Humane Treatment of Dogs and Cats; Tethering and Temperature Requirements

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Parts 1 and 3

[Docket No. 95-078-1]

RIN 0579-AA74

Humane Treatment of Dogs and Cats; Tethering and Temperature

Requirements

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend the regulations for the humane

treatment of dogs and cats under the Animal Welfare Act by removing the

provisions for tethering dogs as a means of primary enclosure. We are

also proposing to amend the regulations by revising the temperature

requirements for indoor, sheltered, and mobile and traveling housing

facilities, and for primary conveyances used in transportation, to

require that the ambient temperature must never exceed 90 deg.F (32.2

deg.C) when dogs or cats are present. We are taking these actions

because our experience in enforcing the Animal Welfare Act has led us

to conclude that tethering dogs as a means of primary enclosure is not

a humane practice. Also, temperatures exceeding 90 deg.F can be

harmful to dogs and cats. These actions will help ensure that dogs and

cats in facilities regulated under the Animal Welfare Act will be

treated in a humane manner.

DATES: Consideration will be given only to comments received on or

before September 3, 1996.

ADDRESSES: Please send an original and three copies of your comments to

Docket No. 95-078-1, Regulatory Analysis and Development, PPD, APHIS,

suite 3C03, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please

state that your comments refer to Docket No. 95-078-1. Comments

received may be inspected at USDA, room 1141, South Building, 14th

Street and Independence Avenue SW., Washington, DC, between 8 a.m. and

4:30 p.m., Monday through Friday, except holidays. Persons wishing to

inspect comments are requested to call ahead on (202) 690-2817 to

facilitate entry into the comment reading room.

FOR FURTHER INFORMATION CONTACT: Mr. Stephen Smith, Staff Animal Health

Technician, REAC, APHIS, suite 6D02, 4700 River Road Unit 84,

Riverdale, MD 20737-1234, (301) 734-4972.

SUPPLEMENTARY INFORMATION:

Background

Under the Animal Welfare Act (AWA)(7 U.S.C. 2131 et seq.) the

Secretary of Agriculture is authorized to promulgate standards and

other requirements governing the humane handling, housing, care,

treatment, and transportation of certain animals by dealers, research

facilities, exhibitors, and carriers and intermediate handlers.

Regulations established under the Act are contained in 9 CFR parts 1,

2, and 3. Subpart A of 9 CFR part 3 (referred to below as the

regulations) contains requirements concerning dogs and cats.

Recently, the Animal and Plant Health Inspection Service (APHIS)

hosted public meetings in Kansas City and St. Louis, MO, and in

Washington, DC, to gather information on the regulations in 9 CFR part

3, subpart A, that apply to the care of dogs and cats in the commercial

pet trade. People attending the meetings included representatives of

animal protection organizations and members of affected industries,

such as dealers, research facilities, and commercial animal

transporters.

Each meeting was divided into four workshops covering specific

topic areas: (1) space requirements for primary enclosures, including

room for exercise; (2) sanitation, materials, flooring, and

construction of primary enclosures; (3) veterinary care and breeding

frequency; and (4) transportation by land and air. APHIS has considered

all of the recommendations and opinions expressed by participants of

these workshops at each of the meetings, as well as APHIS' own

experience in enforcing the Act, in developing this proposal on

tethering and temperature requirements. There were many recommendations

expressed in the workshops on issues closely related to what we are

proposing in this

[[Page 34387]]

document, as well as recommendations on issues other than tethering and

temperature requirements. APHIS is continuing to review and analyze all

the recommendations received, and will initiate additional rulemaking

for any changes deemed appropriate.

Tethering of Dogs

Currently, the regulations provide that dogs in outside housing

facilities regulated under the AWA may be kept on tethers as a means of

primary enclosure. Primary enclosure is defined in 9 CFR part 1 to

mean:

(A)ny structure or device used to restrict an animal or animals

to a limited amount of space, such as a room, pen, run, cage,

compartment, pool, hutch, or tether. In the case of animals

restrained by a tether (e.g., dogs on chains), it includes the

shelter and the area within reach of the tether.

A dog whose primary enclosure is a tether would be attached to the

tether almost all of the time, except when it is allowed off of the

tether for exercise or other activities. The regulations require that a

dog on a tether must have a shelter (such as a dog house or other

structure) and the tether must allow the dog access to the shelter and

to food and water containers. The housing area where the dog is

tethered must be surrounded by a perimeter fence of sufficient height

to keep out unwanted animals.

Our experience in enforcing the AWA has led us to conclude that

continuous confinement of dogs by a tether is inhumane. A tether

significantly restricts the dog's movement. A tether can also become

tangled around or hooked on the dog's shelter structure or other

objects, further restricting the dog's movement and potentially causing

injury. We are proposing to remove the option for facilities to use

tethering as a means of primary enclosure. We would remove all

references to tethering from the definition of primary enclosure in 9

CFR part 1, and we would remove the provisions for tethering as a means

of primary enclosure from the regulations in 9 CFR part 3. Facilities

would still have a number of primary enclosure options available to

them, such as a cage or a fenced-in run.

Temperature

The regulations for indoor housing facilities, sheltered housing

facilities, and mobile or traveling housing facilities that are

regulated under the AWA provide that the ambient temperature in the

facilities may not exceed 85 deg.F (29.5 deg.C) for more than 4

consecutive hours when dogs or cats are present. The regulations also

provide that when any person subject to the AWA transports dogs or

cats, the cargo spaces in primary conveyances (motor vehicle, rail, and

marine) and the holding areas in the terminal facilities (such as at

airports, rail stations, or maritime ports) may not exceed 85 deg.F

(29.5 deg.C) for more than 4 consecutive hours when dogs or cats are

present. The regulations for air transportation provide that cargo

areas must be heated or cooled as necessary to maintain an ambient

temperature that ensures the health and well-being of the dogs or cats

held there.

The regulations do not specify a maximum temperature at which dogs

or cats may be held for up to 4 hours. Because there is no maximum

temperature restriction in the regulations, it is conceivable that a

dog or cat could be exposed to extremely high temperatures for up to 4

hours. Temperatures exceeding 90 deg.F can be harmful to dogs and cats

even if they are exposed to those temperatures for less than 4 hours.

In the case of air transportation, there is no maximum temperature

specified to which dogs or cats can be exposed, even for over 4 hours.

Although the regulations do state that any cargo area where dogs or

cats are held must be cooled as necessary to maintain an ambient

temperature that ensures the health and well-being of the dogs or cats

held there, there have been incidents where dogs or cats were exposed

to extremely high temperatures during air travel. Such exposure

resulted in serious harm or, in some cases, death to those animals.

For these reasons, we are proposing to require that the ambient

temperature in indoor housing facilities, sheltered housing facilities,

mobile or traveling housing facilities, primary conveyances (motor

vehicle, rail, air, and marine), and terminal facilities must never

rise above 90 deg.F (32.2 deg.C) when dogs or cats are present.

Licensed dog and cat dealers and transporters of dogs and cats

would have several alternative methods of complying with this proposal.

They could install air conditioning or electric fans to cool the air

inside the facilities and conveyances. Dog and cat dealers could also

comply by establishing outdoor shelters, which are not subject to

temperature requirements, or providing animals in sheltered housing

facilities with outdoor runs where they are not already available.

Outdoor shelters and runs provide the dogs and cats with access to

fresh air, air movement (breezes and winds), shade (required by the

regulations), and other climatic and environmental factors which help

to alleviate suffering from high temperatures. Also, humidity levels

can become unbearable in enclosed facilities where the temperature

exceeds 90 deg.F. Suffering from humidity levels outdoors, even when

the temperature is above 90 deg.F, is usually mitigated by other

climatic factors, as described above.

Executive Order 12866 and Regulatory Flexibility Act

This proposed rule has been reviewed under Executive Order 12866.

The rule has been determined to be significant for the purposes of

Executive Order 12866 and, therefore, has 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

impact of this rule on small entities. However, we do not currently

have all the data necessary for a comprehensive analysis of the effects

of this rule on small entities. Therefore, we are inviting comments

concerning potential effects. In particular, we are interested in

determining the number and size of licensed facilities that would have

to make changes to comply with the proposed temperature requirements,

and the kind of change those licensees would likely choose in order to

comply (for example, installing air conditioning or constructing

outdoor facilities).

Under the Animal Welfare Act (7 U.S.C. 2131 et seq.) the Secretary

of Agriculture is authorized to promulgate standards and other

requirements governing the humane handling, housing, care, treatment,

and transportation of certain animals by dealers, research facilities,

exhibitors, and carriers and intermediate handlers.

This proposed rule would eliminate the use of tethering as a means

of primary enclosure for dogs, and would affect Class A and Class B

licensed dog dealers. Over 95 percent of Class A and Class B licensed

dog dealers are considered small businesses.

There is no information available on the actual number of Class A

and Class B licensed dog dealers who use tethering as a means of

primary enclosure. However, kennels and cages are currently the

preferred means of primary enclosure, with tethering sometimes used as

a temporary restraint. Tethering is no longer a generally accepted

practice within the dog dealer industry, and some industry groups

prohibit their members from using tethering as a means of permanent

restraint. Therefore, we do not expect this proposal to have a

significant impact on dog dealers, large or small, because tethering as

a means of primary

[[Page 34388]]

enclosure is rarely, if ever, utilized by Class A and Class B licensed

dog dealers.

This proposed rule would also revise the temperature requirements

for indoor, sheltered, and mobile and traveling housing facilities, and

for primary conveyances used in transportation, to state that the

ambient temperature must never exceed 90 deg.F (32.2 deg.C) when dogs

or cats are present. This temperature requirement would affect Class A

and Class B licensed dog and cat dealers. Currently, the regulations

state (except for air transportation) that the ambient temperature in a

facility, holding area, or cargo space must not exceed 85 deg.F (29.5

deg.C) for more than 4 consecutive hours. The regulations for air

transportation provide that cargo areas must be heated or cooled as

necessary to maintain an ambient temperature that ensures the health

and well-being of the dogs or cats held there.

There are currently a total of 4,325 licensed dog and cat dealers

(over 95 percent of which are considered small businesses, as stated

previously). We do not know precisely how many of these house only dogs

and/or cats, but it is probably close to 90 percent or more. We expect

that the additional temperature requirement would impact Class A and

Class B licensed dog and cat dealers mainly in the States of Arkansas,

Missouri, Kansas, Oklahoma, and Iowa. These are States in which there

is a high concentration of Class A and Class B licensed dog and cat

dealers (approximately 2,326 dealers), and in which the temperatures

can be highly variable in the summer months, with many days reaching

temperatures above 90 deg.F. In most cases, if a dealer has been able

to comply with the requirement that the ambient temperature in the

facility must not exceed 85 deg.F for more than 4 consecutive hours,

they would likely be able to comply with this proposal without any

additional expense. We estimate that at least 85 percent of potentially

affected entities are already in compliance with the temperature

requirements in this proposed rule.

However, if a dealer finds that he or she is not prepared to meet

the new requirement, the cost of compliance would depend on what method

the dealer chooses to cool the facility. For indoor and sheltered

housing facilities, the alternatives would most likely include: (1)

Installation of air conditioning. Installation of air conditioning

could cost between $1,000 and $3,000 per unit, and operational

expenditures for electricity could range between $200 to $500 per year;

(2) Installation of electric fans. Installation of electric fans could

cost between $300 and $500 per unit, and operational expenditures for

electricity could range between $100 to $300 per year; (3) Establishing

outdoor shelters, which are not subject to temperature requirements. We

estimate that it would cost $17.00 to $29.00 to establish an outdoor

facility for a single medium-sized dog that would meet the minimum

requirements of the regulations (based on 18 feet of chain-link fence

at $.40 to $.50 per foot, a $20 to $30 commercial dog house, and $10 to

$20 in labor); or (4) Providing dogs and cats in sheltered housing

facilities with outdoor runs where they are not already available. We

estimate that it would cost $8.60 to $22.50 to construct an outdoor run

for a single medium-sized dog that would meet the minimum requirements

of the regulations (based on 9 to 15 feet of chain-link fence at $.40

to $.50 per foot plus $5.00 to $15.00 in labor).

All these cost estimates could vary considerably depending on the

number of animals housed in the facility, the quality of the materials

used in construction, and the adaptability of existing structures.

Because most dog and cat dealers are small businesses, the cost of

installing air conditioning may comprise a significant portion of their

overall operational expenses. It is anticipated that the affected

dealers would choose the less costly alternatives of installing

electric fans or establishing outdoor shelters or runs.

We do not expect that this proposal would impact transporters of

dogs and cats. Most transporters (motor vehicle, rail, air, and marine)

already have the capacity to provide adequate ventilation and/or air

conditioning for animals in their cargo areas and holding facilities.

The majority of dog and cat deaths from extremely high temperatures in

cargo areas or holding facilities have been due to human error. This

proposal would help ensure that transporters utilize their existing

capacity to maintain a healthy temperature range for the animals they

transport, and would not likely require transporters to install

additional cooling systems.

The alternative to this proposed rule would be to make no changes

to the temperature and tethering requirements in the regulations. After

consideration, we rejected this alternative because we believe that

tethering dogs as a means of primary enclosure is not a humane

practice, and because temperatures exceeding 90 deg.F can be harmful

to dogs and cats.

This proposed rule contains no paperwork or recordkeeping

requirements.

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 proposed rule has been reviewed under Executive Order 12778,

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 be

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

Paperwork Reduction Act

This proposed 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

9 CFR Part 1

Animal welfare, Pets, Reporting and recordkeeping requirements,

Research.

9 CFR Part 3

Animal welfare, Marine mammals, Pets, Reporting and recordkeeping

requirements, Research, Transportation.

Accordingly, 9 CFR parts 1 and 3 would be amended as follows:

PART 1--DEFINITION OF TERMS

1. The authority citation for part 1 would continue to read as

follows:

Authority: 7 U.S.C. 2131-2159; 7 CFR 2.22, 2.80, and 371.2(g).

2. In Sec. 1.1, the definition for primary enclosure would be

revised to read as follows:

Sec. 1.1 Definitions.

* * * * *

Primary enclosure means any structure or device used to restrict an

animal or animals to a limited amount of space, such as a room, pen,

run, cage, compartment, pool, or hutch.

* * * * *

PART 3--STANDARDS

3. The authority citation for part 3 would continue to read as

follows:

Authority: 7 U.S.C. 2131-2156; 7 CFR 2.22, 2.80, and 371.2(d).

Secs. 3.2, 3.3, and 3.5 [Amended]

4. In Secs. 3.2, 3.3, and 3.5, paragraph (a) of each section would

be amended by

[[Page 34389]]

adding a new identical sentence at the end of each paragraph to read as

set forth below:

(a)* * * The ambient temperature in the facility must never rise

above 90 deg.F (32.2 deg.C) when dogs and cats are present.

* * * * *

Sec. 3.6 [Amended]

5. Section 3.6 would be amended by removing paragraph (c)(2), and

by redesignating paragraphs (c)(3) and (c)(4) as paragraphs (c)(2) and

(c)(3), respectively.

6. In Sec. 3.15, paragraphs (d) and (e) would be revised to read as

follows:

Sec. 3.15 Primary conveyances (motor vehicle, rail, air, and marine).

* * * * *

(d) During air transportation, dogs and cats must be held in cargo

areas that are heated and cooled as necessary to maintain an ambient

temperature that ensures the health and well-being of the dogs or cats.

The ambient temperature in the cargo areas must never rise above 90

deg.F (32.2 deg.C) when dogs or cats are present. The cargo areas must

be pressurized when the primary conveyance used for air transportation

is not on the ground, unless flying under 8,000 ft. Dogs and cats must

have adequate air for breathing at all times when being transported.

(e) During surface transportation, the ambient temperature within

any animal cargo space containing live dogs or cats must never rise

above 90 deg.F (32.2 deg.C). Moreover, auxiliary ventilation, such as

fans, blowers, or air conditioning, must be used when the ambient

temperature within the animal cargo space reaches 85 deg.F (29.5

deg.C). The ambient temperature must not exceed 85 deg.F (29.5 deg.C)

for more than 4 consecutive hours, nor fall below 45 deg.F (7.2

deg.C) for more than four consecutive hours.

* * * * *

7. In Sec. 3.18, paragraph (d) would be revised to read as follows:

Sec. 3.18 Terminal facilities.

* * * * *

(d) Temperature. The ambient temperature in an animal holding area

containing live dogs or cats must not fall below 45 deg.F (7.2 deg.C)

or rise above 85 deg.F (29.5 deg.C) for more than 4 consecutive hours

at any time dogs or cats are present. The ambient temperature in the

animal holding area must never rise above 90 deg.F (32.2 deg.C) when

dogs or cats are present.

* * * * *

Done in Washington, DC, this 27th day of June 1996.

Terry L. Medley

Acting Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 96-16871 Filed 7-1-96; 8:45 am]

BILLING CODE 3410-34-P