supplementary - usda aphis · hours of business (8 a.m. to 4:30 p.m. ... rulemaking would amend...

42200' PROPOSED RULES

13410-34)

DEPARTMENT OF AGRICULTURE

Anima/ and Plant Health Inspection Service

19 CFR Ports 1 and 3)

ANIMAL WELFARE ACT

.Proposed Standards and Regulations for theHumane Handling, Care, Treatment, andTransportation of Marine Mammals

AC; leNCY: Animal and Plant HealthInspection Service ( USDA).

ACTION: Proposed rule.

SUMMARY: This doe-undue proposesregelations and standard~ under theAnimal Welfare Act which wouldremove warmblooded aquatic eaimalsor marine mammals front the list ofspecies of warmblooded animalsexempted by i egulation and wouldbring them under the jurisdiction andprotection of the Animal Welfare Act.The Marine Mammal Commission hasreeommeaded that the Secretary ofAgriculture adopt certain standardsunder the Animal Welfare. Act logovern the humane handling, care,treatment, and transportation ofmarine mammals. Regulations andstandards were first proposed and pub-lished in the FEDERAL REGISTER onAugust 19, 1977. Comments and rec-ommendations were received from thepublic and the Marine Mammal Com-mission. This Department has evaluat-ed the comments and recommenda-tions and has decided to modify theproposal of August 19, 1977, and to re-publish it as a proposed amendment tothe regulations and standards underthe Animal Welfare Act to govern thehumane handling, care, treatment,and transportation of marine mam-mals.

DATE: Comments on or before No-vember 20, 1978.

ADDRESSES: Comments to DeputyAdministrator, USDA. APHIS, VS,Room 703, Federal Building, 6505 Bel-crest Road, Hyattsville, Md. 20782.Comments are available for inspectionat the above address during regularhours of business (8 a.m. to 4:30 p.m.Monday through Friday, except holi-da •s) in a manner convenient to thepublic business (7 CFR 1.27(b)).

FOR. FURTHER INFORMATIONCONTACT:

Dr. Dale F. Schwindarna,n, SeniorStaff Veterinarian, -Animal CareStaff, 'Veterinary Services. AnimalancrPlant Health Inspection Service,United States Department of Agri-culture, Room 703, Federal Building,6505 Beicrest Road. HyettsviLle, Md.20782. telephone number 301-436-8271.

SUPPLEMENTARY INFORMATION:On August 19, 1977, the Animal andPlant Health Inspection Service(APHIS) published a proposed rule-making under the Animal Welfare Act(42 FR 42044) which proposed stand-ards and regulations for the humanehandling, care, treatment, and trans-portation of marine mammals whenMaintained in captivity. This proposedrulemaking would amend Parts 1 and3, Subchapter A, Chapter I, of theCode of Federal Regulations. TheAnimal Welfare Act, as amended (7U.S.C, 2131 et seq.), requires the Sec-retary to promulgate regulations andto set standards governing thehumane handling, care, treatment,and transportation of animals by deal-ers, research facilities, exhibitors, andoperators of auction sales. Such stand-ards must include such specific areasas (1) handling, (2) housing, (3) feed-ing, (4) watering, (5) sanitation, (6)ventilation, (7) transportation, (3)shelter from extremes of temperature,(9) adequate veterinary care, and (10)separation of species, to provide theanimals with the minimum essentialsto maintain them in a state of goodhealth.

Following publication of the pre-posed rulemaking on August 19, 1977(42 FR 42044), a 60-day period was des-ignated for the purpose of invitingpublic comment. During the commentperiod, three informal public hearingswere held at different locations withinthe United States to provide thepublic the opportunity to voice itsopinion regarding the proposed rule-making. A notice regarding two ofthese meetings was announced in theFEDERAL REGISTER on September 13,1977 (42 FR 45934). The first meetingwas held on September 26, 1977, in LosAngeles, Calif., and the second inMiami Springs, Fla. on September 29.1977. A third meeting was announcedin the FERERAL REGISTER on October 4,1977 (42 FR 53968). It was held in Col-lege Park, Md,, on October 18, 1977.The proceedings of all three meetingswere recorded, and all the discussionsand comments are a matter of publicrecord. Written comments were alsoreceived during the comment period -and are on file and available to thepublic,

At the end of the comment periodthere were 49 letters and written state-ments received with regard to the pro-posed rulemaking. In summary, thecomments from the private sector ofthe public, including individuals whoapparently do not have any direct in-terest in marine mammals consist ofthe following: One was opposed toAPHIS' proposals as being much toolenient; there were 14 which generallyagreed with the proposals and suggest-ed that a few areas be strengthened,and there was one which agreed but

indicated that eetenshe changesshould be made. Comments feem thevarious animal welfare groups eonei.;t-ed of one which v as opposed to all theproposed standards as being too mild,and four which agreed with the st re-d-ards as written. Meet comments camefront the industry such as zoos, cir-cuses, universities, research facilities,and others who will be primarily af-fected by the new requirements, Noneof these eereed with the proposal aswritten. There were two which op-posed any form of regulation overmarine mammals. Fourteen agreedwith the basic concept of the proposalbut strongly urged modifications. TheMarine Mammal Cortnniesion support-ed the Imeic concept of the proposalbut noted that the provisions of theproposed regulations were net consist-ent with those it had recommended tothe Department in 1975. It recom-mended that the Department modifythe provisions to make them consist-ent with its recommendations. Inorder to more fully discuss such rec-ommendations, the representatives ofthe Commission requested a meetingwith the Department prior to publica-tion of this proposal. Such a meetingwas held on July 20 and 21, 1978, inDepartmental offices of USDA.

The various comments that were re-ceived with .regard to the proposedrulemaking and the recommendationsof the Marine Mammal Commissionwere evaluated by this Department,and it was determined that severalareas needed extensive revision.Therefore, the Department has decid-ed to redraft the original proposal andto republish the regulations andstandards as a proposed rulemaking.

Notice is hereby given in accordancewith the administrative provisions in 5U.S.C. 553, that, pursuant to the provi-sions of the Animal Welfare Act (7U.S.C. 2131 et seq.), the Departmentof Agriculture is proposing (1) toatitend the regulations under the Act(9 CFR. 1.1) to revise the definition of"animal" to include marine mammals.to add the term "pool" to the defini-tion of "primary enclosure", and todefine the term "minimum horizontaldimension"; and (2) to provide newstandards (9 CFR 3.1 et seq.) regard-ing the humane handling, care, treat-ment, and transportation of marinemammals.

These proposed standards and regu-lations would apply for the humanehandling, care, and treatment of allmarine mammals maintained in cap-tivity. All facilities which housemarine mammals in captivity would berequired to comply with the proposedstandards and regulations unless theyare granted written permission by theSecretary to maintain a facility whichdoes not meet every requirement ofthe standards and regulations. Such

FEDERAL REGISTER, VOL. 43, NO. /82—TUESDAY, SEPTEMBER 19, 1978

PROPOSED RULES 42201permission would only be grantedupon written application and upon thesubmission of all the information re-quested by the Secretary regardingthe facility seeking such permission.

It is proposed herein that facilitieshousing marine mammals be allowedto obtain such permission to operateunder license even though they maynot be in full compliance with thestandards for two reasons. The first ofthese is that there may be existing fa-cilities containing healthy and wellkept marine mammals, which do notmeet the proposed requirements inevery respect. The area of marinemammal care is relatively new to theDepartment and some of the require-ments of the standards may go sub-stantially beyond the requirements ofthe Animal Welfare Act, i.e., minimumstandards for the humane handling,care, and treatment of marine mam-mals. It would therefore be unfair forthe Department to demand that suchfacilities immediately comply withevery standard or face administrativeor criminal action for failure to do so.During the time period in which devi-ation from the requirements would beallowed (a maximum period is 4 yearsfrom the effective date of the regula-tions and standards), the Departmentwould have an opportunity to furtherresearch the various aspects of marinemammal care, and to amend the re-quirements when deemed appropriate.The second reason for proposing toallow permission for deviation fromthe standards is a purely economic andPractical one. If a facility needs tomake extensive structural changes tocome into full compliance, it may needenough time to be able to accomplishthis task since renovation or new con-struction could entail a great amountof money as well as time. An exemp-tion to deviate from the standardswould also be granted by the Secre-tary in cases where a facility wishes to.experiment in the area of maintainingmarine mammals in captivity.

A request for permission to operatea facility that deviates from the pro-posed standards, or a facility which re-quests a temporary exemption to ex-periment with basic husbandry prac-tices of maintaining marine mammalsin captivity, would not be considered aright. The Secretary could deny suchrequests if he determines that grant-ing them would be harmful or detri-mental to the good health and well-being of the marine mammal involved.

The standards and regulations wouldbecome effective 90 days after publica-tion as a final rulemaking in the FED-ERAL REGISTER. It is proposed hereinthat within that 90-day period ail fa-cilities housing marine mammals berequired to apply to the Deputy Ad-ministrator of APHIS to have theirmarine mammal facilities inspected by

Department inspectors. A facility al-ready licensed by the Department asan exhibitor or as a research facilityhaving marine mammal housing areaswhich are in compliance with the Actwould need no further license, Facili-ties not licensed by the Departmentwould be issued a license providedthey were in compliance with all thestandards and regulations.

Any facility not totally in compli-ance at the time of the inspection'would have the opportunity to obtainpermission from the Secretary to oper-ate as a licensee under the Act. Suchpermission would be in writing ane allexisting deficiencies would be listedthereon. A timetable would be re-quired to be submitted to the Secre-tary, by the reoplicant, for correctionof such ueficiencies: Provided, how-ever, That any facility having such se-rious deficiencies that the good healthand well-being of the marine mammalscontained therein are in jeopardy.would be required to immediately cor-rect such deficiencies. A maximum of4 years from the effective date ofthese standards and regulations wouldbe granted for extensive new or reno-vative construction to bring the facili-ty into total compliance with the Act.A determination would have to bemade by representatives of the Secre-tary at the time of the first inspection,as to the priorities of correctiaig thedeficiencies.

On evaluating the comments re-ceived, there appears to be some Con-fusion under what authority this De-partment is proposing these regula-tions and standards. There is alsosome question regarding the duplica-tion of authority of other Governmentdepartments or agencies in regulatingmarine mammals. The authority topromulgate the regulations and to setstandards for the humane handling.care, treatment, and transportation ofcaptive marine mammals by dealers,research facilities, exhibitors, and op-erators of auction sales was given tothe Secretary of Agriculture by the1970 Amendments to the Animal Wel-fare Act (Pub. L. 91-579). Such author-ity was extended to cover carriers andintermediate handlers by the AnimalWelfare Act Amendments of 1976(Pub. L. 94-279). The Secretary tempo-rarily exempted warmblooded aquaticanimals or marine mammals by regula-tion and is now prepared to removethem from exemption.

Under provisions of the MarineMammal Protection Act of 1972) Pub.L. 92-522), the administrative responsi-bility for regulating marine mammalsin the wild, and those removed fromthe wild and held in captivity after theeffective date of the Act, was given byCongress to the Departments of Com-merce and the Interior. Those Depart-ments have prescribed the regulations

that apply to such animals. Such au-thority is exercised through a permitsystem whereby permits to obtain newmarine mammals or replacementsfrom the wild are issued, provided thatthe applicants for such permitscomply with provisions of these per-mits with respect to the handling andcare of the animals. The authority ofthe Department of Agriculture ex-tends to marine mammals held in cap-tivity regardless of when they weretaken. There appears to be some over-lap and duplication of effort betweenthe two Acts, but in fact, they dovetailvery nicely and each agency has itsown area of responsibility. The De-partments of Commerce and the Inte-rior have indicated their interest toenter Into an agreement with USDAfor purposes of regulating the mainte-nance in captivity of marine mammalsthat would otherwise be subject totheir jurisdiction and regulationswhen these proposed regulations andstandards become effective.

The Marine Mammal Commission,created by the Marine Mammal Pro-tection Act, of 1972, was given the re-sponsibility of studying and recom-mending to the Secretaries of Com-merce and the Interior, and to otherFederal officials, such steps as itdeems necessary or desirable for theprotection and conservation of marinemammals. It has recommended thatthe Secretary of Agriculture removemarine mammals from the list of spe-cies exempted by regulation from cov-erage under the Animal Welfare Actand adopt certain standards and regu-lations for their humane handling,care, treatment, and transportation.Such recommendation and supportingtechnical data have been used as thebasis for proposing these proposedamendments to the regulations andstandards under the Animal WelfareAct. Prior to obtaining this data andother information regarding marinemammals, this Department did nothave sufficient information on whichit could base such regulations andstandards.

In developing the proposed stand-ards, this Department relied on infor-mation and recommendations frommany sources, including the MarineMammal Commission, and also addednumerous paragraphs so that the pro-posed standards would conform to thepresent standards which apply to allother warmblooded species covered bythe Animal Welfare Act. This is espe-cially true with respect to the trans-portation standards which are re-quired by the 1976 Amendments to theAnimal Welfare Act and which wouldapply to common carriers and interme-diate handlers.

The proposed regulations and stand-ards apply to several orders and manyspecies of marine mammals which

FEDERAL REGISTER, VOL. 43, NO. 182—TUE5DAY, SEPTEMBER 19, 197E

42202 PROPOSED RULES

have significant differences with re-spect to their biological and behavior-al requirements. In all cases, the goalof the proposed regulations and stand-ards is to provide each individualmarine mamma/ with at least mini-mum acceptable conditions consistentwith its good health and well-being. inreference to its physical requirementsand behavioral characteristics. Itshould be understood, hpwcver, thatthe Department is still developing newInformation regarding the proper pro-cedure for maintaining marine mam-mals in captivity and that the stand-ards and regulations proposed hereinmay, in some instances, be more or lessthan the minimum required. As newinformation regarding marine mam-mals Is acquired, the Department ex-pects to amend the standards and reg-ulations accordingly.

Standards relating to the humanehandling, care, treatment, and trans-portation of animals currently coveredby the Animal Welfare Act are con-tained in 9 CFR part 3, subparts A, B,

D, and E. The individual subpartsare oriented to similar kinds or classesof animals and have many sectionswhich are equally applicable to thehumane handling, care, and treatmentof all animals. It is proposed that sub-part E of the standards be redesignat-ed as subpart F and be renumbered ac-cordingly, and that a new subpart E beadded to the standards containing theminimum standards for marine mam-mals.

DIScuSSION OF COMMENTS

COMMENTS REGARDING FACILITIES,HEALTH, AND HIISBANDRY

There were several comments re-ceived stating that the proposed re-quirement, "that the surfaces withinthe primary enclosure pool and thearea immediately surrounding thepool should provide a nonporous, wa-terproof finish, free of cracks or im-perfect junctures," was impossible.The Department does not intend tosay that cracks and imperfect junc-tures would not occur, but if cracks ap-peared or if there were settling or up-heavals, then these would be requiredto be repaired as part of a regular on-going maintenance program. Further-more, it would be expected that aneffort would be made to avoid or mini-mize such imperfections during con-struction. Broken cement is unsightlyand indicates neglect, as well as beinga health hazard to the animals, as it isdifficult if not Impossible to cleanproperly.

With regard to primary enclosuresin general, the Marine Mammal Coin-mission pointed out that in the origi-nal proposal there were no provisionsfor facilities commonly found in coast-al areas which house marine mammalsin tidal basins, bays, and estuaries.

This type of primary enclosure wouldusually consist of a wawa! inletwhich is fenced to house marine mam-mals. The water in such an enclosureis circulated naturally by tidal actionor currents.

It is the determination of this De-partment that this type of primary en-closure would be required to meet orexceed the proposed standards andregulations with regard to the mini-mum space requirements of both the'pool and resting areas, depth of thewater (at the lowest tide), and the ap-plicable sanitation regulations. Verylittle construction is actually done in anatural primary enclosure pool otherthan the fence. Therefore, it is pro-posed herein that such pools beexempt from the surface, construc-tion, and drainage requirements pro-posed herein. However, the support fa-cilities surrounding the primary enclo-sure would be required to meet orexceed all the proposed standards andregulations, and the fence and the en-closure itself would be required tomeet the standards with respect toprotection of the marine mammalsfrom injury.

Facilities constructed near a sourceof natural water, and using the waterfor pool water in the primary enclo-sure, would be required to meet orexceed all parts of the proposed stand-ards and regulations. Water qualitywould be required to be monitored andthe discharge of the drainage effluentwould be required to meet iocal, State,and Federal requirements for wastedisposal.

Modern day pollution of natural wa-terways is a real problem, and facili-ties utilizing natural water would haveto continually monitor the water qual-ity to assure the water used in the pri-mary enclosure pool is not harmful ordetrimental to the good health andwell-being of the marine mammalshoused therein.

It is proposed that the area immedi-ately surrounding the pool, especiallyin primary enclosures for pinnipeds,can be any surface such as rocks, sand,dirt, etc., as long as it can be properlycleaned.

One comment stated that the pro-posal would require a sterile exhibitand that no provisions for any "deco-rations" or "furniture" were made.This was not the intent of the regula-tions. Rocks, logs, or any other objectswould be allowed to be placed in theenclosure for decoration or for thecomfort or entertainment of themarine mammals, as long as such ob-jects could be cleaned on a daily basisalong with the rest of the interior ofthe enclosure. These objects would notbe allowed to occupy space in the en-closure which is necessary to meet theminimum resting and social activityrequirements of the animals.

Another comment regarding theoriginal_ proposal consisted of a re-quest for the deletion of part of a sen-tence, lea "to restrict the entrance ofother animals" (§3.100(a)( I )1, ashendescribing the general construction re-quirements for primary enclosures, be-cause in natural enclosures that are lo-cated in tidal basins or near bays andestuaries, small fish swim in and out,of the enclosures. The Departmentdoes not intend to restrict the desir-able or unobjectionable animals, suchas small fish, gulls, or other birds.from entering the enclosure but in-tends to prevent the entrance of un-wanted animals. This clarification Istherefore reflected in this proposal.

There were several comments thatthe first proposal did not allow forpublic feeding or for petting poolswhereby the public is allowed to actu-ally touch the captive marine mam-mals, The proposed regulations didnot prohibit public feeding or pettingpools but stated that in the eventthere were no effective physical bar-riers to keep the public from injuringthe animals or the animals from injur-ing the public, then close or constantsupervision must be maintained at alltimes when there would be marinemammal/public contact. This meansan employee or attendant would needto be physically present to exercisesuch supervision at the exhibit duringthe contact period.

There were numerous commentsthat emergency backup equipment at,facilities would be expensive and un-necessary to provide for the animals incase of failure of the primary source.It was not intended that both powerand water sources be present at alltimes on the premises. The regulationas proposed would allow for portablepowerplants to be brought in for emer-gency use. Water could be hauled in,or any method could be used to bringin water for swimming, drinking, orcleaning purposes as long as the ani-mals were not caused to suffer becauseof the failure. Although the powerand water failure would not present animmediate problem to the animals, itwould be very difficult to maintainwater quality and provide for propercleaning if the failure lasted for an ex-tended period. Therefore, it is pro-posed herein that, written contingencyplans be provided to the Departmentfor approval concerning supplyingpower and water in the event of anemergency failure of the primarysources, The plan must be capable ofbeing implemented before the healthand well-being of the marine mammalis jeopardized.

With regard to drainage, the formerproposal slated that, not only mustproper drainage be present. at the pri-mary enclosure pool but, also at theresting and social activity areas imme-

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PROPOSED RULES 42203

diately around the pool in order toallow for complete drainage whichwould facilitate thorough cleaning.Furthermore, that proposal statedthat the area immediately around thepool be sloped or graded toward drainsto prevent soiled or contaminatedwater from reentering the pool. It wasalso proposed that all water, whethersplashed from the pool, rainwater, orwater used for cleaning perposes,should drain away from the pool andbe disposed of in a manner that com-plies with all applicable State, Federal,and local antipollution laws,

Several comments were received re-garding these proposed requirement,some statin g that there are ninny well-operated facilities in which all drain-age slopes toward the pool, this beingespecially true in closed systems thatcontinually recirculate saltwater. Mostlocalities prohibit the discharge ofsaltwater into public drainage systemsas a violation of the antipollutionlaws. Therefore, all saltwater must berecovered for recirculation. Facilitieswith this type of drainage must_ haveextremely efficient filtration systemswith fast turnover or recirculationrates in order to maintain properwater quality standards. After giving.these factors due consideration, the 'Department proposes to relax the pro-posed drainage requirements to allowthe drainage to reenter the pool pro-vided that proper water quality can bemaintained.

There were several comments re-ceived with regard to the proposed re-quirements for indoor housing ofmarine mammals. Most of the com-ments concerned the ambient air andwater temperatures in such housing.Eleven of the comments were of theopinion that the proposed tempera-ture ranges were unnecessare. Afterdue consideration of the comm ents ,re-ceived, the Department has deter-mined not to impose the temperatureranges, as previously proposed. Thereason for this decision is due to thenumber of adverse comments receivedstating that certain species of marinemammals cannot tolerate the upperproposed temperature range and otherspecies cannot tolerate the lower pro-posed temperature range, and thateven experts in the field do not agreethat an optimum temperature can befound for all marine mammals.

Since the maximum and minimumacceptable temperatures for everyknown species of marine mammalhave not been documented by scientif-ic research, they are not available tothe Department whereby they can beincorporated into the standards andregulation for each species. Neverthe-less, this Department realizes thatmaintaining appropriate ambient airand water tempereitures is vital to thegood health and well-being of marine

mammals. Therefore, although no spe-cific temperature range is required bythis proposal, it is proposed hereinthat the air and water temperatures inindoor facilities shall be sufficientlyregulated by heating or cooling to pro-tect the marine mammals from ex-tremes of temperature, to provide fortheir good health and well-being andto prevent their discomfort, in accord-ance with currently accepted practicesas cited in appropriate professionaljournals or reference guides dependingentirely upon the species housedtherein.

Marine mammals are air breathinganimals and proper ventilation is vereimportant to assure that they are pro-vided an adequate quantity of air ofgood quality.

There were two comments that theproposed air space of 2.44 meters (8feet) over the pools of water was ex-cessive arid that there could be less airspace, provided that the flow of air insuch space was increased. The techni-cal and scientific advisers to the De-part ment agree that the average mini-mum height requirement over thepool could be lowered to 1.83 meters (6feet.) if the air movement is such thatit satisfies all minimum standards forventilation. It is therefore proposedherein that the space over pools be notlees than an average of 1.83 meters (6feet) from the level of the water in thepool to the ceiling and that ventilationof indoor housing facilities be ade-quate to provide a flow of fresh air forthe marine mammals,

The proposed standards regardinglighting in indoor facilities remain un-changed in this propose/. It is pro-posed herein that indoor facilities formarine mammals must have sufficientlight provided by natural or artificialmeans so that animal caretakers canobserve the marine mammals both inand out of the primary enclosure poolof water to detemine their generalhealth and condition and so that theycan observe and maintian good sani-tary conditions. Lighting must also besufficient in distribution and intensityfor adequate inspection purposes. Italso appears that lighting in indoor fa-cilities is necessary to simulate the ap-proximate lighting conditions existingin nature, allowing for certain periodsof darkness and daylight.

The major comments concerningoutdoor facilities were with regard tothe amonut of ice in pools, shade fromexcessive sunlight, and shelter frominclement weather. Ten commentswere received with regard to allowingice in the pool for some species ofmarine mammals and not for others,twelve comments stated that there isno need to provide shade, and threecomments stated that there is no needto provide shelter from inclementweather.

As was stated in the previous propos-al, marine mammals come from agreat variety of climatic cone" ions,from equatorial waters to the polar icecaps, There is also a great range ct; cli-matic conditions within the UnitedStates. Outdoor facilities are com-pletely dependent upon local environ-mental conditions. Marine mammalshave adapted to the most hostile envi-ronments in the world, and their natu-ral habitats are very stark with little,if any, protection from adverse weath-er conditions. If their environment be-comes too undesirable, the marinemammal can escape to the sea or mi-grate to more suitable environmentalliving conditions. Captive marinemammals have no such natural escaperoute available to them. Therefore, ar-tificial protection must be provided foruse by the marine mammal in captiv-ity when the need to do so arises. Theprotection is especially important inthe case of marine mammals which,because of their age, illness, or anyother debilitating condition, cannotadequately regulate their body tem-perature. For these reasons, the De-partment intends to continue to re-quire that some sort of shelter be pro-vided when necessary to protect theanimals from either the sun or frominclement weather. Outdoor facilitieswould be required to be designed in amanner which would allow marinemammals contained therein to adaptto the variations of climatic conditionswhich exist in the geographical areawhere they are kept. If the local cli-matic conditions of the outdoor facili-ty vary form the conditions in whichthey were previously housed, themarine mammals will have to be accli-mated to their new environmentbefore being placed in such outdoorhousing facilities.

Originally, it was proposed thatwater in pools in primary enclosuresbe kept free of ice. Pools in outdoor fa-cilities which are covered with ice candeny marine mammals access for exer-cise. drinking, body temperature regu-lation, or can obstruct their free accessto the surface to obtain sufficient airfor normal breathing. However, afterconsidering various factors and afterconsulting with the Marine MammalCommission, this Department has de-cided to modify the original proposal.It, is therefore proposed that pools ofwater in outdoor facilities for ceta-ceans and sea otters be kept free ofice. It is further proposed that outdoorpools in polar bear and ice dwellingpinniped enclosures shall be kept suf-ficiently free of solid ice so as to notinterfere with free access to the poolby the animals by preventing theirentry or exit from the pool. It is alsoproposed that sirenians and warmwater dwelling pinnipeds shall not behouse in pools where water tempera-

FEDERAL REGISTER, VOL 43, NO. 182—TUESDAY, SEPTEMBER 19, 1978


Lure cannot be maintained within thetemperature range to meet theirneeds.

The Marine Mammal Commissionhas recommended that no marinemammal should be maintained alone.The Commission makes this recom-mendation because most marine mam-mals are gregarious and do not easilyadapt to isolation. It may be desirableto keep several individuals of a speciesfor more normal socialization, breed-ing, and for establishing normal spe-cies specific behavioral patterns. But itis the opinion of the Department thatthe imposition of such a requirementwould he unnecessarily restrictive.This Department has no authorityover the permit system of obtainingnew or replacement marine mammals.The Deportment cannot prosecute a li-censee for having a single marinemammal if other government agenciesdo not issue permits to obtain addi-tional marine mammals, However, inorder to encourage keeping more thanone marine mammal in an enclosure,the Department has made the pro-posed minimum space requirementsfor marine mammals, with the excep-tion of pinnipeds and polar bears, suf-ficiently large to hold at least two ani-mals.

Many comments were received withregard to the proposed space require-ments. Some of the general commentswere that marine mammal space re-quirements should not be lumped to-gether but should be determined foreach individual species. Some suggest-ed that the Department should alsoconsider the purpose of the housing,such as training, research, isolation,performing arenas,and other functionswhen setting space requirements.Others felt there should be consider-able space for exercise. All the com-ments were considered, and it is theopinion of the Department that mostwere valid. The problem is presentedof proposing minimum space require-ments under which marine mammalscan be housed, while taking into con-sideration their good health and well-being. Many experts and humane or-ganizations feel that more than theminimum should be provided, but theAnimal Welfare Act speaks in termson minimum requirements. Therefore,only the essential factors must be con-sidered to assure that handling, care,treatment, and means of transporta-tion are adequate to maintain themarine mammal in a state of goodhealth.

Space requirements for the widerange of marine mammals are quitevariable. The Marine Mammal Com-mission, in its advisory capacity to allagencies of the Federal Governmentwith regard to marine mammals, hasfurnished this Department with itsrecommendations from information

that has been collected by its scientificadvisory committee and which hasbeen used as a basis for the proposedspace requirements for marine mam-mals. Such information appears toprovide an adequate basis for settingspace requirements which would besufficient to assure the good healthand well-being of captive marine mam-mals,

Regarding the comments advisingdifferent space requirements for dif-ferent species, it should be noted thatthere are more than 100 species ofmarine mammals, and valid scientificdata regarding the minimum require-ments is not available regarding everyspecies. Therefore, the Departmenthas no choice other than "lumping"species of marine mammals together.However, consideration was given tothe different orders of marine mam-mals.

The Marine Mammal Commissionhas specifically recommended that theorder Cetacea (whales, dolphins, por-poises) be divided into two groups.This recommendation is, therefore,being adopted in this proposal. TheMarine Mammal Commission's justifi-cation for such division is based uponthe activity patterns of certain speciesof cetaceans, requiring more space forthe more active species. Most ceta-ceans are grouped in a category desig-nated as group I. Certain othe generaand species listed in §3.104(b) of thestandards proposed herein have beendesignated as Group II.

The four factors which must be con-sidered when determining minimumspace r. onhements for cetaceans areas follows: The minimum horizontaldimension (MED), the depth, the sur-face area of the pool, and the volumeof the pool,

MUD has been designated to meanthe diameter of a circular pool, or inthe case of a square, rectangular,oblong or other shape pool, the diame-ter of the largest circle that can be in-serted within the confines of suchpool, The MHD for each marinemammal is calculated to give it ade-quate freedom of movement in thepool horizontally. It is proposedherein that the MHD for a pool hous-ing marine mammals cannot be lessthan the MHD required for the long-est species of marine mammal con-tained therein.

It is also proposed that the primaryenclosure for cetaceans (e.g., whales,porpoises, and dolphins) need consistof only a pool of water. The reason forthis is that cetaceans spend all of theirtime in water. It is proposed that allgroup I cetaceans must be provided apool of water with an MHD which isat least two times the average adultlength of .the longest cetacean to becontained therein, as measured fromthe tip of its lower Jaw to the notch in

the tail fluke, In .e case of a nar-whale, if a tusk is nesent or will po-tentially develop. measurementshall be based on lie average adultlength from the' ti- of the tusk to thenotch in the tail Lake. It is also pro-posed that group II cetaceans must beprovided a pool with an MHD of fourtimes the average adult length of thelongest group Il cetacean to be housedtherein. If both group I and group IIcetaceans are to be housed in the sameenclosure pool, the MHD requirementmust be determined for both groupsand the MHD must be equal to orgreater than the larger of the two.

The minimum depth of a primaryenclosure pool for cetaceans would berequired to be at least one-half theaverage adult length of the longestspecies of cetacean housed therein re-gardless of group I or II status, asmeasured from the tip of its lower Jawto the notch of its tail fluke. Comput-ing proper depth, using this criteria,would allow the cetacean to be com-pletely covered with water and stillallow for vertical freedom of move-ment. It is therefore proposed that theminimum depth of a pool housing ce-taceans shall not be less than 1.52meters (5 feet) or one-half the averageadult length of the longest species ofcetacean housed therein, whichever isgreater. Regardless . of the totalnumber of cetaceans to be housed inthe pool, the minimum depth shall notbe allowed to be less than the mini-mum determined for the average adultlength of the longest species of ceta-cean housed therein. A pool of suchdepth which meets the required MHDand surface area would be consideredto contain a sufficient volume of waterfor one or two group I cetaceans ofone to four group II cetaceans.

The volume requirement for a poolof water containing two group I ceta-ceans or for four group II cetaceanswould be calculated using the MHDand depth requirements describedabove, It is proposed herein that one-half the required MHD squared, times0 (3.14), times the required depthwould result. in the volume required bythe standards. Dividing this volume bytwo would result in the volume neces-sary for each group I cetacean, and di-viding it by four would result in thevolume necessary for each group II ce-tacean. The volume which would berequired to be added to a pool contain-ing additional cetaceans (more thantwo group I cetaceans or more thanfour group II cetaceans) may be ob-tained by expanding the lateral dimen-sions, by deepening the pool, or by acombination of the two.

One comment received was that theproposed regulations made no provi-sions for surface area requirementsavailable to the cetaceans for breath-ing space. There was some concern



that, as more cetaceans are added tothe pool, volume requirements couldbe met by only deepening the pool;eventually there would not be enoughsurface area for all t he cetaceans to beon the surface at the same time to beable to breathe. This proposal obviatesthat, problem by requiring that a poolcontaining cetaceans must also have aminimum surface area. This would bedetermined by dividing the averageadult length of each cetacean in thepool by two and squaring this amount,then by multiplying the answer by 0(3.14) times 1.5, which is the safetyfactor discussed below. The sum of theresults of this, romputation fur all ce-taceans to be housed in a pool wouldrepresent the required surface area ofthe pool. It is not likely all cetaceanswould be on the surface at the sametime, but if that should occur theywould all have room for breathing. Asafety factor is also considered advis-able to allow a little more than the ce-taceans' own area. Therefore, it is pro-posed herein that a factor of 1.5 be ar-bitrarily used. since this would giveeach cetacean Its own area plus 50 per-cent.

There were several comments re-ceived regarding space requirementsfor sirenians. Some stated the MHDneed not be more than Ve times thebody length. Others commented thatthe 1.52 meters (5 feet) minimum wastoo deep for newborn sirenians.Others said that 1.52 meters (5 feet)was not deep enough as sireniansbreed in a vertical position and feed ina diagonal position. After giving dueconsideration to all the comments, ithas been decided to propose that thespace requirements for sirenians becomputed in the same manlier as thespace requirements for group I ceta-ceans, in that the MHD be based ontwo times the average adult length ofa sirenian, as measured from the tip ofthe muzzle to the notch in the midlineof the tail in the dugong, and from thetip of the muzzle to the most distalpoint in the midline of the roundedtail of the manatee. There are onlytwo genera of sirenians, both beingsimilar in size. Therefore for the pur-poses of these regulations, the averageadult length would be essentially thesame for both species.

It is therefore proposed herein thatthe depth of the pool holding sireni-ans cannot be less than one-half theaverage adult length of a sirenian or1.52 meters (5 feet), whichever isgreater. There may be areas in thepool that are less than 1.52 meters (5feet), but this should not be includedwhen computing MHD, volume, ordepth. Surface area requirements forsirenians would be the same as for ce-taceans.

There were few comments in regardto the proposals of space requirements

for pinnipeds. One stated that thereshould be a limit of 10 pinnipeds perenclosure. This is considered to be anoption of management, As long asmanagement can properly meet thespace and water quality requirementsand can maintain the animals in astate of good health, the Departmentwill not propose to restrict the numberof pinnipeds that may be housed inthe same enclosure. Most commentsreceived stated that a minimum depthof 1.52 meters (5 feet) was not neces-sary and that the depth In the poolshould be less. There was anothercomment. stating that no ramp wasnecessary for the pinniped to leave thepool since pinnipeds can jump or pullthemselves out of the water if theresting area is close to the water'sedge.

After due consideration of all com-ments received, it is proposed hereinthat the space requirements for pin-nipeds remain essentially the same inthis proposal, with the exception ofdepth and ramp requirements. It istherefore proposed that the space re-quirements for a primary enclosurehousing pinnipeds (e.g., seals, sealions, and walruses) should include apool of water as well as a dry area forresting and social activities, as theyspend much of their time out of thewater. The space allowed for each pin-niped for freedom of movement,mating, postural adjustments andsleep would be determined by its sizeand by the number of pinnipeds shar-ing the same enclosure. A pinniped ap-pears to require a minimum dry areaat least 50 percent larger than its ownlength squared. As more pinnipeds areadded to the primary enclosure lessspace should be allotted per animal be-cause of the greater amount of com-munal space available. It is proposedthat this be accomplished by reducingthe multiplier of 50 percent for thefirst animal by 10 percentage pointsfor each additional animal. The effectof this would be that the space re-quirement starting with animalnumber six and every additionalanimal would be figured by squaringits average adult length.

In computing the minimum dryspace requirements for pinnipeds, It isproposed that the average adultlength of each pinniped housed in theprimary enclosure shall be ascertainedby measuring it from the tip of itsnose to the tip of its tail in a horizon-tal or extended position. The measure-ments should then be arranged in de-scending order from the largest pin-niped, based on its average adultlength for each species represented,which would be animal number one, tothe smallest pinniped at the end. Thelargest pinniped would be given aminimum dry space of its own lengthsquared, plus 50 percent, or its own

length squared times 1.5. The secondlargest pinniped would be g iven aminimum dry space of its own lengthsquared, plus 40 Percent, or its ownlength squared times 1,4. The thirdlargest pinniped would be given aminimum dry space of its own length.plus 30 percent, or its own lengthsquared times 1.3. This would be con-tinued to the fifth largest pinnipedwhich would receive a minimum dryspace equal to its own length squared.plus 10 percent, or its own lengthsquared times 1.1. For ell additionalpinnipeds (more than five) added tothe primary enclosure, the spacewould be determined by allotting eachsuch pinniped a rniuimum dry spaceequal to its own average adult lengthsquared. The sum of such figures foreach pinniped in a primary enclosurewould represent the minimum dryresting and social activity area re-quired.

A pool of water whose MHD is twicethe average adult length of the long-est species of pinniped containedtherein appears to have sufficient sur-face area for two such pinnipeds. now-ever, additional surface area would berequired when more than two pin-nipeds are housed in the same primaryenclosure. Pinnipeds spend one-half orless of their time in the water, and,therefore, rarely would all pinnipedsin a primary enclosure be in the poolof water at one time. It is, therefore,proposed that when more than twopinnipeds are housed in the same pri-mary enclosure, the minimum surfacearea of the pool must be two-thirds ofthe dry resting and social activity arearequired for such pinnipeds. For pur-poses of calculation, it is proposedthat the minimum depth of the poolshall not be less than 0.91 meters (3feet) or one-half the length of thelongest species of pinniped containedtherein, whichever is greater. This is achange from the 5 feet in the priorproposal which is deemed to be justi-fied by the comments. Any part of thepool less than 0.91 meters (3 feet) deepwould not be considered in the calcula-tion for either the dry resting area orpool size. There were some commentsstating that the proposed resting andsocial activity area was excessive, butthe proposed space requirements werejust slightly more than would beneeded for the pinnipeds to turnaround if all of them were out of thewater. The comment regarding theproposed requirement of a ramp forentering and leaving the pool was con-sidered valid, and, therefore, that re-quirement has been deleted from thisproposal. There were no commentsconcerning the size of the pool beingeither too small or too large.

A few comments were also receivedwith regard to the proposed space re-qiiirements for polar bears, One



person commented that the poolshould be bigger than proposed. An-other thought that the proposed densize was too large. However, mostagreed with the space requirements.Therefore, it is proposed that theseproposed requirementa remain essen-tially the same. It is proposed hereinthat. a minimum dry resting area of31.16 square meters (400 square feet)be provided for one or two polar bearsand an additional 3.72 square meters(40 square feet) for each nddltionelpolar bear contained in a primary en-closure. It is also proposed that theden shall be at least 1.83 meters (6feet) in width and depth and 1.52meters (5 feet) in height (which is 1foot less than the previous proposal),which would allow sufficient space forone polar bear to make normal postur-al adjustments. A separate den wouldbe required for each adult female ofbreeding age as a private enclosure. Itis also proposed that sufficient shade,other than the den, be provided in aprimary enclosure containing polarbears. It is further proposed that thepool in any primary enclosure forpolar bears be a minimum of 2.94meterse8 feet> by 3.66 meters (12 feet)and at least 1.52 meters (5 feet) deep.

Sea otters appear to need a dry rest-ing area and a pool of water in theirprimary enclosures. It is necessary forsea otters to have a pool of. water tokeep their hair coat wet at all timesfor proper grooming and for insulationof the body, as they spend most oftheir time in the water. They cannotregulate their body temperaturesproperly if the hair coat is allowed todry. These animals when wet will usu-ally die of exposure or hypothermia ifthe hair coat becomes soiled or ley-perthermia if the hair coat is allowedto dry. Objective data concerning theminimum space requirements for seaotters is not available to the Depart-ment at this time. Therefore, the fol-lowing minimum space requirementsare proposed since this Departmenthas no information that would indi-cate that such proposals are not rea-sonable, necessary, appropriate, oradequate for sea otters. The MHD of apool of water for sea otters shall be at,least twice the average adult length ofthe longest sea otter contained there-in, as measured from the tip of itsnose to the tip of its tail. It is also pro-posed that the minimum depth of thepool shall not be less than 0.91 meters(3 feet). The volume of water in such apool would appear to' be sufficient forone or two sea otters. It is also pro-posed that the minimum dry restingarea for one or two sea otters be equalto the minimum surface area of thepool required for such sea otters.

When more than two sea otters arehoused in the same primary enclosure,both the dry resting area and the pool

volume would have to be increased,based on the average adult length ofthe sea otters. The additional mini•mum volume of water necessary tocontain inure than two otters would becalculated by multiplying the surfacearea of the pool by 0,D1 meters or 3feet (minimum depth of pool), and di-viding the result by two. The resultinganswer would represent the additionalminimum volume of water the poolmust contain for such sea otters. Thesurface area of a pool containing seaotters would be calculated In the samemanner as the surface area of a poolcontaining cetaceans, which has beenpreviously discussed. It is further pro-posed that the minimum dry restingarea for two sea otters, which shall becomputed as specified in § 3.104(f) ofthis proposal, be increased by one-halfthe square of the average adult lengthof each additional sea otter times 0(3,14) . when more than two such ani-mals are contained in an enclosure.

Several comments were receivedwith regard to the feeding of marinemammals. Some of the comments re-quested that the Department specifythe kind of fish to be fed to captivemarine mammals, require the food bevitamin fortified, and require exten-sive records of individual food intake.Most of these comments deal withhusbandry or curatorial matters, andthe Department does not wish to in-terfere as these are considered man-agement responsibilities. The Depart-ment would require that marine mam-mals be maintained in a state of goodhealth and would make this the re-sponsibility of management.

Sonic comments requested that thefood be allowed to come to ambienttemperature before freezing. It is thisDepartment's opinion that it would berisky to allow this because bacterialcontamination and decompositionwould be well advanced since thawingfrozen fish or other food usually takessome time, and the surface thaws con-siderably sooner than the deeper por-tions.

It has come to the attention of thisDepartment that frozen food may bethawed up to 24 hours prior to feedingwithout causing adverse effects.Therefore, the 18-hour time period forthawing of food, which was originallyproposed, will be changed to 24 hoursin this proposal, and the time wouldstart running when the food Is re-moved from the freezer. The foodwould be allowed to warm slightly butonly immediately before feeding andnot for an extended period of time.This would be to assure that no ice re-mains in the food since there is someopinion that ice in food could cause di-gestive upsets in marine mammals.

The Department is also deleting theterm "competent" before the word"employee" in this proposal as it, is

.hard to define a competent employee.Management of the facility would beresponsible for assuring that the ani-mals are properly fed and it is expect-ed that this task would be entrusted toan employee who is capable of assum-ing the responsibility.

There were some comments that noprovision was made to allow publicfeeding. The Department proposes torelax this restriction and allow publicfeeding provided it is closely super-vised. The facility would still have t heresponsibility of assuring that eachmarine mammal receives a proper diet.and that no foreign bodies or nonfoodobjects are given to the animals eithermaliciously or accidentally by the par.ticipating public. Close or constant su-pervision would be required to bemaintained at all times when there ismarine mammal/public contact. Thiswould mean that an employee wouldneed to be physically present to exer-cise such stipervicinn 'miring the con-tact period. The food given to the ani-mals would be required to be obtainedfrom the facility housing the marinemammals.

Water quality is extremely impor-tant for marine mammals and at leastminimum standards need to be main-tained for the good health and well-being of the animals. Marine mammalsare air breathing animals, and it is notnecessary for the water to contain suf-ficient oxygen for respiratory func-tions as there is no gaseous exchangesbetween marine mammals and thewater.

Several comments were received In-dicating that polar bears should haveless restrictive standards for water inpools that the other marine mammals.Pools for polar bears are generallysmaller than pools of other marinemammals. and they are usuallydrained, cleaned, and 'refined withwater on a routine schedule. There isusually a continual flow of new waterinto the pool and the overflow is dis-charged. There is generally no at-tempt to reclaim the water by filtra-tion. For these reasons, APHIS did notoriginally propose that the water qual-ity standards for polar bears be thesame as for other marine mammals.but simply required that the waterquality would have to be maintainedin such a manner as would be neces-sary to keep the polar bears in a stateof good health. The Marine MammalCommission has recommended that nospecial exemptions be allowed forpolar bear pools. Therefore, this De-partment, being in agreement withthat recommendation, is proposingherein that polar bear pools meets thesame water quality requirements asfor other marine mammals.

Some comments Indicated that con-form count and chemical monitoringare not necessary in pools that receive


PROPOSED RULES 42207sea water directly from bays and estu-aries. This appears to be true with re-spect to chemical monitoring, with theexception of chemicals that are addedto maintain water quality, but is nottrue with respect to coliform count. Itis proposed that both of these shouldstill be done routinely to assure theproper quality of water If chemicalsare added. This is especially true Inlight of the fact that some bays andestuaries are badly contaminated withhuman waste and sewage; therefore,coliform counts are important toassure that the water meets the com-pliance which are proposed herein.

Requests were also received thatminimum and maximum levels of allchemical additives be specified in thestandards. This is a function of man-agement, as the Department wouldallow chemicals to be added to thewater to assist in maintaining properwater quality and to control excessivealgae and moss. These chemical addi-tives, regardless of which ones areused, would not be allowed to be toxicor strong enough to cause the marinemammals injury or discomfort, andchemical monitoring is the only way todetermine strength and effective levelsof the chemicals.

It was also pointed out In some com-ments that eye infections, cornealopacities, poor hair coat, or contami-nation of surface wounds on the ani-mals are not necessarily a sign of poorwater quality, as was indicated by theformer proposal. It is true that waterquality can be substandard and stillnot causel.he marine mammals to ex-hibit these conditions. It is also truethat certain animals can exhibit someof these conditions and still have theproper water quality, If there is an iso-lated animal or two with a problem, itis probably not due to the water qual-ity. but if most, or all, or the animalshave similar conditions to somedegree, then water quality must besuspected and that would be the start-ing place when trying to diagnose theetiology of the conditions. However,the Department must agree that ageneral statement that any of theabove conditions automatically meanthat the water quality is unacceptableif not valid. This proposal has there-fore deleted such statement.

There were other comments thatnormal sea water can contain as muchas 36 parts per thousand of salt andnot be harmful to marine mammals.There was also a commeht by theMarine Mammal Commission thatthere should be no minimum level ofsalt since it is proposed to allow freshwater to be used if the individualmarine mammal species can toleratefresh water over an extended period oftime. These comments were consideredto be valid and the part of this propos-

al dealing with salinity has beenamended accordingly.

With respect to water quality, it isfurther proposed herein that thepurity of water in closed systems byassured by keeping the coliform bacte-ria count below 1.000 MPN (most prob-able number) per 100 ml. of water andthat filtration systems be used to filterout particulate material. All marinemammals defecate in the . water oftheir pool, and the filtration systemmust. be able to circulate the waterthrough the filters to keep it freefrom excrement P...3 well as dirt orother debris that gains entry to thepool. It is proposed that the filtrationof recirculated water, or the additionof new water, be at a rate which is suf-ficient to maintain proper water qual-ity at all times. It I- also proposed thatwhen salinized waver is used, it bewithin the range of the salinity ofnormal sea water not exceeding 36parts per thousand, Further, it is pro-posed that the pH of the water bemonitored to assure that it approxi-mates the pH of normal sea water.Chemicals that are added to the poolto control bacteria or algae must notbe so strong as to adversely affect thequality of the water to the point thatit might be harmful or cause discom-fort to the marine mammals.

About the only comments receivedthat are concerned with the proposedsanitation standards were commentsby several persons that algae is notharmful to marine mammals and is, infact, beneficial in small amounts. ThisDepartment did not intend to com-pletely prohibit algae or moss. Howev-er, any algae or moss which is presentmust be kept under control. There-fore, the sanitation standards whichappeared in the original proposal areproposed herein without change.

These standards are necessary toassure that the facility which housesmarine mammals is maintained in aclean and sanitary condition so as notto pose a health hazard to the marinemammals contained therein, or to theemployees who work at the facility, orto the viewing public.

Standards regarding pest controlwhich appears in the original proposalare also part of this proposal.

The only comments received withregard to employees were requeststhat the type of training requirementsbe clarified. The type of training, be itacademic or on-the-job training, willnot be specified by this Department.The responsible officials of a facilitywhich houses and maintains marinemammals must assure that their em-ployees have sufficient training to dothe job assigned and that captivemarine mammals are not caused tosuffer because of improperly trainedemployees. What is required by theproposed regulations (both these ant

the ones of August 19, 1977) is thatemployees taking care of the marinemammals must be under the supervi-sion of an experienced marinemammal caretaker,

With respect to the subject of sepa-ration of animals, it is proposed thatmarine mammals that are not com-patible shall not be housed in thesame primary enclosure. In addition tothe separation of 'Incompatible spe-cies, there should also be separationamong the same species if the goodhealth and well-being of any animalcontained therein is in jeopardy. It isalso proposed that marine mammalsthat are incompatible with other ani-mals shall not be housed near animalsthat would cause them stress or dis-comfort or would interfere with theirgood health. On the advice of theMarine Mammal Commission, the De-partment has also added to this pro-posal the requirement that marinemammals be given access to other ani-mals.

Those commenting on the proposedregulations and standards also men-tioned veterinary care of marine mam-mals. Those comments were consid-ered and appropriate action was takenwhere necessary. It was recommendedthat pools used for isolation or treat-ment, or for any reason as short-termholding pools, need not meet the later-al and depth dimensions of a perma-nent housing pool. This Departmentfeels, these comments are reasonableand accepts the recommendation.There were also some comments thatyearly blood tests be required, but inthe opinion of this Department, suchactivity should be a responsibility ofmanagement and the veterinary careprogram. The Marine Mammal Com-mission, in its advisory capacity, rec-ommended that a thorough and com-plete necropsy be required followingthe death of any marine mammal incaptivity. After carefully consideringthe recommendation, this Departmenthas decided that such a necropsywould be useful in determining thecause of death, monitoring the health,and determining the adequacy of vet-erinary care of the animals. It is there-fore proposed that a complete ne-cropsy must be conducted by a veterin-arian on all marine mammals that diein captivity. A necropsy report wouldhave to be prepared by the veterinar-ian performing the necropsy. Thisreport would be required to be kept bythe management of the facility wherethe animal died for 2 years so that itcould be presented to Department in-spectors on request.

COMMENTS REGARDING TRANSPORTATIONSTANDARDS

Section 13 of the Animal WelfareAct (7 U.S.C. 2143) requires the Secre-tary to promulgate standards to



govern the humane handling, care,treatment, and transportation of ani-mals by dealers, research facilities,and exhibitors, Provisions of theAnimal Welfare Act Amendments of1976 (Pub. 94-279). enacted on April22, 1976. also require the Secretary ofAgriculture to promulgate standardsto govern the transportation in com-merce, and the handling, care, andtreatment in connection therewith, byintermediate handlers and carriers ofanimals consigned by any dealer, re-search facility, exhibitor, operator ofan auction sale, or other person, orany department, agency, or instrumen-tality of the United States or of anyState or local government., for trans-portation in commerce, The Secretarywas also given authority to promul-gate such rules and regulations as hedeterse ines necessary to assurehumane treatment of animals in thecourse of their transportation in com-merce. Including requirements such asthose with respect to containers, feed.water, rest, ventilation,. temperature,and handling.

The proposed transportation stand-ards contained herein have been writ-ten to provide marine mammals withthe same general protection and careas that proposed for all other speciesof animals covered by the Animal Wel-fare Act and published in the FEDERALREGISTER on August 19, 1977, at 42 FR42844.

The Marine Mammal Commissionand other sources of expertise intransporting marine mammals haveoffered suggestions which were help-ful in writing the proposed standards.In drafting the proposed standardscontained herein, the Department hasgiven careful consideration to the var-ious suggestions and recommenda-tions. For the sake of uniformity andconsistency, it has followed the sameformat and imposed similar regula-tions on common carriers and interme-diate handlers that transport marinemammals as those that have been pro-mulgated for all 'other warmbloodedanimals covered by the Animal Wel-fare Act.

Special provisions were being consid-ered for marine mammals which arepart of traveling shows and are notpermanently housed in stationary fa-cilities. There were numerous com-ments to the effect that circuses andother traveling animal acts which ex-hibit marine mammals were not prop-erly covered in the original proposal.The Marine Mammal Commission, aswell as members of humane groups,have recommended to the Departmentthat, no special allowances be made forthese animals and the regulations andstandards as proposed should apply toall marine mammals covered by theAnimal Welfare Act. After a thoroughconsideration of these recommenda-

tions, it is the decision of this Depart-ment to propose that circuses andtraveling shows meet the same re-quirements as other exhibitors.

Most shipments of marine mammalswill be consigned to private transport-ing concerns that specialize in trans-porting marine mammals. These busi-ness concerns should have the experi-ence and the equipment to assure thesafe delivery of the marine mammalsto their destinations. It appears thatvery few marine mammals would betransported by the normal commoncarrier or intermediate handler. How-ever, the proposed transportationstandards for marine mamma's wouldapply to all dealers, exhibitors, re-search facilities, carriers, and interme-diate handlers.

There were several comments aboutconsignments to normal common car-riers and intermediate handlers andthe obligations and responsibilities ofthe carriers, One comment was thatno marine mammal should be trans-ported unaccompanied at any time.Some comments suggested that priorarrangements should be made requir-ing the consignee to meet the ship-ment on arrival at its destination. Sug-gestions were also made that a 24-hourtelephone number be required on thewaybill so the carriers and intermedi-ate handlers can notify the consigneeImmediately on arrival anytime day ornight. The original proposed standardsand regulations require that the card-er must attempt to notify the consign-ee as soon as possible after the arrivalof the animal at the final terminal,and if unable to do so. must try atleast once every 6 hours, A commentwas received that the 6-hour require-ment should be reduced to no morethan 4 hours. After carefully consider-ing this suggestion, it is proposed tolower that requirement to 4 hours.

As was done in the original proposal,requirements for primary enclosuresused in transporting the differentorders of marine mammals are dividedinto two categories in this proposal.Pinnipeds and the marine carnivores(polar bears and sea otters) are in onecategory, and it is proposed that theycan be shipped in crates similar tothose that are used in transportingother zoo animals. It is important thatthese animals be given sufficient spacein the primary enclosure used fortransportation to assure that theyhave room to move or lie down innormal postural positions without im-peding their appendages. The secondcategory includes the cetaceans and sl-renians, and it is proposed that theybe transported In devices which are de-signed to support their body weightand provide easy access to the animalsby employees to administer theirneeds in transit. Without the buoyan-cy of water, these marine mammals

move with great difficulty. Therefore,it is proposed that cetaceans and sire-nians be transported in welt paddedstraps. slings, harnesses, or other de-vices for body support that are de-signed to protect the animal while intransit and to allow attendants to ad-minister to their needs. The proposedstandards for transporting cetaceansand sirenians take into account theneed of these animals to be supportedand protected from injury duringtransportation. There was a commentfrom one person that straps, slings.harnesses, etc., are not used in trans-porting cetaceans and sirenians, andthe animals he transports are place ona foam rubber pad and no restrainingdevices are used whatsoever. The De-partment considers a foam rubber pada form of body support. Furthermore,some devices would have to be used ingetting the animals in and out of thetransporting conveyance. A large ceta-cean. totally unrestrained, could bedangerous to itself and the conveyanceif allowed to thrash about for anyreason.

There were several comments thatthe proposed ventilation requirementsof the primary enclosures used totransport marine mammals, otherthan cetaceans and sirenians, were notadequate. It was the opinion of thosecommenting that due to the body tem-perature regulating capacity of marinemammals, in that they have a tenden-cy toward overheating, the proposed 8-percent ventilation on two ends of theenclosure was not sufficient. It Isagreed that this is a valid considera-tion and, therefore, It is proposed toincrease the ventilation requirementsto at least 15 percent on each side ofall four sides of the enclosure. Thisshould provide adequate ventilationfor the animal contained therein inboth a prone and standing position.

Comments were also received regard-ing the proposed requirement thatfemale marine mammals in season(estrus) shall not be transported in thesame primary enclosure with any malemarine mammals. It was commentedthat it is not easy to determine if amarine mammal is in season. It isagreed that this is difficult. Therefore,it is proposed herein that femalemarine mammals shall not be trans-ported in the same primary enclosurewith a sexually mature male.

Some comments also stated that theproposed size of the primary enclosureused to transport pinnipecis was toolarge and extensive. They stated thatpinnipeds seldom, if ever, fully extendtheir body and flippers in all direc-tions. It was also stated that a smallprimary enclosure was better since theanimal would not have room to moveabout excessively and injure itself. Itis the determination of APHIS thatthe larger primary enclosure is more


• PROPOSED RULES 42209

humane and better [or heat dissipa-tion and ventilation. It was interpretedby some who commented that contactwith supporting framework or othersolid structures during transportationwas prohibited by the proposed regu-lations and standards, whereas the De-partment's intent was that these solidobjects, if capable of causing injury,should be padded or eliminated.

A few comments were received re-garding the primary conveyance usedto transport marine mammals. Oneperson thought that the proposed reg-ulation concerning the animal cargospace and the prevention of engine ex-haust fumes and gases was too restric-tive. It was argued that there shouldbe some allowances since there was noway to completely prevent any ex-haust fumes from entering, especiallywhen the doors to the cargo space areopen when loading and unloadingcargo. It was not intended that therewould be absolutely no tolerances andthat any exhaust fumes or gases wereprohibited. It was intended that everyPrecaution be taken to protect theanimal cargo space from being filledwith exhaust fumes and gases thatcould reach such concentration thatwould make the animals ill or evencause their death. The Department,therefore, proposes that the ingress ofexhaust fumes and gases cannotexceed that ordinarily contained inthe passenger or operator compart-ment of the primary conveyance.

A comment was also received regard-ing the proposed requirement of posi-tioning animals in the primary convey-ance in such a manner that in anemergency they could be removedfrom the conveyance in a 5-minuteperiod. It was pointed out that certainmarine mammals are extremely largeand heavy and that special animalhandling equipment is required tomove these animals. Therefore, it isproposed herein that marine mammalsbe positioned in a conveyance in sucha way that in emergencies they can beremoved from the primary conveyanceas soon as possible.

Most comments received were direct-ed toward not feeding or watering themarine mammal during transit. Somestated that feeding or watering mightresult in the animal vomiting, and incertain animals, this could be very det-rimental if not fatal. Another com-mented that feeding results in a prob-lem of fecal contamination that can beminimized by fasting. The primaryconcern of the Department, however,in proposing regulations for feedingand watering while in transit is toassure that the marine mammal ar-rives at its destination in the bestphysical condition possible. It is truethat denying the animal food andwater while in transit is not necessar-ily cruel and inhumane treatment. Ex-

perts in the field of transportingmarine mammals must determinewhat is best for the animal to assurethat it does not suffer harm or injuryduring transportation. This is one ofthe reasons for proposing that an at-tendant accompany certain types ofmarine mammal shipments (shipmentsinvolving sirenians, cetaceans, and seaotters, and also shipments lastingmore than 12 hours) so the conditionof the animal can be closely observed.

Marine mammals are generally notfed while in transit and, in most cases,it. is an accepted practice to actuallyfast the animals for a short periodprior to shipment. The sea otter is anexception to this general rule in thatit should have food available while intransit. Some comments were receivedindicating that sea otters should notbe fed while in transit because of pos-sible problems with sanitation insidethe primary enclosure. However, onthe recommendation of the MarineMammal Commission, this Depart-ment has determined to propose thatsea otters have food available while intransit.

Some comments expressed a desirethat a]] shipments of marine mammalsshould be accompanied by an atten-dant. This was not proposed becausewhen certain marine mammals areconfined in strong, secure primary en-closures during shipments an atten-dent cannot monitor or service their intransit needs as he would not haveaccess to the animal. If prolonged orextended shipping periods of morethan 12 hours in transit occur, then itis proposed that all marine mammalsare to be accompanied by an atten-dent.

Another comment presented theidea that the reason cetaceans and si-renians should have freedom of move-ment of the pectoral flippers is pri-marily for regulating the body tem-perature by waving or moving the flip-pers and not for relieving pressure onthe rib cage which might interferewith the animal's breathing ability, aswas claimed by the Department. Thismay be true to a certain extent. How-ever, it is determined that relievingpressure on certain parts of themarine mammal's body when out ofthe water for an extended period oftime is still the primary considerationin requiring freedom of movement ofthe flippers.

Therefore, in consideration of theabove comments. it is proposed that anattendent be required to accompanyshipments of cetaceans, sirenians, andsea otters because of the required spe-cial handling, feeding, and watering.or because of problems encountereddue to their size, It is proposed thatother marine mammals are to be so ac-companied only during prolongedshipments. The skin of cetaceans and

sirenians would be required to be keptmoist in transit or protected by somesubstance such as lanolin to keep itfrom drying. It is also important thatthe pectoral fins of both cetaceans and*miens have full mobility duringtransit. Periodic positional adjust-ments would have to be made when ce-taceans arid sirenians arc transportedin straps, slings, harnesses, or otherbody supports to prevent pressure ne-crosis of the skin over bony promin-ences or other points where extremePressure is concentrated from theweight of the animal. It is proposedthat restraining straps, securin g thecetacean or sirenian to the sling, har-ness. or other device, shall be tightenough to restrain the marinemammal, but not so tight that theybecome irritating to the animal. Strug-gling and thrashing about would haveto be minimized to prevent overheat-ing of the marine mammal.

Sea otters must keep their hair coatwet for proper insulation and temper-ture control of their body. They willnot groom their fur if it dries or be-comes soiled with feces. It is thereforeproposed that at least on-half of a pri-mary enclosure used to transport seaotters shall be leakproof and containsufficient crushed ice or water to pro-vide the sea otter contained thermwith moisture necessary to allow eachsea otter to keep its hair coat wet. Theice or water would also serve to pre-vent feces and urine from contaminat-ing the hair coat. it is also proposedthat a dry area be available in the pri-mary enclosure used to transport a seaotter so the animal can get out of theice and water for. resting or groomingpurposes.

With regard to terminal facilities,the only comments received ques-tioned the necessity of providin g pro-tection from the snow and cold weath-er in the case of arctic or ice dwellingmarine mammals. These were consid-ered valid and this proposal providesexceptions for ice dwelling marinemammals. There were no commentsthat objected to providing shelterfawn sunlight.

It is proposed that the indoor animalholding area be provided with freshair either by means of windows, doors,vents, or air conditioning and be venti-lated so as to minimize drafts, odors,and moisture condensation. The ambi-ent or air temperature would not beallowed to fall below '7.2° C (45° F)except in certain cases. and would notbe alowed to exceed 29.5° C (85° F) atany time. This is the temperaturerange which is being required for thetransporation of all other animalsunder the Animal Welfare Act. Pro-posing different temperature rangesfor marine mammals would impose anunfair hardship on terminal facilitiessince it might necessitate different

FEDERAL REGISTER, VOL 43, NO, 182—TUESDAY, SEPTEMBER 19, 1978


holding areas for marine mammals.The indoor animal holding area wouldbe required to be cleaned and sanitizedin the manner prescribed in a 3.107 ofthe standards often enough to preventtlrl accumulation of debris or excreta,to minimize vermin infestation, and toprevent disease hazards.

It is further proposed herein thatcarriers and intermediate handlers, Intransporting live marine mammalsfrom the indoor animal holding areaof the terminal facility to the primaryconveyance and from the primary con-veyance to the indoor animal holdingarea of the terminal facility, includingloading and unloading procedures,must provide shelter from sunlightwhen sunlight is likely to cause over-heating or discomfort. It is also pro-posed that the terminal facility pro-vide shelter from snow. Transportingdevices would be required to be cov-ered to provide protection for livemarine mammals during snow: Theterminal facility would also be re-quired to provide the marine mammalwith shelter from cold weather. Trans-porting devices would have to be cov-ered to provide protection for livemarine mammals when the atmos-pheric or outdoor temperature fallsbelow 10' C (50' F) unless the marinemammal is an ice dwelling animal and'can safely tolerate lower tempera-tures.

There were no comments receivedwith regard to handling marine mam-mals at terminal facilities. The De-partment proposes that carriers andintermediate handlers should be re-sponsible for moving live marine mam-mals from the indoor animal holdingarea of the terminal facility to the pri-mary conveyance and from the prima-ry conveyance to the indoor anima/holding area of the terminal facility asexpeditiously as possible, This propos-al also contains a provision statingthat care shall be exercised to avoidhandling of the primary enclosure in a.manner which may cause physical oremotional trauma to the live marinemammal contained therein. There isalso a provision which states that pri-mary enclosures housing live marinemammals shall not be tossed, dropped,or needlessly tilted and shall not bestacked in a manner which nay resultin their falling.

It is possible to encounter a widevariation of temperature rangesduring transportation, and the ambi-ent temperature. extremes need to becontrolled in order to prevent discom-fort to the marine mammal and toprotect the health and well-being ofthe animal. Marine mammals are gen-erally more affected by hot tempera-tures than they are by cool or coldtemperatures.

One comment received was that theproposed temperature of 35" C (95° F)

within primary enclosures was toowarm for marine mearima3s and thatthe allowable temperature should notexceed 29.4° C (85° F). Considering theproblem of body temperature regula-tions and heat dissipation, due to thesubcutaneous blubber layer of mostmarine mammals, is It proposed thatthe temperature around the marinemammal within the primary enclosureduring transportation shall not exceed29.4' C (8 • F) for a period of morethan 45 minutes nor fail below 7.2' C(45* F) for a period of more than 45minutes unless the person transport-ing the marine mammal knows that isis acclimated to such higher or lowertemperatures.

A detailed explanation of the pro-posed regulations and standards deal-ing with marine mammals also accom-panie•the original proposal. of August19, 1977. Anyone desiring additionalinformation regarding this proposalshould refer to that proposal, whichappeared in Vol. 42, No. 161, of theFEDERAL REGISTER on Friday, August19, 1977.

PART 1—DEFINITION OF TERMS

Accordingly, it is proposed that theregulations and standards (9 CFR 1.1et seq.) be amended as follows:

1. It is proposed that the second sen-tence in 1.1(n) of the regulations (9CFR 1.1(n)) be amended to delete thewords "aquatic animals," fallowing theword "birds" and before the word"rate.

2. It is proposed that a 1.1(gg) of theregulations (9 CFR 1.1(gg)) be amend-ed by inserting a comma after theword "compartment" and adding theword "pool" immediately thereafterand before the word "or".

3. It is proposed that a new defini-tion for minimum horizontal dimen-sion (MHD) be added to the end of§ 1.1 of the regulations (9 CFR 1.1) toread as follows:

§ 1.1 Definition.

• • •

(qq) "Minimum horizontal dimen-sions" (MHO) means the diameter of acircular pool of water, or in the case ofa square. rectangular, oblong or othershape pool, the diameter of the largestcircle that can be inserted within theconfines of such a pool of water.

PART 3--STANDARDS

4. It is proposed that the Table ofContents in Part 3—Standards of Title9, Code of Federal Regulations, beamended by making present Subpart Eof the Table of Contents, Subpart F,and renumbering § ail to 3.114thereof to le 3.125 through 3.138, re-spectively. and by adding a new Sub-part E as follows:

Subpart 1—Spocillcott•os fil• flwooftoCoro. Doonnont, end Transportation of MorinoMO401111Li.

FACILITIES AND OPERATING STANDARDS

Sec.3.100 Special considerations regarding

compliance.3.101 Facilities, general.3.102 Facilities, Indoor.3.103 Facilities, outdoor.3.104 Space requirements.

ANIMAL HEALTH AND Husssranry STANDARDS

3.105 Feeding.3.10d Water quality.3.107 Sanitation.3.108 Employees.3.109 Separation.3.110 Veterinary care.3.111 Handling.

TRANSPORTATION STANDARDS

3.112 Consignments to carriers and inter-mediate handlers.

3.113 Primary enclosures used to transportmarine mammals.

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

3.115 Food and water requirements.3.116 Care in transit.3.117 Terminal facilities.3.118 Handling.3.119 Ambient temperature within primary

enclosures.

5. It Is proposed that present Sub-part E of Part 3—Standards (9 CFRPart 3. Subpart E) would be redesig-nated as Subpart F and ft§ 3.100 to3.114 thereof would be renumbered asaa 3.125 through 3.138, respectively,and a new Subpart E would be addedto read as follows:

Subplot E—Specillastion far the Nyman* Non.Ana, Care, Treatment, and Transportatiose

of Merino hteesarals -

FACILITIES AND OPERATING STANDARDS

3.1b0 Special considerations. regardingcompliance.

(a) All persons subject to the AnimalWelfare Act who maintn marinemammals in captivity must complywith the provisions of this subpart,unless they are granted permission bythe Secretary to deviate from one ormore of the provisions. The provisionsof this subpart shall not apply, howev-er, in emergency circumstances wherecompliance with one or more provi-sions would not serve the best interestof the marine mammals concerned.

(b) From the effective date of theregulations and standards of this sub-part, all facilities housing marinemammals which are not in full compli-ance with the standards shall have 60days during which they may apply tothe Secretary for written permissionto operate as a licensee or registrantunder the Act.: Provided, however.That:

(1) Application. is made to the Secre-tary, in writing, listing in detail all

FEDERAL REGISTER, VOL. 43, NO. 117—TUESDAY, SWERVED VP, 1E71

PROPOSED RULES 42211areas of deviation from the require-ments of this subpart, the time periodrequested for each deviation, and theJustification for such request.

(2) The Secretary brad! deny anysuch application if he determines thatallowing it would be detrimental tothe health and well-being of themarine mammals concerned,

(3) Such permission to deviate fromthe provisions of this subpart shall notbe granted for a period exceeding 4;'ears from the effective date of theseprovisions.

(c) Any person desiring to deviatefrom the requirements of this subpartfor the purpose of experimentation inthe areas of husbandry and care ofmarine mammals may apply to theSecretary for written permission to doso: Provided, however, That:

(1) Application is made to the Secre-tary, in writing, listing in detail allareas of deviation from the require-ments of this subpart, the time periodrequested for each deviation, and thejustification for such request.

(2) The Secretary shall deny anysuch application if he determines thatallowing it will be detrimental to thehealth and well-being of the marinemammals concerned.

§ 3.101 Facilities, general.(a) Construction requirements. (1)

Housing facilities for marine mammalsshall be structurally sound and shallbe maintained in good repair, to pro-tect the animal from injury, to containthe animals, and to restrict the en-trance of unwanted animals.

(2) All marine mammals shail beprovided with protection from abuseand harassment by the viewing publicby the use of a sufficient number ofemployees to supervise the viewingpublic, or by physical barriers, such asfences, walls, glass partitions, or dis-tance, or both.

(3) Any primary enclosure pool, in-cluding ramps for entering or leavingthe pool, shall be constructed of mate-rials having a nonporous, waterprooffinish, which shall facilitate propercleaning and disinfection, and whichshall be maintained in good repair aspart of a regular ongoing maintenance,program,

(4) Facilities which utilize naturalareas such as tidal basins, bays, or es-tuaries for housing marine mammalsshall be exempt from the waterprooffinish, nonporous surface construc-tion, and drainage requirements ofparagraphs (a)(3) and (c)(1) of thissection, but they must meet the mini-mum standards with regard to space,depth, and sanitation. Water qualitymust be monitored as in other facili-ties.

( b) Water and power supply. Reli-able and adequate sources of water.and electric power shall be provided by

the facility housing marine mammals.Written contingency plans must besubmitted to and approved by Veteri-nary Services regarding emergencysources of water and electric power inthe event of failure of the primarysources, if such failure could be detri-mental to the good health and well-being of the marine mammals housedtherein.

(c) Drainage. (1) Adequate drainageshall be provided for all primary enclo-sure pools and hall be located so as torapidly elimina I of the water con-tained in such 1, when necessaryfor cleaning the pools or for other pur-poses. Drainage effluent from primaryenclosure pools shall be disposed of ina manner that complies with all appli-cable Federal, State, and local pollu-tion control laws.

(2) Drainage shall be provided forprimary enclosures and areas immedi-ately surrounding pools. Drains shallbe located so as to rapidly eliminateexcess water (except in pools). Suchdrainage effluent shall be disposed ofin a manner that complies with all ap-plicable Federal. State. and local pol-lution control laws.

(d) Storage. Supplies of food shall bestored in facilities which adequatelyprotect such supplies from deteriora-tion, molding, or contamination byvermin. Refrigerators and freezersshall be used for perishable food. Nosubstances which are known to be ormay be toxic or harmful to marinemammals shall be stored or main-tained in the marine mammal foodstorage or food preparation areas.

(e) Waste disposal. Provision shall bemade for the removal and disposal ofanimal and food wastes, dead animals,trash, and debris. Disposal facilitiesshall be so provided and operated as tominimize vermin infestation, odors,and disease hazards. All waste disposalprocedures must comply with all appli-cable Federal, State, and local lawspertaining to pollution control, protec-tion of the environment, and publichealth.

(f) Washroom facilities. Facilitiessuch as washrooms, basins, showers, orsinks, shall be provided to maintaincleanliness among the marine mammalcaretakers.

§ 3.102 Facilities, indoor.

(a) Ambient temperature. The airand water temperatures in Indoor fa-cilities shall be sufficiently regulatedby heating or cooling to protect themarine mammals from extremes oftemperature, to provide for their goodhealth and well-being and to preventdiscomfort, in accordance with thecurrently accepted practices as cited inappropriate professional journals orreference guides, depending upon thespecies housed therein. Rapid changes

in air and water temperatures shall beavoided.

(b) Ventilation. Indoor housing fa-cilities shall be ventilated by naturalor artificial means to provide a flow offresh air for the marine mammals andto minimize the accumulation of chlo-rine fumes, harmful gases, or other ob-jectionable odors. A vertical air spaceaveraging at least 1.83 meters (8 feet)shall be maintained in all primary en-closures housing marine mammals, in-cluding over their pools of water.

(e) Lighting. Indoor housing facili-ties for marine mammals shall haveample lighting, by natural er artificialmeans, or both, of a quality, distribu-tion, and duration which is optimumfor the species involved. Such lightingshall provide uniformly distributed il-lumination of sufficient light intensityto permit routine inspections, and topermit adequate observation andcleaning of all parts of the primary en-closure including any den areas. Light.ing of primary enclosures shall be de-signed so as to prevent overexposureof the marine mammals containedtherein to excessive illumination.

§ 3.103 Facilities, outdoor.(a) Environmental temperatures.

Marine mammals shall not be housedin outdoor facilities unless the air andwater temperature ranges which theyMae encounter during the period theyare so housed do not adversely affecttheir health and comfort. A marinemammal shall not be introduced to anoutdoor housing facility until it is ac-climated to the air and water tempera-ture ranges which it will encountertherein. The surface of the water inPools in outdoor primary enclosuresshall be kept sufficiently free of solidice when housing polar bears and icedwelling species of pinnipeds so as toallow entry and exit of the animals.Water In pools in outdoor primary en-closures shall be kept free of ice whenhousing cetaceans and sea otters. Nosirenian or warm water dwelling pin-nipeds shall be housed in outdoorPools where water temperature cannotbe maintained within the temperaturerange to meet their needs.

(b) Shelter. Natural or artificial shel-ter which is appropriate to the localclimatic conditions for the species con-cerned, shall be provided for allmarine mammals kept outdoors toafford them protection and to preventdiscomfort to such animals due tolwigehatth. er conditions or to direct sun-

§ 3.101 Space requirements.

(a) General. Primary enclosures, in-cluding pools of water housing marineMammals, shall be constructed andmaintained so as to provide sufficientspace, both horizontally and vertically,and so as to allow each marine


Average adultlength

MHD Minimum requireddepth

Meters Feet Meters Feet Meters Feet

3.83 6 3 66 12 1.52 52.13 7 4 27 14 1.52 52.44 8 4.88 16 1.52 52.74 9 5 49 18 ;.52 53.05 10 6.10 20 1,52 53.66 12 7 32 24 1.83 64.27 14 8.53 28 2.13 74.88 16 9 75 32 2.44 85.49 18 10.97 36 2.75 98.10 20 12 19 40 3.05 106.71 22 13 41 44 3.36 117.32 24 14 63 48 3 66 127.92 26 15.85 52 3.06 138.53 29 17.07 56 4.27 14

Cubic meters Cubic feet

8.00 282.6010.89 384.6519.22 502.4017.99 635.8522.22 785.0038.39 1.356.4860.96 2.154.0490.99 3.215.36

129.56 4.678.12177.12 6.280.00236.55 8.351168307.11 10,851.84390.46 13.797.16487.67 17,232.30

Volume of water required for eachadditional cetacean. exceeding two-

-- - --


mammal contained therein, to makenormal postural and social adjust-ments with adequate freedom of move-ment, in or out of the water.

(b) Cetaceans. Primary enclosureshousing cetaceans shall contain a poolOf water and may consist entirely of apool of water. In computing the mini-mum space requirements in a poolholding cetaceans, four factors mustbe considered. These are the MHD,the depth, the volume, and the surfacearea..For the purposes of this subpart,cetaceans have been divided into. thefollowing groups:

Group I cetaceans, This group shallconsist of all cetaceans except thosespecified in Group II below.

Group II cetaceans. This group shallconsist of the following genera andspecies of cetaceans.

Genera, Species and Common NameDephinus-all species- common dolphin.Lfssodelphis-all species-right whale dot-

ph in.Stenella-plagiodon-spotted dolphin.SteneUs-attenuate-spotted porpoise-Steneirct-coerufeoalba-blue-white porpoise

(striped dolphin).Stenelta-Longdrosirfs-spinner porpoise.Phocoenoides-dallf-Dall's porpoise,

(1) The required minimum horizon-tat dimension (MID) of a primary en-closure pool shall be based on theaverage adult body length of the long-est species of cetacean housed therein.(i) The MHD of a pool for Group I ce-taceans shall be two times the bodylength of an average adult of the long-est species of cetacean to be housedtherein, measured from the tip of itslower jaw to the notch in the tailfluke. 3 (il) The MHD of a pool forGrout, n cetaceans shall be four timesthe body length of an average adult ofthe longest species of cetacean to behoused therein as measured from the

'The body length of a lifonodon mono-ems (narwhal) is measured from the tip ofthe upper incisor tooth to the notch in thetail fluke. If the upper incisor is absent ordoes not extend beyond the front of thehead, then it is measured like other ceta-ceans, from the tip of the lower jaw to thenotch in the tail fluke, Immature malesshould be anticipated to develop the "tusk"(Usually left incisor looth ) beginning atsexual maturity.

tip of the lower jaw to the notch inthe tail fluke. (iii) In a pool where amixture of both group I and group IIcetaceans are to be housed, the MHDmust be computed on the basis of boththe average adult length of the long

-est species of group I cetacean and ofthe longest species of group II ceta-cean, and the required MHD shall beeither two times the body length of anaverage adult of the longest species ofgroup I cetacean to be housed thereinor four times the body length of anaverage adult of the longest species ofgroup II cetacean to be housed there-in, whichever is greater. (iv) The poolsize may also be required to be adjust-ed to assure there is adequate surfacearea available to all cetaceans housedin a pool, and to increase the volumewhen more cetaceans are added to apool. The pool size can be increased toallow for more surface area or volume,but cannot be less than the MHD re-quirement as stated in subparagraph(1), (ii), and (ill) of this paragraph. Ex-amples of MHD for group I cetaceansare shown in table I. 'and for group IIcetaceans in table II.

(2) The minimum depth require-ments for primary enclosure pools forall cetaceans shall be one-half thebody length of the average adult ofthe longest, species to be housed there-in, regardless of the group I or groupII classification, or 1.52 meters (5feet). whichever is the greater, andcan be expressed as d=L/ 2 or 5 feet,whichever is greater.

(3) Pool volume. A pool of waterhousing cetaceans which satisfies theMHD for either group I or group II ce-taceans and which meets the mini-mum depth requirements, and surfacearea requirements discussed in para-graph (b)(4) of this section, shall havea sufficient volume of water to holdeither two group I cetaceans or fourgroup II cetaceans. If additional ceta-ceans of the same group are to beadded to a pool, or in case the pool isto hold a mixture of group I and II ce-taceans, the volume, as well as the sur-face area, necessary for each cetacean(if mixed), or for each additionalgroup I or II cetacean (if not mixed),

TABLE P.-Group 1 Cetaceans

must be satisfied. The additionalvolume needed shall be based on thenumber and kind of cetaceans housedtherein and shall be determined in thefollowing manner. (i) The minimumvolume of water (space) required forthe firlt one or two group I cetaceansis based upon the formula:Volume=(2 x average adult length of the

longest species of cetacean/2)' x 0 x depth

(Y2 body length or 5 feet, whichever isgreater, or V=L2 x 0 x d. Volume di-vided by two would equal the volumerequired for each additional cetaceanof group I. The volume requirementsfor each additional group I cetacean,more than two, are given in Table I.(ii) The minimum volume of water(space) required to maintain as manyas four group II cetaceans is basedupon the following formula:Volume =(4 x average adult length of the

longest species of cetacean/2)' x x depth

(1/2 body length oz . 5 feet, whichever isgreater), or V=21, 2 x 0 x d. Volume di-vided by four would be the volume re-quired for each additional group II ce-tacean. The volume requirements foreach additional group II cetacean, Thevolume requirements :or each addi-tional group II cetacean are given inTable H. (iii) When a mixture of bothgroup I and group II cetaceans arehoused together, the MHD must besatisfied as stated in 3 ,103(b )( 1 ), andthe minimum depth cannot be lessthan required in §3.103(b)(2). If addi-tional volume is required when morecetaceans are added, this may be doneby enlarging the pool in its lateral -di-mensions or by increasing the depth toallow for the increased volume ofwater, but the surface area require-ments discussed below must also bemet.

(4) The minimum surface area re-quirements are computed for each ce-tacean housed in the pool, regardlessof group I or group II classification,based upon the following formula:

Surface area.--(average adult body length/2) 2 x 0 x 1,5. or SA=L/2 x 0 -• 1.5.

Surface area requirements are given intable III.

*All calculations are rounded off to the nearest hundredth, In converting the length of cetaceans from feet to meters, 1 foot shall equal .3048 meter. Due torounding of meter figures as to the lengi h of the cetacean, the correlation of meters to Wet in subsequent calculations of MI1D and additional volume of water re-

quired per cetacean. over two, ma,v vary slightly from strict feet to meters ratio. Cubit meters is based on: 1 cubic foot - 0.0283 cubic meter.

FEDERAL REGISTER, VOL. 43, NO. 182-TUESDAY, SEPTEMBER 19, 1978

PROPOSED RULES

42213

TABLE I •.-Group II Cetaceans

Average adult

MUD

Minimum required Volume of water required for eachlength

depth additional cetacean, exceeding four-

Meters Feet Meters Feet Meters Feet Cubic meters Cubic feet,

1.52 5 8.10 20 1.52 5 11,11 392.501.83 8 7.32 24 1.52 5 16.,10 585.209.13 7 8.53 26 1,52 5 21,17 789.302.442.74

80

9.7510.97

3236

1.521.52

55 • 28.44

35.991,004.801.271.'10

3.05 10 12.19 40 3.52 5 44.43 1.570.00

•Converting cubic feet to cubic meters is based on: 1 cubic foot = 0.0283 of a cubic meter,

:TULE 1II,-Minimum Surface Area Required for Each Celacean

Average adultlength of

each cetacean

Surface arearequired for

each cetacean

Average adultlength of

each cetacean

Surface arearequired for

each cetacean

Meters Feet Square meters* Square feet Meters Feet Square meters• Square feet

1.52 5 2.73 29.44 4.27 14 21.44 230.791.83 I 3.94 42.39 4.88 18 28.00 301.442.13 7 5.38 57.70 5.49 18 35.44 381.512.44 8 7.00 75.35 8.10 20 43.78 471.002.74 9 8.86 95.38 5.71 22 52.94 589.913.05 10 10,94 117.75 7.32 24 63.01 878.243.35 11 13.24 142.48 7.92 28 73.95 798.003.68 12 15.75 189.58 8.53 28 85.78 92310

•Square meter = square feet/9 .< 0,8381.

(c) Sirenians. Primary enclosureshousing sirenians shall contain a poolof water and may consist entirely of apool of water. The minimum pool sizerequirements. for MHD, depth, andvolume shall be calculated by usingthe same formulas as used for group ICetaceans (table I) and surface area intable III. in paragraph (b) of this sec-tion, based on the average adultlength of such sirenFins as measuredfrom the tip of the muzzle to thenotch in the tail fluke of dugongs andfrom the tip of the muzzle to the mostdistal point in the rounded tail of themanatee. This size pool shall be ade-quate for one or two sirenians.

(d) Pinnipeds. (1) Primary enclo-sures housing pinnipeds shall containa pool of water and a dry resting orsocial activity area that must be closeenough to the surface of the water toallow easy access for entering or leav-ing the pool. (2) The minimum size ofthe 'dry resting or social activity areaof the primary enclosure for pinnipeds(exclusive of the pool of water) shallbe based on the average adult lengthof each pinniped contained therein, asmeasured in a horizontal or extendedposition in a straight line from the tip

of its nose to the tip of its tail. Theminimum size of the dry resting andsocial activity area shall be computedusing the following method:

List all pinnipeds contained in a primaryenclosure by average adult length in de-scending order from the longest species ofpinniped to the shortest species of pinniped.Square the average adult length of eachpinniped. Multiply the average adult lengthsquared of the longest pinniped by 1.5, thesecond longest by 1.4, the third longest by12, the fourth longest by 1.2, and the fifthlongest by 1.1, as indicated below. Squarethe average adult length of the sixth pin-niped and all additional pinnipeds. Add thefigures obtained for all the pinnipeds in theprimary enclosure to determine the re-quired minimum dry resting and social ac-tivity area required for such pinnipeds.

1st pinniped (average adult length)' x1.5 = resting and social activity area re-quired.

2nd pinniped (average adult length)' x1.4 = resting and social activity area re-quired.

3rd pinniped (average adult length)' x1.3 = resting and social activity area re-quired.

4th pinniped (average adult length)' x1.2 = resting and social activity area re-quired.

5th pinniped (average adult length) 2 x

1.1 = resting and social activity area re-quired.

Over 5 (average adult length)' x 1.0 = rest-ing and social activity area required foreach additional animal.

Total minimum dry resting and social ac-tivity area for all pinnipeds housed in a pri-mary enclosure.

(3) The minimum surface area of apool of water for pinnipeds shall be atleast two-thirds of the total minimumdry resting and social activity area re-quired for the pinnipeds containedtherein, The pool of water shall be atleast 0.91 meters (3 feet) deep or one-half the length of the longest pin-niped contained therein, whichever isgreater. Parts of the pool less than0.91 meters (3 feet) deep cannot beused in the calculation of either theresting and social activity area or aspart of the pool.

(e) Polar bears. Primary enclosureshousing polar bears shall consist of apool of water, a dry resting and socialactivity area, and a den. A minimum of37.16 square meters (430 square feet)of dry resting and social activity areashall be provided for one or two polarbears, with an additional 3.72 squaremeters (40 square feet) of dry resting


Length of sea otter Resting area

Pool volume

Petters Feet Square meters Square feet Cubic meters Cubic feet

0.91. 3.0 1.30 14.13 1.18 42.3,1,67 3.5 1.80 19.23 L.64 57.701.22 4.0 2.34 25.12 2.13 75.361.37 .4.5 2.95 31,79 2.68 95.382.52 5.0 3.63 38.25 3.30 117.752.68 5.5 4.43 47.49 4.03 142.48

• All calculations arc rounded off to the nearest hundredth. A conversion factor of 1 foot equals .3098meter is used lit• e^ :,t erring the length of the sea otter from feet to meters. Due to rounding of meter fig-ures as to ivilatre of the sea otter, the correlation of meters Lo feet In subsequent calculations of addi-tional res t ing area and pool volume required per sea otter, more than two, may vary slightly from a strictfeet to me ter ratio.


and social activity area for each addi-tional polar bear. The dry resting andsocial activity area shall be providedwith enough shade to accommodate allof the polar bears contained in suchprimary enclosure at the same time.The pool of water shall be at least 2.49meters (8 feet) by 3.66 meters <12 feet)with a minimum depth of 1.52 meters(5 feet), with the exception of anyentry and exit area. This size poolshall be adequate for two polar bears.For each additional bear, the surfacearea of the pool must be increased by3.72 square meters (40 square feet).The den shall be at least 1.83 meters(6 feet) in width and depth and notless than 1.52 meters (5 feet) inheight. It will be so positioned thatthe viewing public shall not be visiblefrom the interior of the den. A sepa-rate den shall be provided for eachadult female of breeding age in thesame primary enclosure.

CO Sea otters. (I) Primary enclosuresfor sea otters shall consist of a pool ofwater and a dry resting area. TheMUD of the pool of water for seaotters shall be at least twice thelength of the average adult sea ottercontained therein as measured fromthe tip of its nose to the tip of its tailand the pool shall be not less than0.01 meters (3 feet) deep. When morethan two sea otters are housed in thesame primary enclosure. additionaldry resting area as well rs pool volumeti required to accommodate the addi-tional sea otters (table IV).

(2) The minimum volume of waterrequired for a primary enclosure pool

for sea otters shall be based on theaverage adult length of each sea ottercontained therein, as measured fromthe tip of its nose to the tip of its tail.The minimum volume of water re-quired in the pool shall be computedusing the following method. Multiplythe square of the length of the aver-age adult sea otter by 0 (3.14) and mul-tiply the total by 0.91 meters (3 feet).This volume is satisfactory for one ortwo sea otters. For more than two seaotters, multiply one-half of the squareof the length of the third averageadult sea otter, and each additionalsea otter (when more than two), by 0(3.14), then multiply by 0.91 meters (3feet).

(3) The minimum dry resting atearequired for one or two sea otters shallbe based on the average adult lengthof each sea otter contained therein, asmeasured from the tip of its nose tothe tip of its tall. The minimum dryresting area for one or two sea ottersshall be computed using the followingmethod. Square the length of theaverage adult sea otter and multiplythe total by 0 (3.14). When the enclo-sure is to contain three sea otters, theadditional dry resting area for thethird animal shall be computed as fol-lows. Multiply one-half of the squareof the average adult length of thethird sea otter by 0 (3.14). If morethan three sea otters are to be kept ina primary enclosure, obtain the sum ofone-half of the square of the averageadult length of each additional seaotter (starting with otter number 3),and multiply this sum by 0 (3.14). Ad-ditional dry resting and social activi-ties area is given in table IV.

ANIMAL HEAVEN AND HUSBANDRYSTANDARDS

§3.105 Feeding.(a) The food for marine mammals

shall be wholesome, palatable, andfree from contamination, and shall beof sufficent quantity and nutritivevalue to maintain all of the marinemammals in a state of good health.The diet shall be prepared with con-sideration for age, species, condition.size, and type of marine mammalbeing fed. Marine mammals shall beoffered food at least once a day.except as directed by veterinary treat-ment or professionally accepted prat)-tices.

(b) Food recep'scles, If used, shall belocated so as to be accessible to allmarine mammals in the same primaryenclosure and shall be placed so as tominimize contamination of the foodcontained therein. Such food recepta-cles shall be cleaned and sanitizedafter each use.

(c) Food, when given to each marinemammal individually, shall be givenby an employee responsible to man-agement who has the necessary knowl-edge to assure that each marinemammal receives an adequate quanti-ty of food to maintain it in goodhealth. Such employee is required tohave the ability to recognize devi-ations from a normal state of goodhealth in each marine mammal so thatthe food intake can be adjusted ac-cordingly. Public feeding shall be onlypermitted if it. is done in the presenceand under the supervision of an em-ployee. Such employee must assurethat the marine mammals are receiv-ing the proper amount and type offood. Only food supplied by the facili-ties where the marine mammals arekept shall be fed to such mammals bythe public.

(d) Food preparation and handlingshall be conducted so as to minimizebacterial or chemical contaminationand to assure the wholesomeness andnutritive value of the food. Frozen fishor other frozen food shall be stored infreezers which are maintained at amaximum temperature of -1r C (5°F). Thawing of the frozen fobd shall

TABLE IV ',Additional Space :required for Each Sea Oiler More Than Two In a PrimaryEnclosure



be conducted in a mariner which willminimize contamination and whichwill assure that the food retains nutri-tive value and wholesome quality. Thethawed product shall be kept iced orrefrigerated until a reasonable timebefore feeding. All foods shall be fedto the marine mammals within 24hours following the removal of suchfoods from the freezers for thawing.

§ 3.106 Water Quality.(a) General. The primary enclosure

shall not contain water which wouldbe detrimental to the health of themarine mammal contained therein.

(b) Bacterial standards. (1) The coil-form bacteria count of the primary en-closure pool shall not exceed 1,000MPN (most probable number) per 100nil. of water. Should a coliform bacte-rial count exceed 1,000 MPN, two sub-sequent samples may be taken at 48-hour intervals and average with thefirst sample. If such average countdoes not fall below 1,000 MPN, thenthe water in the pool shall be deemedunsatisfactory.

(2) When the water is chemicallytreated, the chemicals shall be addedso as not to cause harm or discomfortto the marine mammals.

(3) Water samples shall be taken andtested at least weekly for coliformcount and at least daily for pH andany chemical additives (e.g. chlorineand copper) that are added to thewater to maintain 'water quality stand-ards. Records must be kept concerningwhen all such samples were taken andthe results of the tests. Records of allsuch test results shall be kept for a 1-year period and must be made availa-ble for inspection purposes on request.

Cc) Salinity, Primary enclosure poolsof water shall be salinized for marinecetaceans and harp seals as well as forthose other marine mammals whichrequire salinizerd water for their goodhealth and well-being. The salinity ofthe water in such pools shall be main-tained within a range of 15-36 partsper thousand.

(d) Filtration and water flow. Waterquality must be maintained by filtra-tion, chemical treatment, or othermeans so as to comply with the waterquality standards specified in this sec-tion.

§ 3.107 Sanitation.(a) Primary enclosures. (1) Animal

and food waste in areas other than thepool of water shall be removed fromthe primary enclosure at least daily,and more often when necessary to pre-vent contamination of the marinemammals contained therein and tominimize disease hazards.

(2) Particulate animal and foodwaste, trash, or debris that enter theprimary enclosure pool of water shallbe removed as often as necessary to

maintain the required water qualityand to prevent health hazards to themarine mammals contained therein.

(3) The wall and bottom surfaces ofthe primary enclosure pool of watershall be cleaned as often as necessaryto maintain proper water quality.

(b) Food preparation areas and foodreceptacles. Containers, such as buck-ets, tubs, aad tanks, as well as utensils,such as knives and cutting boards, orany other equipment which has beenused for holding, thawing or preparingfood for marine mammals shall becleaned and sanitized after each feed-ing, if the marine mammals are fedonce a day, and at least daily if themarine mammals are fed more thanonce a day. Kitchens and other foodhandling and preparation areas shallbe cleaned at least once daily and sani-tized at least once every week. Sanitiz-ing shall be accomplished by washingwith hot water (82' C, 180' F, orhigher) and soap or detergent in a me-chanical dishwasher, or by washing allsoiled surfaces with a detergent solu-tion followed by a safe and effectivedisinfectant, or by cleaning all soiledsurfaces with live steam.

(c) Housekeeping. Buildings andgrounds, as well as exhibit areas, shallbe kept clean and in good repair.Fences shall be maintained in goodrepair. Primary enclosures housingmarine mammals shall not have anyloose objects, sharp projections, and/or edges which may cause injury ortrauma to the marine mammals con-tained therein.

(d) Pest control, A safe and effectiveprogram for the control of insects, ec-toparasites, and avian and mammalianpests shall be established and main-tained. Insecticides or other suchchemical agents shall not be applied ina primary enclosure housing marinemammals except when deemed essen-tial by an attending veterinarian.

§ 3.108 Employees.A sufficient number of adequately

trained employees shall be utilized tomaintain the prescribed level of hus-bandry practices set forth in this sub-part. Such practices shall be under thesupervision of a marine mammal care-taker who has a background in marinemammal husbandry or care. Trainingof marine mammals shall be done byexperienced trainers without. physicalpunishment or abuse being used or in-flicted upon the marine mammals.

§ 3.109 Separation.Marine mammals which are not

compatible shall not be housed in thesame enclosure. Marine mammalsshall not be housed near animals thatwould cause them stress or discomfort,or interfere with their good health.Captive marine mammals must begiven access to other animals except

when they are maintained in isolationfor such purposes as medical treat-ment or training and given special <attention.

§ 3.110 Veterinary Care.(a) Programs of disease prevention,

parasite control, euthanasia, and ade-quate veterinary care for all marinemammals shall be established andmaintained under the supervision ofan attending veterinarian.

(b) Marine mammals shall be ob-served daily by the person in charge ofthe care of the marine mammals or bysomeone working under his direct su-pervision. Sick or diseased, stressed, in-jured, or lame marine mammals shallbe provided with adequate veterinarycare or humanely destroyed, whennecessary, unless such action is incon-sistent with the research purposes forwhich the marine mammal was ob-tained and is being held.

(c)(1) In the case of a research facili-ty. the program of adequate veteri-nary care shall include the appropri-ate use of anesthetic, analgesic, ortranquilizing drugs, when such usewould be proper in the opinion of theattending veterinarian of the researchfacility. The use of these three classesof drugs shall be in accordance withcurrently accepted veterinary medicalpractice as cited in appropriate profes-sional journals or reference guideswhich shall produce in the individualsubject animal as high a level of tran-quilization, anesthesia, or analgesia asis consistent with the protocol ordesign of the experiment.

(2) It shall be incumbent upon eachresearch facility through its AnimalCare Committee and attending veter-inarian to provide guidelines and con-sultation to research personnel withrespect to the type arid amount oftranquilizers, anesthetics, or analge-sics recommended as being appropri-ate for each species of marine mem--mats used by that institution.

(d) Newly acquired marine mammalsshall be Isolated from resident marinemammals until such newly acquiredmarine mammals can be reasonablydetermined to be in good health. Anycommunicable disease condition in anewly acquired marine mammal mustbe remedied before It Is placed withother resident Marine mammals.

(e) Any primary enclosure contain-ing a marine mammal with an infec-tious or contagious disease shall becleaned and sanitized in the mannerprescribed by the attending veterinar-ian. No additional animals shall be in-troduced into the primary enclosureprior to such cleaning and sanitizingprocedures. Any marine mammal ex-posed to a diseased animal shall be iso-lated for observation for an appropri- .ate period of time as determined bythe attending veterinarian.

FEDERAL REGISTER, VOL. 43, NO. 182—TUESDAY, SEPTEMBER 19, 19M


(f) Temporary holding facilities withadequately and properly designedpools, tanks. restraining devices or pri-mary enclosures shall, be provided forisolation, medication, and treatment ofmarine mammals. The pools, tanksand primary enclosures may be lessthan minimum size in both lateral di-mensions and depth when used in spe-cial situations when prescribed by theprofessional staff for temporary usage.

(g) A complete necropsy must beconducted by a veterinarian on allmarine mammals that die in captivity:A necropsy report must be preparedby the veterinarian listing all patholo-gic lesions observed and giving the ap-parent cause of death. All diagnostictests conducted on post mortern speci-mens shall be listed in the report, andthe results of each test recorded. Themanagement of the facility, at whichthe marine mammal died, must main-tain these necropsy records for aperiod of 2 years and present them tothe Department inspectors when re-quested.

§3.111 Handling.(a) Handling marine mammals shall

be done as expeditiously and carefullyas possible in a manner that does notcause unnecessary discomfort, over-heating, behavioral stress, or physicalharm. Care should also be exercised toavoid harm to the handlers of suchmarine mammals.

(b) Marine mammals, to which thepublic is afforded direct contact, shallonly be displayed for periods of timeand under conditions consistent withthe animals' good health and well-being. A responsible attendant mustbe present at all times during periodsof public contact.

(c) During public display, all marinemammals must be handled so thatthere is minimal risk of harm to thepublic or to the marine mammal, withsufficient distance allowed, or barriersplaced between the marine mammaland the viewing public to assure safetyto both the public and the marinemammal. Performing marine mam-mals shall be allowed a rest. period be-tween performances at least equal tothe time for one performance.

TRANSPORTATION STANDARDS

§3.112 Consignments to carriers and in-termediate handlers.

(a) Carriers and intermediate han-dlers shall not accept any marinemammal presented by any person orby any department, agency, or instru-mentality of the United States or ofany •State or local government fortransportation, in commerce, morethan 4 hours prior to the scheduleddeparture of the primary conveyanceon which it is to be transported.

(b) Carriers and intermediate han-dlers shall attempt to notify the con-signee immediately on arrival, and ifunsuccessful, at least once every 4hours following the arrival of anymarine mammal at the animal holdingarea of the terminal cargo facility.The time, date, and method of notifi-cation to the consignee and the personnotifying the consignee shall be notedon one of the documents accompany-ing the marine mammal.

§3.113 Primary enclosures used to trans-port marine mammals.

(a) Primary enclosures, which areused to transport marine mammalsother than cetaceans and sirenians,shall (1) be constructed from materialsof sufficient structural strength tocontain the marine mammals; (2) beconstructed from material that is du-rable, nontoxic, and cannot be chewed,and/or swallowed; (3) be able to with-stand the normal rigors of transporta-tion; (4) have interiors which are freefrom any protrusions that could be in-jurious to the marine mammals con-tained therein; (5) be constructed sothat no parts of the contained marinemammals shall be exposed to the out-side of the enclosures in such a waywhich may cause injury to the animalsor to persons who are nearby or whohandle the enclosures; (5) have open-ings which provide access into the en-closures which shall be secured withlocking devices of a type which cannotbe accidentally opened; (7) have suchopenings located in a manner whichmakes them easily accessible at alltimes for emergency removal of anylive marine mammal contained there-in; (8) have air inlets at heights whichwill provide cross ventilation at al/levels (particularly when the marinemammals are in a prone position) andlocated on all four sides of the enclo-sures, and such ventilation openingsshall be not less than 15 percent of thetotal surface area of each side of theenclosures; (9) have projecting rims orother devices placed on the ends andsides of any enclosures which haveventilation openings to provide a mini-mum air circulation space of 1.9 centi-meters (0.75 inches) between the en-closures and any adjacent cargo orconveyance wall; and (10) be equippedwith adequate handholds or other de-vices on the exterior of the enclosureswhich shall enable them to be liftedwithout unnecessary tilting and whichwill insure that the persons handlingthe enclosures will not come in contactwith any marine mammal containedtherein.

(b) Straps, slings, harnesses, or otherdevices, if used for body support or re-straint, when transporting marinemammals such as cetaceans and sireni-ans shall (1) be designed so as not toprevent access to such mammals by at-

ferments during transportation for thepurpose of administering in transitcare; (2) be equipped with special pad-I ding to prevent trauma or injury atcritical weight pressure points on thebody of the marine mammals; and (3)be capable of keeping the animalsfrom thrashing about and causinginjury to themselves or their atten-dants, and yet be adequately designedso as not to cause injury to the ani-mals.

(c) Primary enclosures used to trans-port live marine mammals shall belarge enough to assure that (1) in thecase of polar bears and sea otters,there is sufficient space to turn aboutfreely in a stance whereby all four feetare on the floor and the animal can sitin an upright position and lie in a nat-ural position; (2) in the case of pin-nipeds, each animal has sufficientspace to lie in a natural position; and(3) in the case of cetaceans and sireni-ans, each animal has sufficient spacefor support of its body in slings, har-nesses, or other supporting devices, ifused (as prescribed in paragraph (b) ofthis section) without causing injury tosuch cetaceans or sirenians due to con-tact with the primary enclosure.

(d) Marine mammals transported inthe same primary enclosure shall be ofthe same species and maintained incompatible groups, Marine mammalswhich have not reached puberty shallnot be transported in the same pri-.mary enclosure with adult marinemammals other than their dams.Female marine mammals shell not betransported in the same primary en-elosure with any mature male marineman)mals.

(e) Before being used to transportmarine'ma.menals, primary enclosures,if previously used, shall be cleaned andsanitized in the manner prescribed forfood preparation areas and food recep-tacles in § 3.107(b) of these standards.

(f) Primary enclosures used to trans-port marine mammals shall be clearlymarked on the top and on one or moresides with the words "Wild Animal" inletters not less than 2.5 cm. (1 inch) inheight, and with arrows or othermarkings, to indicate the correct up-right position of the container.

(g) Documents accompanying theshipment shall be attached in aneasily accessible manner to the outsideof a primary enclosure which is part ofsuch shipment.

§3.114 Primary conveyances (motor vehi-cle, rail, air and marine).

(a) The animal cargo space of pri-mary conveyances used in transport-ing live marine mammals shall be con-structed in a. manner which will pro-tect the health and assure the safetyand comfort of the marine mammalscontained therein at all times.

FEDERAL REGISTER, VOL 43, NO. 1112—TUESDAY, SEPTEMIER 19, 1970


(b) The animal cargo space shall beconstructed and maintained in amanner which will prevent the ingressof engine exhaust fumes and gases inexcess of that ordinarily contained inthe passenger compartments.

(c) No marine mammal shall beplaced in an animal cargo space thatdoes not have a supply of air sufficientfor normal breathing for each liveanimal contained therein, and the pri-mary enclosures shall be positioned inthe animal cargo spaces of primaryconveyances in such a manner thateach marine mammal contained there-in shall have access to sufficient airfor normal breathing.

(d) Primary enclosures shall be posi-tioned in primary conveyances in sucha manner that in an emergency thelive marine mammals can be removedfrom the conveyances as soon as possi-ble.

(e) The interiors of animal cargospaces in primary conveyances shall bekept clean.

(f) Live marine mammals shall notknowingly be transported with anymaterial, substance or device whichmay be injurious to the health andwell-being of such marine mammalsunless proper precaution is taken toprevent such injury.

§3.115 Food and water requirements.

(a) Those marine mammals whichrequire drinking water shall be offeredpotable water within 4 hours prior tobeing transported in commerce or of-fered for transportation in commerce.Such marine mammals shall be wa-tered as often as necessary and appro-priate to the species involved to pre-vent excessive dehydration whichwould jeopardize the good health andwell-being of the animals.

(b) Marine mammals shall not betransported for more than a period of36 hours without being offered food.When an attendant is required to ac-company a shipment of marine mam-mals, as provided in *3.115 of thesestandards, such marine mammals shallbe fed during transit when necessaryto provide for their good health andwell-being.

§3.116 Care in transit.

(a) An attendant or employee of theshipper or receiver of any marinemammal being transported, in com-merce, knowledgeable in the area ofmarine mammal care, shall accompanycetaceans, sirenians, and sea ottersduring periods of transportation toprovide for their good health and well-being, to observe such marine mam-mals and to determine whether theyneed veterinary care and to obtain anyneeded veterinary care as soon as pos-sible. No cetacean or sirenian in needof veterinary care shall be transportedin commerce, unless such transporta-

tion is for the purpose of obtainingsuch care.

(b) An attendant or other employeeof the shipper or receiver of cetaceansor sirenians being transported, in corn-meree, shall provide for such ceta-ceans and sirenians during periods oftransport by (1) keeping the skinmoist with intermittent spraying ofwater or protecting it by applying anontoxic emollient, such as lanolin, toprevent drying. of the skin; (2) assur-ing that the pecoral flippers shall beallowed freedom of movement at alltimes; (3) making adjustments in theposition of such marine mammals at30-minute intervals to prevent necrosisof the skin at weight pressure points;and (4) calming such marine mammalsto avoid struggling, thrashing, andother unnecessary activity which maycause overheating or physical trauma.

(c) One-half of the area in a primaryenclosure used to transport sea ottersshall be a dry area for resting andgrooming, and the other half shall bea leakproof portion which shall con-tain sufficient crushed ice or water toprovide each sea otter containedtherein with moisture necessary toallow each sea otter to maintain itshair coat by preventing it from dryingand to minimize soiling of the haircoat with urine and fecal material. Nosea otter in need of veterinary careshall be transported in commerce,unless such transportation is for thepurpose of ob'... q-iing such care.

(d) Polar beats and pinnipeds neednot be accompanied by an attendantor other employee of the shipper orreceiver, unlese *he period of transpor-tation will ex • • d 12 hours in dura-tion. During surface transportation, itshall be the responsibility of the carri-er to inspect " Aar bears and pinnipedsunaccompanaal by an attendant atleast every 2 hours to determinewhether they need veterinary care andto provide any needed veterinary careas soon as possible. When transportedby air, lea: polar bears and pinnipeds,unaccompanied by an attendant, shallbe inspected by the carrier at leastevery 2 hours if the animal cargospace is accessible during flight. If theanimal cargo space is not accessibleduring flight, the air carrier shall in-spect such live unattended pinnipedsand polar bears whenever loaded andunloaded and whenever the animalcargo space is otherwise accessible todetermine whether such unattendedlive animals need veterinary care, andthe carrier shall provide any neededveterinary care as soon as possible. Nopolar bear or pinniped in need of vet-erinary care shall be transported incommerce, unless such transportationis for the purpose of obtaining suchcare.

(e) During the course of transporta-tion. in commerce, live marine mam-

mals shall not be removed from theirprimary enclosure unless it is neces-sary to place them into another prima-ry enclosure or other facility, or unlessan emergency situation arises makingremoval of marine mammals from theprimary enclosure necessary.

§ 3.117 Terminal facilities.

(a) Indoor facilities. Carriers and in-termediate handlers shall not commin-gle live animal shipments with inani-mate cargo. All live animal shipmentsshall be maintained in the sameanimal holding area of a terminal fa-cility of any carrier or intermediatehandler at any one time. All animalholding areas shall be cleaned andsanitized often enough to prevent anaccumulation of debris or excreta, tominimize vermin infestation, and toprevent a disease hazard. An effectiveprogram for the control of insects, ee-toparasites, and avian and mammalianpests shall be established and main-tained for all animal holding areas.Any animal holding area containinglive marine mammals shall be pro-vided with fresh air by means of win-dows, doors, vents, or air conditioningand shall be ventilated or have its aircirculated by means of fans, blowers.or an air conditioning system in amanner that will minimize drafts,odors, and moisture condensation. Theambient temperature around anymarine mammal shall not be allowedto exceed 29.5° C (85° F) at any time,nor to fall below 7.2" C (45° F), unlessthe marine mammal is an ice dwellingspecies and can tolerate temperaturesbelow the stated minimum.

(b) Outdoor facilities. Carriers andintermediate handlers, in transport-ing, loading, and unloading, livemarine mammals from indoor animalholding areas of terminal facilities toprimary conveyances and from pri-mary. conveyances to indoor animalholding areas of terminal facilities,shall provide the following:

(1) Shelter froin sunlight. When sun-light is likely to cause overheating ordiscomfort, sufficient shade shall beprovided to protect the marine mam-mals from the direct rays of the sun.

(2) Shelter from snow. Transportingdevices shall be covered to provide pro-tection' for the marine mammalsduring snow, except to ice dwellingmarine mammals which can toleratecold weather conditions.

(3) Shelter from cold weather, Trans-porting devices shall be covered to pro-vide protection for the marine mam-mals when the atmospheric or outdoortemperature falls below 10° C (50' F)unless the marine mammal is an icedwelling species and can tolerate tem-peratures below the stated minimum.



§3318 Handling.(a) Carriers and intermediate han-

dlers are responsible for moving livemarine mammals from indoor animalholding areas of terminal facilities toprimary conveyances and from prima-ry conveyances to indoor animal hold-ing areas of terminal facilities as expe-ditiously as possible.

(b) Care shall be exercised to avoidhandling primary enclosures in amanner that may cause injury orstress to' live marine mammals con-tained therein.

(c) Primary enclosures housing livemarine mammals shall not be tossed,dropped, or needlessly tilted and shallnot be stacked in a manner which mayresult. in their falling.

§ 3.119 Ambient temperature within pri-mary enclosures.

The ambient temperature or thetemperature surrounding the animalwithin the primary enclosure used totransport live marine mammals shallnot exceed 29,5" C (85' F) for a periodof more than 45 minutes and shall notfall below 7.2- C (45" F) for a period ofmore than 45 minutes unless theperson transporting such live marinemammals knows that such live marine

mammals are acclimated to lower orhigher temperatures.

All written subrnicAions made pursu-ant to this notice will be made availa-ble for public inspection at the Feder-al Building, 6505 Belcrest Road, Room703. Hyattsville, Md., during regularhours of business (8 a.m. to 4:30 p.m.,Monday through Friday, except holi-days) in a manner convenient to thepublic business (7 CFR 1.27(b)).. Comments submitted should bear areference to the date and page numberof this issue in the FEDERAL REDISTEW.

Done at Washington, D.C., this 14thday of September 1978.

Nora.--The Department has determinedthat this document does not contain amajor requirement preparation of an eco-nomic impact statement under ExecutiveOrder 11821 and OMB Circular A-107. How-ever, an economic impact statement hasbeen drafted and a copy of said draft state-ment may be obtained by writing to theDeputy Administrator. USDA, APHIS, VS,Room 703, Federal Building, 6505 BelcrestRoad, Hyattsville, Md. 20782.

PIERRE A. CnALoux,Deputy Administrator,

Veterinary Services.

[FR Doc. 78-26289 Filed 9-14-78: 2:53 pm)

FEDERAL REGISTER, VOL 43, HO. 182—TUESDAY, SEPTEMBER 19, 1971