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 transportation of marine mammals in captivity.

On July 23, 1993, we published in the Federal Register (58 FR 39458, Docket No. 93-076-1) an advance notice of proposed rulemaking that solicited comments on appropriate revisions or additions to the standards for the humane handling, care, treatment, and transportation of marine mammals used for research or exhibition. The comments we received supported our intent to revise the regulations and suggested it would be highly desirable to involve all interested parties in developing appropriate regulations. We determined that consensus among interested parties was attainable and that we should proceed with negotiated rulemaking.

On May 22, 1995, we published in the Federal Register (60 FR 27049-27051, Docket No. 93-076-3) a notice of intent to establish an advisory committee to advise the Department on how to revise the regulations. The notice included a list of groups tentatively identified by the Department as potential participants on the advisory committee. A committee, called the Marine Mammal Negotiated Rulemaking Advisory Committee (the Committee), was subsequently established in accordance with the Federal Advisory Committee Act (5 U.S.C. App. I). It included all of the groups that were identified in the notice as potential participants, with the exception of the Society for Marine Mammology, which was unable to participate.

The following organizations were included on the Committee as voting members:

American Zoo and Aquarium Association

Alliance of Marine Mammal Parks and Aquariums

International Association of Amusement Parks and Attractions

Marine Mammal Coalition

United States Navy

Center for Marine Conservation

Humane Society of the United States

Animal Welfare Institute, representing a broad coalition of animal concern groups

American Association of Zoo Veterinarians

International Association for Aquatic Animal Medicine

International Marine Animal Trainers Association

Animal and Plant Health Inspection Service

The following organizations or individuals were included on the Committee as observers or consultants. These individuals did not vote on the final consensus reached by the Committee:

Marine Mammal Commission

National Marine Fisheries Service

Fish and Wildlife Service

Dr. Joseph Geraci, independent consultant to the Committee

The Committee conducted three sessions, on September 25 and 26, 1995, in College Park, MD; on April 1, 2, and 3, 1996, in Riverdale, MD; and on July 8, 9, and 10, 1996, in Riverdale, MD. All meetings were open to the public, with specified times during the meetings established for public participation and comment.

Under the rules governing the negotiated rulemaking process, and in accordance with the organizational protocols established by the Committee, APHIS agreed to publish as a proposed rule any consensus language developed during the meetings unless substantive changes were made as a result of authority exercised by another Federal Government entity. Committee members agreed to refrain from commenting negatively on the consensus-based language in the proposed rule. Consensus language was reached on 13 of the 18 sections that comprise the regulations and on one paragraph in a 14th section: § § 3.101, 3.104(a), 3.105, 3.107 through 3.110, and 3.112 through 3.118. Sections 3.101 and 3.104(a) contain facility and operating standards. Section 3.101 contains general requirements for facilities housing marine mammals, including construction, water and power supply, drainage, storage, waste disposal, and washroom facilities; § 3.104(a) contains general space requirements for primary enclosures. Sections 3.105 and 3.107 through 3.110 concern animal health and husbandry. Section 3.105 contains feeding requirements; § 3.107 concerns sanitation and pest control; § 3.108 sets standards for employees and attendants; § 3.109 concerns separation of marine mammals; and § 3.110 concerns veterinary care. Sections 3.112 through 3.118 concern transportation of marine mammals. Section 3.112 concerns consignment of marine mammals to carriers and intermediate handlers; § 3.113 contains standards for primary enclosures used to transport marine mammals; § 3.114 contains standards for primary conveyances used to transport marine mammals; § 3.115 contains requirements for provision of food and water during transport; § 3.116 concerns the care of marine mammals by employees or attendants during transport; § 3.117 concerns terminal facilities; and § 3.118 contains requirements for handling marine mammals during transport.

On February 23, 1999, we published a proposed rule in the Federal Register (64 FR 8735-8755, Docket No. 93-076-11) that contained the consensus language developed by the Committee for these sections of the regulations. The proposed rule also contained one provision not agreed on by consensus of the Committee: a provision in current § 3.110(d) concerning maintenance of necropsy records. The proposed rule revised this provision and placed it in § 3.110(g)(2). We included it in the proposed rule in order to complete the section.

We solicited comments concerning our proposal for 60 days ending April 26, 1999. We reopened and extended the deadline for comments until May 26, 1999, in a document published in the Federal Register on May 14, 1999 (Docket No. 93-076-14, 64 FR 26330). We received 15 comments by that date. They were from animal welfare organizations, veterinary organizations, and regulated entities that care for marine mammals. Most commenters commended the efforts of the Committee and were supportive of the proposed rule in general. However, all commenters requested changes to specific provisions of the proposal. The comments are discussed below, grouped according to the section of the regulations to which they pertain.

Section 3.101 Facilities, General

Proposed § 3.101 contains general requirements for indoor and outdoor facilities.

Paragraph (a)(1) of proposed § 3.101 includes the requirement that indoor and outdoor housing facilities be constructed to restrict the entrance of unwanted animals. One commenter said that this provision should apply to seagulls at public feeding exhibits because of the risk of disease transmission from seagulls to marine mammals and because the seagulls consume some of the food offered to the marine mammals, making it difficult to assess the marine mammals' nutritional intake.

We are not making any changes in response to this comment. We recognize that birds can present problems at outdoor facilities. The provision in § 3.101(a)(1) is intended to address this problem. In addition, proposed § 3.107(d) requires that a safe and effective program for the control of pests, including avian pests, be established and maintained. Measures to completely eliminate intrusions by seagulls and other birds at outdoor facilities may not always be in the marine mammals' best interests. Mesh or wire cages over outdoor pools restrict physical contact between birds and marine mammals but increase exposure to droppings by providing a roosting spot for the birds directly over pool areas. This could increase the risk of disease transmission. We believe the proposed regulations are adequate to prevent significant or widespread problems regarding seagulls and other pests at marine mammal facilities.

Proposed paragraph (a)(1) also includes the following provision: “Lagoon and similar natural seawater facilities must maintain effective barrier fences, or other appropriate measures, on all sides of the enclosure not contained by dry land, extending above the high tide water level, to fulfill the requirements of this section.” Two commenters suggested that we move the phrase “extending above the high tide water level” to follow “effective barrier fences.” The commenters said this would reinforce the Committee's intent, given our statement in the preamble that the Committee agreed that this requirement is not intended to preclude the temporary lowering or removal of part of the barrier fencing above the water line to accommodate filming or similar actions. We agree, and are revising the sentence to read: “Lagoon and similar natural seawater facilities must maintain effective barrier fences extending above the high tide water level, or other appropriate measures, on all sides of the enclosure not contained by dry land to fulfill the requirements of this section.”

Paragraph (a)(2) of proposed § 3.101 requires that marine mammals be provided protection from abuse and harassment by the public by the use of a sufficient number of uniformed or readily identifiable employees or attendants or by physical barriers (e.g., fences, walls, distance). One commenter recommended that we additionally require that the employees or attendants be appropriately trained and in permanent attendance. The commenter said that employees must be trained to educate the public about appropriate behavior and must discipline the public for inappropriate behavior, particularly at public feeding exhibitions.

We are not making any changes in response to this comment. When physical barriers are not present (such as at public feeding exhibitions), we believe it is adequate to require that a sufficient number of uniformed or readily identifiable employees or attendants be present. These employees would be charged with protecting the marine mammals on display from abuse or harassment by the public. It follows that the employees or attendants would have to be trained adequately to perform this function. In addition, if a member of the public is found to be abusing or harassing a marine mammal, we believe the proposed regulation makes it clear that that person must be prevented from continuing such behavior.

Proposed paragraph (a)(3) of § 3.101 requires that facilities implement a written protocol on cleaning primary enclosure surfaces so that the surfaces do not constitute a health hazard to the animals. One commenter asked if there is a history of problems that justifies requiring a written protocol for this activity.

We are not making any changes based on this comment. There have been a sufficient number of noncompliant citations for sanitation regarding primary enclosure surfaces to cause the Committee to agree that this requirement is necessary and reasonable. Requiring a written protocol for what should be routine maintenance will provide a means for APHIS inspectors to determine if cleaning practices are appropriate for the species and type of enclosure and will enable inspectors to monitor whether the procedures specified are being followed.

Another commenter said we should remove the proposed requirement for a written protocol on cleaning primary enclosure surfaces from § 3.101(a)(3) because the same requirement appears in proposed § 3.107. While proposed § 3.107 does concern sanitation in and around primary enclosures, it contains no provision for a written protocol on cleaning enclosure surfaces. Therefore, we are not making any change based on this comment.

A third commenter asked that we change the wording of the proposed requirement for a written protocol on cleaning primary enclosure surfaces. The last sentence of proposed paragraph (a)(3) reads: “All facilities shall implement a written protocol on cleaning so that surfaces do not constitute a health hazard to animals.” The commenter was concerned that this sentence does not make it clear that it addresses only primary enclosure surfaces. We believe that the first sentence of proposed paragraph (a)(3) makes it clear that the paragraph as a whole specifically concerns primary enclosure surfaces. Therefore, we are not making any changes based on this comment.

Paragraph (a)(4) of proposed § 3.101 exempts facilities that house marine mammals in natural water areas (tidal basins, bays, estuaries) from the drainage requirements in § 3.101(c)(1). Paragraph (c) of proposed § 3.101 concerns drainage, and paragraph (c)(1) generally requires that adequate drainage be provided for primary enclosure pools. Two commenters suggested that the exemption in paragraph (a)(4) belongs more appropriately in paragraph (c). We are not making a change based on this comment. Paragraph (a) addresses general construction requirements, and, while paragraph (a)(4) does address the issue of drainage, it is also an exemption from a basic construction requirement. Therefore, we believe it is appropriately placed.

The commenters also asked us to make the natural water area facilities described in § 3.101(a)(4) exempt from the drainage requirements in proposed § 3.101(c)(2). We are making no change based on this comment. Paragraph (c)(2) concerns areas within a primary enclosure other than the pool itself, including areas immediately surrounding the pool. It would not be appropriate to exempt natural water area facilities from this type of drainage. Excess water around a pool area and other parts of an enclosure would be a hazard for marine mammals and caretakers, regardless of whether the pool itself is a natural seawater facility or a man-made facility.

Paragraph (b) of proposed § 3.101 concerns water and power supplies. Currently, paragraph (b) includes the requirement that written contingency plans be submitted to and approved by Veterinary Services regarding emergency sources of water and electric power in the event of failure of the primary sources. We proposed that these plans be submitted to and approved by the Deputy Administrator of Animal Care. One commenter said that contingency plans have always been reviewed by on-site visits from Veterinary Services and wondered why we have assigned review of these plans to the Deputy Administrator of Animal Care.

We are making no changes based on this comment. As we explained in the preamble to the proposed rule, APHIS reorganized after the last amendments to the marine mammal regulations. Veterinary Services no longer enforces the Animal Welfare Act. That authority has been reassigned to the Deputy Administrator of Animal Care. Since the reassignment, written contingency plans have been reviewed by Animal Care at the regional office level. The Deputy Administrator may continue to delegate this authority to the appropriate administrative level.

Paragraph (b) of proposed § 3.101 also requires that contingency plans include animal evacuation plans in the event of 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 § 3.101 concerns drainage. Paragraph (c)(1) requires that adequate drainage be provided for all primary enclosure pools and be located so that all the water in the pools may be “effectively eliminated” when necessary. Paragraph (c)(2) requires that drainage be provided for primary enclosures and areas immediately surrounding pools and be located so that excess water may be “rapidly eliminated.” One commenter said that one of the phrases (“effectively eliminated” or “rapidly eliminated”) should be changed so that they are consistent.

We are making no change based on this comment. As explained in the preamble to the proposed rule, paragraph (c)(1) currently requires that drainage allow water to be “rapidly eliminated” from primary enclosure pools. We proposed to change this to read “effectively eliminated.” The Committee believed the change was necessary because rapid emptying of primary enclosure pools is not always necessary and, in some cases, can be unsafe for the marine mammals. In paragraph (c)(2), the Committee chose to retain the requirement for rapid elimination of water, because paragraph (c)(2) concerns areas in the primary enclosure other than the pool, including areas immediately surrounding the pool. For safety purposes, rapid elimination of excess water from these areas is necessary and would not harm the animals.

Paragraph (d) of proposed § 3.101 concerns storage of food, toxic substances, supplements, and medication and includes the following requirement:

No substances which are known to be or may be toxic or harmful to marine mammals may be stored or maintained in the marine mammal food storage or preparation areas, except that cleaning agents may be kept in secured cabinets designed and located to prevent food contamination.

Paragraph (b) of proposed § 3.107 concerns food preparation and includes the following requirement:

Substances such as cleansing and sanitizing agents, pesticides, and other potentially toxic agents must be stored in properly labeled containers away from food storage preparation surfaces.

One commenter found these two requirements confusing, and was unsure whether cleaning agents may be kept in food preparation areas.

We agree that the wording may be somewhat confusing. The Committee's intent was that cleaning agents be stored so that they will not be in danger of contaminating food preparation surfaces or food. While cleaning agents may be stored in the area where food is prepared, they must be stored in secured cabinets away from food preparation surfaces. We are making no changes to the requirement in § 3.101(d), but are revising the requirement in § 3.107(b) to make the Committee's intent clearer. As revised, the sentence cited above from § 3.107(b) will read: “Substances such as cleansing and sanitizing agents, pesticides, and other potentially toxic agents must be stored in properly labeled containers in secured cabinets designed and located to prevent contamination of food storage preparation surfaces.”

Another commenter recommended combining these requirements into one paragraph. We are not making a change based on this comment. We believe it is appropriate to have the requirements in both paragraphs because each paragraph addresses a separate issue—one addresses storage and one addresses sanitation.

Paragraph (d) of proposed § 3.101 also requires that refrigerators and freezers be used for storing perishable food but provides that chilled and/or iced coolers may be used for under 12 hours. One commenter said that he uses buckets with ice to transfer food from the preparation area to the feeding docks. The commenter was concerned that the language in proposed paragraph (d) would not allow this practice.

We are not making any changes based on this comment. The Committee discussed this issue and determined that buckets with ice can be used to transfer food from a cooler or refrigerator to a feeding area, as long as the food is fed to the marine mammals immediately after transfer. Food safety issues are a concern when food is stored for longer periods of time in uncovered buckets with melting ice. If food is kept in buckets with ice at the feeding area for use in later feedings, it would be a violation of proposed paragraph (d). We do not believe any change is necessary to the proposed regulation to clarify this because paragraph (d) specifically concerns food storage and not transfer of food for immediate feeding.

Section 3.104 Space Requirements

Proposed § 3.104 concerns space requirements for primary enclosures.

Paragraph (a) of proposed § 3.104 states that an enclosure smaller than required by the regulations may be used to house marine mammals temporarily for nonmedical training, breeding, holding, and transfer purposes. However, proposed paragraph (a) requires that, if housing in a smaller than required enclosure is for longer than 2 weeks and is for the purpose of nonmedical breeding, training, or holding (not transfer), an extension must be justified in writing by the attending veterinarian on a weekly basis.

One commenter asked for whom the written justification is intended. The written justification would serve several purposes, including ensuring that the attending veterinarian is aware of the arrangements, concurs with the reason for such arrangements, and monitors the animal's response to such arrangements. Additionally, APHIS would consult the written justification records to assess compliance with the space requirements and as a basis for discussing any concerns about space with the attending veterinarian.

Another commenter said that proposed § 3.104(a) should be changed to require that, if a marine mammal is housed in a smaller than required enclosure for longer than a few hours, it must be justified in writing by the attending veterinarian on a daily basis. We are not making any changes based on this comment. It would be an unnecessary burden to require such frequent justification. Depending on the design of the facility, it can often take a few hours just to transfer a marine mammal from its primary enclosure into the smaller enclosure, making such frequent justification impractical. We are not aware of any evidence showing that it would be harmful to marine mammals to spend up to 2 weeks in an enclosure smaller than required for primary enclosures. Keeping them in such enclosures for longer periods of time must be weighed by the attending veterinarian in terms of harm versus benefits to the animals, and we believe a weekly justification is adequate to accomplish this. We believe the proposed requirements are adequate to ensure that marine mammals are not kept in enclosures smaller than required for longer than is absolutely necessary.

Another requirement in proposed paragraph (a) is that enclosures smaller than required, for example, gated side pools abutting primary enclosures, may not be used for permanent housing purposes. Proposed paragraph (a) also states that rotating animals between enclosures that do and do not meet the minimum space requirements is not acceptable. One commenter said that, within the marine mammal exhibition industry, it is common to use gated side pools for permanent housing, rotating the animals between them and the main pool regularly, and this requirement would preclude that use. The commenter suggested reevaluating the wording to clarify that the intent is to prohibit the use of medical or holding pools for permanent housing purposes.

The intent of the Committee was to make it clear that enclosures that do not meet the minimum space requirements for primary enclosures may not be used for permanent housing of marine mammals. The Committee further clarified that this holds true even if the marine mammal is being rotated between enclosures that meet the minimum space requirements and enclosures that do not. Such activity would not meet the requirements of the regulations for primary enclosures. The purpose of making this clarification is to prevent facilities from, for example, generally housing marine mammals in smaller than required enclosures supplemented by letting them into a larger enclosure every few days. Proposed paragraph (a) states that marine mammals may be housed temporarily in enclosures smaller than required for nonmedical training, breeding, holding, and transfer purposes, and proposed § 3.110(b) allows marine mammals to be housed temporarily in enclosures smaller than required for medical treatment or training purposes. Marine mammals may not be housed in enclosures smaller than required for any other purpose.

According to the Committee's intent, if gated side pools are large enough to meet the space requirements for primary enclosures, then the activity the commenter describes would be acceptable. If gated side pools do not meet the minimum space requirements for primary enclosures, then the activity the commenter describes would not be acceptable.

Based on the comment, we believe that the proposed language should be revised to make it clearer. Therefore, we are revising the last two sentences of proposed § 3.104(a). The proposed sentences read as follows:

Such enclosures, for example, gated side pools abutting primary enclosures, shall not be used for permanent housing purposes. Rotating animals between enclosures which do and do not meet minimum space requirements is not acceptable to comply with these regulations.

We are revising these sentences to read as follows:

Any enclosure that does not meet the minimum space requirement for primary enclosures (including, but not limited to, medical pools or enclosures, holding pools or enclosures, and gated side pools smaller than the minimum space requirements) may not be used for permanent housing purposes. Rotating animals between enclosures that meet the minimum space requirements and enclosures that do not is not an acceptable means of complying with the minimum space requirements for primary enclosures.

One commenter said that animals in his facility are routinely placed in gated side pools abutting their primary enclosure for training and show purposes during certain periods of the day and for short periods for medical and other husbandry reasons. The commenter is concerned that the last sentence of proposed § 3.104(a) (revised above) concerning rotating animals between enclosures would preclude this activity.

We are not making any changes based on this comment. We believe that proposed paragraph (a) makes it clear that gated side pools smaller than the minimum space requirements for primary enclosures may be used for the purposes that the commenter describes. If the sentence concerning rotating animals between enclosures is read within the context of the rest of paragraph (a), we do not believe that there is any ambiguity.

Finally, with regard to proposed § 3.104(a), one commenter said that, in order to facilitate appropriate behavioral and medical management of a facility's population as a whole, this paragraph needs to be clarified to maintain a facility's right to have the necessary flexibility with respect to marine mammal housing; that is, a facility must be able to make appropriate use of all pools.

We are not making any changes based on this comment. The commenter does not specify how the paragraph needs to be clarified. However, we believe that the paragraph clearly allows for appropriate use of pools smaller than required for primary enclosures and prohibits inappropriate use of such pools. We believe the allowances and prohibitions give facilities adequate flexibility, while fulfilling the intent of the Act to ensure that marine mammals are housed under conditions favorable to their health and well-being.

Section 3.105 Feeding

Proposed § 3.105 contains feeding requirements, including provisions to ensure food is nutritious and safely handled.

Paragraph (a) of proposed § 3.105 includes the requirement that marine mammals be offered food at least once per day, except as directed by the attending veterinarian. One commenter said that marine mammals should be offered food more than once per day.

We are making no changes based on this comment. The Act requires that we promulgate minimum standards for the care of marine mammals. We believe that requiring feeding at least once per day is adequate as a minimum standard. Some marine mammals do not require multiple feedings per day; for example, polar bears in maternity dens. Attending veterinarians and animal handlers are free to set up feeding regimens that include multiple feedings per day when they believe it is appropriate for the animal.

Paragraph (b) of proposed § 3.105 includes the requirement that food receptacles be placed so as to minimize contamination of the food. Paragraph (d) of proposed § 3.105 includes the requirement that the maintenance of thawed food be conducted in a manner that will minimize contamination. One commenter said the wording in both these paragraphs should be changed to require that food be handled so as to eliminate contamination.

We are not making any changes based on this comment. This point was debated during the negotiated rulemaking sessions. The Committee reached consensus that, even under ideal circumstances, it may not be possible to completely eliminate contamination of food by microbes, as they are present in the air. Therefore, the term “eliminate” would create a standard impossible to attain. As for contamination by chemicals, proposed § 3.101 contains provisions regarding storage to ensure that food supplies are not contaminated by toxic substances. The Committee agreed that, for these reasons, the term “minimize” would be more appropriate.

Paragraph (c) of proposed § 3.105 includes the requirement that marine mammal feeding records noting the estimated individual daily consumption be maintained at the facility for a period of 1 year and made available to APHIS for inspection. We clarified this requirement in the preamble to the proposed rule as follows: For marine mammals that are individually fed, and not subject to public feeding, the feeding records should reflect an accurate account of food intake; for animals fed, in part, by the public, and for large, group-fed colonies of marine mammals where individual rations are not practical or feasible to maintain, the daily food consumption should be estimated as precisely as possible. The Committee believed that it would not be necessary to add this clarification to the proposed regulatory language.

However, a few commenters said that the clarification for feeding records should be added to the regulatory language in § 3.105(c). In order to make the section clear for all regulated entities, we are adding the clarification to paragraph (c).

Section 3.107 Sanitation

Proposed § 3.107 concerns sanitation with regard to primary enclosures, food preparation, housekeeping, and pest control.

Paragraph (c) of proposed § 3.107 requires that buildings and grounds, as well as exhibit areas, be kept clean and in good repair and that fences be maintained in good repair. One commenter said this language is overly broad and should be revised to take into account special situations relating to natural open water facilities.

We are not making any changes based on this comment. The purpose of these requirements is to minimize risk of injury to the marine mammals from contaminants found in unclean surroundings and from hazards due to poor condition of fences, buildings, and grounds. We see no reason why exceptions need to be made for natural open water facilities. For example, it is particularly important that fencing and water barriers in open water facilities be kept in good repair to ensure containment of the animals within the enclosure as well as protection from animals outside the enclosure and sharp projections or edges on broken fencing.

Section 3.108 Employees or Attendants

Proposed § 3.108 contains standards for employees and attendants that handle marine mammals.

Paragraph (b) of proposed § 3.108 requires that facilities provide and document participation in and successful completion of a facility training course for employees. Paragraph (b) also specifies minimum components of the course, including teaching species appropriate husbandry techniques, handling techniques, and reporting protocols. One commenter said that the requirements in paragraph (b) would place an unnecessary burden on facilities that already have qualified staff and infringe on the rights of facilities to determine the aptitude of staff and training methodologies.

We are not making any changes based on this comment. In the preamble to the proposed rule, we said that APHIS had received public complaints about the lack of training and applicable experience of employees in licensed facilities. The Committee made several changes and additions to § 3.108 in order to remedy this problem. Adding the requirement for a facility training course was one of the additions. We continue to believe that a facility training course would be an effective means of ensuring that employees and attendants are equipped with the knowledge necessary to care for the marine mammals properly and meet the requirements of the regulations. The facility training course is a one time requirement for each employee, and the minimal content for training courses specified in paragraph (b) would not impose specific training methodologies. Therefore, we do not believe it imposes an undue burden on facilities.

Paragraph (d) of proposed § 3.108 requires that trainers and handlers meet professionally recognized standards for experience and training. Several commenters asked to what professionally recognized standards we are referring. Another commenter said that we should emphasize that paragraph (d) does not require the use of the standards of any particular group or organization.

We are making no changes based on these comments. We stated in the preamble to the proposed rule that, for purposes of enforcing the requirement, APHIS would use available professional organization standards as a point of reference. We may also use the experts within the marine mammal community as resources, as well as our own expertise and any professionally recognized standards.

One commenter said that we should add a sentence to paragraph (d) to require that trainers and handlers have demonstrable experience and appropriate formal training in marine mammal husbandry and care. We are not making any changes based on this comment. Paragraph (a) of proposed § 3.108 requires that employees and attendants (including trainers and handlers) be adequately trained and that supervisors have demonstrable experience in marine mammal husbandry and care.

Section 3.109 Separation

Proposed § 3.109 concerns social housing and separation of marine mammals.

Proposed § 3.109 requires that marine mammals known to be social in the wild must be housed with at least one compatible animal of the same or biologically related species, except when the attending veterinarian, in consultation with the husbandry/training staff, determines that such housing is not in the best interests of the marine mammal's health or well-being. One commenter said that a situation in one marine park in which an orca is housed with dolphins was discussed during the negotiated rulemaking and was determined to be acceptable under this requirement. The commenter asked that we confirm this.

The commenter is correct that the Committee discussed a marine park that houses an orca with Pacific white-sided dolphins as companions. This arrangement is acceptable under the proposed regulations as long as the animals are compatible and a second compatible orca is not available.

As noted above, proposed § 3.109 includes an exception to the requirement that marine mammals known to be social in the wild must be housed with at least one compatible animal of the same or biologically related species. The exception is if the attending veterinarian in consultation with the husbandry/training staff determines that such housing is not in the best interests of the marine mammal's health or well-being. One commenter said that the attending veterinarian should also consult with facility management before making a decision to house a marine mammal separately.

We are making no changes based on this comment. The Committee discussed whether to require consultation with facility management when making a decision concerning housing a marine mammal separately. The Committee agreed not to add this requirement, in part because of potential conflicts between economic interests and the best interests of the animal. Facility management is typically involved in the activities of husbandry and training staffs and would not be without input into these decisions. Further, the proposed requirement would not prevent attending veterinarians from consulting with facility management if they choose.

Proposed § 3.109 also requires that marine mammals not be housed near other animals that cause them unreasonable stress or discomfort or interfere with their good health. One commenter asked that we remove the word “unreasonable” before “stress and discomfort.” The commenter said that the word “unreasonable” is too open to interpretation.

We are making no changes based on this comment. The Committee debated whether to include a qualifier such as “unreasonable” in this requirement. The Committee reached consensus that a qualifier was necessary because no animal, regardless of the conditions of its housing and even in the wild, is without some degree of stress or discomfort at various times. A requirement that marine mammals be maintained completely without stress or discomfort would be unattainable.

Proposed § 3.109 also requires that marine mammals that are housed separately must have a written plan that includes information on the justification for the length of time the animal will be kept separated or isolated, the type and frequency of enrichment, plans for interaction if appropriate, and provisions for periodic review of the plan by the attending veterinarian. The plan must be approved by the attending veterinarian and developed in consultation with the husbandry/training staff.

One commenter asked why the plan is needed and who the plan is for. We are making no changes based on this comment. Marine mammals are generally social animals. When marine mammals are kept in isolation without the companionship of other marine mammals, it is necessary to enrich their environment in other ways to promote their well-being. We proposed to require the plan to ensure that marine mammals kept in isolation are kept that way for valid reasons and that the animals' special enrichment needs are considered. The plan would be a valuable tool for the facility for making sure personnel caring for the marine mammals understand the special needs of the marine mammals. The plan would also be used by APHIS to determine if the animals' special needs are being considered and if the provisions of the plan are being followed.

Section 3.110 Veterinary Care

Proposed § 3.110 contains minimum standards of veterinary care for marine mammals.

Paragraph (a) of proposed § 3.110 requires that newly acquired marine mammals be isolated from resident marine mammals. One commenter asked if marine mammals that are seasonally transported between facilities would be considered newly acquired animals for purposes of this requirement. The commenter further said that such animals should not be considered newly acquired.

We are not making any changes based on this comment. If marine mammals are moved to a facility that is not their permanent residence, they would be considered newly acquired to that facility, even if they move there every summer, for example, as a result of regular seasonal movement. However, under proposed § 3.110(a), if the newly acquired marine mammals have a known medical history, they must be isolated only until the attending veterinarian determines the animals are in good health. This may be accomplished on the day of arrival at the facility. We believe the requirement for isolation of newly acquired marine mammals is necessary to protect the health of resident marine mammals.

Paragraph (b) of proposed § 3.110 concerns holding facilities for medical treatment or medical training. Proposed paragraph (b) requires that, if a marine mammal is to be held in an enclosure that does not meet the minimum space requirements for primary enclosures for longer than 2 weeks, it must be justified in writing by the attending veterinarian on a weekly basis. One commenter said that this requirement should be changed so that if a marine mammal is to be held in an enclosure smaller than required for longer than a few hours, it must be justified in writing by the attending veterinarian on a daily basis.

We are not making any changes based on this comment. The same comment was received regarding a similar requirement under proposed § 3.104(a) regarding holding marine mammals in smaller than required enclosures for nonmedical training, breeding, or holding. In response to that comment, we said that it would be an unnecessary burden to require such frequent justification. Depending on the design of the facility, it can often take a few hours just to transfer a marine mammal from its primary enclosure into the smaller enclosure, making such frequent justification impractical. We are not aware of any evidence showing that it would be harmful to marine mammals to spend up to 2 weeks in an enclosure smaller than required for primary enclosures. Keeping them in such enclosures for longer periods of time must be weighed by the attending veterinarian in terms of harm versus benefits to the animals, and we believe a weekly justification is adequate to accomplish this. We believe the proposed requirements are adequate to ensure that marine mammals are not kept in enclosures smaller than required for longer than is necessary.

One commenter expressed concern and asked why, in proposed § 3.110(b), the space requirements for isolation of marine mammals in natural lagoons and coastal facilities are different than for closed system facilities. We are not making any changes based on this comment. Paragraph (b) begins by stating that all facilities must have holding facilities in place and available to meet the needs for isolation, separation, medical treatment, and medical training of marine mammals. The last sentence of paragraph (b) states that, in natural lagoon or coastal enclosures, separation of newly acquired marine mammals must be accomplished using separate enclosures situated within the facility, located to prevent direct contact with resident animals and to minimize the risk of potential airborne or waterborne contamination between newly acquired and resident animals. This clarification for natural lagoons and coastal facilities is necessary because water circulation cannot be controlled or isolated in such facilities. Paragraph (b) makes no distinction between natural lagoon and coastal facilities and closed system facilities with regard to space requirements.

One commenter suggested we move the last sentence of proposed paragraph (b) of § 3.110 to the end of paragraph (a). We are not making any changes based on this comment. Paragraph (a) addresses the need to isolate newly acquired marine mammals. Paragraph (b) addresses the use of isolation facilities, including the use of such facilities for newly acquired animals. We believe that the last sentence of paragraph (b) is appropriately placed.

Two commenters were concerned that the requirements for isolation in proposed § 3.110 (a) and (b) could be construed to require separate quarantine facilities with tanks, filters, and water treatment systems independent of the rest of the facility. The commenters said that, if this is the intent, it would be inappropriate and cost prohibitive. Both commenters also said that, since it is clear that this is not the intent for natural lagoons and coastal enclosures (paragraph (b) acknowledges that water circulation cannot be controlled or isolated in such systems), the requirement should be the same for other types of enclosures.

We are not making any changes based on these comments. Section 3.110 has always contained a requirement for isolation of newly acquired animals and for holding facilities adequate to accomplish isolation. These requirements, therefore, are not new. In general, our use of the word “isolation” corresponds with the common veterinary meaning of prevention of contact with other animals, directly as well as through water or air. Bacteria and disease can be transmitted through water and air. However, each facility will present unique concerns over how to effectively isolate an animal. Completely separate tanks, filters, and water filtration systems are ideal. In other cases, a single but efficient water filtration and treatment system may accomplish the same thing. Preventing the exchange of airborne pathogens presents the greatest challenge. Our intent is that facilities keep newly acquired animals and animals that need to be isolated for medical purposes as separate as possible from the known healthy animals in the facility. APHIS will work with each licensed and registered facility to address concerns and to help facilitate compliance with this requirement.

A few commenters were concerned that the Committee generally added too much detail to the veterinary care requirements in proposed § 3.110, giving APHIS inspectors opportunities to question veterinarians' protocols. In particular, one commenter cited the requirement in proposed § 3.110(f) that all cetaceans and sirenians be physically examined by the attending veterinarian at least annually and that the examinations include a hands-on physical examination, hematology and blood chemistry, and other diagnostic tests as determined by the attending veterinarian.

We are not making any changes based on these comments. APHIS has been concerned about the quality of veterinary care provided to marine mammals at certain facilities. These concerns were discussed during the negotiated rulemaking. The Committee agreed that it was necessary to provide more specific standards to clarify what is meant by providing adequate veterinary care to marine mammals. The proposed language is based on currently accepted practices and professional veterinary standards. We do not believe that the language the Committee agreed to is overly burdensome, but rather describes the minimum of what is needed in a preventive health program for marine mammals.

Paragraph (g)(1) of proposed § 3.110 concerns necropsy of marine mammals and includes the requirement that a final necropsy report include a pathological diagnosis. One commenter said that, in the past 15 years, he has received several pathology reports from the laboratory stating the cause of death cannot be determined.

We are not making any changes based on this comment. It is possible for a pathological diagnosis to be inconclusive (that is, cause of death cannot be determined), and this is an accepted diagnosis. The intent of the requirement is to ensure that histopathology is done as part of a necropsy and evaluated by an expert.

Proposed paragraph (g)(1) also requires that necropsies be conducted by or under the supervision of the attending veterinarian. One commenter asks what to do if the attending veterinarian is unavailable because he or she is out of town. We are not making any changes based on this comment. The intent of the requirement is that the necropsy be performed or supervised by a veterinarian experienced in marine mammal medicine. If an attending veterinarian is out of town for an extended period of time, alternative veterinary medical coverage should be arranged. Usually, the attending veterinarian appoints a back-up veterinarian for emergencies. It would be appropriate for the back-up veterinarian to perform the necropsy. However, if the attending veterinarian will be available within a few days, it may be preferable to cool and store the animal until the necropsy can be performed upon the attending veterinarian's return.

Paragraph (g)(2) of proposed § 3.110 concerns maintenance of necropsy reports. This paragraph was not agreed to by consensus of the Committee and was, therefore, open for all public comment, including comments from Committee members.

We proposed in paragraph (g)(2) that necropsy records must be maintained at the facility for a period of 3 years and be presented to APHIS inspectors when requested. We explained in the preamble to the proposed rule that we intend this to mean that the records must be maintained at the home facility of the marine mammal. This requirement would replace the current requirement that necropsy records be maintained at the facility where the marine mammal died. One commenter said that we should require necropsy reports to be maintained both at the home facility and at the facility where the marine mammal died. The commenter said this would be beneficial because some facilities maintain marine mammals only on a seasonal basis, and requiring them to retain necropsy records on animals that have died at their facility would make it possible to identify and compare problems resulting in deaths in successive years.

We agree with the commenter that it would be beneficial to require necropsy records to be maintained at both the home facility and the facility where the marine mammal died (if these are different facilities). Therefore, we are making the appropriate change in § 3.110(g)(2).

One commenter said that necropsy reports should be submitted to APHIS upon completion by or approval of the attending veterinarian. The commenter stated that this would allow necropsy reports to be obtained by interested persons for purposes of scientific inquiry into the causes of captive marine mammal mortality.

We are making no changes based on this comment. Although the provisions of proposed paragraph (g)(2) are not based on consensus language, the issue addressed by the commenter was discussed during the negotiated rulemaking. Several members of the Committee had strong reservations about the use and interpretation of necropsy reports by untrained individuals or individuals who do not have complete knowledge of an animal's history. We believe that there would be no enforcement benefits or benefits to the animals from requiring necropsy reports to be submitted to APHIS and that it would unnecessarily increase the reporting burden on facilities. Persons interested in pursuing scientific inquiry into captive marine mammal mortality can request information directly from facilities.

Section 3.112 Consignments to Carriers and Intermediate Handlers

Proposed § 3.112 contains requirements for carriers and intermediate handlers involved in the transportation of marine mammals.

Paragraph (c) of proposed § 3.112 concerns temperature. It requires that carriers and intermediate handlers whose facilities fail to maintain a temperature within the range prescribed by the regulations may accept a marine mammal for transport only if the marine mammal is accompanied by a certificate executed and signed by the attending veterinarian. The certificate would have to state that the marine mammal is acclimated to an air temperature range specified on the certificate that is either lower or higher than the prescribed range. Under proposed § § 3.117 and 3.118, the prescribed temperature range is between 7.2 °C and 23.9 °C or 45 °F and 75 °F.

Two commenters were concerned about the maximum temperature in the prescribed range (75 °F) and the requirement to provide an acclimation certificate for transporters whose facilities exceed that temperature. The commenters said that the southern United States experiences temperatures over 75 °F for half of the year and that requiring an acclimation certificate for marine mammals maintained and transported in that part of the country would be onerous. One commenter said that this temperature range could induce some carriers to refuse to accept marine mammals for transport, even with an acclimation certificate, for fear of liability. The other commenter suggested setting the maximum temperature for the prescribed range at 90 °F.

We are not making any changes based on these comments. A primary problem with transporting marine mammals is heat stress. As cetaceans, pinnipeds, and sirenians are generally not transported in water, or only partially submerged, their thermoregulatory capacity is already being stressed. The Committee included the proposed requirement in paragraph (c) to help minimize heat-related stress during transport. Paragraph (a) of proposed § 3.112 requires that marine mammals consigned to transport be accompanied by a health certificate signed by the attending veterinarian. The additional requirement of obtaining an acclimation certificate from the attending veterinarian would add minimal burden.

Paragraph (d) of proposed § 3.112 requires that, following the arrival of any marine mammal at the animal holding area of the terminal cargo facility, carriers and intermediate handlers must attempt to notify the consignee who is to receive the marine mammal at least once in every 6-hour period. One commenter said that, since proposed § 3.116(a) requires that all marine mammals be accompanied during transport by a licensed veterinarian, employee, and/or attendant of the shipper or receiver, the requirement in proposed § 3.112(d) is unnecessary and should be deleted.

We are not making any changes based on this comment. We recognize that the notification requirement in proposed § 3.112(d) may not be necessary in most cases, since the marine mammal would be accompanied by an attendant at all times. However, there may be unforeseen circumstances that would make notification necessary; for example, a marine mammal shipped on a commercial flight may be inadvertently sent to the wrong location.

Section 3.113 Primary Enclosures Used To Transport Marine Mammals

Proposed § 3.113 contains standards for primary enclosures used to transport marine mammals.

Paragraph (b) of proposed § 3.113 concerns straps, slings, harnesses, and other devices used to support or restrain marine mammals in their enclosures. The introductory text of paragraph (b) reads as follows:

Straps, slings, harnesses, or other devices used for body support or restraint, when transporting marine mammals such as cetaceans and sirenians shall * * *

One commenter said that we should add the word “if” to the introductory text, so that it would read as follows:

Straps, slings, harnesses, or other devices, if used for body support or restraint when transporting marine mammals such as cetaceans and sirenians, shall * * *

The commenter suggested that leaving out the word was an inadvertent error, since the current language in § 3.113(b) contains the word “if”.

We are making no changes based on this comment. The wording for paragraph (b) was the wording agreed to by the Committee. We do not believe that adding the word “if” changes the meaning of the sentence, since the use of straps, slings, or other such devices is clearly not required.

One commenter said we are inconsistent throughout § § 3.113, 3.114, 3.117, and 3.118 with the use of the terms “primary enclosure” and “primary transport enclosure.” The commenter said that, since all of these sections concern transportation, the term “primary transport enclosure” should be used throughout.

In the preamble to the proposed rule, we explained that throughout these sections, we would use the term “primary transport enclosure” whenever we believed the term was necessary for clarity. In other places, the proposed regulations specify “primary enclosure used to transport marine mammals,” and we believed in those places that the intent was clear. Additionally, all of these sections appear in the proposed regulations under the heading “Transportation Standards.” However, in reviewing the proposed rule, we realized that in two places we inadvertently failed to use either the term “primary transport enclosure” or “primary enclosure used to transport marine mammals.” These places are in § 3.113(c)(2) and in § 3.114(d). For consistency, we are changing “primary enclosure” to “primary transport enclosure” in these two places.

Section 3.116 Care in Transit

Proposed § 3.116 contains requirements for the care of marine mammals in transit.

Paragraph (a) of proposed § 3.116 includes the requirement that, if the attending veterinarian does not accompany the marine mammal during transit, communication with the attending veterinarian must be maintained in accordance with 9 CFR part 2, § 2.40(b)(3). Section 2.40 contains requirements for adequate veterinary care of any animal covered under the Act that is maintained by a dealer or exhibitor. Paragraph (b)(3) of § 2.40 requires, among other things, that there be daily observations of all animals to assess their health and 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, § 2.33(b)(3), in proposed § 3.116(a). The commenter pointed out that § 2.40(b)(3) concerns only marine mammals maintained by dealers and exhibitors, while § 2.33(b)(3) concerns marine mammals maintained by research facilities.

There are very few transports involving marine mammals used in research. We believe the Committee overlooked the reference to § 2.33(b)(3) for this reason. The commenter's suggestion is, however, appropriate, and we are adding the reference to § 2.33(b)(3) to paragraph (a) of proposed § 3.116.

General Comments

We also received several comments that did not pertain to a particular section of the proposed regulations. They are as follows:

One commenter commended the work of the Committee but said that just because everybody agreed, it does not mean the agreement needs to be a rule; and that it is now up to APHIS to determine if all the agreements reached need to become rules.

We conducted negotiated rulemaking for this rule under the Negotiated Rulemaking Act of 1990 (5 U.S.C. 561 et seq.) and the Federal Advisory Committee Act (5 U.S.C. App. I). Under the rules governing the negotiated rulemaking process, and in accordance with the organizational protocols established by the Committee, we agreed to publish as a proposed rule any consensus language developed during the Committee meetings unless substantive changes were made as a result of authority exercised by another Federal Government entity. APHIS was a voting member of the Committee and, therefore, was in agreement with the consensus language published in the proposed rule. In this final rule, we have exercised our oversight responsibility and have made minor changes based on concerns of commenters when we believed they were necessary, and other minor changes when deemed appropriate.

One commenter asked that the Committee work toward consensus on the remaining five sections of the marine mammal regulations. These five are § § 3.102, 3.103, 3.104 (with the exception of paragraph (a)), 3.106, and 3.111. These sections concern, respectively, indoor facilities, including temperature, ventilation, and lighting; outdoor facilities; space requirements; water quality; and swim-with-the-dolphin programs. Two other commenters were particularly concerned that the space requirements in § 3.104 (b) and (c) and the water quality requirements in § 3.106 were not revised.

The charter for the Committee (under the Federal Advisory Committee Act) has expired. In addition, during the negotiated rulemaking meetings, the Committee agreed that consensus on the remaining five sections was most likely not possible. For these reasons, we have decided to draft proposed revisions to these sections without the use of negotiated rulemaking. We plan to publish proposed changes for these sections in the near future, and these changes will be open for public comment.

One commenter asked that we prohibit physical interactions between captive marine mammals and the public, particularly in public petting and feeding displays. The commenter further stated that the proposed regulations would not significantly improve the welfare of captive cetaceans in petting and feeding displays. We are not making any changes based on this comment. On September 4, 1998, APHIS published in the Federal Register (63 FR 47128-47151, Docket No. 93-076-10) a final rule establishing standards for swim-with-the-dolphin interactive programs. APHIS is evaluating the issues surrounding these programs, and intends to publish proposed amendments to interactive program regulations in the future.

Another commenter generally opposed capture, breeding, transport, and public display of cetaceans. We are not making any changes based on this comment. It is not within our authority under the Act to prohibit captivity and display of marine mammals. We believe that the regulations finalized in this document will help to ensure the 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 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. There were 1,429 marine mammals in these establishments during FY 1997. These included 357 Group I cetaceans, 89 Group II cetaceans, 796 Group I pinnipeds, 16 Group II pinnipeds, 39 sirenians, 21 mustelidae and 111 polar bears. (Group designations for cetaceans and pinnipeds are as shown in Table III of § 3.104 of the regulations.) The Atlantic bottlenose dolphin, harbor seal, California sea lion, and polar bear are the predominant varieties of captive marine mammals, accounting for approximately 74 percent of the total number of captive marine mammals. The second largest group includes the West Indian manatee, walrus, common dolphin, Pacific bottlenose dolphin, and Atlantic white-sided dolphin. These represented 13.3 percent of the total number of captive marine mammals in FY 1997.

Arboreta and botanical or zoological gardens comprise an important subgroup of the amusement parks industry, generating more than $653 million in revenues and attracting close to 50 million visitors annually. There were 448 establishments in this subgroup in 1997, including the 116 that are regulated for marine mammals. About 27 percent of these are operated for-profit; the rest are nonprofit organizations owned publicly by States, counties, or cities, or owned privately. Ten percent of the 116 facilities regulated for marine mammals display regulated captive marine mammals exclusively; the others may exhibit a combination of marine mammals and terrestrial animals. Some facilities licensed to exhibit marine mammals host only a single variety of marine mammal (e.g., only dolphins, only harbor seals, or only polar bears). Marine mammals account for a very small fraction of all animals in captivity, which number in the hundreds of species.

Most facilities exhibiting marine mammals charge admission fees. Overall, visitor admission fees cover less than 30 percent of the annual budget of zoos and aquariums, although the fees vary substantially between facilities. A few facilities, mostly those that are city owned, do not charge visitors for admission. Fees range from $1 to $41 for adults, from $0 to $33 for children, and from $0 to $36 for seniors. Admission rates to the for-profit facilities are higher than those of nonprofit facilities, which have some of their budget covered through appropriations and donations. If the provisions of this rule significantly increase the operational expenses of a facility, admission fees for that facility could be increased. However, the increases in operational expenses as a result of this rule should not have any significant effect on entrance fees in most facilities.

Other than admission charges, these facilities often generate income by renting space for large group functions such as family reunions, wedding receptions, and corporate parties. 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 in the facility's collection size or diversity.

While it is difficult to quantify all the benefits of this rule, the conditions of captive marine mammals are expected to improve as a result of this action. As stated above, we believe that approximately 90 percent of licensed marine mammal facilities are already meeting or exceeding the requirements of this rule. Therefore, the effect of the requirements will be most apparent within the approximately 10 percent of licensed marine mammal facilities that are not already meeting or exceeding these requirements. The requirements that will likely have the most effect on these facilities are the requirements that clarify veterinary care for marine mammals. Preventive care during annual or semiannual examinations may potentially reduce emergency veterinary costs and result in fewer marine mammal deaths because of improved health of the animals. Healthier animals should also have an increased life expectancy and improved reproductive outcomes. In general, we expect that any improvements in the care and maintenance of marine mammals may be reflected in lower levels of animal distress and suffering and improved quality of life. In addition, improved conditions for captive marine mammals should result in increased satisfaction for members of the public who view these animals in zoos and aquariums.

The following provisions of this rule could generate minor cost increases in facilities that do not already meet these standards.

Section3.101 currently requires facilities to have a contingency plan addressing relocation during an emergency or natural disaster. This final rule will require that additional and more detailed contingency plans be kept.

In § 3.105, we will require that a daily record of animal feeding be kept by an employee or attendant of the facility, noting daily food consumption of the marine mammals in the facility. Individual feeding records will have to be maintained at the facility for a period of 1 year. Personnel costs to provide for planning, observation, documentation, and record maintenance may increase as a result of these requirements, depending on present staffing.

In § 3.108, we are expanding the training requirements for employees and attendants. Facilities will have to provide and document participation in, and successful completion of, a facility training course by a sufficient number of employees. (This means a number sufficient to maintain the prescribed level of husbandry set forth in the regulations.) Training will need to be done under the direct supervision of experienced trainers who meet professionally recognized standards for their own experience and training. The length of such training sessions is estimated here to be about 4 hours for each trainee. Any increase in costs as a result of this requirement will depend on the current training practice of a facility.

In § 3.109, we are requiring a written plan for any animals kept in isolation. The plan must be approved by the attending veterinarian and developed in consultation with the husbandry/training staff of the facility. The plan must include justification for the length of time an animal will be isolated, the type and frequency of enrichment used to offset the separation or isolation, the interactions planned, and provision for a periodic review by the attending veterinarian. At present, there are not more than 20 animals being housed separately throughout the country. Such record preparation and review by professionals will probably not require more than 30 minutes per animal per week.

In § 3.110, we are adding medical recordkeeping requirements for each animal. This will probably not entail more than 30 minutes for each animal twice per year. We are also adding requirements concerning examinations of marine mammals by the attending veterinarian. All marine mammals in a facility will have to be visually examined at least semiannually and physically examined when deemed necessary, except that cetaceans and sirenians will have to be physically examined at least annually. The physical examinations will have to include a hands-on physical examination, hematology and blood chemistry, and other diagnostic tests as determined by the attending veterinarian. Examinations take an average of approximately 2 hours per animal. In § 3.110 will also require that both a preliminary and final necropsy report be completed by the attending veterinarian. While most facilities currently provide preliminary and final reports, only one necropsy report is required under current regulations.

In § 3.112, we will require that a health certificate, and possibly an acclimation certificate, signed by the attending veterinarian accompany each animal that is moved to another facility. Issuance of these certificates should not take more than 15 minutes per animal, with an average of two animals moving per facility per year.

In § 3.116, we will require that any transport of a marine mammal for longer than 2 hours duration requires preparation of a transport plan. Preparing such transport plans should take about 1/2 to 2 hours, depending on the circumstances. Most facilities transport marine mammals fewer than two times per year. Facilities that transport marine mammals often have protocols already in place to address this issue. We will require that certain pregnant marine mammals, unweaned young, nursing mothers with young, and marine mammals with certain medical conditions be transported only after approval of the attending veterinarian and with a determination by the attending veterinarian as to whether a veterinarian should accompany the marine mammal during transport. We estimate that not more than five marine mammals that fit one of these categories are transported per year. We will also require that an employee or attendant travel with polar bears being transported to provide care for the animal. Nationally, not more than 10 polar bears are transported per year; an average transport by land takes about 12 hours.

Taken together, these requirements could result in total increase in expenditures of about $473,000 for all regulated facilities together (see Table A for details). This would yield an average increase in expenditures of $378 per animal per year or about $1.04 per animal per day. The table below details the potential additional expenses for marine mammal facilities as a result of the requirements in this rule.

Because this regulatory action was initiated at the request of the major stakeholders and was undertaken using negotiated rulemaking, the resulting rule is broadly supported by affected groups. Additionally, since 90 percent of licensed marine mammal facilities are already meeting or exceeding the requirements, the actual economic effect of this rule is expected to be minimal.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

Executive Order 12372

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.)

Executive Order 12988

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. The Act does not provide administrative procedures which must be exhausted prior to a judicial challenge to the provisions of this rule.

Paperwork Reduction Act

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the information collection or recordkeeping requirements included in this rule have been approved by the Office of Management and Budget (OMB) under OMB control number 0579-0115.

List of Subjects in 9 CFR Part 3

• Animal welfare
• Marine mammals
• Pets
• Reporting and recordkeeping requirements
• Research
• Transportation

Accordingly, we are amending 9 CFR part 3 as follows:

PART 3—STANDARDS

1. The authority citation for part 3 continues to read as follows:

Authority: 7 U.S.C. 2131-2159; 7 CFR 2.22, 2.80, and 371.7.

2. Section 3.101 is revised to read as follows:

3. In § 3.104, paragraph (a) is revised to read as follows:

4. Section 3.105 is revised to read as follows:

5. Section 3.107 is revised to read as follows:

6. Section 3.108 is revised to read as follows:

7. Section 3.109 is revised to read as follows:

8. Section 3.110 is revised to read as follows:

9. Section 3.112 is revised to read as follows:

10. Section 3.113 is revised to read as follows:

11. Section 3.114 is revised to read as follows:

12. Section 3.115 is revised to read as follows:

13. Section 3.116 is revised to read as follows:

15. Section 3.118 is revised to read as follows: