[Federal Register Volume 64, Number 200 (Monday, October 18, 1999)]
[Rules and Regulations]
[Pages 56142-56148]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-27135]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 3

[Docket No. 95-029-2]


Animal Welfare; Perimeter Fence Requirements

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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

DATES: Effective date: November 17, 1999.
    Compliance date: May 17, 2000.

FOR FURTHER INFORMATION CONTACT: Dr. Barbara Kohn, Staff Veterinarian, 
Animal Care, APHIS, 4700 River Road Unit 84, Riverdale, MD 20737-1234; 
(301) 734-7833.

SUPPLEMENTARY INFORMATION:

Background

    The Animal Welfare regulations contained in 9 CFR chapter I, 
subchapter A, part 3 (referred to below as the regulations), provide 
specifications for the humane handling, care, treatment, and 
transportation, by regulated entities, of animals covered by the Animal 
Welfare Act (the Act) (7 U.S.C. 2131, et seq.). The regulations in part 
3 are divided into six subparts, subparts A through F, each of which 
contains facility and operating standards, animal health and husbandry 
standards, and transportation standards for a specific category of 
animals. These categories are: (A) Cats and dogs, (B) guinea pigs and 
hamsters, (C) rabbits, (D) nonhuman primates, (E) marine mammals, and 
(F) animals other than cats, dogs, guinea pigs, hamsters, rabbits, 
nonhuman primates, and marine mammals.
    On May 6, 1997, we published in the Federal Register (62 FR 24611-
24614, Docket No. 95-029-1) a proposal to amend the regulations in 
subparts E and F of the regulations by requiring that perimeter fences 
be placed around outdoor housing facilities for marine mammals and for 
other animals covered by the regulations, other than cats, dogs, guinea 
pigs, hamsters, and rabbits.
    We proposed the following minimum perimeter fence heights:

------------------------------------------------------------------------
                                                               Minimum
                                                              perimeter
                      Type of facility                          fence
                                                                height
                                                                (feet)
------------------------------------------------------------------------
Marine Mammals, other than Polar Bears.....................            6
Polar Bears................................................            8
Other Nondangerous Animals.................................            6
Other Potentially Dangerous Animals........................            8
------------------------------------------------------------------------

    In our proposed rule, we stated that the perimeter fence would act 
as a secondary containment system for the animals in the facility when 
appropriate, reasonably restrict animals and unauthorized persons from 
entering the facilities or having contact with the animals, and prevent 
exposure to diseases. We intended these requirements to protect the 
safety and provide for the well-being of the animals.
    We also proposed a minimum distance of 3 feet between the perimeter 
fence and any primary enclosure to prevent physical contact between 
animals inside the enclosure and animals and persons outside the 
perimeter fence.
    We solicited comments concerning our proposal for 60 days ending 
July 7, 1997. We received 23 comments by that date. They were from 
exhibitors, exhibitor and trade associations, wildlife associations, 
animal parks, humane organizations, and a Federal government agency, 
among others. The comments are discussed below by topic.

Primary Enclosure and Perimeter Fencing

    Several commenters opposed the installation of a perimeter fence 
around each primary enclosure. Some were concerned that the perimeter 
fence would obscure the public's view of the animals or detract from 
the aesthetic draw of the facilities and decrease the number of 
visitors. Another commenter stated that the perimeter fence would 
interfere with the ability of the public to have physical contact with 
animals in petting zoos. One commenter expressed concern that the 
perimeter fence would conflict with the Americans with Disabilities Act 
by impairing access to areas around the primary enclosures.
    We believe these commenters misunderstood the proposal. The 
perimeter fence would surround the area or areas where the outdoor 
housing facilities are located. Each individual primary enclosure would 
not have to be surrounded by a second fence. Therefore, a perimeter 
fence would not obstruct the public's view of the animals, hinder the 
petting of the animals at petting zoos, or impair access to the primary 
enclosures by people with disabilities.

Height of the Perimeter Fence

    One commenter asked how we determined that a perimeter fence should 
be 8 feet high for potentially dangerous animals and 6 feet high for 
marine mammals other than polar bears. This commenter stated that the 
required heights were arbitrary and had no scientific basis. Several 
commenters stated that an 8-foot fence would not provide security 
against the escape of large felines or the entry of unwanted animals or 
people and pointed out that certain animals and people would be

[[Page 56143]]

able to climb the perimeter fence. An additional commenter stated that 
a 3\1/2\- or 4-foot perimeter fence would be sufficient to keep 
unauthorized people away from the animals. Several commenters requested 
alternative security methods to accomplish the goals set out in the 
proposal. Another commenter stated that our rule should allow for 
alternative measures that may not require structural changes to a 
facility.
    Perimeter fences are intended to provide reasonable protection to 
animals from the unauthorized entry of persons and other animals, 
protect animals from exposure to disease, and serve as a secondary 
containment structure if one of the animals escapes from its primary 
enclosure. As indicated in our proposal, perimeter fence requirements 
have been our policy for many years with satisfactory results. The 
perimeter fence height requirements are based on our experience of more 
than 20 years with the protection and secondary containment of animals 
at regulated facilities. Perimeter fences are not designed to prevent 
all escapes or to keep out all persons that are determined to gain 
access to a facility. Some potentially dangerous animals may be able to 
climb or jump over an 8-foot fence. However, these animals' primary 
enclosures should be constructed sufficiently to prevent their escape. 
In the event of an escape, the perimeter fence would act as a secondary 
containment system to impede escape from the facility.
    If a facility wants to use a lower perimeter fence than required by 
the regulations, the lower fence would have to be approved in writing 
by the Administrator. Approval by the Administrator of a lower 
perimeter fence would only be given if the lower fence, in conjunction 
with the facility's alternative security measures, would provide the 
same or an enhanced degree of protection from access by animals and 
unauthorized persons, disease exposure, and animal escape.
    With respect to alternative methods of accomplishing the goals 
identified in the proposal, Sec. 3.103(c)(1) and (c)(2) and 
Sec. 3.127(d)(1) and (d)(2) of this rule offer alternatives to a 
perimeter fence. A perimeter fence is not required if the outside walls 
of the primary enclosure are made of sturdy, durable material, which 
may include certain types of concrete, wood, plastic, metal, or glass, 
and are high enough and constructed in a manner that restricts entry by 
animals and unauthorized persons and the Administrator gives written 
approval. In addition, a perimeter fence is not required if the outdoor 
housing facility is protected by an effective natural barrier that 
restricts the marine mammals or other animals, as the case may be, to 
the facility and restricts entry by animals and unauthorized persons 
and the Administrator gives written approval.
    We agree that there are other alternative security measures a 
facility could employ that would provide the same or an enhanced 
protection. Therefore, in this final rule, Sec. Sec. 3.103(c)(3) and 
3.127(d)(3) provide that a perimeter fence is not required where 
appropriate alternative security measures are employed and the 
Administrator provides written approval.
    In this final rule, we are also replacing the phrase ``impenetrable 
natural barrier'' in Sec. Sec. 3.103(c)(2) and 3.127(d)(2) with the 
phrase ``effective natural barrier.'' An effective natural barrier to 
prevent the entry of unwanted animals and persons is more attainable 
than an impenetrable natural barrier.
    Several commenters stated that the existing requirements for farm 
animals are sufficient as a secondary containment system and as a means 
of preventing the unauthorized entry of animals and people into the 
primary enclosures. These commenters stated that farm animals, such as 
goats, sheep, horses, cows, and donkeys, should be excluded from the 
perimeter fencing requirements.
    We agree that the use of perimeter fencing may not be necessary at 
all times to provide safety to farm animals. Therefore, we have decided 
to add a new paragraph (d)(5) to Sec. 3.127 to provide an exclusion for 
facilities housing only farm animals, such as, but not limited to, 
goats, sheep, horses (for regulated purposes), cows, pigs, or donkeys, 
where effective and customary containment and security measures are in 
place for those animals.
    Several commenters maintained that it was unnecessary to require an 
8-foot perimeter fence, rather than a 6-foot fence, at facilities that 
contain elephants because elephants cannot climb or jump a fence. One 
commenter stated that the height of the fence would not keep elephants 
contained.
    Although elephants do not jump or climb well, they do rear up, and 
we believe that an 8-foot fence is appropriate. Of course, we recognize 
that a lower fence may be adequate in some circumstances. The rule 
provides a procedure for the approval of alternative measures.
    One commenter stated that an 8-foot fence should be required for 
all marine mammals and potentially dangerous animals, mainly to prevent 
the entry of unauthorized persons. Another commenter stated that a 6-
foot fence is sufficient for all animals except large felines, such as 
tigers, lions, leopards, and cougars, and would keep unwanted people or 
animals out. This commenter and several others also stated that there 
may be zoning problems within communities for the placement of fences 
higher than 6 feet.
    A perimeter fence must be high enough to reasonably be expected to 
keep animals and unauthorized persons out of the facility and to act as 
a secondary containment system should an animal escape from its primary 
enclosure. Based on our experience of more than 20 years with the 
protection and secondary containment of animals at regulated 
facilities, a fence measuring at least 8 feet in height is necessary 
for potentially dangerous animals. As we stated in the proposal, 
potentially dangerous animals may be subject to possibly dangerous, or 
lethal, recapture and control methods if they escape captivity. One of 
the purposes of a perimeter fence for potentially dangerous animals is 
to act as a secondary containment system and reduce the possibility 
that the animals will escape from the facility and be harmed during 
recapture and control. We believe that, with the exception of polar 
bears, marine mammals are not considered potentially dangerous animals 
for the purposes of the perimeter fence requirements. Most marine 
mammals are either confined to their pools (cetaceans) or cannot climb 
or jump over a 6-foot fence. Therefore, we do not feel that an 8-foot 
fence is necessary for marine mammals such as seals, sea lions, 
walruses, dolphins, whales, sea otters, or manatees. Moreover, as 
explained earlier, we recognize that a lower fence may be appropriate 
in some circumstances. The rule provides for the use of a lower fence 
with the written approval of the Administrator. If local zoning 
requirements preclude a perimeter fence of the required height, then 
alternative measures would have to be employed.
    Several commenters questioned whether a fence 8 feet in height 
would prevent small animals, such as dogs, skunks and raccoons, from 
tunneling under or climbing over the fence. Some stated that small 
rodents, birds, insects, and bats can transmit disease and would not be 
deterred by the perimeter fence. Another commenter requested 
documentation that demonstrates that the proposed perimeter fence 
requirement would help prevent animals, especially marine mammals, from 
being exposed to disease.

[[Page 56144]]

    We realize that the perimeter fence may not prevent a determined 
animal from entering the facility. We also realize that small rodents, 
birds, insects, and bats may get under or over a perimeter fence and 
transmit diseases. There are a number of ways a facility can deal with 
these issues, including the use of effective pest control programs for 
nuisance or potentially hazardous insects, birds, or other animals. 
This rule is intended to supplement such control measures by minimizing 
exposure to unwanted animals. A perimeter fence will help restrict 
small animals' access to animals in a facility. Exclusion of these 
small animals will help prevent confined animals from being exposed to 
diseases such as rabies and distemper and to vectors such as ticks and 
fleas. The use of a perimeter fence as a disease control measure is 
based on epidemiological considerations, disease transmission theories, 
and our experience of more than 20 years with the protection of animals 
at regulated facilities. Obviously, fencing as a disease control 
measure is more significant in some circumstances than others and 
indeed may be insignificant in some circumstances.
    One commenter requested the number of polar bears that have escaped 
from a facility within the last 5 years. This commenter also wanted to 
know if any polar bears were killed during recapture or control. The 
commenter maintained that the proposed perimeter fence requirements for 
polar bears were overly cautious and unwarranted. Another commenter 
stated that perimeter fencing should be required only if there is a 
known problem or history of problems at the facility.
    We are promulgating this rule, in part, to prevent possible 
problems due to the escape of animals and not as a response to the 
escape of an animal. Our experience of more than 20 years with the 
protection and secondary containment of animals at regulated facilities 
has shown that the use of perimeter fences is effective as a secondary 
containment system and as a means of protecting animals from the entry 
of other animals and unauthorized persons. The purpose of the Animal 
Welfare regulations is to provide for the humane handling, care, 
treatment, and transportation of regulated animals with the intent of 
preventing problems whenever possible rather than waiting for problems 
to occur. We do not believe that polar bears are less dangerous than 
other bears or that they should be treated differently in the context 
of this rule.
    Several commenters requested that the perimeter fence requirements 
apply only to small, urban establishments because a 6-foot perimeter 
fence may draw attention to a facility and prompt unauthorized people 
to attempt to enter the facility. We do not believe that a perimeter 
fence would make a facility less secure and, accordingly, do not adopt 
this suggestion.
    Several commenters asked how APHIS determined that a minimum space 
of 3 feet between the primary enclosure and the perimeter fence was 
sufficient. One commenter stated that the distance was arbitrary, and 
another commenter stated that 3 feet was insufficient to prevent a 
person from sticking a pole or other object through a fence to injure 
an animal or allow adequate room for routine maintenance and repair.
    The proposal identified 3 feet as the minimum distance between the 
perimeter fence and any primary enclosure. This distance is based on 
APHIS' experience at Animal Welfare Act regulated facilities. In 
addition, this distance incorporates the minimum distance that allows 
safe cleaning of the area between the perimeter fence and any primary 
enclosures. This distance also provides sufficient distance to prevent 
casual contact between someone or something outside the perimeter fence 
and the animal within its primary enclosure.
    One commenter stated that the best way to prevent an animal's 
escape is to use double-gated and locked entrances rather than 
perimeter fencing. The commenter also suggested that we require all 
facilities to use double-gated and locked entrances.
    We do not believe it is necessary to require one type of primary 
enclosure containment system. We require all primary enclosures to be 
of sufficient strength to contain the animals. The perimeter fence or 
an approved alternative should be designed to prevent the entry of 
animals and unauthorized persons, protect against disease exposure, and 
act as a secondary containment system.

Temporary Versus Permanent Facilities

    Several commenters questioned whether a perimeter fence is 
necessary only for a permanent facility at which an animal is housed or 
if it is also necessary for locations where traveling animal shows 
temporarily house animals. Some of these commenters maintained that the 
regulations should not include locations where traveling animal shows 
temporarily house animals. One commenter stated that the regulations 
should include requirements for marine mammals in traveling shows.
    The intent of the Act is to provide for the humane handling, care, 
treatment, and transportation of animals covered by the Act at all 
times. This includes animals that are traveling and temporarily housed 
outdoors. The proposed rule applied to all outdoor housing facilities 
for marine mammals and certain other regulated animals, and did not 
exclude temporary traveling facilities. However, for temporary 
traveling facilities, equivalent alternatives may be more practical and 
less burdensome than perimeter fencing. Further, unlike the situation 
for operators of permanent facilities, it would be difficult for 
traveling exhibitors to obtain advance approval for their alternative 
security measures at each site. Accordingly, the proposed rule is 
modified to provide flexibility to traveling facilities. This final 
rule provides in Sec. 3.103(c)(4) for marine mammals and 
Sec. 3.127(d)(4) for certain other animals that alternative security 
measures may be used without prior approval. However, if the 
alternative measures used by the traveling exhibitor are found to be 
insufficient during an inspection, the exhibitor will be required to 
employ compliant alternative measures.
    Several commenters requested clarification regarding the area that 
would need to be enclosed by a perimeter fence. As discussed above, the 
area or areas where animals are in outdoor housing facilities would 
have to be enclosed by one or more fences, unless an exception or 
exemption applies.
    Several commenters asked if ``outdoor facility'' meant outdoor 
activities and stated that the rule should not include outdoor 
activities. The regulation is intended to apply to facilities rather 
than to the activities that may occur within them (or elsewhere). Thus, 
it is not intended that a circus parade, for example, would have to be 
enclosed by a fence. However, the occurrence of an activity, such as a 
performance or other exhibition within a facility, would not remove the 
facility from the requirements of this rule.
    One of the commenters asked if ``outdoor facility'' included a 
permanent facility. Outdoor facilities can be either temporary or 
permanent (traveling facilities have been discussed above).

Exemptions from the Perimeter Fence Requirements

    Several commenters asked how an exemption from the perimeter fence 
requirements could be granted by the Administrator and whether an

[[Page 56145]]

exemption is one-time only or would be granted on an annual basis. One 
commenter asked what occurs in the event that a facility's physical 
environment does not allow the placement of a perimeter fence. An 
additional commenter asked if an APHIS inspector will make a 
recommendation to the Administrator for approval of the exemption.
    If a facility wishes to use a perimeter fence that does not meet 
the regulatory requirements, including, but not limited to, height 
requirements, or if a facility wishes to use alternative security 
measures, the facility must obtain written approval from the 
Administrator. (As discussed above, traveling facilities may employ 
alternative security measures without prior approval.) No particular 
method of requesting approval for alternative fencing, natural 
barriers, or alternative security measures is required. Requests may be 
submitted to the facility's inspector, the regional director for Animal 
Care in the area where the facility is located, or the Deputy 
Administrator for Animal Care. All information relevant to the request 
will be reviewed, including, but not limited to, supporting 
documentation submitted by the facility and any relevant information 
from the APHIS inspector responsible for the facility. Each evaluation 
will take into account the alternative measures proposed, the species 
of the animals involved, and any other relevant information. The 
licensee or registrant will have to demonstrate that the proposed 
alternative measures would accomplish the goals of providing a 
secondary containment system for the animals and of preventing unwanted 
animals and unauthorized persons from gaining access to the animals. 
Because this determination is dependent upon the circumstances of each 
case, approval may not be given for a specified period of time but must 
be reevaluated if the circumstances change or if experience 
demonstrates that the alternative measures are not, in fact, effective.
    One commenter expressed concern that supporting documentation, 
including security plans, submitted with a request for approval of 
alternative fencing or security measures could be subject to disclosure 
under the Freedom of Information Act.
    APHIS recognizes this concern. However, we do not contemplate that 
the request include documentation that, if revealed, would result in 
the defeat of the security measures. If a licensee believes that 
disclosure would pose a problem, the supporting documentation could be 
reviewed on site by the inspector.

Wildlife Reserves

    Several commenters stated that facilities, such as wildlife 
reserves, that maintain animals on very large tracts of land and that 
adequately contain such animals should be exempt from the perimeter 
fence requirements. Another commenter asked whether such a facility 
would need to install two fences, one as a primary enclosure and one 
around the perimeter of its entire acreage. This commenter also asked 
whether the naturally occurring wildlife within the facility would have 
to be destroyed.
    APHIS recognizes the existence of facilities such as wildlife 
reserves where small mammals and hoofed animals such as deer may be 
adequately confined by a fence rather than cages. APHIS also recognizes 
that, in such circumstances, a perimeter fence 3 feet outside the 
enclosure fence would add little to the security of the animals' 
confinement. Further, animals roaming within a very large tract of land 
require little protection from human or animal intruders. Thus, while a 
deer caged in a typical zoo needs protection from human and animal 
intruders, deer in a wildlife reserve would be able to flee unwanted 
contact. As previously noted, this final rule provides alternatives and 
exceptions to perimeter fencing requirements, and it should be possible 
for facilities that consist of large tracts of land to comply with the 
rule without incurring significant additional costs. However, because 
the appropriateness of confining animals (other than farm animals) 
simply by a fence is highly dependent upon the circumstances, it is 
necessary to require that alternative security measures be submitted 
and approved.
    This rule does not require that naturally occurring wildlife be 
eliminated from wildlife reserves. However, each facility is 
responsible for the health and safety of the regulated animals 
maintained on its premises. Facilities that experience problems as a 
result of the naturally occurring wildlife must address such situations 
appropriately.

Marine Mammal Enclosures

    One commenter questioned why a perimeter fence is only necessary 
for the land-side portion of a marine mammal enclosure and not the 
waterside portion to prevent the escape of the captive marine mammals. 
Two commenters questioned the need for the proposed perimeter fence 
requirements for marine mammals. One commenter stated that the proposed 
regulations were redundant. The other commenter pointed out that in 
Sec. 3.101, paragraph (a)(1) already requires that outdoor facilities 
contain the animals and restrict the entrance of unwanted animals, and 
paragraph (a)(2) requires that all marine mammals be protected from 
abuse and harassment by the viewing public by the use of a sufficient 
number of employees or attendants to supervise the viewing public, or 
by physical barriers, such as fences, walls, glass partitions, or 
distance or both. This commenter also referred to language developed by 
the Marine Mammal Negotiated Rulemaking Advisory Committee, which calls 
for lagoons and similar natural seawater facilities to maintain 
effective barrier fences, or other appropriate measures, on all sides 
of the enclosure not contained by dry land. (The proposed rule that 
contains the language developed by the Marine Mammal Negotiated 
Rulemaking Advisory Committee was published in the Federal Register on 
February 23, 1999 (64 FR 8735-8755, Docket No. 93-076-1)).
    We gave careful consideration to these issues when we developed the 
proposed rule. Based upon all available information, we believe that 
the placement of a secondary barrier at natural seawater enclosures 
creates unacceptable risks for the marine mammals contained within 
them. All natural seawater enclosures for marine mammals, like land-
based enclosures, are required to contain the animals within them. This 
includes, among other things, a barrier to prevent escape by contained 
animals and access by unwanted animals. We believe that the placement 
of a secondary barrier in the water has a higher risk of causing a 
marine mammal to become entangled and hurt or drowned. A second barrier 
also could impede the water circulation within the primary enclosure 
and endanger the health of the marine mammals. The placement of a 
perimeter fence around the land portion of a marine mammal facility 
will provide protection from the entry of intruders.
    One commenter maintained that the terms ``lagoon'' or ``natural 
seawater facility'' should replace the term ``sea pen'' to maintain 
consistency with the language used in the marine mammal negotiated 
rulemaking. This commenter also said that the term ``surrounding land'' 
needed clarification.
    We agree that the terms ``lagoon'' and ``natural seawater 
facility'' more accurately reflect current industry terminology. 
Therefore, this final rule uses the term lagoons or other natural

[[Page 56146]]

seawater facilities, rather than sea pens. Also, this final rule refers 
to ``abutting land'' rather than ``surrounding land'' in reference to 
lagoons or other natural seawater facilities that are not surrounded by 
land. The perimeter fence is to be placed around this portion of the 
land for facilities with lagoons or other natural seawater facilities 
and may stop at the shoreline as defined by low tide.

Other Comments

    One commenter asked if the perimeter fence had to be constructed of 
chain link. The rule does not specify the type of materials with which 
the perimeter fence must be constructed. However, the materials must be 
adequate to accomplish the purposes of the fence. For example, 
Sec. 3.125(a) requires that the facility, which would include the 
perimeter fence, ``must be constructed of such material and of such 
strength as appropriate for the animals involved.''
    Several commenters stated that the rule should include a 
``grandfather clause'' so that facilities that do not currently have 
perimeter fencing are not required to install perimeter fencing. As 
noted above, in order to provide flexibility to licensees and 
registrants, the final rule provides alternatives to the use of a 
perimeter fence.
    One commenter stated that an animal's well-being is not measurable 
and that the proposal should be based on measurable standards; however, 
the commenter did not provide further information. We acknowledge that 
well-being may not be tangibly measurable; however, perimeter fencing 
will help prevent animals from being harmed by outside animals or 
unauthorized persons, provide protection against exposure to disease, 
and reduce the risk of the animals being harmed should they escape 
their primary enclosure.
    One commenter asked if bison, elk, emu, and ostriches are included 
under the rule. The Act covers most warm-blooded species used for 
regulated purposes. If elk and bison are maintained for regulated 
purposes in outdoor housing facilities, then these facilities would be 
subject to the provisions of this rule. However, at this time, birds, 
including emu and ostriches, are not covered by the regulations.
    One commenter stated that phrases such as ``potentially dangerous 
animals'' and ``natural barrier'' were too broad or vague and needed 
clarification. This commenter also asked what we considered a public 
zoo. We do not believe that an exhaustive list of every potentially 
dangerous animal would be helpful. We believe that the examples given 
in the rule will be more helpful. We also believe that the meaning of 
the term ``natural barrier'' is clear. As previously noted, this final 
rule uses the term ``effective natural barrier'' rather than the term 
``impenetrable natural barrier.'' Our use of the term ``public zoo'' 
was intended to refer to the common use of the term to indicate a zoo 
that is open to the public.
    Therefore, for the reasons given in the proposed rule and in this 
final rule, we are adopting the proposed rule as a final rule, with the 
changes discussed above, and with other nonsubstantive changes for 
clarity.

Executive Order 12866 and Regulatory Flexibility Act

    This final 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 final rule will amend the Animal Welfare regulations by 
requiring that a perimeter fence be placed around outdoor housing 
facilities for marine mammals and certain other regulated animals.
    Class A and B dealers, Class C exhibitors, registered exhibitors, 
and research facilities are the entities that will be affected by the 
perimeter fence requirement. Class A dealers breed and raise animals to 
sell for research, teaching, or exhibition; Class B dealers include 
brokers and operators of auctions sales for animals; and Class C 
licensees and registered exhibitors include exhibitors such as animal 
acts, carnivals, circuses, and zoos. Research facilities include 
schools, institutions, organizations, or persons who use live animals 
in research, tests, or experiments.
    There are about 4,000 licensed dealers, 2,200 regulated exhibitors, 
and 1,300 registered research facilities. However, the vast majority of 
the licensed dealers are involved only with dogs and cats and would not 
be affected by this rule. Likewise, the vast majority of research 
facilities do not use marine mammals or ``animals other than dogs, 
cats, rabbits, hamsters, guinea pigs, nonhuman primates, and marine 
mammals.'' Further, most of the research facilities that do hold 
animals subject to this final rule would hold farm animals, for which 
this rule imposes only minimal burdens. According to the Small Business 
Administration (SBA) size standards, more than 50 percent of zoos are 
considered large businesses. Although more than 50 percent of the zoos 
are considered large businesses, most exhibitors would be considered 
small businesses. Most dealers in ``exotic animals'' are also small 
businesses.
    This final rule has been modified in several respects in response 
to the comments in order to reduce the burdens on small businesses. 
Also, this rule provides that perimeter fences will not be required 
until 6 months after the effective date of this rule in order to give 
small entities additional time to comply.
    We received several comments regarding the regulatory flexibility 
analysis. These comments are discussed below.
    One commenter requested clarification regarding the relationship 
between wildlife and the Small Business Administration.
    We assume that this commenter is referring to the Regulatory 
Flexibility Act section of the proposed rule where we referenced the 
SBA size standards of zoos. All regulatory actions must be evaluated 
under the Regulatory Flexibility Act for their effect on small 
entities.
    Several commenters stated that the estimated cost of compliance 
that we provided in the regulatory flexibility analysis was too low and 
that installing a perimeter fence would be more burdensome and costly 
than the analysis showed. These commenters stated that the proposal did 
not consider physical limitations of a site or the costs for labor, 
posts, rails, gates, and excavations.
    These comments have been carefully considered, and the final rule 
places a greater emphasis on alternative measures. However, based on 
the comments we received, we realize that our estimate of the cost of 
fencing in the proposal was too low. Based on current prices for fence 
material only, a 6-foot-high, commercial-quality fence would cost 
approximately $2 per linear foot, and an 8-foot-high, commercial-
quality fence would cost approximately $3 per linear foot. For typical 
commercial installation, the cost would be about $10 to $15 per linear 
foot for a 6-foot-high chain link fence and about $14 to $18 per linear 
foot for an 8-foot-high chain link fence. (This would include fencing 
hardware and installation.) However, we expect that most affected 
entities would install the fencing themselves.
    Another commenter expressed concern regarding the economic impact 
on small entities. The commenter maintained that small entities would 
be negatively affected. We believe that the burdens imposed by this 
final rule are both minimal and necessary. Many of the small entities 
affected by the rule would be traveling exhibitors. As

[[Page 56147]]

discussed above, we have provided great flexibility for traveling 
exhibitions.
    One commenter requested the number of large and small entities that 
would be affected by this rule.
    We recognize that this rule will affect each facility, regardless 
of size, to a different degree. We believe that only 10 percent of 
licensed dealers will be affected by this rule because the remaining 90 
percent breed or trade animals, such as dogs and cats, that are not 
subject to this final rule. Most of the dealers who would be subject to 
the rule already have a perimeter fence or other measures that would be 
satisfactory.
    In addition, most research facilities will be unaffected by this 
rule because they do not use outdoor housing facilities. In fact, we 
estimate that greater than 90 percent of research facilities are solely 
indoor facilities. Further, the vast majority of research facilities 
that use animals subject to this rule would be using farm animals for 
which only minimal burdens are imposed by this rule.
    Several commenters stated that the cost of a perimeter fence could 
be quite high. We have taken the cost of perimeter fencing under 
careful consideration. This final rule provides for alternatives to 
perimeter fencing that minimize costs to affected facilities.
    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 will 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

    One commenter disagreed with the estimated burden of information 
collection. The commenter stated that we underestimated the burden 
because some respondents may require approval for alternatives to the 
use of perimeter fencing for more than one outdoor facility.
    Our estimated burden was based on a facility submitting one request 
for approval of alternative fencing or alternative security measures. 
If a facility has multiple sites that are geographically separated and 
wishes to request approval for alternatives to the use of perimeter 
fencing for each site, it may be necessary to submit more than one 
request. However, we believe this scenario would be unusual, and that 
the estimated burden is accurate. In fact, the burden should be 
somewhat less than estimated in the proposed rule because of the 
provisions for exemptions and other changes in this final rule.
    In accordance with section 3507(d) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.), the information collection or 
recordkeeping requirements included in this final rule have been 
approved by the Office of Management and Budget (OMB). The assigned OMB 
control number is 0579-0093.

List of Subjects in 9 CFR Part 3

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

    Accordingly, we are amending 9 CFR part 3 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 3.103 is amended by adding a new paragraph (c) to read 
as follows:


Sec. 3.103  Facilities, outdoor.

* * * * *
    (c) Perimeter fence. On and after May 17, 2000, all outdoor housing 
facilities (i.e., facilities not entirely indoors) must be enclosed by 
a perimeter fence that is of sufficient height to keep animals and 
unauthorized persons out. Fences less than 8 feet high for polar bears 
or less than 6 feet high for other marine mammals must be approved in 
writing by the Administrator. The fence must be constructed so that it 
protects marine mammals by restricting animals and unauthorized persons 
from going through it or under it and having contact with the marine 
mammals, and so that it can function as a secondary containment system 
for the animals in the facility when appropriate. The fence must be of 
sufficient distance from the outside of the primary enclosure to 
prevent physical contact between animals inside the enclosure and 
animals or persons outside the perimeter fence. Such fences less than 3 
feet in distance from the primary enclosure must be approved in writing 
by the Administrator. For natural seawater facilities, such as lagoons, 
the perimeter fence must prevent access by animals and unauthorized 
persons to the natural seawater facility from the abutting land, and 
must encompass the land portion of the facility from one end of the 
natural seawater facility shoreline as defined by low tide to the other 
end of the natural seawater facility shoreline defined by low tide. A 
perimeter fence is not required:
    (1) Where the outside walls of the primary enclosure are made of 
sturdy, durable material, which may include certain types of concrete, 
wood, plastic, metal, or glass, and are high enough and constructed in 
a manner that restricts entry by animals and unauthorized persons and 
the Administrator gives written approval; or
    (2) Where the outdoor housing facility is protected by an effective 
natural barrier that restricts the marine mammals to the facility and 
restricts entry by animals and unauthorized persons and the 
Administrator gives written approval; or
    (3) Where appropriate alternative security measures are employed 
and the Administrator gives written approval; or
    (4) For traveling facilities where appropriate alternative security 
measures are employed.
    3. Section 3.127 is amended by adding a new paragraph (d) to read 
as follows:


Sec. 3.127  Facilities, outdoor.

* * * * *
    (d) Perimeter fence. On or after May 17, 2000, all outdoor housing 
facilities (i.e., facilities not entirely indoors) must be enclosed by 
a perimeter fence that is of sufficient height to keep animals and 
unauthorized persons out. Fences less than 8 feet high for potentially 
dangerous animals, such as, but not limited to, large felines (e.g., 
lions, tigers, leopards, cougars, bobcats, etc.), bears, wolves, 
rhinoceros, and elephants, or less than 6 feet high for other animals 
must be approved in writing by the Administrator. The fence must be 
constructed so that it protects the animals in the facility by 
restricting animals and unauthorized persons from going through it or 
under it and having contact with the animals in the facility, and so 
that it can function as a secondary containment system for the animals 
in the facility. It must be of sufficient distance from the outside of 
the primary enclosure to prevent

[[Page 56148]]

physical contact between animals inside the enclosure and animals or 
persons outside the perimeter fence. Such fences less than 3 feet in 
distance from the primary enclosure must be approved in writing by the 
Administrator. A perimeter fence is not required:
    (1) Where the outside walls of the primary enclosure are made of 
sturdy, durable material, which may include certain types of concrete, 
wood, plastic, metal, or glass, and are high enough and constructed in 
a manner that restricts entry by animals and unauthorized persons and 
the Administrator gives written approval; or
    (2) Where the outdoor housing facility is protected by an effective 
natural barrier that restricts the animals to the facility and 
restricts entry by animals and unauthorized persons and the 
Administrator gives written approval; or
    (3) Where appropriate alternative security measures are employed 
and the Administrator gives written approval; or
    (4) For traveling facilities where appropriate alternative security 
measures are employed; or
    (5) Where the outdoor housing facility houses only farm animals, 
such as, but not limited to, cows, sheep, goats, pigs, horses (for 
regulated purposes), or donkeys, and the facility has in place 
effective and customary containment and security measures.

    Done in Washington, DC, this 8th day of October 1999.
Craig A. Reed,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 99-27135 Filed 10-15-99; 8:45 am]
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