[Federal Register Volume 63, Number 133 (Monday, July 13, 1998)]
[Rules and Regulations]
[Pages 37480-37482]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-18594]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 3

[Docket No. 98-044-1]


Animal Welfare; Primary Enclosures for Dogs and Cats

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Interim rule and request for comments.

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SUMMARY: We are amending the regulations under the Animal Welfare Act 
pertaining to primary enclosures for dogs and cats by removing the 
requirement that primary enclosures with flooring made of mesh or 
slatted construction include a solid resting surface. This requirement 
was erroneously added in a recent final rule that amended the 
requirements for primary enclosures for dogs and cats to prohibit bare 
wire flooring in such enclosures. However, we do not believe that it is 
necessary for primary enclosures with acceptable flooring of mesh or 
slatted construction to include a solid resting surface. Therefore, 
this action relieves an unnecessary and unintended requirement.

DATES: Interim rule effective July 14, 1998. Consideration will be 
given only to comments received on or before September 11, 1998.

ADDRESSES: Please send an original and three copies of your comments to 
Docket No. 98-044-1, Regulatory Analysis and Development, PPD, APHIS, 
suite 3C03, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please 
state that your comments refer to Docket No. 98-044-1. Comments 
received may be inspected at USDA, room 1141, South Building, 14th 
Street and Independence Avenue SW., Washington, DC, between 8 a.m. and 
4:30 p.m., Monday through Friday, except holidays. Persons wishing to 
inspect comments are requested to call ahead on (202) 690-2817 to 
facilitate entry into the comment reading room.

FOR FURTHER INFORMATION CONTACT: Mr. Stephen Smith, Staff Animal Health 
Technician, Animal Care, AC, APHIS, 4700 River Road Unit 84, Riverdale, 
MD 20737-1234, (301) 734-4972.


[[Page 37481]]


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. 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.
    On January 21, 1998, we published in the Federal Register a final 
rule (63 FR 3017-3023, Docket No. 95-100-2, effective February 20, 
1998) that amended the regulations pertaining to primary enclosures for 
dogs and cats. The final rule added two new requirements: (1) If a 
primary enclosure has a suspended floor made of metal strands, the 
strands must be greater than \1/8\ of an inch in diameter or coated 
with a material such as plastic or fiberglass, and (2) any kind of 
suspended floor in a primary enclosure must be strong enough so that 
the floor does not bend or sag between the structural supports. In 
essence, the final rule prohibited the use of bare wire (meaning 
uncoated metal strands having a diameter of \1/8\ of an inch or less) 
in suspended flooring of primary enclosures for dogs and cats. We made 
these changes because we determined that bare wire flooring is 
uncomfortable for the feet of dogs and cats and contributes to foot 
injuries and that suspended flooring made of coated wire or of metal 
strands larger in diameter than wire causes fewer such problems. We 
have also found that many dogs acquire foot lesions and suffer 
psychological trauma from trying to balance on suspended floors that 
sag and bend. The rule was effective February 20, 1998, but had two 
compliance dates: For primary enclosures constructed on or after 
February 20, 1998, and for floors installed or replaced on or after 
that date, the compliance date was February 20, 1998; for all other 
primary enclosures, the compliance date is January 21, 2000.
    In the final rule, we removed the word ``wire'' in reference to 
flooring material in dog and cat primary enclosures from every section 
in the regulations where the word appeared. We made these changes 
because, as stated previously in this document and in the preamble to 
the final rule, we consider wire to be metal strands \1/8\ of inch or 
less in diameter, and the final rule effectively prohibited the use of 
wire in flooring of primary enclosures for dogs and cats, unless the 
wire is coated with a material such as plastic or fiberglass.
    One section of the regulations where the word ``wire'' appeared is 
Sec. 3.6(a)(2), which specifies requirements for the construction and 
maintenance of primary enclosures for dogs and cats. Prior to 
publication of the final rule, Sec. 3.6(a)(2)(x) provided, among other 
things: ``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.'' The solid resting surface was 
necessary to provide relief to animals housed in primary enclosures 
with bare wire flooring.
    The final rule removed the words ``constructed of wire'' from this 
sentence and replaced them with the words ``of mesh or slatted 
construction.'' We made this change in error. By changing the words 
``constructed of wire'' in Sec. 3.6(a)(2)(x) to ``of mesh or slatted 
construction,'' we unintentionally promulgated a new requirement.
    Dog and cat primary enclosures with suspended floors of mesh or 
slatted construction (other than those constructed of bare wire) were 
not previously required to include a solid resting surface. As a result 
of the change to Sec. 3.6(a)(2)(x) in our final rule, all primary 
enclosures with suspended flooring of mesh or slatted construction are 
required to include a solid resting surface. We do not believe that 
this requirement is necessary. Because suspended floors of mesh or 
slatted construction, except for those made of bare wire, are 
relatively safe and comfortable for dogs and cats, we do not believe 
that a separate solid resting surface in primary enclosures with 
suspended flooring of acceptable materials is necessary to ensure the 
animals' comfort and safety. Moreover, we have found that some 
regulated parties find it difficult to keep solid resting surfaces in 
primary enclosures for dogs and cats clean and sanitary because of 
problems associated with the animals' waste.
    Because bare wire floors are now prohibited in primary enclosures, 
and because we believe that other types of mesh or slatted floors are 
safe and comfortable for dogs and cats, we are amending 
Sec. 3.6(a)(2)(x) to remove the requirement that a solid resting 
surface or surfaces must be provided in primary enclosures with floors 
of mesh or slatted construction. As a result, solid resting surfaces 
are not required in primary enclosures with any kind of suspended 
flooring. However, this interim rule does not prohibit the inclusion of 
solid resting surfaces in dog and cat primary enclosures with suspended 
flooring. Regulated parties who can maintain solid resting surfaces in 
dog and cat primary enclosures and wish to provide such surfaces for 
their animals may do so.

Immediate Action

    The Administrator of the Animal and Plant Health Inspection Service 
has determined that there is good cause for publishing this interim 
rule without prior opportunity for public comment. Immediate action is 
warranted to relieve unnecessary restrictions on regulated parties. 
Prior to publication of a final rule in the January 21, 1998, Federal 
Register (63 FR 3017-3023, Docket No. 95-100-2), primary enclosures 
with suspended floors of mesh or slatted construction (other than those 
made of bare wire) were not required to include solid resting surfaces 
for the enclosed dogs or cats. In that final rule, we unintentionally 
added a requirement that dog and cat primary enclosures with such 
flooring include a solid resting surface. We do not believe that this 
requirement is necessary to ensure the safety and well-being of dogs 
and cats covered by the Animal Welfare Act. Therefore, we are 
publishing this action, which relieves an unnecessary requirement that 
was promulgated in error, as an interim rule.
    Because prior notice and other public procedures with respect to 
this action are impracticable and contrary to the public interest under 
these conditions, we find good cause under 5 U.S.C. 553 to make this 
action effective one day after publication in the Federal Register. We 
will consider comments that are received within 60 days of publication 
of this rule in the Federal Register. After the comment period closes, 
we will publish another document in the Federal Register. It will 
include a discussion of any comments we receive and any amendments we 
are making to the rule as a result of the comments.

Executive Order 12866 and Regulatory Flexibility Act

    This rule has been reviewed under Executive Order 12866. The rule 
has been determined to be not significant for

[[Page 37482]]

the purposes of Executive Order 12866 and, therefore, has not been 
reviewed by the Office of Management and Budget.
    This rule removes a requirement under the Animal Welfare Act (AWA) 
regulations that primary enclosures used for dogs and cats and having 
suspended flooring of mesh or slatted construction include solid 
resting surfaces. Promulgated in error, this requirement has placed an 
unnecessary and unintentional burden on regulated entities. As 
explained below, this rule will benefit entities who house dogs and 
cats in primary enclosures that have suspended flooring of mesh or 
slatted construction. These regulated entities will avoid the cost of 
purchasing the resting surfaces, as well as the cost of cleaning those 
surfaces following installation. However, the rule does not preclude 
regulated entities who wish to provide such surfaces for their animals 
from doing so.
    The Regulatory Flexibility Act requires that agencies consider the 
economic impact of rules on small entities. This rule will primarily 
affect animal dealers and research facilities licensed or registered 
under the AWA. The exact number of entities affected by the rule is 
unknown because the number of AWA licensees and registrants who house 
dogs and cats in primary enclosures that have suspended floors of mesh 
or slatted construction is unknown. However, it is estimated that 
roughly half of the 4,265 licensed dealers and many of the 2,506 
registered research facilities will be affected.<SUP>1</SUP> The rule's 
impact on regulated exhibitors is insignificant because most do not 
exhibit dogs and cats. Registered carriers and intermediate handlers 
are also largely unaffected because they only transport animals so they 
do not maintain ``primary'' enclosures for regulated animals.
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    \1\ In FY96, 10,366 facilities were licensed or registered under 
the AWA. Of those facilities, 4,265 were licensed dealers, 2,422 
were licensed exhibitors, and 3,679 were registrants. The dealers 
are subdivided into two classes. Class A dealers (3,043) breed 
animals, and Class B dealers (1,222) serve as animal brokers. The 
registrants comprise research facilities (2,506), carriers and 
intermediate handlers (1,142), and exhibitors (31). As used here, 
the term facilities represents sites, the physical location where 
animals are housed. Some licensees and registrants have more than 
one site.
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    The number of dealers and research facilities that are considered 
small entities under U.S. Small Business Administration (SBA) standards 
is unknown because information as to their size (in terms of gross 
receipts or number of employees) is not available. However, it is 
reasonable to assume that most are small in size, based on composite 
data for providers of the same and similar services in the United 
States. In 1992, the per-firm average gross receipts for all 6,804 
firms in SIC (Standard Industrial Classification) 0752, which includes 
dog and cat breeders, was $115,290, well below the SBA's small entity 
threshold of $5 million. Similarly, the 1992 per-establishment average 
employment for all 3,826 U.S. establishments in SIC 8731, which 
includes research facilities, was 29, well below the SBA's small entity 
threshold of 500 employees. It is very likely, therefore, that small 
entities will be the principal beneficiaries of the rule.
    Solid resting surfaces used in dog and cat primary enclosures are 
made of a variety of materials, including fiberglass, galvanized metal, 
or wood, but the most common material used is rubber matting. The 
average cost of such surfaces is minimal--about $5 per enclosure. The 
resting surfaces are usually not affixed to the enclosures; they are 
simply placed on top of the suspended flooring, so as to allow for easy 
removal and cleaning. For that reason, there is virtually no labor cost 
associated with the installation of such surfaces. Thus, if a breeder 
had to install resting surfaces in 120 enclosures, the total cost would 
be about $600. However, solid resting surfaces have to be replaced over 
time. The replacement rate is unknown and depends on the type of 
material used. Those resting surfaces made of fiberglass or galvanized 
metal, for example, have to be replaced less frequently than those made 
of wood. As a result of the rule, affected entities will avoid this 
ongoing replacement cost.
    Resting surfaces are usually cleaned by hosing them down. They are 
cleaned outside the enclosures, to prevent the animals from getting 
wet. Cleaning resting surfaces can be a costly undertaking, largely 
because it is labor intensive. For a dog breeder with 120 enclosures, 
for example, the annual cost is conservatively estimated at $21,900 per 
year. This estimate assumes that: (1) Each resting surface is cleaned 
once each day; (2) it takes 5 minutes to clean each resting surface; 
and (3) labor is paid at a rate of $6 per hour.
    The impact of the rule on individual entities will vary, depending 
on the number of enclosures maintained. However, the impact of the rule 
on all regulated entities will be beneficial.
    Under these circumstances, the Administrator of the Animal and 
Plant Health Inspection Service has determined that this action will 
not have a significant economic impact on a substantial number of small 
entities.

Executive Order 12372

    This program/activity is listed in the Catalog of Federal Domestic 
Assistance under No. 10.025 and is subject to Executive Order 12372, 
which requires intergovernmental consultation with State and local 
officials. (See 7 CFR part 3015, subpart V.)

Executive Order 12988

    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. It is not intended to have retroactive effect. 
This rule would not preempt any State or local laws, regulations, or 
policies, unless they present an irreconcilable conflict with this 
rule. The Act does not provide administrative procedures which must be 
exhausted prior to a judicial challenge to the provisions of this rule.

Paperwork Reduction Act

    This rule contains no information collection or recordkeeping 
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).

List of Subjects in 9 CFR Part 3

    Animal welfare, Marine mammals, Pets, Reporting and recordkeeping 
requirements, Research, Transportation.

    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(a)(2)(x) is revised to read as follows:


Sec. 3.6  Primary enclosures.

* * * * *
    (a) * * *
    (2) * * *
    (x) Have 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; and
* * * * *
    Done in Washington, DC, this 8th day of July 1998.
Charles P. Schwalbe,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 98-18594 Filed 7-10-98; 8:45 am]
BILLING CODE 3410-34-P