Rule2023-03357
Standards for Birds Not Bred for Use in Research Under the Animal Welfare Act
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 21, 2023
Effective
March 23, 2023
Issuing agencies
Agriculture DepartmentAnimal and Plant Health Inspection Service
Abstract
We are amending the regulations to establish standards governing the humane handling, care, treatment, and transportation of birds, excluding birds bred for use in research, covered under the Animal Welfare Act. This action will ensure the humane handling, care, treatment, and transportation of birds not bred for use in research and covered under the Act.
Full Text
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[Federal Register Volume 88, Number 34 (Tuesday, February 21, 2023)]
[Rules and Regulations]
[Pages 10654-10721]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-03357]
[[Page 10653]]
Vol. 88
Tuesday,
No. 34
February 21, 2023
Part II
Department of Agriculture
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Animal and Plant Health Inspection Service
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9 CFR Parts 1, 2 and 3
Standards for Birds Not Bred for Use in Research Under the Animal
Welfare Act; Final Rule
Federal Register / Vol. 88, No. 34 / Tuesday, February 21, 2023 /
Rules and Regulations
[[Page 10654]]
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Parts 1, 2 and 3
[Docket No. APHIS-2029-0068]
RIN 0579-AE61
Standards for Birds Not Bred for Use in Research 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 regulations to establish standards
governing the humane handling, care, treatment, and transportation of
birds, excluding birds bred for use in research, covered under the
Animal Welfare Act. This action will ensure the humane handling, care,
treatment, and transportation of birds not bred for use in research and
covered under the Act.
DATES: This rule is effective March 23, 2023. For current AWA licensees
and registrants, this rule is applicable August 21, 2023. For new AWA
licensees and registrants, this rule is applicable February 21, 2024.
FOR FURTHER INFORMATION CONTACT: Dr. Cody M. Yager, DVM, MPH, Avian
Specialist, Animal Care, APHIS, 4700 River Road Unit 84, Riverdale, MD
20737; <a href="/cdn-cgi/l/email-protection#03606c677a2d6e2d7a6264667143767067622d646c75"><span class="__cf_email__" data-cfemail="34575b504d1a591a4d5553514674414750551a535b42">[email protected]</span></a>; (970) 494-7478.
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 animals by dealers, research
facilities, exhibitors, operators of auction sales, and carriers and
intermediate handlers. The Secretary has delegated responsibility for
administering the AWA to the Administrator of the U.S. Department of
Agriculture's (USDA, or the Department) 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 are established under the
AWA and are contained in 9 CFR parts 1, 2, and 3 (referred to below as
the regulations). Part 1 contains definitions for terms used in parts 2
and 3; part 2 provides administrative requirements and sets forth
institutional responsibilities for regulated parties, and part 3
contains standards for the humane handling, care, treatment, and
transportation of animals covered by the AWA.
In 2002, Congress amended \1\ the definition of animal in the AWA
by limiting the exclusion of birds from that definition to only those
birds ``bred for use in research,'' which by so doing explicitly placed
birds not bred for research and not otherwise excluded from regulation
under the protection of the AWA. While that amendment placed birds not
bred for research under the protection of the Act, the USDA did not
immediately promulgate regulatory standards specific to birds, causing
several animal welfare organizations to file lawsuits against the
Department. In 2020, an opinion by the U.S. Court of Appeals for the
District of Columbia in one such case \2\ resulted in the District
Court's ordering USDA to publish a proposal in the Federal Register to
establish regulatory standards for birds no later than February 22,
2022, and to publish a final rule no later than 1 year after
publication of the proposal. Establishing standards in the AWA
regulations specifically for birds is necessary to ensure animal
welfare and align the regulations with the intent of the Act.
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\1\ The AWA, signed into law in August 1966, has been amended
numerous times since its original passage.
\2\ American Anti-Vivisection Society and Avian Welfare
Coalition v. USDA: <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/80846063820C52F6852584EB005413E4/%24file/19-5015-1823484.pdf">https://www.cadc.uscourts.gov/internet/opinions.nsf/80846063820C52F6852584EB005413E4/%24file/19-5015-1823484.pdf</a>.
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Discussion of Comments
On February 22, 2022, we published in the Federal Register (87 FR
9880-9913, Docket No. APHIS-2020-0068) a proposal \3\ to amend the
animal welfare regulations by establishing standards governing the
humane handling, care, treatment, and transportation of birds,
excluding birds bred for use in research, covered under the AWA. We
began soliciting comments concerning the proposal for 60 days, ending
April 25, 2022, and in response to several requests by commenters we
extended \4\ the comment period by 30 days, to May 25, 2022.
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\3\ To view the proposal, supporting documents, and the comments
we received, go to <a href="http://www.regulations.gov">www.regulations.gov</a>. Enter APHIS-2020-0068 in the
Search field. Among the available supporting documents is a draft
environmental assessment prepared in accordance with the National
Environmental Policy Act. The environmental assessment evaluates
potential effects of the proposed action on the human environment.
\4\ The comment extension notice was published on April 22, 2022
(87 FR 24072-24073, Docket No. APHIS-2020-0068).
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We received 19,195 comments by the extended date. They included
comments from breeders and fanciers of finches, budgerigars, canaries,
parrots, cockatiels, and other pet and show birds; falconers, raptor
breeders, exhibitors, hobbyists, and conservationists; businesses and
educational organizations exhibiting birds to the public; ratite and
poultry producers; exotic poultry hobbyists; owners and breeders of
show and racing pigeons; national and regional animal welfare
organizations; biologists; laboratories and other research facilities;
universities; organizations representing zoos, shelters, and rescues;
avian veterinarians, ornithologists, aviculturists, and organizations
representing them; organizations promoting the conservation of
waterfowl and wild birds; State and Federal government agencies; and
members of the public.
A substantial number of comments we received consisted of duplicate
and near-duplicate comments endorsed by members and supporters of
several animal welfare advocacy organizations. Many of the comments
submitted on the proposal expressed broad concerns about ensuring
animal welfare for birds or excessive government regulation, but
relatively few referred to specific parts of the proposal. We also
received a substantial number of comments regarding the regulatory
status of falconry, as well as comments from small businesses that
breed and sell pet birds. We reviewed and considered all the comments
we received prior to drafting this final rule.
Summary of Amendments to the Proposed Rule
Our review of comments received on the proposal led us to re-
examine some of the provisions in the proposed rule. For reasons that
we will explain in this final rule, we are revising some of regulatory
provisions and requirements that we had proposed in 9 CFR parts 1, 2,
and 3. Following is a list of substantive revisions that we are making
to the proposed rule in response to comments:
<bullet> Excluding falconry under the definition of animal in Sec.
1.1 of the regulations, as the use of birds for falconry is not covered
under the uses listed for the definition in the Act: ``[R]esearch,
testing, experimentation, or exhibition purposes, or as a pet.''
<bullet> Revising our proposed definition of bred for use in
research to mean ``an animal that is bred in captivity and used for
research, teaching, testing, or
[[Page 10655]]
experimentation purposes,'' in order to clarify that it pertains to
actual use of the birds in research rather than stated intended use at
the time of breeding.
<bullet> Establishing a de minimis threshold exemption for sales of
200 or fewer pet birds 250 grams or less annually, and/or sales of 8 or
fewer birds over 250 grams annually, which we will add to Sec.
2.1(a)(3) of the regulations.
<bullet> Establishing a de minimis threshold exemption for
exhibition of four or fewer raptors, which we will add to Sec.
2.1(a)(3) of the regulations.
<bullet> Revising water and electric power requirements in proposed
Sec. 3.150(d), so that they would only be required for the purpose of
complying with other standards in proposed subpart G rather than be
broadly applicable to all facilities.
<bullet> Revising proposed Sec. 3.150(e) to replace proposed food
storage temperature and shelf-life requirements with performance-based
requirements.
<bullet> Revising temperature and humidity requirements in proposed
Sec. 3.151(a) to allow facilities to develop temperature and humidity
levels using professionally accepted standards, and removing our
proposed requirement that prescribed levels be part of the written
program of veterinary care.
<bullet> Revising space requirements in proposed Sec. 3.153(b) to
allow facilities to develop space requirements using professionally
accepted standards in consultation with the attending veterinarian, and
removing the requirement that the space requirements be part of the
written program of veterinary care.
<bullet> Revising the environmental enhancement plan requirement in
proposed Sec. 3.154 in order to allow facilities to document the plan
using professionally accepted standards and in consultation with and
approved by the attending veterinarian, and removing the requirement
that the plan be part of the written program of veterinary care.
<bullet> Revising proposed Sec. 3.154(a)(3) to allow individuals
other than the attending veterinarian to make decisions of
compatibility by facilities based on professionally accepted standards,
and removing the requirement that the plan be part of the written
program of veterinary care.
<bullet> Revising a proposed daily feeding requirement in Sec.
3.155 in order to allow exceptions as directed by the attending
veterinarian, normal fasts, or other professionally accepted practices.
<bullet> Revising proposed Sec. 3.161(f) to require that if delays
will cause a shipment of birds to arrive more than 12 hours later than
originally scheduled, the carrier must contact the consignor or the
consignee for food and water needs.
<bullet> Revising proposed Sec. 3.161(g) to require that carriers
and intermediate handlers not accept unweaned birds for transport
unless instructions for conditions of transport to ensure the health
and well-being of the birds are specified and written by the attending
veterinarian, and signed within 10 days of shipment, and removing the
requirement that the plan be part of the written program of veterinary
care.
<bullet> Revising proposed Sec. 3.162(b)(1) by removing
restrictive ventilation requirements that prevented use of shipping
enclosures that would otherwise meet APHIS standards.
<bullet> Revising proposed Sec. 3.164(a) to waive the requirement
to offer weaned birds food and potable water within 4 hours before
being transported in commerce if the attending veterinarian approves a
delay or in accordance with professionally accepted standards.
Substantive comments are discussed below under the sections within
9 CFR parts 1, 2 and 3 they address.
General Comments
Many commenters asked that we prohibit trade of all captive birds.
Some commenters asked that we require the release of all captive birds
into their natural habitats.
APHIS does not have the authority to prohibit the legal trade of
birds or to require the release of captive birds into their natural
habitats.
Some commenters stated that we have not demonstrated that the
current welfare of birds in breeding facilities are deficient.
We disagree with the commenters. As we noted in the proposed rule,
APHIS has received complaints from the public about inhumane conditions
for birds, including many comments submitted for this rulemaking. While
APHIS does not currently inspect facilities engaged exclusively in
avian breeding and exhibition, we do inspect mammals at mixed animal
facilities that also house birds. During these inspections, if
inspectors encounter birds kept in inhumane conditions they are
instructed to report what they see to the appropriate local or State
authority. Lastly, Congress' amendment to the AWA, along with the court
opinion noted above, are both acknowledgements that welfare standards
for birds are necessary, and APHIS is promulgating such standards
accordingly.
A commenter asked how the rule can be applied to a large, newly
regulated community given the agency's limited resources. One commenter
suggested that the rule be delayed from implementation until the
necessary agency resources are available.
APHIS has sufficient resources to fulfill the mandates of the Act
and successfully employs a risk-based process to determine frequency of
facility inspections and enforce the regulations fairly. We intend to
use this approach in our regulation and enforcement of standards for
birds. As to delay of implementation, we are establishing a delayed
applicability of the regulations, which we address below, in order to
give persons additional time to comply with the regulations. The delay
is not associated with the availability of agency resources.
A commenter asked that APHIS consider giving all licensed
facilities one provisional inspection cycle to fix, modify, or
challenge noncompliance issues, noting that many of the ``untested''
requirements in the proposal may prove to be unwarranted and possibly
harmful to bird welfare. Another commenter stated that a 5-year
implementation period must be established to allow time to disseminate
regulatory information to aviculturalists and for facilities to perform
retrofitting to comply with the regulations. The commenter added that
facilities existing at the time of implementation should be
``grandfathered'' if their primary enclosures are sound and healthful,
until structural improvements are required.
An implementation period will be provided for all facilities
conducting covered activities to ensure compliance with these
standards. During this period, we intend to confer with facilities and
offer guidance to help them identify and correct any noncompliances
prior to the date that the rule becomes applicable. While the
regulations will be effective 30 days after issuance of this final
rule, they will not immediately be applicable to regulated persons and
businesses. For current AWA licensees and registrants, the rule will
become applicable 180 days after date of publication. For new licensees
and registrants, the applicable date will begin 365 days after date of
publication. As new licensees may be unfamiliar with AWA licensing and
inspection practices or lack the resources required to comply with the
regulations, we have provided them with additional time to attain
compliance. Based on our own prior knowledge of the industry, the
comments that we received, and the nature of the compliance standards
in this final rule, we consider this sufficient time for entities to
come into
[[Page 10656]]
full compliance with the standards. With respect to other commenter
recommendations, we do not consider a 5-year implementation period or a
``grandfather'' clause for some facilities to be necessary or conducive
to animal welfare. We also note that the AWA itself sets forth minimum
standards for care of covered animals, which legally precludes a
``grandfather'' clause for facilities that are not in compliance with
those particular standards.
A commenter proposed that we have an additional comment period so
that stakeholders can address all their concerns with the proposal.
In response to commenter requests, we extended the comment period
for 30 days to May 25, 2022.
Several commenters stated that APHIS has not accurately estimated
the number of people who will be impacted by the proposal and that the
actual number is much larger than what is cited in the economic
analysis.
In the economic analysis that accompanied the proposed rule, we
acknowledged that a great deal of uncertainty surrounds the number of
facilities affected by this rule, and we requested data from the public
that may indicate a number of facilities different from what we
estimated in the analysis. We explain in more detail in the economic
analysis our estimate of the number of facilities affected.
We received several comments indicating higher numbers of affected
entities, one of which provided a detailed discussion of what the
commenter considered to be the number of potential new licensees. Based
on information the commenter provided, we adjusted our estimate of
potential new facilities breeding or distributing birds that could
require an AWA license from 1,625 to a range between 1,625 and
3,563.\5\ Including new registrants, we estimate that there will be
between 5,975 and 7,913 newly regulated entities in total. Of the
facilities that we estimate may be covered under the regulations, we
continue to believe many are already maintaining their facilities at or
above the minimum standards of the proposal and would not need to make
significant changes in order to come into compliance with the
standards.
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\5\ Details of how APHIS arrived at this revised estimate are
explained in the Regulatory Impact Analysis that accompanies this
rule.
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A commenter asked that APHIS include a regulatory provision
allowing for the emergency transfer or sale of breeding groups of birds
belonging to deceased breeders, or for persons with birds affected by
natural disasters. The commenter added that it is critical to transfer
birds before they are lost for lack of care.
Under Sec. 2.1(b)(1), licenses are issued to specific persons, and
are issued for specific activities, types and numbers of animals, and
approved sites. Although a new license must be obtained upon a change
of ownership resulting from an owner's death, APHIS can grant a one-
time exemption in such situations to allow for sale or transfer of
animals. In addition, every AWA licensee is required under Sec.
2.38(l) to have a contingency plan in place for the humane handling,
treatment, transportation, housing, and care of their covered animals.
The plan is required to address emergencies such as natural disasters
and animals at risk of neglect from disruption of care, including death
of the breeder or responsible person, and allows for the sale and
transfer of such animals. Given these provisions, we do not consider a
new regulation to cover such contingencies to be necessary.
A commenter suggested that the Animal Care Inspection Guide should
be applicable to all birds in captivity.
The Animal Care Inspection Guide serves as an aid for APHIS Animal
Care personnel when inspecting USDA licensed and registered facilities.
As is currently the practice with other covered animals, APHIS
inspectors will use the guide, updated for avian facilities, to ensure
consistency and accuracy when inspecting facilities that conduct
activities involving birds not bred for use in research and therefore
covered under the AWA regulations.
A coalition of three national avicultural organizations submitted a
survey \6\ of aviculturalists, of which 282 provided responses. The
survey asked respondents to provide information about topics of concern
to them in the proposed rule, including exemption thresholds,
recordkeeping requirements, inspection procedures, environmental
enhancement, and access to veterinarians with avian expertise. The
commenter reviewed the responses in light of how the respondents, many
of them home-based businesses, might be affected by the proposed
regulations.
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\6\ See comment and survey at <a href="https://www.regulations.gov/comment/APHIS-2020-0068-27043">https://www.regulations.gov/comment/APHIS-2020-0068-27043</a>.
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APHIS appreciates the commenter providing us with the survey and
notes that we have addressed many of the concerns it expresses about
compliance, privacy, and recordkeeping. The commenter noted that over
70 percent of respondents kept more than four breeding females, and
that many small aviculturalists are uncertain about counting breeding
females for the purposes of determining exemption status. Under
``Licensing Exemptions'' below, we indicate that we have adjusted how
the de minimis exemption threshold is determined by basing it on number
of birds sold annually, rather than on number of breeding females. This
change will exempt from inspection and licensing many more facilities
as a result. For home-based facilities that will require licensing and
inspections, we emphasize that APHIS only inspects for compliance
within the areas of a domicile where business is conducted. Finally, as
survey respondents use many means of inventorying and identifying their
birds, from cage cards to software, the standards we are finalizing
accommodate each of them. We intend to provide ongoing guidance on
these topics as needed to help current and newly licensed entities with
birds achieve compliance.
A commenter stated that a Federal-level database collecting data
about the birds inspected would allow for accuracy of breeding numbers.
Another commenter stated that all inspection and annual reports, as
well as actual cases, assessments, and penalty discounts should be
published on the APHIS website to increase public transparency.
As is currently the case with inspection of other species, APHIS
will maintain inspection information for birds and use it to determine
compliance. In addition, the USDA-Animal Care Public Search Tool \7\ is
a publicly searchable database that includes persons licensed and
registered under the AWA, as well as inspection reports, enforcement
actions, and research facility annual reports of animal use. We are
unclear as to what assessments or discounts the commenter refers to,
but we do support public transparency of APHIS animal welfare
activities even as we respect the personal information and privacy of
persons subject to AWA regulations.
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\7\ The USDA Animal Care Public Search Tool is available at
<a href="https://aphis-efile.force.com/PublicSearchTool/s/">https://aphis-efile.force.com/PublicSearchTool/s/</a>.
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A commenter stated that regulations should be imposed for all
``commercial reseller/pet stores'' to have a basic course on proper
care of species and sanitation.
While businesses defined as retail pet stores in Sec. 1.1 are
exempt from licensing and regulation, we support efforts to educate
such businesses on humane avian care and sanitation practices.
[[Page 10657]]
A commenter urged APHIS to prohibit the capture of wild and exotic
birds, including their eggs, for any reason.
Within the United States, the capture and possession of most birds
from the wild, including eggs, is regulated by the U.S. Fish and
Wildlife Service (USFWS) regulations under the Migratory Bird Treaty
Act (MBTA). USDA has neither the authority to enforce provisions of the
MBTA nor the authority under any other statute delegated to the Agency
to enforce such a general prohibition.
A commenter stated that the proposed regulations fall short of the
``Five Freedoms'' of animal welfare that have been adopted worldwide.
Our statutory obligation for this rulemaking is to enforce the
provisions of the AWA regarding standards for birds other than birds
bred for use in research. The ``Five Freedoms,'' in contrast, are a set
of internationally recognized animal welfare standards that advocate
freedom from hunger and thirst; freedom from discomfort; freedom from
pain, injury, and disease; freedom to express normal behaviors; and
freedom from fear and distress. While APHIS does not derive our
statutory authority with regard to animal welfare from the ``Five
Freedoms,'' we respectfully disagree with the commenter, as the
standards for birds that we have established under the provisions of
the AWA address all five freedoms.
A commenter noted that quarantine practices for birds are not
mentioned in the proposed rule and that a section on quarantining
should be included.
While we do not use the term ``quarantine'' in the proposed
standards for birds, we did include a provision in paragraph (c) of
Sec. 3.160, ``Compatibility and separation,'' stating that ``[b]irds
that have or are suspected of having a contagious disease or
communicable condition must be separated from healthy animals that are
susceptible to the disease as directed by the attending veterinarian.''
We consider this requirement to constitute a quarantine under normal
conditions. Furthermore, the attending veterinarian has the authority
to require quarantine practices if necessary for bird health or
welfare.
A commenter asked whether our estimated number of respondents under
the Paperwork Reduction Act referred to respondents to the proposed
rule or the estimate of licensees.
The estimated number of respondents refers to the number of
licensees and registrants affected by the rule.
The same commenter stated that most activities requiring forms also
require original signatures, so aviculturists must fill out the form,
sign it, and store it on paper or scan again and store electronically.
The commenter added that this is onerous for small breeders and
exhibitors.
Few covered activities, such as acquisition and disposition of
animals, require a licensee or registrant to complete forms, and the
time required to do so is minimal. Only the license application
requires a signature, and those can be completed and signed
electronically. Information provided on forms is important to
establishing a record of animal welfare at the facility.
9 CFR Part 1: Definition of Terms
In Sec. 1.1, we proposed to revise the definitions of carrier,
exhibitor, farm animal, intermediate handler, pet animal, retail pet
store, and weaned. We also proposed adding new definitions of bird,
bred for use in research, and poultry. These changes were intended to
incorporate birds that are newly subject to licensing and regulatory
standards under the AWA. The comments for each of the revisions and
additions to Sec. 1.1 are addressed below. Other terms currently
defined in 9 CFR part 1 that pertain to AWA licensees or registrants in
general will also pertain to persons newly licensed or registered as
bird dealers, exhibitors, operators of auction sales, or carriers and
intermediate handlers. For example, the term inspector, defined as
``any person employed by the Department who is authorized to perform a
function under the Act and the regulations in 9 CFR parts 1, 2, and
3,'' will also pertain to inspectors performing functions related to
verifying compliance with the regulations applicable to birds.
A few commenters proposed that we include additional terms to
define. One commenter proposed that we add the terms ``bird breeder,''
``bird dealer,'' and ``bird exhibitor'' to the regulations in order to
differentiate them from mammal breeders, dealers, and exhibitors.
We are making no changes in response to the commenter, as we see no
benefit for the purposes of animal welfare to create standalone
definitions that differentiate breeders, dealers, and exhibitors based
on species. We note, moreover, that this has not been APHIS' practice
to date with the many species of mammals that are subject to the AWA.
Animal
We noted in the proposed rule that, in 2002, Congress amended the
definition of animal in the Act to specifically exclude birds, rats of
the genus Rattus, and mice of the genus Mus, bred for use in research,
and that APHIS amended the definition of animal in the regulations to
be consistent with this change. The amendment means that birds bred for
use in research are not covered under the AWA or its regulations.
A commenter stated that ``they would like to see all official
wording changed that states birds are excluded from the AWA once this
regulation is passed.''
When this final rule becomes effective, we intend to make the
necessary changes in APHIS guidance, such as in the Animal Care
Inspection Guide, that does not currently reflect that birds not bred
for use in research are regulated under the Act.
Several commenters asked if raptors would be exempt from licensing
or excluded from coverage under the Act, while other commenters
remarked positively upon their inclusion.
We are not excluding or exempting raptors from licensing, although
we have included an exhibition exemption threshold for persons with
four or fewer raptors in exhibition for any purpose and is not
otherwise required to be licensed, which we discuss below. However, we
have amended the definition of animal to exclude from coverage all
activities involving falconry, which is the practice of training and
using certain raptors to hunt wild animals. We made this change in
response to the many commenters noting the cultural and historical
agrarian roots of falconry, and because falconry falls outside of the
regulated uses specified in the definition of animal in the Act:
``[R]esearch, testing, experimentation, or exhibition purposes, or as a
pet.'' Moreover, USFWS regulations require a permit to possess raptors
according to use, none of which include use as a pet. Many commenters
also noted that falconers are required to serve an apprenticeship under
a master falconer and undergo extensive training in caring for and
handling birds as prerequisites to acquiring State and Federal falconry
permits. This extensive degree of oversight further supports our
interpretation of the AWA not to regulate falconry.
Along with the practice of falconry, exhibitions of birds that
solely promote the art of falconry will also be excluded from
regulation, much in the same way that exhibitions of animals that
promote the agricultural arts are not regulated. APHIS will determine
whether an exhibition qualifies as promoting falconry on a case-by-case
basis.
Bird
We proposed to add a definition for the term bird as being any
member of
[[Page 10658]]
the class Aves, excluding eggs. This definition implies that a bird is
no longer an egg when the bird is fully separated from the eggshell. As
we noted in the proposed rule, we considered regulating the welfare of
live avian eggs but there was not enough scientific data available for
each species of bird to determine the stages of egg development at
which human management can cause an animal welfare concern.
One commenter stated that the proposed definition of bird should
not require that the bird be entirely separated from the shell. The
commenter explained that while it is necessary to maintain humane care
of the bird after it has separated from its eggshell, there should be
care in place for birds in the process of hatching but not yet
separated from the shell.
We agree with the commenter that a bird in the process of hatching
should be defined as a bird. For this reason, we are revising the
definition of bird to mean ``any member of the class Aves, excluding
eggs, but including birds once the hatching process commences.''
Another commenter asked that if eggs are excluded from the
definition, whether an egg collected from the wild and brought into
captivity would not be regulated, but a bird hatched from that egg
would be regulated. The commenter also asked what happens if the
location of breeding of the dam and sire are unknown to the individual
that obtains the unregulated egg, adding that the definition makes
tracking dam and sire information for an egg a requirement, thus
regulating the egg in some capacity.
An egg collected from the wild, regardless of whether it hatches,
is likely to be from a migratory bird and therefore regulated under the
MBTA by USFWS. We do not intend to regulate eggs, but if the egg
hatches and the bird is not bred for use in research, it may be
regulated under the AWA depending on its use. Information about the dam
and sire of the egg is not a consideration in whether the egg is
regulated.
Another commenter asked that the proposed definition of bird be
clarified. The commenter stated that the rule does not define what
birds are included in the definition and asked if it includes poultry
and waterfowl or only domesticated birds.
All species of Aves are included under the definition of bird,
although under Sec. 2.1(a)(3) several uses of poultry and domestic
waterfowl are exempt from AWA licensing requirements. Wild waterfowl
are regulated under the MBTA by USFWS.
Bred for Use in Research
The definition of ``animal'' in section 2132 of the AWA means ``any
live or dead dog, cat, monkey (nonhuman primate mammal), guinea pig,
hamster, rabbit, or other such warm-blooded animal, as the Secretary
may determine is being used, or is intended for use, for research,
testing, experimentation, or exhibition purposes, or as a pet . . .''.
The definition in the Act excludes ``birds, rats of the genus Rattus,
and mice of the genus Mus, bred for use in research.'' Birds not bred
for use in research,\8\ unless excluded for agricultural or other uses
listed in the definition of ``animal,'' are considered to be animals
under the Act.
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\8\ Unless otherwise excluded from the definition, birds are
implicitly defined as animals in the Act and regulations by being
``warm-blooded.''
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We proposed to define the term bred for use in research so that the
regulations are consistent with the Act and to make clear what birds
are included under the term and therefore not covered under the Act or
regulations. The term as we proposed it means ``an animal \9\ that is
bred in captivity and is being used or is intended for use for
research, teaching, testing, or experimentation purposes.'' Along with
``research,'' we added ``teaching, testing, or experimentation'' to our
proposed definition because the Act includes these uses as elements of
research under its definition of ``research facility.''
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\9\ The apparent irony of referring to a bird bred for use in
research as an animal excluded from the definition of ``animal'' is
noted.
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Research facilities under the AWA are required to register with
APHIS and comply with the regulations, including those specific to
research facilities in part 2, subpart C. Research facilities must keep
records and report regularly on animal use activities, including common
names and numbers of animals actually used in experiments and other
research, and names and numbers of animals that the research facility
is holding for use in teaching, testing, experiments, research, or
surgery but has not yet used for those purposes.
A substantial number of persons commenting on our proposed
definition of bred for use in research indicated that the definition
does not clearly delineate which uses of birds would be considered bred
for use in research and which would not be, and many asked how APHIS
would regulate based on a facility's intended use versus actual use of
animals.
The commenters' questions on this subject highlight an important
point, in that the use of the term in the AWA itself is ambiguous:
``Bred for use in research'' could be construed to mean bred with the
intended use at the time of breeding being future use in research, or
bred and used in research at a research facility. Several commenters
pointed out that the intended use for the bird at the time of breeding
may not be its ultimate use: A bird could be bred intending to be used
in research and later sold or exhibited if determined to be ill-suited
for research, or, alternatively, bred for purposes other than use in
research and later determined to be suitable for research and used in a
study or experiment.
The fact that intended use of animals can differ from actual use
later on poses two areas for revision for our rule and specifically our
proposed definition of bred for use in research.
First, the definition leaves open a broad path for breeders to
evade regulation: If APHIS regulated based on intended use of a bird, a
breeder could simply state that the bird is intended for research and
subsequently divert it to another, regulated use, thus circumventing
the regulations entirely. Second, it creates a compliance challenge for
registered research facilities, which are required to follow AWA
regulations specific to research facilities: At what point does a bird
in their possession stop being an AWA-covered, regulated animal and
begin being a bird used in research? Could a stated intent to use all
birds in research serve to exclude all birds in their possession from
regulation, even those not being used in research? In other words, when
do the regulations apply to a particular bird?
For these reasons, we decided that the most defensible
interpretation of ``bred for use in research'' in the AWA is that the
bird is bred in captivity and used for research at a research facility.
``Used for research'' applies to testing, experimentation, teaching,
and research, including activities such as holding, conditioning,
acclimating, and preparing animals for procedures. ``Used for
research'' is unambiguous and makes it easier for the regulated
community and APHIS to determine which birds are to be regulated and
which are not, and eliminates the challenges of regulating for intended
use. Accordingly, we are amending our definition of bred for use in
research to mean ``an animal that is bred in captivity and used for
research, teaching, testing, or experimentation purposes.'' We address
the comments below in light of the revised definition.
One commenter stated that the definition of bred for use in
research in the proposed rule is unclear as to whose
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intent is at issue--the owner of the bird at the time it is bred or the
ultimate user of the bird. The commenter asked us to clarify the
meaning of ``intended for use,'' including how intent is determined and
whose intent is at issue, and that we affirm that a change in intended
use will not by itself result in being regulated.
We acknowledge above that intended use would be difficult for
inspectors to externally verify and could expose an impermissible
exception in the regulations, as breeders excluded from regulation
based on their intention to breed birds for use in research could later
divert the birds to a different use such as pets or exhibition. Under
the revised definition, only bred and used for research, not a change
in intended use, would dictate a bird's regulatory status.
As we have noted, a bird may be intended for regulated purposes
such as for exhibition, only later to be determined to be suitable for
and used in research. On this point, a commenter asked if the proposed
definition would include birds ultimately acquired by a laboratory for
research, but that had been bred for the pet trade, such as a parrot,
finch, or other bird bred as a companion animal. Another commenter
asked if zebra finches bred for the pet trade but purchased by a
research institution would be covered by the proposed amendment.
Another commenter asked whether birds for which the intent of use has
changed over their lifetime, for example, birds raised as poultry to
provide eggs, but later given to a biomedical research institution for
teaching or research, are to be regulated.
In keeping with our revised definition, birds that are bred in
captivity and used by a research facility for research, education, or
product testing, would be considered ``bred for use in research.'' Such
birds would not be covered under the AWA or its regulations at the time
that they are so used. Their intended use prior to being used for
research would be immaterial for the purposes of meeting the
definition.
A commenter using wild and captive-bred birds in research asked us
to address their concerns as to which birds used for research would be
covered under the proposed regulations: Offspring of wild birds brought
into captivity and bred; birds used in research that are obtained from
wholesalers who breed birds for the pet trade; offspring of birds
obtained from wholesalers, and birds not bred for research but raised
in captivity. The commenter added that knowing the status of each is
important as it impacts the specific standards by which birds are
maintained and used with respect to identification, housing, and other
points on which compliance will be determined.
Birds obtained from their natural habitat (i.e., ``the wild''), are
covered under the AWA and do not meet the definition of bred for use in
research because the Act requires that such birds be ``bred,'' which we
interpret to mean hatched and raised in captivity. Moreover, possession
of wild birds is likely subject to USFWS regulations. Offspring of wild
birds, if hatched and bred in captivity, would not be covered under the
regulations if used for research, nor would birds obtained from
wholesalers and used for research. Birds not bred and used for research
but raised in captivity would be regulated if used for any covered
activity, but would not be regulated if used for research or exempted
under other provisions.
Several commenters stated that when a wild bird is bred in
captivity and intended to be used for more than one purpose, it should
not be covered under the regulations so long as the primary purpose is
research, teaching, testing or experimentation.
Under the revised definition of bred for use in research, a bird
hatched and bred in captivity and used for research would not be
covered. If the bird is used for any covered purpose prior to being
used for research, it would be covered under the regulations until used
in research.
A commenter stated that APHIS should provide guidance as to how
research institutions should document which birds in their possession
meet the definition of bred for use in research.
The revised definition of the term, described above, simplifies
determining whether birds meet the definition: if they have been bred
in captivity and used for research, they meet the definition.
A commenter asked whether APHIS has considered the challenges to
the supply of birds used for research that this proposed regulation
likely will cause, if enacted.
As birds bred for use in research are excluded under the definition
of animal in the Act and regulations and not covered under the proposed
regulations, we do not expect this rulemaking to impose regulatory
pressures on the supply of birds used for research.
A commenter stated that the phrase ``bred in captivity'' is not
species-specific, as both domesticated and wild species may be bred in
captivity, and noted that wild birds bred in captivity for use in
research fall under the definition of bred for use in research. The
commenter stated that footnote 12 in the proposal, which indicates that
research facilities using wild-caught birds to conduct investigations
into animal propagation activities are subject to the rule's
provisions, should be revised by removing ``investigations into animal
propagation'' as a regulated research activity.
While offspring of wild birds hatched in captivity and bred for use
in research would be excluded from regulation, birds that are captured
in the wild and held for use in research would be subject to
regulation, as those birds have not been bred in captivity but were
taken from the wild.
A commenter asked that we consider changing wording in the proposed
definition from ``bred in captivity'' to ``born or hatched in
captivity'' since the breeding activity may occur at a location outside
of the current owner's knowledge.
``Bred in captivity'' encompasses the act of being born or hatched
in captivity under the direction of a breeder, regardless of the
location where it occurs. It differentiates bred birds from wild,
caught birds.
A commenter suggested that we simply delete the definition of bred
for use in research because it includes birds bred for purposes other
than research, such as teaching and testing. Another commenter agreed,
stating that the definition, as worded, impermissibly broadens the
scope of excluded birds beyond those simply bred for research.
We are not removing the term or its definition, which we have
revised above. Under the definition of animal in the Act, regulated
uses include the use of birds in ``research, testing, and
experimentation,'' all of which are activities integral to research
conducted at research facilities. For this reason, we consider ``use in
research'' to be inclusive of teaching, testing, and experimentation,
and their supporting activities when these activities are conducted at
research facilities.
Finally, during the implementation period for this final rule, we
will respond to any research facilities having questions about the
regulatory status of their birds.
Carrier
In the regulations, carrier is defined as ``the operator of any
airline, railroad, motor carrier, shipping line, or other enterprise
which is engaged in the business of transporting any animals for
hire.''
We proposed to revise the definition of carrier to include an
exemption from AWA registration for anyone
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transporting a migratory bird covered under the MBTA from the wild to a
facility for rehabilitation and eventual release in the wild, or
between rehabilitation facilities. As transport of such migratory birds
is regulated by USFWS, any person transporting or otherwise possessing
a migratory bird is required to obtain authorization to do so from that
agency. We added this exception because APHIS and USFWS agree that the
continued transport of MBTA-covered birds for rehabilitation without
additional regulation is beneficial for species preservation and
outweighs any potential risk to animal welfare.
One commenter expressed concern that exempting transporters of wild
birds for rehabilitation purposes or release into the wild creates a
loophole through which such birds may be brought into captivity. The
commenter added that the exemption, as stated here and elsewhere in the
regulations, must be amended to indicate that the exemption is
effective only if the bird is released from human guardianship upon
completion of medical care or rehabilitation.
We disagree with the commenter, as not all wild birds that are
transported for rehabilitation purposes under the exemption are
released into the wild. Some may need to be euthanized, and others may
no longer be able to survive in the wild and must remain captive, at
which point they would be regulated and covered under transportation
and care standards.
Another commenter asked that the phrase ``and eventual release in
the wild'' should be omitted from this proposed revision and from that
of intermediate handler, as not all migratory birds requiring
rehabilitation are suitable for release.
We are making no changes in response to the comment as removing the
reference to release also removes the exemption for any transporter
moving a bird to a location where it is to be released.
A commenter recommended that if APHIS retains the wild bird
rehabilitation exemption, it should clarify in the rule and regulatory
text that ``rehabilitation'' is a regulated term and should also
provide definitions and guidelines consistent with or stricter than
USFWS guidelines for rehabilitation permits.
We are taking no action in response to the commenter's request. The
AWA does not regulate rehabilitation activity or issue rehabilitation
permits, and our use of the term ``rehabilitation'' is a reference to
USFWS's issuance of rehabilitation permits. The conditions under which
USFWS issues such permits are found in 50 CFR 21.76. The definitions of
carrier and intermediate handler thus refer to rehabilitation only in
the context of transporting wild birds covered under MBTA regulations
and under the USFWS's understanding of that term.
Dealer
Although we proposed no changes to the current definition of dealer
in Sec. 1.1 of the AWA regulations, a commenter requested that APHIS
expressly exclude breeders and purchasers of racing pigeons from the
definition.
We see no need to provide such an exclusion from the definition, as
in the exhibitor definition below we already exempt this activity from
regulation on grounds of being historically associated with the
agricultural arts and sciences.
Exhibitor
We proposed to revise the definition of exhibitor to include
persons who exhibit birds not bred for use in research. An exhibitor is
currently 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. This term includes
carnivals, circuses, animal acts, zoos, and educational exhibits,
exhibiting such animals whether operated for profit or not. Excluded
from the term, and therefore not regulated under the AWA regulations,
are organizations sponsoring and all persons participating in State and
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.
As with horse and dog races, and purebred dog and cat shows, we
noted in the proposal that we consider pigeon races and bird fancier
shows to be exhibitions rooted historically in the advancement of
agricultural arts and sciences. Animals exhibited or intended for
exhibit in agricultural exhibitions that USDA has determined are
intended to advance agricultural arts and sciences are not covered
under the AWA. Therefore, we proposed amending the definition of
exhibitor by adding pigeon races and bird fancier shows to the list of
exhibitions excluded from coverage. In addition, for clarity, we added
free-flighted bird shows as an illustrative example of an animal
exhibition that is included under the definition of exhibitor, although
persons who free-fly their birds solely for their own use or enjoyment,
without compensation, are not required to obtain a license for that
activity.
A few commenters asked that we not exclude pigeon races and bird
fancier shows as protected exhibitions, with one stating that pigeon
racing is an exhibition activity with animal welfare and disease risks
and should be regulated, and adding that it is difficult to think of
pigeon races as advancing agricultural arts and sciences. Similarly,
another commenter disagreed with our position that pigeon racing has
agricultural origins, noting that the sport is instead rooted in ``the
use of homing pigeons for non-agricultural activities since ancient
times,'' and added that homing pigeons used in racing are not farm-type
animals. The commenter also disagreed with our reference to horse and
dog shows as examples of other activities similar to pigeon racing
based in agriculture, noting that horse and dog racing comprise a
separate exclusion under the definition of exhibitor and should not
necessarily be used as a basis for an agriculture-based exclusion.
We are making no changes in response to the commenters' request.
Under the definition of exhibitor in the AWA, the USDA Secretary has
the authority to determine whether exhibitions are intended to advance
agricultural arts and sciences and to exclude them from regulation on
that basis. While pigeons are not typically kept on farms as a food
animal, the exemption in the AWA's definition of exhibitor is thus
broader than mere use of an animal on the farm. We also disagree that
pigeon racing should be considered aligned with the use of homing
pigeons, and maintain that the act of racing pigeons has a distinct
agricultural heritage. Staged agricultural exhibitions of racing
pigeons have occurred since the 1800s. Moreover, these have occurred
without a demonstrated history of spread of disease or lapses in animal
welfare.
Because we are excluding falconry from the definition of animal in
Sec. 1.1, we are also amending the proposed definition of exhibitor to
also exclude falconry, as we received many comments noting that
falconry birds are not typically used under any of the uses under the
definition of animal in the Act: ``[R]esearch, testing,
experimentation, or exhibition purposes, or as a pet.'' Several
commenters noted that falconers rarely exhibit their birds for purposes
outside the practice of falconry. Commenters also cited the historical
and agrarian roots of falconry, and the fact that falconers are already
regulated, required
[[Page 10661]]
to be sponsored under a master falconer, undergo extensive training,
and demonstrate competence with controlling their birds. They must also
hold both State and Federal permits, and Tribal permits as applicable.
A commenter stated that APHIS should clarify the proposed
regulations with regard to the scope of exhibitor facilities to be
regulated, as it is unclear whether they apply to wildlife sanctuaries,
which also exhibit birds for commercial and fund-raising purposes. The
commenter added that if APHIS is unable to implement new regulations
for all such facilities, then it should withdraw any new regulations
until it can do so.
Captive birds in a wildlife sanctuary that are exhibited for the
purposes described by the commenter would be regulated. Birds
undergoing rehabilitation would be exempt from regulation provided they
are not exhibited and physically separated at the facility from
exhibited birds. Without separation, the birds undergoing
rehabilitation could affect the health or well-being of the exhibited
birds. APHIS intends to implement and enforce the regulations for all
such facilities covered under the AWA.
A commenter noted that educational exhibits developed for a primary
purpose other than animal exhibition may ``incidentally'' include
birds, e.g., an indoor arboretum in which wild birds are present, or in
which a few birds are kept, and the birds themselves are not being
exhibited but are in an exhibit of an entirely different nature. The
commenter encouraged APHIS to consider revising the definition of
exhibitor by adding an exclusion for such incidental exhibits with
birds.
We are making no exclusions from the definition of exhibitor as
requested by the commenter because one is not necessary. If wild birds
inadvertently enter an exhibit, they are not exhibited birds and
efforts should be made to remove them if they pose a threat to the
welfare of covered animals in the exhibit.
A commenter asked us to clarify whether the definition of exhibitor
includes individuals on social media, or ``influencers,'' who present
their birds to the public through social media platforms and receive
compensation. The commenter opined that influencers are covered under
the proposed standards but is unclear if APHIS intends to apply the
regulations to these persons.
Birds that would be covered under the Act if exhibited live would
also be covered if exhibited via social media. Any exemptions for
online exhibitors would be the same ones available to persons
exhibiting animals live.
A commenter objected to the inclusion of free-flighted bird shows
under the definition of exhibitor and requested that APHIS exempt
individuals who free-fly personal pet birds and members of free-flying
clubs who fly their birds in public. Similarly, another commenter asked
us to provide examples of free-flighted shows covered under the
regulations and stated that free-flighted birds should not be subject
to licensing unless someone has more than eight birds that fly at one
time. Another commenter asked that the definition of exhibitor be
amended to exempt the use of raptors protected under the MBTA for
educational uses, particularly free-flighted bird shows.
Falconers and others who free-fly birds for their personal use and
enjoyment and not for exhibition purposes are not covered under the
regulations. Persons who exhibit birds to the public for any purpose
and who are not otherwise exempted are subject to AWA licensing.
Pet Animal
Under the current regulations, pet animal is defined as ``any
animal that has commonly been kept as a pet in family households in the
United States, such as dogs, cats, guinea pigs, rabbits, and hamsters.
This term excludes exotic animals and wild animals.'' We proposed
including birds under the definition of pet animal and amending the
illustrative list of animals contained in the definition by adding
examples of pet birds. We proposed that such birds include, but are not
limited to parrots, canaries, cockatiels, lovebirds, and budgerigar
parakeets. We listed these particular birds because they constitute the
majority of birds bought and sold as pets in the United States and are
thus a good illustrative example of what constitutes a pet bird.
A few commenters asked that we amend the list of birds in the
definition because cockatiels, lovebirds, and budgerigar parakeets are
all types of parrots. One commenter suggested that parrots, canaries,
finches, and doves would serve as better examples of pet birds.
The list we provided of pet birds is intended for illustrative
purposes, and we do not intend it to be exhaustive. We acknowledge that
birds listed by the commenter can be kept as pets but see no need to
add them to the definition.
Numerous commenters disagreed with our proposed inclusion of birds
under the definition of pet animal. Many commenters expressed concern
that if such birds are defined as pet animals, they would not receive
protection, as retail pet stores could confine and sell them without
obtaining a license and that, for this reason, parrots and other bird
species should never be kept or sold as pets.
The inclusion of birds in the definition of pet animal will only
improve the welfare status of birds sold as pets at retail, as many
currently unlicensed outlets already selling birds as pets will need to
become licensed. Although a retail outlet that sells birds meeting the
definition of pet animal may meet the definition of a retail pet store
in Sec. 1.1 and thus be exempt from licensing, that outlet can only
remain exempt if all such animals are sold in face-to-face transactions
in which the seller, buyer, and animal are physically present at the
place of business or residence, which affords a measure of protective
public oversight. Retail outlets selling any animal via remote or
online transactions and not otherwise eligible for de minimis or other
exemptions are subject to APHIS licensing and inspection. Moreover,
outlets selling wild or exotic animals as defined in Sec. 1.1 are not
eligible for the retail pet store licensing exemption.
Several commenters asked that we define pet animal such that all
bird species are protected as wild and exotic animals. A commenter
stated that no explanation is given for why non-native, non-
domesticated birds are considered exotic or wild, and another asked
that we make a clearer distinction between wild birds and various
domestic species. Another commenter who disagreed with the definition
of pet animal stated that animals commonly kept on display or traded as
pets are often indistinguishable from their wild counterparts--they are
native species of other countries, and, in some cases, of the United
States, and meet the definition of exotic animal, or wild animal, under
the Act.
We note that many mammals that meet the definition of pet animal,
such as hamsters, were once considered exotic and wild, and that
parakeets and several other species of pet birds were similarly
regarded. Accordingly, the fact that a bird species that was once wild
or non-native is now sold as a pet should not preclude it from being
considered a pet animal. While we proposed amending the definition of
pet animal by adding ``birds'' and listing examples of birds commonly
kept as pets, we emphasize that birds meeting the definition of exotic
animal or wild animal as currently defined in Sec. 1.1 will continue
to be excluded from the definition of pet animal and would thus be
subject to regulation. Any retail
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outlets selling exotic or wild birds will require APHIS licensing and
inspections. Furthermore, trade in native migratory wild birds is
prohibited under the MBTA without prior authorization from the USFWS.
Pet stores that are uncertain whether they sell pet birds or wild or
exotic birds may contact APHIS during the implementation period after
this rule becomes effective but before it is applied to regulated
entities for guidance.
One commenter noted that a parrot is an exotic species and not a
pet, and that genetically and behaviorally they cannot be considered to
be a domesticated species.
A distinction exists between birds that have historically been used
as pets, including some species of parrots, and birds that are wild or
exotic animals as defined under those terms. On this point, we
acknowledge that some types of parrots are not commonly kept as pets in
family households in the United States and may fall under the
definition of exotic animal. Accordingly, we are removing ``parrots''
from the illustrative list in the definition, although some parrots
will still be defined as a pet animal if they meet the definition of
pet animal. In short, while not all parrots are pet animals, some are.
A commenter stated that USDA has failed to provide an illustrative
list of exotic birds, despite having historically done so for other
species.
We do not intend to develop a list of exotic species of birds.
However, we are drafting a list of birds commonly kept as pets that we
intend to make available prior to the implementation period for this
rule. We will offer guidance to new and current licensees as to the
regulatory status of their bird species if they have questions during
that time.
A commenter stated that raptors as classified by APHIS are either
``wild animals'' or ``exotic animals'' depending on the raptor's native
origin and do not fall under the pet animal definition, noting there is
no raptor pet trade. Similarly, a commenter asked that we revise the
definition of pet animal to explicitly state that it does not include
birds protected under the MBTA, whether of wild or captive origin.
We agree that raptors and other birds protected under the MBTA do
not meet the definition of pet animal. However we do not find it
necessary to revise the definition to exclude them because the absence
of a raptor pet trade suggests that they are not being sold as pets.
Furthermore, as we discuss in this document, falconry is not a use of
birds that is covered under the AWA.
A commenter requested that APHIS specifically exclude racing
pigeons from the definition of pet animal.
We are making no change to the definition in response to the
commenter's request, as racing pigeons do not meet the definition of
pet animal for reasons previously articulated.
Exotic Animal
Exotic animal in the current regulations is defined in part as an
animal that is ``native to a foreign country or of foreign origin or
character, is not native to the United States, or was introduced from
abroad.'' While some birds that were introduced from abroad meet the
definition of pet animal, as discussed above, exotic and wild animals
are excluded from the definition of pet animal.
In proposing to regulate birds not bred for use in research, we
noted that such birds would be subject to all applicable regulations in
9 CFR parts 1 and 2. Accordingly, birds meeting the definition of
exotic animal would be defined and regulated as such.
A commenter opined that this definition would consider as
``exotic'' certain species of birds such as parakeets, canaries, and
zebra finches that were not initially native to the United States, but
are now commonly kept as pets or used in research and no longer exotic
in the normal sense of the word. The commenter encouraged APHIS to
review the definition of exotic animal and exclude species of birds
that were introduced into the United States long ago and are now
commonly kept in captivity.
The commenter is correct in indicating that the definition of
exotic animal applies to many animals that were introduced into the
United States long ago and now kept in captivity or as pets. However,
the types of birds that the commenter asked that we exclude from the
definition of exotic animal are already excluded from that definition
by virtue of their being included under the revised pet animal
definition. The terms pet animal and exotic animal are thus used in a
mutually exclusive sense within the regulations: A pet animal cannot be
an exotic animal and vice versa. For this reason, we are making no
changes to the definition of exotic animal as requested by the
commenter. However, the commenter does raise a significant point. As
with parakeets and cockatiels, other birds now considered to be exotic
could, over time, be routinely sold as pets and meet the definition of
pet animal. We will monitor the pet market in birds to identify exotic
species that are being marketed as pet birds and after notice is
provided, ensure that they are included under the proper definition.
Farm Animal; Poultry
Currently, Sec. 1.1 defines a farm animal as ``any domestic
species of cattle, sheep, swine, goats, llamas, or horses, which are
normally and have historically, been kept and raised on farms in the
United States, and used or intended for use as food or fiber, or for
improving animal nutrition, breeding, management, or production
efficiency, or for improving the quality of food or fiber. This term
also includes animals such as rabbits, mink, and chinchilla, when they
are used solely for purposes of meat or fur, and animals such as horses
and llamas when used solely as work and pack animals.'' Poultry is not
currently defined in the AWA regulations.
We proposed several changes to the definition of farm animal to
ensure appropriate coverage for birds. Domestic species of poultry have
historically been kept and raised on farms in the United States and
used for food or fiber or for improving animal nutrition, breeding,
management, or production efficiency, or for improving the quality of
food or fiber. Therefore, we proposed amending this definition to
include such poultry. This would make the definition of farm animal
consistent with the definition of animal, which lists poultry as a kind
of farm animal that is exempt from coverage when used or intended for
use as food or fiber, for improving animal nutrition, breeding,
management, or production efficiency, or for improving the quality of
food or fiber.
A commenter stated that in order to eliminate any
misinterpretations we should revise the definition of farm animal to
specifically identify chickens, as well as chicken breeder flocks and
parent flocks used in broiler chicken production. The commenter
recommended adding ``or breeding of food-producing animals or their
progenitors'' as one of the listed uses that qualifies animals as farm
animals in the definition.
We see no need to revise the proposed definition of farm animal to
include chickens, as they are specifically listed under poultry and
poultry are included under the definition of farm animal. Moreover, the
use of broiler chickens as poultry used or intended for use as food
already excludes them from coverage by virtue of their being excluded
from the definition of animal in Sec. 1.1.
We also proposed to revise farm animal to include animals when used
solely for their feathers or skins. Our proposed addition of feathers
accounted for morphological differences between
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birds and other animals and is the avian equivalent of farm animals
excluded from regulation when used solely for the purposes of fur. The
addition of skins to the list reflects the common practice of using
ostrich and other skins of birds for leathers. We also proposed adding
ratites (e.g., ostrich, rhea, and emu) to the illustrative list of
animals that are included in this term when used solely for purposes of
meat, fur, feathers, or skins.
In addition to these changes to the definition of farm animal, we
proposed adding a separate definition of the term poultry to the AWA
regulations to clarify what birds are considered poultry. This term is
defined as any species of chickens, turkeys, swans, partridges, guinea
fowl, and pea fowl; ducks, geese, pigeons, and doves; grouse,
pheasants, and quail.
A commenter stated that poultry obtained from commercial production
for research, teaching, and education fall outside the scope of this
proposed rule and asked that we confirm that these poultry are not
covered.
Such poultry would be considered bred for use in research and not
subject to the regulations.
A commenter requested that we specifically clarify that racing
pigeons meet the definition of farm animal.
Pigeons used for food or feathers are poultry and would be
considered farm animals not covered under the regulations. As discussed
above, racing pigeons are not covered under the regulations because we
consider them to be used in an agricultural context, and animals used
in such a manner are excluded from regulation.
Another commenter asked that feral pigeons receive protection under
the AWA regulations.
Feral pigeons by definition live in a wild state and are not
covered under the AWA.
A commenter asked if farmed ostrich, rhea, and emu will be
considered domestic poultry under the proposed regulations.
We do not consider ratites to be poultry, but under the definition
of animal in Sec. 1.1, farm animals used or intended for use as food
or fiber, including farmed ratites, are excluded from AWA regulation.
Another commenter stated that gamefowl farms should be exempt from
regulation as such birds cannot be housed or transported together in a
social environment, noting that the spurs of roosters contain a
bacteria that can cause a septic infection.
Provided that the farmed gamefowl are used or intended for use as
food or feathers, or for improving animal nutrition, breeding,
management, or production efficiency, or for improving the quality of
food or feathers, the birds are excluded from coverage under the Act.
A commenter asked if poultry are exempt from regulation under the
``food and fiber'' provision if they are used as feeder animals for
other species.
If poultry are being bred and used as food for other animals, they
are exempt under this provision.
The commenter also asked if a group of grouse not meant for
exhibition and being managed as a breeding colony would be exempt from
regulation, as one of the exempted activities listed under farm animal
(in which poultry will be included) is breeding.
If the grouse breeding colony and offspring are used or intended
for use as food or feathers, or for improving animal nutrition,
breeding, management, or production efficiency, or for improving the
quality of food or feathers, the colony and offspring are exempt from
regulation.
Intermediate Handler
In the regulations, an intermediate handler means any person,
including a department, agency, or instrumentality of the United States
or of any State or local government (other than a dealer, research
facility, exhibitor, any person excluded from the definition of a
dealer, research facility, or exhibitor, an operator of an auction
sale, or a carrier), who is engaged in any business in which he
receives custody of animals in connection with their transportation in
commerce.
We proposed amending the definition of intermediate handler to
include an exemption from AWA licensing for anyone transporting a
migratory bird from the wild to a facility for rehabilitation and
eventual release in the wild, or between rehabilitation facilities. Any
person intending to transport or otherwise possess a migratory bird
covered under the MBTA is currently required to obtain authorization
from USFWS.
As we proposed the same amendment to carrier, the comments on this
provision addressed both terms and thus are discussed above under the
definition of carrier.
Retail Pet Store
Currently, a retail pet store is defined as ``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.''
The current definition also excludes establishments or persons
conducting certain activities, meaning that these establishments do not
meet the retail pet store definition and are therefore not exempt from
licensing. These exclusions from the definition are as follows:
<bullet> Establishments or persons who deal in dogs used for
hunting, security, or breeding purposes;
<bullet> 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.;
<bullet> Any establishment or person selling warmblooded animals
(except birds, and laboratory rats and mice) for research or exhibition
purposes;
<bullet> Any establishment wholesaling any animals (except birds,
rats, and mice); and
<bullet> 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.
We proposed to revise the definition of retail pet store by
removing the parenthetical exceptions for birds from this list of
exclusions. As we noted in the proposal, these parenthetical exceptions
exist as a result of the historical exclusion of all birds from the
definition of animal in Sec. 1.1 of the regulations, but they are now
inconsistent with the current definition of animal (under which birds
not bred for use in research are included).
A substantial number of commenters requested that we revise the
definition of retail pet store to ensure that all wild and exotic bird
species receive protection. In support of this request, commenters
stated that many bird species are wild and exotic and have not been
domesticated like dogs and cats, and that pet shops that sell birds
should be licensed.
We disagree with the commenters that pet stores should need to be
licensed simply because they sell birds. As we noted above in our
response to comments on our proposed changes to the pet animal
definition, several species of birds have historically been used as
household pets, including some species of parrots. While these birds
were initially exotic when introduced
[[Page 10664]]
into the pet trade, they have become widely regarded as pet animals
today, and we see no reason to consider them distinct from other pet
animals. Conversely, we agree with the commenters that many species of
birds are wild or exotic animals, and should not be considered pets. In
this regard, we believe that our proposed definition of retail pet
store actually provides additional oversight protection for such birds,
as businesses selling any bird meeting the definition of exotic animal
or wild animal \10\ as currently defined in Sec. 1.1 would not be
eligible for the retail pet store exemption and require licensing. The
definition we proposed also excludes businesses that sell pets in
transactions without the buyer being physically present to purchase or
take custody of the animal. Currently unregulated businesses already
selling wild or exotic birds, or birds as pets online without the buyer
being physically present at sale, will need to become licensed or seek
an exemption.
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\10\ Moreover, nearly all wild birds in the United States are
regulated by USFWS under the MBTA.
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A commenter stated that because of their longevity, many parrots
are abandoned by their owners and end up in rescue organizations and
sanctuaries. The commenter asked that we revise the definition of
retail pet store to explicitly include protections for long-lived
exotic birds such as parrots that are being bred and sold at retail pet
stores.
As the definition of retail pet store is intended for persons or
businesses physically having pet animals for sale, revising the
definition of retail pet store would not address the commenter's
concern about abandoned parrots because they would no longer be in the
retail pet store's possession. We note that birds at rescue
organizations and sanctuaries that are exhibited or sold receive
protection as they are covered under the AWA.
Weaned
Currently, Sec. 1.1 defines weaned to mean that ``an animal has
become accustomed to take solid food and has so done, without nursing,
for a period of at least 5 days.'' We proposed to amend this definition
to make it applicable to birds by adding that a bird is weaned if it
has become accustomed to take food and has so done, without
supplemental feeding from a parent or human caretaker. Signs that a
bird or other animal has become accustomed to take food include the
animal's ability to maintain a constant body weight during weaning.
A commenter stated that many falconers choose to train imprinted
birds that they have raised themselves from a young age and that 5 days
is a long time in the development of an imprint. The commenter noted
that approximately a fifth of falconers in their organization have
received young birds from breeders via commercial shipment that did not
meet this 5-day test, and that a more reasonable definition for raptors
would be eating unassisted for 2 days.
Practices associated with the sport of falconry, including the
activity described by the commenter, are not among the uses covered
under the AWA.
Another commenter disagreed with the definition of weaned, noting
that some species feed their young well after they are able to feed and
fend for themselves. The commenter added that ``constant body weight''
implies unchanging weight, which is unreasonable, and suggested that
``stable'' be used instead. Similarly, a commenter asked that APHIS
amend the definition to remove the requirement that a bird maintains
its weight during this period.
Although some species may continue to feed their young well after
the young can feed and fend for themselves, we consider the offspring
as being weaned. In the proposed definition, we indicated that
maintaining a constant body weight is only included among other
possible signs that a bird has become accustomed to take food during
weaning. We agree with commenters that ``weaned'' does not necessarily
mean that the bird has stopped growing or that its body weight is
constant and are removing the last sentence referring to signs of
weaning.
Other Applicable Terms and Definitions in Sec. 1.1
Finally, persons affected by this rule would be subject to other
terms and definitions in Sec. 1.1 that we did not add to the
regulations or revise, as applicable. Those terms, which include
commerce, transporting vehicle, and zoo, are germane to many or all
AWA-related activities.
Regulations for AWA Licensees and Registrants in 9 CFR Part 2
In addition to the amendments we proposed making to the
regulations, all applicable licensing, registration, research, and
inspection requirements currently in 9 CFR part 2 for licensees and
registrants will apply to all persons newly regulated as a result of
this rulemaking.
9 CFR Part 2, Subpart A: Licensing
Under Sec. 2.1(a)(1) in subpart A, Licensing, persons who plan to
maintain and use animals covered under the AWA regulations and who are
not otherwise exempt from licensing are required to submit a license
application provided by APHIS. Information requested by the application
includes the address of each facility or facilities; maximum number of
animals on hand at any one time during the period of licensure; types
of animals maintained; and disclosure of any no contest plea or finding
of violation of Federal, State, or local laws or regulations pertaining
to animal cruelty or the transportation, ownership, neglect, or welfare
of animals. The application must be submitted to APHIS-Animal Care,
along with a $120 licensing fee as indicated in Sec. 2.1(a)(2).
Licenses are valid for 3 years. Persons seeking a license must also
agree to a prelicensing inspection demonstrating that his or her
location(s) and any animals, facilities, vehicles, equipment, or other
locations used or intended for use in the business comply with the Act
and the regulations and standards.
A commenter stated that license fees should be adjusted by the
Secretary in accordance with Sec. 2153 of the Act such that the value
of the fees also supports bird inspection and rehabilitation processes.
Section 2153 states that ``[T]he Secretary shall charge, assess,
and cause to be collected reasonable fees for licenses issued. Such
fees shall be adjusted on an equitable basis taking into consideration
the type and nature of the operations to be licensed. . . .'' These
fees are not user fees and are not linked to recovering the cost of
licensing, inspection, enforcement, or other APHIS services, but rather
set at a level by APHIS to ensure that the fees are reasonable based on
the classes of persons and businesses regulated. As to rehabilitation
processes, we note that APHIS does not regulate animal rehabilitation
activities.
We received numerous comments in which persons expressed concerns
about the prelicensing inspection requirement. These comments,
discussed below, include concerns about APHIS having the resources to
adequately conduct inspections, as well as concerns about the
inspection disrupting facility activities and violating privacy.
Some commenters questioned APHIS' ability to conduct equitable,
comprehensive inspections and enforce the proposed regulations without
additional human or financial resources.
We estimate in the revised economic analysis prepared for this
final rule that there will be between 5,975 to 7,913 newly regulated
entities maintaining
[[Page 10665]]
birds for covered uses. While APHIS will need to allocate resources to
conducting prelicensing inspections for new licensees, we are confident
based on our long experience with inspections that we can perform these
activities effectively. Moreover, our adoption of a 1-year delayed
implementation of the rule's provisions allows us to better manage
prelicensing inspections. APHIS also uses a risk-based inspection
system \11\ that uses several objective criteria, including but not
limited to past compliance history, to determine the minimum inspection
frequency at each licensed and registered facility. Facilities meeting
the criteria for low-frequency intervals are subject to inspection once
every year, or every 2-3 years, or in some cases only when we receive a
complaint. Facilities determined to require high-frequency inspections
are subject to inspection as often as every 3 months. Those in the
middle are inspected about once per year. Registered research
facilities are inspected at least once per year, as required by the
AWA.
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\11\ See more about the risk-based inspection process at <a href="https://www.aphis.usda.gov/aphis/ourfocus/animalwelfare/awa/ct_awa_risk_based_inspection_system">https://www.aphis.usda.gov/aphis/ourfocus/animalwelfare/awa/ct_awa_risk_based_inspection_system</a>.
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Some commenters stated that the inspection of home-based businesses
was an unconstitutional invasion of privacy, and that APHIS is not
authorized to conduct such inspections.
While the U.S. Constitution affords rights to persons against
unlawful search and seizure in their homes, Sec. 2146 of the AWA
explicitly authorizes inspections of licensees to determine compliance
with the regulations. However, such inspections are limited to only
those areas that impact the well-being of the animals, such as areas
where food and medicine for the animals are stored. In other words,
only the ``business'' part of a residence would be inspected for
compliance with animal welfare standards, and APHIS inspectors are
trained to observe and respect this distinction.
Some commenters raised biosecurity concerns about inspectors
carrying pathogens into the facility. A few commenters stated that
weekly PCR testing and vaccination requirements for COVID-19 should be
considered for APHIS inspectors. Some stated that inspectors should be
required to wear protective clothing to reduce the risk of disease
transmission.
As is currently the practice, APHIS inspectors will take all
biosecurity precautions sufficient to minimize introduction of human-
or bird-based pathogens into facilities.
Several commenters stated that their birds are sensitive to
strangers during breeding and nesting periods and that the presence of
an inspector could cause birds to injure themselves or their nestlings.
One such commenter stated that minor stresses, like strangers walking
into the aviary and being seen or heard by the birds, can lead to the
death of the female and offspring. Another commenter stated that
psittaculture, the captive breeding and conservation of rare parrots,
would be harmed by inspectors disrupting nesting and breeding
activities. Some commenters called for all breeding facilities to be
exempt from regulation, as disruption of breeding resulting from
inspections could cause substantial costs to the breeder. On the other
hand, some commenters stated that nesting and breeding concerns should
not impede compliance inspections, and others noted that remote camera
technology can allow inspectors to view birds without entering the
nesting area.
We acknowledge commenter concerns regarding the presence of
strangers during periods of breeding while affirming the importance of
determining compliance through visual inspection. APHIS will not impose
any requirements that will interfere with a species' natural behavior
when it comes to nesting and breeding. APHIS will work with facilities
to find approaches that accommodate these concerns while ensuring that
inspections can occur at appropriate times and possibly with the
assistance of technology, if appropriate. As we note above, inspections
in such situations would not be random but would be based on the
facility's record of compliance and other objective criteria we use to
determine inspection frequency.
One commenter stated that, in addition to demonstrating compliance
through a prelicensing inspection, license applicants should also have
to demonstrate experience with the taxa they are caring for as measured
by the number of years they have been working with the taxa, by working
with a mentor or outside expert who is able to provide knowledge-based
skills, or by an industry certification. Similarly, another commenter
stated that some form of experience or knowledge-based skills should be
expected, as no level of experience is required to acquire the USDA
license.
We agree that an applicant having the ability to adequately care
for their particular types of birds is a prerequisite for obtaining a
license. However, APHIS has other ways of gauging this ability through
the inspection without requiring a certain number of years of
experience or an industry certification. During the prelicensing
inspection, inspectors can see that a well-maintained facility
indicates knowledge and application of professional standards on the
part of the applicant. Inspectors also ask questions and engage in
dialogue to gauge an applicant's ability to ensure adequate care for
its animals.
A commenter asked if there will be a compliance period for newly
regulated entities, and what will happen to birds of persons not in
compliance.
APHIS will establish an implementation period of 180 days after
date of publication for persons already licensed for mammals and using
birds, and a period of 365 days for newly licensed persons using birds
for regulated purposes. During these periods, APHIS will provide
guidance to facilities to help them come into compliance with the
regulations to ensure the birds' health and well-being. If inspectors
discover conditions or records that are not in compliance with the
regulations, APHIS-Animal Care establishes a deadline for correcting
these items and provides it in the inspection report. If the
noncompliance is a repeat noncompliance for which the original
correction deadline has already passed, no additional time is given for
corrections. Inspectors are required to reinspect any facilities where
areas of noncompliance were found that have, or are likely to have, a
serious impact on the well-being of the animals. In cases of unrelieved
suffering, APHIS may confiscate the animals or arrange for their
placement elsewhere.
Some commenters raised questions about the qualifications of APHIS
inspectors and whether such inspectors would have the avian expertise
needed to evaluate facilities housing birds. One stated that APHIS
inspectors lack the skills necessary for assessing avian health and
husbandry, such as knowledge of caging, flocking birds, and housing
different bird species for compatibility. Some recommended that only
veterinarians with avian expertise should conduct inspections of
facilities, as they have the education and experience necessary to
inspect birds. Another commenter suggested that we require veterinary
oversight in lieu of inspections, adding that if a qualified
veterinarian is not available, entities could use an avian-specific
regulatory agency such as the Model Avicultural Program to assist in
qualifying facilities.
All APHIS officials conducting compliance inspections will have the
knowledge and resources needed to determine whether facilities are
meeting the standards, with regular trainings to
[[Page 10666]]
inform them of emerging developments in aviculture. This can be
accomplished without a specific prior background in avian health.
Veterinary oversight and the Model Avicultural Program alone would
provide some level of humane care, but are not sufficient surrogates
for Federal inspection of the facilities. For example, as we mentioned
in the proposed rule, the Program addressed some, but not all, of our
proposed standards.
A commenter asked us to include a provision to have care for birds
be a point of evaluation, and not just a category investigated on the
basis of a complaint.
Inspections are not conducted only in response to complaints,
although we do investigate complaints as they are received. APHIS
requires a prelicensing inspection as a condition of licensing as well
as subsequent compliance inspections of facilities based on level of
risk, with more frequent and in-depth inspections at facilities posing
a higher risk of animal welfare concerns.
AWA Licensing Requirements and Birds Covered Under the Migratory Bird
Treaty Act
The MBTA (16 U.S.C. 703-712), passed by Congress in 1918,
implements a series of treaties between the United States and Canada,
Mexico, Japan, and Russia intended to protect and sustain populations
of migratory birds. Under regulations developed and enforced by USFWS,
the MBTA prohibits the take (including killing, capturing, selling,
trading, and transport) of protected migratory bird species without
prior authorization.\12\ With some exceptions,\13\ any activity
involving the use, possession, or transport of a migratory bird, or the
parts, nests, or eggs of such birds, requires a USFWS permit specific
to the activity. Types of migratory bird permits and their provisions,
listed in 50 CFR part 21, subpart C, include but are not limited to
those intended for import or export, scientific collecting, falconry,
raptor propagation, and rehabilitation.\14\
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\12\ A list of migratory birds protected under the MBTA can be
found at <a href="https://ecfr.federalregister.gov/current/title-50/chapter-I/subchapter-B/part-10/subpart-B/section-10.13">https://ecfr.federalregister.gov/current/title-50/chapter-I/subchapter-B/part-10/subpart-B/section-10.13</a>.
\13\ See 50 CFR 21.12, ``General exceptions to permit
requirements.'' Exceptions address handling and transport of
migratory birds by certain persons and institutions for the purpose
of ensuring their health and safety.
\14\ Regulations and permits specific to bald and golden eagles
are located in 50 CFR part 22.
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As we noted in the proposal, the 2002 amendments Congress made to
the Act subjected birds not bred for use in research to regulation, and
did so without distinguishing migratory birds from other birds. While
migratory birds are currently covered under the MBTA and its
regulations, the MBTA's primary objective is to sustain and protect
native populations of such birds rather than to establish specific
standards of care and humane treatment for birds in captivity. In other
words, the MBTA was drafted with the intention of preventing poaching
and overhunting of migratory birds and does not include specific animal
welfare requirements.
In the proposal, we invited comments on ways that we may reduce
regulatory burden on persons who could be potentially regulated by both
APHIS and USFWS.
One commenter asked us to interpret all migratory birds as wild
animals to be consistent with a ``plain reading'' interpretation of the
definition of wild animal in 9 CFR 1.1.
We are taking no action in response to the commenter's request. The
regulations define wild animal as ``any animal which is now or
historically has been found in the wild, or in the wild state, within
the boundaries of the United States, its territories, or possessions,''
whereas some migratory birds travel beyond those boundaries. Moreover,
certain birds sold in the pet trade (e.g., cockatiels) are migratory,
and the commenter's suggestion would lead to confusion about whether
such animals, when sold as pets, are or are not regulated.
The same commenter also requested that we interpret migratory birds
to not qualify as ``small,'' so that migratory birds would not be
excepted from licensing requirements under 9 CFR 2.1(a)(3)(iii). The
commenter added that while the term ``small'' implies a meaning of
size, in USDA practice it is used to indicate the need for specialized
care in captivity.
Contextually, the word ``small'' is used in Sec. 2.1(a)(3)(iii) to
refer only to mammals. Birds are not mammals.
One commenter stated that while Federal authority over migratory
birds remains under the MBTA, it does not replace or prohibit welfare-
based regulations for migratory birds in captivity. The commenter added
that the MBTA was specifically enacted to address hunting of migratory
birds, not their care and conditions in captivity, and covers conduct
that is not addressed by the AWA, just as the AWA covers conduct not
covered by the MBTA. The commenter reasoned from this that there is no
conflict in having both the USFWS and APHIS regulate the treatment of
migratory birds. Another commenter stated that rather than drafting
regulations with the intent to ``minimize dual regulation'' and
potentially carve out migratory birds from AWA protections, USDA should
maximize animal welfare. The commenter noted that the AWA and MBTA have
distinct missions and that other Federal regulatory overlaps have not
prevented USDA from promulgating robust standards for the care and use
of animals--the commenter cited the interplay between the AWA and
Endangered Species Act as one such example.
We agree with the commenters that both agencies may regulate
migratory birds with minimal regulatory overlap, although we have no
intention of exercising duplicative oversight of handlers and
transporters. Unlike the MBTA, which addresses the protection of free
and captive migratory birds, the focus of the AWA is on the standards
of care, use, and welfare of regulated birds. As the commenter noted,
many mammals currently regulated under the AWA are also regulated, for
different purposes, under the Endangered Species Act and statutes of
other Federal Agencies.
One commenter requested that APHIS communicate not only with USFWS
but also the U.S. Geological Survey's (USGS) Bird Banding Laboratory
and work with both agencies to reduce the amount of regulatory overlap.
The commenter noted that the USGS issues bird banding permits and data
needs to be submitted to USGS, State agencies, and the relevant
Institutional Animal Care and Use Committee (IACUC) in fulfillment of
each of those units' permits, which is a heavy administrative burden
for bird banders and researchers. The commenter suggested that APHIS
rely on USGS oversight for marking and tagging, and on USFWS oversight
for waterfowl and endangered birds.
We appreciate the commenter's suggestion to work with USGS and
USFWS in identifying birds. We will consider the suggestion and, if
working with USGS allows us to continue meeting our requirements for
individual identification while reducing burden on bird banders and
researchers, we will consider developing a strategy to do so.
A commenter stated that it is unclear how birds that are part of a
cooperative Endangered Species Act recovery and reintroduction program
will be regulated under the proposed regulations.
Wild birds used strictly for the purpose described by the commenter
are not regulated under the AWA.
A commenter recommended that USFWS continue to regulate migratory
birds taken from or returned to the wild so that USFWS authorization
would be
[[Page 10667]]
required to authorize the use of MBTA-protected birds that are wild-
bred (e.g., not captive-bred).
USFWS will continue to regulate such species as is currently the
case, and APHIS will enforce AWA regulations as applicable.
AWA Licensing and Raptors
Raptors that are native to the United States or its territories are
protected and regulated as migratory birds under the MBTA, with bald
and golden eagles receiving additional protections under the Bald and
Golden Eagle Protection Act (16 U.S.C. 668-668c). The MBTA prohibits
taking, possessing, purchasing, bartering, selling, or offering to
purchase, barter, or sell raptors unless allowed by a permit issued by
the USFWS.\15\ The MBTA regulations in 50 CFR part 21 contain specific
permit provisions for raptors used for falconry, education, abatement,
propagation, banding, scientific collection, and those in
rehabilitation. Facilities and care requirements are listed in Sec.
21.82(d), and include general provisions for shelter from environmental
conditions, predators, and domestic animals, as well as requirements
for watering, perches, tethering, and indoor and outdoor enclosures. As
we have noted, the MBTA includes no specific animal welfare
requirements.
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\15\ In addition to MBTA requirements, regulations under the
Bald and Golden Eagle Protection Act (50 CFR part 22) place further
restrictions on the uses of bald and golden eagles. Among these
restrictions, no person may sell, purchase, barter, trade, import,
or export, or offer for sale, purchase, barter, or trade, at any
time or in any manner, any bald eagle or any golden eagle or the
parts, nests, or eggs of these birds.
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We received a large number of comments from persons concerned about
the status of raptors under the proposed standards. The comments were
consistent with those received during the listening sessions, in which
many falconers and other interested persons stated that USFWS care,
training, and handling standards for raptors meet or exceed those
proposed by APHIS, and that many States already regulate falconry and
raptor enterprises. Some commenters expressed uncertainty about which
situations would require raptors to be subject to AWA regulations, and
how the proposed standards would align with current standards of care
and best practices. Many commenters expressed concerns that any new
standards and regulations for captive raptor breeders would be
burdensome and duplicative, noting that persons who enter captive-bred
raptors in commerce, as well as those who rehabilitate and keep captive
birds used in exhibition for education, are already highly regulated
through both USFWS and State agencies. In addition, many noted a long
history of successful self-regulation among falconers. Accordingly,
most persons submitting comments specifically on this topic stated that
no additional Federal regulations on them are necessary.
We are amending the definition of animal under Sec. 1.1 to exclude
falconry, for reasons discussed above under 9 CFR part 1: Definition of
Terms. This amendment excludes falconry from coverage under the AWA.
Other comments pertaining to the regulatory status of raptor use are
addressed below.
One commenter noted that housing and care requirements for a USFWS
special purpose permit come from the University of Minnesota Raptor
Center guidelines, and that facilities housing raptors must meet or
exceed these guidelines and be inspected to ensure compliance prior to
the issuance of a permit. The commenter stated that these guidelines
exceed those of the AWA and proposed regulations. Another commenter
similarly stated that USFWS regulations already address the same
standards for humane care listed in Sec. 2143 of the Act for
``handling, housing, feeding, watering, sanitation, ventilation,
shelter from extremes of weather and temperatures, adequate veterinary
care, and, when warranted, separation by species,'' and another
declared false our point in the proposal that the primary purpose of
the MBTA is to sustain native populations of such birds rather than to
establish specific standards of care and humane treatment. On the other
hand, a commenter noted that neither the MBTA nor any other
conservation-oriented law ensures humane care and treatment, and that
regulation under State or other Federal laws does not disqualify birds
from protection under the AWA.
We acknowledge that falconers, rehabilitators, and other raptor
owners are regulated both by USFWS and at the State level, and that
many such owners maintain high standards of care for their birds using
industry guidelines and best practices. However, as the last commenter
points out, neither the MBTA nor any other Federal law focuses on the
protection of raptors and other migratory birds from lapses in animal
welfare, meaning that applying AWA regulations to certain raptors would
not duplicate requirements. We note that in many States, many species
of mammals that are regulated under the Endangered Species Act are also
subject to AWA regulations.
Some commenters stated that APHIS did not seek advice from raptor
specialists before drafting the proposed rule, nor did the proposal
appear to reflect input they provided during the listening sessions.
We typically conduct informal stakeholder outreach prior to
drafting proposals, as well as formal outreach in the form of listening
sessions and advance notices of public rulemakings. In drafting the
proposal, we considered all input we received during the three virtual
listening sessions that were held, during which we received numerous
comments from raptor exhibitors, persons engaged in raptor conservation
and research, and falconers.
A commenter stated that the Congressional statement of policy in
Sec. 2131 of the Act appears to impact only birds that are purchased
in interstate or international commerce. The commenter added that, as
most exhibitors of raptors have obtained their birds from the wild and
not through interstate or international commerce, it seems reasonable
that wild birds held for exhibition or breeding would be exempt from
AWA regulations. Another commenter stated that raptors obtained from
the wild are prohibited from use as a commercial commodity by USFWS
regulations, and as such would not be regulated under this proposal
because such birds do not touch or concern commerce.
The animals and activities referred to by the first commenter are
either in interstate commerce or foreign commerce (not necessarily
``obtained''). Commerce is defined in the AWA as trade, traffic,
transportation, or other commerce,\16\ so as it is defined, any animals
obtained from the wild and then used for commerce (including
exhibition, and breeding for sales) would not be exempt from AWA
regulation.
---------------------------------------------------------------------------
\16\ The term commerce means trade, traffic, transportation, or
other commerce--
(1) between a place in a State and any place outside of such
State, or between points within the same State but through any place
outside thereof, or within any territory, possession, or the
District of Columbia;
(2) which affects trade, traffic, transportation, or other
commerce described in paragraph (1).
---------------------------------------------------------------------------
Several commenters expressed the view that falconry should be
regulated under the AWA and that the only exemption for birds with any
connection to commerce are those that are specifically bred for use in
research. On the other hand, a commenter representing a national raptor
organization stated that the possession, propagation, and sale of
raptors for falconry and falconry-related activities
[[Page 10668]]
should not be covered by the AWA or the regulations proposed by APHIS,
as they are not pets under any generally accepted definition, including
the definition in the AWA. The commenter also noted that raptors may
not be sold as pets under the MBTA and existing USFWS regulations, and
raptors are not known to be sold for experimental research.
Accordingly, this commenter and others assumed that the AWA and
proposed regulations would apply only to the exhibition of raptors, and
propagation and sale for exhibition.
As we have noted above, we agree with commenters that raptors are
not included under the definition of pet animal. While persons
exhibiting raptors, or propagating and selling raptors for exhibition
purposes, would be subject to AWA regulation unless otherwise exempt
under amended Sec. 2.1(a)(3), falconry is excluded under the AWA as it
is not covered under the uses listed under the definition of animal in
the Act: ``[R]esearch, testing, experimentation, or exhibition
purposes, or as a pet.''
Another commenter expressed the view that the captive breeding and
sale of falconry raptors does not meet the definition of either a
dealer or exhibitor, and that the closest analogy to a captive breeding
operation is a retail pet store because a captive raptor breeder sells
to licensed falconers at retail, without intermediaries, but that the
captive-bred raptor is not sold for ``research, teaching, testing,
experimentation, exhibition, or for use as a pet.''
Persons under USFWS permit practicing falconry are not covered
under the AWA and excluded from coverage under the regulations, and as
such their inclusion under these terms does not apply, unless they are
engaged in activities outside of falconry that would be covered under
the AWA. Such persons would not be eligible for the retail pet store
exemption, as raptors are not defined in the proposed regulations as
pet animals.
Several commenters asked if raptor rehabilitation and rescue
facilities are exempted under the exhibitor exemption.
In the proposed rule, we did not provide an exhibitor exemption for
raptors, as the current exhibitor exemption in Sec. 2.1(a)(3)(vii)
applies primarily to pet animals. In the comments we received on the
proposed rule, several persons asked that we provide an exhibitor
exemption for raptors, such as those displayed in rehabilitation
facilities or for educational purposes. Conversely, other commenters
stated that no exhibitor exemptions should exist for raptors because of
concerns about animal welfare as well as safety risks to the public.
We determined, based on commenter input and our experience from
regulating exhibitors, that applying the existing de minimis exemption
of eight or fewer animals to raptors would pose a heightened level of
risk to both raptors and persons participating in or watching the
exhibition, clearly higher than the exhibition of small mammals. On the
other hand, raptor rehabilitators and educators noted that raptors are
already regulated by other Federal and State agencies, particularly
USFWS, and underscored the value of their work to educate the public
about conservation and species preservation. These comments suggest the
need for some de minimis threshold for exhibition of raptors, if at a
lower number than eight. Considering these factors, and in light of the
comments that we received, we have determined that four or fewer
raptors would be a reasonable de minimis exhibition threshold that
ensures animal welfare by requiring licensing and inspection at
facilities with many raptors while also minimizing burden on smaller
facilities. This is consistent with previously articulated APHIS
policy: APHIS considers entities that possess four or fewer animals
that would otherwise be subject to regulation to provide sufficient
care and oversight to their animals so as to eliminate the need for our
regulatory oversight. This is particularly true of raptor exhibitors,
who, as commenters noted, must already possess a permit from USFWS that
provides a degree of Federal oversight. We are therefore amending the
proposal by adding a raptor exhibition exemption to Sec. 2.1(a)(3). We
intend to monitor this exemption and its implications on animal
welfare, public safety, and business needs, and will make adjustments
if needed.
We emphasize, lastly, that raptors at rehabilitation and rescue
facilities that are not being exhibited are not covered under the
regulations, provided that they are maintained separately from the
exhibited birds. Without separation, the birds undergoing
rehabilitation could affect the health or well-being of the exhibited
birds. This is consistent with our current policy for determining the
status of mammals at facilities which only exhibit some of their
animals.
A commenter stated that the requirement for ``a program of
preventative veterinary healthcare for regulated birds, with annual
physical exams for each bird and health records maintained for each
regulated bird [to be made] available for review by APHIS'' constituted
excessive oversight, adding that, in addition to the cost, an annual
physical exam can cause disruption and harm in a breeding facility.
We note that, to ensure adequate animal welfare, the current
regulations in Sec. 2.40 require licensed dealers and exhibitors to
have an attending veterinarian under a formal arrangement, as well as a
program of veterinary care. Veterinary oversight requirements are
addressed in detail under Standards for Birds in 9 CFR part 3. While
persons maintaining covered birds are required to comply with the
veterinary requirement, birds are not required to undergo a hands-on
physical examination.
A commenter stated that any new regulations or permits imposed on
breeders should be issued to each individual that has qualified for a
USFWS permit and should not be issued per facility, as it will create
an unnecessary burden to report individually to some agencies and
together for another in the case where two permitted propagators share
a facility. The commenter asked for an exclusion for USFWS raptor
propagation permit-holders, or if they are to be included, to have the
exclusion limit for licensing set at $250,000 net income after
expenses, or to exclude anyone for whom breeding raptors is not their
primary source of income.
USFWS propagation permittees that do not exhibit their birds are
not defined as exhibitors under Sec. 2132(h) of the AWA and therefore
are not subject to its provisions or to these regulations, which have
been issued pursuant to the AWA.
Several persons commented that birds exhibited for conservation
education and already permitted by USFWS should fall under the
standards of that agency only.
As we have noted, USFWS does not regulate for animal welfare.
A commenter asked APHIS to provide supplemental documentation that
explains the standards as they apply to groups of similar birds, noting
that raptors have requirements for perch shapes, food types, and social
interactions that differ from those of other birds.
We intend to engage in dialogue with current and new licensees to
help them attain and maintain compliance with the standards, both
during and after the implementation period.
Several commenters stated that falconers and caretakers who work
closely with raptors are more experienced and qualified than an
attending veterinarian to make housing and equipment decisions
regarding their
[[Page 10669]]
birds, with one commenter noting that the unique housing and equipment
needs of falconry birds are not areas commonly addressed in general
veterinary school curricula. On this point, several commenters stated
that the level of expertise a veterinarian might possess in these areas
would not match that of staff who have spent decades caring for
raptors. Another commenter stated that the proposal's excessive
reliance upon veterinarian oversight of simple procedures is
unnecessary. One commenter stated that most veterinarians do not
possess the skills necessary to adequately cope (trim and shape) the
beaks of different varieties of raptors. Many commenters noted that
falconers serve an apprenticeship and undergo extensive training in
caring for and handling birds as prerequisites to acquiring a falconry
license, and one such commenter added that a network of falconer-
veterinarians are embedded within the U.S. falconry community.
While we acknowledge that raptor caretakers have a great deal of
experience in husbandry and caring for their birds, we emphasize that
only a licensed veterinarian in good standing has the training and
medical knowledge to diagnose and treat many conditions, which is why
persons using raptors for purposes covered under the AWA require
licensing that includes a program of veterinary care and regular visits
by an attending veterinarian.
A few commenters stated that pest bird abatement companies should
be regulated. One such commenter noted that sport falconry is an
entirely different activity than commercial falconry bird abatement,
with abatement businesses sometimes employing dozens of birds for
compensated work. The commenter expressed the view that commercial
abatement practitioners should pay the cost of inspections according to
the number of birds used in commercial activities and the
practitioner's level of annual compensation. On the other hand, a
commenter stated that abatement companies should be excluded from AWA
coverage because the use of falconry for pest bird abatement provides a
nonlethal approach to abatement without the need to poison or shoot
nuisance birds at airfields and other locations for public safety.
Falconry activities, including pest bird abatement, are not
included under the AWA and therefore are excluded from coverage.
A commenter emphasized the importance of USDA officials who inspect
Native American eagle aviaries to meet with the leaders of those
facilities and learn the Tribal perspective.
In accordance with Executive Order 13175, ``Consultation and
Coordination With Indian Tribal Governments'' we informed Tribal
leaders of the proposal, and held a Tribal consultation on November 4,
2021. No Tribal leaders raised significant questions or concerns during
the consultation, and we received no subsequent comments from Tribes
during the comment period for the proposed rule. We do, however,
acknowledge and respect the importance of eagles and other raptors to
many Tribes and will continue to actively engage Tribal nations and
communities on this rule.
As we noted under Definitions, we are revising the definitions of
carrier and intermediate handler in Sec. 1.1 to include an exemption
from AWA registration for anyone transporting a migratory bird covered
under the MBTA from the wild to a facility for rehabilitation and
eventual release in the wild, or between rehabilitation facilities.
A commenter stated that it is unclear if birds undergoing
rehabilitation for release back into the wild will be regulated under
this proposal.
Migratory birds undergoing rehabilitation for intended release back
into the wild would be subject to AWA regulations if they are
exhibited, bearing in mind that raptors are eligible for a de minimis
exemption if four or fewer are exhibited. If birds are no longer able
to survive in the wild and must remain captive, they would be covered
under the AWA only if used for exhibition or another covered purpose.
Licensing Exemptions--Sec. 2.1(a)(3)
The current regulations in Sec. 2.1(a)(3) include licensing
exemptions based on criteria such as types of animals and how they are
used, whether and how they are sold, and size of business based on
gross income, or the number of covered animals bred or exhibited.
We received numerous comments regarding exemption criteria and
which species and uses of birds should be exempted from licensing. Many
commenters stated there should be no de minimis exemption based on
revenue, the number of animals, or activity (such as pigeon racing or
bird fancier shows). One commenter stated that we should require
licensing and inspections in response to any complaint for facilities
that house birds, regardless of the number of birds.
APHIS is authorized under Sec. 2132 of the Act to exempt from
regulation certain uses of animals, including animals used in
agriculture and birds bred for use in research. Under Sec. 2133 of the
Act, which states, ``a dealer or exhibitor shall not be required to
obtain a license as a dealer or exhibitor under this chapter if the
size of the business is determined by the Secretary to be de minimis,''
APHIS is also authorized to exempt from licensing and inspection small
businesses that pose a minimal risk of animal welfare problems. We have
determined that certain facilities that keep birds are de minimis in
size, and/or present a minimal risk of animal welfare problems, and we
consider exempting them from regulation to be appropriate in light of
our statutory authority. By exempting de minimis businesses, we are
able to focus inspection and enforcement efforts on those businesses at
greater risk of animal welfare concerns.
Many commenters stated that there should be no species-based
exemptions from licensing.
We have not included in this rule exemptions from licensing or
exclusion from regulation based on species.
A commenter stated that APHIS should consider additional exemptions
for entities who are already heavily monitored, including non-profits,
bird sanctuaries, and zoos, as many of these facilities are subject to
other Federal and State requirements and additional administrative
requirements are unlikely to improve conditions for the animals in
their care. The commenter suggested that where such entities are
required to undergo State inspections and receive certification,
perhaps APHIS could accept submission of those inspection reports and
certificates in place of another inspection or form. One commenter
stated that facilities formally accredited by the Association of Zoos
and Aquariums should be exempt from the proposed regulations, and
another commenter requested that we include a licensing exemption for
any bird breeder, bird dealer, or bird exhibitor certified under an
inspection and certification program available to all within the bird
industry.
We are making no changes in response to these commenters. We
acknowledge that facilities with birds may already be subject to other
Federal and State requirements and industry-based standards. While they
are beneficial, as we noted in the proposed rule, industry
certification programs and existing government requirements are not
necessarily equivalent to the proposed standards, nor are they
structured to be consistent with the Act and its animal welfare
requirements.
Several commenters stated that rescues and shelters should never be
exempt from APHIS inspections or licensing, and many cited concerns
[[Page 10670]]
about animal welfare, overcrowding, and poor sanitation. Other
commenters noted that some entities calling themselves rescues are
actually commercial operators breeding and selling birds with little
regard for animal welfare. On the other hand, some commenters asked
that we exempt all rescues and shelters from licensing requirements,
noting that such facilities are not run for profit and that regulations
will cut into their financial capability to assist birds in need.
Another commenter stated that rescues that do not exhibit should be
exempt from licensing.
If bird shelters or rescues act as dealers or exhibitors, they are
covered under the AWA and may require licensing unless they meet one or
more of the exemptions set forth in Sec. 2.1(a)(3). Rescues and
shelters that do not exhibit or engage in any other covered activity
are exempt from licensing.
Some commenters asked APHIS to consider an exemption for
organizations and persons that breed birds strictly for conservation
and restoration purposes with the intent of releasing birds produced
into the wild, retaining into the captive flock for genetic purposes,
or enhancing the captive population to maintain a restoration program.
Conservation and restoration entities that release birds into the
wild or maintain bird restoration programs will not be required to be
licensed, provided that they do not act as dealers or exhibitors. If
they do act in such a manner, they may still be exempt from licensing
if they meet one or more of the exemptions from licensing set forth in
the regulations.
A commenter requested that we exclude holders of a USFWS ``Special
Purpose-Abatement Using Raptors Permit'' from regulation, adding that
without a specific exemption, it could cause confusion for inspectors
when they inspect someone that holds multiple migratory bird permits.
Pest abatement falconry activities are not covered under AWA
regulations. APHIS inspectors only inspect for compliance with AWA
regulations, not USFWS regulations or those of any other agency. For
this reason, we are making no changes in response to the commenter's
request as we see no need to include a specific exclusion.
The same commenter also stated that the exemption limit for raptor
exhibitors is too low, noting that for educational programs with
raptors that free fly, it is necessary to rotate through different
teams or have understudies when some birds are unavailable. The
commenter asked us to exclude from AWA regulations USFWS Special
Purpose Possession-Live Migratory Birds for Educational Use permit-
holders, or if they will be regulated, to have the exclusion limit set
at 25 birds to minimize burden on educators. Additionally, the
commenter asked that we exclude from regulation falconry schools
holding USFWS Special Purpose-Falconry Education permits, as the sport
of falconry is not included within the AWA.
The commenter erroneously read the proposed rule to include
provisions for exempting raptor exhibitors from licensing. As discussed
previously, the proposed rule contained no such provisions; however,
several commenters asked us to add a de minimis threshold. Based on
those comments, we have added such an exemption, but consider the 25-
raptor threshold proposed by the commenter too high in light of
possible health and welfare considerations. Persons using more than
four raptors for exhibition will be required to apply to APHIS for a
license regardless of whether all the raptors are being exhibited at
one time. Persons under USFWS permit using raptors for falconry are not
covered under the AWA and its regulations.
One commenter encouraged APHIS to consider a de minimis exception
that would permit research facilities registered under the AWA to
engage in a small number of transactions involving birds that fall
outside of the bred for use in research definition without having to
become licensed as a dealer.
If the research facility adopts a business model that exempts them
from licensing by only conducting face-to-face transactions and meeting
the other elements of the definition of ``retail pet store,'' the
research facility could sell birds and not require licensing as a
dealer.
Currently exempted in Sec. 2.1(a)(3)(i) are retail pet stores as
the term is defined in Sec. 1.1. A retail pet store is 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. The exemption allows persons to sell
any number of animals as pets, at retail, and without a license
provided that all animals are sold at the business or residence with
the buyer physically present to see the animal before purchase.
We proposed to revise the definition of retail pet store by making
it consistent with the definition of animal, which includes birds not
bred for use in research.
A commenter stated that the proposed definition of a retail pet
store could include a bird rescue because many are maintained in a
residence at which the bird is present, the adopters come and pick up
the bird, and pay an adoption fee. The commenter added that because
parrot and other bird rescues are typically 501(c)(3) nonprofits, their
tax status could be adversely affected by being regulated. The
commenter proposed including language in the standards specifically for
rescue and sanctuaries.
We agree that a rescue operating as the commenter describes can be
defined as a retail pet store and exempt from regulation, provided that
each adoptee is physically present at the rescue to pay an adoption fee
if applicable and pick up the bird. We do not see a need to include
language in the rule specific to rescues and sanctuaries on this topic.
We consider private rescues and shelters that perform any of the
activities listed in the definition of dealer, including transporting
or offering animals for compensation, to be dealers. We consider acts
of compensation to include any remuneration for the animal, regardless
of whether it is for profit or not for profit. Remuneration includes,
but is not limited to, sales, adoption fees, and donations.
A substantial number of commenters stated that birds have not been
long domesticated like dogs and cats and thus pose a greater welfare
risk, and for this reason asked that we require the licensing of retail
pet stores that sell birds.
We disagree that birds pose a greater welfare risk than other
animals sold in retail pet stores merely because they may not have been
domesticated as long.
One such commenter cited low standards of care at retail outlets,
adding that not requiring licensure of pet stores allows them to
overfill cage space with more birds than can be properly housed.
We assume the commenter is referring to the current exemption for
retail pet stores, which are defined in part as ``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.'' The exemption, as
[[Page 10671]]
currently applied to dogs, cats, and other animals, does not require
that the buyer observe anything other than the animal, although a
concerned buyer could always request to view additional information
from the seller as to the animal's housing and care. Retail outlets
that sell any pets online or in any situation where the buyer, seller,
or animal is not physically present would require licensing and regular
inspections. It is APHIS' long-standing contention that the AWA
exempted retail pet stores from regulation because the buyer may
observe the health and welfare of an animal prior to purchase, and this
observation constitutes sufficient monitoring of the health and welfare
of the animal. In this regard, we note that overcrowding can cause
visible stress in birds, affecting their physical appearance and
behavior.
Another commenter recommended that licensing and inspection be
required for retail pet stores that sell any wild-caught birds, or any
captive-bred birds other than doves and pigeons, finches, canaries,
lovebirds, cockatiels, or budgerigars.
Businesses selling wild-caught animals are excluded from the retail
pet store definition and are thus subject to regulation. In addition,
wild-caught birds likely fall under authority of the MBTA and are
regulated by USFWS. Captive-bred birds may be pet animals if they meet
that definition as listed in Sec. 1.1. The list of pet birds we
provided in that proposed definition is intended to be for illustrative
purposes and is not exhaustive.
A commenter stated that the retail pet store exemption should not
remain in place for long-lived bird species such as parrots. The
commenter added that pet owners should obtain a license in order to
purchase such long-lived exotic avian species.
The length of a bird's life span is not germane to determining
whether or not it is intended as a pet animal, and the act of owning a
pet is not subject to licensing under the AWA.
A commenter asked if meeting people at a neutral meeting point to
conduct a sale, such as a parking lot, would fulfill what is required
for the retail pet store exemption.
As long as 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 the sale is not otherwise covered under the regulations,
a meeting point could be eligible for the retail pet store exemption.
Under Sec. 2.1(a)(3)(ii), an income threshold exemption applies to
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.
A commenter suggested that for the purposes of the $500 exemption
we include all migratory birds under the definition of wild animal, as
well as populations of free parrots living in the southern United
States.
We are taking no action in response to the commenter. The sale of
migratory birds is an activity covered under the authority of the USFWS
and a migratory bird cannot be sold without a permit from that agency.
Depending on the species, free parrots living in the United States are
subject to some State and Federal regulations, but we do not see the
relevance of an income exemption to populations of parrots living in
the wild.
A few commenters stated that we underestimated the costs for
attending veterinarians to develop and monitor a veterinary care
program and it would be difficult for small facilities to qualify for
the $500 de minimis exemption. The commenters recommended that we
increase the de minimis amount to reflect the realistic cost for
veterinarians to conduct site visits.
The income de minimis threshold is tied to the income derived from
the sale of animals and not to expenditures such as veterinary costs.
Several other commenters recognized that the $500 gross income
exemption was linked to income and not facility costs. Most noted that
few, if any, aviculturalists would be eligible for this licensing
exemption, as nearly all earn more than $500 and even a single pair of
birds could cause a hobbyist to go over that amount from selling the
offspring. A few commenters stated that the gross income exemption
threshold should be $30,000, and others suggested thresholds between
$1,000 and $20,000. One commenter stated that a dollar value for de
minimis exemptions is ``nonsensical'' as some birds have very little
value while others have a very high value. One commenter stated that
the threshold should be increased to $250,000 net profit if raptor
propagators are to be subjected to APHIS regulations, or that only
commercial breeders who rely on breeding as their primary income should
be covered. Another commenter representing raptor owners stated that a
de minimis exemption threshold based on the number, rather than the
value, of birds sold for exhibition is more meaningful and aligned with
the AWA, but that otherwise a monetary threshold of $50,000 for birds
sold for exhibition should be established.
We acknowledge that many, if not most, facilities selling birds
earn more than $500 in annual gross income for that activity and would
not be eligible for the exemption. We considered other ways of
exempting businesses that pose a de minimis, or minimal, risk to animal
welfare based on the size of the business. Drawing on our experience
with small facilities and on comments we received from persons
supporting a sales threshold, we determined that a threshold based on
numbers of birds sold annually would be most equitable with respect to
balancing regulatory burden with animal welfare.
As explained below, we replaced number of breeding females with
number of birds sold annually as the threshold for determining a de
minimis exemption from licensing. Generally, any person is exempt from
the licensing requirements who sells 200 or fewer pet birds of 250
grams or less annually, and/or sells 8 or fewer pet birds of more than
250 grams annually. This change will exempt from inspection and
licensing many more facilities as a result. We believe that the revised
de minimis exemption from licensing will apply to most small breeders,
while very few businesses selling birds would qualify for the $500
dollar or less gross income exemption in Sec. 2.1(a)(3)(ii).
Under Sec. 2.1(a)(3)(iii), a licensing exemption is also provided
for any person who maintains four or fewer breeding females of pet
animals, small exotic or wild animals, and/or domesticated farm type
animals 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. We proposed for this exemption
threshold to also apply to AWA-covered birds
Several commenters expressed support for an exemption threshold of
four or fewer breeding female birds. A comment co-signed by several
animal welfare advocacy organizations stated that, as both dogs and
birds are bred for sale, and as the AWA is focused on ensuring humane
treatment, no variation in licensing thresholds between the species in
terms of numbers of animals is supportable. The commenter added that a
species' physical size or commercial profitability is no more adequate
justification for altering the de minimis rule than it would be for
altering the rule for any other covered species, and that focusing on
financial rather than welfare
[[Page 10672]]
considerations runs counter to the AWA.
On the other hand, numerous commenters disagreed with the proposed
licensing de minimis exemption of persons maintaining four or fewer
breeding female birds on grounds that the threshold is too small.
Several commenters proposed a licensing de minimis threshold higher
than four. One commenter stated that APHIS has not considered the vast
number and variety of species of birds in captivity, adding that
keeping four zebra finches is very different than keeping four macaws.
A few commenters stated that four or fewer breeding females is far too
low to allow for the maintenance of genetic diversity among many
species. Some commenters asked why the de minimis threshold for four
breeding female mammals is applied arbitrarily to an entirely different
class of animals, with no consideration of the different breeding
characteristics between and within the two classes. A few commenters
noted that many species of birds are sexually dimorphic only in size,
and only a person with advanced knowledge of a species or laboratory
tests can determine if an individual is female or male. Several
commenters noted that most bird breeders maintain more than four
breeding females and sell the offspring, and another commenter stated
that a more detailed analysis by avicultural organizations suggests
that the subset of persons who would be exempt under the proposed
licensing threshold is smaller than APHIS anticipates. Several
commenters asked for more explanation of circumstances where a female
bird would be considered a ``breeding female'' for the purposes of the
threshold--for instance, whether a ``retired'' breeding female would be
counted.
As these and many other commenters noted, the breeding habits and
number of offspring produced by different species of birds, or birds
within a species, can range dramatically, much more so than mammals
such as dogs, cats, and other AWA-covered mammals widely kept in the
United States. As the current de minimis thresholds for breeding
females were originally developed to address these animals, the
comments we have received on this topic have caused us to reevaluate
the current de minimis threshold measured by number of breeding female
animals maintained as applied to birds. As we noted above, several
commenters requested that a new de minimis exemption for bird breeders
be established that is based on the number of birds sold instead of the
number of breeding females maintained, with some commenters further
recommending exemptions contingent on weight of birds sold.
For these reasons, in Sec. 2.1(a)(3) we would establish a new de
minimis exemption specific to birds, in which any person is exempt from
the licensing requirements who sells 200 or fewer pet birds of 250
grams or less annually, and/or sells 8 or fewer pet birds of more than
250 grams annually, determined by average adult weight of the species,
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 sells more than 200 pet birds 250 grams or less annually,
and/or sells more than 8 pet birds more than 250 grams annually,
regardless of ownership. Pet birds at or below 250 grams typically
include cockatiels, budgies, finches, lovebirds, and parakeets, while
pet birds over 250 grams may include cockatoos, macaws, and African
gray parrots.
We chose the above annual sales thresholds for pet birds after
reviewing many comments that proposed licensing exemption thresholds
ranging from dozens of birds to thousands. We also sought a threshold
that does not unduly burden small pet bird businesses while ensuring
animal welfare for AWA-covered birds at these facilities. In deciding
upon 200 or fewer birds 250 grams or less as the exemption threshold,
we noted that smaller birds reproduce more quickly, can be bred in
colonies, and have fewer behavioral welfare concerns. While no
commenters specifically suggested 250 grams as the cutoff limit for the
200 sales threshold, some suggested weights between 100 and 200 grams.
We consider 250 or more grams (using adult average weight) to generally
distinguish larger pet birds such as cockatoos, macaws, and African
grey parrots from canaries, budgies, and other small birds. We also
consider eight or fewer large pet birds sold annually to constitute a
small facility that poses a de minimis, or minimal, risk to animal
welfare and would therefore be exempt from licensing.
Some commenters stated that the thresholds for exemption are
arbitrary and inappropriate for raptor breeding and education. One
commenter representing raptor owners stated that the de minimis
thresholds for licensing should be raised for birds of prey because
their possession and sale are already regulated and subject to animal
welfare standards enforced by each State under USFWS guidelines, they
cannot be sold as pets, and falconers and other raptor owners have a
strong motivation to ensure the welfare of their birds. The commenter
requested that a de minimis exemption for raptor breeders be
established based on the number of birds the breeder sells or transfers
for exhibition purposes and recommended that this number be 24, based
on an estimate of the average number of young produced by 12 breeding
pairs of raptors. Another stated that the licensing threshold on raptor
breeding pairs should be no lower than 25 to ensure genetic diversity
for wild raptors.
We note that in the proposed rule, we did not apply the breeding
exemption in Sec. 2.1(a)(3)(iii) to raptors, as it only applies to
persons breeding and selling pet animals (which includes pet birds),
small exotic or wild mammals, or domesticated farm-type animals for
pets or for exhibition. As the sales per year exemption we have
included in this final rule only applies to pet birds, the exemption
does not apply to persons breeding and selling raptors. We have,
however, excluded falconry from the definition of animal and exhibitor
in the AWA regulations.
A commenter requested exempted status for any bird dealer who does
not place birds into wholesale trade in interstate commerce.
Persons dealing in birds are covered under the AWA regulations. The
commenter did not provide a rationale for exempting wholesale trade.
A commenter recommended that the regulations should state that the
only MBTA species that may be bred are those authorized under 50 CFR
part 21 and that there be no de minimis exemption for MBTA-protected
species.
The AWA covers animal welfare for certain animals, including birds
not bred for use in research. Its provisions are not contingent on what
is covered and not covered under the MBTA. The MBTA does not include
specific protections for animal welfare. That being said, APHIS has no
statutory authority to prescribe what birds may or may not be bred.
An exemption is also provided in Sec. 2.1(a)(3)(vi) for any person
who buys, sells, transports, or negotiates the sale, purchase, or
transportation of any animals used only for the purposes of food or
fiber (including fur). To accommodate birds under this exemption, we
proposed to add ``feathers'' to the list of purposes for maintaining
animals.
A commenter asked that we include ``skin'' in the list.
As we added ``skins'' as one of the products under farm animal, we
agree with the commenter and will add
[[Page 10673]]
``skin'' to the list of uses for which farmed animals may be exempted.
One commenter recommended a plain English reading of the exemption,
where only birds of the family Anatidae may be included for food and
fiber purposes. Another commenter stated that the propagation of game
birds should fall under the ``agriculture exemption.''
We are making no change in response to these comments. With regard
to the first commenter, we note that commercial poultry bred for food
or fiber purposes include birds not in the family Anatidae. For this
reason, we believe it is more appropriate to add the term ``poultry''
to the definition of farm animal, and add a separate definition of
poultry that lists doves, pheasants, grouse, and quail as among the
birds included. The term poultry also includes ducks, geese, and swans
in the family Anatidae. With regard to the second commenter, under the
definition of animal, poultry used or intended for use for improving
animal nutrition, breeding, management, or production efficiency, or
for improving the quality of food or fiber would be exempted from
licensing. Propagation of gamebirds would fall under this agricultural
exemption.
In addition, Sec. 2.1(a)(3) includes an exemption for any person
who maintains a total of eight or fewer pet animals as defined in Sec.
1.1, 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. We proposed for this
exemption to apply to pet birds also, and note that under our proposed
revision to the term pet animal, we added that the term also includes
but is not limited to such birds as parrots, canaries, cockatiels,
lovebirds, and budgerigar parakeets.
Some commenters requested that persons using poultry for exhibition
be exempted from the licensing requirement.
The current definition of exhibitor excludes persons exhibiting
animals at shows, fairs, and other events intended to advance
agricultural arts and sciences. In addition, we proposed to amend
exhibitor to also exclude bird fancier shows, as we note above that
these are rooted historically in the advancement of agricultural arts
and sciences. Within these contexts, we consider poultry exhibition to
be an activity exempted from the licensing requirement.
Paragraph Sec. 2.1(b)(1) states that licenses are issued to
specific persons, and are issued for specific activities, types and
numbers of animals, and approved sites. As each license specifies the
numbers and types of animals that a licensee can maintain, under
paragraph (b)(2)(ii) a licensee is required to obtain a new license
before acquiring or using any covered animal beyond those types or
numbers of animals specifically authorized under the existing license.
A commenter expressed concern with the requirement for obtaining a
new license before acquiring additional types or numbers of animals.
The commenter noted that zoos and other members of its organization
frequently accept confiscated birds at the request of Federal or State
law enforcement agencies, with little control over the species or
numbers of birds in need of protection, and asked that we modify the
license requirement to allow for more flexibility for such situations.
If acquiring confiscated birds is a possibility, facilities
completing a new license application before acquiring additional types
or numbers of animals are encouraged to put the highest total number of
animals they expect to have. We also note that licenses only require
specific authorization for type of animal if the animal is subject to
subparts D or F of 9 CFR part 3 and in a group listed in Sec.
2.1(b)(2)(ii). As this list does not include birds, licensees acquiring
new species of birds would not be required to obtain a new license as a
result of their acquisition of such birds unless the licensee exceeds
their authorized number of overall animals.
A few commenters recommended that licensing options should be
available for both individuals and organizations, explaining that
organizations can ensure, execute and enforce standards of care
(presumably for each of its members). One commenter opposed to the rule
noted that an organization-wide license limits the number of licenses
needed when there are multiple rehabilitation caregivers within a given
agency.
The agency considers and issues licenses to a person. Under Sec.
1.1, person means any individual, partnership, firm, joint stock
company, corporation, association, trust, estate, or other legal
entity.
APHIS is aware that a number of currently licensed facilities, in
addition to maintaining mammals of various types, also maintain birds
that might be newly covered under these changes to the regulations.
These birds are not currently listed on the license. However, in order
to minimize redundant administrative burden on these facilities, we
would not require that they apply for a new license only for the
purpose of meeting the effective date of these regulations. Therefore,
we proposed to add a sentence to Sec. 2.1(b)(2)(ii) stating that a
licensee in possession of birds on the effective date of the rule may
continue to operate under that license until its scheduled expiration
date. APHIS encourages such persons to apply for a new license at least
90 days before expiration of the current one. As we note above,
licenses are valid for 3 years.
A commenter contrasted this license deferment with current Sec.
2.30(c) (Notification of Change), in which research facilities are
expected to provide APHIS with notification of any change in
operations, including a change in activities or location stemming from
birds in their possession, within 10 days from the date of such change.
The commenter asked APHIS to establish an effective date for the final
rule that affords research institutions at least 6 months to analyze
the final rule's impact on their operations, and stated that APHIS
should provide research facilities with at least 6 months to notify it
of changes resulting from compliance with the final rule. The commenter
added that APHIS should ensure that the rule's effective date provides
institutions with at least 6 months before Annual Reports are due to
conduct their analyses.
We agree with the commenter's request to afford additional time for
research facilities to understand and comply with the regulation. An
implementation period will be provided for all facilities conducting
covered activities to ensure compliance with these standards and we
intend to provide facilities during this time with guidance to help
them comply with the regulations. For new licensees and registrants,
the rule will be applied 365 days after the date of publication. For
current AWA licensees and registrants, the rule will be applied 180
days after date of publication. To the commenter's question about
research facilities needing to report changes stemming from this rule
within 10 days from the date of that change, this requirement will not
be enforced until after the end of the implementation period. Insofar
as annual reports cover activities beyond those solely involving birds,
we cannot grant the commenters request for a 6-month delay in filing
Annual Reports, which are due by December 1 each year and report on
activities for the previous Federal fiscal year. However, we will not
require that information concerning birds be included in the annual
report
[[Page 10674]]
until the one prepared for fiscal year 2024.
9 CFR Part 2, Subpart B: Registration
Under subpart B, Registration, carriers and intermediate handlers
newly regulated under this proposal would not require a license to
transport birds, but would be required to register by completing and
filing a form provided by APHIS. Registrations, unlike licenses, do not
have an expiration date.
One commenter asked whether wildlife rehabilitators who are not
conducting educational or research activities need to register with
APHIS.
Wildlife rehabilitators not conducting covered activities would not
be subject to AWA regulations.
Requirements and Procedures--Sec. 2.25
Section 2.25 provides in part that each carrier and intermediate
handler is required to register with the Secretary by completing a form
furnished, upon request, by the Deputy Administrator. This requirement
typically applies to persons who transport AWA-covered animals. Persons
already registered to transport other animals will not be required to
update their registration to transport birds. APHIS proposed no changes
to this section and received no comments on it.
9 CFR Part 2, Subpart C: Research Facilities--Sec. 2.30
Under Subpart C, Research facilities, a newly regulated research
facility under this proposal must register by completing a registration
application form available from APHIS. The chief executive officer of
the newly registered research facility is required to appoint an IACUC
consisting of qualified persons to assess the research facility's
animal program, facilities, and procedures. Each research facility also
needs to have an attending veterinarian and maintain a program of
veterinary care. Registered research facilities are required to
maintain records of IACUC meetings, activities involving animals, and
animals purchased or acquired by the facility.
Several commenters stated that birds bred for use in research
should also be regulated under the proposed standards. One such
commenter stated that, assuming the proposed standards will form the
baseline defining the minimum care for birds, there is no reason for
experimental facilities to be exempt from coverage. On the other hand,
some commenters expressed the view that current regulation of Federal
and non-Federal research facilities is already sufficient and that
applying the proposed standards to facilities using birds bred for
research would be unduly redundant and costly, without a commensurate
increase in humane protection for birds. The commenter added that
another inspection as required under the standards would be unlikely to
uncover deficiencies that IACUC inspections did not detect, and
recommended that APHIS reduce redundancy by aligning its review
policies with those of the U.S. Public Health Service (PHS).
Birds bred for use in research are excluded as ``animals'' from the
AWA regulations as that term is defined in the Act, so the use of such
birds at research facilities is therefore not regulated. However, while
the birds themselves are not subject to regulation if bred for use in
research, research facilities using such birds are required to register
with APHIS \17\ and adhere to standards under the Act and regulations
in Sec. 2.30, provided that they also conduct research on other live
``animals'' as this term is defined in Sec. 1.1 of the regulations.
The regulations in Sec. 2.30 include monitoring by the IACUC of animal
facilities and uses of animals to ensure that they receive humane care,
and that the facility follows professional standards governing the
care, treatment, and use of animals, including appropriate use of
anesthetic, analgesic, and tranquilizing drugs, prior to, during, and
following actual research, teaching, testing, surgery, or
experimentation. Regulation by other Federal agencies does not
necessarily address animal welfare considerations covered under the
AWA.
---------------------------------------------------------------------------
\17\ Although only non-Federal research facilities are required
to register with APHIS, Federal facilities must still maintain an
IACUC and maintain the same standards of humane care and treatment
as indicated in Sec. 2.37.
---------------------------------------------------------------------------
Moreover, as another commenter explained, Federal agencies \18\
either voluntarily or by law follow PHS regulation and oversight
policies for their animal research facilities, which include
requirements for compliance with the AWA. As the commenter noted,
Federal researchers who use birds in research also submit proposals for
IACUC review, and facilities where birds are housed or studied are
subject to semiannual IACUC inspections. Finally, we note that in a
recent rulemaking \19\ APHIS aligned several IACUC review provisions in
subpart C with PHS policies.
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\18\ Under Sec. 2.30(a)(1), Federal research facilities are not
required to register with APHIS.
\19\ ``AWA Research Facility Registration Updates, Reviews, and
Reports'' (86 FR 66919-66926, Docket No. APHIS-2019-0001), November
24, 2021.
---------------------------------------------------------------------------
A commenter noted that wild birds or birds that are otherwise not
exempt from regulation and that are studied in captivity may reproduce
while in captivity and asked that any such birds be considered ``bred
for research'' and therefore exempt from regulations under the AWA. The
commenter noted that the proposal's definition of bred for use in
research does not explicitly exempt unintentional offspring of wild
birds or birds that are otherwise not exempt from regulation which are
born in captivity, and asked that we exempt them from regulation by
including them under the definition of bred for use in research.
Similarly, a commenter asked whether offspring of wild birds brought
into captivity and bred for research purposes would be regulated.
Offspring of wild birds that reproduce in captivity and are used
for research are considered to be bred for use in research and not
covered under the regulations. We did not intend to mean the definition
to apply to any birds bred in captivity, but rather those bred in
captivity and used in research. We note that in an earlier section of
this rule we indicated that we have amended the definition of bred for
use in research to mean ``an animal that is bred in captivity and used
for research, teaching, testing, or experimentation purposes.''
Another commenter noted that the proposal is silent on how it would
apply to ornithological research done in the field that does not
qualify as a field study as defined in 9 CFR part 1. The commenter
added that most ornithological research involves birds in the wild and
much of it would not be exempt under the specific field studies
provision. The commenter asked APHIS to clarify that the regulations do
not apply to this type of research.
Field studies that do not materially alter the birds, such as
observational studies, are not covered under the AWA regulations. Any
study that involves an invasive procedure, harms, or materially alters
the behavior of an animal under study is not considered a field study
under the definition of that term and is covered by the regulations.
A commenter noted that although the USDA has not proposed
regulations for maintaining acquisition and disposition records for
birds by research facilities, the agency should implement such
regulations in order to ensure bird health and welfare and preserve the
integrity of research.
Acquisition and disposition records, which are required at research
facilities for dogs and cats, allow APHIS to determine whether animals
are being acquired or disposed of in accordance with the regulations.
However, we have no evidence that birds are being
[[Page 10675]]
acquired or disposed of illegally by research facilities. If such
evidence emerges, we will investigate accordingly.
The same commenter stated that APHIS must include regulatory
considerations for birds used in laboratories to minimize excessive or
unwarranted pain and distress, among them a limit on the number of
invasive surgeries, analgesic plans for painful procedures, and limits
on anesthetic episodes, restraint, and injections.
Birds used by the laboratories would be considered ``bred for use
in research'' provided that they were bred in captivity and thus exempt
from regulations under the Act. With respect to research conducted on
birds that were not bred in captivity, Sec. 2.31(d) of subpart C,
Research facilities, includes several requirements for ensuring IACUC
review of all activities involving animals with respect to avoiding or
minimizing discomfort, distress, and pain. These include use of
analgesics and limits on numbers of operative procedures performed.
A commenter asked if a ``newly registered site'' means it is newly
registered for birds, or newly registered through the USDA.
Contextually within the proposed rule, ``newly registered research
facility'' meant a research facility that is not currently registered
with APHIS but that would need to be registered with APHIS as a result
of the rule, for example, a research facility that solely conducts
research on wild-caught birds. A currently registered facility would
not need to re-register just for birds, but would need to follow the
bird-specific requirements of this rule following the implementation
period afforded by this rule.
IACUC Review of Activities Involving Animals--Sec. 2.31(d)
Under Sec. 2.31 of the regulations, each registered research
facility must establish an IACUC to assess its animal program,
facilities, and procedures. The IACUC must have at least three members,
one of whom must be a Doctor of Veterinary Medicine, with training or
experience in laboratory animal science and medicine, who has direct or
delegated program responsibility for activities involving animals at
the research facility. Another member must not be affiliated with the
facility at all, and is intended to provide representation for general
community interests.
In order to approve proposed activities or proposed significant
changes in ongoing activities, paragraph (d) of Sec. 2.31 requires
that the IACUC conduct a review of those components of the activities
related to the care and use of animals and determine that the proposed
activities are in accordance with the regulations, unless acceptable
justification for a departure is presented in writing.\20\ The IACUC is
also required to determine that the proposed activities or significant
changes in ongoing activities meet a number of requirements, including
ones related to activities that involve surgery. If they wish,
facilities that use birds not bred for use in research may choose to
enlist additional IACUC members with avian expertise.
---------------------------------------------------------------------------
\20\ APHIS has issued guidance exempting field studies, defined
by APHIS as studies conducted on free-living wild animals in their
natural habitat, from this requirement. However, this term excludes
any study that involves an invasive procedure, harms, or materially
alters the behavior of an animal under study. For more detail, see
the APHIS Tech Note, ``Research Involving Free-living Wild Animals
in Their Natural Habitat,'' at <a href="https://www.aphis.usda.gov/animal_welfare/downloads/tech-note-free-living-wild-animals.pdf">https://www.aphis.usda.gov/animal_welfare/downloads/tech-note-free-living-wild-animals.pdf</a>.
---------------------------------------------------------------------------
A commenter recommended that we require at least one member of each
IACUC at facilities using birds to have avian training, expertise, and
experience in avian medicine, behavior, and husbandry.
We are making no changes in response to the recommendation, as we
consider the IACUC to possess or have access to expertise sufficient to
care for birds adequately. One member of the IACUC is required to be a
veterinarian, and the Committee may invite consultants to assist in
reviewing complex avian-related issues as needed. Under Sec. 2.32, the
research facility is responsible for ensuring that all scientists,
research technicians, animal technicians, and other personnel are
qualified to perform their duties.
Under current Sec. 2.31(d)(1)(ix), activities that involve surgery
must include appropriate provision for pre-operative and post-operative
care of animals in accordance with established veterinary medical and
nursing practices, meaning that survival surgery must be performed
using aseptic procedures, including surgical gloves, masks, and sterile
instruments. Major operative procedures on non-rodents must be
conducted only in facilities intended for that purpose and must be
operated and maintained under aseptic conditions. Non-major operative
procedures and all surgery on rodents do not require a dedicated
facility but also must be performed using aseptic procedures. Operative
procedures conducted at field sites need not be performed in dedicated
facilities but must be performed using aseptic procedures.
We proposed to apply the same requirements for operative procedures
for birds as we do for rodents in Sec. 2.31(d)(1)(ix). Our
determination for this decision is twofold. First, as we explained in
the proposed rule, we are aligning our requirements with PHS policy for
the humane care and use of laboratory animals, which does not require a
separate, dedicated surgical area for rodents, but does require a
surgical area used solely for survival surgeries involving higher
vertebrate species.\21\
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\21\ Guide for the Care and Use of Laboratory Animals, 8th
Edition, National Research Council: <a href="https://grants.nih.gov/grants/olaw/guide-for-the-care-and-use-of-laboratory-animals.pdf">https://grants.nih.gov/grants/olaw/guide-for-the-care-and-use-of-laboratory-animals.pdf</a>. Page 144
of the Guide states that, ``for most survival surgery performed on
rodents and other small species such as aquatics and birds, an
animal procedure laboratory is recommended; the space should be
dedicated to surgery and related activities when used for this
purpose, and managed to minimize contamination from other activities
conducted in the room at other times.'' [Our emphasis.] In other
words, a surgical area for rodents and birds is not exclusively
intended for that purpose as it is for higher vertebrate species.
---------------------------------------------------------------------------
Second, we have considered the operative conditions and practices
for rodents and concluded that they will be humane and consistent with
the AWA if applied to birds. As we noted above, the surgical standards
currently listed in Sec. 2.31(d)(1)(ix) include appropriate provisions
for aseptic surgery and pre-operative and post-operative care of the
animals in accordance with established veterinary medical and nursing
practices, which apply regardless of whether the surgery is performed
in a dedicated facility used wholly for that purpose. Moreover, under
current Sec. 2.31(d)(1)(ix), medical care for all AWA-covered animals
at a registered research facility is required to be available and
provided as necessary by a qualified veterinarian.
A commenter asked that we include a reference to analgesia in this
section.
Paragraph Sec. 2.31(d) includes provisions for the use of
analgesics for procedures that may cause pain or distress, and Sec.
2.32(c) provides for training and instruction in the proper use of
analgesics by facility personnel.
A commenter requested that we add a statement clarifying the
exemption of wildlife management agencies, including wild bird capture,
translocation, temporary holding, and field procedures. Another
commenter asked that we clarify the definitions of ``research'' versus
field study, and which procedures might be considered invasive or
altering animal behavior that require review by an IACUC. As examples,
they asked if accessing a wild bird nest to evaluate nestlings or
applying bands as part of a research
[[Page 10676]]
project could be considered altering behavior, requiring a review.
Animal, pest, and population management programs (e.g., culling,
relocation, and nonsurgical sterilization) for the purposes of limiting
wildlife damage and human interaction are exempted from licensing. In
addition, APHIS has issued guidance \22\ on studies conducted on free-
living wild animals in their natural habitat to help clarify the
distinctions between research studies and field studies. We believe
this existing guidance is responsive to the commenters' questions.
However, specific questions about wild bird studies may also be
addressed to APHIS at <a href="/cdn-cgi/l/email-protection#d4b5babdb9b5b8b7b5a6b194a1a7b0b5fab3bba2"><span class="__cf_email__" data-cfemail="20414e494d414c4341524560555344410e474f56">[email protected]</span></a>.
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\22\ Please see the APHIS Tech Note referenced in footnote 20,
``Research Involving Free-living Wild Animals in Their Natural
Habitat.''
---------------------------------------------------------------------------
Another commenter asked that we consider an exemption to the
proposed requirement that aseptic conditions be used for operative
procedures in field studies, noting that preparing aseptic conditions
for non-major surgical procedures confers far less benefit to the bird
than returning it as quickly as possible to its natural habitat.
Another commenter stated that aseptic techniques may not always be
practical or safe for the bird or the researcher to implement in the
field and asked us to revise this requirement to require aseptic
techniques only as conditions allow. Similarly, one commenter stated
that APHIS should consider including language that introduces a harm-
benefit analysis to the use of anesthetics in field studies involving
birds, as withholding anesthetics may be justified when the bird's
welfare or survival may otherwise be compromised.
In order for field research to be considered a field study rather
than regulated research under the regulations, it must not involve
invasive procedures, and such procedures would be considered regulated
research and subject to the regulations governing research facilities,
including the requirement for aseptic surgery and pre-operative and
post-operative care of the animals under current Sec. 2.31(d)(1)(ix).
However, the regulations do make allowances for deviations from this
requirement for just cause and with proper documentation. Under Sec.
2.36, the IACUC may approve exemptions to operative conditions,
provided that the IACUC documents these exemptions in the Annual Report
submitted to the Deputy Administrator on or before December 1 of each
calendar year for the previous Federal fiscal year. The Annual Report
assures that professionally acceptable standards are being used, that
all standards and regulations are being followed, and other information
attesting to the animal welfare status of the facility. Under Sec.
2.36(b)(3), the report must assure that the facility is adhering to the
standards and regulations under the Act, and that it has required that
exceptions to the standards and regulations be specified and explained
by the principal investigator and approved by the IACUC. A summary and
explanation of all such exceptions must be attached to the facility's
Annual Report.
A commenter recommended that the proposed language on bird
identification and counting by research institutions in Sec.
2.36(b)(8) include an exemption in cases where identification of newly
hatched or juvenile birds would disrupt nesting or rearing activities
as determined by the attending veterinarian.
We are making no changes in response to the commenter's
recommendations. The commenter is referring to the Annual Report
requirement for research facilities, which includes the reporting of
common names and the numbers of animals being bred or held for use in
teaching, testing, experiments, research, or surgery but not yet used
for such purposes. As the report is submitted to APHIS by December 1st
annually and counts animals used during the previous fiscal year, a 2-
month window exists to count animals born at the end of the fiscal
year. We consider this to be a sufficient amount of time for
identifying newly hatched and juvenile birds without disrupting rearing
activities.
9 CFR Part 2, Subpart D: Attending Veterinarian and Adequate Veterinary
Care
Under Sec. 2.40, newly licensed dealers and exhibitors are
required to have an attending veterinarian under a formal arrangement,
as well as a program of veterinary care. In the case of a part-time
attending veterinarian or consultant arrangements, the formal
arrangements must include a written program of veterinary care and
regularly scheduled visits to the premises of the dealer or exhibitor.
Each dealer and exhibitor is also required to assure that the attending
veterinarian has appropriate authority to ensure the provision of
adequate veterinary care and to oversee the adequacy of other aspects
of animal care and use.
One commenter stated that the term ``attending veterinarian'' is
confusing because in situations where there are multiple veterinarians,
the attending veterinarian of record can delegate authority to other
members of the staff. The commenter suggested that the proposed
standards for birds should use the term ``attending veterinarian'' when
referring to oversight for the program of veterinary care. Another
commenter with the same suggestion requested replacing ``attending
veterinarian'' with ``full-time veterinarian'' in the standards.
Even at facilities with multiple veterinarians, there is only one
attending veterinarian. When we refer to the ``attending veterinarian''
in the proposed standards, the term can refer to the actual attending
veterinarian or his or her delegation of responsibilities to other
veterinarians. We do not believe that replacing ``attending
veterinarian'' with ``full-time veterinarian'' makes reference to roles
more accurate.
A commenter observed that the degree of veterinarian engagement
required throughout the proposed standards may not be appropriate for
smaller facilities or individual exhibitors, and that veterinarians may
not have sufficient knowledge to provide the necessary information on
housing, diet, and suitability for exhibition use. The commenter
recommended that APHIS develop or incorporate by reference existing
taxa-specific standards on enclosures, handler experience, diet, and
evaluation for exhibition use.
We acknowledge that the expertise of staff at many avian facilities
makes them well-suited to make housing and husbandry decisions
affecting their birds, and we attempted to accommodate that fact in the
standards. We do not plan to develop taxa-specific standards for birds,
but we intend to work with newly licensed facilities to provide them
with the knowledge they need to attain and maintain compliance both
during and following the implementation period for this rule.
Some commenters disagreed with the requirement to arrange for an
attending veterinarian to make regularly scheduled visits, stating that
their birds are tested for diseases, quarantined, and seen by a
veterinarian on an as-needed basis.
Regularly scheduled, routine examinations are key in preventative
medicine and in ensuring the health, care, and welfare of the animal in
question. In addition, an attending veterinarian must be available to
respond to emergency health or other situations that arise.
Another commenter stated that APHIS should consider whether an on-
site veterinarian is necessary and feasible in all instances, and
whether there may be other mechanisms for ensuring the welfare of the
animals such as through
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self-certifications and ensuring compliance with existing state
licensing requirements. Another commenter proposed identifying a
qualified caretaker at each facility who would ultimately be the
responsible party for the welfare of the birds under their care. Many
experienced veterinarians would then be available for occasional
consultations without being responsible for creating and executing
husbandry plans.
An attending veterinarian need not be on site; we discuss this at
greater length below. APHIS has no plans to approve self-certification
programs for birds or any other species regulated under the AWA. In
order to best ensure the health, care, and welfare of regulated
species, the involvement of an attending veterinarian under a
documented program of veterinary care is necessary.
Under the program of veterinary care in Sec. 2.40(b), each dealer
and exhibitor must establish a program that includes availability of
appropriate facilities, personnel, equipment, and services to comply
with the provisions of the subchapter A, Animal Welfare; appropriate
methods to prevent, control, diagnose, and treat diseases and injuries,
and the availability of emergency, weekend, and holiday care; daily
observation of all animals to assess their health and well-being,
although daily observation of animals may be accomplished by someone
other than the attending veterinarian; and a mechanism of direct and
frequent communication so that timely and accurate information on
problems of animal health, behavior, and well-being is conveyed to the
attending veterinarian. The veterinary program must also include
adequate guidance to personnel involved in the care and use of animals
regarding handling, immobilization, anesthesia, analgesia,
tranquilization, and euthanasia; and adequate pre-procedural and post-
procedural care in accordance with established veterinary medical and
nursing procedures.
A commenter asked us to clarify the definition of ``program of
veterinary care,'' particularly as it relates to the requirement for
species-specific care.
Minimum requirements for a program of adequate veterinary care are
included in Sec. 2.40(b). We note that, under the definition of
attending veterinarian in Sec. 1.1, he or she must have received
training and/or experience in the care and management of the species
being attended. Furthermore, an attending veterinarian may create a
written program and work with facilities to ensure that the program
includes details pertinent to the species being maintained.
A few commenters asked what the proposed regulations mean by a
``qualified'' veterinarian.
We consider a qualified veterinarian as one meeting the definition
of attending veterinarian, which means a person who has graduated from
a veterinary school accredited by the American Veterinary Medical
Association's Council on Education, or has a certificate issued by the
American Veterinary Medical Association's Education Commission for
Foreign Veterinary Graduates, or has received equivalent formal
education as determined by the Administrator; has received training
and/or experience in the care and management of the species being
attended; and who has direct or delegated authority for activities
involving animals at a facility subject to the jurisdiction of the
Secretary.
One commenter noted that veterinarians approving husbandry and
construction requirements as indicated in the proposed rule is not
standard practice in most zoological facilities. Another commenter from
an association representing zoos and aquariums noted that much of the
recordkeeping and decision making that veterinarians are tasked with in
the proposal, such as signing off on programs and determining elements
such as environmental conditions, enclosure construction, normal
postural and social adjustments, and environmental enhancement, should
be part of a consultative process among the leadership of larger
facilities and institutions. On this topic, another commenter added
that it is often the husbandry and curatorial staff and managers that
are the decision makers and recordkeepers (in consultation with the
institution's veterinary staff). The commenters asked that APHIS
revisit some of these proposed tasks in light of their organization's
own veterinary care standards, which include provisions for
preventative medicine and disease outbreaks, 24-hour availability of
veterinary services, and procedures for handling pharmaceuticals.
We agree with the assertion made by commenters that many avian
facilities of every size have staff that are able to apply professional
standards to make significant decisions on questions of care and
husbandry. For many of these decisions, it is sufficient that the
attending veterinarian play a consultative role rather than to develop
and impose what should be done, and allow other knowledgeable persons
to make and execute care and husbandry decisions. We discuss revisions
we are making to the proposal on this subject under ``Standards for
Birds in 9 CFR part 3'' below.
A commenter stated that if veterinarians are involved in husbandry
decisions, they might have some liability if they make recommendations
which have a detrimental impact on production, or are simply
unaffordable. The commenter asked what appeals or mediation processes
will be available in such cases.
As we note above, it is adequate that attending veterinarians play
a consultative role in husbandry decisions that have historically been
made by facility personnel. There are no such veterinarian liability
processes provided for in the AWA or regulations, although State
veterinary boards may have recourse for such actions.
A commenter asked that we establish requirements for veterinarian
training in avian topics and have only veterinarians conduct
inspections of facilities. One commenter suggested that there be avian
veterinarian involvement in training the inspectors, clauses for the
transparency of how inspectors are chosen, and continuing education in
avian welfare. The commenter added that inspectors should be members of
the Association of Avian Veterinarians as a show of commitment to avian
welfare and medicine, or, in the case of small animal veterinarians,
have proof of substantial avian knowledge and experience. Other
commenters asked how APHIS plans to train inspection staff on different
avian species and their unique welfare needs, particularly given the
Agency's limited human and fiscal resources.
We acknowledge commenter concerns about APHIS' ability to conduct
inspections of avian facilities, but we emphasize that APHIS has the
resources, access to specialized knowledge and training, and personnel
to ensure that inspectors will meet all requirements and will have
received the training necessary to conduct fair and accurate
inspections of avian facilities. Trained inspectors will not require
veterinary credentials in order to conduct such inspections
successfully.
A number of commenters disagreed with the proposed veterinary
requirement on grounds that few veterinarians are experienced in avian
medicine and that those who are experienced would need to travel long
distances to conduct visits, as many areas lack qualified avian
veterinary care. One commenter stated there is a shortage of
veterinarians in rural areas and requiring veterinary involvement for
simple procedures is not a viable option. Another such commenter
recommended that veterinarian visits be
[[Page 10678]]
required only once a year. A commenter noted that there are only 79
board-certified avian veterinarians in the United States and that they
are not always located where bird owners operate, and another stated
that few avian veterinarians specialize in or have significant
experience with doves, finches, canaries, and waxbills.
Given the challenges cited above, a number of commenters asked
whether the veterinary visit requirement could be met through
telemedicine, i.e., virtual visits by the attending veterinarian. A few
commenters suggested that telemedicine with avian specialists could be
integrated with local non-avian veterinarians, with the latter
conducting the physical inspection. One commenter called for onsite
inspections every 3 to 5 years with a ``Zoom type'' meeting annually.
Another commenter asked whether the attending veterinarian would need
to hold a license in the State where the virtual visit occurs and
whether an initial in-person inspection of the facility would be
required. One commenter stated that APHIS should support a veterinary
care model that does not require transporting birds and has easy access
to remote laboratory services for diagnoses. Finally, a commenter asked
whether an attending veterinarian could work remotely with
aviculturists in other States if needed.
We acknowledge the challenges faced by some facilities to secure an
attending veterinarian with avian expertise within their geographical
area. To that end, we wish to clarify that the attending veterinarian
need not be physically present at the facility in order to conduct
visits, but could use a local veterinarian without specialized training
and/or experience in the care and management of birds as a proxy if the
attending veterinarian is comfortable with such an arrangement and
provides direction to the local veterinarian. This is provided for in
the regulations in Sec. 2.40(a)(1), which allows for ``consultant
arrangements'' in which another local veterinarian other than the
attending veterinarian serves as a proxy for the attending veterinarian
and conducts the visit. To that end, we encourage facilities and
veterinarians needing to confer remotely with experts in avian medicine
or aviculture that may be located in other States to do so. We do,
however, maintain that the facility inspection must be done in person
because virtual inspections may provide an incomplete picture of
conditions at a facility. A veterinarian at the facility can acquire
detailed sensory and visual information to assess compliance in ways
that a camera cannot.
In addition, we wish to highlight additional flexibilities in the
regulations in Sec. 2.40 that will allow facilities with birds to
minimize the frequency of veterinary visits and manage the costs of
specialized care while maintaining the health of their birds as the AWA
requires. Current Sec. 2.40(a)(1) includes the requirement that each
dealer and exhibitor employing a part-time attending veterinarian
include, as part of formal arrangements in the program of veterinary
care, regularly scheduled visits to the premises. APHIS recommends that
the regular visit be once a year, but the regulations do not require a
set frequency of visits. As the frequency and types of examinations are
determined by the attending veterinarian, he or she may reason that a
facility with staff knowledgeable and attentive to the medical needs of
its birds requires less frequent visits to that facility. Moreover, the
regulations do not specify that routine examinations of birds for signs
or symptoms of disease or injury must be conducted in person; we
acknowledge that these can often be conducted adequately through
telehealth visits, should the attending veterinarian agree to such an
arrangement given the circumstances in question.
Finally, we wish to emphasize that one of the purposes of the
implementation period referenced earlier in this document is to afford
facilities an opportunity to present to APHIS any logistical challenges
to compliance so that both parties are aware of the challenges and can
work collaboratively to remediate them within that implementation
period, and that APHIS has experience working with facilities who have
difficulty finding an attending veterinarian for a particular species
maintained at the facility.
A few commenters stated that because wild-caught birds are fragile
and easily stressed, it is unclear if mandating annual physical exams
by a veterinarian would benefit the bird or further stress them.
Similarly, another commenter stated that netting and grabbing birds
every year for an arbitrary and unnecessary health check is dangerous
and stressful to certain birds, particularly birds in aviaries with
water elements. Another commenter noted that raptors have robust immune
systems and that annual exams are unnecessary, and that hands-on exams
are particularly stressful and potentially fatal for these birds.
APHIS will ensure that inspections of birds in large enclosures and
enclosures with water elements are conducted in a manner that will not
harm the birds. A physical, hands-on annual examination for birds is
not a requirement under the AWA regulations, nor do we propose to
require one. The attending veterinarian will monitor the health of
birds through regular visits and consultation with facilities and will
only conduct a physical examination on a bird if he or she considers it
safe and necessary to its health and well-being.
In the proposed rule, within the context of our discussion of
veterinary care, we asked for specific comment on pinioning (disabling
wings) and other deflighting procedures, toenail clipping, devoicing,
and beak alterations. We noted that some comments that we received
during the listening sessions requested that we prohibit some of these
procedures on grounds that they are mutilations, while some comments
suggested that there could sometimes be valid health-based reasons for
performing them.
We received numerous comments regarding physical alterations to
birds that, the commenters stated, could adversely affect their health
and well-being. One commenter suggested that APHIS phase out the
practice of deflighting birds through physical alterations in regulated
facilities within the next 10 years with the provision that
veterinarians may grant exemptions for individual birds. Several
commenters stated that the attending veterinarian must be involved in
every decision regarding whether or not to deflight an individual bird.
While APHIS did not propose to prohibit the practice of deflighting
birds in the proposed standards, we agree that any decision to
permanently deprive a bird of flight through surgical interventions
would have to be made in consultation with, and either by or under the
supervision of, the attending veterinarian. Involvement of the
attending veterinarian in such decisions is consistent with the
requirement in Sec. 2.40(a) that each dealer and exhibitor have an
attending veterinarian to provide adequate veterinary care, and Sec.
2.40(b) requires the use of appropriate methods to prevent, control,
diagnose, and treat diseases and injuries under the program of
veterinary care. Moreover, an attending veterinarian has the medical
training to suggest other interventions and remediations, if available,
as alternatives to surgical interventions that permanently physically
alter the bird in question. The attending veterinarian ultimately
determines whether pinioning would be detrimental to a bird's health
and well-being and therefore would not be in
[[Page 10679]]
compliance with the Act and regulations.
One commenter cited evidence that wing-trimmed birds suffer from
detrimental levels of stress and behavioral deprivation, and suggested
that APHIS ban wing trimming prior to and during fledging, as learning
to fly is critical to normal brain development. Another commenter
acknowledged that when done properly, the trimming of a bird's wings to
temporarily affect flight should not cause pain, permanent
disfigurement, or complete impairment of flight. The commenter advised
that wing trimming must only be permitted when medically necessary, as
determined by the attending veterinarian, and must not be used to make
up for poor housing facilities.
While we acknowledge the commenters' concerns, we do not consider
wing trimming to be an activity requiring consultation with or
supervision by the attending veterinarian. As the second commenter
indicated, wing trimming performed by qualified personnel in accordance
with professionally accepted standards does not permanently deprive a
bird of flight, nor does it cause pain or disfigurement.
A substantial number of commenters stated that APHIS should
prohibit non-therapeutic pinioning (the surgical removal of the
outermost bones in a bird's wing, resulting in an inability to fly), as
well as brailing, feather-pulling, and patagiectomy, or the surgical
removal of the skin between the humerus and radius. One commenter noted
that pinioning, which is frequently performed without anesthesia,
causes operative and post-operative pain to birds and can permanently
affect balance. Accordingly, the commenter encouraged APHIS to prohibit
all forms of permanent deflighting unless medically necessary. Several
commenters stated that APHIS should require licensees to use the least
invasive alternatives to mutilations wherever possible. Some commenters
not opposed to pinioning asked that appropriate use of pain management
be required for all surgical methods of deflighting.
On the other hand, one commenter stated that pinioning is an
important tool in zoological management of species such as flamingoes
and waterfowl as it allows for more spacious housing as opposed to
large, covered ponds, which are costly to construct and cannot provide
the largest possible space. The commenter added that if pinioning is
performed in the first week of life, the nervous system is not mature
and discomfort is minimal. Another commenter stated that banning
pinioning would be wrong because it can make birds calmer.
We acknowledge that pinioning can cause pain and lead to the
permanent physical alteration of the bird, and accordingly we strongly
discourage its practice for non-therapeutic purposes. However, it is
sometimes necessary to remove a severely injured or self-mutilated wing
to preserve the health of the bird. For that reason, we are not
prohibiting its practice but requiring that the procedure be considered
and performed in consultation with, and either by or under the
supervision of, the attending veterinarian in accordance with the
requirement to provide adequate veterinary care in Sec. 2.40. The
attending veterinarian ultimately determines whether pinioning would be
detrimental to a bird's health and well-being. With respect to pain
management when such a procedure is necessary, we note that Sec.
2.40(b)(4) requires that the program of veterinary care include
adequate guidance to personnel involved in the humane care and use of
animals regarding anesthesia and analgesia.
Some commenters stated that APHIS should encourage changes in
housing and management that permit flight rather than using surgical
alterations to prevent flight and noted that this idea is supported by
numerous zoological associations.
We agree, and strongly encourage facilities to consider changes in
bird management practices before considering and performing non-
therapeutic surgical interventions in consultation with, and either by
or under the supervision of, the attending veterinarian in accordance
with the veterinary care requirements in Sec. 2.40.
A number of commenters also asked that we prohibit other physical
alterations for non-therapeutic purposes such as devoicing and beak
alterations, noting that such alterations constitute mutilation and
cause pain. One such commenter stated that regular beak trimming is not
necessary in a healthy bird with no predisposing beak abnormalities and
proposed that it must not be performed without medical necessity as
determined by the attending veterinarian. Another commenter opposed to
the practice noted that several countries prohibit beak trimming.
Regarding the practice of devoi
[…truncated; see source link]Indexed from Federal Register on February 21, 2023.
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