[Federal Register Volume 71, Number 82 (Friday, April 28, 2006)]
[Proposed Rules]
[Pages 25100-25102]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-6421]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 71, No. 82 / Friday, April 28, 2006 / 
Proposed Rules  

[[Page 25100]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 2

[Docket No. APHIS-2005-0118]


Shift Cage Requirements

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 
concerning the handling of animals to require that shift cages be used 
for handling certain species. One of the largest risk factors for 
animal escape and employee and animal injury occurs when it is 
necessary to move, or shift, certain animals between enclosures. 
Requiring shift cages for certain species would mitigate the risk of 
injuries to people and animals as well as ensure safe transport of 
animals between enclosures and exhibits.

DATES: We will consider all comments that we receive on or before June 
27, 2006.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and, in the lower ``Search Regulations and Federal 
Actions'' box, select ``Animal and Plant Health Inspection Service'' 
from the agency drop-down menu, then click on ``Submit.'' In the Docket 
ID column, select APHIS-2005-0118 to submit or view public comments and 
to view supporting and related materials available electronically. 
Information on using Regulations.gov, including instructions for 
accessing documents, submitting comments, and viewing the docket after 
the close of the comment period, is available through the site's ``User 
Tips'' link.
     Postal Mail/Commercial Delivery: Please send four copies 
of your comment (an original and three copies) to Docket No. APHIS-
2005-0118, Regulatory Analysis and Development, PPD, APHIS, Station 3A-
03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state 
that your comment refers to Docket No. APHIS-2005-0118.
    Reading Room: 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.
    Other Information: Additional information about APHIS and its 
programs is available on the Internet at http://www.aphis.usda.gov.

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

SUPPLEMENTARY INFORMATION:

Background

    The Animal Welfare Act (the Act, 7 U.S.C. 2131 et seq.) authorizes 
the Secretary of Agriculture to promulgate standards and other 
requirements governing the humane handling, care, treatment, and 
transportation of certain animals by dealers, research facilities, 
exhibitors, carriers, and intermediate handlers. The Secretary of 
Agriculture has delegated the responsibility of enforcing the Act to 
the Administrator of the Animal and Plant Health Inspection Service 
(APHIS). The regulations established under the Act are contained in 
title 9 of the Code of Federal Regulations (9 CFR), chapter I, 
subchapter A, parts 1, 2, and 3. Regulations regarding handling of 
animals are found in 9 CFR part 2.
    Section 2.131 contains provisions for the humane handling of 
animals. In Sec.  2.131, paragraph (b)(1) states that handling of all 
animals must be done as expeditiously and carefully as possible in a 
manner that does not cause trauma, overheating, excessive cooling, 
behavioral stress, physical harm, or unnecessary discomfort.
    One of the largest risk factors for animal escape and employee and 
animal injury occurs when it is necessary to move, or shift, certain 
animals between enclosures. An increasing number of reports of human 
and animal injuries that have occurred during the movement of certain 
animals between enclosures have led APHIS to focus on ways to mitigate 
such risks and promote safer conditions for animals, their handlers, 
and the public. Therefore, we are proposing to amend the regulations to 
add specific requirements for the handling of certain animals during 
their movement between enclosures.
    Specifically, we propose to add a new paragraph (f) in Sec.  2.131 
that would require the use of shift cages for moving and transporting 
potentially dangerous animals, such as big cats (lions, tigers, pumas, 
jaguars, and cheetahs); all species of bears; great apes (gorillas, 
chimpanzees, orangutans) and other nonhuman primates; and wild or 
exotic canids. While shift cages may vary from facility to facility, 
the shift cages would have to work in such a manner as to safely and 
securely enclose the animal. Shift cages can be permanent, such as the 
connection between two enclosures that can be shut at both ends as can 
be found in zoos, or temporary, such as those used to transport 
animals. In either case, we would require that shift cages attach or be 
attachable to all enclosures or holding pens, cages, or secured areas 
used to hold and/or transport potentially dangerous animals in such a 
way that the animal cannot get through any gaps between the shift cage 
and the enclosure. In addition, the shift cages would have to allow 
handlers access to the animal's primary enclosure without posing a 
threat to the handler.
    Proper maintenance of shift cages is vital in ensuring the safe 
handling of animals and the protection of their handlers. Equipment may 
rust, malfunction, incur damage, or otherwise compromise the security 
of the enclosure. Left unrepaired, such damage may allow an animal to 
escape or result in injury to an animal or handler. Therefore, we would 
also require that the shift cage be structurally sound and maintained 
in good repair to protect the animals from injury and to contain the 
animals.
    Improper handling of shift cages may result in the escape of a 
potentially dangerous animal or injury to the animal, handler, or a 
member of the public. For this reason, it is important that all 
personnel involved in moving or transporting potentially dangerous

[[Page 25101]]

animals understand how to correctly operate all components of the 
facility's shift cage or alternative system equipment. We would require 
that all personnel whose duties include a role in the movement or 
transportation of potentially dangerous animals be trained in the 
proper use of the equipment, and that written protocols for the safe 
transfer of animals be established by the facility.
    Most accredited or well-run facilities already have systems in 
place for the movement of animals between enclosures. As such, this 
proposed rule would also allow for facilities to employ other methods 
as alternatives to shift cages, provided that those alternative methods 
afford the same degree of assurance against animal escapes and for the 
protection of employees and the public. If a facility wishes to employ 
an alternative measure, a description of that method would have to be 
submitted in writing to the appropriate Animal Care regional office and 
would have to receive written approval before the method could be used 
as an alternative.

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.
    In accordance with 5 U.S.C. 603, we have performed an initial 
regulatory flexibility analysis, which is set out below, regarding the 
economic effects of this rule on small entities.
    We are proposing to amend the Animal Welfare Act regulations 
concerning handling of animals to require that shift cages be used for 
handling certain species. One of the largest risk factors for animal 
escape and employee and animal injury occurs when it is necessary to 
move, or shift, certain animals between enclosures. Requiring shift 
cages for certain species would mitigate the risk of injuries to people 
and animals as well as ensure safe transport of animals between 
enclosures and exhibits.
    The primary goal of this proposed rule is to reduce the risk of 
animals escaping or harming other animals or humans. Specifically, the 
proposed regulation would require all enclosures that house these 
animals be connected to other enclosures or holding pens, cages, or 
secured areas by means of shift cages, and that these animals be moved 
using this safety apparatus. We believe this action is necessary to 
decrease the risks of injury and/or death to animals and humans.
    The proposed requirements would primarily affect exhibitors, 
especially small zoos and roadside exhibits. Also affected would be 
some breeders and dealers, as well as research facilities that use 
nonhuman primates and/or big cats. The majority of affected facilities 
would be considered small businesses by Small Business Administration 
(SBA) definitions. Entities with a likelihood of being impacted by this 
rule come under a variety of North American Industry Classification 
System (NAICS) industry groups, and in all of the code groups only a 
fraction of all firms actually engage in the regulated activity. We are 
unable to estimate the number of firms and businesses that may be 
affected, and we welcome public comment that would assist us in making 
this estimation. Specifically, we are interested in information 
regarding the number of establishments that could be affected, 
particularly ones classified within the industry groups identified 
here; the equipment, methods or procedures used by these entities when 
moving animals between enclosures; and the relative prevalence of the 
various types of equipment, methods, or procedures used.
    NAICS code groups of particular interest are 712130 and 712190, 
which include zoos, wild animal parks, petting/roadside zoos, and 
nature parks. A small enterprise under this code is one having $6 
million or less in annual receipts. Also of interest are domestic 
breeders of these animals, which correspond to NAICS code 112990, with 
a small size standard of $750,000 or less in annual receipts. Animal 
dealers and/or independent importers of these animals would fall under 
the catchall NAICS code 424990, with the size standard being 100 or 
fewer employees. For facilities that deal in research with the animal 
species in question, the most applicable NAICS code is 541710, and the 
size standard is 500 or fewer employees.\1\ Again, while only a 
fraction of the firms in each industry code group engage in the 
regulated activity, all of these industries primarily comprise small 
entities.\2\
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    \1\ Table of Size Standards based on NAICS 2002. Washington, DC: 
U.S. Small Business Administration, 2004.
    \2\ Based on information from the SBA, Office of Advocacy, and 
data provided by the U.S. Census Bureau, Statistics of U.S. 
Businesses, small operations comprise more than 70 percent of zoos 
and botanical gardens, more than 80 percent of nature parks and 
other similar institutions, more than 90 percent of animal dealers 
and/or independent importers, and more than 90 percent of research 
facilities that could potentially handle the animals of concern.
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    Compliance with the proposed rule would require the installation of 
shift cages, or similar apparatus, in the event that such equipment is 
not already in use. For those facilities that do not have such a 
mechanism in place, a one-time capital outlay would be required to 
install shift cage equipment and train their personnel in its use. The 
costs of shift cage installation would vary by facility based on what 
is present at the site and how much remodeling would be needed to meet 
the proposed requirements. We welcome comments from potentially 
affected entities and others on the cost of shift cage installation, as 
well as cost associated with training personnel.
    Most accredited and/or well-run facilities already have systems in 
place for movement of animals between enclosures. The proposed rule 
would allow facilities to institute alternative procedures that provide 
the same degree of assurance against animal escapes and protection of 
the employees. In this event, facilities wishing to use alternative 
shift cage mechanisms would need to submit and have approved a written 
application to APHIS. The Agency welcomes information on possible 
alternatives to shift cages and the costs associated with these 
alternatives.
    The alternative to the proposed rule would be to take no action. 
However, the Agency has concluded specific protocols need to be 
instituted and followed in handling animals safely while moving between 
enclosures for the protection of the animals and their handlers. As 
such, the alternative of taking no action would not be a viable option.
    This proposed rule contains various recordkeeping and reporting 
requirements. These requirements are described in this document under 
the heading ``Paperwork Reduction Act.''

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 25102]]

be exhausted prior to a judicial challenge to the provisions of this 
rule.

Paperwork Reduction Act

    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 proposed rule have been 
submitted for approval to the Office of Management and Budget (OMB). 
Please send written comments to the Office of Information and 
Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, 
DC 20503. Please state that your comments refer to Docket No. APHIS-
2005-0118. Please send a copy of your comments to: (1) Docket No. 
APHIS-2005-0118, Regulatory Analysis and Development, PPD, APHIS, 
Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238, 
and (2) Clearance Officer, OCIO, USDA, room 404-W, 14th Street and 
Independence Avenue, SW., Washington, DC 20250. A comment to OMB is 
best assured of having its full effect if OMB receives it within 30 
days of publication of this proposed rule.
    We are proposing to require that the movement of certain animals 
between enclosures and transfers to other areas be accomplished using 
shift cages or approved alternatives. The proposed changes would 
protect the health and well-being of potentially dangerous animals and 
their handlers and care givers. All licensees and registrants holding 
and handling such animals would be required to use shift cages, either 
permanent structures secured to both enclosures or moveable structures, 
such as transport units like rolling cages that attach to the 
enclosures, and have a written protocol available to the handlers for 
the safe and proper use of the equipment. Alternative methods for the 
safe transfer between enclosures or exhibition areas could be used if a 
description of the protocol is submitted to the regional office in 
writing and if it is approved in writing by APHIS.
    We are soliciting comments from the public (as well as affected 
agencies) concerning our proposed information collection and 
recordkeeping requirements. These comments will help us:
    (1) Evaluate whether the proposed information collection is 
necessary for the proper performance of our agency's functions, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of our estimate of the burden of the 
proposed information collection, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the information collection on those who 
are to respond (such as through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology; e.g., permitting electronic 
submission of responses).
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 1.05769 hours per response.
    Respondents: Exhibitors of potentially dangerous animals and a 
small percentage of animal dealers and breeders who handle potentially 
dangerous animals.
    Estimated Annual Number of Respondents: 2,600.
    Estimated Annual Number of Responses per Respondent: 1.
    Estimated Annual Number of Responses: 2,600.
    Estimated Total Annual Burden on Respondents: 2,750 hours. (Due to 
averaging, the total annual burden hours may not equal the product of 
the annual number of responses multiplied by the reporting burden per 
response.)
    Copies of this information collection can be obtained from Mrs. 
Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 
734-7477.

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 proposed rule, please contact Mrs. Celeste 
Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.

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 371.7.

    2. In Sec.  2.131, a new paragraph (f) would be added to read as 
follows:


Sec.  2.131  Handling requirements.

* * * * *
    (f)(1) All enclosures that house, at any time, potentially 
dangerous animals such as, but not limited to, big cats, bears, great 
apes, other nonhuman primates, and wild or exotic canids, must be 
attached to or be attachable to a shift cage (i.e., an enclosure or 
holding pen, cage, or secured area that can be used to hold and/or 
transport a potentially dangerous animal), in such a manner as to 
prevent the animal from escaping through any gaps between the shift 
cage and the enclosure. Potentially dangerous animals must also be 
transported between enclosures and performance areas using shift cages.
    (2) Shift cages must be kept in good working order to allow for the 
proper use of the equipment.
    (3) All personnel whose duties include a role in the movement of 
potentially dangerous animals must be trained in the proper use of 
shift cages, and written protocols for the safe transfer of animals 
using shift cages must be established by the facility and followed by 
personnel involved in the movement of animals. Such protocols must be 
made available to APHIS upon request.
    (4) APHIS will consider alternative methods for the safe transfer 
of animals between enclosures. A description of any such alternative 
method must be submitted in writing to the appropriate APHIS Animal 
Care regional office, and the alternative method must have written 
approval from APHIS before it may be used. APHIS will determine if the 
alternative method meets the intent and requirements of this section.

    Done in Washington, DC, this 24th day of April 2006.
Elizabeth E. Gaston,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. E6-6421 Filed 4-27-06; 8:45 am]
BILLING CODE 3410-34-P