The American Kennel Club and the Pet Animal Welfare Statute of 2005:
Whence Comes the Reversal of Course?

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The 25 Sales Exemption - The Death of Rescue

The 25 sales exemption comes into play in a number of instances. First, the toy breeds are likely to be unable to take advantage of the breeder exemption because of the 6 litter restriction. There is a threshold question about whether the 25 sales exemption will be interpreted by courts to be available to breeders at all, or if a court, at the urging of DDAL, HSUS, or PeTA, would interpret the two exemptions as applying to two different groups, with the sole exemption available to breeders being the 6 litter exemption, and the 25 sales exemption reserved only for non-breeders.

In other words, could a trial court, selected by a plaintiff animal rights organization, rule that the breeder exemption is the only exemption available for breeders, and should there be a complete failure of a breeder to meet the terms of that exemption, that the breeder becomes regulated? Does the word "or" between the two exemptions lead to an interpretation that the two exemptions, rather than being alternatives available to the same classes of people, are two different alternatives available to two different classes of people - breeders on the one hand, and non-breeders on the other?

The question is rhetorical. No effective response to the question may be made by AKC, HSUS, PeTA, or the other advocates of PAWS. I suspect, however, that HSUS and PeTA would honestly answer: "Yes, a trial court could do that, and we want it to do so," while the AKC would attempt to assuage the fancy by answering: "No, that is neither what the statute means nor what it was intended to do." Unfortunately for AKC, statutes are construed by courts, not by advocates for legislation who come under fire from the people they are purporting to represent.

Assuming that the 25 sales limit applies to breeders who are unable to make the breeder exemption, the question remains: what happens to rescue organizations? These are the blessed among us who, like St. Francis of Assisi, give of themselves out of devotion, human caring, sympathy and compassion. What happens to them under PAWS?

According to Dr. Holt, nothing happens to rescue. PAWS does not affect rescue organizations, according to him, because rescue organizations do not operate at a profit.

The following question was asked of Dr. Holt who gave the following response:

Q: Will rescue organizations and shelters which charge an adoption fee for placing puppies be regulated under the PAWS?

Dr. Holt: . . . The USDA does not now regulate non-profit entities such as shelters when they otherwise would qualify as a dealer, and there is no reason to believe they would do so with the enactment of PAWS. On the other hand, organizations that profit from the sale of dogs will be regulated, even if they call themselves a rescue operation or shelter.²⁷

Dr. Holt, as I understand it, is not a lawyer. He should not be doling out legal opinions. The statement above is false.

The AWA defines person and commerce as follows in 7 USC § 2132:

(a) The term "person" includes any individual, partnership, firm, joint stock company, corporation, association, trust, estate, or other legal entity;. . .

(c) The term "commerce" means trade, traffic, transportation, or other commerce--
(1) between a place in a State and any place outside of such State, or between points within the same State but through any place outside thereof, or within any territory, possession, or the District of Columbia;
(2) which affects trade, traffic, transportation, or other commerce described in paragraph (1).

PAWS provides:

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. . . (Emphasis added).

It is therefore a false statement to assert that rescue organizations will not be covered if PAWS is adopted. Rescuers are not covered now because the AWA only regulates wholesale sales. Since PAWS abolishes the retail/wholesale distinction, the fancy cannot rely on the historical record, as Dr. Holt suggests, that "there is no reason to believe" that USDA would regulate rescuers. If rescuers are "persons" under 7 USC § 2132, and they contract to provide another person with a dog or cat in exchange for consideration - even if the price is below a market price or is inadequate to cause profitability - they have received compensation for the sale of a dog or cat. They are therefore dealers under PAWS, unless exempt.

Any rescue person or organization, therefore, must shut down after the 25th rescue in a given year - or not receive compensation for their costs associated with rescuing the dog or cat from the local shelter, having it micro-chipped and spayed or neutered, advancing veterinary costs and so forth.

That is - unless we are relying on the "choice" of the USDA to somehow define rescuers out of the coverage of PAWS. To rely on that would require rescuers to be subject to the very danger that Dr. Holt expressed was the reason for AKC's backing of PAWS in the first instance.

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²⁷ PAWS Q & A by Jim Holt, e-mail correspondence of early July, 2005.