Federal Register, Volume 81 Issue 150 (Thursday, August 4, 2016)
[Federal Register Volume 81, Number 150 (Thursday, August 4, 2016)]
[Proposed Rules]
[Pages 51386-51394]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-18452]
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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: Proposed rule.
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SUMMARY: We are proposing to amend the Animal Welfare Act (AWA)
regulations in response to a 2014 Farm Bill amendment to the Act that
provides the Secretary of Agriculture with the authority to determine
that animal dealers and exhibitors are not required to obtain a license
under the Act and regulations if the size of the business conducting
AWA-related activities is determined to be de minimis by the Secretary.
The Animal and Plant Health Inspection Service has reviewed past
compliance with the Animal Welfare Act of currently-regulated
facilities and has determined that de minimis businesses, as defined in
the rule are capable of providing adequate care and treatment of the
animals involved in regulated business activities. We also propose
amending the regulations in response to a 2013 amendment to the Act
that excludes from the definition of ``exhibitor'' some owners of
household pets that are exhibited occasionally, generate less than a
substantial portion of income, and reside exclusively with the owner.
Dealers and exhibitors operating at or below the thresholds determined
for their particular AWA-related business activity would be exempted
from Federal licensing requirements established under the Act and
regulations. Our proposed actions would amend the regulations to be
consistent with the Act while continuing to ensure the humane care and
treatment of animals covered under the AWA.
DATES: We will consider all comments that we receive on or before
November 2, 2016.
ADDRESSES: You may submit comments by any of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov/#!docketDetail;D=APHIS-2014-0059.
Postal Mail/Commercial Delivery: Send your comment to
Docket No. APHIS-2014-0059, Regulatory Analysis and Development, PPD,
APHIS, Station 3A-03.8, 4700 River Road, Unit 118, Riverdale, MD 20737-
1238.
Supporting documents and any comments we receive on this docket may
be viewed at http://www.regulations.gov/#!docketDetail;D=APHIS-2014-
0059 or in our reading room, which is located in room 1141 of the USDA
South Building, 14th Street and Independence Avenue SW., Washington,
DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through
Friday, except holidays. To be sure someone is there to help you,
please call (202) 799-7039 before coming.
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 animals by dealers, research
facilities, exhibitors, operators of auction sales, and carriers and
intermediate handlers. The Secretary has delegated responsibility for
administering the AWA to the Administrator of 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). Part 1 contains definitions for terms used in
parts 2 and 3; part 2 provides administrative requirements and sets
forth institutional responsibilities for regulated parties; and part 3
contains specifications for the humane handling, care, treatment, and
transportation of animals covered by the AWA.
The AWA seeks to ensure the humane handling, care, treatment, and
transportation of animals intended for use by dealers, research
facilities, and exhibitors, operators of auction sales, and carriers
and intermediate handlers. Dealers (including breeders meeting the
definition of ``dealer'') and exhibitors of such animals must obtain
licenses and comply with AWA regulations and standards, and their
facilities are inspected by APHIS for compliance.
[[Page 51387]]
Exclusions and Exemptions in the Act
The Act defines ``animal'' in Sec. 2132(g) specifically as any
live or dead dog, cat, monkey (nonhuman primate mammal), guinea pig,
hamster, rabbit, or such other warm-blooded animal, as the Secretary
may determine is being used, or is intended for use, for research,
testing, experimentation, or exhibition purposes, or as pets; but such
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; 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. Animals that do not fall under the definition of
``animal'' in the Act are excluded from regulation and licensing.
In addition to the exclusions provided to persons under the
definition of ``animal,'' the Act contains exclusions for certain
persons who buy, sell, transport, or exhibit animals that are covered
under the Act. Under the definition of ``dealer'' in Sec. 2132, the
Act excludes retail pet stores that do not sell any animals to a
research facility, an exhibitor, or a dealer. Prior to its amendment by
the 2014 Farm Bill,\1\ the Act also excluded from the definition of
``dealer'' any person who does not sell or negotiate the purchase of
any wild animal, dog, or cat and who derives no more than $500 gross
income from the sale of other animals during any calendar year.
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\1\ The Agricultural Act of 2014: http://www.gpo.gov/fdsys/pkg/BILLS-113hr2642enr/pdf/BILLS-113hr2642enr.pdf.
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The definition of ``exhibitor'' under Sec. 2132(h) of the Act
excludes retail pet stores, 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 county fairs, livestock shows, rodeos, 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.
Section 2133 of the Act establishes a requirement for licensing of
dealers and exhibitors but excludes retail pet stores from the
licensing requirement. Prior to its amendment by the 2014 Farm Bill,
the Act also specifically excluded from licensing any person ``who
derives less than a substantial portion of income (as determined by the
Secretary) from the breeding and raising of dogs or cats on his own
premises and sells any such dog or cat to a dealer or research
facility.''
Business Size-Based Exemptions in the AWA Regulations
The current regulations include, among others, licensing exemptions
based on the size of the business with respect to the number of
breeding female animals maintained or gross income from the sale of
animals. These exemptions are explained below.
Retail Exemptions
Reflecting what is stated in Sec. 2132 of the Act, Sec.
2.1(a)(3)(i) of the AWA regulations affirms that retail pet stores are
exempt from the licensing requirements. However, the Act itself
provides no specific definition for the term ``retail pet store.'' In a
2013 final rule,\2\ we defined a retail pet store to mean ``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, domestic ferrets, domestic farm animals, birds, and
coldblooded species.'' Prior to this change, the regulations referred
to ``retail pet store'' as simply an ``outlet'' where the animals
listed above were sold at retail, with no specific requirement that
customers personally observe the animal prior to purchasing or taking
custody of it. As a consequence, many large Internet-based retailers
claiming the exemption were able to sell and ship pets to buyers sight
unseen without the benefit of public or APHIS oversight to ensure
humane treatment of their animals. The business model practiced by such
Internet-based retailers selling pets bore no resemblance to a retail
pet store in existence at the time the provision was originally
promulgated in the Act.
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\2\ September 18, 2013; 78 FR 57227-57250 (Docket No. APHIS-
2011-0003).
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Our intent in amending the definition of ``retail pet store'' was
to narrow the scope of the exemption to apply only to retailers who
sell exclusively in face-to-face transactions so that pets sold by
exempted retailers continue to be monitored for their humane care and
treatment by the buying public. We made these changes to ensure that
the definition of ``retail pet store'' was consistent with the original
intent of the Act and to bring more pet animals sold at retail under
its protection.
In the rulemaking to define ``retail pet store,'' we also preserved
an exemption in Sec. 2.1(a)(3)(vii) for purebred dog and cat fanciers
with four or fewer breeding female dogs, cats, and/or small exotic or
wild mammals who sell only the offspring of these animals and who,
because of the size of their businesses, are capable of providing
adequate care and treatment for the animals involved in regulated
business activities without Federal licensing and inspection
requirements to ensure animal welfare.
Wholesale Exemption
Section 2.1(a)(3)(iii) exempts from licensing any person
maintaining four or fewer breeding female dogs, cats, and/or small
exotic or wild mammals, and who sells, at wholesale,\3\ only the
offspring of those animals born and raised on his or her premises, for
use as pets or exhibition. As was the case with retailers, we
determined that wholesalers with four or fewer breeding females who
sell only the offspring are capable of providing adequate care and
treatment for the animals involved in regulated business activities
without Federal licensing and inspection requirements to ensure animal
welfare.
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\3\ ``Wholesale'' means the sale of animals to other persons for
resale.
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Income-Based Exemption
The current AWA regulations also include the income-based exemption
from licensing that was in Sec. 2132(f)(ii) of the Act prior to its
amendment by Congress in the 2014 Farm Bill. The $500 gross income
limit for persons who sell animals other than wild or exotic animals,
dogs, or cats excludes such persons from the definition of ``dealer''
in Sec. 1.1 of the regulations and therefore exempts them from the
licensing requirement in Sec. 2.1(a)(3)(ii). The rationale for
establishing this exemption was to conform the regulations to the 1970
statutory amendment to the Act.
2014 Farm Bill Amendments to the Act
In the 2014 Farm Bill, Congress amended Sec. 2133 of the Act by
giving the Secretary the authority to set thresholds for regulated
activities involving animals under which businesses could be exempted
from licensure as a dealer or exhibitor ``if the size of business is
determined by the Secretary to be de minimis.'' The amendment provides
APHIS with greater authority to exempt small businesses conducting AWA-
[[Page 51388]]
related activities from licensing and inspection, allowing us to direct
our oversight and enforcement efforts on larger businesses conducting
regulated activities.
Congress noted in its Conference Report \4\ that this legislation
codifies the exemption we made to the regulations \5\ in Sec.
2.1(a)(3)(vii) for purebred dog and cat fanciers, and/or breeders of
small exotic or wild mammals, who maintain four or fewer breeding
females and sell the offspring at retail for pets or exhibition.
Dealers qualifying for this licensing exemption are capable of
providing adequate care and treatment for the animals involved in
regulated business activities without Federal licensing and inspection
requirements to ensure animal welfare. We made this same determination
for wholesalers with four or fewer breeding females, who are exempted
under Sec. 2.1(a)(3)(iii). We therefore intend to retain these
exemptions, with four or fewer breeding female dogs, cats, and small
exotic or wild mammals sold at wholesale.
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\4\ See pg. 562: http://www.gpo.gov/fdsys/pkg/CRPT-113hrpt333/pdf/CRPT-113hrpt333.pdf.
\5\ See footnote 2.
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We emphasize that the thresholds in the current exemptions for
dealers are based on the total number of breeding females of all
species combined on a premises, not four breeding female animals per
each species. For example, if a breeder selling AWA-covered species at
retail or wholesale has a total of three breeding female dogs and two
breeding female guinea pigs, that breeder could not claim an exemption,
as the total number of AWA-covered breeding females the person
maintains is five breeding females and exceeds the threshold of four
breeding females. We would apply the same provision to any person
seeking a de minimis exemption for breeding females under our proposed
changes. We expect, however, that most wholesale and retail dealers
eligible for a de minimis exemption under this proposal are already
eligible for the current licensing exemptions in Sec. 2.1(a)(3) of the
regulations.
In addition to dealers, in section 12308 of the 2014 Farm Bill,
Congress amended the Act (7 U.S.C. 2132) to provide the Secretary with
the authority to establish a de minimis exemption from licensing for
exhibitors. In determining de minimis thresholds for such businesses,
we would consider the risk to the humane care and treatment of animals,
the total number of AWA-regulated animals maintained, the type of
activity for which the animals are being used, and/or the number of
days per year the animals are exhibited.
Contingency Plans Rule
On December 31, 2012, we published a final rule \6\ establishing
regulations under which research facilities, dealers, exhibitors,
intermediate handlers, and carriers must meet certain requirements for
contingency planning and training of personnel. However, on July 31,
2013, we issued a stay \7\ of those regulations so that we could
further consider the impact of plan requirements on regulated entities,
taking into account different needs according to the type and size of
their AWA-regulated business activities.
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\6\ Docket No. APHIS-2006-0159 (77 FR 76815-76824).
\7\ 78 FR 46255.
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One issue that warranted further review was the impact of
contingency planning and other licensing requirements on exhibitors
whose businesses involve small numbers of animals. While these
exhibitors do not typically pose risks to animal welfare, there was no
legal mechanism for exempting them from licensing and contingency
planning requirements as de minimis businesses. The amendment to the
Act makes it possible to lift the stay on the Agency's contingency plan
rule by allowing APHIS to determine certain exhibitors to be de minimis
based on the size of their AWA-regulated business activities. We will
review the impact of the AWA amendment on the contingency plan
rulemaking and consider lifting the stay pending the final outcome of
this rulemaking.
Proposed Changes to the Regulations
Definitions
In response to the amendments made to the Act, we propose to amend
the definitions of dealer and exhibitor in Sec. 1.1, ``Definitions.''
Dealer
In Sec. 1.1 of the regulations, 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 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 for use as a pet; or any dog at the wholesale level for
hunting, security, or breeding purpose. The term excludes retail pet
stores, as defined in the regulations, any retail outlet where dogs are
sold for hunting, breeding, or security purposes; or 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.
The 2014 Farm Bill amended the definition of ``dealer'' in Sec.
2132(f) of the Act by striking language from the definition that
excluded ``any person who does not sell, or negotiate the purchase or
sale of any wild animal, dog, or cat, and who derives no more than $500
gross income from the sale of other animals during any calendar year.''
We propose to make the definition of dealer in Sec. 1.1 of the
regulations consistent with the Act. We would do so by striking the
statement that excludes as a dealer ``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.''
Exhibitor
In 2013, Congress amended \8\ the Act to exclude from the
definition of ``exhibitor'' ``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.'' We propose to amend the definition of exhibitor in Sec.
1.1 of the regulations by adding this exclusion to it, thereby making
it consistent with the definition in the Act. While we have not defined
``substantial portion of income'' in the proposed regulation, we
interpret this to mean that the income generated from exhibition is the
main source of the person's income. We interpret less-than-substantial
income to mean the exhibition generates a minimal amount of money and
does not constitute a main source of the person's income. We seek
comment on this interpretation and whether we should add it to the
regulatory text.
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\8\ S. 3666; Public Law: 112-261.
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De Minimis Exemptions to Licensing
We propose to make changes and additions to the licensing
exemptions in Sec. 2.1(a)(3) so that the AWA regulations are
consistent with the Act, as amended. These changes include adding de
minimis exemption requirements in new paragraphs Sec. 2.1(a)(3)(ix)
through Sec. 2.1(a)(3)(xii) and including a table summarizing the de
minimis exemption
[[Page 51389]]
thresholds in a new paragraph Sec. 2.1(a)(3)(xiii).
The de minimis exemptions would apply only to the activities of
those dealers and exhibitors that fall under the scope of the Act and
are not already excluded or exempted from APHIS licensing and
inspection. We note that the Act excludes from regulation farm animals
that are used or intended for use as food or fiber, or for improving
animal nutrition, breeding, management, or production efficiency.
Accordingly, the AWA regulations exclude farm animals used under
certain circumstances from the definition of ``animal'' in Sec. 1.1
and exempt other animals used for food and fiber in Sec.
2.1(a)(3)(vi). None of these regulations would be changed by this
proposal. However, farm animals used or exhibited for regulated
purposes, such as petting zoos, would continue to fall under the scope
of the Act unless they otherwise qualify for a de minimis exemption
from licensing.
As noted previously, we propose no changes to the current retail
licensing exemptions in Sec. 2.1(a)(3)(i) and (a)(3)(iii) or the
exemption in Sec. 2.1(a)(3)(vii), and persons exempted under these
provisions would not be affected by this proposal. Retailers exempted
under the retail pet store licensing exemption who sell the offspring
of their breeding females solely in face-to-face customer transactions
would not be affected by the proposed de minimis requirements,
regardless of the number of breeding females they maintain. However, to
make the regulations consistent with the amended Act, we are proposing
to remove in its entirety the $500 gross income exemption from
licensing currently in Sec. 2.1(a)(3)(ii). This exemption parallels
the exclusion we are proposing to remove from the definition of dealer
in Sec. 1.1. In its place, we would add language that exempts from
licensing any person whose business is determined by APHIS to be de
minimis in accordance with the proposed regulations in Sec. 2.1(a)(3).
We propose in a new Sec. 2.1(a)(3)(ix) to establish a de minimis
exemption for any person who maintains a total of four or fewer
breeding female dogs, cats, rabbits, hamsters, guinea pigs,
chinchillas, cows, goats, pigs, and sheep, and who sells, at retail or
wholesale, only the offspring of these animals, which were born and
raised on his or her premises, and is not otherwise required to obtain
a license. As is the case with the current licensing exemptions, this
de minimis exemption from licensing as a dealer would not extend to any
person residing in a household that collectively maintains a total of
more than four such breeding female animals, regardless of ownership,
nor to any person maintaining such breeding female animals on premises
on which more than four such breeding female animals are maintained,
nor to any person acting in concert with others where they collectively
maintain a total of more than four such breeding female animals,
regardless of ownership. The animals listed as eligible for the
proposed de minimis exemption were chosen because they are common
domesticated animals with a well-established history of known welfare
standards. Again, businesses already exempted under current licensing
exemptions would not be affected by this proposed exemption, nor would
sales of farm animals be affected if they are sold for the purpose of
improving animal nutrition, breeding, management, or production
efficiency, or for food or fiber.
Exhibitor Exemptions
As indicated above, we also propose to establish de minimis
thresholds for some businesses engaged in AWA-covered exhibition
activities. This action would exempt exhibitors considered to be de
minimis from licensing if they meet the proposed thresholds and relieve
them of the requirement to perform the reporting and recordkeeping
activities associated with licensing.
The de minimis thresholds we propose to include for exhibitors
would be 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 exhibition (as measured in
days). However, there are situations that preclude de minimis
consideration for certain exhibitors. In the Conference Report
accompanying the 2014 Farm Bill amendments to the Act, Congress
indicated that ``an exhibitor's business must not be considered de
minimis merely because the facility operates as a non-profit
corporation, nor is the exhibition of a small number of dangerous
animals (including, but not limited to, big cats, bears, wolves,
nonhuman primates, or elephants) de minimis.''
In a new Sec. 2.1(a)(3)(x), we would establish a de minimis
licensing exemption for people in a household who in total maintain
four or fewer dogs, cats, rabbits, hamsters, guinea pigs, chinchillas,
cows, goats, pigs, and sheep, for exhibition and who houses the animals
at a site for year-round exhibition, and is not otherwise required to
obtain a license. This exemption for a license as an exhibitor would
not extend to any person residing in a household that collectively
maintains a total of more than four such animals, regardless of
ownership, nor to any person maintaining such animals on premises on
which more than four such animals are maintained, nor to any person
acting in concert with others where they collectively maintain a total
of more than four such animals, regardless of ownership.
Based on our extensive knowledge and experience of animals used for
year-round exhibition purposes, we determined the threshold for this
exemption to be four, as exhibitors with a small number of common,
domesticated, non-dangerous animals are capable of providing adequate
care and treatment for the animals involved in regulated business
activities, based on compliance data on currently licensed exhibitors.
In a new Sec. 2.1(a)(3)(xi), we would also include de minimis
licensing exemptions for certain persons using animals in seasonal
exhibitions. The exemption would apply to 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
only, and who exhibits any or all of the animals for no more than 30
days per calendar year, and is not otherwise required to obtain a
license. This exemption would not extend to any person residing in a
household that collectively maintains a total of more than eight such
animals, regardless of ownership, nor to any person maintaining eight
such animals on premises on which more than eight such animals are
maintained, nor to any person acting in concert with others where they
collectively maintain a total of more than eight such animals,
regardless of ownership.
We determined the de minimis threshold for seasonal exhibition to
be eight common, domesticated, non-dangerous animals based on the fact
that, unlike animals exhibited year-round, animals exhibited seasonally
are displayed to the public for a minimal period of time (30 days or
less each year) during holiday seasons such as Easter, Halloween,
Thanksgiving, and Christmas.\9\
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\9\ Thirty days or less is consistent with the average number of
days when many exhibitors are displaying animals intermittently or
infrequently for limited duration (as measured in days). Examples of
such exhibitions include, but are not limited to, seasonal petting
zoos (e.g. exhibits open for Halloween or from Thanksgiving to
Christmas), college game mascots, magic shows, rabbits used for
photo shoots during Easter season (half hour sessions over a 2-3
week period; petting zoos with farm animals during pumpkin harvest
season (lasting less than 30 days), and nativity scenes during the
Christmas season (usually 21-30 days).
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[[Page 51390]]
We based our determination of 30 or fewer days for this exemption
on our experience with inspecting seasonal exhibitors holding a small
number of common, domesticated, non-dangerous animals, which indicates
that exhibitors with animals displayed to the public for 30 days or
less annually are capable of providing adequate care and treatment for
the animals involved in the exhibition.
Persons exhibiting regulated animals not included in the proposed
thresholds table would not be eligible for a de minimis exemption,
regardless of the duration (as measured in days) for which the animals
are exhibited. For example, camels, bison, and reindeer are sometimes
included in seasonal holiday exhibits, but their behavior and size set
them apart from common, non-dangerous domestic livestock displayed in
such exhibits, and under the regulations they are considered to be wild
or exotic species.
In 2013, Congress amended \10\ the definition of ``exhibitor'' in
the Act to exclude certain persons as exhibitors, namely ``any 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.'' In order to make the regulations
consistent with the Act, we propose to add this amendment to the list
of exclusions under the definition of ``exhibitor'' in Sec. 1.1 of the
regulations.
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\10\ See footnote 8.
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The exclusion from the definition of ``exhibitor'' under the Act is
only applicable to persons meeting all the criteria listed in the
amendment. Similarly, under our proposed revision of ``exhibitor'' in
the regulations, a person exhibiting other than a ``common,
domesticated household pet'' would not be eligible for the exclusion.
Also, persons who derive their primary source of income from exhibiting
the animals, or who generate a substantial amount of money from such
exhibition as determined by APHIS, would not be eligible for the
exclusion. We interpret ``less than a substantial portion of income''
in the Act to mean a minimal amount of money that the owner makes from
exhibiting animals. We interpret ``a nonprimary source'' to mean the
activity is not a full-time job or primary source of income.
Many persons eligible for this exclusion employ one or more common,
domesticated household pets in intermittent or infrequent exhibition,
such as brief film and television appearances. Based on the industry
pay rates for pet animal film work \11\ and on our experience from
working with small exhibitors, we determined that persons with four or
fewer common domesticated household pet animals that are exhibited
infrequently or intermittently generate a less than substantial portion
of income and therefore meet the requirements for the exclusion. By
being excluded from the definition of ``exhibitor'', they are not
required to be licensed.
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\11\ According to the Screen Actors Guild-American Federation of
Television and Radio Artists 2013 pay rate scale for background
actors, the average pay per background appearance in a film or
television production ranges from $39 to $224.
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Therefore, we propose to include a regulatory licensing exemption
in a new Sec. 2.1(a)(3)(xii) for any person who maintains a total of
four or fewer common, domesticated household pet animals, who uses them
for intermittent or infrequent 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. This exemption would not extend
to any person residing in a household that collectively maintains a
total of more than four pet animals, regardless of ownership, nor to
any person maintaining pet animals on premises on which more than four
pet animals are maintained, nor to any person acting in concert with
others where they collectively maintain a total of more than four pet
animals, regardless of ownership.
We determined the total number of animals for this exemption to be
four because our experience indicates that exhibitors who maintain and
exhibit four or fewer animals and those who exhibit resident pet
animals infrequently or intermittently (i.e., no more than 30 days per
year) for minimal amounts of money are capable of providing adequate
care and treatment for the animals involved in the regulated business
activities without Federal licensing and inspection requirements to
ensure animal welfare. Additionally, exhibitors with four or fewer
animals are less likely to generate a substantial income as a primary
source from exhibiting such animals compared to persons exhibiting with
larger numbers of animals as the primary source of income.
For easier reference, we also propose adding to the regulations a
new Sec. 2.1(a)(3)(xiii) that includes a summary table of the de
minimis threshold requirements included in paragraphs (a)(3)(ix)
through (a)(3)(xii).
The proposed thresholds are ultimately based on our experience that
businesses conducting AWA-regulated activities with the animals
indicated for each threshold present a minimal risk to animal welfare
and therefore do not require APHIS licensing and inspection. However,
the list of animals eligible for de minimis consideration is not
intended to be exhaustive. We encourage public comment on the proposed
exemption thresholds as they pertain to animal welfare and effects on
businesses engaged in the breeding, dealing, or exhibition of animals.
We also invite comments on the types of exhibition proposed in the
table, particularly with regard to types of animals and exhibition
business models that may not be represented here.
Miscellaneous
We are also proposing to amend the regulations to remove a
redundant provision. We would remove from Sec. 2.1(c)(2) the phrase
``and, in the case of a license renewal, the annual license fee has
been received by the appropriate Animal Care regional office on or
before the expiration date of the license.'' This phrase is unnecessary
because the same provision is repeated in paragraph (d)(1) of that
section. In addition, we are proposing to remove Sec. Sec. 3.28(b),
3.53(b), and 3.80(b)(1). These sections contain obsolete sheltering and
minimum space requirements for dogs, cats, guinea pigs, hamsters,
rabbits, and nonhuman primates that have been since replaced by updated
sheltering and minimum space requirements. Removal of the obsolete
requirements will minimize confusion with the current regulatory
requirements and will have no impact on facilities and animal welfare.
Similarly, we are revising Sec. 3.6(a)(2)(xii) to remove phase-in
dates which are no longer needed regarding primary enclosures for dogs
and cats.
Executive Orders 12866 and 13563 and Regulatory Flexibility Act
This proposed 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.
We have prepared an economic analysis for this rule. The economic
analysis provides a cost-benefit analysis, as required by Executive
Orders 12866 and 13563, and an initial regulatory flexibility analysis
that examines the
[[Page 51391]]
potential economic effects of this proposed rule on small entities, as
required by the Regulatory Flexibility Act. The economic analysis is
summarized below. Copies of the full analysis are available by
contacting the person listed under FOR FURTHER INFORMATION CONTACT or
on the Regulations.gov Web site (see ADDRESSES above for instructions
for accessing Regulations.gov).
A 2014 Farm Bill amendment to the Animal Welfare Act provides the
Secretary of Agriculture with the authority to determine when animal
dealers and exhibitors are not required to obtain a license under the
Act if the size of the business conducting AWA-related activities is
determined by the Secretary to be de minimis. Businesses considered to
be de minimis are capable of providing adequate care and treatment to
the animals involved in the regulated business activities without
Federal licensing and inspection requirements to ensure animal welfare.
This proposal would establish de minimis thresholds for businesses
engaged in breeding, selling, or exhibiting certain regulated animals
and include the thresholds in the regulations. We would measure
business size using various criteria, including number of breeding
female animals maintained, number of animals exhibited, and the
duration of exhibition (as measured in days). We are also amending the
AWA regulations in response to a 2013 amendment to the Act excluding
from the statutory definition of ``exhibitor'' owners of household pets
that are exhibited infrequently or intermittently, generate less than a
substantial portion of income, and reside exclusively with the owner.
Dealers and exhibitors operating at or below the thresholds determined
for their particular business activity would be exempted from Federal
licensing requirements established under the Animal Welfare Act. These
proposed actions would amend the regulations to be consistent with the
Act while continuing to ensure the humane care and treatment of
animals.
APHIS' experience indicates that exhibitors who maintain or
infrequently exhibit a small number of certain common non-dangerous
animals are capable of providing adequate care and treatment to the
animals involved in regulated business activities without Federal
licensing and inspection requirements to ensure animal welfare. Because
of the size of the business and their ability to provide adequate care
and treatment, we consider such businesses to be engaged in a de
minimis level of regulated activities. Establishing de minimis
thresholds for exclusion or exemption from the AWA licensing
requirements outlined in this proposal would allow APHIS to direct
inspection and enforcement efforts on larger businesses conducting such
activities.
By the very nature of this proposal, all entities that would be
affected are considered small. The entities most likely to be affected
by this proposal are businesses engaged in AWA-related exhibition
activities that have small numbers of regulated animals. This proposed
rule would relieve regulatory responsibilities for some currently
licensed entities and reduce 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 would no longer be subject to licensing, animal
identification, and recordkeeping requirements.
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 proposal spends about 10
hours annually to comply with the licensing paperwork and recordkeeping
requirements. All of the currently licensed entities that would be
considered de minimis under this proposal would benefit from reduced
costs for licensing, identification, and recordkeeping. We estimate
that approximately 212 currently licensed exhibitors, breeders, and
dealers would no longer require licensing following implementation of
this proposal (See the economic analysis for more detail on how we
estimated this). We estimate that the cost savings for all these
entities could total about $41,400 annually.
Based on our review of available information, APHIS does not expect
the proposed rule to have a significant economic impact on small
entities. We have prepared the initial regulatory flexibility analysis
because we need public input to help establish the total number of
entities that will be affected. While we have yet to determine the
total number of entities that would fall below the thresholds we
propose, those entities that do fall below the thresholds would benefit
from the rule. Those currently licensed entities that do not fall below
the thresholds would see no additional economic impact as a result of
this rule. In the absence of apparent significant economic impacts, we
have not identified alternatives 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 proposed 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. If a Tribe requests
consultation, APHIS will work with the Office of Tribal Relations to
ensure meaningful consultation is provided where changes, additions and
modifications identified herein are not expressly mandated by Congress.
Paperwork Reduction Act
This proposed rule contains no new 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 Parts 1, 2, and 3
Animal welfare, Marine mammals, Pets, Reporting and recordkeeping
requirements, Research, Transportation.
[[Page 51392]]
Accordingly, we propose to amend 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 as follows:
0
a. By revising the definition of dealer.
0
b. By revising the definition of exhibitor.
The revisions 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 for 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; or 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, and such term includes
carnivals, circuses, and zoos exhibiting such animals whether operated
for profit or not; but such term excludes retail pet stores, 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 country fairs, livestock shows,
rodeos, 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.
* * * * *
PART 2--REGULATIONS
0
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 as follows:
0
a. By revising paragraph (a)(3)(ii).
0
b. By adding paragraphs (a)(3)(ix) through (a)(3)(xiii).
0
c. By revising paragraph (c)(2).
The revisions and additions read as follows:
Sec. 2.1 Requirements and application.
(a) * * *
(3) * * *
(ii) Any person whose AWA-related business activity is determined
by APHIS to be de minimis in accordance with the regulations in this
section;
* * * * *
(ix) Any person who maintains a total of four or fewer breeding
female dogs, cats, rabbits, hamsters, guinea pigs, chinchillas, cows,
goats, pigs, and sheep, and who sells, at retail or wholesale, only the
offspring of these dogs, cats, rabbits, hamsters, guinea pigs,
chinchillas, cows, goats, pigs, and sheep, which were born and raised
on his or her premises, 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
breeding female dogs, cats, rabbits, hamsters, guinea pigs,
chinchillas, cows, goats, pigs, and sheep, regardless of ownership, nor
to any person maintaining breeding female dogs, cats, rabbits,
hamsters, guinea pigs, chinchillas, cows, goats, pigs, and sheep on
premises on which more than four breeding female dogs, cats, rabbits,
hamsters, guinea pigs, chinchillas, cows, goats, pigs, and sheep are
maintained, nor to any person acting in concert with others where they
collectively maintain a total of more than four breeding female dogs,
cats, rabbits, hamsters, guinea pigs, chinchillas, cows, goats, pigs,
and sheep, regardless of ownership.
(x) Any person who maintains a total of four or fewer dogs, cats,
rabbits, hamsters, guinea pigs, chinchillas, cows, goats, pigs, and
sheep, for exhibition and houses the animals permanently at the site
where they are exhibited year-round, 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
dogs, cats, rabbits, hamsters, guinea pigs, chinchillas, cows, goats,
pigs, and sheep, regardless of ownership, nor to any person maintaining
dogs, cats, rabbits, hamsters, guinea pigs, chinchillas, cows, goats,
pigs, and sheep on premises on which more than four dogs, cats,
rabbits, hamsters, guinea pigs, chinchillas, cows, goats, pigs, and
sheep are maintained, nor to any person acting in concert with others
where they collectively maintain a total of more than four dogs, cats,
rabbits, hamsters, guinea pigs, chinchillas, cows, goats, pigs, and
sheep, regardless of ownership.
(xi) 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, 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 eight dogs, cats, rabbits, hamsters, guinea pigs,
chinchillas, cows, goats, pigs, and sheep, regardless of ownership, nor
to any person maintaining eight dogs, cats, rabbits, hamsters, guinea
pigs, chinchillas, cows, goats, pigs, and sheep on premises on which
more than eight dogs, cats, rabbits, hamsters, guinea pigs,
chinchillas, cows, goats, pigs, and sheep are maintained, nor to any
person acting in concert with others where they collectively maintain a
total of more than eight dogs, cats, rabbits, hamsters, guinea pigs,
chinchillas, cows, goats, pigs, and sheep, regardless of ownership.
(xii) 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 be required to
obtain a license. This exemption would not extend to any person
residing in a household that collectively maintains a total of more
than four pet animals, regardless of ownership, nor to any person
maintaining pet animals on premises on which more than four pet animals
are maintained, nor to any person acting in concert with others where
they collectively maintain a total of more than four pet animals,
regardless of ownership.
(xiii) Following is a summary of the de minimis exemption
requirements for paragraphs (ix) to (xii) of this section:
[[Page 51393]]
Table 1--De Minimis Thresholds for Exemption From Licensing
----------------------------------------------------------------------------------------------------------------
De minimis thresholds (exempt from licensing if at
or below all indicated thresholds)
----------------------------------------------------
Animals Activity Maximum number of
Number of Number of days exhibited per
breeding total animals year (any or all
females animals exhibited)
----------------------------------------------------------------------------------------------------------------
Dogs, Cats, Rabbits, Hamsters, Breeding/selling retail 4 .............. NA.
Guinea pigs, Chinchillas, Cows, (unless covered by .............. .............. ...................
Goats, Pigs, Sheep. another exemption \1\). 4 .............. NA.
Breeding/selling
wholesale (unless
covered by another
exemption \2\).
Exhibition of all types .............. 4 No maximum.
(unless listed below).
Seasonal exhibition (for .............. 8 30 days.
example nativity scenes
and petting zoos
operating part of the
year).
Common, domesticated pet animals Infrequent or .............. 4 30 days.
living in owner's residence. intermittent
exhibitions (for
example, film and
television appearances,
team mascots, canine
disc competitions,
magic shows) from which
less than a substantial
portion of income from
a nonprimary source is
derived.
----------------------------------------------------------------------------------------------------------------
Farm animals bred, sold, exhibited, or otherwise used solely for agricultural purposes and animals used solely
for food or fiber are exempt from the licensing requirements of this section.
\1\ Includes retail businesses exempted under paragraphs (a)(3)(i) and (a)(3)(vii) of this section.
\2\ Includes wholesale businesses exempted under paragraph (a)(3)(iii) of this section.
* * * * *
(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 as follows:
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.
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. 3.28 [Amended]
0
7. Section 3.28 is amended as follows:
0
a. By removing paragraph (b).
0
b. By redesignating paragraph (c) as paragraph (b).
0
c. In the heading of newly redesignated paragraph (b), by removing the
words ``acquired on or after August 15, 1990''.
0
d. In newly redesignated paragraph (b)(2)(iii), by removing the words
``paragraph (c)(2)(iv)'' and adding the words ``paragraph (b)(2)(iv)''
in their place.
0
e. In newly redesignated paragraph (b)(3), by removing the words
``paragraph (c)(1) or (c)(2)'' and adding the words ``paragraph (b)(1)
or (b)(2)'' in their place.
Sec. 3.53 [Amended]
0
8. Section 3.53 is amended as follows:
0
a. By removing paragraph (b).
0
b. By redesignating paragraph (c) as paragraph (b).
0
c. In the heading of newly redesignated paragraph (b), by removing the
words ``acquired on or after August 15, 1990''.
0
d. In newly redesignated paragraph (b)(3), by removing the words
``paragraph (c)(2)'' and adding the words ``paragraph (b)(2)'' in their
place.
0
9. Section 3.80 is amended as follows:
0
a. By removing paragraph (b)(1).
0
b. By removing the paragraph (b)(2) introductory text.
0
c. By redesignating paragraphs (b)(2)(i), (b)(2)(ii), (b)(2)(iii), and
(b)(2)(iv), as paragraphs (b)(1), (b)(2), (b)(3), and (b)(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 paragraph (b)(2), by removing the words
``paragraph (b)(2)(i)'' and adding the words ``paragraph (b)(1)'' in
their place.
0
f. In newly redesignated paragraph (b)(4), by removing the words
``paragraph (b)(2)(i)'' and adding the words ``paragraph (b)(1)'' in
their place.
0
g. By revising paragraph (c).
The revision reads as follows:
Sec. 3.80 Primary enclosures.
* * * * *
(c) Innovative primary enclosures not precisely meeting the floor
area and height requirements provided in paragraph (b) of this section,
but that do provide nonhuman primates with a sufficient volume of space
and the opportunity to express species-typical behavior, may be used at
research facilities when approved by the Committee, and by dealers and
exhibitors when approved by the Administrator.
* * * * *
[[Page 51394]]
Done in Washington, DC, this 29th day of July 2016.
Edward Avalos,
Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 2016-18452 Filed 8-3-16; 8:45 am]
BILLING CODE 3410-34-P