‘Bad rule!’ Dog breeders tell USDA about new standards

Arezoo Tashakor's pet Chihuahua Chloe plays doggy dress-up at their Plano, Texas home, Sept. 27, 2008. (Rex C. Curry/MCT)
Arezoo Tashakor's pet Chihuahua Chloe plays doggy dress-up at their Plano, Texas home, Sept. 27, 2008. (Rex C. Curry/MCT) MCT

Chihuahua breeders are snapping at new federal rules that regulate Internet pet dealers. And they’re part of a larger pack.

From Russell terrier owners in Lexington, Ky., to miniature Australian shepherd fanciers in Red Oak, Texas, dog breeder organizations – and some feline allies – are challenging the Agriculture Department’s imposition of tougher standards on pet breeders who sell to remote buyers.

The licensing and inspection standards imposed last year were billed as a crackdown on Internet puppy mills. Groups such as the Chihuahua Club of America, the American Russell Terrier Club and the Miniature Australian Shepherd Club of America, though, think the rules also burden innocent pet breeders.

“The rules are an unjustified regulatory overreach,” attorney Philip Herbert Hecht said during a court hearing Thursday, adding that federal officials “have used a blunderbuss to kill a fly.”

The new rules regulate “sight unseen” sales, where the buyer and seller are physically separate. The Agriculture Department estimated that the new rules cover 2,600 to 4,600 dog breeders and roughly 325 cat breeders. Skeptics say this underestimates the impact.

The Agriculture Department further estimates that covered breeders would have to pay only several hundred dollars to comply. Skeptics contend the costs could be much higher, particularly for breeders who must make physical modifications.

Covered breeders must ensure that their kennels meet requirements that cover space, sanitation, ventilation, lighting and other elements .

Betsy Atkinson, for instance, is a New York dog breeder who estimated in an affidavit that it would cost “between $10,000 and $15,000” to modify her kennel to federal standards. Seattle-area resident Kornelia Surmann declared in an affidavit that she stopped breeding the rare Kurilian bobtail cat because she couldn’t afford the compliance costs.

The Obama administration defends the rules as appropriate, and well within the Agriculture Department’s authority.

“The secretary of agriculture believes monitoring must be in place when there is a risk of animal mistreatment,” Justice Department attorney Timothy A. Johnson said Thursday, adding that the costs are “more than outweighed by the benefit that animals will be treated humanely and well.”

During the 50-minute oral argument Thursday, U.S. District Judge Christopher Cooper didn’t explicitly tip his hand. At times, though, he pressed the government’s attorney about what evidence demonstrates the seriousness of the problem.

“How many complaints were there?” Cooper asked, following up later by asking, “What in the record supports the proportionality of the response?”

Johnson conceded he lacked specific information on complaints, while Hecht said documents obtained under the Freedom of Information Act revealed there have only been “a handful.” Taken together, this could undermine the Agriculture Department’s defense of the rules, which, Cooper said, impose “some fairly significant burdens.”

The hearing was to consider a motion for summary judgment, on a lawsuit that’s rooted in the Animal Welfare Act. The 1966 law imposed licensing and inspection standards but exempted retail pet stores, at a time when that meant traditional brick-and-mortar stores or small home-based breeders.

Online pet sales have since proliferated, leading the Agriculture Department’s inspector general to warn in a 2010 report that “some large breeders circumvented” the law by selling animals over the Internet while calling themselves retail pet stores.

“An increasing number of these unlicensed breeders are not monitored for their animals’ overall health and humane treatment,” investigators noted.

Bills to regulate Internet pet sales were subsequently introduced, but the Agriculture Department in 2012 proposed eliminating the Internet sales loophole on its own. After chewing over more than 75,000 public comments, officials imposed the new rules in September 2013.

While brick-and-mortar retail pet stores where buyer and seller physically meet are still exempt, businesses that sell pets “sight unseen” over the Internet or through other means must now be licensed and inspected. The rules cover any owner who maintains at least five breeding females.

The rules cover other types of pets as well, including gerbils, rats, chinchillas and snakes.

“We know that if the federal standards are being met, the animals are getting humane care and treatment,” Edward Avalos, the Agriculture Department’s undersecretary for marketing and regulatory programs, said when the rules were imposed.

The Humane Society of the United States has entered the case in support of the department’s rules, declaring at one point that they mean vulnerable animals “will finally get the protection they deserve.”

Hecht, based in Washington, and fellow attorney Franklin W. Losey, based in Navarre, Fla., filed the suit last December asking a judge to set aside the rule as unjustified and beyond the Agriculture Department’s authority.

A key question for Cooper will be how much deference he owes the Agriculture Department experts who crafted the rules.