# Animal Welfare; Marine Mammals

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A99-4424

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** February 23, 1999
- **Citation:** 64 FR 8735

## Text

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 supervisio

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A99-4424. Public record. Not legal advice.