UPSDA Final Tethering Rule (con't)

A few commenters said that tethering is used to train hunting dogs and should be allowed for this purpose. At the present time, the breeding or training of hunting dogs is not a regulated activity. Therefore, the activities of hunting dog breeders and trainers would not be affected by this rule. If we determine that standards should be promulgated for the care of hunting dogs by breeders, we will publish a proposal in the Federal Register.

One commenter requested that tethering be permitted with the recommendation of a veterinarian. We would like to emphasize that we are only prohibiting the use of permanent tethering as a means of primary enclosure. Temporarily tethering a dog due to health or other reasons would be permitted under this rule if the licensee obtains the approval of APHIS.

Several commenters said that if tethering is harmful to dogs housed by licensed breeders and dealers, then it is harmful to all dogs. The commenters said that we should extend the regulation to prohibit tethering of dogs housed by humane societies, pounds, individual pet owners, and hunting breed producers. While we agree with commenters that all dogs should be treated in a humane manner, we are not making any changes to the rule in response to these comments. The AWA authorizes our agency to promulgate standards and other requirements governing the humane handling, housing, care, treatment, and transportation of certain animals by dealers, research facilities, exhibitors, and carriers and intermediate handlers.
The AWA does not authorize us to promulgate standards for the care of animals by humane societies, pounds, or individual pet owners. Requirements for the care of animals owned by individuals, and for the enforcement of animal control laws, are under State or local authority. Further, as stated previously in this document, the breeding or training of hunting dogs is not a regulated activity at the present time. If we determine that standards should be promulgated for the care of hunting dogs by breeders, we will publish a proposal in the Federal Register.

One commenter recommended several additional amendments to the regulations concerning primary enclosures. The recommendations include requiring that all dogs have an indoor housing facility and an outdoor run, revising the formula for calculating the required enclosure size, adopting stricter sanitation requirements, requiring that psychological enrichments such as toys and human companionship be provided to dogs housed in licensed facilities, and adding additional exercise requirements. This comment requests amendments that are outside the scope of the proposed regulation. However, we will consider the comment as a request for additional rulemaking. If we decide to make any changes to the regulations in response to this request, we will publish a proposed rule in the Federal Register.

One comment addressed the Initial Regulatory Flexibility Analysis that appeared in the proposed rule. We have addressed this comment as part of the Final Regulatory Flexibility Analysis that appears later in this document.

Therefore, based on the rationale set forth in the proposed rule and in this document, we are adopting the provisions of the proposal as a final rule with the changes discussed in this document.

Executive Order 12866 and Regulatory Flexibility Act

This rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

This document makes final part of a proposed rule published in the Federal Register on July 2, 1996 (61 FR 34386-34389, Docket no. 95-078-1). As part of the proposed rule document, we performed an Initial Regulatory

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Flexibility Analysis, in which we invited comments concerning potential economic effects of the proposed rule. We received one comment on the proposed rule that addressed our Initial Regulatory Flexibility Analysis. This comment is discussed below. However, the comment did not specifically offer information on the potential economic effects that prohibiting tethering as a means of primary enclosure would have on small entities.

Therefore, we have based this Final Regulatory Flexibility Analysis on the
data available to us.

The part of the proposed rule we are making final will eliminate
permanent tethering as a means of primary enclosure for dogs in facilities
licensed or registered under the Animal Welfare Act. We are taking this
action because our experience in enforcing the Animal Welfare Act has led
us to conclude that permanently tethering a dog as a means of primary
enclosure is not a humane practice that is in the animal's best interests.
The comment we received on the Initial Regulatory Flexibility Analysis
said that the analysis falls short of what needs to be included in a
Regulatory Flexibility Analysis. Specifically, the commenter said that the
analysis should discuss other alternatives to the proposal, such as
requiring a flexible tether; should show evidence of a consultative process
with the affected industry; should address how frequently inspectors find
dogs to be injured as a result of tethering; and should explore whether or
not most injuries are due more to neglect than to a tether. We have made no
changes to the proposed rule based on this comment. However, we have tried
to address the commenters concerns in this final analysis.
As we stated in the Initial Regulatory Flexibility Analysis, there is
no information available on the actual number of Class A and Class B
licensed dog dealers who use tethering as a means of primary enclosure.
Neither do we have any data on the frequency of injuries due to tethers.
However, our inspectors report that permanently tethering a dog as a means
of primary enclosure is rare among licensed dealers. Kennels and cages are
currently the preferred means of primary enclosure, with tethering
sometimes used as a temporary restraint. In addition, permanent tethering
is no longer a generally accepted practice within the dog dealer industry,
and some industry groups prohibit their members from using tethering as a
means of permanent restraint.
It is also the experience of APHIS inspectors that, when used as a
means of primary enclosure, permanent tethering is not a humane practice
that is in the animal's best interests. A dog permanently attached to a
tether is significantly restricted in its movement. A tether can also
become tangled around or hooked on the dog's shelter structure or other
objects, further restricting the dog's movement and potentially causing
injury. It is possible that most injuries from tethers are, in part, due to
a dog being unsupervised for long periods of time while on the tether.
Prohibiting the use of a permanent tether as a means of primary enclosure
for dogs will minimize the likelihood that a dog would be left unsupervised
for extended periods of time while on a tether, thus reducing the
likelihood of injury.
One comment that we have already addressed in the ``Background''
section of this final rule suggests an alternative to the proposal, and we
have considered this suggestion. The suggested alternative was to allow
tethering as primary enclosure if the tether is equipped with a swivel. We
do not believe that a tether with a swivel on the end, a flexible tether,
or other such devices would significantly improve the safety of a permanent
tether. Such devices may improve the mobility of the dog, but the
possibility would still remain for the tether to become tangled around
objects within the dog's range, especially over extended periods of time.
This rule will primarily affect Class A and Class B licensed dog
dealers. As stated previously in this analysis, there is no information
available on the actual number of Class A and Class B licensed dog dealers
who use permanent tethering as a means of primary enclosure. Over 95
percent of Class A and Class B licensed dog dealers are considered small
businesses. We do not expect the elimination of permanent tethering as a
means of primary enclosure to have a significant impact on dog dealers,
large or small, because permanent tethering as a means of primary enclosure
is rarely, if ever, utilized by Class A and Class B licensed dog dealers.
We also do not expect the elimination of permanent tethering as a means of
primary enclosure to have a signficant impact on exhibitors, carriers,
intermediate handlers, or research facilities because permanent tethering
is practically never used by these regulated entities.
This rule contains a reporting and recordkeeping requirement.
Specifically, this rule requires licensees to obtain approval from APHIS
before they may temporarily tether a dog.

Executive Order 12372

This program/activity is listed in the Catalog of Federal Domestic
Assistance under No. 10.025 and is subject to Executive Order 12372, which
requires intergovernmental consultation with State and local officials.
(See 7 CFR part 3015, subpart V.)

Executive Order 12988

This final rule has been reviewed under Executive Order 12988, Civil
Justice Reform. It is not intended to have retroactive effect. This rule
would not preempt any State or local laws, regulations, or policies, unless
they present an irreconcilable conflict with this rule. The Act does not
provide administrative procedures which must be exhausted prior to a
judicial challenge to the provisions of this rule.

Paperwork Reduction Act

The proposed rule that preceded this final rule contained no
information collection or recordkeeping requirements. However, this final
rule contains an information collection requirement that was not included
in the proposed rule. Specifically, this final rule requires licensees to
obtain approval from APHIS before they may temporarily tether a dog.
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 final rule have been submitted for approval
to the Office of Management and Budget (OMB). When OMB notifies us of its
decision, we will publish a document in the Federal Register providing
notice of the assigned OMB control number or, if approval is denied,
providing notice of what action we plan to take.
Estimate of burden: Public reporting burden for this collection of
information is estimated to average .5 hours per response.
Respondents: 10.
Estimated number of responses per respondent: 2.0.
Estimated total annual burden on respondents: 10 hours.

List of Subjects

9 CFR Part 1

Animal welfare, Pets, Reporting and recordkeeping requirements, Research.

9 CFR Part 3

Animal welfare, Marine mammals, Pets, Reporting and recordkeeping
requirements, Research, Transportation.

Accordingly, 9 CFR parts 1 and 3 are amended as follows:

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PART 1--DEFINITION OF TERMS

1. The authority citation for part 1 continues to read as follows:

Authority: 7 U.S.C. 2131-2159; 7 CFR 222, 2.80, and 371.2(g).

2. In Sec. 1.1, the definition for primary enclosure is revised to read
as follows: