[Federal Register Volume 63, Number 42 (Wednesday, March 4, 1998)]
[Rules and Regulations]
[Pages 10493-10499]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-5538]
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Parts 2 and 3
[Docket No. 95-078-3]
RIN 0579-AA74
Humane Treatment of Dogs and Cats; Temperature Requirements
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
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SUMMARY: We are amending the regulations for the humane treatment of
animals under the Animal Welfare Act by revising certain requirements
pertaining to climatic conditions. We are clarifying the current
temperature requirements for dogs and cats in indoor, sheltered, and
mobile and traveling housing facilities, in primary conveyances used
for transportation, and in the animal holding areas of terminal
facilities. We are also requiring that any animal covered by the Animal
Welfare Act shall never be exposed to combinations of temperature,
humidity, and time that would adversely affect the animal's health and
well-being, taking into consideration the animal's health status, age,
breed, or any other pertinent factor. When climatic conditions present
a threat to an animal's health or well-being, appropriate measures must
be taken to alleviate the impact of those conditions. This action will
help ensure that animals protected by the Animal Welfare Act are
maintained in climatic conditions conducive to the animals' health and
well-being.
EFFECTIVE DATE: April 3, 1998.
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, or e-mail:
snsmith@aphis.usda.gov.
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 has delegated the responsibility for enforcing the AWA to the
U.S. Department of Agriculture's (USDA) Animal and Plant Health
Inspection Service (APHIS). Regulations established under the AWA are
contained in 9 CFR parts 1, 2, and 3. Parts 1 and 2 contain definitions
and general requirements, and part 3 contains specific standards for
the care of animals. Subpart A of 9 CFR part 3 contains requirements
specifically pertaining to dogs and cats.
On July 2, 1996, we published in the Federal Register (61 FR 34386-
34389, Docket No. 95-078-1) a proposal to amend the regulations in
subpart A of 9 CFR part 3 by removing the option for facilities to use
tethering as a means of primary enclosure for dogs and revising the
temperature requirements for indoor, sheltered, and mobile and
traveling housing facilities, for primary conveyances used in
transportation, and for the animal holding areas of terminal facilities
to require that the ambient temperature must never exceed 90 deg.F
(32.2 deg.C) when dogs or cats are present. This proposal was based,
in part, on the recommendations and opinions expressed at three public
meetings our agency hosted in 1996 to gather information on the
regulations that apply to the care of dogs and cats in the commercial
pet trade. In addition, our experience in AWA enforcement led us to
conclude that continuous confinement of dogs by tethers is inhumane and
that a maximum temperature restriction was needed for the care of dogs
and cats in certain circumstances because there have been incidents in
which dogs or cats exposed to extremely high temperatures during air
travel died or were seriously harmed.
We solicited comments concerning our proposal for 60 days ending
September 3, 1996. We received 54 comments by that date. After
reviewing the comments, we decided to publish a final rule regarding
tethering and reconsider the temperature requirements. The final rule
regarding tethering (62 FR 43272-43275, Docket No. 95-078-2) was
published August 13, 1997. Therefore, this document concerns only the
part of the proposal concerning temperature requirements for dogs and
cats.
Forty-two of the 54 comments received on the proposed rule
addressed the proposed temperature requirements for dogs and cats.
These comments were from dog dealers; associations representing the
pets, transportation, animal feed, and biomedical research industries;
pharmaceutical companies; humane organizations; a Federal government
agency; a veterinarian; and other interested individuals. A few of the
comments generally supported the proposal; the majority generally
opposed it. Comments on the proposed rule itself are discussed below;
comments on the potential economic effects of the proposed rule and on
the Initial Regulatory Flexibility Analysis that was included in the
proposed rule are discussed in the section of this document that
pertains to Executive Order 12866 and the Regulatory Flexibility Act.
The issue raised by the most number of commenters was that the
proposal appeared to be unfounded and that any proposed change to the
AWA temperature requirements should be based on hard data supporting
the need for the proposed change. This concern was expressed both by
commenters who were opposed and commenters who were unopposed to the
proposed rule. Several commenters mentioned the need for APHIS to
consider two sources of relevant information: the recommendations
regarding temperature requirements made at the three public meetings
hosted by our agency in 1996 and from a study commissioned by our
agency and the Federal Aviation Administration (FAA) regarding the
[[Page 10494]]
climatic conditions in cargo holds of various aircraft commonly used to
transport animals.
One commenter disagreed with the suggestion that we had
insufficient data upon which to base the proposed rule. The commenter
stated that Congress has been concerned about the safety of animals
being transported by the airlines since 1976 and that, at one of the
APHIS public meetings, several humane organizations reported receiving
frequent complaints from the public regarding animal deaths during air
transit. Conversely, another commenter stated that, while a few
participants at the public meetings suggested that there have been
numerous such incidents of animal deaths, no evidence was produced, and
many participants did not agree with these assertions. One commenter
requested documented evidence of such incidents, and we have provided
information directly to the commenter regarding the cases APHIS has had
against the major airlines in recent years.
We are not aware of any scientific research that has been done that
shows that the health and well-being of dogs and cats is seriously
compromised at temperatures exceeding 90 deg.F. In fact, we believe
that such a finding is unlikely because of the varying tolerances dogs
and cats have to temperature extremes at different ages, the wide
variety of dog breeds that have been developed over centuries for
different purposes, including acclimation to different climates, and a
host of other variables. As stated in the proposed rule, our belief
that temperatures exceeding 90 deg.F can be harmful to dogs and cats
was based on our experience in AWA enforcement and on the information
gathered from the three public meetings. (We have not received the
final report of the study on cargo holds commissioned by our agency and
the FAA.) Despite a lack of hard data regarding a specific safe maximum
temperature, our experience in regulating the care of dogs and cats and
available information led us to believe that the current AWA
temperature requirements were not adequate to ensure the well-being of
dogs and cats in the commercial pet trade and that a maximum
temperature limit was needed.
The majority of the commenters were opposed to the establishment of
a 90- deg.F limit for the care of dogs and cats in indoor and sheltered
housing facilities and in primary conveyances used for transportation.
Their numerous reasons included the following: That the proposed 90-
deg.F limit would be unnecessarily restrictive because animals can
adjust to temperature changes; that there is a lack of evidence that
exposure of healthy adult dogs to temperatures in excess of 90 deg.F
for limited periods of time is inhumane if the dogs are provided
adequate ventilation and are shielded from the sun; and that the 90-
deg.F limit was too high in that it would be insufficient for
safeguarding the health and lives of dogs and cats in the circumstances
covered in the proposal. Two commenters stated that the limit should be
85 deg.F, and one commenter thought the limit should be 80 deg.F.
Several commenters stated that, by itself, temperature is a poor
indicator of comfort or stress and that other factors, such as
humidity, airflow, length of exposure, and breed, hair coat, age,
weight, health status, and acclimation of the animal, need to be
considered in evaluating whether an animal is being exposed to
significantly stressful conditions.
A couple of commenters stated that care and treatment issues such
as appropriate temperature levels cannot be effectively regulated by a
single standard and should be left up to responsible veterinary
evaluation and discretion. A few dealers stated that the proposed rule
was unnecessary because people in the pet profession know how to care
for animals and have a financial stake in ensuring their well-being.
Several commenters stated that the current regulations pertaining to
temperature requirements are sufficient for ensuring the health and
well-being of dogs and cats, if the regulations are properly enforced.
One commenter indicated that APHIS should not change the regulations
pertaining to dog and cat dealers and instead should concentrate on
enforcing temperature requirements for dogs and cats in transit by
airlines.
Several commenters took issue with the lack of flexibility in the
proposed rule in that, as written, temperatures must ``never'' rise
above 90 deg.F when dogs or cats are present. The commenters stated
that a power failure occurring on a hot day could cause the temperature
to rise above that level even in facilities with air conditioning, and
then those facilities would be out of compliance with the proposed
requirement. In addition, several commenters stated that this lack of
flexibility would make it practically impossible at certain times of
the year in most U.S. airport cities for pets to be shipped on aircraft
because it is not feasible to assume that animals in air transit would
``never'' be exposed to temperatures exceeding 90 deg.F. Many
commenters expressed concern that the lack of flexibility in the
proposed rule could cause the airlines to establish an embargo on
shipping animals. One commenter suggested that, if an upper temperature
limit is to be established, it would be better to give a time limit for
the animals to be exposed to that temperature rather than mandate that
the temperature shall ``never'' exceed that level when dogs or cats are
present.
We have carefully considered all of these comments and have decided
that many of the concerns expressed have merit. We agree with the
commenters that factors such as humidity and length of exposure, and
age, breed, health status, and acclimation of the animal must all be
considered in establishing a safe temperature range for a particular
animal. Moreover, we agree that a prohibition on allowing dogs and cats
in the circumstances covered by the proposal to be exposed to
temperatures exceeding 90 deg.F for even a minimal amount of time
under extenuating circumstances is neither feasible nor necessary;
while many dogs or cats in the circumstances covered by the proposal
might suffer at temperatures exceeding 90 deg.F for an extended period
of time, few dogs or cats would not be able to withstand such
temperatures for a limited period.
We have decided that setting a maximum temperature limit--whether
it be 90 deg.F or any other temperature--for the care of dogs and cats
in the circumstances described in the proposed rule would not achieve
our goals for establishing a sound temperature policy for these animals
and would place an unnecessary burden on the regulated industry.
Moreover, establishing a single maximum temperature that could be used
to ensure the health and well-being of all dogs and cats covered by the
AWA in indoor, sheltered, and mobile or traveling housing facilities,
in primary conveyances used for transportation, and in the animal
holding areas of terminal facilities, and still be realistic for the
industry to achieve, would be very difficult because too many variables
are involved.
Instead, after carefully reviewing the comments received and
further analyzing the current temperature requirements for dogs and
cats in 9 CFR parts 2 and 3, we have decided that we basically agree
with the commenters who stated that the current regulations are
sufficient to protect the health and well-being of dogs and cats in the
commercial pet trade. The incidents mentioned in the proposed rule in
which animals died or were seriously harmed after having been exposed
to extremely high temperatures during air
[[Page 10495]]
travel were the result of human error--not a lack of adequate governing
regulations. All such cases of animal neglect have been successfully
prosecuted based on the current regulations. However, we agree with
opinions expressed at the public meetings on the care of dogs and cats
in the commercial pet trade that the regulations pertaining to
temperature requirements could and should be clarified and improved.
The current regulations for the care of dogs and cats in indoor,
sheltered, and mobile or traveling housing facilities, in primary
conveyances used for transportation, and in the animal holding areas of
terminal facilities state that, among other things, the ambient
temperature must not fall below 45 deg.F or rise above 85 deg.F for
more than 4 consecutive hours when dogs or cats are present (9 CFR
3.2(a), 3.3(a), 3.5(a), and 3.15(e)). (For primary conveyances used for
transportation, this requirement applies only during surface
transportation.) The current regulations regarding the handling of dogs
or cats to or from a primary conveyance or a terminal facility state
that, among other things, the dogs or cats must not be exposed to an
ambient temperature above 85 deg.F (29.5 deg.C) for a period of more
than 45 minutes. We are concerned that some regulated parties have
assumed that compliance with these temperature requirements is all that
is required to ensure compliance with the AWA temperature requirements
for dogs and cats in the circumstances just described. However, 9 CFR
parts 2 and 3 include several other temperature and handling
requirements that are also applicable to these animals.
Additional temperature requirements in 9 CFR parts 2 and 3
pertaining to dogs and cats in the circumstances covered by the
proposed rule state that ``dogs and cats must be sufficiently heated
and cooled when necessary to protect [them] from temperature extremes
and to provide for their health and well-being'' (Secs. 3.2(a), 3.3(a),
and 3.5(a)), ``[d]uring air transportation, dogs and cats must be held
in cargo areas that are heated or cooled as necessary to maintain an
ambient temperature that ensures the health and well-being of the dogs
and cats'' (Sec. 3.15(d)), ``[d]uring surface transportation, auxiliary
ventilation, such as fans, blowers or air conditioning, must be used in
any animal cargo space containing live dogs or cats when the ambient
temperature within the animal cargo space reaches 85 deg.F (29.5
deg.C)'' (Sec. 3.15(e)), and ``handling of all animals shall be done .
. . in a manner that does not cause trauma, overheating, excessive
cooling, behavioral stress, physical harm, or unnecessary discomfort''
(Secs. 2.38(f)(1) and 2.131(a)(1)).
The regulations that state that the ambient temperature must never
rise above 85 deg.F for more than 4 consecutive hours (commonly
referred to as the ``4-hour rule''), or more than 45 minutes in the
case of dogs or cats being transported to or from a primary conveyance
or terminal facility, do not override these additional temperature
requirements. Consequently, a person responsible for the care of an
animal that died from exposure to high temperatures might have been in
compliance with the ``4-hour rule'' but would have been in violation of
the other temperature and handling requirements in 9 CFR parts 2 and 3
by not ensuring that the animals were cooled as necessary to provide
for their well-being. In other words, the AWA regulations require that
an individual responsible for a dog or cat's care must take measures to
ensure the animal's well-being regardless of whether the temperature is
85 deg.F or some temperature in excess of 85 deg.F. While some dogs
and cats can easily withstand temperatures exceeding 85 deg.F for
relatively long periods of time, other dogs and cats could be in danger
at such temperatures for a relatively short period, especially with
high humidity levels. Therefore, in this final rule, we are clarifying
that the ``4-hour rule'' does not preclude the need to comply with the
other temperature and handling requirements in 9 CFR parts 2 and 3. We
are adding to Secs. 3.2(a), 3.3(a), 3.5(a), 3.15(e), 3.18(d), and
3.19(a)(1) and (3) the following sentence: ``The preceding requirements
are in addition to, not in place of, all other requirements pertaining
to climatic conditions in parts 2 and 3 of this chapter.''
In addition, because we agree with the many commenters who stated
that humidity is an important factor in determining an animal's ability
to withstand heat, we are also adding a new regulation regarding
humidity levels that will apply to all animals covered by the AWA and
making some minor changes to part 3 regarding humidity as it affects
dogs and cats in the commercial pet trade. It is generally recognized
that high temperatures with low humidity are less dangerous and more
comfortable for humans and animals than high temperatures and high
humidity. As stated above, individual animals can withstand high
temperatures or high temperatures combined with high humidity for
different lengths of time. Therefore, we are adding to the handling
regulations in Sec. 2.131 new requirements that pertain to climatic
conditions. The new regulations specify that, when climatic conditions,
such as extreme temperatures and humidity levels, present a threat to
an animal's health or well-being, appropriate measures must be taken to
alleviate the impact of those conditions. Moreover, at no time may an
animal be exposed to a combination of temperature, humidity, and time
that would present a threat to the animal's health and well-being,
taking into consideration such factors as the animal's health status,
age, breed, and temperature acclimation.
We believe these changes to the regulations are more realistic for
the commercial pet and transportation industries to achieve than the
proposed 90- deg.F limit and actually better convey our goals for a
sound temperature policy for dogs, cats, and other animals covered by
the AWA.
Other Comments on the Proposed Rule
Several commenters stated that applying the proposed requirement to
indoor and sheltered primary enclosures but not to outdoor primary
enclosures is contradictory and discriminatory. One commenter agreed
that the proposed temperature requirement should not apply to outdoor
facilities but stated that the proposed rule should also not apply to
animals in sheltered facilities with unobstructed access to an outdoor
run. A couple of commenters expressed concern that the proposal implied
that the USDA endorses outdoor facilities for dogs and cats over indoor
facilities because one of the alternatives listed in the proposal for
dog and cat dealers to gain compliance with the proposed requirement
was for them to establish outdoor shelters.
We did not mean to imply that we believe outdoor primary facilities
for dogs and cats are preferable to indoor facilities. In regard to
preventing stress from high temperatures, we continue to believe that
outdoor shelters and runs provide dogs and cats with access to fresh
air, air movement (breezes and winds), shade (required by the
regulations), and other climatic and environmental factors that help to
alleviate stress from high temperatures. Therefore, we believe that
temperatures in excess of 85 deg.F are more comfortable outdoors than
indoors, if auxiliary ventilation is not provided indoors. We do not
recommend the use of outdoor facilities over indoor facilities for dogs
and cats.
Two commenters said that USDA should expand the proposed rule to
deal with minimum temperatures as well as
[[Page 10496]]
maximum temperatures and should disallow animals in the circumstances
covered by the proposed rule to ever be exposed to temperatures below
50 deg.F. One commenter further stated that infant animals in the
circumstances covered by the proposed rule should never be subjected to
temperatures less than 65 deg.F.
The current temperature requirements that apply to indoor housing
facilities state, among other things, that ``[w]hen dogs or cats are
present, the ambient temperature in the facility must not fall below 50
deg.F (10 deg.C) for dogs and cats not acclimated to lower
temperatures, for those breeds that cannot tolerate lower temperatures
without stress or discomfort (such as short-haired breeds), and for
sick, aged, young, or infirm dogs and cats, except as approved by the
attending veterinarian. Dry bedding, solid resting boards, or other
methods of conserving body heat must be provided when temperatures are
below 50 deg.F (10 deg.C). The ambient temperature must not fall
below 45 deg.F (7.2 deg.C) for more than 4 consecutive hours when
dogs or cats are present * * *.'' (Sec. 3.2(a)). These temperature
requirements are the same as those for sheltered and mobile or
traveling housing facilities. The temperature requirements for primary
conveyances and terminal facilities state, among other things, that the
ambient temperature may not fall below 45 deg.F (7.2 deg.C) for a
period of more than 4 hours when dogs or cats are present. The
temperature requirements regarding transporting dogs or cats to or from
terminal facilities and primary conveyances state, among other things,
that the ambient temperature must not fall below 45 deg.F (7.2 deg.C)
for a period of more than 45 minutes, unless the animal is accompanied
by a certificate of acclimation to lower temperatures as provided in
Sec. 3.13(e).
The sentence described previously that is being added through this
final rule to several sections in 9 CFR part 3 to clarify that the ``4-
hour rule'' does not preempt the other temperature and handling
requirements also pertains to minimum temperatures. We believe that the
current temperature requirements regarding specific minimum temperature
levels, in conjunction with the current AWA regulations that pertain to
temperature in general and the changes resulting from this final rule,
are sufficient to protect dogs and cats in the circumstances covered by
the proposal from adverse exposure to cold temperatures.
One commenter questioned whether there is evidence that airlines
routinely have monitored or will monitor the temperatures in cargo
holds and how APHIS would monitor the temperature of cargo holds during
flight. Another commenter stated that airlines should be required to
ascertain current temperatures at all transfer points and destinations
for animals being transported and not permit shipment if the
temperatures are outside the requirements.
For the airlines or any other regulated entity to ensure compliance
with the AWA temperature requirements for dogs and cats, monitoring the
animals they are transporting is more important than taking temperature
readings. As such, the current requirements pertaining to air
transportation of dogs and cats state, among other things, that
``[d]uring air transportation of dogs or cats, it is the responsibility
of the carrier to observe the dogs or cats as frequently as
circumstances allow, but not less than once every 4 hours if the animal
cargo area is accessible during flight. If the animal cargo area is not
accessible during flight, the carrier must observe the dogs or cats
whenever they are loaded and unloaded and whenever the animal cargo
space is otherwise accessible to make sure they have sufficient air for
normal breathing, that the animal cargo area meets the heating and
cooling requirements of Sec. 3.15(d), and that all other applicable
standards of this subpart are being complied with * * *.'' (9 CFR
3.17(b)).
We believe that these current requirements, in conjunction with the
AWA regulations discussed previously that pertain to temperature in
general, as well as the new requirement being added to 9 CFR part 2
through this final rule, are sufficient to ensure the health and well-
being of animals during air transport. In regard to requiring the
airlines to ascertain temperatures at transfer points and refusing to
transport animals if the temperatures are outside the appropriate
range, the airlines can and do refuse to ship animals if there is any
question as to whether an individual animal could be transported
safely. However, we do not agree that obtaining temperatures at
transfer points prior to departure is necessary. The outside
temperature at an airport is irrelevant if efforts are made to keep the
animals sufficiently heated or cooled to ensure their well-being while
in the cargo hold of the airplane on the tarmac and while the animals
are being transported to or from the airplane or terminal facility.
One commenter stated in regard to Sec. 3.15(d) that, ``if it is
required that the passenger cabin of an airplane be pressurized at
8,000 feet and less, then the cargo hold in which animals are
transported must also be pressurized.'' We have made no change in
response to this comment because aircraft cargo holds that contain
animals are pressurized the same as passenger cabins.
One commenter suggested that the proposed rule could benefit from a
definition of the term ``terminal facilities'' in 9 CFR, part 1. We
believe that this term is self-explanatory, and, consequently, have
made no change to the regulations in response to this comment.
One commenter stated that USDA should mandate that airlines (1)
advise passengers who have lost an animal on a flight that they should
file a complaint with USDA, and (2) advise USDA themselves of such
incidents. The commenter maintained that the data obtained from such
reporting would better enable USDA to learn precisely which aircraft
and which cargo holds present the greatest risks to animals. Another
commenter further stated that carriers and intermediate handlers should
be required to notify APHIS within 24 hours of the death of an animal
being transported and should be required to maintain an annual report
on the transportation of companion animals to include (1) the total
number of animals shipped, and (2) the total number of injuries,
fatalities, and losses. The commenter had additional recommendations
regarding establishing requirements under the AWA intended to ensure
the safety of animals in air transit.
We believe that the statistics the commenters recommended we obtain
could be informative but question the true value of having such data.
Specifically, we question whether having it would necessarily improve
our enforcement of the AWA and whether any benefit gained from such
data would be worth the paperwork burden that would be placed on the
regulated industry and the information collection burden that would be
placed upon our agency. However, we are considering these suggestions
as well as the other recommendations made by the commenter pertaining
to air transport of animals. In addition, we are engaged in a public
information campaign regarding the APHIS Animal Care program, and one
of the areas of emphasis is USDA's role in regulating the air transport
of animals. We have developed a brochure, ``Traveling With Your Pet,''
that is being distributed to, among others, travel agencies,
veterinarians, and any member of the public who requests it. Animal
Care has also established a home page on the
[[Page 10497]]
World Wide Web that includes information on safe pet travel.
A few commenters indicated that we should extend the proposed
regulation to cover dogs and cats housed by humane societies, pounds,
and individual pet owners. 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 by humane societies,
pounds, or individual pet owners, unless they are acting as dealers or
exhibitors.
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. 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 expressed concerns about the format of the three
public meetings APHIS held in 1996 to gather information on the
regulations pertaining to the care of dogs and cats in the commercial
pet trade. Specifically, the commenter stated, ``If APHIS is going to
use the workshop format to justify specific rulemaking, rather than
merely as a mechanism for gather[ing] opinions, it must develop a
mechanism to assure that reasonable standards of accountability are
imposed on workshop participants, so that workshop input can be
properly evaluated and not be overly influenced by aggressive and
excessively vocal interest groups.'' The commenter was particularly
concerned that participants who claimed there have been numerous
incidents of injury and death of dogs and cats during air transport did
not produce supporting evidence, ``and it was clear that the majority
of participants in the air transport session did not concur with these
allegations.''
Our agency held the three public meetings in 1996 to gather
information from interested and affected parties. We believe the
workshop format was useful for eliciting information. We have
considered and continue to consider the wide range of opinions
expressed at those meetings, and further rulemaking may result. We did
not use the input obtained from the public meetings to ``justify'' our
proposed rule; as stated previously, the proposed rule was based on
information gathered at the meetings as well as on our own experience
in AWA enforcement.
Therefore, based on the rationale set forth in the proposed rule
and in this document, we are adopting the provisions discussed in this
document as a final rule.
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.
This document makes final part of a proposed rule published in the
Federal Register on July 2, 1996 (61 FR 34386-34389, Docket No. 95-078-
1). The proposed rule would have amended the regulations under the
Animal Welfare Act by removing the option for facilities to use
tethering as a means of primary enclosure for dogs and revising the
temperature requirements for indoor, sheltered, and mobile and
traveling housing facilities, for primary conveyances used in
transportation, and for the animal holding areas of terminal facilities
to require that the ambient temperature must never exceed 90 deg.F
(32.2 deg.C) when dogs or cats are present. As part of the proposed
rule document, we performed an Initial Regulatory Flexibility Analysis
in which we invited comments concerning potential economic effects of
the proposed rule.
This document pertains only to the part of the proposed rule
concerning the temperature requirements. We received several comments
from members of the potentially affected industries concerning the
likely economic effects of the proposed temperature requirements and
one comment from the U.S. Small Business Administration (SBA) that
stated the Initial Regulatory Flexibility Analysis fell short of what
is required by the Regulatory Flexibility Act. The SBA further stated
that APHIS should better indicate the scope of the problem before
issuing a final rule and consider other alternatives than just the rule
as proposed or no change to the regulations.
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 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.
Animal dealers commented on both the potential direct and indirect
economic effects of the proposed rule on their businesses. Several
commenters stated that the estimated cost of compliance in the Initial
Regulatory Flexibility Analysis was too low and that implementing the
proposal would be much more burdensome and costly than the analysis
showed. Two research firms commented that, in most parts of the United
States, air conditioning is the only means of ensuring that the
temperature in an enclosed building never rises above 90 deg.F. One
firm then estimated that installation of air conditioning at the firm's
research facility would cost $350,000, additional annual utility costs
would be $37,340, and an additional $400,000 would be required for a
generator to prevent cessation of air conditioning during a power
outage. The other research firm stated that the cost of installing and
operating air conditioning ``would jeopardize our ability to operate
profitably and may result in a substantial increase in cost to our
pharmaceutical clients.'' One dealer indicated that the estimated cost
for additional electricity needed for air conditioning was too low, and
another dealer questioned whether the cost of a standby generating
system is within an affordable price range for a small kennel.
Some animal dealers expressed concern that the airlines might stop
transporting animals instead of trying to comply with additional USDA
animal care and handling requirements. The commenters were especially
concerned that many small dealers cannot afford the costs of
transporting their animals by surface transportation. They further
stated that, if the airlines end air transport of animals, then small
dealers would be put out of business and the wholesale pet industry
would either become obsolete or the domain of a few large dealers. One
commenter stated
[[Page 10498]]
that small dealers provide diversity in the commercial pet business.
A commenter representing the airline industry expressed similar
concerns. The commenter stated that, if the proposed rule was
finalized, it would ``have a destructive and costly effect on
individual pet owners, owners of assistance dogs, the pet trade,
breeders of dogs and cats, and the dog and cat show competition
industry'' because ``airlines simply will not be able to carry pet
animals from a large number of airport cities for large portions of
each year.''
We recognize and agree with many of the concerns just described.
However, we believe that all of these concerns are relevant to the
proposed rule only. The final rule should not cause economic hardship
for the regulated industries because it serves to clarify the current
regulations and adds no new requirements that would add a financial
burden. The final rule clarifies that the standards in subpart A of 9
CFR part 3 that state that the ambient temperature must not fall below
45 deg.F or rise above 85 deg.F for more than 4 consecutive hours
when dogs or cats are present do not override the other requirements
pertaining to climatic conditions and handling in 9 CFR parts 2 and 3.
In addition, the final rule adds a new requirement to 9 CFR part 2 that
applies to climatic conditions for all animals covered by the AWA.
Under the new rule, when climatic conditions, such as extreme
temperatures and humidity levels, present a threat to an animal's
health or well-being, appropriate measures must be taken to alleviate
the impact of those conditions. Moreover, at no time may an animal be
exposed to a combination of temperature, humidity, and time that would
present a threat to the animal's health and well-being, taking into
consideration such factors as the animal's health status, age, breed,
and temperature acclimation. Because the AWA regulations have always
required regulated parties to take appropriate measures to ensure the
health and well-being of their animals, these requirements basically
serve to clarify existing requirements.
In regard to the comment letter from the SBA, APHIS Animal Care
officials agreed that more specific information was needed regarding
the scope of the problem, so APHIS headquarters surveyed the Animal
Care field staff on the issue of temperature requirements for dogs and
cats. The respondents included 38 animal care inspectors and 1
supervisory animal care specialist. The survey responses indicate that,
in the facilities inspected by the respondents in the past 5 years,
2,516 dogs and cats have been severely affected, and 108 dogs and cats
have died, as the result of exposure to excessive temperatures. In
regard to the SBA's comment that other viable alternatives than just
the rule as proposed or no change to the regulations need to be
considered, APHIS is taking an entirely different approach to the
proposal in the final rule.
There are no reporting or recordkeeping requirements associated
with this rule.
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
9 CFR Part 2
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 2 and 3 are 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 2.22, 2.80, and 371.2(g).
2. In Sec. 2.131, a new paragraph (d) is added to read as follows:
Sec. 2.131 Handling of animals.
* * * * *
(d) When climatic conditions present a threat to an animal's health
or well-being, appropriate measures must be taken to alleviate the
impact of those conditions. An animal may never be subjected to any
combination of temperature, humidity, and time that is detrimental to
the animal's health or well-being, taking into consideration such
factors as the animal's age, species, breed, overall health status, and
acclimation.
PART 3--STANDARDS
3. The authority citation for part 3 is revised to read as follows:
Authority: 7 U.S.C. 2131-2159; 7 CFR 2.22, 2.80, and 371.2(d).
4. In Sec. 3.2, paragraph (a) is amended as follows:
a. In the first sentence, by adding the words ``or humidity'' after
the word ``temperature''.
b. At the end of the paragraph, by adding a new sentence to read as
set forth below.
Sec. 3.2 Indoor housing facilities.
(a) * * * The preceding requirements are in addition to, not in
place of, all other requirements pertaining to climatic conditions in
parts 2 and 3 of this chapter.
* * * * *
5. In Sec. 3.3, paragraph (a) is amended as follows:
a. In the first sentence, by adding the words ``or humidity'' after
the word ``temperature''.
b. At the end of the paragraph, by adding a new sentence to read as
set forth below.
Sec. 3.3 Sheltered housing facilities.
(a) * * * The preceding requirements are in addition to, not in
place of, all other requirements pertaining to climatic conditions in
parts 2 and 3 of this chapter.
* * * * *
6. In Sec. 3.5, paragraph (a) is amended as follows:
a. In the first sentence, by adding the words ``or humidity'' after
the word ``temperature''.
b. At the end of the paragraph, by adding a new sentence to read as
set forth below.
Sec. 3.5 Mobile or traveling housing facilities.
(a) * * * The preceding requirements are in addition to, not in
place of, all other requirements pertaining to climatic conditions in
parts 2 and 3 of this chapter.
* * * * *
7. Section 3.15 is amended as follows:
a. In paragraph (d), the first sentence, by adding the words ``and
humidity'' after the word ``temperature''.
[[Page 10499]]
b. In paragraph (e), at the end of the paragraph by adding a new
sentence to read as set forth below.
Sec. 3.15 Primary conveyances (motor vehicle, rail, air, and marine).
* * * * *
(e) * * * The preceding requirements are in addition to, not in
place of, all other requirements pertaining to climatic conditions in
parts 2 and 3 of this chapter.
* * * * *
6. In Sec. 3.18, paragraph (d) is amended by adding at the end of
the paragraph a new sentence to read as follows:
Sec. 3.18 Terminal facilities.
* * * * *
(d) * * * The preceding requirements are in addition to, not in
place of, all other requirements pertaining to climatic conditions in
parts 2 and 3 of this chapter.
* * * * *
7. In Sec. 3.19, paragraphs (a)(1) and (3) are amended by adding at
the end of both paragraphs a new sentence to read as follows:
Sec. 3.19 Handling.
(a) * * *
(1) * * * The preceding requirements are in addition to, not in
place of, all other requirements pertaining to climatic conditions in
parts 2 and 3 of this chapter.
* * * * *
(3) * * * The preceding requirements are in addition to, not in
place of, all other requirements pertaining to climatic conditions in
parts 2 and 3 of this chapter.
* * * * *
Done in Washington, DC, this 26th day of February 1998.
Terry L. Medley,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 98-5538 Filed 3-3-98; 8:45 am]
BILLING CODE 3410-34-P
