Animal Welfare; Primary Enclosures for Dogs and Cats

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 3

[Docket No. 98-044-1]

Animal Welfare; Primary Enclosures for Dogs and Cats

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Interim rule and request for comments.

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

pertaining to primary enclosures for dogs and cats by removing the

requirement that primary enclosures with flooring made of mesh or

slatted construction include a solid resting surface. This requirement

was erroneously added in a recent final rule that amended the

requirements for primary enclosures for dogs and cats to prohibit bare

wire flooring in such enclosures. However, we do not believe that it is

necessary for primary enclosures with acceptable flooring of mesh or

slatted construction to include a solid resting surface. Therefore,

this action relieves an unnecessary and unintended requirement.

DATES: Interim rule effective July 14, 1998. Consideration will be

given only to comments received on or before September 11, 1998.

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

Docket No. 98-044-1, 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. 98-044-1. 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, Animal Care, AC, APHIS, 4700 River Road Unit 84, Riverdale,

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

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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. 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.

On January 21, 1998, we published in the Federal Register a final

rule (63 FR 3017-3023, Docket No. 95-100-2, effective February 20,

1998) that amended the regulations pertaining to primary enclosures for

dogs and cats. The final rule added two new requirements: (1) If a

primary enclosure has a suspended floor made of metal strands, the

strands must be greater than \1/8\ of an inch in diameter or coated

with a material such as plastic or fiberglass, and (2) any kind of

suspended floor in a primary enclosure must be strong enough so that

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

essence, the final rule prohibited the use of bare wire (meaning

uncoated metal strands having a diameter of \1/8\ of an inch or less)

in suspended flooring of primary enclosures for dogs and cats. We made

these changes because we determined that bare wire flooring is

uncomfortable for the feet of dogs and cats and contributes to foot

injuries and that suspended flooring made of coated wire or of metal

strands larger in diameter than wire causes fewer such problems. We

have also found that many dogs acquire foot lesions and suffer

psychological trauma from trying to balance on suspended floors that

sag and bend. The rule was effective February 20, 1998, but had two

compliance dates: For primary enclosures constructed on or after

February 20, 1998, and for floors installed or replaced on or after

that date, the compliance date was February 20, 1998; for all other

primary enclosures, the compliance date is January 21, 2000.

In the final rule, we removed the word ``wire'' in reference to

flooring material in dog and cat primary enclosures from every section

in the regulations where the word appeared. We made these changes

because, as stated previously in this document and in the preamble to

the final rule, we consider wire to be metal strands \1/8\ of inch or

less in diameter, and the final rule effectively prohibited the use of

wire in flooring of primary enclosures for dogs and cats, unless the

wire is coated with a material such as plastic or fiberglass.

One section of the regulations where the word ``wire'' appeared is

Sec. 3.6(a)(2), which specifies requirements for the construction and

maintenance of primary enclosures for dogs and cats. Prior to

publication of the final rule, Sec. 3.6(a)(2)(x) provided, among other

things: ``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.'' The solid resting surface was

necessary to provide relief to animals housed in primary enclosures

with bare wire flooring.

The final rule removed the words ``constructed of wire'' from this

sentence and replaced them with the words ``of mesh or slatted

construction.'' We made this change in error. By changing the words

``constructed of wire'' in Sec. 3.6(a)(2)(x) to ``of mesh or slatted

construction,'' we unintentionally promulgated a new requirement.

Dog and cat primary enclosures with suspended floors of mesh or

slatted construction (other than those constructed of bare wire) were

not previously required to include a solid resting surface. As a result

of the change to Sec. 3.6(a)(2)(x) in our final rule, all primary

enclosures with suspended flooring of mesh or slatted construction are

required to include a solid resting surface. We do not believe that

this requirement is necessary. Because suspended floors of mesh or

slatted construction, except for those made of bare wire, are

relatively safe and comfortable for dogs and cats, we do not believe

that a separate solid resting surface in primary enclosures with

suspended flooring of acceptable materials is necessary to ensure the

animals' comfort and safety. Moreover, we have found that some

regulated parties find it difficult to keep solid resting surfaces in

primary enclosures for dogs and cats clean and sanitary because of

problems associated with the animals' waste.

Because bare wire floors are now prohibited in primary enclosures,

and because we believe that other types of mesh or slatted floors are

safe and comfortable for dogs and cats, we are amending

Sec. 3.6(a)(2)(x) to remove the requirement that a solid resting

surface or surfaces must be provided in primary enclosures with floors

of mesh or slatted construction. As a result, solid resting surfaces

are not required in primary enclosures with any kind of suspended

flooring. However, this interim rule does not prohibit the inclusion of

solid resting surfaces in dog and cat primary enclosures with suspended

flooring. Regulated parties who can maintain solid resting surfaces in

dog and cat primary enclosures and wish to provide such surfaces for

their animals may do so.

Immediate Action

The Administrator of the Animal and Plant Health Inspection Service

has determined that there is good cause for publishing this interim

rule without prior opportunity for public comment. Immediate action is

warranted to relieve unnecessary restrictions on regulated parties.

Prior to publication of a final rule in the January 21, 1998, Federal

Register (63 FR 3017-3023, Docket No. 95-100-2), primary enclosures

with suspended floors of mesh or slatted construction (other than those

made of bare wire) were not required to include solid resting surfaces

for the enclosed dogs or cats. In that final rule, we unintentionally

added a requirement that dog and cat primary enclosures with such

flooring include a solid resting surface. We do not believe that this

requirement is necessary to ensure the safety and well-being of dogs

and cats covered by the Animal Welfare Act. Therefore, we are

publishing this action, which relieves an unnecessary requirement that

was promulgated in error, as an interim rule.

Because prior notice and other public procedures with respect to

this action are impracticable and contrary to the public interest under

these conditions, we find good cause under 5 U.S.C. 553 to make this

action effective one day after publication in the Federal Register. We

will consider comments that are received within 60 days of publication

of this rule in the Federal Register. After the comment period closes,

we will publish another document in the Federal Register. It will

include a discussion of any comments we receive and any amendments we

are making to the rule as a result of the comments.

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

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the purposes of Executive Order 12866 and, therefore, has not been

reviewed by the Office of Management and Budget.

This rule removes a requirement under the Animal Welfare Act (AWA)

regulations that primary enclosures used for dogs and cats and having

suspended flooring of mesh or slatted construction include solid

resting surfaces. Promulgated in error, this requirement has placed an

unnecessary and unintentional burden on regulated entities. As

explained below, this rule will benefit entities who house dogs and

cats in primary enclosures that have suspended flooring of mesh or

slatted construction. These regulated entities will avoid the cost of

purchasing the resting surfaces, as well as the cost of cleaning those

surfaces following installation. However, the rule does not preclude

regulated entities who wish to provide such surfaces for their animals

from doing so.

The Regulatory Flexibility Act requires that agencies consider the

economic impact of rules on small entities. This rule will primarily

affect animal dealers and research facilities licensed or registered

under the AWA. The exact number of entities affected by the rule is

unknown because the number of AWA licensees and registrants who house

dogs and cats in primary enclosures that have suspended floors of mesh

or slatted construction is unknown. However, it is estimated that

roughly half of the 4,265 licensed dealers and many of the 2,506

registered research facilities will be affected.1 The rule's

impact on regulated exhibitors is insignificant because most do not

exhibit dogs and cats. Registered carriers and intermediate handlers

are also largely unaffected because they only transport animals so they

do not maintain ``primary'' enclosures for regulated animals.

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\1\ In FY96, 10,366 facilities were licensed or registered under

the AWA. Of those facilities, 4,265 were licensed dealers, 2,422

were licensed exhibitors, and 3,679 were registrants. The dealers

are subdivided into two classes. Class A dealers (3,043) breed

animals, and Class B dealers (1,222) serve as animal brokers. The

registrants comprise research facilities (2,506), carriers and

intermediate handlers (1,142), and exhibitors (31). As used here,

the term facilities represents sites, the physical location where

animals are housed. Some licensees and registrants have more than

one site.

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The number of dealers and research facilities that are considered

small entities under U.S. Small Business Administration (SBA) standards

is unknown because 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 in size, 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 (Standard Industrial Classification) 0752, which includes

dog and cat breeders, was $115,290, well below the SBA's small entity

threshold of $5 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. It is very likely, therefore, that small

entities will be the principal beneficiaries of the rule.

Solid resting surfaces used in dog and cat primary enclosures are

made of a variety of materials, including fiberglass, galvanized metal,

or wood, but the most common material used is rubber matting. The

average cost of such surfaces is minimal--about $5 per enclosure. The

resting surfaces are usually not affixed to the enclosures; they are

simply placed on top of the suspended flooring, so as to allow for easy

removal and cleaning. For that reason, there is virtually no labor cost

associated with the installation of such surfaces. Thus, if a breeder

had to install resting surfaces in 120 enclosures, the total cost would

be about $600. However, solid resting surfaces have to be replaced over

time. The replacement rate is unknown and depends on the type of

material used. Those resting surfaces made of fiberglass or galvanized

metal, for example, have to be replaced less frequently than those made

of wood. As a result of the rule, affected entities will avoid this

ongoing replacement cost.

Resting surfaces are usually cleaned by hosing them down. They are

cleaned outside the enclosures, to prevent the animals from getting

wet. Cleaning resting surfaces can be a costly undertaking, largely

because it is labor intensive. For a dog breeder with 120 enclosures,

for example, the annual cost is conservatively estimated at $21,900 per

year. This estimate assumes that: (1) Each resting surface is cleaned

once each day; (2) it takes 5 minutes to clean each resting surface;

and (3) labor is paid at a rate of $6 per hour.

The impact of the rule on individual entities will vary, depending

on the number of enclosures maintained. However, the impact of the rule

on all regulated entities will be beneficial.

Under these circumstances, the Administrator of the Animal and

Plant Health Inspection Service has determined that this action will

not have a significant economic impact on a substantial number of small

entities.

Executive Order 12372

This program/activity is listed in the Catalog of Federal Domestic

Assistance under No. 10.025 and is subject to Executive Order 12372,

which requires intergovernmental consultation with State and local

officials. (See 7 CFR part 3015, subpart V.)

Executive Order 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(a)(2)(x) is revised to read as follows:

Sec. 3.6 Primary enclosures.

* * * * *

(a) * * *

(2) * * *

(x) Have 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; and

* * * * *

Done in Washington, DC, this 8th day of July 1998.

Charles P. Schwalbe,

Acting Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 98-18594 Filed 7-10-98; 8:45 am]

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