[Federal Register Volume 64, Number 75 (Tuesday, April 20, 1999)]
[Rules and Regulations]
[Pages 19251-19254]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-9847]



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 Rules and Regulations
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  Federal Register / Vol. 64, No. 75 / Tuesday, April 20, 1999 / Rules 
and Regulations  

[[Page 19251]]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 3

[Docket No. 98-044-2]


Animal Welfare; Solid Resting Surfaces for Dogs and Cats

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are adopting as a final rule, without change, an interim 
rule that amended 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. The interim rule 
became effective on July 14, 1998. The requirement we removed was 
erroneously added in a final rule that amended the requirements for 
primary enclosures for dogs and cats to prohibit bare wire flooring in 
such enclosures. As stated in the subsequent interim rule, 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 finalizes the removal of an unnecessary 
and unintended requirement.

EFFECTIVE DATE: This final rule, which makes no changes to the July 14, 
1998, interim rule, is effective May 20, 1999.

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

    In an interim rule published in the Federal Register on July 13, 
1998 (63 FR 37480-37482, Docket No. 98-044-1), and effective July 14, 
1998, we amended the Animal Welfare Act (AWA) regulations in 9 CFR part 
3 (referred to below as the regulations) pertaining to primary 
enclosures for dogs and cats by removing the requirement that primary 
enclosures with suspended flooring made of mesh or slatted construction 
include a solid resting surface. This requirement was erroneously added 
in a final rule published on January 21, 1998 (63 FR 3017-3023, Docket 
No. 95-100-2, effective February 20, 1998). That final rule amended the 
requirements for primary enclosures for dogs and cats to prohibit 
flooring made of wire (i.e., uncoated metal strands \1/8\ of an inch or 
less in diameter). The January 21 final rule also added a requirement 
that the suspended floor of any primary enclosure for a dog or cat must 
be strong enough so that the floor does not sag or bend.
    Prior to the effective date of the January 21 final rule, primary 
enclosures for dogs and cats with suspended flooring made of wire were 
required to include a solid resting surface, and primary enclosures 
with suspended flooring of mesh or slatted construction using materials 
other than wire were not. As a result of an error in the final rule, 
all primary enclosures for dogs and cats with suspended flooring of 
mesh or slatted construction were required to include a solid resting 
surface. One of the purposes of requiring a solid resting surface in 
enclosures with suspended flooring made of wire was to provide a 
relatively level resting surface for the animals because suspended wire 
floors tend to sag and bend. We did not believe that it was necessary 
for primary enclosures of mesh or slatted construction not made of wire 
to include a solid resting surface. Therefore, we published the interim 
rule to remove the requirement that primary enclosures with suspended 
flooring of mesh or slatted construction include a solid resting 
surface.
    Comments on the interim rule were required to be received on or 
before September 11, 1998. We received 17 comments by that date. They 
were from dog breeders, members of the public, and animal welfare 
organizations. The comments were split evenly in support of or 
opposition to the interim rule and are discussed below.
    Several commenters expressed the general opinion that it is 
inhumane to have an animal living on mesh or slatted flooring because 
such flooring is uncomfortable for the animals. The commenters stated 
that the openings in the floor can cause sores on the animals' paws and 
that the claws can get caught. One commenter stated that a solid 
resting surface in such enclosures benefits the animals by adding to 
their physical comfort and enhancing their psychological well-being by 
reducing stress. One commenter stated that solid resting surfaces are 
especially beneficial to breeding females and their litters to provide 
a place for the pups to nurse and sleep as a group and an area where 
they can walk ``without any worry that their feet will slide through or 
their toes will catch.'' Two commenters expressed the opinion that toy 
breed dogs housed on mesh or slatted floors should have resting boards, 
as the size of these dogs puts them in particular danger of catching a 
foot in the mesh or slats of the floor. Another commenter stated that 
large breeds of dogs housed on mesh or slatted flooring should have a 
solid resting surface, but the commenter did not provide a reason. One 
commenter stated that, before finalizing the interim rule, research 
should be done to determine how comfortable flooring of mesh or slatted 
construction is for dogs and cats, perhaps by providing dogs and cats 
kept on such floors with access to a solid resting surface and 
observing where they choose to rest. The commenter further stated that, 
before the public can provide meaningful comments, our agency needs to 
describe the types of mesh and slats that are allowed and how much of a 
gap may separate each strand or slat.
    In response to the comments about the degree of comfort provided by 
solid resting surfaces and the need for research on this issue, we are 
unaware of any relevant scientific data. Our Agency bases our 
regulations on scientific data whenever possible. However, in 
promulgating regulations under the AWA, scientific data is often not 
available, and we must rely on the knowledge we have gained from our 
considerable experience in AWA enforcement. We know from more than 30 
years of administering the AWA that dogs and cats raised in enclosures 
with suspended floors of mesh or slatted

[[Page 19252]]

construction can be healthy and show no ill effects. Our experience has 
also shown that, in warm weather, many dogs and cats seem to prefer to 
rest on mesh and slatted flooring rather than on a solid resting 
surface, presumably because of the additional airflow that mesh and 
slatted flooring allows.
    In regard to the comments about injuries to the feet of dogs and 
cats housed in primary enclosures with suspended flooring of mesh or 
slatted construction, we believe that the current regulations 
pertaining to primary enclosures for dogs and cats adequately address 
this issue. In Sec. 3.6, paragraph (a)(2)(x) states that, among other 
things, the enclosures must ``(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.'' We believe that 
these performance-based regulations adequately describe the types of 
mesh or slats and sizes of gaps in suspended floors of mesh or slatted 
construction that are acceptable to us. We further believe that these 
regulations are specific enough to prohibit the use of flooring 
materials that could cause foot and leg injuries. Our inspectors report 
that most AWA-licensed dog and cat breeders use high-quality coated 
wire or galvanized expanded metal in primary enclosures with suspended 
flooring.
    In regard to the comment concerning the use of solid resting 
surfaces in primary enclosures containing breeding females and their 
litters, the requirements just cited in Sec. 3.6 (a)(2)(x) apply to 
puppies and kittens as well. Moreover, our inspectors have found that 
many dog breeders place a tublike container in these enclosures to 
contain the puppies but allow the mother to exit and enter.
    One commenter urged that the use of resting surfaces made of wood 
be prohibited because, being porous, they become damp and hard to 
disinfect and dogs chew on them, which can cause injury.
    We believe that the current regulations pertaining to primary 
enclosures for dogs and cats are adequate to ensure that wooden resting 
surfaces do not become a source of injury or pose a sanitation hazard 
for dogs and cats. In Sec. 3.6, paragraph (a)(1) states that primary 
enclosures must be designed and constructed of suitable materials so 
that they are structurally sound and that primary enclosures must be 
kept in good repair. Paragraph (a)(2) of Sec. 3.6 states that primary 
enclosures must be constructed and maintained so that they (1) have no 
sharp points or edges that could injure the dogs and cats, (2) protect 
the dogs and cats from injury, and (3) enable all surfaces in contact 
with the dogs and cats to be readily cleaned and sanitized or be 
replaced when worn or soiled.
    Many commenters in support of the interim rule stated that solid 
resting surfaces affect the health of puppies and kittens by creating a 
dirtier environment for them as a result of the accumulation of fecal 
matter. One commenter stated that, in the commenter's experience, most 
dogs in primary enclosures with suspended flooring of mesh or slatted 
construction that include a solid resting surface will defecate on the 
resting surface, thereby defeating the purpose of using mesh or slatted 
flooring. (However, one commenter in opposition to the interim rule 
stated that, in the commenters experience, most caged animals will not 
defecate on their resting surfaces because the surfaces usually serve 
as their sleeping areas.) One commenter stated that the requirement for 
a solid resting surface created an unnecessary and unusual burden on 
animal caretakers by making it necessary to clean the solid surfaces 
continually to avoid any potential for bacterial infections. A 
commenter in support of the interim rule suggested to regulated 
entities concerned about keeping solid resting surfaces clean and 
sanitary because of problems associated with the animals' waste that 
``allowing animals sufficient exercise time outside of their cages 
would reduce the amount of waste an animal would pass in its cage.''
    In our experience with AWA enforcement, we have found that solid 
resting surfaces in primary enclosures with suspended flooring for dogs 
and cats often become areas where excreta collects. In the AWA 
regulations pertaining to the care of dogs and cats, 3.11(a) requires 
that ``[e]xcreta and food waste must be removed from primary enclosures 
for dogs and cats daily and from under primary enclosures as often as 
necessary to prevent an excessive accumulation of feces and food waste, 
to prevent soiling of the dogs or cats contained in the primary 
enclosures, and to reduce disease hazards, insects, pests and odors.'' 
Even regulated entities who comply with the regulations and clean their 
dog and cat primary enclosures daily cannot ensure that solid resting 
surfaces are clean at all times. When excreta collect on solid resting 
surfaces, they become breeding grounds for bacteria and viruses that 
can cause serious infections and diseases in dogs and cats. In regard 
to the suggestion of allowing animals sufficient exercise time outside 
the primary enclosures, Sec. 3.8 of the regulations requires that 
regulated entities develop, document, and follow a plan to provide dogs 
with the opportunity to exercise. While we certainly encourage 
regulated parties to provide their dogs with as much exercise time as 
possible, regulated parties would still have to deal with removal of 
animal waste because Sec. 3.11 of the regulations requires removal of 
waste from outside runs and pens as well as the entire premises.
    Several commenters expressed concern that the interim rule was 
promulgated solely to save regulated entities the time and money 
involved in cleaning the solid resting surfaces. Some commenters stated 
that the requirement for a clean solid resting surface is not overly 
burdensome and that the cost estimates provided in the interim rule for 
cleaning such surfaces are too high. One commenter further stated that 
flooring of mesh or slatted construction allows only some animal waste 
to fall through, so regulated entities are already making an investment 
in regularly cleaning the cages, and another commenter stated that the 
additional cost of cleaning solid resting surfaces would be minimal.
    In accordance with Federal law, our agency analyzed the potential 
economic effects of our rule on small entities. We created the cost 
estimate in the interim rule for cleaning solid resting surfaces based 
on certain assumptions. We believe that it is not unrealistic to assume 
that it takes 5 minutes to clean each solid resting surface, that labor 
is paid at a rate of $6 per hour, and that each resting surface is 
cleaned once per day. Based on these assumptions, we estimated that a 
dog breeder with 120 enclosures would incur an annual cost of $21,900 
for cleaning solid resting surfaces. The commenter did not provide any 
specific basis for any revisions to this analysis. In the absence of 
any clear evidence that solid resting surfaces in primary enclosures 
with suspended flooring of mesh or slatted construction are necessary 
for the protection of dogs and cats covered by the AWA, we do not 
believe the costs associated with purchasing and cleaning the solid 
resting surfaces would be justified.
    Many commenters expressed the opinion that the decision to include 
a solid resting surface in primary enclosures for dogs and cats should 
be left up to the person responsible for caring for the dogs and cats 
because professional animal caretakers know what is best for their 
animals and will provide for their needs.

[[Page 19253]]

    In keeping with Federal regulatory reform initiatives, we strive to 
promulgate performance-based rather than engineering-based requirements 
whenever possible and to work with regulated entities to help them gain 
and maintain compliance with the AWA. We believe that the decision of 
whether to include solid resting surfaces in the primary enclosures of 
dogs and cats can best be determined by the AWA licensees themselves.
    Therefore, for the reasons given in the interim rule and in this 
document, we are adopting the interim rule as a final rule.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been reviewed under Executive Order 12866. The rule 
has been determined to be not significant for the 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.

PART 3--STANDARDS

    Accordingly, we are adopting as a final rule, without change, the 
interim rule that amended 9 CFR 3 and that was published at 63 FR 
37480-37482 on July 13, 1998.

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


[[Page 19254]]


    Done in Washington, DC, this 15th day of April 1999.
Joan M. Arnoldi,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 99-9847 Filed 4-19-99; 8:45 am]
BILLING CODE 3410-34-P