[Federal Register Volume 60, Number 50 (Wednesday, March 15, 1995)]
[Rules and Regulations]
[Pages 13893-13896]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6369]



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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service

9 CFR Part 2

[Docket No. 92-158-2]


Animal Welfare; Licensing and Records

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the Animal Welfare regulations to require 
dealers, exhibitors, and operators of auction sales who apply for 
license renewal to certify that, to the best of their knowledge and 
belief, they are in compliance with the regulations before a renewal is 
issued. We are also amending the regulations to require dealers and 
exhibitors to use certain forms to make, keep, and maintain the animal 
identification records required by the regulations, unless a variance 
has been granted that would allow the use of a computerized 
recordkeeping system that has been determined by the Administrator to 
meet the requirements of the regulations. These changes will help 
ensure that applicants for license renewal are in compliance with the 
regulations and that dealers and exhibitors keep accurate and complete 
records, thus promoting compliance with the Animal Welfare Act.

EFFECTIVE DATE: April 14, 1995.

FOR FURTHER INFORMATION CONTACT: Dr. Debra E. Beasley, Senior Staff 
Veterinarian, Animal and Plant Health Inspection Service, Regulatory 
Enforcement and Animal Care, Animal Care, 4700 River Road Unit 84, 
Riverdale, MD 20737-1234; (301) 734-7833.

SUPPLEMENTARY INFORMATION:

Background

    The Animal Welfare regulations contained in 9 CFR part 2 (referred 
to below as the regulations) pertain to the administrative and 
institutional responsibilities of regulated persons under the Animal 
Welfare Act (7 U.S.C. 2131, et seq.) (the Act).
    On December 28, 1993, we published in the Federal Register (58 FR 
68559-68561, Docket No. 92-158-1) a proposal to amend the regulations 
to require that an applicant for license renewal certify that, to the 
best of the applicant's knowledge and belief, he or she is in 
compliance with the regulations and standards and agrees to continue to 
be in compliance upon issuance of a renewed license. In that same 
document, we also proposed to amend the regulations to require dealers 
and exhibitors to use Veterinary Services (VS) Form 18-5, ``Record of 
Dogs and Cats on Hand,'' and VS Form 18-6, ``Record of Disposition of 
Dogs and Cats,'' to make, keep, and maintain the information required 
by Sec. 2.75(a)(1) of the regulations. We also proposed to add Animal 
and Plant Health Inspection Service (APHIS) form numbers in front of 
the VS form numbers that appear in several places in the regulations.
    We solicited comments concerning our proposal for a 60-day comment 
period ending February 28, 1994. We received 11 comments by that date. 
The comments were submitted by a scientific society, animal breeders 
and distributors, humane and animal rights organizations, and private 
citizens. We carefully considered all of the comments we received. They 
are discussed below by topic.

Recordkeeping

    Comment: The use of VS Forms 18-5 and 18-6 should remain optional 
since many facilities have accurate and efficient computerized 
recordkeeping systems. The forms that APHIS proposes to require are 
cumbersome, repetitive, and outdated and they do not provide spaces for 
all the information that is required by the regulations.
    Response: We understand that many dealers and exhibitors, 
especially the larger operations, may be using computerized systems to 
make, keep, and maintain the records required by Sec. 2.75(a)(1) of the 
regulations. Because it would be difficult for some dealers and 
exhibitors to switch over to a paper system, we have added a provision 
to the regulations that will enable a dealer or exhibitor to apply for 
a variance from the requirement to use VS Forms 18-5 and 18-6. If APHIS 
determines that a dealer or exhibitor is maintaining a computerized 
recordkeeping system that is adequate to keep the required information, 
a variance will be granted. An appeal procedure is also included for 
dealers or exhibitors who have had their request for a variance denied. 
The variance is an option only for those dealers and exhibitors who are 
using a computerized recordkeeping system; a variance will not be 
granted for alternative paper records. With regard to the complaint 
that the forms are outdated, APHIS is currently developing updated 
forms that reflect the requirements of the regulations. The updated 
forms will be distributed as supplies of the existing forms are 
depleted.
License Renewal

    Comment: The proposed certification will be effective only if it 
supports APHIS in denying the license renewal applications of 
facilities not in compliance with the regulations and standards. 
Otherwise, the certification will not encourage compliance any more 
than the statement that applicants are currently required to sign.
    Response: The regulations in Sec. 2.5 state that a license will be 
renewed if, before the expiration of the license, the licensee files an 
application for license renewal, submits an annual report as required 
by Sec. 2.7, and pays the required fees. There are no provisions in the 
regulations for denying a license renewal application as long as the 
licensee has complied with those requirements. However, as provided in 
Sec. 2.1(f) of the regulations, a person who fails to comply with any 
provision of the Act or any provision of the regulations and standards 
shall be liable to having his or her license suspended or revoked.
    Comment: If a facility was in the process of correcting a 
deficiency, it would be unable to certify that it is in compliance with 
the regulations and standards until the deficiency was completely 
corrected, which could take up to 30 days or even longer. Similarly, it 
would be difficult for a licensee with more than one facility to be 
certain that all his or her facilities were, at any given time, in 
compliance with the regulations and standards. The delays that could 
result from having to be certain that all the regulations and standards 
had been satisfied could cause a facility to miss its deadline for 
license renewal.
    Response: If a licensee who had been cited for a deficiency was 
actively working to correct that deficiency, APHIS would be aware--or 
could be informed--that the licensee was addressing the problem and was 
making a good-faith effort to comply with the regulations. Such a 
situation would be no reason for a licensee to delay filing a license 
renewal application. With regard to the example of a licensee with more 
than one facility, it is the responsibility of a licensee, either 
personally or through his or her [[Page 13894]] employees, to ensure 
that each facility is maintained and operated in compliance with the 
regulations. If a licensee is aware of a deficiency in one of his or 
her facilities, it is incumbent upon the licensee to address the 
deficiency in order to remain in compliance with the regulations. 
Having responsibility for more than one facility is not an excuse for 
knowingly operating in violation of the regulations and standards.
    Comment: Prior to 1979, APHIS allowed license applicants to submit 
an affidavit stating that their premises, facilities, and equipment 
were in compliance with the regulations and standards, in lieu of an 
APHIS inspection. However, in 1979, APHIS amended the regulations to 
remove the applicant affidavit method of ascertaining compliance 
because of misrepresentation and misuse of the method by some 
applicants. In light of that experience, there does not appear to be 
any advantage to requiring license applicants to agree to comply with 
the regulations and standards. Therefore, if APHIS finalizes its 
proposed certification requirement in Sec. 2.2, the text of Sec. 2.2 
must contain a reference to the inspection provisions of Sec. 2.3.
    Response: The proposed certification requirement was not presented 
as an alternative means of ascertaining compliance or as a substitute 
for inspections. The certification requirement will have no effect on 
the provisions of Sec. 2.3, which requires applicants for an initial 
license or license renewal to make their animals, premises, facilities, 
vehicles, equipment, other premises, and records available for 
inspection so that an APHIS inspector may ascertain the applicant's 
compliance with the standards and regulations.
    Comment: It is unclear how APHIS intends licensees to certify that 
they are in compliance. A simple statement would be ineffective, and 
any documented statement would entail the use of lengthy forms, which 
impose a significant additional paperwork burden on licensees. Either 
way, new regulations are no substitute for APHIS performing rigorous 
inspections.
    Response: As described in the proposed rule, an applicant for 
license renewal would certify that he or she is, to the best of the 
applicant's knowledge and belief, in compliance with the regulations 
and standards and agrees to continue to comply with the regulations and 
standards by signing the application form, which will contain a 
statement to that effect. The certification will not necessitate the 
use of lengthy forms or the imposition of significant additional 
paperwork burdens. As mentioned above, APHIS does not intend for the 
certification to take the place of inspections.
    Comment: The proposed certification requirement should help 
encourage compliance. However, to promote even greater compliance, the 
certification should actually take the form of an affidavit, signed by 
the applicant, stating that the applicant has read the Act, its 
amendments, and the applicable regulations and standards in their 
totality and understands their contents fully. Further, the applicant 
should verify that he or she is in compliance with, and will continue 
to comply with, the Act and its implementing regulations and standards. 
The applicant should have to have paid any outstanding fines levied by 
the USDA for violations of the Act. Additionally, the application 
should include a warning stating that, under 18 U.S.C. 1001, anyone 
making a false, fictitious, or fraudulent statement on the application 
could be subject to a fine of $10,000 and 5 years in prison.
    Response: We believe that an affidavit would accomplish no more 
than the signed statement currently required. Similarly, because APHIS 
already supplies each applicant a copy of the applicable regulations 
and standards, we do not believe that supplying a copy of the Act and 
its amendments would add to an applicant's knowledge of his or her 
responsibilities, which are spelled out in the regulations and 
standards. Because a person who fails to comply with the Act or the 
regulations and standards is liable to having his or her license 
suspended or revoked, it is in each licensee's best interests to know 
what is required of him or her. We cannot, however, reasonably require 
a person to swear that he or she has read the Act, its amendments, and 
the applicable regulations and standards in their totality and 
understands their contents fully. With regard to denying renewals to 
persons with unpaid fines, we stated above that the regulations make no 
provision for the denial of a license renewal as long as the licensee 
filed an application for license renewal on time, submitted an annual 
report as required by Sec. 2.7, and has paid the required fees. Other 
avenues are utilized by APHIS to collect unpaid fines. Finally, the 
commenter mentioned the penalties provided under 18 U.S.C. 1001. Those 
penalties can be applied in matters within the jurisdiction of APHIS, 
and we will post a warning to that effect on the license renewal 
application form that we are developing.

Addition of APHIS Form Numbers

    Three commenters mentioned our proposal to add APHIS form numbers 
in front of the VS form numbers that appear in several places in the 
regulations. Each of those commenters supported the proposed change.
Comments Outside the Scope of This Rulemaking

    One commenter strongly supported the mandatory use of VS forms, but 
added that a photograph of each individual dog or cat should be 
required as part of the record. Similarly, another commenter suggested 
that additional information be required, such as a second piece of 
identification, a notarized verification of exempt status and a signed 
statement, when applicable, verifying that a random-source animal was 
held for the mandated period. However, the proposed rule did not 
propose any changes to the type of information that dealers and 
exhibitors must keep as part of the required animal identification 
records. Rather, we proposed that specific forms be used to record and 
maintain the information already required by the regulations in 
Sec. 2.75(a)(1). Because of this, such comments are outside the scope 
of the proposed rule and no changes have been made in this final rule 
as a result of those comments. Any such changes would have to be 
proposed as part of a separate proposed rule.
    Other commenters submitted comments concerning individual 
identification of animals, the definitions of Class A and B dealers, 
requiring the use of other forms, individually notifying licensees of 
proposed rules and other regulatory actions, and the development of new 
forms. Again, such comments are outside the scope of the proposed rule 
and, therefore, no changes have been made in this final rule as a 
result of those comments. Any such changes would have to be proposed as 
part of a separate proposed rule.
    Therefore, based on the rationale set forth in the proposed rule 
and in this document, we are adopting the provisions of the proposal as 
a final rule, with the changes discussed in this document.

Miscellaneous

    As mentioned above, APHIS is currently developing an updated 
version of VS Form 18-5, ``Record of Dogs and Cats on Hand.'' The 
updated form includes new spaces for the recording of information 
pertaining to the acquisition of the dogs or cats 
[[Page 13895]] covered by the form. To reflect the inclusion of the new 
spaces, VS Form 18-5 has been renamed ``Record of Acquisition and Dogs 
and Cats on Hand.'' The two places in the regulations where the title 
of VS Form 18-5 is mentioned--in Secs. 2.35(d)(1) and 2.75(a)(2)--have 
been amended in this document to reflect the title change.
    We have slightly adjusted the language of Sec. 2.2(b) for the 
purpose of greater clarity.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been reviewed under Executive Order 12866. The rule 
has been determined to be not significant for the purpose of Executive 
Order 12866 and, therefore, has not been reviewed by the Office of 
Management and Budget.
    We are amending the Animal Welfare regulations to require 
applicants for license renewal to certify that they are in compliance 
with the regulations before a renewal is issued. We are also amending 
the regulations to require dealers and exhibitors to use certain forms 
to make, keep, and maintain the animal identification records required 
by the regulations. These changes will help ensure that applicants for 
license renewal are in compliance with the regulations and that dealers 
and exhibitors keep accurate and complete records. We do not expect 
there to be an economic impact on any entities, large or small, that 
will be affected by these changes in the regulations.
    Because all licensees are currently required to operate in 
compliance with the regulations, the requirement for license renewal 
applicants to certify that they are in compliance with the regulations 
will have no effect in terms of increased operational costs or burdens. 
Similarly, requiring dealers and exhibitors to use VS Form 18-5 and VS 
Form 18-6 to make, keep, and maintain the required animal 
identification records will involve no new costs or burdens. Dealers 
and exhibitors are already required to keep the records, so they will 
not have to gather or record any new information in order to complete 
the forms. The forms are provided by APHIS to dealers and exhibitors 
free of charge, and we will not require any existing records to be 
converted over to the new forms. Additionally, a dealer or exhibitor 
who wished to do so could obtain a variance from the requirement to use 
the forms if the computerized recordkeeping system has been determined 
by the Administrator to meet the requirements of the regulations.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action will 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12372

    This program/activity is listed in the Catalog of Federal Domestic 
Assistance under No. 10.025 and is subject to Executive Order 12372, 
which requires intergovernmental consultation with State and local 
officials. (See 7 CFR part 3015, subpart V.)

Executive Order 12778

    This final rule has been reviewed under Executive Order 12778, 
Civil Justice Reform. It is not intended to have retroactive effect. 
This rule does not preempt any State or local laws, regulations, or 
policies, unless they present an irreconcilable conflict with this 
rule. The Act does not provide administrative procedures which must be 
exhausted prior to a judicial challenge to the provisions of this rule.
Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1980 (44 U.S.C. 
3501 et seq.), the information collection or recordkeeping requirements 
included in this final rule have been submitted for approval to the 
Office of Management and Budget.

List of Subjects in 9 CFR Part 2

    Animal welfare, Pets, Reporting and recordkeeping requirements, 
Research.

    Accordingly, 9 CFR part 2 is amended as follows:

PART 2--REGULATIONS

    1. The authority citation for part 2 continues to read as follows:

    Authority: 7 U.S.C. 2131-2159; 7 CFR 2.17, 2.51, and 371.2(g).

    2. Section 2.2 is revised to read as follows:


Sec. 2.2  Acknowledgment of regulations and standards.

    (a) Application for initial license. APHIS will supply a copy of 
the applicable regulations and standards to the applicant with each 
request for a license application. The applicant shall acknowledge 
receipt of the regulations and standards and agree to comply with them 
by signing the application form before a license will be issued.
    (b) Application for license renewal. APHIS will supply a copy of 
the applicable regulations and standards to the applicant for license 
renewal with each request for a license renewal. Before a license will 
be renewed, the applicant for license renewal shall acknowledge receipt 
of the regulations and standards and shall certify by signing the 
application form that, to the best of the applicant's knowledge and 
belief, he or she is in compliance with the regulations and standards 
and agrees to continue to comply with the regulations and standards.


Sec. 2.5  [Amended]

    3. In Sec. 2.5, paragraph (b), the first sentence is amended by 
adding the words ``APHIS Form 7003/'' immediately before the words ``VS 
Form 18-3''.


Sec. 2.35  [Amended]

    4. In Sec. 2.35, paragraph (d)(1) is amended by adding the words 
``APHIS Form 7001/'' immediately before the words ``VS Form 18-1''; by 
adding the words ``Acquisition and'' before the words ``Dogs and Cats 
on Hand''; and by adding the words ``APHIS Form 7005/'' immediately 
before the words ``VS Form 18-5''.
    5. In Sec. 2.35, paragraph (d)(2) is amended by adding the words 
``APHIS Form 7001/'' immediately before the words ``VS Form 18-1'' and 
by adding the words ``APHIS Form 7006/'' immediately before the words 
``VS Form 18-6''.


Sec. 2.38  [Amended]

    6. In Sec. 2.38, paragraph (h)(3) is amended by adding the words 
``APHIS Form 7001/'' immediately before the words ``VS Form 18-1''.
    7. In Sec. 2.38, paragraph (i)(3), the beginning of the second 
sentence is amended by removing the words ``Veterinary Services'' and 
adding the words ``APHIS Form 7009/VS'' in their place.
    8. Section 2.75 is amended as follows:
    a. Paragraph (a)(2) is revised to read as set forth below.
    b. In paragraph (a)(3), the words ``APHIS Form 7001/'' are added 
immediately before the words ``VS Form 18-1'', and the words 
``paragraph (a)(1) of this section and'' are removed.
    c. In paragraph (b)(2), the words ``APHIS Form 7019/'' are added 
immediately before the words ``VS Form 18-19'', and the words ``APHIS 
Form 7020/'' are added immediately before the words ``VS Form 18-20''.


Sec. 2.75  Records: Dealers and exhibitors.

    (a) * * *
    (2) Each dealer and exhibitor shall use Record of Acquisition and 
Dogs and Cats on Hand (APHIS Form 7005/VS Form 18-5) and Record of 
Disposition of Dogs and Cats (APHIS Form 7006/VS Form 18-6) to make, 
keep, and maintain the information required by paragraph 
[[Page 13896]] (a)(1) of this section: Provided, that if a dealer or 
exhibitor who uses a computerized recordkeeping system believes that 
APHIS Form 7005/VS Form 18-5 and APHIS Form 7006/VS Form 18-6 are 
unsuitable for him or her to make, keep, and maintain the information 
required by paragraph (a)(1) of this section, the dealer or exhibitor 
may request a variance from the requirement to use APHIS Form 7005/VS 
Form 18-5 and APHIS Form 7006/VS Form 18-6.
    (i) The request for a variance must consist of a written statement 
describing why APHIS Form 7005/VS Form 18-5 and APHIS Form 7006/VS Form 
18-6 are unsuitable for the dealer or exhibitor to make, keep, and 
maintain the information required by paragraph (a)(1) of this section, 
and a description of the computerized recordkeeping system the person 
would use in lieu of APHIS Form 7005/VS Form 18-5 and APHIS Form 7006/
VS Form 18-6 to make, keep, and maintain the information required by 
paragraph (a)(1) of this section. APHIS will advise the person as to 
the disposition of his or her request for a variance from the 
requirement to use APHIS Form 7005/VS Form 18-5 and APHIS Form 7006/VS 
Form 18-6.
    (ii) A dealer or exhibitor whose request for a variance has been 
denied may request a hearing in accordance with the applicable rules of 
practice for the purpose of showing why the request for a variance 
should not be denied. The denial of the variance shall remain in effect 
until the final legal decision has been rendered.
* * * * *


Sec. 2.78  [Amended]

    9. In Sec. 2.78, paragraph (d) is amended by adding the words 
``APHIS Form 7001/'' immediately before the words ``VS Form 18-1''.


Sec. 2.102  [Amended]

    10. In Sec. 2.102, paragraph (a)(3), the beginning of the second 
sentence is amended by removing the words ``Veterinary Services'' and 
adding the words ``APHIS Form 7009/VS'' in their place.

    Done in Washington, DC, this 9th day of March 1995.
Terry L. Medley,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 95-6369 Filed 3-14-95; 8:45 am]
BILLING CODE 3410-34-P