Docket Clerk
U.S. Department of Agriculture
Regulatory Analysis and Development, PPD
APHIS, Suite 3C03
4700 River Road
Unit 118 Riverdale, MD 20737-1238
Re: Docket Nos. 95-100-1 (Humane Treatment of Dogs and Cats; Wire Flooring), and 95-078-1 (Humane Treatment of Dogs and Cats; Tethering and Temperature Requirements); Initial Regulator Flexibility Analyses.
Dear Docket Clerk:
On July 2, 1996, the Animal Plant Health Inspection Service (APHIS) published two proposed rules dealing with the humane treatment of dogs and cats. One seeks to require the industry to use only plastic-coated wire flooring in cages or pens (60 Fed. Reg. 34, 389), and the other seeks to set maximum temperature requirements and to prohibit the use of tethering as a means of restraint (60 Fed. Reg. 34,386). The rule will likely affect many transporters, pet store owners, breeders, trainers, kennels, etc.--the majority of which are small entities.
The Office of Advocacy is statutorily required to monitor agency compliance with the Regulatory Flexibility Act (RFA). 5 U.S.C. §612(a). Upon review of the proposed rule, the Office of Advocacy would like to comment on the initial regulatory flexibility analyses contained in the rules.
First, the Office of Advocacy would like to commend APHIS for performing IRFAs for the proposed rules--even though there was insufficient data to determine whether there would be a significant impact on a substantial number of small entities. Nevertheless, the IRFAs fall short of what is required by the RFA.
Prior to issuing a final rule, APHIS should indicate the scope of the problem. Although precise data on the number of entities affected may not be available, APHIS should indicate approximately what number or percentage of dogs and cats have been injured under the current standards. During APHIS inspections, how frequently did temperatures exceed 90 degrees fahrenheit; how frequently did the animals injure their paws on wire flooring--as opposed to mouth injuries from wire siding; and, how frequently were the animals injured as a result of tethering? Without knowledge of the scope of the problem, it is difficult to determine the utility or impact of the regulation.
In addition, for both regulations, APHIS studies only two alternatives--the rule as proposed in the first instance, and no changes to the present regulations in the second. This all or nothing approach is not an adequate basis upon which to fashion a regulation. Other viable alternatives should be studied. For instance, would a flexible tether reduce injuries and result in a more humane restraint system? Does the animal-to-caretaker ratio have a direct impact on the number of injuries? In other words, are the injuries due more to neglect than tethering or wire cages? In any event, there should be evidence of a consultative process with the affected industry prior to publication of the final rule.
The Office of Advocacy believes that APHIS has acted prudently by soliciting comments to determine the impact of the proposed rule. However, APHIS should articulate with greater precision the scope of the problem. In addition, other regulatory alternatives should be considered. In the long run, this will save the agency time and produce a better rule.
Please do not hesitate to contact me, or Ms. Shawne Carter of my staff, if we can assist you in crafting this regulation, 202-205- 6532.
Sincerely,
Jere W. Glover
Chief Counsel for Advocacy
Shawne M. Carter
Assistant Chief Counsel for Advocacy