Humane Treatment of Dogs; Tethering

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Parts 1 and 3

[Docket No. 95-078-2]

RIN 0579-AA74

Humane Treatment of Dogs; Tethering

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the regulations for the humane treatment of

dogs under the Animal Welfare Act by removing the provisions for

tethering dogs as a means of primary enclosure. Our experience in

enforcing the Animal Welfare Act has led us to conclude that

permanently tethering a dog as a means of primary enclosure is not a

humane practice that is in the animal's best interests. Temporarily

tethering a dog due to health or other reasons would be permitted if

the licensee obtains the approval of the Animal and Plant Health

Inspection Service. This action will help ensure that dogs in

facilities regulated under the Animal Welfare Act will be treated in a

manner that is consistent with the animals' best interests.

EFFECTIVE DATE: September 12, 1997.

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

Technician, Animal Care, APHIS, suite 6D02, 4700 River Road Unit 84,

Riverdale, MD 20737-1234, (301) 734-4972, or e-mail:

[email protected].

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.

On July 2, 1996, we published in the Federal Register (61 FR 34386-

34389, Docket No. 95-078-1) a proposal to amend the regulations by

removing the option for facilities to use tethering as a means of

primary enclosure. In the same document, we proposed 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 solicited comments concerning our proposal for 60 days ending

September 3, 1996. We received 54 comments by that date. Many of the

comments we received on the proposed rule expressed concerns with the

proposal to revise the temperature requirements. This final rule

concerns only the part of the proposal to remove tethering as a means

of primary enclosure. We are still reviewing the issues concerning the

effects of temperature on dogs and cats. If we take any further action

regarding temperature, we will publish the appropriate document in the

Federal Register.

Thirty-three of the comments received on the proposed rule

addressed the part of the proposal to remove tethering as a means of

primary enclosure. These comments were from dog breeders, humane

organizations, a veterinarian, pet industry associations, an animal

feed industry association, pharmaceutical companies, a medical research

association, a Federal government agency, and other interested

individuals. Nine of the comments supported the proposal; 14 comments

opposed the proposal; 1 comment did not oppose the proposal, but had

recommendations concerning the proposal's Initial Regulatory

Flexibility Analysis; and 9 comments expressed neither support nor

opposition, but stated that the provisions of the proposal should be

extended to apply to anyone who owns dogs, instead of only to licensed

breeders and dealers. The comments are discussed below by topic.

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. We proposed to remove this provision. Several

commenters who supported the proposed rule stated that, while they

believe tethering should not be used as a primary enclosure, there are

situations when tethering is useful for short intervals. For example,

the commenter said an owner may put a dog on a tether while cleaning

its pen, to isolate the dog for health reasons, or to restrain an

aggressive dog. The commenters recommended that we state explicitly in

the regulations that tethering is prohibited as a means of primary

enclosure, and clarify in the regulations when tethering would be

permissible.

We agree that it would be more clear to specifically state in the

regulations that permanent tethering is prohibited as a means of

primary enclosure. Therefore, we are adding a new paragraph (c)(4) to

Sec. 3.6 of the regulations to state that tethers are prohibited for

use as primary enclosures. However, we realize that there may be times

when it would be appropriate, and in the dog's best interests, to put a

dog on a tether temporarily, ranging from a few minutes while the dog's

pen is cleaned to several days to isolate an animal for health reasons.

If we stated in the regulations when tethering would be permitted, we

would invariably fail to include some circumstance. Further, while

tethering may be appropriate for one dog under a specific circumstance,

it may not be appropriate for another dog under the same circumstance.

Therefore, we are also adding a provision in new paragraph (c)(4) to

state that a licensee must obtain the approval of the Animal and Plant

Health Inspection Service (APHIS) to temporarily tether a dog at the

licensee's facility. This safeguard will give APHIS the opportunity to

evaluate on a case-by-case basis the appropriateness of temporarily

tethering a dog in order to ensure that any temporary tethering of a

dog is in the animal's best interests.

A licensee may obtain verbal approval from an APHIS inspector to

temporarily tether a dog for a period of 3 days or less. If a licensee

intends to regularly tether a dog for periods of less than 3 days in

order to conduct a regular activity (for example, a licensee intends to

tether a dog every day for 20 minutes while the dog's primary enclosure

is being cleaned), the licensee will only have to obtain verbal

approval for such tethering one time. If a licensee intends to

temporarily tether a dog for a period to exceed 3 days, the licensee

must obtain written approval from the APHIS Animal Care Regional Office

for the region in which the licensee operates.

One commenter asked us to specify that, if an inspector finds a dog

to be temporarily tethered, the inspector should ask the licensee to

show him or her the dog's primary enclosure. The

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purpose of this would be to verify that the tethering arrangement is

not permanent and that the dog has a primary enclosure. We are not

making any changes to the proposed rule in response to this comment. We

assure the commenter that, in conducting inspections of licensed

facilities, each inspector will verify that each animal's primary

enclosure complies with the regulations. If a dog is tethered at the

time of an inspection, the inspector will verify that the licensee has

APHIS approval and that the dog has a primary enclosure that is in

compliance with the regulations.

Many commenters stated that they believe tethering is humane and

should be allowed as a means of primary enclosure. One commenter

specified that if the tether is equipped with a swivel on the end, it

is safe and does not encumber the movement of the dog. Other commenters

said the proposal did not present any scientific data to support the

claim that tethering is inhumane.

We are not making any changes to the proposal based on these

comments. As we stated in the proposed rule, we do not have any data on

the frequency of injuries due to tethers. However, our experience has

led us to conclude that permanently tethering dogs as a means of

primary enclosure is not a humane practice that is in the animals' best

interests. Further, permanent 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. A dog attached to a tether is significantly

restricted in its 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 do

not believe that a flexible tether, a tether with a swivel on the end,

or other such devices would significantly improve the safety of a

tether. Such devices may improve the mobility of the dog, but the

possibility would still remain over time for the tether to become

tangled around objects within the dog's range.

We reiterate that we are prohibiting permanent tethering as a means

of primary enclosure. It is possible that most injuries from tethers

are, in part, due to a dog being unsupervised for long periods of time

while on the tether. Prohibiting the use of a permanent tether as a

means of primary enclosure for dogs will minimize the likelihood that a

dog would be left unsupervised for extended periods of time while on a

tether, thus reducing the likelihood of injury. We are not prohibiting

the use of temporary tethering for restraining a dog for short periods

of time if the licensee obtains the approval of APHIS.

One commenter said that our proposal would be in conflict with the

requirements of some cities that dogs be tethered. The commenter is

correct that many cities require dogs to be on a leash or tethered when

they are not enclosed by some other means. These laws are necessary so

that the public is protected from aggressive dogs and to prevent dogs

from roaming freely. However, we know of no city that requires dogs to

be tethered as a means of primary enclosure. Further, our rule

prohibiting the use of a permanent tether as primary enclosure would

apply only to persons regulated under the AWA (dog breeders, dealers,

exhibitors, carriers, intermediate handlers, and research facilities).

Individual dog owners would not be affected by this rule, and could

continue to tether their dogs if they believe it is appropriate, and if

it is not restricted by local regulations. A facility regulated under

the AWA would still be permitted to temporarily tether dogs if the

facility obtains the approval of APHIS.

A few commenters said that tethering is used to train hunting dogs

and should be allowed for this purpose. At the present time, the

breeding or training of hunting dogs is not a regulated activity.

Therefore, the activities of hunting dog breeders and trainers would

not be affected by this rule. If we determine that standards should be

promulgated for the care of hunting dogs by breeders, we will publish a

proposal in the Federal Register.

One commenter requested that tethering be permitted with the

recommendation of a veterinarian. We would like to emphasize that we

are only prohibiting the use of permanent tethering as a means of

primary enclosure. Temporarily tethering a dog due to health or other

reasons would be permitted under this rule if the licensee obtains the

approval of APHIS.

Several commenters said that if tethering is harmful to dogs housed

by licensed breeders and dealers, then it is harmful to all dogs. The

commenters said that we should extend the regulation to prohibit

tethering of dogs housed by humane societies, pounds, individual pet

owners, and hunting breed producers. While we agree with commenters

that all dogs should be treated in a humane manner, we are not making

any changes to the rule in response to these comments. The AWA

authorizes our agency 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. The AWA does not

authorize us to promulgate standards for the care of animals by humane

societies, pounds, or individual pet owners. Requirements for the care

of animals owned by individuals, and for the enforcement of animal

control laws, are under State or local authority. Further, as stated

previously in this document, the breeding or training of hunting dogs

is not a regulated activity at the present time. If we determine that

standards should be promulgated for the care of hunting dogs by

breeders, we will publish a proposal in the Federal Register.

One commenter recommended several additional amendments to the

regulations concerning primary enclosures. The recommendations include

requiring that all dogs have an indoor housing facility and an outdoor

run, revising the formula for calculating the required enclosure size,

adopting stricter sanitation requirements, requiring that psychological

enrichments such as toys and human companionship be provided to dogs

housed in licensed facilities, and adding additional exercise

requirements. This comment requests amendments that are outside the

scope of the proposed regulation. However, we will consider the comment

as a request for additional rulemaking. If we decide to make any

changes to the regulations in response to this request, we will publish

a proposed rule in the Federal Register.

One comment addressed the Initial Regulatory Flexibility Analysis

that appeared in the proposed rule. We have addressed this comment as

part of the Final Regulatory Flexibility Analysis that appears later in

this document.

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.

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 purposes of Executive

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

Management and Budget.

This document makes final part of a proposed rule published in the

Federal Register on July 2, 1996 (61 FR 34386-34389, Docket no. 95-078-

1). As part of the proposed rule document, we performed an Initial

Regulatory

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Flexibility Analysis, in which we invited comments concerning potential

economic effects of the proposed rule. We received one comment on the

proposed rule that addressed our Initial Regulatory Flexibility

Analysis. This comment is discussed below. However, the comment did not

specifically offer information on the potential economic effects that

prohibiting tethering as a means of primary enclosure would have on

small entities. Therefore, we have based this Final Regulatory

Flexibility Analysis on the data available to us.

The part of the proposed rule we are making final will eliminate

permanent tethering as a means of primary enclosure for dogs in

facilities licensed or registered under the Animal Welfare Act. We are

taking this action because our experience in enforcing the Animal

Welfare Act has led us to conclude that permanently tethering a dog as

a means of primary enclosure is not a humane practice that is in the

animal's best interests.

The comment we received on the Initial Regulatory Flexibility

Analysis said that the analysis falls short of what needs to be

included in a Regulatory Flexibility Analysis. Specifically, the

commenter said that the analysis should discuss other alternatives to

the proposal, such as requiring a flexible tether; should show evidence

of a consultative process with the affected industry; should address

how frequently inspectors find dogs to be injured as a result of

tethering; and should explore whether or not most injuries are due more

to neglect than to a tether. We have made no changes to the proposed

rule based on this comment. However, we have tried to address the

commenters concerns in this final analysis.

As we stated in the Initial Regulatory Flexibility Analysis, 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.

Neither do we have any data on the frequency of injuries due to

tethers. However, our inspectors report that permanently tethering a

dog as a means of primary enclosure is rare among licensed dealers.

Kennels and cages are currently the preferred means of primary

enclosure, with tethering sometimes used as a temporary restraint. In

addition, permanent 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.

It is also the experience of APHIS inspectors that, when used as a

means of primary enclosure, permanent tethering is not a humane

practice that is in the animal's best interests. A dog permanently

attached to a tether is significantly restricted in its 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. It is possible that most injuries from

tethers are, in part, due to a dog being unsupervised for long periods

of time while on the tether. Prohibiting the use of a permanent tether

as a means of primary enclosure for dogs will minimize the likelihood

that a dog would be left unsupervised for extended periods of time

while on a tether, thus reducing the likelihood of injury.

One comment that we have already addressed in the ``Background''

section of this final rule suggests an alternative to the proposal, and

we have considered this suggestion. The suggested alternative was to

allow tethering as primary enclosure if the tether is equipped with a

swivel. We do not believe that a tether with a swivel on the end, a

flexible tether, or other such devices would significantly improve the

safety of a permanent tether. Such devices may improve the mobility of

the dog, but the possibility would still remain for the tether to

become tangled around objects within the dog's range, especially over

extended periods of time.

This rule will primarily affect Class A and Class B licensed dog

dealers. As stated previously in this analysis, there is no information

available on the actual number of Class A and Class B licensed dog

dealers who use permanent tethering as a means of primary enclosure.

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

considered small businesses. We do not expect the elimination of

permanent tethering as a means of primary enclosure to have a

significant impact on dog dealers, large or small, because permanent

tethering as a means of primary enclosure is rarely, if ever, utilized

by Class A and Class B licensed dog dealers. We also do not expect the

elimination of permanent tethering as a means of primary enclosure to

have a signficant impact on exhibitors, carriers, intermediate

handlers, or research facilities because permanent tethering is

practically never used by these regulated entities.

This rule contains a reporting and recordkeeping requirement.

Specifically, this rule requires licensees to obtain approval from

APHIS before they may temporarily tether a dog.

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 final 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

The proposed rule that preceded this final rule contained no

information collection or recordkeeping requirements. However, this

final rule contains an information collection requirement that was not

included in the proposed rule. Specifically, this final rule requires

licensees to obtain approval from APHIS before they may temporarily

tether a dog.

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 final rule have been

submitted for approval to the Office of Management and Budget (OMB).

When OMB notifies us of its decision, we will publish a document in the

Federal Register providing notice of the assigned OMB control number

or, if approval is denied, providing notice of what action we plan to

take.

Estimate of burden: Public reporting burden for this collection of

information is estimated to average .5 hours per response.

Respondents: 10.

Estimated number of responses per respondent: 2.0.

Estimated total annual burden on respondents: 10 hours.

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 are amended as follows:

[[Page 43275]]

PART 1--DEFINITION OF TERMS

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

Authority: 7 U.S.C. 2131-2159; 7 CFR 222, 2.80, and 371.2(g).

2. In Sec. 1.1, the definition for primary enclosure is 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 is revised to read as follows:

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

4. Section 3.6 is amended by removing paragraph (c)(2), by

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

(c)(3), respectively, and by adding a new paragraph (c)(4) to read as

follows:

Sec. 3.6 Primary enclosures.

* * * * *

(c) * * *

(4) Prohibited means of primary enclosure. Permanent tethering of

dogs is prohibited for use as primary enclosure. Temporary tethering of

dogs is prohibited for use as primary enclosure unless approval is

obtained from APHIS.

* * * * *

Done in Washington, DC, this 7th day of August 1997.

Terry L. Medley,

Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 97-21370 Filed 8-12-97; 8:45 am]

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