Animal Welfare; Licensing and Records

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 2

[Docket No. 92-158-2]

Animal Welfare; Licensing and Records

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

dealers, exhibitors, and operators of auction sales who apply for

license renewal to certify that, to the best of their knowledge and

belief, they are in compliance with the regulations before a renewal is

issued. We are also amending the regulations to require dealers and

exhibitors to use certain forms to make, keep, and maintain the animal

identification records required by the regulations, unless a variance

has been granted that would allow the use of a computerized

recordkeeping system that has been determined by the Administrator to

meet the requirements of the regulations. These changes will help

ensure that applicants for license renewal are in compliance with the

regulations and that dealers and exhibitors keep accurate and complete

records, thus promoting compliance with the Animal Welfare Act.

EFFECTIVE DATE: April 14, 1995.

FOR FURTHER INFORMATION CONTACT: Dr. Debra E. Beasley, Senior Staff

Veterinarian, Animal and Plant Health Inspection Service, Regulatory

Enforcement and Animal Care, Animal Care, 4700 River Road Unit 84,

Riverdale, MD 20737-1234; (301) 734-7833.

SUPPLEMENTARY INFORMATION:

Background

The Animal Welfare regulations contained in 9 CFR part 2 (referred

to below as the regulations) pertain to the administrative and

institutional responsibilities of regulated persons under the Animal

Welfare Act (7 U.S.C. 2131, et seq.) (the Act).

On December 28, 1993, we published in the Federal Register (58 FR

68559-68561, Docket No. 92-158-1) a proposal to amend the regulations

to require that an applicant for license renewal certify that, to the

best of the applicant's knowledge and belief, he or she is in

compliance with the regulations and standards and agrees to continue to

be in compliance upon issuance of a renewed license. In that same

document, we also proposed to amend the regulations to require dealers

and exhibitors to use Veterinary Services (VS) Form 18-5, ``Record of

Dogs and Cats on Hand,'' and VS Form 18-6, ``Record of Disposition of

Dogs and Cats,'' to make, keep, and maintain the information required

by Sec. 2.75(a)(1) of the regulations. We also proposed to add Animal

and Plant Health Inspection Service (APHIS) form numbers in front of

the VS form numbers that appear in several places in the regulations.

We solicited comments concerning our proposal for a 60-day comment

period ending February 28, 1994. We received 11 comments by that date.

The comments were submitted by a scientific society, animal breeders

and distributors, humane and animal rights organizations, and private

citizens. We carefully considered all of the comments we received. They

are discussed below by topic.

Recordkeeping

Comment: The use of VS Forms 18-5 and 18-6 should remain optional

since many facilities have accurate and efficient computerized

recordkeeping systems. The forms that APHIS proposes to require are

cumbersome, repetitive, and outdated and they do not provide spaces for

all the information that is required by the regulations.

Response: We understand that many dealers and exhibitors,

especially the larger operations, may be using computerized systems to

make, keep, and maintain the records required by Sec. 2.75(a)(1) of the

regulations. Because it would be difficult for some dealers and

exhibitors to switch over to a paper system, we have added a provision

to the regulations that will enable a dealer or exhibitor to apply for

a variance from the requirement to use VS Forms 18-5 and 18-6. If APHIS

determines that a dealer or exhibitor is maintaining a computerized

recordkeeping system that is adequate to keep the required information,

a variance will be granted. An appeal procedure is also included for

dealers or exhibitors who have had their request for a variance denied.

The variance is an option only for those dealers and exhibitors who are

using a computerized recordkeeping system; a variance will not be

granted for alternative paper records. With regard to the complaint

that the forms are outdated, APHIS is currently developing updated

forms that reflect the requirements of the regulations. The updated

forms will be distributed as supplies of the existing forms are

depleted.

License Renewal

Comment: The proposed certification will be effective only if it

supports APHIS in denying the license renewal applications of

facilities not in compliance with the regulations and standards.

Otherwise, the certification will not encourage compliance any more

than the statement that applicants are currently required to sign.

Response: The regulations in Sec. 2.5 state that a license will be

renewed if, before the expiration of the license, the licensee files an

application for license renewal, submits an annual report as required

by Sec. 2.7, and pays the required fees. There are no provisions in the

regulations for denying a license renewal application as long as the

licensee has complied with those requirements. However, as provided in

Sec. 2.1(f) of the regulations, a person who fails to comply with any

provision of the Act or any provision of the regulations and standards

shall be liable to having his or her license suspended or revoked.

Comment: If a facility was in the process of correcting a

deficiency, it would be unable to certify that it is in compliance with

the regulations and standards until the deficiency was completely

corrected, which could take up to 30 days or even longer. Similarly, it

would be difficult for a licensee with more than one facility to be

certain that all his or her facilities were, at any given time, in

compliance with the regulations and standards. The delays that could

result from having to be certain that all the regulations and standards

had been satisfied could cause a facility to miss its deadline for

license renewal.

Response: If a licensee who had been cited for a deficiency was

actively working to correct that deficiency, APHIS would be aware--or

could be informed--that the licensee was addressing the problem and was

making a good-faith effort to comply with the regulations. Such a

situation would be no reason for a licensee to delay filing a license

renewal application. With regard to the example of a licensee with more

than one facility, it is the responsibility of a licensee, either

personally or through his or her [[Page 13894]] employees, to ensure

that each facility is maintained and operated in compliance with the

regulations. If a licensee is aware of a deficiency in one of his or

her facilities, it is incumbent upon the licensee to address the

deficiency in order to remain in compliance with the regulations.

Having responsibility for more than one facility is not an excuse for

knowingly operating in violation of the regulations and standards.

Comment: Prior to 1979, APHIS allowed license applicants to submit

an affidavit stating that their premises, facilities, and equipment

were in compliance with the regulations and standards, in lieu of an

APHIS inspection. However, in 1979, APHIS amended the regulations to

remove the applicant affidavit method of ascertaining compliance

because of misrepresentation and misuse of the method by some

applicants. In light of that experience, there does not appear to be

any advantage to requiring license applicants to agree to comply with

the regulations and standards. Therefore, if APHIS finalizes its

proposed certification requirement in Sec. 2.2, the text of Sec. 2.2

must contain a reference to the inspection provisions of Sec. 2.3.

Response: The proposed certification requirement was not presented

as an alternative means of ascertaining compliance or as a substitute

for inspections. The certification requirement will have no effect on

the provisions of Sec. 2.3, which requires applicants for an initial

license or license renewal to make their animals, premises, facilities,

vehicles, equipment, other premises, and records available for

inspection so that an APHIS inspector may ascertain the applicant's

compliance with the standards and regulations.

Comment: It is unclear how APHIS intends licensees to certify that

they are in compliance. A simple statement would be ineffective, and

any documented statement would entail the use of lengthy forms, which

impose a significant additional paperwork burden on licensees. Either

way, new regulations are no substitute for APHIS performing rigorous

inspections.

Response: As described in the proposed rule, an applicant for

license renewal would certify that he or she is, to the best of the

applicant's knowledge and belief, in compliance with the regulations

and standards and agrees to continue to comply with the regulations and

standards by signing the application form, which will contain a

statement to that effect. The certification will not necessitate the

use of lengthy forms or the imposition of significant additional

paperwork burdens. As mentioned above, APHIS does not intend for the

certification to take the place of inspections.

Comment: The proposed certification requirement should help

encourage compliance. However, to promote even greater compliance, the

certification should actually take the form of an affidavit, signed by

the applicant, stating that the applicant has read the Act, its

amendments, and the applicable regulations and standards in their

totality and understands their contents fully. Further, the applicant

should verify that he or she is in compliance with, and will continue

to comply with, the Act and its implementing regulations and standards.

The applicant should have to have paid any outstanding fines levied by

the USDA for violations of the Act. Additionally, the application

should include a warning stating that, under 18 U.S.C. 1001, anyone

making a false, fictitious, or fraudulent statement on the application

could be subject to a fine of $10,000 and 5 years in prison.

Response: We believe that an affidavit would accomplish no more

than the signed statement currently required. Similarly, because APHIS

already supplies each applicant a copy of the applicable regulations

and standards, we do not believe that supplying a copy of the Act and

its amendments would add to an applicant's knowledge of his or her

responsibilities, which are spelled out in the regulations and

standards. Because a person who fails to comply with the Act or the

regulations and standards is liable to having his or her license

suspended or revoked, it is in each licensee's best interests to know

what is required of him or her. We cannot, however, reasonably require

a person to swear that he or she has read the Act, its amendments, and

the applicable regulations and standards in their totality and

understands their contents fully. With regard to denying renewals to

persons with unpaid fines, we stated above that the regulations make no

provision for the denial of a license renewal as long as the licensee

filed an application for license renewal on time, submitted an annual

report as required by Sec. 2.7, and has paid the required fees. Other

avenues are utilized by APHIS to collect unpaid fines. Finally, the

commenter mentioned the penalties provided under 18 U.S.C. 1001. Those

penalties can be applied in matters within the jurisdiction of APHIS,

and we will post a warning to that effect on the license renewal

application form that we are developing.

Addition of APHIS Form Numbers

Three commenters mentioned our proposal to add APHIS form numbers

in front of the VS form numbers that appear in several places in the

regulations. Each of those commenters supported the proposed change.

Comments Outside the Scope of This Rulemaking

One commenter strongly supported the mandatory use of VS forms, but

added that a photograph of each individual dog or cat should be

required as part of the record. Similarly, another commenter suggested

that additional information be required, such as a second piece of

identification, a notarized verification of exempt status and a signed

statement, when applicable, verifying that a random-source animal was

held for the mandated period. However, the proposed rule did not

propose any changes to the type of information that dealers and

exhibitors must keep as part of the required animal identification

records. Rather, we proposed that specific forms be used to record and

maintain the information already required by the regulations in

Sec. 2.75(a)(1). Because of this, such comments are outside the scope

of the proposed rule and no changes have been made in this final rule

as a result of those comments. Any such changes would have to be

proposed as part of a separate proposed rule.

Other commenters submitted comments concerning individual

identification of animals, the definitions of Class A and B dealers,

requiring the use of other forms, individually notifying licensees of

proposed rules and other regulatory actions, and the development of new

forms. Again, such comments are outside the scope of the proposed rule

and, therefore, no changes have been made in this final rule as a

result of those comments. Any such changes would have to be proposed as

part of a separate proposed rule.

Therefore, based on the rationale set forth in the proposed rule

and in this document, we are adopting the provisions of the proposal as

a final rule, with the changes discussed in this document.

Miscellaneous

As mentioned above, APHIS is currently developing an updated

version of VS Form 18-5, ``Record of Dogs and Cats on Hand.'' The

updated form includes new spaces for the recording of information

pertaining to the acquisition of the dogs or cats

[[Page 13895]] covered by the form. To reflect the inclusion of the new

spaces, VS Form 18-5 has been renamed ``Record of Acquisition and Dogs

and Cats on Hand.'' The two places in the regulations where the title

of VS Form 18-5 is mentioned--in Secs. 2.35(d)(1) and 2.75(a)(2)--have

been amended in this document to reflect the title change.

We have slightly adjusted the language of Sec. 2.2(b) for the

purpose of greater clarity.

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 purpose of Executive

Order 12866 and, therefore, has not been reviewed by the Office of

Management and Budget.

We are amending the Animal Welfare regulations to require

applicants for license renewal to certify that they are in compliance

with the regulations before a renewal is issued. We are also amending

the regulations to require dealers and exhibitors to use certain forms

to make, keep, and maintain the animal identification records required

by the regulations. These changes will help ensure that applicants for

license renewal are in compliance with the regulations and that dealers

and exhibitors keep accurate and complete records. We do not expect

there to be an economic impact on any entities, large or small, that

will be affected by these changes in the regulations.

Because all licensees are currently required to operate in

compliance with the regulations, the requirement for license renewal

applicants to certify that they are in compliance with the regulations

will have no effect in terms of increased operational costs or burdens.

Similarly, requiring dealers and exhibitors to use VS Form 18-5 and VS

Form 18-6 to make, keep, and maintain the required animal

identification records will involve no new costs or burdens. Dealers

and exhibitors are already required to keep the records, so they will

not have to gather or record any new information in order to complete

the forms. The forms are provided by APHIS to dealers and exhibitors

free of charge, and we will not require any existing records to be

converted over to the new forms. Additionally, a dealer or exhibitor

who wished to do so could obtain a variance from the requirement to use

the forms if the computerized recordkeeping system has been determined

by the Administrator to meet the requirements of the regulations.

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 12778

This final rule has been reviewed under Executive Order 12778,

Civil Justice Reform. It is not intended to have retroactive effect.

This rule does 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

In accordance with the Paperwork Reduction Act of 1980 (44 U.S.C.

3501 et seq.), the information collection or recordkeeping requirements

included in this final rule have been submitted for approval to the

Office of Management and Budget.

List of Subjects in 9 CFR Part 2

Animal welfare, Pets, Reporting and recordkeeping requirements,

Research.

Accordingly, 9 CFR part 2 is amended as follows:

PART 2--REGULATIONS

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

Authority: 7 U.S.C. 2131-2159; 7 CFR 2.17, 2.51, and 371.2(g).

2. Section 2.2 is revised to read as follows:

Sec. 2.2 Acknowledgment of regulations and standards.

(a) Application for initial license. APHIS will supply a copy of

the applicable regulations and standards to the applicant with each

request for a license application. The applicant shall acknowledge

receipt of the regulations and standards and agree to comply with them

by signing the application form before a license will be issued.

(b) Application for license renewal. APHIS will supply a copy of

the applicable regulations and standards to the applicant for license

renewal with each request for a license renewal. Before a license will

be renewed, the applicant for license renewal shall acknowledge receipt

of the regulations and standards and shall certify by signing the

application form that, to the best of the applicant's knowledge and

belief, he or she is in compliance with the regulations and standards

and agrees to continue to comply with the regulations and standards.

Sec. 2.5 [Amended]

3. In Sec. 2.5, paragraph (b), the first sentence is amended by

adding the words ``APHIS Form 7003/'' immediately before the words ``VS

Form 18-3''.

Sec. 2.35 [Amended]

4. In Sec. 2.35, paragraph (d)(1) is amended by adding the words

``APHIS Form 7001/'' immediately before the words ``VS Form 18-1''; by

adding the words ``Acquisition and'' before the words ``Dogs and Cats

on Hand''; and by adding the words ``APHIS Form 7005/'' immediately

before the words ``VS Form 18-5''.

5. In Sec. 2.35, paragraph (d)(2) is amended by adding the words

``APHIS Form 7001/'' immediately before the words ``VS Form 18-1'' and

by adding the words ``APHIS Form 7006/'' immediately before the words

``VS Form 18-6''.

Sec. 2.38 [Amended]

6. In Sec. 2.38, paragraph (h)(3) is amended by adding the words

``APHIS Form 7001/'' immediately before the words ``VS Form 18-1''.

7. In Sec. 2.38, paragraph (i)(3), the beginning of the second

sentence is amended by removing the words ``Veterinary Services'' and

adding the words ``APHIS Form 7009/VS'' in their place.

8. Section 2.75 is amended as follows:

a. Paragraph (a)(2) is revised to read as set forth below.

b. In paragraph (a)(3), the words ``APHIS Form 7001/'' are added

immediately before the words ``VS Form 18-1'', and the words

``paragraph (a)(1) of this section and'' are removed.

c. In paragraph (b)(2), the words ``APHIS Form 7019/'' are added

immediately before the words ``VS Form 18-19'', and the words ``APHIS

Form 7020/'' are added immediately before the words ``VS Form 18-20''.

Sec. 2.75 Records: Dealers and exhibitors.

(a) * * *

(2) Each dealer and exhibitor shall use Record of Acquisition and

Dogs and Cats on Hand (APHIS Form 7005/VS Form 18-5) and Record of

Disposition of Dogs and Cats (APHIS Form 7006/VS Form 18-6) to make,

keep, and maintain the information required by paragraph

[[Page 13896]] (a)(1) of this section: Provided, that if a dealer or

exhibitor who uses a computerized recordkeeping system believes that

APHIS Form 7005/VS Form 18-5 and APHIS Form 7006/VS Form 18-6 are

unsuitable for him or her to make, keep, and maintain the information

required by paragraph (a)(1) of this section, the dealer or exhibitor

may request a variance from the requirement to use APHIS Form 7005/VS

Form 18-5 and APHIS Form 7006/VS Form 18-6.

(i) The request for a variance must consist of a written statement

describing why APHIS Form 7005/VS Form 18-5 and APHIS Form 7006/VS Form

18-6 are unsuitable for the dealer or exhibitor to make, keep, and

maintain the information required by paragraph (a)(1) of this section,

and a description of the computerized recordkeeping system the person

would use in lieu of APHIS Form 7005/VS Form 18-5 and APHIS Form 7006/

VS Form 18-6 to make, keep, and maintain the information required by

paragraph (a)(1) of this section. APHIS will advise the person as to

the disposition of his or her request for a variance from the

requirement to use APHIS Form 7005/VS Form 18-5 and APHIS Form 7006/VS

Form 18-6.

(ii) A dealer or exhibitor whose request for a variance has been

denied may request a hearing in accordance with the applicable rules of

practice for the purpose of showing why the request for a variance

should not be denied. The denial of the variance shall remain in effect

until the final legal decision has been rendered.

* * * * *

Sec. 2.78 [Amended]

9. In Sec. 2.78, paragraph (d) is amended by adding the words

``APHIS Form 7001/'' immediately before the words ``VS Form 18-1''.

Sec. 2.102 [Amended]

10. In Sec. 2.102, paragraph (a)(3), the beginning of the second

sentence is amended by removing the words ``Veterinary Services'' and

adding the words ``APHIS Form 7009/VS'' in their place.

Done in Washington, DC, this 9th day of March 1995.

Terry L. Medley,

Acting Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 95-6369 Filed 3-14-95; 8:45 am]

BILLING CODE 3410-34-P