37480 Federal Register / Vol. 63, No. 133 / Monday, July 13, 1998 /Rules and Regulations

subject to the prior approval, and under

the supervision of, the Florida Lime

Administrative Committee.

(3) The limitations set forth in

paragraph (a)(2) of this section shall not

apply to master containers of individual

packages, including individual bags of

limes: Provided, That the markings or

labels, if any, on such packages do not

conflict with the markings or labels on

the master container.

* * * * *

PART 915—AVOCADOS GROWN IN

SOUTH FLORIDA

4. Section 915.305, is revised to read

as follows:

§ 915.305 Florida Avocado Container

Regulation 5.

(a) No handler shall handle any

avocados for the fresh market from the

production area to any point outside

thereof in containers having a capacity

of more than 4 pounds of avocados

unless the containers meet the

requirements specified in this section:

Provided, That the containers

authorized in this section shall not be

used for handling avocados for

commercial processing into products

pursuant to § 915.55(c). All avocados

shall be packed in containers of 33, 31,

24, 12, and 8.5 pounds designated net

weights and shall conform to all other

applicable requirements of this section:

(1) Containers shall not contain less

than 33 pounds net weight of avocados,

except that for avocados of unnamed

varieties, which are avocados that have

not been given varietal names, and for

Booth 1, Fuchs, Trapp varieties, such

weight shall be not less than 31 pounds

with respect to each lot of such

containers, not to exceed 10 percent, by

count, of the individual containers in

the lot may fail to meet the applicable

specified weight but no container in

such lot may contain a net weight of

avocados exceeding 2 pounds less than

the specified net weight, and each

avocado in such container in a lot shall

weigh at least 16 ounces, except that not

to exceed 10 percent, by count, of the

fruit in the lot may fail to meet such

weight requirement but not more than

double such tolerance shall be

permitted for an individual container in

the lot; or

(2) Containers shall not contain less

than 24 pounds net weight of avocados:

Provided, That not to exceed 5 percent,

by count, of such containers in any lot

may fail to meet such weight

requirement. All avocados packed at

this designated net weight shall be

placed in two layers and the net weight

of all avocados in any such container

shall not be less than 24 pounds:

Provided, That the requirement as to

placing avocados in two layers only

shall not apply to such container if each

of the avocados therein weighs 14

ounces or less; or

(3) Containers shall not contain less

than 12 pounds net weight of avocados:

Provided, That not to exceed 5 percent,

by count, of such containers in any lot

may fail to meet such weight

requirement. All avocados packed at

this designated net weight shall be

placed in one layer only and the net

weight of all avocados in any such

container shall not be less than 12

pounds; or

(4) Containers shall not contain less

than 8.5 pounds net weight of avocados:

Provided, That not to exceed 5 percent,

by count, of such containers in any lot

may fail to meet such weight

requirement. All avocados packed at

this designated net weight shall be

placed in one layer only and the net

weight of all avocados in any such

container shall not be less than 8.5

pounds. Such containers shall be for

export shipments only.

(5) Such other types and sizes of

containers as may be approved by the

Avocado Administrative Committee,

with the approval of the Secretary, for

testing in connection with a research

project conducted by or in cooperation

with said committee: Provided, That the

handling of each lot of avocados in such

test containers shall be subject to prior

approval, and under the supervision of,

the Avocado Administrative Committee.

(b) The limitations set forth in

paragraph (a) of this section shall not

apply to master containers for

individual packages of avocados:

Provided, That the markings or labels, if

any, on the individual packages within

such master containers do not conflict

with the markings or labels on the

master container.

5. In § 915.306, paragraph (a)(6) is

revised to read as follows:

§ 915.306 Florida avocado grade, pack,

and container marking regulation.

(a)* * *

(6) Such avocados when handled in

containers authorized under § 915.305,

except for those to export destinations,

are marked once with the grade of fruit

in letters and numbers at least one inch

in height on the top or one side of the

container, not to include the bottom,

effective each fiscal year from the first

Monday after July 15 until the first

Monday after January 1.

* * * * *

Dated: July 7, 1998.

Robert C. Keeney,

Deputy Administrator, Fruit and Vegetable

Programs.

[FR Doc. 98–18459 Filed 7–10–98; 8:45 am]

BILLING CODE 3410–02–P

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.

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.
Federal Register / Vol. 63, No. 133 / Monday, July 13, 1998 /Rules and Regulations 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 § 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,

§ 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 § 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 § 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 § 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
37482 Federal Register / Vol. 63, No. 133 / Monday, July 13, 1998 /Rules and Regulations

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.

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.1 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.

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 perestablishment 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:

§ 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