Animal Welfare; Solid Resting Surfaces for Dogs and Cats

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 3

[Docket No. 98-044-2]

Animal Welfare; Solid Resting Surfaces for Dogs and Cats

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are adopting as a final rule, without change, an interim

rule that amended 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. The interim rule

became effective on July 14, 1998. The requirement we removed was

erroneously added in a final rule that amended the requirements for

primary enclosures for dogs and cats to prohibit bare wire flooring in

such enclosures. As stated in the subsequent interim rule, 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 finalizes the removal of an unnecessary

and unintended requirement.

EFFECTIVE DATE: This final rule, which makes no changes to the July 14,

1998, interim rule, is effective May 20, 1999.

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

In an interim rule published in the Federal Register on July 13,

1998 (63 FR 37480-37482, Docket No. 98-044-1), and effective July 14,

1998, we amended the Animal Welfare Act (AWA) regulations in 9 CFR part

3 (referred to below as the regulations) pertaining to primary

enclosures for dogs and cats by removing the requirement that primary

enclosures with suspended flooring made of mesh or slatted construction

include a solid resting surface. This requirement was erroneously added

in a final rule published on January 21, 1998 (63 FR 3017-3023, Docket

No. 95-100-2, effective February 20, 1998). That final rule amended the

requirements for primary enclosures for dogs and cats to prohibit

flooring made of wire (i.e., uncoated metal strands \1/8\ of an inch or

less in diameter). The January 21 final rule also added a requirement

that the suspended floor of any primary enclosure for a dog or cat must

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

Prior to the effective date of the January 21 final rule, primary

enclosures for dogs and cats with suspended flooring made of wire were

required to include a solid resting surface, and primary enclosures

with suspended flooring of mesh or slatted construction using materials

other than wire were not. As a result of an error in the final rule,

all primary enclosures for dogs and cats with suspended flooring of

mesh or slatted construction were required to include a solid resting

surface. One of the purposes of requiring a solid resting surface in

enclosures with suspended flooring made of wire was to provide a

relatively level resting surface for the animals because suspended wire

floors tend to sag and bend. We did not believe that it was necessary

for primary enclosures of mesh or slatted construction not made of wire

to include a solid resting surface. Therefore, we published the interim

rule to remove the requirement that primary enclosures with suspended

flooring of mesh or slatted construction include a solid resting

surface.

Comments on the interim rule were required to be received on or

before September 11, 1998. We received 17 comments by that date. They

were from dog breeders, members of the public, and animal welfare

organizations. The comments were split evenly in support of or

opposition to the interim rule and are discussed below.

Several commenters expressed the general opinion that it is

inhumane to have an animal living on mesh or slatted flooring because

such flooring is uncomfortable for the animals. The commenters stated

that the openings in the floor can cause sores on the animals' paws and

that the claws can get caught. One commenter stated that a solid

resting surface in such enclosures benefits the animals by adding to

their physical comfort and enhancing their psychological well-being by

reducing stress. One commenter stated that solid resting surfaces are

especially beneficial to breeding females and their litters to provide

a place for the pups to nurse and sleep as a group and an area where

they can walk ``without any worry that their feet will slide through or

their toes will catch.'' Two commenters expressed the opinion that toy

breed dogs housed on mesh or slatted floors should have resting boards,

as the size of these dogs puts them in particular danger of catching a

foot in the mesh or slats of the floor. Another commenter stated that

large breeds of dogs housed on mesh or slatted flooring should have a

solid resting surface, but the commenter did not provide a reason. One

commenter stated that, before finalizing the interim rule, research

should be done to determine how comfortable flooring of mesh or slatted

construction is for dogs and cats, perhaps by providing dogs and cats

kept on such floors with access to a solid resting surface and

observing where they choose to rest. The commenter further stated that,

before the public can provide meaningful comments, our agency needs to

describe the types of mesh and slats that are allowed and how much of a

gap may separate each strand or slat.

In response to the comments about the degree of comfort provided by

solid resting surfaces and the need for research on this issue, we are

unaware of any relevant scientific data. Our Agency bases our

regulations on scientific data whenever possible. However, in

promulgating regulations under the AWA, scientific data is often not

available, and we must rely on the knowledge we have gained from our

considerable experience in AWA enforcement. We know from more than 30

years of administering the AWA that dogs and cats raised in enclosures

with suspended floors of mesh or slatted

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construction can be healthy and show no ill effects. Our experience has

also shown that, in warm weather, many dogs and cats seem to prefer to

rest on mesh and slatted flooring rather than on a solid resting

surface, presumably because of the additional airflow that mesh and

slatted flooring allows.

In regard to the comments about injuries to the feet of dogs and

cats housed in primary enclosures with suspended flooring of mesh or

slatted construction, we believe that the current regulations

pertaining to primary enclosures for dogs and cats adequately address

this issue. In Sec. 3.6, paragraph (a)(2)(x) states that, among other

things, the enclosures must ``(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.'' We believe that

these performance-based regulations adequately describe the types of

mesh or slats and sizes of gaps in suspended floors of mesh or slatted

construction that are acceptable to us. We further believe that these

regulations are specific enough to prohibit the use of flooring

materials that could cause foot and leg injuries. Our inspectors report

that most AWA-licensed dog and cat breeders use high-quality coated

wire or galvanized expanded metal in primary enclosures with suspended

flooring.

In regard to the comment concerning the use of solid resting

surfaces in primary enclosures containing breeding females and their

litters, the requirements just cited in Sec. 3.6 (a)(2)(x) apply to

puppies and kittens as well. Moreover, our inspectors have found that

many dog breeders place a tublike container in these enclosures to

contain the puppies but allow the mother to exit and enter.

One commenter urged that the use of resting surfaces made of wood

be prohibited because, being porous, they become damp and hard to

disinfect and dogs chew on them, which can cause injury.

We believe that the current regulations pertaining to primary

enclosures for dogs and cats are adequate to ensure that wooden resting

surfaces do not become a source of injury or pose a sanitation hazard

for dogs and cats. In Sec. 3.6, paragraph (a)(1) states that primary

enclosures must be designed and constructed of suitable materials so

that they are structurally sound and that primary enclosures must be

kept in good repair. Paragraph (a)(2) of Sec. 3.6 states that primary

enclosures must be constructed and maintained so that they (1) have no

sharp points or edges that could injure the dogs and cats, (2) protect

the dogs and cats from injury, and (3) enable all surfaces in contact

with the dogs and cats to be readily cleaned and sanitized or be

replaced when worn or soiled.

Many commenters in support of the interim rule stated that solid

resting surfaces affect the health of puppies and kittens by creating a

dirtier environment for them as a result of the accumulation of fecal

matter. One commenter stated that, in the commenter's experience, most

dogs in primary enclosures with suspended flooring of mesh or slatted

construction that include a solid resting surface will defecate on the

resting surface, thereby defeating the purpose of using mesh or slatted

flooring. (However, one commenter in opposition to the interim rule

stated that, in the commenters experience, most caged animals will not

defecate on their resting surfaces because the surfaces usually serve

as their sleeping areas.) One commenter stated that the requirement for

a solid resting surface created an unnecessary and unusual burden on

animal caretakers by making it necessary to clean the solid surfaces

continually to avoid any potential for bacterial infections. A

commenter in support of the interim rule suggested to regulated

entities concerned about keeping solid resting surfaces clean and

sanitary because of problems associated with the animals' waste that

``allowing animals sufficient exercise time outside of their cages

would reduce the amount of waste an animal would pass in its cage.''

In our experience with AWA enforcement, we have found that solid

resting surfaces in primary enclosures with suspended flooring for dogs

and cats often become areas where excreta collects. In the AWA

regulations pertaining to the care of dogs and cats, 3.11(a) requires

that ``[e]xcreta and food waste must be removed from primary enclosures

for dogs and cats daily and from under primary enclosures as often as

necessary to prevent an excessive accumulation of feces and food waste,

to prevent soiling of the dogs or cats contained in the primary

enclosures, and to reduce disease hazards, insects, pests and odors.''

Even regulated entities who comply with the regulations and clean their

dog and cat primary enclosures daily cannot ensure that solid resting

surfaces are clean at all times. When excreta collect on solid resting

surfaces, they become breeding grounds for bacteria and viruses that

can cause serious infections and diseases in dogs and cats. In regard

to the suggestion of allowing animals sufficient exercise time outside

the primary enclosures, Sec. 3.8 of the regulations requires that

regulated entities develop, document, and follow a plan to provide dogs

with the opportunity to exercise. While we certainly encourage

regulated parties to provide their dogs with as much exercise time as

possible, regulated parties would still have to deal with removal of

animal waste because Sec. 3.11 of the regulations requires removal of

waste from outside runs and pens as well as the entire premises.

Several commenters expressed concern that the interim rule was

promulgated solely to save regulated entities the time and money

involved in cleaning the solid resting surfaces. Some commenters stated

that the requirement for a clean solid resting surface is not overly

burdensome and that the cost estimates provided in the interim rule for

cleaning such surfaces are too high. One commenter further stated that

flooring of mesh or slatted construction allows only some animal waste

to fall through, so regulated entities are already making an investment

in regularly cleaning the cages, and another commenter stated that the

additional cost of cleaning solid resting surfaces would be minimal.

In accordance with Federal law, our agency analyzed the potential

economic effects of our rule on small entities. We created the cost

estimate in the interim rule for cleaning solid resting surfaces based

on certain assumptions. We believe that it is not unrealistic to assume

that it takes 5 minutes to clean each solid resting surface, that labor

is paid at a rate of $6 per hour, and that each resting surface is

cleaned once per day. Based on these assumptions, we estimated that a

dog breeder with 120 enclosures would incur an annual cost of $21,900

for cleaning solid resting surfaces. The commenter did not provide any

specific basis for any revisions to this analysis. In the absence of

any clear evidence that solid resting surfaces in primary enclosures

with suspended flooring of mesh or slatted construction are necessary

for the protection of dogs and cats covered by the AWA, we do not

believe the costs associated with purchasing and cleaning the solid

resting surfaces would be justified.

Many commenters expressed the opinion that the decision to include

a solid resting surface in primary enclosures for dogs and cats should

be left up to the person responsible for caring for the dogs and cats

because professional animal caretakers know what is best for their

animals and will provide for their needs.

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In keeping with Federal regulatory reform initiatives, we strive to

promulgate performance-based rather than engineering-based requirements

whenever possible and to work with regulated entities to help them gain

and maintain compliance with the AWA. We believe that the decision of

whether to include solid resting surfaces in the primary enclosures of

dogs and cats can best be determined by the AWA licensees themselves.

Therefore, for the reasons given in the interim rule and in this

document, we are adopting the interim rule 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 not significant for 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.

PART 3--STANDARDS

Accordingly, we are adopting as a final rule, without change, the

interim rule that amended 9 CFR 3 and that was published at 63 FR

37480-37482 on July 13, 1998.

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

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Done in Washington, DC, this 15th day of April 1999.

Joan M. Arnoldi,

Acting Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 99-9847 Filed 4-19-99; 8:45 am]

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