USDA / APHIS Rule Change 2013

Published October 2013

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Editor's Note: Like most new regulations, the USDA/APHIS rule will require some interpretation and tweaking as it comes into effect and is applied to real life situations. The regulations are written to apply to all species of small domestic and exotic mammals sold as pets, so some specifics must be written in general terms in order to encompass the various species. Hopefully, USDA/APHIS will be able to clarify their regulations as they apply to hobby cat breeders once the new rule goes into effect.

Specific questions should be directed to Dr. Gerald Rushin at APHIS – (301) 851-3751.

As of November 18, 2013, the new rule by the United States Department of Agriculture (USDA) and Animal and Plant Health Inspection Service (APHIS) under the Animal Welfare Act (AWA) takes effect. This new rule redefines the circumstances that allows a breeder to be exempt from being labeled a "retail pet store" or requiring a federal dealer license to market their kittens.

Text of the new rule can be seen at http://www.gpo.gov/fdsys/pkg/FR-2013-09-18/pdf/2013-22616.pdf

The new rule is directed at regulating the selling of pets over the internet (or any other means) in which the buyer does not see the animal in person before purchasing it and/or taking physical custody. The rule appears to be an attempt to track down breeders who sell and ship kittens that are sick or have genetic defects . . .


The Selling Of Pet Kittens

The new rule has narrowed the definition of a retail pet store exemption and will affect how many cat breeders can now sell their pet kittens.

The hobby cat breeder will fall into one of three categories according to the new rule:

  • A Dealer Requiring A Federal License:

    Most catteries wish to avoid having to get a federal dealer license due to the cost of the license and the fear (founded or unfounded) of regulation and inspection that goes along with being licensed. A licensed dealer, however, has two main advantages:

    • No limits on the number of breeding cats they can have on their premises.
    • Is free to sell and ship pet kittens to the buyer sight unseen.
  • The Retail Pet Store:

    If the cattery does not have a dealer license it is classified as a retail pet store unless it qualifies for an exemption. A retail pet store may only sell pet kittens in a face-to-face transaction with the buyer.

A Retail Pet Store is defined as a place of business or residence at which the seller, buyer, and the animal available for sale are physically present so that every buyer may personally observe the animal prior to purchasing and/or taking custody of that animal after purchase. Retail pet stores are exempted from the requirement that the seller obtain a federal dealer license.

  • Exemptions:

    The following are conditions under which a cat breeder is exempt from the retail pet store status and would be able to sell kittens sight unseen:

    • The cattery has 4 or less breeding females AND sells only the offspring born and raised on the premises.
    • The sale of cats that are to be used for breeding.
    • Preservation of Bloodlines. This would most likely apply to catteries working with rare or minority breeds.

Even if the buyer has seen photos or video of the kitten,
it is still considered to be sight unseen.

Face-to-face transaction requires the seller, the potential buyer and kitten to all be
in the same room before the buyer pays for the kitten and takes possession of it.

So, how does this new rule change affect the average cat breeder?

If You Have 4 Or Less Breeding Females:

If you have a small breeding program with 4 girls or less and sell only the offspring born and raised in your home, you are exempt from the retail pet store definition and can continue to market your kittens as usual. This means that you can sell your pet kittens sight unseen, as would be typical when advertising and selling over the internet, and then shipping to the buyer.

The term "Breeding female" has not been defined in the new rule but appears to refer to any female cat capable of conceiving and producing kittens. Female cats that an inspector deems unsuitable due to age, illness, infirmity or other issues would be excluded.

All breeding females on the premises will be counted,
regardless of ownership or species.

If You Have 5 Or More Breeding Females:

If you keep more than four intact females you do not qualify for an exemption and will be classified as a retail pet store unless you apply for a dealer license:

Retail Pet Store — May Sell Pets Kittens ONLY Through Face-To-Face Transactions:

With 5 or more breeding females, you will be classified as a retail pet store. You may continue to advertise online and use online breed or pet referrals, but must sell pet kittens only in face-to-face transactions.

The buyer, seller and the cat must all be physically present together before the buyer purchases the kitty and takes possession.

This means that the "sale" must occur in person at which time you give the buyer the kitten and the buyer gives you payment. The law states that the buyer must be able to "observe the animal prior to purchasing and/or taking custody of that animal after purchase", so you can still take a deposit on a kitten sight unseen, but the buyer, seller and cat must all be face-to-face before the buyer takes possession.

The sale may take place at any location agreed upon by the buyer and seller. The face-to-face does not need to take place in your home. For instance, you could arrange to meet the buyer in a parking lot, a show hall, or any mutually agreed location. The buyer can fly to your home or you can fly to theirs with the kitten or meet up in an airport.

Your advertising should no longer state that you ship pets, but might include something like, "We'll be happy to meet you in person for you to to pick up your pet kitten so you can carry it back home yourself". 

USDA Dealer License — May Sell And Ship Pets Kittens Sight Unseen:

If you keep 5 or more intact females on your premises and wish to sell pet kittens to buyers sight unseen, you will need a USDA dealer license.

For more information regarding dealer licensing contact:
Dr. Gerald Rushin, Veterinary Medical Officer, Animal Care, APHIS
4700 River Road, Unit 84, Riverdale, MD 20737-1236
(301) 851-3751

The federal licensing is separate from state or local licensing and inspections so if you decide to apply for a federal dealer license, you must also have any license or permits required by your local city/county/state.

Exception For Cats Sold For Breeding

A person who sells and ships animals at retail for breeding purposes is not considered a dealer and thus not subject to licensing. Such persons could continue selling at retail and shipping animals sight unseen as long as the animal is used for breeding purposes. The new regulation does not have a clear definition of the difference between a "pet" cat and breeding stock so it is important that the cat breeder be able to clearly demonstrate with paperwork their purpose in selling the cat when selling sight unseen.  This may provide an option for many small breeders who take breeding for the improvement and preservation of their lines seriously and are not selling all their kittens as pets.

The new rule is unclear whether a breeder can claim this exemption only if they sell all their kittens as breeding animals or if they can claim the exemption for those kittens sold for breeding while also selling pet kittens in face-to-face transactions.

Exemption For The Preservation Of Bloodlines

Breeders of rare or minority breeds may be able to keep more than 4 breeding females but still be exempt from being classified as a retail pet store if they fall under the exemption for preserving bloodlines. We say "may" because this is not clearly spelled out in the new regulation.

At this point, we do not know what breeders of the minority cat breeds such as Havana Browns need to provide to be able to claim an exemption from the new rule.

Even if your breed does not qualify for an exemption, there is no need to panic.
The new rule only affects how you handle your pet kitten sales.
You can continue to structure your breeding program as you always have
while only changing the way you sell pet kittens.

Enforcement Of The New Regulation

APHIS has indicated that there are a variety of ways to achieve compliance within a home-based operation. APHIS has indicated that investigations and possible further action will be based on what they perceive to be the breeder's intent when selling a kitten — in other words, if you sell a kitten sight unseen, you need to have documented proof that it is being sold for breeding purposes. While fanciers are understandably concerned about how the new rule will be applied, it's always good policy to be as transparent as possible about your cattery operation.

Interpretation of the new rule will be at the discretion of the individual inspector, so it is essential that the cat breeder has paperwork that PROVES every claim that qualifies them for an exemption.

Microchip Your Cats

If you are claiming the exemption for having 4 or less breeding females, but also have spayed females in your home that you do not want to have counted as one of your breeding cats, be prepared to supply proof of spaying if your are ever questioned by an APHIS official. You cannot tell whether a cat is spayed just by looking at it, even if you are a veterinarian. To avoid disagreements or added vet examination costs, microchip your cats and have the number recorded on their health and spay records and keep a copy of the record along with all your veterinarian's contact info. This is the only way you can easily prove to an official that a cat is spayed. Remember, officials LOVE documentation.

How Does This Affect Your Pet Kitten Sales?

Catteries don't have to stop selling pet cats to owners who live too far to drive to pick up the kitten, they will just have to change how those sales are handled.  In the simplest scenario, the buyer will have to fly to the breeder to pay for and pick up the kitten or the buyer can pay for the breeder and kitten to fly to them. Explain to pet buyers why you have to do it this way. Reasonable buyers will understand. 

In Summary

Comparison Of The Options
Classification
# Of Breeding Females Allowed
Method Of Selling
Pet Kittens
Disadvantages
DEALER LICENCE
Unlimited
Sight unseen
Fee & Inspections
RETAIL PET STORE
5 or more
Face-to-face only
Cannot sell pet kittens
sight unseen
BREEDER EXEMPTION
4 or less
Sight unseen
All kittens must be born and raised on the premises
Limited number of
breeding girls


Each cattery's circumstances will vary and the decision of how to adjust to the new rule will be up to the individual cattery owner to choose the option that works best for them.

If qualifying for an exemption, be sure to keep good records and be prepared to provide documentation if you should receive an official APHIS inquiry about your activities. Officials are always looking for the paperwork that confirms any claims. 

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