[Federal Register Volume 73, Number 206 (Thursday, October 23, 2008)]
[Proposed Rules]
[Pages 63085-63090]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25289]
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Part 2
[Docket No. APHIS-2006-0159]
RIN 0579-AC69
Handling of Animals; Contingency Plans
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 regulations
to add requirements for contingency planning and training of personnel
by research facilities and by dealers, exhibitors, intermediate
handlers, and carriers. We are proposing these requirements because we
believe all licensees and registrants should develop
[[Page 63086]]
a contingency plan for all animals regulated under the Animal Welfare
Act in an effort to better prepare for potential disasters. This action
would heighten the awareness of licensees and registrants regarding
their responsibilities and help ensure a timely and appropriate
response should an emergency or disaster occur.
DATES: We will consider all comments that we receive on or before
December 22, 2008.
ADDRESSES: You may submit comments by either of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2006-0159 to submit or view comments and
to view supporting and related materials available electronically.
Postal Mail/Commercial Delivery: Please send two copies of
your comment to Docket No. APHIS-2006-0159, Regulatory Analysis and
Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118,
Riverdale, MD 20737-1238. Please state that your comment refers to
Docket No. APHIS-2006-0159.
Reading Room: You may read any comments that we receive on this
docket in our reading room. The reading room 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) 690-2817 before coming.
Other Information: Additional information about APHIS and its
programs is available on the Internet at http://www.aphis.usda.gov.
FOR FURTHER INFORMATION CONTACT: Dr. Jodie Kulpa-Eddy, Staff
Veterinarian, Animal Care, APHIS, 4700 River Road Unit 84, Riverdale,
MD 20737; (301) 734-7833.
SUPPLEMENTARY INFORMATION:
Background
Under the Animal Welfare Act (AWA) (7 U.S.C. 2131 et seq.), the
Secretary of Agriculture is authorized to promulgate standards and
other requirements governing the humane handling, care, treatment, and
transportation of certain animals by dealers, research facilities,
exhibitors, operators of auction sales, carriers, and intermediate
handlers. Regulations established under the AWA are contained in the
Code of Federal Regulations (CFR) in 9 CFR parts 1 and 2, and 9 CFR
part 3 contains standards for the humane handling, care, treatment, and
transportation of animals covered by the AWA. Part 3 consists of
subparts A through E, which contain specific standards for dogs and
cats, guinea pigs and hamsters, rabbits, nonhuman primates, and marine
mammals, respectively, and subpart F, which sets forth general
standards for warmblooded animals not otherwise specified.
The only requirement for contingency planning by licensees and
registrants currently in the regulations is located in Sec. 3.101(b),
which covers water and power supply requirements at facilities housing
marine mammals. Specifically, this section requires facilities to
submit written contingency plans to the Deputy Administrator of Animal
Care (AC) regarding emergency sources of water and electric power
should primary sources fail. Among other things, the plans must include
evacuation plans in the event of a disaster and a description of backup
systems and/or arrangements for relocating marine mammals requiring
artificially cooled or heated water.
Following the events experienced during the 2005 hurricane season,
a Federal document, ``The Federal Response to Katrina: Lessons
Learned,'' which can be found on the Internet at http://www.whitehouse.gov/reports/katrina-lessons-learned/, was published that
highlighted the need for planning to minimize the impact of disasters.
AC's experience indicates that, although contingency planning would
benefit the health and welfare of animals covered by the AWA, at least
some entities responsible for regulated animals have not undertaken
such planning. Therefore, we believe all licensees and registrants
should be required to develop a contingency plan for all animals
regulated under the AWA in an effort to better prepare for potential
disasters. We are proposing to add requirements for contingency plans,
and training of personnel regarding their roles and responsibilities,
to a new Sec. 2.38(l) for research facilities and to a new Sec. 2.134
for dealers, exhibitors, intermediate handlers, and carriers. For
marine mammal facilities, these proposed requirements would be in
addition to the requirements of Sec. 3.101(b) mentioned above.
The regulations in current Sec. 2.38(i) allow a person or premises
to be designated as a recognized animal site for holding animals in
lieu of a research facility, if the research facility obtains prior
approval of the AC Regional Director. Likewise, the regulations in
Sec. 2.102 allow a person or premises to be designated as a recognized
animal site for holding animals in lieu of a dealer, exhibitor, or
intermediate handler if the dealer, exhibitor, or intermediate handler
obtains prior approval of the AC Regional Director. We would also amend
these provisions to require that any site so designated either be
directly included in the contingency plan of the research facility,
dealer, exhibitor, or intermediate handler or develop its own
contingency plan in accordance with the regulations for research
facilities, dealers, exhibitors, or intermediate handlers.
Due to the fact that the individual circumstances for facilities
may be different (e.g., holding exotic animals versus pet animals,
being situated in a State with a cold climate versus a temperate
climate, etc.), it is difficult to go into specific detail as to what
elements must be included in all contingency plans. However, we are
proposing a set of general criteria to which contingency plans would
have to adhere. These criteria would require licensees and registrants
to develop contingency plans that:
Identify situations the facility might experience that
would trigger the need for a contingency plan, including emergencies
such as electrical outages, faulty HVAC systems, fires, and animal
escapes, as well as natural disasters the facility is most likely to
experience. Listings of areas most at risk for specific natural
disasters can be found on the U.S. Geological Survey Web site at http://www.usgs.gov/hazards or on the Weather Channel Web site at http://www.weather.com/ready/?from=secondarynav.
Outline specific tasks required to be carried out in
response to the identified emergencies including, but not limited to,
detailed animal evacuation instructions or shelter-in-place
instructions and provisions for providing backup sources of food and
water as well as sanitation, ventilation, bedding, veterinary care,
etc.
Identify a chain of command and who (by name or by
position title) will be responsible for fulfilling these tasks.
Address how response and recovery will be handled in terms
of materials, resources, and training needed.
We are also considering the development of a guidance document (or
other means) to provide examples of elements that may be included in
contingency plans. We welcome public comment on Web sites, articles, or
other sources that may be used to develop such guidance, in addition to
suggestions as to what elements should be included as examples for an
adequate contingency plan. We would retain the specific requirements in
Sec. 3.101(b) that are applicable to marine mammals.
[[Page 63087]]
We are further proposing that the plans be made available to APHIS
upon request and, in the case of research facilities, to any funding
Federal agency representatives. Contingency plans would have to be in
place 180 days after any final rule following this proposal became
effective and would have to be reviewed by the research facility,
dealer, exhibitor, intermediate handler, or carrier on at least an
annual basis. Training of personnel would have to take place within 60
days following the adoption of a contingency plan by the research
facility, dealer, exhibitor, intermediate handler, or carrier.
Employees hired within 30 days or less after adoption of the
contingency plan would be included in the training period taking place
within 60 days following adoption of the contingency plan. For
employees hired more than 30 days after adoption of the contingency
plan, training would have to be conducted within 30 days of their start
date. Training of personnel could be developed and offered by the
research facility, dealer, exhibitor, intermediate handler, or carrier
or provided by an outside entity.
Each research facility, dealer, exhibitor, intermediate handler, or
carrier would be expected to review its contingency plan on at least an
annual basis to ensure their plan adequately addresses the four
criteria listed above. For licensees and registrants who travel with
animals or have multiple sites where animals are maintained, their
contingency plans would have to address potential hazards for all areas
where the animals are maintained for regulated purposes. Any changes to
a contingency plan resulting from the annual review would have to be
communicated to employees through training, which would have to be
conducted within 30 days of making the changes. The plan would also be
reviewed by APHIS personnel as a part of the routine inspection process
(similar to the process for our review of dog exercise and nonhuman
primate environment enhancement plans).
Executive Order 12866 and Regulatory Flexibility Act
This rule has been reviewed under Executive Order 12866. This 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.
For this proposed rule, we have prepared an economic analysis,
which is summarized below. The analysis includes an initial regulatory
flexibility analysis that considers the potential economic effects of
the proposed rule on small entities as required by the Regulatory
Flexibility Act, and a cost-benefit analysis as required by Executive
Order 12866. The full economic analysis may be viewed on the
Regulations.gov Web site or in our reading room (see ADDRESSES above
for instructions for accessing Regulations.gov). The full analysis may
also be obtained from the person listed under FOR FURTHER INFORMATION
CONTACT.
Lack of disaster preparedness can leave businesses and
organizations and the animals in their care vulnerable, as was the case
in the southern United States in 2005. The devastating impact of the
2005 hurricane season, in particular the many animals that were
stranded and died in the aftermath of Hurricane Katrina, underscores
the need for contingency planning for all animals covered under the
Animal Welfare Act. Regulated animal populations, in addition to non-
regulated animal populations, suffered as a result of the hurricane. In
one particular instance, 90 percent of the animals left in a facility
after personnel were evacuated either died or had to be humanely
euthanized.
In 2004, USDA's Animal Care reported 1,101,958 animals, including
dogs, cats, guinea pigs, nonhuman primates, hamsters, and rabbits, were
used by registered research facilities (http://www.aphis.usda.gov/animal_welfare/publications_and_reports.shtml). This does not
include regulated animals in zoos and other types of facilities. This
high number of animals used by research facilities illustrates the need
for contingency plans to protect animals and mitigate impacts of
natural and manmade disasters.
Currently, only facilities that house marine mammals are required
under the regulations to develop contingency plans. The proposed rule
would require that all licensees and registrants, of which there are
more than 10,000, develop and document contingency plans for all other
animals covered under the Act. In addition, training and
familiarization with these plans would have to be provided to all
facility employees.
The proposed requirements may affect research facilities, dealers,
exhibitors, intermediate handlers, and carriers that fall into nine
categories of the North American Industry Classification System
(NAICS). For the purposes of this analysis, the potentially affected
entities are classified within the following industries: All Other
Animal Production (NAICS 112990), Pet and Pet Supplies Stores (NAICS
453910),\1\ Schedule Freight Transport (NAICS 48112), Research and
Development in Physical Engineering and Life Sciences (NAICS 541710),
Veterinary Services (NAICS 541940), Zoos and Botanical Gardens (NAICS
712130), Nature Park and Other Similar Institutions (NAICS 712190),
Environment Conservation and Wildlife Organizations (NAICS 813312), and
Pet Care Services (NAICS 812910). Data are unavailable on the size of
the specific entities, but we may assume that the majority of the
establishments that would be affected by the rule are small, based on
the industry estimates obtained from the Economic Census and the Census
of Agriculture.
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\1\ Businesses are included in this category if they deal in
exotic pets such as primates.
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In terms of economic impacts, we anticipate that the proposed
changes would only impose minimal costs to develop and document the
contingency plans and provide employee training. This is because the
cost of training for facility personnel is expected to vary depending
on the type and size of business and many of the larger facilities, in
particular, already have contingency plans in place. In addition, there
is a wealth of information available from various Federal and State
agencies and private organizations that addresses animal disaster
planning. A list of resources that may aid in the development and
implementation of contingency plans is included in the full economic
analysis.
We do not have any estimates of the costs of implementing
contingency plans for facilities that do not already have contingency
plans in place, such as the costs of equipment or materials that may be
needed. We welcome public comment on the types of equipment or
materials that may be needed to implement contingency plans and the
costs of this equipment or materials.
Significant Alternatives to the Rule
One alternative to the rule would be to require that all licensees
and registrants submit their contingency plans to APHIS for review, as
is required for the marine mammal facilities. There are more than
10,000 licensees and registrants that would be submitting plans for
review under this alternative, which we expect would take an enormous
amount of resources for the Agency to process, review, and store.
Another alternative would be to retain the status quo, i.e., not amend
the regulations to require regulated entities other than marine mammal
facilities to prepare contingency plans. However, we believe that this
alternative would
[[Page 63088]]
not provide adequate protection for the general public and the animals
in these facilities. Thus, the approach we are proposing in this
document, which would ensure that contingency plans are developed and
can be reviewed by APHIS during scheduled inspection visits or at other
times, is preferred.
Summary
Preparedness for disasters can reduce harm caused to animals and
loss of life. The devastating impact of the 2005 hurricane season
underscores the need for contingency planning for all animals covered
under the Animal Welfare Act. Currently, only facilities that house
marine mammals are required under 9 CFR 3.101 to develop contingency
plans. The proposed rule would require that all licensees and
registrants develop and document contingency plans for all other
animals covered under the Act. In addition, training and
familiarization with these plans would be provided to all facility
employees. The licensees and registrants fall into various categories
of the North American Industry Classification System and while no
economic data are available on business size for the specific entities,
we may assume the majority of the establishments are small, based on
the industry estimates obtained from the Economic Census and the Census
of Agriculture. In terms of economic impacts, we anticipate that the
proposed rule would only impose minimal costs to develop and document
the contingency plans and provide employee training. The cost of
training for facility personnel is expected to vary depending on the
type and size of business. Many of the larger facilities, in
particular, already have contingency plans in place. Overall, we do not
anticipate a substantial economic impact on the entities affected.
Nevertheless, APHIS welcomes public comment on the proposed rule's
possible impacts, including the cost of implementing contingency plans.
Executive Order 12372
This program/activity is listed in the Catalog of Federal Domestic
Assistance under No. 10.025 and is subject to Executive Order 12372,
which requires intergovernmental consultation with State and local
officials. (See 7 CFR part 3015, subpart V.)
Executive Order 12988
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. It is not intended to have retroactive effect.
This rule would not preempt any State or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule. The Act does not provide administrative procedures which must be
exhausted prior to a judicial challenge to the provisions of this rule.
Paperwork Reduction Act
In accordance with section 3507(d) of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), the information collection or
recordkeeping requirements included in this proposed rule have been
submitted for approval to the Office of Management and Budget (OMB).
Please send written comments to the Office of Information and
Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington,
DC 20503. Please state that your comments refer to Docket No. APHIS-
2006-0159. Please send a copy of your comments to: (1) Docket No.
APHIS-2006-0159, Regulatory Analysis and Development, PPD, APHIS,
Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238,
and (2) Clearance Officer, OCIO, USDA, room 404-W, 14th Street and
Independence Avenue, SW., Washington, DC 20250. A comment to OMB is
best assured of having its full effect if OMB receives it within 30
days of publication of this proposed rule.
The proposed rule would amend the current regulations and would
require all licensees and registrants, which include research
facilities, dealers, exhibitors, intermediate handlers, and carriers,
to develop and document contingency plans for the handling of animals
during all emergencies or disasters.
These criteria would require licensees and registrants to develop
contingency plans that:
Identify situations the facility might experience that
would trigger the need for a contingency plan, including emergencies
such as electrical outages, faulty HVAC systems, fires, and animal
escapes, as well as natural disasters the facility is most likely to
experience.
Outline specific tasks required to be carried out in
response to the identified emergencies or disasters including, but not
limited to, detailed animal evacuation instructions or shelter-in-place
instructions and provisions for providing backup sources of food and
water as well as sanitation, ventilation, bedding, veterinary care,
etc.
Identify a chain of command and who (by name or by
position title) will be responsible for fulfilling these tasks.
Address how response and recovery will be handled in terms
of materials, resources, and training needed.
We are further proposing that the plans be made available to APHIS
upon request and, in the case of research facilities, to any funding
Federal agency representatives. Contingency plans would have to be in
place 180 days after any final rule following this proposal became
effective and would have to be reviewed by the research facility,
dealer, exhibitor, intermediate handler, or carrier on at least an
annual basis.
We are soliciting comments from the public (as well as affected
agencies) concerning our proposed information collection and
recordkeeping requirements. These comments will help us:
(1) Evaluate whether the proposed information collection is
necessary for the proper performance of our agency's functions,
including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the
proposed information collection, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the information collection on those who
are to respond (such as through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology; e.g., permitting electronic
submission of responses).
Estimate of burden: Public reporting burden for this collection of
information is estimated at 4 to 6 hours (average 5 hours) per
response.
Respondents: Dealers, exhibitors, research facilities, carriers and
intermediate handlers.
Estimated annual number of respondents: 10,351.
Estimated annual number of responses per respondent: 1.
Estimated annual number of responses: 10,351.
Estimated total annual burden on respondents: 51,755 hours. (Due to
averaging, the total annual burden hours may not equal the product of
the annual number of responses multiplied by the reporting burden per
response.)
Copies of this information collection can be obtained from Mrs.
Celeste Sickles, APHIS' Information Collection Coordinator, at (301)
851-2908.
E-Government Act Compliance
The Animal and Plant Health Inspection Service is committed to
compliance with the E-Government 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
[[Page 63089]]
E-Government Act compliance related to this proposed rule, please
contact Mrs. Celeste Sickles, APHIS' Information Collection
Coordinator, at (301) 851-2908.
List of Subjects in 9 CFR Part 2
Animal welfare, Pets, Reporting and recordkeeping requirements,
Research.
Accordingly, we propose to amend 9 CFR part 2 as follows:
PART 2--REGULATIONS
1. The authority citation for part 2 continues to read as follows:
Authority: 7 U.S.C. 2131-2159; 7 CFR 2.22, 2.80, and 371.7.
2. Section 2.38 is amended by adding new paragraphs (i)(4) and (l)
to read as follows:
Sec. 2.38 Miscellaneous.
* * * * *
(i) * * *
(4) The other person or premises must either be directly included
in the research facility's contingency plan required under paragraph
(l) of this section or must develop its own contingency plan in
accordance with paragraph (l) of this section.
* * * * *
(l) Contingency planning. (1) Research facilities must develop,
document, and follow an appropriate plan to provide for the humane
handling, treatment, transportation, housing, and care of their animals
in the event of an emergency or disaster (one which could reasonably be
anticipated and expected to be detrimental to the good health and well-
being of the animals in their possession). Such contingency plans must:
(i) Identify situations the facility might experience that would
trigger the need for a contingency plan, including emergencies such as
electrical outages, faulty HVAC systems, fires, and animal escapes, as
well as natural disasters the facility is most likely to experience.
(ii) Outline specific tasks required to be carried out in response
to the identified emergencies or disasters including, but not limited
to, detailed animal evacuation instructions or shelter-in-place
instructions and provisions for providing backup sources of food and
water as well as sanitation, ventilation, bedding, veterinary care,
etc.;
(iii) Identify a chain of command and who (by name or by position
title) will be responsible for fulfilling these tasks; and
(iv) Address how response and recovery will be handled in terms of
materials, resources, and training needed.
(2) The contingency plan must be in place by [date 180 days after
effective date of final rule]. This plan must be made available to
APHIS and any funding Federal agency representatives upon request. The
plan must be reviewed by the research facility on at least an annual
basis to ensure that it adequately addresses the criteria listed in
paragraph (l)(1) of this section. Facilities maintaining or otherwise
handling marine mammals in captivity must also comply with the
requirements of Sec. 3.101(b) of this subchapter.
(3) The facility must provide and document participation in and
successful completion of training for its personnel regarding their
roles and responsibilities as outlined in the plan. Training of
facility personnel must be completed within 60 days of the adoption
date required under paragraph (l)(2) of this section; employees hired
30 days or less after that date must also be trained within that 60-day
period. For employees hired more than 30 days after adoption of the
contingency plan, training must be conducted within 30 days of their
start date. Any changes to the plan as a result of the annual review
must be communicated to employees through training which must be
conducted within 30 days of making the changes.
3. Section 2.102 is amended by adding new paragraphs (a)(4) and
(b)(3) to read as follows:
Sec. 2.102 Holding facility.
(a) * * *
(4) The other person or premises must either be directly included
in the dealer's or exhibitor's contingency plan required under Sec.
2.134 or must develop its own contingency plan in accordance with Sec.
2.134.
* * * * *
(b) * * *
(3) The other person or premises must either be directly included
in the intermediate handler's contingency plan required under Sec.
2.134 or must develop its own contingency plan in accordance with Sec.
2.134.
4. A new section Sec. 2.134 is added to read as follows:
Sec. 2.134 Contingency planning.
(a) Dealers, exhibitors, intermediate handlers, and carriers must
develop, document, and follow an appropriate plan to provide for the
humane handling, treatment, transportation, housing, and care of their
animals in the event of an emergency or disaster (one which could
reasonably be anticipated and expected to be detrimental to the good
health and well-being of the animals in their possession). Such
contingency plans must:
(1) Identify situations the facility might experience that would
trigger the need for a contingency plan, including emergencies such as
electrical outages, faulty HVAC systems, fires, and animal escapes, as
well as natural disasters the facility is most likely to experience;
(2) Outline specific tasks required to be carried out in response
to the identified emergencies or disasters including, but not limited
to, detailed animal evacuation instructions or shelter-in-place
instructions and provisions for providing backup sources of food and
water as well as sanitation, ventilation, bedding, veterinary care,
etc.;
(3) Identify a chain of command and who (by name or by position
title) will be responsible for fulfilling these tasks; and
(4) Address how response and recovery will be handled in terms of
materials, resources, and training needed.
(b) The contingency plan must be in place by [date 180 days after
effective date of final rule]. This plan must be made available to
APHIS upon request. The plan must be reviewed by the dealer, exhibitor,
intermediate handler, or carrier on at least an annual basis to ensure
that it adequately addresses the criteria listed in paragraph (a) of
this section. Dealers, exhibitors, intermediate handlers, and carriers
maintaining or otherwise handling marine mammals in captivity must also
comply with the requirements of Sec. 3.101(b) of this subchapter.
(c) Dealers, exhibitors, intermediate handlers, and carriers must
provide and document participation in and successful completion of
training for personnel regarding their roles and responsibilities as
outlined in the plan. Training of dealer, exhibitor, intermediate
handler, and carrier personnel must be completed within 60 days of the
adoption date required under paragraph (b) of this section. Employees
hired 30 days or less after that date must also be trained within that
60-day period. For employees hired more than 30 days after adoption of
the contingency plan, training must be conducted within 30 days of
their start date. Any changes to the plan as a result of the annual
review must be communicated to employees through training which must be
conducted within 30 days of making the changes.
[[Page 63090]]
Done in Washington, DC, this 17th day of October 2008.
Bruce Knight,
Under Secretary for Marketing and Regulatory Programs.
[FR Doc. E8-25289 Filed 10-22-08; 8:45 am]
BILLING CODE 3410-34-P