UNDERSTANDING THE PUPPY PROTECTION ACT November 15 , 2001 (Last publication date 10/10/01)
IN THIS ISSUE: WHAT YOU NEED TO KNOW ABOUT THE PUPPY PROTECTION ACT OF 2001, H.R.3058/S 1478 IN A FREQUENTLY ASKED QUESTIONS FORMAT. WHAT ARE THESE BILLS? Identical versions of these bills have been introduced in both the Senate and the House and are called the "Puppy Protection Act of 2001." These bills can be moving at the same time through both houses, or either might even be amended onto another bill to make speedier progress. The House bill is H.R.3058 and the Senate bill is S 1478. WHAT DOES IS THE PUPPY PROTECTION ACT REALLY ABOUT? This year's Puppy Protection Act uses the latest legislative diversion tactic of "socialization" for puppies by focusing legislators' attention on the carefully cultivated contemptibility of the illusive "puppy mill" to bog down both USDA and licensed dog breeders with increased uncertainties, costs and burdens, but more importantly increase the risk of permanent license revocation - not just for dog breeders who are unlikely to still be operating after repeated violations, but for the licensees that are much higher on the activist "hit list" - the research facilities, zoos and circuses. WHAT ARE THE ONLINE SITES FOR FEDERAL LEGISLATION: Thomas Legislative Service at http://thomas.loc.gov/ The official sites at <http://www.senate.gov/> <http://www.house.gov/> And Findlaw resources <http://guide.lp.findlaw.com/10fedgov/legislative/house/index.html> <http://guide.lp.findlaw.com/10fedgov/legislative/senate/index.html> WHAT NEEDS TO BE DONE RIGHT NOW? Contact your own Senators and Congressional member at their state and district offices to avoid the delays related to the anthrax situation in Washington D.C. Or telephone the Capitol switchboard at (202) 224-3121 and ask for the Senate or House office you wish to contact. � Oppose H.R.3058/S 1478, The Puppy Protection Act of 2001, because it is based on unsubstantiated facts, unfounded assumptions, badly conceived and the revocation provisions snaring a all licensees, not merely repeat-offender dog breeders. � If your legislator is not a sponsor/co-sponsor, ask them to not do so, and if they have done so, ask them to consider withdrawing sponsorship. � The bills are assigned to the House or Senate Committees on Agriculture, so if any of these members represent you, be sure to ask these legislators to stop these bills from moving forward. � The American Kennel Club alerts <www.akc.org> have a convenient list of the Ag. committee members and their contact information. You can also subscribe to AKC's new email notification service for when new legislative alerts are posted to their web site. This should be useful if there are developments requiring rapid, grassroots responses. THINGS TO REMEMBER WHEN WRITING (BY ANY METHODS): � One page is enough. These days, if mailing, consider an individually written post card. � Cite the bill name and number and "OPPOSE" with reason. Stick to the bill. � Be sure to include your legible name and address. � Address "The Honorable name. Unites States Senate OR United States House of Representatives. Washington D.C. 20515. Dear Senator OR Representative name: WHAT DOES THE PUPPY PROTECTION ACT OF 2001 DO? It amends the Animal Welfare Act (7 U.S.C. �� 2131 et. seq.) The AWA sets minimum standards of care and treatment for most warm-blooded animals bred for commercial sale, used in research, transported commercially, or exhibited to the public. AWA authorizes the U. S. Department of Agriculture (USDA) to enforce the statute which it does through the Animal and Plant Health Inspection Service (APHIS.) This operates as a federal agency subject to the various laws governing federal administrative law in the development and enforcement of agency rules and policies pursuant to specific federal statutes. The AWA was enacted in 1966, and amended in 1970, 1976, 1986 and 1990. The PPA of 2001would amend only two sections of AWA - Section 13 pertaining to care of animals and Section 19 covering licensing discipline. HAS THERE BEEN OTHER FEDERAL LEGISLATION CALLED THE "PUPPY PROTECTION ACT?" Yes, in 1991 the Humane Society of the United States developed another "Puppy Protection Act" introduced as HR 3718, Sponsored by Rep. Benjamin Cardin (D-3-MD) - now a co-sponsor of the 2001 Act -- aimed at including a broad spectrum of breeders as "puppy mills" and imposing complex consumer protection provisions enforceable in federal or state court. This bill failed for its complexity, and the 2001 bill is downright cunning in its simplicity. WHAT ARE THE DETAILS OF THE PPA OF 2001? � Section 1 merely states the name of the Act. � Section 2 sets out a long list of undefined, irrelevant, unsubstantiated findings. This is the same tactic used in spay/neuter/breeding laws that recite lists of allegations that are never documented yet take on a life of their own in the legislative history. � Section 3 requires the USDA , responsible for enforcing the Animal Welfare Act through its authority to develop rules (within one year) to more fully explain the law, to develop rules in 2 additional areas besides the existing humane care and exercise requirements. These are; "for the development of an engineering standard, including a written plan of activities, based on the recommendations of animal welfare and behavior experts, for the socialization of dogs to facilitate contact with other dogs and people; and for addressing the initiation and frequency of breeding female dogs so that a female dog is not bred-- (i) before the female dog has reached at least 1 year of age; and (ii) more frequently than 3 times in any 24-month period." � Section 4 includes a 3-strikes revocation provision that IS NOT LIMITED TO DOG BREEDERS but includes all designated licensees. For example, "exhibitors" include circuses and zoos and research facilities includes major universities. Also, dealers may handle an assortment of species other than dogs. The criminal justice experience with 3-strikes provisions, intended to incarcerate predatory recidivists, has produced much additional litigation in determining what is a strike and some very disproportionate results making the conviction vulnerable on appeal. In an administrative setting, imposing the 3-strikes concept on licensed participation in a lawful, regulated industry of any kind presumes that the agency is incapable of or derelict in using its existing enforcement authority properly. This measure would greatly raise the adversarial stakes in enforcement actions and divert agency resources to this end. The bills state: "MANDATORY REVOCATION- If any person licensed as a dealer, exhibitor, or operator of an auction sale subject to section 12*, is found, after notice and opportunity for hearing, to have violated any of the rules, regulations, or standards governing the humane handling, transportation, veterinary care, housing, breeding, socialization, feeding, watering, or other humane treatment of animals under section 12 or 13 on 3 or more separate occasions within any 8-year period, the Secretary, on finding a third violation, shall revoke the license of the person unless the Secretary makes a written finding that the violations were minor and inadvertent, that the violations did not pose a threat to the animals, or that revocation is inappropriate for other good cause." For your reference, Section 12 states, "Section 12. The Secretary is authorized to promulgate humane standards and recordkeeping requirements governing the purchase, handling, or sale of animals, in commerce, by dealers, research facilities, and exhibitors at auction sales and by the operators of such auction sales. The Secretary is also authorized to require the licensing of operators of auction sales where any dogs or cats are sold, in commerce, trader such conditions as he may prescribe, and upon payment of such fee as prescribed by the Secretary under section 23 of this Act. (7 U.S.C. � 2142) (P.L. 89-544, � 12, Aug. 24, 1966, 80 Stat. 351; P.L. 91-579, � 13, Dec. 24, 1970, 84 Stat. 1562; P.L. 94-279, � 5, Apr. 22, 1976, 90 Stat. 418.) Also, for your reference, Section 13 (to which the socialization and breeding age provisions would be added as (C) and (D) reads, "Section 13. (a)(1) The Secretary shall promulgate standards to govern the humane handling, care, treatment, and transportation of animals by dealers, research facilities, and exhibitors. (2) The standards described in paragraph (1) shall include minimum requirements-- (A) for handling, housing, feeding, watering, sanitation, ventilation, shelter from extremes of weather and temperatures, adequate veterinary care, and separation by species where the Secretary finds necessary for humane handling, care, or treatment of animals; and (B) for exercise of dogs, as determined by an attending veterinarian in accordance with the general standards promulgated by the Secretary, and for a physical environment adequate to promote the psychological well-being of primates." WHAT DOG BREEDERS ARE COVERED BY THE PPA ACT AND AWA? Here is the trick question that makes the timing of this legislation so transparent. Historically, USDA has only licensed dog breeders who sell wholesale, i.e. pups bound for pet stores. Using this qualitative measure instead of continually variable quantitative measures, i.e. number of animals sold or breeding animals maintained, has been a very workable administrative standard. However, whether this is a legal interpretation of the Animal Welfare Act has been disputed for years by the Doris Day Animal League, with the latest court decision against USDA and currently under appeal in Federal court. Thus, there is uncertainty about which dog breeders will be regulated in the future. If the USDA must discontinue its wholesale-only standard, it will have to once again go through the time-consuming rulemaking process to develop new criteria. USDA's experience has been entirely with the wholesale sector where puppies are shipped to market at a young age so that there is minimal time for socialization. However, direct sale breeders often must keep puppies for extended periods during which socialization activities are more appropriate but still vary greatly with breeds, weather, health concerns, location, intended purpose, etc. USDA has had no experience with this type of operator, so that developing within one year any new rules pertaining to dog breeders would present many uncertainties. Remember, that USDA regulations have been developed for operations that are structured to produce a profit and justify the capital investment in free-standing facilities for continuous operation. Owner-interest groups have opposed inclusion of non-commercial scale breeding, because it would discourage the most desirable, small breeders and diminish the supply of high quality dogs. "Happiness is a warm puppy." has never been more true as pet stores are reporting increased demand for puppies in these difficult times. It is public demand that drives the regulated, commercial sector of dog breeders. WHAT IS WRONG WITH THE "FINDINGS?" These recitals reflect the views of those who are promoting legislation rather than truly documented facts backed up by analysis or evidence. When findings are misleading, the need for and context of the legislation is distorted making opposition particularly difficult. These findings raise some very troublesome concerns. Since the existing law is being amended, the implication is that the existing licensees and the USDA itself are deficient. The reference to "3,000 commercial dog breeding operations" refers to the number of existing licensees. But the findings begin with, "puppies in the United States are mass-produced at breeding facilities known as `puppy mills.'" HSUS's alert (see their web site) on the PPA actually defines "puppy mill" as, "Puppy mills are breeding facilities that produce purebred puppies in large numbers. The puppies are sold either directly to the public via the Internet, newspaper ads, or at the mill itself, or are sold to brokers and pet shops across the country." Now, this definition includes both the existing regulated wholesale breeders (i.e. 3,000 or so) and the unregulated retail breeders. What are "large numbers of puppies?" Purebreds only? The findings then list an array of horrors such as overcrowding, vermin infested food and lack of vet care that are already prohibited for licensees. Then, the subjects shift to breeding issues - "inbreeding," "overbreeding" (apparently they mean frequency though this term is always vague,) latent genetic diseases and defects, behavioral deficits and "killing unwanted animals." What are the legislators to think?? Cure all these ills with more federal laws and bureaucracy? WHY NOT REQUIRE SOCIALIZATION FOR DOGS? So far, we are unaware of any other attempts to legislate specific requirements for socialization. In this year's California AB 161 covering only dog breeders subject to the consumer protection statute, an unspecific socialization requirement was slipped into the bill, "Provide dogs with adequate socialization and exercise. For the purpose of this article, "socialization" means physical contact with other dogs and with human beings." In the final committee hearing, legislators ignored the confusing last minute-change in the qualifying threshold and talked only of socialization, so it was very clear that the "warm and fuzzy" but vague term socialization obscures attention to the truly operative effects. This same tactic is being used here, but with a new twist calling for an "engineering standard" which requires specific things rather than the preferred (when appropriate) "performance standard" geared to an end result. Instead of leaving development of the standard to the agency's usual discretion, the Act mandates "based on recommendations of animal welfare and behavior experts" totally ignoring breeders themselves, sometimes the most knowledgeable. Note also that the socialization is not limited to puppies, so that the licensee's older dogs may be included. Licensees would have to find ways to document socialization since most aspects are transitory. WHY NOT REGULATE AGE OR FREQUENCY OF BREEDING FEMALE DOGS? The first glaring problem is that the legislative wording only says "bred" with no reference to whether there is a pregnancy, let alone delivery of puppies. Infertility problems are not exclusive to humans! Female dogs may be "bred" several times in one estrus to maximize the chance of pregnancy or may be bred a number of times in a lifetime with never a pregnancy or live delivery. Even as to breeding before the age of one year, accidents happen and would be more likely among licensees if different types of breeders will be eventually included. In this scheme, an accidental breeding might be a "strike" against the license! WHY NOT 3-STRIKES LICENSE REVOCATION? HSUS states, "Create a "three strikes and you're out" rule that would permanently revoke the licenses of chronic violators of the standards set forth by the AWA." This is a mindless concept that does not belong in a regulatory setting where agency experience justifies considerable discretion in enforcement. Of concern, also, is that it applies to a very broad class of licensees including institutions and businesses that are charged based on conduct of employees. WHAT KIND OF PARTISAN POLITICS ARE INVOLVED IN THESE BILLS? The first named Sponsor of S 1478 is Republican, Rick Santorum of Pennsylvania with 13 others now listed as Co-sponsors. The co-sponsor list has been growing, so the specifics discussed here are subject to change. Of these there are 3 Republicans and 11 Democrats. The Sponsor of H.R. 3058 is Republican Congress Member Ed Whitfield of Kentucky. There are 64 listed Co-sponsors of whom 14 are Republicans and 50 are Democrats. With Republican Sponsors and largely Democrat Co-sponsors, there has been a deliberate and coordinated effort to make these bills appear to be bi-partisan while the main support is from Democrats. Fund for Animals successfully used this strategy in California where both houses are dominated by Democrats. FFA's successful California bill AB 161 was authored by a Republican previously receptive to animal activist legislation, with the result dividing the Republican legislators and building support among liberal Democrats. The same strategy is being tried here. WHAT ARE THE VOTING RECORDS OF THE PPA'S AUTHORS AND SPONSORS? The HSUS and The Fund for Animals publish "The Humane Scorecard" reviewing the work of each Congress and scoring each legislator based on votes on selected legislation. This can be downloaded as a pdf file from the HSUS web site <http://www.hsus.org> click on legislation. We are now in the 107th Congress so new legislators are not included in the latest Scorecard which reviewed the 106th Congress. No companion animal bills were considered, but the legislators' scores on the selected bills are a good indicator of individual receptiveness to the activist agenda, so we ranked the Sponsors and Co-sponsors in the order of their respective "scores." S1478 Sponsor/Co-sponsor list, HSUS/FFA "Score), Republicans followed by Democrats 100 Sen. Robert SMITH R-NH **80 Sen. SANTORUM R- PA (Sponsor) 40 Sen. WARNER, R-VA 100 Sen. DURBIN, D-IL 100 Sen. LEVIN, D-MI, 100 Sen. Reid, Harry M. (D-NV) 100 Sen. Schumer, Charles E. - (D-NY 100 Sen. Torricelli, Robert G. (D-NJ) 80 Sen. LIEBERMAN D-CT, 80 Sen. KENNEDY - D-MA 60 Sen. Harkin, Tom - (D-IA) 20, Sen. BREAUX, D-LA,. N/A Sen. MILLER, D-GA filled the seat of deceased Rep. Cloverdell and is not yet rated. N/a Sen Stabenow, Debbie - (D-MI) lst term H 3058 Sponsor/Co-sponsor list, HSUS/FFA "Score), Republicans followed by Democrats 100 Rep Horn, Stephen - R-38-CA, 100 Rep Shays, Christopher - R-4-CT 87.5 Rep Gilman, Benjamin A. R-20-NY, 87.5 Rep Johnson, Nancy L. - R-6-CT 75 Rep LaTourette, Steve C. R-19-OH) 87.5 Rep Leach, James A. R-1-IA, 87.5 Rep Morella, Constance A. - R-8-MD 75 Rep Roukema, Marge - R-5-NJ 75 Rep Tancredo, Thomas G. - R-6-CO 75 Rep Jones, Walter B., Jr. R-3-NC, **75 Rep Whitfield, Ed. (R-1-KY) (Sponsor) 62.5 Rep LoBiondo, Frank A. - R-2-NJ 50 Rep Kolbe, Jim - R-5-AZ 25 Rep Bono, Mary R-44-CA, n/a Rep Simmons, Rob - R-2-CT 1st term 100 Rep Blumenauer, Earl -D-3-OR, 100 Rep Bonior, David E., D-10-MI, 100 Rep Brown, Sherrod -(D-13_OH) 100 Rep Costello, Jerry F. - D-12-IL, 100 Rep DeFazio, Peter A. -D-4-OR, 100 Rep Deutsch, Peter -D-20-FL, 100 Rep Doyle, Michael F. - D-18-PA, 100 Rep Evans, Lane - D-17-IL, 100 Rep Filner, Bob - D-51-CA, 100 Rep Gonzalez, Charles A. - D-20-TX 100 Rep Kildee, Dale E. - D-9-MI, 100 Rep Lipinski, William O. - D-3-IL 100 Rep Maloney, James H. - D-5-CT 100 Rep Miller, George -D-7-CA 100 Rep Moran, James P. - D-8-VA, 100 Rep Pallone, Frank, Jr. - D-6-NJ 100 Rep Pelosi, Nancy D-8-CA) 100 Rep Roybal-Allard, Lucille - D-33-CA ( 100 Rep Sabo, Martin Olav - D-5-MN 100 Rep Schakowsky, Janice D. - D-9-IL 100 Rep Stark, Fortney Pete - D-13-CA 100 Rep Udall, Mark - D-2-CO 100 Rep Waxman, Henry A. - D-29-CA 100 Rep Woolsey, Lynn C. D-6-CA 87.5 Rep Baldwin, Tammy , D-2-WI, 75 Rep Brown, Corrine, D-3-FL, 87.5 Rep Cardin, Benjamin L. D-3-MD, 87.5 Rep Clyburn, James E. D-6-SC, 87.5 Rep Farr, Sam D-17-CA, 87.5 Rep Frank, Barney - D-4-MA, 87.5 Rep Green, Gene D-29-TX 87.5 Rep Hinchey, Maurice D. - D-26-NY 87.5 Rep Inslee, Jay - D-1-WA, 87.5 Rep Kucinich, Dennis J. - D-10-OH 87.5 Rep Lowey, Nita M. - D-18-NY 87.5 Rep Rivers, Lynn N. - D-13-MI 75 Rep Dicks, Norman D. - D-6-WA, 75 Rep Gallegly, Elton - R-23-CA, 75 Rep Jackson-Lee, Sheila - D-18-TX 75 Rep Kilpatrick, Carolyn C. - D-15-MI 62.5 Rep McDermott, Jim - D-7-WA 62.5 Rep Napolitano, Grace F. - D-34-CA 62.5 Rep Taylor, G. D-5-MS 62.5 Rep Velazquez, Nydia M.(D-12-NY) 50 Rep Baldacci, John Elias D-2-ME, 50 Rep Traficant, James A., Jr. - D-17-OH 37.5 Rep Gordon, Bart - D6-TN n/a Rep Davis, Susan A. -D-49-CA (1st term,) n/a Rep Langevin, James R. (D-2-RI) 1st term n/a Rep Solis, Hilda L. - D-31-CA. 1st term ***** *a service of THE ANIMAL COUNCIL, P.O. 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