[Federal Register Volume 62, Number 87 (Tuesday, May 6, 1997)]
[Proposed Rules]
[Pages 24611-24614]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-11723]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 3

[Docket No. 95-029-1]


Animal Welfare; Perimeter Fence Requirements

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend the Animal Welfare regulations to 
require that a perimeter fence be placed around the outdoor areas of 
sheltered housing facilities and outdoor housing facilities for marine 
mammals and certain other regulated animals. Although it has been our 
policy that such fences should be in place around sheltered and outdoor 
housing facilities for such animals, there have been no provisions in 
the regulations specifically requiring their use. Adding the perimeter 
fence requirement to the regulations for these additional categories of 
animals would serve to protect the safety of the animals and provide 
for their well being.

DATES: Consideration will be given only to comments received on or 
before July 7, 1997.

ADDRESSES: Please send an original and three copies of your comments to 
Docket No. 95-029-1, 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. 95-029-1. 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: Dr. Barbara Kohn, Staff Veterinarian, 
Animal Care, APHIS, 4700 River Road Unit 84, Riverdale, MD 20737-1234; 
(301) 734-7833.

SUPPLEMENTARY INFORMATION:

Background

    The Animal Welfare regulations contained in 9 CFR chapter 1, 
subchapter A, part 3 (referred to below as ``the regulations'') provide 
specifications for the humane handling, care, treatment, and 
transportation, by regulated entities, of animals covered by the Animal 
Welfare Act (7 U.S.C. 2131, et seq.) (The Act). The regulations in part 
3 are divided into six subparts, designated as subparts A through F, 
each of which contains facility and operating standards, animal health 
and husbandry standards, and transportation standards for a specific 
category of animals. These categories are: (A) cats and dogs, (B) 
guinea pigs and hamsters, (C) rabbits, (D) nonhuman primates, (E) 
marine mammals, and (F) animals other than cats, dogs, guinea pigs, 
hamsters, rabbits, nonhuman primates, and marine mammals.
    Each of these subparts contains regulations regarding outdoor 
housing facilities, and subparts A and D contain regulations regarding 
sheltered housing facilities. However, only subpart D (nonhuman 
primates) includes a requirement for a perimeter fence surrounding 
outdoor housing facilities and sheltered housing facilities. Although 
perimeter fences are not required by the regulations for animals other 
than nonhuman primates, most facilities do have perimeter fences in 
place. It has been the policy of the Animal and Plant Health Inspection 
Service (APHIS) that perimeter fences should be in place at outdoor and 
sheltered housing facilities for animals other than nonhuman primates, 
but, as noted above, only the regulations in subpart D require 
perimeter fences. We now believe that it is necessary to include 
perimeter fence requirements in subparts E and F in order to protect 
the safety of marine mammals and certain other animals and to provide 
for their well-being. We will not be amending subpart A (cats and dogs) 
or subpart C (rabbits) at this time as most dogs, cats, and rabbits are 
currently maintained in enclosed kennels or indoors, with the exception 
of tethered dogs. Tethered dogs are already required to have a 
perimeter fence. No amendment is needed in subpart B (guinea pigs and 
hamsters) because outdoor housing for hamsters is prohibited, and any 
outdoor housing for guinea pigs must be approved in advance by APHIS.
    Therefore, we are proposing to amend Secs. 3.103 and 3.127 to 
require that a perimeter fence be placed around the outdoor areas of 
sheltered housing facilities and outdoor housing facilities

[[Page 24612]]

for marine mammals and animals other than cats, dogs, guinea pigs, 
hamsters, rabbits, nonhuman primates, and marine mammals. With the 
exception of the proposed 8-foot-fence requirement explained in the 
following paragraphs, the proposed requirements would serve the same 
purpose as those currently found in Secs. 3.77 and 3.78 for nonhuman 
primates.
    For marine mammals, we propose that the perimeter fence be high 
enough to reasonably be expected to keep animals and unauthorized 
persons out of the containment area. If the facility is a sea pen 
facility, this would mean that a perimeter fence high enough to 
reasonably be expected to keep animals and unauthorized persons from 
gaining access to the sea pen from the surrounding land would be 
installed to encompass the land portion of the facility (from one end 
of sea pen-shoreline contact, around the land based portion of the 
facility, to the other end of sea pen-shoreline contact). The perimeter 
fence would help prevent injury of marine mammals by other animals or 
persons and would afford the marine mammals protection from exposure to 
diseases. We believe that for most marine mammals, a perimeter fence 
should be at least 6 feet high to reasonably be expected to prevent 
entry of animals and unauthorized persons, and protect against disease 
exposure. However, in the case of polar bears, we believe that the 
perimeter fence should be at least 8 feet high to provide an added 
measure of security for the protection of the bears and the protection 
of the public. Polar bears are categorized as dangerous animals and 
will likely attack if provoked. Should the bears escape from captivity, 
they would be subject to potentially dangerous, or lethal, recapture 
and control methods. It is in the interest of the welfare of the animal 
to be contained within the facility, rather than tracked and possibly 
killed if it escapes from containment. Therefore, we believe that a 
perimeter fence measuring at least 8 feet in height would act as a 
secondary containment system and would reduce the possibility that a 
polar bear would escape from the containment area and be harmed in its 
recapture or control.
    Except for potentially dangerous animals, we propose to require 
that the perimeter fence for animals other than cats, dogs, guinea 
pigs, hamsters, rabbits, nonhuman primates, and marine mammals be high 
enough to reasonably be expected to keep animals and unauthorized 
persons out of the containment area. For the purposes of this 
regulation, potentially dangerous animals include, but are not limited 
to, large felines (e.g., lions, tigers, leopards, cougars, bobcats, 
etc.), bears, wolves, elephants, and rhinoceros. This provision would 
protect the animals from injury by other species and would prevent the 
animals' exposure to diseases carried by other species. However, as in 
the case of polar bears, we propose that for potentially dangerous 
animals covered by the regulations in subpart F, the perimeter fence be 
a minimum of 8 feet in height to provide an added measure of security 
for the protection of the animals and the protection of the public. As 
with polar bears, it is in the interest of the welfare of the animal to 
be contained within the facility, rather than tracked and possibly 
killed if it escapes from containment. Therefore, we believe that a 
perimeter fence measuring at least 8 feet in height would act as a 
secondary containment system and would reduce the possibility that a 
potentially dangerous animal would escape from the containment area and 
be harmed in its recapture or control.
    However, we recognize that conditions at a particular facility may 
allow for the use of a shorter perimeter fence for marine mammals or 
animals other than cats, dogs, guinea pigs, hamsters, rabbits, nonhuman 
primates, and marine mammals. The shorter fence would have to be 
approved by the Administrator. Approval by the Administrator of a 
shorter perimeter fence would only be given if the alternative security 
measures offered by the facility would provide the same or better 
degree of protection from access by animals and unauthorized persons, 
disease exposure, and animal escape, if applicable.
    We are also proposing to require that the perimeter fence be 
constructed so that it prevents animals the size of dogs, skunks, and 
raccoons, as well as unauthorized persons, from going through or under 
the fence. The perimeter fence could be slatted, latticed, or of other 
similar design, as long as it is designed and constructed in a manner 
that restricts unauthorized animals and persons from entering the 
facility or having contact with the animals in the facility and can 
function as a secondary containment system for the animals in the 
facility. This provision would help prevent an animal's injury and 
exposure to disease from unauthorized animals, and would minimize the 
need to employ potentially harmful or fatal recapture techniques.
    We are proposing to require that the perimeter fence be set far 
enough away from the outside wall or fence of the primary enclosure to 
prevent physical contact between animals inside the enclosure and 
animals and persons outside the perimeter fence. Sufficient space--
i.e., at least 3 feet--would also provide enough room to clean and 
maintain the space between the perimeter fence and the primary 
enclosure. This provision would offer a ``safety zone'' for the animals 
in the facility by ensuring that animals or persons outside of the 
perimeter fence cannot reach into the enclosure to poke, bite, or 
otherwise harm a contained animal or expose a contained animal to 
disease.
    However, we recognize that conditions at a particular facility may 
allow for less space between the perimeter fence and the outside wall 
or fence of the primary enclosure for marine mammals or animals other 
than cats, dogs, guinea pigs, hamsters, rabbits, nonhuman primates, and 
marine mammals. A fence located less than 3 feet away from the outside 
wall of the primary enclosure would have to be approved by the 
Administrator. Approval by the Administrator would only be given if the 
alternative spacing offered by the facility would provide the same or 
better degree of protection from physical contact between the animals 
inside the enclosure and animals and persons outside the perimeter 
fence and would provide the same or better degree of protection from 
possible escape of a housed animal.
    There may be cases in which the conditions at a facility are such 
that a perimeter fence is not necessary to keep animals and 
unauthorized persons from entering the facility or from having physical 
contact with animals in the facility. Therefore, the proposed 
regulations state that a perimeter fence is not required if the outside 
walls of the primary enclosure are made of sturdy, durable material, 
which may include certain types of concrete, wood, plastic, metal, or 
glass, and are high enough and constructed in a manner that restricts 
contact with or entry by animals and unauthorized persons that are 
outside the facility, and the Administrator gives written approval.
    Similarly, a perimeter fence would not be required if the facility 
is surrounded by an effective (i.e., impenetrable) natural barrier that 
keeps the animals in the facility and protects them from contact with 
animals and unauthorized persons that are outside of the facility. As a 
means of ensuring that the natural barrier is inspected and found to be 
adequate, the operator of the facility would have to obtain written 
permission from the Administrator to

[[Page 24613]]

use a natural barrier instead of a perimeter fence.
    We believe that the proposed requirements for perimeter fences 
would serve to protect the safety of marine mammals and animals other 
than cats, dogs, guinea pigs, hamsters, rabbits, nonhuman primates, and 
marine mammals in facilities and would provide for the well-being of 
such animals.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed rule has been reviewed under Executive Order 12866. 
The rule has been determined to not be significant for the purpose of 
Executive Order 12866 and, therefore, has not been reviewed by the 
Office of Management and Budget.
    This proposed rule would amend the Animal Welfare regulations by 
requiring that a perimeter fence be placed around the outdoor areas of 
sheltered housing facilities and outdoor housing facilities for marine 
mammals and animals other than cats, dogs, guinea pigs, hamsters, 
rabbits, nonhuman primates, and marine mammals.
    Class A and B dealers, Class C exhibitors, registered exhibitors, 
and research facilities are the entities that would be affected by the 
proposed perimeter fence requirement. Class A dealers breed and raise 
animals to sell for research, teaching, or exhibition; Class B dealers 
include brokers and operators of auctions sales for animals; and Class 
C licensees and registered exhibitors include exhibitors such as animal 
acts, carnivals, circuses, and public and roadside zoos. Research 
facilities include schools, institutions, organizations, or persons who 
use live animals in research, tests, or experiments.
    In 1995, there were 4,325 licensed dealers, 1,968 regulated 
exhibitors, and 1,300 registered research facilities. According to the 
Small Business Administration (SBA) size standards, more than 50 
percent of zoos are considered large businesses. There are no SBA 
standards for animal dealers; the number of animals handled and gross 
sales vary greatly with the type of animals bought and sold by a 
dealer. Class A and B dealers may deal in exotic animals for private 
owners and for public exhibition, as well as in animals for biomedical 
research. There are no uniform SBA standards for research facilities, 
as the standards are categorized for type of research activities 
undertaken and/or number of employees. The type of research activities 
undertaken, type and number of animals used, number of employees, and 
operating budget (funding levels, income, etc.) vary greatly from 
facility to facility.
    A 50-yard roll of a 6-foot-high chain link fence would cost 
approximately $60 to $70, and a 50-yard roll of an 8-foot-high fence 
would cost approximately $80 to $100. There is some flexibility as to 
the type of fence a facility could use, so certain facilities may have 
a perimeter fence of less expensive material, such as a tightly woven 
wire. In addition, a fence that is not tall enough to meet the proposed 
6-foot or 8-foot height requirement could be modified to meet the 
standard rather than replaced if a 6- or 8-foot-high fence was 
necessary for the facility. The size of a perimeter fence for a dealer, 
exhibitor, or research facility would depend on the size of the 
facility and type of housing provided, but for almost all facilities, 
we estimate that perimeter fences represent less than 5 percent of 
total expenses for the facility.
    There are several reasons the impact of the proposed requirement on 
small businesses would be limited. First, most licensed dealers and 
regulated exhibitors already meet the proposed perimeter fence 
requirement. Most research facilities do not utilize sheltered and/or 
outdoor housing facilities (it is estimated that greater than 90 
percent of research facilities are solely indoor facilities), and all 
research facilities utilizing outdoor housing for nonhuman primates are 
already required to provide perimeter fencing in accordance with the 
regulations in subpart D. Second, fencing costs represent only a small 
portion of a facility's operational costs. Finally, the fencing 
requirements are relatively flexible and provide for alternatives where 
appropriate.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action would 
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 12988

    This proposed rule has been reviewed under Executive Order 12988, 
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

    In accordance with section 3507(d) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.), the information collection or 
recordkeeping requirements included in this proposed rule have been 
submitted for approval to the Office of Management and Budget (OMB). 
Please send written comments to the Office of Information and 
Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, 
DC 20503. Please state that your comments refer to Docket No. 95-029-1. 
Please send a copy of your comments to: (1) Docket No. 95-029-1, 
Regulatory Analysis and Development, PPD, APHIS, suite 3C03, 4700 River 
Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer, 
OIRM, USDA, room 404-W, 14th Street and Independence Avenue SW., 
Washington, DC 20250. A comment to OMB is best assured of having its 
full effect if OMB receives it within 30 days of publication of this 
proposed rule.
    This proposed rule would amend the Animal Welfare regulations to 
require that a perimeter fence be placed around the outdoor areas of 
sheltered housing facilities and outdoor housing facilities for marine 
mammals and certain other regulated animals. The proposed rule would 
provide the opportunity for a facility to request approval from the 
Administrator to have a shorter perimeter fence or other measures, if 
that facility already provides the same or better degree of protection 
from access by animals and unauthorized persons, disease exposure, and 
animal escape. In order to adequately evaluate and track such requests, 
the facility must make the request in writing. Facilities not in 
compliance with the rule must come into compliance or request approval 
from the Administrator for a shorter fence or other measures. Requests 
for approval from the Administrator would usually be a one time 
request. We are soliciting comments from the public (as well as 
affected agencies) concerning our proposed information collection. We 
need this outside input to help us:
    (1) Evaluate whether the proposed information collection is 
necessary for the proper performance of our agency's functions, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of our estimate of the burden of the 
proposed information collection, including the

[[Page 24614]]

validity of the methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the information collection on those who 
are to respond (such as through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submission of responses).
    Estimate of burden: Public reporting burden for this collection of 
information is estimated to average 2 hours per response.
    Respondents: Dealers, exhibitors, and research facilities.
    Estimated number of respondents: 164.
    Estimated number of responses per respondent: 1.
    Estimated total annual burden on respondents: 328 hours.
    Copies of this information collection can be obtained from: 
Clearance Officer, OIRM, USDA, room 404-W, 14th Street and Independence 
Avenue, SW., Washington, DC 20250.

List of Subjects in 9 CFR Part 3

    Animal welfare, Marine mammals, Pets, Reporting and recordkeeping 
requirements, Research, Transportation.

    Accordingly, 9 CFR part 3 would be amended as follows:

PART 3--STANDARDS

    1. The authority citation for part 3 would be revised to read as 
follows:

    Authority: 7 U.S.C. 2131-2159; 7 CFR 2.22, 2.80, and 371.2(d).

    2. Section 3.103 would be amended by adding a new paragraph (c) to 
read as follows:


Sec. 3.103  Facilities, outdoor.

* * * * *
    (c) Perimeter fence. On and after [date 6 months after effective 
date of final rule] an outdoor facility must be enclosed by a fence 
that is of sufficient height to keep animals and unauthorized persons 
out. Fences less than 8 feet high for polar bears or less than 6 feet 
high for other marine mammals must be approved by the Administrator. 
The fence must be constructed so that it protects marine mammals by 
restricting animals and unauthorized persons from going through it or 
under it and having contact with the marine mammals, and so that it can 
function as a secondary containment system for the animals in the 
facility when appropriate. It must be of sufficient distance from the 
outside wall or fence of the primary enclosure to prevent physical 
contact between animals inside the enclosure and animals or persons 
outside the perimeter fence. Such fences less than 3 feet in distance 
from the primary enclosure must be approved by the Administrator. For 
facilities with sea pens, the perimeter fence must prevent access by 
animals and unauthorized persons to the sea pen from the surrounding 
land, and would be required to encompass the land portion of the 
facility from one end of sea pen-shoreline contact to the other end of 
sea pen-shoreline contact. A perimeter fence is not required if:
    (1) The outside walls of the primary enclosure are made of sturdy, 
durable material, which may include certain types of concrete, wood, 
plastic, metal, or glass, and are high enough and constructed in a 
manner that restricts contact with or entry by animals and unauthorized 
persons that are outside the outdoor facility, and the Administrator 
gives written approval; or
    (2) The outdoor facility is surrounded by an impenetrable natural 
barrier that restricts the marine mammals to the facility and protects 
them from contact with animals and unauthorized persons that are 
outside the facility, and the Administrator gives written approval.
    3. Section 3.127 would be amended by adding a new paragraph (d) to 
read as follows:


Sec. 3.127  Facilities, outdoor.

* * * * *
    (d) Perimeter fence. On or after [date 6 months after effective 
date of final rule] an outdoor facility must be enclosed by a fence 
that is of sufficient height to keep animals and unauthorized persons 
out. Fences less than 8 feet high for potentially dangerous animals, 
such as, but not limited to, large felines (e.g., lions, tigers, 
leopards, cougars, bobcats, etc.), bears, wolves, rhinoceros, and 
elephants, or less than 6 feet high for other animals must be approved 
by the Administrator. The fence must be constructed so that it protects 
the animals in the facility by restricting animals and unauthorized 
persons from going through it or under it and having contact with the 
animals in the facility, and so that it can function as a secondary 
containment system for the animals in the facility. It must be of 
sufficient distance from the outside wall or fence of the primary 
enclosure to prevent physical contact between animals inside the 
enclosure and animals or persons outside the perimeter fence. Such 
fences less than 3 feet in distance from the primary enclosure must be 
approved by the Administrator. A perimeter fence is not required if:
    (1) The outside walls of the primary enclosure are made of sturdy, 
durable material, which may include certain types of concrete, wood, 
plastic, metal, or glass, and are high enough and constructed in a 
manner that restricts contact with or entry by animals and unauthorized 
persons that are outside the outdoor facility, and the Administrator 
gives written approval; or
    (2) The outdoor facility is surrounded by an impenetrable natural 
barrier that restricts the animals in the facility to the facility and 
protects them from contact with animals and unauthorized persons that 
are outside the facility, and the Administrator gives written approval.

    Done in Washington, DC, this 30th day of April 1997.
Donald W. Luchsinger,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 97-11723 Filed 5-5-97; 8:45 am]
BILLING CODE 3410-34-P