[Federal Register Volume 63, Number 13 (Wednesday, January 21, 1998)]
[Rules and Regulations]
[Pages 3017-3023]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-1311]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 3

[Docket No. 95-100-2]
RIN 0579-AA78


Humane Treatment of Dogs and Cats; Wire Flooring

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the regulations under the Animal Welfare Act 
regarding suspended flooring of mesh or slatted construction in primary 
enclosures for dogs and cats. We are requiring that such flooring made 
of metal strands be constructed either of metal strands greater than 
\1/8\ of an inch in diameter or of metal strands equal to or less than 
\1/8\ of an inch in diameter coated with a material such as plastic or 
fiberglass. We are also requiring that any primary enclosure with a 
suspended floor for a dog or cat be constructed so that the floor does 
not bend or sag between the supports. It is our experience that 
suspended flooring made of wire (by which we mean any metal strand that 
has a diameter equal

[[Page 3018]]

to or less than \1/8\ of an inch) is uncomfortable on animals' feet and 
contributes to foot injuries and that suspended flooring made of coated 
wire or made of metal strands larger than wire causes fewer such 
problems. It is also our experience that suspended floors that bend and 
sag can cause psychological trauma for dogs who must try to balance on 
them. We believe that adding these requirements will improve comfort 
for dogs and cats housed in primary enclosures with suspended floors 
and will help eliminate foot injuries to these animals.

DATES: Effective date: February 20, 1998. Compliance dates: February 
20, 1998 for primary enclosures constructed on or after that date and 
for floors installed or replaced on or after that date and January 21, 
2000 for all other primary enclosures.

FOR FURTHER INFORMATION CONTACT: Mr. Stephen Smith, Staff Animal Health 
Technician, Animal Care, APHIS, 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. The 
Secretary of Agriculture has delegated the responsibility for enforcing 
the AWA to the Animal and Plant Health Inspection Service (APHIS). 
Regulations established under the AWA are contained in 9 CFR parts 1, 
2, and 3. Subpart A of 9 CFR part 3 (referred to below as the 
regulations) contains specific standards for the humane handling, care, 
treatment, and transportation of dogs and cats.
    The standards for primary enclosures for dogs and cats are found in 
Sec. 3.6. The regulations require that, among other things, all 
surfaces in contact with the animals must be able to be readily cleaned 
and sanitized or replaced when worn or soiled. Primary enclosures must 
also ``(h)ave floors that are constructed in a manner that protects the 
dogs'' and cats' feet and legs from injury, and that, if of mesh or 
slatted construction, do not allow the dogs' and cats' feet to pass 
through any openings in the floor. If the floor of the primary 
enclosure is constructed of wire, a solid resting surface or surfaces 
that, in the aggregate, are large enough to hold all the occupants of 
the primary enclosure at the same time comfortably must be provided.''
    On July 2, 1996, we published in the Federal Register (61 FR 34389-
34391, Docket No. 95-100-1) a proposal to amend the regulations to 
require that, if the floor of a primary enclosure for a dog or cat is 
constructed of wire, the wire must be coated with a material, such as 
plastic or fiberglass, that can be cleaned and sanitized readily. We 
further proposed to require that the coated wire must have a well-
rounded surface and must be of a large enough diameter so that it is 
comfortable on the animals' feet and protects the animals' feet from 
injury, and that it must be strong enough that the floor does not sag 
or bend between structural supports. We believed that these 
requirements would improve comfort for dogs and cats housed in wire-
floored enclosures, would help eliminate foot injuries for such 
animals, and would ensure that wire flooring for dogs and cats is clean 
and sanitary.
    We solicited comments concerning our proposal for 60 days ending 
September 3, 1996. We received 51 comments by that date. They were from 
dog breeders, humane organizations, veterinarians, trade associations, 
and a Federal government agency, among others. Thirty-seven comments 
opposed the proposal, seven favored the proposal, and seven did not 
explicitly favor or oppose the proposal but asked for some 
clarifications. The comments are discussed below by topic.
    The proposed rule referenced three public meetings APHIS held in 
1996 to gather information on the requirements in 9 CFR part 3, subpart 
A, that apply to the care of dogs and cats in the commercial pet trade. 
At those meetings, we met with members of affected industries, such as 
dealers, research facilities, and commercial animal transporters, and 
animal protection organizations. Each of the three meetings was divided 
into four workshops covering specific topic areas. One of the workshops 
covered sanitation, materials, flooring, and construction of primary 
enclosures. Several commenters on the proposal stated that, by issuing 
the proposed rule, APHIS had ignored input received from the public 
meetings because a common opinion expressed at those meetings was that 
APHIS should not issue new rules regarding primary enclosures for dogs 
and cats but instead concentrate on enforcing the current regulations. 
We have considered that recommendation and all of the others we 
received at the public meetings, and further rulemaking may result from 
our continued analysis of the input we obtained at those meetings. 
However, we believe that, with regard to suspended flooring made of 
mesh or slatted construction, a more specific standard is necessary to 
make it clear how such flooring should be constructed in order to 
protect the dogs and cats from injury. This specificity will make it 
easier for APHIS inspectors to ensure consistency in judging the 
soundness of such floors and for regulated individuals to comply with 
the regulations.
    Many commenters requested a more specific definition of wire. They 
wanted to know if we consider expanded metal, welded rods, and other 
types of metal flooring of mesh or slatted construction to be wire; 
many commenters stated that galvanized expanded metal works well for 
flooring in primary enclosures for dogs and cats. Some commenters 
requested that the regulations specify a certain width of diameter 
(gauge) to differentiate between wire and other types of metal strands, 
such as rods.
    We agree that we need to be more specific about what we consider 
wire, and we regret any confusion that was caused by this lack of 
specificity in the proposed rule. Moreover, we agree that certain types 
of suspended flooring made of metal strands in a mesh or slatted 
configuration are not harmful to dogs and cats and do not need to be 
coated with a material such as plastic or fiberglass to ensure the 
animals' comfort and safety. We do not want to place an unnecessary 
burden on the regulated industry by establishing a requirement that 
would cause AWA licensees and registrants to replace types of suspended 
floors that are not known to cause harm to dogs and cats.
    We do not consider any flooring material that is inflexible, such 
as expanded metal, to be wire. Floors made of inflexible metal strands 
do not bend and sag and, therefore, provide an even resting surface for 
the animals. Moreover, floors made of inflexible metal strands cause 
fewer foot problems than floors made of flexible strands, such as wire, 
because, to be inflexible, the strands must be of a substantial 
diameter. We agree with the commenters who stated that we need to be 
more specific regarding acceptable diameters of metal strands used in 
flooring for dogs and cats. The diameter of the metal strands plays a 
significant role in regard to ensuring the comfort and safety for the 
animals because strands of a relatively large diameter are less likely 
to cause injuries and discomfort to the animals than strands with very 
narrow diameters. Animals housed on floors made of metal strands of a 
relatively large diameter are less likely to suffer from interdigital 
cysts

[[Page 3019]]

and lesions caused by the digits of the animals' paws passing around 
the individual strands.
    In this final rule, we are requiring that metal strands used in 
flooring be coated if the metal strands have a diameter equal to or 
less than \1/8\ of an inch (9 gauge). We chose \1/8\ of an inch as the 
defining measurement, in part, because that measurement is used by the 
metalworking industry as the point of demarcation between welded wire 
and welded rods. In addition, many cage manufacturers currently use 
metal strands with diameters greater than \1/8\ of an inch in cage 
production. Therefore, cages made with floors of such metal strands are 
easily available to consumers. Such cages are sturdy, and the floors 
are less likely to break easily from rust or from the weight of the 
animal than cages made of metal strands with a diameter of \1/8\ of an 
inch or less (hereafter in this document referred to as wire).
    We are making changes in other areas of the regulations to be 
consistent with this use of the word ``wire.'' The word ``wire'' 
appears in reference to flooring in Secs. 3.6(a)(2)(x), 3.11(a), and 
3.14(a)(9) and refers to metal strands in general. We are amending 
these sections to remove the word ``wire'' from them.
    Several commenters questioned APHIS' justification for the proposal 
and asked if APHIS has scientific evidence to show that wire flooring 
is harmful to dogs and cats.
    We are not aware of any scientific research that has been done 
regarding the inadequacy of wire flooring in providing for the comfort 
and well-being of dogs and cats. As stated in the proposed rule, this 
belief is based on our own experience in AWA enforcement. Because APHIS 
has been enforcing the AWA for over 30 years, our field staff of Animal 
Care inspectors has extensive experience in monitoring the well-being 
of dogs and cats raised for breeding. The idea to prohibit bare wire 
flooring in primary enclosures for dogs and cats originated within the 
Animal Care staff. APHIS veterinarians have been concerned for some 
time that bare wire flooring often causes discomfort for dogs and cats, 
provides inadequate support for them, and has the potential to cause 
lesions and sores on the animals' feet. This perception was confirmed 
in a recent survey of Animal Care inspectors. The responses indicated 
that, in the year preceding the survey, the 39 inspectors who responded 
to the survey were aware of a total of 238 animals that were injured as 
the result of being housed on bare wire flooring. A majority of the 
survey respondents indicated that bare wire flooring often sags or 
bends, creating an uncomfortable resting place for animals, and causes 
lesions or sores to animals' feet; the majority of respondents further 
indicated that coated wire flooring does not cause these problems.
    One commenter said that not enough information was provided in the 
proposal to explain why the current standards for flooring are 
ineffective for protecting the animals or how requiring coated wire 
will correct the inadequacy.
    While the current regulations regarding primary enclosures for dogs 
and cats require that the floors be constructed in a manner that 
protects the dogs' and cats' feet and legs from injury, the regulations 
do not address the issue of basic comfort for the animals. In enforcing 
the AWA, APHIS is charged with, among other things, promulgating 
standards to govern the humane care and treatment of animals covered by 
the law. Therefore, in carrying out the AWA, we believe that we are 
responsible for establishing minimum levels of comfort for regulated 
animals. We have come to believe that, while wire flooring may not 
actually cause injury to all dogs and cats housed on it, such flooring 
is generally uncomfortable for these animals. Coated wire provides a 
stronger mesh and a more inflexible surface than bare wire. Because 
many dogs acquire foot lesions and suffer psychological trauma from 
trying to balance on wire floors, which often sag and bend, we believe 
that it is necessary to change the existing regulations concerning 
flooring for dogs and cats to prohibit bare wire flooring.
    Some commenters stated that coated or bare wire of the same 
diameter and mesh size are likely to be equal in terms of comfort under 
foot. We disagree. Our inspectors have found that coated wire generally 
causes fewer lesions on animals' feet than bare wire.
    Other commenters suggested that we require a certain width of the 
mesh at a size small enough to prevent foot and leg injuries. We do not 
believe that it is necessary to specify a mesh width for wire flooring. 
The regulations currently specify that, if the floor of the primary 
enclosure is of mesh or slatted construction, the floor may not allow 
the dogs' and cats' feet to pass through any openings in the floor. We 
believe that this requirement is specific enough to ensure that the 
mesh is of a sufficient size to prevent foot and leg injuries from 
passage through the floor.
    Some commenters questioned the quality of wire coatings currently 
available on the commercial market. Others stated that, once cracks 
develop in the coating of coated wire, germs can accumulate in the 
cracks, and the wire under the coating can rust badly as such wire is 
often not galvanized.
    We have found that high-quality coated wire is readily available to 
consumers through kennel magazines and building supply stores and can 
be purchased in bulk rolls. According to our inspectors, most licensees 
are already using coated wire or some other acceptable type of mesh or 
slatted flooring, such as galvanized expanded metal. Some commenters 
who currently use coated wire stated that they think coated wire makes 
an excellent floor for both comfort and cleanliness and that they have 
never experienced problems with flooring made of coated wire. In our 
experience, coated wire is generally easier to keep clean than bare 
wire because it provides a smoother surface. Bare wire is prone to 
rust, which creates a rough surface that is hard to clean. When a 
coated wire floor becomes cracked to the point that rust develops, the 
floor should be replaced.
    Many commenters expressed concern about the length of time a 
plastic or fiberglass coating would remain on wire used for flooring 
for dogs and cats. Some commenters stated that dogs chew on coated 
wire, destroying the coating. The commenters wanted to know whether 
they would be in violation of the regulations if their dogs chewed off 
the coating and whether they would be required to replace the flooring 
as soon as it was damaged from being chewed. Other commenters expressed 
concern that dogs could become ill from ingesting the coating material.
    Breeders who experience extensive problems with dogs chewing on 
coated wire are probably not providing enough physical or psychological 
stimulation for their dogs and should perhaps provide them with 
diversions such as pet chews or toys. While we recognize that the 
possibility exists for dogs to become ill from ingesting the coating 
material, we have not been made aware of such incidents from the many 
licensees who already use coated wire flooring. We believe that it is 
unlikely that the relatively small amounts of coating that an animal 
would ingest before human intervention occurred would seriously harm 
the animal. We will expect breeders whose dogs chew on the coating of 
coated wire floors to replace the flooring when an APHIS inspector 
determines that the flooring is too worn for further use. However, 
breeders who have chronic difficulties with dogs chewing on flooring 
made of coated wire have the option of using flooring made of metal 
strands that are of a diameter greater than \1/8\ of an inch or any of 
the many other types of acceptable flooring.

[[Page 3020]]

    Two commenters recommended that APHIS prohibit the use of any type 
of flooring of mesh or slatted construction in primary enclosures for 
dogs and cats and instead require the use of solid flooring made of 
such materials as impervious concrete or stainless steel. We have found 
that, for animals raised in the commercial pet breeding industry, 
primary enclosures with flooring that allows the passage of excrement 
are generally kept cleaner than primary enclosures with solid flooring 
surfaces. We believe that the commercial pet breeding industry has 
demonstrated that animals can successfully be raised on suspended 
flooring of mesh or slatted construction. AWA licensees may certainly 
choose to use primary enclosures with floors made of solid surfaces, 
but we do not believe that it is necessary to require the use of such 
floors at this time.
    One commenter requested that we allow uncoated wire to be used in 
the flooring of primary enclosures of dogs and cats in research 
projects in which fecal collection is required, to prevent any 
interference with the research as a result of the adherence of fecal 
material to coated wire flooring. Researchers in this situation may use 
flooring made of metal strands of a diameter greater than \1/8\ of an 
inch. If a researcher can prove that, for the purposes of the research, 
the dog or cat needs to be housed on bare wire flooring, the researcher 
may request approval through the laboratory's Institutional Animal Care 
and Use Committee in accordance with 9 CFR part 2.38(k)(1) for an 
exemption to the flooring requirements.
    Two commenters made comments and recommendations regarding AWA 
enforcement, the AWA regulations pertaining to veterinary care provided 
to regulated animals, and the breeding frequency for female animals in 
the commercial pet trade. In addition, one of the commenters had 
recommendations regarding reclassification of animal dealers, primary 
enclosures, exercise requirements, and air transit of animals. Although 
these comments are outside the scope of the proposed regulation, we are 
taking them into consideration. If we decide to make any changes to the 
AWA regulations in response to these comments, we will publish a 
proposed rule in the Federal Register.
    One commenter indicated that we should extend the proposed 
regulation to cover dogs and cats in the care of show breeders, pounds, 
humane societies, groomers, and boarding kennels. While we agree that 
all dogs and cats should be treated in a humane manner, the AWA does 
not authorize us to promulgate standards for the care of animals in 
these circumstances.
    As stated in the proposal, we will have two compliance dates for 
this final rule. We are requiring that any new primary enclosures 
constructed on or after 30 days from the date of publication of this 
final rule in the Federal Register, and any floors installed on or 
after that date, will have to comply with the final rule. Other 
existing enclosures must be brought into compliance within 2 years. 
Although several commenters stated that the 2-year compliance period 
was reasonable, some thought that this timeframe was too long, and one 
thought that it was too short. Several commenters thought that the rule 
change should include a ``grandfather clause'' to allow the use of 
existing flooring in primary enclosures until it wears out. One 
commenter proposed that the 2-year compliance period apply ``also to 
those which are able to demonstrate that wire flooring was installed 
within 90 days of final publication in a manner consistent with current 
requirements'' to prevent facilities that have new construction under 
way at the time of final rule publication from having to destroy 
partially completed facilities. We have considered these comments, but 
we are not making any change to the proposed phase-in of compliance 
dates. We believe that the two timeframes discussed above provide ample 
time for licensees and registrants who have primary enclosures with 
wire flooring to convert the flooring to any of the many acceptable 
types.
    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.

Executive Order 12866 and Regulatory Flexibility Act

    This 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. 604, we have prepared a Final 
Regulatory Flexibility Analysis, which is set out below, regarding the 
economic impact of this rule on small entities. The discussion also 
serves as our cost-benefit analysis under Executive Order 12866.
    APHIS administers the Animal Welfare Act (AWA), which requires that 
minimum standards of care and treatment be established for certain 
animals bred for commercial sale, used in research, transported 
commercially, or exhibited to the public. Dogs and cats are covered 
under the AWA.
    In the July 2, 1996, Federal Register, APHIS proposed (61 FR 34389-
34391) that, if the floor of a primary enclosure for dogs or cats 
covered by the AWA is constructed of wire, the wire must be coated with 
a material such as plastic or fiberglass. APHIS further proposed that 
the coated wire: (1) have a well-rounded surface and be large enough in 
diameter so that it is comfortable on the animals' feet and protects 
the animals' feet from injury; and (2) be strong enough so that the 
floor does not sag or bend between the structural supports. The 
proposed rule suggested two effective dates: The first would have 
required that all new construction and replacements be in compliance 30 
days after publication of the final rule; the second would have 
required that all regulated facilities be in compliance no later than 2 
years after publication of the final rule.
    The proposal was in response to concern that wire flooring is 
inadequate in providing for the comfort and well-being of dogs and 
cats. In developing the proposal, APHIS considered its own experience 
in enforcing the AWA, as well as the recommendations and opinions 
expressed by participants at three public meetings hosted by the agency 
in 1996 to gather information on the regulations that cover the care of 
cats and dogs in the commercial trade. The current AWA standards do not 
specifically preclude wire flooring for housing dogs and cats, and the 
proposal pointed out a number of problems with such flooring. Bare wire 
can be uncomfortable on the animals' feet because of its narrow 
diameter. Bare wire is prone to rust, which not only affects the 
structural integrity of the primary enclosure but can also cause foot 
injuries because rusty wire is abrasive. Bare wire is difficult to 
clean and sanitize thoroughly because rust makes the wire semiporous in 
places. Finally, bare wire flooring often sags or bends between 
structural supports, creating an uncomfortable resting surface. The 
proposed rule change was intended to eliminate or mitigate these 
problems.
    APHIS received 51 comments on the proposal. Thirty-seven commenters 
opposed the proposal, seven favored it, and seven did not indicate a 
preference. Many of those opposed to the proposal argued that it was 
not adequately justified, both in terms of any hard evidence (e.g., 
inspection reports, documented cases) and in terms of the insufficiency 
of the current regulations. The U.S. Small Business Administration 
(SBA) commented that, prior to issuing

[[Page 3021]]

a final rule, APHIS should better articulate the scope of the problem 
and should consider the possibility of viable alternatives.
    The final rule is essentially a refined version of the proposed 
rule. The proposed rule did not define wire, and many commenters 
requested clarification as to what APHIS considers to be wire. Under 
the final rule, APHIS defines wire as flexible metal strands \1/8\ of 
an inch or less in diameter. The rule change is needed because the 
current regulations do not specifically preclude wire flooring, a 
documented source of injuries and discomfort. The commenters' arguments 
that the rule is not needed are not persuasive. Many commenters argued 
that the rule was not justified with any scientific evidence. That 
argument is correct, to the extent that the published proposal did not 
include any hard evidence supporting the rule change. However, the 
absence of hard evidence does not mean that the rule is not needed or 
that it was initiated without adequate forethought. APHIS proposed the 
rule change only after carefully considering the views of persons 
within and outside the agency.
    In early 1997 (following the receipt of public comment), APHIS 
conducted a survey of its field inspectors. The inspectors, many of 
whom are licensed veterinarians, have extensive experience in 
monitoring the well-being of dogs and cats raised for breeding. Of the 
39 inspectors responding to the survey, over half had more than 21 
percent of their facilities having dogs and cats; one-third of the 
respondents had more than 50 percent of their facilities having dogs 
and cats.
    The survey results document the problems with wire flooring that 
were identified in the proposal. The survey revealed that, during the 
past year alone, the inspectors were aware of 238 animal injuries that 
resulted from wire flooring at facilities under their inspection. The 
number of reported injuries would no doubt have been even higher if 
inspections were conducted on a more frequent basis. (Inspectors visit 
each facility on an average of only 1.46 times per year.)
    Of the five most common types of flooring used in suspended 
enclosures for dogs and cats (coated wire, molded plastic, expanded 
metal, metal rods, and bare metal wire), the inspectors ranked bare 
wire last in terms of what is best for the animals; coated wire was 
ranked second. Molded-plastic flooring was ranked first, but that type 
of flooring has been rejected as a viable alternative because of its 
cost. The advantages of molded-plastic flooring are not justified by 
its additional cost.
    Some commenters agreed with the intent of the rule but disagreed 
with the proposed solution. They maintained that any type of mesh 
flooring is inadequate and that APHIS should instead require flooring 
made of impervious concrete, Teflon, stainless steel, or fiberglass. 
APHIS agrees that these materials can make excellent flooring surfaces 
for dogs and cats, if a concerted effort is made to keep them clean. 
However, APHIS inspectors have found that animals raised in primary 
enclosures with suspended flooring that allows the passage of fecal 
material are often kept in cleaner conditions than animals raised on 
flooring made of solid surfaces. Therefore, to protect the health of 
AWA-regulated animals by helping to ensure the cleanliness of their 
enclosures, APHIS will continue to allow dogs and cats to be raised in 
enclosures with suspended floors that allow the passage of fecal 
material.
    Many commenters argued against the rule on the grounds that the 
current standards are already sufficient; they stated that those 
standards merely need to be enforced uniformly. However, enforcement 
activity, regardless of how diligent or aggressive, will never solve 
the injury and discomfort problems if the regulations continue to allow 
for the use of the material that causes the problems in the first 
place. Likewise, one commenter suggested that the injuries might be due 
more to neglect than to wire flooring and that an increase in the 
caretaker-to-animal ratio might be a better solution than requiring 
coated wire. However, the injuries and discomfort caused by wire 
flooring are not directly related to the level of supervision provided. 
Even if the caretaker-to-animal ratio were increased, the animals would 
still experience problems on floors made of bare wire.
    Over half of the surveyed inspectors disagreed that the current 
regulations on wire flooring are sufficient. Furthermore, any 
corrective action taken as a result of enforcement activity is likely 
to produce the very same results that this rule change is intended to 
achieve, i.e., the replacement of bare metal strands that are \1/8\ of 
an inch or less in diameter with an acceptable flooring material. From 
a regulatory standpoint, there seem to be only two solutions: Have 
regulated entities replace the unacceptable flooring in existing 
enclosures or have them purchase new or used enclosures with acceptable 
flooring already built in. The rule change allows regulated entities 
the option of choosing either solution, thereby minimizing the rule's 
economic impact.
    Finally, many commenters were concerned about the proposed rule's 
lack of specificity. They pointed out that the term ``wire'' was not 
clearly defined, an important consideration as not all metal strands 
used in flooring are harmful to animals. That concern is a reasonable 
one and, for that reason, the final rule defines wire as flexible metal 
strands that are \1/8\ of an inch or less in diameter. This 
modification was made to distinguish between metal strands that can be 
harmful to animals and inflexible metal strands, such as rods, that are 
not. This modification will allow APHIS inspectors to be consistent 
when judging the soundness of suspended floors of mesh or slatted 
construction. This modification will also make it easier for regulated 
individuals and organizations to comply with the new rule and 
significantly reduce the rule's impact.

Small Entity Impact

    The Regulatory Flexibility Act requires that agencies consider the 
economic impact of rule changes on small entities. In its initial 
regulatory flexibility analysis, APHIS stated that the proposed rule 
change would affect all breeders, dealers, research facilities, and 
exhibitors of dogs and cats that are licensed or registered under the 
AWA and that house their animals in primary enclosures with wire 
floors. However, APHIS stated that it could not at that time make a 
definitive finding as to the proposed rule's impact because certain 
critical information was not available. For example, the total number 
of licensees and registrants was known, but the number who housed dogs 
and cats on wire flooring was not available. Nor was information 
available on the number of animals involved. For that reason, APHIS 
sought comments on the proposed rule's potential effects. APHIS 
specifically sought comment on the number of licensees and registrants 
who would have to replace wire flooring as a result of the proposed 
rule and the average number of animals these licensees house.
    Unfortunately, the commenters furnished little or no new 
information on the rule's overall impact on small entities. Several 
commenters stated that it would be too costly to implement, but none 
provided details to support that statement. One commenter stated that 
it would cost $27,949 (labor and materials) to replace his galvanized 
expanded metal with coated wire (the commenter further stated the cost 
would be $42,949, or $15,000 more in additional labor costs, if the 
commenter

[[Page 3022]]

could not ``rent, borrow, or buy'' two winches). However, galvanized 
expanded metal would not have to be replaced under the rule, so that 
cost estimate is not relevant. In any event, the commenter provided no 
details as to how the dollar amount was arrived at, including 
information on the square footage of the flooring to be replaced.
    In fiscal year 1995, 10,108 facilities were licensed or registered 
under the AWA. Of that number, 4,325 were licensed dealers, 2,304 were 
licensed exhibitors, and 3,479 were registrants. The dealers are 
subdivided into two classes. Class A dealers (3,056) breed animals, and 
Class B dealers (1,269) serve as animal brokers. The registrants 
comprise research facilities (2,688), carriers and intermediate 
handlers (756), and exhibitors (35).
    It is not known how many of the licensees and registrants are 
considered small entities under SBA standards, since information as to 
their size (in terms of gross receipts or number of employees) is not 
available. However, it is reasonable to assume that most are small, 
based on composite data for providers of the same and similar services 
in the United States. In 1992, the per-firm average gross receipts for 
all 6,804 firms in SIC 0752 (which includes breeders) was $115,290, 
well below the SBA's small-entity threshold of $5.0 million. Similarly, 
the 1992 per-establishment average employment for all 3,826 U.S. 
establishments in SIC 8731 (which includes research facilities) was 29, 
well below the SBA's small-entity threshold of 500 employees.
    The economic impact of the rule change cannot be determined with 
certainty because critical information, such as the number of licensees 
and registrants who currently house dogs and cats on wire flooring is 
not available. However, based on information furnished by APHIS and the 
industry, discussed below, the economic impact is not expected to be 
significant.
    For the overwhelming bulk of research facilities, the final rule 
will have virtually no economic impact because the use of wire flooring 
of any diameter size for dogs and cats in those facilities is 
rare.1 Nor will the rule significantly affect regulated 
exhibitors because few use dogs and cats as exhibit animals. Registered 
carriers and intermediate handlers will also be largely unaffected 
because the enclosures they use to transport animals are not considered 
to be the animals' ``primary'' enclosures.
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    \1\ Members of the National Association for Biomedical Research 
(NABR) account for between 50 and 60 percent of all dogs used in 
research. Barbara Rich of NABR said that members' use of bare wire 
flooring is rare. Steve Smith (APHIS) indicated that use of bare 
wire flooring by non-NABR research facilities is also rare.
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    As a group, dealers (breeders and brokers) of dogs stand to be 
affected most by the rule change. However, even the impact on dog 
dealers should be minimal. (The impact on AWA-licensed cat dealers is 
likely to be negligible because most raise their animals on solid 
flooring surfaces in primary enclosures containing litter boxes, which 
are required by the regulations. Moreover, the percentage of licensed 
dealers who deal in cats is extremely small; the vast majority of 
licensed dealers deal in dogs.)
    It is estimated that there are approximately 2,000 Class A dog 
breeders in the United States, who produce about 175,000 dogs 
annually--an average of 90 dogs per breeder.2 To support the 
production of 90 dogs annually, each breeder would need about 16 
separate enclosures--13 to accommodate the mothers and their newborns 
and 3 to accommodate the fathers. (This calculation assumes that: (1) 
newborns are housed with their mothers before being sold; (2) each 
mother produces about 7 newborns annually; (3) fathers are housed 
separately from the mothers and the newborns; and (4) the ratio of 
mothers to fathers at each facility is 4 to 1.) The 16 enclosures, in 
turn, would translate into a total of 156 square feet of needed floor 
space, assuming all mothers and fathers are medium-sized. (Floor space 
requirements for primary enclosures vary depending on the size of the 
animals; large dogs on average require 13 square feet of floor space, 
but small dogs require only 6.5 square feet. Medium-sized dogs are 
assumed to need 9.75 square feet, an average of the large and small dog 
requirements.)
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    \2\ Per N. Marshall Myers (Pet Industry Joint Advisory Council).
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    Based on a recent quote, the material cost for a 200-square-foot 
roll of 14-gauge vinyl-coated galvanized wire is $148.60. The same roll 
without the vinyl coating costs $78.70.3 The cost 
difference, therefore, is $69.90, or $0.35 per square foot. Based on 
the average floor space of 156 square feet, the maximum additional cost 
per breeder for the coated wire would be $55 (156  x  $0.35). The 
maximum additional cost for all 2,000 dog breeders would be $110,000 
(2,000  x  $55). These cost figures represent a worst-case scenario 
because they assume that each breeder would have to replace all 156 
square feet of floor space under the new rule. Such a scenario is 
unlikely because not all flooring used by dealers in housing for dogs 
is wire.
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    \3\ These material quotes were obtained by Steve Smith (APHIS). 
In the initial analysis, APHIS stated that the market price of both 
bare and coated wire varies, depending on the quality and diameter 
width of the material. APHIS asserted that bare wire of the type 
most often used as flooring sells for approximately $1.50 per square 
foot and that coated wire (that meets the other standards) sells for 
between $2.25 and $5.00 per square foot.
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    It is estimated that there are approximately 75 Class B dog brokers 
in the United States and that these brokers purchase/sell about 315,000 
dogs annually--an average of 4,200 dogs per broker.4 To 
support the purchase/sale of 4,200 dogs annually, each broker would 
need about 27 separate enclosures. (This calculation assumes that: (1) 
the brokers have custody of each dog for 1 week; and (2) the dogs are 
housed three to an enclosure.) The 27 enclosures, in turn, would 
translate into a total of 176 square feet of needed floor space, 
assuming that all dogs are small-sized. (Most dogs in the custody of 
brokers are puppies, and small dogs require only 6.5 square feet of 
floor space.) Based on the average floor space of 176 square feet, the 
maximum additional cost per broker for the coated wire would be $62 
(176 x $0.35). The maximum additional cost for all 75 dog brokers would 
be $4,650 (75 x $62). Again, these cost figures represent a worst-case 
scenario because they assume that each broker would have to replace all 
176 square feet of floor space under the new rule. Such a scenario is 
unlikely.
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    \4\ Per N. Marshall Myers (Pet Industry Joint Advisory Council).
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    Small entities should not experience any additional labor costs as 
a result of the rule. Regulated entities have 2 years to bring existing 
flooring into compliance. By that time, it is likely that all bare wire 
flooring will have been replaced anyway, due to its limited useful 
life. The rule, therefore, should not force regulated entities into 
premature replacement of existing flooring. Because of that, and 
because the labor cost to replace wire flooring should be the same 
regardless of whether the wire is coated or uncoated, the rule should 
have no impact on small entities' labor costs.
    On average, therefore, it would cost each breeder only about $55 to 
switch from bare wire to coated wire. This amount is relatively 
insignificant; it represents less than 1 percent of the per-firm 
average gross receipts for all firms in SIC 0752, which includes 
breeders. The average cost of $62 for each broker would also be 
relatively insignificant--less than 1 percent of the per-establishment 
average sales for all establishments in SIC 5199, which

[[Page 3023]]

includes brokers. The rule would have a carryover cost effect because 
each subsequent replacement would require coated wire or some other 
acceptable material, such as galvanized expanded metal. However, the 
increased cost of coated wire would be made up, at least partially, 
over time because coated wire will provide longer use.
    This rule contains no reporting 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 12988

    This final 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

    This 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 in 9 CFR Part 3

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

    Accordingly, 9 CFR part 3 is amended as follows:

PART 3--STANDARDS

    1. The authority citation for part 3 continues to read as follows:

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

    2. Section 3.6 is amended as follows:
    a. In paragraph (a)(2)(x), the words ``constructed of wire'' are 
removed, and the words ``of mesh or slatted construction'' are added in 
their place, and the word ``and'' at the end of the paragraph is 
removed.
    b. In paragraph (a)(2)(xi), the period at the end of the paragraph 
is removed, and ``; and'' is added in its place.
    c. A new paragraph (a)(2)(xii) is added to read as follows:


Sec. 3.6  Primary enclosures.

* * * * *
    (a) * * *
    (2) * * *
    (xii) Primary enclosures constructed on or after February 20, 1998 
and floors replaced on or after that date, must comply with the 
requirements in this paragraph (a)(2). On or after January 21, 2000, 
all primary enclosures must be in compliance with the requirements in 
this paragraph (a)(2). If the suspended floor of a primary enclosure is 
constructed of metal strands, the strands must either be greater than 
\1/8\ of an inch in diameter (9 gauge) or coated with a material such 
as plastic or fiberglass. The suspended floor of any primary enclosure 
must be strong enough so that the floor does not sag or bend between 
the structural supports.
* * * * *


Sec. 3.11  [Amended]

    3. In Sec. 3.11(a), the word ``wire'' is removed from the last 
sentence, and the word ``mesh'' is added in its place.


Sec. 3.14  [Amended]

    4. In Sec. 3.14(a)(9), the word ``wire'' is removed each time it 
appears.

    Done in Washington, DC, this 13th day of January 1998.
Craig A. Reed,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 98-1311 Filed 1-20-98; 8:45 am]
BILLING CODE 3410-34-P