Humane Treatment of Dogs and Cats; Wire Flooring

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 3

[Docket No. 95-100-2]

RIN 0579-AA78

Humane Treatment of Dogs and Cats; Wire Flooring

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the regulations under the Animal Welfare Act

regarding suspended flooring of mesh or slatted construction in primary

enclosures for dogs and cats. We are requiring that such flooring made

of metal strands be constructed either of metal strands greater than

\1/8\ of an inch in diameter or of metal strands equal to or less than

\1/8\ of an inch in diameter coated with a material such as plastic or

fiberglass. We are also requiring that any primary enclosure with a

suspended floor for a dog or cat be constructed so that the floor does

not bend or sag between the supports. It is our experience that

suspended flooring made of wire (by which we mean any metal strand that

has a diameter equal

[[Page 3018]]

to or less than \1/8\ of an inch) is uncomfortable on animals' feet and

contributes to foot injuries and that suspended flooring made of coated

wire or made of metal strands larger than wire causes fewer such

problems. It is also our experience that suspended floors that bend and

sag can cause psychological trauma for dogs who must try to balance on

them. We believe that adding these requirements will improve comfort

for dogs and cats housed in primary enclosures with suspended floors

and will help eliminate foot injuries to these animals.

DATES: Effective date: February 20, 1998. Compliance dates: February

20, 1998 for primary enclosures constructed on or after that date and

for floors installed or replaced on or after that date and January 21,

2000 for all other primary enclosures.

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

Technician, Animal Care, APHIS, 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. The

Secretary of Agriculture has delegated the responsibility for enforcing

the AWA to the Animal and Plant Health Inspection Service (APHIS).

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

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

regulations) contains specific standards for the humane handling, care,

treatment, and transportation of dogs and cats.

The standards for primary enclosures for dogs and cats are found in

Sec. 3.6. The regulations require that, among other things, all

surfaces in contact with the animals must be able to be readily cleaned

and sanitized or replaced when worn or soiled. Primary enclosures must

also ``(h)ave floors that are constructed in a manner that protects the

dogs'' and cats' feet and legs from injury, and that, if of mesh or

slatted construction, do not allow the dogs' and cats' feet to pass

through any openings in the floor. If the floor of the primary

enclosure is constructed of wire, a solid resting surface or surfaces

that, in the aggregate, are large enough to hold all the occupants of

the primary enclosure at the same time comfortably must be provided.''

On July 2, 1996, we published in the Federal Register (61 FR 34389-

34391, Docket No. 95-100-1) a proposal to amend the regulations to

require that, if the floor of a primary enclosure for a dog or cat is

constructed of wire, the wire must be coated with a material, such as

plastic or fiberglass, that can be cleaned and sanitized readily. We

further proposed to require that the coated wire must have a well-

rounded surface and must be of a large enough diameter so that it is

comfortable on the animals' feet and protects the animals' feet from

injury, and that it must be strong enough that the floor does not sag

or bend between structural supports. We believed that these

requirements would improve comfort for dogs and cats housed in wire-

floored enclosures, would help eliminate foot injuries for such

animals, and would ensure that wire flooring for dogs and cats is clean

and sanitary.

We solicited comments concerning our proposal for 60 days ending

September 3, 1996. We received 51 comments by that date. They were from

dog breeders, humane organizations, veterinarians, trade associations,

and a Federal government agency, among others. Thirty-seven comments

opposed the proposal, seven favored the proposal, and seven did not

explicitly favor or oppose the proposal but asked for some

clarifications. The comments are discussed below by topic.

The proposed rule referenced three public meetings APHIS held in

1996 to gather information on the requirements in 9 CFR part 3, subpart

A, that apply to the care of dogs and cats in the commercial pet trade.

At those meetings, we met with members of affected industries, such as

dealers, research facilities, and commercial animal transporters, and

animal protection organizations. Each of the three meetings was divided

into four workshops covering specific topic areas. One of the workshops

covered sanitation, materials, flooring, and construction of primary

enclosures. Several commenters on the proposal stated that, by issuing

the proposed rule, APHIS had ignored input received from the public

meetings because a common opinion expressed at those meetings was that

APHIS should not issue new rules regarding primary enclosures for dogs

and cats but instead concentrate on enforcing the current regulations.

We have considered that recommendation and all of the others we

received at the public meetings, and further rulemaking may result from

our continued analysis of the input we obtained at those meetings.

However, we believe that, with regard to suspended flooring made of

mesh or slatted construction, a more specific standard is necessary to

make it clear how such flooring should be constructed in order to

protect the dogs and cats from injury. This specificity will make it

easier for APHIS inspectors to ensure consistency in judging the

soundness of such floors and for regulated individuals to comply with

the regulations.

Many commenters requested a more specific definition of wire. They

wanted to know if we consider expanded metal, welded rods, and other

types of metal flooring of mesh or slatted construction to be wire;

many commenters stated that galvanized expanded metal works well for

flooring in primary enclosures for dogs and cats. Some commenters

requested that the regulations specify a certain width of diameter

(gauge) to differentiate between wire and other types of metal strands,

such as rods.

We agree that we need to be more specific about what we consider

wire, and we regret any confusion that was caused by this lack of

specificity in the proposed rule. Moreover, we agree that certain types

of suspended flooring made of metal strands in a mesh or slatted

configuration are not harmful to dogs and cats and do not need to be

coated with a material such as plastic or fiberglass to ensure the

animals' comfort and safety. We do not want to place an unnecessary

burden on the regulated industry by establishing a requirement that

would cause AWA licensees and registrants to replace types of suspended

floors that are not known to cause harm to dogs and cats.

We do not consider any flooring material that is inflexible, such

as expanded metal, to be wire. Floors made of inflexible metal strands

do not bend and sag and, therefore, provide an even resting surface for

the animals. Moreover, floors made of inflexible metal strands cause

fewer foot problems than floors made of flexible strands, such as wire,

because, to be inflexible, the strands must be of a substantial

diameter. We agree with the commenters who stated that we need to be

more specific regarding acceptable diameters of metal strands used in

flooring for dogs and cats. The diameter of the metal strands plays a

significant role in regard to ensuring the comfort and safety for the

animals because strands of a relatively large diameter are less likely

to cause injuries and discomfort to the animals than strands with very

narrow diameters. Animals housed on floors made of metal strands of a

relatively large diameter are less likely to suffer from interdigital

cysts

[[Page 3019]]

and lesions caused by the digits of the animals' paws passing around

the individual strands.

In this final rule, we are requiring that metal strands used in

flooring be coated if the metal strands have a diameter equal to or

less than \1/8\ of an inch (9 gauge). We chose \1/8\ of an inch as the

defining measurement, in part, because that measurement is used by the

metalworking industry as the point of demarcation between welded wire

and welded rods. In addition, many cage manufacturers currently use

metal strands with diameters greater than \1/8\ of an inch in cage

production. Therefore, cages made with floors of such metal strands are

easily available to consumers. Such cages are sturdy, and the floors

are less likely to break easily from rust or from the weight of the

animal than cages made of metal strands with a diameter of \1/8\ of an

inch or less (hereafter in this document referred to as wire).

We are making changes in other areas of the regulations to be

consistent with this use of the word ``wire.'' The word ``wire''

appears in reference to flooring in Secs. 3.6(a)(2)(x), 3.11(a), and

3.14(a)(9) and refers to metal strands in general. We are amending

these sections to remove the word ``wire'' from them.

Several commenters questioned APHIS' justification for the proposal

and asked if APHIS has scientific evidence to show that wire flooring

is harmful to dogs and cats.

We are not aware of any scientific research that has been done

regarding the inadequacy of wire flooring in providing for the comfort

and well-being of dogs and cats. As stated in the proposed rule, this

belief is based on our own experience in AWA enforcement. Because APHIS

has been enforcing the AWA for over 30 years, our field staff of Animal

Care inspectors has extensive experience in monitoring the well-being

of dogs and cats raised for breeding. The idea to prohibit bare wire

flooring in primary enclosures for dogs and cats originated within the

Animal Care staff. APHIS veterinarians have been concerned for some

time that bare wire flooring often causes discomfort for dogs and cats,

provides inadequate support for them, and has the potential to cause

lesions and sores on the animals' feet. This perception was confirmed

in a recent survey of Animal Care inspectors. The responses indicated

that, in the year preceding the survey, the 39 inspectors who responded

to the survey were aware of a total of 238 animals that were injured as

the result of being housed on bare wire flooring. A majority of the

survey respondents indicated that bare wire flooring often sags or

bends, creating an uncomfortable resting place for animals, and causes

lesions or sores to animals' feet; the majority of respondents further

indicated that coated wire flooring does not cause these problems.

One commenter said that not enough information was provided in the

proposal to explain why the current standards for flooring are

ineffective for protecting the animals or how requiring coated wire

will correct the inadequacy.

While the current regulations regarding primary enclosures for dogs

and cats require that the floors be constructed in a manner that

protects the dogs' and cats' feet and legs from injury, the regulations

do not address the issue of basic comfort for the animals. In enforcing

the AWA, APHIS is charged with, among other things, promulgating

standards to govern the humane care and treatment of animals covered by

the law. Therefore, in carrying out the AWA, we believe that we are

responsible for establishing minimum levels of comfort for regulated

animals. We have come to believe that, while wire flooring may not

actually cause injury to all dogs and cats housed on it, such flooring

is generally uncomfortable for these animals. Coated wire provides a

stronger mesh and a more inflexible surface than bare wire. Because

many dogs acquire foot lesions and suffer psychological trauma from

trying to balance on wire floors, which often sag and bend, we believe

that it is necessary to change the existing regulations concerning

flooring for dogs and cats to prohibit bare wire flooring.

Some commenters stated that coated or bare wire of the same

diameter and mesh size are likely to be equal in terms of comfort under

foot. We disagree. Our inspectors have found that coated wire generally

causes fewer lesions on animals' feet than bare wire.

Other commenters suggested that we require a certain width of the

mesh at a size small enough to prevent foot and leg injuries. We do not

believe that it is necessary to specify a mesh width for wire flooring.

The regulations currently specify that, if the floor of the primary

enclosure is of mesh or slatted construction, the floor may not allow

the dogs' and cats' feet to pass through any openings in the floor. We

believe that this requirement is specific enough to ensure that the

mesh is of a sufficient size to prevent foot and leg injuries from

passage through the floor.

Some commenters questioned the quality of wire coatings currently

available on the commercial market. Others stated that, once cracks

develop in the coating of coated wire, germs can accumulate in the

cracks, and the wire under the coating can rust badly as such wire is

often not galvanized.

We have found that high-quality coated wire is readily available to

consumers through kennel magazines and building supply stores and can

be purchased in bulk rolls. According to our inspectors, most licensees

are already using coated wire or some other acceptable type of mesh or

slatted flooring, such as galvanized expanded metal. Some commenters

who currently use coated wire stated that they think coated wire makes

an excellent floor for both comfort and cleanliness and that they have

never experienced problems with flooring made of coated wire. In our

experience, coated wire is generally easier to keep clean than bare

wire because it provides a smoother surface. Bare wire is prone to

rust, which creates a rough surface that is hard to clean. When a

coated wire floor becomes cracked to the point that rust develops, the

floor should be replaced.

Many commenters expressed concern about the length of time a

plastic or fiberglass coating would remain on wire used for flooring

for dogs and cats. Some commenters stated that dogs chew on coated

wire, destroying the coating. The commenters wanted to know whether

they would be in violation of the regulations if their dogs chewed off

the coating and whether they would be required to replace the flooring

as soon as it was damaged from being chewed. Other commenters expressed

concern that dogs could become ill from ingesting the coating material.

Breeders who experience extensive problems with dogs chewing on

coated wire are probably not providing enough physical or psychological

stimulation for their dogs and should perhaps provide them with

diversions such as pet chews or toys. While we recognize that the

possibility exists for dogs to become ill from ingesting the coating

material, we have not been made aware of such incidents from the many

licensees who already use coated wire flooring. We believe that it is

unlikely that the relatively small amounts of coating that an animal

would ingest before human intervention occurred would seriously harm

the animal. We will expect breeders whose dogs chew on the coating of

coated wire floors to replace the flooring when an APHIS inspector

determines that the flooring is too worn for further use. However,

breeders who have chronic difficulties with dogs chewing on flooring

made of coated wire have the option of using flooring made of metal

strands that are of a diameter greater than \1/8\ of an inch or any of

the many other types of acceptable flooring.

[[Page 3020]]

Two commenters recommended that APHIS prohibit the use of any type

of flooring of mesh or slatted construction in primary enclosures for

dogs and cats and instead require the use of solid flooring made of

such materials as impervious concrete or stainless steel. We have found

that, for animals raised in the commercial pet breeding industry,

primary enclosures with flooring that allows the passage of excrement

are generally kept cleaner than primary enclosures with solid flooring

surfaces. We believe that the commercial pet breeding industry has

demonstrated that animals can successfully be raised on suspended

flooring of mesh or slatted construction. AWA licensees may certainly

choose to use primary enclosures with floors made of solid surfaces,

but we do not believe that it is necessary to require the use of such

floors at this time.

One commenter requested that we allow uncoated wire to be used in

the flooring of primary enclosures of dogs and cats in research

projects in which fecal collection is required, to prevent any

interference with the research as a result of the adherence of fecal

material to coated wire flooring. Researchers in this situation may use

flooring made of metal strands of a diameter greater than \1/8\ of an

inch. If a researcher can prove that, for the purposes of the research,

the dog or cat needs to be housed on bare wire flooring, the researcher

may request approval through the laboratory's Institutional Animal Care

and Use Committee in accordance with 9 CFR part 2.38(k)(1) for an

exemption to the flooring requirements.

Two commenters made comments and recommendations regarding AWA

enforcement, the AWA regulations pertaining to veterinary care provided

to regulated animals, and the breeding frequency for female animals in

the commercial pet trade. In addition, one of the commenters had

recommendations regarding reclassification of animal dealers, primary

enclosures, exercise requirements, and air transit of animals. Although

these comments are outside the scope of the proposed regulation, we are

taking them into consideration. If we decide to make any changes to the

AWA regulations in response to these comments, we will publish a

proposed rule in the Federal Register.

One commenter indicated that we should extend the proposed

regulation to cover dogs and cats in the care of show breeders, pounds,

humane societies, groomers, and boarding kennels. While we agree that

all dogs and cats should be treated in a humane manner, the AWA does

not authorize us to promulgate standards for the care of animals in

these circumstances.

As stated in the proposal, we will have two compliance dates for

this final rule. We are requiring that any new primary enclosures

constructed on or after 30 days from the date of publication of this

final rule in the Federal Register, and any floors installed on or

after that date, will have to comply with the final rule. Other

existing enclosures must be brought into compliance within 2 years.

Although several commenters stated that the 2-year compliance period

was reasonable, some thought that this timeframe was too long, and one

thought that it was too short. Several commenters thought that the rule

change should include a ``grandfather clause'' to allow the use of

existing flooring in primary enclosures until it wears out. One

commenter proposed that the 2-year compliance period apply ``also to

those which are able to demonstrate that wire flooring was installed

within 90 days of final publication in a manner consistent with current

requirements'' to prevent facilities that have new construction under

way at the time of final rule publication from having to destroy

partially completed facilities. We have considered these comments, but

we are not making any change to the proposed phase-in of compliance

dates. We believe that the two timeframes discussed above provide ample

time for licensees and registrants who have primary enclosures with

wire flooring to convert the flooring to any of the many acceptable

types.

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 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. 604, we have prepared a Final

Regulatory Flexibility Analysis, which is set out below, regarding the

economic impact of this rule on small entities. The discussion also

serves as our cost-benefit analysis under Executive Order 12866.

APHIS administers the Animal Welfare Act (AWA), which requires that

minimum standards of care and treatment be established for certain

animals bred for commercial sale, used in research, transported

commercially, or exhibited to the public. Dogs and cats are covered

under the AWA.

In the July 2, 1996, Federal Register, APHIS proposed (61 FR 34389-

34391) that, if the floor of a primary enclosure for dogs or cats

covered by the AWA is constructed of wire, the wire must be coated with

a material such as plastic or fiberglass. APHIS further proposed that

the coated wire: (1) have a well-rounded surface and be large enough in

diameter so that it is comfortable on the animals' feet and protects

the animals' feet from injury; and (2) be strong enough so that the

floor does not sag or bend between the structural supports. The

proposed rule suggested two effective dates: The first would have

required that all new construction and replacements be in compliance 30

days after publication of the final rule; the second would have

required that all regulated facilities be in compliance no later than 2

years after publication of the final rule.

The proposal was in response to concern that wire flooring is

inadequate in providing for the comfort and well-being of dogs and

cats. In developing the proposal, APHIS considered its own experience

in enforcing the AWA, as well as the recommendations and opinions

expressed by participants at three public meetings hosted by the agency

in 1996 to gather information on the regulations that cover the care of

cats and dogs in the commercial trade. The current AWA standards do not

specifically preclude wire flooring for housing dogs and cats, and the

proposal pointed out a number of problems with such flooring. Bare wire

can be uncomfortable on the animals' feet because of its narrow

diameter. Bare wire is prone to rust, which not only affects the

structural integrity of the primary enclosure but can also cause foot

injuries because rusty wire is abrasive. Bare wire is difficult to

clean and sanitize thoroughly because rust makes the wire semiporous in

places. Finally, bare wire flooring often sags or bends between

structural supports, creating an uncomfortable resting surface. The

proposed rule change was intended to eliminate or mitigate these

problems.

APHIS received 51 comments on the proposal. Thirty-seven commenters

opposed the proposal, seven favored it, and seven did not indicate a

preference. Many of those opposed to the proposal argued that it was

not adequately justified, both in terms of any hard evidence (e.g.,

inspection reports, documented cases) and in terms of the insufficiency

of the current regulations. The U.S. Small Business Administration

(SBA) commented that, prior to issuing

[[Page 3021]]

a final rule, APHIS should better articulate the scope of the problem

and should consider the possibility of viable alternatives.

The final rule is essentially a refined version of the proposed

rule. The proposed rule did not define wire, and many commenters

requested clarification as to what APHIS considers to be wire. Under

the final rule, APHIS defines wire as flexible metal strands \1/8\ of

an inch or less in diameter. The rule change is needed because the

current regulations do not specifically preclude wire flooring, a

documented source of injuries and discomfort. The commenters' arguments

that the rule is not needed are not persuasive. Many commenters argued

that the rule was not justified with any scientific evidence. That

argument is correct, to the extent that the published proposal did not

include any hard evidence supporting the rule change. However, the

absence of hard evidence does not mean that the rule is not needed or

that it was initiated without adequate forethought. APHIS proposed the

rule change only after carefully considering the views of persons

within and outside the agency.

In early 1997 (following the receipt of public comment), APHIS

conducted a survey of its field inspectors. The inspectors, many of

whom are licensed veterinarians, have extensive experience in

monitoring the well-being of dogs and cats raised for breeding. Of the

39 inspectors responding to the survey, over half had more than 21

percent of their facilities having dogs and cats; one-third of the

respondents had more than 50 percent of their facilities having dogs

and cats.

The survey results document the problems with wire flooring that

were identified in the proposal. The survey revealed that, during the

past year alone, the inspectors were aware of 238 animal injuries that

resulted from wire flooring at facilities under their inspection. The

number of reported injuries would no doubt have been even higher if

inspections were conducted on a more frequent basis. (Inspectors visit

each facility on an average of only 1.46 times per year.)

Of the five most common types of flooring used in suspended

enclosures for dogs and cats (coated wire, molded plastic, expanded

metal, metal rods, and bare metal wire), the inspectors ranked bare

wire last in terms of what is best for the animals; coated wire was

ranked second. Molded-plastic flooring was ranked first, but that type

of flooring has been rejected as a viable alternative because of its

cost. The advantages of molded-plastic flooring are not justified by

its additional cost.

Some commenters agreed with the intent of the rule but disagreed

with the proposed solution. They maintained that any type of mesh

flooring is inadequate and that APHIS should instead require flooring

made of impervious concrete, Teflon, stainless steel, or fiberglass.

APHIS agrees that these materials can make excellent flooring surfaces

for dogs and cats, if a concerted effort is made to keep them clean.

However, APHIS inspectors have found that animals raised in primary

enclosures with suspended flooring that allows the passage of fecal

material are often kept in cleaner conditions than animals raised on

flooring made of solid surfaces. Therefore, to protect the health of

AWA-regulated animals by helping to ensure the cleanliness of their

enclosures, APHIS will continue to allow dogs and cats to be raised in

enclosures with suspended floors that allow the passage of fecal

material.

Many commenters argued against the rule on the grounds that the

current standards are already sufficient; they stated that those

standards merely need to be enforced uniformly. However, enforcement

activity, regardless of how diligent or aggressive, will never solve

the injury and discomfort problems if the regulations continue to allow

for the use of the material that causes the problems in the first

place. Likewise, one commenter suggested that the injuries might be due

more to neglect than to wire flooring and that an increase in the

caretaker-to-animal ratio might be a better solution than requiring

coated wire. However, the injuries and discomfort caused by wire

flooring are not directly related to the level of supervision provided.

Even if the caretaker-to-animal ratio were increased, the animals would

still experience problems on floors made of bare wire.

Over half of the surveyed inspectors disagreed that the current

regulations on wire flooring are sufficient. Furthermore, any

corrective action taken as a result of enforcement activity is likely

to produce the very same results that this rule change is intended to

achieve, i.e., the replacement of bare metal strands that are \1/8\ of

an inch or less in diameter with an acceptable flooring material. From

a regulatory standpoint, there seem to be only two solutions: Have

regulated entities replace the unacceptable flooring in existing

enclosures or have them purchase new or used enclosures with acceptable

flooring already built in. The rule change allows regulated entities

the option of choosing either solution, thereby minimizing the rule's

economic impact.

Finally, many commenters were concerned about the proposed rule's

lack of specificity. They pointed out that the term ``wire'' was not

clearly defined, an important consideration as not all metal strands

used in flooring are harmful to animals. That concern is a reasonable

one and, for that reason, the final rule defines wire as flexible metal

strands that are \1/8\ of an inch or less in diameter. This

modification was made to distinguish between metal strands that can be

harmful to animals and inflexible metal strands, such as rods, that are

not. This modification will allow APHIS inspectors to be consistent

when judging the soundness of suspended floors of mesh or slatted

construction. This modification will also make it easier for regulated

individuals and organizations to comply with the new rule and

significantly reduce the rule's impact.

Small Entity Impact

The Regulatory Flexibility Act requires that agencies consider the

economic impact of rule changes on small entities. In its initial

regulatory flexibility analysis, APHIS stated that the proposed rule

change would affect all breeders, dealers, research facilities, and

exhibitors of dogs and cats that are licensed or registered under the

AWA and that house their animals in primary enclosures with wire

floors. However, APHIS stated that it could not at that time make a

definitive finding as to the proposed rule's impact because certain

critical information was not available. For example, the total number

of licensees and registrants was known, but the number who housed dogs

and cats on wire flooring was not available. Nor was information

available on the number of animals involved. For that reason, APHIS

sought comments on the proposed rule's potential effects. APHIS

specifically sought comment on the number of licensees and registrants

who would have to replace wire flooring as a result of the proposed

rule and the average number of animals these licensees house.

Unfortunately, the commenters furnished little or no new

information on the rule's overall impact on small entities. Several

commenters stated that it would be too costly to implement, but none

provided details to support that statement. One commenter stated that

it would cost $27,949 (labor and materials) to replace his galvanized

expanded metal with coated wire (the commenter further stated the cost

would be $42,949, or $15,000 more in additional labor costs, if the

commenter

[[Page 3022]]

could not ``rent, borrow, or buy'' two winches). However, galvanized

expanded metal would not have to be replaced under the rule, so that

cost estimate is not relevant. In any event, the commenter provided no

details as to how the dollar amount was arrived at, including

information on the square footage of the flooring to be replaced.

In fiscal year 1995, 10,108 facilities were licensed or registered

under the AWA. Of that number, 4,325 were licensed dealers, 2,304 were

licensed exhibitors, and 3,479 were registrants. The dealers are

subdivided into two classes. Class A dealers (3,056) breed animals, and

Class B dealers (1,269) serve as animal brokers. The registrants

comprise research facilities (2,688), carriers and intermediate

handlers (756), and exhibitors (35).

It is not known how many of the licensees and registrants are

considered small entities under SBA standards, since information as to

their size (in terms of gross receipts or number of employees) is not

available. However, it is reasonable to assume that most are small,

based on composite data for providers of the same and similar services

in the United States. In 1992, the per-firm average gross receipts for

all 6,804 firms in SIC 0752 (which includes breeders) was $115,290,

well below the SBA's small-entity threshold of $5.0 million. Similarly,

the 1992 per-establishment average employment for all 3,826 U.S.

establishments in SIC 8731 (which includes research facilities) was 29,

well below the SBA's small-entity threshold of 500 employees.

The economic impact of the rule change cannot be determined with

certainty because critical information, such as the number of licensees

and registrants who currently house dogs and cats on wire flooring is

not available. However, based on information furnished by APHIS and the

industry, discussed below, the economic impact is not expected to be

significant.

For the overwhelming bulk of research facilities, the final rule

will have virtually no economic impact because the use of wire flooring

of any diameter size for dogs and cats in those facilities is

rare.1 Nor will the rule significantly affect regulated

exhibitors because few use dogs and cats as exhibit animals. Registered

carriers and intermediate handlers will also be largely unaffected

because the enclosures they use to transport animals are not considered

to be the animals' ``primary'' enclosures.

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\1\ Members of the National Association for Biomedical Research

(NABR) account for between 50 and 60 percent of all dogs used in

research. Barbara Rich of NABR said that members' use of bare wire

flooring is rare. Steve Smith (APHIS) indicated that use of bare

wire flooring by non-NABR research facilities is also rare.

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As a group, dealers (breeders and brokers) of dogs stand to be

affected most by the rule change. However, even the impact on dog

dealers should be minimal. (The impact on AWA-licensed cat dealers is

likely to be negligible because most raise their animals on solid

flooring surfaces in primary enclosures containing litter boxes, which

are required by the regulations. Moreover, the percentage of licensed

dealers who deal in cats is extremely small; the vast majority of

licensed dealers deal in dogs.)

It is estimated that there are approximately 2,000 Class A dog

breeders in the United States, who produce about 175,000 dogs

annually--an average of 90 dogs per breeder.2 To support the

production of 90 dogs annually, each breeder would need about 16

separate enclosures--13 to accommodate the mothers and their newborns

and 3 to accommodate the fathers. (This calculation assumes that: (1)

newborns are housed with their mothers before being sold; (2) each

mother produces about 7 newborns annually; (3) fathers are housed

separately from the mothers and the newborns; and (4) the ratio of

mothers to fathers at each facility is 4 to 1.) The 16 enclosures, in

turn, would translate into a total of 156 square feet of needed floor

space, assuming all mothers and fathers are medium-sized. (Floor space

requirements for primary enclosures vary depending on the size of the

animals; large dogs on average require 13 square feet of floor space,

but small dogs require only 6.5 square feet. Medium-sized dogs are

assumed to need 9.75 square feet, an average of the large and small dog

requirements.)

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\2\ Per N. Marshall Myers (Pet Industry Joint Advisory Council).

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Based on a recent quote, the material cost for a 200-square-foot

roll of 14-gauge vinyl-coated galvanized wire is $148.60. The same roll

without the vinyl coating costs $78.70.3 The cost

difference, therefore, is $69.90, or $0.35 per square foot. Based on

the average floor space of 156 square feet, the maximum additional cost

per breeder for the coated wire would be $55 (156 x $0.35). The

maximum additional cost for all 2,000 dog breeders would be $110,000

(2,000 x $55). These cost figures represent a worst-case scenario

because they assume that each breeder would have to replace all 156

square feet of floor space under the new rule. Such a scenario is

unlikely because not all flooring used by dealers in housing for dogs

is wire.

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\3\ These material quotes were obtained by Steve Smith (APHIS).

In the initial analysis, APHIS stated that the market price of both

bare and coated wire varies, depending on the quality and diameter

width of the material. APHIS asserted that bare wire of the type

most often used as flooring sells for approximately $1.50 per square

foot and that coated wire (that meets the other standards) sells for

between $2.25 and $5.00 per square foot.

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It is estimated that there are approximately 75 Class B dog brokers

in the United States and that these brokers purchase/sell about 315,000

dogs annually--an average of 4,200 dogs per broker.4 To

support the purchase/sale of 4,200 dogs annually, each broker would

need about 27 separate enclosures. (This calculation assumes that: (1)

the brokers have custody of each dog for 1 week; and (2) the dogs are

housed three to an enclosure.) The 27 enclosures, in turn, would

translate into a total of 176 square feet of needed floor space,

assuming that all dogs are small-sized. (Most dogs in the custody of

brokers are puppies, and small dogs require only 6.5 square feet of

floor space.) Based on the average floor space of 176 square feet, the

maximum additional cost per broker for the coated wire would be $62

(176 x $0.35). The maximum additional cost for all 75 dog brokers would

be $4,650 (75 x $62). Again, these cost figures represent a worst-case

scenario because they assume that each broker would have to replace all

176 square feet of floor space under the new rule. Such a scenario is

unlikely.

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\4\ Per N. Marshall Myers (Pet Industry Joint Advisory Council).

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Small entities should not experience any additional labor costs as

a result of the rule. Regulated entities have 2 years to bring existing

flooring into compliance. By that time, it is likely that all bare wire

flooring will have been replaced anyway, due to its limited useful

life. The rule, therefore, should not force regulated entities into

premature replacement of existing flooring. Because of that, and

because the labor cost to replace wire flooring should be the same

regardless of whether the wire is coated or uncoated, the rule should

have no impact on small entities' labor costs.

On average, therefore, it would cost each breeder only about $55 to

switch from bare wire to coated wire. This amount is relatively

insignificant; it represents less than 1 percent of the per-firm

average gross receipts for all firms in SIC 0752, which includes

breeders. The average cost of $62 for each broker would also be

relatively insignificant--less than 1 percent of the per-establishment

average sales for all establishments in SIC 5199, which

[[Page 3023]]

includes brokers. The rule would have a carryover cost effect because

each subsequent replacement would require coated wire or some other

acceptable material, such as galvanized expanded metal. However, the

increased cost of coated wire would be made up, at least partially,

over time because coated wire will provide longer use.

This rule contains no reporting 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 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

This 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 in 9 CFR Part 3

Animal welfare, Marine mammals, Pets, Reporting and recordkeeping

requirements, Research, Transportation.

Accordingly, 9 CFR part 3 is amended as follows:

PART 3--STANDARDS

1. The authority citation for part 3 continues to read as follows:

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

2. Section 3.6 is amended as follows:

a. In paragraph (a)(2)(x), the words ``constructed of wire'' are

removed, and the words ``of mesh or slatted construction'' are added in

their place, and the word ``and'' at the end of the paragraph is

removed.

b. In paragraph (a)(2)(xi), the period at the end of the paragraph

is removed, and ``; and'' is added in its place.

c. A new paragraph (a)(2)(xii) is added to read as follows:

Sec. 3.6 Primary enclosures.

* * * * *

(a) * * *

(2) * * *

(xii) Primary enclosures constructed on or after February 20, 1998

and floors replaced on or after that date, must comply with the

requirements in this paragraph (a)(2). On or after January 21, 2000,

all primary enclosures must be in compliance with the requirements in

this paragraph (a)(2). If the suspended floor of a primary enclosure is

constructed of metal strands, the strands must either be greater than

\1/8\ of an inch in diameter (9 gauge) or coated with a material such

as plastic or fiberglass. The suspended floor of any primary enclosure

must be strong enough so that the floor does not sag or bend between

the structural supports.

* * * * *

Sec. 3.11 [Amended]

3. In Sec. 3.11(a), the word ``wire'' is removed from the last

sentence, and the word ``mesh'' is added in its place.

Sec. 3.14 [Amended]

4. In Sec. 3.14(a)(9), the word ``wire'' is removed each time it

appears.

Done in Washington, DC, this 13th day of January 1998.

Craig A. Reed,

Acting Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 98-1311 Filed 1-20-98; 8:45 am]

BILLING CODE 3410-34-P