[Federal Register Volume 60, Number 50 (Wednesday, March 15, 1995)]
[Rules and Regulations]
[Pages 13893-13896]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6369]
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Part 2
[Docket No. 92-158-2]
Animal Welfare; Licensing and Records
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
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SUMMARY: We are amending the Animal Welfare regulations to require
dealers, exhibitors, and operators of auction sales who apply for
license renewal to certify that, to the best of their knowledge and
belief, they are in compliance with the regulations before a renewal is
issued. We are also amending the regulations to require dealers and
exhibitors to use certain forms to make, keep, and maintain the animal
identification records required by the regulations, unless a variance
has been granted that would allow the use of a computerized
recordkeeping system that has been determined by the Administrator to
meet the requirements of the regulations. These changes will help
ensure that applicants for license renewal are in compliance with the
regulations and that dealers and exhibitors keep accurate and complete
records, thus promoting compliance with the Animal Welfare Act.
EFFECTIVE DATE: April 14, 1995.
FOR FURTHER INFORMATION CONTACT: Dr. Debra E. Beasley, Senior Staff
Veterinarian, Animal and Plant Health Inspection Service, Regulatory
Enforcement and Animal Care, Animal Care, 4700 River Road Unit 84,
Riverdale, MD 20737-1234; (301) 734-7833.
SUPPLEMENTARY INFORMATION:
Background
The Animal Welfare regulations contained in 9 CFR part 2 (referred
to below as the regulations) pertain to the administrative and
institutional responsibilities of regulated persons under the Animal
Welfare Act (7 U.S.C. 2131, et seq.) (the Act).
On December 28, 1993, we published in the Federal Register (58 FR
68559-68561, Docket No. 92-158-1) a proposal to amend the regulations
to require that an applicant for license renewal certify that, to the
best of the applicant's knowledge and belief, he or she is in
compliance with the regulations and standards and agrees to continue to
be in compliance upon issuance of a renewed license. In that same
document, we also proposed to amend the regulations to require dealers
and exhibitors to use Veterinary Services (VS) Form 18-5, ``Record of
Dogs and Cats on Hand,'' and VS Form 18-6, ``Record of Disposition of
Dogs and Cats,'' to make, keep, and maintain the information required
by Sec. 2.75(a)(1) of the regulations. We also proposed to add Animal
and Plant Health Inspection Service (APHIS) form numbers in front of
the VS form numbers that appear in several places in the regulations.
We solicited comments concerning our proposal for a 60-day comment
period ending February 28, 1994. We received 11 comments by that date.
The comments were submitted by a scientific society, animal breeders
and distributors, humane and animal rights organizations, and private
citizens. We carefully considered all of the comments we received. They
are discussed below by topic.
Recordkeeping
Comment: The use of VS Forms 18-5 and 18-6 should remain optional
since many facilities have accurate and efficient computerized
recordkeeping systems. The forms that APHIS proposes to require are
cumbersome, repetitive, and outdated and they do not provide spaces for
all the information that is required by the regulations.
Response: We understand that many dealers and exhibitors,
especially the larger operations, may be using computerized systems to
make, keep, and maintain the records required by Sec. 2.75(a)(1) of the
regulations. Because it would be difficult for some dealers and
exhibitors to switch over to a paper system, we have added a provision
to the regulations that will enable a dealer or exhibitor to apply for
a variance from the requirement to use VS Forms 18-5 and 18-6. If APHIS
determines that a dealer or exhibitor is maintaining a computerized
recordkeeping system that is adequate to keep the required information,
a variance will be granted. An appeal procedure is also included for
dealers or exhibitors who have had their request for a variance denied.
The variance is an option only for those dealers and exhibitors who are
using a computerized recordkeeping system; a variance will not be
granted for alternative paper records. With regard to the complaint
that the forms are outdated, APHIS is currently developing updated
forms that reflect the requirements of the regulations. The updated
forms will be distributed as supplies of the existing forms are
depleted.
License Renewal
Comment: The proposed certification will be effective only if it
supports APHIS in denying the license renewal applications of
facilities not in compliance with the regulations and standards.
Otherwise, the certification will not encourage compliance any more
than the statement that applicants are currently required to sign.
Response: The regulations in Sec. 2.5 state that a license will be
renewed if, before the expiration of the license, the licensee files an
application for license renewal, submits an annual report as required
by Sec. 2.7, and pays the required fees. There are no provisions in the
regulations for denying a license renewal application as long as the
licensee has complied with those requirements. However, as provided in
Sec. 2.1(f) of the regulations, a person who fails to comply with any
provision of the Act or any provision of the regulations and standards
shall be liable to having his or her license suspended or revoked.
Comment: If a facility was in the process of correcting a
deficiency, it would be unable to certify that it is in compliance with
the regulations and standards until the deficiency was completely
corrected, which could take up to 30 days or even longer. Similarly, it
would be difficult for a licensee with more than one facility to be
certain that all his or her facilities were, at any given time, in
compliance with the regulations and standards. The delays that could
result from having to be certain that all the regulations and standards
had been satisfied could cause a facility to miss its deadline for
license renewal.
Response: If a licensee who had been cited for a deficiency was
actively working to correct that deficiency, APHIS would be aware--or
could be informed--that the licensee was addressing the problem and was
making a good-faith effort to comply with the regulations. Such a
situation would be no reason for a licensee to delay filing a license
renewal application. With regard to the example of a licensee with more
than one facility, it is the responsibility of a licensee, either
personally or through his or her [[Page 13894]] employees, to ensure
that each facility is maintained and operated in compliance with the
regulations. If a licensee is aware of a deficiency in one of his or
her facilities, it is incumbent upon the licensee to address the
deficiency in order to remain in compliance with the regulations.
Having responsibility for more than one facility is not an excuse for
knowingly operating in violation of the regulations and standards.
Comment: Prior to 1979, APHIS allowed license applicants to submit
an affidavit stating that their premises, facilities, and equipment
were in compliance with the regulations and standards, in lieu of an
APHIS inspection. However, in 1979, APHIS amended the regulations to
remove the applicant affidavit method of ascertaining compliance
because of misrepresentation and misuse of the method by some
applicants. In light of that experience, there does not appear to be
any advantage to requiring license applicants to agree to comply with
the regulations and standards. Therefore, if APHIS finalizes its
proposed certification requirement in Sec. 2.2, the text of Sec. 2.2
must contain a reference to the inspection provisions of Sec. 2.3.
Response: The proposed certification requirement was not presented
as an alternative means of ascertaining compliance or as a substitute
for inspections. The certification requirement will have no effect on
the provisions of Sec. 2.3, which requires applicants for an initial
license or license renewal to make their animals, premises, facilities,
vehicles, equipment, other premises, and records available for
inspection so that an APHIS inspector may ascertain the applicant's
compliance with the standards and regulations.
Comment: It is unclear how APHIS intends licensees to certify that
they are in compliance. A simple statement would be ineffective, and
any documented statement would entail the use of lengthy forms, which
impose a significant additional paperwork burden on licensees. Either
way, new regulations are no substitute for APHIS performing rigorous
inspections.
Response: As described in the proposed rule, an applicant for
license renewal would certify that he or she is, to the best of the
applicant's knowledge and belief, in compliance with the regulations
and standards and agrees to continue to comply with the regulations and
standards by signing the application form, which will contain a
statement to that effect. The certification will not necessitate the
use of lengthy forms or the imposition of significant additional
paperwork burdens. As mentioned above, APHIS does not intend for the
certification to take the place of inspections.
Comment: The proposed certification requirement should help
encourage compliance. However, to promote even greater compliance, the
certification should actually take the form of an affidavit, signed by
the applicant, stating that the applicant has read the Act, its
amendments, and the applicable regulations and standards in their
totality and understands their contents fully. Further, the applicant
should verify that he or she is in compliance with, and will continue
to comply with, the Act and its implementing regulations and standards.
The applicant should have to have paid any outstanding fines levied by
the USDA for violations of the Act. Additionally, the application
should include a warning stating that, under 18 U.S.C. 1001, anyone
making a false, fictitious, or fraudulent statement on the application
could be subject to a fine of $10,000 and 5 years in prison.
Response: We believe that an affidavit would accomplish no more
than the signed statement currently required. Similarly, because APHIS
already supplies each applicant a copy of the applicable regulations
and standards, we do not believe that supplying a copy of the Act and
its amendments would add to an applicant's knowledge of his or her
responsibilities, which are spelled out in the regulations and
standards. Because a person who fails to comply with the Act or the
regulations and standards is liable to having his or her license
suspended or revoked, it is in each licensee's best interests to know
what is required of him or her. We cannot, however, reasonably require
a person to swear that he or she has read the Act, its amendments, and
the applicable regulations and standards in their totality and
understands their contents fully. With regard to denying renewals to
persons with unpaid fines, we stated above that the regulations make no
provision for the denial of a license renewal as long as the licensee
filed an application for license renewal on time, submitted an annual
report as required by Sec. 2.7, and has paid the required fees. Other
avenues are utilized by APHIS to collect unpaid fines. Finally, the
commenter mentioned the penalties provided under 18 U.S.C. 1001. Those
penalties can be applied in matters within the jurisdiction of APHIS,
and we will post a warning to that effect on the license renewal
application form that we are developing.
Addition of APHIS Form Numbers
Three commenters mentioned our proposal to add APHIS form numbers
in front of the VS form numbers that appear in several places in the
regulations. Each of those commenters supported the proposed change.
Comments Outside the Scope of This Rulemaking
One commenter strongly supported the mandatory use of VS forms, but
added that a photograph of each individual dog or cat should be
required as part of the record. Similarly, another commenter suggested
that additional information be required, such as a second piece of
identification, a notarized verification of exempt status and a signed
statement, when applicable, verifying that a random-source animal was
held for the mandated period. However, the proposed rule did not
propose any changes to the type of information that dealers and
exhibitors must keep as part of the required animal identification
records. Rather, we proposed that specific forms be used to record and
maintain the information already required by the regulations in
Sec. 2.75(a)(1). Because of this, such comments are outside the scope
of the proposed rule and no changes have been made in this final rule
as a result of those comments. Any such changes would have to be
proposed as part of a separate proposed rule.
Other commenters submitted comments concerning individual
identification of animals, the definitions of Class A and B dealers,
requiring the use of other forms, individually notifying licensees of
proposed rules and other regulatory actions, and the development of new
forms. Again, such comments are outside the scope of the proposed rule
and, therefore, no changes have been made in this final rule as a
result of those comments. Any such changes would have to be proposed as
part of a separate proposed rule.
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.
Miscellaneous
As mentioned above, APHIS is currently developing an updated
version of VS Form 18-5, ``Record of Dogs and Cats on Hand.'' The
updated form includes new spaces for the recording of information
pertaining to the acquisition of the dogs or cats
[[Page 13895]] covered by the form. To reflect the inclusion of the new
spaces, VS Form 18-5 has been renamed ``Record of Acquisition and Dogs
and Cats on Hand.'' The two places in the regulations where the title
of VS Form 18-5 is mentioned--in Secs. 2.35(d)(1) and 2.75(a)(2)--have
been amended in this document to reflect the title change.
We have slightly adjusted the language of Sec. 2.2(b) for the
purpose of greater clarity.
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 the purpose of Executive
Order 12866 and, therefore, has not been reviewed by the Office of
Management and Budget.
We are amending the Animal Welfare regulations to require
applicants for license renewal to certify that they are in compliance
with the regulations before a renewal is issued. We are also amending
the regulations to require dealers and exhibitors to use certain forms
to make, keep, and maintain the animal identification records required
by the regulations. These changes will help ensure that applicants for
license renewal are in compliance with the regulations and that dealers
and exhibitors keep accurate and complete records. We do not expect
there to be an economic impact on any entities, large or small, that
will be affected by these changes in the regulations.
Because all licensees are currently required to operate in
compliance with the regulations, the requirement for license renewal
applicants to certify that they are in compliance with the regulations
will have no effect in terms of increased operational costs or burdens.
Similarly, requiring dealers and exhibitors to use VS Form 18-5 and VS
Form 18-6 to make, keep, and maintain the required animal
identification records will involve no new costs or burdens. Dealers
and exhibitors are already required to keep the records, so they will
not have to gather or record any new information in order to complete
the forms. The forms are provided by APHIS to dealers and exhibitors
free of charge, and we will not require any existing records to be
converted over to the new forms. Additionally, a dealer or exhibitor
who wished to do so could obtain a variance from the requirement to use
the forms if the computerized recordkeeping system has been determined
by the Administrator to meet the requirements of the regulations.
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 12778
This final rule has been reviewed under Executive Order 12778,
Civil Justice Reform. It is not intended to have retroactive effect.
This rule does 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
In accordance with the Paperwork Reduction Act of 1980 (44 U.S.C.
3501 et seq.), the information collection or recordkeeping requirements
included in this final rule have been submitted for approval to the
Office of Management and Budget.
List of Subjects in 9 CFR Part 2
Animal welfare, Pets, Reporting and recordkeeping requirements,
Research.
Accordingly, 9 CFR part 2 is amended as follows:
PART 2--REGULATIONS
1. The authority citation for part 2 continues to read as follows:
Authority: 7 U.S.C. 2131-2159; 7 CFR 2.17, 2.51, and 371.2(g).
2. Section 2.2 is revised to read as follows:
Sec. 2.2 Acknowledgment of regulations and standards.
(a) Application for initial license. APHIS will supply a copy of
the applicable regulations and standards to the applicant with each
request for a license application. The applicant shall acknowledge
receipt of the regulations and standards and agree to comply with them
by signing the application form before a license will be issued.
(b) Application for license renewal. APHIS will supply a copy of
the applicable regulations and standards to the applicant for license
renewal with each request for a license renewal. Before a license will
be renewed, the applicant for license renewal shall acknowledge receipt
of the regulations and standards and shall certify by signing the
application form that, to the best of the applicant's knowledge and
belief, he or she is in compliance with the regulations and standards
and agrees to continue to comply with the regulations and standards.
Sec. 2.5 [Amended]
3. In Sec. 2.5, paragraph (b), the first sentence is amended by
adding the words ``APHIS Form 7003/'' immediately before the words ``VS
Form 18-3''.
Sec. 2.35 [Amended]
4. In Sec. 2.35, paragraph (d)(1) is amended by adding the words
``APHIS Form 7001/'' immediately before the words ``VS Form 18-1''; by
adding the words ``Acquisition and'' before the words ``Dogs and Cats
on Hand''; and by adding the words ``APHIS Form 7005/'' immediately
before the words ``VS Form 18-5''.
5. In Sec. 2.35, paragraph (d)(2) is amended by adding the words
``APHIS Form 7001/'' immediately before the words ``VS Form 18-1'' and
by adding the words ``APHIS Form 7006/'' immediately before the words
``VS Form 18-6''.
Sec. 2.38 [Amended]
6. In Sec. 2.38, paragraph (h)(3) is amended by adding the words
``APHIS Form 7001/'' immediately before the words ``VS Form 18-1''.
7. In Sec. 2.38, paragraph (i)(3), the beginning of the second
sentence is amended by removing the words ``Veterinary Services'' and
adding the words ``APHIS Form 7009/VS'' in their place.
8. Section 2.75 is amended as follows:
a. Paragraph (a)(2) is revised to read as set forth below.
b. In paragraph (a)(3), the words ``APHIS Form 7001/'' are added
immediately before the words ``VS Form 18-1'', and the words
``paragraph (a)(1) of this section and'' are removed.
c. In paragraph (b)(2), the words ``APHIS Form 7019/'' are added
immediately before the words ``VS Form 18-19'', and the words ``APHIS
Form 7020/'' are added immediately before the words ``VS Form 18-20''.
Sec. 2.75 Records: Dealers and exhibitors.
(a) * * *
(2) Each dealer and exhibitor shall use Record of Acquisition and
Dogs and Cats on Hand (APHIS Form 7005/VS Form 18-5) and Record of
Disposition of Dogs and Cats (APHIS Form 7006/VS Form 18-6) to make,
keep, and maintain the information required by paragraph
[[Page 13896]] (a)(1) of this section: Provided, that if a dealer or
exhibitor who uses a computerized recordkeeping system believes that
APHIS Form 7005/VS Form 18-5 and APHIS Form 7006/VS Form 18-6 are
unsuitable for him or her to make, keep, and maintain the information
required by paragraph (a)(1) of this section, the dealer or exhibitor
may request a variance from the requirement to use APHIS Form 7005/VS
Form 18-5 and APHIS Form 7006/VS Form 18-6.
(i) The request for a variance must consist of a written statement
describing why APHIS Form 7005/VS Form 18-5 and APHIS Form 7006/VS Form
18-6 are unsuitable for the dealer or exhibitor to make, keep, and
maintain the information required by paragraph (a)(1) of this section,
and a description of the computerized recordkeeping system the person
would use in lieu of APHIS Form 7005/VS Form 18-5 and APHIS Form 7006/
VS Form 18-6 to make, keep, and maintain the information required by
paragraph (a)(1) of this section. APHIS will advise the person as to
the disposition of his or her request for a variance from the
requirement to use APHIS Form 7005/VS Form 18-5 and APHIS Form 7006/VS
Form 18-6.
(ii) A dealer or exhibitor whose request for a variance has been
denied may request a hearing in accordance with the applicable rules of
practice for the purpose of showing why the request for a variance
should not be denied. The denial of the variance shall remain in effect
until the final legal decision has been rendered.
* * * * *
Sec. 2.78 [Amended]
9. In Sec. 2.78, paragraph (d) is amended by adding the words
``APHIS Form 7001/'' immediately before the words ``VS Form 18-1''.
Sec. 2.102 [Amended]
10. In Sec. 2.102, paragraph (a)(3), the beginning of the second
sentence is amended by removing the words ``Veterinary Services'' and
adding the words ``APHIS Form 7009/VS'' in their place.
Done in Washington, DC, this 9th day of March 1995.
Terry L. Medley,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 95-6369 Filed 3-14-95; 8:45 am]
BILLING CODE 3410-34-P
