This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

3017

Vol. 63, No. 13

Wednesday, January 21, 1998

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection

Service

9 CFR Parts 1, 2, and 3

[Docket No. 97–024–1]

RIN 0579–AA89

Animal Welfare; Regulation of Pocket

Pets

AGENCY: Animal and Plant Health

Inspection Service, USDA.

ACTION: Policy statement.

SUMMARY: This document gives notice

that we are now regulating under the

Animal Welfare Act the handling, care,

and treatment at retail pet stores of

small mammals commonly referred to as

‘‘pocket pets’’ and requiring any retail

pet store that sells pocket pets to be

licensed as a dealer under the Animal

Welfare Act. This action is necessary

because the Animal Welfare Act

regulations require regulation of all

persons who sell exotic or wild animals

for research, exhibition, or for use as a

pet, and we consider pocket pets to be

exotic or wild animals for this purpose.

FOR FURTHER INFORMATION CONTACT: Dr.

Bettye K. Walters, Staff Veterinarian,

Animal Care, APHIS, USDA, 4700 River

Road Unit 84, Riverdale, MD 20737–

1234, (301) 734–7833.

SUPPLEMENTARY INFORMATION: The

Animal Welfare Act (AWA)(7 U.S.C.

2131 et seq.) authorizes the Secretary of

Agriculture to promulgate standards and

other requirements governing the

humane handling, housing, care,

treatment, and transportation of certain

animals by dealers and other regulated

businesses. The Secretary of Agriculture

has delegated the responsibility for

enforcing the AWA to the Administrator

of the Animal and Plant Health

Inspection Service (APHIS). Regulations

established under the AWA are

contained in 9 CFR parts 1, 2, and 3.

APHIS regulates animal dealers by

issuing them annual licenses and

conducting unannounced inspections of

their premises to check for compliance

with the AWA standards and

regulations.

In recent years, several species of

small, generally nondangerous

mammals, including hedgehogs, degus,

spiny mice, prairie dogs, flying

squirrels, and jerboas, have increasingly

been sold at retail pet stores in the

United States. These and other small

mammalian species are collectively and

commonly referred to as ‘‘pocket pets.’’

However, none of these species, some of

which are native to the United States

and others of which are native to foreign

countries, have been domesticated as

pets in the United States in the sense

that dogs, cats, and other common pettype animals have been domesticated.

Therefore, APHIS considers pocket pets

to be exotic or wild animals under the

AWA regulations, and any retail pet

store that sells a pocket pet is subject to

AWA regulation.

Several years ago, some retail pet

stores across the United States started

selling limited numbers of pocket pets

on a sporadic basis. In general, retail pet

stores are exempt from AWA regulation

unless they sell animals to a research

facility, an exhibitor, or a dealer. Our

policy was not to regulate the retail pet

stores that were selling pocket pets

because the effort needed to identify

and regulate these stores did not appear

to be a prudent use of our AWA

enforcement resources. However, we

continued to reevaluate this policy as

the popularity of pocket pets grew

among U.S. consumers. Because many

retail pet stores are now selling pocket

pets on a regular basis, we now believe

that it is feasible and necessary to

identify and regulate these stores.

Therefore, we are giving notice that,

in order to ensure the humane care and

treatment of pocket pets in the

commercial pet trade, we are now

regulating the handling, care, treatment,

and transportation provided to such

animals by retail pet stores and

requiring that retail pet stores dealing in

these animals be licensed under the

AWA. The AWA licensing requirements

for animal dealers are specified in 9 CFR

part 2, subpart A, and the care standards

for pocket pets are covered in 9 CFR

part 3, subpart F. For information about

becoming licensed as a dealer under the

AWA, contact the person listed above

under FOR FURTHER INFORMATION

CONTACT.

Done in Washington, DC, this 13th day of

January 1998.

Craig A. Reed,

Acting Administrator, Animal and Plant

Health Inspection Service.

[FR Doc. 98–1312 Filed 1–20–98; 8:45 am]

BILLING CODE 3410–34–P

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection

Service

9 CFR Part 3

[Docket No. 95–100–2]

RIN 0579–AA78

Humane Treatment of Dogs and Cats;

Wire Flooring

AGENCY: Animal and Plant Health

Inspection Service, USDA.

ACTION: Final rule.

SUMMARY: We are amending the

regulations under the Animal Welfare

Act regarding suspended flooring of

mesh or slatted construction in primary

enclosures for dogs and cats. We are

requiring that such flooring made of

metal strands be constructed either of

metal strands greater than 1⁄8 of an inch

in diameter or of metal strands equal to

or less than 1⁄8 of an inch in diameter

coated with a material such as plastic or

fiberglass. We are also requiring that any

primary enclosure with a suspended

floor for a dog or cat be constructed so

that the floor does not bend or sag

between the supports. It is our

experience that suspended flooring

made of wire (by which we mean any

metal strand that has a diameter equal
3018 Federal Register / Vol. 63, No. 13 / Wednesday, January 21, 1998 / Rules and Regulations

to or less than 1⁄8 of an inch) is

uncomfortable on animals’ feet and

contributes to foot injuries and that

suspended flooring made of coated wire

or made of metal strands larger than

wire causes fewer such problems. It is

also our experience that suspended

floors that bend and sag can cause

psychological trauma for dogs who must

try to balance on them. We believe that

adding these requirements will improve

comfort for dogs and cats housed in

primary enclosures with suspended

floors and will help eliminate foot

injuries to these animals.

DATES: Effective date: February 20, 1998.

Compliance dates: February 20, 1998 for

primary enclosures constructed on or

after that date and for floors installed or

replaced on or after that date and

January 21, 2000 for all other primary

enclosures.

FOR FURTHER INFORMATION CONTACT: Mr.

Stephen Smith, Staff Animal Health

Technician, Animal Care, APHIS, 4700

River Road Unit 84, Riverdale, MD

20737–1234, (301) 734–4972.

SUPPLEMENTARY INFORMATION:

Background

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.

The Secretary of Agriculture has

delegated the responsibility for

enforcing the AWA to the Animal and

Plant Health Inspection Service

(APHIS). Regulations established under

the AWA are contained in 9 CFR parts

1, 2, and 3. Subpart A of 9 CFR part 3

(referred to below as the regulations)

contains specific standards for the

humane handling, care, treatment, and

transportation of dogs and cats.

The standards for primary enclosures

for dogs and cats are found in § 3.6. The

regulations require that, among other

things, all surfaces in contact with the

animals must be able to be readily

cleaned and sanitized or replaced when

worn or soiled. Primary enclosures must

also ‘‘(h)ave floors that are constructed

in a manner that protects the dogs’’ and

cats’ feet and legs from injury, and that,

if of mesh or slatted construction, do not

allow the dogs’ and cats’ feet to pass

through any openings in the floor. If the

floor of the primary enclosure is

constructed of wire, a solid resting

surface or surfaces that, in the aggregate,

are large enough to hold all the

occupants of the primary enclosure at

the same time comfortably must be

provided.’’

On July 2, 1996, we published in the

Federal Register (61 FR 34389–34391,

Docket No. 95–100–1) a proposal to

amend the regulations to require that, if

the floor of a primary enclosure for a

dog or cat is constructed of wire, the

wire must be coated with a material,

such as plastic or fiberglass, that can be

cleaned and sanitized readily. We

further proposed to require that the

coated wire must have a well-rounded

surface and must be of a large enough

diameter so that it is comfortable on the

animals’ feet and protects the animals’

feet from injury, and that it must be

strong enough that the floor does not sag

or bend between structural supports. We

believed that these requirements would

improve comfort for dogs and cats

housed in wire-floored enclosures,

would help eliminate foot injuries for

such animals, and would ensure that

wire flooring for dogs and cats is clean

and sanitary.

We solicited comments concerning

our proposal for 60 days ending

September 3, 1996. We received 51

comments by that date. They were from

dog breeders, humane organizations,

veterinarians, trade associations, and a

Federal government agency, among

others. Thirty-seven comments opposed

the proposal, seven favored the

proposal, and seven did not explicitly

favor or oppose the proposal but asked

for some clarifications. The comments

are discussed below by topic.

The proposed rule referenced three

public meetings APHIS held in 1996 to

gather information on the requirements

in 9 CFR part 3, subpart A, that apply

to the care of dogs and cats in the

commercial pet trade. At those

meetings, we met with members of

affected industries, such as dealers,

research facilities, and commercial

animal transporters, and animal

protection organizations. Each of the

three meetings was divided into four

workshops covering specific topic areas.

One of the workshops covered

sanitation, materials, flooring, and

construction of primary enclosures.

Several commenters on the proposal

stated that, by issuing the proposed rule,

APHIS had ignored input received from

the public meetings because a common

opinion expressed at those meetings

was that APHIS should not issue new

rules regarding primary enclosures for

dogs and cats but instead concentrate on

enforcing the current regulations. We

have considered that recommendation

and all of the others we received at the

public meetings, and further rulemaking

may result from our continued analysis

of the input we obtained at those

meetings. However, we believe that,

with regard to suspended flooring made

of mesh or slatted construction, a more

specific standard is necessary to make it

clear how such flooring should be

constructed in order to protect the dogs

and cats from injury. This specificity

will make it easier for APHIS inspectors

to ensure consistency in judging the

soundness of such floors and for

regulated individuals to comply with

the regulations.

Many commenters requested a more

specific definition of wire. They wanted

to know if we consider expanded metal,

welded rods, and other types of metal

flooring of mesh or slatted construction

to be wire; many commenters stated that

galvanized expanded metal works well

for flooring in primary enclosures for

dogs and cats. Some commenters

requested that the regulations specify a

certain width of diameter (gauge) to

differentiate between wire and other

types of metal strands, such as rods.

We agree that we need to be more

specific about what we consider wire,

and we regret any confusion that was

caused by this lack of specificity in the

proposed rule. Moreover, we agree that

certain types of suspended flooring

made of metal strands in a mesh or

slatted configuration are not harmful to

dogs and cats and do not need to be

coated with a material such as plastic or

fiberglass to ensure the animals’ comfort

and safety. We do not want to place an

unnecessary burden on the regulated

industry by establishing a requirement

that would cause AWA licensees and

registrants to replace types of suspended

floors that are not known to cause harm

to dogs and cats.

We do not consider any flooring

material that is inflexible, such as

expanded metal, to be wire. Floors made

of inflexible metal strands do not bend

and sag and, therefore, provide an even

resting surface for the animals.

Moreover, floors made of inflexible

metal strands cause fewer foot problems

than floors made of flexible strands,

such as wire, because, to be inflexible,

the strands must be of a substantial

diameter. We agree with the

commenters who stated that we need to

be more specific regarding acceptable

diameters of metal strands used in

flooring for dogs and cats. The diameter

of the metal strands plays a significant

role in regard to ensuring the comfort

and safety for the animals because

strands of a relatively large diameter are

less likely to cause injuries and

discomfort to the animals than strands

with very narrow diameters. Animals

housed on floors made of metal strands

of a relatively large diameter are less

likely to suffer from interdigital cysts
Federal Register / Vol. 63, No. 13 / Wednesday, January 21, 1998 / Rules and Regulations 3019

and lesions caused by the digits of the

animals’ paws passing around the

individual strands.

In this final rule, we are requiring that

metal strands used in flooring be coated

if the metal strands have a diameter

equal to or less than 1⁄8 of an inch (9

gauge). We chose 1⁄8 of an inch as the

defining measurement, in part, because

that measurement is used by the

metalworking industry as the point of

demarcation between welded wire and

welded rods. In addition, many cage

manufacturers currently use metal

strands with diameters greater than 1⁄8 of

an inch in cage production. Therefore,

cages made with floors of such metal

strands are easily available to

consumers. Such cages are sturdy, and

the floors are less likely to break easily

from rust or from the weight of the

animal than cages made of metal strands

with a diameter of 1⁄8 of an inch or less

(hereafter in this document referred to

as wire).

We are making changes in other areas

of the regulations to be consistent with

this use of the word ‘‘wire.’’ The word

‘‘wire’’ appears in reference to flooring

in §§ 3.6(a)(2)(x), 3.11(a), and 3.14(a)(9)

and refers to metal strands in general.

We are amending these sections to

remove the word ‘‘wire’’ from them.

Several commenters questioned

APHIS’ justification for the proposal

and asked if APHIS has scientific

evidence to show that wire flooring is

harmful to dogs and cats.

We are not aware of any scientific

research that has been done regarding

the inadequacy of wire flooring in

providing for the comfort and wellbeing of dogs and cats. As stated in the

proposed rule, this belief is based on

our own experience in AWA

enforcement. Because APHIS has been

enforcing the AWA for over 30 years,

our field staff of Animal Care inspectors

has extensive experience in monitoring

the well-being of dogs and cats raised

for breeding. The idea to prohibit bare

wire flooring in primary enclosures for

dogs and cats originated within the

Animal Care staff. APHIS veterinarians

have been concerned for some time that

bare wire flooring often causes

discomfort for dogs and cats, provides

inadequate support for them, and has

the potential to cause lesions and sores

on the animals’ feet. This perception

was confirmed in a recent survey of

Animal Care inspectors. The responses

indicated that, in the year preceding the

survey, the 39 inspectors who

responded to the survey were aware of

a total of 238 animals that were injured

as the result of being housed on bare

wire flooring. A majority of the survey

respondents indicated that bare wire

flooring often sags or bends, creating an

uncomfortable resting place for animals,

and causes lesions or sores to animals’

feet; the majority of respondents further

indicated that coated wire flooring does

not cause these problems.

One commenter said that not enough

information was provided in the

proposal to explain why the current

standards for flooring are ineffective for

protecting the animals or how requiring

coated wire will correct the inadequacy.

While the current regulations

regarding primary enclosures for dogs

and cats require that the floors be

constructed in a manner that protects

the dogs’ and cats’ feet and legs from

injury, the regulations do not address

the issue of basic comfort for the

animals. In enforcing the AWA, APHIS

is charged with, among other things,

promulgating standards to govern the

humane care and treatment of animals

covered by the law. Therefore, in

carrying out the AWA, we believe that

we are responsible for establishing

minimum levels of comfort for regulated

animals. We have come to believe that,

while wire flooring may not actually

cause injury to all dogs and cats housed

on it, such flooring is generally

uncomfortable for these animals. Coated

wire provides a stronger mesh and a

more inflexible surface than bare wire.

Because many dogs acquire foot lesions

and suffer psychological trauma from

trying to balance on wire floors, which

often sag and bend, we believe that it is

necessary to change the existing

regulations concerning flooring for dogs

and cats to prohibit bare wire flooring.

Some commenters stated that coated

or bare wire of the same diameter and

mesh size are likely to be equal in terms

of comfort under foot. We disagree. Our

inspectors have found that coated wire

generally causes fewer lesions on

animals’ feet than bare wire.

Other commenters suggested that we

require a certain width of the mesh at

a size small enough to prevent foot and

leg injuries. We do not believe that it is

necessary to specify a mesh width for

wire flooring. The regulations currently

specify that, if the floor of the primary

enclosure is of mesh or slatted

construction, the floor may not allow

the dogs’ and cats’ feet to pass through

any openings in the floor. We believe

that this requirement is specific enough

to ensure that the mesh is of a sufficient

size to prevent foot and leg injuries from

passage through the floor.

Some commenters questioned the

quality of wire coatings currently

available on the commercial market.

Others stated that, once cracks develop

in the coating of coated wire, germs can

accumulate in the cracks, and the wire

under the coating can rust badly as such

wire is often not galvanized.

We have found that high-quality

coated wire is readily available to

consumers through kennel magazines

and building supply stores and can be

purchased in bulk rolls. According to

our inspectors, most licensees are

already using coated wire or some other

acceptable type of mesh or slatted

flooring, such as galvanized expanded

metal. Some commenters who currently

use coated wire stated that they think

coated wire makes an excellent floor for

both comfort and cleanliness and that

they have never experienced problems

with flooring made of coated wire. In

our experience, coated wire is generally

easier to keep clean than bare wire

because it provides a smoother surface.

Bare wire is prone to rust, which creates

a rough surface that is hard to clean.

When a coated wire floor becomes

cracked to the point that rust develops,

the floor should be replaced.

Many commenters expressed concern

about the length of time a plastic or

fiberglass coating would remain on wire

used for flooring for dogs and cats.

Some commenters stated that dogs chew

on coated wire, destroying the coating.

The commenters wanted to know

whether they would be in violation of

the regulations if their dogs chewed off

the coating and whether they would be

required to replace the flooring as soon

as it was damaged from being chewed.

Other commenters expressed concern

that dogs could become ill from

ingesting the coating material.

Breeders who experience extensive

problems with dogs chewing on coated

wire are probably not providing enough

physical or psychological stimulation

for their dogs and should perhaps

provide them with diversions such as

pet chews or toys. While we recognize

that the possibility exists for dogs to

become ill from ingesting the coating

material, we have not been made aware

of such incidents from the many

licensees who already use coated wire

flooring. We believe that it is unlikely

that the relatively small amounts of

coating that an animal would ingest

before human intervention occurred

would seriously harm the animal. We

will expect breeders whose dogs chew

on the coating of coated wire floors to

replace the flooring when an APHIS

inspector determines that the flooring is

too worn for further use. However,

breeders who have chronic difficulties

with dogs chewing on flooring made of

coated wire have the option of using

flooring made of metal strands that are

of a diameter greater than 1⁄8 of an inch

or any of the many other types of

acceptable flooring.
3020 Federal Register / Vol. 63, No. 13 / Wednesday, January 21, 1998 / Rules and Regulations

Two commenters recommended that

APHIS prohibit the use of any type of

flooring of mesh or slatted construction

in primary enclosures for dogs and cats

and instead require the use of solid

flooring made of such materials as

impervious concrete or stainless steel.

We have found that, for animals raised

in the commercial pet breeding

industry, primary enclosures with

flooring that allows the passage of

excrement are generally kept cleaner

than primary enclosures with solid

flooring surfaces. We believe that the

commercial pet breeding industry has

demonstrated that animals can

successfully be raised on suspended

flooring of mesh or slatted construction.

AWA licensees may certainly choose to

use primary enclosures with floors

made of solid surfaces, but we do not

believe that it is necessary to require the

use of such floors at this time.

One commenter requested that we

allow uncoated wire to be used in the

flooring of primary enclosures of dogs

and cats in research projects in which

fecal collection is required, to prevent

any interference with the research as a

result of the adherence of fecal material

to coated wire flooring. Researchers in

this situation may use flooring made of

metal strands of a diameter greater than

1⁄8 of an inch. If a researcher can prove

that, for the purposes of the research,

the dog or cat needs to be housed on

bare wire flooring, the researcher may

request approval through the

laboratory’s Institutional Animal Care

and Use Committee in accordance with

9 CFR part 2.38(k)(1) for an exemption

to the flooring requirements.

Two commenters made comments

and recommendations regarding AWA

enforcement, the AWA regulations

pertaining to veterinary care provided to

regulated animals, and the breeding

frequency for female animals in the

commercial pet trade. In addition, one

of the commenters had

recommendations regarding

reclassification of animal dealers,

primary enclosures, exercise

requirements, and air transit of animals.

Although these comments are outside

the scope of the proposed regulation, we

are taking them into consideration. If we

decide to make any changes to the AWA

regulations in response to these

comments, we will publish a proposed

rule in the Federal Register.

One commenter indicated that we

should extend the proposed regulation

to cover dogs and cats in the care of

show breeders, pounds, humane

societies, groomers, and boarding

kennels. While we agree that all dogs

and cats should be treated in a humane

manner, the AWA does not authorize us

to promulgate standards for the care of

animals in these circumstances.

As stated in the proposal, we will

have two compliance dates for this final

rule. We are requiring that any new

primary enclosures constructed on or

after 30 days from the date of

publication of this final rule in the

Federal Register, and any floors

installed on or after that date, will have

to comply with the final rule. Other

existing enclosures must be brought into

compliance within 2 years. Although

several commenters stated that the 2-

year compliance period was reasonable,

some thought that this timeframe was

too long, and one thought that it was too

short. Several commenters thought that

the rule change should include a

‘‘grandfather clause’’ to allow the use of

existing flooring in primary enclosures

until it wears out. One commenter

proposed that the 2-year compliance

period apply ‘‘also to those which are

able to demonstrate that wire flooring

was installed within 90 days of final

publication in a manner consistent with

current requirements’’ to prevent

facilities that have new construction

under way at the time of final rule

publication from having to destroy

partially completed facilities. We have

considered these comments, but we are

not making any change to the proposed

phase-in of compliance dates. We

believe that the two timeframes

discussed above provide ample time for

licensees and registrants who have

primary enclosures with wire flooring to

convert the flooring to any of the many

acceptable types.

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 significant for the

purposes of Executive Order 12866 and,

therefore, has been reviewed by the

Office of Management and Budget.

In accordance with 5 U.S.C. 604, we

have prepared a Final Regulatory

Flexibility Analysis, which is set out

below, regarding the economic impact

of this rule on small entities. The

discussion also serves as our costbenefit analysis under Executive Order

12866.

APHIS administers the Animal

Welfare Act (AWA), which requires that

minimum standards of care and

treatment be established for certain

animals bred for commercial sale, used

in research, transported commercially,

or exhibited to the public. Dogs and cats

are covered under the AWA.

In the July 2, 1996, Federal Register,

APHIS proposed (61 FR 34389–34391)

that, if the floor of a primary enclosure

for dogs or cats covered by the AWA is

constructed of wire, the wire must be

coated with a material such as plastic or

fiberglass. APHIS further proposed that

the coated wire: (1) have a well-rounded

surface and be large enough in diameter

so that it is comfortable on the animals’

feet and protects the animals’ feet from

injury; and (2) be strong enough so that

the floor does not sag or bend between

the structural supports. The proposed

rule suggested two effective dates: The

first would have required that all new

construction and replacements be in

compliance 30 days after publication of

the final rule; the second would have

required that all regulated facilities be

in compliance no later than 2 years after

publication of the final rule.

The proposal was in response to

concern that wire flooring is inadequate

in providing for the comfort and wellbeing of dogs and cats. In developing

the proposal, APHIS considered its own

experience in enforcing the AWA, as

well as the recommendations and

opinions expressed by participants at

three public meetings hosted by the

agency in 1996 to gather information on

the regulations that cover the care of

cats and dogs in the commercial trade.

The current AWA standards do not

specifically preclude wire flooring for

housing dogs and cats, and the proposal

pointed out a number of problems with

such flooring. Bare wire can be

uncomfortable on the animals’ feet

because of its narrow diameter. Bare

wire is prone to rust, which not only

affects the structural integrity of the

primary enclosure but can also cause

foot injuries because rusty wire is

abrasive. Bare wire is difficult to clean

and sanitize thoroughly because rust

makes the wire semiporous in places.

Finally, bare wire flooring often sags or

bends between structural supports,

creating an uncomfortable resting

surface. The proposed rule change was

intended to eliminate or mitigate these

problems.

APHIS received 51 comments on the

proposal. Thirty-seven commenters

opposed the proposal, seven favored it,

and seven did not indicate a preference.

Many of those opposed to the proposal

argued that it was not adequately

justified, both in terms of any hard

evidence (e.g., inspection reports,

documented cases) and in terms of the

insufficiency of the current regulations.

The U.S. Small Business Administration

(SBA) commented that, prior to issuing
Federal Register / Vol. 63, No. 13 / Wednesday, January 21, 1998 / Rules and Regulations 3021

a final rule, APHIS should better

articulate the scope of the problem and

should consider the possibility of viable

alternatives.

The final rule is essentially a refined

version of the proposed rule. The

proposed rule did not define wire, and

many commenters requested

clarification as to what APHIS considers

to be wire. Under the final rule, APHIS

defines wire as flexible metal strands 1⁄8

of an inch or less in diameter. The rule

change is needed because the current

regulations do not specifically preclude

wire flooring, a documented source of

injuries and discomfort. The

commenters’ arguments that the rule is

not needed are not persuasive. Many

commenters argued that the rule was

not justified with any scientific

evidence. That argument is correct, to

the extent that the published proposal

did not include any hard evidence

supporting the rule change. However,

the absence of hard evidence does not

mean that the rule is not needed or that

it was initiated without adequate

forethought. APHIS proposed the rule

change only after carefully considering

the views of persons within and outside

the agency.

In early 1997 (following the receipt of

public comment), APHIS conducted a

survey of its field inspectors. The

inspectors, many of whom are licensed

veterinarians, have extensive experience

in monitoring the well-being of dogs

and cats raised for breeding. Of the 39

inspectors responding to the survey,

over half had more than 21 percent of

their facilities having dogs and cats;

one-third of the respondents had more

than 50 percent of their facilities having

dogs and cats.

The survey results document the

problems with wire flooring that were

identified in the proposal. The survey

revealed that, during the past year

alone, the inspectors were aware of 238

animal injuries that resulted from wire

flooring at facilities under their

inspection. The number of reported

injuries would no doubt have been even

higher if inspections were conducted on

a more frequent basis. (Inspectors visit

each facility on an average of only 1.46

times per year.)

Of the five most common types of

flooring used in suspended enclosures

for dogs and cats (coated wire, molded

plastic, expanded metal, metal rods, and

bare metal wire), the inspectors ranked

bare wire last in terms of what is best

for the animals; coated wire was ranked

second. Molded-plastic flooring was

ranked first, but that type of flooring has

been rejected as a viable alternative

because of its cost. The advantages of

molded-plastic flooring are not justified

by its additional cost.

Some commenters agreed with the

intent of the rule but disagreed with the

proposed solution. They maintained

that any type of mesh flooring is

inadequate and that APHIS should

instead require flooring made of

impervious concrete, Teflon, stainless

steel, or fiberglass. APHIS agrees that

these materials can make excellent

flooring surfaces for dogs and cats, if a

concerted effort is made to keep them

clean. However, APHIS inspectors have

found that animals raised in primary

enclosures with suspended flooring that

allows the passage of fecal material are

often kept in cleaner conditions than

animals raised on flooring made of solid

surfaces. Therefore, to protect the health

of AWA-regulated animals by helping to

ensure the cleanliness of their

enclosures, APHIS will continue to

allow dogs and cats to be raised in

enclosures with suspended floors that

allow the passage of fecal material.

Many commenters argued against the

rule on the grounds that the current

standards are already sufficient; they

stated that those standards merely need

to be enforced uniformly. However,

enforcement activity, regardless of how

diligent or aggressive, will never solve

the injury and discomfort problems if

the regulations continue to allow for the

use of the material that causes the

problems in the first place. Likewise,

one commenter suggested that the

injuries might be due more to neglect

than to wire flooring and that an

increase in the caretaker-to-animal ratio

might be a better solution than requiring

coated wire. However, the injuries and

discomfort caused by wire flooring are

not directly related to the level of

supervision provided. Even if the

caretaker-to-animal ratio were

increased, the animals would still

experience problems on floors made of

bare wire.

Over half of the surveyed inspectors

disagreed that the current regulations on

wire flooring are sufficient.

Furthermore, any corrective action

taken as a result of enforcement activity

is likely to produce the very same

results that this rule change is intended

to achieve, i.e., the replacement of bare

metal strands that are 1⁄8 of an inch or

less in diameter with an acceptable

flooring material. From a regulatory

standpoint, there seem to be only two

solutions: Have regulated entities

replace the unacceptable flooring in

existing enclosures or have them

purchase new or used enclosures with

acceptable flooring already built in. The

rule change allows regulated entities the

option of choosing either solution,

thereby minimizing the rule’s economic

impact.

Finally, many commenters were

concerned about the proposed rule’s

lack of specificity. They pointed out that

the term ‘‘wire’’ was not clearly defined,

an important consideration as not all

metal strands used in flooring are

harmful to animals. That concern is a

reasonable one and, for that reason, the

final rule defines wire as flexible metal

strands that are 1⁄8 of an inch or less in

diameter. This modification was made

to distinguish between metal strands

that can be harmful to animals and

inflexible metal strands, such as rods,

that are not. This modification will

allow APHIS inspectors to be consistent

when judging the soundness of

suspended floors of mesh or slatted

construction. This modification will

also make it easier for regulated

individuals and organizations to comply

with the new rule and significantly

reduce the rule’s impact.

Small Entity Impact

The Regulatory Flexibility Act

requires that agencies consider the

economic impact of rule changes on

small entities. In its initial regulatory

flexibility analysis, APHIS stated that

the proposed rule change would affect

all breeders, dealers, research facilities,

and exhibitors of dogs and cats that are

licensed or registered under the AWA

and that house their animals in primary

enclosures with wire floors. However,

APHIS stated that it could not at that

time make a definitive finding as to the

proposed rule’s impact because certain

critical information was not available.

For example, the total number of

licensees and registrants was known,

but the number who housed dogs and

cats on wire flooring was not available.

Nor was information available on the

number of animals involved. For that

reason, APHIS sought comments on the

proposed rule’s potential effects. APHIS

specifically sought comment on the

number of licensees and registrants who

would have to replace wire flooring as

a result of the proposed rule and the

average number of animals these

licensees house.

Unfortunately, the commenters

furnished little or no new information

on the rule’s overall impact on small

entities. Several commenters stated that

it would be too costly to implement, but

none provided details to support that

statement. One commenter stated that it

would cost $27,949 (labor and

materials) to replace his galvanized

expanded metal with coated wire (the

commenter further stated the cost would

be $42,949, or $15,000 more in

additional labor costs, if the commenter
3022 Federal Register / Vol. 63, No. 13 / Wednesday, January 21, 1998 / Rules and Regulations

1Members of the National Association for

Biomedical Research (NABR) account for between

50 and 60 percent of all dogs used in research.

Barbara Rich of NABR said that members’ use of

bare wire flooring is rare. Steve Smith (APHIS)

indicated that use of bare wire flooring by nonNABR research facilities is also rare.

2Per N. Marshall Myers (Pet Industry Joint

Advisory Council).

3These material quotes were obtained by Steve

Smith (APHIS). In the initial analysis, APHIS stated

that the market price of both bare and coated wire

varies, depending on the quality and diameter

width of the material. APHIS asserted that bare wire

of the type most often used as flooring sells for

approximately $1.50 per square foot and that coated

wire (that meets the other standards) sells for

between $2.25 and $5.00 per square foot.

4Per N. Marshall Myers (Pet Industry Joint

Advisory Council).

could not ‘‘rent, borrow, or buy’’ two

winches). However, galvanized

expanded metal would not have to be

replaced under the rule, so that cost

estimate is not relevant. In any event,

the commenter provided no details as to

how the dollar amount was arrived at,

including information on the square

footage of the flooring to be replaced.

In fiscal year 1995, 10,108 facilities

were licensed or registered under the

AWA. Of that number, 4,325 were

licensed dealers, 2,304 were licensed

exhibitors, and 3,479 were registrants.

The dealers are subdivided into two

classes. Class A dealers (3,056) breed

animals, and Class B dealers (1,269)

serve as animal brokers. The registrants

comprise research facilities (2,688),

carriers and intermediate handlers

(756), and exhibitors (35).

It is not known how many of the

licensees and registrants are considered

small entities under SBA standards,

since information as to their size (in

terms of gross receipts or number of

employees) is not available. However, it

is reasonable to assume that most are

small, based on composite data for

providers of the same and similar

services in the United States. In 1992,

the per-firm average gross receipts for

all 6,804 firms in SIC 0752 (which

includes breeders) was $115,290, well

below the SBA’s small-entity threshold

of $5.0 million. Similarly, the 1992 perestablishment average employment for

all 3,826 U.S. establishments in SIC

8731 (which includes research facilities)

was 29, well below the SBA’s smallentity threshold of 500 employees.

The economic impact of the rule

change cannot be determined with

certainty because critical information,

such as the number of licensees and

registrants who currently house dogs

and cats on wire flooring is not

available. However, based on

information furnished by APHIS and the

industry, discussed below, the

economic impact is not expected to be

significant.

For the overwhelming bulk of

research facilities, the final rule will

have virtually no economic impact

because the use of wire flooring of any

diameter size for dogs and cats in those

facilities is rare.1 Nor will the rule

significantly affect regulated exhibitors

because few use dogs and cats as exhibit

animals. Registered carriers and

intermediate handlers will also be

largely unaffected because the

enclosures they use to transport animals

are not considered to be the animals’

‘‘primary’’ enclosures.

As a group, dealers (breeders and

brokers) of dogs stand to be affected

most by the rule change. However, even

the impact on dog dealers should be

minimal. (The impact on AWA-licensed

cat dealers is likely to be negligible

because most raise their animals on

solid flooring surfaces in primary

enclosures containing litter boxes,

which are required by the regulations.

Moreover, the percentage of licensed

dealers who deal in cats is extremely

small; the vast majority of licensed

dealers deal in dogs.)

It is estimated that there are

approximately 2,000 Class A dog

breeders in the United States, who

produce about 175,000 dogs annually—

an average of 90 dogs per breeder.2 To

support the production of 90 dogs

annually, each breeder would need

about 16 separate enclosures—13 to

accommodate the mothers and their

newborns and 3 to accommodate the

fathers. (This calculation assumes that:

(1) newborns are housed with their

mothers before being sold; (2) each

mother produces about 7 newborns

annually; (3) fathers are housed

separately from the mothers and the

newborns; and (4) the ratio of mothers

to fathers at each facility is 4 to 1.) The

16 enclosures, in turn, would translate

into a total of 156 square feet of needed

floor space, assuming all mothers and

fathers are medium-sized. (Floor space

requirements for primary enclosures

vary depending on the size of the

animals; large dogs on average require

13 square feet of floor space, but small

dogs require only 6.5 square feet.

Medium-sized dogs are assumed to need

9.75 square feet, an average of the large

and small dog requirements.)

Based on a recent quote, the material

cost for a 200-square-foot roll of 14-

gauge vinyl-coated galvanized wire is

$148.60. The same roll without the

vinyl coating costs $78.70.3 The cost

difference, therefore, is $69.90, or $0.35

per square foot. Based on the average

floor space of 156 square feet, the

maximum additional cost per breeder

for the coated wire would be $55 (156

× $0.35). The maximum additional cost

for all 2,000 dog breeders would be

$110,000 (2,000 × $55). These cost

figures represent a worst-case scenario

because they assume that each breeder

would have to replace all 156 square

feet of floor space under the new rule.

Such a scenario is unlikely because not

all flooring used by dealers in housing

for dogs is wire.

It is estimated that there are

approximately 75 Class B dog brokers in

the United States and that these brokers

purchase/sell about 315,000 dogs

annually—an average of 4,200 dogs per

broker.4 To support the purchase/sale of

4,200 dogs annually, each broker would

need about 27 separate enclosures. (This

calculation assumes that: (1) the brokers

have custody of each dog for 1 week;

and (2) the dogs are housed three to an

enclosure.) The 27 enclosures, in turn,

would translate into a total of 176

square feet of needed floor space,

assuming that all dogs are small-sized.

(Most dogs in the custody of brokers are

puppies, and small dogs require only

6.5 square feet of floor space.) Based on

the average floor space of 176 square

feet, the maximum additional cost per

broker for the coated wire would be $62

(176×$0.35). The maximum additional

cost for all 75 dog brokers would be

$4,650 (75×$62). Again, these cost

figures represent a worst-case scenario

because they assume that each broker

would have to replace all 176 square

feet of floor space under the new rule.

Such a scenario is unlikely.

Small entities should not experience

any additional labor costs as a result of

the rule. Regulated entities have 2 years

to bring existing flooring into

compliance. By that time, it is likely

that all bare wire flooring will have been

replaced anyway, due to its limited

useful life. The rule, therefore, should

not force regulated entities into

premature replacement of existing

flooring. Because of that, and because

the labor cost to replace wire flooring

should be the same regardless of

whether the wire is coated or uncoated,

the rule should have no impact on small

entities’ labor costs.

On average, therefore, it would cost

each breeder only about $55 to switch

from bare wire to coated wire. This

amount is relatively insignificant; it

represents less than 1 percent of the perfirm average gross receipts for all firms

in SIC 0752, which includes breeders.

The average cost of $62 for each broker

would also be relatively insignificant—

less than 1 percent of the perestablishment average sales for all

establishments in SIC 5199, which
Federal Register / Vol. 63, No. 13 / Wednesday, January 21, 1998 / Rules and Regulations 3023

includes brokers. The rule would have

a carryover cost effect because each

subsequent replacement would require

coated wire or some other acceptable

material, such as galvanized expanded

metal. However, the increased cost of

coated wire would be made up, at least

partially, over time because coated wire

will provide longer use.

This rule contains no reporting or

recordkeeping requirements.

Executive Order 12372

This program/activity is listed in the

Catalog of Federal Domestic Assistance

under No. 10.025 and is subject to

Executive Order 12372, which requires

intergovernmental consultation with

State and local officials. (See 7 CFR part

3015, subpart V.)

Executive Order 12988

This final rule has been reviewed

under Executive Order 12988, Civil

Justice Reform. It is not intended to

have retroactive effect. This rule would

not preempt any State or local laws,

regulations, or policies, unless they

present an irreconcilable conflict with

this rule. The Act does not provide

administrative procedures which must

be exhausted prior to a judicial

challenge to the provisions of this rule.

Paperwork Reduction Act

This rule contains no information

collection or recordkeeping

requirements under the Paperwork

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

et seq.).

List of Subjects in 9 CFR Part 3

Animal welfare, Marine mammals,

Pets, Reporting and recordkeeping

requirements, Research, Transportation.

Accordingly, 9 CFR part 3 is amended

as follows:

PART 3—STANDARDS

1. The authority citation for part 3

continues to read as follows:

Authority: 7 U.S.C. 2131–2159; 7 CFR 2.22,

2.80, and 371.2(d).

2. Section 3.6 is amended as follows:

a. In paragraph (a)(2)(x), the words

‘‘constructed of wire’’ are removed, and

the words ‘‘of mesh or slatted

construction’’ are added in their place,

and the word ‘‘and’’ at the end of the

paragraph is removed.

b. In paragraph (a)(2)(xi), the period at

the end of the paragraph is removed,

and ‘‘; and’’ is added in its place.

c. A new paragraph (a)(2)(xii) is added

to read as follows:

§ 3.6 Primary enclosures.

* * * * *

(a) * * *

(2) * * *

(xii) Primary enclosures constructed

on or after February 20, 1998 and floors

replaced on or after that date, must

comply with the requirements in this

paragraph (a)(2). On or after January 21,

2000, all primary enclosures must be in

compliance with the requirements in

this paragraph (a)(2). If the suspended

floor of a primary enclosure is

constructed of metal strands, the strands

must either be greater than 1⁄8 of an inch

in diameter (9 gauge) or coated with a

material such as plastic or fiberglass.

The suspended floor of any primary

enclosure must be strong enough so that

the floor does not sag or bend between

the structural supports.

* * * * *

§ 3.11 [Amended]

3. In § 3.11(a), the word ‘‘wire’’ is

removed from the last sentence, and the

word ‘‘mesh’’ is added in its place.

§ 3.14 [Amended]

4. In § 3.14(a)(9), the word ‘‘wire’’ is

removed each time it appears.

Done in Washington, DC, this 13th day of

January 1998.

Craig A. Reed,

Acting Administrator, Animal and Plant

Health Inspection Service.

[FR Doc. 98–1311 Filed 1–20–98; 8:45 am]

BILLING CODE 3410–34–P

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 25

[Docket No. NM–139, Special Conditions

No. 25–ANM–135]

Special Conditions: Ilyushin Aviation

Complex Model Il–96T Airplane

AGENCY: Federal Aviation

Administration (FAA), DOT.

ACTION: Final special conditions.

SUMMARY: These special conditions are

issued for the Ilyushin Aviation

Complex Model Il–96T airplane. This

airplane will have novel and unusual

design features when compared to the

state of technology envisioned in the

airworthiness standards of part 25 of the

Federal Aviation Regulations (FAR).

These special conditions contain the

additional safety standards that the

Administrator considers necessary to

establish a level of safety equivalent to

that provided by the airworthiness

standards of part 25.

EFFECTIVE DATE: February 20, 1998.

FOR FURTHER INFORMATION CONTACT:

Norm Martenson, FAA, International

Office, ANM–116, Transport Airplane

Directorate, Aircraft Certification

Service, 1601 Lind Avenue SW.,

Renton, WA 98055–4056; telephone

(425) 227–2196.

SUPPLEMENTARY INFORMATION:

Background

Ilyushin Aviation Complex, 45

Leningradsky Prospect, Moscow,

125190, Russia, has applied for Russian

type certification of their Model Il–96T

airplane by the Aviation Register (AR) of

the Interstate Aviation Committee in

accordance with existing AR standards.

The AR is authorized to perform

airworthiness certification functions on

behalf of the Commonwealth of

Independent States, including the

Russian government. In addition,

Ilyushin applied for U.S. type

certification of the Model Il–96T on

February 16, 1993.

Section 21.29 of 14 CFR part 21 of the

Federal Aviation Regulations (FAR)

prescribes a reciprocal bilateral

agreement between the U.S. and

exporting country as a requirement for

consideration of U.S. design or

airworthiness approval of an imported

aeronautical product. Such agreements

are known as bilateral aviation safety

agreements (BASA). Although the U.S.

does not presently have a BASA with

Russia providing reciprocal acceptance

of transport category airplanes, the FAA

is working with the AR and Russian

government officials to conclude an

agreement of this nature. FAA Advisory

Circular (AC) 21–23, Airworthiness

Certification of Civil Aircraft, Engines,

Propellers, and Related Products

Imported to the United States, provides

further guidance in this regard.

A BASA with Russia may be

concluded following successful

completion of an assessment by the

FAA and the AR of each other’s

technical competence and regulatory

capability for performing airworthiness

certification functions. The scope of the

agreement is defined by each authority

in Implementation Procedures. FAA

type certification of the Model Il–96T

transport airplane is therefore

conditional upon successful

implementation of a BASA with Russia,

providing acceptance of transport

category airplanes.

One of the key elements of any BASA

assessment program is the shadow

certification program. Under the

Russian shadow certification program,

FAA specialists are ‘‘shadowing’’ their

AR counterpart specialists during AR

certification of an example of the