Federal Register, Volume 83 Issue 107 (Monday, June 4, 2018)
[Federal Register Volume 83, Number 107 (Monday, June 4, 2018)]
[Rules and Regulations]
[Pages 25549-25555]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-11892]
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Parts 1, 2, and 3
[Docket No. APHIS-2014-0059]
RIN 0579-AD99
Thresholds for De Minimis Activity and Exemptions From Licensing
Under the Animal Welfare Act
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
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SUMMARY: We are amending the Animal Welfare Act (AWA) regulations to
implement amendments to the Act that broadened the scope of the
exemptions from the licensing requirements for dealers and exhibitors.
Specifically, we are broadening the licensing exemption for any person
who maintains four or fewer breeding female dogs, cats, and/or small
exotic or wild mammals and only sells the offspring of these animals
for pets or exhibition to include additional types of pet animals and
domesticated farm-type animals. In addition, we are adding a new
licensing exemption for any person who maintains eight or fewer pet
animals, small exotic or wild animals, and/or domesticated farm-type
animals for exhibition. These actions will allow the Agency to focus
its limited resources on situations that pose a higher risk to animal
welfare and public safety. Finally, we are making conforming changes to
the definitions of dealer and exhibitor to reflect the amendments to
the Act and making several miscellaneous changes to the
[[Page 25550]]
regulations for consistency and to remove redundant and obsolete
requirements.
DATES: Effective June 4, 2018.
FOR FURTHER INFORMATION CONTACT: Dr. Kay Carter-Corker, DVM, Director,
National Policy Staff, USDA-APHIS-Animal Care, 4700 River Road, Unit
84, Riverdale, MD 20737; (301) 851-3748.
SUPPLEMENTARY INFORMATION:
Background
Under the Animal Welfare Act (AWA, or the Act, 7 U.S.C. 2131 et
seq.), the Secretary of Agriculture is authorized to promulgate
standards and other requirements governing the humane handling, care,
treatment, and transportation of certain warm-blooded animals by
dealers, research facilities, exhibitors, operators of auction sales,
and carriers and intermediate handlers. The Secretary has delegated
authority for administering the AWA to the Administrator of the U.S.
Department of Agriculture's Animal and Plant Health Inspection Service
(APHIS). Within APHIS, the responsibility for administering the AWA has
been delegated to the Deputy Administrator for Animal Care. Regulations
and standards established under the AWA are contained in the Code of
Federal Regulations (CFR) in 9 CFR parts 1, 2, and 3 (referred to below
as the regulations).
The AWA and regulations seek to ensure the humane handling, care,
treatment, and transportation of certain warm-blooded animals \1\ used
or intended for research, teaching, testing, experimentation, or
exhibition purposes, or as a pet. Dealers and exhibitors of such
animals must obtain licenses and comply with AWA regulations and
standards, and their facilities are inspected by APHIS for compliance,
unless they are otherwise exempt from the licensing requirements.
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\1\ Under the regulations, an animal is defined as ``any live or
dead dog, cat, nonhuman primate, guinea pig, hamster, rabbit, or any
other warmblooded animal, which is being used, or is intended for
use for research, teaching, testing, experimentation, or exhibition
purposes, or as a pet. This term excludes birds, rats of the genus
Rattus, and mice of the genus Mus, bred for use in research; horses
not used for research purposes; and other farm animals, such as, but
not limited to, livestock or poultry used or intended for use as
food or fiber, or livestock or poultry used or intended for use for
improving animal nutrition, breeding, management, or production
efficiency, or for improving the quality of food or fiber. With
respect to a dog, the term means all dogs, including those used for
hunting, security, or breeding purposes.''
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On August 4, 2016, we published in the Federal Register (81 FR
51386-51394, Docket No. APHIS-2014-0059) a proposal \2\ to amend the
regulations to conform with amendments to the Act that broadened the
scope of the exemptions from the licensing requirements for dealers and
exhibitors whose size of AWA-related business activities is determined
by the Secretary to be de minimis. We also proposed other changes for
consistency and to eliminate redundant and obsolete requirements.
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\2\ To view the proposed rule, supporting documents, and the
comments we received, go to http://www.regulations.gov/#!docketDetail;D=APHIS-2014-0059.
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We solicited comments concerning our proposal for 90 days ending
November 2, 2016. We received 29 comments on the proposal during the
comment period. They were from exhibitors, animal welfare
organizations, biomedical research organizations, an organization
representing zoos and aquariums, an animal trainer, and the general
public. We reviewed each of the comments carefully. We respond below,
by topic, to those comments that address specific provisions of the
proposal.
Definitions
We proposed to amend the definitions of dealer and exhibitor in
Sec. 1.1 of the regulations to align them with the amendments to those
definitions in the AWA.
``Exhibitor''
Under the AWA, an exhibitor is defined as ``any person (public or
private) exhibiting any animals, which were purchased in commerce or
the intended distribution of which affects commerce, or will affect
commerce, to the public for compensation, as determined by the
Secretary.'' The definition goes on to identify specific inclusions,
such as circuses and zoos, and exclusions, such as livestock shows and
purebred dog and cat shows, and fairs or exhibitions intended to
advance agricultural arts and sciences, as may be determined by the
Secretary. In addition, the regulations list additional examples of
included and excluded activities.
In 2013, an amendment \3\ to the AWA added a new exclusion to the
definition of exhibitor for owners of common, domesticated household
pets who derive less than a substantial portion of income from a
nonprimary source for exhibiting an animal that exclusively resides at
the residence of the pet owner. We proposed to add this exclusion to
the definition of exhibitor in the regulations for consistency with the
amended Act. We also sought comment on whether to add an explanation of
``substantial portion of income'' to the regulations to make clear it
would not include exhibitions that generate a minimal amount of money
and do not constitute a main source of the person's income.
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\3\ https://www.gpo.gov/fdsys/pkg/BILLS-112s3666enr/pdf/BILLS-112s3666enr.pdf.
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One commenter observed that the proposed rule removed animal acts,
educational exhibits, field trials, and coursing events from the list
of activities in the regulatory definition of exhibitor and disagreed
with their removal.
The removal of these and other activities from the definition of
exhibitor was inadvertent and they have been retained in this final
rule.
One commenter stated that the meaning of ``substantial portion of
income'' within the definition of exhibitor is unclear and that it
should not be described as the main source of income. The commenter
recommended that we define ``substantial portion of income'' to mean
``a percentage of income, the loss of which would negatively affect the
person's standard of living,'' because a main source of income earned
by exhibiting the animals (51 percent or higher) is too high of a
percentage to ensure the welfare of animals exhibited by persons
earning poverty-level wages. Another commenter similarly recommended
that USDA more clearly define the term ``substantial'' as the proposed
language in the definition provides insufficient guidance for regulated
parties and law enforcement. The commenter suggested that USDA define
``substantial portion of income'' as more than 50 percent of the
person's income.
We are making no changes in response to the commenters. As a
practical matter, we anticipate that owners of common, domesticated
household pets that fall under this particular exclusion will also be
exempt under the licensing exemptions for exhibitors established in
this final rule, which is broader in scope than this exclusion.
However, if such an owner has questions, we encourage them to contact
the appropriate Animal Care office \4\ and we will assess the situation
and make a determination at that time.
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\4\ https://www.aphis.usda.gov/aphis/banner/contactus/sa_animal_welfare.
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``Dealer''
Under the AWA, a dealer is defined as any person who, in commerce,
for compensation or profit, delivers for transportation, or transports
(except as a carrier), buys, or sells, or negotiates the purchase or
sale of any animal whether alive or dead for research, teaching,
[[Page 25551]]
exhibition, or use as a pet, as well as any dog at the wholesale level
for hunting, security or breeding purposes. This definition also lists
certain exclusions, such as retail pet stores.
The Agricultural Act of 2014 (referred to as the 2014 Farm Bill)
\5\ amended this definition by removing an exclusion for any person who
does not sell or negotiate the purchase or sale of any wild or exotic
animal, dog, or cat and who derives no more than $500 gross income from
the sale of animals other than wild or exotic animals, dogs, or cats
during any calendar year. At the same time, the 2014 Farm Bill removed
an exemption from licensing in Sec. 2133 of the AWA for any person who
derives less than a substantial portion of his income (as determined by
the Secretary) from the breeding and raising of dogs and cats on his
own premises and sells such dog or cat to a dealer or research facility
and replaced it with a broader exemption for any dealers and exhibitors
whose size of AWA-related business activities is determined by the
Secretary to be de minimis.
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\5\ https://www.gpo.gov/fdsys/pkg/BILLS-113hr2642enr/pdf/BILLS-113hr2642enr.pdf.
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In the proposed rule, we intended to make the regulations
consistent with the 2014 Farm Bill by removing the exemption from the
definition of dealer for any person who does not sell or negotiate the
sale or purchase of any wild or exotic animal, dog, or cat, and who
derives no more than $500 gross income from the sale of animals other
than wild or exotic animals, dogs, or cats, during any calendar year.
In addition, we proposed to remove a parallel exemption from licensing
in Sec. 2.1(a)(3)(ii) of the regulations and add in its place an
exemption for any person whose size of AWA-related business activities
is determined by APHIS to be de minimis in accordance with the
regulations.
One commenter disagreed with the proposed change, stating that it
will create a loophole for animal operations that are not in compliance
with the AWA. As an example, the commenter stated that persons were
buying three females and one male animal, breeding them in the absence
of care standards, and selling the offspring cheaply to brokers. The
commenter stated that these exceptions will create unfair competition
by diminishing the ability of licensed breeders to compete for market
share.
We are making no changes in response to this comment. The commenter
appears to be making reference to a different provision, contained in
Sec. 2.1(a)(3)(iii) of the current regulations, that exempts from
licensing any person that maintains a total of four or fewer breeding
female dogs, cats, and/or small exotic or wild mammals and who sells,
at wholesale, only their offspring, which were born and raised on his
or her premises, for pets or exhibition. The proposed changes to the
$500 gross income exemption do not change the licensing exemptions for
dogs, cats, and/or small exotic or wild mammals. As we noted above, the
AWA was amended to broaden exemptions from the licensing requirements
for small-scale dealers and exhibitors, which allows APHIS to focus its
limited resources on situations that pose a higher risk to animal
welfare and public safety.
Another commenter asked if the removal of the $500 gross income
exemption meant that APHIS would now be exempting persons exhibiting
exotic animals from the licensing requirements.
The $500 gross income exemption only applies to persons selling or
negotiating the sale or purchase of animals other than dogs, cats, and
wild or exotic animals. It does not apply to the exhibition of exotic
animals.
After reviewing these comments and the scope of the $500 gross
income exemption, we are amending the definition of dealer in this
final rule to conform with the amendment to the Act, but will retain
and make no changes to the existing licensing exemption in Sec.
2.1(a)(3)(ii) for any person who sells or negotiates the sale or
purchase of any animal except wild or exotic animals, dogs, or cats,
and who derives no more than $500 gross income from the sale of such
animals during any calendar year and is not otherwise required to
obtain a license. This long-standing, de minimis licensing exemption
applies to persons, such as certain small-scale pet animal resellers,
who are not covered by any other licensing exemption and do not pose a
high risk to animal welfare or public safety. Although removed as an
exclusion from the definition of dealer, this licensing exemption
continues to be authorized by Sec. 2133 of the AWA.
Four Breeding Female Licensing Exemptions
The current regulations in Sec. 2.1(a)(3)(iii) and (vii) exempt
from licensing any person who maintains a total of four or fewer
breeding female dogs, cats, and/or small exotic or wild mammals and who
sells only the offspring of those animals, which were born and raised
on his or her premises, for pets or exhibition. In the proposed rule,
we proposed a ``four breeding female'' exemption for additional types
and combinations of animals, specifically, dogs, cats, rabbits,
hamsters, guinea pigs, chinchillas, cows, goats, pigs, and sheep.
One commenter stated that the proposed exemption is inconsistent
with the exemptions currently in paragraphs (a)(3)(iii) and (vii) of
Sec. 2.1. The commenter noted that the current exemptions apply to
breeders of small exotic or wild species with four or fewer breeding
females under the assumption that such breeders can adequately care for
their animals. The commenter suggested replacing the list of animals in
the proposed de minimis exemption with the list in current Sec.
2.1(a)(3)(iii) so that small exotic or wild species will be included
under the de minimis exemption. Another commenter expressed similar
concerns about having three exemptions for dealers and recommended that
we consolidate them.
We agree with the commenters' suggestions and are making conforming
changes in this final rule. Specifically, we are combining the three
exemptions (current Sec. 2.1(a)(3)(iii) and (vii) and proposed Sec.
2.1(a)(3)(ix)) into one exemption in revised paragraph Sec.
2.1(a)(3)(iii). We have also harmonized the list of animals, grouped
them into categories (pet animals, small exotic and wild mammals, and
domesticated farm-type animals) and added additional examples of
animals (such as llamas and alpacas) that fall under this exemption for
clarity. ``Domesticated farm-type animals'' are animals that have
historically been kept and raised on farms in the United States. This
consolidated exemption continues to apply to any person, including, but
not limited to, purebred dog and cat fanciers, who meet the criteria in
revised paragraph Sec. 2.1(a)(3)(iii), and applies to retail sales and
wholesales alike. Finally, we made conforming edits to the definition
of retail pet store. Specifically, we removed references to previous
paragraph Sec. 2.1(a)(3)(vii) because that provision has been
consolidated in revised paragraph Sec. 2.1(a)(3)(iii), which is
authorized by the 2014 Farm Bill amendments. In addition, we updated
references to ``domestic ferrets'' and ``farm animals'' to
``domesticated ferrets'' and ``domesticated farm-type animals'' for
consistency with modern usage and the terminology used in this final
rule.
A commenter stated that if the proposal is finalized, small
breeders currently maintaining exotic animals under a USDA license may
qualify as de minimis businesses and find themselves exempt from USDA
licensing. The commenter expressed concern that
[[Page 25552]]
persons operating such businesses will face confiscation of their
animals in States that prohibit ownership of exotic animals by
businesses lacking a USDA license and proposed a ``grandfather clause''
to allow de minimis businesses in such States to keep their exotic
animals.
The four breeding female exemption for small exotic and wild
mammals has been in place since 2004. Neither the proposed rule nor
this final rule makes changes to it, other than to add additional
examples of such animals and to combine the exemptions for retail sales
and wholesales into one paragraph. We also note that States requiring a
USDA license or that reduce requirements for persons with a USDA
license primarily focus on potentially dangerous animals, not the types
of small exotic and wild mammals that fall under this exemption, which
are pocket pets such as chinchillas and jerboas being sold for use as
pets or exhibition. Larger exotic or wild animals, such as lions,
tigers, wolves, or bears, do not fall into this category.
Exhibitor Licensing Exemptions
In the proposed rule, we also proposed de minimis exemptions from
the licensing requirements for exhibitors based on the size of their
AWA-related business activity as measured by the total number of
animals maintained, the type of exhibitor activity, and/or the duration
of the exhibition. Specifically, for persons who exhibit four or fewer
eligible animals in permanent facilities, we proposed a de minimis
exemption under Sec. 2.1(a)(3)(x). For seasonal exhibitors, we
proposed an exemption in Sec. 2.1(a)(3)(xi) for any person who
maintains a total of eight or fewer dogs, cats, rabbits, hamsters,
guinea pigs, chinchillas, cows, goats, pigs, and sheep, for seasonal
exhibition and exhibits any or all of the animals for no more than 30
days per calendar year. We also proposed an exhibitor licensing
exemption in Sec. 2.1(a)(3)(xii) for any person who maintains a total
of four or fewer common, domesticated, non-dangerous household pet
animals for infrequent or intermittent exhibition for no more than 30
days per calendar year, who derives less than a substantial portion of
income from a nonprimary source for exhibiting such animals, whose
animals reside exclusively at the residence of the owner, and who is
not otherwise required to obtain a license.
One commenter stated that the proposal was unclear with respect to
what animal species are eligible for the proposed de minimis exhibitor
exemptions and asked us to clarify. With respect to the proposed de
minimis exemption for infrequent or intermittent exhibitors, two
commenters asked us to either define what species is meant by ``common,
domesticated, non-dangerous household pet animal'' or provide a list of
species that meet this criteria. One commenter stated that paragraph
(a)(3)(xii) should reflect the de minimis exemptions in proposed
paragraphs (a)(3)(ix) through (a)(3)(xi) that list ``dogs, cats,
rabbits, hamsters, guinea pigs, chinchillas, cows, goats, pigs, and
sheep.'' The commenter stated that the proposed description is open to
interpretation and could lead to confusion as to what animal species
are eligible for the exemption.
In response to this comment, and consistent with our approach to
the four breeding female exemption discussed above, we are harmonizing
the lists of non-dangerous animals eligible for exemption and grouping
them into categories (pet animals, small exotic and wild mammals, and
domesticated farm-type animals). We are also adding more examples of
animals that fall under this exhibitor exemption for clarity.
Two commenters disagreed with the proposed numeric thresholds,
noting that seasonal exhibitors are allowed to work up to eight animals
while infrequent or intermittent (mainly film and theatrical)
exhibitors are only allowed to work four animals. One of these
commenters stated that both types of exhibition require off-site
housing and frequent transport, putting animals at greater potential
risk regardless of the number exhibited, yet under Sec. 2.1(a)(3)(xii)
an infrequent or intermittent exhibitor would require a license with
five to eight animals while seasonal exhibitors with the same number of
animals exhibited would not require a license. Similarly, another
commenter stated that regardless of whether animals are used for
seasonal or infrequent exhibition, the potential impact on the animal's
welfare is the same. For this reason, the commenter recommended that
the seasonal exemption be limited to four or fewer animals.
Two other commenters disagreed with the limit of days we placed on
the seasonal exhibit exemption and said that the duration should be
longer. One such commenter stated that many spring and fall exhibits
run between specific weekends and are often weather dependent, and
stated that at least 6 to 8 weeks would be better for the seasonal de
minimis exemption. On the other hand, one commenter stated that
seasonal exhibitions should not have a duration of more than 10 days
per year.
Another commenter stated that allowing infrequent or intermittent
exhibitors up to 30 days a year to work their animals is far too high.
The commenter, a professional pet trainer, was concerned that untrained
pet owners would lack the knowledge necessary to keep their pets and
other people safe on film sets and at other worksites. The commenter
suggested that we limit the proposed exemption in Sec. 2.1(a)(3)(xii)
to 1 or 2 days of exhibition per year, as any person working their
animals for more days are likely generating a substantial amount of
income while remaining exempt from licensing. The commenter said that a
trainer can make $500 to $1,000 per day with an animal in a TV or film
production, and that a pet working 30 days in a starring role can make
a profit of tens of thousands of dollars. The commenter stated that
anyone profiting by more than $100 per day from exhibiting an animal
should be required to be licensed or work under the guidance of a
licensed USDA trainer.
Finally, one commenter disagreed with our use of the term
``infrequent exhibition.'' The commenter asked who would monitor such
exhibitors for compliance with the regulations and stated that allowing
infrequent exhibitors to go unlicensed is not fair to licensed
exhibitors who have to conduct recordkeeping and be inspected.
We have reconsidered this matter and agree with the commenters that
the animals pose similar potential risks and will likely experience
similar treatment and care, regardless of the duration or frequency of
the exhibition. We have concluded that individuals and businesses
exhibiting eight or fewer pet animals, small exotic or wild animals,
and/or domesticated farm-type animals have a de minimis size of
business based on the number of animals maintained, capability of
providing adequate care and treatment of such animals, and public
oversight. Accordingly, we are revising Sec. 2.1(a)(3)(vii) to
establish a single exemption from the licensing requirements for
persons who maintain a total of eight or fewer pet animals, small
exotic or wild animals, and/or domesticated farm-type animals for
exhibition, and are not otherwise required to obtain a license. This de
minimis threshold applies without regard to the frequency of exhibition
and will allow the Agency to focus its limited resources on situations
that pose a higher risk to animal welfare and public safety.
One commenter stated that the seasonal exhibition threshold for
exemption should be raised from 30 to 45 days, noting that apple
orchards, corn mazes, and Christmas tree farms
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usually display small numbers of farm animals and are open at least 45
days. The commenter recommended that if such facilities are only
exhibiting farm animals and are only open seasonally for 30 to 45 days,
they should not be regulated.
As noted in the proposed rule, the Act contains a number of
exclusions for domesticated farm-type animals and agricultural
practices. For example, the definition of animal excludes farm animals,
such as, but not limited to, livestock or poultry used or intended for
use as food or fiber, or livestock or poultry used or intended for use
for improving animal nutrition, breeding, management, or production
efficiency, or for improving the quality of food or fiber. In addition,
we wish to highlight that the definition of exhibitor also contains
exclusions for organizations sponsoring and all persons participating
in State and county fairs, livestock shows, rodeos, and other fairs and
exhibitions intended to advance agricultural arts and sciences as may
be determined by the Secretary. Exhibitions of exclusively domesticated
farm-type animals, exhibitions of traditional farming and agricultural
practices, and exhibitions of art portraying traditional farming and
agricultural settings, are accordingly exempt from the definition of
exhibitor. Examples of exhibitions that may fall in this category
include exhibition of exclusively domesticated farm-type animals (such
as cows, goats, pigs, sheep, llamas, and alpacas), nativity scenes with
a camel and domesticated farm-type animals displayed in a barn or other
traditional farm-type setting, and traditional agricultural displays of
working animals, such as reindeer pulling a sled or working on a farm.
Exhibitions displaying other types of animals (such as lions, tigers,
elephants, and bears) or animals other than exclusively farm-type
animals in non-agricultural settings (such as camel rides for the
public at a carnival), require licensure. Although the kinds of
exhibits noted by the commenter may not all be exempt under the
exhibitor licensing exemption, we wish to clarify that they may already
be excluded from regulation pursuant to the definition of exhibitor.
Proposed Changes to Sec. 3.28 and Sec. 3.53
We proposed to remove Sec. Sec. 3.28(b), 3.53(b), and 3.80(b)(1),
which contain obsolete sheltering and minimum space requirements for
hamsters, guinea pigs, rabbits, and nonhuman primates, and to revise
Sec. 3.6(a)(2)(xii) to remove phase-in dates which are no longer
needed regarding primary enclosures for dogs and cats. We explained in
the proposed rule that removal of these requirements will remove any
confusion with the current regulatory requirements and will have no
impact on facilities and animal welfare.
Four commenters raised questions about our proposed removal of
obsolete sheltering and minimum space requirements. One commenter asked
if APHIS was certain that no entities were still maintaining animals
under these requirements. Three of the commenters stated that some
facilities may still be using primary enclosures acquired before August
15, 1990, and asserted that they would therefore still be subject to
the requirements we are proposing to remove. These commenters asked
that we remove these changes from the proposed rulemaking and reissue
the changes in a separate rulemaking so that affected facilities
receive adequate notice and opportunity to comment.
We have reconsidered these proposed changes in light of these
comments and agree that some entities may still maintain hamsters,
guinea pigs, and rabbits in enclosures acquired prior to August 15,
1990. Therefore, we will retain Sec. Sec. 3.28(b) and 3.53(b) in the
regulations and will consider removing them in a separate rulemaking.
However, we are adopting the proposed revisions to Sec. Sec.
3.6(a)(2)(xii) and 3.80(b)(1) in this final rule.
Other Comments
One commenter encouraged APHIS to investigate sanctuaries and
private collections holding dangerous animals, as such facilities
appear to be exhibiting animals for purposes that affect commerce for
compensation in the absence of USDA oversight.
APHIS looks into any credible complaints or information it receives
regarding individuals or businesses that may be engaging in regulated
activity without the required license. To report a concern about an
animal covered under the AWA, the public may submit a complaint online
at: https://www.aphis.usda.gov/aphis/ourfocus/animalwelfare/complaint-form, or by contacting one of our Animal Care offices.\6\
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\6\ See Footnote 4.
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One commenter asked that we lift the stay imposed on the disaster
contingency plan rulemaking as soon as possible.
As we noted in the proposed rule, the Secretary is reviewing the
impact of the 2014 Farm Bill amendment on the contingency plan
rulemaking and will decide whether to lift the stay once the review is
concluded.
Another commenter stated concerns about how APHIS decides which
current license holders meet the exemption threshold, citing
inconsistent data in the APHIS database regarding the number of animals
reported at the premises of licensees. Given these inconsistencies, the
commenter asked whether APHIS can reliably determine who qualifies for
the exemption and who does not.
We will continue to use the information submitted to APHIS by
current license holders and the number of animals observed during the
inspection process to determine if they meet the exemption thresholds.
We consider our process for determining exemptions to be accurate and
reliable.
We also received a number of general comments that were outside the
scope of the rulemaking.
Finally, we are also making several nonsubstantive miscellaneous
changes for consistency.
Therefore, for the reasons given in the proposed rule and in this
document, we are adopting the proposed rule as a final rule with the
changes discussed in this document.
Effective Date
This is a substantive rule that relieves restrictions and, pursuant
to the provisions of 5 U.S.C. 553, may be made effective less than 30
days after publication in the Federal Register.
This rule relieves regulatory responsibilities for some currently
licensed entities and reduces the cost of business for those entities.
Those currently licensed exhibitors and dealers (including breeders
meeting the definition of dealer) who are under the proposed de minimis
thresholds will no longer be subject to licensing, animal
identification, and recordkeeping requirements under the AWA.
Therefore, the Administrator of the Animal and Plant Health Inspection
Service has determined that this rule should be effective upon
publication in the Federal Register.
Executive Orders 12866 and 13771 and Regulatory Flexibility Act
This final 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 is not an Executive Order 13771 regulatory action because
this rule is not significant under Executive Order 12866. Further,
APHIS considers this rule to be a deregulatory action under Executive
Order 13771 as the action relieves regulatory responsibilities for some
currently
[[Page 25554]]
licensed entities and reduces the cost of business for those entities.
In accordance with 5 U.S.C. 604, we have performed a final
regulatory flexibility analysis, which is summarized below, regarding
the economic effects of this rule on small entities. Copies of the full
analysis are available on the Regulations.gov website (see footnote 2
in this document for a link to Regulations.gov) or by contacting the
person listed under FOR FURTHER INFORMATION CONTACT.
This rule relieves regulatory responsibilities for some currently
licensed entities and reduces the cost of business for those entities.
Those currently licensed exhibitors and dealers (including breeders
meeting the definition of dealer) who are under the proposed de minimis
thresholds will no longer be subject to licensing, animal
identification, and recordkeeping requirements under the AWA.
The cost of a license for the smallest entities is between $40 and
$85 annually. Identification tags for dogs and cats cost from $1.12 to
$2.50 each. Other covered animals can be identified by a label attached
to the primary enclosure containing a description of the animals in the
enclosure at negligible cost. We estimate that the average currently
licensed entity potentially affected by this rule spends about 10 hours
annually to comply with the licensing paperwork and recordkeeping
requirements. All of the currently licensed entities that will be
considered de minimis under this rule benefit from reduced costs for
licensing, identification, and recordkeeping.
We estimate that about 323 currently licensed exhibitors and
breeders with a total of 1,106 animals operating at or below the
thresholds for their particular AWA-related business activity will be
considered de minimis and will no longer need to be licensed. We
estimate that the cost savings for all these entities could total
between about $62,000 and $68,500 annually. Our estimate of cost
savings is based on agency experience and data from the APHIS Animal
Care database on current licensees. We used information from the
database on the type of animals and number of each type of animal at a
current licensee, and their most recent inspection reports to determine
the number of current licensees who could potentially be exempt based
on the criteria established in this rule.
Based on our review of available information, APHIS does not expect
the rule to have a significant economic impact on a substantial number
of small entities. We did not receive information concerning affected
entities during the public comment period on the proposed rule that
would alter this assessment. In the absence of apparent significant
economic impacts, we have not identified steps that would minimize such
impacts.
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 2 CFR chapter IV.)
Executive Order 12988
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. It is not intended to have retroactive effect.
The Act does not provide administrative procedures which must be
exhausted prior to a judicial challenge to the provisions of this rule.
Executive Order 13175
This rule has been reviewed in accordance with the requirements of
Executive Order 13175, ``Consultation and Coordination with Indian
Tribal Governments.'' Executive Order 13175 requires Federal agencies
to consult and coordinate with tribes on a government-to-government
basis on policies that have tribal implications, including regulations,
legislative comments or proposed legislation, and other policy
statements or actions that have substantial direct effects on one or
more Indian tribes, on the relationship between the Federal Government
and Indian tribes or on the distribution of power and responsibilities
between the Federal Government and Indian tribes.
The Animal and Plant Health Inspection Service has assessed the
impact of this rule on Indian tribes and determined that this rule does
not, to our knowledge, have tribal implications that require tribal
consultation under Executive Order 13175. We did not receive any
requests from tribes for consultation regarding the proposed rule.
Paperwork Reduction Act
In accordance with section 3507(d) of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), the information collection
requirements included in this final rule are approved under Office of
Management and Budget control number 0579-0036.
E-Government Act Compliance
The Animal and Plant Health Inspection Service is committed to
compliance with the EGovernment Act to promote the use of the internet
and other information technologies, to provide increased opportunities
for citizen access to Government information and services, and for
other purposes. For information pertinent to E-Government Act
compliance related to this rule, please contact Ms. Kimberly Hardy,
APHIS' Information Collection Coordinator, at (301) 851-2483.
List of Subjects in 9 CFR Parts 1, 2, and 3
Animal welfare, Marine mammals, Pets, Reporting and recordkeeping
requirements, Research, Transportation.
Accordingly, we are amending 9 CFR parts 1, 2, and 3 as follows:
PART 1--DEFINITION OF TERMS
0
1. The authority citation for part 1 continues to read as follows:
Authority: 7 U.S.C. 2131-2159; 7 CFR 2.22, 2.80, and 371.7.
0
2. Section 1.1 is amended by revising the definitions of Dealer,
Exhibitor, and Retail pet store to read as follows:
Sec. 1.1 Definitions.
* * * * *
Dealer means any person who, in commerce, for compensation or
profit, delivers for transportation, or transports, except as a
carrier, buys, or sells, or negotiates the purchase or sale of: Any dog
or other animal whether alive or dead (including unborn animals,
organs, limbs, blood, serum, or other parts) for research, teaching,
testing, experimentation, exhibition, or use as a pet; or any dog at
the wholesale level for hunting, security, or breeding purposes. This
term does not include: A retail pet store, as defined in this section;
and any retail outlet where dogs are sold for hunting, breeding, or
security purposes.
* * * * *
Exhibitor means any person (public or private) exhibiting any
animals, which were purchased in commerce or the intended distribution
of which affects commerce, or will affect commerce, to the public for
compensation, as determined by the Secretary. This term includes
carnivals, circuses, animal acts, zoos, and educational exhibits,
exhibiting such animals whether operated for profit or not. This term
excludes retail pet stores, horse and dog races, an owner of a common,
domesticated household pet who derives less than a substantial portion
of income from a nonprimary source (as determined by the Secretary) for
exhibiting an animal that exclusively resides at the residence of the
pet owner, organizations sponsoring and all persons participating in
State and
[[Page 25555]]
country fairs, livestock shows, rodeos, field trials, coursing events,
purebred dog and cat shows, and any other fairs or exhibitions intended
to advance agricultural arts and sciences, as may be determined by the
Secretary.
* * * * *
Retail pet store means a place of business or residence at which
the seller, buyer, and the animal available for sale are physically
present so that every buyer may personally observe the animal prior to
purchasing and/or taking custody of that animal after purchase, and
where only the following animals are sold or offered for sale, at
retail, for use as pets: Dogs, cats, rabbits, guinea pigs, hamsters,
gerbils, rats, mice, gophers, chinchillas, domesticated ferrets,
domesticated farm-type animals, birds, and coldblooded species. Such
definition excludes--
(1) Establishments or persons who deal in dogs used for hunting,
security, or breeding purposes;
(2) Establishments or persons exhibiting, selling, or offering to
exhibit or sell any wild or exotic or other nonpet species of
warmblooded animals (except birds), such as skunks, raccoons, nonhuman
primates, squirrels, ocelots, foxes, coyotes, etc.;
(3) Any establishment or person selling warmblooded animals (except
birds, and laboratory rats and mice) for research or exhibition
purposes;
(4) Any establishment wholesaling any animals (except birds, rats,
and mice); and
(5) Any establishment exhibiting pet animals in a room that is
separate from or adjacent to the retail pet store, or in an outside
area, or anywhere off the retail pet store premises.
* * * * *
PART 2--REGULATIONS
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3. 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 371.7.
0
4. Section 2.1 is amended by revising paragraphs (a)(3)(iii),
(a)(3)(vii), and (c)(2) to read as follows:
Sec. 2.1 Requirements and application.
(a) * * *
(3) * * *
(iii) Any person who maintains a total of four or fewer breeding
female pet animals as defined in part 1 of this subchapter, small
exotic or wild mammals (such as hedgehogs, degus, spiny mice, prairie
dogs, flying squirrels, jerboas, domesticated ferrets, chinchillas, and
gerbils), and/or domesticated farm-type animals (such as cows, goats,
pigs, sheep, llamas, and alpacas) and sells only the offspring of these
animals, which were born and raised on his or her premises, for pets or
exhibition, and is not otherwise required to obtain a license. This
exemption does not extend to any person residing in a household that
collectively maintains a total of more than four of these breeding
female animals, regardless of ownership, or to any person maintaining
such breeding female animals on premises on which more than four of
these breeding female animals are maintained, or to any person acting
in concert with others where they collectively maintain a total of more
than four of these breeding female animals, regardless of ownership;
* * * * *
(vii) Any person who maintains a total of eight or fewer pet
animals as defined in part 1 of this subchapter, small exotic or wild
mammals (such as hedgehogs, degus, spiny mice, prairie dogs, flying
squirrels, jerboas, domesticated ferrets, chinchillas, and gerbils),
and/or domesticated farm-type animals (such as cows, goats, pigs,
sheep, llamas, and alpacas) for exhibition, and is not otherwise
required to obtain a license. This exemption does not extend to any
person acting in concert with others where they collectively maintain a
total of more than eight of these animals for exhibition, regardless of
possession and/or ownership;
* * * * *
(c) * * *
(2) The applicant has paid the application fee of $10 and the
annual license fee indicated in Sec. 2.6 to the appropriate Animal
Care regional office for an initial license.
* * * * *
PART 3--STANDARDS
0
5. The authority citation for part 3 continues to read as follows:
Authority: 7 U.S.C. 2131-2159; 7 CFR 2.22, 2.80, and 371.7.
0
6. Section 3.6 is amended:
0
a. By revising paragraph (a)(2)(xii);
0
b. By removing paragraph (b)(1)(i);
0
c. By removing paragraph (b)(1)(ii) introductory text;
0
d. By redesignating paragraphs (b)(1)(iii) and (b)(1)(iv) as paragraphs
(b)(1)(iv) and (b)(1)(v) respectively; and
0
e. By redesignating paragraphs (b)(1)(ii)(A), (b)(1)(ii)(B), and
(b)(1)(ii)(C) as paragraphs (b)(1)(i), (b)(1)(ii), and (b)(1)(iii)
respectively.
The revision reads as follows:
Sec. 3.6 Primary enclosures.
* * * * *
(a) * * *
(2) * * *
(xii) If the suspended floor of a primary enclosure is constructed
of metal strands, the strands must either be greater than \1/8\ of an
inch in diameter (9 gauge) or coated with a material such as plastic or
fiberglass. The suspended floor of any primary enclosure must be strong
enough so that the floor does not sag or bend between the structural
supports.
* * * * *
Sec. 3.80 [Amended]
0
7. Section 3.80 is amended:
0
a. By removing paragraph (b)(1);
0
b. By removing paragraph (b)(2) introductory text;
0
c. By redesignating paragraphs (b)(2)(i) through (iv) as paragraphs
(b)(1) through (4), respectively;
0
d. In newly redesignated paragraph (b)(1), footnote 4, by removing the
words ``paragraph (b)(2)(ii)'' and adding the words ``paragraph
(b)(2)'' in their place;
0
e. In newly redesignated paragraphs (b)(2) and (b)(4) by removing the
words ``paragraph (b)(2)(i)'' and adding the words ``paragraph (b)(1)''
in their place; and
0
f. In paragraph (c), by removing the words ``paragraphs (b)(1) and
(b)(2)'' and adding the words ``paragraph (b)'' in their place.
Sec. 3.127 [Amended]
0
8. In Sec. 3.127, paragraph (d)(5) is amended by removing the words
``farm animals'' and adding the words ``domesticated farm-type
animals'' in their place.
Done in Washington, DC, this 29th day of May 2018.
Kevin Shea,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2018-11892 Filed 6-1-18; 8:45 am]
BILLING CODE 3410-34-P