[Federal Register Volume 69, Number 66 (Tuesday, April 6, 2004)]
[Rules and Regulations]
[Pages 17899-17901]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-7738]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Parts 1, 2, and 3

[Docket No. 02-012-2]
RIN 0579-AB51


Animal Welfare; Transportation of Animals on Foreign Air Carriers

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Determination to regulate; confirmation of effective date.

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SUMMARY: On October 10, 2003, the Animal and Plant Health Inspection 
Service published a determination to regulate. The determination to 
regulate notified the public of our intention to begin applying the 
Animal Welfare Act (AWA) regulations and standards for the humane 
transportation of animals in commerce to all foreign air carriers 
operating to or from any point within the United States, its 
territories, possessions, or the District of Columbia to ensure that 
any animal covered by the AWA, whether coming into, traveling from 
point to point in, or leaving the United States, its territories, 
possessions, or the District of Columbia, will be provided the 
protection of the AWA regulations and standards. In this document, we 
are responding to several issues raised in comments submitted by the 
public regarding our determination to regulate and are confirming the 
effective date specified in that document.

EFFECTIVE DATE: The effective date of the determination to regulate is 
confirmed as April 7, 2004.

FOR FURTHER INFORMATION CONTACT: Dr. Jerry DePoyster, Senior Veterinary 
Medical Officer, Animal Care, APHIS, 4700 River Road Unit 84, 
Riverdale, MD 20737-1236; (301) 734-7586.

SUPPLEMENTARY INFORMATION:

Background

    The Animal Welfare regulations contained in 9 CFR chapter I, 
subchapter A, part 3 (referred to below as ``the regulations'') provide 
standards for the humane handling, care, treatment, and transportation, 
by regulated entities, of animals covered by the Animal Welfare Act 
(AWA, 7 U.S.C. 2131 et seq.). The regulations in part 3 are divided 
into six subparts, designated as 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 subparts consist of the following: Subpart A--dogs and 
cats; subpart B--guinea pigs and hamsters; subpart C--rabbits; subpart 
D--nonhuman primates; subpart E--marine mammals; and subpart F--
warmblooded animals other than dogs, cats, rabbits, hamsters, guinea 
pigs, nonhuman primates, and marine mammals. Transportation standards 
for dogs and cats are contained in Sec. Sec.  3.13 through 3.19; for 
guinea pigs and hamsters, in Sec. Sec.  3.35 through 3.41; for rabbits, 
in Sec. Sec.  3.60 through 3.66; for nonhuman primates, in Sec. Sec.  
3.86 through 3.92; for marine mammals, in Sec. Sec.  3.112 through 
3.118; and for all other warmblooded animals, in Sec. Sec.  3.136 
through 3.142.
    A carrier is defined in Sec.  1.1 as ``the operator of any airline, 
railroad, motor carrier, shipping line, or other enterprise which is 
engaged in the business of transporting animals for hire.''
    On October 10, 2003, we published in the Federal Register (68 FR 
58575-58577, Docket No. 02-012-1) a determination to regulate and 
request for comments indicating that we intended to begin applying the 
Animal Welfare Act (AWA) regulations and standards for the humane 
transportation of animals in commerce to all foreign air carriers 
operating to or from any point within the United States, its 
territories, possessions, or the District of Columbia.

[[Page 17900]]

While these AWA regulations and standards have been enforced on U.S. 
air carriers, foreign air carriers, as a matter of policy, have not 
been asked to comply with the regulations, although some have done so 
voluntarily. Our determination to begin regulating foreign air carriers 
was intended to ensure that any animal covered by the AWA, whether 
coming into, traveling from point to point in, or leaving the United 
States, its territories, possessions, or the District of Columbia, will 
be provided the protection of the AWA regulations and standards. In 
that October 2003 document, we stated that our determination to 
regulate would become effective on April 7, 2004, unless substantial 
issues bearing on the effects of this action were brought to our 
attention.
    We solicited comments for 60 days ending December 9, 2003. We 
received 15 comments by that date. They were from a zoo association, an 
animal welfare organization, a purebred dog association, and 
individuals. Most of the commenters favored our determination to 
regulate. One commenter, however, did raise several issues bearing on 
the effects of our action. These issues are discussed below.
    The commenter questioned whether we had the legal authority for 
extending the AWA regulations and standards for the humane transport of 
animals in commerce to all foreign air carriers operating to and from 
the United States. The commenter characterized our determination to 
regulate as an extension of our jurisdiction.
    The AWA, in section 2132, defines ``commerce,'' in part, as trade, 
traffic, transportation, or other commerce between a place in a State 
and any place outside of such State, or between points within the same 
State but through any place outside thereof, or within any territory, 
possession, or the District of Columbia. The AWA regulations in 9 CFR 
1.1 contain a similar definition of ``commerce,'' but one that 
specifically includes commerce between a place in a State and a foreign 
country. Clearly, a foreign carrier transporting animals within the 
United States falls under these definitions of commerce and, therefore, 
may be regulated by the USDA under the provisions of the AWA.
    The commenter also raised questions regarding which program of the 
Animal and Plant Health Inspection Service (APHIS) has jurisdiction in 
matters pertaining to the regulation of animals in transit. The 
commenter suggested that by regulating the movement of animals into and 
out of the United States, the Animal Care unit would, in effect, be 
regulating the importation and exportation of animals, a task that 
normally comes under the purview of APHIS' Veterinary Services program. 
In the view of the commenter, such duplication of responsibility is 
unwarranted, especially during a period of increased fiscal 
constraints.
    We do not agree with the commenter's assertion that our 
determination to regulate will entail a duplication of responsibility 
by Animal Care and Veterinary Services. Imports and exports of various 
animals and animal products are regulated by APHIS's National Center 
for Import and Export (NCIE), a unit of the Veterinary Services 
program. NCIE's mission, as stated on the NCIE Web site, is to work 
with other Federal agencies, States, foreign governments, industry and 
professional groups, and others to enhance international trade and 
cooperation while preventing the introduction into the United States of 
dangerous and costly pests and diseases. Animal Care, on the other 
hand, sees its mission as providing leadership in establishing, 
disseminating, and enforcing acceptable standards of humane animal care 
and treatment. Thus, while NCIE's animal movement regulations are 
geared toward preventing the spread of animal diseases, those 
promulgated by Animal Care aim to ensure that animals are treated 
humanely while in transit.
    The commenter also argued that extending our enforcement of the AWA 
regulations to foreign air carriers may result in jurisdictional 
overlap with the U.S. Fish and Wildlife Service (USFWS), which has the 
responsibility under the Lacey Act to ensure that humane and healthful 
shipping standards are maintained for animals in transit. Our October 
2003 determination to regulate, the commenter noted, did not discuss 
how we will coordinate our expanded activities with the activities of 
the USFWS.
    Animal Care acknowledges that, as a result of our determination to 
regulate, there may be a potential for some jurisdictional overlap 
between Animal Care and the USFWS in regard to regulating the air 
transport of warmblooded animals, including traditional zoo animals. 
Such overlap will be limited, however, to the air transport of 
warmblooded wildlife into the United States. While Animal Care 
regulates warmblooded animals, including dogs and cats and other 
domesticated animals, under the AWA, the USFWS regulates both 
warmblooded and non-warmblooded wildlife.
    Animal Care and the USFWS have had overlapping jurisdiction over 
animals on domestic carriers under the AWA and the Lacey Act since the 
1976 amendments to the AWA. Animal Care and the USFWS have established 
lines of communication to address issues that may arise. Whatever 
overlap has existed has not resulted in problems in ensuring the humane 
treatment of animals on U.S. domestic carriers or on the several major 
foreign carriers that have voluntarily registered themselves with APHIS 
and agreed to be subject to the AWA regulations, nor have there been 
complaints from the public or from agency personnel. Given this 
history, APHIS believes that extending enforcement of the AWA 
regulations to all foreign carriers operating within the United States, 
its territories, possessions, or the District of Columbia should not 
result in enforcement problems or interagency conflict.
    The commenter also questioned the need for our determination to 
regulate on the grounds that the requirements of the International Air 
Transport Association (IATA) already apply to most, if not all, air 
carriers. The commenter further argued that rather than extending our 
enforcement of the regulations to foreign carriers, we should focus on 
bringing the AWA standards and regulations more into line with those of 
IATA. The commenter viewed IATA's species-specific requirements for 
crates and temperature ranges as preferable to what he characterized as 
our ``one-size-fits-all'' regulatory approach.
    The IATA requirements are applicable throughout much of the world 
and would likely provide an effective means of ensuring the welfare of 
animals in transit if universally enforced. The USFWS has incorporated 
IATA container requirements for live animals into its regulations, 
``Standards for the Humane and Healthful Transport of Wild Mammals and 
Birds to the United States (50 CFR part 14, subpart J). However, IATA 
requirements are not otherwise Federal regulations and do not have the 
force of law. Except as provided by the USFWS regulations, adherence to 
IATA requirements is strictly voluntary and airlines are not subject to 
sanctions for noncompliance. The USDA regulations are mandatory for 
animals covered by the AWA, which, as noted, include warmblooded 
animals not covered by USFWS regulations, and violators may face civil 
or criminal penalties. We believe, therefore, that the AWA regulations 
offer such animals in transit more protection against mistreatment or 
neglect than do the IATA requirements.
    The final concern expressed by this commenter was that APHIS' 
Animal Care unit does not have the fiscal or

[[Page 17901]]

human resources to adequately inspect foreign air carriers for AWA 
compliance. We believe that by being able to conduct inspections and to 
impose penalties and/or fines on any air carrier that does not comply 
with the AWA regulations for animals in transit, we can encourage most 
air carriers to place greater emphasis on ensuring that animals are 
transported humanely.
    Therefore, for the reasons given in our earlier determination to 
regulate and in this document, we are confirming April 7, 2004, as the 
date we intend to begin applying the AWA regulations and standards for 
the humane transportation of animals in commerce to all foreign air 
carriers operating to or from any point within the United States, its 
territories, possessions, or the District of Columbia.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.), the information collection or recordkeeping requirements 
included in this determination to regulate have been approved by the 
Office of Management and Budget (OMB) under OMB control number 0579-
0247.

Government Paperwork Elimination Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the Government Paperwork Elimination Act (GPEA), which 
requires Government agencies in general to provide the public the 
option of submitting information or transacting business electronically 
to the maximum extent possible. For information pertinent to GPEA 
compliance related to this determination to regulate, please contact 
Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at 
(301) 734-7477.

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

    Done in Washington, DC, this 1st day of April, 2004.
Peter Fernandez,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 04-7738 Filed 4-5-04; 8:45 am]
BILLING CODE 3410-34-P