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Rules and Regulations Federal Register

76809 

Vol. 77, No. 250 

Monday, December 31, 2012 

1To view the proposed rule and the comments 

we received, go to http://www.regulations.gov/ 

#!docketDetail;D=APHIS-2006-0023. 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

9 CFR Part 2 

[Docket No. APHIS–2006–0023] 

RIN 0579–AD03 

Submission of Itineraries 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Final rule. 

SUMMARY: We are amending the Animal 

Welfare Act regulations to include more 

specific requirements in the regulations 

concerning the submission of itineraries 

by any person who is subject to the 

Animal Welfare Act regulations and 

who intends to exhibit any animal at 

any location other than the person’s 

approved site when travel will extend 

overnight. APHIS inspectors need 

access to animals, facilities, and records 

for unannounced inspections when 

animals are exhibited at a location other 

than at a regulated person’s approved 

site to improve compliance with the 

regulations and the Animal Welfare Act. 

DATES: Effective Date: January 30, 2013. 

FOR FURTHER INFORMATION CONTACT: Dr. 

Barbara Kohn, Senior Staff Veterinarian, 

Animal Care, APHIS, 4700 River Road, 

Unit 84, Riverdale, MD 20737–1234; 

(301) 851–3751. 

SUPPLEMENTARY INFORMATION: 

Background 

Executive Summary 

I. Purpose of the Regulatory Action 

The rule will facilitate enforcement of 

the Animal Welfare Act regulations for 

traveling exhibitors and thereby help to 

ensure the humane handling, housing, 

treatment, and transportation of the 

animals in their care. 

II. Summary of the Major Provisions of 

the Regulatory Action in Question 

This rule will require the advance 

submission of itineraries by any person 

who is subject to the Animal Welfare 

Act regulations and who intends to 

exhibit any animal at any location other 

than the person’s approved site when 

travel will extend overnight. 

III. Costs and Benefits 

Costs of the rule for exhibitors are 

expected to be small. The estimated 

time needed to prepare and submit an 

itinerary once arrangements have been 

made is about 15 minutes. Many 

traveling animal exhibitors are already 

submitting itineraries in a timely 

manner in accordance with existing 

Agency policy when a regulated animal 

is exhibited away from its approved site 

for 4 days or more. This rule is expected 

to cost the estimated affected 425 

exhibitors a total of about $15,375 per 

year to prepare and submit itineraries. 

The rule is expected to eliminate costs 

APHIS incurs in attempting to inspect 

animals that are not at locations where 

APHIS expected them to be, and to 

reduce some costs associated with 

responding to inquiries and complaints 

about traveling exhibitors alleged to 

have violated Animal Welfare Act 

regulations and standards. Money saved 

on these activities can be put toward 

inspections and other activities that will 

benefit animal welfare. 

The Final Rule 

The Animal Welfare Act (Act) (7 

U.S.C. 2131–2159) authorizes the 

Secretary of Agriculture to promulgate 

rules and standards and other 

requirements governing the humane 

handling, housing, care, treatment, and 

transportation of certain animals by 

dealers, exhibitors, and other regulated 

entities. The Secretary of Agriculture 

has delegated the responsibility for 

enforcing the Act to the Administrator 

of the U.S. Department of Agriculture’s 

Animal and Plant Health Inspection 

Service (APHIS). Regulations and 

standards established under the Act are 

contained in title 9 of the Code of 

Federal Regulations (CFR), parts 1, 2, 

and 3. The APHIS Animal Care (AC) 

program ensures compliance with the 

Act regulations and standards by 

conducting unannounced inspections of 

premises with regulated animals. 

The regulations contained in 9 CFR 

part 2 establish certain responsibilities 

of regulated persons under the Act. 

These responsibilities include 

requirements for the licensing and 

registration of dealers, exhibitors, and 

research facilities, and standards for 

veterinary care, identification of 

animals, and recordkeeping. 

On October 1, 2009, we published in 

the Federal Register (74 FR 50738– 

50740, Docket No. APHIS–2006–0023) a 

proposal 1 to amend the regulations to 

include more specific requirements in 

the regulations concerning the 

submission of itineraries by any person 

who is subject to the Act regulations 

and who intends to exhibit any animal 

at any location other than the person’s 

approved site. We proposed to require 

that such itineraries be submitted to the 

AC Regional Director no fewer than 2 

days in advance of any travel. 

We proposed that the itinerary 

include: 

• The name and license or 

registration number under the Act of the 

person who will exhibit the animals, 

and if any animals are leased, borrowed, 

loaned, or under some similar 

arrangement, the name of the person 

who owns the animals; 

• The name, identification number or 

identifying characteristics, species 

(common or scientific name), sex and 

age of each animal; and 

• The names, dates, and locations 

where the animals will travel, be 

housed, and be exhibited, including all 

anticipated dates and locations for any 

stops and layovers. 

We proposed to require that the 

itinerary be revised as necessary and the 

AC Regional Director notified of any 

changes. 

We explained that our reason for 

proposing to require such itineraries to 

be submitted no fewer than 2 days 

before the start of travel was to ensure 

that AC inspectors have advance notice 

of the locations where animals will be 

exhibited so that they can make 

unannounced inspections to ensure 

compliance with regulations and 

standards for animal welfare. 

We solicited comments concerning 

our proposal for 60 days ending 

November 30, 2009. We received 790 

comments by that date. They were from 


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76810 Federal Register / Vol. 77, No. 250 / Monday, December 31, 2012 / Rules and Regulations 

animal welfare organizations, exhibitor 

and trade associations, exhibitors, and 

private citizens. We have considered all 

issues raised by the commenters and 

discuss below those issues that were 

within the scope of the proposed rule. 

A large number of commenters 

supported the proposed rule as written. 

Among the reasons provided for their 

support, commenters stated that the 

proposed provisions would make it 

easier for APHIS to monitor adherence 

to the regulations and that the rule 

would have little impact on the majority 

of exhibitors who already submit 

itineraries in a timely manner. One 

commenter expressed the hope that the 

proposed provisions would allow 

APHIS to ensure that animals are 

afforded the minimum space 

requirements for primary enclosures 

when not in actual transport and to 

better monitor the time animals spend 

in an exercise pen or its equivalent. 

Issue: Some commenters stated that 

the proposed rule is unnecessary 

because exhibitors already submit 

itineraries in accordance with a policy 

that APHIS implemented in 1997, titled 

‘‘Policy 2,’’ which states: 

Exhibitors who are in continuous travel 

status shall update their itinerary as often as 

necessary to ensure AC [Animal Care] knows 

their whereabouts at all times. 

Circuses, petting zoos, and acts with an 

established route shall notify AC in advance 

of departing their home facility and update 

travel information as needed. 

Exhibitors who take animals from their 

facilities from time to time shall notify AC 

when any animal is gone more than four (4) 

consecutive days. Upon request, a licensee 

shall provide an itinerary of absences of less 

than four (4) days. 

Providing notification ensures the 

opportunity for access for an unannounced 

inspection, eliminates unnecessary AC visits 

when a licensee has been inspected recently, 

and minimizes resources needed to locate the 

exhibitor. 

The itinerary should provide the following: 

1. Dates away from the home facility. 

2. City and State for all stops. 

3. Site name or location of all stops. 

Similar information must be provided for 

all periods of ‘‘lay-over’’ while traveling. 

Response: Federal regulations are 

codified in the CFR and carry the force 

of law. The regulations that APHIS has 

promulgated in accordance with the Act 

are set forth in 9 CFR parts 1 through 

4. Additionally, we sometimes issue 

policy statements to provide the 

guidance to the public regarding our 

interpretation of what is necessary for 

regulated entities to meet the 

requirements of the regulations. Policy 2 

was issued for guidance regarding the 

requirements of the regulations in 

§ 2.126, which specify that APHIS must 

have access to regulated facilities in 

order to conduct inspections that 

effectively enforce the Act. Although 

regulated entities are subject to the Act 

no matter where their animals might be 

located, the regulations in § 2.126 have 

not included specific provisions on 

what APHIS considers necessary for 

effective enforcement of the regulations 

when animals have temporarily been 

moved from an approved site. Although 

Policy 2 has been useful in conveying 

APHIS’ intent and expectations in such 

situations, we consider it necessary to 

codify in § 2.126 more specific 

responsibilities of a regulated entity. 

Issue: A number of commenters stated 

that if APHIS does replace Policy 2 with 

regulations in the CFR, the regulations 

should be consistent with Policy 2 in 

requiring itineraries to be submitted 

only if the animals are away from the 

approved site for 4 days or more. 

Commenters stated that exhibitors 

sometimes take animals offsite for 

several short engagements during the 

same week or even the same day. 

Commenters expressed concern that 

being required to submit an itinerary for 

every movement from the approved site 

would impose a large and unnecessary 

paperwork burden on both exhibitors 

and APHIS. One commenter 

recommended that if APHIS concludes 

there is a need for additional reporting 

of offsite engagements, the regulations 

require that all exhibitors who move 

animals offsite for more than 48 hours 

notify APHIS of their route, exhibit 

locations, and anticipated time of 

return. One commenter recommended 

that, instead of requiring reporting of all 

travel from an approved site, APHIS 

require that exhibitors have on file with 

APHIS current contact information for 

the person in charge of the traveling 

unit. Another commenter recommended 

that, instead of requiring that all travel 

from a home facility be reported, APHIS 

should require that regulated facilities 

keep in their own records information 

identifying the animals taken offsite, the 

location to which the animals have been 

taken, the date and time of travel, and 

the date and time when the animals 

were returned to the facility. The 

commenter stated that such information 

would enable APHIS inspectors to know 

the location of animals that are taken 

from the approved site for short periods 

of time. 

Response: Based on our experience 

enforcing the regulations, we consider 4 

days too long a time for APHIS to be 

unaware of the location of animals 

covered by the Act. As we stated in our 

October 2009 proposed rule, we need to 

ensure that AC inspectors have advance 

notice of the locations where animals 

will be exhibited so that they can make 

unannounced inspections to ensure 

compliance with regulations and 

standards for animal welfare. Knowing 

which exhibitor showed animals at a 

particular location on a particular date 

will also help AC inspectors follow up 

on complaints that APHIS receives 

about alleged violations of the 

regulations and standards by traveling 

exhibitors. Such complaints are often 

received after an exhibitor has left a 

location, and the person submitting the 

complaint often does not know the 

name of the exhibitor. However, based 

on the information supplied by 

commenters, we agree that the benefit of 

APHIS’ knowing the location of animals 

that are taken offsite for exhibition for 

less than a day may not be 

commensurate with the reporting that 

would be required under the proposed 

provisions. Therefore, in this final rule, 

we are providing that the reporting 

requirement under new § 2.126(c) 

applies only if animals are absent from 

the approved site overnight. 

Issue: One commenter stated that if a 

complaint were filed while an animal 

were offsite for less than 4 days, the 

animal would likely be returned to its 

approved site before an inspector could 

reach the offsite location. 

Response: We are making no changes 

based on the comment. Complaints 

regarding potential violations of the Act 

are made at various times in relation to 

the incident or observation. Some are 

made several weeks or months later. In 

order for APHIS to effectively follow up 

on any information received, it is 

imperative that the Agency know the 

location of the licensee or registrant and 

animals at the time of the incident or 

observation that prompted the 

complaint. 

Issue: As noted above, the proposed 

rule would have required that itineraries 

submitted by exhibitors be received by 

the AC Regional Director no fewer than 

2 days in advance of any travel to 

another location for exhibition, 

regardless of the length of time. A 

number of commenters expressed 

concern that having to give such 

advance notice would prohibit some 

exhibitors from accepting certain 

engagements and requested that the 

regulations provide for situations where 

2 days’ notice is not practical. 

Commenters stated that many requests 

for animal exhibits, including those for 

educational purposes, occur within 2 

days of the requested exhibit date and 

that some requests are received on the 

day of the requested exhibition. 

Conversely, one commenter 

recommended that the regulations 

require that a detailed itinerary be 


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2APHIS Regional offices are available each 

weekday, except on Federal holidays, from 8 a.m. 

to 5 p.m. 

3See footnote 2. 

submitted to APHIS no less than 2 

months before travel. Another 

commenter stated that engagements 

accepted with little advance notice may 

be subject to less careful planning than 

those scheduled ahead of time, making 

it more important for APHIS to ensure 

that the regulations and the standards of 

the Act are met. 

Response: We expect that some of the 

concerns expressed by the commenters 

will be addressed by the change we are 

making to the proposed provisions that 

will exempt exhibitors from the 

submission requirement if the animals 

are taken offsite for exhibition and 

returned the same day. Movements of 

animals offsite for exhibition for longer 

periods of time requires preparation 

with regard to logistics such as housing, 

security, food, water, employees, and 

public barriers and perimeter fences. 

Such arrangements are typically made 

well in advance of travel. AC needs the 

itineraries before the travel begins to 

ensure that inspectors know where the 

animals will be on specific dates so that 

they can make unannounced 

inspections at the travel sites. Requiring 

itineraries to be submitted at least 48 

hours in advance will give AC sufficient 

notice and will be close enough to the 

time of travel for travel plans and 

logistics to be firm in most instances. 

Nevertheless, we recognize the need for 

some flexibility regarding this 

requirement. If an exhibitor does accept 

an engagement for which travel will 

begin with less than 48 hours’ notice, 

the exhibitor must contact the APHIS 

AC Regional Director immediately in 

writing with the information listed in 

§ 2.126(c). Facsimiles or emails are 

acceptable. We expect such notifications 

on shortened notice to be infrequent, 

however, and exhibitors who repeatedly 

provide less than 48 hours’ notice will 

be subject to increased scrutiny under 

the Act. We do not consider it practical 

to set a specific threshold for what 

constitutes ‘‘repeatedly,’’ due to the 

wide range of number of submissions by 

exhibitors. Whereas some exhibitors 

make only several submissions a year 

that cover multiple pre-scheduled 

exhibitions, others submit more 

numerous submissions on a job-by-job 

basis. If APHIS considers an exhibitor to 

be submitting itineraries with less than 

48 hours’ notice with a high frequency, 

we may monitor the exhibitor more 

closely. 

Issue: Several commenters stated that 

the information on itineraries submitted 

in a timely fashion frequently becomes 

outdated by the time the animals 

actually begin their travel. Commenters 

stated that, due to factors such as 

illness, behavior, client requests, or 

shedding, animals listed on the itinerary 

sometimes cannot travel. Additionally, 

said some commenters, illness or 

scheduling conflicts may require that 

staff members other than those listed on 

the itinerary travel with the animals. 

The commenters expressed concern that 

having to report all such last-minute 

changes to APHIS would become 

unduly burdensome for exhibitors. 

Response: Although exhibitors are 

free to submit itineraries well in 

advance of intended travel, this rule 

only requires submission of an itinerary 

no less than 2 days before the travel. 

Although we recognize that even during 

that amount of time, it may sometimes 

become necessary to change the plans 

indicated on the itinerary, based on our 

experience dealing with the regulated 

industry, we do not expect such changes 

to happen frequently enough that 

reporting them to APHIS will create an 

undue burden on exhibitors. 

Requirements for notifying APHIS of 

itinerary changes are discussed below. 

Issue: Some commenters expressed 

concern that the proposed rule included 

a requirement that an itinerary include 

all anticipated dates and locations (with 

addresses) for any stops and layovers, 

and that the itinerary be promptly 

revised, as necessary, to account for any 

changes. Commenters stated that it 

would be unreasonably burdensome on 

the exhibitor and APHIS to require 

notification of every minor deviation 

from a previously filed itinerary. One 

commenter asked whether APHIS is 

contemplating requiring specific 

information regarding rest stops and 

meal breaks. Commenters stated that a 

variety of factors determine where and 

when exhibitors stop on the road for 

animal care checks and that events that 

delay or interrupt travel sometimes 

occur with little or no advance warning. 

The commenters gave as examples 

problems with weather, mechanical 

breakdowns, road conditions, 

uncooperative animals, and delays from 

a home facility or stop/layover. Other 

factors cited included access to water 

spigots and adequate parking. One 

commenter stated that train travel is 

sometimes interrupted due to track or 

equipment issues or for crew changes, 

the filling of water tanks, or to allow 

other traffic to proceed. During longer 

delays, stated the commenter, animals 

might be offloaded for exercise and 

cleaning of railcars. 

Response: It is not the intent of this 

final rule, nor is it the intent of Policy 

2 and § 2.126 of the regulations, to 

require that APHIS be advised regarding 

every minute of a journey. The required 

itinerary must indicate where the 

licensee or registrant and animals will 

be on which dates. If there is an 

anticipated layover of a length of time 

sufficient to allow/require removal of 

the animals from the transport 

enclosures, that layover should be 

indicated on the itinerary. 

Unanticipated delays of such length 

must be reported to the appropriate 

APHIS AC Regional Director the next 

APHIS business day.2

Issue: As noted above, the proposed 

rule included the requirement that the 

information on a submitted itinerary be 

promptly revised to account for any 

changes. Several commenters asked 

what APHIS’ intent is regarding the 

term ‘‘promptly,’’ whether APHIS 

personnel would be available to receive 

notification of changes that occur 

overnight, and what process APHIS had 

in mind for editing an itinerary. 

Response: This final rule requires 

notification of itinerary changes in 

written form. Emails and facsimile 

notifications can be sent at any hour. 

We are providing in this final rule that, 

if initial notification in an emergency is 

made other than by email or facsimile, 

it must be followed up with written 

documentation at the earliest possible 

time. For changes that occur after 

normal business hours, the change must 

be conveyed to the appropriate APHIS 

AC Regional Director no later than the 

following APHIS business day.3

Issue: A number of commenters 

expressed concern that if detailed 

information about their stops became 

public knowledge, it could compromise 

the safety of animals and caretakers. The 

commenters stated that such 

information could be used by special 

interest groups to plan disruptions or 

conduct acts of violence against 

exhibitors. Other commenters stated 

that having advance notice of an 

exhibitor’s itinerary would give 

competitors an advantage in competing 

for business. The commenters stated 

that itineraries should be made available 

only to APHIS and its inspectors. 

Response: We are cognizant of the 

concerns of persons subject to the Act 

regarding the release of itinerary 

information. We note, however, that the 

type of information required in this rule 

is already required in accordance with 

Policy 2 and § 2.126 of the regulations 

and we are not aware of any problems 

that have been caused by it to date. 

Further, a number of licensees and 

registrants already inform the public of 

their exhibit dates and locations through 

Web sites and other means. A person 


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76812 Federal Register / Vol. 77, No. 250 / Monday, December 31, 2012 / Rules and Regulations 

seeking information submitted to APHIS 

would need to request such information 

under the Freedom of Information Act, 

which exempts from release commercial 

or financial information that is 

privileged or confidential. 

Issue: One commenter recommended 

that loans for a stated period of time 

between Association of Zoos and 

Aquariums (AZA) member zoos and 

aquariums for exhibit or breeding be 

exempt from the provisions of the 

proposal. 

Response: We agree that movements 

of animals from one zoological facility 

to another for the purposes described by 

the commenter are of a different nature 

than the types of movement 

contemplated by § 2.126(c). Such 

transfers, which are generally made on 

a long-term basis, do not fall under the 

intent or requirements of this final rule. 

When one zoological facility loans an 

animal to another zoological facility for 

purposes such as exhibit or breeding, 

the facilities generally enter into a legal 

agreement that transfers responsibility 

for the animal to the recipient facility 

for the loan period. The recipient 

facility is responsibility for meeting the 

requirements of the Act with regard to 

that animal during the duration of the 

loan period. 

Issue: One commenter stated that 

there is no need to apply the regulation 

as proposed to zoos. The commenter 

stated that the clear intent of Policy 2 

and § 2.126 of the regulations is to 

ensure that true traveling exhibitors 

such as carnivals, circuses, animal acts, 

traveling educational exhibits, and 

petting zoos are available for inspection. 

The commenter stated that because zoos 

are not traveling exhibitors, there is no 

need to apply the proposed 

requirements to them. 

Response: We agree that zoos are 

generally not considered traveling 

exhibitors. As indicated above, those 

licensees and registrants who take 

animals offsite and return them the 

same day will not need to submit an 

itinerary to APHIS for those movements. 

However, APHIS needs to know the 

location of animals moved from zoos 

overnight for exhibition, just as the 

Agency needs to know the whereabouts 

of animals taken offsite overnight for 

exhibition by other exhibitors. With the 

exception discussed above for loans 

between zoological facilities, the 

provisions of § 2.126(c) will apply to 

zoological facilities, just as Policy 2 has 

applied to permanent facilities such as 

zoos. 

Issue: The proposed rule included the 

requirement that an itinerary contain 

the following information: 

• The name(s) of the person(s) who 

intends to exhibit the animal(s) and 

transport the animal(s) for exhibition 

purposes, including any business 

name(s) and current Act license or 

registration number(s) and, in the event 

that any animal is leased, borrowed, 

loaned, or under some similar 

arrangement, the name of the person 

who owns such animal; 

• The name, identification number or 

identifying characteristics, species 

(common or scientific name), sex and 

age of each animal; and 

• The names, dates, and locations 

(with addresses) where the animals will 

travel, be housed, and be exhibited, 

including all anticipated dates and 

locations (with addresses) for any stops 

and layovers. 

Several commenters stated the 

required information is duplicative of 

information the exhibitor is already 

required to file. Several commenters 

stated that all animals already must be 

accompanied by a valid, current health 

certification, which indicates the 

animal’s age, sex, species, and 

identification number where applicable. 

One commenter stated that the proposed 

requirements would be duplicative of 

information the exhibitor already files 

each year as part of its license renewal. 

The commenter stated that the 

information already submitted includes 

a complete list of cities and precise 

engagement dates and venues. 

Response: We are making no changes 

based on these comments. This rule 

requires information beyond that 

collected by other programs and 

agencies regarding the movement of 

animals. The information provided in a 

health certificate does not encompass all 

the information required under Policy 2 

and the more specific requirements of 

§ 2.126 of this rule. Additionally, it is 

important that this information be 

submitted and distributed to our field 

inspectors in a timely manner. Having 

to rely on incomplete information 

collected by other parties would not 

allow efficient and effective use of 

APHIS resources. We do not expect that 

there will be a significant increase in 

reporting requirements for exhibitors 

who already comply with the 

regulations and Policy 2. Exhibitors who 

submit a yearly itinerary that does not 

change would not need to submit 

further itineraries under this rule. 

However, any changes to that yearly 

submission would need to be reported 

to APHIS. 

Issue: As part of the proposed rule, in 

accordance with the requirements of the 

Paperwork Reduction Act (44 U.S.C. 

3501 et seq.), APHIS provided an 

estimate of the public reporting burden 

for the collection of information that 

would occur under the provisions of the 

proposal. We estimated that the number 

of respondents who would provide 

information to APHIS if the proposed 

rule were made final would be 300, and 

that each respondent would provide an 

average of 8.66 responses per year, for 

a total of approximately 2,600 responses 

per year. We estimated that each 

response would take an average of 0.25 

hours to complete. 

One commenter, a representative of 

the AZA, estimated that because many 

AZA-accredited zoos and aquariums 

conduct offsite outreach programs at 

locations such as schools and nursing 

homes, the AZA’s 221 accredited zoos 

and aquariums alone would make a total 

of at least 50,000 to 70,000 submissions 

annually. Another commenter stated 

that adjustments to itineraries would 

require more than 15 minutes each. 

Response: Based on comments we 

received from the public and upon 

review of our estimate of potential 

reporting burden for this rule, we agree 

that submissions by permanently based 

zoological facilities were 

underrepresented in our estimate. 

However, we disagree with the 

commenter who estimated that AZAaccredited zoos and aquariums would 

submit at least 50,000 to 70,000 

itineraries annually. To arrive at that 

total, each zoo would need to submit 

from 225 to 320 itineraries per year, 

which we consider unlikely, 

particularly in light of the change we are 

making in this rule that will not require 

submission of itineraries for trips that 

do not extend overnight. 

We have revised our estimates of the 

number of exhibitors who will be 

affected by this rule. Our original 

estimate that 300 exhibitors would be 

affected by the rule was based on the 

number of active licensees that had 

inspections at traveling sites. We have 

increased that number by 125, based on 

our estimate that approximately 6 

percent of nontraveling exhibitors may 

occasionally take animals away from 

their facility overnight for exhibition. 

We further estimate that those 425 

exhibitors would provide a total of 

about 4,100 responses each year. We 

derived this number through discussion 

with AC regional offices and after 

looking at the size and histories of 

traveling exhibitors. For example, large 

circuses usually have itineraries 

planned a year or more in advance. 

Some smaller exhibitors may not know 

their schedules until a week before a 

performance. Thus, we estimated that 

about 100 of the affected exhibitors 

would submit itineraries about twice a 

year (200 submissions), and that the 


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Federal Register / Vol. 77, No. 250 / Monday, December 31, 2012 / Rules and Regulations 76813 

remainder would submit itineraries 

monthly (3,900 submissions). We 

continue to consider our estimate of 

0.25 hours per response to be 

reasonable. In each case where animals 

are to be moved, the facility or promoter 

would already have arranged the 

necessary booking and trip logistics. 

The 0.25 hours represents the time 

needed to type or write out the itinerary 

and send it by email or facsimile to 

APHIS. 

Issue: Several commenters stated that 

APHIS did not make clear in its 

proposal why the Agency considers the 

proposed regulations to be necessary. 

One commenter requested that APHIS 

indicate the types of problems its 

inspectors are experiencing. One 

commenter stated that, in place of the 

expanded requirements, APHIS should 

work with regulated entities to develop 

methods of ensuring that APHIS 

maintains reasonable access to facilities 

and animals. One commenter 

questioned why APHIS has decided to 

take on the extra burden of requiring 

itinerary submissions for all traveling 

exhibits. 

Response: As we stated in our October 

2009 proposed rule, AC inspectors need 

to know the location and dates of 

traveling exhibits in advance of the 

travel so that they can conduct 

unannounced inspections of the animals 

at those sites. Currently, if an exhibitor 

has not provided AC with an accurate 

itinerary in advance of travel, an 

inspector may arrive at a facility only to 

find that some or all of the animals are 

elsewhere. Additionally, if AC receives 

a complaint about an alleged violation 

of the regulations and standards by an 

exhibitor at a certain location on a 

certain date, having a record of the 

itineraries will enable us to determine 

which exhibitor and which animals 

were at the location on that date so that 

we can look into the complaint. 

Currently, if there is no itinerary on file 

for an exhibition at a location and date 

cited in a complaint, and the exhibitor 

is not identified, APHIS must conduct 

an investigation to try to determine 

which exhibitor was there, which can be 

difficult and time consuming, and 

sometimes unsuccessful. We anticipate 

that this rule will enable APHIS to make 

more efficient use of its personnel. 

While we welcome recommendations 

from regulated entities on how to ensure 

that APHIS has reasonable access, we 

consider this rule a reasonable way to 

achieve that end. 

Issue: Several commenters stated that 

the administrative burden on APHIS 

could be reduced by applying the 

proposed provisions to those exhibitors 

who have shown a reason to be of 

concern to APHIS and waiving the 

requirements for exhibitors who have 

demonstrated to APHIS that they 

provide their animals with quality care. 

One commenter stated that perhaps 

APHIS should limit the itinerary 

requirements to offsite exhibit of big 

cats. 

Response: We are making no changes 

based on the comments. We do not 

expect an undue administrative burden 

on APHIS due to this rule. The intent of 

this rule is to ensure that APHIS has 

access to all regulated animals for 

inspections and enforcement activities 

at all times. Application of the rule to 

selected licensees and registrants could 

be construed as arbitrary and capricious 

enforcement of the regulations. 

Issue: Several commenters 

recommended that the proposal be 

changed to require automated delivery 

of itineraries to APHIS. One commenter 

stated that submission of an itinerary by 

email would take about 15 minutes and 

would address the problem of paper 

copies of itineraries becoming outdated 

before APHIS receives them. 

Response: While we agree that there 

are advantages to submitting itineraries 

electronically, we are not requiring 

submission by that means. Some 

persons subject to the Act may not have 

access to that technology, especially 

while traveling. Because paper copies 

will need to arrive at APHIS no later 

than 2 days before the scheduled travel, 

in the great majority of cases we do not 

expect them to be out of date by the 

time the travel begins. As noted above, 

in those cases where changes need to be 

made to itineraries at the last minute, 

those changes will need to be submitted 

to APHIS in some expedited fashion 

(e.g., by phone, facsimile, or email), 

followed by a written submission if the 

change is not initially in writing. 

Issue: One commenter asked how 

APHIS intends to inform newly affected 

parties of any updates to the regulations. 

Response: Exhibitors will be notified 

of the regulatory changes in a variety of 

ways. All proposed and final rules are 

made available to the public in the 

Federal Register. Additionally, a press 

release will be issued when this rule is 

published and an announcement will be 

posted to APHIS’ Web site. APHIS 

inspectors will also discuss the rule 

with licensees and registrants during 

inspections of regulated facilities. 

Issue: One commenter asked what 

types of animals will be covered by this 

rule. 

Response: This rule applies to all 

animals covered by the Act that are 

exhibited anywhere other than the 

person’s approved site. 

Issue: One commenter questioned 

whether the proposed provisions were 

within APHIS’ authority. 

Response: Section 2151 of the Act 

authorizes the Secretary to promulgate 

such rules, regulations, and orders as 

the Secretary may deem necessary to 

govern the humane handling, housing, 

care, treatment, and transportation of 

certain animals by dealers, exhibitors, 

and other regulated entities. Section 

2146 of the Act provides that the 

Secretary shall, at all reasonable times, 

have access to the places of business 

and the facilities, animals, and those 

records required to be kept pursuant to 

the Act. The Secretary has delegated the 

responsibility for enforcing the Act to 

the APHIS Administrator. This final 

rule merely adds more specific 

requirements to § 2.126 of the Animal 

Welfare Act regulations. 

Miscellaneous 

In this final rule, we are making 

several nonsubstantive editorial changes 

to what appeared in the proposed rule. 

Instead of making joint references to the 

singular and plural as, e.g., ‘‘animal(s),’’ 

we are using the singular to signify also 

the plural. This is consistent with the 

style used in the definitions in § 1.1 of 

the regulations. In the regulatory text of 

this rule, when referring to the AC 

Regional Director, we use the term ‘‘AC 

Regional Director,’’ which is consistent 

with usage elsewhere in the regulations. 

Therefore, for the reasons given in the 

proposed rule and in this document, we 

are adopting the proposed rule as a final 

rule, with the changes discussed in this 

document. 

Executive Orders 12866 and 13563 and 

Regulatory Flexibility Act 

This final 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. 

We have prepared an economic 

analysis for this rule. The economic 

analysis provides a cost-benefit analysis, 

as required by Executive Orders 12866 

and 13563, which direct agencies to 

assess all costs and benefits of available 

regulatory alternatives and, if regulation 

is necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, and equity). Executive Order 

13563 emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. The 

economic analysis also examines the 

potential economic effects of this rule 

on small entities, as required by the 


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76814 Federal Register / Vol. 77, No. 250 / Monday, December 31, 2012 / Rules and Regulations 

Regulatory Flexibility Act. The 

economic analysis is summarized 

below. Copies of the full analysis are 

available by contacting the person listed 

under FOR FURTHER INFORMATION

CONTACT or on the Regulations.gov Web 

site (see ADDRESSES above for 

instructions for accessing 

Regulations.gov). 

APHIS is amending the Animal 

Welfare Act (AWA) regulations to 

require a person who intends to exhibit 

regulated animals at any location other 

than the person’s approved site to 

submit an itinerary at least 2 days in 

advance when travel extends overnight. 

In those instances when exhibitors are 

offered engagements with less than 2 

days’ notice, APHIS will accept 

itineraries less than 48 hours in advance 

of travel. 

The rule will facilitate enforcement of 

the AWA regulations for traveling 

exhibitors, and thereby help to ensure 

the humane handling, housing, 

treatment, and transportation of the 

animals in their care. 

Costs of the rule for exhibitors are 

expected to be small. The AC program 

has estimated that preparation and 

submission of an itinerary takes about 

15 minutes. Many traveling animal 

exhibitors are already submitting 

itineraries in a timely manner in 

accordance with existing Agency policy 

when a regulated animal is exhibited 

away from its approved site for 4 days 

or more. 

The time required to prepare the 

estimated 4,100 itineraries that will be 

required because of this rule is expected 

to cost the approximately 425 affected 

exhibitors a total of $15,375 per year. 

Most of the traveling exhibitors 

affected by the rule are small entities. 

Regardless of size, we do not expect the 

exhibitors to be significantly affected. 

The rule is expected eliminate costs 

APHIS incurs in attempting to inspect 

animals that are not at locations where 

APHIS expected them to be, and to 

reduce some costs associated with 

responding to inquiries and complaints 

about traveling exhibitors alleged to 

have violated Animal Welfare 

regulations and standards. Money saved 

on these activities can be put toward 

inspections and other activities that will 

benefit animal welfare. 

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. 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 

In accordance with the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.), the information collection or 

recordkeeping requirements included in 

this rule have been approved by the 

Office of Management and Budget 

(OMB) under OMB control number 

0579–0361. 

E-Government Act Compliance 

The Animal and Plant Health 

Inspection Service is committed to 

compliance with the E-Government Act 

to promote the use of the Internet and 

other information technologies, to 

provide increased opportunities for 

citizen access to Government 

information and services, and for other 

purposes. For information pertinent to 

E-Government Act compliance related 

to this rule, please contact Mrs. Celeste 

Sickles, APHIS’ Information Collection 

Coordinator, at (301) 851–2908. 

List of Subjects in 9 CFR Part 2 

Animal welfare, Pets, Reporting and 

recordkeeping requirements, Research. 

Accordingly, we are amending 9 CFR 

part 2 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 371.7. 

■ 2. In § 2.126, the section heading is 

revised and a new paragraph (c) and 

OMB citation at the end of the section 

are added to read as follows: 

§ 2.126 Access and inspection of records 

and property; submission of itineraries. 

* * * * * 

(c) Any person who is subject to the 

Animal Welfare regulations and who 

intends to exhibit any animal at any 

location other than the person’s 

approved site (including, but not 

limited to, circuses, traveling 

educational exhibits, animal acts, and 

petting zoos), except for travel that does 

not extend overnight, shall submit a 

written itinerary to the AC Regional 

Director. The itinerary shall be received 

by the AC Regional Director no fewer 

than 2 days in advance of any travel and 

shall contain complete and accurate 

information concerning the whereabouts 

of any animal intended for exhibition at 

any location other than the person’s 

approved site. If the exhibitor accepts an 

engagement for which travel will begin 

with less than 48 hours’ notice, the 

exhibitor shall immediately contact the 

AC Regional Director in writing with the 

required information. APHIS expects 

such situations to occur infrequently, 

and exhibitors who repeatedly provide 

less than 48 hours’ notice will, after 

notice by APHIS, be subject to increased 

scrutiny under the Act. 

(1) The itinerary shall include the 

following: 

(i) The name of the person who 

intends to exhibit the animal and 

transport the animal for exhibition 

purposes, including any business name 

and current Act license or registration 

number and, in the event that any 

animal is leased, borrowed, loaned, or 

under some similar arrangement, the 

name of the person who owns such 

animal; 

(ii) The name, identification number 

or identifying characteristics, species 

(common or scientific name), sex and 

age of each animal; and 

(iii) The names, dates, and locations 

(with addresses) where the animals will 

travel, be housed, and be exhibited, 

including all anticipated dates and 

locations (with addresses) for any stops 

and layovers that allow or require 

removal of the animals from the 

transport enclosures. Unanticipated 

delays of such length shall be reported 

to the AC Regional Director the next 

APHIS business day. APHIS Regional 

offices are available each weekday, 

except on Federal holidays, from 8 a.m. 

to 5 p.m. 

(2) The itinerary shall be revised as 

necessary, and the AC Regional Director 

shall be notified of any changes. If 

initial notification of a change due to an 

emergency is made by a means other 

than email or facsimile, it shall be 

followed by written documentation at 

the earliest possible time. For changes 

that occur after normal APHIS business 

hours, the change shall be conveyed to 

the AC Regional Director no later than 

the following APHIS business day. 

APHIS Regional offices are available 

each weekday, except on Federal 

holidays, from 8 a.m. to 5 p.m. 

(Approved by the Office of Management and 

Budget under control number 0579–0361) 


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Federal Register / Vol. 77, No. 250 / Monday, December 31, 2012 / Rules and Regulations 76815 

1To view the proposed rule and the comments 

we received, go to http://www.regulations.gov/ 

#!docketDetail;D=APHIS-2006-0159. 

Done in Washington, DC, this 20th day of 

December, 2012. 

Rebecca Blue, 

Deputy Under Secretary for Marketing and 

Regulatory Programs. 

[FR Doc. 2012–31417 Filed 12–28–12; 8:45 am] 

BILLING CODE 3410–34–P 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

9 CFR Parts 2 and 3 

[Docket No. APHIS–2006–0159] 

RIN 0579–AC69 

Handling of Animals; Contingency 

Plans 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Final rule. 

SUMMARY: We are amending the Animal 

Welfare Act regulations to add 

requirements for contingency planning 

and training of personnel by research 

facilities and by dealers, exhibitors, 

intermediate handlers, and carriers. We 

are taking this action because we believe 

all licensees and registrants should 

develop a contingency plan for all 

animals regulated under the Animal 

Welfare Act in an effort to better prepare 

for potential disasters. This action will 

heighten the awareness of licensees and 

registrants regarding their 

responsibilities and help ensure a 

timely and appropriate response should 

an emergency or disaster occur. 

DATES: Effective Date: January 30, 2013. 

FOR FURTHER INFORMATION CONTACT: Dr. 

Jeanie Lin, Eastern Region Emergency 

Programs Manager, Animal Care, 

APHIS, 920 Main Campus Drive, 

Raleigh NC 27606; (919) 855–7100. 

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, care, 

treatment, and transportation of certain 

animals by dealers, research facilities, 

exhibitors, carriers, and intermediate 

handlers. Regulations established under 

the AWA are contained in the Code of 

Federal Regulations (CFR) in 9 CFR 

parts 1 and 2, and 9 CFR part 3 contains 

standards for the humane handling, 

care, treatment, and transportation of 

animals covered by the AWA. Currently, 

part 3 consists of subparts A through E, 

which contain specific standards for 

dogs and cats, guinea pigs and hamsters, 

rabbits, nonhuman primates, and 

marine mammals, respectively, and 

subpart F, which sets forth general 

standards for warmblooded animals not 

otherwise specified. 

The only requirement for contingency 

planning by licensees and registrants in 

the regulations has been in § 3.101(b), 

which covers water and power supply 

requirements at facilities housing 

marine mammals. Specifically, this 

section requires such facilities to submit 

written contingency plans to the Deputy 

Administrator of Animal Care (AC) 

regarding emergency sources of water 

and electric power should primary 

sources fail. Among other things, the 

plans must include evacuation plans in 

the event of a disaster and a description 

of backup systems and/or arrangements 

for relocating marine mammals 

requiring artificially cooled or heated 

water. 

Following the events experienced 

during the 2005 hurricane season, a 

Federal document, ‘‘The Federal 

Response to Katrina: Lessons Learned,’’ 

which can be found on the Internet at 

http://georgewbushwhitehouse.archives.gov/reports/ 

katrina-lessons-learned/, was published 

that highlighted the need for planning to 

minimize the impact of disasters. AC’s 

experience indicates that, although 

contingency planning would benefit the 

health and welfare of animals covered 

by the AWA, at least some entities 

responsible for regulated animals have 

not undertaken such planning. We 

believe all licensees and registrants 

should be required to develop a 

contingency plan for all animals 

regulated under the AWA in an effort to 

better prepare for potential disasters. 

Therefore, on October 23, 2008, we 

published in the Federal Register (73 

FR 63085–63090, Docket No. APHIS– 

2006–0159) a proposal 1 to amend the 

AWA regulations to add requirements 

for contingency planning and training of 

personnel by research facilities and by 

dealers, exhibitors, intermediate 

handlers, and carriers. 

We solicited comments concerning 

our proposal for 60 days ending on 

December 22, 2008. On December 19, 

2008, we published a notice in the 

Federal Register (73 FR 77554) that 

extended the comment period an 

additional 60 days until February 20, 

2009. We received 997 comments by 

that date. They were from private 

citizens, breeders, dealers, animal 

welfare organizations, research 

facilities, Government agencies, 

pharmaceutical companies, universities 

and colleges, research associations, 

exhibitors, carriers, kennels, and 

medical associations. Fifty commenters 

supported the rule as it was proposed. 

The issues raised by the remaining 

commenters are discussed below by 

topic. 

Many commenters had comments or 

questions that were not germane to the 

proposed rule, such as asking the 

Animal and Plant Health Inspection 

Service (APHIS) to end the trade of 

exotic animals. We are not addressing 

those comments in this final rule 

because they are outside of its scope. 

Objections to Mandating Contingency 

Plans 

Many commenters objected to APHIS 

mandating contingency plans. One 

commenter stated that, since no plan 

can be 100 percent successful, it does 

not make sense to mandate plans. One 

commenter stated that the AWA has 

language prohibiting prescribing 

methods of research and that the 

proposed rule violates this by 

prescribing emergency planning 

methods. 

As stated in the proposed rule, the 

events experienced during the 2005 

hurricane season highlighted the need 

for planning to minimize the impact of 

disasters on the health and welfare of all 

animals covered by the AWA. The 

intent of the proposed rule was to 

safeguard the health and welfare of 

animals in emergency situations. We 

understand that contingency plans may 

not be 100 percent successful. However, 

we do not agree that plans should not 

be mandated because, to promote 

animal welfare, entities should be able 

to demonstrate a reasonable effort to 

address emergency situations. The rule 

does not prescribe emergency planning 

methods. In addition, we do not 

consider a contingency plan to be a 

research method. 

One commenter suggested that 

instead of mandated plans, APHIS 

should provide guidance materials, 

training videos, or classes, as it would 

be cheaper for both APHIS and the 

regulated entities. 

APHIS plans to provide guidance 

materials, which may include videos 

and classes. However, this does not 

replace a need for contingency plans as 

contingency plans are more adaptable to 

the unique circumstances of each 

licensee and registrant and will 

determine what training is needed. In 

addition, as facilities have widely 

varying needs, allowing licensees and 

registrants to determine and implement 

their own unique training allows 


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