Animal Welfare; Perimeter Fence Requirements

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 3

[Docket No. 95-029-1]

Animal Welfare; Perimeter Fence 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 regulations to

require that a perimeter fence be placed around the outdoor areas of

sheltered housing facilities and outdoor housing facilities for marine

mammals and certain other regulated animals. Although it has been our

policy that such fences should be in place around sheltered and outdoor

housing facilities for such animals, there have been no provisions in

the regulations specifically requiring their use. Adding the perimeter

fence requirement to the regulations for these additional categories of

animals would serve to protect the safety of the animals and provide

for their well being.

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

before July 7, 1997.

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

Docket No. 95-029-1, 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. 95-029-1. 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: Dr. Barbara Kohn, Staff Veterinarian,

Animal Care, APHIS, 4700 River Road Unit 84, Riverdale, MD 20737-1234;

(301) 734-7833.

SUPPLEMENTARY INFORMATION:

Background

The Animal Welfare regulations contained in 9 CFR chapter 1,

subchapter A, part 3 (referred to below as ``the regulations'') provide

specifications for the humane handling, care, treatment, and

transportation, by regulated entities, of animals covered by the Animal

Welfare Act (7 U.S.C. 2131, et seq.) (The Act). 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 categories are: (A) cats and dogs, (B)

guinea pigs and hamsters, (C) rabbits, (D) nonhuman primates, (E)

marine mammals, and (F) animals other than cats, dogs, guinea pigs,

hamsters, rabbits, nonhuman primates, and marine mammals.

Each of these subparts contains regulations regarding outdoor

housing facilities, and subparts A and D contain regulations regarding

sheltered housing facilities. However, only subpart D (nonhuman

primates) includes a requirement for a perimeter fence surrounding

outdoor housing facilities and sheltered housing facilities. Although

perimeter fences are not required by the regulations for animals other

than nonhuman primates, most facilities do have perimeter fences in

place. It has been the policy of the Animal and Plant Health Inspection

Service (APHIS) that perimeter fences should be in place at outdoor and

sheltered housing facilities for animals other than nonhuman primates,

but, as noted above, only the regulations in subpart D require

perimeter fences. We now believe that it is necessary to include

perimeter fence requirements in subparts E and F in order to protect

the safety of marine mammals and certain other animals and to provide

for their well-being. We will not be amending subpart A (cats and dogs)

or subpart C (rabbits) at this time as most dogs, cats, and rabbits are

currently maintained in enclosed kennels or indoors, with the exception

of tethered dogs. Tethered dogs are already required to have a

perimeter fence. No amendment is needed in subpart B (guinea pigs and

hamsters) because outdoor housing for hamsters is prohibited, and any

outdoor housing for guinea pigs must be approved in advance by APHIS.

Therefore, we are proposing to amend Secs. 3.103 and 3.127 to

require that a perimeter fence be placed around the outdoor areas of

sheltered housing facilities and outdoor housing facilities

[[Page 24612]]

for marine mammals and animals other than cats, dogs, guinea pigs,

hamsters, rabbits, nonhuman primates, and marine mammals. With the

exception of the proposed 8-foot-fence requirement explained in the

following paragraphs, the proposed requirements would serve the same

purpose as those currently found in Secs. 3.77 and 3.78 for nonhuman

primates.

For marine mammals, we propose that the perimeter fence be high

enough to reasonably be expected to keep animals and unauthorized

persons out of the containment area. If the facility is a sea pen

facility, this would mean that a perimeter fence high enough to

reasonably be expected to keep animals and unauthorized persons from

gaining access to the sea pen from the surrounding land would be

installed to encompass the land portion of the facility (from one end

of sea pen-shoreline contact, around the land based portion of the

facility, to the other end of sea pen-shoreline contact). The perimeter

fence would help prevent injury of marine mammals by other animals or

persons and would afford the marine mammals protection from exposure to

diseases. We believe that for most marine mammals, a perimeter fence

should be at least 6 feet high to reasonably be expected to prevent

entry of animals and unauthorized persons, and protect against disease

exposure. However, in the case of polar bears, we believe that the

perimeter fence should be at least 8 feet high to provide an added

measure of security for the protection of the bears and the protection

of the public. Polar bears are categorized as dangerous animals and

will likely attack if provoked. Should the bears escape from captivity,

they would be subject to potentially dangerous, or lethal, recapture

and control methods. It is in the interest of the welfare of the animal

to be contained within the facility, rather than tracked and possibly

killed if it escapes from containment. Therefore, we believe that a

perimeter fence measuring at least 8 feet in height would act as a

secondary containment system and would reduce the possibility that a

polar bear would escape from the containment area and be harmed in its

recapture or control.

Except for potentially dangerous animals, we propose to require

that the perimeter fence for animals other than cats, dogs, guinea

pigs, hamsters, rabbits, nonhuman primates, and marine mammals be high

enough to reasonably be expected to keep animals and unauthorized

persons out of the containment area. For the purposes of this

regulation, potentially dangerous animals include, but are not limited

to, large felines (e.g., lions, tigers, leopards, cougars, bobcats,

etc.), bears, wolves, elephants, and rhinoceros. This provision would

protect the animals from injury by other species and would prevent the

animals' exposure to diseases carried by other species. However, as in

the case of polar bears, we propose that for potentially dangerous

animals covered by the regulations in subpart F, the perimeter fence be

a minimum of 8 feet in height to provide an added measure of security

for the protection of the animals and the protection of the public. As

with polar bears, it is in the interest of the welfare of the animal to

be contained within the facility, rather than tracked and possibly

killed if it escapes from containment. Therefore, we believe that a

perimeter fence measuring at least 8 feet in height would act as a

secondary containment system and would reduce the possibility that a

potentially dangerous animal would escape from the containment area and

be harmed in its recapture or control.

However, we recognize that conditions at a particular facility may

allow for the use of a shorter perimeter fence for marine mammals or

animals other than cats, dogs, guinea pigs, hamsters, rabbits, nonhuman

primates, and marine mammals. The shorter fence would have to be

approved by the Administrator. Approval by the Administrator of a

shorter perimeter fence would only be given if the alternative security

measures offered by the facility would provide the same or better

degree of protection from access by animals and unauthorized persons,

disease exposure, and animal escape, if applicable.

We are also proposing to require that the perimeter fence be

constructed so that it prevents animals the size of dogs, skunks, and

raccoons, as well as unauthorized persons, from going through or under

the fence. The perimeter fence could be slatted, latticed, or of other

similar design, as long as it is designed and constructed in a manner

that restricts unauthorized animals and persons from entering the

facility or having contact with the animals in the facility and can

function as a secondary containment system for the animals in the

facility. This provision would help prevent an animal's injury and

exposure to disease from unauthorized animals, and would minimize the

need to employ potentially harmful or fatal recapture techniques.

We are proposing to require that the perimeter fence be set far

enough away from the outside wall or fence of the primary enclosure to

prevent physical contact between animals inside the enclosure and

animals and persons outside the perimeter fence. Sufficient space--

i.e., at least 3 feet--would also provide enough room to clean and

maintain the space between the perimeter fence and the primary

enclosure. This provision would offer a ``safety zone'' for the animals

in the facility by ensuring that animals or persons outside of the

perimeter fence cannot reach into the enclosure to poke, bite, or

otherwise harm a contained animal or expose a contained animal to

disease.

However, we recognize that conditions at a particular facility may

allow for less space between the perimeter fence and the outside wall

or fence of the primary enclosure for marine mammals or animals other

than cats, dogs, guinea pigs, hamsters, rabbits, nonhuman primates, and

marine mammals. A fence located less than 3 feet away from the outside

wall of the primary enclosure would have to be approved by the

Administrator. Approval by the Administrator would only be given if the

alternative spacing offered by the facility would provide the same or

better degree of protection from physical contact between the animals

inside the enclosure and animals and persons outside the perimeter

fence and would provide the same or better degree of protection from

possible escape of a housed animal.

There may be cases in which the conditions at a facility are such

that a perimeter fence is not necessary to keep animals and

unauthorized persons from entering the facility or from having physical

contact with animals in the facility. Therefore, the proposed

regulations state that a perimeter fence is not required if the outside

walls of the primary enclosure are made of sturdy, durable material,

which may include certain types of concrete, wood, plastic, metal, or

glass, and are high enough and constructed in a manner that restricts

contact with or entry by animals and unauthorized persons that are

outside the facility, and the Administrator gives written approval.

Similarly, a perimeter fence would not be required if the facility

is surrounded by an effective (i.e., impenetrable) natural barrier that

keeps the animals in the facility and protects them from contact with

animals and unauthorized persons that are outside of the facility. As a

means of ensuring that the natural barrier is inspected and found to be

adequate, the operator of the facility would have to obtain written

permission from the Administrator to

[[Page 24613]]

use a natural barrier instead of a perimeter fence.

We believe that the proposed requirements for perimeter fences

would serve to protect the safety of marine mammals and animals other

than cats, dogs, guinea pigs, hamsters, rabbits, nonhuman primates, and

marine mammals in facilities and would provide for the well-being of

such animals.

Executive Order 12866 and Regulatory Flexibility Act

This proposed rule has been reviewed under Executive Order 12866.

The rule has been determined to not be significant for the purpose of

Executive Order 12866 and, therefore, has not been reviewed by the

Office of Management and Budget.

This proposed rule would amend the Animal Welfare regulations by

requiring that a perimeter fence be placed around the outdoor areas of

sheltered housing facilities and outdoor housing facilities for marine

mammals and animals other than cats, dogs, guinea pigs, hamsters,

rabbits, nonhuman primates, and marine mammals.

Class A and B dealers, Class C exhibitors, registered exhibitors,

and research facilities are the entities that would be affected by the

proposed perimeter fence requirement. Class A dealers breed and raise

animals to sell for research, teaching, or exhibition; Class B dealers

include brokers and operators of auctions sales for animals; and Class

C licensees and registered exhibitors include exhibitors such as animal

acts, carnivals, circuses, and public and roadside zoos. Research

facilities include schools, institutions, organizations, or persons who

use live animals in research, tests, or experiments.

In 1995, there were 4,325 licensed dealers, 1,968 regulated

exhibitors, and 1,300 registered research facilities. According to the

Small Business Administration (SBA) size standards, more than 50

percent of zoos are considered large businesses. There are no SBA

standards for animal dealers; the number of animals handled and gross

sales vary greatly with the type of animals bought and sold by a

dealer. Class A and B dealers may deal in exotic animals for private

owners and for public exhibition, as well as in animals for biomedical

research. There are no uniform SBA standards for research facilities,

as the standards are categorized for type of research activities

undertaken and/or number of employees. The type of research activities

undertaken, type and number of animals used, number of employees, and

operating budget (funding levels, income, etc.) vary greatly from

facility to facility.

A 50-yard roll of a 6-foot-high chain link fence would cost

approximately $60 to $70, and a 50-yard roll of an 8-foot-high fence

would cost approximately $80 to $100. There is some flexibility as to

the type of fence a facility could use, so certain facilities may have

a perimeter fence of less expensive material, such as a tightly woven

wire. In addition, a fence that is not tall enough to meet the proposed

6-foot or 8-foot height requirement could be modified to meet the

standard rather than replaced if a 6- or 8-foot-high fence was

necessary for the facility. The size of a perimeter fence for a dealer,

exhibitor, or research facility would depend on the size of the

facility and type of housing provided, but for almost all facilities,

we estimate that perimeter fences represent less than 5 percent of

total expenses for the facility.

There are several reasons the impact of the proposed requirement on

small businesses would be limited. First, most licensed dealers and

regulated exhibitors already meet the proposed perimeter fence

requirement. Most research facilities do not utilize sheltered and/or

outdoor housing facilities (it is estimated that greater than 90

percent of research facilities are solely indoor facilities), and all

research facilities utilizing outdoor housing for nonhuman primates are

already required to provide perimeter fencing in accordance with the

regulations in subpart D. Second, fencing costs represent only a small

portion of a facility's operational costs. Finally, the fencing

requirements are relatively flexible and provide for alternatives where

appropriate.

Under these circumstances, the Administrator of the Animal and

Plant Health Inspection Service has determined that this action would

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 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 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. 95-029-1.

Please send a copy of your comments to: (1) Docket No. 95-029-1,

Regulatory Analysis and Development, PPD, APHIS, suite 3C03, 4700 River

Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer,

OIRM, 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.

This proposed rule would amend the Animal Welfare regulations to

require that a perimeter fence be placed around the outdoor areas of

sheltered housing facilities and outdoor housing facilities for marine

mammals and certain other regulated animals. The proposed rule would

provide the opportunity for a facility to request approval from the

Administrator to have a shorter perimeter fence or other measures, if

that facility already provides the same or better degree of protection

from access by animals and unauthorized persons, disease exposure, and

animal escape. In order to adequately evaluate and track such requests,

the facility must make the request in writing. Facilities not in

compliance with the rule must come into compliance or request approval

from the Administrator for a shorter fence or other measures. Requests

for approval from the Administrator would usually be a one time

request. We are soliciting comments from the public (as well as

affected agencies) concerning our proposed information collection. We

need this outside input to 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

[[Page 24614]]

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 2 hours per response.

Respondents: Dealers, exhibitors, and research facilities.

Estimated number of respondents: 164.

Estimated number of responses per respondent: 1.

Estimated total annual burden on respondents: 328 hours.

Copies of this information collection can be obtained from:

Clearance Officer, OIRM, USDA, room 404-W, 14th Street and Independence

Avenue, SW., Washington, DC 20250.

List of Subjects in 9 CFR Part 3

Animal welfare, Marine mammals, Pets, Reporting and recordkeeping

requirements, Research, Transportation.

Accordingly, 9 CFR part 3 would be amended as follows:

PART 3--STANDARDS

1. The authority citation for part 3 would be revised to read as

follows:

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

2. Section 3.103 would be amended by adding a new paragraph (c) to

read as follows:

Sec. 3.103 Facilities, outdoor.

* * * * *

(c) Perimeter fence. On and after [date 6 months after effective

date of final rule] an outdoor facility must be enclosed by a fence

that is of sufficient height to keep animals and unauthorized persons

out. Fences less than 8 feet high for polar bears or less than 6 feet

high for other marine mammals must be approved by the Administrator.

The fence must be constructed so that it protects marine mammals by

restricting animals and unauthorized persons from going through it or

under it and having contact with the marine mammals, and so that it can

function as a secondary containment system for the animals in the

facility when appropriate. It must be of sufficient distance from the

outside wall or fence of the primary enclosure to prevent physical

contact between animals inside the enclosure and animals or persons

outside the perimeter fence. Such fences less than 3 feet in distance

from the primary enclosure must be approved by the Administrator. For

facilities with sea pens, the perimeter fence must prevent access by

animals and unauthorized persons to the sea pen from the surrounding

land, and would be required to encompass the land portion of the

facility from one end of sea pen-shoreline contact to the other end of

sea pen-shoreline contact. A perimeter fence is not required if:

(1) The outside walls of the primary enclosure are made of sturdy,

durable material, which may include certain types of concrete, wood,

plastic, metal, or glass, and are high enough and constructed in a

manner that restricts contact with or entry by animals and unauthorized

persons that are outside the outdoor facility, and the Administrator

gives written approval; or

(2) The outdoor facility is surrounded by an impenetrable natural

barrier that restricts the marine mammals to the facility and protects

them from contact with animals and unauthorized persons that are

outside the facility, and the Administrator gives written approval.

3. Section 3.127 would be amended by adding a new paragraph (d) to

read as follows:

Sec. 3.127 Facilities, outdoor.

* * * * *

(d) Perimeter fence. On or after [date 6 months after effective

date of final rule] an outdoor facility must be enclosed by a fence

that is of sufficient height to keep animals and unauthorized persons

out. Fences less than 8 feet high for potentially dangerous animals,

such as, but not limited to, large felines (e.g., lions, tigers,

leopards, cougars, bobcats, etc.), bears, wolves, rhinoceros, and

elephants, or less than 6 feet high for other animals must be approved

by the Administrator. The fence must be constructed so that it protects

the animals in the facility by restricting animals and unauthorized

persons from going through it or under it and having contact with the

animals in the facility, and so that it can function as a secondary

containment system for the animals in the facility. It must be of

sufficient distance from the outside wall or fence of the primary

enclosure to prevent physical contact between animals inside the

enclosure and animals or persons outside the perimeter fence. Such

fences less than 3 feet in distance from the primary enclosure must be

approved by the Administrator. A perimeter fence is not required if:

(1) The outside walls of the primary enclosure are made of sturdy,

durable material, which may include certain types of concrete, wood,

plastic, metal, or glass, and are high enough and constructed in a

manner that restricts contact with or entry by animals and unauthorized

persons that are outside the outdoor facility, and the Administrator

gives written approval; or

(2) The outdoor facility is surrounded by an impenetrable natural

barrier that restricts the animals in the facility to the facility and

protects them from contact with animals and unauthorized persons that

are outside the facility, and the Administrator gives written approval.

Done in Washington, DC, this 30th day of April 1997.

Donald W. Luchsinger,

Acting Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 97-11723 Filed 5-5-97; 8:45 am]

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