[Federal Register Volume 61, Number 128 (Tuesday, July 2, 1996)]
[Proposed Rules]
[Pages 34386-34389]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16871]


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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service

9 CFR Parts 1 and 3

[Docket No. 95-078-1]
RIN 0579-AA74


Humane Treatment of Dogs and Cats; Tethering and Temperature 
Requirements

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend the regulations for the humane 
treatment of dogs and cats under the Animal Welfare Act by removing the 
provisions for tethering dogs as a means of primary enclosure. We are 
also proposing to amend the regulations by revising the temperature 
requirements for indoor, sheltered, and mobile and traveling housing 
facilities, and for primary conveyances used in transportation, to 
require that the ambient temperature must never exceed 90  deg.F (32.2 
deg.C) when dogs or cats are present. We are taking these actions 
because our experience in enforcing the Animal Welfare Act has led us 
to conclude that tethering dogs as a means of primary enclosure is not 
a humane practice. Also, temperatures exceeding 90  deg.F can be 
harmful to dogs and cats. These actions will help ensure that dogs and 
cats in facilities regulated under the Animal Welfare Act will be 
treated in a humane manner.
DATES: Consideration will be given only to comments received on or 
before September 3, 1996.

ADDRESSES: Please send an original and three copies of your comments to 
Docket No. 95-078-1, 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. 95-078-1. 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, REAC, APHIS, suite 6D02, 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. 
Regulations established under the Act are contained in 9 CFR parts 1, 
2, and 3. Subpart A of 9 CFR part 3 (referred to below as the 
regulations) contains requirements concerning dogs and cats.
    Recently, the Animal and Plant Health Inspection Service (APHIS) 
hosted public meetings in Kansas City and St. Louis, MO, and in 
Washington, DC, to gather information on the regulations in 9 CFR part 
3, subpart A, that apply to the care of dogs and cats in the commercial 
pet trade. People attending the meetings included representatives of 
animal protection organizations and members of affected industries, 
such as dealers, research facilities, and commercial animal 
transporters.
    Each meeting was divided into four workshops covering specific 
topic areas: (1) space requirements for primary enclosures, including 
room for exercise; (2) sanitation, materials, flooring, and 
construction of primary enclosures; (3) veterinary care and breeding 
frequency; and (4) transportation by land and air. APHIS has considered 
all of the recommendations and opinions expressed by participants of 
these workshops at each of the meetings, as well as APHIS' own 
experience in enforcing the Act, in developing this proposal on 
tethering and temperature requirements. There were many recommendations 
expressed in the workshops on issues closely related to what we are 
proposing in this

[[Page 34387]]

document, as well as recommendations on issues other than tethering and 
temperature requirements. APHIS is continuing to review and analyze all 
the recommendations received, and will initiate additional rulemaking 
for any changes deemed appropriate.

Tethering of Dogs

    Currently, the regulations provide that dogs in outside housing 
facilities regulated under the AWA may be kept on tethers as a means of 
primary enclosure. Primary enclosure is defined in 9 CFR part 1 to 
mean:

    (A)ny structure or device used to restrict an animal or animals 
to a limited amount of space, such as a room, pen, run, cage, 
compartment, pool, hutch, or tether. In the case of animals 
restrained by a tether (e.g., dogs on chains), it includes the 
shelter and the area within reach of the tether.

    A dog whose primary enclosure is a tether would be attached to the 
tether almost all of the time, except when it is allowed off of the 
tether for exercise or other activities. The regulations require that a 
dog on a tether must have a shelter (such as a dog house or other 
structure) and the tether must allow the dog access to the shelter and 
to food and water containers. The housing area where the dog is 
tethered must be surrounded by a perimeter fence of sufficient height 
to keep out unwanted animals.
    Our experience in enforcing the AWA has led us to conclude that 
continuous confinement of dogs by a tether is inhumane. A tether 
significantly restricts the dog's movement. A tether can also become 
tangled around or hooked on the dog's shelter structure or other 
objects, further restricting the dog's movement and potentially causing 
injury. We are proposing to remove the option for facilities to use 
tethering as a means of primary enclosure. We would remove all 
references to tethering from the definition of primary enclosure in 9 
CFR part 1, and we would remove the provisions for tethering as a means 
of primary enclosure from the regulations in 9 CFR part 3. Facilities 
would still have a number of primary enclosure options available to 
them, such as a cage or a fenced-in run.

Temperature

    The regulations for indoor housing facilities, sheltered housing 
facilities, and mobile or traveling housing facilities that are 
regulated under the AWA provide that the ambient temperature in the 
facilities may not exceed 85  deg.F (29.5  deg.C) for more than 4 
consecutive hours when dogs or cats are present. The regulations also 
provide that when any person subject to the AWA transports dogs or 
cats, the cargo spaces in primary conveyances (motor vehicle, rail, and 
marine) and the holding areas in the terminal facilities (such as at 
airports, rail stations, or maritime ports) may not exceed 85  deg.F 
(29.5  deg.C) for more than 4 consecutive hours when dogs or cats are 
present. The regulations for air transportation provide that cargo 
areas must be heated or cooled as necessary to maintain an ambient 
temperature that ensures the health and well-being of the dogs or cats 
held there.
    The regulations do not specify a maximum temperature at which dogs 
or cats may be held for up to 4 hours. Because there is no maximum 
temperature restriction in the regulations, it is conceivable that a 
dog or cat could be exposed to extremely high temperatures for up to 4 
hours. Temperatures exceeding 90  deg.F can be harmful to dogs and cats 
even if they are exposed to those temperatures for less than 4 hours.
    In the case of air transportation, there is no maximum temperature 
specified to which dogs or cats can be exposed, even for over 4 hours. 
Although the regulations do state that any cargo area where dogs or 
cats are held must be cooled as necessary to maintain an ambient 
temperature that ensures the health and well-being of the dogs or cats 
held there, there have been incidents where dogs or cats were exposed 
to extremely high temperatures during air travel. Such exposure 
resulted in serious harm or, in some cases, death to those animals.
    For these reasons, we are proposing to require that the ambient 
temperature in indoor housing facilities, sheltered housing facilities, 
mobile or traveling housing facilities, primary conveyances (motor 
vehicle, rail, air, and marine), and terminal facilities must never 
rise above 90  deg.F (32.2  deg.C) when dogs or cats are present.
    Licensed dog and cat dealers and transporters of dogs and cats 
would have several alternative methods of complying with this proposal. 
They could install air conditioning or electric fans to cool the air 
inside the facilities and conveyances. Dog and cat dealers could also 
comply by establishing outdoor shelters, which are not subject to 
temperature requirements, or providing animals in sheltered housing 
facilities with outdoor runs where they are not already available. 
Outdoor shelters and runs provide the dogs and cats with access to 
fresh air, air movement (breezes and winds), shade (required by the 
regulations), and other climatic and environmental factors which help 
to alleviate suffering from high temperatures. Also, humidity levels 
can become unbearable in enclosed facilities where the temperature 
exceeds 90  deg.F. Suffering from humidity levels outdoors, even when 
the temperature is above 90  deg.F, is usually mitigated by other 
climatic factors, as described above.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed 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. 603, we have performed an Initial 
Regulatory Flexibility Analysis, which is set out below, regarding the 
impact of this rule on small entities. However, we do not currently 
have all the data necessary for a comprehensive analysis of the effects 
of this rule on small entities. Therefore, we are inviting comments 
concerning potential effects. In particular, we are interested in 
determining the number and size of licensed facilities that would have 
to make changes to comply with the proposed temperature requirements, 
and the kind of change those licensees would likely choose in order to 
comply (for example, installing air conditioning or constructing 
outdoor facilities).
    Under the Animal Welfare Act (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.
    This proposed rule would eliminate the use of tethering as a means 
of primary enclosure for dogs, and would affect Class A and Class B 
licensed dog dealers. Over 95 percent of Class A and Class B licensed 
dog dealers are considered small businesses.
    There is no information available on the actual number of Class A 
and Class B licensed dog dealers who use tethering as a means of 
primary enclosure. However, kennels and cages are currently the 
preferred means of primary enclosure, with tethering sometimes used as 
a temporary restraint. Tethering is no longer a generally accepted 
practice within the dog dealer industry, and some industry groups 
prohibit their members from using tethering as a means of permanent 
restraint. Therefore, we do not expect this proposal to have a 
significant impact on dog dealers, large or small, because tethering as 
a means of primary

[[Page 34388]]

enclosure is rarely, if ever, utilized by Class A and Class B licensed 
dog dealers.
    This proposed rule would also revise the temperature requirements 
for indoor, sheltered, and mobile and traveling housing facilities, and 
for primary conveyances used in transportation, to state that the 
ambient temperature must never exceed 90  deg.F (32.2  deg.C) when dogs 
or cats are present. This temperature requirement would affect Class A 
and Class B licensed dog and cat dealers. Currently, the regulations 
state (except for air transportation) that the ambient temperature in a 
facility, holding area, or cargo space must not exceed 85  deg.F (29.5 
deg.C) for more than 4 consecutive hours. The regulations for air 
transportation provide that cargo areas must be heated or cooled as 
necessary to maintain an ambient temperature that ensures the health 
and well-being of the dogs or cats held there.
    There are currently a total of 4,325 licensed dog and cat dealers 
(over 95 percent of which are considered small businesses, as stated 
previously). We do not know precisely how many of these house only dogs 
and/or cats, but it is probably close to 90 percent or more. We expect 
that the additional temperature requirement would impact Class A and 
Class B licensed dog and cat dealers mainly in the States of Arkansas, 
Missouri, Kansas, Oklahoma, and Iowa. These are States in which there 
is a high concentration of Class A and Class B licensed dog and cat 
dealers (approximately 2,326 dealers), and in which the temperatures 
can be highly variable in the summer months, with many days reaching 
temperatures above 90  deg.F. In most cases, if a dealer has been able 
to comply with the requirement that the ambient temperature in the 
facility must not exceed 85  deg.F for more than 4 consecutive hours, 
they would likely be able to comply with this proposal without any 
additional expense. We estimate that at least 85 percent of potentially 
affected entities are already in compliance with the temperature 
requirements in this proposed rule.
    However, if a dealer finds that he or she is not prepared to meet 
the new requirement, the cost of compliance would depend on what method 
the dealer chooses to cool the facility. For indoor and sheltered 
housing facilities, the alternatives would most likely include: (1) 
Installation of air conditioning. Installation of air conditioning 
could cost between $1,000 and $3,000 per unit, and operational 
expenditures for electricity could range between $200 to $500 per year; 
(2) Installation of electric fans. Installation of electric fans could 
cost between $300 and $500 per unit, and operational expenditures for 
electricity could range between $100 to $300 per year; (3) Establishing 
outdoor shelters, which are not subject to temperature requirements. We 
estimate that it would cost $17.00 to $29.00 to establish an outdoor 
facility for a single medium-sized dog that would meet the minimum 
requirements of the regulations (based on 18 feet of chain-link fence 
at $.40 to $.50 per foot, a $20 to $30 commercial dog house, and $10 to 
$20 in labor); or (4) Providing dogs and cats in sheltered housing 
facilities with outdoor runs where they are not already available. We 
estimate that it would cost $8.60 to $22.50 to construct an outdoor run 
for a single medium-sized dog that would meet the minimum requirements 
of the regulations (based on 9 to 15 feet of chain-link fence at $.40 
to $.50 per foot plus $5.00 to $15.00 in labor).
    All these cost estimates could vary considerably depending on the 
number of animals housed in the facility, the quality of the materials 
used in construction, and the adaptability of existing structures. 
Because most dog and cat dealers are small businesses, the cost of 
installing air conditioning may comprise a significant portion of their 
overall operational expenses. It is anticipated that the affected 
dealers would choose the less costly alternatives of installing 
electric fans or establishing outdoor shelters or runs.
    We do not expect that this proposal would impact transporters of 
dogs and cats. Most transporters (motor vehicle, rail, air, and marine) 
already have the capacity to provide adequate ventilation and/or air 
conditioning for animals in their cargo areas and holding facilities. 
The majority of dog and cat deaths from extremely high temperatures in 
cargo areas or holding facilities have been due to human error. This 
proposal would help ensure that transporters utilize their existing 
capacity to maintain a healthy temperature range for the animals they 
transport, and would not likely require transporters to install 
additional cooling systems.
    The alternative to this proposed rule would be to make no changes 
to the temperature and tethering requirements in the regulations. After 
consideration, we rejected this alternative because we believe that 
tethering dogs as a means of primary enclosure is not a humane 
practice, and because temperatures exceeding 90  deg.F can be harmful 
to dogs and cats.
    This proposed rule contains no paperwork 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 12778

    This proposed rule has been reviewed under Executive Order 12778, 
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 proposed 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

9 CFR Part 1

    Animal welfare, Pets, Reporting and recordkeeping requirements, 
Research.

9 CFR Part 3

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

    Accordingly, 9 CFR parts 1 and 3 would be amended as follows:

PART 1--DEFINITION OF TERMS

    1. The authority citation for part 1 would continue to read as 
follows:

    Authority: 7 U.S.C. 2131-2159; 7 CFR 2.22, 2.80, and 371.2(g).

    2. In Sec. 1.1, the definition for primary enclosure would be 
revised to read as follows:


Sec. 1.1  Definitions.

* * * * *
    Primary enclosure means any structure or device used to restrict an 
animal or animals to a limited amount of space, such as a room, pen, 
run, cage, compartment, pool, or hutch.
* * * * *

PART 3--STANDARDS

    3. The authority citation for part 3 would continue to read as 
follows:
    Authority: 7 U.S.C. 2131-2156; 7 CFR 2.22, 2.80, and 371.2(d).


Secs. 3.2, 3.3, and 3.5  [Amended]

    4. In Secs. 3.2, 3.3, and 3.5, paragraph (a) of each section would 
be amended by

[[Page 34389]]

adding a new identical sentence at the end of each paragraph to read as 
set forth below:
    (a)* * * The ambient temperature in the facility must never rise 
above 90  deg.F (32.2  deg.C) when dogs and cats are present.
* * * * *


Sec. 3.6  [Amended]

    5. Section 3.6 would be amended by removing paragraph (c)(2), and 
by redesignating paragraphs (c)(3) and (c)(4) as paragraphs (c)(2) and 
(c)(3), respectively.
    6. In Sec. 3.15, paragraphs (d) and (e) would be revised to read as 
follows:


Sec. 3.15  Primary conveyances (motor vehicle, rail, air, and marine).

* * * * *
    (d) During air transportation, dogs and cats must be held in cargo 
areas that are heated and cooled as necessary to maintain an ambient 
temperature that ensures the health and well-being of the dogs or cats. 
The ambient temperature in the cargo areas must never rise above 90 
deg.F (32.2  deg.C) when dogs or cats are present. The cargo areas must 
be pressurized when the primary conveyance used for air transportation 
is not on the ground, unless flying under 8,000 ft. Dogs and cats must 
have adequate air for breathing at all times when being transported.
    (e) During surface transportation, the ambient temperature within 
any animal cargo space containing live dogs or cats must never rise 
above 90  deg.F (32.2  deg.C). Moreover, auxiliary ventilation, such as 
fans, blowers, or air conditioning, must be used when the ambient 
temperature within the animal cargo space reaches 85  deg.F (29.5 
deg.C). The ambient temperature must not exceed 85  deg.F (29.5  deg.C) 
for more than 4 consecutive hours, nor fall below 45  deg.F (7.2 
deg.C) for more than four consecutive hours.
* * * * *
    7. In Sec. 3.18, paragraph (d) would be revised to read as follows:


Sec. 3.18  Terminal facilities.

* * * * *
    (d) Temperature. The ambient temperature in an animal holding area 
containing live dogs or cats must not fall below 45  deg.F (7.2  deg.C) 
or rise above 85  deg.F (29.5  deg.C) for more than 4 consecutive hours 
at any time dogs or cats are present. The ambient temperature in the 
animal holding area must never rise above 90  deg.F (32.2  deg.C) when 
dogs or cats are present.
* * * * *
    Done in Washington, DC, this 27th day of June 1996.
Terry L. Medley
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 96-16871 Filed 7-1-96; 8:45 am]
BILLING CODE 3410-34-P