[Federal Register Volume 64, Number 75 (Tuesday, April 20, 1999)]
[Rules and Regulations]
[Pages 19251-19254]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-9847]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 64, No. 75 / Tuesday, April 20, 1999 / Rules
and Regulations
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Part 3
[Docket No. 98-044-2]
Animal Welfare; Solid Resting Surfaces for Dogs and Cats
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
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SUMMARY: We are adopting as a final rule, without change, an interim
rule that amended 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. The interim rule
became effective on July 14, 1998. The requirement we removed was
erroneously added in a final rule that amended the requirements for
primary enclosures for dogs and cats to prohibit bare wire flooring in
such enclosures. As stated in the subsequent interim rule, 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 finalizes the removal of an unnecessary
and unintended requirement.
EFFECTIVE DATE: This final rule, which makes no changes to the July 14,
1998, interim rule, is effective May 20, 1999.
FOR FURTHER INFORMATION CONTACT: Mr. Stephen Smith, Staff Animal Health
Technician, Animal Care, APHIS, 4700 River Road Unit 84, Riverdale, MD
20737-1234, (301) 734-4972.
SUPPLEMENTARY INFORMATION:
Background
In an interim rule published in the Federal Register on July 13,
1998 (63 FR 37480-37482, Docket No. 98-044-1), and effective July 14,
1998, we amended the Animal Welfare Act (AWA) regulations in 9 CFR part
3 (referred to below as the regulations) pertaining to primary
enclosures for dogs and cats by removing the requirement that primary
enclosures with suspended flooring made of mesh or slatted construction
include a solid resting surface. This requirement was erroneously added
in a final rule published on January 21, 1998 (63 FR 3017-3023, Docket
No. 95-100-2, effective February 20, 1998). That final rule amended the
requirements for primary enclosures for dogs and cats to prohibit
flooring made of wire (i.e., uncoated metal strands \1/8\ of an inch or
less in diameter). The January 21 final rule also added a requirement
that the suspended floor of any primary enclosure for a dog or cat must
be strong enough so that the floor does not sag or bend.
Prior to the effective date of the January 21 final rule, primary
enclosures for dogs and cats with suspended flooring made of wire were
required to include a solid resting surface, and primary enclosures
with suspended flooring of mesh or slatted construction using materials
other than wire were not. As a result of an error in the final rule,
all primary enclosures for dogs and cats with suspended flooring of
mesh or slatted construction were required to include a solid resting
surface. One of the purposes of requiring a solid resting surface in
enclosures with suspended flooring made of wire was to provide a
relatively level resting surface for the animals because suspended wire
floors tend to sag and bend. We did not believe that it was necessary
for primary enclosures of mesh or slatted construction not made of wire
to include a solid resting surface. Therefore, we published the interim
rule to remove the requirement that primary enclosures with suspended
flooring of mesh or slatted construction include a solid resting
surface.
Comments on the interim rule were required to be received on or
before September 11, 1998. We received 17 comments by that date. They
were from dog breeders, members of the public, and animal welfare
organizations. The comments were split evenly in support of or
opposition to the interim rule and are discussed below.
Several commenters expressed the general opinion that it is
inhumane to have an animal living on mesh or slatted flooring because
such flooring is uncomfortable for the animals. The commenters stated
that the openings in the floor can cause sores on the animals' paws and
that the claws can get caught. One commenter stated that a solid
resting surface in such enclosures benefits the animals by adding to
their physical comfort and enhancing their psychological well-being by
reducing stress. One commenter stated that solid resting surfaces are
especially beneficial to breeding females and their litters to provide
a place for the pups to nurse and sleep as a group and an area where
they can walk ``without any worry that their feet will slide through or
their toes will catch.'' Two commenters expressed the opinion that toy
breed dogs housed on mesh or slatted floors should have resting boards,
as the size of these dogs puts them in particular danger of catching a
foot in the mesh or slats of the floor. Another commenter stated that
large breeds of dogs housed on mesh or slatted flooring should have a
solid resting surface, but the commenter did not provide a reason. One
commenter stated that, before finalizing the interim rule, research
should be done to determine how comfortable flooring of mesh or slatted
construction is for dogs and cats, perhaps by providing dogs and cats
kept on such floors with access to a solid resting surface and
observing where they choose to rest. The commenter further stated that,
before the public can provide meaningful comments, our agency needs to
describe the types of mesh and slats that are allowed and how much of a
gap may separate each strand or slat.
In response to the comments about the degree of comfort provided by
solid resting surfaces and the need for research on this issue, we are
unaware of any relevant scientific data. Our Agency bases our
regulations on scientific data whenever possible. However, in
promulgating regulations under the AWA, scientific data is often not
available, and we must rely on the knowledge we have gained from our
considerable experience in AWA enforcement. We know from more than 30
years of administering the AWA that dogs and cats raised in enclosures
with suspended floors of mesh or slatted
[[Page 19252]]
construction can be healthy and show no ill effects. Our experience has
also shown that, in warm weather, many dogs and cats seem to prefer to
rest on mesh and slatted flooring rather than on a solid resting
surface, presumably because of the additional airflow that mesh and
slatted flooring allows.
In regard to the comments about injuries to the feet of dogs and
cats housed in primary enclosures with suspended flooring of mesh or
slatted construction, we believe that the current regulations
pertaining to primary enclosures for dogs and cats adequately address
this issue. In Sec. 3.6, paragraph (a)(2)(x) states that, among other
things, the enclosures must ``(h)ave 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.'' We believe that
these performance-based regulations adequately describe the types of
mesh or slats and sizes of gaps in suspended floors of mesh or slatted
construction that are acceptable to us. We further believe that these
regulations are specific enough to prohibit the use of flooring
materials that could cause foot and leg injuries. Our inspectors report
that most AWA-licensed dog and cat breeders use high-quality coated
wire or galvanized expanded metal in primary enclosures with suspended
flooring.
In regard to the comment concerning the use of solid resting
surfaces in primary enclosures containing breeding females and their
litters, the requirements just cited in Sec. 3.6 (a)(2)(x) apply to
puppies and kittens as well. Moreover, our inspectors have found that
many dog breeders place a tublike container in these enclosures to
contain the puppies but allow the mother to exit and enter.
One commenter urged that the use of resting surfaces made of wood
be prohibited because, being porous, they become damp and hard to
disinfect and dogs chew on them, which can cause injury.
We believe that the current regulations pertaining to primary
enclosures for dogs and cats are adequate to ensure that wooden resting
surfaces do not become a source of injury or pose a sanitation hazard
for dogs and cats. In Sec. 3.6, paragraph (a)(1) states that primary
enclosures must be designed and constructed of suitable materials so
that they are structurally sound and that primary enclosures must be
kept in good repair. Paragraph (a)(2) of Sec. 3.6 states that primary
enclosures must be constructed and maintained so that they (1) have no
sharp points or edges that could injure the dogs and cats, (2) protect
the dogs and cats from injury, and (3) enable all surfaces in contact
with the dogs and cats to be readily cleaned and sanitized or be
replaced when worn or soiled.
Many commenters in support of the interim rule stated that solid
resting surfaces affect the health of puppies and kittens by creating a
dirtier environment for them as a result of the accumulation of fecal
matter. One commenter stated that, in the commenter's experience, most
dogs in primary enclosures with suspended flooring of mesh or slatted
construction that include a solid resting surface will defecate on the
resting surface, thereby defeating the purpose of using mesh or slatted
flooring. (However, one commenter in opposition to the interim rule
stated that, in the commenters experience, most caged animals will not
defecate on their resting surfaces because the surfaces usually serve
as their sleeping areas.) One commenter stated that the requirement for
a solid resting surface created an unnecessary and unusual burden on
animal caretakers by making it necessary to clean the solid surfaces
continually to avoid any potential for bacterial infections. A
commenter in support of the interim rule suggested to regulated
entities concerned about keeping solid resting surfaces clean and
sanitary because of problems associated with the animals' waste that
``allowing animals sufficient exercise time outside of their cages
would reduce the amount of waste an animal would pass in its cage.''
In our experience with AWA enforcement, we have found that solid
resting surfaces in primary enclosures with suspended flooring for dogs
and cats often become areas where excreta collects. In the AWA
regulations pertaining to the care of dogs and cats, 3.11(a) requires
that ``[e]xcreta and food waste must be removed from primary enclosures
for dogs and cats daily and from under primary enclosures as often as
necessary to prevent an excessive accumulation of feces and food waste,
to prevent soiling of the dogs or cats contained in the primary
enclosures, and to reduce disease hazards, insects, pests and odors.''
Even regulated entities who comply with the regulations and clean their
dog and cat primary enclosures daily cannot ensure that solid resting
surfaces are clean at all times. When excreta collect on solid resting
surfaces, they become breeding grounds for bacteria and viruses that
can cause serious infections and diseases in dogs and cats. In regard
to the suggestion of allowing animals sufficient exercise time outside
the primary enclosures, Sec. 3.8 of the regulations requires that
regulated entities develop, document, and follow a plan to provide dogs
with the opportunity to exercise. While we certainly encourage
regulated parties to provide their dogs with as much exercise time as
possible, regulated parties would still have to deal with removal of
animal waste because Sec. 3.11 of the regulations requires removal of
waste from outside runs and pens as well as the entire premises.
Several commenters expressed concern that the interim rule was
promulgated solely to save regulated entities the time and money
involved in cleaning the solid resting surfaces. Some commenters stated
that the requirement for a clean solid resting surface is not overly
burdensome and that the cost estimates provided in the interim rule for
cleaning such surfaces are too high. One commenter further stated that
flooring of mesh or slatted construction allows only some animal waste
to fall through, so regulated entities are already making an investment
in regularly cleaning the cages, and another commenter stated that the
additional cost of cleaning solid resting surfaces would be minimal.
In accordance with Federal law, our agency analyzed the potential
economic effects of our rule on small entities. We created the cost
estimate in the interim rule for cleaning solid resting surfaces based
on certain assumptions. We believe that it is not unrealistic to assume
that it takes 5 minutes to clean each solid resting surface, that labor
is paid at a rate of $6 per hour, and that each resting surface is
cleaned once per day. Based on these assumptions, we estimated that a
dog breeder with 120 enclosures would incur an annual cost of $21,900
for cleaning solid resting surfaces. The commenter did not provide any
specific basis for any revisions to this analysis. In the absence of
any clear evidence that solid resting surfaces in primary enclosures
with suspended flooring of mesh or slatted construction are necessary
for the protection of dogs and cats covered by the AWA, we do not
believe the costs associated with purchasing and cleaning the solid
resting surfaces would be justified.
Many commenters expressed the opinion that the decision to include
a solid resting surface in primary enclosures for dogs and cats should
be left up to the person responsible for caring for the dogs and cats
because professional animal caretakers know what is best for their
animals and will provide for their needs.
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In keeping with Federal regulatory reform initiatives, we strive to
promulgate performance-based rather than engineering-based requirements
whenever possible and to work with regulated entities to help them gain
and maintain compliance with the AWA. We believe that the decision of
whether to include solid resting surfaces in the primary enclosures of
dogs and cats can best be determined by the AWA licensees themselves.
Therefore, for the reasons given in the interim rule and in this
document, we are adopting the interim rule 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 not significant for 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.
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\1\ In FY96, 10,366 facilities were licensed or registered under
the AWA. Of those facilities, 4,265 were licensed dealers, 2,422
were licensed exhibitors, and 3,679 were registrants. The dealers
are subdivided into two classes. Class A dealers (3,043) breed
animals, and Class B dealers (1,222) serve as animal brokers. The
registrants comprise research facilities (2,506), carriers and
intermediate handlers (1,142), and exhibitors (31). As used here,
the term ``facilities'' represents sites, the physical location
where animals are housed. Some licensees and registrants have more
than one site.
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The number of dealers and research facilities that are considered
small entities under U.S. Small Business Administration (SBA) standards
is unknown because information as to their size (in terms of gross
receipts or number of employees) is not available. However, it is
reasonable to assume that most are small in size, based on composite
data for providers of the same and similar services in the United
States. In 1992, the per-firm average gross receipts for all 6,804
firms in SIC (Standard Industrial Classification) 0752, which includes
dog and cat breeders, was $115,290, well below the SBA's small entity
threshold of $5 million. Similarly, the 1992 per-establishment average
employment for all 3,826 U.S. establishments in SIC 8731, which
includes research facilities, was 29, well below the SBA's small entity
threshold of 500 employees. It is very likely, therefore, that small
entities will be the principal beneficiaries of the rule.
Solid resting surfaces used in dog and cat primary enclosures are
made of a variety of materials, including fiberglass, galvanized metal,
or wood, but the most common material used is rubber matting. The
average cost of such surfaces is minimal--about $5 per enclosure. The
resting surfaces are usually not affixed to the enclosures; they are
simply placed on top of the suspended flooring, so as to allow for easy
removal and cleaning. For that reason, there is virtually no labor cost
associated with the installation of such surfaces. Thus, if a breeder
had to install resting surfaces in 120 enclosures, the total cost would
be about $600. However, solid resting surfaces have to be replaced over
time. The replacement rate is unknown and depends on the type of
material used. Those resting surfaces made of fiberglass or galvanized
metal, for example, have to be replaced less frequently than those made
of wood. As a result of the rule, affected entities will avoid this
ongoing replacement cost.
Resting surfaces are usually cleaned by hosing them down. They are
cleaned outside the enclosures, to prevent the animals from getting
wet. Cleaning resting surfaces can be a costly undertaking, largely
because it is labor intensive. For a dog breeder with 120 enclosures,
for example, the annual cost is conservatively estimated at $21,900 per
year. This estimate assumes that: (1) Each resting surface is cleaned
once each day; (2) it takes 5 minutes to clean each resting surface;
and (3) labor is paid at a rate of $6 per hour.
The impact of the rule on individual entities will vary, depending
on the number of enclosures maintained. However, the impact of the rule
on all regulated entities will be beneficial.
Under these circumstances, the Administrator of the Animal and
Plant Health Inspection Service has determined that this action will
not have a significant economic impact on a substantial number of small
entities.
Executive Order 12372
This program/activity is listed in the Catalog of Federal Domestic
Assistance under No. 10.025 and is subject to Executive Order 12372,
which requires intergovernmental consultation with State and local
officials. (See 7 CFR part 3015, subpart V.)
Executive Order 12988
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. It is not intended to have retroactive effect.
This rule would not preempt any State or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule. The Act does not provide administrative procedures which must be
exhausted prior to a judicial challenge to the provisions of this rule.
Paperwork Reduction Act
This rule contains no information collection or recordkeeping
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.).
List of Subjects in 9 CFR Part 3
Animal welfare, Marine mammals, Pets, Reporting and recordkeeping
requirements, Research, Transportation.
PART 3--STANDARDS
Accordingly, we are adopting as a final rule, without change, the
interim rule that amended 9 CFR 3 and that was published at 63 FR
37480-37482 on July 13, 1998.
Authority: 7 U.S.C. 2131-2159; 7 CFR 2.22, 2.80, and 371.2(d).
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Done in Washington, DC, this 15th day of April 1999.
Joan M. Arnoldi,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 99-9847 Filed 4-19-99; 8:45 am]
BILLING CODE 3410-34-P
