Animal Welfare; Marine Mammals

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Part 3

[Docket No. 93-076-11]

RIN 0579-AA59

Animal Welfare; Marine Mammals

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend the Animal Welfare Act regulations

concerning the humane handling, care, treatment, and transportation of

marine mammals in captivity. These proposed regulations were developed

by the Marine Mammal Negotiated Rulemaking Advisory Committee and

appear to be necessary to ensure that the minimum standards for the

humane handling, care, treatment, and transportation of marine mammals

in captivity are based on current general, industry, and scientific

knowledge and experience.

DATES: Consideration will be given only to comments received on or

before April 26, 1999.

ADDRESSES: Please send an original and three copies of your comments to

Docket No. 93-076-11, Regulatory Analysis and Development, PPD, APHIS,

suite 3C03, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please

state that your comments refer to Docket No. 93-076-11. Comments

received may be inspected at USDA, room 1141, South Building, 14th

Street and Independence Avenue SW., Washington, DC, between 8 a.m. and

4:30 p.m., Monday through Friday, except holidays. Persons wishing to

inspect comments are requested to call ahead on (202) 690-2817 to

facilitate entry into the comment reading room.

FOR FURTHER INFORMATION CONTACT: Dr. Barbara Kohn, Senior Staff

Veterinarian, Animal Care, APHIS, 4700 River Road Unit 84, Riverdale,

MD 20737-1228, (301) 734-7833.

SUPPLEMENTARY INFORMATION:

Background

The Animal Welfare Act (the Act) (7 U.S.C. 2131 et seq., enacted in

1966 and amended in 1970, 1976, 1985, and 1990) authorizes the

Secretary of Agriculture to promulgate standards and other requirements

governing the humane handling, care, treatment, and transportation of

certain animals by dealers, research facilities, exhibitors, and

carriers and intermediate handlers. Regulations established under the

Act are contained in 9 CFR parts 1, 2, and 3.

The Animal and Plant Health Inspection Service (APHIS) of the

United States Department of Agriculture established regulations under

the Act in 1979 for the humane handling, care, treatment, and

transportation of marine mammals used for research or exhibition

purposes. These standards, contained in 9 CFR part 3, subpart E, were

amended in 1984. During the 14 years since the standards were amended,

advances have been made, new information has been developed, and new

concepts have been implemented with regard to the handling, care,

treatment, and transportation of marine mammals in captivity.

On July 23, 1993, APHIS published in the Federal Register (58 FR

39458, Docket No. 93-076-1) an advance notice of proposed rulemaking

that solicited comments on appropriate revisions or additions to the

standards for the humane handling, care, treatment, and transportation

of marine mammals used for research or exhibition (referred to below as

the regulations). The comments we received supported our intent to

revise the regulations and suggested it would be highly desirable to

involve all interested parties in developing appropriate regulations.

We determined that consensus among interested parties was attainable,

and that we should proceed with negotiated rulemaking.

On May 22, 1995, we published in the Federal Register (60 FR 27049-

27051, Docket No. 93-076-3) a notice of intent to establish an advisory

committee to advise the Department on how to revise the regulations.

The notice included a list of groups tentatively identified by the

Department as potential participants on the advisory committee. A

committee, called the Marine Mammal Negotiated Rulemaking Advisory

Committee (the Committee), was subsequently established in accordance

with the Federal Advisory Committee Act (5 U.S.C. App. I). It included

all of the groups that were identified in the notice as potential

participants, with the exception of the Society for Marine Mammology,

which was unable to participate.

The following organizations were included on the Committee as

voting members:

American Zoo and Aquarium Association

Alliance of Marine Mammal Parks and Aquariums

International Association of Amusement Parks and Attractions

Marine Mammal Coalition

United States Navy

Center for Marine Conservation

Humane Society of the United States

Animal Welfare Institute, representing a broad coalition of animal

concern groups

American Association of Zoo Veterinarians

International Association for Aquatic Animal Medicine

International Marine Animal Trainers Association

Animal and Plant Health Inspection Service

The following organizations or individuals were included on the

Committee as observers or consultants. These individuals did not vote

on the final consensus reached by the Committee:

Marine Mammal Commission

National Marine Fisheries Service

Fish and Wildlife Service

Dr. Joseph Geraci, independent consultant to the Committee

[[Page 8736]]

The Committee conducted three sessions, on September 25 and 26,

1995, in College Park, MD; on April 1, 2, and 3, 1996, in Riverdale,

MD; and on July 8, 9, and 10, 1996, in Riverdale, MD. All meetings were

open to the public, with specified times during the meetings

established for public participation and comment.

Under the rules governing the negotiated rulemaking process, and in

accordance with the organizational protocols established by the

Committee, APHIS agreed to publish as a proposed rule any consensus

language developed during the meetings unless substantive changes were

made as a result of authority exercised by another Federal government

entity. Committee members agreed to refrain from commenting negatively

on the consensus-based language in the proposed rule. Consensus

language was reached on 13 of the 18 sections that comprise the

regulations, and on one paragraph in a fourteenth section: Secs. 3.101,

3.104(a), 3.105, 3.107 through 3.110, and 3.112 through 3.118. Sections

3.101 and 3.104(a) contain facility and operating standards. Section

3.101 contains general requirements for facilities housing marine

mammals, including construction, water and power supply, drainage,

storage, waste disposal, and washroom facilities; Sec. 3.104(a)

contains general space requirements for primary enclosures. Sections

3.105 and 3.107 through 3.110 concern animal health and husbandry.

Section 3.105 contains feeding requirements; Sec. 3.107 concerns

sanitation and pest control; Sec. 3.108 sets standards for employees

and attendants; Sec. 3.109 concerns separation of marine mammals; and

Sec. 3.110 concerns veterinary care. Sections 3.112 through 3.118

concern transportation of marine mammals. Section 3.112 concerns

consignment of marine mammals to carriers and intermediate handlers;

Sec. 3.113 contains standards for primary enclosures used to transport

marine mammals; Sec. 3.114 contains standards for primary conveyances

used to transport marine mammals; Sec. 3.115 contains requirements for

provision of food and water during transport; Sec. 3.116 concerns the

care of marine mammals by employees or attendants during transport;

Sec. 3.117 concerns terminal facilities; and Sec. 3.118 contains

requirements for handling marine mammals during transport.

This proposed rule contains the consensus language developed by the

Committee for these sections of the regulations. No Federal government

entity made any substantive changes to this language. The Committee

considered the remaining sections of the marine mammal regulations,

but, because there was not enough time, did not reach consensus on

changes to these sections. With one exception, only sections on which

consensus language was attained are included in this proposed rule. The

exception is a provision in current Sec. 3.110(d) concerning

maintenance of necropsy records. We have included this provision in

Sec. 3.110(g)(2) in this proposed rule. Consensus on this provision was

not attained. We are including it in this proposed rule in order to

complete the section. Further, including the provision will allow

members of the Committee and other interested persons to comment on it,

especially as it pertains to the consensus paragraphs in Sec. 3.110.

Amendments to the remaining sections in the regulations are currently

being considered by APHIS and will be proposed in a separate Federal

Register document for comment at that time. Comments on this proposal

should be confined to the proposed language in this document.

Proposed Rule

Facilities and Operating Standards

As discussed above, consensus language was reached for Secs. 3.101

and 3.104(a) of the marine mammal regulations. Sections 3.101 and 3.104

address facilities and operating standards.

In Sec. 3.101, paragraph (a)(1) requires that indoor and outdoor

housing facilities for marine mammals be structurally sound and

maintained in good repair to protect animals from injury, to contain

the animals, and to restrict the entry of unwanted animals. We are

proposing to additionally specify that lagoon and similar natural

seawater facilities must maintain effective barrier fences or other

appropriate barrier measures around all sides of the enclosure not

contained by dry land, and that the barriers must extend above the high

tide water level. Such barriers for lagoon and natural seawater

facilities would contain the marine mammals within the facility and

restrict the entry of unwanted animals. During the negotiated

rulemaking discussions, the Committee agreed that this requirement in

not intended to preclude the temporary (less than 1 day at a time)

lowering or removal of part of the barrier fencing above the water line

to accommodate filming or similar actions. It would remain the

facility's responsibility to ensure the safety and containment of the

marine mammals at all times.

Section 3.101, paragraph (a)(2), requires that all marine mammals

be protected from abuse and harassment by the viewing public by the use

of a sufficient number of employees or attendants to supervise the

viewing public, or by physical barriers, such as fences, walls, glass

partitions, or distance. We are proposing to require that the employees

and attendants be uniformed or in some way readily identifiable as

employees or attendants of the facility. The Committee believes that

the presence of persons readily identifiable as employees or attendants

of the facility is necessary to deter abuse and harassment of animals

by the public, and to readily identify persons to whom questions or

complaints may be directed.

Section 3.101, paragraph (a)(3), requires that a primary enclosure

(except for natural seawater pools subject to tidewater action) be

constructed of materials that have a nonporous, waterproof finish, and

that facilitate proper cleaning and disinfection, and be maintained in

good repair as part of a regular ongoing maintenance program. Paragraph

(a)(3) further states that any ramps or haul-out areas for primary

enclosure pools, and any natural seawater pools subject to tidal

action, must be constructed of materials that facilitate proper

cleaning and disinfection and must be maintained in good repair as part

of a regular ongoing maintenance program. The Committee believes that

these requirements do not accommodate changes and advances in marine

habitat design, or materials used in marine habitats that may not be

amenable to disinfection. For example, some primary enclosures designed

to be realistic include wood or textured surfaces that are difficult to

disinfect completely. Further, the Committee does not believe that

absolute disinfection is necessary in cases where the habitat design is

not amenable to it.

We are proposing to revise paragraph (a)(3) to require that all

surfaces in a primary enclosure be constructed of durable, nontoxic

material that facilitates cleaning, and, as appropriate, disinfection.

We further propose to require that materials used be compatible with

maintaining the water quality parameters specified in Sec. 3.106 of the

regulations. (The standards for water quality contained in Sec. 3.106

generally address bacterial standards, salinity, filtration, and water

flow.) Additionally, we propose to require facilities to develop and

follow a written protocol for cleaning enclosure surfaces that does not

employ methods or materials hazardous to the marine

[[Page 8737]]

mammals. Having a written protocol would help ensure that facility

employees have clear directions and would provide a written plan that

could be evaluated by APHIS inspectors if a problem arises. Specific

references to natural seawater facilities are not included in the

proposed language because the Committee judged it unnecessary to

distinguish between these and other kinds of facilities, given the

proposed language. Even though natural seawater facilities are not made

predominantly of materials that can be cleaned and disinfected, they

may have constructed barrier fences or other structures that should be

maintained as in other facilities. The intent of proposed paragraph

(a)(3) is to ensure that all surfaces that can be cleaned and

disinfected are cleaned and disinfected.

Section 3.101, paragraph (a)(4), exempts facilities that utilize

natural water areas, such as tidal basins, bays, or estuaries (subject

to natural tidewater action), for housing marine mammals from the

drainage requirements in Sec. 3.101(c)(1) (discussed later in this

document). Paragraph (a)(4) also provides that, regardless of the

exemption stated above, facilities must meet the minimum standards with

regard to space, depth, and sanitation, and must monitor the water for

coliforms and for pH and chemical content, if chemicals are added. We

are proposing to remove the language concerning the minimum standards

with regard to space, depth, and sanitation, and for monitoring the

water coliforms and pH and chemical content. Requirements for meeting

minimum space standards are contained in Sec. 3.104, and requirements

for monitoring water for coliforms and pH and chemicals are contained

in Sec. 3.106. The Committee believes that these changes would simplify

the paragraph without substantively changing the requirements for

natural water area facilities.

Section 3.101, paragraph (b), requires that reliable and adequate

sources of water and electric power be provided by the facility, and

that written contingency plans be submitted to and approved by APHIS'

Veterinary Services regarding emergency sources of water and electric

power in the event of failure of the primary sources. We are proposing

two changes to paragraph (b). First, we would require that written

contingency plans be submitted to the Deputy Administrator of Animal

Care, rather than to Veterinary Services. This change is necessary

because, since the last amendments to subpart E, APHIS reorganized so

that Animal Care is no longer part of APHIS' Veterinary Services

program, but is an independent APHIS program. Additionally, we are

proposing to require that contingency plans include, but not be limited

to, specific animal evacuation plans in the event of a disaster, and

that the plans should describe back-up systems and/or arrangements for

relocating marine mammals requiring artificially cooled or heated

water. If a contingency plan includes release of marine mammals, the

plan also would have to include provisions for recall training and

retrieval of the animals.

Paragraph (c) of Sec. 3.101 concerns drainage. Paragraph (c)(1)

requires, among other things, that adequate drainage be provided for

all primary enclosure pools in marine mammal facilities, and that

drainage be located so that all of the water contained in the pools may

be ``rapidly eliminated'' when necessary for cleaning the pools or for

other purposes. We are proposing to change the phrase ``rapidly

eliminated'' to ``effectively eliminated.'' ``Rapid'' emptying of

enclosure pools is not always practical and, in some cases, can be

unsafe for both humans and animals. For example, a 2 million gallon

pool cannot be rapidly emptied without having a drain and pipes that

are extremely large, much larger than needed for water circulation.

Further, if a pool is rapidly emptied with an animal or human in the

water, the animal or human could be pulled down by an undertow or be

trapped in the drain. The intended goal of the requirement is to ensure

that all water in the pool can be eliminated when necessary. The

Committee believes ``effectively eliminated'' is a better term to

convey this intended goal.

In Sec. 3.101, paragraph (c)(2) requires, among other things, that

drainage be provided for primary enclosures and areas immediately

surrounding pools. Members of the Committee were concerned about the

possibility of animals becoming entrapped by suction created by the

drains. This can occur when a drain cover or strainer becomes

unfastened so that the drain hole is exposed. To help prevent the

possibility of such occurrences, we are proposing to add a requirement

to paragraph (c)(2) that all drain covers and strainers be securely

fastened to minimize the risk of animal entrapment.

Paragraph (d) of Sec. 3.101 concerns food storage, and requires

that supplies of food be stored in facilities that adequately protect

the food supplies from deterioration, molding, or contamination by

vermin. We are proposing to state instead that the food supplies must

be protected from deterioration, spoilage (meaning harmful microbial

growth), vermin, or other contamination. The Committee believes that

the proposed change is necessary to address microbial growth and other

potential contaminants, such as bacteria or chemicals. Paragraph (d)

also requires that refrigerators and freezers be used for perishable

food. We are proposing to permit temporary storage of food in chilled

and/or iced coolers for periods of less than 12 hours. This change

would accommodate the practice of using coolers to bring food to the

marine mammal enclosure to be used throughout the day. The intent of

the Committee in agreeing to this proposed addition is that the chilled

and/or iced coolers would have to function adequately and have

sufficient ice and insulation to maintain the integrity of the food

inside. Finally, paragraph (d) specifies that no substances that are

known to be, or may be, toxic or harmful to marine mammals may be

stored or maintained in the marine mammal food storage areas. We are

proposing to allow cleaning agents to be maintained in these areas if

they are kept in secured cabinets designed and located to prevent food

contamination. We also propose to prohibit food, supplements, or

medications to be used beyond the commonly accepted shelf life or

dating on the label. The Committee believes that this prohibition would

help ensure that only wholesome and efficacious food, supplements, and

medications are used.

Paragraph (e) of Sec. 3.101 concerns waste disposal and requires,

among other things, that disposal facilities be provided and operated

in a manner that minimizes vermin infestation, odors, and disease

hazards. We are proposing to state instead that disposal facilities

must be provided and operated in a manner that minimizes odors and the

risk of vermin infestation and disease hazards. We are proposing this

rewording because the Committee was concerned that the current language

could be misunderstood to imply that some degree of vermin infestation

and disease hazard is acceptable.

Section 3.101, paragraph (f), concerns washroom facilities and

requires that facilities such as washrooms, basins, showers, or sinks

be provided to maintain cleanliness among employees and attendants. The

Committee agreed to several changes to make this paragraph more

specific. We are proposing that washroom facilities containing basins,

sinks, and, as appropriate, showers (not all washrooms require a

shower) must be provided and must be conveniently located to maintain

cleanliness among

[[Page 8738]]

employees, attendants, and volunteers. We would also require that such

facilities be cleaned and sanitized daily.

The Committee also agreed to add a new paragraph (g) to Sec. 3.101,

to address the use of enclosure or pool environmental enhancements.

Proposed paragraph (g) would require that any nonfood item used to

provide entertainment or stimulation for marine mammals be of

sufficient size and strength to prevent ingestion or breakage or

causing injury to marine mammals. These items would also have to be

able to be cleaned, sanitized and/or replaced effectively.

As discussed previously in this document, consensus language was

not developed for the bulk of Sec. 3.104. However, consensus language

for paragraph (a) of Sec. 3.104 was developed and is included in this

proposed rule. Paragraph (a) states that primary enclosures must comply

with the minimum space requirements prescribed by the regulations. (The

minimum space requirements are contained in Sec. 3.104(b) and (c),

which are not affected by this rulemaking.) Paragraph (a) further

requires that primary enclosures be constructed and maintained so that

marine mammals contained within have sufficient space to make normal

postural and social adjustments, with adequate freedom of movement, in

or out of the water, except as provided in Sec. 3.110, ``Veterinary

care.'' Paragraph (a) also provides that primary enclosures smaller

than required by the standards may be used for temporary holding

purposes such as training and transfer of marine mammals, but may not

be used for permanent housing or for periods longer than specified by

an attending veterinarian.

The Committee agreed to make several changes to paragraph (a) to

add specificity. First, we propose to replace the general reference to

Sec. 3.110 with a reference to Sec. 3.110(b) (discussed later in this

document). Paragraph (b) concerns isolation or separation for medical

treatment and/or medical training. We also propose to provide that

enclosures smaller than allowed by the standards may be used

temporarily for nonmedical training, breeding, holding, and transfer

purposes. However, we propose that, if a marine mammal is to be kept in

such an enclosure for nonmedical training, breeding, or holding for

longer than 2 weeks, or for transfer purposes for longer than 1 week,

the attending veterinarian must provide written justification on a

weekly basis. We propose to specify that enclosures that do not meet

the minimum space requirements, including gated side pools abutting

primary enclosures, may not be used for permanent housing of marine

mammals. We also propose to specify that rotating animals between

compliant and noncompliant sized pools or enclosures is not acceptable

to comply with this paragraph.

Animal Health and Husbandry Standards

Sections 3.105 through 3.111 address animal health and husbandry.

The Committee developed consensus language for Secs. 3.105 and 3.107

through 3.110.

Section 3.105 contains feeding requirements. Paragraph (a) of

Sec. 3.105 requires, among other things, that the diet for marine

mammals be prepared with consideration for age, species, condition,

size, and type of marine mammal being fed. We propose to state that

factors such as age, species, condition, and size must be considered

when preparing the animals' diet. The Committee's intent is that this

language would clarify that the list is not meant to be all inclusive,

but that the listed factors must be considered in developing the

animals' diet. The specification that ``type'' of marine mammal must be

considered would be removed because the Committee believes that listing

``species'' is adequate. Paragraph (a) also requires that marine

mammals be offered food at least once a day, except as directed by

veterinary treatment or professionally accepted practices. We are

proposing to require, instead, that marine mammals be offered food at

least once a day, except as directed by the attending veterinarian.

The Committee agreed that no changes were necessary to

Sec. 3.105(b).

Section 3.105, paragraph (c), requires, among other things, that

employees or attendants responsible for giving food to the marine

mammals be able to recognize deviations from a normal state of good

health in each marine mammal so that the food intake can be adjusted

accordingly. We propose to add a requirement that inappetence exceeding

24 hours must be reported immediately to the attending veterinarian.

Loss of appetite may indicate a medical problem. The Committee believes

that requiring that loss of appetite exceeding 24 hours be reported to

the attending veterinarian would help ensure that the marine mammal is

provided with adequate veterinary care.

Paragraph (c) further requires that public feeding may only be

permitted in the presence and under the supervision of a uniformed

employee or attendant. We are proposing to revise this requirement to

further stipulate that a sufficient number of knowledgeable, uniformed

employees or attendants must supervise public feeding. The Committee

believes that adding the requirement for ``a sufficient number'' of

employees or attendants during public feeding would ensure that

adequate supervision is available depending on the number of animals

being fed. If a large number of animals is involved in the public

feeding, more than one employee or attendant would be needed. The

Committee agreed that the term ``knowledgeable'' would indicate that

the employee or attendant not only has knowledge about the individual

animals, but knowledge about the harmful effects of feeding marine

mammals in the wild, and knowledge that such practices are prohibited

under the Marine Mammal Protection Act. The Committee believes that

clarification of this intent in the preamble of the proposed rule,

rather than in the rule itself, would be sufficient. This

interpretation of the word ``knowledgeable'' is consistent with the

general welfare and conservation programs embraced by the majority of

the animal exhibition community.

We are also proposing to add to paragraph (c) a provision that

individual feeding records noting the estimated daily food consumption

must be maintained at the facility for a period of 1 year, and must be

made available for APHIS inspection. The Committee agreed on

clarification of this requirement as follows: For marine mammals that

are individually fed, and not subject to public feeding, the feeding

records should reflect an accurate account of food intake; for animals

fed, in part, by the public, and for large, group fed colonies of

marine mammals where individual rations are not practical or feasible

to maintain, the daily food consumption should be estimated as

precisely as possible. However, the Committee agreed that it would not

be necessary to add this clarification to the proposed regulatory

language. The Committee agreed that the remaining requirements of

paragraph (c) would remain unchanged.

Paragraph (d) of Sec. 3.105 concerns food preparation and handling,

and requires, among other things, that food be prepared and handled so

as to minimize bacterial or chemical contamination and to assure the

wholesomeness and nutritive value of the food. We are proposing to

remove the portion of that sentence referring to minimizing bacterial

or chemical contamination because the Committee was concerned that it

implied that some degree of bacterial or chemical contamination

[[Page 8739]]

would be permissible. The Committee believes that requiring food to be

prepared and handled in a manner that assures the wholesomeness and

nutritive value of the food would make it clear that contamination by

bacteria or chemicals is not acceptable.

We are also proposing to add several requirements concerning thawed

food. Paragraph (d) requires that storage of food (including the length

of time food is stored and the method of storage) and thawing of frozen

food be done in a manner that minimizes contamination and assures that

the food retains nutritive value and wholesome quality. We are

proposing to also require that thawed food be maintained in a manner

that minimizes contamination and assures that the food retains

nutritive value and wholesome quality until the time of feeding. The

Committee believes this new provision would clarify that proper

maintenance of food extends beyond the thawing process to the time the

food is fed to the animal. We are also proposing to specify that when

food is thawed in standing or running water, cold water must be used.

Use of other water to thaw frozen food may increase the risk of food

contamination and loss of nutritive value. Finally, paragraph (d)

requires that food be fed to the marine mammals within 24 hours of

removal from the freezer for thawing. We propose that, if the food is

thawed under refrigeration, it must be fed to the marine mammals within

24 hours of thawing. The Committee agreed to make this change to

accommodate changes in recognized and acceptable methods of food

storage and handling, primarily the thawing of food under refrigeration

(as opposed to thawing under running or standing water). This time

frame for using food thawed under refrigeration has been approved by

APHIS for use on an individual facility basis in the past.

Section 3.107 concerns sanitation. We are proposing several

amendments to this section that the Committee believes will simplify

language and clarify issues. Paragraph (a) of Sec. 3.107 concerns

sanitation in primary enclosures. Paragraph (a)(1) requires that animal

and food waste in areas other than the primary enclosure pool of water

be removed at least daily, and more often when necessary, to prevent

contamination of the marine mammals and to minimize disease hazards.

Paragraph (a)(2) requires that particulate animal and food waste,

trash, or debris that enters the primary enclosure pool of water be

removed as often as necessary to maintain the required water quality

and to prevent health hazards to the marine mammals. We are proposing

to revise both paragraphs to refer to minimizing ``health and disease

hazards.'' We are proposing to use this language to make these

paragraphs consistent with the rest of the proposed rule. In paragraph

(a)(1), we would also add that the removal of animal and food waste be

done ``to provide a clean environment.'' In paragraph (a)(2), we would

add that the removal of waste, trash, and debris from pools of water

must be done at least daily, or more often as necessary. This would be

consistent with the requirement in paragraph (a)(1), and would help

ensure that the pool water is kept clean.

Paragraph (a)(3) of Sec. 3.107 requires that the wall and bottom

surfaces of the primary enclosure pool of water be cleaned as often as

necessary to maintain proper water quality. We are proposing to add

that natural organisms (such as algae, coelenterates, or molluscs) that

do not degrade water quality (according to the standards in

Sec. 3.106), prevent proper maintenance, or pose a health or disease

hazard to the animals will not be considered contaminants. The

Committee believes this addition would accommodate current trends and

accepted practices of recreating more naturalistic habitats for captive

marine mammals.

Paragraph (b) of Sec. 3.107 concerns cleaning of food preparation

areas and food receptacles. The first sentence reads ``Containers, such

as buckets, tubs, and tanks, as well as utensils, such as knives and

cutting boards, or any other equipment which has been used for holding,

thawing, or preparing food for marine mammals shall be cleaned and

sanitized after each feeding, if the marine mammals are fed once a day,

and at least daily if the marine mammals are fed more than once a

day.'' We are proposing to simplify this sentence to read, ``All

equipment and utensils used in food preparation shall be cleaned and

sanitized after each use.'' The Committee believes that the revised

sentence would retain the intent of the original, while eliminating

unnecessary complexity. The remaining requirements in paragraph (b)

would be left unchanged.

Paragraph (c) of Sec. 3.107 concerns housekeeping. The last

sentence reads, ``Primary enclosures housing marine mammals shall not

have any loose objects, sharp projections, and/or edges which may cause

injury or trauma to the marine mammals contained therein.'' We are

proposing to change this sentence by removing the commas after ``loose

objects'' and ``sharp projections'' and adding an ``or'', so that the

phrase would read ``shall not have any loose objects or sharp

projections and/or edges which may cause injury.'' The Committee

believes that this change would clarify the sentence.

The Committee agreed that no changes are necessary in

Sec. 3.107(d).

Section 3.108 contains standards for employees and attendants who

handle marine mammals. The Committee agreed to clarify and expand the

requirements for employees and attendants. Currently, Sec. 3.108

requires that a sufficient number of adequately trained employees or

attendants responsible to management be utilized to maintain the

prescribed level of husbandry practices set forth in the regulations.

We are proposing to add that the employees and attendants must also

work in concert with the attending veterinarian.

Section 3.108 further requires that employees and attendants work

under the supervision of a marine mammal caretaker who has a background

in marine mammal husbandry and care. We are proposing to revise this

requirement to state that the marine mammal caretaker must have

``demonstrable experience'' in marine mammal husbandry and care. A

marine mammal caretaker could meet this requirement by, for example,

having on file at the facility a resume with verifiable information

showing where and when the employee had worked previously and a summary

of job duties. Similar and equivalent means to verify experience and

training would be acceptable to demonstrate experience under this

requirement. In the past, APHIS has received public complaints about

the lack of training and applicable experience of employees in licensed

facilities. When an employee's experience has not been demonstrable or

verifiable, it impedes the effective enforcement of the provisions

intended to make sure the animals are cared for by trained and

competent personnel. The Committee believes that the proposed revisions

would help ensure that personnel are adequately trained and supervised

to manage the care of the marine mammals.

To the same end, we are proposing to put the provisions described

above into a new paragraph (a) in Sec. 3.108, and to add new paragraphs

(b), (c), and (d) to address employee and attendant training and animal

training. Paragraph (b) would require that each facility provide and

document participation in and successful completion of a facility

training course for its employees. This training course would have to

include, but would not be limited to, species appropriate husbandry

techniques, animal handling techniques, and information on proper

reporting protocols, including recordkeeping and

[[Page 8740]]

notification of veterinary staff when there are medical concerns. New

paragraph (c) would require that any training of marine mammals be done

by or under the direct supervision of experienced trainers, and new

paragraph (d) would require that all trainers and handlers meet

professionally recognized standards for experience and training. The

Committee agreed that, for purposes of enforcing this requirement,

APHIS should use professional organization standards, such as those

used by the International Marine Animal Trainers Association, as a

point of reference.

Section 3.109 concerns separation of animals, and prohibits marine

mammals that are not compatible from being housed in the same

enclosure, and prohibits marine mammals from being housed near animals

that cause them stress or discomfort or interfere with their good

health. Section 3.109 also requires that captive marine mammals be

given access to other animals except when they are temporarily

maintained in isolation for such purposes as medical treatment or

training and given special attention. The Committee agreed to revise

these requirements to better define under what conditions usually

social animals may be kept with or separated from the same or related

species. We are proposing to retain the provisions that prohibit marine

mammals that are not compatible from being housed in the same

enclosure, and that prohibit marine mammals from being housed near

animals that cause them stress or discomfort or interfere with their

good health. However, we would add the term ``unreasonable'' in front

of ``stress or discomfort'' to recognize that any new situation or

change in conditions can cause a marine mammal to experience some

stress.

We are proposing to remove the requirement in Sec. 3.109 that

captive marine mammals must be given access to other animals except

when they are temporarily maintained in isolation for such purposes as

medical treatment or training and given special attention. In its

place, we are proposing to add that marine mammals that are known to be

primarily social in the wild must be housed in their primary enclosure

with at least one compatible animal of the same or biologically related

species. An exception to this requirement would be made when the

attending veterinarian, in consultation with the husbandry/training

staff, determines that such housing is not in the best interests of the

marine mammal's health or well-being. We also propose to require a

written plan for animals that are housed separately that includes

justification for the length of time the animal will be kept separated

or isolated, the type and frequency of enrichment activities, plans for

interaction, if appropriate (for example, interactions with trainers/

handlers would be appropriate for cetacean species and some pinnipeds

but not, necessarily, for polar bears), and provisions for periodic

review of the plan by the attending veterinarian. The written plan

would have to be approved by the attending veterinarian and developed

in consultation with the husbandry/training staff. Finally, we propose

to require that marine mammals that are held separately for nonmedical

reasons be in facilities (enclosures) that meet the minimum space

requirements found in Sec. 3.104. The Committee believes that these

proposed regulations would minimize separation or isolation of social

animals except for medical or compatibility considerations, and would

ensure that there is an ongoing accountability for the isolation or

separation of a marine mammal.

Section 3.110 contains standards for veterinary care of marine

mammals. Proposed Sec. 3.110 would retain most of the current

requirements, with some minor changes, and would add additional

standards for veterinary care.

Proposed paragraph (a) of Sec. 3.110 would require all newly

acquired marine mammals to be isolated from resident animals at the

facility. This requirement is in current Sec. 3.110(a). Current

Sec. 3.110(a) further stipulates that the newly acquired marine mammals

be isolated until they can reasonably be determined to be in good

health. In accordance with the Committee's agreement, we propose to

require instead that newly acquired marine mammals with a known medical

history be isolated unless or until the attending veterinarian can

reasonably determine that they are in good health. Marine mammals

without a known medical history would have to be isolated until the

attending veterinarian determines that they are in good health. This

revision is intended to mean that newly acquired marine mammals with a

known medical history might not have to be isolated at all if the

attending veterinarian determines they are in good health. Paragraph

(a) also requires that any communicable disease condition in a newly

acquired marine mammal be remedied before the new animal is placed with

resident marine mammals. We propose to add that this requirement will

not apply if the attending veterinarian judges that the potential

benefits of a resident animal as a companion to the newly acquired

animal outweigh the risks to the resident animal.

Proposed paragraph (b) of Sec. 3.110 would, in part, contain a

revised version of the provisions currently found in paragraph (c) of

Sec. 3.110. Paragraph (c) requires that temporary holding facilities

with adequately and properly designed pools, tanks, restraining

devices, or primary enclosures, be provided for isolation, medication,

treatment, and other purposes, such as transfer and training of marine

mammals. To simplify this requirement, proposed Sec. 3.110(b) would

state that holding facilities must be in place and available to meet

the needs for isolation, separation, medical treatment, and medical

training of the marine mammals. Paragraph (c) also currently provides

that the pools, tanks, and primary enclosures may be less than minimum

size in both lateral dimensions and depth when used in special

situations when prescribed by the professional staff for temporary use.

To simplify and clarify this requirement, as well, proposed paragraph

(b) would state that holding facilities used to house isolated or

separated marine mammals for nonmedical purposes would have to meet the

space requirements of Sec. 3.104; holding facilities used only for

medical treatment and medical training would not have to meet the

minimum space requirements of Sec. 3.104.

The remainder of proposed Sec. 3.110(b) would contain new

requirements agreed on by the Committee. We are proposing to require

that, if an animal is to be housed for longer than 2 weeks for medical

or medical training purposes in a facility that does not meet the

minimum space requirements in Sec. 3.104, it must be noted and

justified on the animal's medical records by the attending veterinarian

on a weekly basis. We are also proposing in paragraph (b) provisions

for veterinary care of marine mammals in natural lagoon and coastal

enclosures because water circulation cannot be controlled or isolated

in such facilities. In natural lagoon and coastal enclosures, newly

acquired marine mammals would have to be separated from resident

animals using separate enclosures within the facility, located to

prevent direct contact of newly acquired animals with resident animals

and to minimize the risk of airborne or waterborne contamination

between newly acquired animals and resident animals.

Currently, paragraph (b) of Sec. 3.110 also contains provisions

concerning cleaning of primary enclosures containing a marine mammal

with an infectious or contagious disease. We are proposing to put

provisions for cleaning in paragraph (c) of Sec. 3.110. The

[[Page 8741]]

proposed provisions would be similar to the current provisions, except

that we would refer to cleaning of holding facilities used for medical

purposes, instead of to primary enclosures. The Committee's intent is

to clarify that holding facilities may include primary enclosures, as

well as other types of facilities used for medical purposes. We are

proposing to require that any holding facility that is used for medical

purposes and that has contained a marine mammal with an infectious or

contagious disease be cleaned and sanitized in the manner prescribed by

the attending veterinarian. No healthy animals could be introduced into

the holding facility prior to such cleaning and/or sanitizing, to

minimize the risk of spreading disease. Any marine mammal exposed to a

contagious animal would have to be evaluated by the attending

veterinarian. The attending veterinarian would determine if the exposed

animal needs to be monitored and/or isolated, and would determine the

appropriate time period for monitoring or isolation.

In proposed Sec. 3.110, paragraphs (d), (e), and (f) would add new

requirements for veterinary care beyond what is currently required. The

new requirements are intended to provide more specific standards

concerning what constitutes adequate veterinary care.

Proposed Sec. 3.110, paragraph (d), would require that individual

medical records be kept for each animal and be made available to APHIS

inspectors. These records would have to indicate the animal's

identification/name and a physical description of the animal, including

any identifying markings, scars, etc. The age and sex of the animal

must also be recorded. The Committee agreed that, in enforcing this

requirement, records may include the actual age of the animal or an

estimated age, if the actual age is not known. The individual medical

record would also have to include the results of all physical

examinations, including, but not limited to, length, weight, physical

examination results by body system, identification of all medical and

physical problems and proposed plan(s) of action (i.e. the treatment

protocol), all diagnostic test results, and documentation of all

treatment.

Proposed Sec. 3.110, paragraph (e), would require that a copy of

the individual animal medical record accompany any marine mammal when

it is transferred to another facility. This would include transfers to

all contract (lease) and satellite facilities. The intent of this

requirement is to ensure that a copy or the original of the animal's

individual medical record would always be available to animal care

personnel, including the attending veterinarian at the receiving

facility, and to APHIS inspectors.

Proposed Sec. 3.110, paragraph (f), would require that all marine

mammals be visually examined by the attending veterinarian at least

twice a year, and physically (hands on) examined under the supervision

of the attending veterinarian whenever the attending veterinarian

determines that physical examination is necessary. All cetaceans and

sirenians (whales, dolphins, and manatees) would have to be physically

examined by the attending veterinarian at least once a year. The annual

physical examination for cetaceans and sirenians would have to include,

but not be limited to, a hands on physical examination, hematology and

blood chemistry analysis, and other diagnostic tests as determined by

the attending veterinarian. APHIS could grant an exception from the

requirement for a yearly physical examination of cetaceans and

sirenians based on considerations related to the health and safety of

the individual animal. It was agreed by the Committee that use of

trained husbandry behaviors should be encouraged, to minimize the

stress of the required examinations. However, the Committee determined

that this would not be specified in the regulations. We are proposing

to leave the frequency of physical examinations for marine mammals

other than cetaceans and sirenians to the discretion of the attending

veterinarian. The Committee particularly felt that hands on physical

examinations of animals in large, untrained pinniped colonies may not

be warranted unless the attending veterinarian believes a particular

animal requires such an examination. This is because examination of an

untrained pinniped colony may cause undue stress to the colony or

individual animals and may present a significant risk of injury to

personnel.

In proposed Sec. 3.110, paragraph (g) would contain requirements

for necropsy. The proposed requirements are essentially the same as

those in current Sec. 3.110(d), with some additional provisions.

Currently, Sec. 3.110(d) requires that a complete necropsy be conducted

by or under the supervision of a veterinarian on all marine mammals

that die in captivity. We would retain this requirement in proposed

paragraph (g)(1), but would further specify that the necropsy must

include histopathology samples, microbiological cultures, and other

testing as appropriate, and that the necropsy must be conducted by or

under the supervision of the attending veterinarian. Current paragraph

(d) further requires that the veterinarian prepare a necropsy report

listing all pathological lesions observed and giving the apparent cause

of death. Proposed paragraph (g)(1) would require both a preliminary

report and a final report. The preliminary necropsy report would have

to include a list all pathological lesions observed. The final report

would have to include all gross and histopathological findings, lab

test results, and a pathological diagnosis (this may or may not be the

immediate cause of death).

Current paragraph (d) also requires that the management of the

facility at which the marine mammal died must maintain necropsy records

for a period of 3 years and must make them available for APHIS

inspection when requested. The Committee discussed whether or not to

revise the regulations to require that necropsy records be submitted to

and maintained by APHIS, but the Committee did not reach agreement on

this issue. APHIS has encountered no significant problems investigating

marine mammal deaths, when indicated, using necropsy records kept at

the facility. Further, we do not wish to place an additional reporting

burden on licensees and registrants concerning these records.

Therefore, we are including the requirement from paragraph (d), with

one change, in proposed paragraph (g)(2), despite the fact that

consensus was not reached on the requirement. Because proposed

paragraph (g)(2) is nonconsensus language, it is open for all public

comment, including comments from Committee members.

Proposed paragraph (g)(2) would require that necropsy reports be

maintained at the facility for a period of 3 years and made available

for APHIS inspection. We intend this to mean at the home facility of

the marine mammal. We are proposing not to retain the requirement that

records be kept at the facility where the marine mammal died, in order

to allow for the records of leased or borrowed animals to be maintained

at the home institution. Some facilities maintain marine mammals only

on a seasonal basis, and are therefore not open for inspection for

significant parts of the year. While we would still expect records to

be available at the site of demise for investigative purposes following

an animal's death, once an investigation (if warranted) is completed,

the records could be maintained at the home facility of the animal.

[[Page 8742]]

Transportation Standards

Sections 3.112 through 3.118 contain standards for transportation

of marine mammals. Consensus language was attained for each of these

sections. One of the changes we are proposing appears throughout

Secs. 3.112 through 3.118. These sections frequently use the term

``primary enclosure'' to mean the primary enclosure used during

transport of a marine mammal. However, the term ``primary enclosure''

is also used throughout the regulations to mean an animal's permanent

housing structure, such as the pool at the facility where the animal is

kept. To avoid confusion, we are proposing to replace the term

``primary enclosure'' with the term ``primary transport enclosure''

throughout Secs. 3.112 through 3.118, wherever we believe such change

is necessary for clarity. This change would appear in Sec. 3.112(b),

Sec. 3.113(h),

Sec. 3.114(c), Sec. 3.117, and Sec. 3.118(b). In other places, the

regulations specify ``primary enclosure used to transport marine

mammals.'' We would not make any changes in these places because we

believe the intent is clear.

Section 3.112 concerns consignment of marine mammals to carriers

and intermediate handlers. The Committee agreed to retain almost all of

current Sec. 3.112, with a few changes and additions.

Paragraph (a) of Sec. 3.112 currently states that carriers and

intermediate handlers may not accept any marine mammal for transport

more than 4 hours prior to the scheduled departure of the primary

conveyance on which the animal is to be transported, with an exception

made to 6 hours if agreed on by both the carrier or intermediate

handler and the person or group presenting the animal for transport. We

are proposing to also prohibit a carrier or intermediate handler from

accepting any marine mammal for transport if the animal is not

accompanied by a health certificate signed by the attending

veterinarian and stating that the animal was examined within 10 days

prior to transport and was found to be in acceptable health for

transport. A requirement for a pre-transport veterinary examination and

health certificate already exists for dogs, cats, and nonhuman primates

(see 9 CFR 2.38 and 2.78). The Committee believes that adding a similar

requirement for marine mammals would help ensure that the health of

marine mammals is assessed prior to transport.

Paragraph (b) of Sec. 3.112 states, among other things, that any

carrier or intermediate handler may accept a marine mammal for

transport if the consignor provides a certificate stating that the

primary transport enclosure complies with Sec. 3.113 of the regulations

(discussed later in this document). The certificate must include the

name and address of the consignor, the number of animals in the

enclosure, a statement certifying that the enclosure complies with the

standards in 9 CFR part 3, and the signature of the consignor. We are

proposing to add that the certificate must also include the age and sex

of each animal in the primary transport enclosure. The Committee agreed

that, in enforcing this requirement, APHIS may accept on the

certificate the actual age of the animal or an estimated age, if the

actual age is not known.

Section 3.112(c) concerns temperature. It states that carriers or

intermediate handlers whose facilities fail to meet the minimum

temperature allowed by the regulations may accept a marine mammal for

transport if the marine mammal is accompanied by a certificate executed

by an accredited veterinarian and stating that the marine mammal is

acclimated to air temperatures lower than those prescribed in

Secs. 3.117 and 3.118 of the regulations. We are proposing first to

clarify the temperature requirement in this paragraph by stating the

acceptable temperature range required by Secs. 3.117 and 3.118 (7.2

deg.C-23.9 deg.C, or 45 deg.F-75 deg.F) and by stating that the air

temperature must be within this range. We also propose to amend

paragraph (c) to state that carriers or handlers whose facilities fail

to maintain a temperature within that range may accept a marine mammal

for transport if the marine mammal is accompanied by a certificate

stating that the marine mammal is acclimated to an air temperature

range specified on the certificate that is either lower or higher than

the prescribed range. Including the air temperature to which the animal

is acclimated would provide additional guidance to carriers and

intermediate handlers in determining if the animal should be accepted

for shipment. We are also proposing to require that the certificate be

executed by the attending veterinarian instead of by an accredited

veterinarian. We are proposing this change because the attending

veterinarian responsible for the marine mammal would know better to

what temperature the animal is acclimated than would an accredited

veterinarian who is not usually responsible for the animal's care.

In addition to certifying acclimation to a certain air temperature,

paragraph (c) requires that the certificate include the name and

address of the consignor and the number of animals in the shipment. We

are proposing to additionally require that the certificate include the

age and sex of each marine mammal in the shipment. The Committee agreed

that, in enforcing this requirement, the certificate may include the

actual age of the animal or an estimated age, if the actual age is not

known.

Section 3.113 contains standards for construction and design of

primary transport enclosures for marine mammals. The Committee's

proposal retains almost all of the current provisions in Sec. 3.113,

with some revisions and additions.

Paragraph (a) contains specific requirements for primary transport

enclosures used to transport any marine mammal to help ensure the

animals' safety and comfort.

One of the requirements, contained in paragraph (a)(4), is that the

primary transport enclosure have interiors that are free from any

protrusions that could be injurious to the marine mammals. We are

proposing to add that the interior must also be free from any hazardous

openings that could be injurious to the marine mammals. This

requirement appears necessary to prevent injuries caused by marine

mammals' flippers, heads, or feet being caught in openings from which

they can not readily free themselves.

Paragraph (a)(7) requires that primary transport enclosures have

openings located in a manner that makes them easily accessible at all

times for emergency removal of the marine mammal inside. We are

proposing to add that the openings must also allow potential treatment

of the marine mammal. The Committee believes this requirement is

necessary because treatment during transport (emergency or otherwise)

would not always require, and is often best performed without, removal

of the marine mammal from the enclosure.

Paragraph (a)(8) requires that primary transport enclosures have

ventilation openings located on all four sides of the enclosure that

are not less than 16 percent of the total surface area of each side. We

are proposing to require that the ventilation openings be not less than

20 percent of the total surface area on each side. The Committee

determined that this was a reasonable requirement that would ensure

adequate ventilation without interfering with the strength and

integrity of the transport enclosure. The Committee also believes that

20 percent is an easier percentage to work with than 16 percent.

Paragraph (a)(9) requires that primary transport enclosures have

projecting rims or other devices placed on the ends

[[Page 8743]]

and sides of enclosures with ventilation openings to provide a minimum

air circulation space of 1.9 centimeters (.75 inches) between the

enclosure and any adjacent cargo or the conveyance wall. We are

proposing to require the minimum air circulation space be 7.6

centimeters (3 inches). The Committee believes this additional space is

necessary to ensure adequate airflow around the enclosure.

We would redesignate current paragraph (a)(10) as (a)(11), without

changing its content. We propose to add a new paragraph (a)(10) in its

place to state that primary transport enclosures must be constructed so

as to provide air circulation space sufficient to maintain the

temperature limits required by the regulations (in subpart E).

Temperature limits required by the regulations would include

temperature limits found within Secs. 3.112 through 3.118, as well as

any temperature limits for specific species that may be set in

Secs. 3.102 and 3.103 in a future rulemaking.

Paragraph (b) of Sec. 3.113 concerns devices used for supporting or

restraining marine mammals during transport. The Committee agreed that

no substantive changes were necessary in this paragraph. The Committee

did propose an editorial change in paragraph (b)(1), to remove the

phrase ``during transportation.'' This phrase was considered redundant,

since it is already clear that the standards in this section apply to

transportation.

Paragraph (c) of Sec. 3.113 contains standards for the size of

primary transport enclosures, specific for different types of marine

mammals. We are proposing to restructure this paragraph for the purpose

of simplification. Paragraph (c)(1) concerns enclosures for polar bears

and sea otters, and paragraph (c)(2) concerns enclosures for pinnipeds

(seals, sea lions, and walruses). We would add pinnipeds to paragraph

(c)(1), without changing the space requirements and would remove

paragraph (c)(2). Current paragraph (c)(3) would be redesignated as

paragraph (c)(2).

Current paragraph (c)(1) requires that enclosures for polar bears

and sea otters provide sufficient space for the animals to turn about

freely in a stance whereby all four feet are on the floor. Because we

are adding pinnipeds to this paragraph, we would also add a reference

to all flippers being on the floor. Current paragraph (c)(3) (proposed

to be redesignated as paragraph (c)(2)) states that animals may be

restricted in their movement ``according to professionally acceptable

standards. . . .'' We propose to refer instead to ``professionally

accepted standards.''

Paragraph (d) of Sec. 3.113 concerns the compatibility of marine

mammals transported together. One of the requirements in paragraph (d)

is that socially dependent animals (for example, siblings, dams, or

other members of a family group) must be allowed visual and olfactory

contact. We are proposing to require that visual and olfactory contact

be allowed whenever reasonable. The Committee believes that this

proposed revision is necessary because there are occasions when, due to

transportation circumstances and the animals involved, visual or

olfactory contact is not possible. For example, currently accepted

industry standards for transporting cetaceans involves transportation

in individual enclosures with solid sides. These enclosures invariably

have solid sides even when the animal is in a sling. Although there may

be auditory contact with other group members being transported at the

same time, visual contact is not practical.

Section 3.113, paragraph (e), contains provisions for the

construction of primary transport enclosure floors. We are proposing to

retain the first requirement in paragraph (e) that primary transport

enclosures have solid bottoms to prevent leakage in shipment and, if

the enclosure has been previously used, that it be cleaned and

sanitized in a manner prescribed in Sec. 3.107 of the regulations. The

remainder of paragraph (e) requires that primary transport enclosures

contain clean litter, unless the animals are on wire or other nonsolid

floors. We are proposing to replace these provisions with a requirement

that, within the primary transport enclosure, marine mammals be

maintained on sturdy, rigid, solid floors with adequate drainage. The

use of litter and some wire flooring can be potentially dangerous for

the animals if litter is ingested or body parts are caught in or

abraded on the wire flooring. The Committee believes the revision is

necessary to reflect currently accepted practices regarding the

flooring of transport enclosures for marine mammals, and to provide the

best flooring for the safe transport of the marine mammals.

Paragraph (f) of Sec. 3.113 requires primary transport enclosures

to be marked with the phrase ``Live Animal'' or ``Wild Animal''

(whichever is appropriate), and gives specifications as to how those

markings must appear. One of the specifications is that the enclosure

must be marked on top and on one or more sides. However, some primary

transport enclosures are open, and do not have tops (such as those used

for cetaceans or sirenians). Other primary transport enclosures do not

have solid areas on more than one side. To accommodate these

situations, we are proposing to revise this requirement to state that

the enclosure must be marked with the appropriate phrase ``on top (when

present) and on at least one side, or on all sides whenever possible.''

We are also proposing to remove the phrase ``whichever is appropriate''

after ``Live Animal'' or ``Wild Animal'' because the Committee believes

it is unnecessary.

Paragraph (g) of Sec. 3.113 requires that documents accompanying

the shipment of marine mammals be attached to the outside of a primary

transport enclosure that is part of the shipment. We are proposing to

add, as an alternative, that the documents may be in the possession of

the shipping attendant. This alternative would allow the documents to

be kept away from water that is in the enclosures or that is used to

spray the animals.

The Committee proposed no changes to Sec. 3.113, paragraph (h),

except to change ``primary enclosure'' to ``primary transport

enclosure'', for the reasons given previously in this document.

Section 3.114 contains standards for primary conveyances (motor

vehicle, rail, air, and marine) used to transport marine mammals.

Paragraph (a) provides that the animal cargo space of any primary

conveyance used to transport live marine mammals must be constructed in

a manner that will protect the health and ensure the safety and comfort

of the marine mammals being transported. Historically, most problems

with discomfort, stress, and injuries to marine mammals during

transportation have been caused by excessive heat or cold. To help

prevent such problems, we are proposing to add a provision to paragraph

(a) that would require primary conveyances to be sufficiently

temperature controlled to provide an appropriate environmental

temperature for the species of marine mammal being transported, to

ensure the safety and comfort of the marine mammal, or to employ other

safeguards (for example, cold water, ice, or fans) to maintain the

animal at an appropriate temperature.

The Committee did not propose any revisions to Sec. 3.114(b).

In Sec. 3.114, paragraph (c), we are proposing to make some

editorial changes to make the regulations easier to read and

understand, but we are proposing no substantive changes.

The Committee did not propose any changes to paragraphs (d), (e),

or (f) of Sec. 3.114.

[[Page 8744]]

We are proposing to add a new paragraph (g) to Sec. 3.114 to

address lighting in the requirements for primary conveyances. The

Committee believes that adequate lighting is essential to provide

adequate care for the animals during transport. Proposed paragraph (g)

would require that adequate lighting be made available so that

attendants may properly inspect the marine mammals in their care at any

time. If the carrier cannot provide such lighting, the shipper

(consignor) must arrange for the lighting.

Section 3.115 contains requirements for food and drink availability

during transport. Currently, paragraph (a) requires that those marine

mammals that require drinking water be offered potable water within 4

hours prior to being transported in commerce or offered for

transportation in commerce. We propose to change this language to state

that those marine mammals that require drinking water be offered

potable water within 4 hours of being placed in the primary transport

enclosure for transport in commerce. The Committee believes this change

is necessary because marine mammals are sometimes placed in a primary

transport enclosure and then transported to the primary conveyance for

transport in commerce. In these cases, the marine mammal may be in the

primary transport enclosure several hours before transport in commerce

begins. The Committee intends that this change will ensure that the

marine mammal is given water within a reasonable time prior to being

placed in the primary transport enclosure.

Paragraph (b) of Sec. 3.115 requires that marine mammals may not be

transported for more than 36 hours without being offered food; when an

employee or attendant is required to accompany the shipment, the marine

mammals must be fed during transit when necessary to provide for their

good health and well-being. The Committee agreed that not all marine

mammal species require or benefit from food during transportation. To

reflect this, we are proposing to require instead that marine mammals

being transported in commerce be offered food as often as necessary and

appropriate for the species involved or as determined by the attending

veterinarian. The attending veterinarian would take into account the

species of marine mammal, the condition of the individual animal, and

the length of transport to determine if food needs to be offered.

Section 3.116 contains requirements for care of marine mammals in

transit. The Committee chose to extensively revise this section to

address the specific needs and considerations for the transport of

marine mammals. While the specific proposed regulations are discussed

below, a key overriding component of the proposed language is that all

marine mammals in transit must be accompanied by a sufficient number of

knowledgeable and experienced escorts. The proposed regulations may

specify that the escort be a licensed veterinarian, an employee, or an

attendant of the shipper or receiver. This additional consideration

appears throughout proposed Sec. 3.116.

Section 3.116(a) requires that an employee or attendant of the

shipper or receiver knowledgeable in the area of marine mammal care

accompany cetaceans, sirenians, pinnipeds, and sea otters during

transport to provide for their good health and well-being, to observe

the marine mammals and determine whether they need veterinary care, and

to obtain any needed veterinary care as soon as possible. We are

proposing to retain this requirement, but with a few changes. We would

add ``licensed veterinarian'' to the list of persons who may accompany

the marine mammal during transport. We would require that, in addition

to being knowledgeable in the area of marine mammal care, the licensed

veterinarian, employee, or attendant must also be experienced in the

area of marine mammal care and knowledgeable and experienced in the

area of marine mammal transport. We would also replace the phrase

``cetaceans, sirenians, pinnipeds, and sea otters'' with ``all marine

mammals,'' which would include polar bears. We also propose to require

that any transport of greater than 2 hours duration have a transport

plan approved by the attending veterinarian. Among other things, this

plan would have to specify whether a veterinarian must accompany the

shipment. We also propose that, if the attending veterinarian does not

accompany the shipment, arrangements must be made to stay in contact

with him/her during transport, in accordance with 9 CFR 2.40(b)(3).

Section 2.40 of the regulations contains requirements for adequate

veterinary care of any animal covered under the Animal Welfare Act.

Section 2.40(b)(3) requires, among other things, that there be daily

observations of all animals to assess their health and well-being, and

that there be a mechanism of direct and frequent communication so that

timely and accurate information on problems of animal health, behavior,

and well-being can be conveyed to the attending veterinarian.

Currently, specific requirements concerning care of cetaceans and

sirenians in transit appear in paragraph (b) of Sec. 3.116; specific

requirements concerning care of sea otters in transit appear in

paragraph (c) of Sec. 3.116. In proposed Sec. 3.116, requirements

concerning these animals would appear in paragraphs (d) and (f),

respectively. Proposed paragraphs (b) and (c) would contain new

requirements. Paragraph (b) would contain requirements for handling the

transportation of a marine mammal under circumstances where additional

care or planning may be needed. A pregnant marine mammal in the last

half of pregnancy, a dependent unweaned young animal, a nursing mother

with young, or an animal with a medical condition requiring veterinary

care that would be compromised by transport could not be transported in

commerce unless the transport is determined to be appropriate by the

attending veterinarian. Earlier in this document, we discussed the

proposal in Sec. 3.112 to require that marine mammals presented for

transport be accompanied by a health certificate, signed by the

attending veterinarian, certifying that the animal is in acceptable

health for transport. In conjunction with this, we are proposing in

Sec. 3.116(b) that the attending veterinarian must note the existence

of any of the above conditions on the health certificate, and determine

whether a veterinarian should accompany the animal during transport.

Proposed paragraph (c) of Sec. 3.116 would require the carrier to

inform the crew of the primary conveyance that a marine mammal is on

board the craft, and inform the persons accompanying the marine mammal

of any unforseen delays as soon as they become known. The carrier would

also be required to accommodate requests by the shipper or his agent to

provide access to the animal or take other actions necessary for the

welfare of the animal during any delay, unless the carrier is precluded

from doing so because of safety considerations.

As stated previously, proposed paragraph (d) of Sec. 3.116 would

contain specific requirements for the care of cetaceans and sirenians

during transport. Most of the requirements we are including in proposed

paragraph (d) currently appear in Sec. 3.116(b), and would simply be

moved to proposed paragraph (d). Currently, Sec. 3.116(b) requires that

an employee or attendant of the shipper or receiver of cetaceans or

sirenians being transported in commerce provide certain care to ensure

the comfort and health of the animal during transport. We would change

this requirement in proposed paragraph (d) to state that ``a sufficient

number of employees or attendants'' of the shipper

[[Page 8745]]

or receiver must provide care to the animals during transport. Current

paragraph (b) then lists four specific things that must be done by the

employees or attendants to care for the marine mammals during

transport. These would all be included in proposed paragraph (d), and

are as follows:

Keeping the skin moist or preventing the drying of the

skin by methods such as intermittent spraying of water or application

of a nontoxic emollient. (We would remove the reference to lanolin as

an example of a nontoxic emollient, as it is not currently used often,

and there are more effective emollients available.);

Assuring that the pectoral flippers are allowed freedom of

movement at all times;

Making adjustments in the position of such marine mammals

when necessary to prevent necrosis of the skin at weight pressure

points; and

Calming the marine mammals to avoid struggling, thrashing,

and other unnecessary activity which may cause overheating or physical

trauma.

We also propose to add a fifth requirement, that the employees or

attendants must keep the marine mammals cooled or warmed sufficiently

to prevent overheating, hypothermia, or temperature related stress.

Finally, current paragraph (b) states that no cetacean or sirenian in

need of veterinary care may be transported in commerce unless the

transport is for the purpose of obtaining such care. The Committee

believes it is unnecessary to include this requirement in proposed

paragraph (d) because proposed Sec. 3.116(b) (discussed previously in

this document) would prohibit any marine mammal with a medical

condition requiring veterinary care from being transported unless the

transport is determined to be appropriate by the attending

veterinarian.

Currently, provisions for transport of polar bears are contained in

Sec. 3.116(d). This paragraph provides that polar bears need not be

accompanied by an employee or attendant unless the period of

transportation will exceed 24 hours in duration, and requires that the

carrier inspect unaccompanied polar bears at specific intervals during

transport to ascertain the need for any veterinary care. There are no

specific requirements in Sec. 3.116 for the transport of pinnipeds. We

are proposing to place new requirements for the transport of polar

bears and pinnipeds in paragraph (e) of Sec. 3.116. We do not propose

to include the current requirements discussed above concerning polar

bears in proposed paragraph (e) because the Committee believes they are

inadequate to ensure the health and well-being of polar bears being

transported.

Proposed paragraph (e) of Sec. 3.116 would require that a

sufficient number of employees or attendants of the shipper or receiver

of pinnipeds or polar bears being transported in commerce provide for

the pinnipeds and polar bears during transport by keeping the animals

cooled and/or warmed sufficiently to prevent overheating, hypothermia,

or temperature related stress, and by calming the animals to avoid

struggling, thrashing, and other unnecessary activity that may cause

overheating or physical trauma.

As discussed previously, provisions for the care of sea otters

during transport are currently found in Sec. 3.116(c). Paragraph (c)

requires that not less than one-half of the floor area in a primary

transport enclosure be leakproof and contain sufficient crushed ice or

ice water to provide each sea otter with moisture necessary to prevent

its hair coat from drying and minimize soiling of the hair coat with

urine and fecal material. We are proposing to remove these requirements

for sea otters from paragraph (c), and place new requirements for sea

otters in paragraph (f) of Sec. 3.116. Proposed paragraph (f) would

require that sea otters be transported in primary enclosures that

contain false floors through which water and waste can freely pass to

keep the interior of the transport unit free from waste materials. The

Committee believes this change is necessary because contact with waste

materials can rapidly foul a sea otter's coat and cause serious

problems for the animal. Requiring a false floor would help eliminate

such problems. Also, paragraph (f) would require that moisture be

provided by water sprayers or ice during transport. This would allow

employees and attendants options for maintaining the availability of

sufficient water for grooming by the sea otters during transport.

Currently, paragraph (e) of Sec. 3.116 states that wild or

otherwise dangerous marine mammals may not be taken from their primary

transport enclosures except under extreme emergency conditions and then

only by their trainer or other person who is capable of handling the

animals safely. We are proposing to revise this requirement to state

that marine mammals may be removed from their primary transport

enclosures only by attendants or other persons who are capable of

handling the animals safely. The Committee believes this revision is

necessary to make the requirement apply to all marine mammals, not just

wild or dangerous marine mammals, and to make it apply to removal of

the animals from their primary transport enclosure for any reason. This

requirement would appear in a new paragraph (g) in Sec. 3.116.

Section 3.117 of the regulations contains requirements for terminal

facilities. This proposal would retain most of the requirements in

Sec. 3.117, with some changes. We would retain the current requirement

from Sec. 3.117 that carriers and intermediate handlers may not

commingle marine mammal shipments with inanimate cargo. Section 3.117

also states that all animal holding areas of a terminal facility of any

carrier or intermediate handler in which marine mammal shipments are

maintained must be cleaned and sanitized in a manner prescribed in

Sec. 3.107 often enough to prevent an accumulation of debris or

excreta, to minimize vermin infestation, and to prevent a disease

hazard. We would amend this provisions to remove the phrase ``often

enough to prevent an accumulation of debris * * * and to prevent a

disease hazard'' and replace this phrase with ``to minimize health and

disease hazards.'' The Committee believes this revision would clarify

that the purpose of maintaining clean and sanitary conditions in a

terminal facility is to ensure the health of the animals held there. An

accumulation of excreta or debris or an infestation of vermin would be

a threat to the animals' health, and would, therefore, not be

acceptable. We would retain without change the next requirement in

Sec. 3.117 that an effective program for the control of insects,

ectoparasites, and avian and mammalian pests be established and

maintained for all animal holding areas.

Section 3.117 next states that any animal holding area containing

marine mammals must be provided with fresh air by means of windows,

doors, vents, or air conditioning and may be ventilated or have air

circulated by means of fans, blowers, or an air conditioning system so

as to minimize drafts, odors, and moisture condensation. We propose to

state instead that animal holding areas must be ``ventilated with fresh

air or air circulated by means of fans, blowers, or an air conditioning

system'' to minimize drafts, odors, and moisture condensation. The

Committee believes this wording is easier to understand and would make

the intent of the requirement more clear.

Finally, current Sec. 3.117 addresses air temperature and auxiliary

ventilation. Auxiliary ventilation, such as exhaust fans and vents, or

fans, blowers, or air conditioning, must be used for any animal holding

area containing marine

[[Page 8746]]

mammals when the air temperature within the animal holding area is 23.9

deg.C (75 deg.F) or higher. The air temperature around any marine

mammal in any animal holding area must not be allowed to fall below 7.2

deg.C (45 deg.F). The air temperature around any polar bear must not

be allowed to exceed 29.5 deg.C (85 deg.F) at any time and no polar

bear may be subjected to surrounding air temperatures that exceed 23.9

deg.C (75 deg.F) for more than 4 hours at any time. The Committee

agreed to retain these requirements in proposed Sec. 3.117.

Section 3.117 also describes how compliance with the air

temperature requirements described above must be ascertained, and

states that the air temperature around any marine mammal must be

measured and read outside the primary enclosure containing the animal

at a distance not to exceed 0.91 meters (3 feet) from any one of the

external walls of the primary enclosure and on a level parallel to the

bottom of the primary enclosure at a point that approximates half the

distance between the top and bottom of the enclosure. We would retain

this requirement, as well, but would add that the air temperature must

be ascertained in this manner upon arrival of the shipment in the

holding area by the attendant, carrier, or intermediate handler.

Section 3.118 contains requirements for handling of marine mammals

by carriers and intermediate handlers in holding areas of terminal

facilities and when transporting marine mammals between holding areas

and primary conveyances. The introductory text of paragraph (a)

requires carriers and intermediate handlers to move marine mammals from

the animal holding area of the terminal facility to the primary

conveyance and from the primary conveyance to the animal holding area

of the terminal facility as expeditiously as possible. We would retain

this requirement in proposed Sec. 3.118 and designate it as paragraph

(a)(1).

In Sec. 3.118, paragraph (a)(1) is titled ``Shelter from

sunlight.'' We propose to redesignate this paragraph as paragraph

(a)(2) and to revise the heading to read ``Shelter from overheating and

direct sunlight.'' Currently, this paragraph states that when sunlight

is likely to cause overheating or discomfort, sufficient shade shall be

provided to protect the marine mammals from the direct rays of the sun.

It also provides that marine mammals may not be subjected to

surrounding air temperatures exceeding 29.5 deg.C (85 deg.F) for more

than 45 minutes. We propose to require that shade must also be provided

when sunlight is likely to cause sunburn. We are also proposing to

lower the maximum surrounding air temperature to 23.9 deg.C (75

deg.F), but would allow the temperature to exceed that if the marine

mammal is accompanied by an acclimation certificate in accordance with

Sec. 3.112.

Paragraph (a)(1) currently requires that the surrounding air

temperature discussed above be measured and read in the manner

prescribed in Sec. 3.117 (concerning terminal facilities), for a period

of more than 45 minutes. Section 3.117 concerns the environmental

ambient temperature in a terminal facility holding area. The Committee

believes that, to ensure that an animal is not exposed to overheating

from direct sunlight, monitoring of temperature should be for

conditions in the transport enclosure itself. For example, the

surrounding air temperature may be acceptable, but if the transport

enclosure is exposed to direct sunlight, the interior temperature of

the enclosure may be too high for the animal's well-being. Therefore,

we propose to require that the air temperature surrounding the primary

transport enclosure be measured and read within or immediately adjacent

to the primary transport enclosure. The Committee's intent is that the

temperature be taken as close to the animal's immediate environment as

possible, without endangering the person taking the temperature.

Paragraph (a)(2) of Sec. 3.118 is titled ``Shelter from cold

weather.'' We propose to redesignate this paragraph as paragraph (a)(3)

and to make several changes to the requirements. Currently, this

paragraph requires that transporting devices be covered to provide

protection for marine mammals when the outdoor temperature falls below

10 deg.C (50 deg.F). We propose to require instead that marine

mammals be provided with species appropriate protection against cold

weather, to accommodate animals that do not need additional protection

at temperatures below 10 deg.C. We propose to retain the current

requirement that the marine mammals may not be subjected to surrounding

air temperatures that fall below 7.2 deg.C (45 deg.F) unless they are

accompanied by an acclimation certificate in accordance with

Sec. 3.112. Like the current provisions described above to protect

marine mammals from overheating, the current provisions concerning cold

weather require that the surrounding air temperature be measured and

read in the manner prescribed in Sec. 3.117 for a period of more than

45 minutes. For the reasons explained previously, we propose to require

that the surrounding air temperature be measured and read within or

immediately adjacent to the primary transport enclosure.

Paragraph (b) of Sec. 3.118 requires that care be exercised to

avoid handling of the primary enclosure in a manner that may cause

physical or emotional trauma to the marine mammal inside. We propose to

replace the phrase ``physical or emotional trauma'' with ``physical

harm or distress.'' The Committee believes that ``distress'' would be

more easily identified by carriers and intermediate handlers than

``emotional trauma.'' This would eliminate anthropomorphic terminology,

and is consistent with Sec. 2.131, which contains general handling

requirements for all animals covered under the Act.

Paragraph (c) of Sec. 3.118 prohibits primary enclosures used to

transport any marine mammal from being tossed, dropped, needlessly

tilted, or stacked in a manner that may reasonably be expected to

result in their falling. We propose to replace the phrase ``in a manner

that may reasonably be expected to result in their falling'' with the

phrase ``unless properly secured.'' The Committee believes that

requiring stacked enclosures to be secured would more likely ensure

that they would not fall.

Executive Order 12866 and Regulatory Flexibility Act

This proposed rule has been reviewed under Executive Order 12866.

The rule has been determined to be significant for the purposes of

Executive Order 12866 and, therefore, has been reviewed by the Office

of Management and Budget.

This proposed rule would amend the Animal Welfare Act regulations

concerning the humane handling, care, treatment, and transportation of

marine mammals in captivity. These proposed regulations were developed

by the Marine Mammal Negotiated Rulemaking Advisory Committee, and

appear to be necessary to ensure the minimum standards for the humane

handling, care, treatment, and transportation of marine mammals in

captivity are based on current general, industry, and scientific

knowledge and experience.

There are 116 establishments that contain marine mammals in the

United States: 40 aquariums, 70 zoos, and 6 research facilities. Of the

aquariums, 28 are private, 5 belong to small cities, and 7 are owned by

States. Of the zoos, 19 are private, 12 are owned by large cities, 23

are owned by small cities, 3 are owned by counties, and 13 belong to

States. Of the research facilities, 2 are privately owned and 4 are

owned by the public (such as State universities). The average annual

revenue for an

[[Page 8747]]

establishment is approximately $1.46 million. Nearly 95 percent of the

establishments have annual revenues of less than $5 million and, thus,

are considered to be small according to the Small Business

Administration size standards.1 There were 1,429 marine

mammals in these establishments during FY 1997. These included 357

Group I cetaceans, 89 Group II cetaceans, 796 Group I pinnipeds, 16

Group II pinnipeds, 39 sirenians, 21 mustelidae and 111 polar bears.

(Group designations for cetaceans and pinnipeds are as shown in Table

III of Sec. 3.104 of the regulations.) The Atlantic bottlenose dolphin,

harbor seal, California sea lion, and polar bear are the predominant

varieties of captive marine mammals, accounting for approximately 74

percent of the total number of captive marine mammals. The second

largest group includes the West Indian manatee, walrus, common dolphin,

Pacific bottlenose dolphin, and Atlantic white-sided dolphin. These

represented 13.3 percent of the total number of captive marine mammals

in FY 1997.

---------------------------------------------------------------------------

\1\ Arboreta and botanical or zoological gardens with less than

$5 million in annual revenues are classified as being small

according to the Small Business Administration guide for defining

industries for size standards. Source: 13 CFR 121.601, SIC 0272, p.

354.

---------------------------------------------------------------------------

Arboreta and botanical or zoological gardens comprise an important

subgroup of the amusement parks industry, generating more than $653

million dollars in revenues and attracting close to 50 million visitors

annually. There were 448 establishments in this subgroup in 1992,

including the 116 that are regulated for marine mammals. About 27

percent of these are operated for-profit; the rest are nonprofit

organizations owned publicly by States, counties, or cities, or owned

privately. Ten percent of the 116 facilities regulated for marine

mammals display regulated captive marine mammals exclusively; the

others may exhibit a combination of marine mammals and terrestrial

animals or terrestrial animals exclusively. Some facilities licensed to

exhibit marine mammals host only a single variety of marine mammal

(e.g., only dolphins, only harbor seals, or only polar bears). Marine

mammals account for a very small fraction of all animals in captivity,

which number in the hundreds of species.

Most facilities exhibiting marine mammals charge admission fees.

Overall, visitor admission fees cover less than 30 percent of the

annual budget of zoos and aquariums, although the fees vary

substantially between facilities. A few facilities, mostly those that

are city owned, do not charge visitors for admission. Fees range from

$1 to $41 dollars for adults, from $0 to $33 for children, and from $0

to $36 for seniors. Admission rates to the for-profit facilities are

higher than those of nonprofit facilities, which have some of their

budget covered through appropriations and donations.2 If the

proposed regulatory changes significantly increase the operational

expenses of a facility, admission fees for that facility could be

increased. However, the increases in operational expenses as a result

of this proposed rule should not have any significant impact on

entrance fees in most facilities.

---------------------------------------------------------------------------

\2\ Much of the admission fee information was obtained from

Internet home pages of aquariums and botanical and zoological

gardens. Data obtained from the home pages was checked with recorded

messages of many of the facilities.

---------------------------------------------------------------------------

Other than admission charges, these facilities often generate

income by renting space for large group functions such as family

reunions, wedding receptions, and corporate parties. City-and State-

owned facilities finance their budgets through annual appropriations,

membership sales, concessions, grants, and donations. The principal

sources of income for privately-owned nonprofit establishments include

food service, funding drives, membership dues, gift shops, grants, and

donations. Many facilities encourage membership through yearly passes

that also provide members of one facility with access to other similar

facilities. Some zoos offer guided excursions to other parts of the

world. A portion of the generated income is often directed to

conservation efforts.

The proposed rule changes are intended to result in clearer, more

easily understood regulatory language and increased levels of care for

marine mammals. Alternatives to the proposed language were well

discussed and debated during the course of the negotiated rulemaking

meetings, and the consensus language reflects the best efforts of all

participating parties to ensure the health and well-being of marine

mammals in captivity.

Several of the proposed amendments would simplify and clarify the

language of the existing requirements without requiring any substantial

changes. Some of the proposed amendments would result in some

additional costs for facilities housing marine mammals if they are not

already in compliance with the proposed standards. Since approximately

90 percent of the facilities already meet the proposed standards set by

consensus and already practice sound marine mammal husbandry, costs for

them should remain unaffected. For the remaining facilities, increased

costs as a result of this proposed rule would likely be passed on to

the public in the form of increased admission fees or would result in

changes in the facility's collection size or diversity.

While it is difficult to quantify all the benefits of this proposed

rule, the conditions of captive marine mammals are expected to improve

as a result of this action. As stated above, we believe that

approximately 90 percent of licensed marine mammal facilities are

already meeting or exceeding the proposed requirements. Therefore, the

impact of the proposed requirements would be most apparent within the

approximately 10 percent of licensed marine mammal facilities that are

not already meeting or exceeding the proposed requirements. The

proposed requirements that would likely have the most impact on these

facilities are the requirements that clarify veterinary care for marine

mammals. Preventive care during annual or semiannual examinations (as

proposed in this rule) would potentially reduce emergency veterinary

costs and result in fewer marine mammal deaths because of increased

health of the animals. Healthier animals would also have an increased

life expectancy and improved reproductive outcomes. In general, any

improvements in the care and maintenance of marine mammals would be

reflected in lower levels of animal distress and suffering and improved

quality of life. In addition, improved conditions for captive marine

mammals would result in increased satisfaction for the public that

views these animals in zoos and aquariums. This rulemaking represents

an important, sensitive, and precedent-setting effort. We believe the

benefits of regulating standards of care for captive marine mammals

outweigh the potential costs to facilities exhibiting these animals.

Following are the proposed rule changes that could generate minor

cost increases in facilities that do not already meet the proposed

standards.

Section 3.101 requires facilities to have a contingency plan

addressing relocation during an emergency or natural disaster. We are

proposing that additional and more detailed contingency plans be kept.

In Sec. 3.105, we are proposing to require that a daily record of

animal feeding be kept by an employee or attendant of the facility,

noting daily food consumption of the marine mammals in the facility.

Individual feeding records would have to be maintained at the facility

for a

[[Page 8748]]

period of 1 year. Personnel costs to provide for planning, observation,

documentation, and record maintenance may increase as a result of these

proposed requirements, depending on present staffing.

In Sec. 3.108, we are proposing to expand the training requirements

for employees and attendants. Facilities would have to provide and

document participation in, and successful completion of, a facility

training course by a sufficient number of employees (meaning a number

sufficient to maintain the prescribed level of husbandry set forth in

the regulations. This would generally mean a minimum of two employees,

but could be more, depending on the size of the facility.). Training

would need to be done under the direct supervision of experienced

trainers who meet professionally recognized standards for their own

experience and training. The length of such training sessions are

estimated here to be about 4 hours for each trainee. Any increase in

costs as a result of this requirement would depend on the current

training practice of a facility.

In Sec. 3.109, we are proposing to require a written plan for any

animals kept in isolation. The plan would have to be approved by the

attending veterinarian and developed in consultation with the

husbandry/training staff of the facility. The plan would have to

include justification for the length of time an animal will be

isolated, the type and frequency of enrichment used to offset the

separation or isolation, the interactions planned, and provision for a

periodic review by the attending veterinarian. At present, there are

not more than 20 animals being housed separately throughout the

country. Such record preparation and review by professionals would

probably not require more than 30 minutes per animal per week.

In Sec. 3.110, medical recordkeeping requirements for each animal

would be added. Again, this would probably not entail more than 30

minutes for each animal twice per year. We are also proposing to add

requirements concerning examinations of marine mammals by the attending

veterinarian. All marine mammals in a facility would have to be

visually examined at least semiannually and physically examined when

deemed necessary, except that cetaceans and sirenians would have to be

physically examined at least annually. The physical examinations would

have to include a hands-on physical examination, hematology and blood

chemistry, and other diagnostic tests as determined by the attending

veterinarian. Examinations would take an average of approximately 2

hours per animal. Proposed Sec. 3.110 would also require that both a

preliminary and final necropsy report be completed by the attending

veterinarian. While most facilities currently provide preliminary and

final reports, only one necropsy report is required under current

regulations.

In Sec. 3.112, we are proposing to require that a health

certificate, and possibly an acclimation certificate, signed by the

attending veterinarian accompany each animal that is moved to another

facility. Issuance of these certificates would not take more than 15

minutes per animal, with an average of two animals moving per facility

per year.

In Sec. 3.116, we are proposing to require that any transport of a

marine mammal for longer than 2 hours duration would require

preparation of a transport plan. Preparing such transport plans would

take about \1/2\ to 2 hours, depending on circumstances. Most

facilities transport marine mammals fewer than two times per year.

Facilities that transport marine mammals more often generally have

protocols already in place to address this issue. We are proposing that

certain pregnant marine mammals, unweaned young, nursing mothers with

young, and marine mammals with certain medical conditions be

transported only after approval of the attending veterinarian and with

a determination by the attending veterinarian as to whether or not a

veterinarian should accompany the marine mammal during transport. We

estimate that not more than five marine mammals that fit one of these

categories are transported per year. We also propose that an employee

or attendant must travel with polar bears being transported to provide

care for the animal. Nationally, not more than 10 polar bears are

transported per year; an average transport by land takes about 12

hours.

Taken together, these proposed requirements could result in total

increase in expenditures of about $473,000 for all regulated facilities

together (see Table A for details). This would yield an average

increase in expenditures of $378 per animal per year or about $1.04 per

animal per day. The table below details the potential additional

expenses for marine mammal facilities as a result of the requirements

in this proposed rule.

Table A.--Additional Costs of Recordkeeping and Training Requirements for All Regulated Marine Mammal Facilities

Combined

----------------------------------------------------------------------------------------------------------------

Non-

professional Professional Veterinarian Total value in

Section staff ($15/ staff ($20/ ($25/hour) \3\ dollars

hour) \1\ hour) \2\

----------------------------------------------------------------------------------------------------------------

Time in hours

3.101........................................... .............. 58 .............. $1,160.00

3.105........................................... 21,170 .............. 464 329,150.00

3.108........................................... 928 928 .............. 32,480.00

3.109........................................... .............. .............. 10 250.00

3.110........................................... .............. \4\ 2,858 1,893 104,485.00

3.112........................................... .............. 29 29 1,305.00

3.116........................................... 120 .............. \5\ 60.5 3,312.50

---------------------------------------------------------------

Total Hours................................. 22,218 3,873 2,456.5 ..............

Total Cost.................................. 333,270 77,460 61,412.50 472,142.50

----------------------------------------------------------------------------------------------------------------

Note: 1,2,3 Denote estimated hourly wages of nonprofessional attendant, nonveterinarian professional, and

veterinarian professional, respectively.

4 Represents number of hematology and blood chemistry tests based on two tests per marine mammal per year.

Average cost of each test is about $20. However, the cost of tests are variable depending on volume and

whether they are done in private laboratories or on site. Additionally, most of these tests are already done.

5 Represents approval of 1 transport plan per year per facility (116) at 30 minutes each and approval of

transport for 5 marine mammals with medical conditions per year at 30 minutes each.

[[Page 8749]]

Because this regulatory action was initiated at the request of the

major stakeholders and was undertaken using negotiated rulemaking, the

resulting proposal is broadly supported by affected groups.

Additionally, since 90 percent of licensed marine mammal facilities are

already meeting or exceeding the proposed requirements, the actual

economic effect of this proposed rule is expected to be minimal.

Under these circumstances, the Administrator of the Animal and

Plant Health Inspection Service has determined that this action would

not have a significant economic impact on a substantial number of small

entities.

Executive Order 12372

This program/activity is listed in the Catalog of Federal Domestic

Assistance under No. 10.025 and is subject to Executive Order 12372,

which requires intergovernmental consultation with State and local

officials. (See 7 CFR part 3015, subpart V.)

Executive Order 12988

This proposed rule has been reviewed under Executive Order 12988,

Civil Justice Reform. It is not intended to have retroactive effect.

This rule would not preempt any State or local laws, regulations, or

policies, unless they present an irreconcilable conflict with this

rule. The Act does not provide administrative procedures which must be

exhausted prior to a judicial challenge to the provisions of this rule.

Paperwork Reduction Act

In accordance with section 3507(d) of the Paperwork Reduction Act

of 1995 (44 U.S.C. 3501 et seq.), the information collection or

recordkeeping requirements included in this proposed rule have been

submitted for approval to the Office of Management and Budget (OMB).

Please send written comments to the Office of Information and

Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington,

DC 20503. Please state that your comments refer to Docket No. 93-076-

11. Please send a copy of your comments to:

1. Docket No. 93-076-11, Regulatory Analysis and Development, PPD,

APHIS, suite 3C03, 4700 River Road Unit 118, Riverdale, MD 20737-1238,

and

2. Clearance Officer, OCIO, USDA, room 404-W, 14th Street and

Independence Avenue SW., Washington, DC 20250. A comment to OMB is best

assured of having its full effect if OMB receives it within 30 days of

publication of this proposed rule.

This proposed rule would introduce various information collection

and recordkeeping requirements to enable us to determine that a marine

mammal is receiving adequate care. These include requirements that

licensed facilities prepare written protocols for cleaning primary

enclosure surfaces, written contingency plans for emergency sources of

power and water in the event of a failure, and written transport plans;

maintain feeding records and medical records; prepare preliminary and

final necropsy reports; acquire health certificates to accompany

transports; and make requests to APHIS if exception from various other

requirements is desired.

We are soliciting comments from the public (as well as affected

agencies) concerning our proposed information collection and

recordkeeping requirements. We need this outside input to help us:

1. Evaluate whether the proposed information collection is

necessary for the proper performance of our agency's functions,

including whether the information will have practical utility;

2. Evaluate the accuracy of our estimate of the burden of the

proposed information collection, including the validity of the

methodology and assumptions used;

3. Enhance the quality, utility, and clarity of the information to

be collected;

4. Minimize the burden of the information collection on those who

are to respond (such as through the use of appropriate automated,

electronic, mechanical, or other technological collection techniques or

other forms of information technology, e.g., permitting electronic

submission responses).

Estimate of burden: Public reporting burden for this collection of

information is estimated to average .34189 hours per response.

Respondents: Facilities licensed to exhibit marine mammals, such as

aquariums and zoos, and research facilities that use marine mammals.

Estimated annual number of respondents: 129.

Estimated annual number of responses per respondent: 110.147.

Estimated annual number of responses: 14,209.

Estimated total annual burden on respondents: 4858 hours. (Due to

rounding, the total annual burden hours may not equal the product of

the annual number of responses multiplied by the average reporting

burden per response.)

Copies of this information collection can be obtained from:

Clearance Officer, OCIO, USDA, room 404-W, 14th Street and Independence

Avenue SW., Washington, DC 20250.

List of Subjects in 9 CFR Part 3

Animal welfare, Marine mammals, Pets, Reporting and recordkeeping

requirements, Research, Transportation.

Accordingly, we propose to amend 9 CFR part 3, as follows:

PART 3--STANDARDS

1. The authority citation for part 3 would continue to read as

follows:

Authority: 7 U.S.C. 2131-2159; 7 CFR 2.22, 2.80, and 371.2(d).

2. Section 3.101 is revised to read as follows:

Sec. 3.101 Facilities, general.

(a) Construction requirements. (1) Indoor and outdoor housing

facilities for marine mammals shall be structurally sound and shall be

maintained in good repair, to protect the animals from injury, to

contain the animals within the facility, and to restrict the entrance

of unwanted animals. Lagoon and similar natural seawater facilities

must maintain effective barrier fences, or other appropriate measures,

on all sides of the enclosure not contained by dry land, extending

above the high tide water level, to fulfill the requirements of this

section.

(2) All marine mammals shall be provided with protection from abuse

and harassment by the viewing public by the use of a sufficient number

of uniformed or readily identifiable employees or attendants to

supervise the viewing public, or by physical barriers, such as fences,

walls, glass partitions, or distance, or any combination thereof.

(3) All surfaces in a primary enclosure shall be constructed of

durable, nontoxic materials which facilitate cleaning, and disinfection

as appropriate, sufficient to maintain water quality parameters as

designated in Sec. 3.106. All surfaces shall be maintained in good

repair as part of a regular, ongoing maintenance program. All

facilities shall implement a written protocol on cleaning so that

surfaces do not constitute a health hazard to animals.

(4) Facilities which utilize natural water areas, such as tidal

basins, bays, or estuaries (subject to natural tidewater action) for

housing marine mammals shall be exempt from the drainage requirements

of paragraph (c)(1) of this section.

(b) Water and power supply. Reliable and adequate sources of water

and electric power shall be provided by the facility housing marine

mammals.

[[Page 8750]]

Written contingency plans must be submitted to and approved by the

Deputy Administrator regarding emergency sources of water and electric

power in the event of failure of the primary sources, when such failure

could reasonably be expected to be detrimental to the good health and

well-being of the marine mammals housed therein. Contingency plans

shall include, but not be limited to, specific animal evacuation plans

in the event of a disaster, and should describe back-up systems and/or

arrangements for relocating marine mammals requiring artificially

cooled or heated water. If the emergency contingency plan includes

release of marine mammals, the plan must include provision for recall

training and retrieval of such animals.

(c) Drainage. (1) Adequate drainage shall be provided for all

primary enclosure pools and shall be located so that all of the water

contained in such pools may be effectively eliminated when necessary

for cleaning the pool or for other purposes. Drainage effluent from

primary enclosure pools shall be disposed of in a manner that complies

with all applicable Federal, State, and local pollution control laws.

(2) Drainage shall be provided for primary enclosures and areas

immediately surrounding pools. All drain covers and strainers shall be

securely fastened in order to minimize the potential risk of animal

entrapment. Drains shall be located so as to rapidly eliminate excess

water (except in pools). Drainage effluent shall be disposed of in a

manner that complies with all applicable Federal, State, and local

pollution control laws.

(d) Storage. Supplies of food shall be stored in facilities which

adequately protect such supplies from deterioration, spoilage (harmful

microbial growth), or vermin or other contamination. Refrigerators and

freezers (or chilled and/or iced coolers for under 12 hours) shall be

used for perishable food. No substances which are known to be or may be

toxic or harmful to marine mammals may be stored or maintained in the

marine mammal food storage or preparation areas, except that cleaning

agents may be kept in secured cabinets designed and located to prevent

food contamination. Food, supplements, and medications may not be used

beyond commonly accepted shelf life or date listed on the label.

(e) Waste disposal. Provision shall be made for the removal and

disposal of animal and food wastes, dead animals, trash, and debris.

Disposal facilities shall be provided and operated in a manner which

will minimize odors, and the risk of vermin infestation and disease

hazards. All waste disposal procedures must comply with all applicable

Federal, State, and local laws pertaining to pollution control,

protection of the environment, and public health.

(f) Employee washroom facilities. Washroom facilities containing

basins, sinks, and showers as appropriate, shall be provided and

conveniently located to maintain cleanliness among employees,

attendants, and volunteers. These facilities shall be cleaned and

sanitized daily.

(g) Enclosure or pool environmental enhancements. Any nonfood

objects provided for the entertainment or stimulation of marine mammals

must be of sufficient size and strength to not be ingestible, readily

breakable, or likely to cause injury to marine mammals, and be able to

be cleaned, sanitized, and/or replaced effectively.

3. In Sec. 3.104, paragraph (a) is revised to read as follows:

Sec. 3.104 Space requirements.

(a) General. Marine mammals must be housed in primary enclosures

which comply with the minimum space requirements prescribed by this

part. These enclosures shall be constructed and maintained so that the

animals contained therein are provided with sufficient space, both

horizontally and vertically, so that they are able to make normal

postural and social adjustments with adequate freedom of movement, in

or out of the water. (An exception to these requirements is provided in

Sec. 3.110(b), concerning isolation or separation for medical treatment

and/or medical training.) Enclosures smaller than required by the

standards may be temporarily used for nonmedical training, breeding,

holding, and transfer purposes. If maintenance in such enclosures for

nonmedical training, breeding, or holding, is to last longer than 2

weeks, such extension must be justified in writing by the attending

veterinarian on a weekly basis. If maintenance in such enclosures for

transfer is to last longer than 1 week, such extension must be

justified in writing by the attending veterinarian on a weekly basis.

Such enclosures, for example, gated side pools abutting primary

enclosures, shall not be used for permanent housing purposes. Rotating

animals between enclosures which do and do not meet minimum space

requirements is not acceptable to comply with these standards.

* * * * *

4. Section 3.105 is revised to read as follows:

Sec. 3.105 Feeding.

(a) The food for marine mammals shall be wholesome, palatable, and

free from contamination, and shall be of sufficient quantity and

nutritive value to maintain marine mammals in a state of good health.

The diet shall be prepared with consideration for factors such as age,

species, condition, and size of the marine mammal being fed. Marine

mammals shall be offered food at least once a day, except as directed

by the attending veterinarian.

(b) Food receptacles, if used, shall be located so as to be

accessible to all marine mammals in the same primary enclosure and

shall be placed so as to minimize contamination of the food contained

therein. Such food receptacles shall be cleaned and sanitized after

each use.

(c) Food, when given to each marine mammal individually, shall be

given by an employee or attendant responsible to management who has the

necessary knowledge to assure that each marine mammal receives an

adequate quantity of food to maintain it in good health. Such employee

or attendant is required to have the ability to recognize deviations

from a normal state of good health in each marine mammal so that the

food intake can be adjusted accordingly. Inappetence exceeding 24 hours

must be reported immediately to the attending veterinarian. Public

feeding shall be permitted only in the presence and under the

supervision of a sufficient number of knowledgeable, uniformed

employees or attendants. Such employees or attendants must assure that

the marine mammals are receiving the proper amount and type of food.

Only food supplied by the facility where the marine mammals are kept

shall be fed to such marine mammals by the public. Marine mammal

feeding records noting the estimated individual daily consumption shall

be maintained at the facility for a period of 1 year and shall be made

available for APHIS inspection.

(d) Food preparation and handling shall be conducted so as to

assure the wholesomeness and nutritive value of the food. Frozen fish

or other frozen food shall be stored in freezers which are maintained

at a maximum temperature of -18 deg.C (0 deg.F). The length of time

food is stored and the method of storage, the thawing of frozen food,

and the maintenance of thawed food shall be conducted in a manner which

will minimize contamination and which will assure that the food retains

nutritive value and wholesome quality until the time of feeding. When

food is thawed in standing or running water, cold water shall be used.

All foods shall

[[Page 8751]]

be fed to the marine mammals within 24 hours following the removal of

such foods from the freezers for thawing, or if the food has been

thawed under refrigeration, it must be fed to the marine mammals within

24 hours of thawing.

5. Section 3.107 is revised to read as follows:

Sec. 3.107 Sanitation.

(a) Primary enclosures. (1) Animal and food waste in areas other

than the pool of water shall be removed from the primary enclosures at

least daily, and more often when necessary in order to provide a clean

environment and minimize health and disease hazards.

(2) Particulate animal and food waste, trash, or debris that enters

the primary enclosure pools of water shall be removed at least daily,

or as often as necessary to maintain the required water quality and to

minimize health and disease hazards to the marine mammals contained

therein.

(3) The wall and bottom surfaces of the primary enclosure pools of

water shall be cleaned as often as necessary to maintain proper water

quality. Natural organisms (such as algae, coelenterates, or molluscs,

for example) that do not degrade water quality as defined in

Sec. 3.106, prevent proper maintenance, or pose a health or disease

hazard to the animals shall not be considered contaminants.

(b) Food preparation. Equipment and utensils used in food

preparation shall be cleaned and sanitized after each use. Kitchens and

other food handling areas where animal food is prepared shall be

cleaned at least once daily and sanitized at least once every week.

Sanitizing shall be accomplished by washing with hot water (82 deg.C,

180 deg.F, or higher) and soap or detergent in a mechanical

dishwasher, or by washing all soiled surfaces with a detergent solution

followed by a safe and effective disinfectant, or by cleaning all

soiled surfaces with live steam. Substances such as cleansing and

sanitizing agents, pesticides, and other potentially toxic agents must

be stored in properly labeled containers away from food preparation

surface areas.

(c) Housekeeping. Buildings and grounds, as well as exhibit areas,

shall be kept clean and in good repair. Fences shall be maintained in

good repair. Primary enclosures housing marine mammals shall not have

any loose objects or sharp projections and/or edges which may cause

injury or trauma to the marine mammals contained therein.

(d) Pest control. A safe and effective program for the control of

insects, ectoparasites, and avian and mammalian pests shall be

established and maintained. Insecticides or other such chemical agents

shall not be applied in primary enclosures housing marine mammals

except when deemed essential by an attending veterinarian.

6. Section 3.108 is revised to read as follows:

Sec. 3.108 Employees or attendants.

(a) A sufficient number of adequately trained employees or

attendants, responsible to management and working in concert with the

attending veterinarian, shall be utilized to maintain the prescribed

level of husbandry practices set forth in this subpart. Such practices

shall be conducted under the supervision of a marine mammal caretaker

who has demonstrable experience in marine mammal husbandry and care.

(b) The facility will provide and document participation in and

successful completion of a facility training course for such employees.

This training course will include, but is not limited to, species

appropriate husbandry techniques, animal handling techniques, and

information on proper reporting protocols, such as recordkeeping and

notification of veterinary staff for medical concerns.

(c) Any training of marine mammals shall be done by or under the

direct supervision of experienced trainers.

(d) Trainers and handlers must meet professionally recognized

standards for experience and training.

7. Section 3.109 is revised to read as follows:

Sec. 3.109 Separation.

Marine mammals, whenever known to be primarily social in the wild,

shall be housed in their primary enclosure with at least one compatible

animal of the same or biologically related species, except when the

attending veterinarian, in consultation with the husbandry/training

staff, determines that such housing is not in the best interest of the

marine mammal's health or well-being. However, marine mammals which are

not compatible shall not be housed in the same enclosure. Marine

mammals shall not be housed near other animals that cause them

unreasonable stress or discomfort, or interfere with their good health.

Animals housed separately must have a written plan, approved by the

attending veterinarian, developed in consultation with the husbandry/

training staff, which includes information on the justification for the

length of time the animal will be kept separated or isolated, type and

frequency of enrichment, and interaction if appropriate, and provisions

for periodic review of the plan by the attending veterinarian. Marine

mammals that are separated for nonmedical purposes must be held in

facilities which meet minimum space requirements as outlined in

Sec. 3.104.

8. Section 3.110 is revised to read as follows:

Sec. 3.110 Veterinary care.

(a) Newly acquired marine mammals shall be isolated from resident

marine mammals. Animals with a known medical history shall be isolated

unless or until the newly acquired animal(s) can be reasonably

determined to be in good health by the attending veterinarian. Animals

without a known medical history shall be isolated until it is

determined that the newly acquired animal(s) is (are) determined to be

in good health by the attending veterinarian. Any communicable disease

condition in a newly acquired marine mammal must be remedied before it

is placed with resident marine mammals, unless, in the judgement of the

attending veterinarian, the potential benefits of a resident animal(s)

as a companion(s) to the newly acquired animal outweigh the risks to

the resident animal(s).

(b) Holding facilities shall be in place and available to meet the

needs for isolation, separation, medical treatment, and medical

training of marine mammals. Marine mammals that are isolated or

separated for nonmedical purposes must be held in facilities which meet

minimum space requirements as outlined in Sec. 3.104. Holding

facilities used only for medical treatment and medical training, need

not meet the minimum space requirements as outlined in Sec. 3.104.

Holding of a marine mammal in a medical treatment or medical training

enclosure which does not meet minimum space requirements for periods

longer than 2 weeks must be noted in the animal's medical record and

justified therein by the attending veterinarian. If holding in such

enclosures for medical treatment and/or medical training is to last

longer than 2 weeks, such extension must be justified in writing by the

attending veterinarian on a weekly basis. In natural lagoon or coastal

enclosures where isolation cannot be accomplished, since water

circulation cannot be controlled or isolated, separation of newly

acquired marine mammals shall be accomplished using separate enclosures

situated within the facility to prevent direct contact and to minimize

the risk of potential airborne and water cross-

[[Page 8752]]

contamination between newly acquired and resident animals.

(c) Any holding facility used for medical purposes which has

contained a marine mammal(s) with an infectious or contagious disease

shall be cleaned and/or sanitized in a manner prescribed by the

attending veterinarian. No healthy animals shall be introduced into

this holding facility prior to such cleaning and/or sanitizing

procedures. Any marine mammal exposed to a contagious animal shall be

evaluated by the attending veterinarian and monitored and/or isolated

for an appropriate period of time as determined by the attending

veterinarian.

(d) Individual animal medical records must be kept and made

available for APHIS inspections. These medical records shall include at

least the following information:

(1) Animal ID/name, a physical description, including any

identifying markings, scars, etc., age, and sex; and

(2) Physical examination information, including but not limited to

length, weight, physical examination results by body system,

identification of all medical and physical problems with proposed plan

of action, all diagnostic test results, and documentation of treatment.

(e) A copy of the individual animal medical record shall accompany

any marine mammal upon its transfer to another facility, including

contract or satellite facilities.

(f) All marine mammals shall be visually examined by the attending

veterinarian at least semiannually and shall be physically examined

under the supervision of and when determined to be necessary by the

attending veterinarian. All cetaceans and sirenians shall be physically

examined by the attending veterinarian at least annually, unless APHIS

grants an exception from this requirement based on considerations

related to the health and safety of the cetacean or sirenian. These

examinations shall include, but are not limited to, a hands-on physical

examination, hematology and blood chemistry, and other diagnostic tests

as determined by the attending veterinarian.

(g)(1) A complete necropsy, including histopathology samples,

microbiological cultures, and other testing as appropriate, shall be

conducted by or under the supervision of the attending veterinarian on

all marine mammals that die in captivity. A preliminary necropsy report

must be prepared by the veterinarian listing all pathologic lesions

observed. The final necropsy report shall include all gross and

histopathological findings, the results of all lab tests performed, and

a pathological diagnosis.

(2) Necropsy records will be maintained at the facility for a

period of 3 years and must be presented to APHIS inspectors when

requested.

9. Section Sec. 3.112 is revised to read as follows:

Sec. 3.112 Consignments to carriers and intermediate handlers.

(a) Carriers and intermediate handlers shall not accept any marine

mammal presented by any dealer, research facility, exhibitor, operator

of an auction sale, or other person, or any department, agency, or

instrumentality of the United States or any State or local government

for shipment, in commerce, more than 4 hours prior to the scheduled

departure of the primary conveyance on which it is to be transported,

and that is not accompanied by a health certificate signed by the

attending veterinarian stating that the animal was examined within the

prior 10 days and found to be in acceptable health for transport:

Provided, however, that the carrier or intermediate handler and any

dealer, research facility, exhibitor, operator of an auction sale, or

other person, or any department, agency, or instrumentality of the

United States or any State or local government may mutually agree to

extend the time of acceptance to not more than 6 hours if specific

prior scheduling of the animal shipment to destination has been made.

(b) Any carrier or intermediate handler shall only accept for

transportation or transport, in commerce, any marine mammal in a

primary transport enclosure which conforms to the requirements set

forth in Sec. 3.113 of the standards: Provided, however, That any

carrier or intermediate handler may accept for transportation or

transport, in commerce, any marine mammal consigned by any department,

agency, or instrumentality of the United States having laboratory

animal facilities or exhibiting animals or any licensed or registered

dealer, research facility, exhibitor, or operator of an auction sale if

the consignor furnishes to the carrier or intermediate handler a

certificate, signed by the consignor, stating that the primary

transport enclosure complies with Sec. 3.113 of the standards, unless

such primary transport enclosure is obviously defective or damaged and

it is apparent that it cannot reasonably be expected to contain the

marine mammal without causing suffering or injury to such marine

mammal. A copy of such certificate shall accompany the shipment to

destination. The certificate shall include at least the following

information:

(1) Name and address of the consignor;

(2) The number, age, and sex of animals in the primary transport

enclosure(s);

(3) A certifying statement (e.g., ``I hereby certify that the--

(number) primary transport enclosure(s) which are used to transport the

animal(s) in this shipment complies (comply) with USDA standards for

primary transport enclosures (9 CFR part 3).''); and

(4) The signature of the consignor, and date.

(c) Carriers or intermediate handlers whose facilities fail to

maintain a temperature within the range of 7.2 deg.C (45 deg.F) to

23.9 deg.C (75 deg.F) allowed by the standards may accept for

transportation or transport, in commerce, any marine mammal consigned

by any department, agency, or instrumentality of the United States or

of any State or local government, or by any person (including any

licensee or registrant under the Act, as well as any private

individual) if the consignor furnishes to the carrier or intermediate

handler a certificate executed by the attending veterinarian on a

specified date which shall not be more than 10 days prior to delivery

of such animal for transportation in commerce, stating that such marine

mammal is acclimated to a specific air temperature range lower or

higher than those prescribed in Secs. 3.117 and 3.118. A copy of such

certificate shall accompany the shipment to destination. The

certificate shall include at least the following information:

(1) Name and address of the consignor;

(2) The number, age, and sex of animals in the shipment;

(3) A certifying statement (e.g., ``I hereby certify that the

animal(s) in this shipment is (are), to the best of my knowledge,

acclimated to an air temperature range of ______''); and

(4) The signature of the attending veterinarian and the date.

(d) Carriers and intermediate handlers shall attempt to notify the

consigned at least once in every 6-hour period following the arrival of

any marine mammals at the animal holding area of the terminal cargo

facility. The time, date, and method of each attempted notification and

the final notification to the consignee and the name of the person

notifying the consignee shall be recorded on the copy of the shipping

document retained by the carrier or intermediate handler and on a copy

of the shipping document accompanying the animal shipment.

[[Page 8753]]

10. Section 3.113 is revised to read as follows:

Sec. 3.113 Primary enclosures used to transport marine mammals.

No dealer, research facility, exhibitor, or operator of an auction

sale shall offer for transportation or transport, in commerce, any

marine mammal in a primary enclosure which does not conform to the

following requirements:

(a) Primary enclosures that are used to transport marine mammals

other than cetaceans and sirenians shall:

(1) Be constructed from materials of sufficient structural strength

to contain the marine mammals;

(2) Be constructed from material that is durable, nontoxic, and

cannot be chewed and/or swallowed;

(3) Be able to withstand the normal rigors of transportation;

(4) Have interiors which are free from any protrusions or hazardous

openings that could be injurious to the marine mammals contained

therein;

(5) Be constructed so that no parts of the contained marine mammals

shall be exposed to the outside of the enclosures in such a way which

may cause injury to the animals or to persons who are nearby or who

handle the enclosures;

(6) Have openings which provide access into the enclosures which

shall be secured with locking devices of a type which cannot be

accidentally opened;

(7) Have such openings located in a manner which makes them easily

accessible at all times for emergency removal and potential treatment

of any live marine mammal contained therein;

(8) Have air inlets at heights which will provide cross ventilation

at all levels (particularly when the marine mammals are in a prone

position) and located on all four sides of the enclosures, and such

ventilation openings shall be not less than 20 percent of the total

surface area of each side of the enclosures;

(9) Have projecting rims or other devices placed on the ends and

sides of any enclosures which have ventilation openings to provide a

minimum air circulation space of 7.6 centimeters (3.0 inches) between

the enclosures and any adjacent cargo or conveyance wall;

(10) Be constructed so as to provide sufficient air circulation

space to maintain the temperature limits set forth in the regulations;

and

(11) Be equipped with adequate handholds or other devices on the

exterior of the enclosures which shall enable them to be lifted without

unnecessary tilting and which will ensure that the persons handling the

enclosures will not come in contact with any marine mammal contained

therein.

(b) Straps, slings, harnesses, or other devices used for body

support or restraint, when transporting marine mammals such as

cetaceans and sirenians shall:

(1) Be designed so as not to prevent access to such mammals by

attendants for the purpose of administering in-transit care;

(2) Be equipped with special padding to prevent trauma or injury at

critical weight pressure points on the body of the marine mammals; and

(3) Be capable of keeping the animals from thrashing about and

causing injury to themselves or their attendants, and yet be adequately

designed so as not to cause injury to the animals.

(c) Primary enclosures used to transport live marine mammals shall

be large enough to assure that:

(1) In the case of pinnipeds, polar bears, and sea otters, each

animal has sufficient space to turn about freely in a stance whereby

all four feet or flippers are on the floor and the animal can sit in an

upright position and lie in a natural position;

(2) In the case of cetaceans and sirenians, each animal has

sufficient space for support of its body in slings, harnesses, or other

supporting devices, if used (as prescribed in paragraph (b) of this

section) without causing injury to such cetaceans or sirenians due to

contact with the primary enclosure: Provided, however, that animals may

be restricted in their movements according to professionally accepted

standards when such freedom of movement would constitute a danger to

the animals, their handlers, or other persons.

(d) Marine mammals transported in the same primary enclosure shall

be of the same species and maintained in compatible groups. Marine

mammals which have not reached puberty shall not be transported in the

same primary enclosure with adult marine mammals other than their dams.

Socially dependent animals (e.g., sibling, dam, and other members of a

family group) shall be allowed visual and olfactory contact whenever

reasonable. Female marine mammals shall not be transported in the same

primary enclosure with any mature male marine mammals.

(e) Primary enclosures used to transport marine mammals as provided

in this section shall have solid bottoms to prevent leakage in shipment

and shall be cleaned and sanitized in a manner prescribed in Sec. 3.107

of the standards, if previously used. Within the primary enclosures

used to transport marine mammals, the animals will be maintained on

sturdy, rigid, solid floors with adequate drainage.

(f) Primary enclosures used to transport marine mammals, except

where such primary enclosures are permanently affixed in the animal

cargo space of the primary conveyance, shall be clearly marked on top

(when present) and on at least one side, or on all sides whenever

possible, with the words ``Live Animal'' or ``Wild Animal'' in letters

not less than 2.5 centimeters (1 inch) in height, and with arrows or

other markings, to indicate the correct upright position of the

container.

(g) Documents accompanying the shipment shall be attached in an

easily accessible manner to the outside of a primary enclosure which is

part of such shipment or be in the possession of the shipping

attendant.

(h) When a primary transport enclosure is permanently affixed

within the animal cargo space of the primary conveyance so that the

front opening is the only source of ventilation for such primary

enclosure, the front opening shall open directly to the outside or to

an unobstructed aisle or passageway within the primary conveyance. Such

front ventilation opening shall be at least 90 percent of the total

surface area of the front wall of the primary enclosure and covered

with bars, wire mesh, or smooth expanded metal.

11. Section 3.114 is revised to read as follows:

Sec. 3.114 Primary conveyances (motor vehicle, rail, air and marine).

(a) The animal cargo space of primary conveyances used in

transporting live marine mammals shall be constructed in a manner which

will protect the health and assure the safety and comfort of the marine

mammals contained therein at all times. All primary conveyances used

shall be sufficiently temperature-controlled to provide an appropriate

environmental temperature for the species involved, to provide for the

safety and comfort of the marine mammal, or other appropriate

safeguards (such as, but not limited to, cooling the animal with cold

water, adding ice to water-filled enclosures, and use of fans) shall be

employed to maintain the animal at an appropriate temperature.

(b) The animal cargo space shall be constructed and maintained in a

manner which will prevent the ingress of engine exhaust fumes and gases

in excess of that ordinarily contained in the passenger compartments.

(c) Marine mammals shall only be placed in animal cargo spaces that

have a supply of air sufficient for each live animal contained therein.

Primary

[[Page 8754]]

transport enclosures shall be positioned in the animal cargo spaces of

primary conveyances in such a manner that each marine mammal contained

therein shall have access to sufficient air.

(d) Primary enclosures shall be positioned in primary conveyances

in such a manner that in an emergency the live marine mammals can be

removed from the conveyances as soon as possible.

(e) The interiors of animal cargo spaces in primary conveyances

shall be kept clean.

(f) Live marine mammals shall not knowingly be transported with any

material, substance or device which may be injurious to the health and

well-being of such marine mammals unless proper precaution is taken to

prevent such injury.

(g) Adequate lighting must be available for marine mammal

attendants to properly inspect their charges at any time. If such

lighting is not provided by the carrier, provisions must be made by the

shipper to supply such lighting.

12. Section 2.115 is revised to read as follows:

Sec. 3.115 Food and drinking water requirements.

(a) Those marine mammals which require drinking water shall be

offered potable water within 4 hours of being placed in the primary

transport enclosure for transport in commerce. Marine mammals shall be

provided water as often as necessary and appropriate for the species

involved to prevent dehydration which would jeopardize the good health

and well-being of the animals.

(b) Marine mammals being transported in commerce shall be offered

food as often as necessary and appropriate for the species involved or

as determined by the attending veterinarian.

13. Section 3.116 is revised to read as follows:

Sec. 3.116 Care in transit.

(a) A licensed veterinarian, employee, and/or attendant of the

shipper or receiver of any marine mammal being transported, in

commerce, knowledgeable and experienced in the area of marine mammal

care and transport, shall accompany all marine mammals during periods

of transportation to provide for their good health and well-being, to

observe such marine mammals and to determine whether they need

veterinary care and to obtain any needed veterinary care as soon as

possible. Any transport of greater than 2 hours duration requires a

transport plan approved by the attending veterinarian, to include the

specification of the necessity of the presence of a veterinarian during

the transport. If the attending veterinarian does not accompany the

animal(s), communication with the veterinarian must be maintained in

accordance with Sec. 2.40(b)(3) of this chapter.

(b) The following marine mammals shall only be transported in

commerce when the transport of such marine mammals has been determined

to be appropriate by the attending veterinarian:

(1) A pregnant animal in the last half of pregnancy;

(2) A dependent unweaned young animal;

(3) A nursing mother with young; or

(4) An animal with a medical condition requiring veterinary care,

that would be compromised by transport.

The attending veterinarian shall note on the accompanying health

certificate the existence of any of the above conditions. The attending

veterinarian shall also determine whether a veterinarian should

accompany such marine mammals during transport.

(c) Carriers shall inform the crew as to the presence of the marine

mammal(s) on board the craft, inform the individual accompanying the

marine mammal(s) of any unexpected delays as soon as they become known,

and accommodate, except as precluded by safety considerations, requests

by the shipper or his agent to provide access to the animal(s) or take

other necessary actions for the welfare of the animal(s) if a delay

occurs.

(d) A sufficient number of employees or attendants of the shipper

or receiver of cetaceans or sirenians being transported, in commerce,

shall provide for such cetaceans and sirenians during periods of

transport by:

(1) Keeping the skin moist or preventing the drying of the skin by

such methods as intermittent spraying of water or application of a

nontoxic emollient;

(2) Assuring that the pectoral flippers shall be allowed freedom of

movement at all times;

(3) Making adjustments in the position of such marine mammals when

necessary to prevent necrosis of the skin at weight pressure points;

(4) Keeping the animal cooled and/or warmed sufficiently to prevent

overheating, hypothermia, or temperature related stress; and

(5) Calming such marine mammals to avoid struggling, thrashing, and

other unnecessary activity which may cause overheating or physical

trauma.

(e) A sufficient number of employees or attendants of the shipper

or receiver of pinnipeds or polar bears being transported, in commerce,

shall provide for such pinnipeds and polar bears during periods of

transport by:

(1) Keeping the animal cooled and/or warmed sufficiently to prevent

overheating, hypothermia, or temperature related stress; and

(2) Calming such marine mammals to avoid struggling, thrashing, and

other unnecessary activity which may cause overheating or physical

trauma.

(f) Sea otters shall be transported in primary enclosures which

contain false floors through which water and waste freely pass to keep

the interior of the transport unit free from waste materials. Moisture

shall be provided by water sprayers or ice during transport.

(g) Marine mammals shall be removed from their primary transport

enclosures only by the attendant(s) or other person(s) capable of

handling such mammals safely.

14. Section 3.117 is revised to read as follows:

Sec. 3.117 Terminal facilities.

Carriers and intermediate handlers shall not commingle marine

mammal shipments with inanimate cargo. All animal holding areas of a

terminal facility of any carrier or intermediate handler wherein marine

mammal shipments are maintained shall be cleaned and sanitized in a

manner prescribed in Sec. 3.107 of the standards to minimize health and

disease hazards. An effective program for the control of insects,

ectoparasites, and avian and mammalian pests shall be established and

maintained for all animal holding areas. Any animal holding area

containing marine mammals shall be ventilated with fresh air or air

circulated by means of fans, blowers, or an air conditioning system, so

as to minimize drafts, odors, and moisture condensation. Auxiliary

ventilation, such as exhaust fans and vents or fans or blowers or air

conditioning shall be used for any animal holding area containing

marine mammals when the air temperature within such animal holding area

is 23.9 deg.C (75 deg.F) or higher. The air temperature around any

marine mammal in any animal holding area shall not be allowed to fall

below 7.2 deg.C (45 deg.F). The air temperature around any polar bear

shall not be allowed to exceed 29.5 deg.C (85 deg.F) at any time and

no polar bear shall be subjected to surrounding air temperatures which

exceed 23.9 deg.C (75 deg.F) for more than 4 hours at any time. The

ambient temperature must be measured in the animal holding area upon

arrival of the shipment by the attendant, carrier, or intermediate

handler, outside the

[[Page 8755]]

transport enclosure which contains such animal at a distance not to

exceed 0.91 meters (3.0 feet) from any one of the external walls of the

primary transport enclosure and on a level parallel to the bottom of

such primary transport enclosure at a point which approximates half the

distance between the top and bottom of such transport enclosure.

15. Section 3.118 is revised to read as follows:

Sec. 3.118 Handling.

(a) Carriers and intermediate handlers moving marine mammals from

the animal holding area of the terminal facility to the primary

conveyance or from the primary conveyance to the animal holding area of

the terminal facility shall provide the following:

(1) Movement of animals as expeditiously as possible.

(2) Shelter from overheating and direct sunlight. When sunlight is

likely to cause overheating, sunburn, or discomfort, sufficient shade

shall be provided to protect the marine mammals. Marine mammals shall

not be subjected to surrounding air temperatures which exceed 23.9

deg.C (75 deg.F) unless accompanied by an acclimation certificate in

accordance with Sec. 3.112. The temperature shall be measured and read

within or immediately adjacent to the primary transport enclosure.

(3) Shelter from cold weather. Marine mammals shall be provided

with species appropriate protection against cold weather and such

marine mammals shall not be subjected to surrounding air temperatures

which fall below 7.2 deg.C (45 deg.F) unless accompanied by an

acclimation certificate in accordance with Sec. 3.112. The temperature

shall be measured and read within or immediately adjacent to the

primary transport enclosure.

(b) Care shall be exercised to avoid handling of the primary

transport enclosure in such a manner that may cause physical harm or

distress to the marine mammal contained therein.

(c) Enclosures used to transport any marine mammal shall not be

tossed, dropped, or needlessly tilted and shall not be stacked unless

properly secured.

Done in Washington, DC, this 18th day of February 1999.

Joan M. Arnoldi,

Acting Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 99-4424 Filed 2-22-99; 8:45 am]

BILLING CODE 3410-34-P