Handling of Animals; Contingency Plans

AGENCY:

Animal and Plant Health Inspection Service, USDA.

ACTION:

Proposed rule.

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 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 § 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 § 2.38(l) for research facilities and to a new § 2.134 for dealers, exhibitors, intermediate handlers, and carriers. For marine mammal facilities, these proposed requirements would be in addition to the requirements of § 3.101(b) mentioned above.

The regulations in current § 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 § 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 § 3.101(b) that are applicable to marine mammals.

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), 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.

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 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 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: