Humane Treatment of Dogs and Cats; Temperature Requirements

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Parts 2 and 3

[Docket No. 95-078-3]

RIN 0579-AA74

Humane Treatment of Dogs and Cats; Temperature Requirements

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

animals under the Animal Welfare Act by revising certain requirements

pertaining to climatic conditions. We are clarifying the current

temperature requirements for dogs and cats in indoor, sheltered, and

mobile and traveling housing facilities, in primary conveyances used

for transportation, and in the animal holding areas of terminal

facilities. We are also requiring that any animal covered by the Animal

Welfare Act shall never be exposed to combinations of temperature,

humidity, and time that would adversely affect the animal's health and

well-being, taking into consideration the animal's health status, age,

breed, or any other pertinent factor. When climatic conditions present

a threat to an animal's health or well-being, appropriate measures must

be taken to alleviate the impact of those conditions. This action will

help ensure that animals protected by the Animal Welfare Act are

maintained in climatic conditions conducive to the animals' health and

well-being.

EFFECTIVE DATE: April 3, 1998.

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

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

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

Secretary has delegated the responsibility for enforcing the AWA to the

U.S. Department of Agriculture's (USDA) Animal and Plant Health

Inspection Service (APHIS). Regulations established under the AWA are

contained in 9 CFR parts 1, 2, and 3. Parts 1 and 2 contain definitions

and general requirements, and part 3 contains specific standards for

the care of animals. Subpart A of 9 CFR part 3 contains requirements

specifically pertaining to 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 in

subpart A of 9 CFR part 3 by removing the option for facilities to use

tethering as a means of primary enclosure for dogs and revising the

temperature requirements for indoor, sheltered, and mobile and

traveling housing facilities, for primary conveyances used in

transportation, and for the animal holding areas of terminal facilities

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

(32.2 deg.C) when dogs or cats are present. This proposal was based,

in part, on the recommendations and opinions expressed at three public

meetings our agency hosted in 1996 to gather information on the

regulations that apply to the care of dogs and cats in the commercial

pet trade. In addition, our experience in AWA enforcement led us to

conclude that continuous confinement of dogs by tethers is inhumane and

that a maximum temperature restriction was needed for the care of dogs

and cats in certain circumstances because there have been incidents in

which dogs or cats exposed to extremely high temperatures during air

travel died or were seriously harmed.

We solicited comments concerning our proposal for 60 days ending

September 3, 1996. We received 54 comments by that date. After

reviewing the comments, we decided to publish a final rule regarding

tethering and reconsider the temperature requirements. The final rule

regarding tethering (62 FR 43272-43275, Docket No. 95-078-2) was

published August 13, 1997. Therefore, this document concerns only the

part of the proposal concerning temperature requirements for dogs and

cats.

Forty-two of the 54 comments received on the proposed rule

addressed the proposed temperature requirements for dogs and cats.

These comments were from dog dealers; associations representing the

pets, transportation, animal feed, and biomedical research industries;

pharmaceutical companies; humane organizations; a Federal government

agency; a veterinarian; and other interested individuals. A few of the

comments generally supported the proposal; the majority generally

opposed it. Comments on the proposed rule itself are discussed below;

comments on the potential economic effects of the proposed rule and on

the Initial Regulatory Flexibility Analysis that was included in the

proposed rule are discussed in the section of this document that

pertains to Executive Order 12866 and the Regulatory Flexibility Act.

The issue raised by the most number of commenters was that the

proposal appeared to be unfounded and that any proposed change to the

AWA temperature requirements should be based on hard data supporting

the need for the proposed change. This concern was expressed both by

commenters who were opposed and commenters who were unopposed to the

proposed rule. Several commenters mentioned the need for APHIS to

consider two sources of relevant information: the recommendations

regarding temperature requirements made at the three public meetings

hosted by our agency in 1996 and from a study commissioned by our

agency and the Federal Aviation Administration (FAA) regarding the

[[Page 10494]]

climatic conditions in cargo holds of various aircraft commonly used to

transport animals.

One commenter disagreed with the suggestion that we had

insufficient data upon which to base the proposed rule. The commenter

stated that Congress has been concerned about the safety of animals

being transported by the airlines since 1976 and that, at one of the

APHIS public meetings, several humane organizations reported receiving

frequent complaints from the public regarding animal deaths during air

transit. Conversely, another commenter stated that, while a few

participants at the public meetings suggested that there have been

numerous such incidents of animal deaths, no evidence was produced, and

many participants did not agree with these assertions. One commenter

requested documented evidence of such incidents, and we have provided

information directly to the commenter regarding the cases APHIS has had

against the major airlines in recent years.

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

shows that the health and well-being of dogs and cats is seriously

compromised at temperatures exceeding 90 deg.F. In fact, we believe

that such a finding is unlikely because of the varying tolerances dogs

and cats have to temperature extremes at different ages, the wide

variety of dog breeds that have been developed over centuries for

different purposes, including acclimation to different climates, and a

host of other variables. As stated in the proposed rule, our belief

that temperatures exceeding 90 deg.F can be harmful to dogs and cats

was based on our experience in AWA enforcement and on the information

gathered from the three public meetings. (We have not received the

final report of the study on cargo holds commissioned by our agency and

the FAA.) Despite a lack of hard data regarding a specific safe maximum

temperature, our experience in regulating the care of dogs and cats and

available information led us to believe that the current AWA

temperature requirements were not adequate to ensure the well-being of

dogs and cats in the commercial pet trade and that a maximum

temperature limit was needed.

The majority of the commenters were opposed to the establishment of

a 90- deg.F limit for the care of dogs and cats in indoor and sheltered

housing facilities and in primary conveyances used for transportation.

Their numerous reasons included the following: That the proposed 90-

deg.F limit would be unnecessarily restrictive because animals can

adjust to temperature changes; that there is a lack of evidence that

exposure of healthy adult dogs to temperatures in excess of 90 deg.F

for limited periods of time is inhumane if the dogs are provided

adequate ventilation and are shielded from the sun; and that the 90-

deg.F limit was too high in that it would be insufficient for

safeguarding the health and lives of dogs and cats in the circumstances

covered in the proposal. Two commenters stated that the limit should be

85 deg.F, and one commenter thought the limit should be 80 deg.F.

Several commenters stated that, by itself, temperature is a poor

indicator of comfort or stress and that other factors, such as

humidity, airflow, length of exposure, and breed, hair coat, age,

weight, health status, and acclimation of the animal, need to be

considered in evaluating whether an animal is being exposed to

significantly stressful conditions.

A couple of commenters stated that care and treatment issues such

as appropriate temperature levels cannot be effectively regulated by a

single standard and should be left up to responsible veterinary

evaluation and discretion. A few dealers stated that the proposed rule

was unnecessary because people in the pet profession know how to care

for animals and have a financial stake in ensuring their well-being.

Several commenters stated that the current regulations pertaining to

temperature requirements are sufficient for ensuring the health and

well-being of dogs and cats, if the regulations are properly enforced.

One commenter indicated that APHIS should not change the regulations

pertaining to dog and cat dealers and instead should concentrate on

enforcing temperature requirements for dogs and cats in transit by

airlines.

Several commenters took issue with the lack of flexibility in the

proposed rule in that, as written, temperatures must ``never'' rise

above 90 deg.F when dogs or cats are present. The commenters stated

that a power failure occurring on a hot day could cause the temperature

to rise above that level even in facilities with air conditioning, and

then those facilities would be out of compliance with the proposed

requirement. In addition, several commenters stated that this lack of

flexibility would make it practically impossible at certain times of

the year in most U.S. airport cities for pets to be shipped on aircraft

because it is not feasible to assume that animals in air transit would

``never'' be exposed to temperatures exceeding 90 deg.F. Many

commenters expressed concern that the lack of flexibility in the

proposed rule could cause the airlines to establish an embargo on

shipping animals. One commenter suggested that, if an upper temperature

limit is to be established, it would be better to give a time limit for

the animals to be exposed to that temperature rather than mandate that

the temperature shall ``never'' exceed that level when dogs or cats are

present.

We have carefully considered all of these comments and have decided

that many of the concerns expressed have merit. We agree with the

commenters that factors such as humidity and length of exposure, and

age, breed, health status, and acclimation of the animal must all be

considered in establishing a safe temperature range for a particular

animal. Moreover, we agree that a prohibition on allowing dogs and cats

in the circumstances covered by the proposal to be exposed to

temperatures exceeding 90 deg.F for even a minimal amount of time

under extenuating circumstances is neither feasible nor necessary;

while many dogs or cats in the circumstances covered by the proposal

might suffer at temperatures exceeding 90 deg.F for an extended period

of time, few dogs or cats would not be able to withstand such

temperatures for a limited period.

We have decided that setting a maximum temperature limit--whether

it be 90 deg.F or any other temperature--for the care of dogs and cats

in the circumstances described in the proposed rule would not achieve

our goals for establishing a sound temperature policy for these animals

and would place an unnecessary burden on the regulated industry.

Moreover, establishing a single maximum temperature that could be used

to ensure the health and well-being of all dogs and cats covered by the

AWA in indoor, sheltered, and mobile or traveling housing facilities,

in primary conveyances used for transportation, and in the animal

holding areas of terminal facilities, and still be realistic for the

industry to achieve, would be very difficult because too many variables

are involved.

Instead, after carefully reviewing the comments received and

further analyzing the current temperature requirements for dogs and

cats in 9 CFR parts 2 and 3, we have decided that we basically agree

with the commenters who stated that the current regulations are

sufficient to protect the health and well-being of dogs and cats in the

commercial pet trade. The incidents mentioned in the proposed rule in

which animals died or were seriously harmed after having been exposed

to extremely high temperatures during air

[[Page 10495]]

travel were the result of human error--not a lack of adequate governing

regulations. All such cases of animal neglect have been successfully

prosecuted based on the current regulations. However, we agree with

opinions expressed at the public meetings on the care of dogs and cats

in the commercial pet trade that the regulations pertaining to

temperature requirements could and should be clarified and improved.

The current regulations for the care of dogs and cats in indoor,

sheltered, and mobile or traveling housing facilities, in primary

conveyances used for transportation, and in the animal holding areas of

terminal facilities state that, among other things, the ambient

temperature must not fall below 45 deg.F or rise above 85 deg.F for

more than 4 consecutive hours when dogs or cats are present (9 CFR

3.2(a), 3.3(a), 3.5(a), and 3.15(e)). (For primary conveyances used for

transportation, this requirement applies only during surface

transportation.) The current regulations regarding the handling of dogs

or cats to or from a primary conveyance or a terminal facility state

that, among other things, the dogs or cats must not be exposed to an

ambient temperature above 85 deg.F (29.5 deg.C) for a period of more

than 45 minutes. We are concerned that some regulated parties have

assumed that compliance with these temperature requirements is all that

is required to ensure compliance with the AWA temperature requirements

for dogs and cats in the circumstances just described. However, 9 CFR

parts 2 and 3 include several other temperature and handling

requirements that are also applicable to these animals.

Additional temperature requirements in 9 CFR parts 2 and 3

pertaining to dogs and cats in the circumstances covered by the

proposed rule state that ``dogs and cats must be sufficiently heated

and cooled when necessary to protect [them] from temperature extremes

and to provide for their health and well-being'' (Secs. 3.2(a), 3.3(a),

and 3.5(a)), ``[d]uring air transportation, dogs and cats must be held

in cargo areas that are heated or cooled as necessary to maintain an

ambient temperature that ensures the health and well-being of the dogs

and cats'' (Sec. 3.15(d)), ``[d]uring surface transportation, auxiliary

ventilation, such as fans, blowers or air conditioning, must be used in

any animal cargo space containing live dogs or cats when the ambient

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

deg.C)'' (Sec. 3.15(e)), and ``handling of all animals shall be done .

. . in a manner that does not cause trauma, overheating, excessive

cooling, behavioral stress, physical harm, or unnecessary discomfort''

(Secs. 2.38(f)(1) and 2.131(a)(1)).

The regulations that state that the ambient temperature must never

rise above 85 deg.F for more than 4 consecutive hours (commonly

referred to as the ``4-hour rule''), or more than 45 minutes in the

case of dogs or cats being transported to or from a primary conveyance

or terminal facility, do not override these additional temperature

requirements. Consequently, a person responsible for the care of an

animal that died from exposure to high temperatures might have been in

compliance with the ``4-hour rule'' but would have been in violation of

the other temperature and handling requirements in 9 CFR parts 2 and 3

by not ensuring that the animals were cooled as necessary to provide

for their well-being. In other words, the AWA regulations require that

an individual responsible for a dog or cat's care must take measures to

ensure the animal's well-being regardless of whether the temperature is

85 deg.F or some temperature in excess of 85 deg.F. While some dogs

and cats can easily withstand temperatures exceeding 85 deg.F for

relatively long periods of time, other dogs and cats could be in danger

at such temperatures for a relatively short period, especially with

high humidity levels. Therefore, in this final rule, we are clarifying

that the ``4-hour rule'' does not preclude the need to comply with the

other temperature and handling requirements in 9 CFR parts 2 and 3. We

are adding to Secs. 3.2(a), 3.3(a), 3.5(a), 3.15(e), 3.18(d), and

3.19(a)(1) and (3) the following sentence: ``The preceding requirements

are in addition to, not in place of, all other requirements pertaining

to climatic conditions in parts 2 and 3 of this chapter.''

In addition, because we agree with the many commenters who stated

that humidity is an important factor in determining an animal's ability

to withstand heat, we are also adding a new regulation regarding

humidity levels that will apply to all animals covered by the AWA and

making some minor changes to part 3 regarding humidity as it affects

dogs and cats in the commercial pet trade. It is generally recognized

that high temperatures with low humidity are less dangerous and more

comfortable for humans and animals than high temperatures and high

humidity. As stated above, individual animals can withstand high

temperatures or high temperatures combined with high humidity for

different lengths of time. Therefore, we are adding to the handling

regulations in Sec. 2.131 new requirements that pertain to climatic

conditions. The new regulations specify that, when climatic conditions,

such as extreme temperatures and humidity levels, present a threat to

an animal's health or well-being, appropriate measures must be taken to

alleviate the impact of those conditions. Moreover, at no time may an

animal be exposed to a combination of temperature, humidity, and time

that would present a threat to the animal's health and well-being,

taking into consideration such factors as the animal's health status,

age, breed, and temperature acclimation.

We believe these changes to the regulations are more realistic for

the commercial pet and transportation industries to achieve than the

proposed 90- deg.F limit and actually better convey our goals for a

sound temperature policy for dogs, cats, and other animals covered by

the AWA.

Other Comments on the Proposed Rule

Several commenters stated that applying the proposed requirement to

indoor and sheltered primary enclosures but not to outdoor primary

enclosures is contradictory and discriminatory. One commenter agreed

that the proposed temperature requirement should not apply to outdoor

facilities but stated that the proposed rule should also not apply to

animals in sheltered facilities with unobstructed access to an outdoor

run. A couple of commenters expressed concern that the proposal implied

that the USDA endorses outdoor facilities for dogs and cats over indoor

facilities because one of the alternatives listed in the proposal for

dog and cat dealers to gain compliance with the proposed requirement

was for them to establish outdoor shelters.

We did not mean to imply that we believe outdoor primary facilities

for dogs and cats are preferable to indoor facilities. In regard to

preventing stress from high temperatures, we continue to believe that

outdoor shelters and runs provide dogs and cats with access to fresh

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

regulations), and other climatic and environmental factors that help to

alleviate stress from high temperatures. Therefore, we believe that

temperatures in excess of 85 deg.F are more comfortable outdoors than

indoors, if auxiliary ventilation is not provided indoors. We do not

recommend the use of outdoor facilities over indoor facilities for dogs

and cats.

Two commenters said that USDA should expand the proposed rule to

deal with minimum temperatures as well as

[[Page 10496]]

maximum temperatures and should disallow animals in the circumstances

covered by the proposed rule to ever be exposed to temperatures below

50 deg.F. One commenter further stated that infant animals in the

circumstances covered by the proposed rule should never be subjected to

temperatures less than 65 deg.F.

The current temperature requirements that apply to indoor housing

facilities state, among other things, that ``[w]hen dogs or cats are

present, the ambient temperature in the facility must not fall below 50

deg.F (10 deg.C) for dogs and cats not acclimated to lower

temperatures, for those breeds that cannot tolerate lower temperatures

without stress or discomfort (such as short-haired breeds), and for

sick, aged, young, or infirm dogs and cats, except as approved by the

attending veterinarian. Dry bedding, solid resting boards, or other

methods of conserving body heat must be provided when temperatures are

below 50 deg.F (10 deg.C). The ambient temperature must not fall

below 45 deg.F (7.2 deg.C) for more than 4 consecutive hours when

dogs or cats are present * * *.'' (Sec. 3.2(a)). These temperature

requirements are the same as those for sheltered and mobile or

traveling housing facilities. The temperature requirements for primary

conveyances and terminal facilities state, among other things, that the

ambient temperature may not fall below 45 deg.F (7.2 deg.C) for a

period of more than 4 hours when dogs or cats are present. The

temperature requirements regarding transporting dogs or cats to or from

terminal facilities and primary conveyances state, among other things,

that the ambient temperature must not fall below 45 deg.F (7.2 deg.C)

for a period of more than 45 minutes, unless the animal is accompanied

by a certificate of acclimation to lower temperatures as provided in

Sec. 3.13(e).

The sentence described previously that is being added through this

final rule to several sections in 9 CFR part 3 to clarify that the ``4-

hour rule'' does not preempt the other temperature and handling

requirements also pertains to minimum temperatures. We believe that the

current temperature requirements regarding specific minimum temperature

levels, in conjunction with the current AWA regulations that pertain to

temperature in general and the changes resulting from this final rule,

are sufficient to protect dogs and cats in the circumstances covered by

the proposal from adverse exposure to cold temperatures.

One commenter questioned whether there is evidence that airlines

routinely have monitored or will monitor the temperatures in cargo

holds and how APHIS would monitor the temperature of cargo holds during

flight. Another commenter stated that airlines should be required to

ascertain current temperatures at all transfer points and destinations

for animals being transported and not permit shipment if the

temperatures are outside the requirements.

For the airlines or any other regulated entity to ensure compliance

with the AWA temperature requirements for dogs and cats, monitoring the

animals they are transporting is more important than taking temperature

readings. As such, the current requirements pertaining to air

transportation of dogs and cats state, among other things, that

``[d]uring air transportation of dogs or cats, it is the responsibility

of the carrier to observe the dogs or cats as frequently as

circumstances allow, but not less than once every 4 hours if the animal

cargo area is accessible during flight. If the animal cargo area is not

accessible during flight, the carrier must observe the dogs or cats

whenever they are loaded and unloaded and whenever the animal cargo

space is otherwise accessible to make sure they have sufficient air for

normal breathing, that the animal cargo area meets the heating and

cooling requirements of Sec. 3.15(d), and that all other applicable

standards of this subpart are being complied with * * *.'' (9 CFR

3.17(b)).

We believe that these current requirements, in conjunction with the

AWA regulations discussed previously that pertain to temperature in

general, as well as the new requirement being added to 9 CFR part 2

through this final rule, are sufficient to ensure the health and well-

being of animals during air transport. In regard to requiring the

airlines to ascertain temperatures at transfer points and refusing to

transport animals if the temperatures are outside the appropriate

range, the airlines can and do refuse to ship animals if there is any

question as to whether an individual animal could be transported

safely. However, we do not agree that obtaining temperatures at

transfer points prior to departure is necessary. The outside

temperature at an airport is irrelevant if efforts are made to keep the

animals sufficiently heated or cooled to ensure their well-being while

in the cargo hold of the airplane on the tarmac and while the animals

are being transported to or from the airplane or terminal facility.

One commenter stated in regard to Sec. 3.15(d) that, ``if it is

required that the passenger cabin of an airplane be pressurized at

8,000 feet and less, then the cargo hold in which animals are

transported must also be pressurized.'' We have made no change in

response to this comment because aircraft cargo holds that contain

animals are pressurized the same as passenger cabins.

One commenter suggested that the proposed rule could benefit from a

definition of the term ``terminal facilities'' in 9 CFR, part 1. We

believe that this term is self-explanatory, and, consequently, have

made no change to the regulations in response to this comment.

One commenter stated that USDA should mandate that airlines (1)

advise passengers who have lost an animal on a flight that they should

file a complaint with USDA, and (2) advise USDA themselves of such

incidents. The commenter maintained that the data obtained from such

reporting would better enable USDA to learn precisely which aircraft

and which cargo holds present the greatest risks to animals. Another

commenter further stated that carriers and intermediate handlers should

be required to notify APHIS within 24 hours of the death of an animal

being transported and should be required to maintain an annual report

on the transportation of companion animals to include (1) the total

number of animals shipped, and (2) the total number of injuries,

fatalities, and losses. The commenter had additional recommendations

regarding establishing requirements under the AWA intended to ensure

the safety of animals in air transit.

We believe that the statistics the commenters recommended we obtain

could be informative but question the true value of having such data.

Specifically, we question whether having it would necessarily improve

our enforcement of the AWA and whether any benefit gained from such

data would be worth the paperwork burden that would be placed on the

regulated industry and the information collection burden that would be

placed upon our agency. However, we are considering these suggestions

as well as the other recommendations made by the commenter pertaining

to air transport of animals. In addition, we are engaged in a public

information campaign regarding the APHIS Animal Care program, and one

of the areas of emphasis is USDA's role in regulating the air transport

of animals. We have developed a brochure, ``Traveling With Your Pet,''

that is being distributed to, among others, travel agencies,

veterinarians, and any member of the public who requests it. Animal

Care has also established a home page on the

[[Page 10497]]

World Wide Web that includes information on safe pet travel.

A few commenters indicated that we should extend the proposed

regulation to cover dogs and cats housed by humane societies, pounds,

and individual pet owners. 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 by humane societies,

pounds, or individual pet owners, unless they are acting as dealers or

exhibitors.

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. 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 expressed concerns about the format of the three

public meetings APHIS held in 1996 to gather information on the

regulations pertaining to the care of dogs and cats in the commercial

pet trade. Specifically, the commenter stated, ``If APHIS is going to

use the workshop format to justify specific rulemaking, rather than

merely as a mechanism for gather[ing] opinions, it must develop a

mechanism to assure that reasonable standards of accountability are

imposed on workshop participants, so that workshop input can be

properly evaluated and not be overly influenced by aggressive and

excessively vocal interest groups.'' The commenter was particularly

concerned that participants who claimed there have been numerous

incidents of injury and death of dogs and cats during air transport did

not produce supporting evidence, ``and it was clear that the majority

of participants in the air transport session did not concur with these

allegations.''

Our agency held the three public meetings in 1996 to gather

information from interested and affected parties. We believe the

workshop format was useful for eliciting information. We have

considered and continue to consider the wide range of opinions

expressed at those meetings, and further rulemaking may result. We did

not use the input obtained from the public meetings to ``justify'' our

proposed rule; as stated previously, the proposed rule was based on

information gathered at the meetings as well as on our own experience

in AWA enforcement.

Therefore, based on the rationale set forth in the proposed rule

and in this document, we are adopting the provisions discussed in this

document as a final rule.

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.

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). The proposed rule would have amended the regulations under the

Animal Welfare Act by removing the option for facilities to use

tethering as a means of primary enclosure for dogs and revising the

temperature requirements for indoor, sheltered, and mobile and

traveling housing facilities, for primary conveyances used in

transportation, and for the animal holding areas of terminal facilities

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

(32.2 deg.C) when dogs or cats are present. As part of the proposed

rule document, we performed an Initial Regulatory Flexibility Analysis

in which we invited comments concerning potential economic effects of

the proposed rule.

This document pertains only to the part of the proposed rule

concerning the temperature requirements. We received several comments

from members of the potentially affected industries concerning the

likely economic effects of the proposed temperature requirements and

one comment from the U.S. Small Business Administration (SBA) that

stated the Initial Regulatory Flexibility Analysis fell short of what

is required by the Regulatory Flexibility Act. The SBA further stated

that APHIS should better indicate the scope of the problem before

issuing a final rule and consider other alternatives than just the rule

as proposed or no change to the regulations.

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.

Animal dealers commented on both the potential direct and indirect

economic effects of the proposed rule on their businesses. Several

commenters stated that the estimated cost of compliance in the Initial

Regulatory Flexibility Analysis was too low and that implementing the

proposal would be much more burdensome and costly than the analysis

showed. Two research firms commented that, in most parts of the United

States, air conditioning is the only means of ensuring that the

temperature in an enclosed building never rises above 90 deg.F. One

firm then estimated that installation of air conditioning at the firm's

research facility would cost $350,000, additional annual utility costs

would be $37,340, and an additional $400,000 would be required for a

generator to prevent cessation of air conditioning during a power

outage. The other research firm stated that the cost of installing and

operating air conditioning ``would jeopardize our ability to operate

profitably and may result in a substantial increase in cost to our

pharmaceutical clients.'' One dealer indicated that the estimated cost

for additional electricity needed for air conditioning was too low, and

another dealer questioned whether the cost of a standby generating

system is within an affordable price range for a small kennel.

Some animal dealers expressed concern that the airlines might stop

transporting animals instead of trying to comply with additional USDA

animal care and handling requirements. The commenters were especially

concerned that many small dealers cannot afford the costs of

transporting their animals by surface transportation. They further

stated that, if the airlines end air transport of animals, then small

dealers would be put out of business and the wholesale pet industry

would either become obsolete or the domain of a few large dealers. One

commenter stated

[[Page 10498]]

that small dealers provide diversity in the commercial pet business.

A commenter representing the airline industry expressed similar

concerns. The commenter stated that, if the proposed rule was

finalized, it would ``have a destructive and costly effect on

individual pet owners, owners of assistance dogs, the pet trade,

breeders of dogs and cats, and the dog and cat show competition

industry'' because ``airlines simply will not be able to carry pet

animals from a large number of airport cities for large portions of

each year.''

We recognize and agree with many of the concerns just described.

However, we believe that all of these concerns are relevant to the

proposed rule only. The final rule should not cause economic hardship

for the regulated industries because it serves to clarify the current

regulations and adds no new requirements that would add a financial

burden. The final rule clarifies that the standards in subpart A of 9

CFR part 3 that state that the ambient temperature must not fall below

45 deg.F or rise above 85 deg.F for more than 4 consecutive hours

when dogs or cats are present do not override the other requirements

pertaining to climatic conditions and handling in 9 CFR parts 2 and 3.

In addition, the final rule adds a new requirement to 9 CFR part 2 that

applies to climatic conditions for all animals covered by the AWA.

Under the new rule, when climatic conditions, such as extreme

temperatures and humidity levels, present a threat to an animal's

health or well-being, appropriate measures must be taken to alleviate

the impact of those conditions. Moreover, at no time may an animal be

exposed to a combination of temperature, humidity, and time that would

present a threat to the animal's health and well-being, taking into

consideration such factors as the animal's health status, age, breed,

and temperature acclimation. Because the AWA regulations have always

required regulated parties to take appropriate measures to ensure the

health and well-being of their animals, these requirements basically

serve to clarify existing requirements.

In regard to the comment letter from the SBA, APHIS Animal Care

officials agreed that more specific information was needed regarding

the scope of the problem, so APHIS headquarters surveyed the Animal

Care field staff on the issue of temperature requirements for dogs and

cats. The respondents included 38 animal care inspectors and 1

supervisory animal care specialist. The survey responses indicate that,

in the facilities inspected by the respondents in the past 5 years,

2,516 dogs and cats have been severely affected, and 108 dogs and cats

have died, as the result of exposure to excessive temperatures. In

regard to the SBA's comment that other viable alternatives than just

the rule as proposed or no change to the regulations need to be

considered, APHIS is taking an entirely different approach to the

proposal in the final rule.

There are no reporting or recordkeeping requirements associated

with this rule.

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

9 CFR Part 2

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 2 and 3 are amended as follows:

PART 2--REGULATIONS

1. The authority citation for part 2 continues to read as follows:

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

2. In Sec. 2.131, a new paragraph (d) is added to read as follows:

Sec. 2.131 Handling of animals.

* * * * *

(d) When climatic conditions present a threat to an animal's health

or well-being, appropriate measures must be taken to alleviate the

impact of those conditions. An animal may never be subjected to any

combination of temperature, humidity, and time that is detrimental to

the animal's health or well-being, taking into consideration such

factors as the animal's age, species, breed, overall health status, and

acclimation.

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. In Sec. 3.2, paragraph (a) is amended as follows:

a. In the first sentence, by adding the words ``or humidity'' after

the word ``temperature''.

b. At the end of the paragraph, by adding a new sentence to read as

set forth below.

Sec. 3.2 Indoor housing facilities.

(a) * * * The preceding requirements are in addition to, not in

place of, all other requirements pertaining to climatic conditions in

parts 2 and 3 of this chapter.

* * * * *

5. In Sec. 3.3, paragraph (a) is amended as follows:

a. In the first sentence, by adding the words ``or humidity'' after

the word ``temperature''.

b. At the end of the paragraph, by adding a new sentence to read as

set forth below.

Sec. 3.3 Sheltered housing facilities.

(a) * * * The preceding requirements are in addition to, not in

place of, all other requirements pertaining to climatic conditions in

parts 2 and 3 of this chapter.

* * * * *

6. In Sec. 3.5, paragraph (a) is amended as follows:

a. In the first sentence, by adding the words ``or humidity'' after

the word ``temperature''.

b. At the end of the paragraph, by adding a new sentence to read as

set forth below.

Sec. 3.5 Mobile or traveling housing facilities.

(a) * * * The preceding requirements are in addition to, not in

place of, all other requirements pertaining to climatic conditions in

parts 2 and 3 of this chapter.

* * * * *

7. Section 3.15 is amended as follows:

a. In paragraph (d), the first sentence, by adding the words ``and

humidity'' after the word ``temperature''.

[[Page 10499]]

b. In paragraph (e), at the end of the paragraph by adding a new

sentence to read as set forth below.

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

* * * * *

(e) * * * The preceding requirements are in addition to, not in

place of, all other requirements pertaining to climatic conditions in

parts 2 and 3 of this chapter.

* * * * *

6. In Sec. 3.18, paragraph (d) is amended by adding at the end of

the paragraph a new sentence to read as follows:

Sec. 3.18 Terminal facilities.

* * * * *

(d) * * * The preceding requirements are in addition to, not in

place of, all other requirements pertaining to climatic conditions in

parts 2 and 3 of this chapter.

* * * * *

7. In Sec. 3.19, paragraphs (a)(1) and (3) are amended by adding at

the end of both paragraphs a new sentence to read as follows:

Sec. 3.19 Handling.

(a) * * *

(1) * * * The preceding requirements are in addition to, not in

place of, all other requirements pertaining to climatic conditions in

parts 2 and 3 of this chapter.

* * * * *

(3) * * * The preceding requirements are in addition to, not in

place of, all other requirements pertaining to climatic conditions in

parts 2 and 3 of this chapter.

* * * * *

Done in Washington, DC, this 26th day of February 1998.

Terry L. Medley,

Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 98-5538 Filed 3-3-98; 8:45 am]

BILLING CODE 3410-34-P