[Federal Register Volume 61, Number 128 (Tuesday, July 2, 1996)]
[Proposed Rules]
[Pages 34386-34389]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16871]
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Parts 1 and 3
[Docket No. 95-078-1]
RIN 0579-AA74
Humane Treatment of Dogs and Cats; Tethering and Temperature
Requirements
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Proposed rule.
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SUMMARY: We are proposing to amend the regulations for the humane
treatment of dogs and cats under the Animal Welfare Act by removing the
provisions for tethering dogs as a means of primary enclosure. We are
also proposing to amend the regulations by revising the temperature
requirements for indoor, sheltered, and mobile and traveling housing
facilities, and for primary conveyances used in transportation, to
require that the ambient temperature must never exceed 90 deg.F (32.2
deg.C) when dogs or cats are present. We are taking these actions
because our experience in enforcing the Animal Welfare Act has led us
to conclude that tethering dogs as a means of primary enclosure is not
a humane practice. Also, temperatures exceeding 90 deg.F can be
harmful to dogs and cats. These actions will help ensure that dogs and
cats in facilities regulated under the Animal Welfare Act will be
treated in a humane manner.
DATES: Consideration will be given only to comments received on or
before September 3, 1996.
ADDRESSES: Please send an original and three copies of your comments to
Docket No. 95-078-1, Regulatory Analysis and Development, PPD, APHIS,
suite 3C03, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please
state that your comments refer to Docket No. 95-078-1. Comments
received may be inspected at USDA, room 1141, South Building, 14th
Street and Independence Avenue SW., Washington, DC, between 8 a.m. and
4:30 p.m., Monday through Friday, except holidays. Persons wishing to
inspect comments are requested to call ahead on (202) 690-2817 to
facilitate entry into the comment reading room.
FOR FURTHER INFORMATION CONTACT: Mr. Stephen Smith, Staff Animal Health
Technician, REAC, APHIS, suite 6D02, 4700 River Road Unit 84,
Riverdale, MD 20737-1234, (301) 734-4972.
SUPPLEMENTARY INFORMATION:
Background
Under the Animal Welfare Act (AWA)(7 U.S.C. 2131 et seq.) the
Secretary of Agriculture is authorized to promulgate standards and
other requirements governing the humane handling, housing, care,
treatment, and transportation of certain animals by dealers, research
facilities, exhibitors, and carriers and intermediate handlers.
Regulations established under the Act are contained in 9 CFR parts 1,
2, and 3. Subpart A of 9 CFR part 3 (referred to below as the
regulations) contains requirements concerning dogs and cats.
Recently, the Animal and Plant Health Inspection Service (APHIS)
hosted public meetings in Kansas City and St. Louis, MO, and in
Washington, DC, to gather information on the regulations in 9 CFR part
3, subpart A, that apply to the care of dogs and cats in the commercial
pet trade. People attending the meetings included representatives of
animal protection organizations and members of affected industries,
such as dealers, research facilities, and commercial animal
transporters.
Each meeting was divided into four workshops covering specific
topic areas: (1) space requirements for primary enclosures, including
room for exercise; (2) sanitation, materials, flooring, and
construction of primary enclosures; (3) veterinary care and breeding
frequency; and (4) transportation by land and air. APHIS has considered
all of the recommendations and opinions expressed by participants of
these workshops at each of the meetings, as well as APHIS' own
experience in enforcing the Act, in developing this proposal on
tethering and temperature requirements. There were many recommendations
expressed in the workshops on issues closely related to what we are
proposing in this
[[Page 34387]]
document, as well as recommendations on issues other than tethering and
temperature requirements. APHIS is continuing to review and analyze all
the recommendations received, and will initiate additional rulemaking
for any changes deemed appropriate.
Tethering of Dogs
Currently, the regulations provide that dogs in outside housing
facilities regulated under the AWA may be kept on tethers as a means of
primary enclosure. Primary enclosure is defined in 9 CFR part 1 to
mean:
(A)ny structure or device used to restrict an animal or animals
to a limited amount of space, such as a room, pen, run, cage,
compartment, pool, hutch, or tether. In the case of animals
restrained by a tether (e.g., dogs on chains), it includes the
shelter and the area within reach of the tether.
A dog whose primary enclosure is a tether would be attached to the
tether almost all of the time, except when it is allowed off of the
tether for exercise or other activities. The regulations require that a
dog on a tether must have a shelter (such as a dog house or other
structure) and the tether must allow the dog access to the shelter and
to food and water containers. The housing area where the dog is
tethered must be surrounded by a perimeter fence of sufficient height
to keep out unwanted animals.
Our experience in enforcing the AWA has led us to conclude that
continuous confinement of dogs by a tether is inhumane. A tether
significantly restricts the dog's movement. A tether can also become
tangled around or hooked on the dog's shelter structure or other
objects, further restricting the dog's movement and potentially causing
injury. We are proposing to remove the option for facilities to use
tethering as a means of primary enclosure. We would remove all
references to tethering from the definition of primary enclosure in 9
CFR part 1, and we would remove the provisions for tethering as a means
of primary enclosure from the regulations in 9 CFR part 3. Facilities
would still have a number of primary enclosure options available to
them, such as a cage or a fenced-in run.
Temperature
The regulations for indoor housing facilities, sheltered housing
facilities, and mobile or traveling housing facilities that are
regulated under the AWA provide that the ambient temperature in the
facilities may not exceed 85 deg.F (29.5 deg.C) for more than 4
consecutive hours when dogs or cats are present. The regulations also
provide that when any person subject to the AWA transports dogs or
cats, the cargo spaces in primary conveyances (motor vehicle, rail, and
marine) and the holding areas in the terminal facilities (such as at
airports, rail stations, or maritime ports) may not exceed 85 deg.F
(29.5 deg.C) for more than 4 consecutive hours when dogs or cats are
present. The regulations for air transportation provide that cargo
areas must be heated or cooled as necessary to maintain an ambient
temperature that ensures the health and well-being of the dogs or cats
held there.
The regulations do not specify a maximum temperature at which dogs
or cats may be held for up to 4 hours. Because there is no maximum
temperature restriction in the regulations, it is conceivable that a
dog or cat could be exposed to extremely high temperatures for up to 4
hours. Temperatures exceeding 90 deg.F can be harmful to dogs and cats
even if they are exposed to those temperatures for less than 4 hours.
In the case of air transportation, there is no maximum temperature
specified to which dogs or cats can be exposed, even for over 4 hours.
Although the regulations do state that any cargo area where dogs or
cats are held must be cooled as necessary to maintain an ambient
temperature that ensures the health and well-being of the dogs or cats
held there, there have been incidents where dogs or cats were exposed
to extremely high temperatures during air travel. Such exposure
resulted in serious harm or, in some cases, death to those animals.
For these reasons, we are proposing to require that the ambient
temperature in indoor housing facilities, sheltered housing facilities,
mobile or traveling housing facilities, primary conveyances (motor
vehicle, rail, air, and marine), and terminal facilities must never
rise above 90 deg.F (32.2 deg.C) when dogs or cats are present.
Licensed dog and cat dealers and transporters of dogs and cats
would have several alternative methods of complying with this proposal.
They could install air conditioning or electric fans to cool the air
inside the facilities and conveyances. Dog and cat dealers could also
comply by establishing outdoor shelters, which are not subject to
temperature requirements, or providing animals in sheltered housing
facilities with outdoor runs where they are not already available.
Outdoor shelters and runs provide the dogs and cats with access to
fresh air, air movement (breezes and winds), shade (required by the
regulations), and other climatic and environmental factors which help
to alleviate suffering from high temperatures. Also, humidity levels
can become unbearable in enclosed facilities where the temperature
exceeds 90 deg.F. Suffering from humidity levels outdoors, even when
the temperature is above 90 deg.F, is usually mitigated by other
climatic factors, as described above.
Executive Order 12866 and Regulatory Flexibility Act
This proposed rule has been reviewed under Executive Order 12866.
The rule has been determined to be significant for the purposes of
Executive Order 12866 and, therefore, has been reviewed by the Office
of Management and Budget.
In accordance with 5 U.S.C. 603, we have performed an Initial
Regulatory Flexibility Analysis, which is set out below, regarding the
impact of this rule on small entities. However, we do not currently
have all the data necessary for a comprehensive analysis of the effects
of this rule on small entities. Therefore, we are inviting comments
concerning potential effects. In particular, we are interested in
determining the number and size of licensed facilities that would have
to make changes to comply with the proposed temperature requirements,
and the kind of change those licensees would likely choose in order to
comply (for example, installing air conditioning or constructing
outdoor facilities).
Under the Animal Welfare Act (7 U.S.C. 2131 et seq.) the Secretary
of Agriculture is authorized to promulgate standards and other
requirements governing the humane handling, housing, care, treatment,
and transportation of certain animals by dealers, research facilities,
exhibitors, and carriers and intermediate handlers.
This proposed rule would eliminate the use of tethering as a means
of primary enclosure for dogs, and would affect Class A and Class B
licensed dog dealers. Over 95 percent of Class A and Class B licensed
dog dealers are considered small businesses.
There is no information available on the actual number of Class A
and Class B licensed dog dealers who use tethering as a means of
primary enclosure. However, kennels and cages are currently the
preferred means of primary enclosure, with tethering sometimes used as
a temporary restraint. Tethering is no longer a generally accepted
practice within the dog dealer industry, and some industry groups
prohibit their members from using tethering as a means of permanent
restraint. Therefore, we do not expect this proposal to have a
significant impact on dog dealers, large or small, because tethering as
a means of primary
[[Page 34388]]
enclosure is rarely, if ever, utilized by Class A and Class B licensed
dog dealers.
This proposed rule would also revise the temperature requirements
for indoor, sheltered, and mobile and traveling housing facilities, and
for primary conveyances used in transportation, to state that the
ambient temperature must never exceed 90 deg.F (32.2 deg.C) when dogs
or cats are present. This temperature requirement would affect Class A
and Class B licensed dog and cat dealers. Currently, the regulations
state (except for air transportation) that the ambient temperature in a
facility, holding area, or cargo space must not exceed 85 deg.F (29.5
deg.C) for more than 4 consecutive hours. The regulations for air
transportation provide that cargo areas must be heated or cooled as
necessary to maintain an ambient temperature that ensures the health
and well-being of the dogs or cats held there.
There are currently a total of 4,325 licensed dog and cat dealers
(over 95 percent of which are considered small businesses, as stated
previously). We do not know precisely how many of these house only dogs
and/or cats, but it is probably close to 90 percent or more. We expect
that the additional temperature requirement would impact Class A and
Class B licensed dog and cat dealers mainly in the States of Arkansas,
Missouri, Kansas, Oklahoma, and Iowa. These are States in which there
is a high concentration of Class A and Class B licensed dog and cat
dealers (approximately 2,326 dealers), and in which the temperatures
can be highly variable in the summer months, with many days reaching
temperatures above 90 deg.F. In most cases, if a dealer has been able
to comply with the requirement that the ambient temperature in the
facility must not exceed 85 deg.F for more than 4 consecutive hours,
they would likely be able to comply with this proposal without any
additional expense. We estimate that at least 85 percent of potentially
affected entities are already in compliance with the temperature
requirements in this proposed rule.
However, if a dealer finds that he or she is not prepared to meet
the new requirement, the cost of compliance would depend on what method
the dealer chooses to cool the facility. For indoor and sheltered
housing facilities, the alternatives would most likely include: (1)
Installation of air conditioning. Installation of air conditioning
could cost between $1,000 and $3,000 per unit, and operational
expenditures for electricity could range between $200 to $500 per year;
(2) Installation of electric fans. Installation of electric fans could
cost between $300 and $500 per unit, and operational expenditures for
electricity could range between $100 to $300 per year; (3) Establishing
outdoor shelters, which are not subject to temperature requirements. We
estimate that it would cost $17.00 to $29.00 to establish an outdoor
facility for a single medium-sized dog that would meet the minimum
requirements of the regulations (based on 18 feet of chain-link fence
at $.40 to $.50 per foot, a $20 to $30 commercial dog house, and $10 to
$20 in labor); or (4) Providing dogs and cats in sheltered housing
facilities with outdoor runs where they are not already available. We
estimate that it would cost $8.60 to $22.50 to construct an outdoor run
for a single medium-sized dog that would meet the minimum requirements
of the regulations (based on 9 to 15 feet of chain-link fence at $.40
to $.50 per foot plus $5.00 to $15.00 in labor).
All these cost estimates could vary considerably depending on the
number of animals housed in the facility, the quality of the materials
used in construction, and the adaptability of existing structures.
Because most dog and cat dealers are small businesses, the cost of
installing air conditioning may comprise a significant portion of their
overall operational expenses. It is anticipated that the affected
dealers would choose the less costly alternatives of installing
electric fans or establishing outdoor shelters or runs.
We do not expect that this proposal would impact transporters of
dogs and cats. Most transporters (motor vehicle, rail, air, and marine)
already have the capacity to provide adequate ventilation and/or air
conditioning for animals in their cargo areas and holding facilities.
The majority of dog and cat deaths from extremely high temperatures in
cargo areas or holding facilities have been due to human error. This
proposal would help ensure that transporters utilize their existing
capacity to maintain a healthy temperature range for the animals they
transport, and would not likely require transporters to install
additional cooling systems.
The alternative to this proposed rule would be to make no changes
to the temperature and tethering requirements in the regulations. After
consideration, we rejected this alternative because we believe that
tethering dogs as a means of primary enclosure is not a humane
practice, and because temperatures exceeding 90 deg.F can be harmful
to dogs and cats.
This proposed rule contains no paperwork or recordkeeping
requirements.
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 proposed rule has been reviewed under Executive Order 12778,
Civil Justice Reform. It is not intended to have retroactive effect.
This rule would 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
This proposed rule contains no information collection or
recordkeeping requirements under the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.).
List of Subjects
9 CFR Part 1
Animal welfare, Pets, Reporting and recordkeeping requirements,
Research.
9 CFR Part 3
Animal welfare, Marine mammals, Pets, Reporting and recordkeeping
requirements, Research, Transportation.
Accordingly, 9 CFR parts 1 and 3 would be amended as follows:
PART 1--DEFINITION OF TERMS
1. The authority citation for part 1 would continue to read as
follows:
Authority: 7 U.S.C. 2131-2159; 7 CFR 2.22, 2.80, and 371.2(g).
2. In Sec. 1.1, the definition for primary enclosure would be
revised to read as follows:
Sec. 1.1 Definitions.
* * * * *
Primary enclosure means any structure or device used to restrict an
animal or animals to a limited amount of space, such as a room, pen,
run, cage, compartment, pool, or hutch.
* * * * *
PART 3--STANDARDS
3. The authority citation for part 3 would continue to read as
follows:
Authority: 7 U.S.C. 2131-2156; 7 CFR 2.22, 2.80, and 371.2(d).
Secs. 3.2, 3.3, and 3.5 [Amended]
4. In Secs. 3.2, 3.3, and 3.5, paragraph (a) of each section would
be amended by
[[Page 34389]]
adding a new identical sentence at the end of each paragraph to read as
set forth below:
(a)* * * The ambient temperature in the facility must never rise
above 90 deg.F (32.2 deg.C) when dogs and cats are present.
* * * * *
Sec. 3.6 [Amended]
5. Section 3.6 would be amended by removing paragraph (c)(2), and
by redesignating paragraphs (c)(3) and (c)(4) as paragraphs (c)(2) and
(c)(3), respectively.
6. In Sec. 3.15, paragraphs (d) and (e) would be revised to read as
follows:
Sec. 3.15 Primary conveyances (motor vehicle, rail, air, and marine).
* * * * *
(d) During air transportation, dogs and cats must be held in cargo
areas that are heated and cooled as necessary to maintain an ambient
temperature that ensures the health and well-being of the dogs or cats.
The ambient temperature in the cargo areas must never rise above 90
deg.F (32.2 deg.C) when dogs or cats are present. The cargo areas must
be pressurized when the primary conveyance used for air transportation
is not on the ground, unless flying under 8,000 ft. Dogs and cats must
have adequate air for breathing at all times when being transported.
(e) During surface transportation, the ambient temperature within
any animal cargo space containing live dogs or cats must never rise
above 90 deg.F (32.2 deg.C). Moreover, auxiliary ventilation, such as
fans, blowers, or air conditioning, must be used when the ambient
temperature within the animal cargo space reaches 85 deg.F (29.5
deg.C). The ambient temperature must not exceed 85 deg.F (29.5 deg.C)
for more than 4 consecutive hours, nor fall below 45 deg.F (7.2
deg.C) for more than four consecutive hours.
* * * * *
7. In Sec. 3.18, paragraph (d) would be revised to read as follows:
Sec. 3.18 Terminal facilities.
* * * * *
(d) Temperature. The ambient temperature in an animal holding area
containing live dogs or cats must not fall below 45 deg.F (7.2 deg.C)
or rise above 85 deg.F (29.5 deg.C) for more than 4 consecutive hours
at any time dogs or cats are present. The ambient temperature in the
animal holding area must never rise above 90 deg.F (32.2 deg.C) when
dogs or cats are present.
* * * * *
Done in Washington, DC, this 27th day of June 1996.
Terry L. Medley
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 96-16871 Filed 7-1-96; 8:45 am]
BILLING CODE 3410-34-P