USDA Internet Sale Regulations
We fly our puppies throughout the United States. As home breeders we do our best to follow all the rules in a world that is fast becoming commercial kennel friendly. I can't imagine kennel life for such tiny breed dogs. One day home breeders will not be able to exist due to well meaning rules, but rules that try to to make private homes subject to the same regulations as commercial kennels. To avoid adding cement to a bedroom and a drain ( LOL) we abide by the "face to face" meeting with each buyer in person Or with a buyer's approved stand in. If you can come in person to see the puppy face to face, then that is great, but if you live too far away and can't come in person then you can choose someone to stand in for you. This can be a friend or relative of yours who lives near us OR we can offer you some advise in this area. Give us a call so you and I can work something out for you and the puppy you would like to have flown.
The new USDA rules, which basically change the definition of a "retail pet store" and increase Federal oversight of many breeders selling puppies sight unseen, have not surprisingly generated a number of questions from dog breeders. Some of the most common are addressed here. Again, keep in mind that I am neither a Federal employee nor an attorney. I've provided as many citations as possible to support these answers and help bust the many myths that have already sprung up regarding the rule. For the sake of simplicity, I am limiting the information to the sale of dogs and puppies only; if you also breed and sell other species, a more thorough review of the rule is advised. This is not to be construed as legal advice.
Items Used as Reference
Animal Welfare Act Regulations ("Regulations") -- current as of 9/10/13, do not include new rule (HTML)
Glossary of AWA Terms ("Glossary") -- not updated with new rules as of 9/12/13. (PDF)
Docket No. 2011-2003 ("Docket") -- the Final Rule, as officially published in the Federal Register (PDF)
Press Release Regarding Final Rule ("Release") -- dated September 10, 2013 (HTML)
Questions and Answers Regarding Final Rule ("Q&A") -- Factsheet dated September 2012 (PDF)
USDA Conference Call Regarding Final Rule ("Conference Call") -- Held September 10, 2013 (Vimeo)
Transcription of USDA Conference Call Regarding Final Rule ("Transcript") -- Held September 10, 2013 (PDF)
The Published Final Rule ("Published Rule") -- as published in the Federal Register on September 18, 2013
Does This Mean I Can No Longer Ship Puppies?
Clearly, this is a problematic area for many responsible home breeders. Shipping dogs to buyers in other states is a long-practiced way to disseminate different bloodlines across the country. If you have five or more breeding females, The buyer must, at some point, see the dog in the flesh before it is sold or custody is transferred. The one saving grace is that a new owner may appoint a "proxy" of sorts to pick up the puppy for them -- the USDA allows that the buyer may not be the ultimate owner. (See Docket, page 28: "we consider the buyer to be the person who takes custody of the animal after purchase. This person may differ from the ultimate owner of the animal but cannot be acting as a carrier or intermediate handler.") Basically, if someone is not in the business of transporting animals, they can pick up the dog on behalf of the ultimate owner. (Some breeders may find contract modification necessary in this circumstance, just to keep the definitions of "buyer" in sync.)
I Meet The "Four and Fewer" Exemption. Can I Ship A Puppy Sight Unseen?
Yes, you can. There are some who are holding fast to the notion that "if you ship even one puppy sight unseen, you must be licensed." As of yet, however, not one of them has been able to provide a source for that notion. It is not stated that way in any document from the USDA, and as above the exemptions are clearly written so that if you qualify for the "four and fewer" exemption, you are not subject to licensing. To help ease the minds of those who are struggling with this, here are some other citations:
"Small-scale residential hobby breeders -- those who keep four or fewer breeding females on their property, and sell the offspring as pets, do not need to be licensed. If they choose to do so, these small-scale breeders can continue to sell their offspring in sight unseen transactions." (Conference Call, 3:40)
"This final rule will primarily affect dog breeders who maintain more than four breeding females at their facility.and sell the offspring as pets to buyers who do not see the animals prior to taking ownership of them." (Conference Call, 4:13)
[In answer to a buyer with eight breeding females who sells only in face-to-face transactions:] "It won't affect you because you sell dogs to people who come to your home anyway, but if you didn't sell them that way, if you did ship dogs, you would fall under this rule and have to be regulated, have to get a license, because you have more than four."
What is a Dog Sold For "Breeding Purposes"?
Another murky area, with much the same answer as the "working dog" question. The NAIA has reviewed the Final Rule and has published their interpretation, which includes these statements:
"A breeding done to maintain bloodlines or to produce [for example] herding dogs may produce an animal not suitable for the purpose for which it is bred. That animal may be sold as a pet if the intention in breeding was to produce breeding or herding stock and not an animal for sale as a pet and you continue to advertise your animals for sale as breeding or herding stock or another purpose not included in the six dealer purposes."
"It is not the regulatory intent of USDA to regulate residential breeders, unless they are clearly breeding for the purpose of selling pets."
Note that these statements have not yet been verified by the USDA. While many "show breeders" are taking this to mean that they are exempt from licensing because they are "breeding to maintain bloodlines", many show breeders also sell the majority of their dogs as pets, on spay/neuter contracts. Given the USDA's emphasis on "intention to sell" the dog for a specific purpose, and the acknowledgment that breeders of working dogs may "occasionally" have a dog that doesn't turn out, I would personally advise caution on taking this stance until and unless the USDA confirms that "breeding to maintain bloodlines" exempts one from licensing, even if most of the puppies are sold as pets. (I very much hope the NAIA is right, but the statements regarding working dogs has me skeptical the exemption would apply to the typical show breeder. Note also that "preservation of bloodlines" was specifically mentioned as an exemption for rabbit breeders, but not for dog breeders. (Transcript, page 2, Release, paragraph 7) If, however, your intention is to sell all of your puppies as breeding prospects, you would likely qualify for the exemption.)
Does This Mean I Have to Let People Into My Home?
Some home-based breeders prefer not to allow people to come into their home, for safety, security, health or various other reasons. The USDA has acknowledged these concerns, and has stated that the "residence" does not necessarily have to be the seller's residence. Further, they have stated that a "place of business" is essentially anywhere the buyer, seller, and puppy are physically together in the same location. That means you can meet your puppy buyer at a friend's house, at the park, in the shopping center parking lot, or at the airport -- as long as you are all together in person at the same time, it is considered a face-to-face sale. (Note that many municipalities prohibit business transactions in public places, so check the local ordinances of wherever you intend to meet the buyer.)
What If the Buyer Can't Come to Me?
Some buyers aren't able to drive long distances or fly to breeders to pick up a puppy. If it's a timing issue, the buyer can come see the puppy at an earlier date. For example, they could come when the pups are 6 weeks old, and you could then ship the puppy to them when it was 8 weeks without needing a licensing. As long as the buyer, seller, and puppy are physically in the same location at the same time prior to the sale or transfer of custody, it is considered a face-to-face transaction.
"One commenter asked how recently buyers must have visited a facility before a seller can sell them a pup remotely. As an example, the commenter wanted to know whether, if buyers visited her facility 2 years earlier to buy a pup, she could remain exempt if she shipped them a second pup without them visiting her a second time.
"As indicated in our revised definition of retail pet store, each purchase of a pet animal requires that 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. Accordingly, if the buyers observed this second pup during their visit, this condition is fulfilled. If they did not (e.g., if the pup was not yet born when the prior transaction took place), this condition is not fulfilled." (Docket, page 25)
Another option is for the new owner to send someone to observe and pick up the puppy in their place. As far as the USDA is concerned, the buyer is not necessarily the same person as the ultimate owner. The only restriction is that it cannot be a paid agent -- no "carriers" or "intermediate handlers". (A carrier is an animal transportation business, basically, and an intermediate handler is a person in the business of receiving custody of animals in connection with their transport in commerce. (Glossary) Essentially, if they get paid to pick up the puppy, it doesn't count.) So a family member, friend, fellow breeder, etc. could pick up the puppy from you on the new owner's behalf; the person picking up the puppy would be considered the buyer for the intents of the "buyer, seller, and animal must be physically present in the same location at the same time" definition of a face-to-face transaction.