a license, the applicant must be in compliance with all standards and regulations under the AWA. To ensure that all licensed and registered facilities continue to comply with the Act, APHIS inspectors regularly make unannounced inspections. . . . In addition to conducting regular inspections, APHIS will perform inspections in response to public input about the conditions of regulated facilities. Concerned individuals are also encouraged to inform APHIS about facilities that should be licensed or registered."

http://www.aphis.usda.gov/publications/animal_welfare/content/printable_version/fs_awawact.pdf

The APHIS Fact Sheet, Animal Care: Compliance Inspections, says,

"APHIS officials--veterinarians or qualified animal care inspectors employed by APHIS and trained to identify potential violations of the AWA and its regulations--conduct unannounced inspections of every licensed or registered facility in the country."http://www.aphis.usda.gov/publications/animal_welfare/content/printable_version/fs_compliance_inspection.pdf 
[emphasis added]

This document goes into quite a bit of detail about what these inspections involve and what standards must be met, including the requirement that "the interior of a facility must be substantially impervious to moisture" and that "puppies and kittens should be separated from adult animals other than their mothers," as well as requirements for things like climate control.

The APHIS fact sheet, Questions and Answers: Regulation of Dog and Cat Breeders and Dealers, gives some clue about how often such inspections take place:

"APHIS inspectors from the Animal Care program conduct unannounced compliance inspections to ensure that the animals receive humane care and treatment. . . . Depending on a facility's compliance status, it may be inspected once every year or so, or more often if the facility requires more frequent monitoring or in-depth inspections. APHIS inspectors always have the option of inspecting as often as they feel necessary and as resources allow; they also follow up on legitimate complaints from concerned citizens and organizations.

http://www.aphis.usda.gov/publications/animal_welfare/content/printable_version/faq_animal_dealers.pdf

Besides, even **if** inspections were solely complaint-driven, the name and address of anyone holding a USDA license are published on the USDA website and made available to the public. All any organization with the goal to shut down breeders would have to do is go through the list and get people to make complaints about every breeder who holds a license. They don't even need to have been to your place to file a complaint. APHIS specifically mentions in their Complaint Inspection Form that it is common to receive complaints from "animal protection groups" and that anonymous complaints are allowed.
http://www.aphis.usda.gov/animal_welfare/2011_Inspection_Guide//6.6%20Complaint%20Inspection.pdf

Remember, a violation can be something as simple as a cobweb on the ceiling, a spot of rust on a cage, an open container of feed or bedding (even if you're currently in the act of using it), not having paperwork in order or available on site (including detailed information about everyone you obtain animals from), having a permeable surface somewhere that an animal could come into contact with it, allowing puppies or kittens to interact with other adult animals besides their mother, or not being present when an unannounced inspection occurs.

To discuss the ARBA document further, there are several other issues that we feel need clarification or correction:
http://www.arba.net/PDFs/USDA_Teleconference07112012.pdf

For example,

"1) There exist a series of exemptions the licensing that preclude  most rabbit breeders from needing licensing. [sic]
a) Due to the number of exemptions, if you do not see one that covers your specific situation below, please contact the Legislative Committee to discuss.
b) Exhibition, commercial and livestock are all exempt.  The proposed regulation only applies to rabbits sold for use as pets.
c) Only animals sold without a face-to-face meeting are to be included in the $500 limit

Just to clarify, a $500 limit for unlicensed activity definitely applies to animals sold for exhibition purposes, and for commercial purposes that are covered in the AWA. There is no exemption from USDA licensing requirements for exhibition or "commercial" sales. These categories aren't exempt from licensing requirements; it's just that this particular rule addresses only pet sales.

Cat/dog/rabbit shows and things like competitions and agricultural displays at county fairs do not qualify as "exhibitions" under APHIS definition and do not trigger a licensing requirement under the exhibition clause. But there is no blanket exemption for exhibition animals; in fact, exhibition animals are specifically covered under the AWA and required to be licensed if the limit is exceeded.

It doesn't matter how face-to-face the meeting is if you're selling animals for experimentation, exhibition (by USDA definition), wholesale as pets, or the other specific AWA-covered purposes; those animals are definitely included in the $500 limit. APHIS does say in their FAQ sheet that animals sold at retail as pets are exempt if the sale is face-to-face.

Livestock are only exempt if they are not being sold for a covered purpose (i.e. exhibition, research, wholesale, pet) and are being used for specific exempt purposes such as food and fiber. Livestock being sold for a purpose such as a petting zoo, in a performance such as a circus or magic show, as a prop for professional photos, or to advertise a product (all exhibition under the rule) would NOT be exempt and would count toward the $500 limit.

[NOTE: On July 19. 2012 we verified with Dr. Rushin of APHIS that the $500 threshold is calculated by adding up all sales any category of AWA-covered situation, over the course of 1 year (12 months). So if you sell $200 worth of rabbits at wholesale as pets in January, sell $200 worth of show rabbits shipped or transported to the buyer in a non-face-to-face transaction in June, and sell $101 worth to a petting zoo in December, you are over the $500 amount and need to be USDA licensed. We will be writing a more thorough post on the $500 licensing threshold soon.]

According to the way the definitions are stated in the AWA Regulations, rabbits ONLY qualify for exemption as livestock " when they are used solely for purposes of meat or fur ."

However, there is some possible good news here, according to the ARBA notes on their teleconference:

"A) Discussions of breeder to breeder sales sight unseen will be addressed next week.
B) Discussions concerning show and breeding rabbits receiving their own categorical exemption  are ongoing and will be discussed next week."

Here are various passages from the Animal Welfare Act that are relevant to issues discussed in this post:

"Sec. 2131. Congressional statement of policy . . . The Congress further finds that it is essential to regulate, as provided in this chapter, the transportation, purchase, sale, housing, care, handling, and treatment of animals by carriers or by persons or organizations engaged in using them for research or experimental purposes or for exhibition purposes or holding them for sale as pets or for any such purpose or use."
Sec. 2132. Definitions
-STATUTE-
When used in this chapter -
(f) The term "dealer" means 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, (1) any dog or other animal whether alive or dead for research, teaching, exhibition, or use as a pet, or (2) any dog for hunting, security, or breeding purposes, except that this term does not include -(i) a retail pet store except such store which sells any animals to a research facility, an exhibitor, or a dealer; or(ii) any person who does not sell, or negotiate the purchase or sale of any wild animal, dog, or cat, and who derives no more than $500 gross income from the sale of other animals during any calendar year;
(g) The term "animal" means any live or dead dog, cat, monkey (nonhuman primate mammal), guinea pig, hamster, rabbit, or such other warm-blooded animal, as the Secretary may determine is beingused, or is intended for use, for research, testing, experimentation, or exhibition purposes, or as a pet; but such term excludes (1) birds, rats of the genus Rattus, and mice of the genus Mus, bred for use in research, (2) horses not used for research purposes, and (3) other farm animals, such as, but not limited to livestock or poultry, used or intended for use as food or fiber, or livestock or poultry used or intended for use for improving animal nutrition, breeding, management, or production efficiency, or for improving the quality of food or fiber. With respect to a dog, the term means all dogs including those used for hunting, security, or breeding purposes;


(h) The term "exhibitor" means any person (public or private) exhibiting any animals, which were purchased in commerce or the intended distribution of which affects commerce, or will affect commerce, to the public for compensation, as determined by the Secretary, and such term includes carnivals, circuses, and zoos exhibiting such animals whether operated for profit or not; but such term excludes retail pet stores, organizations sponsoring and all persons participating in State and country fairs, livestock shows, rodeos, purebred dog and cat shows, and any other fairs or exhibitions intended to advance agricultural arts and sciences, as may be determined by the Secretary;

Sec. 2132. Definitions
-STATUTE-
When used in this chapter -
(f) The term "dealer" means 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, (1) any dog or other animal whether alive or dead for research, teaching, exhibition, or use as a pet, or (2) any dog for hunting, security, or breeding purposes, except that this term does not include -(i) a retail pet store except such store which sells any animals to a research facility, an exhibitor, or a dealer; or(ii) any person who does not sell, or negotiate the purchase or sale of any wild animal, dog, or cat, and who derives no more than $500 gross income from the sale of other animals during any calendar year;
(g) The term "animal" means any live or dead dog, cat, monkey (nonhuman primate mammal), guinea pig, hamster, rabbit, or such other warm-blooded animal, as the Secretary may determine is being used, or is intended for use, for research, testing, experimentation, or exhibition purposes, or as a pet; but such term excludes (1) birds, rats of the genus Rattus, and mice of the genus Mus, bred for use in research, (2) horses not used for research purposes, and (3) other farm animals, such as, but not limited to livestock or poultry, used or intended for use as food or fiber, or livestock or poultry used or intended for use for improving animal nutrition, breeding, management, or production efficiency, or for improving the quality of food or fiber. With respect to a dog, the term means all dogs including those used for hunting, security, or breeding purposes;
(h) The term "exhibitor" means any person (public or private) exhibiting any animals, which were purchased in commerce or the intended distribution of which affects commerce, or will affect commerce, to the public for compensation, as determined by the Secretary, and such term includes carnivals, circuses, and zoos exhibiting such animals whether operated for profit or not; but such term excludes retail pet stores, organizations sponsoring and all persons participating in State and country fairs, livestock shows, rodeos, purebred dog and cat shows, and any other fairs or exhibitions intended to advance agricultural arts and sciences, as may be determined by the Secretary;
Sec. 2134. Valid license for dealers and exhibitors required
-STATUTE-
No dealer or exhibitor shall sell or offer to sell or transport or offer for transportation, in commerce, to any research facility or for exhibition or for use as a pet any animal, or buy, sell, offer to buy or sell, transport or offer for transportation, in commerce, to or from another dealer or exhibitor under this chapter any animals, unless and until such dealer or exhibitor shall have obtained a license from the Secretary and such license shall not have been suspended or revoked."

http://www.aphis.usda.gov/animal_welfare/downloads/awa/awa.pdf

The AWA Standards flesh it out more:

" . . . Animal means any live or dead dog, cat, nonhuman primate, guinea pig,hamster, rabbit, or any other warmblooded animal, which is being used, or is intended for use for research, teaching, testing, experimentation, or exhibition purposes, or as a pet. This term excludes birds, rats of the genus Rattus, and mice of the genus Mus, bred for use in research; horses not used for research purposes; and other farm animals, such as, but not limited to, livestock or poultry used or intended for use as food or fiber, or livestock or poultry used or intended for use for improving animal nutrition, breeding, management, or production efficiency, or for improving the quality of food or fiber. With respect to a dog, the term means all dogs, including those used for hunting, security, or breeding purposes. . . . " 

. . . Class ``A'' licensee (breeder) means a person subject to the licensing requirements under part 2 and meeting the definition of a ``dealer'' (Sec. 1.1), and whose business involving animals consists only of animals that are bred and raised on the premises in a closed or stable colony and those animals acquired for the sole purpose of maintaining or enhancing the breeding colony. 

Class ``B'' licensee means a person subject to the licensing requirements under part 2 and meeting the definition of a ``dealer'' (Sec. 1.1), and whose business includes the purchase and/or resale of any animal. This term includes brokers, and operators of an auction sale, as such individuals negotiate or arrange for the purchase, sale, or transport of animals in commerce. Such individuals do not usually take actual physical possession or control of the animals, and do not usually hold animals in any facilities. A class ``B'' licensee may also exhibit animals as a minor part of the business. 

Class ``C'' licensee (exhibitor) means a person subject to the licensing requirements under part 2 and meeting the definition of an ``exhibitor'' (Sec. 1.1), and whose business involves the showing or displaying of animals to the public. A class ``C'' licensee may buy and sell animals as a minor part of the business in order to maintain or add to his animal collection. . . .   

". . . Dealer means 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: Any dog or other animal whether alive or dead (including unborn animals, organs, limbs, blood, serum, or other parts) for research, teaching, testing, experimentation, exhibition, or for use as a pet; or any dog at the wholesale level for hunting, security, or breeding purposes. This term does not include: A retail pet store, as defined in this section, unless such store sells any animal to a research facility, an exhibitor, or a dealer (wholesale); any retail outlet where dogs are sold for hunting, breeding, or security purposes; or any person who does not sell or negotiate the purchase or sale of any wild or exotic animal, dog, or cat and who derives no more than $500 gross income from the sale of animals other than wild or exotic animals, dogs, or cats during any calendar year. . . "

" . . . Exhibitor means any person (public or private) exhibiting any animals, which were purchased in commerce or the intended distribution of which affects commerce, or will affect commerce, to the public for compensation, as determined by the Secretary. This term includes carnivals, circuses, animal acts, zoos, and educational exhibits, exhibiting such animals whether operated for profit or not. This term excludes retail pet stores, horse and dog races, organizations sponsoring and all persons articipating in State and county fairs, livestock shows, rodeos, field trials, coursing events, purebred dog and cat shows and any other fairs or exhibitions intended to advance agricultural arts and sciences as may be determined by the Secretary. . . . "

. . . Exotic animal means any animal not identified in the definition of ``animal'' provided in this part that is native to a foreign country or of foreign origin or character, is not native to the United States, or was introduced from abroad. This term specifically includes animals such as, but not limited to, lions, tigers, leopards, elephants, camels, antelope, anteaters, kangaroos, and water buffalo, and species of foreign domestic cattle, such as Ankole, Gayal, and Yak.

. . . Farm animal means any domestic species of cattle, sheep, swine, goats, llamas, or horses, which are normally and have historically, been kept and raised on farms in the United States, and used or intended for use as food or fiber, or for improving animal nutrition, breeding, management, or production efficiency, or for improving the quality of food or fiber. This term also includes animals such as rabbits, mink, and chinchilla, when they are used solely for purposes of meat or fur, and animals such as horses and llamas when used solely as work and pack animals. . . " 

". . . Pet animal means any animal that has commonly been kept as a pet in family households in the United States, such as dogs, cats, guinea pigs, rabbits, and hamsters. This term excludes exotic animals and wild animals. . . . "

". . . Retail pet store means any outlet where only the following animals are sold or offered for sale, at retail, for use as pets: Dogs, cats, rabbits, guinea pigs, hamsters, gerbils, rats, mice, gophers, chinchilla, domestic ferrets, domestic farm animals, birds, and coldblooded species. Such definition excludes-
-
(1) Establishments or persons who deal in dogs used for hunting, security, or breeding purposes;
(2) Establishments or persons exhibiting, selling, or offering to exhibit or sell any wild or exotic or other nonpet species of warmblooded animals (except birds), such as skunks, raccoons, nonhuman primates, squirrels, ocelots, foxes, coyotes, etc.;
(3) Any establishment or person selling warmblooded animals (except birds, and laboratory rats and mice) for research or exhibition purposes; and
(4) Any establishment wholesaling any animals (except birds, rats and mice).
(5) Any establishment exhibiting pet animals in a room that is separate from or adjacent to the retail pet store, or in an outside area, or anywhere off the retail pet store premises. . . . "

[Emphasis added; note that these exclusions are NOT exemptions from licensing requirements; they are only exclusions from the definition of a retail pet store.]

PART 2_REGULATIONS--Table of Contents
Subpart A_Licensing
Sec. 2.1 Requirements and application. 

(a)(1) Any person operating or intending to operate as a dealer, exhibitor,or operator of an auction sale, except persons who are exempted from the licensing requirements under paragraph (a)(3) of this section, must have a valid license. A person must be 18 years of age or older to obtain a license. A person seeking a license shall apply on a form which will be furnished by the AC Regional Director in the State in which that person operates or intends to operate. The applicant shall provide the information requested on the application form, including a valid mailing address through which the licensee or applicant can be reached at all times, and a valid premises address where animals, animal facilities, equipment, and records may be inspected for compliance. The applicant shall file the completed application form with the AC Regional Director.

(2) If an applicant for a license or license renewal operates in more than one State, he or she shall apply in the State in which he or she has his or her principal place of business. All premises, facilities, or sites where such person operates or keeps animals shall be indicated on the application form or on a separate sheet attached to it. The completed application form, along with the application fee indicated in paragraph (c) of this section, and the annual license fee indicated in table 1 or 2 of Sec. 2.6 shall be filed with the AC Regional Director.  

(3) The following persons are exempt from the licensing requirements under section 2 or section 3 of the Act:
(i) Retail pet stores which sell nondangerous, pet-type animals, such as dogs, cats, birds, rabbits, hamsters, guinea pigs, gophers, domestic ferrets, chinchilla, rats, and mice, for pets, at retail only: Provided, That, Anyone wholesaling any animals, selling any animals for research or exhibition, or selling any wild, exotic, or nonpet animals retail, must have a license;
(ii) Any person who sells or negotiates the sale or purchase of any animal except wild or exotic animals, dogs, or cats, and who derives no more than $500 gross income from the sale of such animals to a research facility, an exhibitor, a dealer, or a pet store during any calendar year and is not otherwise required to obtain a license;
(iii) Any person who maintains a total of three (3) or fewer breeding female dogs, cats, and/or small exotic or wild mammals, such as hedgehogs, degus, spiny mice, prairie dogs, flying squirrels, and jerboas, and who sells only the offspring of these dogs, cats, or small exotic or wild mammals, which were born and raised on his or her premises, for pets or exhibition, and is not otherwise required to obtain a license. This exemption does not extend to any person residing in a household that collectively maintains a total of more than three breeding female dogs, cats, and/or small exotic or wild mammals, regardless of ownership, nor to any person maintaining breeding female dogs, cats, and/or small exotic or wild mammals on premises on which more than three breeding female dogs, cats, and/or small exotic or wild mammals are maintained, nor to any person acting in concert with others where they collectively maintain a total of more than three breeding female dogs, cats, and/or small exotic or wild mammals regardless of ownership;
(iv) Any person who sells fewer than 25 dogs and/or cats per year, which were born and raised on his or her premises, for research, teaching, or testing purposes or to any research facility and is not otherwise required to obtain a license. This exemption does not extend to any person residing in a household that collectively sells 25 or more dogs and/or cats, regardless of ownership, nor to any person acting in concert with others where they collectively sell 25 or more dogs and/or cats, regardless of ownership. The sale of any dog or cat not born and raised on the premises for research purposes requires a license;
(v) Any person who arranges for transportation or transports animals solely for the purpose of breeding, exhibiting in purebred shows, boarding (not in association with commercial transportation), grooming, or medical treatment, and is not otherwise required to obtain a license;
(vi) Any person who buys, sells, transports, or negotiates the sale, purchase, or transportation of any animals used only for the purposes of food or fiber (including fur);
(vii) Any person who breeds and raises domestic pet animals for direct retail sales to another person for the buyer's own use and who buys no animals for resale and who sells no animals to a research facility, an exhibitor, a dealer, or a pet store (e.g., a purebred dog or cat fancier) and is not otherwise required to obtain a license;
(viii) Any person who buys animals solely for his or her own use or enjoyment and does not sell or exhibit animals, or is not otherwise required to obtain a license;

[emphasis added]


http://www.aphis.usda.gov/animal_welfare/downloads/awr/awr.pdf

The language in this section and the definition of "retail pet store" is part of what the proposed APHIS rule would change, adding the language  "Retail pet store 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 removing and changing the other phrases noted near the beginning of this article.

The rule also makes some other changes we have not discussed in this post, such as changing the number of breeding dog, cat or exotic animal females a breeder can have and be exempt from licensing requirements if they meet certain criteria.


More information and sources: 

Here is the link where you can make comments directly to APHIS (as many as you like; you're not limited to just one) on the proposed new rule which would drastically widen the pool of people required to be licensed: http://www.regulations.gov/#!documentDetail;D=APHIS-2011-0003-0001

The Cavalry Group has put up a website with some information and a summary put together by law experts: http://www.thecavalrygroup.com/aphis.php

They also have a tool to make it easy to email your congressional representatives about this issue (this is important because the new rule must be approved by Congress). You can use their suggested wording, or (preferably, for more impact) revise and edit it to reflect your own situation and wording. (While you're at it, it would also be a good idea to write another note asking them NOT to support the PUPS (Puppy Uniform Protection and Safety) Act, another very similar law backed by the HSUS and other animal supremacy groups that some congressfolks are trying to pass.)
http://the-cavalry-group.rallycongress.com/6980/urge-congress-take-action-to-support-cavalry-group-mission/

Here are the published regulations pertaining to the Animal Welfare Act: http://www.aphis.usda.gov/animal_welfare/downloads/awr/awr.pdf

  Washington Animal Watch Posts about the proposed USDA/APHIS rule:

New USDA rule would force small breeders to become licensed. http://waanimal.blogspot.com/2012/06/new-usda-rule-would-force-millions-of.html

Why not just apply for a USDA license? http://waanimal.blogspot.com/2012/06/why-not-just-apply-for-usda-license.html

 Images Opposing PUPS and the APHIS proposal (for posting on your own site, Facebook page, etc.) http://waanimal.blogspot.com/2012/06/ads-opposing-pups-and-aphis-proposal.html

Buying Animals at Shows: http://waanimal.blogspot.com/2012/06/buying-animals-at-shows.html

Our thoughts on the APHIS fact sheet and ARBA/APHIS teleconference notes: http://waanimal.blogspot.com/2012/07/never-trust-lawmakers-who-say-they.html


~~ Copyright Washington Animal Watch, 2012 ~~


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