[Federal Register Volume 64, Number 103 (Friday, May 28, 1999)]
[Proposed Rules]
[Pages 28940-28942]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13621]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 2

[Docket No. 98-065-1]


Animal Welfare; Confiscation of Animals

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend the Animal Welfare Act regulations 
to allow us to place animals confiscated from situations detrimental to 
the animal's health and well-being with a person or facility that is 
not licensed by or registered with the Animal and Plant Health 
Inspection Service, U.S. Department of Agriculture, if the person or 
facility can offer a level of care equal to or exceeding that required 
by the regulations. The change would facilitate the relocation of 
confiscated animals and minimize the amount of time neglected, sick, or 
injured animals stay in unhealthy situations.

DATES: We invite you to comment on this docket. We will consider all 
comments that we receive by July 27, 1999.

ADDRESSES: Please send your comment and three copies to: Docket No. 98-
065-1, Regulatory Analysis and Development, Suite 3C03, 4700 River 
Road, Unit 118, Riverdale, MD 20737-1238. Please state that your 
comment refers to Docket No. 98-065-1.
    You may read any comments that we receive on this docket in our 
reading room. The reading room is located in room 1141 of the USDA 
South Building, 14th Street and Independence Avenue, SW., Washington, 
DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through 
Friday, except holidays. To be sure someone is there to help you, 
please call (202) 690-2817 before coming.
    APHIS documents published in the Federal Register, and related 
information, including the names of organizations and individuals who 
have commented on APHIS rules, are available on the Internet at http://
www.aphis.usda.gov/ppd/rad/webrepor.html.

FOR FURTHER INFORMATION CONTACT: Dr. Bettye K. Walters, Staff 
Veterinarian, Animal Care, APHIS, 4700 River Road Unit 84, Riverdale, 
MD 20737-1234; (301) 734-8100.

SUPPLEMENTARY INFORMATION:

Background

    The Animal Welfare Act (AWA) (7 U.S.C. 2131 et seq.) authorizes the 
Secretary of Agriculture to promulgate standards and other requirements 
governing the humane handling, housing, care, treatment, and 
transportation of certain animals by dealers and other regulated 
businesses. The Secretary of Agriculture has delegated the 
responsibility for enforcing the AWA to the Administrator of the Animal 
and Plant Health Inspection Service (APHIS). Regulations established 
under the AWA are contained in 9 CFR parts 1, 2, and 3. Part 1 contains 
definitions for terms used in parts 2 and 3. Part 2 sets forth general 
requirements, and part 3 sets forth the standards for the humane 
handling, care, treatment, and transportation of covered animals by 
regulated entities.

[[Page 28941]]

    In part 2, Sec. 2.129 provides for the confiscation and destruction 
of animals. Paragraph (a) of Sec. 2.129 provides that if an animal 
being held by a dealer, exhibitor, intermediate handler, or carrier is 
found by APHIS to be suffering as a result of the failure of the 
dealer, exhibitor, intermediate handler, or carrier to comply with the 
Animal Welfare regulations, APHIS will notify the dealer, exhibitor, 
intermediate handler, or carrier of the condition of the animal and 
request that the animal's suffering be alleviated, or that the animal 
be euthanized. If the dealer, exhibitor, intermediate handler, or 
carrier refuses to comply with APHIS' request, an APHIS official may 
confiscate the animal for care, treatment, or disposal.
    Paragraph (c) of Sec. 2.129 provides that APHIS may place 
confiscated animals with a person or facility that is licensed by or 
registered with APHIS and that complies with the regulations and can 
provide proper care. Alternatively, the confiscated animals may be 
euthanized by APHIS or the receiving facility. The dealer, exhibitor, 
intermediate handler, or carrier from whom the animals were confiscated 
is responsible for all costs associated with the placement or 
euthanasia of the animals.
    We are proposing to amend Sec. 2.129(c) to allow APHIS to place 
confiscated animals with a person or facility that can offer a level of 
care equal to or exceeding that required by the regulations, even if 
the person or facility is not licensed by or registered with APHIS. 
Such facilities may include local animal shelters. Although 
confiscations of animals are relatively rare (approximately two 
confiscations per year), we are proposing this action because we have 
had problems finding licensees or registrants who have room to 
accommodate new animals.
    We would expect a person or facility approved to accept confiscated 
animals to house, care for, and try to locate permanent homes for the 
confiscated animals. The person or facility would also be authorized to 
euthanize, if necessary, any animals that were in severe distress, 
mortally wounded, or could not be placed in a permanent home in a 
reasonable period of time. This action would increase the options for 
APHIS when placing confiscated animals and would, therefore, allow 
neglected, sick, or injured animals to be removed more quickly from 
situations detrimental to their health and well-being.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed 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.
    We are proposing to amend the Animal Welfare Act regulations to 
allow APHIS to place animals confiscated from situations detrimental to 
the animals' health and well-being with a person or facility that is 
not licensed by or registered with APHIS. The change would increase the 
options for APHIS when placing confiscated animals and would, 
therefore, facilitate the relocation of confiscated animals and 
minimize the amount of time neglected, sick, or injured animals stay in 
unhealthy situations.
    Confiscation is a complicated and expensive procedure. Currently, 
the regulations require that APHIS place confiscated animals with a 
person or facility licensed by or registered with APHIS. Finding a 
licensee or registrant with the capacity and ability to house and care 
for the animals' well-being is one of the major challenges in the 
confiscation process. In some cases, local humane protection groups 
have been willing to assist in the placement of confiscated animals at 
local animal shelters but have been unable to because the shelters are 
not licensed by or registered with APHIS.
    This proposed rule would make the task of finding an adequate 
facility for confiscated animals faster and simpler, which would reduce 
APHIS' costs associated with locating a facility and the cost of the 
care APHIS must provide when adequate facilities cannot be located. At 
times, APHIS assumes the associated costs for care or euthanasia of 
confiscated animals when the dealer, exhibitor, intermediate handler, 
or carrier from whom the animals were confiscated is unable to pay 
these costs and APHIS cannot find a facility at which to place the 
animals.
    The Regulatory Flexibility Act requires that agencies consider the 
potential economic effects of rules on small businesses, organizations, 
and governmental jurisdictions. Businesses and organizations 
potentially affected by this proposed rule are those that are not 
licensed by or registered with APHIS but that can accommodate and 
provide adequate care for confiscated animals.
    We expect that the types of facilities most likely to accept 
confiscated animals under this proposal are animal shelters run by 
humane societies. The number of humane societies that are small 
entities under the Small Business Administration's (SBA) standards are 
unknown because information as to their size in terms of gross receipts 
and number of employees is not available. Humane societies are not-for-
profit organizations where some of the employees work on a voluntary 
basis, and there is not a way to determine their revenue. In addition, 
the costs incurred by humane societies are covered by membership 
donations. In the United States, there are at least 121 known humane 
societies in 35 States. Most of these are in California (at least 14); 
Texas and Illinois (at least 7 each); Florida, Georgia, and Minnesota 
(at least 6 each); Oregon, Virginia, Maryland, and Wisconsin (at least 
5 each); and Colorado, Alabama, Ohio, Michigan, and Pennsylvania (at 
least 4 each).
    APHIS confiscates animals, on average, only about twice a year. 
Adoption of this proposed rule would expedite relocation of any 
confiscated animals. It is likely that the receiving facilities, as 
noted above, would be small entities. The regulations require that the 
dealer, exhibitor, intermediate handler, or carrier from whom the 
animals are confiscated bear all costs associated with performing the 
placement or euthanasia. If a facility accepts confiscated animals, 
that facility would be responsible for the future costs incurred for 
the care of those animals while at the facility. However, APHIS needs 
to place confiscated animals only about twice a year, and the 
acceptance of confiscated animals is voluntary.
    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

[[Page 28942]]

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 2

    Animal welfare, Pets, Reporting and recordkeeping requirements, 
Research.

    Accordingly, we propose to amend 9 CFR part 2 as follows:

PART 2--REGULATIONS

    1. The authority citation for part 2 would continue to read as 
follows:

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

    2. In Sec. 2.129, paragraph (c) would be revised and new paragraph 
(d) would be added to read as follows:


Sec. 2.129  Confiscation and destruction of animals.

* * * * *
    (c) Confiscated animals may be:
    (1) Placed, by sale or donation, with other licensees or 
registrants that comply with the standards and regulations and can 
provide proper care; or
    (2) Placed with persons or facilities that can offer a level of 
care equal to or exceeding the standards and regulations, as determined 
by APHIS, even if the persons or facilities are not licensed by or 
registered with APHIS; or
    (3) Euthanized.
    (d) The dealer, exhibitor, intermediate handler, or carrier from 
whom the animals were confiscated must bear all costs incurred in 
performing the placement or euthanasia activities authorized by this 
section.

    Done in Washington, DC, this 24th day of May 1999.
Joan N. Arnoldi,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 99-13621 Filed 5-27-99; 8:45 am]
BILLING CODE 3410-34-P