[Federal Register Volume 62, Number 156 (Wednesday, August 13, 1997)]
[Rules and Regulations]
[Pages 43272-43275]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-21370]


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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.

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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: 
<a href="/cdn-cgi/l/email-protection#d7a4b9a4babea3bf97b6a7bfbea4f9a2a4b3b6f9b0b8a1"><span class="__cf_email__" data-cfemail="91e2ffe2fcf8e5f9d1f0e1f9f8e2bfe4e2f5f0bff6fee7">[email protected]</span></a>.

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  deg.F (32.2  deg.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 
Sec. 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

[[Page 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

[[Page 43274]]

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:

[[Page 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 Sec. 1.1, the definition for primary enclosure is revised to 
read as follows:


Sec. 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:


Sec. 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


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