Animal Welfare; Confiscation of Animals

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 2

[Docket No. 98-065-1]

Animal Welfare; Confiscation of Animals

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend the Animal Welfare Act regulations

to allow us to place animals confiscated from situations detrimental to

the animal's health and well-being with a person or facility that is

not licensed by or registered with the Animal and Plant Health

Inspection Service, U.S. Department of Agriculture, if the person or

facility can offer a level of care equal to or exceeding that required

by the regulations. The change would facilitate the relocation of

confiscated animals and minimize the amount of time neglected, sick, or

injured animals stay in unhealthy situations.

DATES: We invite you to comment on this docket. We will consider all

comments that we receive by July 27, 1999.

ADDRESSES: Please send your comment and three copies to: Docket No. 98-

065-1, Regulatory Analysis and Development, Suite 3C03, 4700 River

Road, Unit 118, Riverdale, MD 20737-1238. Please state that your

comment refers to Docket No. 98-065-1.

You may read any comments that we receive on this docket in our

reading room. The reading room is located in room 1141 of the USDA

South Building, 14th Street and Independence Avenue, SW., Washington,

DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through

Friday, except holidays. To be sure someone is there to help you,

please call (202) 690-2817 before coming.

APHIS documents published in the Federal Register, and related

information, including the names of organizations and individuals who

have commented on APHIS rules, are available on the Internet at http://

www.aphis.usda.gov/ppd/rad/webrepor.html.

FOR FURTHER INFORMATION CONTACT: Dr. Bettye K. Walters, Staff

Veterinarian, Animal Care, APHIS, 4700 River Road Unit 84, Riverdale,

MD 20737-1234; (301) 734-8100.

SUPPLEMENTARY INFORMATION:

Background

The Animal Welfare Act (AWA) (7 U.S.C. 2131 et seq.) authorizes the

Secretary of Agriculture to promulgate standards and other requirements

governing the humane handling, housing, care, treatment, and

transportation of certain animals by dealers and other regulated

businesses. The Secretary of Agriculture has delegated the

responsibility for enforcing the AWA to the Administrator of the Animal

and Plant Health Inspection Service (APHIS). Regulations established

under the AWA are contained in 9 CFR parts 1, 2, and 3. Part 1 contains

definitions for terms used in parts 2 and 3. Part 2 sets forth general

requirements, and part 3 sets forth the standards for the humane

handling, care, treatment, and transportation of covered animals by

regulated entities.

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In part 2, Sec. 2.129 provides for the confiscation and destruction

of animals. Paragraph (a) of Sec. 2.129 provides that if an animal

being held by a dealer, exhibitor, intermediate handler, or carrier is

found by APHIS to be suffering as a result of the failure of the

dealer, exhibitor, intermediate handler, or carrier to comply with the

Animal Welfare regulations, APHIS will notify the dealer, exhibitor,

intermediate handler, or carrier of the condition of the animal and

request that the animal's suffering be alleviated, or that the animal

be euthanized. If the dealer, exhibitor, intermediate handler, or

carrier refuses to comply with APHIS' request, an APHIS official may

confiscate the animal for care, treatment, or disposal.

Paragraph (c) of Sec. 2.129 provides that APHIS may place

confiscated animals with a person or facility that is licensed by or

registered with APHIS and that complies with the regulations and can

provide proper care. Alternatively, the confiscated animals may be

euthanized by APHIS or the receiving facility. The dealer, exhibitor,

intermediate handler, or carrier from whom the animals were confiscated

is responsible for all costs associated with the placement or

euthanasia of the animals.

We are proposing to amend Sec. 2.129(c) to allow APHIS to place

confiscated animals with a person or facility that can offer a level of

care equal to or exceeding that required by the regulations, even if

the person or facility is not licensed by or registered with APHIS.

Such facilities may include local animal shelters. Although

confiscations of animals are relatively rare (approximately two

confiscations per year), we are proposing this action because we have

had problems finding licensees or registrants who have room to

accommodate new animals.

We would expect a person or facility approved to accept confiscated

animals to house, care for, and try to locate permanent homes for the

confiscated animals. The person or facility would also be authorized to

euthanize, if necessary, any animals that were in severe distress,

mortally wounded, or could not be placed in a permanent home in a

reasonable period of time. This action would increase the options for

APHIS when placing confiscated animals and would, therefore, allow

neglected, sick, or injured animals to be removed more quickly from

situations detrimental to their health and well-being.

Executive Order 12866 and Regulatory Flexibility Act

This proposed rule has been reviewed under Executive Order 12866.

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

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

Office of Management and Budget.

We are proposing to amend the Animal Welfare Act regulations to

allow APHIS to place animals confiscated from situations detrimental to

the animals' health and well-being with a person or facility that is

not licensed by or registered with APHIS. The change would increase the

options for APHIS when placing confiscated animals and would,

therefore, facilitate the relocation of confiscated animals and

minimize the amount of time neglected, sick, or injured animals stay in

unhealthy situations.

Confiscation is a complicated and expensive procedure. Currently,

the regulations require that APHIS place confiscated animals with a

person or facility licensed by or registered with APHIS. Finding a

licensee or registrant with the capacity and ability to house and care

for the animals' well-being is one of the major challenges in the

confiscation process. In some cases, local humane protection groups

have been willing to assist in the placement of confiscated animals at

local animal shelters but have been unable to because the shelters are

not licensed by or registered with APHIS.

This proposed rule would make the task of finding an adequate

facility for confiscated animals faster and simpler, which would reduce

APHIS' costs associated with locating a facility and the cost of the

care APHIS must provide when adequate facilities cannot be located. At

times, APHIS assumes the associated costs for care or euthanasia of

confiscated animals when the dealer, exhibitor, intermediate handler,

or carrier from whom the animals were confiscated is unable to pay

these costs and APHIS cannot find a facility at which to place the

animals.

The Regulatory Flexibility Act requires that agencies consider the

potential economic effects of rules on small businesses, organizations,

and governmental jurisdictions. Businesses and organizations

potentially affected by this proposed rule are those that are not

licensed by or registered with APHIS but that can accommodate and

provide adequate care for confiscated animals.

We expect that the types of facilities most likely to accept

confiscated animals under this proposal are animal shelters run by

humane societies. The number of humane societies that are small

entities under the Small Business Administration's (SBA) standards are

unknown because information as to their size in terms of gross receipts

and number of employees is not available. Humane societies are not-for-

profit organizations where some of the employees work on a voluntary

basis, and there is not a way to determine their revenue. In addition,

the costs incurred by humane societies are covered by membership

donations. In the United States, there are at least 121 known humane

societies in 35 States. Most of these are in California (at least 14);

Texas and Illinois (at least 7 each); Florida, Georgia, and Minnesota

(at least 6 each); Oregon, Virginia, Maryland, and Wisconsin (at least

5 each); and Colorado, Alabama, Ohio, Michigan, and Pennsylvania (at

least 4 each).

APHIS confiscates animals, on average, only about twice a year.

Adoption of this proposed rule would expedite relocation of any

confiscated animals. It is likely that the receiving facilities, as

noted above, would be small entities. The regulations require that the

dealer, exhibitor, intermediate handler, or carrier from whom the

animals are confiscated bear all costs associated with performing the

placement or euthanasia. If a facility accepts confiscated animals,

that facility would be responsible for the future costs incurred for

the care of those animals while at the facility. However, APHIS needs

to place confiscated animals only about twice a year, and the

acceptance of confiscated animals is voluntary.

Under these circumstances, the Administrator of the Animal and

Plant Health Inspection Service has determined that this action would

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

entities.

Executive Order 12372

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

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

which requires intergovernmental consultation with State and local

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

Executive Order 12988

This proposed rule has been reviewed under Executive Order 12988,

Civil Justice Reform. It is not intended to have retroactive effect.

This rule would not preempt any State or local laws, regulations, or

policies, unless they present an irreconcilable conflict with this

rule. The Act does not provide administrative procedures which must

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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 2

Animal welfare, Pets, Reporting and recordkeeping requirements,

Research.

Accordingly, we propose to amend 9 CFR part 2 as follows:

PART 2--REGULATIONS

1. The authority citation for part 2 would continue to read as

follows:

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

2. In Sec. 2.129, paragraph (c) would be revised and new paragraph

(d) would be added to read as follows:

Sec. 2.129 Confiscation and destruction of animals.

* * * * *

(c) Confiscated animals may be:

(1) Placed, by sale or donation, with other licensees or

registrants that comply with the standards and regulations and can

provide proper care; or

(2) Placed with persons or facilities that can offer a level of

care equal to or exceeding the standards and regulations, as determined

by APHIS, even if the persons or facilities are not licensed by or

registered with APHIS; or

(3) Euthanized.

(d) The dealer, exhibitor, intermediate handler, or carrier from

whom the animals were confiscated must bear all costs incurred in

performing the placement or euthanasia activities authorized by this

section.

Done in Washington, DC, this 24th day of May 1999.

Joan N. Arnoldi,

Acting Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 99-13621 Filed 5-27-99; 8:45 am]

BILLING CODE 3410-34-P