[Federal Register Volume 66, Number 2 (Wednesday, January 3, 2001)]
[Rules and Regulations]
[Pages 239-257]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-135]


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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.

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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

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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: Sec. Sec. 3.101, 
3.104(a), 3.105, 3.107 through 3.110, and 3.112 through 3.118. Sections 
3.101 and 3.104(a) contain facility and operating standards. Section 
3.101 contains general requirements for facilities housing marine 
mammals, including construction, water and power supply, drainage, 
storage, waste disposal, and washroom facilities; Sec. 3.104(a) 
contains general space requirements for primary enclosures. Sections 
3.105 and 3.107 through 3.110 concern animal health and husbandry. 
Section 3.105 contains feeding requirements; Sec. 3.107 concerns 
sanitation and pest control; Sec. 3.108 sets standards for employees 
and attendants; Sec. 3.109 concerns separation of marine mammals; and 
Sec. 3.110 concerns veterinary care. Sections 3.112 through 3.118 
concern transportation of marine mammals. Section 3.112 concerns 
consignment of marine mammals to carriers and intermediate handlers; 
Sec. 3.113 contains standards for primary enclosures used to transport 
marine mammals; Sec. 3.114 contains standards for primary conveyances 
used to transport marine mammals; Sec. 3.115 contains requirements for 
provision of food and water during transport; Sec. 3.116 concerns the 
care of marine mammals by employees or attendants during transport; 
Sec. 3.117 concerns terminal facilities; and Sec. 3.118 contains 
requirements for handling marine mammals during transport.
    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 Sec. 3.110(d) 
concerning maintenance of necropsy records. The proposed rule revised 
this provision and placed it in Sec. 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 Sec. 3.101 contains general requirements for indoor and 
outdoor facilities.
    Paragraph (a)(1) of proposed Sec. 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 Sec. 3.101(a)(1) is intended to address this problem. In 
addition, proposed Sec. 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

[[Page 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 Sec. 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 Sec. 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 
Sec. 3.101(a)(3) because the same requirement appears in proposed 
Sec. 3.107. While proposed Sec. 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 Sec. 3.101 exempts facilities that 
house marine mammals in natural water areas (tidal basins, bays, 
estuaries) from the drainage requirements in Sec. 3.101(c)(1). 
Paragraph (c) of proposed Sec. 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 Sec. 3.101(a)(4) exempt from the drainage 
requirements in proposed Sec. 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 Sec. 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 Sec. 3.101 also requires that contingency 
plans include animal evacuation plans in the event of

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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 reintroduction-into-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 Sec. 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 Sec. 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 Sec. 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 Sec. 3.101(d), 
but are revising the requirement in Sec. 3.107(b) to make the 
Committee's intent clearer. As revised, the sentence cited above from 
Sec. 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 Sec. 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

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concerns food storage and not transfer of food for immediate feeding.

Section 3.104  Space Requirements

    Proposed Sec. 3.104 concerns space requirements for primary 
enclosures.
    Paragraph (a) of proposed Sec. 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 Sec. 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 
Sec. 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 Sec. 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 Sec. 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 Sec. 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.

[[Page 244]]

Section 3.105  Feeding

    Proposed Sec. 3.105 contains feeding requirements, including 
provisions to ensure food is nutritious and safely handled.
    Paragraph (a) of proposed Sec. 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 Sec. 3.105 includes the requirement that 
food receptacles be placed so as to minimize contamination of the food. 
Paragraph (d) of proposed Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 3.107 concerns sanitation with regard to primary 
enclosures, food preparation, housekeeping, and pest control.
    Paragraph (c) of proposed Sec. 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 Sec. 3.108 contains standards for employees and attendants 
that handle marine mammals.
    Paragraph (b) of proposed Sec. 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 Sec. 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 Sec. 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 
Sec. 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 Sec. 3.109 concerns social housing and separation of 
marine mammals.

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    Proposed Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 3.110 contains minimum standards of veterinary care 
for marine mammals.
    Paragraph (a) of proposed Sec. 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 Sec. 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 Sec. 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 
Sec. 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 
Sec. 3.110(b), the space requirements for isolation of

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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 Sec. 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 Sec. 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 
Sec. 3.110, giving APHIS inspectors opportunities to question 
veterinarians' protocols. In particular, one commenter cited the 
requirement in proposed Sec. 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 Sec. 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 Sec. 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

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making the appropriate change in Sec. 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 Sec. 3.112 contains requirements for carriers and 
intermediate handlers involved in the transportation of marine mammals.
    Paragraph (c) of proposed Sec. 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 Sec. Sec. 3.117 and 3.118, the prescribed 
temperature range is between 7.2  deg.C and 23.9  deg.C or 45  deg.F 
and 75  deg.F.
    Two commenters were concerned about the maximum temperature in the 
prescribed range (75  deg.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  deg.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  deg.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 Sec. 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 Sec. 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 
Sec. 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 Sec. 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 Sec. 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 Sec. 3.113 contains standards for primary enclosures used 
to transport marine mammals.
    Paragraph (b) of proposed Sec. 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 Sec. 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 Sec. Sec. 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 Sec. 3.113(c)(2) and in Sec. 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 Sec. 3.116 contains requirements for the care of marine 
mammals in transit.
    Paragraph (a) of proposed Sec. 3.116 includes the requirement that, 
if the attending veterinarian does not accompany the marine mammal 
during transit, communication with the

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attending veterinarian must be maintained in accordance with 9 CFR part 
2, Sec. 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 Sec. 2.40 requires, among 
other things, that there be daily observations of all animals to assess 
their health and well-being and that there be a mechanism of direct and 
frequent communication so that timely and accurate information on 
problems of animal health, behavior, and well-being can be conveyed to 
the attending veterinarian.
    One commenter said that we should also reference the requirements 
of 9 CFR part 2, Sec. 2.33(b)(3), in proposed Sec. 3.116(a). The 
commenter pointed out that Sec. 2.40(b)(3) concerns only marine mammals 
maintained by dealers and exhibitors, while Sec. 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 
Sec. 2.33(b)(3) for this reason. The commenter's suggestion is, 
however, appropriate, and we are adding the reference to 
Sec. 2.33(b)(3) to paragraph (a) of proposed Sec. 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 Sec. Sec. 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-the-
dolphin programs. Two other commenters were particularly concerned that 
the space requirements in Sec. 3.104 (b) and (c) and the water quality 
requirements in Sec. 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 well-
being 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-the-dolphin 
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

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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 Sec. 3.104 of the regulations.) The Atlantic bottlenose dolphin, 
harbor seal, California sea lion, and polar bear are the predominant 
varieties of captive marine mammals, accounting for approximately 74 
percent of the total number of captive marine mammals. The second 
largest group includes the West Indian manatee, walrus, common dolphin, 
Pacific bottlenose dolphin, and Atlantic white-sided dolphin. These 
represented 13.3 percent of the total number of captive marine mammals 
in FY 1997.
---------------------------------------------------------------------------

    \1\ Arboreta and botanical or zoological gardens with less than 
$5 million in annual revenues are classified as being small 
according to the Small Business Administration guide for defining 
industries for size standards. Source: 13 CFR 121.201, SIC 0272, p. 
354.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \2\ Much of the admission fee information was obtained from 
Internet home pages of aquariums and botanical and zoological 
gardens. Data obtained from the home pages were checked with 
recorded messages of many of the facilities.
---------------------------------------------------------------------------

    Other than admission charges, these facilities often generate 
income by renting space for large group functions such as family 
reunions, wedding receptions, and corporate parties. City-and State-
owned facilities finance their budgets through annual appropriations, 
membership sales, concessions, grants, and donations. The principal 
sources of income for privately owned, nonprofit establishments include 
food service, funding drives, membership dues, gift shops, grants, and 
donations. Many facilities encourage membership through yearly passes 
that also provide members of one facility with access to other similar 
facilities. Some zoos offer guided excursions to other parts of the 
world. A portion of the generated income is often directed to 
conservation efforts.
    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

[[Page 250]]

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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 
Sec. 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 Sec. 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 Sec. 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.

[[Page 251]]



Table A.--Additional Costs of Recordkeeping and Training Requirements for All Regulated Marine Mammal Facilities
                                                    Combined
                                                 [Time in hours]
----------------------------------------------------------------------------------------------------------------
                                                 Nonprofessional   Professional
                    Section                        staff  ($15/    staff  ($20/    Veterinarian   Total value in
                                                    hour) \1\        hour) \2\    ($25/hour) \3\      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:


Sec. 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 Sec. 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 well-being 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

[[Page 252]]

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 Sec. 3.104, paragraph (a) is revised to read as follows:


Sec. 3.104  Space requirements.

    (a) General. Marine mammals must be housed in primary enclosures 
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 Sec. 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:


Sec. 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  deg.C (0  deg.F). The length of time food is stored 
and the method of storage, the thawing of frozen food, and the 
maintenance of thawed food 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

[[Page 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:


Sec. 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 
Sec. 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  deg.C, 180  deg.F, 
or higher) and soap or detergent in a mechanical dishwasher, or by 
washing all soiled surfaces with a detergent solution followed by a 
safe and effective disinfectant, or by cleaning all soiled surfaces 
with live steam. Substances such as cleansing and sanitizing agents, 
pesticides, and other potentially toxic agents must be stored in 
properly labeled containers 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:


Sec. 3.108  Employees or attendants.

    (a) A sufficient number of adequately trained employees or 
attendants, responsible to management and working in concert with the 
attending veterinarian, 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:


Sec. 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 
Sec. 3.104.

    8. Section 3.110 is revised to read as follows:


Sec. 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 Sec. 3.104. Holding 
facilities used only for medical treatment and medical training need 
not meet the minimum space requirements as outlined in Sec. 3.104. 
Holding of a marine mammal in a medical treatment or medical training 
enclosure 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

[[Page 254]]

contact and to minimize the risk of potential airborne and water cross-
contamination 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:


Sec. 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 
Sec. 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 Sec. 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  deg.C (45  deg.F) to 
23.9  deg.C (75  deg.F) allowed by Sec. 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 Secs. 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

[[Page 255]]

on a copy of the shipping document accompanying the animal shipment.

    10. Section 3.113 is revised to read as follows:


Sec. 3.113  Primary enclosures used to transport marine mammals.

    No dealer, research facility, exhibitor, or operator of an auction 
sale shall offer for transportation or transport, in commerce, any 
marine mammal in a primary enclosure 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 Sec. 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:


Sec. 3.114  Primary conveyances (motor vehicle, rail, air and marine).

    (a) The animal cargo space of primary conveyances used in 
transporting live marine mammals 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 temperature-controlled 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

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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:


Sec. 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 well-being 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:


Sec. 3.116  Care in transit.

    (a) A licensed veterinarian, employee, and/or attendant of the 
shipper or receiver of any marine mammal being transported, in 
commerce, knowledgeable and experienced in the area of marine mammal 
care and transport, 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 Sec. Sec. 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:


Sec. 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 Sec. 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  deg.C (75  deg.F) or higher. The air temperature around any 
marine mammal in any animal holding area must not be allowed to fall 
below 7.2  deg.C (45  deg.F). The air temperature around any polar bear 
must not be allowed to exceed 29.5  deg.C (85  deg.F) at any time and 
no polar bear may be subjected to surrounding air temperatures that 
exceed 23.9  deg.C (75  deg.F) for more than 4 hours at any time. The 
ambient temperature must be measured in the animal holding area upon 
arrival of the

[[Page 257]]

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:


Sec. 3.118  Handling.

    (a) Carriers and intermediate handlers moving marine mammals from 
the animal holding area of the terminal facility to the primary 
conveyance or from the primary conveyance to the animal holding area of 
the terminal facility 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  deg.C 
(75  deg.F) unless accompanied by an acclimation certificate in 
accordance with Sec. 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  deg.C (45  deg.F) unless accompanied by an acclimation 
certificate in accordance with Sec. 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