[Federal Register Volume 63, Number 133 (Monday, July 13, 1998)]
[Rules and Regulations]
[Pages 37480-37482]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-18594]
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Part 3
[Docket No. 98-044-1]
Animal Welfare; Primary Enclosures for Dogs and Cats
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Interim rule and request for comments.
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SUMMARY: We are amending the regulations under the Animal Welfare Act
pertaining to primary enclosures for dogs and cats by removing the
requirement that primary enclosures with flooring made of mesh or
slatted construction include a solid resting surface. This requirement
was erroneously added in a recent final rule that amended the
requirements for primary enclosures for dogs and cats to prohibit bare
wire flooring in such enclosures. However, we do not believe that it is
necessary for primary enclosures with acceptable flooring of mesh or
slatted construction to include a solid resting surface. Therefore,
this action relieves an unnecessary and unintended requirement.
DATES: Interim rule effective July 14, 1998. Consideration will be
given only to comments received on or before September 11, 1998.
ADDRESSES: Please send an original and three copies of your comments to
Docket No. 98-044-1, 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. 98-044-1. 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, Animal Care, AC, APHIS, 4700 River Road Unit 84, Riverdale,
MD 20737-1234, (301) 734-4972.
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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. 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.
On January 21, 1998, we published in the Federal Register a final
rule (63 FR 3017-3023, Docket No. 95-100-2, effective February 20,
1998) that amended the regulations pertaining to primary enclosures for
dogs and cats. The final rule added two new requirements: (1) If a
primary enclosure has a suspended floor made of metal strands, the
strands must be greater than \1/8\ of an inch in diameter or coated
with a material such as plastic or fiberglass, and (2) any kind of
suspended floor in a primary enclosure must be strong enough so that
the floor does not bend or sag between the structural supports. In
essence, the final rule prohibited the use of bare wire (meaning
uncoated metal strands having a diameter of \1/8\ of an inch or less)
in suspended flooring of primary enclosures for dogs and cats. We made
these changes because we determined that bare wire flooring is
uncomfortable for the feet of dogs and cats and contributes to foot
injuries and that suspended flooring made of coated wire or of metal
strands larger in diameter than wire causes fewer such problems. We
have also found that many dogs acquire foot lesions and suffer
psychological trauma from trying to balance on suspended floors that
sag and bend. The rule was effective February 20, 1998, but had two
compliance dates: For primary enclosures constructed on or after
February 20, 1998, and for floors installed or replaced on or after
that date, the compliance date was February 20, 1998; for all other
primary enclosures, the compliance date is January 21, 2000.
In the final rule, we removed the word ``wire'' in reference to
flooring material in dog and cat primary enclosures from every section
in the regulations where the word appeared. We made these changes
because, as stated previously in this document and in the preamble to
the final rule, we consider wire to be metal strands \1/8\ of inch or
less in diameter, and the final rule effectively prohibited the use of
wire in flooring of primary enclosures for dogs and cats, unless the
wire is coated with a material such as plastic or fiberglass.
One section of the regulations where the word ``wire'' appeared is
Sec. 3.6(a)(2), which specifies requirements for the construction and
maintenance of primary enclosures for dogs and cats. Prior to
publication of the final rule, Sec. 3.6(a)(2)(x) provided, among other
things: ``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.'' The solid resting surface was
necessary to provide relief to animals housed in primary enclosures
with bare wire flooring.
The final rule removed the words ``constructed of wire'' from this
sentence and replaced them with the words ``of mesh or slatted
construction.'' We made this change in error. By changing the words
``constructed of wire'' in Sec. 3.6(a)(2)(x) to ``of mesh or slatted
construction,'' we unintentionally promulgated a new requirement.
Dog and cat primary enclosures with suspended floors of mesh or
slatted construction (other than those constructed of bare wire) were
not previously required to include a solid resting surface. As a result
of the change to Sec. 3.6(a)(2)(x) in our final rule, all primary
enclosures with suspended flooring of mesh or slatted construction are
required to include a solid resting surface. We do not believe that
this requirement is necessary. Because suspended floors of mesh or
slatted construction, except for those made of bare wire, are
relatively safe and comfortable for dogs and cats, we do not believe
that a separate solid resting surface in primary enclosures with
suspended flooring of acceptable materials is necessary to ensure the
animals' comfort and safety. Moreover, we have found that some
regulated parties find it difficult to keep solid resting surfaces in
primary enclosures for dogs and cats clean and sanitary because of
problems associated with the animals' waste.
Because bare wire floors are now prohibited in primary enclosures,
and because we believe that other types of mesh or slatted floors are
safe and comfortable for dogs and cats, we are amending
Sec. 3.6(a)(2)(x) to remove the requirement that a solid resting
surface or surfaces must be provided in primary enclosures with floors
of mesh or slatted construction. As a result, solid resting surfaces
are not required in primary enclosures with any kind of suspended
flooring. However, this interim rule does not prohibit the inclusion of
solid resting surfaces in dog and cat primary enclosures with suspended
flooring. Regulated parties who can maintain solid resting surfaces in
dog and cat primary enclosures and wish to provide such surfaces for
their animals may do so.
Immediate Action
The Administrator of the Animal and Plant Health Inspection Service
has determined that there is good cause for publishing this interim
rule without prior opportunity for public comment. Immediate action is
warranted to relieve unnecessary restrictions on regulated parties.
Prior to publication of a final rule in the January 21, 1998, Federal
Register (63 FR 3017-3023, Docket No. 95-100-2), primary enclosures
with suspended floors of mesh or slatted construction (other than those
made of bare wire) were not required to include solid resting surfaces
for the enclosed dogs or cats. In that final rule, we unintentionally
added a requirement that dog and cat primary enclosures with such
flooring include a solid resting surface. We do not believe that this
requirement is necessary to ensure the safety and well-being of dogs
and cats covered by the Animal Welfare Act. Therefore, we are
publishing this action, which relieves an unnecessary requirement that
was promulgated in error, as an interim rule.
Because prior notice and other public procedures with respect to
this action are impracticable and contrary to the public interest under
these conditions, we find good cause under 5 U.S.C. 553 to make this
action effective one day after publication in the Federal Register. We
will consider comments that are received within 60 days of publication
of this rule in the Federal Register. After the comment period closes,
we will publish another document in the Federal Register. It will
include a discussion of any comments we receive and any amendments we
are making to the rule as a result of the comments.
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
[[Page 37482]]
the purposes of Executive Order 12866 and, therefore, has not been
reviewed by the Office of Management and Budget.
This rule removes a requirement under the Animal Welfare Act (AWA)
regulations that primary enclosures used for dogs and cats and having
suspended flooring of mesh or slatted construction include solid
resting surfaces. Promulgated in error, this requirement has placed an
unnecessary and unintentional burden on regulated entities. As
explained below, this rule will benefit entities who house dogs and
cats in primary enclosures that have suspended flooring of mesh or
slatted construction. These regulated entities will avoid the cost of
purchasing the resting surfaces, as well as the cost of cleaning those
surfaces following installation. However, the rule does not preclude
regulated entities who wish to provide such surfaces for their animals
from doing so.
The Regulatory Flexibility Act requires that agencies consider the
economic impact of rules on small entities. This rule will primarily
affect animal dealers and research facilities licensed or registered
under the AWA. The exact number of entities affected by the rule is
unknown because the number of AWA licensees and registrants who house
dogs and cats in primary enclosures that have suspended floors of mesh
or slatted construction is unknown. However, it is estimated that
roughly half of the 4,265 licensed dealers and many of the 2,506
registered research facilities will be affected.1 The rule's
impact on regulated exhibitors is insignificant because most do not
exhibit dogs and cats. Registered carriers and intermediate handlers
are also largely unaffected because they only transport animals so they
do not maintain ``primary'' enclosures for regulated animals.
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\1\ In FY96, 10,366 facilities were licensed or registered under
the AWA. Of those facilities, 4,265 were licensed dealers, 2,422
were licensed exhibitors, and 3,679 were registrants. The dealers
are subdivided into two classes. Class A dealers (3,043) breed
animals, and Class B dealers (1,222) serve as animal brokers. The
registrants comprise research facilities (2,506), carriers and
intermediate handlers (1,142), and exhibitors (31). As used here,
the term facilities represents sites, the physical location where
animals are housed. Some licensees and registrants have more than
one site.
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The number of dealers and research facilities that are considered
small entities under U.S. Small Business Administration (SBA) standards
is unknown because 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 in size, 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 (Standard Industrial Classification) 0752, which includes
dog and cat breeders, was $115,290, well below the SBA's small entity
threshold of $5 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. It is very likely, therefore, that small
entities will be the principal beneficiaries of the rule.
Solid resting surfaces used in dog and cat primary enclosures are
made of a variety of materials, including fiberglass, galvanized metal,
or wood, but the most common material used is rubber matting. The
average cost of such surfaces is minimal--about $5 per enclosure. The
resting surfaces are usually not affixed to the enclosures; they are
simply placed on top of the suspended flooring, so as to allow for easy
removal and cleaning. For that reason, there is virtually no labor cost
associated with the installation of such surfaces. Thus, if a breeder
had to install resting surfaces in 120 enclosures, the total cost would
be about $600. However, solid resting surfaces have to be replaced over
time. The replacement rate is unknown and depends on the type of
material used. Those resting surfaces made of fiberglass or galvanized
metal, for example, have to be replaced less frequently than those made
of wood. As a result of the rule, affected entities will avoid this
ongoing replacement cost.
Resting surfaces are usually cleaned by hosing them down. They are
cleaned outside the enclosures, to prevent the animals from getting
wet. Cleaning resting surfaces can be a costly undertaking, largely
because it is labor intensive. For a dog breeder with 120 enclosures,
for example, the annual cost is conservatively estimated at $21,900 per
year. This estimate assumes that: (1) Each resting surface is cleaned
once each day; (2) it takes 5 minutes to clean each resting surface;
and (3) labor is paid at a rate of $6 per hour.
The impact of the rule on individual entities will vary, depending
on the number of enclosures maintained. However, the impact of the rule
on all regulated entities will be beneficial.
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 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(a)(2)(x) is revised to read as follows:
Sec. 3.6 Primary enclosures.
* * * * *
(a) * * *
(2) * * *
(x) Have 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; and
* * * * *
Done in Washington, DC, this 8th day of July 1998.
Charles P. Schwalbe,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 98-18594 Filed 7-10-98; 8:45 am]
BILLING CODE 3410-34-P