[Federal Register Volume 66, Number 2 (Wednesday, January 3, 2001)]
[Rules and Regulations]
[Pages 239-257]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 01-135]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Part 3
[Docket No. 93-076-15]
RIN 0579-AA59
Animal Welfare; Marine Mammals
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We are amending the Animal Welfare Act regulations concerning
the humane handling, care, treatment, and transportation of marine
mammals in captivity. These regulations were developed by the Marine
Mammal Negotiated Rulemaking Advisory Committee and are necessary to
ensure that the minimum standards for the humane handling, care,
treatment, and transportation of marine mammals in captivity are based
on current general, industry, and scientific knowledge and experience.
EFFECTIVE DATE: February 2, 2001.
FOR FURTHER INFORMATION CONTACT: Dr. Barbara Kohn, Senior Staff
Veterinarian, Animal Care, APHIS, 4700 River Road Unit 84, Riverdale,
MD 20737-1234; (301) 734-7833.
SUPPLEMENTARY INFORMATION:
Background
The Animal Welfare Act (the Act) (7 U.S.C. 2131 et seq., enacted in
1966 and amended in 1970, 1976, 1985, and 1990) authorizes the
Secretary of Agriculture to promulgate standards and other requirements
governing the humane handling, care, treatment, and transportation of
certain animals by dealers, research facilities, exhibitors, carriers,
and intermediate handlers. Regulations established under the Act are
contained in 9 CFR parts 1, 2, and 3.
The Animal and Plant Health Inspection Service (APHIS) of the
United States Department of Agriculture established regulations under
the Act in 1979 for the humane handling, care, treatment, and
transportation of marine mammals used for research or exhibition
purposes. These standards, contained in 9 CFR part 3, subpart E
(referred to below as the regulations), were amended in 1984. During
the 14 years since the standards were amended, advances have been made,
new information has been developed, and new concepts have been
implemented with regard to the handling, care, treatment, and
[[Page 240]]
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
[[Page 242]]
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
[[Page 243]]
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.
[[Page 245]]
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
[[Page 246]]
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
[[Page 247]]
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
[[Page 248]]
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
[[Page 249]]
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
[[Page 256]]
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