1. Next event – The Governor appointed seven-member Texas Commission governing TDLR will meet on Tuesday, March 27th, 2012, 9:00 a.m., at TDLR’s offices—1106 Clayton Ln., Austin, Tx., 1st floor public meeting room. This will be a public hearing at which interested persons can submit comments.
2. The recommendations from the Breeders Advisory Committee (BAC) agreed upon at the March 1, 2012 meeting will be compiled in a revised Rules draft, for consideration by the Commission at its March 27 meeting. That interim draft will be published on TDLR’s website, very close to the March 27, 2012 meeting, according to Brian Francis with TDLR. The Commission has discretion to adopt or reject all or any of the BAC’s recommendations. They will be taking public comment at this meeting and revising for final draft to be published in the Texas Register. This may be the last chance for our community to influence the Commission’s decisions on the rules implementing the Breeders’ Program which were published in Texas Register on February 20, 2012.
3. TDLR Chair Frank Denton was excited about our turnout March 1st and was extremely complimentary of the way those of us attending conducted ourselves. IT IS VERY IMPORTANT to attend the March 27th meeting to show our numbers and professionalism!
4. Positive Highlights from the March 1st BAC meeting:
• TDLR (not BAC) eliminated Pre-license inspection fee.
• Inspection fees and right to assess additional Department “expenses” may also be eliminated.
• The attempt to prohibit non-licensed breeders from acting as or representing themselves as “breeders” was rejected by the BAC. They recommended amending the proposed rules to permit breeders who were not required to apply for a license to continue to refer to themselves as “breeders,” provided they do not represent that they are “licensed breeders.” This is an important issue for all breeders, as HSUS’s objective is to prevent anyone who is not a licensed breeder from referring to themselves, or acting as, a breeder. Additional support/comments on this subject are required, as a THLN attorney intends to challenge the BAC’s positive recommendation.
• Prohibiting unlicensed breeders from advertising was eliminated.
• Definition of wire mesh for walls and ceiling was removed from Rules.
• NO Third party Inspectors –TDLR has decided to use existing TDLR personnel (who already do 1100 inspections/each/year) for all inspections. FTE or PTE will perform inspections as needed. (Note that, per TDLR, an additional training program will still be required for its in-house inspectors regarding the Breeders’ Licensing Act provisions, pursuant to RFP.)
• The requirement that the licensed breeder must provide all veterinarian recommended treatment was eliminated by vote of the BAC.
• Temperature/ventilation requirement was changed to AVMA recommended language. Relative humidity and lighting still need clarification. The ARAs on the BAC continue to try and force ‘one size fits all’ & ‘as necessary’ decisions into the Rules regarding environment and other Rules.
5. Still need feedback regarding “wire mesh floors”, cage size, cage stacking, tail docking, dew claws removal, and ear cropping. Many breeders are far more skilled at this than a lot of Vets as evidenced by results. Regarding Breed standards (kept by the registries – AKC, UKC, etc., but developed/maintained by breeders over hundreds of years), TDLR needs to hear from those expert ‘Breeders’ performing their own work in these manners.
6. Tipster Rewards Program—according to Denton & Charles Johnson, atty. for TDLR, the tipster is protected by Attorney General informant privilege. Additionally, in that process, the TDLR inspector will become the ‘accuser’. This is supposedly modeled after ‘Crimestoppers’ and Texas Parks & Wildlife Rewards program. This needs additional legal scrutiny. The BAC’s discussion ignored the fact that adoption of this program is NOT statutorily required, as it is an optional provision. Additional comments are required to support our position that the additional cost to State of this program and potential for exposure of breeders to harassment and baseless complaints outweigh any benefits of adoption of this provision in the rules. Our position is that the tipster/reward program be eliminated from the Rules.
7. Program Cost - Commission Chair Denton discussed the program cost issue at length and appeared to retreat from the TDLR’s initial “600 breeder” estimate. Denton indicated fees are too high/out of line and that the overall fee amounts would be lowered in a desire to attract more breeders to the program.
The discussion made clear that they had no factual basis for their statement that revenues generated from licensing would cover program costs. At their request, the Licensed Breeder BAC members estimated that there could be as little as 25-30 or as many as 100 breeders who could be expected to apply for a license—significantly less than the original 600-breeder estimate.
Commissioner stated that their objective was to spend less than the original $565,000 estimate on the program to reduce costs. However, he elsewhere in the discussion acknowledged that program administration has been so costly thus far that it is unlikely program costs would be recouped. He indicated that reliance upon “donations” (permitted by the proposed rule) would be necessary to fund the program. This is a critical issue for us, as it is HSUS’ stated intent to solicit “donations” to support program costs. Use of the “donation” provision is not statutorily required, as it is an optional program. Additional commentary and legal research is required to persuade the Commission to omit the “donation” provisions from the proposed rules.
8. Grandfathering – No grandfather precedent exists in TDLR’s current regulations except for “PROPERTY RIGHTS” regarding Electricians and Architectural Barrier…needs further legal scrutiny.
9. Vet Care – Lori Teller (veterinarian on BAC) insists it is current Texas State Law that Vets must do ‘hands on’ annual exams - said she called Exec Director of State Board. This should be verified.
10. Special Purpose Dog Exemption – Kirby Brown from Texas Wildlife Association verbally ‘commented’ regarding concerns about erosion of the statutory exemption in the Rules. There were several other written comments submitted challenging the proposed rule’s attempt to erode the scope and applicability of the exemption. TDLR’s attorney commented that proof of exemption is included but not limited to what is listed in the Rules. He further stated that no initial affirmative proof of exempt status would be required by breeders claiming the exemption; such proof would be required only during inspections triggered by complaints. Additional challenge/commentary on this important issue is necessary, as the proposed rule weakens, if not undercuts, the legislative intent behind this broadly worded exemption.
Discussion by both BAC members and TDLR attorney indicated misunderstanding of the terms of this exemption, which covers dogs bred primarily with intent for use in herding livestock, hunting, tracking, retrieving, competing in field trials, etc. In addition, the BAC recommended that the exemption should be applied equally to cats. They also appeared to presume that the exemption applied to (and protected) “show breeders” of dogs exhibited in conformation events. Unfortunately, it does not. However, we intend to lobby an amendment to cover show breeders in 2013. Much additional clarification, and advocacy, is needed on this issue.
It is our observation that much of what has happened in this process is based not on expert experience and facts but on ‘as necessary’ opinions and emotional images conjured up by extremists—i.e., temperatures cannot vary below 45°F (Akitas/Huskys/sled dogs love it at 20°F!) or above 85°F. For example, apparently no consideration or attention was given to the fact that newborn puppies DIE at 85°F, and need to be kept at least at 95°F for several days until their bodies can regulate their own temperature. Obviously strong comment by our community is encouraged regarding medically justified temperature variations and other factual examples as to how the proposed rule standards can harm, rather than protect, our dogs and cats.
We will keep you informed regarding status updates in this matter, including links to the amended rules and agenda for the March 27, 2012 Commission meeting, when they become available.
We also will be following up with all Texas legislators who voted FOR HB 1451 to ascertain whether their vote was based on minimum USDA standards not being exceeded and to lobby support for our current position and for the prospective amendments we intend to seek in 2013, inclusive of a “show breeder” exemption.
Legislative contacts are particularly interested in areas in which the proposed Commission rules may have exceeded the statutory requirements.
Please pass this on to your club members and members of your community to encourage attendance at the March 27th meeting.
Thank you again for your continued support in this matter. Please do not hesitate to contact any of us with any questions or comments.
Martin Kralik mailto:firstname.lastname@example.org
Pat McCaslin email@example.com
Anna Matthews firstname.lastname@example.org
Tue, March 20, 2012
by Matt Kremzar