Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 239

run by other incorporated charitable

organizations established for the

purpose of preventing cruelty to

animals.

One commenter stated that our

analysis in the proposed rule of the

potential economic effects of the rule

contained an error. In the analysis, we

stated that there are at least 121 known

humane societies in 35 States. The

commenter stated that there are over

3,000 incorporated, charitable

organizations established for the

purpose of preventing cruelty to animals

and that these organizations exist in all

50 States and can have names such as

humane society, society for the

prevention of cruelty to animals, animal

welfare league, or pet protection league.

The commenter added that there are

several thousand municipally operated

animal shelters that are exempt from

licensing requirements under the AWA

and that are willing to house confiscated

animals in special cases.

The number we provided in our

analysis was the number of regional

humane societies known to us and

listed by State. We are aware that there

are a number of organizations other than

humane societies. We agree that if we

had referred to all incorporated

charitable organizations established for

the purpose of preventing cruelty to

animals, the number of organizations

would be significantly larger than 121.

APHIS confiscates animals only once

or twice a year. Adoption of this rule

will expedite relocation of any

confiscated animals. It is likely that the

receiving facilities, as noted above, will

be small entities. The regulations

require that the dealer, exhibitor,

intermediate handler, or carrier from

whom the animals are confiscated bear

all costs associated with performing the

placement or euthanasia. If a facility

accepts confiscated animals, that facility

will be responsible for the future costs

incurred for the care of those animals

while at the facility. However, as noted,

APHIS needs to place confiscated

animals only once or twice a year, and

the acceptance of confiscated animals is

voluntary.

Under these circumstances, the

Administrator of the Animal and Plant

Health Inspection Service has

determined that this action will 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 final rule has been reviewed

under Executive Order 12988, Civil

Justice Reform. It is not intended to

have retroactive effect. This rule will

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

This rule contains no information

collection or recordkeeping

requirements under the Paperwork

Reduction Act of 1995 (44 U.S.C. 3501

et seq.).

List of Subjects in 9 CFR Part 2

Animal welfare, Pets, Reporting and

recordkeeping requirements, Research.

Accordingly, we are amending 9 CFR

part 2 as follows:

PART 2—REGULATIONS

1. The authority citation for part 2 is

revised to read as follows:

Authority: 7 U.S.C. 2131–2159; 7 CFR 2.22,

2.80, and 371.7.

2. In § 2.129, paragraph (c) is revised

and a new paragraph (d) is added to

read as follows:

§ 2.129 Confiscation and destruction of

animals.

* * * * *

(c) Confiscated animals may be:

(1) Placed, by sale or donation, with

other licensees or registrants that

comply with the standards and

regulations and can provide proper care;

or

(2) Placed with persons or facilities

that can offer a level of care equal to or

exceeding the standards and

regulations, as determined by APHIS,

even if the persons or facilities are not

licensed by or registered with APHIS; or

(3) Euthanized.

(d) The dealer, exhibitor, intermediate

handler, or carrier from whom the

animals were confiscated must bear all

costs incurred in performing the

placement or euthanasia activities

authorized by this section.

Done in Washington, DC, this 26th day of

December 2000.

Craig A. Reed,

Administrator, Animal and Plant Health

Inspection Service.

[FR Doc. 01–57 Filed 1–2–01; 8:45 am]

BILLING CODE 3410–34–P

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection

Service

9 CFR Part 3

[Docket No. 93–076–15]

RIN 0579–AA59

Animal Welfare; Marine Mammals

AGENCY: Animal and Plant Health

Inspection Service, USDA.

ACTION: Final rule.

SUMMARY: We are amending the Animal

Welfare Act regulations concerning the

humane handling, care, treatment, and

transportation of marine mammals in

captivity. These regulations were

developed by the Marine Mammal

Negotiated Rulemaking Advisory

Committee and are 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.

EFFECTIVE DATE: February 2, 2001.

FOR FURTHER INFORMATION CONTACT: Dr.

Barbara Kohn, Senior Staff Veterinarian,

Animal Care, APHIS, 4700 River Road

Unit 84, Riverdale, MD 20737–1234;

(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,

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

(referred to below as the regulations),

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

240 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations

transportation of marine mammals in

captivity.

On July 23, 1993, we 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. 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

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

14th section: § § 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; § 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; § 3.107 concerns

sanitation and pest control; § 3.108 sets

standards for employees and attendants;

§ 3.109 concerns separation of marine

mammals; and § 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;

§ 3.113 contains standards for primary

enclosures used to transport marine

mammals; § 3.114 contains standards for

primary conveyances used to transport

marine mammals; § 3.115 contains

requirements for provision of food and

water during transport; § 3.116 concerns

the care of marine mammals by

employees or attendants during

transport; § 3.117 concerns terminal

facilities; and § 3.118 contains

requirements for handling marine

mammals during transport.

On February 23, 1999, we published

a proposed rule in the Federal Register

(64 FR 8735–8755, Docket No. 93–076–

11) that contained the consensus

language developed by the Committee

for these sections of the regulations. The

proposed rule also contained one

provision not agreed on by consensus of

the Committee: a provision in current

§ 3.110(d) concerning maintenance of

necropsy records. The proposed rule

revised this provision and placed it in

§ 3.110(g)(2). We included it in the

proposed rule in order to complete the

section.

We solicited comments concerning

our proposal for 60 days ending April

26, 1999. We reopened and extended

the deadline for comments until May

26, 1999, in a document published in

the Federal Register on May 14, 1999

(Docket No. 93–076–14, 64 FR 26330).

We received 15 comments by that date.

They were from animal welfare

organizations, veterinary organizations,

and regulated entities that care for

marine mammals. Most commenters

commended the efforts of the

Committee and were supportive of the

proposed rule in general. However, all

commenters requested changes to

specific provisions of the proposal. The

comments are discussed below, grouped

according to the section of the

regulations to which they pertain.

Section 3.101 Facilities, General

Proposed § 3.101 contains general

requirements for indoor and outdoor

facilities.

Paragraph (a)(1) of proposed § 3.101

includes the requirement that indoor

and outdoor housing facilities be

constructed to restrict the entrance of

unwanted animals. One commenter said

that this provision should apply to

seagulls at public feeding exhibits

because of the risk of disease

transmission from seagulls to marine

mammals and because the seagulls

consume some of the food offered to the

marine mammals, making it difficult to

assess the marine mammals’ nutritional

intake.

We are not making any changes in

response to this comment. We recognize

that birds can present problems at

outdoor facilities. The provision in

§ 3.101(a)(1) is intended to address this

problem. In addition, proposed

§ 3.107(d) requires that a safe and

effective program for the control of

pests, including avian pests, be

established and maintained. Measures

to completely eliminate intrusions by

seagulls and other birds at outdoor

facilities may not always be in the

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 241

marine mammals’ best interests. Mesh

or wire cages over outdoor pools restrict

physical contact between birds and

marine mammals but increase exposure

to droppings by providing a roosting

spot for the birds directly over pool

areas. This could increase the risk of

disease transmission. We believe the

proposed regulations are adequate to

prevent significant or widespread

problems regarding seagulls and other

pests at marine mammal facilities.

Proposed paragraph (a)(1) also

includes the following provision:

‘‘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.’’ Two

commenters suggested that we move the

phrase ‘‘extending above the high tide

water level’’ to follow ‘‘effective barrier

fences.’’ The commenters said this

would reinforce the Committee’s intent,

given our statement in the preamble that

the Committee agreed that this

requirement is not intended to preclude

the temporary lowering or removal of

part of the barrier fencing above the

water line to accommodate filming or

similar actions. We agree, and are

revising the sentence to read: ‘‘Lagoon

and similar natural seawater facilities

must maintain effective barrier fences

extending above the high tide water

level, or other appropriate measures, on

all sides of the enclosure not contained

by dry land to fulfill the requirements

of this section.’’

Paragraph (a)(2) of proposed § 3.101

requires that marine mammals be

provided protection from abuse and

harassment by the public by the use of

a sufficient number of uniformed or

readily identifiable employees or

attendants or by physical barriers (e.g.,

fences, walls, distance). One commenter

recommended that we additionally

require that the employees or attendants

be appropriately trained and in

permanent attendance. The commenter

said that employees must be trained to

educate the public about appropriate

behavior and must discipline the public

for inappropriate behavior, particularly

at public feeding exhibitions.

We are not making any changes in

response to this comment. When

physical barriers are not present (such

as at public feeding exhibitions), we

believe it is adequate to require that a

sufficient number of uniformed or

readily identifiable employees or

attendants be present. These employees

would be charged with protecting the

marine mammals on display from abuse

or harassment by the public. It follows

that the employees or attendants would

have to be trained adequately to perform

this function. In addition, if a member

of the public is found to be abusing or

harassing a marine mammal, we believe

the proposed regulation makes it clear

that that person must be prevented from

continuing such behavior.

Proposed paragraph (a)(3) of § 3.101

requires that facilities implement a

written protocol on cleaning primary

enclosure surfaces so that the surfaces

do not constitute a health hazard to the

animals. One commenter asked if there

is a history of problems that justifies

requiring a written protocol for this

activity.

We are not making any changes based

on this comment. There have been a

sufficient number of noncompliant

citations for sanitation regarding

primary enclosure surfaces to cause the

Committee to agree that this

requirement is necessary and

reasonable. Requiring a written protocol

for what should be routine maintenance

will provide a means for APHIS

inspectors to determine if cleaning

practices are appropriate for the species

and type of enclosure and will enable

inspectors to monitor whether the

procedures specified are being followed.

Another commenter said we should

remove the proposed requirement for a

written protocol on cleaning primary

enclosure surfaces from § 3.101(a)(3)

because the same requirement appears

in proposed § 3.107. While proposed

§ 3.107 does concern sanitation in and

around primary enclosures, it contains

no provision for a written protocol on

cleaning enclosure surfaces. Therefore,

we are not making any change based on

this comment.

A third commenter asked that we

change the wording of the proposed

requirement for a written protocol on

cleaning primary enclosure surfaces.

The last sentence of proposed paragraph

(a)(3) reads: ‘‘All facilities shall

implement a written protocol on

cleaning so that surfaces do not

constitute a health hazard to animals.’’

The commenter was concerned that this

sentence does not make it clear that it

addresses only primary enclosure

surfaces. We believe that the first

sentence of proposed paragraph (a)(3)

makes it clear that the paragraph as a

whole specifically concerns primary

enclosure surfaces. Therefore, we are

not making any changes based on this

comment.

Paragraph (a)(4) of proposed § 3.101

exempts facilities that house marine

mammals in natural water areas (tidal

basins, bays, estuaries) from the

drainage requirements in § 3.101(c)(1).

Paragraph (c) of proposed § 3.101

concerns drainage, and paragraph (c)(1)

generally requires that adequate

drainage be provided for primary

enclosure pools. Two commenters

suggested that the exemption in

paragraph (a)(4) belongs more

appropriately in paragraph (c). We are

not making a change based on this

comment. Paragraph (a) addresses

general construction requirements, and,

while paragraph (a)(4) does address the

issue of drainage, it is also an exemption

from a basic construction requirement.

Therefore, we believe it is appropriately

placed.

The commenters also asked us to

make the natural water area facilities

described in § 3.101(a)(4) exempt from

the drainage requirements in proposed

§ 3.101(c)(2). We are making no change

based on this comment. Paragraph (c)(2)

concerns areas within a primary

enclosure other than the pool itself,

including areas immediately

surrounding the pool. It would not be

appropriate to exempt natural water

area facilities from this type of drainage.

Excess water around a pool area and

other parts of an enclosure would be a

hazard for marine mammals and

caretakers, regardless of whether the

pool itself is a natural seawater facility

or a man-made facility.

Paragraph (b) of proposed § 3.101

concerns water and power supplies.

Currently, paragraph (b) includes the

requirement that written contingency

plans be submitted to and approved by

Veterinary Services regarding

emergency sources of water and electric

power in the event of failure of the

primary sources. We proposed that

these plans be submitted to and

approved by the Deputy Administrator

of Animal Care. One commenter said

that contingency plans have always

been reviewed by on-site visits from

Veterinary Services and wondered why

we have assigned review of these plans

to the Deputy Administrator of Animal

Care.

We are making no changes based on

this comment. As we explained in the

preamble to the proposed rule, APHIS

reorganized after the last amendments to

the marine mammal regulations.

Veterinary Services no longer enforces

the Animal Welfare Act. That authority

has been reassigned to the Deputy

Administrator of Animal Care. Since the

reassignment, written contingency plans

have been reviewed by Animal Care at

the regional office level. The Deputy

Administrator may continue to delegate

this authority to the appropriate

administrative level.

Paragraph (b) of proposed § 3.101 also

requires that contingency plans include

animal evacuation plans in the event of

242 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations

a disaster and, if the contingency plan

includes release of marine mammals,

provision for recall training and

retrieval. One commenter was

concerned about including details of

recall training and retrieval plans as part

of the written contingency plan

submitted to the Deputy Administrator.

The commenter said that this

information would then be available

under the Freedom of Information Act

(FOIA) and that this would not be in the

best interests of the marine mammals.

The commenter said it is not clear

whether this information needs to be

submitted as part of the contingency

plan.

We are not making any change based

on this comment. We believe that

proposed paragraph (b) makes it clear

that the entire contingency plan,

including plans for recall training and

retrieval, must be submitted and

approved by the Deputy Administrator.

Proposed paragraph (b) does not require

a detailed description of recall training

and retrieval plans, but requires, if

release of the animals is a component of

the contingency plan, that the plan

provide for recall training and retrieval.

The intent of this requirement is that

facilities provide enough information so

that APHIS inspectors can determine

whether the animals have been

adequately trained for recall and

retreival. We would not require facilities

to include information that could

compromise the safety or well-being of

the animals, such as details on when

and where training occurs or the actual

signals used for recall. We believe the

requirement is appropriate and in the

interests of the safety and well-being of

the marine mammals.

Another commenter said that we

should remove the requirement for

recall training provisions in the

contingency plan because recall training

is not always in the best interests of the

animal, specifically if the facility is

working with the purpose of

reintroducing marine mammals into the

wild.

We are not making any change based

on this comment. We are unaware of

any facilities currently holding marine

mammals in anticipation of releasing

them into the wild. Moreover, the

contingency plan only requires a

provision for recall training and

retrieval of animals if animals are to be

released in the event of a disaster, not

as part of a scientific reintroductioninto-the-wild project. In all other

instances, quick and efficient retrieval

of the animal is in the animal’s best

interests. We wish to note that any

recall training, including boat following,

that involves the release of the animals

from their primary enclosure into the

wild (meaning water outside the

primary enclosure and facility) must be

done under appropriate authorization

from the U.S. Fish and Wildlife Service

or the National Marine Fisheries

Service. This issue was discussed

during the negotiated rulemaking

sessions, and we reiterate that our

requirement regarding contingency

plans does not preclude the jurisdiction

of these agencies in overseeing the

release of captive animals into the wild,

even if it is for training purposes.

Paragraph (c) of proposed § 3.101

concerns drainage. Paragraph (c)(1)

requires that adequate drainage be

provided for all primary enclosure pools

and be located so that all the water in

the pools may be ‘‘effectively

eliminated’’ when necessary. Paragraph

(c)(2) requires that drainage be provided

for primary enclosures and areas

immediately surrounding pools and be

located so that excess water may be

‘‘rapidly eliminated.’’ One commenter

said that one of the phrases (‘‘effectively

eliminated’’ or ‘‘rapidly eliminated’’)

should be changed so that they are

consistent.

We are making no change based on

this comment. As explained in the

preamble to the proposed rule,

paragraph (c)(1) currently requires that

drainage allow water to be ‘‘rapidly

eliminated’’ from primary enclosure

pools. We proposed to change this to

read ‘‘effectively eliminated.’’ The

Committee believed the change was

necessary because rapid emptying of

primary enclosure pools is not always

necessary and, in some cases, can be

unsafe for the marine mammals. In

paragraph (c)(2), the Committee chose to

retain the requirement for rapid

elimination of water, because paragraph

(c)(2) concerns areas in the primary

enclosure other than the pool, including

areas immediately surrounding the pool.

For safety purposes, rapid elimination

of excess water from these areas is

necessary and would not harm the

animals.

Paragraph (d) of proposed § 3.101

concerns storage of food, toxic

substances, supplements, and

medication and includes the following

requirement:

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.

Paragraph (b) of proposed § 3.107

concerns food preparation and includes

the following requirement:

Substances such as cleansing and

sanitizing agents, pesticides, and other

potentially toxic agents must be stored in

properly labeled containers away from food

storage preparation surfaces.

One commenter found these two

requirements confusing, and was unsure

whether cleaning agents may be kept in

food preparation areas.

We agree that the wording may be

somewhat confusing. The Committee’s

intent was that cleaning agents be stored

so that they will not be in danger of

contaminating food preparation surfaces

or food. While cleaning agents may be

stored in the area where food is

prepared, they must be stored in

secured cabinets away from food

preparation surfaces. We are making no

changes to the requirement in

§ 3.101(d), but are revising the

requirement in § 3.107(b) to make the

Committee’s intent clearer. As revised,

the sentence cited above from § 3.107(b)

will read: ‘‘Substances such as cleansing

and sanitizing agents, pesticides, and

other potentially toxic agents must be

stored in properly labeled containers in

secured cabinets designed and located

to prevent contamination of food storage

preparation surfaces.’’

Another commenter recommended

combining these requirements into one

paragraph. We are not making a change

based on this comment. We believe it is

appropriate to have the requirements in

both paragraphs because each paragraph

addresses a separate issue—one

addresses storage and one addresses

sanitation.

Paragraph (d) of proposed § 3.101 also

requires that refrigerators and freezers

be used for storing perishable food but

provides that chilled and/or iced coolers

may be used for under 12 hours. One

commenter said that he uses buckets

with ice to transfer food from the

preparation area to the feeding docks.

The commenter was concerned that the

language in proposed paragraph (d)

would not allow this practice.

We are not making any changes based

on this comment. The Committee

discussed this issue and determined

that buckets with ice can be used to

transfer food from a cooler or

refrigerator to a feeding area, as long as

the food is fed to the marine mammals

immediately after transfer. Food safety

issues are a concern when food is stored

for longer periods of time in uncovered

buckets with melting ice. If food is kept

in buckets with ice at the feeding area

for use in later feedings, it would be a

violation of proposed paragraph (d). We

do not believe any change is necessary

to the proposed regulation to clarify this

because paragraph (d) specifically

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 243

concerns food storage and not transfer of

food for immediate feeding.

Section 3.104 Space Requirements

Proposed § 3.104 concerns space

requirements for primary enclosures.

Paragraph (a) of proposed § 3.104

states that an enclosure smaller than

required by the regulations may be used

to house marine mammals temporarily

for nonmedical training, breeding,

holding, and transfer purposes.

However, proposed paragraph (a)

requires that, if housing in a smaller

than required enclosure is for longer

than 2 weeks and is for the purpose of

nonmedical breeding, training, or

holding (not transfer), an extension

must be justified in writing by the

attending veterinarian on a weekly

basis.

One commenter asked for whom the

written justification is intended. The

written justification would serve several

purposes, including ensuring that the

attending veterinarian is aware of the

arrangements, concurs with the reason

for such arrangements, and monitors the

animal’s response to such arrangements.

Additionally, APHIS would consult the

written justification records to assess

compliance with the space requirements

and as a basis for discussing any

concerns about space with the attending

veterinarian.

Another commenter said that

proposed § 3.104(a) should be changed

to require that, if a marine mammal is

housed in a smaller than required

enclosure for longer than a few hours,

it must be justified in writing by the

attending veterinarian on a daily basis.

We are not making any changes based

on this comment. It would be an

unnecessary burden to require such

frequent justification. Depending on the

design of the facility, it can often take

a few hours just to transfer a marine

mammal from its primary enclosure into

the smaller enclosure, making such

frequent justification impractical. We

are not aware of any evidence showing

that it would be harmful to marine

mammals to spend up to 2 weeks in an

enclosure smaller than required for

primary enclosures. Keeping them in

such enclosures for longer periods of

time must be weighed by the attending

veterinarian in terms of harm versus

benefits to the animals, and we believe

a weekly justification is adequate to

accomplish this. We believe the

proposed requirements are adequate to

ensure that marine mammals are not

kept in enclosures smaller than required

for longer than is absolutely necessary.

Another requirement in proposed

paragraph (a) is that enclosures smaller

than required, for example, gated side

pools abutting primary enclosures, may

not be used for permanent housing

purposes. Proposed paragraph (a) also

states that rotating animals between

enclosures that do and do not meet the

minimum space requirements is not

acceptable. One commenter said that,

within the marine mammal exhibition

industry, it is common to use gated side

pools for permanent housing, rotating

the animals between them and the main

pool regularly, and this requirement

would preclude that use. The

commenter suggested reevaluating the

wording to clarify that the intent is to

prohibit the use of medical or holding

pools for permanent housing purposes.

The intent of the Committee was to

make it clear that enclosures that do not

meet the minimum space requirements

for primary enclosures may not be used

for permanent housing of marine

mammals. The Committee further

clarified that this holds true even if the

marine mammal is being rotated

between enclosures that meet the

minimum space requirements and

enclosures that do not. Such activity

would not meet the requirements of the

regulations for primary enclosures. The

purpose of making this clarification is to

prevent facilities from, for example,

generally housing marine mammals in

smaller than required enclosures

supplemented by letting them into a

larger enclosure every few days.

Proposed paragraph (a) states that

marine mammals may be housed

temporarily in enclosures smaller than

required for nonmedical training,

breeding, holding, and transfer

purposes, and proposed § 3.110(b)

allows marine mammals to be housed

temporarily in enclosures smaller than

required for medical treatment or

training purposes. Marine mammals

may not be housed in enclosures

smaller than required for any other

purpose.

According to the Committee’s intent,

if gated side pools are large enough to

meet the space requirements for primary

enclosures, then the activity the

commenter describes would be

acceptable. If gated side pools do not

meet the minimum space requirements

for primary enclosures, then the activity

the commenter describes would not be

acceptable.

Based on the comment, we believe

that the proposed language should be

revised to make it clearer. Therefore, we

are revising the last two sentences of

proposed § 3.104(a). The proposed

sentences read as follows:

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 regulations.

We are revising these sentences to read

as follows:

Any enclosure that does not meet the

minimum space requirement for primary

enclosures (including, but not limited to,

medical pools or enclosures, holding pools or

enclosures, and gated side pools smaller than

the minimum space requirements) may not

be used for permanent housing purposes.

Rotating animals between enclosures that

meet the minimum space requirements and

enclosures that do not is not an acceptable

means of complying with the minimum

space requirements for primary enclosures.

One commenter said that animals in

his facility are routinely placed in gated

side pools abutting their primary

enclosure for training and show

purposes during certain periods of the

day and for short periods for medical

and other husbandry reasons. The

commenter is concerned that the last

sentence of proposed § 3.104(a) (revised

above) concerning rotating animals

between enclosures would preclude this

activity.

We are not making any changes based

on this comment. We believe that

proposed paragraph (a) makes it clear

that gated side pools smaller than the

minimum space requirements for

primary enclosures may be used for the

purposes that the commenter describes.

If the sentence concerning rotating

animals between enclosures is read

within the context of the rest of

paragraph (a), we do not believe that

there is any ambiguity.

Finally, with regard to proposed

§ 3.104(a), one commenter said that, in

order to facilitate appropriate behavioral

and medical management of a facility’s

population as a whole, this paragraph

needs to be clarified to maintain a

facility’s right to have the necessary

flexibility with respect to marine

mammal housing; that is, a facility must

be able to make appropriate use of all

pools.

We are not making any changes based

on this comment. The commenter does

not specify how the paragraph needs to

be clarified. However, we believe that

the paragraph clearly allows for

appropriate use of pools smaller than

required for primary enclosures and

prohibits inappropriate use of such

pools. We believe the allowances and

prohibitions give facilities adequate

flexibility, while fulfilling the intent of

the Act to ensure that marine mammals

are housed under conditions favorable

to their health and well-being.

244 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations

Section 3.105 Feeding

Proposed § 3.105 contains feeding

requirements, including provisions to

ensure food is nutritious and safely

handled.

Paragraph (a) of proposed § 3.105

includes the requirement that marine

mammals be offered food at least once

per day, except as directed by the

attending veterinarian. One commenter

said that marine mammals should be

offered food more than once per day.

We are making no changes based on

this comment. The Act requires that we

promulgate minimum standards for the

care of marine mammals. We believe

that requiring feeding at least once per

day is adequate as a minimum standard.

Some marine mammals do not require

multiple feedings per day; for example,

polar bears in maternity dens. Attending

veterinarians and animal handlers are

free to set up feeding regimens that

include multiple feedings per day when

they believe it is appropriate for the

animal.

Paragraph (b) of proposed § 3.105

includes the requirement that food

receptacles be placed so as to minimize

contamination of the food. Paragraph (d)

of proposed § 3.105 includes the

requirement that the maintenance of

thawed food be conducted in a manner

that will minimize contamination. One

commenter said the wording in both

these paragraphs should be changed to

require that food be handled so as to

eliminate contamination.

We are not making any changes based

on this comment. This point was

debated during the negotiated

rulemaking sessions. The Committee

reached consensus that, even under

ideal circumstances, it may not be

possible to completely eliminate

contamination of food by microbes, as

they are present in the air. Therefore,

the term ‘‘eliminate’’ would create a

standard impossible to attain. As for

contamination by chemicals, proposed

§ 3.101 contains provisions regarding

storage to ensure that food supplies are

not contaminated by toxic substances.

The Committee agreed that, for these

reasons, the term ‘‘minimize’’ would be

more appropriate.

Paragraph (c) of proposed § 3.105

includes the requirement that marine

mammal feeding records noting the

estimated individual daily consumption

be maintained at the facility for a period

of 1 year and made available to APHIS

for inspection. We clarified this

requirement in the preamble to the

proposed rule 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. The

Committee believed that it would not be

necessary to add this clarification to the

proposed regulatory language.

However, a few commenters said that

the clarification for feeding records

should be added to the regulatory

language in § 3.105(c). In order to make

the section clear for all regulated

entities, we are adding the clarification

to paragraph (c).

Section 3.107 Sanitation

Proposed § 3.107 concerns sanitation

with regard to primary enclosures, food

preparation, housekeeping, and pest

control.

Paragraph (c) of proposed § 3.107

requires that buildings and grounds, as

well as exhibit areas, be kept clean and

in good repair and that fences be

maintained in good repair. One

commenter said this language is overly

broad and should be revised to take into

account special situations relating to

natural open water facilities.

We are not making any changes based

on this comment. The purpose of these

requirements is to minimize risk of

injury to the marine mammals from

contaminants found in unclean

surroundings and from hazards due to

poor condition of fences, buildings, and

grounds. We see no reason why

exceptions need to be made for natural

open water facilities. For example, it is

particularly important that fencing and

water barriers in open water facilities be

kept in good repair to ensure

containment of the animals within the

enclosure as well as protection from

animals outside the enclosure and sharp

projections or edges on broken fencing.

Section 3.108 Employees or

Attendants

Proposed § 3.108 contains standards

for employees and attendants that

handle marine mammals.

Paragraph (b) of proposed § 3.108

requires that facilities provide and

document participation in and

successful completion of a facility

training course for employees.

Paragraph (b) also specifies minimum

components of the course, including

teaching species appropriate husbandry

techniques, handling techniques, and

reporting protocols. One commenter

said that the requirements in paragraph

(b) would place an unnecessary burden

on facilities that already have qualified

staff and infringe on the rights of

facilities to determine the aptitude of

staff and training methodologies.

We are not making any changes based

on this comment. In the preamble to the

proposed rule, we said that APHIS had

received public complaints about the

lack of training and applicable

experience of employees in licensed

facilities. The Committee made several

changes and additions to § 3.108 in

order to remedy this problem. Adding

the requirement for a facility training

course was one of the additions. We

continue to believe that a facility

training course would be an effective

means of ensuring that employees and

attendants are equipped with the

knowledge necessary to care for the

marine mammals properly and meet the

requirements of the regulations. The

facility training course is a one time

requirement for each employee, and the

minimal content for training courses

specified in paragraph (b) would not

impose specific training methodologies.

Therefore, we do not believe it imposes

an undue burden on facilities.

Paragraph (d) of proposed § 3.108

requires that trainers and handlers meet

professionally recognized standards for

experience and training. Several

commenters asked to what

professionally recognized standards we

are referring. Another commenter said

that we should emphasize that

paragraph (d) does not require the use

of the standards of any particular group

or organization.

We are making no changes based on

these comments. We stated in the

preamble to the proposed rule that, for

purposes of enforcing the requirement,

APHIS would use available professional

organization standards as a point of

reference. We may also use the experts

within the marine mammal community

as resources, as well as our own

expertise and any professionally

recognized standards.

One commenter said that we should

add a sentence to paragraph (d) to

require that trainers and handlers have

demonstrable experience and

appropriate formal training in marine

mammal husbandry and care. We are

not making any changes based on this

comment. Paragraph (a) of proposed

§ 3.108 requires that employees and

attendants (including trainers and

handlers) be adequately trained and that

supervisors have demonstrable

experience in marine mammal

husbandry and care.

Section 3.109 Separation

Proposed § 3.109 concerns social

housing and separation of marine

mammals.

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 245

Proposed § 3.109 requires that marine

mammals known to be social in the wild

must be housed with at least one

compatible animal of the same or

biologically related species, except

when the attending veterinarian, in

consultation with the husbandry/

training staff, determines that such

housing is not in the best interests of the

marine mammal’s health or well-being.

One commenter said that a situation in

one marine park in which an orca is

housed with dolphins was discussed

during the negotiated rulemaking and

was determined to be acceptable under

this requirement. The commenter asked

that we confirm this.

The commenter is correct that the

Committee discussed a marine park that

houses an orca with Pacific white-sided

dolphins as companions. This

arrangement is acceptable under the

proposed regulations as long as the

animals are compatible and a second

compatible orca is not available.

As noted above, proposed § 3.109

includes an exception to the

requirement that marine mammals

known to be social in the wild must be

housed with at least one compatible

animal of the same or biologically

related species. The exception is if 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. One

commenter said that the attending

veterinarian should also consult with

facility management before making a

decision to house a marine mammal

separately.

We are making no changes based on

this comment. The Committee discussed

whether to require consultation with

facility management when making a

decision concerning housing a marine

mammal separately. The Committee

agreed not to add this requirement, in

part because of potential conflicts

between economic interests and the best

interests of the animal. Facility

management is typically involved in the

activities of husbandry and training

staffs and would not be without input

into these decisions. Further, the

proposed requirement would not

prevent attending veterinarians from

consulting with facility management if

they choose.

Proposed § 3.109 also requires that

marine mammals not be housed near

other animals that cause them

unreasonable stress or discomfort or

interfere with their good health. One

commenter asked that we remove the

word ‘‘unreasonable’’ before ‘‘stress and

discomfort.’’ The commenter said that

the word ‘‘unreasonable’’ is too open to

interpretation.

We are making no changes based on

this comment. The Committee debated

whether to include a qualifier such as

‘‘unreasonable’’ in this requirement. The

Committee reached consensus that a

qualifier was necessary because no

animal, regardless of the conditions of

its housing and even in the wild, is

without some degree of stress or

discomfort at various times. A

requirement that marine mammals be

maintained completely without stress or

discomfort would be unattainable.

Proposed § 3.109 also requires that

marine mammals that are housed

separately must have a written plan that

includes information on the justification

for the length of time the animal will be

kept separated or isolated, the type and

frequency of enrichment, plans for

interaction if appropriate, and

provisions for periodic review of the

plan by the attending veterinarian. The

plan must be approved by the attending

veterinarian and developed in

consultation with the husbandry/

training staff.

One commenter asked why the plan is

needed and who the plan is for. We are

making no changes based on this

comment. Marine mammals are

generally social animals. When marine

mammals are kept in isolation without

the companionship of other marine

mammals, it is necessary to enrich their

environment in other ways to promote

their well-being. We proposed to require

the plan to ensure that marine mammals

kept in isolation are kept that way for

valid reasons and that the animals’

special enrichment needs are

considered. The plan would be a

valuable tool for the facility for making

sure personnel caring for the marine

mammals understand the special needs

of the marine mammals. The plan

would also be used by APHIS to

determine if the animals’ special needs

are being considered and if the

provisions of the plan are being

followed.

Section 3.110 Veterinary Care

Proposed § 3.110 contains minimum

standards of veterinary care for marine

mammals.

Paragraph (a) of proposed § 3.110

requires that newly acquired marine

mammals be isolated from resident

marine mammals. One commenter

asked if marine mammals that are

seasonally transported between facilities

would be considered newly acquired

animals for purposes of this

requirement. The commenter further

said that such animals should not be

considered newly acquired.

We are not making any changes based

on this comment. If marine mammals

are moved to a facility that is not their

permanent residence, they would be

considered newly acquired to that

facility, even if they move there every

summer, for example, as a result of

regular seasonal movement. However,

under proposed § 3.110(a), if the newly

acquired marine mammals have a

known medical history, they must be

isolated only until the attending

veterinarian determines the animals are

in good health. This may be

accomplished on the day of arrival at

the facility. We believe the requirement

for isolation of newly acquired marine

mammals is necessary to protect the

health of resident marine mammals.

Paragraph (b) of proposed § 3.110

concerns holding facilities for medical

treatment or medical training. Proposed

paragraph (b) requires that, if a marine

mammal is to be held in an enclosure

that does not meet the minimum space

requirements for primary enclosures for

longer than 2 weeks, it must be justified

in writing by the attending veterinarian

on a weekly basis. One commenter said

that this requirement should be changed

so that if a marine mammal is to be held

in an enclosure smaller than required

for longer than a few hours, it must be

justified in writing by the attending

veterinarian on a daily basis.

We are not making any changes based

on this comment. The same comment

was received regarding a similar

requirement under proposed § 3.104(a)

regarding holding marine mammals in

smaller than required enclosures for

nonmedical training, breeding, or

holding. In response to that comment,

we said that it would be an unnecessary

burden to require such frequent

justification. Depending on the design of

the facility, it can often take a few hours

just to transfer a marine mammal from

its primary enclosure into the smaller

enclosure, making such frequent

justification impractical. We are not

aware of any evidence showing that it

would be harmful to marine mammals

to spend up to 2 weeks in an enclosure

smaller than required for primary

enclosures. Keeping them in such

enclosures for longer periods of time

must be weighed by the attending

veterinarian in terms of harm versus

benefits to the animals, and we believe

a weekly justification is adequate to

accomplish this. We believe the

proposed requirements are adequate to

ensure that marine mammals are not

kept in enclosures smaller than required

for longer than is necessary.

One commenter expressed concern

and asked why, in proposed § 3.110(b),

the space requirements for isolation of

246 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations

marine mammals in natural lagoons and

coastal facilities are different than for

closed system facilities. We are not

making any changes based on this

comment. Paragraph (b) begins by

stating that all facilities must have

holding facilities in place and available

to meet the needs for isolation,

separation, medical treatment, and

medical training of marine mammals.

The last sentence of paragraph (b) states

that, in natural lagoon or coastal

enclosures, separation of newly

acquired marine mammals must be

accomplished using separate enclosures

situated within the facility, located to

prevent direct contact with resident

animals and to minimize the risk of

potential airborne or waterborne

contamination between newly acquired

and resident animals. This clarification

for natural lagoons and coastal facilities

is necessary because water circulation

cannot be controlled or isolated in such

facilities. Paragraph (b) makes no

distinction between natural lagoon and

coastal facilities and closed system

facilities with regard to space

requirements.

One commenter suggested we move

the last sentence of proposed paragraph

(b) of § 3.110 to the end of paragraph (a).

We are not making any changes based

on this comment. Paragraph (a)

addresses the need to isolate newly

acquired marine mammals. Paragraph

(b) addresses the use of isolation

facilities, including the use of such

facilities for newly acquired animals.

We believe that the last sentence of

paragraph (b) is appropriately placed.

Two commenters were concerned that

the requirements for isolation in

proposed § 3.110 (a) and (b) could be

construed to require separate quarantine

facilities with tanks, filters, and water

treatment systems independent of the

rest of the facility. The commenters said

that, if this is the intent, it would be

inappropriate and cost prohibitive. Both

commenters also said that, since it is

clear that this is not the intent for

natural lagoons and coastal enclosures

(paragraph (b) acknowledges that water

circulation cannot be controlled or

isolated in such systems), the

requirement should be the same for

other types of enclosures.

We are not making any changes based

on these comments. Section 3.110 has

always contained a requirement for

isolation of newly acquired animals and

for holding facilities adequate to

accomplish isolation. These

requirements, therefore, are not new. In

general, our use of the word ‘‘isolation’’

corresponds with the common

veterinary meaning of prevention of

contact with other animals, directly as

well as through water or air. Bacteria

and disease can be transmitted through

water and air. However, each facility

will present unique concerns over how

to effectively isolate an animal.

Completely separate tanks, filters, and

water filtration systems are ideal. In

other cases, a single but efficient water

filtration and treatment system may

accomplish the same thing. Preventing

the exchange of airborne pathogens

presents the greatest challenge. Our

intent is that facilities keep newly

acquired animals and animals that need

to be isolated for medical purposes as

separate as possible from the known

healthy animals in the facility. APHIS

will work with each licensed and

registered facility to address concerns

and to help facilitate compliance with

this requirement.

A few commenters were concerned

that the Committee generally added too

much detail to the veterinary care

requirements in proposed § 3.110,

giving APHIS inspectors opportunities

to question veterinarians’ protocols. In

particular, one commenter cited the

requirement in proposed § 3.110(f) that

all cetaceans and sirenians be physically

examined by the attending veterinarian

at least annually and that the

examinations include a hands-on

physical examination, hematology and

blood chemistry, and other diagnostic

tests as determined by the attending

veterinarian.

We are not making any changes based

on these comments. APHIS has been

concerned about the quality of

veterinary care provided to marine

mammals at certain facilities. These

concerns were discussed during the

negotiated rulemaking. The Committee

agreed that it was necessary to provide

more specific standards to clarify what

is meant by providing adequate

veterinary care to marine mammals. The

proposed language is based on currently

accepted practices and professional

veterinary standards. We do not believe

that the language the Committee agreed

to is overly burdensome, but rather

describes the minimum of what is

needed in a preventive health program

for marine mammals.

Paragraph (g)(1) of proposed § 3.110

concerns necropsy of marine mammals

and includes the requirement that a

final necropsy report include a

pathological diagnosis. One commenter

said that, in the past 15 years, he has

received several pathology reports from

the laboratory stating the cause of death

cannot be determined.

We are not making any changes based

on this comment. It is possible for a

pathological diagnosis to be

inconclusive (that is, cause of death

cannot be determined), and this is an

accepted diagnosis. The intent of the

requirement is to ensure that

histopathology is done as part of a

necropsy and evaluated by an expert.

Proposed paragraph (g)(1) also

requires that necropsies be conducted

by or under the supervision of the

attending veterinarian. One commenter

asks what to do if the attending

veterinarian is unavailable because he

or she is out of town. We are not making

any changes based on this comment.

The intent of the requirement is that the

necropsy be performed or supervised by

a veterinarian experienced in marine

mammal medicine. If an attending

veterinarian is out of town for an

extended period of time, alternative

veterinary medical coverage should be

arranged. Usually, the attending

veterinarian appoints a back-up

veterinarian for emergencies. It would

be appropriate for the back-up

veterinarian to perform the necropsy.

However, if the attending veterinarian

will be available within a few days, it

may be preferable to cool and store the

animal until the necropsy can be

performed upon the attending

veterinarian’s return.

Paragraph (g)(2) of proposed § 3.110

concerns maintenance of necropsy

reports. This paragraph was not agreed

to by consensus of the Committee and

was, therefore, open for all public

comment, including comments from

Committee members.

We proposed in paragraph (g)(2) that

necropsy records must be maintained at

the facility for a period of 3 years and

be presented to APHIS inspectors when

requested. We explained in the

preamble to the proposed rule that we

intend this to mean that the records

must be maintained at the home facility

of the marine mammal. This

requirement would replace the current

requirement that necropsy records be

maintained at the facility where the

marine mammal died. One commenter

said that we should require necropsy

reports to be maintained both at the

home facility and at the facility where

the marine mammal died. The

commenter said this would be beneficial

because some facilities maintain marine

mammals only on a seasonal basis, and

requiring them to retain necropsy

records on animals that have died at

their facility would make it possible to

identify and compare problems

resulting in deaths in successive years.

We agree with the commenter that it

would be beneficial to require necropsy

records to be maintained at both the

home facility and the facility where the

marine mammal died (if these are

different facilities). Therefore, we are

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 247

making the appropriate change in

§ 3.110(g)(2).

One commenter said that necropsy

reports should be submitted to APHIS

upon completion by or approval of the

attending veterinarian. The commenter

stated that this would allow necropsy

reports to be obtained by interested

persons for purposes of scientific

inquiry into the causes of captive

marine mammal mortality.

We are making no changes based on

this comment. Although the provisions

of proposed paragraph (g)(2) are not

based on consensus language, the issue

addressed by the commenter was

discussed during the negotiated

rulemaking. Several members of the

Committee had strong reservations

about the use and interpretation of

necropsy reports by untrained

individuals or individuals who do not

have complete knowledge of an animal’s

history. We believe that there would be

no enforcement benefits or benefits to

the animals from requiring necropsy

reports to be submitted to APHIS and

that it would unnecessarily increase the

reporting burden on facilities. Persons

interested in pursuing scientific inquiry

into captive marine mammal mortality

can request information directly from

facilities.

Section 3.112 Consignments to

Carriers and Intermediate Handlers

Proposed § 3.112 contains

requirements for carriers and

intermediate handlers involved in the

transportation of marine mammals.

Paragraph (c) of proposed § 3.112

concerns temperature. It requires that

carriers and intermediate handlers

whose facilities fail to maintain a

temperature within the range prescribed

by the regulations may accept a marine

mammal for transport only if the marine

mammal is accompanied by a certificate

executed and signed by the attending

veterinarian. The certificate would have

to state 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. Under proposed § § 3.117 and

3.118, the prescribed temperature range

is between 7.2 °C and 23.9 °C or 45 °F

and 75 °F.

Two commenters were concerned

about the maximum temperature in the

prescribed range (75 °F) and the

requirement to provide an acclimation

certificate for transporters whose

facilities exceed that temperature. The

commenters said that the southern

United States experiences temperatures

over 75 °F for half of the year and that

requiring an acclimation certificate for

marine mammals maintained and

transported in that part of the country

would be onerous. One commenter said

that this temperature range could

induce some carriers to refuse to accept

marine mammals for transport, even

with an acclimation certificate, for fear

of liability. The other commenter

suggested setting the maximum

temperature for the prescribed range at

90 °F.

We are not making any changes based

on these comments. A primary problem

with transporting marine mammals is

heat stress. As cetaceans, pinnipeds,

and sirenians are generally not

transported in water, or only partially

submerged, their thermoregulatory

capacity is already being stressed. The

Committee included the proposed

requirement in paragraph (c) to help

minimize heat-related stress during

transport. Paragraph (a) of proposed

§ 3.112 requires that marine mammals

consigned to transport be accompanied

by a health certificate signed by the

attending veterinarian. The additional

requirement of obtaining an acclimation

certificate from the attending

veterinarian would add minimal

burden.

Paragraph (d) of proposed § 3.112

requires that, following the arrival of

any marine mammal at the animal

holding area of the terminal cargo

facility, carriers and intermediate

handlers must attempt to notify the

consignee who is to receive the marine

mammal at least once in every 6-hour

period. One commenter said that, since

proposed § 3.116(a) requires that all

marine mammals be accompanied

during transport by a licensed

veterinarian, employee, and/or

attendant of the shipper or receiver, the

requirement in proposed § 3.112(d) is

unnecessary and should be deleted.

We are not making any changes based

on this comment. We recognize that the

notification requirement in proposed

§ 3.112(d) may not be necessary in most

cases, since the marine mammal would

be accompanied by an attendant at all

times. However, there may be

unforeseen circumstances that would

make notification necessary; for

example, a marine mammal shipped on

a commercial flight may be

inadvertently sent to the wrong location.

Section 3.113 Primary Enclosures

Used To Transport Marine Mammals

Proposed § 3.113 contains standards

for primary enclosures used to transport

marine mammals.

Paragraph (b) of proposed § 3.113

concerns straps, slings, harnesses, and

other devices used to support or restrain

marine mammals in their enclosures.

The introductory text of paragraph (b)

reads as follows:

Straps, slings, harnesses, or other devices

used for body support or restraint, when

transporting marine mammals such as

cetaceans and sirenians shall * * *

One commenter said that we should add

the word ‘‘if’’ to the introductory text,

so that it would read as follows:

Straps, slings, harnesses, or other devices,

if used for body support or restraint when

transporting marine mammals such as

cetaceans and sirenians, shall * * *

The commenter suggested that leaving

out the word was an inadvertent error,

since the current language in § 3.113(b)

contains the word ‘‘if’’.

We are making no changes based on

this comment. The wording for

paragraph (b) was the wording agreed to

by the Committee. We do not believe

that adding the word ‘‘if’’ changes the

meaning of the sentence, since the use

of straps, slings, or other such devices

is clearly not required.

One commenter said we are

inconsistent throughout § § 3.113, 3.114,

3.117, and 3.118 with the use of the

terms ‘‘primary enclosure’’ and

‘‘primary transport enclosure.’’ The

commenter said that, since all of these

sections concern transportation, the

term ‘‘primary transport enclosure’’

should be used throughout.

In the preamble to the proposed rule,

we explained that throughout these

sections, we would use the term

‘‘primary transport enclosure’’

whenever we believed the term was

necessary for clarity. In other places, the

proposed regulations specify ‘‘primary

enclosure used to transport marine

mammals,’’ and we believed in those

places that the intent was clear.

Additionally, all of these sections

appear in the proposed regulations

under the heading ‘‘Transportation

Standards.’’ However, in reviewing the

proposed rule, we realized that in two

places we inadvertently failed to use

either the term ‘‘primary transport

enclosure’’ or ‘‘primary enclosure used

to transport marine mammals.’’ These

places are in § 3.113(c)(2) and in

§ 3.114(d). For consistency, we are

changing ‘‘primary enclosure’’ to

‘‘primary transport enclosure’’ in these

two places.

Section 3.116 Care in Transit

Proposed § 3.116 contains

requirements for the care of marine

mammals in transit.

Paragraph (a) of proposed § 3.116

includes the requirement that, if the

attending veterinarian does not

accompany the marine mammal during

transit, communication with the

248 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations

attending veterinarian must be

maintained in accordance with 9 CFR

part 2, § 2.40(b)(3). Section 2.40

contains requirements for adequate

veterinary care of any animal covered

under the Act that is maintained by a

dealer or exhibitor. Paragraph (b)(3) of

§ 2.40 requires, among other things, that

there be daily observations of all

animals to assess their health and wellbeing 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.

One commenter said that we should

also reference the requirements of 9 CFR

part 2, § 2.33(b)(3), in proposed

§ 3.116(a). The commenter pointed out

that § 2.40(b)(3) concerns only marine

mammals maintained by dealers and

exhibitors, while § 2.33(b)(3) concerns

marine mammals maintained by

research facilities.

There are very few transports

involving marine mammals used in

research. We believe the Committee

overlooked the reference to § 2.33(b)(3)

for this reason. The commenter’s

suggestion is, however, appropriate, and

we are adding the reference to

§ 2.33(b)(3) to paragraph (a) of proposed

§ 3.116.

General Comments

We also received several comments

that did not pertain to a particular

section of the proposed regulations.

They are as follows:

One commenter commended the work

of the Committee but said that just

because everybody agreed, it does not

mean the agreement needs to be a rule;

and that it is now up to APHIS to

determine if all the agreements reached

need to become rules.

We conducted negotiated rulemaking

for this rule under the Negotiated

Rulemaking Act of 1990 (5 U.S.C. 561 et

seq.) and the Federal Advisory

Committee Act (5 U.S.C. App. I). Under

the rules governing the negotiated

rulemaking process, and in accordance

with the organizational protocols

established by the Committee, we

agreed to publish as a proposed rule any

consensus language developed during

the Committee meetings unless

substantive changes were made as a

result of authority exercised by another

Federal Government entity. APHIS was

a voting member of the Committee and,

therefore, was in agreement with the

consensus language published in the

proposed rule. In this final rule, we

have exercised our oversight

responsibility and have made minor

changes based on concerns of

commenters when we believed they

were necessary, and other minor

changes when deemed appropriate.

One commenter asked that the

Committee work toward consensus on

the remaining five sections of the

marine mammal regulations. These five

are § § 3.102, 3.103, 3.104 (with the

exception of paragraph (a)), 3.106, and

3.111. These sections concern,

respectively, indoor facilities, including

temperature, ventilation, and lighting;

outdoor facilities; space requirements;

water quality; and swim-with-thedolphin programs. Two other

commenters were particularly

concerned that the space requirements

in § 3.104 (b) and (c) and the water

quality requirements in § 3.106 were not

revised.

The charter for the Committee (under

the Federal Advisory Committee Act)

has expired. In addition, during the

negotiated rulemaking meetings, the

Committee agreed that consensus on the

remaining five sections was most likely

not possible. For these reasons, we have

decided to draft proposed revisions to

these sections without the use of

negotiated rulemaking. We plan to

publish proposed changes for these

sections in the near future, and these

changes will be open for public

comment.

One commenter asked that we

prohibit physical interactions between

captive marine mammals and the

public, particularly in public petting

and feeding displays. The commenter

further stated that the proposed

regulations would not significantly

improve the welfare of captive cetaceans

in petting and feeding displays. We are

not making any changes based on this

comment. On September 4, 1998, APHIS

published in the Federal Register (63

FR 47128–47151, Docket No. 93–076–

10) a final rule establishing standards

for swim-with-the-dolphin interactive

programs. APHIS is evaluating the

issues surrounding these programs, and

intends to publish proposed

amendments to interactive program

regulations in the future.

Another commenter generally

opposed capture, breeding, transport,

and public display of cetaceans. We are

not making any changes based on this

comment. It is not within our authority

under the Act to prohibit captivity and

display of marine mammals. We believe

that the regulations finalized in this

document will help to ensure the wellbeing of marine mammals in captivity.

One commenter recommended setting

a maximum daily period during which

captive marine mammals may be

viewed by humans. The commenter said

this is necessary to allow marine

mammals time to meet their social and

physical needs. The same commenter

also asked that we require facilities to

provide continual access to refuge areas

for marine mammals on public display,

where they can withdraw from both

visitor attention and other activities.

We are not making any changes based

on this comment. We are not aware of

any scientific information that would

support provisions to limit exhibition

time or require designated areas where

marine mammals can obtain refuge from

being viewed by the public. For displays

that allow the public to enter the

animal’s enclosure (swim-with-thedolphin programs), the regulations

provide for a sanctuary area that allows

the cetaceans to avoid direct human

interaction with members of the general

public if they choose, and limit the

amount of time such interaction can

take place. In other pools, there is

sufficient space to allow animals to

distance themselves from the viewing

public if they desire.

One commenter said that, in general,

the care in the commenter’s facility is

consistent with the proposed rule, but

the proposed rule will increase

documentation requirements, imposing

additional paperwork and

administrative burdens. We are not

making any changes based on this

comment. We recognize that additional

documentation can seem burdensome,

especially to those facilities that

maintain a high level of care for their

marine mammals. However, the

Committee believed that the

requirements added in the proposed

rule are necessary to verify and ensure

that all facilities are complying with the

regulations. The reporting and

recordkeeping requirements in the

proposed rule have been approved by

the Office of Management and Budget

under the Paperwork Reduction Act.

One commenter said that the

proposed rule does not account for the

special requirements of research

institutions. Specifically, the

commenter said that the proposed

regulations do not address the need for

research faculty, graduate students, and

post-doctorate students to participate

with the attending veterinarian and

husbandry personnel in decisions

affecting animal training and research

protocols, and the proposed regulations

do not offer a role for the Institutional

Animal Care and Use Committee

(IACUC).

We are not making any changes based

on this comment. The proposed

regulations do not prevent research

facilities from allowing research faculty,

graduate students, and post-doctorate

students to participate in decisions

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 249

1Arboreta 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

121.201, SIC 0272, p. 354.

2Much of the admission fee information was

obtained from Internet home pages of aquariums

and botanical and zoological gardens. Data obtained

from the home pages were checked with recorded

messages of many of the facilities.

made by the attending veterinarian and

husbandry personnel. We do believe

that requiring specific qualified

individuals (the attending veterinarian

or husbandry personnel) to be

ultimately responsible for certain

decisions is necessary to ensure proper

care of the animals under the Act. All

IACUC responsibilities are addressed in

9 CFR part 2 of the regulations. We do

not believe any responsibilities given to

the attending veterinarian by the

proposed regulations are in conflict

with IACUC responsibilities.

Miscellaneous

We are making minor editorial

changes for clarity and consistency. For

example, we are replacing the word

‘‘which’’ with the word ‘‘that’’ and the

word ‘‘shall’’ with the word ‘‘must’’

where appropriate. None of these

changes affects the meaning or intent of

the regulations.

Therefore, for the reasons given in the

proposed rule and in this document, we

are adopting the proposed rule as a final

rule, with the changes discussed in this

document.

Executive Order 12866 and Regulatory

Flexibility Act

This 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 rule amends the Animal Welfare

Act regulations concerning the humane

handling, care, treatment, and

transportation of marine mammals in

captivity. These regulations were

developed by the Marine Mammal

Negotiated Rulemaking Advisory

Committee and APHIS and are

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, two are

privately owned and four are owned by

the public (such as State universities).

The average annual revenue for an

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

§ 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.

Arboreta and botanical or zoological

gardens comprise an important

subgroup of the amusement parks

industry, generating more than $653

million in revenues and attracting close

to 50 million visitors annually. There

were 448 establishments in this

subgroup in 1997, 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. 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 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

provisions of this rule 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 rule should not have any

significant effect on entrance fees in

most 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. Cityand 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.

This rule is intended to result in

clearer, more easily understood

regulatory language and enhanced levels

of care for marine mammals.

Alternatives to this rule 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 amendments simplify

and clarify the language of the existing

requirements without requiring any

substantial changes. Some of the

amendments will result in some

additional costs for facilities housing

marine mammals if they are not already

in compliance with these standards.

Since approximately 90 percent of the

facilities already meet the standards set

by consensus and already practice

sound marine mammal husbandry, costs

for them should be unaffected. For the

remaining facilities, increased costs as a

result of this rule will likely be passed

on to the public in the form of increased

admission fees or will result in changes

250 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations

in the facility’s collection size or

diversity.

While it is difficult to quantify all the

benefits of this 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 requirements

of this rule. Therefore, the effect of the

requirements will be most apparent

within the approximately 10 percent of

licensed marine mammal facilities that

are not already meeting or exceeding

these requirements. The requirements

that will likely have the most effect on

these facilities are the requirements that

clarify veterinary care for marine

mammals. Preventive care during

annual or semiannual examinations may

potentially reduce emergency veterinary

costs and result in fewer marine

mammal deaths because of improved

health of the animals. Healthier animals

should also have an increased life

expectancy and improved reproductive

outcomes. In general, we expect that any

improvements in the care and

maintenance of marine mammals may

be reflected in lower levels of animal

distress and suffering and improved

quality of life. In addition, improved

conditions for captive marine mammals

should result in increased satisfaction

for members of the public who view

these animals in zoos and aquariums.

The following provisions of this rule

could generate minor cost increases in

facilities that do not already meet these

standards.

Section3.101 currently requires

facilities to have a contingency plan

addressing relocation during an

emergency or natural disaster. This final

rule will require that additional and

more detailed contingency plans be

kept.

In § 3.105, we will 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 will have to

be maintained at the facility for a period

of 1 year. Personnel costs to provide for

planning, observation, documentation,

and record maintenance may increase as

a result of these requirements,

depending on present staffing.

In § 3.108, we are expanding the

training requirements for employees and

attendants. Facilities will have to

provide and document participation in,

and successful completion of, a facility

training course by a sufficient number of

employees. (This means a number

sufficient to maintain the prescribed

level of husbandry set forth in the

regulations.) Training will 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 is

estimated here to be about 4 hours for

each trainee. Any increase in costs as a

result of this requirement will depend

on the current training practice of a

facility.

In § 3.109, we are requiring a written

plan for any animals kept in isolation.

The plan must be approved by the

attending veterinarian and developed in

consultation with the husbandry/

training staff of the facility. The plan

must 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 will probably not require

more than 30 minutes per animal per

week.

In § 3.110, we are adding medical

recordkeeping requirements for each

animal. This will probably not entail

more than 30 minutes for each animal

twice per year. We are also adding

requirements concerning examinations

of marine mammals by the attending

veterinarian. All marine mammals in a

facility will have to be visually

examined at least semiannually and

physically examined when deemed

necessary, except that cetaceans and

sirenians will have to be physically

examined at least annually. The

physical examinations will have to

include a hands-on physical

examination, hematology and blood

chemistry, and other diagnostic tests as

determined by the attending

veterinarian. Examinations take an

average of approximately 2 hours per

animal. In § 3.110 will 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 § 3.112, we will 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 should not

take more than 15 minutes per animal,

with an average of two animals moving

per facility per year.

In § 3.116, we will require that any

transport of a marine mammal for longer

than 2 hours duration requires

preparation of a transport plan.

Preparing such transport plans should

take about 1/2 to 2 hours, depending on

the circumstances. Most facilities

transport marine mammals fewer than

two times per year. Facilities that

transport marine mammals often have

protocols already in place to address

this issue. We will require 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 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 will also

require that an employee or attendant

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 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 rule.

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 251

TABLE A.—ADDITIONAL COSTS OF RECORDKEEPING AND TRAINING REQUIREMENTS FOR ALL REGULATED MARINE MAMMAL

FACILITIES COMBINED

[Time in hours]

Section

Nonprofessional staff

($15/hour) 1

Professional

staff

($20/hour) 2

Veterinarian

($25/hour) 3

Total value in

dollars

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 Denotes 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 varies depending on volume and whether the tests are done in private laboratories or on site. Additionally,

most facilities are already doing this testing. 5 Represents approval of 1 transport plan per year per facility (116 facilities) at 30 minutes each and approval of transport for 5 marine mammals with medical conditions per year at 30 minutes each.

Because this regulatory action was

initiated at the request of the major

stakeholders and was undertaken using

negotiated rulemaking, the resulting

rule is broadly supported by affected

groups. Additionally, since 90 percent

of licensed marine mammal facilities are

already meeting or exceeding the

requirements, the actual economic effect

of this rule is expected to be minimal.

Under these circumstances, the

Administrator of the Animal and Plant

Health Inspection Service has

determined that this action will 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 final rule has been reviewed

under Executive Order 12988, Civil

Justice Reform. It is not intended to

have retroactive effect. This rule will

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 the Paperwork

Reduction Act of 1995 (44 U.S.C. 3501

et seq.), the information collection or

recordkeeping requirements included in

this rule have been approved by the

Office of Management and Budget

(OMB) under OMB control number

0579–0115.

List of Subjects in 9 CFR Part 3

Animal welfare, Marine mammals,

Pets, Reporting and recordkeeping

requirements, Research, Transportation.

Accordingly, we are amending 9 CFR

part 3 as follows:

PART 3—STANDARDS

1. The authority citation for part 3

continues to read as follows:

Authority: 7 U.S.C. 2131–2159; 7 CFR 2.22,

2.80, and 371.7.

2. Section 3.101 is revised to read as

follows:

§ 3.101 Facilities, general.

(a) Construction requirements. (1)

Indoor and outdoor housing facilities for

marine mammals must be structurally

sound and must 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

extending above the high tide water

level, or other appropriate measures, on

all sides of the enclosure not contained

by dry land to fulfill the requirements

of this section.

(2) All marine mammals must 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 of these.

(3) All surfaces in a primary enclosure

must be constructed of durable,

nontoxic materials that facilitate

cleaning, and disinfection as

appropriate, sufficient to maintain water

quality parameters as designated in

§ 3.106. All surfaces must be maintained

in good repair as part of a regular,

ongoing maintenance program. All

facilities must implement a written

protocol on cleaning so that surfaces do

not constitute a health hazard to

animals.

(4) Facilities that utilize natural water

areas, such as tidal basins, bays, or

estuaries (subject to natural tidewater

action), for housing marine mammals

are 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 must be provided by the

facility housing marine mammals.

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 wellbeing of the marine mammals housed in

the facility. Contingency plans must

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

252 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations

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

must be provided for all primary

enclosure pools and must 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 must be

disposed of in a manner that complies

with all applicable Federal, State, and

local pollution control laws.

(2) Drainage must be provided for

primary enclosures and areas

immediately surrounding pools. All

drain covers and strainers must be

securely fastened in order to minimize

the potential risk of animal entrapment.

Drains must be located so as to rapidly

eliminate excess water (except in pools).

Drainage effluent must be disposed of in

a manner that complies with all

applicable Federal, State, and local

pollution control laws.

(d) Storage. Supplies of food must be

stored in facilities that adequately

protect such supplies from

deterioration, spoilage (harmful

microbial growth), and vermin or other

contamination. Refrigerators and

freezers (or chilled and/or iced coolers

for under 12 hours) must be used for

perishable food. 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 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 must be

made for the removal and disposal of

animal and food wastes, dead animals,

trash, and debris. Disposal facilities

must be provided and operated in a

manner that 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, as appropriate, showers,

must be provided and conveniently

located to maintain cleanliness among

employees, attendants, and volunteers.

These facilities must 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 § 3.104, paragraph (a) is revised

to read as follows:

§ 3.104 Space requirements.

(a) General. Marine mammals must be

housed in primary enclosures that

comply with the minimum space

requirements prescribed by this part.

These enclosures must be constructed

and maintained so that the animals

contained within are provided sufficient

space, both horizontally and vertically,

to be 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 § 3.110(b)

for 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. Any enclosure that does

not meet the minimum space

requirement for primary enclosures

(including, but not limited to, medical

pools or enclosures, holding pools or

enclosures, and gated side pools smaller

than the minimum space requirements)

may not be used for permanent housing

purposes. Rotating animals between

enclosures that meet the minimum

space requirements and enclosures that

do not is not an acceptable means of

complying with the minimum space

requirements for primary enclosures.

* * * * *

4. Section 3.105 is revised to read as

follows:

§ 3.105 Feeding.

(a) The food for marine mammals

must be wholesome, palatable, and free

from contamination and must be of

sufficient quantity and nutritive value to

maintain marine mammals in a state of

good health. The diet must be prepared

with consideration for factors such as

age, species, condition, and size of the

marine mammal being fed. Marine

mammals must be offered food at least

once a day, except as directed by the

attending veterinarian.

(b) Food receptacles, if used, must be

located so as to be accessible to all

marine mammals in the same primary

enclosure and must be placed so as to

minimize contamination of the food

they contain. Such food receptacles

must be cleaned and sanitized after each

use.

(c) Food, when given to each marine

mammal individually, must 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 may 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

may be fed to the marine mammals by

the public. Marine mammal feeding

records noting the estimated individual

daily consumption must be maintained

at the facility for a period of 1 year and

must be made available for APHIS

inspection. 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.

(d) Food preparation and handling

must be conducted so as to assure the

wholesomeness and nutritive value of

the food. Frozen fish or other frozen

food must be stored in freezers that are

maintained at a maximum temperature

of ¥18 °C (0 °F). The length of time

food is stored and the method of storage,

the thawing of frozen food, and the

maintenance of thawed food must be

conducted in a manner that will

minimize contamination and that 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

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 253

must be used. All foods must 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:

§ 3.107 Sanitation.

(a) Primary enclosures. (1) Animal

and food waste in areas other than the

pool of water must 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 must 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.

(3) The wall and bottom surfaces of

the primary enclosure pools of water

must 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

§ 3.106, prevent proper maintenance, or

pose a health or disease hazard to the

animals are not considered

contaminants.

(b) Food preparation. Equipment and

utensils used in food preparation must

be cleaned and sanitized after each use.

Kitchens and other food handling areas

where animal food is prepared must be

cleaned at least once daily and sanitized

at least once every week. Sanitizing

must be accomplished by washing with

hot water (8 °C, 180 °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 in secured cabinets

designed and located to prevent

contamination of food storage

preparation surfaces.

(c) Housekeeping. Buildings and

grounds, as well as exhibit areas, must

be kept clean and in good repair. Fences

must be maintained in good repair.

Primary enclosures housing marine

mammals must 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 must be established

and maintained. Insecticides or other

such chemical agents must 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:

§ 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, must be utilized to

maintain the prescribed level of

husbandry practices set forth in this

subpart. Such practices must be

conducted under the supervision of a

marine mammal caretaker who has

demonstrable experience in marine

mammal husbandry and care.

(b) The facility will provide and

document participation in and

successful completion of a facility

training course for such employees. This

training course will include, but is not

limited to, species appropriate

husbandry techniques, animal handling

techniques, and information on proper

reporting protocols, such as

recordkeeping and notification of

veterinary staff for medical concerns.

(c) Any training of marine mammals

must be done by or under the direct

supervision of experienced trainers.

(d) Trainers and handlers must meet

professionally recognized standards for

experience and training.

7. Section 3.109 is revised to read as

follows:

§ 3.109 Separation.

Marine mammals, whenever 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,

except when the attending veterinarian,

in consultation with the husbandry/

training staff, determines that such

housing is not in the best interest of the

marine mammal’s health or well-being.

However, marine mammals that are not

compatible must not be housed in the

same enclosure. Marine mammals must

not be housed near other animals that

cause them unreasonable stress or

discomfort or interfere with their good

health. Animals housed separately must

have a written plan, approved by the

attending veterinarian, developed in

consultation with the husbandry/

training staff, that includes the

justification for the length of time the

animal will be kept separated or

isolated, information on the type and

frequency of enrichment and

interaction, if appropriate, and

provisions for periodic review of the

plan by the attending veterinarian.

Marine mammals that are separated for

nonmedical purposes must be held in

facilities that meet minimum space

requirements as outlined in § 3.104.

8. Section 3.110 is revised to read as

follows:

§ 3.110 Veterinary care.

(a) Newly acquired marine mammals

must be isolated from resident marine

mammals. Animals with a known

medical history must be isolated unless

or until the newly acquired animals can

be reasonably determined to be in good

health by the attending veterinarian.

Animals without a known medical

history must be isolated until it is

determined that the newly acquired

animals are determined to be in good

health by the attending veterinarian.

Any communicable disease condition in

a newly acquired marine mammal must

be remedied before it is placed with

resident marine mammals, unless, in the

judgment of the attending veterinarian,

the potential benefits of a resident

animal as a companion to the newly

acquired animal outweigh the risks to

the resident animal.

(b) Holding facilities must be in place

and available to meet the needs for

isolation, separation, medical treatment,

and medical training of marine

mammals. Marine mammals that are

isolated or separated for nonmedical

purposes must be held in facilities that

meet minimum space requirements as

outlined in § 3.104. Holding facilities

used only for medical treatment and

medical training need not meet the

minimum space requirements as

outlined in § 3.104. Holding of a marine

mammal in a medical treatment or

medical training enclosure that does not

meet minimum space requirements for

periods longer than 2 weeks must be

noted in the animal’s medical record

and the attending veterinarian must

provide a justification in the animal’s

medical record. If holding in such

enclosures for medical treatment and/or

medical training is to last longer than 2

weeks, such extension must be justified

in writing by the attending veterinarian

on a weekly basis. In natural lagoon or

coastal enclosures where isolation

cannot be accomplished, since water

circulation cannot be controlled or

isolated, separation of newly acquired

marine mammals must be accomplished

using separate enclosures situated

within the facility to prevent direct

254 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations

contact and to minimize the risk of

potential airborne and water crosscontamination between newly acquired

and resident animals.

(c) Any holding facility used for

medical purposes that has contained a

marine mammal with an infectious or

contagious disease must be cleaned and/

or sanitized in a manner prescribed by

the attending veterinarian. No healthy

animals may be introduced into this

holding facility prior to such cleaning

and/or sanitizing procedures. Any

marine mammal exposed to a

contagious animal must be evaluated by

the attending veterinarian and

monitored and/or isolated for an

appropriate period of time as

determined by the attending

veterinarian.

(d) Individual animal medical records

must be kept and made available for

APHIS inspection. These medical

records must include at least the

following information:

(1) Animal identification/name, a

physical description, including any

identifying markings, scars, etc., age,

and sex; and

(2) Physical examination information,

including but not limited to length,

weight, physical examination results by

body system, identification of all

medical and physical problems with

proposed plan of action, all diagnostic

test results, and documentation of

treatment.

(e) A copy of the individual animal

medical record must accompany any

marine mammal upon its transfer to

another facility, including contract or

satellite facilities.

(f) All marine mammals must be

visually examined by the attending

veterinarian at least semiannually and

must be physically examined under the

supervision of and when determined to

be necessary by the attending

veterinarian. All cetaceans and sirenians

must be physically examined by the

attending veterinarian at least annually,

unless APHIS grants an exception from

this requirement based on

considerations related to the health and

safety of the cetacean or sirenian. These

examinations must include, but are not

limited to, a hands-on physical

examination, hematology and blood

chemistry, and other diagnostic tests as

determined by the attending

veterinarian.

(g)(1) A complete necropsy, including

histopathology samples, microbiological

cultures, and other testing as

appropriate, must be conducted by or

under the supervision of the attending

veterinarian on all marine mammals

that die in captivity. A preliminary

necropsy report must be prepared by the

veterinarian listing all pathologic

lesions observed. The final necropsy

report must include all gross and

histopathological findings, the results of

all laboratory tests performed, and a

pathological diagnosis.

(2) Necropsy records will be

maintained at the marine mammal’s

home facility and at the facility at which

it died, if different, for a period of 3

years and must be presented to APHIS

inspectors when requested.

9. Section 3.112 is revised to read as

follows:

§ 3.112 Consignments to carriers and

intermediate handlers.

(a) Carriers and intermediate handlers

shall not accept any marine mammal

that is presented by any dealer, research

facility, exhibitor, operator of an auction

sale, or other person, or any department,

agency, or instrumentality of the United

States or any State or local government

for shipment, in commerce, more than

4 hours prior to the scheduled departure

of the primary conveyance on which it

is to be transported, and that is not

accompanied by a health certificate

signed by the attending veterinarian

stating that the animal was examined

within the prior 10 days and found to

be in acceptable health for transport:

Provided, however, That the carrier or

intermediate handler and any dealer,

research facility, exhibitor, operator of

an auction sale, or other person, or any

department, agency, or instrumentality

of the United States or any State or local

government may mutually agree to

extend the time of acceptance to not

more than 6 hours if specific prior

scheduling of the animal shipment to

destination has been made.

(b) Any carrier or intermediate

handler shall only accept for

transportation or transport, in

commerce, any marine mammal in a

primary transport enclosure that

conforms to the requirements in § 3.113

of this subpart: Provided, however, That

any carrier or intermediate handler may

accept for transportation or transport, in

commerce, any marine mammal

consigned by any department, agency,

or instrumentality of the United States

having laboratory animal facilities or

exhibiting animals or any licensed or

registered dealer, research facility,

exhibitor, or operator of an auction sale

if the consignor furnishes to the carrier

or intermediate handler a certificate,

signed by the consignor, stating that the

primary transport enclosure complies

with § 3.113 of this subpart, unless such

primary transport enclosure is obviously

defective or damaged and it is apparent

that it cannot reasonably be expected to

contain the marine mammal without

causing suffering or injury to the marine

mammal. A copy of any such certificate

must accompany the shipment to

destination. The certificate must include

at least the following information:

(1) Name and address of the

consignor;

(2) The number, age, and sex of

animals in the primary transport

enclosure(s);

(3) A certifying statement (e.g., ‘‘I

hereby certify that the—(number)

primary transport enclosure(s) that are

used to transport the animal(s) in this

shipment complies (comply) with

USDA standards for primary transport

enclosures (9 CFR part 3).’’); and

(4) The signature of the consignor,

and date.

(c) Carriers or intermediate handlers

whose facilities fail to maintain a

temperature within the range of 7.2 °C

(45 °F) to 23.9 °C (75 °F) allowed by

§ 3.117 of this subpart may accept for

transportation or transport, in

commerce, any marine mammal

consigned by any department, agency,

or instrumentality of the United States

or of any State or local government, or

by any person (including any licensee or

registrant under the Act, as well as any

private individual) if the consignor

furnishes to the carrier or intermediate

handler a certificate executed by the

attending veterinarian on a specified

date that is not more than 10 days prior

to delivery of the animal for

transportation in commerce, stating that

the marine mammal is acclimated to a

specific air temperature range lower or

higher than those prescribed in §§ 3.117

and 3.118. A copy of the certificate must

accompany the shipment to destination.

The certificate must include at least the

following information:

(1) Name and address of the

consignor;

(2) The number, age, and sex of

animals in the shipment;

(3) A certifying statement (e.g., ‘‘I

hereby certify that the animal(s) in this

shipment is (are), to the best of my

knowledge, acclimated to an air

temperature range of ———’’); and

(4) The signature of the attending

veterinarian and the date.

(d) Carriers and intermediate handlers

must attempt to notify the consignee

(receiving party) at least once in every

6-hour period following the arrival of

any marine mammals at the animal

holding area of the terminal cargo

facility. The time, date, and method of

each attempted notification and the

final notification to the consignee and

the name of the person notifying the

consignee must be recorded on the copy

of the shipping document retained by

the carrier or intermediate handler and

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 255

on a copy of the shipping document

accompanying the animal shipment.

10. Section 3.113 is revised to read as

follows:

§ 3.113 Primary enclosures used to

transport marine mammals.

No dealer, research facility, exhibitor,

or operator of an auction sale shall offer

for transportation or transport, in

commerce, any marine mammal in a

primary enclosure that does not

conform to the following requirements:

(a) Primary enclosures that are used to

transport marine mammals other than

cetaceans and sirenians must:

(1) Be constructed from materials of

sufficient structural strength to contain

the marine mammals;

(2) Be constructed from material that

is durable, nontoxic, and cannot be

chewed and/or swallowed;

(3) Be able to withstand the normal

rigors of transportation;

(4) Have interiors that are free from

any protrusions or hazardous openings

that could be injurious to the marine

mammals contained within;

(5) Be constructed so that no parts of

the contained marine mammals are

exposed to the outside of the enclosures

in any way that may cause injury to the

animals or to persons who are nearby or

who handle the enclosures;

(6) Have openings that provide access

into the enclosures and are secured with

locking devices of a type that cannot be

accidentally opened;

(7) Have such openings located in a

manner that makes them easily

accessible at all times for emergency

removal and potential treatment of any

live marine mammal contained within;

(8) Have air inlets at heights that will

provide cross ventilation at all levels

(particularly when the marine mammals

are in a prone position), are located on

all four sides of the enclosures, and

cover not less than 20 percent of the

total surface area of each side of the

enclosures;

(9) Have projecting rims or other

devices placed on any ends and sides of

the enclosures that have ventilation

openings so that there is a minimum air

circulation space of 7.6 centimeters (3.0

inches) between the enclosures and any

adjacent cargo or conveyance wall;

(10) Be constructed so as to provide

sufficient air circulation space to

maintain the temperature limits set forth

in this subpart; and

(11) Be equipped with adequate

handholds or other devices on the

exterior of the enclosures to enable them

to be lifted without unnecessary tilting

and to ensure that the persons handling

the enclosures will not come in contact

with any marine mammal contained

inside.

(b) Straps, slings, harnesses, or other

devices used for body support or

restraint, when transporting marine

mammals such as cetaceans and

sirenians must:

(1) Be designed so as not to prevent

access to the marine mammals by

attendants for the purpose of

administering in-transit care;

(2) Be equipped with special padding

to prevent trauma or injury at critical

weight pressure points on the body of

the marine mammals; and

(3) Be capable of keeping the animals

from thrashing about and causing injury

to themselves or their attendants, and

yet be adequately designed so as not to

cause injury to the animals.

(c) Primary enclosures used to

transport marine mammals must be

large enough to assure that:

(1) In the case of pinnipeds, polar

bears, and sea otters, each animal has

sufficient space to turn about freely in

a stance whereby all four feet or flippers

are on the floor and the animal can sit

in an upright position and lie in a

natural position;

(2) In the case of cetaceans and

sirenians, each animal has sufficient

space for support of its body in slings,

harnesses, or other supporting devices,

if used (as prescribed in paragraph (b)

of this section), without causing injury

to such cetaceans or sirenians due to

contact with the primary transport

enclosure: Provided, however, That

animals may be restricted in their

movements according to professionally

accepted standards when such freedom

of movement would constitute a danger

to the animals, their handlers, or other

persons.

(d) Marine mammals transported in

the same primary enclosure must be of

the same species and maintained in

compatible groups. Marine mammals

that have not reached puberty may not

be transported in the same primary

enclosure with adult marine mammals

other than their dams. Socially

dependent animals (e.g., sibling, dam,

and other members of a family group)

must be allowed visual and olfactory

contact whenever reasonable. Female

marine mammals may not be

transported in the same primary

enclosure with any mature male marine

mammals.

(e) Primary enclosures used to

transport marine mammals as provided

in this section must have solid bottoms

to prevent leakage in shipment and

must be cleaned and sanitized in a

manner prescribed in § 3.107 of this

subpart, if previously used. Within the

primary enclosures used to transport

marine mammals, the animals will be

maintained on sturdy, rigid, solid floors

with adequate drainage.

(f) Primary enclosures used to

transport marine mammals, except

where such primary enclosures are

permanently affixed in the animal cargo

space of the primary conveyance, must

be clearly marked on top (when present)

and on at least one side, or on all sides

whenever possible, with the words

‘‘Live Animal’’ or ‘‘Wild Animal’’ in

letters not less than 2.5 centimeters (1

inch) in height, and with arrows or

other markings to indicate the correct

upright position of the container.

(g) Documents accompanying the

shipment must be attached in an easily

accessible manner to the outside of a

primary enclosure that is part of such

shipment or be in the possession of the

shipping attendant.

(h) When a primary transport

enclosure is permanently affixed within

the animal cargo space of the primary

conveyance so that the front opening is

the only source of ventilation for such

primary enclosure, the front opening

must open directly to the outside or to

an unobstructed aisle or passageway

within the primary conveyance. Such

front ventilation opening must be at

least 90 percent of the total surface area

of the front wall of the primary

enclosure and covered with bars, wire

mesh, or smooth expanded metal.

11. Section 3.114 is revised to read as

follows:

§ 3.114 Primary conveyances (motor

vehicle, rail, air and marine).

(a) The animal cargo space of primary

conveyances used in transporting live

marine mammals must be constructed

in a manner that will protect the health

and assure the safety and comfort of the

marine mammals contained within at all

times. All primary conveyances used

must be sufficiently temperaturecontrolled to provide an appropriate

environmental temperature for the

species involved and to provide for the

safety and comfort of the marine

mammal, or other appropriate

safeguards (such as, but not limited to,

cooling the animal with cold water,

adding ice to water-filled enclosures,

and use of fans) must be employed to

maintain the animal at an appropriate

temperature.

(b) The animal cargo space must be

constructed and maintained in a manner

that will prevent the ingress of engine

exhaust fumes and gases in excess of

that ordinarily contained in the

passenger compartments.

(c) Marine mammals must only be

placed in animal cargo spaces that have

a supply of air sufficient for each live

256 Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations

animal contained within. Primary

transport enclosures must be positioned

in the animal cargo spaces of primary

conveyances in such a manner that each

marine mammal contained within will

have access to sufficient air.

(d) Primary transport enclosures must

be positioned in primary conveyances

in such a manner that, in an emergency,

the live marine mammals can be

removed from the conveyances as soon

as possible.

(e) The interiors of animal cargo

spaces in primary conveyances must be

kept clean.

(f) Live marine mammals must not

knowingly be transported with any

material, substance, or device that may

be injurious to the health and well-being

of the marine mammals unless proper

precaution is taken to prevent such

injury.

(g) Adequate lighting must be

available for marine mammal attendants

to properly inspect the animals at any

time. If such lighting is not provided by

the carrier, provisions must be made by

the shipper to supply such lighting.

12. Section 3.115 is revised to read as

follows:

§ 3.115 Food and drinking water

requirements.

(a) Those marine mammals that

require drinking water must be offered

potable water within 4 hours of being

placed in the primary transport

enclosure for transport in commerce.

Marine mammals must be provided

water as often as necessary and

appropriate for the species involved to

prevent dehydration, which would

jeopardize the good health and wellbeing of the animals.

(b) Marine mammals being

transported in commerce must be

offered food as often as necessary and

appropriate for the species involved or

as determined by the attending

veterinarian.

13. Section 3.116 is revised to read as

follows:

§ 3.116 Care in transit.

(a) A licensed veterinarian, employee,

and/or attendant of the shipper or

receiver of any marine mammal being

transported, in commerce,

knowledgeable and experienced in the

area of marine mammal care and

transport, must accompany all marine

mammals during periods of

transportation to provide for their good

health and well-being, to observe such

marine mammals to determine whether

they need veterinary care, and to obtain

any needed veterinary care as soon as

possible. Any transport of greater than

2 hours duration requires a transport

plan approved by the attending

veterinarian that will include the

specification of the necessity of the

presence of a veterinarian during the

transport. If the attending veterinarian

does not accompany the animal,

communication with the veterinarian

must be maintained in accordance with

§ § 2.33(b)(3) and 2.40(b)(3) of this

chapter.

(b) The following marine mammals

may be transported in commerce only

when the transport of such marine

mammals has been determined to be

appropriate by the attending

veterinarian:

(1) A pregnant animal in the last half

of pregnancy;

(2) A dependent unweaned young

animal;

(3) A nursing mother with young; or

(4) An animal with a medical

condition requiring veterinary care, that

would be compromised by transport.

The attending veterinarian must note on

the accompanying health certificate the

existence of any of the above conditions.

The attending veterinarian must also

determine whether a veterinarian

should accompany such marine

mammals during transport.

(c) Carriers must inform the crew as

to the presence of the marine mammals

on board the craft, inform the individual

accompanying the marine mammals of

any unexpected delays as soon as they

become known, and accommodate,

except as precluded by safety

considerations, requests by the shipper

or his agent to provide access to the

animals or take other necessary actions

for the welfare of the animals if a delay

occurs.

(d) A sufficient number of employees

or attendants of the shipper or receiver

of cetaceans or sirenians being

transported, in commerce, must provide

for such cetaceans and sirenians during

periods of transport by:

(1) Keeping the skin moist or

preventing the drying of the skin by

such methods as intermittent spraying

of water or application of a nontoxic

emollient;

(2) Assuring that the pectoral flippers

are allowed freedom of movement at all

times;

(3) Making adjustments in the

position of the marine mammals when

necessary to prevent necrosis of the skin

at weight pressure points;

(4) Keeping the animal cooled and/or

warmed sufficiently to prevent

overheating, hypothermia, or

temperature related stress; and

(5) Calming the marine mammals to

avoid struggling, thrashing, and other

unnecessary activity that may cause

overheating or physical trauma.

(e) A sufficient number of employees

or attendants of the shipper or receiver

of pinnipeds or polar bears being

transported, in commerce, must provide

for such pinnipeds and polar bears

during periods of transport by:

(1) Keeping the animal cooled and/or

warmed sufficiently to prevent

overheating, hypothermia, or

temperature related stress; and

(2) Calming the marine mammals to

avoid struggling, thrashing, and other

unnecessary activity that may cause

overheating or physical trauma.

(f) Sea otters must be transported in

primary enclosures that contain false

floors through which water and waste

freely pass to keep the interior of the

transport unit free from waste materials.

Moisture must be provided by water

sprayers or ice during transport.

(g) Marine mammals may be removed

from their primary transport enclosures

only by the attendants or other persons

capable of handling such mammals

safely.

14. Section 3.117 is revised to read as

follows:

§ 3.117 Terminal facilities.

Carriers and intermediate handlers

must not commingle marine mammal

shipments with inanimate cargo. All

animal holding areas of a terminal

facility of any carrier or intermediate

handler where marine mammal

shipments are maintained must be

cleaned and sanitized in a manner

prescribed in § 3.107 of this subpart to

minimize health and disease hazards.

An effective program for the control of

insects, ectoparasites, and avian and

mammalian pests must be established

and maintained for all animal holding

areas. Any animal holding area

containing marine mammals must be

ventilated with fresh air or air circulated

by means of fans, blowers, or an air

conditioning system so as to minimize

drafts, odors, and moisture

condensation. Auxiliary ventilation,

such as exhaust fans and vents or fans

or blowers or air conditioning must be

used for any animal holding area

containing marine mammals when the

air temperature within such animal

holding area is 23.9 °C (75 °F) or higher.

The air temperature around any marine

mammal in any animal holding area

must not be allowed to fall below 7.2 °C

(45 °F). The air temperature around any

polar bear must not be allowed to

exceed 29.5 °C (85 °F) at any time and

no polar bear may be subjected to

surrounding air temperatures that

exceed 23.9 °C (75 °F) for more than 4

hours at any time. The ambient

temperature must be measured in the

animal holding area upon arrival of the

Federal Register / Vol. 66, No. 2 / Wednesday, January 3, 2001 / Rules and Regulations 257

1The GLB Act also allows financial holding

companies to seek Board approval to engage in any

activity that the Board determines both to be

complementary to a financial activity and not to

pose a substantial risk to the safety and soundness

of depository institutions or the financial system

generally. 12 U.S.C. 1843(k)(1)(B).

shipment by the attendant, carrier, or

intermediate handler. The ambient

temperature must be measured halfway

up the outside of the primary transport

enclosure at a distance from the external

wall of the primary transport enclosure

not to exceed 0.91 meters (3 feet).

15. Section 3.118 is revised to read as

follows:

§ 3.118 Handling.

(a) Carriers and intermediate handlers

moving marine mammals from the

animal holding area of the terminal

facility to the primary conveyance or

from the primary conveyance to the

animal holding area of the terminal

facility must provide the following:

(1) Movement of animals as

expeditiously as possible.

(2) Shelter from overheating and

direct sunlight. When sunlight is likely

to cause overheating, sunburn, or

discomfort, sufficient shade must be

provided to protect the marine

mammals. Marine mammals must not be

subjected to surrounding air

temperatures that exceed 23.9 °C (75 °F)

unless accompanied by an acclimation

certificate in accordance with § 3.112 of

this subpart. The temperature must be

measured and read within or

immediately adjacent to the primary

transport enclosure.

(3) Shelter from cold weather. Marine

mammals must be provided with

species appropriate protection against

cold weather, and such marine

mammals must not be subjected to

surrounding air temperatures that fall

below 7.2 °C (45 °F) unless

accompanied by an acclimation

certificate in accordance with § 3.112 of

this subpart. The temperature must be

measured and read within or

immediately adjacent to the primary

transport enclosure.

(b) Care must be exercised to avoid

handling of the primary transport

enclosure in a manner that may cause

physical harm or distress to the marine

mammal contained within.

(c) Enclosures used to transport any

marine mammal must not be tossed,

dropped, or needlessly tilted and must

not be stacked unless properly secured.

Done in Washington, DC, this 26th day of

December 2000.

Craig A. Reed,

Administrator, Animal and Plant Health

Inspection Service.

[FR Doc. 01–135 Filed 1–2–01; 8:45 am]

BILLING CODE 3410–34–P

FEDERAL RESERVE SYSTEM

12 CFR Part 225

[Regulation Y; Docket No. R–1094]

Bank Holding Companies and Change

in Bank Control

DEPARTMENT OF THE TREASURY

Office of the Under Secretary for

Domestic Finance

12 CFR Part 1501

RIN 1505–AA85

Financial Subsidiaries

AGENCY: Board of Governors of the

Federal Reserve System and Department

of the Treasury.

ACTION: Joint interim rule with request

for public comments.

SUMMARY: The Board of Governors of the

Federal Reserve System and the

Secretary of the Treasury (the Agencies)

are soliciting comment on interim rules

that would implement section 4(k)(5) of

the Bank Holding Company Act and

section 5136A(b)(3) of the Revised

Statutes, as enacted by the GrammLeach-Bliley Act. The interim rules find

three general types of activities to be

financial in nature, and create a

mechanism by which financial holding

companies, financial subsidiaries of

national banks, or others may request

that the Board or the Secretary,

respectively, define particular activities

within one of the three categories.

The Board and the Secretary solicit

comments on all aspects of the interim

rule and will modify the final rule as

appropriate in response to the

comments received.

DATES: The interim rule is effective on

January 2, 2001. Comments must be

received by February 2, 2001.

ADDRESSES: Comments should refer to

Docket No. R–1094, and may be mailed

to Ms. Jennifer J. Johnson, Secretary,

Board of Governors of the Federal

Reserve System, 20th Street and

Constitution Avenue, NW., Washington,

DC 20551 or mailed electronically to

regs.comments@federalreserve.gov and

to Three Financial Activities Regulation,

Office of Financial Institution Policy,

U.S. Department of the Treasury, 1500

Pennsylvania Avenue, NW., Room SC

37, Washington, DC 20220 (or mailed

electronically to

financial.institutions@do.treas.gov).

Comments addressed to Ms. Johnson

also may be delivered to Room B–2222

of the Eccles Building between 8:45 a.m.

and 5:15 p.m. weekdays or delivered to

the guard station in the Eccles Building

Courtyard on 20th Street, NW. (between

Constitution Avenue and C Street, NW.)

at any time. All comments received at

the above address will be available for

inspection and copying by any member

of the public in the Freedom of

Information Office, Room MP–500 of the

Martin Building, between 9:00 a.m. and

5:00 p.m. weekdays, except as provided

in § 261.14 of the Board’s Rules

Regarding the Availability of

Information (12 CFR 261.14). Comments

addressed to the Treasury Department

may also be delivered to the Treasury

Department mail room between the

hours of 8:45 a.m. and 5:15 p.m. at the

15th Street entrance to the Treasury

Building.

FOR FURTHER INFORMATION CONTACT:

Board: Scott G. Alvarez, Associate

General Counsel (202/452–3583), or

Andrew S. Baer, Senior Attorney (202/

452–2246), Legal Division. Users of

Telecommunication Device for Deaf

(TTD) only, contact Janice Simms at

(202) 872–4984.

Department of the Treasury: Gerry

Hughes, Senior Financial Analyst (202/

622–2740); Roberta K. McInerney,

Assistant General Counsel (Banking and

Finance) (202/622–0480); or Gary W.

Sutton, Senior Banking Counsel (202/

622–0480).

SUPPLEMENTARY INFORMATION:

Background

These interim rules implement

section 4(k)(5) of the Bank Holding

Company Act (‘‘BHC Act’’) (12 U.S.C.

1843(k)(5)), which was added to the

BHC Act by section 103 of the GrammLeach-Bliley Act (Pub. L. 106–102, 113

Stat. 1338 (1999)) (the ‘‘GLB Act’’), and

section 5136A(b)(3) of the Revised

Statutes (12 U.S.C. 24a(b)(3)) (‘‘section

5136A’’), as enacted by section 121(a) of

the GLB Act. The GLB Act amended the

BHC Act to allow bank holding

companies and foreign banks that

qualify as financial holding companies

to engage in a broad range of activities

that are defined by the GLB Act to be

financial in nature or incidental to a

financial activity, or that the Board, in

consultation with the Secretary of the

Treasury, determines to be financial in

nature or incidental to a financial

activity.1 Bank holding companies that

do not qualify as financial holding

companies are limited to engaging in