[Federal Register Volume 66, Number 2 (Wednesday, January 3, 2001)]
[Rules and Regulations]
[Pages 236-239]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-57]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 2

[Docket No. 98-065-2]


Animal Welfare; Confiscation of Animals

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the Animal Welfare Act regulations to allow us 
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 the Animal and Plant Health Inspection 
Service, 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 will facilitate the relocation of confiscated animals and 
minimize the amount of time neglected, sick, or injured animals stay in 
unhealthy situations.

EFFECTIVE DATE: February 2, 2001.

FOR FURTHER INFORMATION CONTACT: Dr. Jerry DePoyster, Senior Veterinary 
Medical Officer, Animal Care, APHIS, 4700 River Road Unit 84, 
Riverdale, MD 20737-1234; (301) 734-7586.

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

[[Page 237]]

contained in 9 CFR parts 1, 2, and 3 (referred to below as the 
regulations). 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.
    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 
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.
    Prior to this final rule, Sec. 2.129(c) provided 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. Further, Sec. 2.129(c) provided that the 
confiscated animals could be euthanized by APHIS or the receiving 
facility. Paragraph (c) also provided that the dealer, exhibitor, 
intermediate handler, or carrier from whom the animals were confiscated 
was responsible for all costs associated with the placement or 
euthanasia of the animals.
    On May 28, 1999, we published a proposal in the Federal Register 
(64 FR 28940-28942, Docket No. 98-065-1) to amend Sec. 2.129(c) to 
specifically 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. We proposed this change to 
increase the options for APHIS when placing confiscated animals and, 
therefore, allow neglected, sick, or injured animals to be removed more 
quickly from situations detrimental to their health and well-being.
    We solicited comments concerning our proposal for 60 days ending 
July 27, 1999. We received 19 comments by that date. The comments were 
from an association representing veterinarians, a State agriculture 
department, animal humane associations, an association of animal 
owners, and private citizens. One commenter opposed the proposal. 
Thirteen commenters supported the proposal as written. The remaining 
commenters raised issues that are discussed below.
    One commenter stated that the regulations should specify how APHIS 
will evaluate whether a person or facility that is not licensed by or 
registered with APHIS can offer an acceptable level of care. Another 
commenter stated that we should monitor and control facilities that are 
not licensed by or registered with APHIS to ensure that they are able 
to provide a level of care equal to or exceeding that required by the 
regulations.
    We do not believe that evaluation criteria should be included in 
the regulations. Prior to the placement of a confiscated animal, we 
will, of course, look at the ability of the person or facility to 
provide adequate security, containment, and care of the animal. Because 
the circumstances of potential confiscations are variable and 
unpredictable as to the kinds and numbers of animals and their 
condition and needs, it would not be appropriate to limit our ability 
to act.
    As to monitoring and controlling facilities that are not licensed 
by or registered with APHIS, we do not have the authority to apply the 
requirements of the AWA to persons or facilities that are not licensed 
by or registered with APHIS. However, we believe that our evaluation of 
the suitability of a person or facility, prior to the placement of the 
animals, will ensure that the person or facility can provide a level of 
care equal to or exceeding that required by the regulations. There are 
a limited number of persons and facilities that are licensed by or 
registered with APHIS and that are willing to accept confiscated 
animals. This change in our regulations will benefit confiscated 
animals by giving us more flexibility in relocating them.
    One commenter stated that persons who accept confiscated animals 
should be licensed by a State or local government to provide care for 
animals, such as wildlife rehabilitators, and that facilities should be 
duly incorporated humane societies, societies for the protection of 
animals, or other legal entities established for similar purposes. An 
additional commenter suggested that we remove all references to 
``persons'' and require facilities to be duly incorporated private 
organizations registered as charitable humane organizations under 
Federal and State law or operated by local governments for animal 
impoundment and control purposes.
    Humane societies are obviously likely choices for the placement of 
confiscated animals. However, we do not believe that a person or 
facility needs to be licensed by or registered with a State or local 
government to provide a level of care equal to or exceeding that 
required by our regulations.
    One commenter stated that APHIS should maintain a record of where 
confiscated animals are placed and require the receiving facility 
(licensed/registered or not) to notify APHIS when the facility 
transfers the animals or has them euthanized, especially in the case of 
wild and exotic animals.
    We will maintain a record of where the animals are placed after 
they are confiscated. Persons and facilities that are licensed by or 
registered with APHIS are required to keep records of the animals on 
their premises, including animals that we place with them, in 
accordance with Sec. Sec. 2.75 and 2.77.
    We do not have the authority to impose requirements on persons or 
facilities that are not subject to the AWA, and we cannot require them 
to apprise us of the disposition of the animals. However, as stated in 
the proposal, we expect the types of unregistered or unlicensed 
facilities most likely to accept confiscated animals are animal 
shelters run by humane societies, and most animal shelters maintain 
records regarding the disposition of animals that were on their 
premises.
    One commenter stated that we should stipulate that entities that 
accept confiscated animals may not place such animals in research 
situations, and, in the case of wild and exotic animals, that the 
entities must place them in facilities licensed by or registered with 
APHIS.
    Most of the small number of confiscations that APHIS performs 
involve dog breeders, and because many of the confiscated animals are 
in poor health, they would not be good research subjects. However, when 
a person or facility accepts ownership of a confiscated animal, the 
person or facility is responsible for the disposition of the animal, 
including the future placement of the animal. If the person or facility 
is licensed by or registered with APHIS, future placement or 
disposition of the animal must be in accordance with the regulations. 
We believe that it is highly unlikely that any confiscated animal would 
eventually be used in research. The ability to place confiscated 
animals with humane societies and other institutions and persons not 
regulated under the AWA makes such a possibility even less likely.

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    In some cases, APHIS may place wild or exotic animals at animal 
sanctuaries. For instance, sanctuaries are being created for nonhuman 
primates and elephants because these animals are difficult to place, 
especially if they are in poor health or condition. The development of 
these sanctuaries will assist us in our efforts to place confiscated 
nonhuman primates and elephants.
    One commenter stated that the regulations should require the 
dealer, exhibitor, intermediate handler, or carrier from whom the 
animal is confiscated to bear all of the initial medical costs and 
other expenses incurred by the facility that accepts the confiscated 
animal.
    The regulations at Sec. 2.129(d) require the dealer, exhibitor, 
intermediate handler, or carrier from whom the animals are confiscated 
to bear all costs incurred in performing the placement or euthanasia 
activities authorized in Sec. 2.129. However, we have found that in 
most cases the neglect of the animals that we confiscate is directly 
due to the owner of the animals not having sufficient funds to properly 
care for the animals. In fact, at times, APHIS has assumed the 
associated costs for the care or euthanasia of confiscated animals when 
the dealer, exhibitor, intermediate handler, or carrier from whom the 
animals were confiscated was unable to pay these costs. Therefore, 
compensation for the initial medical costs and other expenses incurred 
by the person or facility that accepts the confiscated animal may not 
be possible in all cases. If a person or facility accepts a confiscated 
animal, the person or facility will be responsible for all future costs 
incurred for the animal that are not covered under Sec. 2.129(d) by the 
person or facility from whom the animal was confiscated. APHIS will 
make the person or facility aware of that responsibility at the time 
that the person or facility agrees to accept the animal.
    One commenter stated that if an animal is to be placed with an 
entity that is not licensed by or registered with APHIS, we should 
clarify who is liable for the actions of the confiscated animal, 
especially if the animal bites someone, so that the receiving entity is 
informed at the time of agreement to accept the animal.
    The person or facility that accepts the confiscated animal will be 
liable for the actions of the animal regardless of whether the person 
or facility is licensed by or registered with APHIS.
    One commenter stated that we should stipulate that an APHIS 
veterinarian will be involved in the decisionmaking process for 
approval of the placement of confiscated animals or euthanasia of 
animals that are not or cannot be placed, and if an APHIS veterinarian 
is not available, the State animal health official will be included in 
the decisionmaking process.
    At least one or more APHIS veterinarians will be involved in the 
decisionmaking process for the placement of confiscated animals or 
their euthanasia, and we do not consider it necessary to add such a 
stipulation to the regulations.
    One commenter stated that, rather than confiscate the animals, we 
should allow the animals to remain in their original facilities because 
APHIS inspectors will have access to the facilities and will, 
therefore, be able to monitor the progress of the animals. This 
commenter added that APHIS cannot ensure that a facility offers a level 
of care that is equal to or exceeds that required by the regulations if 
the facility is not licensed or inspected by APHIS.
    We confiscate animals to remove them from a premises or facility 
when the licensee or registrant has demonstrated a lack of ability or 
willingness to provide adequate care. We will continue to do this when 
it is in the best interests of the animals.
    One commenter stated that animals placed at humane societies would 
be cared for by personnel who are not equipped to handle the animals 
and that the proposal would subject animals to substandard care and/or 
euthanization. This commenter stated that private owners are more 
likely to locate suitable people for an animal that is not considered 
an ideal pet by the humane society.
    We do not share these fears of humane societies. In fact, we have 
had great success in the placement of animals with humane societies in 
potential confiscation situations where dealers voluntarily gave up the 
animals.
    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule, without 
change.

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.
    We are amending 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 will increase the 
options for APHIS when placing confiscated animals and will, 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. Prior to 
this final rule, the regulations allowed APHIS to 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.
    This rule will make the task of finding an adequate facility for 
confiscated animals faster and simpler, which will 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 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 rule are animal shelters run by humane 
societies. The number of humane societies that are small entities under 
the Small Business Administration's (SBA) standards is 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 no 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 regional 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). In addition, there are a number of shelters

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run by other incorporated charitable organizations established for the 
purpose of preventing cruelty to animals.
    One commenter stated that our analysis in the proposed rule of the 
potential economic effects of the rule contained an error. In the 
analysis, we stated that there are at least 121 known humane societies 
in 35 States. The commenter stated that there are over 3,000 
incorporated, charitable organizations established for the purpose of 
preventing cruelty to animals and that these organizations exist in all 
50 States and can have names such as humane society, society for the 
prevention of cruelty to animals, animal welfare league, or pet 
protection league. The commenter added that there are several thousand 
municipally operated animal shelters that are exempt from licensing 
requirements under the AWA and that are willing to house confiscated 
animals in special cases.
    The number we provided in our analysis was the number of regional 
humane societies known to us and listed by State. We are aware that 
there are a number of organizations other than humane societies. We 
agree that if we had referred to all incorporated charitable 
organizations established for the purpose of preventing cruelty to 
animals, the number of organizations would be significantly larger than 
121.
    APHIS confiscates animals only once or twice a year. Adoption of 
this rule will expedite relocation of any confiscated animals. It is 
likely that the receiving facilities, as noted above, will 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 will be 
responsible for the future costs incurred for the care of those animals 
while at the facility. However, as noted, APHIS needs to place 
confiscated animals only once or 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 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

    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 are amending 9 CFR part 2 as follows:

PART 2--REGULATIONS

    1. The authority citation for part 2 is revised to read as follows:

    Authority: 7 U.S.C. 2131-2159; 7 CFR 2.22, 2.80, and 371.7.

    2. In Sec. 2.129, paragraph (c) is revised and a new paragraph (d) 
is 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 26th day of December 2000.
Craig A. Reed,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 01-57 Filed 1-2-01; 8:45 am]
BILLING CODE 3410-34-P