Thresholds for De Minimis Activity and Exemptions From Licensing Under the Animal Welfare Act, 25549-25555 [2018-11892]

Agencies

• DEPARTMENT OF AGRICULTURE
• Animal and Plant Health Inspection Service

[Federal Register Volume 83, Number 107 (Monday, June 4, 2018)]
[Rules and Regulations]
[Pages 25549-25555]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-11892]


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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: Final rule.

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SUMMARY: We are amending the Animal Welfare Act (AWA) regulations to 
implement amendments to the Act that broadened the scope of the 
exemptions from the licensing requirements for dealers and exhibitors. 
Specifically, we are broadening the licensing exemption for any person 
who maintains four or fewer breeding female dogs, cats, and/or small 
exotic or wild mammals and only sells the offspring of these animals 
for pets or exhibition to include additional types of pet animals and 
domesticated farm-type animals. In addition, we are adding a new 
licensing exemption for any person who maintains eight or fewer pet 
animals, small exotic or wild animals, and/or domesticated farm-type 
animals for exhibition. These actions will allow the Agency to focus 
its limited resources on situations that pose a higher risk to animal 
welfare and public safety. Finally, we are making conforming changes to 
the definitions of dealer and exhibitor to reflect the amendments to 
the Act and making several miscellaneous changes to the

[[Page 25550]]

regulations for consistency and to remove redundant and obsolete 
requirements.

DATES: Effective June 4, 2018.

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 warm-blooded animals by 
dealers, research facilities, exhibitors, operators of auction sales, 
and carriers and intermediate handlers. The Secretary has delegated 
authority for administering the AWA to the Administrator of the 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).
    The AWA and regulations seek to ensure the humane handling, care, 
treatment, and transportation of certain warm-blooded animals \1\ used 
or intended for research, teaching, testing, experimentation, or 
exhibition purposes, or as a pet. Dealers and exhibitors of such 
animals must obtain licenses and comply with AWA regulations and 
standards, and their facilities are inspected by APHIS for compliance, 
unless they are otherwise exempt from the licensing requirements.
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    \1\ Under the regulations, an animal is defined as ``any live or 
dead dog, cat, nonhuman primate, guinea pig, hamster, rabbit, or any 
other warmblooded animal, which is being used, or is intended for 
use for research, teaching, testing, experimentation, or exhibition 
purposes, or as a pet. This 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, or livestock or poultry used or intended for use 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.''
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    On August 4, 2016, we published in the Federal Register (81 FR 
51386-51394, Docket No. APHIS-2014-0059) a proposal \2\ to amend the 
regulations to conform with amendments to the Act that broadened the 
scope of the exemptions from the licensing requirements for dealers and 
exhibitors whose size of AWA-related business activities is determined 
by the Secretary to be de minimis. We also proposed other changes for 
consistency and to eliminate redundant and obsolete requirements.
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    \2\ To view the proposed rule, supporting documents, and the 
comments we received, go to https://www.regulations.gov/#!docketDetail;D=APHIS-2014-0059.
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    We solicited comments concerning our proposal for 90 days ending 
November 2, 2016. We received 29 comments on the proposal during the 
comment period. They were from exhibitors, animal welfare 
organizations, biomedical research organizations, an organization 
representing zoos and aquariums, an animal trainer, and the general 
public. We reviewed each of the comments carefully. We respond below, 
by topic, to those comments that address specific provisions of the 
proposal.

Definitions

    We proposed to amend the definitions of dealer and exhibitor in 
Sec.  1.1 of the regulations to align them with the amendments to those 
definitions in the AWA.
``Exhibitor''
    Under the AWA, an exhibitor is defined as ``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.'' The definition goes on to identify specific inclusions, 
such as circuses and zoos, and exclusions, such as livestock shows and 
purebred dog and cat shows, and fairs or exhibitions intended to 
advance agricultural arts and sciences, as may be determined by the 
Secretary. In addition, the regulations list additional examples of 
included and excluded activities.
    In 2013, an amendment \3\ to the AWA added a new exclusion to the 
definition of exhibitor for owners of common, domesticated household 
pets who derive less than a substantial portion of income from a 
nonprimary source for exhibiting an animal that exclusively resides at 
the residence of the pet owner. We proposed to add this exclusion to 
the definition of exhibitor in the regulations for consistency with the 
amended Act. We also sought comment on whether to add an explanation of 
``substantial portion of income'' to the regulations to make clear it 
would not include exhibitions that generate a minimal amount of money 
and do not constitute a main source of the person's income.
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    \3\ https://www.gpo.gov/fdsys/pkg/BILLS-112s3666enr/pdf/BILLS-112s3666enr.pdf.
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    One commenter observed that the proposed rule removed animal acts, 
educational exhibits, field trials, and coursing events from the list 
of activities in the regulatory definition of exhibitor and disagreed 
with their removal.
    The removal of these and other activities from the definition of 
exhibitor was inadvertent and they have been retained in this final 
rule.
    One commenter stated that the meaning of ``substantial portion of 
income'' within the definition of exhibitor is unclear and that it 
should not be described as the main source of income. The commenter 
recommended that we define ``substantial portion of income'' to mean 
``a percentage of income, the loss of which would negatively affect the 
person's standard of living,'' because a main source of income earned 
by exhibiting the animals (51 percent or higher) is too high of a 
percentage to ensure the welfare of animals exhibited by persons 
earning poverty-level wages. Another commenter similarly recommended 
that USDA more clearly define the term ``substantial'' as the proposed 
language in the definition provides insufficient guidance for regulated 
parties and law enforcement. The commenter suggested that USDA define 
``substantial portion of income'' as more than 50 percent of the 
person's income.
    We are making no changes in response to the commenters. As a 
practical matter, we anticipate that owners of common, domesticated 
household pets that fall under this particular exclusion will also be 
exempt under the licensing exemptions for exhibitors established in 
this final rule, which is broader in scope than this exclusion. 
However, if such an owner has questions, we encourage them to contact 
the appropriate Animal Care office \4\ and we will assess the situation 
and make a determination at that time.
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    \4\ https://www.aphis.usda.gov/aphis/banner/contactus/sa_animal_welfare.
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``Dealer''
    Under the AWA, a 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 animal whether alive or dead for research, teaching,

[[Page 25551]]

exhibition, or use as a pet, as well as any dog at the wholesale level 
for hunting, security or breeding purposes. This definition also lists 
certain exclusions, such as retail pet stores.
    The Agricultural Act of 2014 (referred to as the 2014 Farm Bill) 
\5\ amended this definition by removing an exclusion for 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. At the same time, the 2014 Farm Bill removed 
an exemption from licensing in Sec.  2133 of the AWA for any person who 
derives less than a substantial portion of his income (as determined by 
the Secretary) from the breeding and raising of dogs and cats on his 
own premises and sells such dog or cat to a dealer or research facility 
and replaced it with a broader exemption for any dealers and exhibitors 
whose size of AWA-related business activities is determined by the 
Secretary to be de minimis.
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    \5\ https://www.gpo.gov/fdsys/pkg/BILLS-113hr2642enr/pdf/BILLS-113hr2642enr.pdf.
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    In the proposed rule, we intended to make the regulations 
consistent with the 2014 Farm Bill by removing the exemption from the 
definition of dealer for any person who does not sell or negotiate the 
sale or purchase 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. 
In addition, we proposed to remove a parallel exemption from licensing 
in Sec.  2.1(a)(3)(ii) of the regulations and add in its place an 
exemption for any person whose size of AWA-related business activities 
is determined by APHIS to be de minimis in accordance with the 
regulations.
    One commenter disagreed with the proposed change, stating that it 
will create a loophole for animal operations that are not in compliance 
with the AWA. As an example, the commenter stated that persons were 
buying three females and one male animal, breeding them in the absence 
of care standards, and selling the offspring cheaply to brokers. The 
commenter stated that these exceptions will create unfair competition 
by diminishing the ability of licensed breeders to compete for market 
share.
    We are making no changes in response to this comment. The commenter 
appears to be making reference to a different provision, contained in 
Sec.  2.1(a)(3)(iii) of the current regulations, that exempts from 
licensing any person that maintains a total of four or fewer breeding 
female dogs, cats, and/or small exotic or wild mammals and who sells, 
at wholesale, only their offspring, which were born and raised on his 
or her premises, for pets or exhibition. The proposed changes to the 
$500 gross income exemption do not change the licensing exemptions for 
dogs, cats, and/or small exotic or wild mammals. As we noted above, the 
AWA was amended to broaden exemptions from the licensing requirements 
for small-scale dealers and exhibitors, which allows APHIS to focus its 
limited resources on situations that pose a higher risk to animal 
welfare and public safety.
    Another commenter asked if the removal of the $500 gross income 
exemption meant that APHIS would now be exempting persons exhibiting 
exotic animals from the licensing requirements.
    The $500 gross income exemption only applies to persons selling or 
negotiating the sale or purchase of animals other than dogs, cats, and 
wild or exotic animals. It does not apply to the exhibition of exotic 
animals.
    After reviewing these comments and the scope of the $500 gross 
income exemption, we are amending the definition of dealer in this 
final rule to conform with the amendment to the Act, but will retain 
and make no changes to the existing licensing exemption in Sec.  
2.1(a)(3)(ii) for any person who sells or negotiates the sale or 
purchase of any animal except wild or exotic animals, dogs, or cats, 
and who derives no more than $500 gross income from the sale of such 
animals during any calendar year and is not otherwise required to 
obtain a license. This long-standing, de minimis licensing exemption 
applies to persons, such as certain small-scale pet animal resellers, 
who are not covered by any other licensing exemption and do not pose a 
high risk to animal welfare or public safety. Although removed as an 
exclusion from the definition of dealer, this licensing exemption 
continues to be authorized by Sec.  2133 of the AWA.

Four Breeding Female Licensing Exemptions

    The current regulations in Sec.  2.1(a)(3)(iii) and (vii) exempt 
from licensing any person who maintains a total of four or fewer 
breeding female dogs, cats, and/or small exotic or wild mammals and who 
sells only the offspring of those animals, which were born and raised 
on his or her premises, for pets or exhibition. In the proposed rule, 
we proposed a ``four breeding female'' exemption for additional types 
and combinations of animals, specifically, dogs, cats, rabbits, 
hamsters, guinea pigs, chinchillas, cows, goats, pigs, and sheep.
    One commenter stated that the proposed exemption is inconsistent 
with the exemptions currently in paragraphs (a)(3)(iii) and (vii) of 
Sec.  2.1. The commenter noted that the current exemptions apply to 
breeders of small exotic or wild species with four or fewer breeding 
females under the assumption that such breeders can adequately care for 
their animals. The commenter suggested replacing the list of animals in 
the proposed de minimis exemption with the list in current Sec.  
2.1(a)(3)(iii) so that small exotic or wild species will be included 
under the de minimis exemption. Another commenter expressed similar 
concerns about having three exemptions for dealers and recommended that 
we consolidate them.
    We agree with the commenters' suggestions and are making conforming 
changes in this final rule. Specifically, we are combining the three 
exemptions (current Sec.  2.1(a)(3)(iii) and (vii) and proposed Sec.  
2.1(a)(3)(ix)) into one exemption in revised paragraph Sec.  
2.1(a)(3)(iii). We have also harmonized the list of animals, grouped 
them into categories (pet animals, small exotic and wild mammals, and 
domesticated farm-type animals) and added additional examples of 
animals (such as llamas and alpacas) that fall under this exemption for 
clarity. ``Domesticated farm-type animals'' are animals that have 
historically been kept and raised on farms in the United States. This 
consolidated exemption continues to apply to any person, including, but 
not limited to, purebred dog and cat fanciers, who meet the criteria in 
revised paragraph Sec.  2.1(a)(3)(iii), and applies to retail sales and 
wholesales alike. Finally, we made conforming edits to the definition 
of retail pet store. Specifically, we removed references to previous 
paragraph Sec.  2.1(a)(3)(vii) because that provision has been 
consolidated in revised paragraph Sec.  2.1(a)(3)(iii), which is 
authorized by the 2014 Farm Bill amendments. In addition, we updated 
references to ``domestic ferrets'' and ``farm animals'' to 
``domesticated ferrets'' and ``domesticated farm-type animals'' for 
consistency with modern usage and the terminology used in this final 
rule.
    A commenter stated that if the proposal is finalized, small 
breeders currently maintaining exotic animals under a USDA license may 
qualify as de minimis businesses and find themselves exempt from USDA 
licensing. The commenter expressed concern that

[[Page 25552]]

persons operating such businesses will face confiscation of their 
animals in States that prohibit ownership of exotic animals by 
businesses lacking a USDA license and proposed a ``grandfather clause'' 
to allow de minimis businesses in such States to keep their exotic 
animals.
    The four breeding female exemption for small exotic and wild 
mammals has been in place since 2004. Neither the proposed rule nor 
this final rule makes changes to it, other than to add additional 
examples of such animals and to combine the exemptions for retail sales 
and wholesales into one paragraph. We also note that States requiring a 
USDA license or that reduce requirements for persons with a USDA 
license primarily focus on potentially dangerous animals, not the types 
of small exotic and wild mammals that fall under this exemption, which 
are pocket pets such as chinchillas and jerboas being sold for use as 
pets or exhibition. Larger exotic or wild animals, such as lions, 
tigers, wolves, or bears, do not fall into this category.

Exhibitor Licensing Exemptions

    In the proposed rule, we also proposed de minimis exemptions from 
the licensing requirements for exhibitors 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 the exhibition. Specifically, for persons who exhibit four or fewer 
eligible animals in permanent facilities, we proposed a de minimis 
exemption under Sec.  2.1(a)(3)(x). For seasonal exhibitors, we 
proposed an exemption in Sec.  2.1(a)(3)(xi) for 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. We also proposed an exhibitor licensing 
exemption in Sec.  2.1(a)(3)(xii) for 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 required to obtain a license.
    One commenter stated that the proposal was unclear with respect to 
what animal species are eligible for the proposed de minimis exhibitor 
exemptions and asked us to clarify. With respect to the proposed de 
minimis exemption for infrequent or intermittent exhibitors, two 
commenters asked us to either define what species is meant by ``common, 
domesticated, non-dangerous household pet animal'' or provide a list of 
species that meet this criteria. One commenter stated that paragraph 
(a)(3)(xii) should reflect the de minimis exemptions in proposed 
paragraphs (a)(3)(ix) through (a)(3)(xi) that list ``dogs, cats, 
rabbits, hamsters, guinea pigs, chinchillas, cows, goats, pigs, and 
sheep.'' The commenter stated that the proposed description is open to 
interpretation and could lead to confusion as to what animal species 
are eligible for the exemption.
    In response to this comment, and consistent with our approach to 
the four breeding female exemption discussed above, we are harmonizing 
the lists of non-dangerous animals eligible for exemption and grouping 
them into categories (pet animals, small exotic and wild mammals, and 
domesticated farm-type animals). We are also adding more examples of 
animals that fall under this exhibitor exemption for clarity.
    Two commenters disagreed with the proposed numeric thresholds, 
noting that seasonal exhibitors are allowed to work up to eight animals 
while infrequent or intermittent (mainly film and theatrical) 
exhibitors are only allowed to work four animals. One of these 
commenters stated that both types of exhibition require off-site 
housing and frequent transport, putting animals at greater potential 
risk regardless of the number exhibited, yet under Sec.  2.1(a)(3)(xii) 
an infrequent or intermittent exhibitor would require a license with 
five to eight animals while seasonal exhibitors with the same number of 
animals exhibited would not require a license. Similarly, another 
commenter stated that regardless of whether animals are used for 
seasonal or infrequent exhibition, the potential impact on the animal's 
welfare is the same. For this reason, the commenter recommended that 
the seasonal exemption be limited to four or fewer animals.
    Two other commenters disagreed with the limit of days we placed on 
the seasonal exhibit exemption and said that the duration should be 
longer. One such commenter stated that many spring and fall exhibits 
run between specific weekends and are often weather dependent, and 
stated that at least 6 to 8 weeks would be better for the seasonal de 
minimis exemption. On the other hand, one commenter stated that 
seasonal exhibitions should not have a duration of more than 10 days 
per year.
    Another commenter stated that allowing infrequent or intermittent 
exhibitors up to 30 days a year to work their animals is far too high. 
The commenter, a professional pet trainer, was concerned that untrained 
pet owners would lack the knowledge necessary to keep their pets and 
other people safe on film sets and at other worksites. The commenter 
suggested that we limit the proposed exemption in Sec.  2.1(a)(3)(xii) 
to 1 or 2 days of exhibition per year, as any person working their 
animals for more days are likely generating a substantial amount of 
income while remaining exempt from licensing. The commenter said that a 
trainer can make $500 to $1,000 per day with an animal in a TV or film 
production, and that a pet working 30 days in a starring role can make 
a profit of tens of thousands of dollars. The commenter stated that 
anyone profiting by more than $100 per day from exhibiting an animal 
should be required to be licensed or work under the guidance of a 
licensed USDA trainer.
    Finally, one commenter disagreed with our use of the term 
``infrequent exhibition.'' The commenter asked who would monitor such 
exhibitors for compliance with the regulations and stated that allowing 
infrequent exhibitors to go unlicensed is not fair to licensed 
exhibitors who have to conduct recordkeeping and be inspected.
    We have reconsidered this matter and agree with the commenters that 
the animals pose similar potential risks and will likely experience 
similar treatment and care, regardless of the duration or frequency of 
the exhibition. We have concluded that individuals and businesses 
exhibiting eight or fewer pet animals, small exotic or wild animals, 
and/or domesticated farm-type animals have a de minimis size of 
business based on the number of animals maintained, capability of 
providing adequate care and treatment of such animals, and public 
oversight. Accordingly, we are revising Sec.  2.1(a)(3)(vii) to 
establish a single exemption from the licensing requirements for 
persons who maintain a total of eight or fewer pet animals, small 
exotic or wild animals, and/or domesticated farm-type animals for 
exhibition, and are not otherwise required to obtain a license. This de 
minimis threshold applies without regard to the frequency of exhibition 
and will allow the Agency to focus its limited resources on situations 
that pose a higher risk to animal welfare and public safety.
    One commenter stated that the seasonal exhibition threshold for 
exemption should be raised from 30 to 45 days, noting that apple 
orchards, corn mazes, and Christmas tree farms

[[Page 25553]]

usually display small numbers of farm animals and are open at least 45 
days. The commenter recommended that if such facilities are only 
exhibiting farm animals and are only open seasonally for 30 to 45 days, 
they should not be regulated.
    As noted in the proposed rule, the Act contains a number of 
exclusions for domesticated farm-type animals and agricultural 
practices. For example, the definition of animal excludes farm animals, 
such as, but not limited to, livestock or poultry used or intended for 
use as food or fiber, or livestock or poultry used or intended for use 
for improving animal nutrition, breeding, management, or production 
efficiency, or for improving the quality of food or fiber. In addition, 
we wish to highlight that the definition of exhibitor also contains 
exclusions for organizations sponsoring and all persons participating 
in State and county fairs, livestock shows, rodeos, and other fairs and 
exhibitions intended to advance agricultural arts and sciences as may 
be determined by the Secretary. Exhibitions of exclusively domesticated 
farm-type animals, exhibitions of traditional farming and agricultural 
practices, and exhibitions of art portraying traditional farming and 
agricultural settings, are accordingly exempt from the definition of 
exhibitor. Examples of exhibitions that may fall in this category 
include exhibition of exclusively domesticated farm-type animals (such 
as cows, goats, pigs, sheep, llamas, and alpacas), nativity scenes with 
a camel and domesticated farm-type animals displayed in a barn or other 
traditional farm-type setting, and traditional agricultural displays of 
working animals, such as reindeer pulling a sled or working on a farm. 
Exhibitions displaying other types of animals (such as lions, tigers, 
elephants, and bears) or animals other than exclusively farm-type 
animals in non-agricultural settings (such as camel rides for the 
public at a carnival), require licensure. Although the kinds of 
exhibits noted by the commenter may not all be exempt under the 
exhibitor licensing exemption, we wish to clarify that they may already 
be excluded from regulation pursuant to the definition of exhibitor.

Proposed Changes to Sec.  3.28 and Sec.  3.53

    We proposed to remove Sec. Sec.  3.28(b), 3.53(b), and 3.80(b)(1), 
which contain obsolete sheltering and minimum space requirements for 
hamsters, guinea pigs, rabbits, and nonhuman primates, and to revise 
Sec.  3.6(a)(2)(xii) to remove phase-in dates which are no longer 
needed regarding primary enclosures for dogs and cats. We explained in 
the proposed rule that removal of these requirements will remove any 
confusion with the current regulatory requirements and will have no 
impact on facilities and animal welfare.
    Four commenters raised questions about our proposed removal of 
obsolete sheltering and minimum space requirements. One commenter asked 
if APHIS was certain that no entities were still maintaining animals 
under these requirements. Three of the commenters stated that some 
facilities may still be using primary enclosures acquired before August 
15, 1990, and asserted that they would therefore still be subject to 
the requirements we are proposing to remove. These commenters asked 
that we remove these changes from the proposed rulemaking and reissue 
the changes in a separate rulemaking so that affected facilities 
receive adequate notice and opportunity to comment.
    We have reconsidered these proposed changes in light of these 
comments and agree that some entities may still maintain hamsters, 
guinea pigs, and rabbits in enclosures acquired prior to August 15, 
1990. Therefore, we will retain Sec. Sec.  3.28(b) and 3.53(b) in the 
regulations and will consider removing them in a separate rulemaking. 
However, we are adopting the proposed revisions to Sec. Sec.  
3.6(a)(2)(xii) and 3.80(b)(1) in this final rule.

Other Comments

    One commenter encouraged APHIS to investigate sanctuaries and 
private collections holding dangerous animals, as such facilities 
appear to be exhibiting animals for purposes that affect commerce for 
compensation in the absence of USDA oversight.
    APHIS looks into any credible complaints or information it receives 
regarding individuals or businesses that may be engaging in regulated 
activity without the required license. To report a concern about an 
animal covered under the AWA, the public may submit a complaint online 
at: https://www.aphis.usda.gov/aphis/ourfocus/animalwelfare/complaint-form, or by contacting one of our Animal Care offices.\6\
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    \6\ See Footnote 4.
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    One commenter asked that we lift the stay imposed on the disaster 
contingency plan rulemaking as soon as possible.
    As we noted in the proposed rule, the Secretary is reviewing the 
impact of the 2014 Farm Bill amendment on the contingency plan 
rulemaking and will decide whether to lift the stay once the review is 
concluded.
    Another commenter stated concerns about how APHIS decides which 
current license holders meet the exemption threshold, citing 
inconsistent data in the APHIS database regarding the number of animals 
reported at the premises of licensees. Given these inconsistencies, the 
commenter asked whether APHIS can reliably determine who qualifies for 
the exemption and who does not.
    We will continue to use the information submitted to APHIS by 
current license holders and the number of animals observed during the 
inspection process to determine if they meet the exemption thresholds. 
We consider our process for determining exemptions to be accurate and 
reliable.
    We also received a number of general comments that were outside the 
scope of the rulemaking.
    Finally, we are also making several nonsubstantive miscellaneous 
changes for consistency.
    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule with the 
changes discussed in this document.

Effective Date

    This is a substantive rule that relieves restrictions and, pursuant 
to the provisions of 5 U.S.C. 553, may be made effective less than 30 
days after publication in the Federal Register.
    This rule relieves regulatory responsibilities for some currently 
licensed entities and reduces 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 will no longer be subject to licensing, animal 
identification, and recordkeeping requirements under the AWA. 
Therefore, the Administrator of the Animal and Plant Health Inspection 
Service has determined that this rule should be effective upon 
publication in the Federal Register.

Executive Orders 12866 and 13771 and Regulatory Flexibility Act

    This final 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 rule is not an Executive Order 13771 regulatory action because 
this rule is not significant under Executive Order 12866. Further, 
APHIS considers this rule to be a deregulatory action under Executive 
Order 13771 as the action relieves regulatory responsibilities for some 
currently

[[Page 25554]]

licensed entities and reduces the cost of business for those entities.
    In accordance with 5 U.S.C. 604, we have performed a final 
regulatory flexibility analysis, which is summarized below, regarding 
the economic effects of this rule on small entities. Copies of the full 
analysis are available on the Regulations.gov website (see footnote 2 
in this document for a link to Regulations.gov) or by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT.
    This rule relieves regulatory responsibilities for some currently 
licensed entities and reduces 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 will no longer be subject to licensing, animal 
identification, and recordkeeping requirements under the AWA.
    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 rule spends about 10 hours 
annually to comply with the licensing paperwork and recordkeeping 
requirements. All of the currently licensed entities that will be 
considered de minimis under this rule benefit from reduced costs for 
licensing, identification, and recordkeeping.
    We estimate that about 323 currently licensed exhibitors and 
breeders with a total of 1,106 animals operating at or below the 
thresholds for their particular AWA-related business activity will be 
considered de minimis and will no longer need to be licensed. We 
estimate that the cost savings for all these entities could total 
between about $62,000 and $68,500 annually. Our estimate of cost 
savings is based on agency experience and data from the APHIS Animal 
Care database on current licensees. We used information from the 
database on the type of animals and number of each type of animal at a 
current licensee, and their most recent inspection reports to determine 
the number of current licensees who could potentially be exempt based 
on the criteria established in this rule.
    Based on our review of available information, APHIS does not expect 
the rule to have a significant economic impact on a substantial number 
of small entities. We did not receive information concerning affected 
entities during the public comment period on the proposed rule that 
would alter this assessment. In the absence of apparent significant 
economic impacts, we have not identified steps 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 final 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. We did not receive any 
requests from tribes for consultation regarding the proposed 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 
requirements included in this final rule are approved under Office of 
Management and Budget control number 0579-0036.

E-Government Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the EGovernment 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 rule, please contact Ms. Kimberly Hardy, 
APHIS' Information Collection Coordinator, at (301) 851-2483.

List of Subjects in 9 CFR Parts 1, 2, and 3

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

    Accordingly, we are amending 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 by revising the definitions of Dealer, 
Exhibitor, and Retail pet store to 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 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; 
and 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. This term includes 
carnivals, circuses, animal acts, zoos, and educational exhibits, 
exhibiting such animals whether operated for profit or not. This term 
excludes retail pet stores, horse and dog races, 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

[[Page 25555]]

country fairs, livestock shows, rodeos, field trials, coursing events, 
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.
* * * * *
    Retail pet store means 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, domesticated ferrets, 
domesticated farm-type animals, birds, and coldblooded species. Such 
definition excludes--
    (1) Establishments or persons who deal in dogs used for hunting, 
security, or breeding purposes;
    (2) Establishments or persons exhibiting, selling, or offering to 
exhibit or sell any wild or exotic or other nonpet species of 
warmblooded animals (except birds), such as skunks, raccoons, nonhuman 
primates, squirrels, ocelots, foxes, coyotes, etc.;
    (3) Any establishment or person selling warmblooded animals (except 
birds, and laboratory rats and mice) for research or exhibition 
purposes;
    (4) Any establishment wholesaling any animals (except birds, rats, 
and mice); and
    (5) Any establishment exhibiting pet animals in a room that is 
separate from or adjacent to the retail pet store, or in an outside 
area, or anywhere off the retail pet store premises.
* * * * *

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 by revising paragraphs (a)(3)(iii), 
(a)(3)(vii), and (c)(2) to read as follows:


Sec.  2.1  Requirements and application.

    (a) * * *
    (3) * * *
    (iii) Any person who maintains a total of four or fewer breeding 
female pet animals as defined in part 1 of this subchapter, small 
exotic or wild mammals (such as hedgehogs, degus, spiny mice, prairie 
dogs, flying squirrels, jerboas, domesticated ferrets, chinchillas, and 
gerbils), and/or domesticated farm-type animals (such as cows, goats, 
pigs, sheep, llamas, and alpacas) and sells only the offspring of these 
animals, which were born and raised on his or her premises, for pets or 
exhibition, 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 of these breeding 
female animals, regardless of ownership, or to any person maintaining 
such breeding female animals on premises on which more than four of 
these breeding female animals are maintained, or to any person acting 
in concert with others where they collectively maintain a total of more 
than four of these breeding female animals, regardless of ownership;
* * * * *
    (vii) Any person who maintains a total of eight or fewer pet 
animals as defined in part 1 of this subchapter, small exotic or wild 
mammals (such as hedgehogs, degus, spiny mice, prairie dogs, flying 
squirrels, jerboas, domesticated ferrets, chinchillas, and gerbils), 
and/or domesticated farm-type animals (such as cows, goats, pigs, 
sheep, llamas, and alpacas) for exhibition, and is not otherwise 
required to obtain a license. This exemption does not extend to any 
person acting in concert with others where they collectively maintain a 
total of more than eight of these animals for exhibition, regardless of 
possession and/or ownership;
* * * * *
    (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:
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; and
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.  3.80   [Amended]

0
7. Section 3.80 is amended:
0
a. By removing paragraph (b)(1);
0
b. By removing paragraph (b)(2) introductory text;
0
c. By redesignating paragraphs (b)(2)(i) through (iv) as paragraphs 
(b)(1) through (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 paragraphs (b)(2) and (b)(4) by removing the 
words ``paragraph (b)(2)(i)'' and adding the words ``paragraph (b)(1)'' 
in their place; and
0
f. In paragraph (c), by removing the words ``paragraphs (b)(1) and 
(b)(2)'' and adding the words ``paragraph (b)'' in their place.


Sec.  3.127  [Amended]

0
8. In Sec.  3.127, paragraph (d)(5) is amended by removing the words 
``farm animals'' and adding the words ``domesticated farm-type 
animals'' in their place.

    Done in Washington, DC, this 29th day of May 2018.
Kevin Shea,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 2018-11892 Filed 6-1-18; 8:45 am]
 BILLING CODE 3410-34-P