43272 Federal Register / Vol. 62, No. 156 / Wednesday, August 13, 1997 / Rules and Regulations

County line; then north along the

Orange/Lake County line to the point of

beginning.

Done in Washington, DC, this 7th day of

August 1997.

Terry L. Medley,

Administrator, Animal and Plant Health

Inspection Service.

[FR Doc. 97–21369 Filed 8–12–97; 8:45 am]

BILLING CODE 3410–34–P

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection

Service

9 CFR Parts 1 and 3

[Docket No. 95–078–2]

RIN 0579–AA74

Humane Treatment of Dogs; Tethering

AGENCY: Animal and Plant Health

Inspection Service, USDA.

ACTION: Final rule.

SUMMARY: We are amending the

regulations for the humane treatment of

dogs under the Animal Welfare Act by

removing the provisions for tethering

dogs as a means of primary enclosure.

Our experience in enforcing the Animal

Welfare Act has led us to conclude that

permanently tethering a dog as a means

of primary enclosure is not a humane

practice that is in the animal’s best

interests. Temporarily tethering a dog

due to health or other reasons would be

permitted if the licensee obtains the

approval of the Animal and Plant Health

Inspection Service. This action will help

ensure that dogs in facilities regulated

under the Animal Welfare Act will be

treated in a manner that is consistent

with the animals’ best interests.

EFFECTIVE DATE: September 12, 1997.

FOR FURTHER INFORMATION CONTACT: Mr.

Stephen Smith, Staff Animal Health

Technician, Animal Care, APHIS, suite

6D02, 4700 River Road Unit 84,

Riverdale, MD 20737–1234, (301) 734–

4972, or e-mail:

snsmith@aphis.usda.gov.

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.

Regulations established under the Act

are contained in 9 CFR parts 1, 2, and

3. Subpart A of 9 CFR part 3 (referred

to below as the regulations) contains

requirements concerning 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 by removing the

option for facilities to use tethering as

a means of primary enclosure. In the

same document, we proposed to amend

the regulations by revising the

temperature requirements for indoor,

sheltered, and mobile and traveling

housing facilities, and for primary

conveyances used in transportation, to

require that the ambient temperature

must never exceed 90 °F (32.2 °C) when

dogs or cats are present.

We solicited comments concerning

our proposal for 60 days ending

September 3, 1996. We received 54

comments by that date. Many of the

comments we received on the proposed

rule expressed concerns with the

proposal to revise the temperature

requirements. This final rule concerns

only the part of the proposal to remove

tethering as a means of primary

enclosure. We are still reviewing the

issues concerning the effects of

temperature on dogs and cats. If we take

any further action regarding

temperature, we will publish the

appropriate document in the Federal

Register.

Thirty-three of the comments received

on the proposed rule addressed the part

of the proposal to remove tethering as a

means of primary enclosure. These

comments were from dog breeders,

humane organizations, a veterinarian,

pet industry associations, an animal

feed industry association,

pharmaceutical companies, a medical

research association, a Federal

government agency, and other interested

individuals. Nine of the comments

supported the proposal; 14 comments

opposed the proposal; 1 comment did

not oppose the proposal, but had

recommendations concerning the

proposal’s Initial Regulatory Flexibility

Analysis; and 9 comments expressed

neither support nor opposition, but

stated that the provisions of the

proposal should be extended to apply to

anyone who owns dogs, instead of only

to licensed breeders and dealers. The

comments are discussed below by topic.

Currently, the regulations provide that

dogs in outside housing facilities

regulated under the AWA may be kept

on tethers as a means of primary

enclosure. We proposed to remove this

provision. Several commenters who

supported the proposed rule stated that,

while they believe tethering should not

be used as a primary enclosure, there

are situations when tethering is useful

for short intervals. For example, the

commenter said an owner may put a dog

on a tether while cleaning its pen, to

isolate the dog for health reasons, or to

restrain an aggressive dog. The

commenters recommended that we state

explicitly in the regulations that

tethering is prohibited as a means of

primary enclosure, and clarify in the

regulations when tethering would be

permissible.

We agree that it would be more clear

to specifically state in the regulations

that permanent tethering is prohibited

as a means of primary enclosure.

Therefore, we are adding a new

paragraph (c)(4) to § 3.6 of the

regulations to state that tethers are

prohibited for use as primary

enclosures. However, we realize that

there may be times when it would be

appropriate, and in the dog’s best

interests, to put a dog on a tether

temporarily, ranging from a few minutes

while the dog’s pen is cleaned to several

days to isolate an animal for health

reasons. If we stated in the regulations

when tethering would be permitted, we

would invariably fail to include some

circumstance. Further, while tethering

may be appropriate for one dog under a

specific circumstance, it may not be

appropriate for another dog under the

same circumstance. Therefore, we are

also adding a provision in new

paragraph (c)(4) to state that a licensee

must obtain the approval of the Animal

and Plant Health Inspection Service

(APHIS) to temporarily tether a dog at

the licensee’s facility. This safeguard

will give APHIS the opportunity to

evaluate on a case-by-case basis the

appropriateness of temporarily tethering

a dog in order to ensure that any

temporary tethering of a dog is in the

animal’s best interests.

A licensee may obtain verbal approval

from an APHIS inspector to temporarily

tether a dog for a period of 3 days or

less. If a licensee intends to regularly

tether a dog for periods of less than 3

days in order to conduct a regular

activity (for example, a licensee intends

to tether a dog every day for 20 minutes

while the dog’s primary enclosure is

being cleaned), the licensee will only

have to obtain verbal approval for such

tethering one time. If a licensee intends

to temporarily tether a dog for a period

to exceed 3 days, the licensee must

obtain written approval from the APHIS

Animal Care Regional Office for the

region in which the licensee operates.

One commenter asked us to specify

that, if an inspector finds a dog to be

temporarily tethered, the inspector

should ask the licensee to show him or

her the dog’s primary enclosure. The
Federal Register / Vol. 62, No. 156 / Wednesday, August 13, 1997 / Rules and Regulations 43273

purpose of this would be to verify that

the tethering arrangement is not

permanent and that the dog has a

primary enclosure. We are not making

any changes to the proposed rule in

response to this comment. We assure

the commenter that, in conducting

inspections of licensed facilities, each

inspector will verify that each animal’s

primary enclosure complies with the

regulations. If a dog is tethered at the

time of an inspection, the inspector will

verify that the licensee has APHIS

approval and that the dog has a primary

enclosure that is in compliance with the

regulations.

Many commenters stated that they

believe tethering is humane and should

be allowed as a means of primary

enclosure. One commenter specified

that if the tether is equipped with a

swivel on the end, it is safe and does not

encumber the movement of the dog.

Other commenters said the proposal did

not present any scientific data to

support the claim that tethering is

inhumane.

We are not making any changes to the

proposal based on these comments. As

we stated in the proposed rule, we do

not have any data on the frequency of

injuries due to tethers. However, our

experience has led us to conclude that

permanently tethering dogs as a means

of primary enclosure is not a humane

practice that is in the animals’ best

interests. Further, permanent tethering

is no longer a generally accepted

practice within the dog dealer industry,

and some industry groups prohibit their

members from using tethering as a

means of permanent restraint. A dog

attached to a tether is significantly

restricted in its movement. A tether can

also become tangled around or hooked

on the dog’s shelter structure or other

objects, further restricting the dog’s

movement and potentially causing

injury. We do not believe that a flexible

tether, a tether with a swivel on the end,

or other such devices would

significantly improve the safety of a

tether. Such devices may improve the

mobility of the dog, but the possibility

would still remain over time for the

tether to become tangled around objects

within the dog’s range.

We reiterate that we are prohibiting

permanent tethering as a means of

primary enclosure. It is possible that

most injuries from tethers are, in part,

due to a dog being unsupervised for

long periods of time while on the tether.

Prohibiting the use of a permanent

tether as a means of primary enclosure

for dogs will minimize the likelihood

that a dog would be left unsupervised

for extended periods of time while on a

tether, thus reducing the likelihood of

injury. We are not prohibiting the use of

temporary tethering for restraining a dog

for short periods of time if the licensee

obtains the approval of APHIS.

One commenter said that our proposal

would be in conflict with the

requirements of some cities that dogs be

tethered. The commenter is correct that

many cities require dogs to be on a leash

or tethered when they are not enclosed

by some other means. These laws are

necessary so that the public is protected

from aggressive dogs and to prevent

dogs from roaming freely. However, we

know of no city that requires dogs to be

tethered as a means of primary

enclosure. Further, our rule prohibiting

the use of a permanent tether as primary

enclosure would apply only to persons

regulated under the AWA (dog breeders,

dealers, exhibitors, carriers,

intermediate handlers, and research

facilities). Individual dog owners would

not be affected by this rule, and could

continue to tether their dogs if they

believe it is appropriate, and if it is not

restricted by local regulations. A facility

regulated under the AWA would still be

permitted to temporarily tether dogs if

the facility obtains the approval of

APHIS.

A few commenters said that tethering

is used to train hunting dogs and should

be allowed for this purpose. At the

present time, the breeding or training of

hunting dogs is not a regulated activity.

Therefore, the activities of hunting dog

breeders and trainers would not be

affected by this rule. If we determine

that standards should be promulgated

for the care of hunting dogs by breeders,

we will publish a proposal in the

Federal Register.

One commenter requested that

tethering be permitted with the

recommendation of a veterinarian. We

would like to emphasize that we are

only prohibiting the use of permanent

tethering as a means of primary

enclosure. Temporarily tethering a dog

due to health or other reasons would be

permitted under this rule if the licensee

obtains the approval of APHIS.

Several commenters said that if

tethering is harmful to dogs housed by

licensed breeders and dealers, then it is

harmful to all dogs. The commenters

said that we should extend the

regulation to prohibit tethering of dogs

housed by humane societies, pounds,

individual pet owners, and hunting

breed producers. While we agree with

commenters that all dogs should be

treated in a humane manner, we are not

making any changes to the rule in

response to these comments. The AWA

authorizes our agency 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 AWA does not authorize us to

promulgate standards for the care of

animals by humane societies, pounds,

or individual pet owners. Requirements

for the care of animals owned by

individuals, and for the enforcement of

animal control laws, are under State or

local authority. Further, as stated

previously in this document, the

breeding or training of hunting dogs is

not a regulated activity at the present

time. If we determine that standards

should be promulgated for the care of

hunting dogs by breeders, we will

publish a proposal in the Federal

Register.

One commenter recommended several

additional amendments to the

regulations concerning primary

enclosures. The recommendations

include requiring that all dogs have an

indoor housing facility and an outdoor

run, revising the formula for calculating

the required enclosure size, adopting

stricter sanitation requirements,

requiring that psychological

enrichments such as toys and human

companionship be provided to dogs

housed in licensed facilities, and adding

additional exercise requirements. This

comment requests amendments that are

outside the scope of the proposed

regulation. However, we will consider

the comment as a request for additional

rulemaking. If we decide to make any

changes to the regulations in response to

this request, we will publish a proposed

rule in the Federal Register.

One comment addressed the Initial

Regulatory Flexibility Analysis that

appeared in the proposed rule. We have

addressed this comment as part of the

Final Regulatory Flexibility Analysis

that appears later in this document.

Therefore, based on the rationale set

forth in the proposed rule and in this

document, we are adopting the

provisions of the proposal as a final rule

with the changes discussed in this

document.

Executive Order 12866 and Regulatory

Flexibility Act

This rule has been reviewed under

Executive Order 12866. The rule has

been determined to be not significant for

the purposes of Executive Order 12866

and, therefore, has not 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). As part of

the proposed rule document, we

performed an Initial Regulatory
43274 Federal Register / Vol. 62, No. 156 / Wednesday, August 13, 1997 / Rules and Regulations

Flexibility Analysis, in which we

invited comments concerning potential

economic effects of the proposed rule.

We received one comment on the

proposed rule that addressed our Initial

Regulatory Flexibility Analysis. This

comment is discussed below. However,

the comment did not specifically offer

information on the potential economic

effects that prohibiting tethering as a

means of primary enclosure would have

on small entities. Therefore, we have

based this Final Regulatory Flexibility

Analysis on the data available to us.

The part of the proposed rule we are

making final will eliminate permanent

tethering as a means of primary

enclosure for dogs in facilities licensed

or registered under the Animal Welfare

Act. We are taking this action because

our experience in enforcing the Animal

Welfare Act has led us to conclude that

permanently tethering a dog as a means

of primary enclosure is not a humane

practice that is in the animal’s best

interests.

The comment we received on the

Initial Regulatory Flexibility Analysis

said that the analysis falls short of what

needs to be included in a Regulatory

Flexibility Analysis. Specifically, the

commenter said that the analysis should

discuss other alternatives to the

proposal, such as requiring a flexible

tether; should show evidence of a

consultative process with the affected

industry; should address how frequently

inspectors find dogs to be injured as a

result of tethering; and should explore

whether or not most injuries are due

more to neglect than to a tether. We

have made no changes to the proposed

rule based on this comment. However,

we have tried to address the

commenters concerns in this final

analysis.

As we stated in the Initial Regulatory

Flexibility Analysis, there is no

information available on the actual

number of Class A and Class B licensed

dog dealers who use tethering as a

means of primary enclosure. Neither do

we have any data on the frequency of

injuries due to tethers. However, our

inspectors report that permanently

tethering a dog as a means of primary

enclosure is rare among licensed

dealers. Kennels and cages are currently

the preferred means of primary

enclosure, with tethering sometimes

used as a temporary restraint. In

addition, permanent tethering is no

longer a generally accepted practice

within the dog dealer industry, and

some industry groups prohibit their

members from using tethering as a

means of permanent restraint.

It is also the experience of APHIS

inspectors that, when used as a means

of primary enclosure, permanent

tethering is not a humane practice that

is in the animal’s best interests. A dog

permanently attached to a tether is

significantly restricted in its movement.

A tether can also become tangled

around or hooked on the dog’s shelter

structure or other objects, further

restricting the dog’s movement and

potentially causing injury. It is possible

that most injuries from tethers are, in

part, due to a dog being unsupervised

for long periods of time while on the

tether. Prohibiting the use of a

permanent tether as a means of primary

enclosure for dogs will minimize the

likelihood that a dog would be left

unsupervised for extended periods of

time while on a tether, thus reducing

the likelihood of injury.

One comment that we have already

addressed in the ‘‘Background’’ section

of this final rule suggests an alternative

to the proposal, and we have considered

this suggestion. The suggested

alternative was to allow tethering as

primary enclosure if the tether is

equipped with a swivel. We do not

believe that a tether with a swivel on the

end, a flexible tether, or other such

devices would significantly improve the

safety of a permanent tether. Such

devices may improve the mobility of the

dog, but the possibility would still

remain for the tether to become tangled

around objects within the dog’s range,

especially over extended periods of

time.

This rule will primarily affect Class A

and Class B licensed dog dealers. As

stated previously in this analysis, there

is no information available on the actual

number of Class A and Class B licensed

dog dealers who use permanent

tethering as a means of primary

enclosure. Over 95 percent of Class A

and Class B licensed dog dealers are

considered small businesses. We do not

expect the elimination of permanent

tethering as a means of primary

enclosure to have a significant impact

on dog dealers, large or small, because

permanent tethering as a means of

primary enclosure is rarely, if ever,

utilized by Class A and Class B licensed

dog dealers. We also do not expect the

elimination of permanent tethering as a

means of primary enclosure to have a

signficant impact on exhibitors, carriers,

intermediate handlers, or research

facilities because permanent tethering is

practically never used by these

regulated entities.

This rule contains a reporting and

recordkeeping requirement.

Specifically, this rule requires licensees

to obtain approval from APHIS before

they may temporarily tether a dog.

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

The proposed rule that preceded this

final rule contained no information

collection or recordkeeping

requirements. However, this final rule

contains an information collection

requirement that was not included in

the proposed rule. Specifically, this

final rule requires licensees to obtain

approval from APHIS before they may

temporarily tether a dog.

In accordance with section 3507(d) of

the Paperwork Reduction Act of 1995

(44 U.S.C. 3501 et seq.), the information

collection or recordkeeping

requirements included in this final rule

have been submitted for approval to the

Office of Management and Budget

(OMB). When OMB notifies us of its

decision, we will publish a document in

the Federal Register providing notice of

the assigned OMB control number or, if

approval is denied, providing notice of

what action we plan to take.

Estimate of burden: Public reporting

burden for this collection of information

is estimated to average .5 hours per

response.

Respondents: 10.

Estimated number of responses per

respondent: 2.0.

Estimated total annual burden on

respondents: 10 hours.

List of Subjects

9 CFR Part 1

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 1 and 3 are

amended as follows:
Federal Register / Vol. 62, No. 156 / Wednesday, August 13, 1997 / Rules and Regulations 43275

PART 1—DEFINITION OF TERMS

1. The authority citation for part 1

continues to read as follows:

Authority: 7 U.S.C. 2131–2159; 7 CFR 222,

2.80, and 371.2(g).

2. In § 1.1, the definition for primary

enclosure is revised to read as follows:

§ 1.1 Definitions.

* * * * *

Primary enclosure means any

structure or device used to restrict an

animal or animals to a limited amount

of space, such as a room, pen, run, cage,

compartment, pool, or hutch.

* * * * *

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. Section 3.6 is amended by

removing paragraph (c)(2), by

redesignating paragraphs (c)(3) and

(c)(4) as paragraphs (c)(2) and (c)(3),

respectively, and by adding a new

paragraph (c)(4) to read as follows:

§ 3.6 Primary enclosures.

* * * * *

(c) * * *

(4) Prohibited means of primary

enclosure. Permanent tethering of dogs

is prohibited for use as primary

enclosure. Temporary tethering of dogs

is prohibited for use as primary

enclosure unless approval is obtained

from APHIS.

* * * * *

Done in Washington, DC, this 7th day of

August 1997.

Terry L. Medley,

Administrator, Animal and Plant Health

Inspection Service.

[FR Doc. 97–21370 Filed 8–12–97; 8:45 am]

BILLING CODE 3410–34–P

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Docket No. 97–ACE–8]

Amendment to Class E Airspace,

Storm Lake, IA

AGENCY: Federal Aviation

Administration, DOT.

ACTION: Direct final rule; confirmation of

effective date.

SUMMARY: This rule amends the Class E

airspace area at Storm Lake Municipal

Airport, Storm Lake, IA. The effect of

this rule is to provide additional

controlled airspace for aircraft arriving

and departing the Storm Lake Municipal

Airport.

EFFECTIVE DATE: 0901 UTC September

11, 1997.

FOR FURTHER INFORMATION CONTACT:

Kathy Randolph, Air Traffic Division,

Airspace Branch, ACE–520C, Federal

Aviation Administration, 601 East 12th

Street, Kansas City, Missouri 64106;

telephone number: (816) 426–3408.

SUPPLEMENTARY INFORMATION: The FAA

published this direct final rule with a

request for comments in the Federal

Register on May 21, 1997 (62 FR 27688).

The FAA uses the direct final

rulemaking procedure for a noncontroversial rule where the FAA

believes that there will be no adverse

public comment. This direct final rule

advised the public that no adverse

comments were anticipated, and that

useless a written adverse comment, or a

written notice of intent to submit such

an adverse comment, was received

within the comment period, the

regulation would become effective on

September 11, 1997. No adverse

comments were received, and thus this

notice confirms that this final rule will

become effective on that date.

Issued in Kansas City, MO on July 11,

1997.

Christopher R. Blum,

Acting Manager, Air Traffic Division, Central

Region.

[FR Doc. 97–21407 Filed 8–12–97; 8:45 am]

BILLING CODE 4910–13–M

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Docket No. 97–ACE–15]

Amendment to Class E Airspace,

Aurora, MO

AGENCY: Federal Aviation

Administration (FAA), DOT.

ACTION: Direct final rule; request for

comments.

SUMMARY: This action amends the Class

E airspace area at Aurora Memorial

Municipal Airport, Aurora, MO. The

Federal Aviation Administration has

developed a Standard Instrument

Approach Procedure (SIAP) based on

the Global Positioning System (GPS)

which has made this change necessary.

The intended effect of this rule is to

provide additional controlled airspace

for aircraft executing the SIAP at Aurora

Memorial Municipal Airport.

DATES: Effective date: 0901 UTC,

October 31, 1997.

Comment date: Comments must be

received on or before September 12,

1997.

ADDRESSES: Send comments regarding

the rule in triplicate to: Manager,

Airspace Branch, Air Traffic Division,

ACE–520, Federal Aviation

Administration, Docket Number 97–

ACE–15, 601 East 12th St., Kansas City,

MO 64106.

The official docket may be examined

in the Office of the Assistant Chief

Counsel for the Central Region at the

same address between 9:00 a.m. and

3:00 p.m., Monday through Friday,

except Federal holidays.

An informal docket may also be

examined during normal business hours

in the Air Traffic Division at the same

address listed above.

FOR FURTHER INFORMATION CONTACT:

Kathy Randolph, Air Traffic Division,

Airspace Branch, ACE–520C, Federal

Aviation Administration, 601 East 12th

Street, Kansas City, Missouri 64106:

telephone: (816) 426–3408.

SUPPLEMENTARY INFORMATION: The FAA

has developed Standard Instrument

Approach Procedures (SIAP) utilizing

the Global Positioning System (GPS) at

Aurora Memorial Municipal Airport,

Aurora, MO. The amendment to Class E

airspace at Aurora, MO will provide

additional controlled airspace to

segregate aircraft operating under Visual

Flight Rules (VFR) from aircraft

operating under Instrument Flight Rules

(IFR) procedures while arriving or

departing the airport. The area will be

depicted on appropriate aeronautical

charts thereby enabling pilots to either

circumnavigate the area, continue to

operate under VFR to and from the

airport, or otherwise comply with IFR

procedures. Class E airspace areas

extending from 700 feet or more above

the surface of the earth are published in

paragraph 6005 of FAA Order 7400.9D,

dated September 4, 1996, and effective

September 16, 1996, which is

incorporated by reference in 14 CFR

71.1. The Class E airspace designation

listed in this document will be

published subsequently in the Order.

The Direct Final Rule Procedure

The FAA anticipates that this

regulation will not result in adverse or

negative comment and, therefore, is

issuing it as a direct final rule. Previous

actions of this nature have not been

controversial and have not resulted in

adverse comments or objections. The

amendment will enhance safety for all

flight operations by designating an area

where VFR pilots may anticipate the