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HUMANE HANDLING, CARE, TREATMENT, AND TRANSPORTATION OF DOGS AND CATS, AND NONHUMAN PRIMATES

 
[NOTE:  See section 3.81 for information concerning the promotion
and psychological well-being of nonhuman primates.]


02/15/91  Vol. 56, No. 32, Federal Register, Pages 6426-6505


  DEPARTMENT OF AGRICULTURE
 
  Animal and Plant Health Inspection Service
 
  9 CFR Part 3
 
  [Docket No. 90-218]
 
  RIN: 0579-AA20
 
  Animal Welfare; Standards
 
  AGENCY: Animal and Plant Health Inspection Service, USDA.  
  ACTION: Final rule.
  -----------------------------------------------------------------
------------  SUMMARY: We are amending the regulations for the
humane handling, care, treatment, and transportation of dogs and
cats, and nonhuman primates, by a comprehensive revision and
rewriting of those regulations. The effect of this action is to
update the regulations, to make them more consistent with other
Federal regulations concerning the handling, care, treatment, and
transportation of these animals, and to carry out the requirements
of the amendments to the Animal Welfare Act (7 U.S.C. 2131, et
seq.), enacted December 23, 1985. Rewriting the regulations also
makes them easier to understand, thereby increasing compliance and
making them more effective.  
  EFFECTIVE DATE: This final rule shall become effective March 18,
1991. Plans for providing exercise of dogs in Sec. 3.8 and for
promoting the psychological well-being of nonhuman primates in Sec.
3.81 must be implemented by August 14, 1991.
 
  FOR FURTHER INFORMATION CONTACT: Dr. R. L. Crawford, Director,
Animal Care Staff, Regulatory Enforcement and Animal Care, APHIS,
USDA, room 565, Federal Building, 6505 Belcrest Road, Hyattsville,
MD 20782, (301) 436-7833.  
  SUPPLEMENTARY INFORMATION:
 
  Background
 
  This final rule revises the regulations contained in 9 CFR, part
3, subparts A and D. It is the result of an intensive effort that
began in 1985 when Congress amended the Animal Welfare Act (7
U.S.C. et seq.) (the Act) in Public Law 99-198, "The Food Security
Act of 1985," and directed the Secretary of Agriculture to
promulgate certain new relations governing the humane handling,
care, treatment, and transportation of animals by dealers, research
facilities, and exhibitors, including requirements for exercise of
dogs and a physical environment adequate to promote the
psychological well-  being of nonhuman primates. The final rule
reflects the many years of experience of the Animal and Plant
Health Inspection Service (APHIS), United States Department of
Agriculture (the Department) in enforcing the Act and the Animal
Welfare regulations (the regulations). We considered many thousands
of public comments in deciding upon the content of the final rule.
Our ongoing consultation with the United States Department of
Health and Human Services (HHS), as well as other Federal agencies
concerned with animal welfare, also contributed significantly to
determining how best to fulfill our statutory mandate.
  Due to the length and complexity of this document, it is broken
down into general headings and specific subheadings where
appropriate, to assist the reader. The supplementary information
begins with a brief history of this rulemaking. Following that are
our response to the comments we received regarding our August 15,
1990, revised proposal, and the changes we are making based on
those comments and our ongoing consultation with HHS. Lastly, we
address the concerns raised in the public comment letters regarding
our economic assessments of the cost of implementing the proposed
regulations.
  
  General Background and Statutory Information
 
  The regulations are contained in title 9 of the Code of Federal
Regulations, chapter I, subchapter A, parts 1, 2, and 3. Part I
provides definitions of the terms used in parts 2 and 3. Part 2
sets forth the administrative and institutional responsibilities of
regulated persons under the Act. Part 3 provides specifications for
the humane handling, care, treatment, and transportation, by
regulated entities, of animals covered by the Act. Subpart A of
part 3 contains the regulations concerning dogs and cats; subpart
B contains the regulations concerning guinea pigs and hamsters;
subpart C contains the regulations concerning rabbits; subpart D
contains the regulations concerning nonhuman primates; subpart E
contains the regulations concerning marine mammals; and subpart F
contains the regulations concerning other warmblooded animals
regulated under the Act. APHIS issues and enforces the regulations,
under authority of the Act, as amended.
  On December 23, 1985, extensive amendments to the Act were
enacted (see Pub. L. 99-198, "The Food Security Act of 1985.").
Among other things, the Act directs the Secretary of Agriculture to
promulgate standards to govern the humane handling, care,
treatment, and transportation of animals by dealers, research
facilities, and exhibitors, for exercise of dogs, and for a
physical environment adequate to promote the psychological well-
being of nonhuman primates. In order to comply with the amendments
to the Act, APHIS published revisions of parts 1 and 2, and a
proposal and a revised proposal to amend part 3, as discussed
below.
  Proposals to amend parts 1 and 2 of the regulations were
published in the Federal Register on March 31, 1987 (52 FR
10292-10298, Docket No. 84-027, and 52 FR 10298-10322, Docket No.
84-010, respectively). We solicited comments for a 60-day period,
ending June 1, 1987. The comment period was twice extended, ending
on August 27, 1987. We received 7,856 comments, many of which
stated that it was difficult to comment upon the proposals to amend
parts 1 and 2 independently of our proposal to amend the standards
in part 3. In response to comments, we published revised proposals
on parts 1 and 2, along with a proposed rule to amend subparts A,
B, C, and D of part 3, on March 15, 1989 (54 FR 10822-10835, Docket
No. 88-013; 54 FR 10835-10897, Docket No. 88-014; and 54 FR
10897-10954, Docket No. 87-004, respectively).
   We solicited comments on the interrelationship of parts 1 and 2
with part 3 for a 60-day period, ending May 15, 1989. Approximately
5,600 comments, received or postmarked by that date, were
considered in preparing final rules for parts 1 and 2. (Any that
also pertained to part 3 were considered as responding to the
proposal to amend part 3.) The final rules to amend parts 1 and 2
were published in the Federal Register on August 31, 1989 (54 FR
36112-  36123, Docket No. 89-130, and 54 FR 36123-36163, Docket No.
89-131, respectively).
  Most of our proposal with regard to part 3 dealt with revisions
to the standards, based on our experience enforcing the
regulations. We also proposed certain significant additions to the
regulations, based on our mandate under the 1985 amendments to the
Act. For example, we made significant additions to the regulations
regarding the exercise of dogs and regarding a physical environment
necessary to promote the psychological well-  being of nonhuman
primates. We solicited comments on the proposal to amend part 3 to
be made for a 120-day period, ending July 13, 1989. A total of
10,686 comments were received in time to be considered. Included
among the recommendations we received in response to the proposed
rule were those submitted by HHS, with whom we continued our
ongoing consultation. Of the total number of comments received, the
overwhelming majority were in response to our proposed changes
regarding subparts A and D.
  Upon review of the comments regarding subparts B and C, we
determined that, in general, our proposed revisions of those
subparts were appropriate, with some minor modifications. On July
16, 1990, we published a document making final the proposed
amendments to part 3 that pertain to subparts B and C (55 FR
28879-28884, Docket No. 89-175). However, due to the nature of the
comments received in response to our proposed amendments regarding
subparts A and D, and as a result of our ongoing consultations with
other Federal agencies, we made certain major modifications to our
March 15, 1989, proposal, and issued a revised proposal regarding
those subparts on August 15, 1990 (55 FR 33448-33531, Docket No.
90-040).
  We received a total of 11,932 comments in response to our revised
proposal in time to be considered. Of the comments received, 509
were from dealers and exhibitors, 1,372 were from the research
community, and 10,051 were from members of the general public. We
included comments received from humane societies and groups
representing the public in the areas of animal welfare and animal
rights with comments from the general public.
  Comments raising objections or suggesting changes to the revised
proposal are discussed below in this supplementary information.
Subheadings are provided in the supplementary information to guide
the reader through the material. Section numbers are used in the
subheadings wherever possible to further assist the reader. We have
made a number of changes to our August 15, 1990, proposal in this
final rule. Those changes are explained in the supplementary
information below. The remaining provisions of our proposal are
necessary to ensure the health and well-being of the animals in
question, and we have included these remaining provisions in this
final rule, except to make certain nonsubstantive wording changes
for clarification.
   In our discussion of the comments received, we use the term
"proposed" or "proposal" when referring to the August 15, 1990,
revised proposal. We use the term "original proposal" when
referring to the March 15, 1989 proposal. When referring to the
regulations in 9 CFR part 3 prior to the effective date of this
final rule, we refer to the "existing regulations."  

  General Comments
 
  A large number of commenters expressed general support for the
proposed provisions, and for more stringent regulations in general.
A large number of commenters supported the proposed provisions that
would establish requirements for increased space for animals. Many
commenters also supported exercise for laboratory animals. A small
number of commenters supported those provisions that they said
would not interfere with research.
   Conversely, very many commenters opposed the proposal in
general. Many of these stated in general that the provisions that
represented revisions to our March 15, 1989 proposal were
unacceptable. A number of commenters stated generally that the
proposal should be rewritten. A number of commenters expressed
opposition to more stringent regulations. Many commenters
recommended that no changes be made to the existing regulations. A
number of commenters asserted that the proposed regulations go
beyond ensuring the humane care and use of animals. Some of these
commenters stated that the proposed standards exceed statutory
authority and are inconsistent with Congressional intent. In this
final rule, APHIS's statutory authority for the proposed regulatory
amendments is set forth in the supplementary information, under the
headings "General Background and Statutory Information" and
"Statutory Authority for This Final Rule." Based on the statutory
authority set forth, we believe ample authority exists for this
rule.
   A large number of commenters stated that the involvement of
other Federal agencies in the rulemaking process is resulting in
weaker animal welfare regulations. We do not agree that the
regulations are being weakened. On the contrary, this final rule
contains a significant number of provisions that are more stringent
than those in the existing regulations. Additionally, two
significant areas in the proposal--the exercise of dogs and the
psychological well-being of nonhuman primates--are not in the
existing regulations.
   A number of commenters opposed in general what they considered
the weakening of our original proposal in the revised proposal. We
do not agree that the revised proposal represents a weakening of
our original proposal. We gauge the strength of the animal welfare
regulations by how well they effectuate the humane handling, care,
treatment, and transportation of the animals in question. Our goal
is to accomplish this end in the most reasonable and efficient way
possible. We expect the provisions in this revised rule to attain
the same ultimate goal as those in the proposed rule.
   Many commenters stated that they favored more specific, rather
than general standards. Of those favoring more specific standards,
many expressed opposition to "performance standards," as contrasted
with "engineering standards." Conversely, very many commenters
stated that they were in favor of replacing engineering standards
with performance standards. A small number of commenters asserted
that including rigid engineering standards in the proposed
regulations was contrary to the directives of Executive Order No.
12498. Many commenters stated that the proposed standards would
interfere with research due to their rigidity and specificity, and
would not allow the flexibility and innovations necessary for the
optimal care and treatment of animals. Many commenters stated that
rigid engineering standards are not suitable for regulating a wide
range of facilities, interfere with professional judgment, rapidly
become obsolete, and are not scientifically justified. In
developing the proposed rule, we relied on our experience enforcing
the regulations, on our scientific expertise, on information
supplied by other Federal agencies, on research data regarding
animal behavior, and on other information submitted by the public.
Our goal was to establish regulations that would both promote the
well-being of the animals in question and be enforceable. We did
not consider it appropriate to couch all the proposed regulations
either in the form of performance standards or engineering
standards. In formulating the proposal, we attempted to identify
those areas where variations in circumstances and animal behavior
would make very specific standards less effective in promoting
animal welfare than broader, goal-oriented standards. In those
areas, we proposed to allow for flexibility in how the goal would
be reached. In other areas, we determined that the needs of most of
the animals housed, handled, or transported together were so
similar that specific uniform standards were more appropriate, both
for enforceability and for the well-being of the animals. Even in
those areas, however, we recognized that in some cases the same
specific requirements would not be appropriate for every animal
involved. To accommodate these exceptions, we provided in many
cases for professional discretion by the attending veterinarian. We
believe that the provisions in this final rule represent a
practical and enforceable blend of performance and engineering
standards.
  Many commenters stated that Congressional intent regarding the
Act was for APHIS to avoid the use of performance standards. These
commenters referred to correspondence between certain members of
Congress and the United States Office of Management and Budget, in
which the members of Congress urged that specific standards be
adopted. We are aware of the correspondence referred to, and do not
agree that it fully represents Congressional intent. On the
contrary, the Congressional Conference Report on the Fiscal Year
1991 Agricultural Appropriations Bill contains the following
language: "The conferees expect the Animal and Plant Health
Inspection Service to incorporate performance based standards into
its regulations when such performance based standards would not
interfere with the establishment of a minimal level of care or the
enforceability of the Act as Congress intended." As discussed
above, we have therefore incorporated performance based standards
where we considered them appropriate.
  A number of commenters stated that researchers do not have the
expertise to assess performance standards. We do not share the
commenters' concern. The standards set forth in the proposal
clearly state the ends that must be achieved. The regulated
facilities, and not any particular researchers, is responsible for
achieving these ends. We are confident each facility has or has
access to the professional expertise adequate to ensure compliance
with the regulations.
  One commenter stated that the National Institutes of Health (NIH)
Guide for the Care and Use of Laboratory Animals (Guide) must not
be used as a minimum regulatory standard. Several commenters stated
that it is not scientifically valid to adopt as Federal regulations
all of the elements currently proposed to be adopted from the NIH
Guide. Conversely, a large number of commenters stated that they
concurred with coordination between certain provisions of the
regulations and the NIH Guide. Section 15(a) of the Act requires
that the Secretary of Agriculture consult and cooperate with other
Federal agencies in establishing standards, and consult with the
Secretary of HHS before issuing regulations (7 U.S.C. 2145(a)).
However, notwithstanding our obligation to consult, we are mindful
that Congress has entrusted the Department with the responsibility
for establishing minimum requirements to carry out the Act's
purposes, and for administering the Act because of our expertise in
animal welfare matters. In the entire proposal, several areas
contained provisions that paralleled those in the NIH Guide. In
those cases, in fulfilling our responsibility to set forth
regulations providing for animal welfare, we were also able to set
forth regulations that harmonized with the NIH Guide.
   One commenter stated that the proposed rulemaking would
radically alter established Public Health Service/NIH policies. We
disagree. The Public Health Service issues their Guidelines
independent of our statutory mandate. This rule concerns the
implementation of the Animal Welfare Act, for which the Secretary
of Agriculture is responsible. In developing the proposed rule, we
carried out our statutory obligation to consult with HHS. The
consultations we conducted with that Department were comprehensive
and intensive. A representative from the National Institutes of
Health worked closely with APHIS to provide the HHS position on all
issues affecting the research community. Through this consultation,
we achieved what we understand to be a mutually satisfactory
document. Based on our ongoing communication with HHS, that it can
be readily implemented by the research community.
   A number of commenters stated that the proposal was not
stringent enough to meet the intent of Congress. We disagree. The
intent of Congress was to provide for the enhanced well-being of
the animals covered under the Act, and in particular to provide for
the exercise needs of dogs and to promote the psychological well-
being of nonhuman primates. Congress has provided the Department
the authority to develop regulations to promote animal welfare. We
believe the standards in this final rule provide the flexibility to
accommodate varying conditions and procedures, while still
providing the opportunity for exercise of dogs and an environment
to promote the psychological well-being of nonhuman primates. In
certain cases, based on information supplied by the public, we have
made modifications to our proposal to promote better the well-being
of the animals covered by the Act and the regulations.
  A number of commenters stated that the proposed regulations are
not supported by scientific documentation, that they are arbitrary
and capricious, and that they provide no evidence either that the
existing standards are inadequate or that the proposed standards
will be of benefit to the animals' welfare. A number of commenters
recommended that the proposal be rewritten to reflect available
scientific information and current professional consensus. A
smaller number of commenters expressed the opinion that APHIS does
not have the technical competence to promulgate the proposed
standards. The proposal we published was the result of a
Congressional mandate to establish standards to provide for the
exercise of dogs and for the psychological well-being of nonhuman
primates, as well as the result of changes to the regulations that
we considered appropriate based on over 20 years of enforcing those
regulations. As noted above, in 1989 we published an initial
proposal to amend and expand the regulations. We invited public
comment on that proposal, soliciting whatever scientific data was
available. Based on the information we received, and on our ongoing
consultation with other Federal agencies, we made a number of
significant modifications to that initial proposal. The basis for
these changes was discussed in the preamble of the revised proposal
that we published August 15, 1990. In that revised proposal, we
again invited research data and other public comment. We have
carefully reviewed all of the data and other information submitted
to us, and, based on that information, have made certain
modifications in this final rule. The basis for these modifications
is discussed in the supplementary information of this final rule.
  A small number of commenters recommended that separate standards
be established for research, dealer, and exhibitor facilities. As
we discussed in our proposal, while provisions do exist in the
regulations to ensure that the standards in part 3 do not interfere
with approved research, in general we do not believe that separate
standards for different types of facilities are appropriate. The
Act requires that we establish minimum standards for the humane
care and well-being of animals. The fact that the standards we
proposed are minimum assures that they will be adequate for each
type of facility.
  A large number of commenters stated in general that the
scientific community is highly motivated to maintain the best
possible laboratory animal care, because it is essential for humane
reasons and to ensure productivity and accuracy. As discussed in
the proposal, we agree that humane treatment of animals used in
research promotes the well-being of the animals and the research
value of the activities conducted. The standards set forth in part
3 of the regulations are minimum standards necessary for the well-
being of animals housed, held, or maintained at any of the various
categories of regulated entities. We encourage and applaud
treatment of animals according to standards in excess of the
minimum. However, as discussed above, we do not consider it
appropriate or warranted to establish a separate set of standards
for each type of regulated entity, as was suggested by these
commenters.
   Many commenters stated that the proposed regulations contain too
many "loopholes" that allow facilities to interpret or circumvent
standards, even though this is what Congress intended to avoid with
its 1985 amendments to the Act. A small number of commenters stated
that APHIS should not allow any exemptions from the regulations,
even if approved by the Institutional Animal Care and Use Committee
(Committee) at research facilities. We disagree. Throughout this
rulemaking process, we have remained cognizant that section
13(a)(6) of the Act prohibits the Secretary from interfering with
research design or the performance of actual research. Accordingly,
the regulations provide research facilities with exceptions from
the standards in part 3, when such exceptions are specified and
justified in the proposal to conduct the activity. This provision
is clearly set forth in part 2 of the regulations, and we do not
agree, as one commenter recommended, that a similar provision is
necessary as preface to part 3.
  On the other hand, a number of commenters stated that APHIS
exceeded statutory authority and Congressional intent by proposing
regulations that interfere with research facilities' right to
determine whether an activity is to be considered as a part of the
performance of research. We disagree. These regulations are
consistent with the Act's requirement that our regulations do not
interfere with the design or performance of research.   One
commenter asked that we clarify which provisions could be departed
from if approved in a research protocol, and which need to be
adhered to in every case. The Act is clear on this issue. No
provision in the regulations is to interfere with research that is
part of an approved protocol.
   A large number of commenters addressed the issue of primary
enclosure size. Of those discussing primary enclosures, many
supported the areas where our proposed provisions coincided with
the NIH Guide. Very many commenters supported in general larger
cages for animals. Many commenters stated that the minimum space
requirements set forth in the proposal were insufficient. Based
both on our experience enforcing the regulations and on animal
research, we disagree that the minimum space requirements we
proposed are insufficient. In the case of each of the animals whose
treatment is regulated under subparts A and D--cats, dogs, and
nonhuman primates--the specific minimum space requirements are at
least as stringent as those in the existing regulations. In the
case of cats, we have increased the space requirements from the
existing regulations. In the case of dogs, we have maintained the
existing floor space requirements for most dogs, have increased the
space requirements for certain dogs, and have added height
requirements. In the case of nonhuman primates, we have set forth
space requirements that in effect closely parallel those in the
existing regulations, and that in certain cases exceed the
requirements in the existing regulations. In all cases,
notwithstanding the specific primary enclosure dimensions required
by the proposal, the regulations would require that the animal be
able to move in a normal manner.
  Several commenters stated generally that the proposed regulations
would unduly restrict the exercise of professional judgment by the
attending veterinarian and other laboratory animal professionals.
We recognize that under certain circumstances, specific uniform
requirements will not be most effective in promoting the well-being
of all animals involved. To accommodate such situations, we have,
in many cases, provided for discretion on the part of the attending
veterinarian. We therefore disagree with the commenters that the
provisions of this final rule will unduly restrict professional
judgment.
   Many commenters stated generally that the proposed regulations
would have an adverse effect on animal welfare. We disagree. The
regulations set forth in this final rule include the addition of
certain requirements for the well-being of animals, as mandated by
Congress, and amendments to the existing regulations that we
consider necessary to improve animal care. We consider this final
rule to be an improvement over the existing regulations.
   A large number of commenters expressed concern that the proposed
regulations would be unenforceable, given the current number of
inspectors employed by the Department. We are making no changes
based on these comments. In developing the proposed regulations, we
were cognizant of the demands they would make on Department
personnel, and are confident that the proposed provisions are
workable and enforceable. Beyond that, we believe that they are
necessary to enable us to meet our Congressional mandate to promote
and protect the well-being of the animals covered under the Act.  
Many commenters stated more specifically that the Department would
have difficulty enforcing the provisions regarding exercise
requirements for dogs and the promotion of the psychological well-
being of nonhuman primates. We disagree. Those particular areas of
the regulations require facilities to develop plans for meeting the
respective needs of dogs and/or nonhuman primates. In enforcing the
regulations, an inspector will visually inspect the animals and the
facility, and will review the required plans, as well as records of
any exemptions for specific animals, to verify what he or she
observes. Development of the plans will require involvement of the
attending veterinarian, and in the case of research facilities, the
Committee. We are confident that such professional involvement,
combined with inspections by the Department, will be of greater
benefit to the animals involved than rigid, across-the-board
standards that do not take into account varying conditions and
procedures.
  One commenter stated that the attending veterinarian should have
greater discretion in the formulation of animal care plans, and
that all veterinarians should be board-certified. The regulations
require that the attending veterinarian have knowledge of the
species to be maintained at a facility. Additional requirements
would be at the discretion of the facility.
   One commenter stated that the regulations as proposed allow for
too much "professional judgment" on the part of the attending
veterinarian. The commenters questioned whether all veterinarians
would have the integrity necessary to make sound professional
judgments. Under the regulations, the attending veterinarian is
responsible to the facility, which is responsible for compliance
with the regulations. The facility is therefore dependent on the
attending veterinarian's sound judgment to remain in compliance.
Additionally, all decisions made by attending veterinarians will be
subject to review by APHIS inspectors.
  A large number of commenters stated that requirements for
exercise of dogs and social interaction of primates must be spelled
out clearly. We consider the requirements referred to be set forth
clearly in our proposal. It is clear what ends are to be achieved.
However, we do not consider it in the best interests of individual
animals, many with differing needs, to restrict all facilities to
the same specific set of procedures in achieving those ends.
  In certain provisions in the regulations, the standards allow for
adherence to "generally accepted practices." A small number of
commenters stated that this term is vague, and that inspectors will
be unable to evaluate whether a facility is in compliance. We
disagree. Department inspectors are professional veterinary medical
officers or animal health technicians, and are well trained in, and
able to evaluate what constitute, generally accepted practices. A
number of commenters stated that customary and generally accepted
practices were precisely what Congress was objecting to when it
required that the regulations be amended. We disagree with the
general statement that generally accepted practices are harmful to
animals. We particularly disagree with the allegation that accepted
professional veterinary practices are inadequate. Even in the
absence of Federal regulations regarding animal care, the
veterinary profession adheres to its own professional standards to
ensure the well-being of the animals it attends to. The changes
that Congress mandated in the 1985 amendments to the Act were for
the most part additions, not amendments, to the existing
regulations. These additions, specifically relating to exercise for
dogs and the psychological well-being of non-human primates, have
been included in the regulations in such a way as to allow for the
diversity of needs among species, breeds, individual animals, and
conditions. A more rigid, inflexible approach could actually prove
injurious to the animals.
  A large number of commenters stated that facilities need to be
able to establish their own performance standards, so that a
facility can ensure adequate animal care and can accommodate
special institutional needs and circumstances. Conversely, a number
of commenters stated that the Department is illegally delegating
its statutory duty to issue regulations to those being regulated.
We disagree that the Department is inappropriately delegating its
authority. Through the regulations set forth in this final rule, we
are establishing standards for the exercise of dogs and the
psychological well-being of nonhuman primates. Under the
regulations, facilities are authorized only to develop specific
procedures for meeting the standards.
  One commenter stated that any plans or standard operating
procedures developed by a Committee to comply with the regulations
should be required to be submitted for Department approval. Under
the regulations, such plans will be subject to review by Department
inspectors. We therefore do not consider it necessary to require
their submission for approval prior to implementation.
  The regulations as proposed provided in certain cases for written
documentation by facilities of procedures and exemptions. A number
of commenters questioned whether APHIS would retain copies of this
documentation. The commenters expressed concern that if APHIS took
possession of copies, that information would then be available to
the public under the Freedom of Information Act. According to the
commenters, this would both allow competitors access to information
associated with research, and provide potential terrorists with
information regarding facilities. As a general rule, the written
documentation required by the regulations will be inspected by
APHIS at the facility, and will not be copied or removed. However,
APHIS will have the option of removing such documentation if
removal is necessary to carry out enforcement procedures.
  One commenter recommended that the general public and any
veterinarian be permitted access to records of research facilities
to assist APHlS in monitoring these sites for compliance. Under the
Act, enforcement is restricted to Department employees, and may not
be delegated to members of the public.
  A number of commenters stated that the proposed regulations would
burden research facilities with unnecessary paperwork. On the other
hand, a large number of other commenters opposed the elimination in
the revised proposal of any recordkeeping requirements that
appeared in the original proposal. One commenter called for daily
or weekly documentation by facilities of compliance with the
regulations. A number of other commenters stated that the proposed
standards for laboratory animals were carefully drawn to avoid
unnecessary paperwork. Under the Paperwork Reduction Act, we are
required to minimize the paperwork burden on the public, consistent
with the proper performance of our responsibilities under the Act.
Cognizant of this obligation, we developed the proposed regulations
with the goal of reducing paperwork requirements as much as
possible, while still retaining the ability to document adequately
conditions for enforcement purposes. Eliminating documentation
requirements entirely would in certain areas hinder our ability to
carry out our mandate to promote and enforce the welfare of animals
covered under the Act. The recordkeeping and reporting requirements
in this final rule represent what we consider the minimum necessary
to enable us to enforce the regulations adequately.
  Some commenters stated that the proposed regulations would
eliminate the transport of animals by air. However, the commenters
did not supply data to support these assertions. The purpose of
amending the regulations is to help ensure the health and well-
being of dogs and cats. In the absence of data indicating that
other factors should override specific measures proposed to achieve
this goal, we are making no changes to our proposal based on these
comments.
  A small number of commenters stated that the regulations should
differentiate clearly between standards for transportation of
shipped animals, and those traveling with passengers. With regard
to carriers and intermediate handlers, the regulations specify that
animals are covered by the regulations when "accepted" by those
entities for transport. If these animals are in the possession of
individuals in passenger areas, they are not subject to the
regulations. Several commenters stated that the transportation
standards should be clarified as to "transport in commerce" and
"transport between buildings." We do not consider such a
distinction necessary. Regulated animals must be handled in
compliance with the standards at all times.
  Several commenters stated generally that the proposed standards
would result in an increased risk of disease and injury to both
humans and animals. We believe that the proposed regulations should
pose little increased risk if proper medical, health, husbandry,
and safety procedures are followed. Whatever risk might exist will
be minimized by the provisions in this final rule that allow for
professional judgment as to the health and safety needs of
individual animals, breeds, and species.
  A small number of commenters stated that standards for
temperature ranges should be as uniform as possible throughout the
regulations to avoid confusion. In many areas in this final rule,
based on information we received from the public, we have made
changes to standardize allowable temperature ranges. These changes
are discussed in the supplementary information of this final rule.
One commenter recommended that all temperature and humidity
standards be deleted from the regulations, and be replaced with
general performance standards. We disagree with the commenter with
regard to temperature requirements. Although the needs and
tolerances of individual animals allow for some variation in
acceptable temperature levels, certain upper and lower limits exist
that are applicable to animals in general. With regard to humidity,
the regulations as proposed already provide for professional
discretion in determining appropriate humidity levels.
   A number of commenters stated that environmental and temperature
standards for animals should be similar to human standards until
comfort indices for various species can be established. We disagree
with the commenters. Differences among species do not allow for
accurate cross-species comparisons.
  One commenter stated that allowing for flexibility or innovation,
as provided in certain cases in the regulations, is inappropriate
when dealing with minimum standards. We disagree. The regulations
include minimum standards, as required by law. In allowing for
flexibility and innovation, we are simply allowing regulated
entities some latitude in determining how to satisfy those minimum
requirements.
  One commenter stated that the regulations would create an
adversarial relationship between veterinarians and researchers.
Several commenters stated that under the proposed regulations, the
attending veterinarian and Committee would become an enforcement
agent of APHIS, which is not authorized by the Act. One commenter
opposed the involvement of the Committee in the approval of
procedures, because, according to the commenter, this usurps
management's role and exceeds APHIS's statutory authority. Under
the regulations, the research facility is responsible for ensuring
that the regulations are met. Under the regulations, the attending
veterinarian and the Committee are to provide professional judgment
to the facility. We do not consider this an adversarial
relationship, nor do we consider it as delegating enforcement
authority to either the attending veterinarian or the Committee.  
   A small number of commenters stated that many of the proposed
provisions would be used to eliminate animals from biomedical
research. As we discussed in our proposal, history does not support
such an assertion. Concerns regarding the elimination of animals
from research were raised in 1966 and 1967 when the Act was first
enacted and regulations were promulgated to implement it. To the
contrary, however, tremendous advances in human and animal health
have been made possible through continued support for biomedical
research. In enacting the 1985 amendments to the Act, Congress
specifically found that the use of animals is instrumental in
certain research and education (7 U.S.C. 2131(b)). We believe that
the provisions of this rule will effectuate the intent of Congress
without imposing an unnecessary, unreasonable, or unjustified
financial burden.
   Several commenters expressed concern that the proposed
regulations would discourage young people from entering medical
research fields. We disagree. We believe that greater concern for
the humane care and use of animals may in fact encourage new
scientists and foster greater support for biomedical research
throughout our society.
  One commenter stated that the phrasing of the proposed
regulations indicated application to non-animal areas. In certain
cases, such as housekeeping standards, application to non-animal
areas was intentional, because the condition of a premises can have
an impact on the animals housed at the facility. In certain other
cases, such as temperature requirements in housing facilities,
qualifying language is included to make it clear that the standards
need be met only when animals are present. We believe that the
remainder of the proposed provisions express their intent clearly
as to which areas of a facility, conveyance, or operation would be
affected.
   Several commenters recommended that the proposed regulations
include an index to allow easier retrieval of information. We do
not believe it is necessary to include an index in the regulations.
Each of the subparts designates the types of animals it covers.
Within each subpart, the contents of each section are indicated by
a section heading. These headings are set forth in a table of
contents at the beginning of each subpart. We believe that this
format provides adequate reference to the contents of the
regulations.
  Several commenters requested that, in developing a final rule,
the Department consider all comments received on previous proposed
standards, as well as those received on our most recent proposal.
We take seriously our responsibility under the Administrative
Procedure Act to consider each comment timely received in response
to proposed rulemaking. Accordingly, we have reviewed all such
comments in the process of developing and modifying the rulemaking
that is culminating in this final rule.
  One commenter stated that all pet animal businesses should be
covered by the regulations. The regulations in subparts A and D
apply to those entities specified under the Act as being subject to
its provisions. Under the Act, certain retail stores that sell pet
animals are subject to the Act and the regulations. Other
commenters stated that humane societies, animals rights
organizations, and other special interest groups should be subject
to the regulations. Such entities are not specified under the Act
as being subject to its provisions, and therefore are not subject
to the regulations unless they also act as dealers, exhibitors,
research facilities, intermediate handlers, or carriers.
  Several commenters stated either that the proposed regulations
were written in a manner not understandable by the general public,
thereby making comments on them difficult, if not impossible, or
that the regulations should be reformatted or rewritten to improve
their clarity. Based on the great number of comments we received
addressing both specific and general provisions set forth in the
proposal, we believe that in general the public found the proposed
provisions understandable.
 
  Effective Dates
 
  A large number of commenters addressed the issue of when the
regulations should become effective. Several commenters expressed
the opinion that the Department is obligated to make the amended
regulations effective upon publication of this final rule. One
commenter stated that the Department has already exceeded the time
during which it was legally obligated to establish new regulations.
Many more commenters called for a delay in the effective date, in
order to allow time for adequate planning and financing. The
commenters requesting a delay recommended that the regulations,
particularly those provisions regarding minimum space requirements,
become effective from 1 to 5 years after publication. A small
number of commenters requested that primary enclosure space
requirements be "grandfathered" in, to allow use of existing
primary enclosures that are not in compliance with the new
standards, until those enclosures would otherwise need replacement. 
   We disagree that the Department has illegally delayed
publication of this final rule. On the contrary, the Department has
diligently pursued the promulgation of these regulations with as
much speed as their complexity allows. We are keenly aware of the
economic impact these amended regulations will have on regulated
entities. However, we are obligated to establish standards to
promote the well-being of the animals protected by the Act,
notwithstanding the fact that expenses will be incurred by
regulated facilities in complying with the regulations. We are also
aware of our obligation under Executive Order 12291 to minimize the
economic impact of these rules on affected entities. In recognition
of this responsibility, and of the practical delays that will
necessarily be associated with complying with certain of the new
requirements, we are providing that the facility plans for
providing exercise of dogs, and for promoting the psychological
well-being of nonhuman primates, must be developed and implemented
within 180 days of the publication date of this final rule.
  Many commenters pointed out that several of the new requirements
would require affected facilities to make extensive structurally
related changes in order to be able to comply with the new
regulations. We believe those comments are well-founded and,
therefore, in order to allow affected facilities the time necessary
to make such changes, we are providing in this rule that regulated
persons have until February 15, 1994, to comply with a few,
specific provisions. These provisions appear in this rule in the
following places:
  1. Section 3.6(b)(1)(ii)(A) through Sec. 3.6(b)(1)(ii)(C)
(redesignated from Sec. 3.6(b)(1)(i) through Sec. 3.6(b)(1)(iii) in
the proposed rule), regarding minimum space requirements for
primary enclosures containing cats;
  2. Section 3.6(c)(1)(iii), regarding height requirements for
primary enclosures containing dogs;
  3. Section 3.6(c)(2)(ii) (redesignated from Sec. 3.6(c)(2) in the
proposed rule), regarding perimeter fences surrounding dogs kept on
tethers;
  4. Section 3.77(f), regarding perimeter fences surrounding
nonhuman primates housed at sheltered housing facilities;
  5. Section 3.78(d), regarding perimeter fences surrounding
nonhuman primates housed at outdoor housing facilities; and
  6. Section 3.80(b)(2)(i) through Sec. 3.80(b)(2)(iv)
(redesignated from Sec. 3.80(b)(1), Sec. 3.80(b)(2), Sec.
3.80(b)(4), and Sec. 3.80(b)(5), respectively, in the proposed
rule), regarding minimum space requirements for primary enclosures
containing nonhuman primates.
  Because this new rule replaces the current standards, we are
providing in this rule that, where standards currently exist with
regard to the provisions listed above, those existing standards
must be complied with during the period prior to February 15, 1994.
This will enable us to maintain the standards necessary for the
well-being of those animals whose care will be affected by the need
for structural changes. Although we are providing additional time
to comply with those new standards that require extensive
structural changes, it is nevertheless our intent to encourage
facilities to make those changes and come into compliance with the
new standards as soon as possible.
 
  Subpart A--Dogs and Cats
 
  Regulations for humane handling, care, treatment, and
transportation of dogs and cats are contained in 9 CFR part 3,
subpart A. These regulations include minimum standards for
handling, housing, feeding, watering, sanitation, ventilation,
shelter from extremes of weather and temperature, veterinary care,
and transportation.
  It should be noted that the regulations, as discussed in this
final rule, apply only to live dogs and cats. In our August 15,
1990, proposal, we proposed to revise and rewrite the existing
regulations based on our experience administering them. We also
proposed to amend our regulations to add requirements for the
exercise of dogs. This is specifically required by the 1985
amendments to the Act. (See 1752, 99 Stat. 1645, Pub. L. 99-198,
amending section 13 of the Act). We discuss below each topic
covered in our proposal.
  Several commenters recommended that adequate provisions for
exercise and socialization be provided for cats as well as dogs. As
we discussed in our proposal, one of our specific obligations under
the 1985 amendments to the Act was to establish requirements for
the exercise of dogs. In response to that mandate, we included such
provisions in our proposal. However, the Act does not specifically
require that we establish exercise requirements for cats, and based
on the information we have reviewed, we do not feel it is necessary
or appropriate to require exercise and socialization for cats.  

  Housing Facilities and Operating Standards
 
  Existing Secs. 3.1 through 3.3 provide requirements for
facilities used to house dogs and cats. Existing Sec. 3.1,
"Facilities, general," contains regulations pertaining to housing
facilities of any kind. It is followed by existing Sec. 3.2,
"Facilities, indoor," and Sec. 3.3, "Facilities, outdoor." In our
proposed rule, we proposed to amend these sections to provide for
an environment that better promotes the health, comfort, and well-
being of dogs and cats. We also proposed to add sections that
provide regulations specifically governing two other types of
facilities used to house dogs and cats--sheltered housing
facilities, and mobile or traveling housing facilities. The term
"sheltered housing facility" is defined in part 1 of the
regulations as "A housing facility which provides the animals with
shelter; protection from the elements; and protection from
temperature extremes at all times. A sheltered housing facility may
consist of runs or pens totally enclosed in a barn or building, or
of connecting inside/outside runs or pens with the inside pens in
a totally enclosed building." The term "mobile or traveling housing
facility," also included in part 1, is defined as "a transporting
vehicle such as a truck, trailer, or railway car, used to house
animals while traveling for exhibition or public education
purposes."
   Some of the regulations we proposed for housing facilities are
applicable to housing facilities of any kind. As in the existing
regulations, we proposed to include these standards of general
applicability in one section, proposed Sec. 3.1, that would also
include many of the provisions in existing Sec. 3.1. Additionally,
we proposed amendments to the existing regulations that are
specific to particular types of housing facilities, and included
those provisions in separate sections of the proposed regulations.
In some cases where the existing regulations would have been
unchanged in substance, we made wording changes to clarify the
intent of the regulations.
  Several commenters recommended that we require that housing
facilities comply with Federal, State, and local laws and
regulations relating to housing facilities for dogs and cats, so as
to allow uniform enforcement by various jurisdictions. We are
making no changes based on these comments. We are authorized under
the Act to establish minimum standards for animal welfare. This
mandate is different than those under other Federal, State, and
local laws.
  One commenter requested that we combine the provisions regarding
sheltered housing facilities and outdoor housing facilities to
avoid confusion over which is which. As defined in part 1 of the
regulations, sheltered and outdoor housing facilities are two
distinct types of facilities. Because of the differences between
the two, we consider separate regulations necessary for each.
 
  Housing Facilities, General
 
  Housing Facilities; Structure; Construction--Section 3.1(a)  

  We proposed in Sec. 3.1(a) to require that housing facilities for
dogs and cats be designed and constructed so that they are
structurally sound. We proposed that they must be kept in good
repair, and that they must protect the animals from injury, contain
the animals securely, and restrict other animals and unauthorized
humans from entering. A small number of commenters specifically
supported these provisions as written. A large number of commenters
addressed the issue of restricting the entrance of unauthorized
humans, stating that the responsibility for maintaining adequate
security at a facility belongs to the facility, and not to the
Department of Agriculture. Others were concerned that, even if the
facility made reasonable efforts to prevent the entry of
unauthorized humans, the facility would still be liable for the
entry of trespassing individuals. Because, unlike nonhuman
predators and pests, it may be virtually impossible to prevent the
unauthorized entry of humans, it will not be a violation of these
regulations for facilities to fail to prevent such entry. In this
final rule, we are therefore removing the requirement, as proposed
in Secs. 3.1 (a) and (b), that facilities restrict the entry of
unauthorized humans.
  A small number of commenters stated that the provision that
facilities restrict the entry of other animals was unnecessarily
stringent. One commenter stated that reasonable efforts to comply
with this provision should be sufficient. Others requested
clarification of the definition of "other animals." We continue to
believe that the provision is adequate as written. Unlike the
forced entry of unauthorized humans, entry by other animals can be
prevented by structural safeguards. Our implicit intent in
requiring that other animals be restricted from entering the
facility was to bar the entry of animals that could be detrimental
to the health and well-being of the animals housed at the facility.
  One commenter recommended that facilities be required only to
reasonably protect animals from injury. We are making no changes
based on this comment. We do not consider it unreasonable to
require facilities registered or licensed under the Act to ensure
the well-being of the animals in their custody.
 
  Housing Facilities: Condition and Site--Section 3.1(b)
 
  In proposed Sec. 3.1(b), we proposed to add the requirement that
a dealer's or exhibitor's housing facilities be physically
separated from any other business. When more than one entity
maintains facilities on the premises, the increased traffic,
equipment, and materials in proximity to the animals can be
detrimental to the animals' well-being. Also, in cases where more
than one entity maintains animals on a premises, it can be
difficult to determine which entity is responsible for which
animals and for the overall conditions. To avoid this difficulty,
we proposed to require that housing facilities other than those
maintained by research facilities and Federal research facilities
be separated from other businesses. We did not propose to impose
this requirement on research facilities, because they are often
part of a larger sponsoring establishment, such as a university or
pharmaceutical company, and responsibility for animal and site
conditions rests with that establishment. Therefore, we have not
encountered the enforcement difficulties noted above with respect
to research facilities.   One commenter specifically supported
these provisions as written. Several commenters recommended that we
require that all holding facilities and broker operations be
operated in a building separate from the owner's dwelling or living
quarters, with the exception of administrative offices. We do not
consider the location of a licensee's dwelling relevant to the
welfare of the animals housed in a facility, and therefore are
making no changes based on this comment.
  We also proposed in Sec. 3.1(b) to require that housing
facilities and areas used for storing animal food and bedding be
kept free of any accumulation of trash, waste material, junk,
weeds, and other discarded material, in order to prevent an
unsanitary condition and problems with diseases, pests, and odors.
The need for orderliness applies particularly to the areas where
animals are maintained in the housing facilities. Under our
proposal, these areas would have to be kept free of clutter,
including equipment, furniture, and stored material, but could
contain materials actually used and necessary for cleaning the
area, and fixtures or equipment necessary for proper husbandry
practices and research needs.
   A small number of commenters took issue with these proposed
provisions. One commenter stated that weeds are not necessarily
detrimental to the welfare of animals. Others recommended that we
prohibit the conditions described only when they might negatively
affect the health and welfare of the animals, or that we reword the
proposed provision for clarity. We are making no changes based on
these comments. While weeds themselves may not be detrimental, they
interfere with such necessary practices as cleaning and rodent
control. We continue to believe that the wording as proposed is
necessary and enforceable.
 
  Housing Facilities: Surfaces; General Requirements--Sections
3.1(c) (1) and (2)
 
  We included in proposed Sec. 3.1(c) requirements concerning
housing facility surfaces that are common to all types of
facilities. We proposed to include requirements specific to
particular types of facilities in separate sections. In Sec.
3.1(c)(1), we proposed to require that the surfaces of housing
facilities either be easily cleaned and sanitized, or be removable
or replaceable when worn or soiled. These provisions also applied
to houses, dens, and other furniture-type fixtures or objects
within the facility.
   Proposed Sec. 3.1(c)(1) also required that any surfaces that
come in contact with dogs and cats be free of jagged edges or sharp
points that might injure the animals, as well as rust that prevents
the required cleaning and sanitization. We proposed to allow rust
on metal surfaces, as long as it is not excessive and does not
reduce structural strength or interfere with proper cleaning and
sanitization.
  We proposed in Sec. 3.1(c)(2) to require that all surfaces be
maintained on a regular basis and that surfaces that cannot be
easily cleaned and sanitized be replaced when worn or soiled.
  A small number of commenters specifically supported these
provisions as written. One commenter expressed the opinion that the
provisions in proposed Sec. 3.1(c)(1) were redundant with the
requirements in proposed Sec. 3.10. We disagree. The requirements
in proposed Sec. 3.1(c)(1) are structural requirements for housing
facilities. The provisions in proposed Sec. 3.10 pertain to
cleaning and sanitization.
  One commenter stated that rusted areas cannot be adequately
sanitized, and that rust affects structural strength and creates
harmful runoff, and therefore should be prohibited. Based on our
experience enforcing the regulations, we have not found superficial
rust to be a problem with regard to either structural strength or
sanitization. We are therefore making no changes based on this
comment.
 
  Housing Facilities: Surfaces; Cleaning--Section 3.1(c)(3)  

  We proposed in Sec. 3.1(c)(3) to require that hard surfaces that
come in contact with dogs or cats be spot-cleaned daily and
sanitized at least every 2 weeks. Proposed Sec. 3.10(b) also
provided for various methods of sanitizing primary enclosures and
food and water receptacles. Because these methods are effective in
general for sanitization of hard surfaces that cats and dogs come
in contact with, any of them could be used for the sanitization
required by Sec. 3.1(c). We proposed that floors made of dirt,
absorbent bedding, sand, gravel, grass, or other similar material
would have to be raked or spot-cleaned with sufficient frequency to
ensure all animals the freedom to avoid contact with excreta. This
flooring material would have to be replaced if the raking and spot-
cleaning were not sufficient to prevent or eliminate odors, pests,
insects, or vermin infestation. We proposed that all other surfaces
would have to be cleaned and sanitized when necessary to satisfy
generally accepted professional and husbandry practices.
   A small number of commenters stated that dogs or cats in large
open runs may not need to have those areas cleaned daily. The
regulations as proposed require only daily spot-cleaning of hard
surfaces with which the dogs and cats come into contact. We
consider such a requirement both practicable and necessary and are
making no changes based on the comments.
   One commenter opposed the use of floors such as dirt, sand, and
gravel, stating that such materials cannot be adequately sanitized.
We are making no changes based on these comments. While it is
sometimes difficult to use standard sanitization procedures on such
surfaces, it is relatively simple to replace specific areas as
needed. Several commenters objected to the use of gravel surfaces
on the grounds that the use of such material was inhumane. Section
3.1(a) of this final rule requires that housing facilities must
protect the animals there from injury. In any cases where the use
of gravel is shown to be causing injury, it is prohibited under
Sec. 3.1(a).
   Several commenters stated that sanitization should be required
either daily or weekly. The provisions as proposed stated that
sanitization must be carried out at least every two weeks, and more
often if necessary to prevent an accumulation of dirt, debris, food
waste, excreta, and other disease hazards. Based on our experience
enforcing the regulations, we consider such provisions adequate for
proper sanitization.
  The regulations as proposed required cleaning to prevent any
accumulation of excreta. Many commenters stated that it would be
impossible to prevent all accumulation of excreta, and recommended
that we delete the word "any" before the word "accumulation." We
consider the commenters' point a valid one and are making the
recommended change.
  One commenter requested that we define "hard surfaces." We
consider the term self-explanatory and are making no changes based
on the comment.  

  Facilities: Water and Electric Power--Section 3.1(d)
 
  In the existing regulations, Sec. 3.1(b) specifies that reliable
and adequate water and electric power must be made available "if
required to comply with other provisions of this subpart." In our
proposed rule, we set forth provisions concerning water and
electric power in Sec. 3.1(d). We proposed there to eliminate the
qualifying statement cited above, and to require that all
facilities have reliable and adequate electric power and potable
running water for the dogs' and cats' drinking needs, for cleaning,
and for carrying out other husbandry requirements.
  A small number of commenters supported the proposed provisions as
written. Several commenters recommended that facilities be required
to provide both hot and cold water. Several other commenters stated
that the water available should be required to be potable only if
used for drinking. We are making no changes to our proposal based
on these comments. Because methods of sanitation exist that do not
require hot water, we disagree that hot water is a necessity for
adequate maintenance of a housing facility. However, we do consider
it necessary to require that all water provided be potable, because
it is difficult, if not impossible, to ensure that dogs and cats
will not drink from puddles left from cleaning the facility.
 
  Housing Facilities: Storage--Section 3.1(e)
 
  We proposed in Sec. 3.1(e) to expand the regulations in existing
Sec. 3.1(c) concerning proper storage of food and bedding supplies.
The proposed provisions retained the requirements that food and
bedding be stored so as to protect them from vermin infestation or
contamination. Additionally, we proposed requirements to ensure
further the quality of the food and bedding used by animals, and
therefore of the area in which the animals are housed. We specified
that open supplies of food and bedding would have to be stored in
leakproof containers with tightly fitting lids to protect the
supplies from spoilage and contamination. We proposed to require
that the supplies be stored off the floor and away from the walls,
to allow cleaning around and underneath them. We also proposed to
require that food requiring refrigeration be stored accordingly,
and that all food be stored so as to prevent contamination or
deterioration of its nutritive value. Under the proposal,
substances toxic to dogs and cats would not be allowed to be stored
in food storage and preparation areas, but could be stored in
cabinets in the animal areas.
  A small number of commenters supported the proposed provisions as
written. A small number of commenters stated that storage of food
and bedding near walls should be permissible. We continue to
believe that the provision restricting storage near walls is
necessary to allow for cleaning and pest control and are making no
changes to the proposal based on these comments.
   Several commenters recommended that we require that food be
stored in accordance with either manufacturer's recommendations,
generally accepted practice, or human food service guidelines. We
consider the intent of the commenters' recommendations to be met by
the proposed requirement that all food be stored in a manner that
prevents contamination and deterioration of its nutritive value.
  A small number of commenters recommended that the regulations be
less specific than proposed regarding where toxic substances may be
stored, and require only that known toxic substances be stored in
a manner so as to prevent accidental contamination of food products
and contact with dogs and cats. We continue to believe that the
well-being of the animals requires that no toxic substances be
stored in food storage and preparation areas, and are retaining
that provision in this final rule. Further, we continue to believe
that because of the danger of toxicity to the animals housed, it is
necessary to require that toxic substances stored in animal areas
be kept in cabinets. We are therefore making no changes based on
the comments.
   One commenter stated that if toxic materials are stored in
animal areas, it should be required that appropriate materials for
cleaning up a spill be available. We do not consider such a
requirement necessary. Provisions exist elsewhere in the
regulations to ensure that the facility is maintained in such a way
as to prevent injury to the animals. It will be incumbent upon the
facility to ensure that they have the proper materials to comply
with these provisions. In setting forth our proposal, our intent
was to limit the toxic materials that may be housed in animal areas
to those required for normal husbandry practices. We are therefore
adding wording to Sec. 3.1(e) to clarify that intent.
  One commenter stated that facilities should be allowed to adopt
their own strategies for storing feed and chemicals, because the
cost of providing additional storage space would be considerable.
We consider the storage requirements proposed to be the minimum
necessary, and to be in accordance with generally accepted
husbandry and feed storage practices. We are therefore making no
changes based on the comment.
  Several commenters stated that instead of requiring that open
supplies of food and bedding be stored in leakproof containers, the
regulations should require that such supplies be stored in
containers that will prevent contamination and spoilage. Based on
our experience enforcing the regulations, we consider leakproof
containers necessary to prevent contamination and spoilage, and are
therefore making no changes based on these comments.
 
  Housing Facilities: Drainage and Waste Disposal--Section 3.1(f) 

  In Sec. 3.1(f) as proposed, the requirement was retained that
housing facilities provide for removal and disposal of animal and
food wastes, bedding, dead animals, and debris, as provided in
existing Sec. 3.1(d). We proposed to clarify this requirement to
include all fluid wastes and to include a provision that
arrangements must be made for regular and frequent collection,
removal, and disposal of wastes, in a manner that minimizes
contamination and disease risk. We also proposed to require that
trash containers be leakproof and be tightly closed, and that no
forms of animal waste, including dead animals, be kept in food and
animal areas.
   Requirements for drainage are contained in existing Secs. 3.2(e)
and 3.3(d), under the sections concerning indoor facilities and
outdoor facilities, respectively. Since all types of animal housing
facilities, including our proposed categories of sheltered housing
facilities and mobile or traveling housing facilities, must have
some way of disposing of waste and liquids, we proposed to
consolidate all drainage and waste disposal requirements in
proposed Sec. 3.1(f).
  Both existing Secs. 3.2(e) and 3.3(d) require that a suitable
method of eliminating excess water be provided. We proposed to
retain that requirement and expand it to pertain to sheltered and
to mobile or traveling housing facilities as well. Existing Sec.
3.2(e) requires that any drains used be properly constructed and
kept in good repair to guard against foul odors. Additionally,
where closed drainage facilities are used, they must be equipped
with traps and be installed so that they prevent the backflow of
odors and the backup of sewage onto the floor. We proposed to
retain these provisions and expand them for indoor facilities, and
proposed that the expanded provisions would also apply to other
types of facilities where such drainage is appropriate.
  We also proposed to require that disposal and drainage systems
minimize vermin and pest infestation, and disease hazards. As part
of this safeguard, we proposed to require that any sump or
settlement pond, or similar system for drainage and animal waste
disposal, be located an adequate distance from the animal area of
the housing facility. We also proposed to require that standing
puddles of water in animal areas be promptly mopped up or drained
so that the animals stay dry.
  A small number of commenters specifically supported the
provisions of proposed Sec. 3.1(f) as written. A large number of
commenters interpreted our provisions regarding the prevention of
odor and sewage as a requirement that closed drainage systems
include backflow valves. Many commenters stated that installing
such valves would be prohibitively expensive. The use of backflow
valves was not specifically required in the proposed regulations.
The provisions in question called for essentially the same
standards as those already required under the existing regulations.
We therefore do not expect facilities to experience significant
practical or financial difficulties in meeting the standards.
  A small number of commenters asserted that adequate provision to
preclude direct contact of animals with sewage or other wastes was
included in Sec. 3.10 of the proposal. We do not agree. Section
3.10 as proposed addresses cleaning, sanitization and housekeeping,
but does not directly address drainage requirements.
  One commenter recommended that we change the proposed requirement
that animal waste and water be rapidly eliminated and that the
animals be kept dry to read only that animal waste and water be
adequately eliminated. We continue to believe that the wording of
the proposal adequately conveys the intent of the proposed standard
and are making no changes based on the comment.
  A number of commenters recommended that we eliminate the proposed
requirement that standing puddles of water in animal enclosures be
drained or mopped up. These commenters stated that no evidence
exists that dogs exercised in the rain suffer any deleterious
effects. We do not consider pet animals being exercised in the rain
by their owners to be parallel with animals housed within a
facility. Because of the confined nature of such facilities, we
consider the provision as proposed necessary to decrease the
likelihood of contamination of the animals.
  A number of commenters recommended that the regulations require
that waste be removed from within the facility daily. One commenter
recommended that such removal should occur twice daily. As
proposed, removal of wastes must take place on a regular and
frequent basis. We continue to believe that such a requirement will
adequately protect the well-being of the animals, and are making no
changes to that provision.
  A number of commenters opposed the proposed requirement that
trash containers have lids. We are making no changes based on these
comments. We consider the covering of trash containers as necessary
to control insects and odors. Under these regulations, the use of
lids is required only in animal areas and food storage and
preparation areas, not in office areas.
   A number of commenters addressed the issue of sump ponds. A
small number of commenters recommended that open sump ponds be
prohibited. Several commenters recommended that the regulations
include a specific minimum distance from research facilities that
sump ponds may be located. As we stated in our proposal, based on
our experience enforcing the regulations, we believe that sump
ponds can be used without health risk if located an adequate
distance from a facility. However, what constitutes an appropriate
distance will often vary according to the size and configuration of
the pond and the topography surrounding the facility. We believe
this rule addresses these variables adequately and we are making no
changes based on the comments.
   A small number of commenters recommended that we add to our
provisions regarding sump or settlement ponds the requirement that
they be located far enough away from the facility to prevent the
spread of diseases through the sewage system to the animal area. We
are not aware of disease spread in such a manner having been a
problem to date and are therefore making no changes based on these
comments.
  Several commenters stated that the wording we used to restrict
storage of dead animals, animal parts, and animal waste was
repetitive. We consider the wording used for the provision in
question necessary for proper enforcement, and are making no
changes based on the comments. One commenter stated that the
prohibition of the storage of animal parts in food areas should not
preclude storing canned food in refrigerators along with
blood/serum samples. We are making no changes based on this
comment. We believe that the danger of contamination of foodstuffs
by animal parts can be significant, and that a general prohibition
on commingling the two is necessary on a practical level for proper
enforcement.
 
  Housing Facilities: Washrooms and Sinks--Section 3.1(g)
 
  In proposed Sec. 3.1(g), we proposed to retain the requirement in
existing Sec. 3.1(e) that washing facilities be available to animal
caretakers for their own cleanliness, and to include it in proposed
Sec. 3.1(g). As proposed, facilities would be required to provide
readily accessible washrooms, basins, sinks, or showers for animal
caretakers. A small number of commenters recommended that showers
be required. Conversely, several commenters expressed concern
whether facilities with showers alone would meet the regulations.
We are making no changes based on these comments. While we agree
that showers can constitute adequate washing facilities, we do not
consider them the only appropriate method of ensuring employee
hygiene.  

  Temperatures in Housing Facilities
 
  Temperature Requirements in Enclosed Facilities--Sections 3.2(a),
3.3(a), and 3.5(a)
 
  We proposed that enclosed housing facilities--that is, indoor
facilities, the sheltered portion of sheltered housing facilities,
and mobile or traveling facilities--be sufficiently heated and
cooled when necessary to protect the dogs and cats from temperature
extremes and to provide for their health and well-being. We set
forth the heating and cooling requirements for each of the above
categories in Secs. 3.2(a), 3.3(a), and 3.5(a) respectively. We
proposed to set forth ventilation requirements in Secs. 3.2(b),
3.3(b), and 3.5(b) respectively.
  In establishing minimum temperatures for these facilities, the
proposed regulations took into account whether a particular dog or
cat housed there is acclimated to relatively low temperatures, and
whether for some other reason, either because of breed, age, or
condition, a dog or cat should not be subjected to certain low
temperatures. In Sec. 3.2(a) of the existing regulations for indoor
facilities, the minimum temperature allowed is 50 deg.F (10 deg.C)
for all dogs and cats in those facilities that are not acclimated
to lower temperatures. We proposed that in indoor, sheltered, and
mobile or traveling housing facilities, the minimum temperature
allowed continue to be 50 deg.F (10 deg.C) for dogs or cats not
acclimated to lower temperatures. Because some dogs cannot be
acclimated to lower temperatures, we also proposed to apply the 50
deg.F (10 deg.C) minimum to breeds of dogs or cats that cannot
tolerate lower temperatures without stress and discomfort (e.g.,
short-haired breeds such as beagles, greyhounds, and Dobermans),
and to dogs and cats that are sick, aged, young, or infirm. We
proposed that exceptions to the 50 deg.F (10 deg.C) minimum could
be made upon approval of the attending veterinarian, and that the
minimum temperature for all other dogs and cats would be 35 deg.F
(1.7 deg.C).
  In the existing regulations, there is no maximum temperature
specified for indoor housing facilities, although auxiliary
ventilation is required when the temperature rises to or above 85
deg.F (29.5 deg.C). In the proposed rule, we established a maximum
temperature of 95 deg.F (35 deg.C) for indoor facilities, mobile or
traveling facilities, and the sheltered part of sheltered housing
facilities, when those facilities contain dogs or cats. For each of
those categories of shelters, we proposed that auxiliary
ventilation, such as fans or air conditioning, would have to be
used when the temperature rises to or above 85 deg.F (29.5 deg.C).
  We received a large number of comments with regard to the
temperature in indoor, sheltered, and mobile and traveling housing
facilities. A number of commenters recommended specific temperature
ranges that were more stringent than those included in our
proposal. A number of commenters stated either that our proposed
temperature ranges were too narrow, or that they did not leave
enough latitude for professional judgment on the part of the
attending veterinarian in the case of individual animals or breeds. 
 We continue to believe that the well-being of dogs and cats housed
in enclosed facilities requires that parameters be established for
hot and cold temperatures. Although the regulations as proposed
provide the attending veterinarian some latitude in deciding
whether unacclimated dogs and cats may be exposed to temperatures
lower than an otherwise specified limit, we do not believe that the
needs of the animals housed vary so widely as to warrant removing
all temperature limits.
  A number of commenters stated that the 35 deg.F and 95 deg.F
limits we proposed were too lenient. On the other hand, a large
number of commenters stated that the limits we proposed did not
adequately take into account acclimated animals that can tolerate
temperatures outside those limits. Upon review of the comments, we
consider both viewpoints to have some merit. While the limits we
proposed may become intolerable to certain animals at the extremes,
we agree that animals can become acclimated to temperatures outside
those limits. Therefore, in this final rule, we are establishing
general temperature limits more stringent than those proposed,
while at the same time allowing flexibility to accommodate animals
that can tolerate temperatures outside those limits. We are
providing in this final rule that the ambient temperature in the
enclosed facilities must not fall below 45 deg.F (7.2 deg.C) for
more than 4 consecutive hours when dogs or cats are present, and
must not rise above 85 deg.F (29.5 deg.C) for more than 4
consecutive hours when dogs or cats are present.
  A small number of commenters recommended that the regulations
require that alternative surfaces that allow the dogs and cats to
avoid surfaces such as concrete or metal be made available to every
animal when the temperature falls below 45 deg.F (7.2 deg.C), and
to sick, aged, infirm, or very small animals at other times. Upon
review of the comments, we agree that in order for certain dogs and
cats to tolerate cold temperatures, they must be able to conserve
their body heat. To allow for such conservation of body heat, we
are including in this final rule the requirement that enclosed
housing facilities provide dry bedding, solid resting boards, or
other methods of conserving body heat when temperatures are below
50 deg.F (10 deg.C).
   Many commenters stated that short-haired breeds should not be
limited to a 50 deg.F (10 deg.C) minimum temperature, because some
short-haired breeds are what the commenters termed "winter hardy."
We are making no changes based on these comments. Although we
consider 50 deg.F a necessary minimum for the well-being of most
short-haired breeds, the regulations as proposed provided the
attending veterinarian the professional discretion to make
exceptions where appropriate. A small number of commenters objected
to the allowance of such exceptions. We continue to believe that
the professional education and experience of the attending
veterinarian enables him or her to make a professional judgment
based on the condition of the animal and the circumstances
involved, and that such flexibility is necessary to accommodate
differences in individual animals and situations.
  One commenter stated that setting minimum and maximum
temperatures alone is not sound, and that standards should be
written that take into account temperatures, humidity, air
velocity, and acclimation requirements for breeds and species. To
the best of our knowledge, the comprehensive information described
by the commenter does not exist. Based on the information available
to us, and on our experience enforcing the regulations, we consider
the temperature limits we have set as minimum standards for the
health and well-being of the animals in question.
  Several commenters, addressing the temperature requirements for
sheltered housing facilities, questioned whether the outdoor
portion of sheltered housing facilities must be closed off when the
temperature falls outside the allowable range for the enclosed
portion of the facility. Several commenters also requested that the
regulations clarify that sheltered housing facilities are not
required to control the temperature of the outside portion of those
facilities. We believe that common sense dictates that the outdoor
portion of sheltered housing facilities cannot be heated, and that
no further clarification is necessary in the regulations. In a
sheltered facility, the enclosed area must be available to the
animals at all times. There is therefore no reason to restrict the
animals from exiting to the outdoor portion if they choose.
 
  Ventilation Requirements in Housing Facilities--Sections 3.2(b),
3.3(b), and 3.5(b)
 
  The requirements for ventilation of indoor housing facilities
that are set forth in Sec. 3.2(b) of the existing regulations were
retained in the proposal, and were extended to apply to all
sheltered portions of sheltered, and mobile or traveling housing
facilities to provide for the health and well-being of dogs and
cats. Based on our inspections of dealer, exhibitor, and research
facilities, we proposed to add (1) That ventilation must also be
provided to minimize odors, drafts, ammonia levels, and moisture
condensation in these housing facilities; (2) that ventilation in
mobile or traveling facilities must minimize exhaust fumes; and (3)
that in indoor housing facilities and the sheltered part of
sheltered housing facilities, the relative humidity must be
maintained at a level that ensures the health and well-being of the
dogs or cats housed in the facility, in accordance with the
directions of the attending veterinarian and generally accepted
professional and husbandry practices.
  A small number of commenters specifically supported the
ventilation requirements in the proposed rule. A small number of
commenters recommended that it be required that the relative
humidity in indoor facilities be maintained between 30 and 70
percent. Others recommended in general that specific ventilation
standards be established to eliminate disagreements between
inspectors and facilities. We are making no changes based on these
comments. The effect on animals of a particular level of humidity
depends to a great degree on other factors, such as temperature and
ventilation. We therefore consider it appropriate as proposed to
allow professional discretion regarding exact humidity levels.
  A small number of commenters stated that it is unnecessary to
require as proposed that auxiliary ventilation be used at
temperatures equaling or exceeding 85 deg.F (29.5 deg.C), because
the regulations as proposed require in general that facilities be
sufficiently ventilated to provide for dogs' and cats' health and
well-being. While we agree that the requirement for auxiliary
ventilation at higher temperatures falls under the general
requirement for adequate ventilation, we continue to believe that
it serves a specific and necessary purpose. Based on our experience
enforcing the regulations, achieving adequate ventilation at
moderate temperatures can be accomplished through various means,
such as either natural or mechanical ventilation. However, at
higher temperatures, auxiliary ventilation becomes necessary on a
uniform basis in ensuring the health and well-being of the animals.
We are therefore making no changes based on the comments.
   A number of commenters opposed the requirement for auxiliary
ventilation at 85 deg.F in cases where animals are acclimated to
such conditions. We are making no changes based on these comments.
Because an animal is acclimated to high temperatures under one set
of conditions does not ensure that it can tolerate those same
temperatures under all conditions. It is the combination of
temperature, humidity, and ventilation, along with whether an area
is open or enclosed, that determines whether conditions are
tolerable. Because the effect of a high temperature is heightened
in a confined space, we consider it necessary that auxiliary
ventilation be provided for all dogs and cats housed in enclosed
areas when the temperature reaches or exceeds 85 deg.F.
   A small number of commenters stated that the regulations should
require that auxiliary ventilation be used in mobile or traveling
housing facilities when the ambient temperature reaches 75 deg.F.
The commenters' recommendations were not supported by additional
data as to why the change from our proposal would be necessary, and
we are making no changes based on this comment.
  One commenter expressed concern that determining what constitutes
excessive odor will involve a subjective evaluation. The
requirement that odors be minimized is included in the existing
regulations. While we agree that it does not lend itself to precise
measurement, we consider the word "minimize" to be sufficiently
measurable for enforcement purposes.
 
  Lighting Requirements in Housing Facilities--Sections 3.2(c),
3.3(c), and 3.5(c)
 
  In the proposed regulations, we retained the requirement in Sec.
3.2(c) of the existing regulations that indoor housing facilities
have ample light to permit routine cleaning and inspection, and
proposed also that it must allow observation of the dogs and cats.
We proposed to apply these requirements to all of the enclosed
housing facilities included in the proposed regulations. We also
proposed to require in each case that either natural or artificial
light be provided according to a regular diurnal lighting cycle,

and that sufficient light be provided to aid in maintaining good
housekeeping practices, adequate cleaning, adequate inspection of
animals, and for the well-being of the animals. Also, in our
proposal, we retained the requirement in the existing regulations
for indoor facilities that primary enclosures be placed so as not
to expose the animals in them to excessive light, and we proposed
to extend that requirement to sheltered enclosures.
   A small number of commenters specifically supported the lighting
requirements as proposed. Several commenters responded to the
statement we originally made in the supplementary information of
our original proposal that an example of excessive lighting might
involve an animal housed in the top cage of a stack of cages near
a light fixture. The commenters stated that there is no evidence
that dogs and cats are harmed by the level of light generated by
artificial sources when housed in top cages. We recognize that not
all animals housed in top cages are exposed to excessive light, and
have included no standards in the regulations specifically
addressing such housing. As we explained in our revised proposal,
and as we continue to believe, the example we provided involves
just one of a variety of situations that could constitute excessive
light.
  A number of commenters objected to the proposed requirement for
lighting on a regular diurnal cycle, and recommended instead that
the regulations require a specific number of hours of light or
darkness each day. Upon review of the comments, we continue to
believe that it would not be beneficial in all cases to establish
one specific timetable for lighting. Such a specific timetable
might not be necessary or warranted in all cases, and might not
coincide with normal outdoor lighting cycles at a particular time
of year. The wording as proposed is designed to allow for
professional discretion regarding lighting appropriate to varying
situations.
  A number of commenters objected to the provision in our proposal
that light in enclosed housing facilities be uniformly diffused.
One commenter stated that the uniform diffusion of light in a
facility is technically impossible. The requirement in our proposal
for the uniform diffusion of light is very similar to the
requirement in the existing regulations for "uniformly distributed
illumination." Our intent in retaining the requirement for uniform
lighting was to allow for proper cleaning, observation of animals,
and inspection, without the need for an additional light source,
such as a flashlight. We consider this standard to be both
necessary and attainable.
   One commenter stated that the lighting standards were only
minimal. As we discussed in our revised proposal, it is our purpose
throughout the regulations to establish minimum standards for the
health and well-being of regulated animals. Although we encourage
practices that exceed the minimum, we consider the standards in
this final rule adequate to meet their purpose.
   In our proposal, the lighting requirements for mobile or
traveling housing facilities did not contain a prohibition of
excessive lighting. One commenter stated that such a prohibition
should be included. Because of the nature of mobile and traveling
housing facilities, and the electrical and lighting systems present
in such facilities, we have not found excessive lighting there to
be a problem. We are therefore making no changes based on the
comment.
 
  Specific Provisions for Indoor Housing Facilities--Section 3.2(d) 

  Section 3.2(d) of the existing regulations, regarding the
interior surfaces of indoor housing facilities, requires that those
surfaces be substantially impervious to moisture and readily
sanitized. In Sec. 3.2(d) of the proposed regulations, we retained
the requirement that all surfaces be impervious to moisture, but
made an exception in the case of ceilings that are replaceable. An
example of this would be a suspended ceiling with replaceable
panels. The requirements we proposed concerning interior surfaces
are more stringent for indoor housing facilities than for any other
type of facility. Only for indoor facilities, for example, did we
propose that ceilings have to be either impervious to moisture or
replaceable. This is because indoor facilities generally operate on
one ventilation system, and any disease organisms or excessive
odors that occur in the facility might spread throughout the
facility, requiring a thorough cleaning or replacement of all
interior surfaces.
  A number of commenters specifically supported the proposed
provisions as written. Several commenters stated that ceilings
should always be impervious to moisture, and recommended that we
delete the provision that they may be replaceable. We are making no
changes based on this comment. In many cases, replacing a ceiling
would be more effective in minimizing disease risk than cleaning
it.
  A small number of commenters recommended that the proposed
provisions regarding ceilings be changed to require that the
ceiling be kept clean and dry. We consider the proposed wording
adequate to convey this intent and are making no changes based on
these comments.
  One commenter stated that the requirement for impervious or
replaceable ceilings discriminates against research facilities,
because ceilings are not addressed with regard to mobile, outdoor,
and sheltered facilities. The requirement for impervious or
replaceable ceilings has nothing to do with the purpose of a
facility. As we explained in our proposal, we consider the more
stringent requirement necessary for indoor facilities because
indoor facilities generally operate on one ventilation system, and
any disease organisms or excessive odors that occur in the facility
might spread throughout the facility, requiring a thorough cleaning
or replacement of all interior surfaces.
  A number of commenters objected to our proposed requirement that
certain areas of indoor facilities be impervious to moisture, and
recommended instead that the proposal call for surfaces that are
either moisture retardant or repellant. Some of these commenters
stated that surfaces impervious to moisture might not allow for
secure footing. We are making no changes based on these comments.
We do not agree that because a surface is impervious to moisture
implies that it causes insecure footing. We also do not consider
moisture-retardant surfaces adequate to achieve the necessary end,
which is prevention of the absorption of fluids and wastes. The
intent of the provision was to facilitate cleaning and sanitation
and to decrease odors and disease hazards. We continue to consider
impervious surfaces in indoor facilities necessary to achieve these
ends.
 
  Specific Provisions for Sheltered Housing Facilities--Sections
3.3 (d) and (e)
 
  In proposed Sec. 3.3(d) regarding sheltered housing facilities,
we set forth the requirement that dogs and cats be provided with
adequate shelter and protection from the elements to protect their
health and well-being.
   In order to maintain sanitary conditions in sheltered housing
facilities, we proposed to establish the following requirements in
Sec. 3.3(e). Under our proposal, the following areas would have to
be impervious to moisture: (I) Indoor floor areas in contact with
the animals; (2) outdoor floor areas not exposed to the direct sun
or made of a hard material such as wire, wood, metal, or concrete,
in contact with the animals; and (3) all walls, boxes, houses,
dens, and other surfaces in contact with the animals. We proposed
that outside floor areas in contact with the animals and exposed to
the direct sun could consist of compacted earth, absorbent bedding,
sand, gravel, or grass.
  A small number of commenters specifically supported the
provisions regarding sheltered housing facilities as written.
Several commenters, in referring to shelter at sheltered housing
facilities, recommended specific protection from heat for
traditional dog houses. In general, we do not expect the use of
traditional dog houses in sheltered housing facilities and are
making no changes based on these comments.
  One commenter requested that we define "adequate shelter." We
consider the meaning of "adequate shelter" to be clear in Sec. 3.3
as proposed and are making no changes based on this comment.
  A small number of commenters recommended that we reword our
proposed requirements regarding shelter to make it clear that the
sheltered housing facility must be large enough to provide all the
animals present with shelter from the elements at the same time. We
agree that it would be beneficial for the animals involved to
clarify that shelter must accommodate all animals comfortably. We
are therefore adding wording to Sec. 3.3(d) as proposed to require
that the shelter structures must be large enough to allow each
animal to sit, stand, and lie in a normal manner and to turn about
freely.
   One commenter stated that the provisions regarding exposure to
direct sun should include a specific duration of such exposure. The
intent of those provisions was that the floor areas in question
must be exposed to sunlight at some time during the day. Based on
that intent, we do not consider it necessary to specify a duration
of sunlight.
  One commenter stated that outdoor floor areas should not be
restricted solely to those materials listed in Sec. 3.3(e)(2)
(compacted earth, absorbent bedding, sand, gravel, or grass). The
proposed regulations as written do not restrict outside areas to
the surfaces listed in Sec. 3.3(e)(2). Examples of alternative
surfaces are provided in Sec. 3.3(e)(1)(ii).
 
  Specific Provisions for Outdoor Housing Facilities--Section 3.4 

  The intent of Sec. 3.3 of the existing regulations is to provide
adequate standards for the care of animals housed outdoors.
However, our inspections of dealers' and exhibitors' facilities in
climates with temperature extremes have indicated that some
licensees are not meeting what we believe should be minimum
standards for the treatment of dogs and cats. Specifically, we
consider it necessary to make the regulations more stringent
regarding the types of dogs and cats that can be kept outdoors, and
regarding what shelter is necessary for dogs and cats kept
outdoors. Therefore, we proposed to revise the existing
requirements for outdoor facilities, to make them more clearly
defined and more stringent.
  Because outdoor facilities cannot be temperature-controlled, it
is necessary to judge a dog's or cat's suitability for outdoor
housing on an individual basis. We set forth provisions in proposed
Sec. 3.4(a)(1) that a dog or cat could not be kept in an outdoor
facility, unless specifically approved by the attending
veterinarian, if (1) it is not acclimated to the temperatures
prevalent in the area or region where the facility is located; (2)
it is of a breed that cannot tolerate the prevalent temperatures of
the area without stress or discomfort (such as short-haired breeds
in cold climates); or (3) it is aged, young, sick or infirm. We
recognize that in some situations, particularly in the case of dogs
or cats obtained from pounds, it will not be known whether an
animal has been acclimated to prevailing temperatures. Therefore,
in proposed Sec. 3.4(a)(2), we provided that if a dog's or cat's
acclimation status is unknown, it must not be kept in an outdoor
facility when the ambient temperature is less than 35 deg.F (1.7
deg.C).
  With regard to the type of shelter required for dogs and cats
housed outdoors, we believe that the existing regulations should be
expanded to specify what is necessary for better and more humane
treatment of the dogs and cats. In essence, the existing
regulations require that dogs and cats be provided with sufficient
shade to protect them from the direct rays of the sun, shelter to
keep them dry during rain or snow, and shelter when the atmospheric
temperature falls below 50 deg.F (10 deg.C). Additionally, bedding
or some other protection is required when the ambient temperature
falls below that to which the dog or cat is acclimated.
  In Sec. 3.4(b) of the proposed rule, we set forth the requirement
that all outdoor facilities housing dogs or cats include one or
more shelter structures that are accessible to all animals in the
facility, and that are large enough to allow all animals in the
structure to sit, stand, and lie in a normal manner, and to turn
about freely. We proposed in Sec. 3.4(b) that the shelter structure
would have to: (1) Provide adequate shelter and protection from the
cold and heat; (2) be protected from the direct rays of the sun and
the direct effect of wind, rain, or snow; (3) have a wind break and
a rain break at its entrance; (4) contain clean, dry, bedding
material; and (5) include a roof, four sides, and a floor. We also
proposed in Sec. 3.4(b) that in addition to the shelter structure,
there would have to be one or more separate outside areas of shade
provided, large enough to contain all the animals at one time and
to protect them from the direct rays of the sun.
   In proposed Sec. 3.4(c), we set forth the requirement that all
building surfaces that are in contact with dogs or cats in outdoor
housing facilities be impervious to moisture. We specified that
metal barrels, cars, refrigerators or freezers, and the like would
not be permitted as shelter structures, and that the floors of
outdoor housing facilities could be of compacted earth, absorbent
bedding, sand, gravel, or grass, but would have to be kept clean.
  A small number of commenters specifically supported the
provisions regarding outdoor housing facilities as written.
  A small number of commenters objected to the 35 deg.F minimum for
dogs and cats at outdoor housing facilities, when the acclimation
status of those animals is unknown. One of these commenters stated
that the proposed 35 deg.F minimum was inconsistent with the 50
deg.F proposed minimum in indoor and sheltered housing facilities
for dogs not acclimated to lower temperatures. We agree that
temperatures below 50 deg.F can be just as hazardous to
unacclimated animals at outdoor facilities as at indoor and
sheltered housing facilities, and are therefore providing in this
final rule that dogs and cats whose acclimation status is unknown
must not be kept in outdoor facilities when the ambient temperature
is less than 50 deg.F (10 deg.C).
   A small number of commenters stated that the minimum temperature
for dogs and cats of unknown acclimation status should be removed,
and responsibility for such decisions left to the attending
veterinarian. We do not agree that the attending veterinarian can
make a valid decision regarding an animal's tolerance without
knowing its acclimation status and are making no changes based on
these comments.
  Many commenters recommended that we delete short-haired breeds in
cold climates as an example of dogs or cats that must not be housed
in outdoor facilities. We are making no changes based on these
comments. Most short-haired breeds cannot tolerate cold
temperatures. In those cases where individual animals or breeds can
tolerate cold temperatures, the regulations as proposed allow for
professional discretion on the part of the attending veterinarian.
  A small number of commenters objected to the proposed regulations
which allow the attending veterinarian to grant exceptions to the
general prohibition on housing certain dogs and cats outside. We
continue to believe that differences in animals and varying
situations make it necessary to allow for professional judgment in
certain cases. We also continue to believe that the attending
veterinarian is the individual best qualified to exercise this
judgment.
  A small number of commenters stated that specific standards for
what constitutes "acclimation" should be included in the
regulations. We consider the term "acclimation" to be adequately
defined by normal usage, and do not consider it necessary to define
the term further. One commenter recommended that we delineate more
specifically which dogs and cats may not be housed outdoors. We
consider the provisions as proposed to be clear as written and are
making no changes based on this comment. One commenter stated that
the terms "sick," "infirm," "aged," and "young" should be defined.
We expect the attending veterinarian to exercise professional
judgment regarding these terms, and do not agree that specific
definitions beyond those which are commonly understood are
necessary or desirable.
  One commenter stated that the wind chill factor must be
considered in the outdoor housing of dogs and cats. We agree, and
consider this factor to be addressed in Sec. 3.4(b) as proposed,
regarding shelter from the elements.
   A number of commenters addressed the provisions in proposed Sec.
3.4(b), regarding shelter from the elements at outdoor housing
facilities. Several commenters recommended that a maximum of six
dogs be allowed per shelter. We do not consider such a limit
necessary. Proposed Sec. 3.6 of the regulations allows for a
maximum of 12 nonconditioned dogs per primary enclosure. We see no
reason to set a limit on conditioned animals, provided the space
and compatibility requirements otherwise required by the
regulations are met.
   Several commenters requested definitions of "wind break" and
"rain break." We believe these terms are self-explanatory and need
no further clarification.
  A small number of commenters stated that the shelters at outdoor
housing facilities should be required to be maintained at indoor
temperature ranges. We do not consider such a requirement
practical; nor do we consider it necessary in light of the other
specific requirements designed to ensure the health and well-being
of animals kept at outdoor housing facilities.
   A small number of commenters addressed the issue of bedding
material at outdoor housing facilities, as required by proposed
Sec. 3.4(b)(4). Approximately half of these commenters opposed the
requirement for bedding, stating either that group-housed dogs
create their own heat, or that bedding materials can serve as
fomites for potential disease problems. Conversely, one commenter
stated that clean, dry bedding should be required at all times to
prevent sores. Another commenter requested that the regulations
specify the amount of additional bedding needed at cold
temperatures, so that compliance can be verified. We do not agree
that the requirement for bedding should be eliminated. We do not
consider it advisable to depend on group-housing of dogs to provide
adequate warmth at outdoor facilities. Nor do we believe that
potential disease hazards from bedding that is improperly cared for
should preclude the requirement for bedding material. We also do
not consider it practical or necessary to specify exactly how much
bedding should be provided. Such a decision should be based on
professional judgment regarding species, breed, and prevailing
conditions. With regard to requiring bedding to prevent sores, Sec.
3.1(a) of the standards requires that housing facilities protect
animals from injury. If the animals in a facility are suffering
from sores, then the facility must take measures to come back into
compliance with the regulations. Although the use of bedding is one
possible solution, we do not consider it necessary to impose a
uniform requirement for bedding in all cases.
  A number of commenters addressed the provisions in proposed Sec.
3.4(c), regarding the construction of outdoor housing facilities.
A small number of commenters supported the proposed provisions as
written. A number of commenters took issue with our proposed
requirement that floor surfaces in outdoor housing facilities--if
made of compacted earth, sand, gravel, or grass--be replaced if
there are any prevalent odors, diseases, insects, pests, or vermin.
The commenters expressed the opinion that such materials cannot be
replaced. We disagree, and consider it both practical and feasible
to replace any of the materials listed.
 
  Primary Enclosures--Section 3.6
 
  In proposed Sec. 3.6, we proposed to amend existing Sec. 3.4,
"Primary enclosures." The existing section provides general
requirements for construction and maintenance of primary
enclosures, uniform space requirements for each dog or cat housed
in a primary enclosure, and provisions regarding litter and resting
surfaces for cats and the tethering of dogs on chains. We proposed
to expand the existing general requirements, to add some new
requirements, and to clarify the existing requirements in
accordance with the intent of the amendments to the Act.
  A small number of commenters opposed in general the proposed
provisions regarding primary enclosures. A number of commenters
recommended that the regulations require that primary enclosures
comply with all applicable Federal, State, and local laws and
regulations. We disagree. As noted above, our mandate under the Act
may not necessarily be the same as those of other Federal, State,
and local laws. We do not consider it necessary to attempt to
require compliance with other laws to establish minimum standards
for primary enclosures.
 
  Primary Enclosures: General Requirements--Section 3.6(a)
 
  The provisions we set forth in proposed Sec. 3.6 regarding
primary enclosures contained requirements that all primary
enclosures meet certain minimum standards to help ensure the safety
and well-being of dogs and cats. A primary enclosure is defined in
Part 1 of the regulations as "any structure or device used to
restrict an animal or animals to a limited amount of space, such as
a room, pen, run, cage, compartment, pool, hutch, or tether."
Included among the primary enclosures subject to the proposed
regulations are those used by circuses, carnivals, traveling zoos,
educational exhibits, and other traveling animal acts and shows. In
Sec. 3.6(a) we proposed to continue to require that primary
enclosures be structurally sound and maintained in good repair to
protect the animals from injury, to contain them, and to keep other
animals out. We also proposed to require that the primary
enclosures keep unauthorized humans out. We proposed to continue to
require that the primary enclosures enable the animals to remain
dry and clean; that they provide the animals with convenient access
to food and water; that they provide sufficient space for the dogs
and cats to have normal freedom of movement; and that their floors
be constructed in a manner that protects the animals from injury.
With regard to this last requirement, we proposed to specify that
if the floors of primary enclosures are of mesh or slatted
construction, they must not allow the animals' feet to pass through
any openings in the floor.
  We proposed to add requirements that the primary enclosures be
constructed without sharp points or edges, and that they provide
sufficient shade to the animals in the enclosures and protect them
from temperature extremes and other weather conditions that might
be uncomfortable or hazardous to the animals. We also proposed to
require that the primary enclosures be easily cleaned and
sanitized, or be replaceable when worn or soiled.
   A number of commenters specifically supported the provisions in
proposed Sec. 3.6(a) as written.
  Section 3.6(a)(2)(iv) of our proposal stated that primary
enclosures must be constructed so as to keep other animals and
unauthorized humans from entering the enclosures. A number of
commenters objected to this provision, stating that such security
is unnecessary for the primary enclosure because of similar
security measures required elsewhere in the regulations for the
housing facility itself. We disagree with the assertion of the
commenters. Even assuming that no unwanted animals would ever enter
the facility from the outside, there is still the risk that animals
within the facility might escape from their enclosures and pose a
risk to confined animals, unless the primary enclosures guard
against such risk. We are, however, deleting the requirement that
unauthorized humans be kept from entering the primary enclosures,
for the reasons set forth in this supplementary information under

the heading, "Housing Facilities: Structure; Construction--Sec.
3.1(a)."
   Several commenters stated that the provisions in proposed Secs.
3.6(a)(2)(vi) and (a)(2)(vii), regarding protection from weather
conditions and the need for shade, respectively, were unnecessary,
because shelter and protection from the sun are already addressed
elsewhere in the regulations with regard to housing facilities in
general. Because housing facilities and primary enclosures are not
always the same or equivalent, the provisions as proposed are
necessary in both places in the regulations. We are therefore
making no changes based on these comments. One commenter objected
to the requirement that primary enclosures provide shelter because,
according to the commenter, although many types of primary
enclosures provide adequate protection when used in an enclosed
housing facility, they would not meet the criterion of supplying
sufficient shelter in areas not otherwise sheltered by the
facility. We are making no changes based on this comment. The
regulations do not require that a primary enclosure be able to
provide adequate shelter under circumstances that do not exist,
only that they properly protect the animals in them in any given
situation.
  Several commenters recommended that Sec. 3.6(a)(2)(vi) make it
clear that shelter and protection from the elements must be
accessible to all animals in an enclosure at the same time, and
that similar clarification be added in Sec. 3.6(a)(2)(viii) with
regard to access to food and water We agree that such a change will
better convey the intent of the regulations and are so amending
this final rule.
  A number of commenters addressed the provisions in proposed Sec.
3.6(a)(2)(x), requiring that, if primary enclosures have floors
that are of mesh or slatted construction, they do not allow the
dogs' and cats' feet to pass through any openings in the floor.
Some commenters opposed mesh flooring of any sort. A small number
of commenters expressed the opinion that flooring should always be
small mesh. Others were divided as to whether mesh should be
allowed that is large enough to permit passage of feces, even
though such flooring would probably also allow passage of a dog's
or cat's foot. Several commenters stated that floor mesh should be
large enough to allow the animals' feet to pass freely back and
forth. A small number of commenters stated that flooring designs
and materials should be researched individually to suit the
situation and the species involved.
  We do not consider it practical or necessary to prohibit the use
of mesh floors. Many mesh designs can be used without detriment to
the animals involved. With regard to the size of openings in the
floor, the intent of the Act is to provide for the health and well-
being of the animals. Floors that can injure the animals by
allowing their legs to pass through do not comply with the intent
of the Act, whether or not they prohibit the passage of feces. We
do not consider ease of cleaning to be a higher priority than the
safety of the animals. We are therefore making no changes based on
these comments.
  One commenter stated that, because wire or slatted mesh flooring
is uncomfortable and may be injurious to the animals enclosed, the
regulations should require that solid resting surfaces be provided
for both dogs and cats. We agree that certain types of flooring do
not allow any relief for the animals enclosed. We are therefore
adding a provision to Sec. 3.6(a)(2)(x) of this final rule to
require the following: If the floor of a primary enclosure is
constructed of wire, a solid resting surface or surfaces that, in
the aggregate, are large enough to hold all the occupants of the
primary enclosure at the same time comfortably, must be provided. 
 Section 3.6(a)(2)(xi) of our proposal states that primary
enclosures must be constructed so as to provide sufficient space to
allow each animal to turn about freely, to stand, sit, and lie in
a comfortable, normal position, and to walk in a normal manner. A
small number of commenters recommended that the wording be changed
to read "provide space that is adequate and permits freedom of
movement and normal postural adjustments." We believe that the
wording we proposed conveys the intent of the provision adequately
and we are making no changes based on these comments. One commenter
requested that we define and justify the phrase "to walk in a
normal manner." We believe that the meaning of the phrase is self-
evident and we are making no changes based on these comments.
 
  Additional Primary Enclosure Requirements for Cats--Section
3.6(b)  
  We proposed to change the space requirements for cats. In
general, the proposed regulations based how much space a cat should
have on the animal's weight, and whether it is a nursing mother.
The space requirements in Secs. 3.4 (b)(1) and (b)(3) of the
existing regulations are uniform for all cats, regardless of size,
and require that each cat be given a minimum of 2.5 ft2, with room
to turn about freely, and to easily stand, sit, and lie in a
comfortable normal position. We consider it necessary, based on our
inspections of research facilities, to increase the existing
minimum space requirements for all cats. Additionally, because the
weight of a cat is a good indicator of its overall size, the floor
space requirements should distinguish between cats of different
weights. Our proposed standards would provide cats with the space
we believe is necessary, and at the same time make our regulations
correspond more closely to the NIH Guide. We proposed in Sec.
3.6(b)(1)(ii) (redesignated as Sec. 3.6(b)(1)(ii)(B) in this final
rule) to require that weaned cats weighing 8.8 lbs (4 kg) or less
be provided with at least 3.0 ft2 (0.28 m2) of floor space. We
proposed in Sec. 3.6(b)(1)(iii) (redesignated as Sec.
3.6(b)(1)(ii)(C) in this final rule) that cats weighing over 8.8
lbs (4 kg) be provided with a minimum of 4.0 ft2 (0.37m2) of floor
space. Additionally, we proposed to require that each queen with
nursing kittens be provided with an additional amount of floor
space, based on her breed and behavioral characteristics, and in
accordance with generally accepted husbandry practices as
determined by the attending veterinarian. We proposed that if the
additional amount of floor space for each nursing kitten is
equivalent to less than 5 percent of the minimum requirements for
the queen, such housing must be approved by the Committee in the
case of a research facility, and by the Administrator in the case
of dealers and exhibitors. We proposed to provide that the minimum
floor space required would be exclusive of any food or water pans,
but that the litter pan may be considered part of the floor space
if properly cleaned and sanitized. We proposed in Sec. 3.6(b)(1)(i)
(redesignated as Sec. 3.6(b)(1)(ii)(A) in this final rule) that the
height of the primary enclosure for cats would have to be at least
24 inches (60.96 cm).
  A large number of commenters addressed the provisions in proposed
Sec. 3.6(b)(1) regarding minimum space requirements for cats. A
number of commenters specifically supported increased space
requirements for cats. A small number of commenters recommended
retaining the existing space requirements for cats, either in
general or based on the judgment of the attending veterinarian. A
large number of commenters recommended doubling the minimum cage
size for cats. A small number of commenters stated that all cats,
regardless of weight, should be provided with at least 4 square
feet of cage space. With regard to the height of primary
enclosures, one commenter recommended that the minimum requirement
provide only that the interior height must allow the animals to
stand and sit without touching the top. We are making no changes to
the regulations based on the comments regarding the size of primary
enclosures for cats. In developing new proposed space standards, we
have consulted extensively with HHS, as statutorily mandated. The
space requirements we proposed are consistent with other Federal
guidelines, and we consider them necessary and adequate for the
well-being of the cats. We do not agree that all cats need to be
provided with the same amount of space. It is unreasonable to
require that a cat weighing 1 lb. be provided the same amount of
space as a cat weighing 10 lbs.
   A number of commenters requested that justification be provided
for the provision in proposed Sec. 3.6(b)(1)(v) (redesignated as
Sec. 3.6(b)(1)(iv) in this final rule) that food and water pans
would not be counted as required floor space. We believe it is
obvious that requiring animals to walk or rest in their food and
water receptacles in order to achieve adequate space would
encourage sanitation and health problems.
  A number of commenters requested that existing primary enclosures
that would meet the proposed space requirements if the space
occupied by food and water bowls is counted, be permitted usage
until needing replacement for normal wear and tear. As discussed in
the preceding paragraph, it is not humane to require cats to use
their food and water bowls as part of their minimum floor space,
and we do not agree with the commenters' recommendation.
   A number of commenters addressed the proposed requirement for
increased space for nursing queens. A small number of commenters
opposed allowing such additional space. Other commenters
recommended that the standard additional space per kitten be 10
percent, rather than 5 percent as proposed, or that the regulations
provide specific requirements for neonatal floor space, rather than
percentage requirements. We are making no changes based on these
comments. The general minimum space requirements for cats that we
proposed were found to be necessary for each animal. We consider it
self-evident that additional animals in an enclosure will occasion
the need for additional space. We disagree, however, that an
additional 10 percent is necessary for each kitten, especially in
view of the fact that this final rule will increase the minimum
space requirements for adult cats. We also disagree that specific
uniform requirements for nursing queens are appropriate. The space
necessary for the queen herself will be determined by her weight.
We consider it reasonable to base the additional space necessary
for nursing kittens on the number of kittens present.
  Several commenters recommended that the requirement for
additional space for nursing queens not begin until the kittens are
3 weeks old. We disagree. Not only is the additional space
necessary from the kittens' birth, but adopting the commenters'
recommendation would often result in an unnecessary movement of the
queen and kittens.
  One commenter stated that the provisions regarding increased
space for nursing kittens was unenforceable, because breed and
behavioral characteristics do not provide a useful determinant. The
commenter stated further that "accepted husbandry practices" are
the very practices Congress wishes to change. We disagree with the
commenter. We consider the consideration of breed and behavioral
characteristics to be a legitimate method of assessing the needs of
individual animals. As noted above, 5 percent additional space will
be the norm. Departures must be approved by the attending
veterinarian or the Administrator. Further, we disagree that
"accepted husbandry practices" are generally inadequate or harmful
to animals. In the 1985 amendments to the Act, Congress
specifically mandated only that the Department establish
regulations to promote exercise in dogs and to provide an
environment that promotes the psychological well-being of nonhuman
primates. Requiring additional space for nursing kittens, and also
for nursing puppies, is a change that the Department feels is
necessary in the interest of promoting the general welfare of these
animals. We consider the new provisions an improvement over the
existing regulations, and disagree that they do not meet
Congressional intent.
  One commenter stated that nursing queens should be provided a
nest box. We do not agree that a nest box is necessary for
individually housed queens, and the regulations prohibit the group
housing of queens with litters, except in breeding colonies. Based
on our experience enforcing the regulations, there has been no
indication that nest boxes are needed.
  A small number of commenters stated that the proposed regulations
were unclear as to whether the Committee or the attending
veterinarian has responsibility for determining the necessary
additional space for nursing queens. We agree that the provision in
question is ambiguous as written, and we are amending this final
rule to make it clear that the responsibility for determining the
necessary additional space at research facilities belongs to the
attending veterinarian.
  A number of commenters took issue with the provision proposed in
Sec. 3.6(b)(1)(v) (redesignated as Sec. 3.6(b)(2)(iv) in this final
rule) that litter pans may be considered part of the floor space if
properly cleaned and sanitized. We do not agree with the
commenters. Cats will often sit or lie in clean litter pans. A
small number of commenters stated that using the term "if properly
cleaned and sanitized" implies that dirty litter pans are otherwise
acceptable. We do not share the commenters' concerns. The cleaning
and sanitization requirements in this rule contain explicit
requirements to ensure that all animal areas are kept clean.
  One commenter stated that the regulations should encourage the
use of "gang cages" with large elevated resting areas for all cats
in the institution. We are making no changes based on this comment.
Gang cages are not prohibited by the regulations, and may be used
if desired.
  A small number of commenters stated that the regulations should
require that cats be provided with scratching posts. While the use
of scratching posts is not prohibited by the regulations, we
believe that requiring them is not necessary as a minimum standard
in order to promote the cats' health and well-being. Therefore, we
are making no changes based on these comments.
   As we noted in the "Supplementary Information" of this rule
under the heading "Effective Dates," many commenters pointed out
that certain of the new standards would require affected facilities
to make extensive structural changes. The alteration in the minimum
space requirements for cats is one such change in the standards.
Therefore, in Sec. 3.6(b)(1)(i) of this rule, we are continuing the
existing regulations for minimum space requirements for cats for
the period prior to February 15, 1994. On and after February 15,
1994, facilities must comply with the minimum space requirements
for cats set forth in Secs. 3.6(b)(ii) (A) through (C) of this rule
(redesignated from Secs. 3.6(b)(1) (i) through (iii) of the
proposed rule).
 
  Compatibility
 
  In our proposal, we provided that all cats housed in the same
primary enclosure would have to be compatible. We proposed to
retain the requirement in existing Sec. 3.4(b)(3) that no more than
12 adult nonconditioned cats be housed in the same primary
enclosure and to set forth that requirement in proposed Sec.
3.6(b)(2). In addition, we proposed that the following restrictions
would apply: Queens in heat could not be housed in the same primary
enclosure with sexually mature males, except for breeding; except
when maintained in a breeding colony, queens with litters could not
be housed in the same primary enclosure with any other adult cats,
and kittens under 4 months of age could not be housed in the same
primary enclosure with adult cats, other than their dam; and cats
with a vicious or aggressive disposition would have to be housed
separately.
  A small number of commenters specifically supported the
provisions regarding compatibility as written. One commenter stated
that the compatibility requirements in subpart A should parallel
those set forth in subpart D for nonhuman primates. We disagree.
The differences in needs between nonhuman primates and dogs and
cats makes parallel regulations with regard to compatibility
inappropriate.
  We are making one change to Sec. 3.6(b)(2) as proposed.
Consistent with changes we are making elsewhere in Subpart A in
response to comments, we are providing that kittens under 4 months
of age may be housed in the same primary enclosure with their
foster dams.
 
  Litter
 
  In Sec. 3.6(b)(3), we proposed to retain the existing requirement
that in all primary enclosures having a solid floor, a receptacle
with litter be provided to contain excreta. A number of commenters
stated that litter in a receptacle should be required, whether or
not the floor is solid. Upon review of the comments received, we
agree that the presence of a litter pan for all cats is necessary
to enable them to meet a species behavioral need. We are therefore
providing in this final rule that a receptacle with litter be
included in all primary enclosures used to house cats.
  One commenter recommended that it be required that the litter box
be large enough for the cat to stand in, and deep enough for the
cat to bury its feces. We believe the requirement that the litter
box be large enough to contain excreta and body wastes will
sufficiently provide for the health and well-being of the cat, and
addresses the commenter's concern for an adequate litter box.
 
  Resting Surfaces
 
  The existing standards for cats in Sec. 3.4(a)(2)(ii) state that
there must be a solid resting surface in each primary enclosure
that will comfortably hold all occupants at the same time, and that
the resting surface must be elevated if the enclosure holds two or
more cats. We proposed to require in Sec. 3.6(b)(4) that all such
resting surfaces be elevated, even if only one cat is in the
enclosure, and to clarify that only low resting surfaces would be
counted as part of the minimum floor space. As proposed, the
resting surfaces would have to be impervious to moisture, and would
have to be either easily cleaned and sanitized, or easily
replaceable when soiled or worn.
   One commenter stated that low resting surfaces should not be
considered part of the floor space because they reduce its
usability. A number of commenters requested that we clarify what
constitutes a "low resting surface." We agree that additional
language would help clarify the intent of the provision. We are
therefore providing in this final rule that low resting surfaces
that do not allow the space under them to be comfortably occupied
by the animal will be counted as part of the floor space.
 
  Cats in Mobile or Traveling Shows
 
  We proposed to provide, in Sec. 3.6(b)(5), that cats in mobile or
traveling shows or acts may be kept, while the show or act is
traveling from one temporary location to another, in transport
containers that comply with all requirements of proposed Sec. 3.14
of subpart A, other than the marking requirements in proposed Sec.
3.14(a)(6). Under the proposal, when the show or act is not
traveling, the cats would have to be placed in primary enclosures
that meet the minimum requirements of proposed Sec. 3.6. Mobile or
traveling shows and acts normally remain in one location for
several days and then move to another location, with the movement
taking a day or less. Because the animals are less subject to
injury in smaller enclosures while traveling, we proposed to allow
the use of transport cages during this time. However, under the
proposed regulations, when not traveling, the cats would have to be
placed in primary enclosures that comply with the minimum space
requirements and other requirements of Sec. 3.6. The only
commenters who responded to these provisions supported them. We are
therefore making no changes to Sec. 3.6(b)(5) of our proposal.
 
  Additional Primary Enclosure Requirements for Dogs--Section
3.6(c)
  
  In proposed Sec. 3.6(c), we retained the formulas in Sec.
3.4(b)(2) of the existing regulations for calculating the floor
space for dogs (length of dog in inches + 6) x (length of dog in
inches + 6) = required square inches of floor space; required
square inches/144 = required square feet). We also proposed to
require that the minimum height of a primary enclosure be at least
6 inches above the head of the tallest dog in the enclosure when
standing in a normal position.
  A small number of commenters supported retaining the existing
method of calculating space requirements for dogs. A large number
of commenters recommended that the existing minimum space
requirements for dogs be doubled. One commenter stated that
breeding dogs housed by wholesale commercial breeders should be
allowed triple the minimum floor space, because such dogs spend
their lives in these facilities. We do not agree that the changes
recommended by the commenters are necessary. We consider the
proposed floor space requirements for dogs, which are the same as
those already in the regulations, to be adequate. This is
especially so in light of the exercise requirements included in
this final rule, which will require that each dog be provided
adequate opportunity for exercise.
  A small number of commenters recommended that space requirements
for dogs be based on weight, as are those in the NIH Guide. While
space requirements based on weight are appropriate for cats, whose
body conformation is similar from breed to breed, the wide
difference in body configuration among breeds of dogs makes space
based on weight inappropriate. For example, as we discussed in our
original proposal, the difference in body conformation between a
bulldog and a greyhound would make a formula based on their weight
inappropriate.
  The proposed regulations specified that the required floor space
would apply for each dog housed in a group situation with other
dogs. Several commenters recommended that, for group housing
situations, the formula for determining minimum floor space be
reduced to 32 percent for each dog added to the enclosure after the
first dog. We do not consider it reasonable or logical to conclude
that the second or third dog in a primary enclosure needs 68
percent less space than the first dog, and we are making no changes
based on these comments.
  One commenter stated that, in determining minimum space
requirements, dogs should be measured in a straight line from the
tip of the nose to the base of the tail in a normal standing
position. We agree, and measurements for space are already being
conducted in the manner described by the commenter.
   Several commenters recommended that the regulations allow dogs
and cats to be housed for up to 14 days in primary enclosures that
do not meet the standards, to permit cleaning of primary enclosures
and in emergencies. We do not consider such a provision reasonable
or necessary. Cleaning should not take a significant length of
time. Our experience has demonstrated that emergencies should not
provide an exception to the minimum standards for primary
enclosures.
  We proposed that, as with cats, nursing mothers would have to be
provided with additional space. In proposed Sec. 3.6(c)(1)(ii), we
set forth the requirement that each bitch with nursing puppies be
provided with an additional amount of floor space, based on her
breed and behavioral characteristics, and in accordance with
generally accepted husbandry practices as determined by the
attending veterinarian. We proposed that if the additional amount
of floor space for each nursing puppy is less than 5 percent of the
minimum requirement for the bitch, such housing must be approved by
the Committee in the case of a research facility, and by the
Administrator in the case of dealers and exhibitors.
  As discussed in this supplementary information under the heading
"Additional Primary Enclosure Requirements for Cats--Sec. 3.6(b)."
the regulations as proposed do not clearly state whether the
attending veterinarian or the Committee is responsible for
approving additional space for nursing puppies that is less than 5
percent of the minimum space for the bitch. In this final rule, we
are clarifying that it is the attending veterinarian who is
responsible for such approval.
  A number of commenters opposed in general the proposed provisions
for percentage increases of floor space. A small number of
commenters specifically supported the provisions regarding
additional space for nursing bitches. A small number of commenters
stated that space requirements for nursing bitches should be solely
at the discretion of the attending veterinarian. We disagree. We
consider 5 percent extra space per nursing puppy a standard that
will be appropriate in most cases. We recognize, however, that
situations may arise where it may be unnecessary or even
detrimental to move a nursing bitch to an enclosure that meets the
5-percent standard. Only in those cases do we expect the attending
veterinarian to approve primary enclosures that do not allow at
least 5 percent additional space for each puppy.
  A small number of commenters stated that only nursing bitches
with puppies 3 weeks of age or older should be provided with
additional floor space. We disagree with the commenters'
recommendation, for the same reasons set forth in this
supplementary information for cats with nursing kittens.
   A small number of commenters recommended that the regulations
provide for 10 percent additional space per nursing puppy in a
litter, rather than 5 percent as proposed. We consider 5 percent to
be an adequate amount of additional space, given the size of
nursing puppies, and the fact that they do not generally move very
far from the dam during most of their nursing period.
  Several commenters stated that the regulations regarding resting
surfaces for cats should be applied to dogs. Because of the
behavioral differences between dogs and cats, we do not consider it
necessary to require elevated resting surfaces for dogs. However,
as we discuss in this supplementary information under the heading
"Primary Enclosures: General Requirements--  Sec. 3.6(a)," we are
requiring that resting surfaces be provided for both dogs and cats
when the floor of a primary enclosure is made out of wire.
   A number of commenters addressed the height requirements set
forth in proposed Sec. 3.6(c)(1)(iii). A small number of these
commenters supported these provisions as written. Others either
stated in general that the proposed height requirement was
excessive, or recommended specific changes to the proposed
provisions. A small number of commenters stated that the
regulations should require that the top of the dogs' ears not touch
the top of the primary enclosure while the dogs are standing erect
or sitting We disagree Based on our experience enforcing the
regulations, we consider the requirement that the cage be at least
6 inches above the head of the tallest dog in the enclosure, when
in a standing position, to adequately address the commenters'
concerns.
  A small number of commenters recommended that the minimum height
be increased from that proposed. Most of these commenters stated
that primary enclosures should be large enough to allow dogs to
make all normal postural adjustments, such as standing on hind legs
and holding the tail aloft. We do not consider such a change
necessary or appropriate. The regulations are by law minimal
standards for the well-being of the animals. We do not consider a
dog's standing on its hind legs to be a frequent enough postural
adjustment to require its inclusion as a minimal standard With the
implementation of the exercise requirements in this final rule,
dogs will have adequate opportunity for activity. One commenter
recommended that the interior height of the cage should be 6 inches
above the ears of the tallest dog when standing. We are making no
changes based on this comment. Six inches above the head will
accommodate the tallest standing ears for most dogs.
  As we noted in the "Supplementary Information" of this rule under
the heading "Effective Dates," many commenters pointed out that
certain of the new standards would require affected facilities to
make extensive structural changes. The alteration of the height
requirement for primary enclosures containing dogs is one such
change in the standards. Therefore, in Sec. 3.6(c)(1)(iii) of this
rule, we are continuing, for the period prior to February 15, 1994,
the existing minimum height requirement for primary enclosures
containing dogs. On and after February 15, 1994, facilities must
comply with the new height requirement, as set forth in Sec.
3.6(c)(1)(iii).
  
  Dogs on Tethers
 
  In Sec. 3.4(b)(2)(ii) of the existing regulations, requirements
are set forth for dog houses with chains used as primary enclosures
for dogs kept outdoors. In Sec. 3.6(c)(2) of the proposed
regulations, we expanded those regulations, and proposed to apply
the expanded regulations to dogs that are tethered by any means,
and not just by chains. We proposed to retain the existing
requirement that a dog that is tethered be kept from being
entangled, and to add the requirements that the dog not be able to
come into physical contact with other dogs in the housing facility,
and be able to roam to the full range of the tether. We proposed to
retain the existing requirement that the tether be of the type
commonly used for the size dog involved, and that the tether be
attached to the dog by a well-fitted collar. Additionally, we
proposed to explicitly require that the collar must not cause
trauma or injury to the dog. The proposed regulations included the
following examples of types of collars that would be prohibited:
collars made of wire, flat chains, chains with sharp edges, and
chains with rusty or nonuniform links. As in the existing
regulations, we proposed that the tether would have to be at least
three times the length of the dog as measured from the tip of its
nose to the base of its tail. We also proposed to require that the
tether be attached to the front of the dog's shelter structure or
to a post in front of the shelter structure, and that it allow the
dog convenient access to the shelter structure and to food and
water containers.
   Several commenters specifically supported the proposed
provisions as written. A small number of commenters either opposed
the use of tethers altogether or supported the use of tethers for
temporary use only. We do not believe that the use of appropriate
tethers is harmful to dogs. Many domestic pets are so restrained
with no harmful effect. We are therefore making no changes based on
these comments. One commenter recommended that the regulations
require that the tether length for dogs housed by wholesale dog
breeders be six times the 1ength of the dog, but not less than 15
feet long. We do not believe this recommended change is necessary
for the well-being of dogs. Requiring tethers that are at least
three times the length of the dog allows the dog sufficient
movement in both a forward and a lateral direction.
   Several commenters stated that the regulations should prohibit
the placement of entangling objects within the reach of dogs on
tethers, or otherwise prevent the dogs from being accidentally
hanged. Each of these concerns are addressed in the proposed
provisions, and we are making no changes based on these comments.
  We proposed that dog housing areas where chains or tethers are
used must be enclosed by a perimeter fence of sufficient height to
keep unwanted animals out, and to keep animals the size of dogs,
raccoons, and skunks from going through or under it. We also
proposed to require that fences less than 6 feet high must be
approved by the Administrator. Several commenters stated that the
expense of constructing a fence adequate to meet the proposed
regulations would be cost-prohibitive. While we are sensitive to
the costs involved in complying with the regulations, we are
obligated under the Act to require that the dogs are confined with
adequate protection for humane care. A perimeter fence is necessary
to confine dogs that escape from their tethers and to restrict the
entrance of potential predators.
  One commenter stated that a 4-foot perimeter fence would be just
as effective in preventing the entrance of animals as a 6-foot
fence. Based on the need to contain and/or exclude dogs and other
animals from the primary enclosure, we consider 6 feet to be the
minimum necessary fence height in most cases. However, the
regulations as proposed allow for varying situations and needs by
providing for approval by the Administrator of fences less than 6
feet high.
  As we noted in the "Supplementary Information" of this rule under
the heading "EFFECTIVE DATES," many commenters pointed out that
certain of the new standards would require affected facilities to
make extensive structural changes. The addition of the requiremant
for a perimeter fence in Sec. 3.6(c)(2) as proposed (designated as
Sec. 3.6(c)(2)(ii) in this rule) is one such change in the
standards. Therefore, in Sec. 3.6(c)(2)(ii) of this rule, we are
providing that facilities must comply with the provisions regarding
such perimeter fences on and after February 15, 1994.
 
  Compatibility
 
  The proposal provided that all dogs housed in the same primary
enclosure would have to be compatible. We proposed to retain the
provision in existing Sec. 3.4(b)(2) limiting to 12 the number of
nonconditioned adult dogs permitted to be housed in the same
primary enclosure, and to set it forth in proposed Sec. 3.6(c)(3).
Additionally, that proposed paragraph contained the following
provisions: bitches in heat must not be housed in the same primary
enclosure with sexually mature males, except for breeding; bitches
with litters must not be housed in the same primary enclosure with
other adult dogs; except when maintained in a breeding colony;
puppies under 4 months of age must not be housed in the same
primary enclosure with adult dogs, other than the dam; and dogs
with a vicious or aggressive disposition must be housed separately.
  One commenter specifically supported the proposed provisions as
written. Another commenter stated that up to 12 conditioned, as
well as nonconditioned, dogs should be allowed in the same
enclosure if they are compatible. Although the proposed regulations
limit the number of nonconditioned dogs in an enclosure, there is
no limit on the number of conditioned dogs per enclosure. One
commenter stated that the regulations should limit to four the
number of dogs per enclosure, whether the animals are conditioned
or nonconditioned. We do not agree that such a change is necessary.
Since 1967, the regulations have allowed for 12 nonconditioned dogs
to be housed together. During that time, there have been few
reported problems stemming from the number of dogs housed together.
Whatever the number of dogs housed together, they must be
compatible.
  One commenter stated that because bitches in whelp require
isolation, they should be able to be housed without seeing,
hearing, or touching other animals. We do not believe that the
commenter's recommendation warrants a change in the regulations.
There is nothing in the regulations to preclude the housing
described, as long as the dog is provided adequate space, care, and
attention.
  One commenter requested that the regulations clarify what is
meant by "vicious or aggressive" behavior. We consider these terms
to be self-  explanatory, requiring no additional definition in the
regulations.
   We are making one change in Sec. 3.6(c)(3) as proposed.
Consistent with changes we are making elsewhere in subpart A in
response to comments, we are providing that puppies under 4 months
of age may be housed in the same primary enclosure with their
foster dam.
 
  Dogs in Mobile or Traveling Shows or Acts
 
  We proposed to provide, in Sec. 3.6(c)(4), that dogs in mobile or
traveling shows or acts may be kept, while the show or act is being
transported from one temporary location to another, in transport
containers that comply with all requirements of proposed Sec. 3.14
of subpart A, other than the marking requirements in Sec.
3.14(a)(6). We proposed that when the show or act is not traveling,
the dogs would have to be placed in primary enclosures that meet
the minimum requirements of Sec. 3.6. The only commenter who
addressed these provisions supported them as written, and we are
making no changes in this final rule.
 
  Innovative Primary Enclosures for Dogs and Cats
 
  We encourage the design and development of primary enclosures
that promote the well-being of dogs and cats by providing them with
sufficient space and the opportunity for movement and exercise.
Accordingly, we provided in Sec. 3.6(d) of the proposal that
innovative primary enclosures not precisely meeting the floor area
and height requirements provided for dogs and cats, but that do
provide the dogs and cats with a sufficient volume of space and the
opportunity to express species-typical behavior, could be used at
research facilities when approved by the Committee, and by dealers
and exhibitors when approved by the Administrator.
  Many commenters specifically supported the proposed provisions
regarding innovative enclosures as written. Very many more
commenters objected to what they termed a "loophole" that would
permit smaller primary enclosures than those otherwise required by
the regulations. We consider adequate space to be one of the
primary factors in the humane treatment of animals regulated under
the Act. The specific space requirements we set forth in our
proposal were based on the best current information available to
us, including our experience enforcing the regulations. However, we
believe it would be unrealistic to conclude that the design
standards currently in general use cannot be improved upon, based
on continuing research in engineering and animal behavior.
Establishing a mechanism for approval of innovative enclosures will
likely foster such research. It is also important to note that
innovative enclosures will not qualify for approval unless they
provide the animals with a sufficient volume of space and the
opportunity to express species-typical behavior, and that such
enclosures and the behavior of the housed dogs and cats will be
subject to APHIS observation and inspection.
   A small number of commenters stated that the attending
veterinarian at research facilities, and not the Committee, should
be responsible for approval of innovative primary enclosures. We do
not agree. The authority to grant exceptions to the general
standards has been delegated to the attending veterinarian in
certain cases in these regulations, for situations involving the
health and well-being of the animals. Authority to approve
innovative primary enclosures should be retained in the Committee.
  Several commenters stated that the approval of innovative primary
enclosures at research facilities should be the responsibility of
the Administrator, not the Committee. We disagree. The Committee at
research facilities is comprised of individuals who represent both
professional and community interests. We consider such a body the
appropriate one for deciding on the approval of innovative
enclosures. Again, it is important to note that any enclosures that
do receive approval at research facilities will be subject to APHIS
inspection.
  A small number of commenters stated that the regulations should
include the criteria to be used in evaluating innovative primary
enclosures. Such criteria already exist in the regulations as
proposed, and we are therefore making no changes based on these
comments.
 
  Reformatting
 
  We are making several nonsubstantive formatting changes to
subpart A to set forth its sections in a more logical order. We are
redesignating Sec. 3.7 as proposed as Sec. 3.12, and are
redesignating proposed Secs. 3.8, 3.9, 3.10, 3.11, and 3.12 as
Secs. 3.7, 3.8, 3.9, 3.10, and 3.11, respectively.  

  Exercise and Socialization for Dogs--Section 3.7 (Redesignated as
Section 3.8 in this Final Rule)
 
  In accordance with the 1985 amendments to the Act, in developing
our proposed rule, we set forth standards for the exercise and
socialization of dogs, and proposed a new Sec. 3.7, titled
"Exercise and socialization for dogs" (redesignated in this final
rule as Sec. 3.8). We proposed that in cases where a facility
chooses not to house all dogs in groups, or where certain dogs are
housed individually for research reasons, the facility would be
responsible under the provisions of this revised proposal for
developing a program of alternatives to group housing to provide
the dogs adequate opportunity for exercise, as discussed below.
  We set forth provisions for group housing in proposed Sec.
3.7(b), and proposed to allow dogs over 12 weeks of age to be
maintained in compatible groups unless (1) Housing in compatible
groups is not in accordance with a Committee-approved research
proposal at a research facility; (2) in the opinion of the
attending veterinarian, such housing would adversely affect the
health or well-being of the dog(s); or, (3) a dog exhibits
aggressive or vicious behavior.
  A very large number of commenters supported the concept of
requiring the exercise of dogs. A smaller number of commenters took
an opposing view, and recommended that all provisions for exercise
of dogs be removed from the proposed regulations. Some commenters
opposed the proposed exercise requirements because they considered
them cost prohibitive. The responsibility for establishing
standards for the exercise of dogs is one that we are charged with
by Congress, and is one that we must meet. In doing so, we take
seriously our obligation to promote the well-being of the animals
protected by the regulations.
  A number of commenters expressed reservations concerning the
group housing of dogs, stating that the behavior of dogs in packs
is unpredictable and dangerous. As we discussed in our proposal,
while we agree that such dangerous behavior is frequently observed
in animals that roam at large, we do not believe it is a
significant problem with dogs that are in captivity and subject to
human care and control. In cases where individual dogs exhibit
aggressive or vicious behavior, the proposed regulations would
provide for solitary housing of such animals.
  Many commenters stated that they were in favor of socialization
for animals. A number of other commenters stated that references to
socialization should be removed from the proposed regulations,
because requirements for socialization were not included in the
1985 amendments to the Act. While we consider socialization in many
cases to be an integral part of the provision of adequate exercise,
the commenters are correct in stating that the Act does not include
requirements for socialization. We are therefore removing
references to socialization from Sec. 3.7 as proposed (redesignated
in this final rule as Sec. 3.8), and are removing references to
social grouping from Sec. 3.12 as proposed (redesignated in this
final rule as Sec. 3.7).
   We proposed in Sec. 3.7(c)(4) that written standard procedures
for provision of the opportunity for exercise must be prepared by
each dealer, exhibitor, or research facility at which dogs are
housed, held, or maintained. We proposed that this set of
procedures would have to be made available to APHIS, and, in the
case of research facilities, to officials of any pertinent funding
Federal agency.
  We proposed in Sec. 3.7(a) that dogs over 12 weeks of age, except
bitches with litters, housed, held, or maintained in a regulated
facility must be provided the opportunity for exercise regularly if
they are kept individually in cages, pens, or runs that provide
less than two times the required floor space for that dog, as
indicated in proposed Sec. 3.6(c)(1). We proposed additionally that
if only one dog is housed, held, or maintained at a facility, the
single dog must receive positive physical contact with humans at
least daily.
  In proposed Sec. 3.7(b), we provided that dogs over 12 weeks of
age would not require additional opportunity for exercise regularly
if they were housed, held, or maintained in groups in cages, pens,
or runs providing at least 100 percent of the required space for
each dog if maintained separately.
  Many commenters expressed opposition to primary enclosures for
exercise larger than those otherwise required for dogs. They stated
that increased enclosure sizes will not increase activity. We
disagree that increasing enclosure size is not a means of providing
dogs with the opportunity for exercise. However, under the
regulations as proposed, facilities are not restricted to
increasing cage size to provide for exercise. For example, group
housing of dogs is an effective alternative to increasing cage size
for individual dogs, as is removal of the dog from its primary
enclosure for alternative forms of exercise.
  A small number of commenters stated that purpose-bred dogs are
acclimated to the existing enclosure sizes and should be exempt
from the proposed exercise requirements. A large number of
commenters stated that scientific evidence does not support that
dogs housed in less than two times their minimum space need
additional exercise opportunities. Many of these commenters stated
that the dogs' exercise needs are being met with existing housing.
We disagree. Not all dogs are maintained in an environment that
permits exercise and Congress concluded that the existing minimum
space standards for dogs were not in themselves sufficient to allow
for adequate opportunity for exercise.
  Several commenters opposed the requirement for positive physical
contact for dogs housed alone in a facility, either in general or
in cases where the dog is not socialized to humans. A small number
of commenters stated that daily interaction with humans should be
required for all dogs. One commenter recommended that positive
physical contact must total at least 60 minutes daily, and be
provided to dogs isolated at a facility, as well as to the sole
animal at a facility. The commenter supplied no data to support the
recommendation for 60 minutes of positive physical contact, and we
see no need for contact of that duration. While we do not consider
it necessary for all dogs to have daily interaction with humans in
all cases, upon review of the comments, we agree that there is
little practical difference between an animal that is the sole dog
at a facility and dogs that are isolated from other dogs at a
facility. We are therefore providing in Sec. 3.8(c)(2) of this
final rule that when dogs are housed at a facility without sensory
contact with other dogs, they must be provided with positive
physical contact with humans at least daily.
  One commenter expressed concern that the term "positive physical
contact" is so vague that cagewashing and feeding will be so
termed. We do not share the commenter's concern. The definition of
"positive physical contact" in Part l of the regulations clearly
states the meaning of the term.
   A number of commenters recommended that the regulations clarify
that facility standards for exercise be made available to APHIS
"upon request." We agree that such an amendment would clarify the
intent of our proposal and are therefore adding the words "upon
request" in this final rule. Also, to further clarify the intent of
our proposal, we are making certain changes regarding the
requirement for a plan for the exercise of dogs. We are specifying
in this final rule that such a plan must be appropriate and must be
approved by the attending veterinarian. Additionally, we are making
a formatting change to move from Sec. 3.7(c)(4) of the proposal
(redesignated as Sec. 3.8(c)(4) in this final rule) the requirement
that written procedures for exercise be developed, and are moving
that provision to the introductory text of Sec. 3.8 (redesignated
in this final rule from Sec. 3.7 of the proposal).
 
  Methods of Exercise for Dogs--Section 3.7(c) (Redesignated in
this Final Rule as Section 3.8(c))
 
  We proposed in Sec. 3.7(c)(1) of the proposal that exact methods
and periods of providing the opportunity for exercise be determined
by the attending veterinarian, with, at research facilities,
consultation with and review by the Committee. We proposed to
provide in Sec. 3.7(c)(2) that the opportunity for exercise may be
provided in a number of ways, such as: (1) Group housing in cages,
pens, or runs that provide at least 100 percent of the space
required for each dog under the minimum floor space requirements
set forth in proposed Sec. 3.6(c)(1); (2) maintaining individually
housed dogs in cages, pens, or runs that provide at least twice the
minimum floor space required by proposed Sec. 3.6(c)(1); (3)
providing access to a run or open area; (4) providing positive
physical contact with humans through play, grooming, petting, or
walking on a leash; or (5) other similar activities.   A number of
commenters supported allowing for the professional judgment of the
attending veterinarian in developing plans for the exercise of
dogs. A very large number of other commenters stated that the
regulations should require daily release of dogs from their
enclosures for a specified period of time, from 1/2  hour to l
hour. One commenter stated that the regulations should require that
dogs be exercised at least twice daily. Another recommended that
exercise be required at least one day out of each weekend or
holiday. Several commenters expressed the opinion that dogs cannot
be adequately exercised in less than four times the floor space
otherwise required for housing. Several commenters stated that
facilities that do not utilize APHIS-recommended methods of
exercise should be required to submit their proposed exercise plan
to the Administrator for prior approval. One commenter expressed
concern that if APHIS does not specify exact methods and duration
of exercise, the plans for exercise developed by the facilities may
allow absurdly low levels of exercise. We do not agree that
requiring a specified period or frequency for exercise would be
appropriate in all cases. Such a requirement would not take into
account variation among the types of dogs and the use for which
they are being held, and would be too restrictive to be applied
generally to diverse facilities. The regulations as proposed,
calling for a plan for meeting the exercise needs of dogs at each
facility, will allow each facility to meet the requirements of the
regulations in the manner most appropriate to the facility and to
the animals housed there.
   In order to clarify our intent with regard to exercise, we are
making several changes to Sec. 3.7(c) as proposed (redesignated as
Sec. 3.8(c) in this final rule). We are clarifying that "exact
methods and periods of providing the opportunity for exercise," as
proposed, more specifically means "the frequency, method, and
duration of the opportunity for exercise." Additionally, we are
clarifying Sec. 3.8(c)(1) in this final rule to make clear that
review by the Committee at research facilities of the methods and
periods of providing exercise involves approval by the Committee.
With regard to examples we provided of methods of exercise, we are
clarifying that providing access to a run or open area is
appropriate if done "at the frequency and duration prescribed by
the attending veterinarian." Finally, we are removing "providing
positive physical contact with humans that encourages exercise"
from the listing of examples of methods of providing exercise. In
order to place greater emphasis on the benefits of positive
physical contact with humans, we are providing in Sec. 3.8(c)(2) of
this final rule that dealers, exhibitors, and research facilities
should, in developing their plan, consider providing positive
physical contact with humans that encourages exercise through play,
walking on a leash, or similar activities.
   A number of commenters expressed the opinion that not requiring
group-housed dogs to be released for exercise is contrary to
Congressional intent. One commenter recommended a return to the
specific run size dimensions set forth in our original proposal. We
disagree that Congressional intent was to require specific methods
of exercise for dogs, such as release from their primary
enclosures. As amended, the Act requires that the regulations
include minimum requirements for the exercise of dogs. Based on the
research available to us, and on our own experience enforcing the
regulations, it is evident that one of the most effective means of
promoting exercise in dogs is to house the dogs in groups.
  A small number of commenters expressed reservations regarding
group housing of dogs, stating either that such housing can lead to
fighting when the groups are unstable, that group housing might
conflict with other agencies' standards for testing protocols, or
that group housing can pose a hazard to handlers. One commenter
recommended that exemptions to group housing should be made on a
case-by-case basis. As proposed, group housing is not required. It
is merely included as one method of complying with the regulations
regarding the exercise of dogs. We are therefore making no changes
based on the comments.
  Several commenters stated that group-housed dogs that each have
100 percent of their minimum space requirement will not have
sufficient room for exercise. We do not agree. Based on the
evidence available to us, such an amount of space will provide
adequate room for group-housed dogs to interact and play.
  Several commenters stated that even dogs housed in enclosures
with twice the minimum space required should be released for
exercise. We disagree. We are confident that by allowing for
additional space for dogs housed individually, and by encouraging
group housing, the proposed regulations regarding doubling the
minimum space will promote adequate exercise for dogs.
   A small number of commenters stated that dogs housed in
enclosures totalling 150 percent of their minimum space should not
have to be released for exercise. We do not agree that the amount
of space recommended by the commenter will be sufficient for dogs
lacking other opportunities for exercise and are making no changes
based on the comment.
  One commenter stated that the provision that twice a dog's
minimum space offers adequate room for exercise is a rigid
engineering standard that should be deleted. Although we agree that
the provision in question is an easily measurable one, it is only
one option among many that a facility may choose to ensure proper
exercise for dogs. As such, we do not agree that it is
unnecessarily rigid.
  One commenter recommended that dogs housed individually in
acceptable pens, runs, or cages be considered as meeting the
exercise requirements if they can make visual contact with one or
more other dogs. We agree with the commenter in cases where the
individually housed dog's enclosure provides at least twice its
minimum space requirement. If the enclosure falls short of that
size, however, we continue to believe that the dog must be provided
other means of exercise. While we encourage visual contact among
the dogs in a facility, we do not consider such contact a
substitute for the contact provided by group housing. For the same
reason, we do not agree with the commenter who recommended that
individually housed dogs in runs should not be required to have
twice the minimum space requirements if they can "muzzletouch" each
other.
  One commenter recommended that it be required that bitches with
litters be provided an additional opportunity for exercise if they
are housed in primary enclosures providing less than four times the
minimum space required for the bitch. We are making no changes
based on this comment. We consider the "twice-the-minimum"
requirements proposed, in tandem with the additional minimum space
required for bitches with litters, to be adequate to ensure that
bitches with litters are provided adequate space for exercise.
   A small number of commenters stated that the regulations should
provide no variances from the exercise requirements. The only
exemptions from exercise will be provided in cases where an
approved protocol at a research facility calls for such an
exemption, and in cases where it would be injurious to the dog's
health to exercise, as determined by the attending veterinarian.
The first type of exemption is in accordance with our statutory
obligation not to interfere with approved research. The second is
necessary for the well-being of the animal.
  A number of commenters stated that records of release for
exercise should be maintained for review by APHIS inspectors. A
small number of other commenters stated that records of dog
exercise should be made available to the Committee, the Department,
and the general public. We do not agree that it is necessary for
the facility to keep records of exercise to ensure compliance with
the regulations. The facility's plan will be available to APHIS
and, in the case of research facilities, to officials of any
pertinent funding Federal agency. We are confident that the
requirement for this written plan, together with inspections by
APHIS personnel, will ensure that the dogs at each facility receive
sufficient exercise.
  Several commenters stated that social interaction for dogs cannot
substitute for physical exercise, regardless of the cage size.
While we disagree with the commenters' assertion that social
interaction cannot adequately stimulate exercise, we do agree upon
review of the comment that certain of the methods suggested in the
proposal for providing exercise would not be adequate. We are
therefore amending Sec. 3.7(c)(2)(iv) as proposed (redesignated as
Sec. 3.8(c)(2)(iv) in this final rule) to delete grooming and
petting as forms of positive physical contact with humans that may
provide the opportunity for exercise. Additionally, we are adding
language, both in Sec. 3.8(c)(2)(iv) and Sec. 3.8(a) to clarify
that positive physical contact with humans must be of the sort that
encourages exercise.
   A small number of commenters urged that the Department carefully
scrutinize the records pertaining to exercise, and develop a system
of outside, impartial observation to ensure that facilities
actually use exercise enclosures. A system of impartial observation
already exists with regard to enforcement of the regulations. Only
Department personnel are authorized by law to conduct inspections.
  A small number of commenters stated that exercise provisions in
the regulations should not apply to dogs held for less than 1 week.
We believe that the exercise needs of a dog do not necessarily
depend on how long it is held in a facility, and that such an
across-the-board exemption for dogs held less than l week would be
inappropriate.
  A number of commenters addressed the fact that we supplied a
number of examples of ways adequate exercise might be provided. A
large number of commenters recommended that the examples be
deleted, because the actual methods of exercise will be determined
based on professional judgment at each facility. We see no
advantage in deleting the examples provided. They in no way limit
the facility in developing an exercise plan, and we consider them
helpful as recommendations of satisfactory methods of providing
exercise.
   A small number of commenters asserted that development of plans
and standards for exercise should be solely the responsibility of
the Department. We do not agree. Such across-the-board requirements
would not allow sufficient flexibility and latitude for varying
conditions, and would be unnecessarily restrictive.
  One commenter stated that the regulations should stipulate that
study procedures may not be substituted for exercise requirements.
The requirement as proposed was that dogs be provided the
opportunity for exercise. We do not consider it reasonable to
assume that no study procedures will provide the dogs involved with
adequate exercise. We therefore do not consider it appropriate to
make the change recommended by the commenter. A small group of
commenters addressed a similar issue, and stated that animals used
in research protocols involving forced exercise should be exempt
from required exercise. Whether such animals should be exempted
from the exercise standards will depend on the situation. If the
research protocol provides the animals with adequate exercise, then
they will not need additional exercise. Also, in cases where the
research protocol calls for specific limits on the exercise
provided, it would not be required that the animals exceed those
limits. This is in accordance with Sec. 2.28(k)(1) of part 2 of the
regulations, which provides that exceptions to the standards in
part 3 of the regulations may be made when such exceptions are
specified and justified in the proposal to conduct an activity and
are approved by the Committee.
  Several commenters stated that it would be sufficient to abide by
the NIH Guide for exercise of dogs. We disagree. The Act
specifically requires us to establish regulations to promote
exercise for dogs. The NIH Guide is just that, containing
guidelines and not regulations.
  Although the proposal did not prohibit exercise by such means as
treadmills, carousels, or swimming, it did specify that such
methods would not be considered as meeting the exercise
requirements of the proposed regulations. One commenter
specifically supported the inclusion of such examples. A number of
commenters stated that the examples provided were unjustified. We
disagree. Congressional intent with regard to the Act was to give
dogs an opportunity for exercise, not to force them to exercise.  
One commenter stated that the exercise standards for dogs should be
the same as the standards for the psychological well-being of
nonhuman primates. We do not agree. The differences in species
behavior and needs, and the distinct statutory requirements for
dogs and nonhuman primates, make parallel provisions inappropriate.
 
  Exemptions from Exercise--Section 3.7(d) (Redesignated as Section
3.8(d) in this Final Rule)
 
  We proposed in Sec. 3.7(d)(1) that if, in the opinion of the
attending veterinarian, it is inappropriate for certain dogs to
exercise because of their health, condition, or well-being, the
dealer, exhibitor, or research facility may be exempted from
meeting the exercise requirements for those dogs. As proposed, such
an exemption would have to be documented by the attending
veterinarian and, unless the basis for the exemption were a
permanent condition, the exemption would have to be reviewed at
least every 30 days by the attending veterinarian.
  We proposed additionally that research facilities may be exempted
from the exercise requirements for dogs if the principal
investigator determines for scientific reasons set forth in the
research proposal that it is inappropriate for certain dogs to
exercise. As proposed, such an exemption would have to be
documented in the Committee-approved proposal and would have to be
reviewed at appropriate intervals as determined by the Committee,
but not less than annually.
  As proposed, records of any exemptions would have to be
maintained and be made available to USDA officials or any pertinent
funding Federal agency upon request.
  A number of commenters supported the provisions as proposed. A
number of commenters stated that research facilities should be
permitted to make exemptions for certain study situations without
documentation being required. Such an allowance would be contrary
to the Act and we are making no changes based on these comments.
  Many commenters recommended that rather than require review by
the attending veterinarian every 30 days, it should be required
that exemptions to exercise be approved in the standard procedures
for exercise. A number of other commenters stated that the
exemptions should have to be reviewed only "as needed." One
commenter recommended that it be required that review of exemptions
be carried out on a daily basis, to ensure continuity and assist
inspectors. We are making no changes based on these comments. In
most cases,exemptions from exercise will be of a temporary nature.
Allowing the exemptions to continue for long periods of time
without review would not comply with the intent of the Act.
However, we do expect conditions warranting exemptions to continue

for more than a day at a time, and consider daily review
unnecessary.
  One commenter stated that it should be required that
documentation for exemptions be "accessible," not made available
for review. We do not consider there to be any substantive
difference between making records accessible and making them
available, and we are making no changes based on this comment.
   A large number of commenters stated that the recording of an
exemption for exercise is not necessary, because an inspector can
verify compliance visually. We do not agree. Without written
documentation of exemptions, it will be virtually impossible for
inspectors to conduct an adequate evaluation of whether dogs are
being exercised in accordance with the regulations.
   One commenter stated that the regulations should require that
exemptions be documented in the animals' medical records, rather
than in separate records. We are making no changes based on this
comment. The regulations do not require that medical records be
kept for each animal; nor do they prohibit exemptions from exercise
from being recorded on such records. In any case, the record of any
exemptions would have to be made available to the Department.
 
  Feeding--Section 3.8 (Redesignated as Sec. 3.9 in this Final
Rule)  

  In proposed Sec. 3.8(a), concerning feeding requirements for dogs
and cats, we proposed to make minor changes to the feeding
requirements in existing Sec. 3.5(a). In addition to the existing
provisions, we proposed to require that food given to a dog or cat
be appropriate for the animal's age.
   We proposed to make minor additions in Sec. 3.8(b) to clarify
that food receptacles must be used for dogs and cats, and must be
located so as to minimize contamination by pests as well as by
excreta, and so as to be protected from rain or snow. Under the
proposal, feeding pans would either have to be made of a durable
material that can be easily cleaned and sanitized, or be disposable
and discarded after each use. We proposed to require that food
containers that are not discarded be cleaned daily and be sanitized
before being used to feed a different dog or cat or social grouping
of dogs or cats, and, as required by the existing regulations, be
sanitized at least once every two weeks. We proposed to require
that both nondisposable food receptacles and self-feeders be kept
clean, and be sanitized in accordance with Sec. 3.10(b) of the
proposal, which would require that they be sanitized at least once
every two weeks, as often as necessary to keep them clean and free
from contamination, and before being used to feed another dog or
cat or social grouping of dogs or cats. We proposed that in cases
where groups of dogs or cats are housed together, it would not be
necessary to sanitize the receptacle between each feeding by a
different dog or cat, but rather between use by different social
groups.
  A number of commenters specifically supported the provisions of
proposed Sec. 3.8 as written. Several commenters stated that it
would be impossible to ensure that all animals will have access to
food in group housing situations. We believe that whatever
practical problems might have to be met to provide each dog and cat
access to food each day, they cannot justify ignoring the feeding
needs of the animals housed in a facility, and we are making no
changes based on these comments. Several commenters recommended
that multiple feeding sites be provided for animals housed in
groups. We believe that the provisions as proposed are adequate
with regard to this concern. If certain dogs or cats are not eating
because of lack of access to a feeding site, then multiple feeding
sites could be one solution. Whatever the mechanism for ensuring
it, the end result must be that each animal is fed daily.
   One commenter stated that, in group housing, there is no way to
ensure that food will remain uncontaminated. We are making no
changes to our proposal based on these comments. While we agree
that the food might not always remain clean after it is offered to
the dogs or cats, it is possible and necessary to ensure that the
food is in appropriate condition at the time it is offered.
  Several commenters stated that the regulations should require
that weaned puppies and kittens up to the age of 16 weeks be fed
solid food 3 times a day, with feeding frequency reduced to twice
daily after 16 weeks of age. While we encourage giving such dogs
individual attention wherever possible, we do not believe that it
is necessary to the health and well-being of such animals to
require in each case that they be fed more frequently than once a
day. We believe further that the needs of these animals would be
met by the requirement in the proposed regulation that the diet
provided be appropriate for the animal's age and condition, and
that the food provided be of sufficient quantity and nutritive
value to maintain the normal condition and weight of the animal.
  Several commenters stated that cats should be fed more often than
as proposed, because domestic cats take a number of small meals
throughout the day. We consider once-a-day feeding, as proposed, to
be an appropriate minimum for most situations. If specific animals
are suffering because of inadequate feeding, the regulations
require that they must be fed with sufficient frequency to provide
adequate veterinary care.
   One commenter recommended that the regulations require that
feeders be cleaned daily and sanitized every 7 days to help break
recurrent cyclical infection. We believe that the regulations we
proposed already address the commenter's concerns regarding the
prevention of infection, and are making no changes based on the
comment. Under the proposed regulations, feeders must be kept
clean. Sanitization must be carried out at least every 2 weeks, or
as often as necessary to prevent an accumulation of dirt, debris,
food waste, excreta, and other disease hazards.
 
  Watering--Section 3.9 (Redesignated as Section 3.10 in this Final
Rule)  

  Existing Sec. 3.6 contains provisions for offering liquids to
dogs and cats and for the cleaning and disinfection of watering
receptacles. Under Sec. 3.9 of the proposed rule, we proposed to
continue to require that potable water be offered at least twice
daily, if it is not continually available, and proposed to add the
requirement that water receptacles be sanitized before being used
to water a different dog or cat or social grouping of dogs or cats.
  A small number of commenters specifically supported these
provisions as written. A number of commenters recommended that
potable water be available to dogs and cats at all times, unless
restricted by a veterinarian. Others recommended more frequent
watering in hot weather. One commenter stated that the requirement
for twice daily watering is unenforceable, because inspectors will
not be present 24 hours a day to carry out verification. Upon
review of the comments, we agree that provision should be made for
additional periods of watering when necessary. However, based on
our experience enforcing the regulations, we do not consider it
necessary to require in all cases that water be provided at all
times. We are therefore providing in this final rule that if
potable water is not continually available to the dogs and cats, it
must be offered as often as necessary to ensure their health and
well-being, but not less than twice daily for at least 1 hour each
time, unless restricted by the attending veterinarian.
  A small number of commenters stated that it should be required
that water receptacles be cleaned and sanitized more often than as
proposed. For the reasons we discussed regarding food receptacles
under the preceding heading, we are making no changes based on
these comments.
  A small number of commenters recommended that water receptacles
be of such construction so as not to cause injury or discomfort to
the dogs and cats. Based on our experience enforcing the
regulations, we do not consider the commenters' concerns to be a
practical problem requiring regulation, and we are making no
changes based on these comments.

  Cleaning of Primary Enclosures--Section 3.10(a) (Redesignated as
Section 3.11(a) in this Final Rule)
 
  We proposed to revise and reword the provisions in existing Sec.
3.7, and to include them in proposed Sec. 3.10, to clarify the
intended requirements for sanitation and other forms of hygiene. We
proposed to title the revised section "Cleaning, sanitization,
housekeeping, and pest control."
   We proposed to require that excreta and food waste must be
removed from primary enclosures daily, and from under primary
enclosures as often as necessary to prevent an excessive
accumulation of feces and food waste, to prevent soiling of the
dogs and cats contained in the primary enclosures, and to reduce
disease hazards, insects, pests, and odors. We also proposed that
the pans under primary enclosures with grill-type floors, and the
ground areas under raised runs with wire or slatted floors, must be
cleaned as often as necessary to prevent accumulation of feces and
food waste and to reduce disease hazards, pests, insects, and
odors.
  We also proposed to require that when using water to clean a
primary enclosure, whether by hosing, flushing, or other method, a
stream of water must not be directed at a dog or cat. Additionally,
we proposed that when steam is used to clean a primary enclosure,
dogs and cats must be removed or adequately protected to prevent
them from being injured. We also proposed to require that all
standing water must be removed from the primary enclosure, and
animals in other primary enclosures must be protected from being
contaminated with water and other wastes during the cleaning.   A
small number of commenters objected to the requirement for the
daily cleaning of primary enclosures, stating that such frequency
was not necessary for the health of the animals. One commenter
recommended that grill-type floors be exempt from daily cleaning of
wastes, and instead be required to be cleaned as often as
necessary. The only area around the primary enclosure that requires
daily cleaning is the inside area housing the animals. Areas under
primary enclosures must be cleaned out only as necessary. The
wording in the proposal regarding the interior of primary
enclosures states that excreta and food waste must be removed from
those areas daily. We consider this a reasonable and necessary
minimum. Several commenters stated that it should be required that
excreta be removed daily from beneath primary enclosures. We are
making no changes based on these comments. The frequency of
cleaning recommended by the commenters is not necessary to prevent
the soiling of the animals. However, frequent removal of wastes is
necessary to control problems such as odor and vermin. Several
commenters recommended that cleaning frequency should be determined
by the attending veterinarian, and conform with the NIH Guide. We
cannot envision many situations where daily cleaning of the inside
of a primary enclosure would not be necessary, and therefore do not
consider it appropriate to allow for departures from that
frequency. The provisions as written do conform with the NIH Guide.
One commenter recommended that in cases where bedding is used,
cleaning be required only as often as necessary to prevent excess
accumulations of excreta and feed waste. We do not agree that the
use of bedding lessens the need for sanitation, and are making no
changes based on this comment.
   A small number of commenters objected to the daily cleaning of
non-contact surfaces. Such a requirement was not included in the
proposal. Several other commenters stated that standards for odor
should be set as to be measurable. Proposed Sec. 3.10 contained no
requirements for odor control. We consider this issue to be
adequately addressed under the ventilation requirements for housing
facilities, discussed elsewhere in this supplementary information,
under the heading "Ventilation Requirements in Housing Facilities--
Sections 3.2(b), 3.3(b), and 3.5(b)."
  Many commenters objected to the proposed requirement that
standing water be removed from primary enclosures. Some stated that
when dogs are housed with elevated areas, many enjoy playing in
water. Others suggested that water be required to be removed only
"to the extent practical." The requirement as proposed is not based
solely on the comfort of the animals housed, but also on the need
to minimize the opportunity for contamination and disease spread.
We consider the requirement for the removal of standing water to be
necessary as written, and to convey its intent clearly.
  A large number of commenters urged that it be required that
animals be removed from a primary enclosure when the enclosure is
being cleaned by steam. A smaller number of commenters stated that
it should be required that a dog or cat not be involuntarily wetted
during the cleaning of an enclosure. We recognize clearly the
potential dangers to animals that are not properly protected when
steam cleaning is taking place. It was our intent in wording the
proposal as we did to make it clear that animals must be removed
from their primary enclosures during steam cleaning, unless they
are otherwise adequately protected. However, upon review of the
comments regarding this provision, we consider it appropriate to
reword that provision to further clarify our intent. Additionally,
we consider it appropriate to reword our requirement regarding the
wetting of animals during cleaning, again to clarify our intent.
Therefore, in this final rule, we are providing in Sec. 3.11(a)
(redesignated from Sec. 3.10(a) in the proposal) that when steam or
water is used to clean the primary enclosure, whether by hosing,
flushing, or other methods, dogs and cats must be removed, unless
the enclosure is large enough to ensure the animals would not be
harmed, wetted, or distressed in the process. In prohibiting the
wetting of animals, our intent is to prohibit direct wetting of
animals during the cleaning process. We do not consider it
deleterious to the animals, for example, to have their feet wetted
by water resulting from the cleaning. As discussed, above, however,
standing water must be removed from the primary enclosure.
  Many commenters recommended that we define the word "cleaning."
We believe that the dictionary definition of the word "cleaning"
adequately conveys our intent and we are making no change to our
proposal based on these comments.  
  Sanitization of Primary Enclosures and Food and Water
Receptacles--Section 3.10(b) (Redesignated as Section 3.11(b) in
this Final Rule)  
  As proposed, the provisions of proposed Sec. 3.10(b) regarding
sanitization of primary enclosures and food and water receptacles
were basically the same as those in Sec. 3.7(b) of the existing
requirements. In Sec. 3.10(b)(2) of our proposal, we included
wording to indicate that used food and water receptacles, as well
as primary enclosures, must be sanitized at least once every two
weeks, and before being used to feed or water another dog or cat. 
 A small number of commenters supported the provisions of proposed
Sec. 3.10(b) as written. Several commenters stated that the
regulations should require sanitization of primary enclosures for
dogs and cats at least every 7 days, rather than at least every 2
weeks as proposed. Based on our enforcement of the existing
regulations, we believe that sanitization at least every two weeks
is sufficient to help ensure the health and well-being of the
animals. As proposed, more frequent sanitization is required as
necessary.
  One commenter recommended that it be required that food
receptacles be cleaned daily. Although the proposed regulations do
not require daily cleaning of food receptacles, Sec. 3.8(b) as
proposed (redesignated in this final rule as Sec. 3.9(b)) requires
that food receptacles be kept clean. Individual circumstances will
determine if compliance with that requirement necessitates daily
cleaning.
  Proposed Sec. 3.10(b)(3) contained specific methods of
sanitization that would be considered adequate to meet the
sanitization requirements of the proposed regulations. These
methods are the same as those in the existing regulations, with the
addition of a provision to allow the use of detergent/ disinfectant
products that accomplish the same purpose as the detergent/
disinfectant procedures specified in the existing regulations.
   A small number of commenters addressed Sec. 3.10(b)(3)(ii) of
the proposal, which provided as an acceptable method of
sanitization washing with hot water (at least 180 deg.F (82.2
deg.C)) and soap or detergent. Most of the commenters recommended
that the provision be changed to specify water temperatures from
140 deg.F-160 deg.F, because, according to the commenters,
detergents are not effective at 180 deg.F. The provision in
question has been included in the existing regulations for a number
of years, and we are not aware of any problems due to the water
temperature required. One commenter stated that water in the 160
deg.F-180 deg.F range is capable of sanitizing, whether or not soap
or detergents are used. We do not agree with the commenter's
assertion in all cases. Whether water heated as recommended by the
commenter is effective in sanitization depends on a number of
variables, including the water temperature, the organisms involved,
and the duration of contact with the surface to be sanitized. We
therefore do not consider it appropriate to make any changes based
on the comment.
 
  Housekeeping for Premises--Section 3.10(c) (Redesignated as
Section 3.11(c) in this Final Rule)
 
  In proposed Sec. 3.10(c), we revised and reworded Sec. 3.7(c) of
the existing regulations regarding housekeeping to clarify that
paragraph's intent. The existing regulations require that premises
be kept free of trash accumulations and be kept clean enough and in
good enough repair to protect the animals and facilitate the
husbandry practices required by subpart A of the regulations. We
proposed to retain the existing requirements, but also to add
language to clarify that one of the aims of the housekeeping
provisions is to keep premises rodent-free. Additionally, we
proposed to specify the following as good housekeeping practices:
Premises would have to be kept free of accumulations of trash,
junk, waste products, and discarded matter; weeds, grasses, and
bushes would have to be controlled so as to facilitate cleaning and
pest control, and to protect the dogs' and cats' health and well-
being. The only commenters addressing these provisions supported
them, and we are making no changes in this final rule.
 
  Pest Control--Section 3.10(d) (Redesignated as Section 3.11(d) in
this Final Rule)
 
  The provisions of proposed Sec. 3.10(d) regarding pest control
are basically the same as those in Sec. 3.7(d) of the existing
requirements. We proposed some minor revisions to simplify the
language used. We also proposed to clarify that a pest control
program is necessary to promote the health and well-being of the
dogs and cats at a facility and to reduce contamination by pests in
animal areas.
  Several commenters requested that the regulations include further
clarification of the provisions regarding a pest control program.
We consider the goal to be met regarding pest control to be clearly
stated in the proposal. Because of the wide diversity in facility
structures, location, pest problems, and methods of prevention and
eradication, we do not consider it advantageous or reasonable to
prescribe specific procedures for pest control.
  Several commenters stated that the regulations should contain
requirements to ensure that pesticides are applied in accordance
with applicable Federal, State, and local laws. Persons using
pesticides are required to comply with applicable Federal, State,
and local laws by the terms of those laws. While we agree that
users should be careful in the use of pesticides, we are making no
changes based on these comments.
 
  Employees--Section 3.11 (Redesignated as Section 3.12 in this

Final Rule)  

  Existing Sec. 3.8 requires that there be a sufficient number of
employees to maintain the prescribed level of husbandry practices
required by Subpart A, and that husbandry practices be under the
supervision of an individual with a background in animal husbandry
or care. We proposed minor revisions to this section in proposed
Sec. 3.11 to make clear that this requirement is imposed upon every
person subject to the regulations and that the burden of verifying
and ensuring that the supervisor and other employees are
appropriately qualified is on the employer subject to the
regulations. We did not propose to prescribe a specific number of
employees for each facility, because the number of employees needed
will vary according to the size and configuration of the facility,
and according to the number and types of animals housed there.
Under the proposal, a facility would have to have enough employees
to carry out proper feeding, cleaning, observation, and other
generally accepted professional and husbandry practices.
   A number of commenters supported proposed Sec. 3.11 as written.
Many other commenters objected to the proposed provisions, and
stated that adequate staffing levels should be determined by the
facilities or the attending veterinarian. Several commenters stated
that government personnel are not qualified to tell facilities that
they do not have enough employees. The requirement as proposed was
that there be sufficient employees to carry out the level of
husbandry and care required by the regulations, and is clearly
within the Department's authority under the Act. We disagree that
the Department cannot make a valid determination of whether
adequate staffing exists. As we discussed in our proposal, such a
determination can be made based on an evaluation of common
practices regarding facilities of a particular size or nature, and
on observation of whether the regulations are being complied with.
  A small number of commenters recommended that Sec. 3.11 as
proposed be reworded to state that the employer is responsible only
for the training of employees, and not for their performance. Such
a change would not convey our intent, which is to ensure compliance
with the regulations by holding the facility responsible for both
the training and the performance of its employees. One commenter
stated that the regulations should require that all employees
possess a minimal level of knowledge, background, and experience in
animal husbandry and dog/cat care. We are making no changes based
on this comment. We consider the fact that the employee supervisor
must meet the qualifications described, together with the fact that
the employer must be certain that other employees can perform to
the prescribed standards, to be adequate in assuring the competence
of the employees. Several commenters stated that standards for
employee evaluation should be clarified in the regulations. We
consider employee evaluation to be most appropriately left to the
facility itself, and are making no changes based on these comments. 

  Social Grouping--Section 3.12 (Redesignated as Section 3.7 in
this Final Rule)
 
  We proposed to revise slightly existing Sec. 3.9 regarding social
grouping of dogs and cats in order to reduce the stress suffered by
certain dogs and cats. Under proposed Sec. 3.12(d), dogs and cats
could be maintained together in the same primary enclosure, or be
maintained in the same primary enclosure with other species of
animals, if they are compatible. Under the proposal, if dogs and
cats are not compatible with each other or with other animals,
keeping them in the same primary enclosure would continue to be
prohibited.
   We also proposed in Sec. 3.12(c) that puppies or kittens 4
months of age or less may not be housed in the same primary
enclosure with adult dogs or cats, other than their dams, except
when permanently maintained in breeding colonies. Additionally, we
proposed that dogs and cats that have or are suspected of having a
contagious disease must be isolated from healthy animals in the
colony, as directed by the attending veterinarian. We also proposed
to provide that when an entire group or room of dogs and cats is
known to have or believed to be exposed to an infectious agent, the
group may be kept intact during the process of diagnosis,
treatment, and control.
   Several commenters supported proposed Sec. 3.12 as written.
Section 3.12(d) of the proposal provides that dogs or cats may not
be housed in the same primary enclosure with any other species of
animal, unless they are compatible. Several commenters opposed the
housing of multiple species within the same primary enclosure. We
are making no changes based on these comments. As we stated in our
proposal, in some cases it would cause more stress to the animals
to separate differing species than to keep them together. Such
multiple-species housing would be permitted only if the animals are
not compatible.
  Several commenters opposed the use of group housing, stating that
aggressive pack behavior in dogs can cause injury in animals. One
commenter stated that socialization will be extremely stressful for
dogs and cats, and that stressed individuals will be identified
only by trial and error. As we stated in our proposal, although
injurious pack behavior is frequently observed in animals that roam
at large, it is not a significant problem in animals cared for by
humans. Additionally, it should be noted that proposed Sec. 3.12
does not require group housing of animals. It merely sets forth
standards for those situations where a facility chooses to house
its animals in groups.
  A number of commenters stated that in cases where foster dams are
used, puppies and kittens should be allowed to stay with those
animals, just as if with their natural dam. We agree, and are
adding such a provision to this final rule, both in Sec. 3.7
(redesignated from Sec. 3.12 in the proposal), and in Secs. 3.6 (b)
and (c).
  A small number of commenters stated the provisions in proposed
Sec. 3.12 were duplicative of the provisions in Secs. 3.6 (b)(2)
and (c)(3), and were therefore unnecessary. We do not agree. The
compatability requirements in proposed Sec. 3.12 include situations
where dogs and cats are housed together. The provisions in Sec. 3.6
do not.
  For the reasons discussed in this supplementary information under
the heading "Exercise and Socialization for Dogs--Sec. 3.7
(Redesignated as Sec. 3.8 in this Final Rule)," we are changing the
heading of proposed Sec. 3.12 (redesignated as Sec. 3.7 in this
final rule) from "Social Grouping" to "Compatible Grouping."
 
  Transportation Standards
 
  Consignments to Carriers and Intermediate Handlers--Section 3.13 

  We proposed to expand the existing obligations imposed upon
carriers and intermediate handlers (defined in Part 1 of the
regulations) to ensure the well-being of dogs and cats during
transport in commerce. Certain prerequisites must be satisfied
before carriers and intermediate handlers may accept dogs and cats
for transport in commerce. Additionally, the carriers and
intermediate handlers have certain duties to fulfill after the
shipment has reached its destination. Various obligations are
presently contained in existing Secs. 3.11 and 3.14. We proposed to
consolidate them in one section, proposed Sec. 3.13, and to add
some additional ones necessary for the dogs' and cats' welfare.
  We proposed to remove from the regulations the requirement that
certifications accompanying shipments of dogs and cats include an
"assigned accreditation number" (as provided in existing Sec.
3.11(c)(4)), because a program under which accreditation numbers
are assigned has not been implemented.
  One commenter requested that the regulations be clarified as to
the distinction between the transport of animals and the transport
of animals "in commerce." We do not consider such definitions
necessary. Under the regulations, the transportation of any covered
animal by any regulated entity is "in commerce," whether in
intrastate, interstate, or foreign commerce.
   Among the existing regulations retained in proposed Sec. 3.13(a)
was the provision that carriers and intermediate handlers must not
accept a dog or cat for transport in commerce more than 4 hours
before the scheduled departure time of the primary conveyance. As
proposed, this time period could be extended by up to 2 hours if
arranged between the consignor and the carrier or intermediate
handler. Several commenters called for a shortening of this time
period, down to a maximum of 2 hours. We are making no changes
based on these comments. It would be impracticable for carriers to
arrange for and handle the transport of animals within the
shortened time span. A small number of other commenters recommended
that the period for acceptance before departure be changed to 6
hours in all cases, since the 4-hour maximum may be changed without
extenuating circumstances. Based on our experience enforcing the
regulations, we consider the 4-hour period to be a suitable maximum
in most cases. By requiring prior agreement between two parties for
extension of this period, we have found that the time will be
extended only as needed in extenuating circumstances.
  In proposed Sec. 3.13(b), we provided that carriers and
intermediate handlers must not accept a dog or cat for transport in
commerce unless they are provided with the name, address, and
telephone number of the consignee. The only commenter addressing
these provisions supported them as written.
   Section 3.13(c) of the proposal included the requirement that
written instructions concerning food and water requirements for
each dog and cat in the shipment be securely attached to the
outside of the primary enclosure before a carrier or intermediate
handler can accept it for transport. This requirement is contained
in existing Sec. 3.14(d). The proposal provided that instructions
would have to be easily noticed and read. One commenter stated that
the provisions do not make it clear what a carrier should do if the
shipper writes instructions that no food should be fed. Several
other commenters opposed the provisions, saying it would be
impractical for carriers to have to maintain a log for feeding and
watering instructions for each animal in transport. One commenter
stated that feeding and watering times should be calculated from
the time of tender, not from the time of last feeding/watering by
the shipper. Some commenters stated that the problem of offering
animals food and water while in transit could be solved by
requiring that the consignors offer the animals food and water
immediately before the animal is shipped. One commenter recommended
that the consignor certification not be necessary in cases where
food and water are provided in the primary enclosure at the time of
presentation for shipment.
  We do not consider it wise to provide an animal with food or
water immediately before transportation, as it might become sick
and soil its cage, or aspirate food or water into its lungs.
However, upon review of the comments, we agree that keeping track
of a wide variety of feeding and watering schedules for animals
could create practical problems for carriers. To reduce these
problems, we are providing in this final rule that carriers and
intermediate handlers must not accept a dog or cat for
transportation in commerce, unless the consignor certifies in
writing that the dog or cat was offered food and water during the
4 hours before delivery to the carrier or intermediate handler. By
requiring feeding and watering within 4 hours of delivery for
transportation, the regulations will both make more uniform the
time frame during which animals will have to be fed and watered in
transportation, and minimize the number of animals that need to be
offered food and water in transportation. In most cases under the
amended regulations, animals being transported will reach their
destination before having to be fed and watered again.            
   Additionally, to eliminate the need for the carrier to maintain
a log of feeding and watering schedules, we are requiring in this
final rule that, on the feeding and watering certification provided
by the consignor, there be included specific instructions for the
next feeding(s) and watering(s) for a 24-hour period. We are also
providing that instructions for no food or water are not acceptable
unless directed by the attending veterinarian.
  A small number of commenters were opposed to the requirement that
the certification of feeding and watering be attached to each
primary enclosure. Several commenters stated that the certification
should be required only on the invoice accompanying the shipment.
We disagree. Secure attachment of the required information is
necessary, because primary enclosures can sometimes become
separated from the rest of the shipment. If information regarding
feeding and watering is not attached to the enclosure, situations
might arise where the carrier cannot determine if and when the
animals should be offered food and water.
  In this final rule, we are also making certain nonsubstantive
formatting changes to improve the clarity of Sec. 3.13 as proposed.
We are combining the provisions of proposed Secs. 3.13 (c) and (d)
into Sec. 3.13(c), and are redesignating subsequent paragraphs in
Sec. 3.13 accordingly.
   In proposed Sec. 3.13(e), we proposed to retain the existing
standards that require that carriers and intermediate handlers must
not accept a primary enclosure for transport unless it meets the
other requirements of subpart A, or unless the consignor certifies
that it meets the other requirements of subpart A. Even if such
certification is provided, however, it is the responsibility of the
carrier or intermediate handler not to accept for transport an
animal in an obviously defective enclosure. A small number of
commenters supported the proposed provisions as written. Other
commenters expressed the opinion that the provisions of proposed
Sec. 3.13(e) were redundant; that final responsibility for
determining the suitability of primary enclosures will rest on the
carrier or intermediate handler in any case. Upon review of these
comments, we agree that Sec. 3.13(e) as proposed (redesignated as
Sec. 3.13(d) in this final rule) contains redundant provisions. We
are therefore amending it in this final rule to make the carrier or
intermediate handler solely responsible for determining whether to
accept a primary enclosure for transportation.
  In proposed Sec. 3.13(f), we proposed to clarify the
certifications of the consignor regarding the acclimation of a dog
or cat to lower temperatures than those prescribed in existing
Secs. 3.16 and 3.17 of the regulations (included in proposed Secs.
3.18 and 3.19). In proposed Sec. 3.13(f), we proposed to clarify
the provisions in Sec. 3.11(c) to require that the temperatures to
which a dog or cat is exposed must meet generally accepted
temperature ranges for the age, condition, and breed of the animal,
even if it is acclimated to temperatures lower than those
prescribed in the regulations. We proposed that a carrier or
intermediate handler not be permitted to expose a dog or cat to
temperatures lower than those prescribed by the regulations, unless
a veterinarian certifies that the animal is acclimated to such
lower temperatures, and unless the veterinarian includes in the
certification the minimum temperature to which the animal may be
exposed. However, we proposed that in any case, even with a
veterinarian's certification, no dog or cat being transported may
be exposed to temperatures lower than 35 deg.F (1.7 deg.C).
  Several commenters stated that veterinarians should not certify
acclimation certificates, either due to the potential for liability
or because, according to the commenters, veterinarians will not
have first-hand knowledge of the acclimation status of the animal.
We disagree. The veterinarian, based on his or her training and
professional judgment, is the most appropriate person to make the
necessary determination. Several commenters expressed general
opposition to the allowance for acclimation certificates. We are
making no changes based on these comments. There is no doubt that
certain animals can tolerate temperatures outside the broad
parameters appropriate for most animals. There is no need to
restrict these animals from being transported in temperatures they
are acclimated to.
  A small number of commenters supported the provisions of proposed
Sec. 3.13(f) as written. Several commenters recommended that the
regulations should require that no dogs or cats be transported if
the air temperature is lower than 45 deg.F or higher than 85 deg.F.
We do not agree that it is necessary or practical to establish such
temperature limits for all animals in all cases. Certain dogs and
cats can tolerate temperatures out of the range recommended by
commenters for limited periods of time. We do agree, however, that
it is necessary for the well-being of the animals to limit the
duration of such exposure, and to ensure that the animal is
acclimated to lower temperatures by means of certification by a
veterinarian. We are therefore retaining the provisions in Sec.
3.13(f) as proposed (redesignated as Sec. 3.13(e) in this final
rule) that carriers and intermediate handlers must not accept a dog
or cat for transport in commerce unless their holding area meets
the minimum temperature requirements provided in Secs. 3.18 and
3.19, or unless the consignor provides them with a certificate
signed by a veterinarian certifying that the animal is acclimated
to temperatures lower than those required in Secs. 3.18 and 3.19.
To limit the duration of exposure to low temperatures, we are
amending Sec. 3.13(e) of this final rule to provide that even if
the carrier or intermediate handler receives this certification,
the temperature the dog or cat is exposed to while in a terminal
facility must not be lower than 45 deg.F (7.2 deg.C) for more than
4 consecutive hours, as set forth in Sec. 3.18, nor lower than 45
deg.F (7.2 deg.C) for more than 45 minutes, as set forth in Sec.
3.19, when moving dogs or cats to or from terminal facilities or
primary conveyances. Additionally, to make the transportation
temperature requirements more consistent with those for housing
facilities, we are providing in Sec. 3.13(e) that acclimation
certificates are required when the temperature is lower than 50
deg.F, rather than 45 deg.F as proposed.
  One commenter stated that a certification of acclimation should
be used only when a veterinarian can state that the animal is
acclimated to temperatures of 35 deg.F and higher. The commenter's
recommendation was based on the proposal, which set a temperature
minimum of 35 deg.F. With the changes we are making in this final
rule, we do not believe it practical or necessary to adopt the
commenter's recommendation, which would restrict transport in
colder climates.
  One commenter recommended that the proposed provisions should
apply only to animal holding areas, and not to entire cargo
facilities. The commenter's recommendation is consistent with our
intent, and we are revising the wording of proposed Sec. 3.13(f)
(redesignated as Sec. 3.13(e) in this final rule) to clarify that
intent.
  We proposed in Sec. 3.13(g) of the proposal to retain the
provision in existing Sec. 3.11(d) that requires the carrier or
intermediate handler to attempt to notify the consignee of the
arrival of the animal upon arrival, and every 6 hours after
arrival. Proposed Sec. 3.13(g) included limitations on how long a
dog or cat can be held at a terminal facility while waiting to be
picked up by the consignee. The same time limitations are imposed
under part 2 of the existing regulations, Sec. 2.80, "C.O.D.
shipments," so that the carrier or intermediate handler must
attempt to notify the consignee for 24 hours after arrival, then
must return the animal to the consignor or to whomever the
consignor designates if the consignee cannot be notified. If the
consignee is notified and does not take physical delivery of the
dog or cat within 48 hours of notification, the carrier or
intermediate handler must likewise return the animal to the
consignor or to whomever the consignor designates. We also included
provisions in proposed Sec. 3.13(g) to require that carriers and
intermediate handlers continue to maintain dogs and cats in
accordance with generally accepted professional and husbandry
practices, as long as the animals are in their custody and control
and until the animals are delivered to the consignee or to the
consignor or to whomever the consignor designates. We also proposed
to require that the carrier or intermediate handler obligate the
consignor to pay for expenses incurred by the carrier or
intermediate handler in returning the animal to the consignor.
   A number of commenters recommended that the regulations require
that carriers and intermediate handlers be required to notify the
consignee every 3 hours after arrival of the animal, rather than
every 6 hours. We do not agree that such a requirement is practical
or necessary. Our enforcement of the existing regulations has shown
no problems with these provisions to date. Several commenters
stated 48 hours is too long to wait to return any animals not
picked up by the consignee after notification. We do not agree.
Under the regulations, the animal must be properly cared for until
either picked up or returned.
  One commenter requested clarification as to which shipping
documents a carrier or intermediate handler must use to record
attempts to notify the consignee. The regulations as proposed
require that attempts at notification be recorded on the carrier's
or intermediate handler's copy of the shipping document, and on the
copy that accompanies the primary enclosure. It was our intent in
proposing the provision that the necessary documentation would be
recorded on copies of the waybill. We recognize, however, that in
certain cases--i.e., electronic waybills--there will be no copy
accompanying the primary enclosure. Therefore, we are addressing
the commenter's concern by requiring in this final rule that all
attempts to notify the consignee must be written either on the
carrier's or intermediate handler's copy of the shipping document
or on the copy that accompanies the primary enclosure.  

  Primary Enclosures Used to Transport Dogs and Cats: Construction-
-Section 3.14(a)
 
  We proposed to reformat existing Sec. 3.12, which concerns
primary enclosures used to transport dogs and cats, and to move
those provisions to proposed Sec. 3.14. Additionally, we proposed
to revise the contents of several paragraphs in the section, and
add requirements for surface transportation. When the
transportation standards were rewritten in 1978 to implement the
1976 amendments to the Act concerning the commercial transportation
of animals, the existing standards for surface transportation were
inadvertently omitted. Since that time, the standards have
pertained to commercial transportation by common carrier and only
a few paragraphs have pertained to surface transportation by
private vehicle. We therefore proposed to reinstate the surface
transportation standards.
  We proposed to require in Sec. 3.14(a) that dogs and cats be
shipped in primary enclosures. In addition to the requirements in
existing Sec. 3.12(a) regarding construction of primary enclosures
used for transportation, we proposed to require in Sec. 3.14(a)
that the primary enclosure be constructed so that: (1) The animal
being transported is at all times securely contained within the
enclosure and cannot put any part of its body outside of the
enclosure in a way that could injure the animal, other animals, or
people; (2) any material used in or on the enclosure is nontoxic to
the animal; and (3) if a slatted or wire mesh floor is used in the
enclosure, it be constructed so that the animal cannot put any part
of its body through the spaces between the slats or through the
holes in the mesh. Our proposal specified that unless the dogs and
cats are on raised floors made of wire or other nonsolid material,
the primary enclosure would have to contain enough suitable,
previously unused litter to absorb and cover excreta.
   A small number of commenters specifically supported the
provisions of proposed Sec. 3.14(a) as written. One commenter
recommended that the regulations specify how an enclosure will be
built so that it may be secured to the frame or solid surface of
the transporting conveyance. Because of the variation in types of
cages and transport vehicles, we do not consider it appropriate to
require one method of fastening. We are therefore making no changes
based on this comment.
  A small number of commenters stated that requiring that a primary
enclosure be built so that an animal cannot put any part of its
body outside the enclosure in a way that could injure the animal is
excessive. Most of these commenters stated that such a requirement
might result in caging with poor ventilation. We do not agree. To
be used in transportation, primary enclosures must meet the
ventilation requirements in proposed Sec. 3.14(c). These
requirements are very similar to those in the existing regulations,
and have proven workable and appropriate. We also do not agree that
the provisions in question are excessive. They clearly state that
parts of the animals' body shall not protrude from the cage "in a
way that could result in injury." Such a requirement is reasonable
and necessary for the well-being of the animals.
  One commenter stated that mesh floors should be allowed if they
do not allow feet and/or toes to become caught, because too small
a mesh will not allow feces to pass through. We are making no
changes based on these comments. We do not agree that mesh that
allows passage of the animals' toes or feet will ensure that the
animals are not injured. Although we recognize that wider mesh will
more readily permit passage of feces, we do not consider the level
of convenience in cleaning cages to outweigh the need to protect
the animals from injury.
 
  Primary Enclosures Used to Transport Dogs and Cats: Cleaning--
Section 3.14(b)  

  In addition to retaining the cleaning and sanitization
requirements that appear in existing Sec. 3.12(e), we also proposed
to require in proposed Sec. 3.14(b) that if the dogs or cats being
transported are in transit for more than 24 hours, either the
enclosures be cleaned and the litter replaced, or other means, such
as moving the animals to a different enclosure, be used to prevent
the soiling of the dogs or cats by body wastes. We proposed further
that if it becomes necessary to remove the dog or cat from the
enclosure, in order to clean or to move the dog or cat to another
enclosure, this procedure must be completed in a way that
safeguards the dog or cat from injury and prevents escape.
  A small number of commenters opposed the proposed provisions
regarding cleaning of the enclosures and replacement of litter. A
small number of commenters recommended that such procedures be
required if the animals are in transit for more than 36 hours,
rather than 24 hours as proposed. Several commenters stated that
requiring cleaning of enclosures and replacement of litter could
create the risk of injury to carrier employees or escape of the
animals. Several commenters stated that cleaning and replacement of
litter be required only if the animal has soiled the litter already
in place. We are making no changes based on these comments. By
requiring cleaning of the primary enclosure only after 24 hours
have passed, the regulations will not require the cleaning of
enclosures that have not been soiled. Allowing an animal to stay
for 36 hours in a cage that has not been cleaned poses a risk to
the well-being of the animal. In addition to cleaning the cage, the
carrier has the option of moving the animal to another enclosure.
The issue of animals escaping while their enclosures are being
cleaned is addressed in Sec. 3.14(b) as proposed.
  Several commenters recommended that the regulations provide that
planned transport should not exceed 24 hours, and that when
transport does exceed that time, animals must be moved from their
primary enclosure to a clean one. We are making no changes based on
these comments. It is not necessary to regulate the duration of
transportation, because the regulations as proposed already include
practical options for sanitation of primary enclosures for
transportation that exceeds 24 hours.
 
  Primary Enclosures Used to Transport Dogs and Cats: Ventilation--
Section 3.14(c)
 
  The provisions we proposed regarding ventilation requirements for
primary enclosures used to transport dogs and cats were the same as
those in the existing regulations at Sec. 3.12(a) (4), except as
discussed below.
   While retaining in the proposal the majority of the existing
provisions regarding ventilation openings, we proposed to amend
those provisions to require that at least one-third of the
ventilation area be located on the upper one-half of the primary
enclosure. We also proposed in Sec. 3.14(c) (3) to require that the
ventilation openings of primary enclosures permanently affixed to
a conveyance be covered with bars, mesh, or smooth expanded metal
having air spaces. The only comments specifically addressing these
provisions supported them, and we are making no changes in this
final rule.  

  Primary Enclosures Used to Transport Dogs and Cats:
Compatibility--Section 3.14(d)
 
  Under the existing regulations, Sec. 3.12(b) required that live
dogs or cats transported in the same primary enclosure be of the
same species and be maintained in compatible groups. We proposed to
retain this wording in proposed Sec. 3.14(d), with the added
provision that dogs and cats that are private pets, are of
comparable size, and are compatible, may be transported together in
the same primary enclosure.
  We also proposed in Sec. 3.14(d) that: (1) Puppies or kittens 4
months of age or less may not be transported in the same primary
enclosure with adult dogs or cats other than their dams; (2) dog or
cats that are aggressive or vicious must be transported
individually in a primary enclosure, and (3) female dogs or cats in
season (estrus) must not be transported in the same primary
enclosure with any male dog or cat. The only comments specifically
addressing these provisions supported them, and we are making no
changes in this final rule.
 
  Primary Enclosures Used to Transport Dogs and Cats: Space and
Placement--  Section 3.14(e)
 
  We proposed to retain the requirement in existing Sec. 3.12(c)
that each dog or cat transported in a primary enclosure have
sufficient space to turn about freely in a standing position, and
to sit, stand, and lie in a natural position, and we proposed to
move that requirement to proposed Sec. 3.14(e) (1). The only
comments specifically addressing these provisions supported them,
and we are making no changes in this final rule.
 
  Primary Enclosures Used to Transport Dogs and Cats:
Transportation by Air--  Section 3.14(f)
 
  Because certain requirements for primary enclosures used in
surface transportation were omitted from the 1978 revisions to the
regulations, the provisions in existing Sec. 3.12(d) regarding the
number of animals that may be transported in a primary enclosure
were designed only for air transportation. We therefore proposed to
set forth the provisions of existing Sec. 3.12(d), with some
amendments, in proposed Sec. 3.14(f), titled "Transportation by
air." We proposed that no more than one live dog or cat, 4 months
of age or more, may be shipped in a primary enclosure when shipped
by air.
  We also proposed that no more than one live puppy, 8 weeks to 4
months of age, and weighing over 20 lbs. (9 kg) may be transported
in a primary enclosure. We proposed that it be permissible to
transport a maximum of two live puppies or kittens, 8 weeks to 4
months of age, and weighing 20 lbs. (9 kg) or less each, in the
same primary enclosure. In proposed Sec. 3.14(f)(4), we proposed to
retain the provision in existing Sec. 3.12(d) that weaned puppies
or kittens less than 8 weeks old and of comparable size, or puppies
or kittens that are less than 8 weeks old and are littermates
accompanied by their dam, may be shipped in the same primary
enclosure to research facilities. This last provision is limited by
the Act to transport to research facilities.
  In using 4 months as the age an animal must attain before it can
be transported, we departed from the existing regulations, which
use 6 months as the minimum age for transportation. The change we
proposed from 6 months to 4 months was made to achieve further
consistency with similar provisions throughout Subpart A. A number
of commenters opposed this change. One commenter stated that such
a change would make obsolete educational materials issued by the
transportation industry, and that the existing regulations have
proven adequate. Upon review of the issue, we agree with the
comment that no compelling reason exists to change the upper limit
in the provisions in question to 6 months. Further, we agree with
several of the commenters that, by reducing the upper limit to 6
months, and, in effect, requiring that all puppies over 4 months be
shipped alone, the regulations as proposed could promote undue
stress on many of the animals being transported. We are therefore
returning in this final rule to the 6-month upper limit.
   Several commenters opposed the provision in proposed Sec.
3.14(f)(4) allowing weaned puppies or kittens less than 8 weeks of
age to be shipped by air in the same primary enclosure when shipped
to research facilities. Such a provision is permitted by the Act
with regard to transportation to research facilities. We are
therefore making no changes to the proposed provision based on
these comments.
  Several commenters stated that it should be required that puppies
less than 12 weeks of age not be shipped by air. We do not agree.
Based on our experience enforcing the regulations, an 8-week
minimum has proven adequate to safeguard the well-being of the
animals shipped.
  Several commenters stated that flexibility and professional
discretion should be allowed in determining how many animals should
be shipped together. We do not agree. The existing regulations have
proven adequate and necessary to protect the well-being of the
animals shipped.
  Several commenters recommended that, instead of limiting the
weight of two puppies shipped together to no more than 20 lbs.
each, the regulations should limit the total weight of the two
puppies to no more than 50 lbs. We are making no changes based on
these comments. Such a change would in many cases require the use
of enclosures larger than those currently used, and would therefore
create a greater risk to the animals shipped. Based on our
experience enforcing the regulations, we have found that
approximately 20 lbs. per puppy is the maximum safe weight limit
for two animals shipped together.
 
  Enclosures Used to Transport Dogs and Cats: Transportation by
Surface Vehicle--Section 3.14(g)
 
  We proposed to add a new Sec. 3.14(g) regarding transportation by
surface vehicle. These provisions were proposed to reinstate
primary enclosure requirements that were inadvertently omitted when
the standards for the commercial transportation of dogs and cats
were revised in 1978. We proposed that a maximum of four dogs or
cats may be transported in the same primary enclosure when shipped
by surface vehicle, provided all other transportation requirements
in proposed Sec. 3.14 are complied with.
  Under our proposal, weaned live puppies or kittens less than 8
weeks of age, or puppies or kittens that are less than 8 weeks of
age, are littermates, and are accompanied by their dam, would be
permitted to be transported in the same primary enclosure when
shipped to a research facility, including Federal research
facilities.
  One commenter opposed the provisions. Another commenter stated
that the regulations for surface transport should be the same as
those for air transport. Upon review of the comments, we continue
to believe that the fundamental differences between surface
transportation and air transportation allow in most cases for
conditions where a greater number of dogs or cats can be safely
transported in the same enclosure by surface vehicle. For the most
part, therefore, we are making no changes to our proposal regarding
these provisions. We are making one change, however, to provide
that animals transported by privately owned aircraft will be
covered by the same provisions proposed for surface vehicle. The
nature of transport by most privately owned aircraft, and the
configuration of their interiors, allows for greater attention to
be paid to the animals during transport than does shipping by
commercial aircraft. Therefore, in most cases, transportation by
privately owned aircraft is more similar to transportation by
surface vehicle than to transportation by commercial aircraft.
  Several commenters expressed opposition to the proposed provision
limiting to four the number of dogs and cats shipped in one primary
enclosure by surface vehicle. We are making no changes based on
these comments. In the past, the number of dogs and cats limited to
one primary enclosure was 12. However, our experience enforcing
this standard demonstrated that shipping this number of animals
together was deleterious to their health and well-being. We
consider a maximum of four dogs or cats per enclosure to be
adequate to ensure the health and well-being of the animals.      
   Several commenters opposed the provisions in proposed Sec.
3.14(g)(2) allowing weaned puppies or kittens less than 8 weeks of
age to be shipped by surface vehicle in the same primary enclosure.
As with air transportation, such an exception is authorized by the
Act with regard to transportation to research facilities. We are
therefore making no changes to the proposed provisions based on
these comments.
 
  Primary Enclosures Used to Transport Dogs and Cats: Accompanying
Documents and Records--Section 3.14(h).
 
  We proposed to require in proposed Sec. 3.14(h) that shipping
documents accompanying the shipments either be maintained by the
operator of the conveyance or be securely attached in a readily
accessible manner to the outside of the primary enclosures in a way
that allows them to be detached for examination and securely
reattached. We also proposed to require that instructions for food
and water and for administration of drugs, medication, and other
special care be attached to each primary enclosure in a manner that
makes them easy to notice, to detach for examination, and to
reattach securely. Several commenters specifically supported the
proposed provisions as written. Several commenters stated that the
regulations should allow for the use of non-detachable food and
water instructions, because detachable ones might be lost. The
commenters' recommendation has been addressed in Sec. 3.13(c) of
this rule, which provides that food and water instructions must be
securely attached to the primary enclosure. We have made
appropriate wording changes in Sec. 3.14(h) to convey this intent.
 
  Primary Conveyances--Section 3.15
 
  Under the requirements for air transportation in proposed Sec.
3.15(d), we specified that during transportation, including time
spent on the ground, live dogs and cats must be transported in
cargo areas that are heated or cooled as needed to maintain the
required ambient temperature. We also proposed that cargo areas
would have to be pressurized while the conveyance is in the air,
unless it is flying under 8,000 ft. In proposed Sec. 3.15(e), we
proposed to require that during surface transportation, auxiliary
ventilation, such as fans, blowers or air conditioning, be used in
animal cargo spaces containing live dogs or cats when the ambient
temperature within the animal cargo space is 85 deg.F (29.5 deg.C)
or higher. Additionally, as proposed, the ambient temperature would
not be permitted to exceed 95 deg.F (35 deg.C) at any time; nor to
exceed 85 deg.F (29.5 deg.C) for a period of more than 4 hours; nor
to fall below 45 deg.F (7.2 deg.C) for a period of more than 4
hours; nor to fall below 35 deg.F (1.7 deg.C) at any time. We
proposed to add requirements in proposed Sec. 3.15(c) that a
primary enclosure be positioned in a primary conveyance in a way
that provides protection from the elements. Existing Sec. 3.13(f)
requires that dogs and cats not be transported with any material,
substance or device that may reasonably be expected to harm the
animals. In proposed Sec. 3.15(h), we proposed to clarify the
intent of that requirement to indicate that the material, substance
or device may not accompany the animals only if the shipment is
conducted "in a manner" that may reasonably be expected to harm the
dogs and cats or cause inhumane conditions.
  A small number of commenters specifically supported the
provisions of proposed Sec. 3.15 as written. A small number of
commenters stated that the proposed heating and cooling
requirements for air cargo areas were too stringent. One commenter
stated that carriers do not have the capability to heat and cool
the ground conveyances used to transport animals to and from the
terminals and the aircraft. The commenters stated further that
compliance with proposed provisions would be impossible because
carriers do not have the capability to heat or cool the cargo
compartment while the aircraft is on the ground. Upon review of the
comments, we agree that the proposed provisions would be
impracticable. Due to Federal aviation safety requirements, it
would be impossible to comply with the proposed standards when the
aircraft is on the ground. We are therefore amending Sec. 3.15(d)
as proposed to delete the provision that the standards apply to
aircraft on the ground, and to periods when the animals are being
transported. However, we are retaining provisions in Sec. 3.19 as
proposed that include safeguards for animals moved on transporting
devices.
  One commenter recommended that the regulations should include
specific temperature limits for transport in air cargo areas. Due
to the nature of cargo areas on aircraft, such a requirement would
be impractical. Further, based on our experience enforcing the
regulations, we are not aware of significant problems with
temperature extremes during flight.
   One commenter specifically supported the provisions of proposed
Sec. 3.15(e) as written. Several commenters stated that the
temperature limits in proposed Sec. 3.15(e) regarding surface
transportation were too lenient, and should include separate
requirements for sick, or very old or very young animals. While we
encourage additional care of animals with special needs, we do not
believe that it would be practical to impose diverse temperature
requirements on the same surface vehicles based on the variety of
animals it was carrying. Additionally, provisions in Sec. 3.14 as
proposed, and in Sec. 3.17 as proposed, restrict the transportation
of very young or sick animals, respectively.
  One commenter recommended that the regulations require that
auxiliary ventilation be used when temperatures reach 75 deg.F, and
also recommended that temperatures should not exceed 75 deg.F for
more than 4 hours. The commenter supplied no additional data to
support this recommendation, and we do not consider such a change
necessary to ensure the well-being of animals transported.
  We are making several changes to Sec. 3.15(e) that are consistent
with changes we are making elsewhere in this final rule. Upon
review of the comments received, we agree that animals will be
adequately protected from extreme temperatures for extended periods
of time if temperatures in cargo areas during surface
transportation do not exceed 85 deg.F for more than 4 hours, nor
fall below 45 deg.F for more than 4 hours. Therefore, in this final
rule, we are removing the provisions in proposed Sec. 3.15(e) that
temperatures may not exceed 95 deg.F at any time, nor fall below 35
deg.F at any time. These amendments will minimize disruption to
normal shipping practices, while at the same time continuing to
safeguard the well-being of the animals shipped.
  One commenter recommended that the regulations require that
animals be transported in trucks that provide a certain number of
air changes per hour, and that these ventilation systems be
operated at all times the vehicle is not in motion. We are making
no changes based on this comment. We consider the regulations set
forth in this final rule to provide adequate standards for the
protection of animals being transported. As long as a primary
conveyance is in compliance with the standards, we do not consider
it relevant how the standards are met.
  One commenter recommended that specific standards be set forth
regarding trailers and buses used as primary conveyances. We
consider the proposed wording adequate to address the health and
safety of animals being transported, and are making no changes
based on these comments.  

  Food and Water Requirements--Section 3.16
 
  We set forth requirements regarding food and water for dogs and
cats being transported, contained in the existing regulations in
Sec. 3.14, in proposed Sec. 3.16. We also proposed to remove the
provision concerning the minimum amount of water that must be
offered to dogs or cats under 16 weeks of age.
   Existing Sec. 3.14(a) requires that dogs and cats be offered
water within 12 hours after the start of transportation or
acceptance for transportation. Existing Sec. 3.14(b) requires that
puppies and kittens be provided food at least once every 12 hours,
and dogs and cats over 16 weeks of age be provided food at least
once every 24 hours. We proposed in Secs. 3.16 (a) and (b) that the
time periods for providing food and water to the animals after
transport or acceptance for transport would begin at the time the
dog or cat was last provided food and water before initiation of
transport or acceptance for transport.
  In order to minimize the instances where carriers and
intermediate handlers have to provide food and water to the animals
immediately after accepting them for transport, we proposed that
consignors subject to the regulations be required to certify that
each dog or cat was provided water within 4 hours before delivery
for transportation and that each dog or cat was provided food
within 12 hours before delivery for transportation. We also
proposed to require that the certification include the date and
times the food and water was offered.
  A number of commenters addressed the feeding and watering
provisions in proposed Sec. 3.16. Several supported these
provisions as proposed. A small number of commenters recommended
that dogs and cats in transport, especially young animals, be fed
and watered more often than as proposed. One commenter stated that
water should be available continuously during transport. Based on
our experience enforcing the regulations, we do not consider such
additional feeding and watering necessary or practical, and are
making no changes based on this comment. In particular, the
provision of water at all times during transit would promote
wetting and contamination of the primary enclosure and the animal.
  One commenter opposed the requirements of proposed Secs. 3.16 (a)
and (b), regarding the frequency of feeding and watering of animals
in transit. The commenter stated that the regulations as proposed
would create logistical problems for carriers, both in carrying out
the feeding and watering, and in keeping track of when such feeding
and watering must take place. The commenter recommended that it be
required that the consignor offer food and water to the animal
immediately before shipment. As we stated elsewhere in this
supplementary information under the heading "Consignments to
Carriers and Intermediate Handlers--Sec. 3.13," we do not consider
it wise to give food or water to an animal immediately before
transportation, as it may become sick and soil its cage, or
aspirate food or water into its lungs. However, as we described
under that same heading, we are amending this final rule to reduce
the logistical difficulties carriers might experience, both by
requiring that animals be offered food and water within 4 hours of
delivery for transport, and by requiring that an explicit schedule
for feeding and watering during the next 24-hour period be securely
attached to the primary enclosure by the consignor.
  One commenter stated that the shipper should be required to
provide an adequate amount of food and water along with the animals
shipped. We do not consider such a requirement practical or
necessary. Under normal circumstances, it should not be necessary
to feed and water the animals while they are in transport. When an
animal is in transport for an extended period of time, it is the
responsibility of the carrier or intermediate handler to provide
food and water as required in Sec. 3.16.
  One commenter stated that provision of food high in water content
should be allowed in place of water. We are making no changes based
on this comment. It would not be evident in each case what amount
of food high in water content would be adequate as a replacement
for water alone.
  One commenter recommended that it be required that instructions
for feeding and watering be securely attached to the primary
enclosure. We have included this provision, as discussed above.
Several commenters expressed the opinion that one receptacle is
sufficient for both food and water. We do not consider it
reasonable or practical to allow use of the same receptacle for
food and water. Separate receptacles are necessary to allow for
feeding and watering at the same time, as required by the standards
in this final rule.
   We proposed to set forth the provisions in existing Sec.
3.14(d), concerning a carrier's or intermediate handler's
responsibility regarding written feeding and watering instructions,
in proposed Sec. 3.16(c). We proposed to add the provision that
food and water receptacles must be securely attached inside the
primary enclosure and be placed so that the receptacles can be
filled from outside the enclosure without opening the door. We
proposed this provision based on information from carriers and
intermediate handlers, which indicated to us that when a primary
enclosure is opened to provide food or water to the animal inside,
there is often a significant risk of the animal escaping from the
enclosure.
   We have made several nonsubstantive formatting changes to Sec.
3.16. To eliminate duplicative provisions, we have combined
paragraphs (a) and (b) as proposed, and have redesignated
subsequent paragraphs accordingly.  

  Care in Transit--Section 3.17
 
  We proposed to set forth in proposed Sec. 3.17 the provisions
regarding care in transit in existing Sec. 3.15, with some minor
reformatting for readability and several additions to the existing
provisions. In proposed Sec. 3.17(a), we proposed to allow either
the operator of the conveyance or a person accompanying the
operator to check on the dogs or cats being transported, but
proposed to make it the responsibility of the regulated person
transporting the dogs and cats to ensure that this observation is
carried out. Additionally, in proposed Sec. 3.17(a), we proposed to
use language that specifies that dogs or cats in obvious physical
distress must be given veterinary care at the closest available
veterinary facility.
   A small number of commenters specifically supported the
provisions of proposed Sec. 3.17 as written. One commenter stated
that observing the dogs or cats at least every 4 hours, as
proposed, is unnecessary when temperature-  controlled vehicles are
used. We do not agree. Excessively cold or hot temperatures are not
the only problems that may be encountered in the vehicle or with
the animals themselves.
  One commenter stated that the regulations should require that
necessary veterinary care be provided "as soon as possible," not at
the closest veterinary facility, as proposed, because not all
clinics have proper facilities. We are making no changes based on
this comment. By using the term "closest available," we consider
the language as proposed to adequately state our intent, and to
address the concerns of the commenter.
   In proposed Sec. 3.17(c), we proposed to add an exception to the
existing regulations prohibiting transport in commerce of a dog or
cat in physical distress, to allow transport for the purposes of
obtaining veterinary care for the condition. We also proposed to
add a paragraph, Sec. 3.17(e), to specify that these transportation
standards remain in effect and must be complied with until a
consignee takes physical delivery of the animal if the animal is
consigned for transportation, or until the animal is returned to
the consignor.
  A number of commenters supported the provisions of proposed Sec.
3.17 as written. One commenter opposed the provision that would
make air carriers responsible for determining whether an animal is
in distress. The commenter stated that airline employees should be
responsible only for reporting any suspicious symptoms or behavior
to the veterinarian. We are making no changes based on these
comments. The provisions as proposed require only that the carriers
determine if an animal is in obvious physical distress. The
carriers are not required to interpret symptoms or other signs. If
the animal is in obvious distress, then the carrier must arrange
for any needed veterinary care.
 
  Terminal Facilities--Section 3.18
 
  We proposed to require that any person subject to the regulations
who transports dogs or cats and who holds them in animal holding
areas must keep the animals away from inanimate cargo, clean and
sanitize the area, have an effective pest control program, provide
ventilation, and maintain the ambient temperature within certain
prescribed limits. Also, we proposed that the length of time that
dogs and cats can be maintained in terminal facilities upon arrival
after transportation would be the same as that proposed in Sec.
3.13(g). Several commenters recommended that the proposed
regulations be clarified with regard to the commingling of dogs and
cats with inanimate cargo. We consider the regulations as proposed
to adequately express our intent for enforcement purposes, and are
making no changes based on the comments. One commenter stated that
the proposed cleaning requirements for terminals were too rigid,
because the animals there are contained in primary enclosures.
While we agree that the animals themselves will not largely
contribute to the need for sanitation, we consider thorough
cleaning of the animal holding area to be necessary for the
animals' well-being, due to the wide variety of other materials
that will normally be kept in such facilities.
  In proposed Sec. 3.18(c), we provided that ventilation must be
provided in any animal holding area in a terminal facility
containing dogs or cats. A small number of commenters recommended
that the regulations specifically require that fresh air be
provided. We do not agree. In many cases, recycled air is of higher
quality than what would ordinarily be considered "fresh air."
  As well as retaining the temperature requirements in the existing
regulations, we proposed to add in Sec. 3.18(d) the provision that
the ambient temperature in the animal holding area of terminal
facilities may not fall below 35 deg.F (1.7 deg.C) at any time live
dogs or cats are present. The regulations we proposed specified a
procedure for measuring the ambient temperature.
  A small number of commenters supported the provisions of proposed
Sec. 3.18 as written. One commenter stated that the temperature
requirements for housing facilities should also apply to holding
facilities. Other commenters were divided on whether the proposed
temperature standards were too stringent or too lenient. Upon
review of the comments, we are making several changes to the
temperature requirements in Sec. 3.18. Essentially, we agree that
the temperature limits for holding facilities should coincide with
those of housing facilities. Therefore, in this final rule, we are
providing that the ambient temperature in an animal holding area
containing dogs or cats must not fall below 45 deg.F (7.2 deg.C)
for more than 4 consecutive hours or rise above 85 deg.F (29.5
deg.C) for more than 4 consecutive hours at any time dogs or cats
are present.
 
  Handling--Section 3.19
 
  The existing regulations imposed duties on carriers and
intermediate handlers for proper handling and movement of dogs and
cats. We included provisions in proposed Sec. 3.19 to impose the
same duties on any person subject to the regulations when handling
a dog or cat at any time during the course of transportation in
commerce, so that the animals' health, safety and well-being will
be protected at all times during transport. As explained in the
proposal, this would include movement from an animal holding area
of a terminal facility to a primary conveyance and from a primary
conveyance to a terminal facility. This would also include movement
of the dog or cat on a transporting device used to transfer the
animal from a primary conveyance to an animal holding area and vice
versa, movement from one primary conveyance to another, and
movement from place to place within the terminal facility.
   One commenter stated that requiring that proposed minimum and
maximum temperature limits not be exceeded for more than 45 minutes
was arbitrary. We disagree. Forty-five minutes is an adequate
period of time to transport animals to and from aircraft and
holding areas, while at the same time safeguarding their health and
well-being.
  We proposed to require in proposed Sec. 3.19(b) that care be
exercised to avoid handling primary enclosures in such a way that
dogs or cats in the primary enclosures are caused physical harm or
emotional distress. Because of problems and complaints concerning
the handling of dog and cat shipments in baggage areas by airlines,
we proposed that primary enclosures containing dogs or cats must
not be placed on unattended conveyor belts or on elevated conveyor
ramps such as baggage claim conveyor belts and inclined conveyor
ramps leading to baggage claim areas. We proposed to allow primary
enclosures to be placed on inclined conveyor ramps that are used to
load and unload aircraft, if there is an attendant at each end of
the conveyor belt.
   One commenter stated that using the term "must avoid" in
describing methods of handling primary enclosures is too
restrictive, and does not take into account accidents. We are
making no changes based on this comment. It is reasonable and
practicable to take steps to avoid accidents, and is necessary for
the well-being of the animals being transported.
  One commenter stated that the word "emotional" should be deleted
with regard to avoiding causing the animals distress, because it is
accepted that animals other than man cannot experience emotions. We
do not agree that animals do not show emotion. However, we are
deleting the word "emotional" in Sec. 3.19, to allow for broader
enforcement of the term "distress."  

  Subpart D--Nonhuman Primates
 
  Regulations on the humane handling, care, treatment, and
transportation of nonhuman primates are contained in 9 CFR part 3,
subpart D. These regulations include minimum standards for
handling, housing, social grouping and separation of species,
feeding, watering, sanitation, ventilation, shelter from extremes
of weather and temperature, veterinary care, and transportation.
  We proposed to revise and rewrite the existing regulations based
on our experience administering them under the Act. We also
proposed to amend the regulations to add requirements for a
physical environment adequate to promote the psychological well-
being of nonhuman primates. This is specifically required by the
1985 amendments to section 13 of the Act. (See 1752, 99 Stat. 1645,
Public Law 99-198, amending 7 U.S.C. 2143.) We discuss each topic
covered in our proposed regulations below.
  The regulations we proposed in our revision of subpart D are
minimum standards to be applied to all species of nonhuman
primates. In our proposal we retained the existing footnote 1 of
subpart D, although we revised it to reflect the need to promote
the psychological well-being of nonhuman primates. Rather than
stating that "discretion" must be used due to the variation in
species, we proposed to require that these minimum standards be
applied in a manner that is considered appropriate for the relevant
species in accordance with customary and generally accepted
professional and husbandry practices.
  The Act applies to all nonhuman primates, whether living or dead.
The standards we proposed are principally applicable to live
nonhuman primates. In footnote 1 of our proposal, we indicated that
the proposed regulations apply only to live nonhuman primates,
unless stated otherwise.
   A small number of commenters stated that the proposed
regulations did not represent the recommendations of the expert
committee on nonhuman primates that was convened prior to the
development of the proposed regulations. In soliciting
recommendations from the expert committee, we considered it one
source among many with the experience and expertise to advise us in
the development of the proposed regulations. Throughout this
rulemaking process, we have consistently invited information from
all informed parties. This final rule represents the best
information available to us, including that supplied to us by the
expert committee.
  One commenter recommended that the regulations require that each
facility develop a care and use plan to address all aspects of
nonhuman primate care, including physical aspects of the facility.
Several commenters stated that a separate plan should be required
for each species. Several commenters opposed the documentation of
a plan for promoting the psychological well-being of nonhuman
primates, as discussed below, stating that written procedures are
not required for equally important husbandry practices under the
proposed regulations. We disagree that a written, comprehensive
plan addressing all aspects of nonhuman primate care is necessary.
The specific standards that each facility must meet are set forth
in the regulations in this final rule. A plan is necessary with
regard to the psychological well-being of nonhuman primates,
however, due to the many variables affecting how best to achieve
psychological well-being in different species and animals.
   One commenter stated that the use of primates in basic research
should not be allowed until a research facility can demonstrate
that it can maintain the animals' psychological well-being. We are
making no changes based on this comment. Under the Act, the
Department is not authorized to promulgate regulations that
interfere with the design, outline or guidelines of actual
research.
  The heading for subpart D as proposed contains a footnote
reference, which indicates that because of the great diversity
among nonhuman primates, the standards in subpart D must be applied
in accordance with the customary and generally accepted
professional and husbandry practices considered appropriate for
each species, and necessary to promote their psychological well-
being. A number of commenters recommended that the footnote also
state that the minimum standards must be applied so as to allow the
nonhuman primates to express the species-specific behavior of each
individual species. We do not consider such an addition necessary.
Consideration of species-typical behavior is already included in
Sec. 3.81 as proposed as a minimum standard.
 
  Housing Facilities and Operating Standards
 
  Existing Secs. 3.75 through 3.77 provide requirements for
facilities used to house nonhuman primates. Existing Sec. 3.75,
"Facilities, general," contains regulations pertaining to housing
facilities of any kind. It is followed by existing Sec. 3.76,
"Facilities, indoor," and Sec. 3.77, "Facilities, outdoor." We
proposed to amend these sections to provide for an environment that
better promotes the psychological well-being of nonhuman primates.
We also proposed to add sections that provide regulations
specifically governing two other types of housing facilities used
to house nonhuman primates, sheltered housing facilities and mobile
or traveling housing facilities. The term "sheltered housing
facility" is defined in part 1 as "a housing facility which
provides the animals with shelter; protection from the elements;
and protection from temperature extremes at all times. A sheltered
housing facility may consist of runs or pens totally enclosed in a
barn or building, or of connecting inside/outside runs or pens with
the inside pens in a totally enclosed building." The term "mobile
or traveling housing facility", also defined in part 1 of the
regulations, means "a transporting vehicle such as a truck,
trailer, or railway car, used to house animals while traveling for
exhibition or public education purposes."
   Some of the requirements we are issuing for housing facilities
are applicable to housing facilities of any kind. As in the
existing regulations, we include these standards of general
applicability in one section, Sec. 3.75, in which we also include
many of the provisions of existing Sec. 3.75. Additionally, we are
amending the existing regulations that are specific to particular
types of housing facilities, and include those provisions in
separate sections of the final rule. In some cases, where the
existing regulations would have been unchanged in substance, we
made wording changes to clarify the intent of the regulations.
  A number of commenters supported the provisions of proposed Sec.
3.75 as written. Several commenters recommended that we require
that housing facilities comply with Federal, State, and local laws
and regulations relating to housing facilities for animals, so as
to allow uniform enforcement by various jurisdictions. We are
making no changes based on these comments. We are authorized under
the Act to establish minimum standards for animal welfare, and this
mandate may differ from those of other Federal, State, or local
laws with regard to housing facilities.
 
  Housing Facilities, General
 
  Housing Facilities: Structure; Construction--Section 3.75(a)  

  Because nonhuman primates vary widely in size, weight, and range
of activity, the design, composition and structural strength
required of housing facilities varies as well. We proposed to
require in proposed Sec. 3.75(a) that the design, composition, and
structural strength of a housing facility be appropriate for the
particular species housed in it. For example, the actual structural
requirements for a housing facility would differ depending upon
whether it is used to house marmosets, a small nonhuman primate
species, or great apes, a typically large species weighing more
than 88 lbs. (40 kg.).
   We also proposed in Sec. 3.75(a) that the housing facility be
constructed so as to restrict other animals and unauthorized humans
from entering. A number of commenters addressed the issue of
restricting the entrance of unauthorized humans, stating that the
responsibility for maintaining adequate security at a facility
belongs to the facility, and not to the Department. Others were
concerned that, even if the facility made reasonable efforts to
prevent the entry of unauthorized humans, the facility would still
be liable for the entry of trespassing individuals. Upon review of
the comments, we agree that instances of forced entry at a
regulated facility should not be violations of these regulations.
In this final rule, we are therefore removing the requirement, as
proposed in Secs. 3.75 (a) and (b), that facilities restrict the
entry of unauthorized humans.
  A small number of commenters stated that the provision that
facilities restrict the entrance of other animals should be changed
to require only that the facilities restrict other animals from
"easy access." We continue to believe that the provision is
necessary and appropriate as proposed. Entry by other animals can
be prevented by structural safeguards.
 
  Housing Facilities: Condition and Site--Section 3.75(b)
 
  In proposed Sec. 3.75(b), we proposed to add the requirement that
a dealer's or exhibitor's housing facility be physically separated
from any other business. When a housing facility is located on the
same premises as any other business, there is likely to be
increased traffic and activity, which is known to be distressful to
nonhuman primates. Also, when more than one dealer maintains
facilities on the premises, it can be difficult to determine which
dealer is responsible for which animals and for the conditions of
the facility. This has made inspection and enforcement of the
regulations difficult. To avoid these difficulties we proposed to
require that housing facilities, other than those maintained by
research facilities and Federal research facilities, be physically
separated from other businesses. As proposed, the means of
separation used would have had to have been constructed so that it
prevents unauthorized humans, and animals the size of dogs, skunks,
and raccoons, from going through it or under it. We did not propose
to impose these requirements upon research facilities because they
are often part of a larger sponsoring establishment, such as a
university or pharmaceutical company, and responsibility for animal
and site conditions rests with that establishment. Therefore, we
have not encountered the enforcement difficulties noted above with
respect to research facilities. As discussed in this supplementary
information under the preceding heading, we are removing the
requirement that the means of separation prevent access by
unauthorized humans.
  We also proposed in Sec. 3.75(b) that housing facilities and
areas used for storing animal food and bedding be kept free of any
accumulation of trash, weeds, and discarded material, in order to
prevent unsanitary conditions, diseases, pests, and odors. The need
for orderliness applies particularly to animal areas inside of
housing facilities, and we proposed that they must be kept free of
clutter, including equipment, furniture, or stored material, except
for materials actually used and necessary for cleaning the area,
and fixtures and equipment necessary for proper husbandry practices
and research needs. The only commenters who specifically addressed
proposed Sec. 3.75(b) supported those provisions as written, and we
are making no changes in this final rule.
 
  Housing Facilities: Surfaces; General Requirements--Sections 3.75
(c)(1) and (c)(2)
 
  In proposed Sec. 3.75(c), we proposed to include requirements
concerning housing facility surfaces that are common to all types
of facilities. The existing regulations require that interior
surfaces of indoor housing facilities be constructed and maintained
so that they are substantially impervious to moisture and may be
readily sanitized. They do not specify frequency of sanitization.
They also do not provide any requirements for building surfaces
used in outdoor housing facilities.
  We proposed to remove the requirement that housing facilities
have impervious surfaces, because many can simulate more natural
environments by providing dirt floors and planted areas that are
beneficial to the nonhuman primates' psychological well-being. In
proposed Sec. 3.75(c)(1), we provided that floors could be made of
dirt, absorbent bedding, sand, gravel, grass, or other similar
material that can be readily cleaned or is removable.
   We proposed that any surfaces that come in contact with nonhuman
primates would have to be maintained regularly so that they are
kept in good condition. As proposed, interior surfaces and
furniture-type fixtures or objects within the facility, such as
perches, swings, and dens, would have to be made so that they can
be readily cleaned and sanitized, or removed or replaced when worn
or soiled. We proposed to add this requirement because we would no
longer require impervious surfaces under our proposal, in an effort
to encourage provision of more natural environments for the
animals. Because porous surfaces may not be adequately sanitized,
we proposed to require instead that they be removed or replaced
when worn or soiled. This requirement appeared in our proposal in
proposed Sec. 3.75(c)(2). Otherwise, as proposed, the manner of
construction and the materials used would have to allow for
cleaning and sanitization.
  In proposed Sec. 3.75(c)(1), we proposed to require that surfaces
that come in contact with nonhuman primates be free of jagged edges
or sharp points that could injure the animals, as well as excessive
rust that prevents the required cleaning and sanitization or
affects the structural integrity of the surfaces.
  Many commenters supported Sec. 3.75(c)(1) as written. One
commenter stated that proposed Sec. 3.75(c)(1) did not adequately
convey that rust can be a health hazard. The regulations as
proposed prohibit excessive rust. Based on our experience enforcing
the regulations, however, we have not found superficial rust to be
a problem with regard to sanitization. We are therefore making no
changes based on this comment.
 
  Housing Facilities: Surfaces: Cleaning--Section 3.75(c)(3)  

  In proposed Sec. 3.75(c)(3), we proposed to require that hard
surfaces that come in contact with nonhuman primates be spot-
cleaned daily and sanitized in accordance with Sec. 3.84 of the
proposed regulations to prevent any accumulation of excreta or
disease hazards, unless the nonhuman primates engage in scent
marking. Under those provisions, such hard surfaces in indoor
primary enclosures would have to be sanitized at least once every
two weeks. As we discussed in the supplementary information of our
proposal, scent marking is an inborn method used by certain species
of nonhuman primates in nature (such as species of prosimians,
marmosets, tamarins, and callimico) to establish their territory
and for identification by other members of the species. Animals can
detect that another member of the species has occupied a site by
the scent left behind and can locate companions in this manner. It
is distressful for these nonhuman primates to have their scent
marks eliminated, since they lose their territorial claim and their
frame of reference. We therefore proposed that hard surfaces that
come in contact with nonhuman primates that scent mark be sanitized
or replaced at regular intervals that would be determined in
accordance with generally accepted professional and husbandry
practices.
  In proposed Sec. 3.84(b)(3), we provided various methods of
sanitizing primary enclosures. Because these methods are effective
in general for sanitization of hard surfaces that nonhuman primates
come in contact with, except for dirt floors and planted areas,
under our proposal any of them could be used for the sanitization
required by proposed Sec. 3.75(c)(3). The method of sanitization
would be determined by the housing facility operator. As proposed,
planted enclosures and floors made of dirt, absorbent bedding,
sand, gravel, grass, or other similar material would have to be
raked or spot-cleaned with sufficient frequency to ensure all
animals the freedom to avoid contact with excreta. We proposed that
contaminated flooring material would have to be removed if raking
and spot-cleaning does not eliminate odors, diseases, insects,
pests, or vermin infestation. The material could then be replaced
or a different material could be used. As proposed, all other
surfaces of housing facilities would have to be cleaned and
sanitized when necessary to satisfy generally accepted husbandry
standards and practices.
  A small number of commenters opposed what they termed rigid
specifications for cleaning practices, including daily spot-
cleaning, and recommended that the regulations instead allow
flexibility through the use of professional judgment. We do not
consider the regulations as proposed to be unnecessarily stringent.
For example, with regard to floors not made of hard materials, the
proposed regulations require only that they be raked or spot-
cleaned with sufficient frequency to ensure all animals the freedom
to avoid contact with excreta. Hard surfaces with which the animals
come in contact must be cleaned daily, but only by spot-cleaning,
to prevent accumulation of excreta and disease hazards. Such
cleaning is necessary to ensure the well-being of the animals
housed.
  A small number of commenters recommended that the regulations
require daily spot-cleaning, even for animals that scent mark. An
equal number of commenters opposed spot-cleaning for scent marking
species. Upon review of the issue, we determined that spot-
cleaning, by its nature, will not be disruptive of scent marking
species, and, as we stated in our proposal, is necessary in general
for adequate cleaning. We are therefore amending this final rule to
require that daily spot-cleaning be carried out for all species,
even those that scent mark.
  The regulations as proposed required cleaning to prevent an
accumulation of excreta. A number of commenters stated that it
would be impossible to prevent any accumulation of excreta, and
recommended that we delete the word "any" before the word
"accumulation." We consider the commenters' point a valid one and
are making the recommended change.
  Several commenters recommended that the cages of scent marking
species be intensely sanitized in sections every 24 hours, to allow
scent to remain in enclosures at all times. We do not consider it
practical or necessary to specifically require such a sanitization
procedure. However, there is nothing in the proposed regulations to
prohibit such a procedure, provided the enclosure as a whole is
adequately sanitized in accordance with the regulations.
  A small number of commenters stated that certain types of primary
enclosures, such as hanging cages, should not have to be sanitized
at least every 2 weeks, given the fact that waste material can drop
freely from such enclosures and the fact that periodic removal of
nonhuman primates from their enclosure can cause stress to the
animals. We are making no changes based on these comments. Even
cages such as hanging cages will become soiled and will retain a
certain amount of waste material. We consider the sanitization
requirements as proposed necessary to minimize the risk of
contamination and disease spread.
  One commenter stated that it was unclear whether Sec. 3.75(c)(3)
as proposed may be applied as a standard looser than those set
forth in proposed Sec. 3.84 for the sanitization of primary
enclosures. There is nothing contradictory between Secs. 3.75 and
3.84, and we do not consider further clarification necessary.
  Several commenters stated that enclosures for scent marking
species should be spot-cleaned with soap and water daily. Although
the use of soap and water is an effective method of cleaning, it is
not the only effective method. We therefore do not consider it
appropriate to require it as the only allowable cleaning method.
 
  Housing Facilities: Water and Electric Power--Section 3.75(d)  

  Existing Sec. 3.75(b) provides requirements for water and
electric power. It specifies that reliable and adequate water and
electric power must be made available "if required to comply with
other provisions of this subpart." In the proposed rule, we set
forth the provisions concerning water and electric power in Sec.
3.75(d). We proposed there to eliminate the qualifying statement
cited above, and to require reliable electric power that is
adequate for heating, cooling, ventilation, lighting, and other
husbandry requirements, and potable running water for the nonhuman
primates' drinking needs and adequate for cleaning and for carrying
out other husbandry requirements.
  Many commenters supported the provisions of Sec. 3.75(d) as
written. One commenter opposed these provisions without
explanation. Lacking evidence to the contrary, we continue to
consider the provisions as proposed necessary and appropriate, and
are making no changes in this final rule.  

  Housing Facilities: Storage--Section 3.75(e)
 
  We proposed in Sec. 3.75(e) to expand the regulations in existing
Sec. 3.75(c) concerning proper storage of food and bedding
supplies. We proposed to retain the requirements that food and
bedding be stored so as to protect them from vermin infestation or
contamination, and proposed that food requiring refrigeration must
be stored accordingly. We proposed requirements to ensure further
the quality of the physical environment surrounding nonhuman
primates. We proposed to add a requirement that open food and
bedding be stored in leakproof containers with tightly fitting lids
to prevent spoilage and contamination. In proposed Sec. 3.75(e), we
proposed to require that substances that would be toxic to nonhuman
primates be stored away from food storage and preparation areas,
but proposed to allow them to be stored in the animal areas if kept
in cabinets.
  Under our proposal, only the food and bedding in use could be
kept in animal areas; when they were not in use they would have to
be properly stored. In addition, as proposed, all food would have
to be stored so as to prevent contamination or deterioration of its
nutritive value. The supplies would have to be stored off the floor
and away from the walls, to allow cleaning around and underneath
them.
  A small number of commenters specifically supported proposed Sec.
3.75(e) as written. A number of commenters stated that storage of
food and bedding near walls should be permissible. One commenter
stated that if food and bedding supplies can be moved for cleaning,
it should be permitted that they be stored next to a wall. We
consider the provision restricting storage near walls necessary,
both to allow for cleaning and to minimize problems with vermin,
and we are making no changes based on these comments.
   Several commenters stated that the regulations should prohibit
all storage of toxic materials in animal areas. If toxic substances
are stored in cabinets, the risk of their causing harm to animals
is minimal. However, we agree that to reduce the danger to animals
as much as possible, toxic substances stored in animal areas should
be limited to those required for normal husbandry practices. We are
therefore adding such a provision in this final rule.
 
  Housing Facilities: Drainage and Waste Disposal--Section 3.75(f) 

  The regulations we proposed would continue to require that
housing facilities provide for removal and disposal of animal and
food wastes, bedding, dead animals, and debris, as provided in
existing Sec. 3.75(d). We proposed to clarify this requirement so
that it clearly applies to all fluid wastes, and to include a
requirement that arrangements must be made for regular and frequent
collection, removal, and disposal of wastes, in a manner that
minimizes contamination and disease risk. The regulations as
proposed also contained the requirements that trash containers be
leakproof and tightly closed, and that all forms of animal waste,
including dead animals, be kept out of food and animal areas.
  Requirements for drainage systems are provided in existing Secs.
3.76(e) and 3.77(d) for indoor and outdoor facilities,
respectively. Because all types of animal housing facilities,
including sheltered housing facilities and mobile or traveling
housing facilities, require a proper disposal facility and drainage
system, we proposed to consolidate all drainage and waste disposal
requirements in proposed Sec. 3.75(f). We proposed to expand the
requirements for drainage systems to provide that in all types of
housing facilities, whether open or closed drains, waste sump
ponds, or settlement ponds are used, they must be properly
constructed, installed, and maintained, and they must minimize
vermin and pest infestation, insects, odors, and disease hazards.
As part of this safeguard, we proposed to require that waste sump
ponds and settlement ponds be located an adequate distance from the
animal area of the housing facility to prevent problems with
vermin, pests, odors, insects, and disease hazards. As proposed,
drainage systems would also have to eliminate animal wastes and
water rapidly, so that the animals can stay dry. Traps would be
necessary in closed drainage systems to prevent the backflow of
gases and the backup of sewage onto the floor. Additionally, we
proposed that puddles of standing water must be mopped up or
drained so that the animals stay dry.
  A small number of commenters specifically supported the
provisions of proposed Sec. 3.75(f) as written. A large number of
commenters interpreted the provisions regarding the prevention of
odor and sewage as a requirement that closed drainage systems
include backflow valves. Many commenters stated that installing
such valves would be prohibitively expensive. The proposed
provisions did not specifically require backflow valves. The
provisions in question called for essentially the same standards as
those already required under the existing regulations. We therefore
do not expect facilities to experience significant practical or
financial difficulties in meeting this standard.
  A small number of commenters opposed the proposed requirement
that trash containers have lids. We are making no changes based on
these comments. We consider the covering of trash containers
necessary to control insects and odors. Under these regulations,
the use of lids is required only in animal areas and food storage
and preparation areas, not in office areas.
   A number of commenters stated that it would be difficult to
remove all puddles from surfaces in outdoor housing, especially
during rain. Other commenters recommended that the proposed
provisions regarding puddles be rewritten to state that free water
in the housing facilities should be dealt with in a manner that
ensures all animals the freedom to avoid sprays and puddles. One
commenter stated that because some primates enjoy playing in
puddles, decisions concerning standing water should be left to the
facility. Another commenter stated that it should be required that
puddles of water in animal areas be mopped up or drained only if
animals can come in contact with the puddles.
  We agree with the commenters that it would be impossible to
ensure that all water is removed from animal areas at all times.
The intent of the proposed provisions is to require removal of
water as rapidly as possible, so as to protect animals from being
soiled, and to prevent the propagation of pests and diseases. We
consider this intent to be adequately conveyed in the requirement
that standing puddles of water in animal areas must be mopped up or
drained so that the animals stay dry.
  One commenter stated that it is impossible to eliminate standing
water in outdoor enclosures, and that, therefore, raised covered
platforms should be required so as to allow animals to remain dry.
We are making no changes based on this comment. Outdoor facilities
usually allow enough space so that animals can avoid puddles and
soiling. Additionally, outdoor housing facilities are required by
the regulations to contain shelter to protect nonhuman primates
from the elements.
  One commenter opposed what the commenter termed the relaxation of
regulations requiring the daily removal of animal and food wastes
in nonhuman primate enclosures. We do not agree with the
commenter's interpretation of the regulations. Section 3.84
requires that excreta and food waste be removed from each indoor
primary enclosure daily. The provisions in Sec. 3.75(f) deal with
the collection, removal, and disposal of wastes from the housing
facility.
 
  Housing facilities: Washrooms and Sinks--Section 3.75(g)
 
  We proposed to retain the requirement contained in existing Sec.
3.75(e) that washing facilities be available to animal caretakers
for their cleanliness, and to include it in proposed Sec. 3.75(g).
The only comments we received regarding this provision supported
it. We are therefore making no changes to Sec. 3.75(g) in this
final rule.
 
  Requirements for Different Types of Housing Facilities
 
  The existing regulations specify two kinds of housing facilities,
indoor and outdoor. These terms are defined in Part 1 of the
regulations. An indoor housing facility is defined as "any
structure or building with environmental controls housing or
intended to house animals" that is fully enclosed and has a
continuous connection between the floor, ground, and ceiling, is
capable of being temperature and humidity controlled, and has at
least one door for entry and exit. An outdoor housing facility is
defined as "any structure, building, land, or premises, housing or
intended to house animals," and which does not meet the definition
of an indoor housing facility or a sheltered housing facility and
in which temperatures cannot be controlled within set limits. We
proposed to add two additional sections containing requirements for
sheltered housing facilities and mobile or traveling housing
facilities, previously defined in this document.
  Several commenters stated that the standards for outdoor housing
facilities for nonhuman primates should differentiate between
research facilities and dealers/breeders. We disagree. The needs of
the animals housed are the same no matter which entity happens to
be holding them. We are therefore making no changes based on these
comments.
 
  Requirements for Indoor Housing Facilities. Mobile or Traveling
Housing Facilities, the Sheltered Part of Sheltered Housing
Facilities, and Shelters in Outdoor Housing Facilities
 
  Three of the four types of housing facilities that may be used to
house nonhuman primates are either enclosed or partially enclosed.
They are indoor housing facilities, mobile or traveling housing
facilities, and the sheltered portion of sheltered housing
facilities. We proposed to require that all of these enclosed types
of housing facilities be required to provide heating, cooling, and
ventilation, and to maintain temperatures within the temperature
limits provided in existing paragraphs (a) and (b) of Sec. 3.76,
"Facilities, indoor," as discussed below. Additionally, we proposed
to establish a minimum temperature for shelters provided in outdoor
facilities.
 
  1. Temperature Requirements--Sections 3.76(a), 3.77(a), 3.78(b),
and 3.79(a)  
  We proposed that there must be sufficient heat provided to
protect nonhuman primates from cold temperatures. We proposed that,
in indoor facilities, the sheltered parts of sheltered housing
facilities, and mobile or traveling housing facilities, the ambient
temperature must not fall below 45 deg.F (7.2 deg.C) and must not
rise above 95 deg.F (35 deg.C) when nonhuman primates are present.
We also proposed to require that shelters provided in outdoor
facilities provide heat to nonhuman primates to prevent the ambient
temperature from falling below 45 deg.F (7.2 deg.C), except as
directed by the attending veterinarian and in accordance with
generally accepted professional and husbandry practices.
Additionally, we proposed that, in indoor housing facilities, the
sheltered parts of sheltered housing facilities, and mobile or
traveling housing facilities, the actual ambient temperature must
be maintained at a level that ensures the health and well-  being
of the species housed, as directed by the attending veterinarian,
in accordance with generally accepted professional and husbandry
practices. As proposed, auxiliary ventilation such as fans or air
conditioning would have to be provided when the temperature is 85
deg.F (29.5 deg.C) or higher.
   We received a large number of comments with regard to the issue
of temperature in indoor, sheltered, and mobile and traveling
housing facilities, and concerning the minimum temperature for
shelters in outdoor facilities. A number of commenters stated that
our proposed temperature ranges were too stringent and did not
encompass natural conditions for many species. A number of
commenters also recommended that we allow the attending
veterinarian to use professional judgment when determining
appropriate temperature levels. A number of other commenters stated
that our proposed temperature ranges were too lenient in general,
or too lenient except for certain specified species.
  We continue to believe that the well-being of nonhuman primates
housed in enclosed facilities requires that parameters be
established for hot and cold temperatures. We do not believe that
the needs of the animals housed vary so widely as to warrant the
removal of all temperature limits. Upon review of the comments
calling for more stringent temperature limits, and those
recommending more lenient limits, we have decided that changes to
the proposed rule are appropriate. For example, while certain
species or animals may be acclimated to temperatures exceeding 95
deg.F, the confined nature of enclosed facilities will make such
high temperatures intolerable for other animals. Also, given the
heightened effect of heat in enclosed areas, even animals normally
acclimated to temperatures higher than 95 deg.F will not be able to
tolerate high temperatures in an enclosed area for extended periods
of time. Therefore, in this final rule, we are establishing general
temperature limits more stringent than those proposed, while at the
same time allowing flexibility to accommodate animals that can
tolerate temperatures outside those limits. We are providing in
this final rule that the ambient temperature in the enclosed
facilities must not fall below 45 deg.F (7.2 deg.C) for more than
4 consecutive hours when nonhuman primates are present, and must
not rise above 85 deg.F (29.5 deg.C) for more than 4 consecutive
hours when nonhuman primates are present. In sheltered housing
facilities, exposure to temperatures above 85 deg.F must be
approved by the attending veterinarian, in accordance with
generally accepted husbandry practices.
   A small number of commenters stated that the regulations should
be restated to ensure that animals are maintained at temperatures
appropriate for their species, or that they should include
temperature specifications by species or groups. Because of the
variation among nonhuman primates, even those of the same species,
as to acclimation and housing conditions, we do not consider it
appropriate or practical to establish a system of allowable
temperatures based on species. The regulations in this final rule
provide that the temperature in enclosed facilities must be
maintained within a range that ensures the health and well-being of
the animals housed.
  A number of commenters stated that it would not be practical or
feasible to attempt to control temperatures in outdoor primate
housing facilities, especially if the facility is a large corral
type. As we discussed in the proposal, while we agree that it would
be difficult or impossible to control the ambient temperature in
the outdoor housing facilities, the regulations as proposed require
only that the animal shelters in such facilities be maintained at
temperatures no lower than 45 deg.F (10 deg.C).
   Some of these commenters expressed concern that the use of heat
lamps to achieve the necessary temperatures would be potentially
hazardous. In reviewing this issue, it has always been our intent
that supplementary heat be provided in shelters in outdoor housing
facilities in a way so as not to present hazards. We have inserted
the word "safely" in Sec. 3.78(a) to clarify this intent. Heat
lamps are one possible method of maintaining required temperatures.
The proposed regulations do not require their use.
   Proposed Sec. 3.78(a) provided that only acclimated nonhuman
primates may be kept in outdoor housing facilities. Several
commenters stated that determinations regarding the acclimation of
nonhuman primates should be the responsibility of the attending
veterinarian. The commenters' recommendation is consistent with our
intent regarding Sec. 3.78(a) as proposed, and we are amending that
paragraph accordingly.
  One commenter stated that even acclimated animals should not be
permitted at outdoor facilities when the temperature falls below 45
deg.F. We disagree. Certain nonhuman primates can be acclimated to
temperatures below 45 deg.F. As long as they are acclimated, there
is no reason to prohibit them from outdoor facilities at the lower
temperatures.
 
  2. Ventilation and Relative Humidity Level--Sections 3.76(b),
3.77(b), and 3.79(b)
 
  In our proposal, we proposed that the existing requirement in
Sec. 3.76(b) for ventilation of indoor housing facilities would be
applicable to the three types of enclosed housing facilities, to
provide for the health, comfort, and well-being of nonhuman
primates. For sheltered housing facilities, we proposed that the
requirement would apply only to the sheltered portion of the
facility, since the outdoor portion could not be humidity
controlled. We proposed that in indoor housing facilities and the
sheltered part of sheltered housing facilities the relative
humidity must be at a level that ensures the health and well-being
of the species housed, as directed by the attending veterinarian,
in accordance with generally accepted professional and husbandry
practices. We also proposed that ventilation must be provided to
minimize odors, drafts, and ammonia levels in these housing
facilities and that mobile or traveling housing facilities must be
ventilated to minimize exhaust fumes, and to protect the well-being
of the nonhuman primates.
   A small number of commenters specifically supported the
ventilation requirements in the proposed rule. A small number of
commenters recommended that it be required that the relative
humidity in enclosed facilities be maintained between 30 and 70
percent. One commenter recommended that specific humidity standards
be established to better ensure compliance with the regulations. As
we stated in our proposal, the effect on animals of a particular
level of humidity depends to a great degree on other factors, such
as temperature and ventilation. We therefore consider it
appropriate as proposed to allow the maintenance of the humidity
level in accordance with generally accepted professional and
husbandry practices.
  A small number of commenters stated that it is unnecessary to
require as proposed that auxiliary ventilation be used at
temperatures exceeding 85 deg.F (29.5 deg.C), because the
regulations as proposed require in general that facilities be
sufficiently ventilated to provide for the nonhuman primates'
health and well-being. While we agree that the requirement for
auxiliary ventilation at higher temperatures falls under the
general requirement for adequate ventilation, we continue to
believe that it serves a specific and necessary purpose. Based on
our experience enforcing the regulations, achieving adequate
ventilation at moderate temperatures can be accomplished through
various means, such as either natural or mechanical ventilation.
However, at higher temperatures, auxiliary ventilation becomes
necessary on a uniform basis in ensuring the health and well-being
of the animals. We are therefore making no changes based on the
comments.
   A number of commenters recommended that the regulations require
that fresh air always be provided to nonhuman primates, or that if
fresh air cannot be supplied, an exemption must be submitted to the
Department for approval. We disagree. The regulations as proposed
require that sufficient ventilation be supplied to provide for the
animals' health and well-being. In many cases, recycled air is more
healthful than what would be considered "fresh" air, due to the use
of air-filtering mechanisms. We are therefore making no changes
based on these comments.
  One commenter requested that the regulations clarify what
constitutes excessive odor. The requirement that odor be minimized
is included in the existing regulations. While we agree that it
does not lend itself to precise measurement, we consider the word
"minimize" to be sufficiently measurable for enforcement purposes.
Our enforcement experience has shown that excessive odor generally
can be measured against the standard of what is reasonable in the
circumstances in accordance with generally accepted husbandry
practices.
   One commenter recommended that the regulations require that
additional ventilation be supplied in mobile or traveling
facilities when the temperature exceeds 80 deg.F. The commenter's
recommendation was not supported by additional data to demonstrate
why the change from 85 deg.F, as proposed, would be necessary, and
we are making no changes based on this comment.
 
  3. Lighting--Sections 3.76(c), 3.77(c), and 3.79(c)
 
  We proposed to require, at the three types of enclosed housing
facilities included in the proposed regulations, sufficient light
to permit routine inspection and cleaning of the facility, and
observation of the nonhuman primates. We also proposed that animal
areas must be provided a regular diurnal lighting cycle of either
natural or artificial light, and that lighting must be uniformly
diffused throughout animal facilities and provide sufficient
illumination to aid in maintaining good housekeeping practices,
adequate cleaning, adequate inspection of animals, and for the
well-being of the animals. We proposed to retain safeguards against
exposing nonhuman primates to excessive light and to apply them to
all enclosed housing facilities.
  A small number of commenters supported the proposed requirements
for lighting as written. A small number of commenters objected to
the proposed requirement for lighting on a regular diurnal cycle,
and recommended instead that the regulations require a specific
number of hours of light and darkness a day. Upon review of the
comments, we continue to believe it would not be beneficial in all
cases to establish one specific timetable for lighting. Such a
specific timetable might not be necessary or warranted in all cases
and might not coincide with normal outdoor lighting cycles at a
particular time of year. The wording as proposed is designed to
allow for sufficient lighting necessary for the well-being of the
animals and the performance of required activities.
  A number of commenters objected to the provision in our proposal
that light in enclosed housing facilities be uniformly diffused.
Several commenters stated that the regulations should require only
that the nonhuman primates be protected from excessive light. The
requirement in our proposal for the uniform diffusion of light is
very similar to the requirement in the existing regulations for
"uniformly distributed illumination." Our intent in retaining the
requirement for uniform lighting was to allow for proper cleaning,
observation of animals, and inspection, without the need for an
additional light source, such as a flashlight. We consider this
standard to be both necessary and attainable.
  Several commenters stated that the regulations should allow for
professional judgment with regard to light intensities. One
commenter opposed the proposed requirement that nonhuman primates
be protected from excessive light, because, according to the
commenter, this would require the moving of primary enclosures or
housing facilities. The regulations as proposed contain only
minimum and maximum requirements for light intensity. We consider
these limits necessary for proper husbandry practices and the
protection of the animals. Within these limits, the regulations
allow significant variation as to lighting levels. We do not agree
that protecting animals from excessive light will require moving of
housing facilities, although it may require the moving of certain
primary enclosures. Moving enclosures, however, is only one way of
protecting animals from excessive light. We therefore do not
consider it appropriate or necessary to change the regulations as
proposed based on these comments.
  A number of commenters recommended that we provide the authority
to make exceptions to lighting standards to the Committee at
research facilities. Section 2.38(k)(1) of part 2 of the
regulations already provides that exceptions to the standards in
part 3 of the regulations may be made when such exceptions are
specified and justified in the proposal to conduct an activity and
are approved by the Committee.
 
  Requirements for Outdoor or Partially Outdoor Housing Facilities 

  1. Shelter from the Elements--Sections 3.77 (d) and (e): Sections
3.78 (b) and (c)
 
  Outdoor housing facilities cannot be temperature controlled. We
proposed to allow only those nonhuman primates that are acclimated
to the prevailing seasonal temperature and that can tolerate
without stress or discomfort the range of temperatures, humidity,
and climatic conditions known to occur at the facility at the time
of year they are housed there to be housed in outdoor facilities,
in order to protect their physical welfare.
   As in existing Secs. 3.77 (a) through (c), our proposal provided
that outdoor housing facilities must provide shelter from the
elements and protection from various weather conditions, such as
sun, wind, rain, cold air, and snow. For example, under our
proposal, nonhuman primates would have to be provided with shade
from the sun and protection from precipitation so that they may
remain dry. This requirement appears in Sec. 3.78(b) of the
proposed rule. We proposed to require that the shelter provided be
maintained in good repair, and that it be constructed in a manner
and made of material that can be readily cleaned and sanitized in
accordance with proposed Sec. 3.75(c).
  We proposed to make the requirement to provide protection from
the elements applicable also to sheltered housing facilities. We
proposed to require that nonhuman primates be provided shelter from
the elements at all times. Accordingly, under our proposal, unless
the nonhuman primates have continual ready access to the sheltered
portion of the facility, some additional form of shelter would have
to be provided that satisfies the requirements contained in
paragraphs (a) through (e) of proposed Sec. 3.77.
   A small number of commenters specifically supported the
provisions regarding shelters as written. Some commenters
recommended that we delete the requirement for shelter at outdoor
facilities. We consider such shelters necessary for the health and
well-being of nonhuman primates housed in such facilities and are
making no changes to our proposal based on these comments.   In
proposed Secs. 3.77(e) and 3.78(c), we proposed to require that the
shelters in both sheltered and outdoor housing facilities be large
enough to provide protection comfortably to all the nonhuman
primates housed in the facility at the same time. As proposed,
sheltered housing facilities and outdoor housing facilities would
be required (1) to have multiple shelters if there are aggressive
or dominant animals present that might deter other nonhuman
primates from utilizing the shelters when they so desire, or (2) to
provide some other means to ensure protection for each nonhuman
primate housed in the facility.
  A number of commenters stated that the requirement for multiple
shelters in certain situations should be deleted, because it would
not eliminate the problem of some nonhuman primates being too
intimidated by others to seek shelter. The commenters stated that
there is a dominant animal in every social group, and that,
consequently, it would be impossible to guarantee that every animal
would choose to join others in shelter. We are making no changes
based on these comments. As we stated in the proposal, while we
agree that it would be impossible to force every animal to take
shelter, providing sufficient multiple shelters when aggressive or
dominant animals are present would ensure that all nonhuman
primates in the facility will have access to shelter. If all
animals do not have access to shelter, the facility can either
increase the number of shelters or reduce the number of animals
housed.
  A number of commenters stated that proposed Secs. 3.77(e) and
3.78(c) were redundant with Secs. 3.77(d) and 3.78(b) respectively,
and should be deleted. We disagree. Sections 3.77(d) and 3.78(b)
set forth the type of shelter that is required. Sections 3.77(e)
and 3.78(c) set forth the requirement that sufficient shelter or
shelters be provided to allow all animals housed access to shelter.
  A small number of commenters suggested specific alternatives to
multiple shelters for ensuring that all animals housed have access
to shelter. These suggested methods fall under the provision
allowing for "other means" of ensuring protection for each animal.
We do not consider it necessary or appropriate to limit
alternatives by setting forth specific means in the regulations.
  The provisions for shelter in outdoor or partially outdoor
facilities require that the shelter provide protection from any
weather conditions that might occur. A number of commenters
recommended that this provision be deleted, because no shelter
structure is likely to be effective during events such as
hurricanes or tornadoes. We do not consider it appropriate to make
the change recommended by the commenters. The required shelters
must be able to provide shelter from reasonably foreseeable
extremes of weather.  

  2. Perimeter Fence--Sections 3.77(f) and 3.78(d)
 
  In proposed Secs. 3.77(f) and 3.78(d), we proposed to require
that unless a natural barrier exists that would restrict the
animals to the housing facility and prevent unauthorized humans and
animals from having contact with the nonhuman primates, a perimeter
fence be placed around the outdoor areas of sheltered housing
facilities and outdoor housing facilities. We proposed that the
fence would have to be of sufficient height to keep unwanted
species out, and that fences less than 6 feet high would have to be
approved by the Administrator. We also proposed that the fence
would have to be of sufficient distance from the outside wall or
fence of the primary enclosure to prevent physical contact between
animals inside the enclosure and outside the perimeter fence, and
that fences less than 3 feet from the primary enclosure would have
to be approved by the Administrator.
  In certain settings a perimeter fence is not needed because the
animals are protected by natural barriers, such as moats or swamps
surrounding the facility. As proposed, the exception for natural
boundaries would be subject to the Administrator's approval. Under
our proposal, the perimeter fence could be slatted, latticed or of
other similar design, as long as it was designed and constructed in
a manner that restricts unauthorized humans and animals from
entering or having contact with the nonhuman primates, including
animals capable of digging underneath it, and that prevents small
animals the size of dogs, raccoons, and skunks from entering
through it. We proposed that the fence would not be required if the
outside walls of the primary enclosure were high enough and built
in a manner that prevents contact with or entry by other animals.
To avoid the need for a perimeter fence we proposed to require that
the outside walls of the primary enclosure be made of a heavy duty
material such as concrete, wood, metal, plastic, or glass, that
prevents unauthorized entry by and contact with humans and animals. 
 We also proposed to retain the provision that the perimeter fence
be able to prevent the entry of unauthorized humans. We also
proposed to retain such a provision in the conditions necessary to
make alternative barriers acceptable in lieu of perimeter fences.
  A small number of commenters specifically supported these
provisions as written. A number of commenters specifically opposed
the provisions requiring a perimeter fence. Some commenters stated
that requiring a fence at least 6 feet high would not necessarily
keep unwanted animals from entering the area occupied by the
nonhuman primates; that even a fence of that height could be
breached by certain animals. Other commenters recommended that we
remove the requirement that the fence be able to keep out
unauthorized humans, stating that the security of a facility is
rightfully the concern of the facility. We disagree that a
perimeter fence will not help protect the animals housed. The
perimeter fence is not intended to ensure security for the
facility, but rather, to protect against incidental contact with
the nonhuman primates by other animals and people. We agree,
however, that a fence of any practicable height will not be able to
entirely eliminate entry by either humans or other animals. We do
continue to believe that a fence at least 6 feet high will provide
reasonable protection and deter the entrance of humans and other
animals. To clarify the purpose of the perimeter fence, however, we
are amending the proposal to require that such a fence "restrict"
the entrance of animals and humans, rather than "prevent" their
entrance, as proposed. We are making a like change in Sec. 3.77(f)
(1) as proposed regarding alternative methods of surrounding the
animals.
  A number of commenters stated that a facility not be considered
in violation of the regulations in cases of unlawful intrusion, as
long as the perimeter fence is adequately constructed with signs
prohibiting unauthorized entry. A fence that reasonably restricts
such entrance will be considered to be in compliance with the
standards.
  One commenter stated that a 4-foot perimeter fence would be just
as effective in meeting the proposed standards as a 6-foot fence.
Another commenter stated that a short, electric fence might suit
some facilities better. One commenter stated that perimeter fence
requirements should be flexible enough to allow the facility to
meet its own needs. Another stated that primary enclosures of solid
construction might not need a 6-foot-high fence. Based on the need
to restrict the entrance of other animals and unauthorized humans,
we consider 6 feet to be the minimum necessary fence height in most
cases. However, the regulations as proposed allow for varying
situations and needs by providing for approval by the Administrator
of fences less than 6 feet high.
  Several commenters expressed the opinion that requiring the
written permission of the Administrator for fences less than 6 feet
high exceeds the Department's authority. We disagree. The Secretary
of Agriculture is authorized to promulgate whatever regulations he
or she deems necessary to carry out the requirements of the Act.
  One commenter stated that perimeter fence requirements should be
standardized among species. We are making no changes based on this
comment. The regulations in this final rule specify the need for a
perimeter fence to restrict the entrance of other animals and
unauthorized humans. Such a need exists for all nonhuman primates,
and the type of fence used should not depend upon the species of
nonhuman primate housed.
  As we noted in the "Supplementary Information" of this rule under
the heading "Effective Dates," many commenters pointed out that
certain of the new standards would require affected facilities to
make extensive structural changes. The addition of the requirement
for perimeter fences at sheltered and outdoor housing facilities
are two such changes in the standards. Therefore, we are providing
in Secs. 3.77(f) and 3.78(d) of this rule that facilities must
comply with the requirements for perimeter fences on and after
February 15, 1994.
 
  3. Additional Safety Requirement--Sections 3.77(g), 3.78(e), and
3.79(d)  

  We also proposed to add a requirement for facilities that are at
least partially outdoors and are accessible to the public in order
to protect nonhuman primates from the public and to protect the
public from nonhuman primates. As proposed, public barriers would
be required for sheltered housing facilities under proposed Sec.
3.77(g), for outdoor housing facilities under proposed Sec.
3.78(e), and for mobile or traveling housing facilities under
proposed Sec. 3.79(e). The regulations we proposed would require
barriers preventing unauthorized physical contact between the
public and nonhuman primates for fixed public exhibits and
traveling animal exhibits, at any time the public is present, to
protect both the public and the nonhuman primates. We also proposed
to require that nonhuman primates used in trained animal acts or
uncaged public exhibits be under the control and supervision of an
experienced handler or trainer whenever the public is present. We
proposed to allow trained nonhuman primates used in animal acts and
uncaged public exhibits to have physical contact with the public,
as allowed under Sec. 2.131 of part 2 of the regulations, but only
if the nonhuman primates are under the direct control and
supervision of an experienced handler or trainer at all times
during the contact, in order to prevent injury to both the nonhuman
primates and the public.
   A number of commenters objected to the proposed requirement that
the barrier must prevent contact between nonhuman primates and the
public. For the same reasons discussed above regarding perimeter
fences, we are changing the word "prevent," as set forth in the
proposal, to "restrict."
   A number of commenters recommended that the regulations prohibit
all contact between nonhuman primates and the public. While we
agree that unauthorized contact must be restricted, we do not
consider it necessary to prohibit all contact between nonhuman
primates and the public, as long as the handling requirements set
forth in Sec. 3.78(e) as proposed are met.  

  Primary Enclosures
 
  We proposed to revise completely existing Sec. 3.78, "Primary
enclosures," in accordance with the 1985 amendments to the Act.
Under the amendments, the Secretary of Agriculture is directed to
"promulgate standards to govern the humane handling, care,
treatment, and transportation of animals by dealers, research
facilities, and exhibitors." The standards must include minimum
requirements "for a physical environment adequate to promote the
psychological well-being of primates." (7 U.S.C. 2143(a) (2) (B))
Included among the primary enclosures subject to the regulations
would be those used by circuses, carnivals, traveling zoos,
educational exhibits, and other traveling animal acts and shows.
  Our proposal was in contrast to existing Sec. 3.78, which
provides general requirements for construction and maintenance of
primary enclosures and uniform space requirements for every
nonhuman primate housed in a primary enclosure.
 
  Primary Enclosures: General Requirements--Section 3.80(a)  

  Primary enclosures are defined in part 1 of the regulations as
"any structure or device used to restrict an animal to a limited
amount of space, such as a room, pen, run, cage, compartment, pool,
hutch, or tether." We proposed in Sec. 3.80(a) to continue to
require that primary enclosures be structurally sound and
maintained in good repair to protect the animals from injury, to
contain them, and to keep other unwanted animals out, that they
enable the animals to remain dry and clean, that they provide the
animals with convenient access to clean food and water, that their
floors be constructed in a manner that protects the animals from
injury, and that they provide sufficient space for the nonhuman
primates to make normal postural adjustments with freedom of
movement.
  We also proposed to require in proposed Sec. 3.80(a) that the
primary enclosures have no sharp points or edges that could injure
the animals, that they keep unauthorized people and unwanted
animals from entering the enclosure or having physical contact with
nonhuman primates, that they provide shelter and protection from
extreme temperature and weather conditions that can be dangerous to
the animals' health and welfare, that they provide sufficient shade
to protect all the animals contained in the enclosure at one time,
and that they enable all surfaces to be readily cleaned and
sanitized or replaced if worn or soiled.
  One commenter specifically supported the provisions of proposed
Sec. 3.80(a) as written. A small number of commenters recommended
that the regulations require that primary enclosures provide hiding
areas out of sight from humans and other primates. If such hiding
areas are necessary for certain species or animals, they are to be
addressed under the provisions in Sec. 3.81 of this final rule,
which requires a plan including environment enhancement to promote
psychological well-being. We do not consider it necessary or
appropriate to include such a requirement for all primary
enclosures.
  Several commenters stated that the requirements in proposed Sec.
3.80(a) would not be practical in outdoor housing facilities. We
are making no changes based on these comments. There are no
requirements in proposed Sec. 3.80(a) that would be unnecessary or
impracticable in outdoor facilities.
   A large number of commenters took issue with our requirements in
proposed Secs. 3.80(a)(2)(iii) and (a)(2)(iv) that primary
enclosures be constructed so as, among other things, to prevent the
unauthorized release of nonhuman primates and to prevent the entry
of unauthorized individuals. A large number of commenters stated
that such requirements would create a need for individual cage
locks, which would restrict emergency access to each animal. Upon
review of the comments received, we agree that Secs. 3.80
(a)(2)(iii) and (a)(2)(iv) as proposed could create impracticable
and possibly unsafe conditions. For these reasons, and for the
reasons relating to unauthorized humans discussed in this
supplementary information under the heading "Housing Facilities:
Structure; Construction--Sec. 3.75(a)," we are removing the
proposed requirements that primary enclosures prevent the
unauthorized release of nonhuman primates and prevent the entry of
unauthorized individuals.
  Section 3.80(a)(2)(vii) as proposed requires that primary
enclosures be constructed so as to provide the nonhuman primates
with easy and convenient access to clean food and water. A number
of commenters stated that requiring easy access to food might be
interpreted as prohibiting the use of enrichment devices containing
food. We disagree. Although task-oriented and enrichment feeding
devices may be part of the environment enhancement programs
developed under Sec. 3.81, a basic adequate diet must be made
available to the nonhuman primates.
  A number of commenters addressed the requirement in proposed Sec.
3.80(a)(2)(x) that primary enclosures must have floors that are
constructed in a manner that protects the nonhuman primates from
injuring themselves. One commenter recommended that the provision
state instead that primary enclosures must have floors that are
constructed in a manner that protects the primates from having
their appendages caught. Many other commenters specifically opposed
the use of large wire mesh floors that would allow primates' hands
and feet to slip through. We consider the commenters' concerns to
be adequately addressed by Sec. 3.80(a)(2)(x) as written.
   A small number of commenters stated that proposed Sec.
3.80(a)(2)(x) was written so as to imply that cage floors would
have such small mesh that there will be an increased risk of
contaminating food with feces. The intent of the Act is to provide
for the health and well-being of the animals. Floors that cause
injury to the animals by allowing their arms or legs to pass
through do not comply with the intent of the Act, whether or not
they prohibit the passage of feces. We do not consider the ease of
cleaning to be a higher priority than the safety of the animals.
Whatever the design of the floors, the animals in the enclosure
must be provided access to clean food and water.
   A number of commenters stated that certain wording within
proposed Sec. 3.80(a) was redundant. We disagree. Each of the
provisions in proposed Sec. 3.80(a) addresses a distinct need, and
is necessary for proper enforcement.  

  Primary Enclosures: Minimum Space Requirements--Section 3.80(b) 

  In our proposal, we proposed to revise completely the minimum
space requirements for nonhuman primates set forth in existing Sec.
3.78(b) (1) and (2). The existing requirements specify that primary
enclosures be "constructed and maintained so as to provide
sufficient space to allow each nonhuman primate to make normal
postural adjustments with adequate freedom of movement" and provide
a minimum floor space equal to an area of at least three times the
area occupied by each animal when standing on four feet, regardless
of the size or condition of the animal.
  The minimum enclosure sizes we proposed for all facilities are
based on the typical weight of the species, except for brachiating
species and great apes, in accordance with the following table:
  
              
          Weight           Floor area/animal   Height 
Group lbs.       (kg.)     ft./2/  (m/2/)  in. (cm.) 
1     under 2.2  (under 1)  1.6    (0.15)  20  (50.8)
2     2.2-6.6    (1-3)      3.0    (0.28)  30  (76.2)
3     6.6-22.0   (3-10)     4.3    (0.40)  30  (76.2)
4    22.0-33.0   (10-15)    6.0    (0.56)  32  (81.28)
5    33.0-55.0   (15-25)    8.0    (0.74)  36  (91.44)
6    over 55.0   (over 25)  25.1   (2.33)  84  (213.36)
   
  In addition to the above proposed space requirements, we proposed
that facilities must provide great apes weighing over 110 lbs. (50
kg) an additional volume of space in excess of that required for
Group 6 animals, to allow for normal postural adjustments.
  We proposed that nonhuman primates would be categorized into the
six groups by the typical weight of animals of their species,
except for infants (up to 6 months of age) and juveniles (6 months
to 3 years of age) of various species, which may weigh so much less
than adults of their species that they are grouped with lighter
weight species unless they obviously require greater space to make
normal postural adjustments and movements, and except for
brachiating species and the larger great apes. Brachiating species
are those that typically hang or swing by their arms so that they
are suspended in the air and fully extended. We included the
following as examples of the types of nonhuman primates that fall
into each group:
  Group 1--Marmosets, Tamarins, and infants (less than 6 months of
age) of various species.
  Group 2--Capuchins, Squirrel Monkeys and species of similar size,
and juveniles (6 months to 3 years of age) of various species.    
  Group 3--Macaques and African species.
  Group 4--Male Macaques and large African species.
  Group 5--Baboons and nonbrachiating species larger than 33.0 lbs.
(15 kg.).
  Group 6--Great Apes over 55.0 lbs. (25 kg), except as provided
for Great Apes weighing over 110 lbs. (50 kg), and brachiating
species.
   In our proposal, we stated our belief that, in most instances,
the specified dimensions for the various species would be
sufficient to promote the nonhuman primates' psychological well-
being, and the table could be used to determine the minimum space
requirements for each species. As proposed, however, if a nonhuman
primate were unable to make normal postural adjustments and
movements, or could not do so without difficulty, notwithstanding
the table, it would have to be provided greater space. We proposed
that the space requirements would be minimum standards that must be
provided to each nonhuman primate contained in a primary enclosure,
unless otherwise specified. However, our proposal provided that, in
the case of mothers with infants less than 6 months of age, the
space and height requirements would be those required for the
mother. As proposed, the minimum height for the animals would be
the minimum height requirement for the largest nonhuman primate in
the enclosure. Also, the regulations as proposed would not allow
the size of a primary enclosure to be reduced because it contains
a suspended fixture, such as a swing or a perch, except that low
perches and ledges would be counted as part of the floor space.  
A small number of commenters specifically supported the minimum
space requirements proposed. A much larger number of commenters
took issue with the minimum space requirements we proposed to
require. Some expressed general opposition to increased space
requirements for nonhuman primates. A number of commenters stated
that the proposed space requirements were arbitrary and lacking in
scientific basis, or would not promote increased activity among
nonhuman primates. A large number of commenters stated that the
proposed requirements were inadequate, or more specifically that
they did not meet the space needs of great apes. Some stated that
alternative methods for determining space requirements should be
adopted. The minimum space requirements set forth in the proposal
were based on data supplied by an expert committee on primates
convened prior to the initiation of rulemaking, on consultation and
coordination with HHS, on comments received from the public in
response to our original proposal, and on our experience enforcing
the regulations. Based on this information collection and
consultation, we are confident that the space requirements adopted
in this rule represent current professionally accepted standards.
  Several commenters stated that the examples we provided of which
types of nonhuman primates typically fall under which weight group
were incorrect in some cases and should be deleted. We are making
no changes based on these comments. The examples we provided are
just that. They are included in a footnote and are meant as
guidelines for appropriate grouping of nonhuman primates. The
examples provided are based on the NIH Guide, and are not meant to
apply to every animal of a given species. The actual space
requirements are based on weight, not species.
  Several commenters stated that the regulations should adopt the
space recommendations of the American Association of Zoological
Parks and Aquariums (AAZPA), as published in our original proposal.
While we encourage the adoption of the AAZPA recommendations where
possible, we do not consider it appropriate to require them in the
regulations. Under the Act, we establish minimum standards for
animal care. The AAZPA standards exceed the minimum necessary for
the humane care of nonhuman primates.
  A small number of commenters either opposed counting low perches
or ledges as part of the floor space, or requested clarification as
to the height at which low perches or ledges would be considered
part of the floor space. We agree that the regulations as proposed
are unclear on this point. We are therefore adding language to Sec.
3.80(b) of these regulations to provide that low perches and ledges
that do not allow the space underneath them to be comfortably
occupied by the animal will be counted as part of the floor space.
  One commenter stated that young primates should be provided the
same space as adults of their species, to allow them to grow.
Another commenter stated that there is no evidence to indicate that
space requirements should be different with regard to the sex of
the species. The proposed space requirements are based on the
weight of the animal, not on whether it is young, or male or
female. The proposed regulations do contain a footnote that
provides examples of which types of nonhuman primates typically
fall into which weight groups. In these groups, the differences in
weight between males and females, and young primates and adults, is
taken into consideration. However, this footnote is included merely
as guidance. With regard to young primates, it is expected that
they will be transferred to appropriate cages based on their weight
as necessary.
  One commenter recommended that cage size be related to total
biomass, instead of the sum of each individual primate. We
disagree. Two primates weighing 2 pounds each, require more space
than one primate weighing 4 pounds. We do not consider space
requirements based on total biomass to be sufficient to meet the
space needs of the animals, nor to provide for their psychological
well-being.
  One commenter recommended that a specific space requirement for
apes over 110 pounds should be listed in the primate space table.
We are making no changes based on this comment. The regulations as
proposed require that special attention be given to the larger
great apes. Not only must they be provided with an additional
volume of space to allow for normal postural adjustments, in excess
of that required in the top group of space requirements in the
space table, but they must also be provided with additional
opportunities for species-typical behavior. We are confident these
requirements will adequately meet the space and psychological needs
of larger great apes.
  A small number of commenters recommended that individually housed
nonhuman primates be placed in primary enclosures with minimum
dimensions for only short periods of time, and only for specified
reasons--such as due to approved protocols or normal veterinary
care requiring isolation. While we agree that individually housed
nonhuman primates require additional enrichment for their
psychological well-being, such enrichment would be provided for
under the requirements in Sec. 3.81 as proposed, concerning
environment enhancement to promote psychological well-being.
   A small number of commenters stated that in proposing minimum
space standards the Department had ignored activity and behavior
typical of varying species. A very large number of commenters
specifically opposed the height requirements set forth in our
proposal, stating that those provisions did not allow enough space
for climbing to promote the psychological well-being of nonhuman
primates. As we discussed in our proposal, we agree that the
proposed space requirements alone do not address the issue of
activities particular to varying species. However, under the
regulations, each regulated facility will be required to develop a
plan for promoting the needs of the nonhuman primates housed in the
facility. We consider this type of plan to be the most practical
way of addressing species-typical activity.
   A small number of commenters stated that primate cage dimensions
should be based on whether the species is arboreal or terrestrial.
We do not believe that such considerations would be practical. In
most cases, nonhuman primates are neither exclusively arboreal nor
exclusively terrestrial, and basing cage sizes on such
considerations would not be feasible. Additional height
requirements for brachiating species are already included in the
regulations as proposed. For other species, if species-typical
activity requires an arboreal environment, that would need to be
addressed in the plan for environment enhancement required under
Sec. 3.81 of the regulations as proposed.
  A small number of commenters recommended the establishment of a
separate space group for brachiating species, utilizing crown-heel
and span dimensions. Based on the size of the largest brachiating
species, and on their postural needs, we consider including them in
the largest space requirements to be necessary and adequate to meet
their needs. We are therefore making no changes based on the
comments.
  We received some comments recommending that determining
appropriate space requirements should be the responsibility of the
attending veterinarian, in accordance with generally accepted
professional and husbandry practices. As we discussed in our
proposal, while we agree that the attending veterinarian should be
given some latitude in determining cage size, we believe that such
decisions should be made in the context of specific minimum space
requirements that would otherwise be required. In Sec. 3.80(b)(4)
as proposed (redesignated as Sec. 3.80(b)(2)(iii) in this final
rule), we provided that any exemption from the specified space
requirements must be required by a research proposal or the
judgment of the attending veterinarian, and be approved by the
facility's Committee. In the case of dealers and exhibitors, any
exemption must be required in the judgment of the attending
veterinarian, and must be approved by the Administrator.
  Several commenters expressed the opinion that the provisions as
proposed allow too much flexibility to regulated entities regarding
minimum space requirements for nonhuman primates. We consider the
minimum space requirements to be quite specific as proposed, and
are making no changes based on these comments.
  A small number of commenters stated that it would be
inappropriate to require a minimum 84'' height for category 6,
because a cage that size would not fit through an 84'' door frame
due to the door jamb or floor material. Several commenters also
stated that requiring cages of that height would necessitate the
raising of rooms in which the commenters house nonhuman primates.
We do not consider this concern to be one that will occur with any
frequency, nor to be one that warrants our changing the regulations
as proposed. We have determined that Category 6 nonhuman primates
require a minimum cage height of 84'' for their health and well-
being, and the final rule reflects this determination. The height
requirements are based on the NIH Guide, which is already followed
by many members of the research community. Further, we do not
believe that the problem of moving cages through doorways is a
significant practical one. Cages can be disassembled and
reassembled when necessary.
  A number of commenters opposed the proposed requirement that,
when more than one nonhuman primate is housed in a primary
enclosure, the minimum space provided be the sum of the minimum
space requirements that must be provided for each nonhuman primate
housed in the enclosure. The commenters stated that such a formula
could lead to unworkable housing and care situations, might reduce
research conducted to find data to define space requirements or
cage enrichments, and would not take into account variables among
individual animals and species. We continue to consider the space
requirements for group-housed animals to be necessary and workable
as proposed. In terms of practical implementation, they are similar
to the existing regulations, which require a minimum amount of
space for each animal housed in an enclosure. Further, we do not
believe they will have a negative effect on research regarding
space requirements. With the addition to the regulations of a
mechanism for approval of innovative housing, incentive exists to
conduct further research on the space requirements of nonhuman
primates, and on innovative housing that will meet those needs.
  One commenter stated that mothers with infants under 6 months of
age should be housed in enclosures that are based on the combined
minimum space requirements for the mother and the infants, as
determined by weight. We do not consider such a requirement
necessary, based on species behavior which typically involves
carrying and attention to the infant. We are therefore making no
changes based on this comment. One commenter stated that infant
primates should be allowed to stay with their mothers until 12
months of age, instead of being weaned unnecessarily at 6 months of
age. Another commenter stated that the regulations regarding
mothers with infants should refer to "unweaned infants" rather than
infants less than 6 months of age, to prevent premature separation
from the mother. The regulations as proposed do not require weaning
at any particular age. The provisions regarding when infants need
additional space is based on both nonhuman primate behavior and the
size of the infant. Most nonhuman primates require additional space
by 6 months of age, whereas weaning ages may vary greatly.
  As we noted in the "Supplementary Information" of this rule under
the heading "Effective Dates," many commenters pointed out that
certain of the new standards would require affected facilities to
make extensive structural changes. The alteration of the minimum
space requirements for nonhuman primates is one such change in the
standards. Therefore, in Secs. 3.80(b)(1) (i) and (ii) of this
rule, we are continuing the existing regulations for minimum space
requirements for nonhuman primates for the period prior to February
15, 1994. On and after February 15, 1994, facilities must comply
with the minimum space requirements for nonhuman primates set forth
in Sec. 3.80(b)(2)(i) through Sec. 3.80(b)(2)(iv) of this rule
(redesignated from Secs. 3.80(b) (1) and (2), and Sec. 3.80(b) (4)
and (5), respectively, of the proposed rule).
  In our proposal, we stated that we encourage the design and
development of primary enclosures that promote the psychological
well-being of nonhuman primates by providing them with sufficient
space and unrestricted opportunity for movement and exercise, and
by allowing them to interact physically and socially with other
nonhuman primates. Accordingly, we proposed to allow the use of
primary enclosures that do not precisely provide the minimum space
otherwise required. Under our proposal, an applicant would be
required to demonstrate that the proposed primary enclosure
provides sufficient space and is designed so that the nonhuman
primates can express species-typical behavior. We proposed that
approval of alternative housing at research facilities would be the
responsibility of the facility's Committee. The use of such
alternative housing by dealers and exhibitors would be dependent
upon approval of the Administrator.
  A very large number of commenters addressed the provisions
regarding innovative housing for nonhuman primates. Most of these
commenters supported the provision. These commenters recommended
that pole-housing be included as an acceptable method of innovative
housing. We continue to consider it appropriate that approval or
denial of alternative housing be done on a case-  by-case basis,
and are making no changes based on these comments. A large number
of commenters objected to what they termed a "loophole" that would
permit smaller primary enclosures than those otherwise required by
the regulations. We consider adequate space to be one of the
primary factors in the humane treatment of animals regulated under
the Act. The specific space requirements we set forth in the
proposal were based on the best current information available to
us. However, we believe it would be unrealistic to conclude that
the design standards currently in general use cannot be improved
upon, based on continuing research in engineering and animal
behavior. Establishing a mechanism for approval of innovative
enclosures will likely foster such research. It is also important
to note that innovative enclosures will not qualify for approval
unless they provide the animals with a sufficient volume of space
and the opportunity to express species-typical behavior, and that
such enclosures will be subject to APHIS inspection.  

  Environment Enhancement to Promote Psychological Well-Being--
Section 3.81  

  In proposed Sec. 3.81, titled "Environment enhancement to promote
psychological well-being," we proposed that dealers, exhibitors,
and research facilities be required to develop, document, and
follow a plan for environment enhancement adequate to promote the
psychological well-being of nonhuman primates. We proposed to
require that the plan be in accordance with the currently accepted
professional standards as cited in appropriate professional
journals or reference guides and as directed by the attending
veterinarian. We also proposed to require that the plan be made
available to APHIS, and, in the case of research facilities, to
officials of any pertinent Federal funding agency. We proposed to
require that the plan address certain specified areas, including:
(1) Social grouping; (2) environmental enrichment; (3) special
considerations of nonhuman primates requiring special attention;
and (4) restraint devices.
  A very large number of commenters supported in general the
promotion of psychological well-being in nonhuman primates. A
number of others requested that "psychological well-being" in
nonhuman primates be defined. A number of commenters stated either
that the term is undefinable and cannot be measured as an
improvement for nonhuman primates, that it is impossible to
establish valid standards for the animals' psychological well-
being, that the proposed standards might be detrimental to nonhuman
primates, that the proposed regulations regarding psychological
well-being were excessive, or that the proposed standards were not
based on scientific analyses. As we discussed in our proposal, what
constitutes psychological well-being in each species and each
primate does not lend itself to precise definition. As an agency,
however, we are mandated by Congress to establish standards to
promote the psychological well-being of nonhuman primates. As we
discussed earlier, the information received from the expert
committee on primates, consultations with HHS, other experts in
primates, and the large number of comments received on the subject,
demonstrate that the psychological well-being of nonhuman primates
involves a balance of several factors or areas of concern. This
concept involves sufficient space for the animals; methods to
stimulate the animals and occupy some of their time, both
physically and mentally (i.e., environment enrichment); and methods
of social interaction with other nonhuman primates or humans.
  The promotion of the psychological well-being of nonhuman
primates is a critical component in our rewriting of the animal
welfare regulations, and is one that we are specifically mandated
to address under the Act. Statutorily, we have the responsibility
and obligation to establish such provisions as we believe are
necessary for a physical environment to promote the animals'
psychological well-being, but do not have the authority to
interfere with actual research.
  One commenter stated that the regulations should not limit
resource materials for the development of environment enhancement
plans to professional journals and reference guides. The
regulations as proposed require adherence to such information
sources as a minimum. They do not prohibit the use of other
research sources in establishing the required plans.
  A large number of commenters urged that the regulations include
specific requirements for exercise and social grouping of nonhuman
primates, as proposed in our original proposal. We disagree with
the commenters that it would be in the best interests of nonhuman
primates to impose uniform rigid standards on all facilities.
Because of the diverse needs of varying species and individual
animals, it might actually prove harmful to establish the same set
of specific standards for all animals.
  A small number of commenters stated that any release of nonhuman
primates for exercise and social interaction should be documented.
We do not consider such documentation necessary for enforcement
purposes. With the requirement for a written plan, and inspections
by Department personnel, we do not expect enforcement problems with
the regulations as proposed.
  We are making two additions to Sec. 3.81 as proposed to clarify
our intent. That section requires that the plan for environment
enhancement be made available to APHIS. It was our intent that the
plan be made available upon request. We are therefore adding
language to Sec. 3.81 as proposed to clarify that intent.
Additionally, we are specifying that the required plan for
environment enhancement must be an appropriate one.
 
  Social Grouping.
 
  We proposed in Sec. 3.81(a) that the environment enhancement plan
include specific provisions to address the social needs of nonhuman
primates of species known to exist in social groups in nature. As
proposed, such specific provisions must be in accordance with
currently accepted professional standards, as cited in appropriate
professional journals or reference guides, and as directed by the
attending veterinarian.
  A number of commenters opposed the proposed provisions regarding
the social needs of nonhuman primates. Several commenters said the
proposed provisions were vague and should be clarified, or that
more specific criteria for meeting social needs should be set
forth. Many others offered specific recommendations for addressing
the animals' social needs. The proposed provisions regarding the
social needs of primates were intentionally written so as to allow
some flexibility and professional discretion to individual
facilities in meeting the social needs of the animals. Exactly how
the animals' social needs are met is of less importance than the
fact that they are met.
  One commenter stated that requiring that the social needs of
nonhuman primates be met exceeds the intent of Congress. We do not
agree with the commenter. In general, nonhuman primates are social
animals, with the need for socialization constituting a significant
component of their psychological makeup. Promotion of the animals'
psychological well-being requires that their social needs be
addressed.
  A small number of commenters stated that caging nonhuman primates
for their lifetime has proven to be advantageous both to the
animals' care and to their welfare. We disagree that individually
housing nonhuman primates, without addressing their psychological
and social needs, is adequate to promote their psychological well-
being. Such practices will not be in compliance with these
regulations.
  A number of commenters stated that social housing should not be
mandatory, but rather should be one of the possible methods of
enriching the animals' environment. Other commenters stated that
multiple housing of animals is inappropriate in most cases. One
commenter stated that socialization should be based on individual
housing that allows for visual and auditory contact among nonhuman
primates, rather than group housing. One commenter stated that,
under the regulations as proposed, facilities might be precluded
from housing only one nonhuman primate. We are making no changes
based on these comments. The regulations as proposed do not
specifically call for group housing of nonhuman primates. They do,
however, require that the social needs of nonhuman primates be
addressed. In most cases, we expect group housing to be the most
efficient and appropriate method of ensuring that the animals'
social needs are met.
  Many commenters stated that social grouping would endanger the
animals' welfare by increasing noise and fighting. We are making no
changes based on these comments. The regulations in proposed Sec.
3.81(a)(3) require that nonhuman primates be compatible before
being housed together. A number of other commenters, while
supporting in general group housing of nonhuman primates, stated
that in certain cases it might be inappropriate and detrimental. We
agree that such situations might exist, and consider them to be
already addressed in Sec. 3.81(a)(3) as proposed.
  A small number of commenters stated that housing primates in
groups will facilitate spread of infectious diseases. We consider
the regulations as proposed adequate to prevent the spread of
disease among group-housed animals. Section 3.81(a)(2) as proposed
requires the isolation of nonhuman primates that have or are
suspected of having a contagious disease. Additionally, the
cleaning and sanitization requirements elsewhere in the regulations
as proposed are designed to minimize disease introduction and
spread.
  A number of commenters expressed concern that group housing of
nonhuman primates would result in increased physical and mental
stress and trauma to animal handlers. As we discussed in our
proposal, while we agree that housing primates in groups presents
some logistical concerns that are not present when animals are
housed individually, we believe that such concerns can be addressed
by proper training of handlers and appropriate housing
configurations.
  A small number of commenters stated that meeting the requirements
regarding the social needs of nonhuman primates will require
facilities to increase their staffs. One commenter expressed
concern that providing for group housing for primates will involve
significant expense. We do not agree that compliance with the
regulations as proposed will necessarily require large staffing
increases. In any event, some additional staffing, if necessary,
would not be unreasonable in response to the amendments to the Act.
Whether additional staffing is needed will depend on how the
facility meets the social needs of the nonhuman primates, on the
physical configuration of the facility, and on the facility's
method of operations. In some cases, housing animals in groups is
less labor-intensive than housing them individually.
   One commenter asserted that individually housing primates is
appropriate in cases where the animal is used in experiments
lasting 12 months or less. We are making no changes based on this
comment. The Act does not distinguish between animals kept for a
short term and those kept long-term, and requires minimum standards
for all animals, regardless of the duration involved. The commenter
presented no evidence to support the conclusion that individual
housing for 12 months or less is not psychologically distressing to
nonhuman primates, and we are not aware of scientific data
supporting such a conclusion.
  A small number of commenters stated that the fact that primates
socialize in nature neither indicates nor suggests that they are
psychologically harmed by eliminating contact with other nonhuman
primates. We disagree. In general, nonhuman primates are social
animals by nature. In providing for the psychological well-being of
nonhuman primates, such social needs must be taken into account.
Other commenters stated that social grouping has not been proven to
assure psychological well-being or to prevent development of
stereotypical behaviors. We are making no changes based on these
comments. No practices or regulations can guarantee the
psychological well-being of nonhuman primates in all cases.
However, the most compelling evidence available indicates that
certain practices, including housing nonhuman primates in groups,
can promote psychological well-being. In general, housing in groups
promotes psychological well-being more assuredly than does
individual housing. On the other hand, individual housing has been
demonstrated to give rise to significantly more stereotypical
behavior than does group housing.
  A small number of commenters recommended that compatible groups
of nonhuman primates be required to remain together. Others
recommended that primate infants remain with their dam for a
minimum number of years, ranging from 2 years to 4 years. A small
number of commenters recommended that the regulations allow primate
families to be housed together. Others requested that such housing
be required. One commenter stated that conspecifics should be
housed together whenever possible. While we encourage such
practices where possible, and nothing in the regulations as
proposed prohibits them, we do not consider them practical in all
cases. We are therefore making no changes based on these comments.
  A small number of commenters suggested that behavioral scientists
or animal psychologists may be more qualified than attending
veterinarians to establish environment enhancement plans. Under the
regulations as proposed, the attending veterinarian has
responsibility for directing the development of the plan. However,
nothing in the proposed regulations prohibits consultation with
other animal experts. On the contrary, we expect the attending
veterinarian to carry out whatever consultation and professional
research he or she deems necessary to adequately advise the
facility. One commenter stated that at research facilities, the
environment enhancement plan should be designed based on
consultation with and review by the Committee. As noted, the
attending veterinarian may consult as necessary in directing
development of the plan. Further, at research facilities, animal
care programs are subject to annual review by the Committee.
  A large number of commenters stated that group housing could
significantly interfere with research where social grouping, or the
lack of it, is a factor. Conversely, a very large number of
commenters stated that exemptions for research should be allowed
only if it can be documented that social housing is interfering
with the research. Under Sec. 2.38(k)(1) of part 2 of the
regulations, research facilities are required to comply with the
standards in part 3, except in cases where exceptions are specified
and justified in the research proposal to conduct the specific
activity and are approved by the facility's Committee. This
provision exists to safeguard approved research.
  In order to make clear situations where group housing would not
be appropriate, we proposed to specify in Secs. 3.81 (a)(1),
(a)(2), and (a)(3) that the environment enhancement plan may
provide that: (1) A nonhuman primate that exhibits vicious or
overly aggressive behavior, or is debilitated because of age or
other conditions should be housed separately; (2) a nonhuman
primate or group of nonhuman primates that has or is suspected of
having a contagious disease must be isolated from healthy animals
in the colony as directed by the attending veterinarian; and (3)
nonhuman primates may not be housed with other species of nonhuman
primates or animals unless they are compatible, do not prevent
access to food, water, and shelter by individual animals, and are
not known to be hazardous to the health and well-  being of each
other. We also proposed that compatibility of nonhuman primates
must be determined in accordance with generally accepted
professional practices and actual observations, as directed by the
attending veterinarian, to ensure that the animals are compatible.
Additionally, we proposed that individually housed nonhuman
primates must be able to see and hear nonhuman primates of their
own or compatible species, unless the attending veterinarian
determines that it would endanger their health, safety, or well- 
being. A small number of commenters expressed opposition to all
individual housing of nonhuman primates. We consider it obvious
that situations will arise where housing in groups is self-
evidently more harmful than helpful, and are making no changes
based on the comments.
  A small number of commenters stated that the specific provisions
described in the preceding paragraph should be deleted, because,
according to the commenters, they all fall under the category of
currently accepted professional standards. We consider the
provisions in question minimum standards applicable in all
situations. We are therefore making no changes based on the
comments.
 
  Environmental Enrichment
 
  In proposed Sec. 3.81(b), we proposed to require that the plan
discussed above include provisions for enriching the physical
environment in primary enclosures by providing means of expressing
noninjurious species-typical activities, and to provide that
species differences should be considered when determining the type
or methods of enrichment. We provided in the proposal that examples
of environmental enrichments include providing perches, swings,
mirrors, and other increased cage complexities; providing objects
to manipulate; varied food items; using foraging or task-oriented
feeding methods; and providing interaction with the care giver or
other familiar and knowledgeable person consistent with personnel
safety precautions.
   Many commenters stated that the regulations should list all of
the specific areas that must be addressed in an environmental
enrichment plan. Some commenters expressed concern that the lack of
a guide in choosing environment enrichments could result in
prolonged experimentation at the expense of the primates' health
and research funds. A number of commenters submitted specific
practices that they believed should be included in achieving
environmental enrichment. One commenter recommended that the
Department set forth an exhaustive list of unacceptable practices.
The provisions in Sec. 3.81 of the proposal set forth broad
standards that must be met to ensure the psychological well-being
of nonhuman primates. Section 3.81(b) is more specific, requiring
enrichment of the physical environment by providing means of
expressing species-typical activities. Examples of such enrichment
are provided. Beyond this, however, we do not consider it

appropriate to attempt to set forth an exhaustive list of methods
of achieving environmental enrichment. Because of the many
variables affecting how best to enrich the environment for species
and animals that have different needs and that are held under
differing conditions, such a listing would be unnecessarily
restrictive, and would not allow for advances in animal behavioral
research. Nor do we consider it possible or necessary to set forth
a comprehensive list of unacceptable practices. Practices will be
considered unacceptable if they do not promote compliance with the
standards in Sec. 3.81 as proposed.
   Several commenters recommended that a panel of experts in
primatology should be formed to develop standardized plans for
environmental enrichment of nonhuman primates. For the reasons set
forth in the preceding paragraph, we do not consider it appropriate
to attempt to set forth a comprehensive listing of specific
standards for environmental enrichment. A committee of the nature
described by the commenters was convened prior to the initiation of
this rulemaking process. We have drawn on the recommendations of
that committee in developing this rulemaking.
  One commenter stated that the regulations should list what
species-typical behaviors are required, because all behaviors are
not possible in a cage. We do not consider such a change practical
or necessary, and expect common sense, along with professional
judgment, to assist in determining what behaviors can and should be
promoted in caged animals.
  One commenter stated that professional standards for
environmental enrichment do not exist. We disagree. While we
welcome additional research with regard to environmental
enrichment, sufficient professional consensus already exists to
make plans for such enrichment appropriate. A small number of
commenters stated that there is no definable species-typical
behavior in captive nonhuman primates. We disagree. Species-typical
behavior has been defined in both wild and captive populations, and
sufficient data exists to meet the standards as proposed.
 
  Special Considerations
 
  In Sec. 3.81(c) of the proposal, we proposed that certain
categories of nonhuman primates must receive special attention
regarding enhancement of their environment. We proposed to require
facilities to provide for the special psychological needs of (1)
infants and young juveniles, (2) those that show signs of being in
psychological distress through behavior or appearance, (3) those
used in research for which the Committee-approved protocol requires
restricted activity, (4) individually housed nonhuman primates that
are unable to see and hear nonhuman primates of their own or
compatible species, and (5) great apes weighing over 110 lbs. (50
kg).
   As proposed, this special attention would be based on the needs
of the individual species and in accordance with the instructions
of the attending veterinarian. Some examples of special attention
would be special feeding plans for juveniles, and increased one-on-
one care for animals showing psychological distress.
  A small number of commenters requested that additional criteria
be provided as to what constitutes special attention. We are making
no changes based on these comments. The form this special attention
must take will depend to a great extent upon what form of
environment enhancement is afforded all of the nonhuman primates in
a facility under the required plan. Rather than restrict forms of
special attention to a finite list, we consider it appropriate as
proposed to base the special attention on the needs of the
individual species, in accordance with the instructions of the
attending veterinarian.
   Several commenters stated that, at research facilities, the
Committee and not the attending veterinarian should determine what
special attention is necessary. We consider it appropriate in
general to give responsibility for determining appropriate special
attention to the attending veterinarian. However, the regulations
do not prohibit consultation with the Committee.
   A number of commenters addressed the requirement for special
attention for nonhuman primates that show signs of being in
psychological distress through behavior or appearance. A small
number of commenters recommended that the term "psychological
distress" be changed to "psychological pathology," because,
according to the commenters, psychological distress can be of a
transient or insignificant nature. We consider the term
"psychological distress" to better convey our intent that
facilities remedy even transient psychological disturbances than
does the change recommended by the commenters, and are making no
changes based on these comments. A small number of commenters
stated that if a nonhuman primate exhibits stereotypical movements,
such as hair pulling or similar signs of psychological distress,
consultation with outside experts should occur. Under the
regulations, a facility is required to provide adequate veterinary
care to its animals. In certain cases, the attending veterinarian
may consider it necessary to conduct outside consultation in
administering such care. However, we do not consider it necessary
or practical to include in the regulations a compendium of what
constitutes adequate veterinary care. One commenter requested that
the regulations include a definition of "psychological distress."
We consider the provision in question to be clear as written. Any
behavior or appearance that would indicate abnormal stress must be
addressed.
  One commenter requested that the regulations include examples of
restricted activity in research situations that would require
special attention. We are making no changes based on this comment.
The nature of restricted activity deemed necessary under a research
protocol is subject to approval by the Committee. We do not
consider it appropriate to attempt to enumerate in the regulations
examples of restrictions that are the responsibility of the
Committee.
  Several commenters recommended that the provisions in Sec.
3.81(c)(5) as proposed be broadened to require special attention
for great apes other than those weighing over 110 lbs. (50 kg). We
are making no changes based on these comments. The special
attention to be provided great apes over 110 lbs. is related to
their need for additional space over that required for other great
apes in Sec. 3.80. For this reason, we do not consider it necessary
to require special attention for the smaller great apes.
 
  Restraint Devices
 
  We also proposed that the plan to be developed by the facility
include provisions addressing restraint devices. We proposed that
nonhuman primates must not be maintained in restraint devices
unless required for health reasons as determined by the attending
veterinarian, or by a research proposal approved by the Committee
at research facilities. As proposed, maintenance under such
restraint would be limited to the shortest period possible. We
proposed that, in instances where long-term (more than 12 hours)
restraint is required, the nonhuman primate must be provided the
opportunity daily for unrestrained activity for at least one
continuous hour during the period of restraint, unless continuous
restraint is required by the research proposal approved by the
Committee at research facilities.
   A small number of commenters supported the proposed provisions
regarding restraint devices as written. A small number of
commenters stated that the proposed exercise period for restrained
nonhuman primates is insufficient. Upon review of the comments, we
continue to consider release for one continuous hour during the
period of restraint adequate to promote the animal's well-being,
and are making no changes based on these comments.
   A small number of other commenters recommended that it be
required that restrained nonhuman primates receive social contact
with a conspecific primate during the exercise period, and that all
animals placed in restraint devices with the approval of the
facility's Committee be inspected by the Committee prior to the
Committee's granting approval for use of the restraint device. We
are making no changes based on these comments. The special needs of
restrained animals are already addressed in Sec. 3.81(c)(3) as
proposed. Further, the restraint of animals must be reviewed by the
Committee at least twice annually, in accordance with part 2 of the
regulations. Similarly, the recommendation of the commenter who
suggested that the Committee be required to investigate
alternatives before approving research protocols is already
addressed in Sec. 2.31(d)(1)(ii) of part 2 of the regulations.
   A small number of commenters expressed concern that requirements
for the exercise of restrained animals would interfere with
research protocols. Some of these commenters recommended that
requirements for restrained animals be left to the Committee. We
disagree that the provisions as proposed regarding restrained
animals would interfere with research. Under Sec. 2.38(k)(1) of
part 2 of the regulations, exceptions to the standards in part 3
may be made when such exceptions are specified and justified in the
proposal to conduct an activity and are approved by the Committee.
For this reason, we are not adopting the recommendation of the
commenter who stated that continuous restraint for more than 12
hours should be prohibited in all cases.
   A small number of commenters requested that the regulations
differentiate between restriction of movement and restraint. We are
making no changes based on these comments. The regulations as
proposed clearly pertain to maintenance in restraint devices. We
consider the reference adequate to convey our intent as written.
 
  Exemptions--Section 3.81(e)
 
  In Sec. 3.81(e)(1) of the proposal, we proposed that the
attending veterinarian may exempt individual nonhuman primates from
participation in environment enhancement plans because of their
health or condition, or in consideration of their well-being, and
must document the basis of such exemptions for each nonhuman
primate. The basis of the exemption would have to be recorded by
the attending veterinarian for each nonhuman primate. Unless the
basis for an exemption is a permanent condition, it would be
required that the attending veterinarian review the exemption at
least every 30 days.
  We proposed in Sec. 3.81(e)(2) of the proposal that the research
facility's Committee may exempt individual nonhuman primates from
some or all of the environment enhancement plans, for scientific
reasons set forth in the research proposal. We proposed to require
that the basis of such exemption be documented in the approved
proposal and be reviewed at appropriate intervals as determined by
the Committee, but not less than annually.
   We additionally proposed to require that records of any
exemptions be maintained by the dealer, exhibitor, or research
facility and be made available to USDA officials or officials of
any pertinent funding Federal agency upon request.
  A small number of commenters expressed opposition to what they
termed "loopholes" in the regulations, which they stated would
allow researchers to house animals in isolation merely by claiming
necessity. As discussed above, we do not have the authority to
interfere with approved research, and are making no changes based
on these comments. Several commenters opposed exemptions of any
sort. Permitting exemptions based on approved research protocols is
consistent with the provisions of the Act that we not interfere
with the design, outlines, or guidelines of actual research. It may
be necessary to the health and well-being of the animals to allow
for exemptions for medical reasons. We are therefore making no
changes based on these comments.
  A number of commenters stated that the provisions for exemptions
will require excessive paperwork, will be costly, and will subject
the attending veterinarian's opinion to unqualified review.
Throughout these regulations, we have attempted to minimize
recordkeeping requirements. However, we continue to consider it
necessary in facilitating inspection and enforcement that
exemptions from the environment enhancement plan granted by the
attending veterinarian be documented and be subject to review by
the Department. We do not agree that it is necessary, however, as
one commenter recommended, that documentation of exemptions be
provided to the Department. Under the proposed regulations, these
records must be made available to APHIS upon request. We consider
that provision adequate to ensure proper inspection and
enforcement.
  A small number of commenters stated that exemptions should be
reviewed by the attending veterinarian "as needed," rather than
every 30 days as proposed. We are making no changes based on these
comments. Because of the importance accorded the promotion of the
psychological well-being of nonhuman primates under the Act, and
because medical conditions in many cases change frequently, we
consider it necessary and appropriate to ensure that exemptions to
the environment enhancement plan be reviewed on a regular basis, to
ensure that the exemptions are not in effect any longer than is
necessary.
  A small number of commenters stated that the facility should
designate the individual most qualified to grant exemptions,
because the attending veterinarian may not be the most qualified
individual available with regard to animal behavior, and seldom has
contact with nondiseased primates. A small number of commenters
stated that the Committee, and not the attending veterinarian,
should have final authority at research facilities with regard to
exemptions. We are making no changes based on these comments. The
exemptions granted by the attending veterinarian will be for
medical reasons, which he or she is qualified through training to
assess.
  Several commenters stated that the attending veterinarian should
be permitted to exempt either individual nonhuman primates or
groups of nonhuman primates from participation in the environment
enhancement plan, and that exemptions for permanent conditions,
including old age, should not need to be reviewed every 30 days. We
do not agree. To ensure each nonhuman primate's participation in
the environment enhancement plan to the fullest extent possible,
exemptions need to be made on an individual basis, according to the
health, condition, and well-being of the animal. No blanket
exemptions for groups or conditions are acceptable.
  Several commenters recommended that it be required that
exemptions made by the Committee be reviewed every 30 days. We do
not agree with the commenters' recommendation. Exemptions made by
the Committee will be made for reasons relating to an approved
research protocol. Such exemptions are not subject to as rapid
change as exemptions for medical reasons, and do not need to be
reviewed as often as those for medical reasons.
 
  Feeding--Section 3.82
 
  In Sec. 3.82(a) of our proposal, we proposed minor changes to
existing Sec. 3.79 to require that the amount of food, type of
food, and frequency of feeding be appropriate for the species,
size, age, and condition of the nonhuman primate, and for the
conditions in which the nonhuman primate is maintained, and be in
accordance with generally accepted professional and husbandry
practices and nutritional standards. We also proposed in Sec.
3.82(a) that the food must be clean, wholesome, and palatable.  
One commenter supported the provisions of proposed Sec. 3.82 as
written. Another commenter stated that, in group housing, there is
no way to ensure that food will remain clean, uncontaminated,
wholesome, and palatable. We are making no changes to our proposal
based on this comment. As we stated in our proposal, while we agree
that the food may not always remain clean after it is offered to
the nonhuman primates, it is possible and necessary to make sure
that the food is in appropriate condition at the time it is
offered.
   A small number of commenters stated that each nonhuman primate
should be fed a varied diet, with at least three different feed
types offered at each feeding. These commenters also stated that
monkey chow with outdated expiration dates should not be fed to
nonhuman primates. Other commenters stated that a varied diet
should be required, with chow forming no more than 50 percent of a
laboratory nonhuman primate's diet. One commenter recommended that
varying feeding methods be required. We agree that food should not
be offered when its quality has deteriorated. This concern is
already addressed under the regulations as proposed, which requires
that food be palatable to the animals and of sufficient nutritive
value to maintain a healthful condition and weight range for the
animal, and to meet its normal daily nutritional requirements.
However, as we discussed in our proposal, whether a particular
animal or species of nonhuman primate would benefit from a varied
diet or varying feeding methods is a decision that can best be made
by the attending veterinarian. Therefore, we are retaining the
provisions in Sec. 3.81(b) as proposed that include "varied food
items" and "foraging and task-  oriented feeding methods" as
examples of environmental enrichment.
   One commenter recommended that primates should be provided with
natural, unprocessed fruits to aid clinicians in judging the well-
being of the animals, based on their consumption of these items. We
do not consider the consumption of any particular food to be a
reliable indicator of an animal's well-being and are making no
changes based on this comment.
   We proposed in Sec. 3.82(b) that nonhuman primates must be fed
at least once each day, except as otherwise might be required to
provide adequate veterinary care, with infants and juveniles
required to be fed as often as necessary in accordance with
generally accepted professional and husbandry practices and
nutritional standards. Several commenters specifically supported
these provisions as written. One commenter recommended that the
regulations require that primates be fed at least twice daily.
Based on our experience enforcing the regulations, we continue to
consider once daily feeding to be adequate for nonhuman primates,
and are making no changes based on the comment.
  We proposed to require in proposed Sec. 3.82(c) that multiple
feeding sites be made available if members of dominant nonhuman
primate or other species are fed together with other nonhuman
primates. A number of commenters specifically supported proposed
Sec. 3.82(c) as written. A number of commenters opposed the
provisions regarding multiple feeding sites, stating that, due to
dominance behavior, multiple feeding sites would not ensure that
all animals will get food. We are making no changes based on these
comments. Whatever practical problems have to be met to provide
each nonhuman primate access to food each day, they cannot justify
ignoring the feeding needs of the animals housed at a facility.
  Several commenters stated that multiple feeding sites should be
required only if individuals are unable to feed due to social
dominance relationships. As worded in the proposal, Sec. 3.82(c)
bases the need for multiple feeding sites on the presence of
dominant animals. Such a premise implies that dominant animals will
hinder other animals from adequate access to food. We therefore
consider the commenters' recommendation to be addressed adequately
by the regulations as proposed.
  Section 3.82(c) as proposed also requires observation of the
feeding practices of the animals to determine that each receives a
sufficient amount of food. One commenter stated that observation at
each feeding might be impractical; that it is sufficient to observe
every third day and regroup the animals with compatible peers if
necessary. As worded, the regulations require only that observation
be carried out to ensure that all animals receive sufficient food.
No specific frequency of observation is provided for. One commenter
objected to the requirement for observation, and suggested instead
that excess food be offered to ensure that all animals have enough
to eat. We do not agree with the commenter. Excess food may be
detrimental to the health and well-being of the animals, and may
create pest problems.
   A number of commenters suggested that methods other than
observation be used to determine whether nonhuman primates are
being fed enough. The methods recommended by the commenters
included monitoring the animals' weight and coat condition. The
regulations as proposed already require that the food fed to
nonhuman primates must be of a sufficient quantity and have
sufficient nutritive value to maintain a healthy condition and
weight range of the animal. Although these are valid parameters,
they are not affected exclusively by the amount of food eaten. The
only way to be certain that all animals receive a sufficient
quantity of food is by direct observation.
   We proposed to continue to require sanitization of food
containers at least once every two weeks and also proposed to
require that food containers be sanitized whenever used to provide
food to a different nonhuman primate or social grouping of nonhuman
primates. We specified that approved methods of sanitization would
be those methods provided in proposed Sec. 3.84(b) for sanitization
of primary enclosures. Several commenters specifically supported
these provisions as written. One commenter stated that it may be
impossible to keep food dry in outdoor facilities. We disagree.
Feeders can be constructed so as to keep food dry and protected
from the weather. We are therefore making no changes based on this
comment.
 
  Watering--Section 3.83
 
  In proposed Sec. 3.83, we proposed minor changes to existing Sec.
3.80 to require that sufficient potable water be provided to the
nonhuman primates. We proposed to retain the requirement that if
water is not available to the nonhuman primates at all times, it
must be offered to them at least twice a day, and we proposed to
add a requirement that the water be offered for at least 1 hour
each time it is offered. Under our proposal, the attending
veterinarian could vary these requirements whenever necessary to
provide adequate veterinary care to the nonhuman primates. We
proposed to continue to require sanitization of water containers at
least once every 2 weeks and also to require sanitization when used
to provide water to a different nonhuman primate or social grouping
of nonhuman primates. We specified that approved methods of
sanitization would be those methods provided in proposed Sec.
3.84(b)(3) for sanitization of primary enclosures.
  A small number of commenters specifically supported proposed Sec.
3.83 as written. A number of commenters recommended that we require
that potable water be provided continuously under all
circumstances, or that at least 4 hours pass between the twice
daily watering, to account for species differences. Other
commenters stated that the proposed requirements regarding how
often nonhuman primates must be offered water were too rigid, and
that a schedule for watering should be established according to
professional discretion. Based on our experience enforcing the
regulations, we believe that it is necessary for the well-being of
nonhuman primates to offer them water at least twice daily. Upon
review of the comments, however, we agree that greater emphasis
needs to be placed on the needs of individual animals and species.
We are therefore providing in this final rule that if potable water
is not continually available to nonhuman primates, it must be
offered as often as necessary to ensure their health and well-
being, but not less than twice daily for at least 1 hour each time,
unless otherwise restricted by the attending veterinarian, or as
required by the research proposal approved by the Committee at
research facilities.
 
  Cleaning, Sanitization, Housekeeping, and Pest Control--Section 
3.84
  
  In our proposed revisions to existing Sec. 3.81, we included the
requirement that excreta and food waste be removed from primary
enclosures daily, and from underneath them as often as necessary to
prevent an excessive accumulation of feces and food waste, to
prevent the nonhuman primates from becoming soiled, and to reduce
disease hazards, insects, pests, and odors. We proposed to require
that fixtures inside primary enclosures, such as bars and shelves,
must be kept clean and be replaced when worn. We also proposed that
dirt floors, floors with absorbent bedding, and planted areas in
primary enclosures must be spot-cleaned with sufficient frequency
to ensure all animals the freedom to avoid contact with excreta, or
as often as necessary to reduce disease hazards, insects, pests,
and odors. We proposed to require that if the nonhuman primates
engage in scent marking, hard surfaces in the primary enclosures
must be spot-cleaned daily.
  A small number of commenters supported the provisions in proposed
Sec. 3.84 as written. A small number of commenters stated that the
regulations should require that excreta and food waste be removed
from primary enclosures only as often as necessary, rather than
daily as proposed. We are making no changes based on these
comments. We cannot envision many situations where daily cleaning
of the inside of a primary enclosure would not be necessary, and
therefore do not consider it appropriate to allow for departures
from that frequency.
  One commenter stated that spot-cleaning of hard surfaces in
primary enclosures housing scent-marking species should be required
to be done at regular intervals according to professional
discretion, rather than daily as proposed. We disagree. By spot-
cleaning, the environment of the scent-marking species will not be
unduly disrupted, and we continue to consider daily spot-  cleaning
necessary to protect the health and well-being of the animals.
   We also proposed that when using water to clean the primary
enclosure, a stream of water must not be directed at a nonhuman
primate. Additionally, when steam is used to clean the primary
enclosures, nonhuman primates would have to be removed or
adequately protected to prevent them from being injured. We
proposed to require that indoor primary enclosures be sanitized
once every two weeks, and included language to make clear that used
primary enclosures would have to be sanitized before being used to
house either another nonhuman primate or group of nonhuman
primates.
  A very large number of commenters stated that the regulations
should require that nonhuman primates be removed from primary
enclosures before those enclosures are cleaned, particularly by
steam. We recognize clearly the potential dangers to animals that
are not properly protected when steam cleaning is taking place. It
was our intent in wording the proposal as we did to make it clear
that animals must be removed from their primary enclosures during
steam cleaning, unless they are otherwise adequately protected.
However, upon review of the comments regarding this provision, we
consider it appropriate to reword that provision to clarify our
intent further. Additionally, we consider it appropriate to reword
the requirement regarding the wetting of animals during cleaning,
again to clarify our intent. Therefore, in this final rule, we are
providing in Sec. 3.84(a) that when steam or water is used to clean
the primary enclosure, whether by hosing, flushing, or other
methods, nonhuman primates must be removed, unless the enclosure is
large enough to ensure that the animals would not be harmed,
wetted, or distressed in the process. In prohibiting the wetting of
animals, our intent is to prohibit the direct wetting of animals
during the cleaning process. We do not consider it deleterious to
the animals, for example, to have their feet wetted by water
resulting from cleaning.
  One commenter stated that many facilities use transfer cages, and
expressed concern that the proposed regulations will make it
necessary to hold or transfer animals in cages that are of equal
size to the home cage, and to sanitize this transfer cage before
holding another animal. As proposed, the standards do not prohibit
the use of transfer cages if they comply with the transport
enclosure requirements in Sec. 3.87(e) as proposed. The intent of
the sanitization requirements as proposed is to prohibit the use of
soiled cages and to limit the transmission of disease agents
between animals from different rooms or groups. Under the
regulations as proposed, an enclosure could be used successively
for animals of the same group, unless it becomes soiled.
  A number of commenters recommended that perches, bars, and
shelves should be replaced when excessively worn or soiled. We are
making no changes based on this comment. The regulations as
proposed already require that these fixtures be replaced when worn.
We consider it excessive and unnecessary, however, to require their
replacement when they are soiled.
   In proposed Sec. 3.84(b)(3), we included specific acceptable
means of sanitization, that are the same as those in the existing
regulations, with one addition. We proposed to allow also the use
of detergent/disinfectant products that accomplish the same purpose
as the detergent/disinfectant procedures specified in the existing
regulations.
  Several commenters stated that a daily disturbance for cleaning
would harm the psychological well-being of the nonhuman primates.
We do not believe that the simple daily removal of excreta and food
waste would be significantly stressful to nonhuman primates, and
believe it is necessary for the physical well-being of the animals.
  One commenter, addressing our proposed requirement that used
primary enclosures be sanitized before being used to house another
nonhuman primate, stated that large outdoor natural primate
habitats cannot be sanitized when animal groups are changed. We are
making no changes to our proposal based on these comments. In our
proposal, we specified that primary enclosures that could not be
sanitized using traditional means, must be sanitized by removing
contaminated material as necessary to prevent odors, diseases,
pests, insects, and vermin infestation. We consider such a
requirement reasonable, practicable, and necessary. Further, based
on our experience enforcing the regulations, we do not anticipate
that, in the types of enclosures referred to by the commenters,
entire groups of animals are changed so frequently as to make the
proposed regulation unnecessarily burdensome.
   Several commenters recommended that the proposed regulations
allow an alternate sanitization schedule, so that a scent-marked
surface remains at all times. We are making no changes to our
proposal based on these comments. The needs of scent-marking
species are already addressed in Sec. 3.84(b)(2) as proposed.
  Section 3.84(d) as proposed required that the facility must
establish and maintain an effective program for control of insects,
external parasites affecting nonhuman primates, and birds and
mammals that are pests. A number of commenters stated that the
control of bird populations around outdoor enclosures is
unnecessary because birds pose a low disease risk. We are making no
changes based on this comment. The regulations as proposed do not
require control of bird populations unless they are pests. If there
are sufficient numbers of birds to affect the health and well-being
of primates, due to possible disease transmission, it is necessary
that the bird population be controlled.
 
  Employees--Section 3.85
 
  Existing Sec. 3.82 requires that there be a sufficient number of
employees to maintain the prescribed level of husbandry practices
required by subpart D, and that the rendering of husbandry
practices be under the supervision of an animal caretaker with a
background in animal husbandry or care. We proposed minor revisions
to this section in proposed Sec. 3.85 to make clear that this
requirement would be imposed upon every person subject to the
regulations, and that the burden of making certain that the
supervisor is appropriately qualified would be on the employer
regulated under the Act. We also proposed to remove the requirement
that the supervisor be an animal caretaker.
  One commenter specifically supported the provisions of proposed
Sec. 3.85 as written. A number of commenters objected to proposed
Sec. 3.85, stating that inspectors and government administrators
are not qualified to tell facilities that they do not have enough
employees. One commenter stated that such a determination should be
left to the attending veterinarian. We are making no changes based
on these comments. As we discussed in our proposal, whether a
facility has enough employees would be determined on a case-by-case
basis. We believe that such a determination can be made based on an
evaluation of the successful performance of common husbandry and
caretaking practices and on our expert judgment of whether the
regulations are being complied with.
  A small number of commenters suggested either that employee
evaluation standards need further clarification, or that the
regulations should require that the supervisor be sympathetic
toward the well-being of nonhuman primates. We are making no
changes based on these comments. We consider the standards as
proposed applicable to all facilities as proposed, and disagree
that they would benefit from further specificity. We do not
consider it either enforceable or necessary to determine the
emotional attitude of employees, as long as they perform according
to the regulatory standards.
   One commenter stated that Sec. 3.85 as proposed should be
reworded to state that the employer is responsible only for the
training of the employees, and not for their performance. Such a
change would not convey our intent, which is to ensure compliance
with the regulations by holding the facility responsible for both
the training and performance of its employees. We are therefore
making no changes based on this comment.
 
  Transportation Standards
 
  In preparing our proposal to amend the transportation standards
we consulted the "Interagency Primate Steering Committee
Guidelines" developed by the United States National Institutes of
Health-sponsored Interagency Primate Steering Committee. The
Interagency Primate Steering Committee is composed of an
interagency group of scientists concerned with the care and
handling of nonhuman primates. The introduction to the Guidelines
states the following:
 
  Shipment of nonhuman primates by a carrier from one location to
another is stressful, even under the best of conditions. The
purpose of these guidelines is to minimize the effects of
transportation stress on these animals and to have them arrive at
their destination in as good a physical condition as possible, with
a minimal degree of illness or mortality. Secondly, the guidelines
are intended to serve as a reference for adequate care of nonhuman
primates for all persons involved with the shipping of these
animals.  
  We also considered the transportation standards proposed by the
U.S. Department of Interior, Fish and Wildlife Service (USFWS) for
nonhuman primates imported from abroad.
  Based upon our experience enforcing the existing regulations, and
our consideration of the information available to us, we proposed
revisions to the transportation standards in order to safeguard the
health, safety, and psychological well-being of nonhuman primates
transported in commerce.
   As part of our revision, we proposed to include requirements
that were previously part of the regulations but were inadvertently
omitted from the 1977 revision of the regulations. When the
transportation standards were rewritten in 1977 to incorporate the
1976 amendments to the Act concerning the commercial transportation
of animals, the existing standards for surface transportation were
not included in the regulations. Since that time, the standards
have pertained to the commercial transportation by common carrier
and only a few paragraphs have pertained to surface transportation
by private vehicle. The regulations we proposed to reinstate
specifically affect provisions concerning ambient temperature
during surface transportation in order to effect improved traveling
conditions for nonhuman primates. As proposed, they also impose
similar requirements on all persons subject to the regulations
engaged in the transportation of nonhuman primates in order to
afford the animals necessary protection whenever they are
transported in commerce.
  One commenter recommended that "in-house" transport should comply
with the regulations. Under the regulations as proposed, in-house
transport is not excluded from the standards, and therefore must
comply with the regulations.  

  Consignments to Carriers and Intermediate Handlers for
Transportation--  Section 3.86
 
  In proposed Sec. 3.86, we proposed to expand the existing
obligations imposed upon carriers and intermediate handlers
(defined in part 1 of the regulations), to ensure the well-being of
nonhuman primates during transport in commerce. Our proposal
required that certain prerequisites be satisfied before carriers
and intermediate handlers could accept nonhuman primates for
transport in commerce. Additionally, the proposed regulations
included certain duties of the carriers and intermediate handlers
following arrival of the shipment at its destination. Various
obligations are presently contained in existing Secs. 3.85 and
3.88. We proposed to consolidate them in one section, proposed Sec.
3.86, and to add some additional ones that we considered necessary
for the nonhuman primates' welfare. Several commenters opposed in
general the provisions of Sec. 3.86 as proposed.
   Among the existing regulations retained in proposed Sec. 3.86(a)
was the provision that carriers and intermediate handlers not
accept a live nonhuman primate for shipment from any person subject
to the regulations more than 4 hours before the scheduled departure
time of the primary conveyance in which the animal will be shipped,
except that this time may be extended by agreement to 6 hours if
specific prior scheduling of the shipment has been made. Several
commenters opposed the option of extending the time before
departure to 6 hours. We have observed no problems regarding the
well-being of nonhuman primates because of this existing provision,
and are therefore making no changes based on this comment.
  Existing Sec. 3.85(b) requires that carriers or intermediate
handlers accept a nonhuman primate for shipment only if it is in a
primary enclosure meeting the requirements of existing Sec. 3.85,
"Primary enclosures used to transport live nonhuman primates,"
except that they may accept a nonhuman primate if it is consigned
by a person subject to the regulations who provides a certificate
stating that the primary enclosure conforms with Sec. 3.85, unless
the enclosure is obviously defective. A small number of commenters
addressed these provisions, which were contained in Sec. 3.86(e) of
the proposal, stating that they were redundant, because final
responsibility for determining the suitability of primary
enclosures will rest on the carrier and intermediate handler in any
case. Upon review of these comments, we agree that Sec. 3.86(e) as
proposed contains redundant provisions. We are therefore amending
it in this final rule to make the carrier or intermediate handler
solely responsible for determining whether to accept a primary
enclosure for transportation.
  Existing Sec. 3.85(c) states that carriers and intermediate
handlers whose facilities do not meet the minimum temperature
requirements provided in the regulations may accept a nonhuman
primate for transport if the consignor furnishes a certificate
executed by a veterinarian, within 10 days before delivery of the
animal for transport, stating that the nonhuman primate is
acclimated to air temperatures lower than those prescribed in
existing Secs. 3.90 and 3.91. These provisions were included in
Sec. 3.86(f) of the proposal, where we proposed to clarify the
certification regarding acclimation of a nonhuman primate to
temperatures lower than those prescribed in the regulations. We
proposed to require that the certification of acclimation be signed
by a veterinarian, that it specify a minimum temperature that the
nonhuman primate can safely be exposed to, that it specify each of
the animals contained in the primary enclosure to which the
certification is attached, rather than referring to the shipment of
animals as a whole. We included the contents of the certification
in paragraph (f) of proposed Sec. 3.86, respectively. We proposed
to clarify existing Sec. 3.85(c) by requiring that the temperatures
to which a nonhuman primate is exposed must not be lower than the
minimum temperature specified by the veterinarian and must be
reasonably within the generally and professionally accepted range
for the nonhuman primate as determined by the veterinarian,
considering its age, condition, and species of the animal, even if
it is acclimated to temperatures lower than those prescribed in the
regulations. The information required to be in the certificate is
likewise stated in the regulations.
  Existing Sec. 3.88 requires the following: (1) Section 3.88(a)
requires that nonhuman primates be offered potable water within the
4 hours preceding transport in commerce. Dealers, exhibitors, and
research facilities are required to provide water to nonhuman
primates transported in their own primary conveyance at least every
12 hours after transportation is begun and carriers and
intermediate handlers are required to do so at least every 12 hours
after they accept the animal for transport. (2) Section 3.88(b)
provides requirements concerning the frequency of feeding nonhuman
primates and similarly distinguishes between those persons
transporting nonhuman primates in their own primary conveyances,
and carriers and intermediate handlers. (3) Section 3.88(c)
requires any dealer, research facility, exhibitor, or operator of
an auction sale consigning nonhuman primates for transport to affix
written instructions concerning the animals' food and water
requirements on the outside of the primary enclosure used for
transporting the nonhuman primate. (4) Section 3.88(d) states that
no carrier or intermediate handler shall accept a nonhuman primate
for transport in commerce unless written instructions concerning
food and water requirements are affixed to the outside of its
primary enclosure.
  In proposed Sec. 3.86(c), we proposed to include the requirements
of existing Sec. 3.88 by requiring that written instructions
concerning the food and water requirements for each nonhuman
primate in the shipment be securely attached to the outside of the
primary enclosure before a carrier or intermediate handler may
accept it for transport.
  As stated above, existing Sec. 3.88(a) provides that nonhuman
primates must be provided water at least every 12 hours after
acceptance by carriers and intermediate handlers for
transportation. Existing Sec. 3.88(b) provides that nonhuman
primates more than 1 year of age be offered food at least once
every 24 hours after acceptance by carriers and intermediate
handlers for transportation and that nonhuman primates less than 1
year of age be offered food at least once every 12 hours after
acceptance for transportation. We proposed to add a certification
requirement in proposed Sec. 3.86(d) that would state that each
nonhuman primate in a primary enclosure delivered for transport was
last offered food during the 12 hours before delivery to a carrier
or intermediate handler and was last offered water during the 4
hours before delivery to a carrier or intermediate handler. As
proposed, it would also have to include the date and time each
nonhuman primate in the primary enclosure was last offered food and
water. We proposed that carriers and intermediate handlers not be
allowed to accept nonhuman primates for transport unless this
certification accompanies the animal, is signed and dated by the
consignor, and includes the date and time it was executed. We
proposed that this certification, as well as the others required in
proposed Sec. 3.86, would also have to specify the species of
nonhuman primate contained in the primary enclosure.
  In subpart A of this final rule, in response to comments, we are
making certain changes to the requirements for feeding and watering
prior to transport that we also consider warranted in subpart D. We
agreed with commenters addressing the issue that keeping track of
a wide variety of feeding and watering schedules for animals could
create practical problems for carriers. To reduce this problem, we
are making the same changes in Sec. 3.86 that we made in subpart A,
to provide that carriers and intermediate handlers must not accept
a nonhuman primate for transportation in commerce, unless the
consignor certifies in writing that the nonhuman primate was
offered food and water during the 4 hours before delivery to the
carrier or intermediate handler. By requiring feeding and watering
within 4 hours of delivery for transportation, the regulations will
both make more uniform the time frame during which animals will
have to be fed and watered in transportation, and minimize the
number of animals that need to be offered food and water in
transportation. In most cases under the amended regulations,
animals being transported will reach their destination before
having to be fed and watered again. Additionally, to eliminate the
need for the carrier to maintain a log of feeding and watering
schedules, we are requiring that on the feeding and watering
certification provided by the consignor, which must be securely
attached to the outside of the primary enclosure, there be included
specific instructions for the next feeding(s) and watering(s) for
a 24-hour period. We are also providing that instructions that no
food and water be given are not acceptable unless directed by the
attending veterinarian.
  Several commenters stated that since most institutions restrain
primates with ketamine prior to shipping, they may not be able to
feed them 12 hours prior to delivery. The commenters' concerns have
been addressed by the changes just discussed, which require feeding
within the 4 hours before delivery for transportation. Under this
amended provision, the animal can be fed after being placed into
the transport enclosure.
  In this final rule, we are also making certain nonsubstantive
formatting changes to improve the clarity of Sec. 3.86 as proposed.
We are combining the provisions of proposed Secs. 3.86 (c) and (d)
into Sec. 3.86(d), and are redesignating subsequent paragraphs in
Sec. 3.86 accordingly.
   One commenter objected to the need for multiple certification
forms under Sec. 3.86 as proposed. In this final rule, we are
addressing the commenter's concerns by eliminating the need for two
of the three certification forms that could possibly have been
needed under the proposal. Because this final rule requires that
instructions for feeding and watering be securely attached to the
primary enclosure, we are eliminating the need for separate
certification to accompany the enclosure. Also, by making the
carrier or intermediate handler responsible for determining if a
primary enclosure is in adequate condition, we are eliminating the
option of the consignor providing certification regarding the
condition of the primary enclosure.
   Existing Sec. 3.85(d) requires carriers and intermediate
handlers to notify the consignee of the animal's arrival at least
once every 6 hours following arrival of the nonhuman primate at the
animal holding area of a terminal facility, and to record the time,
date, and method of attempted and final notification on the
shipping document. We proposed to add limitations on how long a
nonhuman primate can be held at a terminal facility while waiting
to be picked up by the consignee. We proposed to adopt the time
limitations provided in part 2, Sec. 2.80, "C.O.D. shipments".
Accordingly, we proposed in Sec. 3.86(g) that the consignor must
attempt to notify the consignee upon arrival, and at least once
every 6 hours for 24 hours after arrival, and then must return the
animal to the consignor or to whomever the consignor designates if
the consignee cannot be notified. Under our proposal, if the
consignee is notified and does not take physical delivery of the
nonhuman primate within 48 hours of its arrival, the carrier or
intermediate handler must likewise return the animal to the
consignor or to whomever the consignor designates.
  We proposed to revise existing Sec. 3.85(d) to specifically
require that carriers and intermediate handlers continue to
maintain nonhuman primates in accordance with generally accepted
professional and husbandry practices as long as the animals are in
their custody and control and until the animals are delivered to
the consignee or returned to the consignor or to whomever the
consignor designates. One commenter opposed the requirement as
proposed that carriers and intermediate handlers provide for proper
care of the nonhuman primate. The commenter expressed concern that
this provision might discourage carriers from transporting animals.
We are making no changes based on this comment. As long as the
animals are in their possession, there is no option but to make the
carriers' and intermediate handlers' responsible for the animals'
well-being.
  In this final rule, we are making three other changes to Sec.
3.86 as proposed that are consistent with changes we are making
elsewhere in this final rule in response to comments. First, we are
amending Sec. 3.86(f) as proposed, regarding the minimum allowable
temperatures at carriers' and intermediate handlers' facilities to
make it clear that these requirements apply only to animal holding
areas, and not to entire cargo facilities. Second, we are amending
Sec. 3.86(f)(4) as proposed, to provide that certification of
acclimation provided by a veterinarian must include a statement
that, to the best of his or her knowledge, each of the nonhuman
primates contained in the primary enclosure is acclimated to air
temperatures lower than 50 deg.F (10 deg.C), rather than lower than
45 deg.F (7.2 deg.C), as proposed. Finally, we are providing that
all attempts to notify the consignor after transport of an animal
must be recorded by the carrier or intermediate handler either on
the carrier's or intermediate handler's copy of the shipping
document or on the copy that accompanies the primary enclosure.
 
  Primary Enclosures Used to Transport Nonhuman Primates--Section
3.87  

  We proposed to reorganize the provisions of existing Sec. 3.86,
regarding primary enclosures used to transport nonhuman primates,
and to make nonsubstantive changes to this section for clarity.
These provisions appeared in Sec. 3.87 of our proposal. Several
commenters opposed in general the provisions of Sec. 3.87 as
proposed.
  We proposed in Sec. 3.87(d)(1) that each nonhuman primate be
transported individually in separate primary enclosures, except
that the following social groupings could be maintained during
transportation: (1) A mother with her nursing infant, (2) an
established male-female couple (unless the female is in estrus) or
a family group, and (3) a pair of compatible juveniles that have
not reached puberty.
  Several commenters stated that we should extend these exceptions
to allow any nonhuman primates that are compatible to be
transported in the same primary enclosure. As we discussed in the
proposal, while we believe that combining two compatible juveniles
in one enclosure would pose minimal risk to the nonhuman primates,
we believe that combining two adult nonhuman primates, other than
a male-female couple, would pose unacceptable risks. Based on our
experience enforcing the regulations, we have determined that the
stresses of transportation can cause two otherwise compatible
nonhuman primates to become aggressive and dangerous to each other.
We are therefore making no changes based on these comments.
  Several commenters stated that, because nonhuman primates have
menstrual cycles, rather than periods of estrus, the statement
regarding females in estrus should be deleted. Although the
commenters are technically correct we consider the term "estrus" to
convey the intent and implications desired, and to adequately
describe the prohibition intended.
  In proposed Sec. 3.87(e), we proposed that primary enclosures
must allow nonhuman primates a specified amount of minimum space,
except that certain larger species must be restricted in their
movements, in accordance with professionally accepted standards of
care, when greater freedom of movement would be dangerous to the
animal, its handler, or to other persons. One commenter stated that
the regulations should specify the animals exempted from the space
requirements and set forth the minimum cage sizes allowed. We do
not consider it appropriate to make the change recommended by the
commenter. The exemption as proposed is designed to accommodate
situations where safety considerations are a factor. Because such
situations are by their nature variable, often requiring differing
responses, we consider the wording as proposed necessary and
adequate as written.
  In proposed Sec. 3.87(f), we proposed that primary enclosures
must be clearly marked with the words "Wild Animals" or "Live
Animals," along with arrows to indicate the correct upright
position of the primary enclosure. One commenter stated that labels
saying "do not tip" and "this side up" should be used on shipping
crates. We consider the regulations as proposed adequate to signal
the position the primary enclosure must be handled in, and also
that special care needs to be given to the enclosure. We therefore
do not consider it necessary to make the change recommended by the
commenter.
   In Sec. 3.87(g) of our proposal, we proposed that the documents
that must accompany the nonhuman primates be held by the operator
of the primary conveyance if it is a surface conveyance, or
attached to the outside of the primary enclosure. We proposed that
if such documents are attached to the primary enclosure, they must
be placed in a secure but accessible manner, so that they can be
removed and securely returned, and so that they are easily noticed.
We also proposed to require that instructions for food and water,
and for administration of drugs, medication, and other special care
be attached to the primary enclosure. In this final rule, we are
amending the wording in Sec. 3.87(g) as proposed to reflect the
change we are making in Sec. 3.86, that food and water instructions
must be securely attached to the primary enclosure.
 
  Primary Conveyances--Section 3.88
 
  Prescribed ambient temperature limits in primary conveyances used
to transport nonhuman primates were part of the standards before
the 1977 revisions to the regulations, but were inadvertently
omitted from those revisions. In our proposal, we proposed to
reinstate them for surface transportation, in order to prevent
nonhuman primates from being transported under temperature
conditions that would be harmful to their health and physical well-
being. The existing regulations prescribe upper and lower ambient
temperature limits for nonhuman primates held in terminal
facilities and prescribe lower temperature limits for nonhuman
primates placed on transporting devices. We believe that it is
equally important for the health and well-being of nonhuman
primates that these limits be followed while the animals are in
transport as well as when they are on either end of their journey.
Under the regulations we proposed, all persons subject to the
regulations would be required to maintain the temperature inside a
primary conveyance between 450 deg.F (7.2 deg.C) and 85 deg.F (30
deg.C) during surface transportation at all times a nonhuman
primate is present. Because it would be impracticable to monitor
the ambient air temperature inside the cargo area during air
transportation, we proposed to require instead that it be
maintained at a level that ensures the health and well-being of the
species housed, in accordance with generally accepted professional
and husbandry practices, at all times a nonhuman primate is
present. We also proposed to add requirements that a primary
enclosure be positioned in a primary conveyance in a manner that
provides protection from the elements, such as rain, wind, snow,
and sun, and that is far enough away from animals that are
generally considered to be natural predators or enemies of nonhuman
primates so that the nonhuman primates cannot reach, see, or smell
them.
   One commenter stated that recording thermometers should be
required during air transport, to verify that temperature
requirements are not violated. We do not consider such a change
practical or justifiable in relation to the burden it would create.
Such a requirement may require airplanes to carry and maintain such
thermometers even on flights where no animal is being transported.
  We provided in Sec. 3.88(i) of the proposal that nonhuman
primates must not be transported with any material, substance, or
device in a manner that may reasonably be expected to harm the
nonhuman primates or cause inhumane conditions. A number of
commenters stated that nonhuman primates should be allowed to be
shipped with potentially harmful substances, if proper precautions
are followed to prevent injury or inhumane conditions. We consider
the wording as proposed adequate to convey our intent, and are
making no changes based on the comments.
 
  Food and Water Requirements--Section 3.89
 
  We proposed to make nonsubstantive changes to the existing
regulations to make it clear that carriers and intermediate
handlers must provide food and water to nonhuman primates being
transported within a prescribed number of hours from the time the
animals were last offered food and water. We proposed to require
that consignors subject to the Animal Welfare regulations certify
the date and time the nonhuman primate was last offered food and
water. Under our proposal, carriers and intermediate handlers would
be required to determine the appropriate time for providing food
and water based upon the information in the certification. Everyone
else transporting a nonhuman primate would be required to provide
food and water within a prescribed number of hours after they last
offered the animal food and water. We proposed this requirement so
that nonhuman primates would not go longer than 24 hours without
food or longer than 12 hours without water. Under our proposal, the
prescribed number of hours, the same as in the existing
regulations, differed based upon the age of the nonhuman primate.
We also proposed to require that nonhuman primates must be offered
food within 12 hours before being transported in commerce, so that
carriers and intermediate handlers would not have to provide food
and water immediately upon acceptance. Although, under our
proposal, proper food would have to be provided, in accordance with
proposed Sec. 3.82, we realize that the necessities of travel may
require less variation in the types of food offered and in the
method of feeding. Accordingly, we added a footnote in proposed
Sec. 3.89 to take the exigencies of travel into account. We
proposed to include requirements for design, construction, and
placement of food and water containers for the nonhuman primates'
safety, comfort, and well-being. As previously discussed, we
proposed to incorporate in proposed Sec. 3.86 the requirement that
carriers and intermediate handlers not accept nonhuman primates for
transport unless written instructions concerning food and water
requirements are affixed to the outside of the primary enclosure.
In Sec. 3.89, we proposed to require that consignors subject to the
Animal Welfare regulations attach securely to the primary enclosure
all written instructions concerning the nonhuman primates' food and
water requirements during transportation.
  Several commenters supported proposed Sec. 3.89 as written.
Several commenters stated that the regulations should require that
food be offered to animals either every 12 hours, or twice in every
24-hour period. Several commenters recommended that it be required
that water be offered a minimum of once every 4 hours during
transportation. Based on our experience enforcing the regulations,
we do not consider the requirements recommended by the commenters
necessary or practical, and are making no changes based on these
comments.
  A number of commenters stated that providing food high in water
content should be allowed in lieu of providing water. We are making
no changes based on these comments. It would not be evident in each
case how much food would be an adequate substitute for water.
  A number of commenters, addressing both the food and water
requirements in proposed Sec. 3.89 and the veterinary care
requirements in proposed Sec. 3.90, stated that it should be the
responsibility of the consignor, and not the carrier, to ensure
that animals being transported receive adequate food and water and
veterinary care. We do not consider such a recommendation to be
practical or in the best interests of the animals. Both food and
water and veterinary care needs require a timely response by the
carrier, and are necessarily the carrier's responsibility.
  We have made several changes to Sec. 3.89 as proposed to reflect
the changes we are making in Sec. 3.86, as discussed in this
supplementary information under the heading "Consignments to
Carriers and Intermediate Handlers for Transport--Section 3.86." We
are providing in this final rule that nonhuman primates must be
offered food and water within 4 hours of delivery for transport,
and are requiring that an explicit schedule for feeding and
watering during the next 24-hour period be securely attached to the
primary enclosure by the consignor. To eliminate duplicative
provisions, we are also combining paragraphs (a) and (b) as
proposed, and are redesignating subsequent paragraphs accordingly.
 
  Care in Transit--Section 3.90
 
  We proposed to clarify existing Sec. 3.89 to expressly require
compliance with these regulations by any person subject to the
regulations who is transporting a nonhuman primate in commerce,
regardless of whether the nonhuman primate is consigned for
transport.
  We proposed to require that during surface transportation,
regulated persons must obtain any veterinary care needed for the
nonhuman primate at the closest available veterinary facility. We
also proposed to require that, during air transportation, carriers
or intermediate handlers arrange for any veterinary care that is
needed for the nonhuman primate as soon as possible.
   We proposed to add an exception to the existing regulations that
prohibit the transportation in commerce of a nonhuman primate in
obvious physical distress, in order to allow transport for the
purpose of providing veterinary care for the condition.
  When nonhuman primates are initially removed from their primary
enclosures after travel they may be unusually active or perhaps
agitated. In order to avoid any resultant injury to the animals, we
proposed a requirement that would allow only authorized and
experienced persons to remove nonhuman primates from their primary
enclosures during transport, except that other individuals would be
permitted to remove the nonhuman primates if required for the
health or well-being of the animals. We proposed to provide that
the transportation regulations must be complied with until a
consignee takes physical delivery of the nonhuman primate if it is
consigned for transportation, or until the animal is returned to
the consignor.
   A small number of commenters specifically supported the
provisions of proposed Sec. 3.90 as written. One commenter stated
that the regulations should require that, when necessary,
veterinary care be provided "as soon as possible," not at the
closest available facility as proposed, because not all clinics
have facilities for appropriate veterinary care. We are making no
changes based on this comment. By using the term "closest
available," we consider the language as proposed to adequately
state our intent and to address the concerns of the commenter.
 
  Terminal Facilities--Section 3.91
 
  Existing Sec. 3.90 imposes duties on carriers and intermediate
handlers holding nonhuman primates in animal holding areas of
terminals to keep the animals away from inanimate cargo, to clean
and sanitize the area, to have an effective pest control program,
to provide air, and to maintain the ambient temperature within
certain prescribed limits. Under the existing regulations, there is
no similar obligation imposed upon other persons who transport
these animals. As a result, animals could be held in animal holding
areas under hazardous conditions.
  We proposed that the same duties imposed by the existing
regulations upon carriers and intermediate handlers be imposed upon
any person subject to the regulations transporting nonhuman
primates and holding them in animal holding areas, since the
animals require the same minimum level of care regardless of which
regulated person is transporting the animals.
  We proposed to add restrictions to prevent regulated persons from
holding nonhuman primates within physical and visual reach of other
animals and other species of nonhuman primates, since this is
upsetting to them. We also proposed that the length of time
regulated persons may hold nonhuman primates in terminal facilities
upon arrival would be the same as that allowed for consigned
animals under proposed Sec. 3.86(g). A small number of commenters
requested clarification of the provision restricting placement of
nonhuman primates near other animals. We consider the provision
self-explanatory as written, and are making no changes based on
these comments.
   In proposed Sec. 3.91, we proposed to continue the temperature
and ventilation requirements contained in existing Sec. 3.90 and
also to include the provisions requiring shelter from the elements
for nonhuman primates that are included in existing Sec. 3.91,
"Handling," because they are applicable to regulated persons
holding nonhuman primates in animal holding areas of terminal
facilities. Under our proposal, the proposed regulations for
handling would be limited to the safeguards that must be provided
during physical handling and movement of nonhuman primates, as its
heading suggests.
   A small number of commenters supported the provisions of
proposed Sec. 3.91 as written. A small number of commenters
objected to the allowable temperature range for holding facilities.
Several commenters stated that this range was narrower than that
for housing facilities. Upon review of the comments, we agree that
the temperature limits in terminal facilities should be consistent
with those in housing facilities. Therefore, we are providing in
this final rule that the ambient temperature in an animal holding
area containing nonhuman primates must not fall below 45 deg.F (7
.2 deg.C) for more than 4 consecutive hours when nonhuman primates
are present, and must not rise above 85 deg.F (29.5 deg.C) for more
than 4 consecutive hours when nonhuman primates are present.
Additionally, we are providing that auxiliary ventilation must be
used in any animal holding area containing nonhuman primates when
the ambient temperature is 85 deg.F (29.2 deg.C) or higher.
   One commenter recommended that bedding be provided for all
primates, and that nest boxes with deep bedding be provided for
small primates when the ambient temperature reaches a low of 45
deg.F . We are making no changes based on this comment. Under these
regulations, an animal will not be exposed to temperatures below 45
deg.F unless acclimated, as certified by a veterinarian. Further,
we do not consider requiring bedding and nest boxes to be practical
during transportation.
  A number of commenters stated that the cleaning, sanitization,
and pest control standards should not be as stringent for terminal
facilities as for housing facilities, because animals spend such a
short period of time in transport. While we agree that the animals
themselves will not largely contribute to the need for sanitation,
we consider thorough cleaning of the animal holding area to be
necessary for the animals' well-being, due to the wide variety of
other materials that will normally be kept in such areas.  

  Handling--Section 3.92
 
  Existing Sec. 3.91 imposes duties on carriers and intermediate
handlers for proper handling and movement of nonhuman primates. For
the reasons explained above under "Terminal Facilities," we
proposed that these same duties be imposed upon any person subject
to the regulations handling a nonhuman primate at any time during
the course of transportation in commerce, so that the animals'
health, safety, and well-being will be protected at all times
during transport. The regulations we proposed would continue to
include movement from an animal holding area of a terminal facility
to a primary conveyance and from a primary conveyance to a terminal
facility. They would also continue to provide requirements for
movement of a nonhuman primate on a transporting device. We
proposed to broaden this section to include movement within and
between primary conveyances, and movement within and between
terminal facilities, because nonhuman primates may travel on
several different primary conveyances and be moved around within
terminal complexes in the course of their travel.
  We also proposed to require that transporting devices on which
nonhuman primates are placed to move them be covered to protect the
nonhuman primates when the outdoor temperature falls below 45 deg.F
(7.2 deg.C). The existing regulations require this protection when
the outdoor temperature falls below 50 deg.F (10 deg.C). A number
of commenters stated that the proposed temperature limits relating
to handling were not stringent enough. We are making no changes
based on these comments. The allowable temperatures set forth in
the regulations are further limited by the period of time animals
may be exposed to these temperatures. We consider them reasonable
and adequate to allow for short periods of exposure to cool or warm
temperatures that may be necessary under normal handling
conditions.
  Among the requirements we set forth in Sec. 3.92 as proposed was
the provision that any person handling a primary enclosure
containing a nonhuman primate must use care and must avoid causing
physical harm or emotional distress to the nonhuman primate. A
small number of commenters stated that the term "emotional
distress" should be changed to "psychological distress" because
attributing emotions to animals is anthropomorphic. We do not agree
that animals do not show emotion. However, we are deleting the word
"emotional" in Sec. 3.92 to allow for broader enforcement of the
word "distress."
 
  Miscellaneous
 
  Some commenters recommended that we make various nonsubstantive
wording changes to the proposal for purposes of clarity, including
certain nomenclature changes and the deletion of certain provisions
the commenters considered redundant. We have made such changes
where we considered them appropriate, and have also made certain
other nonsubstantive wording changes to clarify the regulations.
  Additionally, a number of commenters made recommendations that
addressed issues outside the scope of the proposal, such as the
appropriateness of using animals in research, whether APHIS is
appropriated sufficient funds for enforcement purposes, and what
types of penalties would be appropriate for violations of the
regulations. A number of commenters recommended provisions that
were already included in the proposal. We are making no changes in
this final rule based on these comments.
 
  Comments Regarding the Regulatory Impact and Flexibility Analysis 

  As required by Executive Order 12291 and the Regulatory
Flexibility Act, 5 U.S.C. 601-612, the Department analyzed the
regulatory implications of the revised standards for the humane
handling, care, treatment, and transportation of dogs, cats, and
nonhuman primates published in the proposal. A large number of
commenters addressed our regulatory impact analysis and its
compliance with federal rulemaking procedures. Below we provide an
analysis of the comments and our responses.
  A large number of commenters in general expressed concerns about
the lack of scientific justification for the revised standards in
the presence of significant costs to be imposed on regulated
establishments and the economy. Many commenters added that the
Department has shown a lack of concern and basic understanding of
the operation of regulated entities and, therefore, substantially
underestimated the adverse economic impacts of the proposed
regulations on animal research. Moreover, many commenters stated
that the proposed standards would inflate the cost of animal
research making it cost prohibitive without any scientific proof of
improvements in animal welfare.
   We also received many comments from the research community,
dealers, intermediate handlers and carriers, and the general public
noting that the cost estimates in the regulatory impact analysis
were generally underestimated. A few commenters from the research
community and the general public also stated that the Department
has failed to consider alternatives that will achieve statutory
goals and involve the least cost to society. Others opposed the
proposed rules on grounds that these will cost too much to
implement and will put small researchers and dealers out of
business. Conversely, we received one comment from a member of the
general public noting that the regulatory impact analysis contained
overinflated cost estimates.
  We are acutely aware of the potential regulatory costs or impacts
of the revised standards on regulated entities and the economy. We
also believe that the revisions included in our regulatory
proposals, including this final rule, are necessary to meet our
statutory obligations. We strongly disagree with the comments
concerning our lack of efforts and understanding of affected
entities. In developing new standards, including the final rule in
this docket, we have given careful and extensive consideration to
the "major rule" impact that the animal welfare regulations would
have on the economy, the regulated establishments, and public
health. We have also set regulatory priorities with the aim of
minimizing the potential adverse impacts of the regulations and
continued the assessment of alternative and least costly provisions
that can achieve similar statutory objectives.
   The revision of animal welfare regulations as mandated by
Congress has been a lengthy and difficult task. In performing this
task, we have continually worked toward developing the most
reasonable and justifiable standards based on available scientific
knowledge, sought and reviewed extensive public comments, conducted
ongoing consultation with other Federal agencies and professional
organizations, developed and considered alternative proposals,
adopted least costly alternatives that would foster improved animal
care and accomplish statutory objectives, and allowed for
innovative ideas and on-site professionals to exercise their
judgment in meeting the need of animals under their care.
  We have continually attempted to improve our analysis of
potential costs on regulated entities and the economy. In general,
our analysis has relied on several informational sources, such as
expert opinion from across the country, inspection forms of
regulated sites, and experience in the implementation of animal
welfare regulations and assessing the potential regulatory burden.
In performing the analysis, we have acknowledged the presence of
problems in the measurement of complex variables and other related
factors, lack of statistical or any other available data sources,
regional and structural diversity of regulated establishments,
problems with quantifying potential benefits and indirect effects
on animal research, and time and resource constraints. However, we
consider the analysis as representing our extensive efforts to
promulgate revised regulations and fulfill our obligations under
federal guidelines for regulatory processes.
   Several other commenters indicated that the Department has
failed to do a cost-benefit analysis as required by Executive Order
12291. A few commenters from the research community and the general
public added that the revised standards provided no benefit to
animals or improvements in animal care.
   The general requirements for a regulatory impact analysis under
Executive Order 12291 recommend that benefits and costs be examined
and that regulatory objectives be chosen to maximize net benefits
to society or involve the least cost to society. Our analysis of
the revised standards examined the potential benefits to society
and animals and indicated that these benefits could not be properly
quantified. The estimation of social benefits in monetary terms
would have required an empirical analysis of marginal increases in
social welfare or utility due to the regulations. If such an
analysis could have been completed, it would have taken
considerable time and resources to complete. In the absence of
actual dollar figures for benefits, therefore, it was not feasible
for the Department to estimate the net potential benefits from the
regulations. However, we stated in our analysis that the
Congressional mandate to promulgate more stringent animal welfare
regulations reflected the increasing public demands for increased
levels of humane care and treatment of animals used for human ends.
  We also disagree with the comments that regulated animals will
not receive improved animal handling, care, and treatment under the
revised standards. There has been considerable scientific data and
increased public opinion that supports the intent of Congress to
increase the level of animal care and treatment afforded to animals
in regulated establishments. Requirements that provide for better
and enriched animal housing environments, appropriate veterinary
care, procedures that minimize animal pain and discomfort, and
innovative primary enclosures are some of the factors that support
the increased level of welfare and benefits to regulated animals. 

  Statutory Authority for this Final Rule
 
  This rule is issued pursuant to the Animal Welfare Act (Act), as
amended, 7 U.S.C. 2131-2159. Congress, in enacting the Food
Security Act of 1985, Public Law No. 99-198, added significant new
responsibilities to the Secretary's existing responsibilities to
promulgate standards for the care and treatment of animals covered
under the Act. The declared policy of the Act is to ensure that
animals intended for use in research facilities, as pets, or for
exhibition purposes, are provided humane care and treatment; to
assure the humane treatment of animals during transportation; and
to prevent the sale of stolen animals.
  The Act requires that the Secretary of Agriculture promulgate
standards to govern the humane handling, care, treatment and
transportation of animals by dealers, operators of auction sales,
research facilities, exhibitors, and carriers and intermediate
handlers. These standards are to include minimum requirements for
handling, housing, feeding, watering, sanitation, ventilation,
shelter from extremes of weather and temperatures, adequate
veterinary care, and separation of species. The 1985 amendments to
the Act specifically require the Secretary to promulgate standards
for exercise of dogs and for a physical environment adequate to
promote the psychological well-being of primates.
  This rule includes changes and additions to the standards
required by the 1985 amendments as well as modifications based on
our experience in administering and enforcing the Act. The Act
authorizes these changes specifically in section 13 (7 U.S.C. 2143)
and in the additional grant of rulemaking authority contained in
section 21 (7 U.S.C. 2151).  
  Executive Order 12291
 
  The Department has examined the regulatory impact of this final
rule in accordance with Executive Order 12291.
  This final rule revises the standards for the humane handling,
care, treatment, and transportation of dogs, cats, and nonhuman
primates (subparts A and D, part 3, Standards). It includes the new
provisions for exercise of dogs and for a physical environment
adequate to promote the psychological well-being of nonhuman
primates, as required by the amendments to the Animal Welfare Act.
The amendments to the Act reflect a Congressional determination
that additional or revised standards governing the humane care and
treatment of captive animals are desirable and necessary.
  In developing the final standards, we examined alternative
regulatory approaches. We adopted least costly alternatives which
would foster improved animal care and accomplish regulatory
objectives. We gave careful and extensive consideration to the more
than 11,900 public comments received on our proposal. We consulted
with other Federal agencies. Finally, we implemented, to the extent
possible, performance standards, innovative ideas, and professional
judgment for meeting the need of captive animals.
   We have determined that this final rule is within the authority
delegated to the Department by statutory law and it does not
conflict, overlap, or contradict other Federal regulations,
policies, or guidelines on laboratory animal care, use, and
treatment practices.
  The regulatory impact of this rule is discussed in more detail in
a Final Regulatory Impact and Flexibility Analysis, available for
public inspection at the APHIS Public Reading Room, room 1141, U.S.
Department of Agriculture, 14th Street and Independence Avenue SW.,
Washington, DC, between 8 a.m. and 4:30 p.m., Monday through
Friday, except holidays, or by telephoning (202) 382-1368. The main
findings of the analysis are discussed below.
   Compliance with the final standards would result in additional
costs for affected regulated establishments over those imposed by
the current standards. The largest regulatory impact on regulated
establishments would result from the new requirements to ensure the
exercise of dogs and a physical environment adequate to promote the
psychological well-being of nonhuman primates. Study results
indicate that regulated establishments may be required to spend
approximately $144 million for additional capital improvements and
$26 million in annual operating costs once the final rule becomes
effective.
  We are acutely aware of the potential cost impact of this rule on
the operation of regulated establishments. As we discuss in the
"Supplementary Information" of this final rule, many commenters
responding to our proposed rule pointed out that certain of the new
standards would require affected facilities to make extensive
structural changes. These new standards are identified under the
heading "Effective Dates." Therefore, with regard to these
provisions, we are continuing the existing regulations for the
period prior to February 15, 1994. On and after February 15, 1994,
establishments must comply with the new provisions set forth in
this rule, as identified at the affected sections. This period of
time before compliance with certain of the new provisions is
required will allow establishments sufficient time and flexibility
to comply with those provisions. But, we will require the plans for
providing exercise for dogs and for promoting the psychological
well-being of nonhuman primates to be adopted and implemented
within 180 days after the publication date of this rule.
  The discounted value of the total cost impact on regulated
establishments is estimated at approximately $408 million. These
additional costs indicate that the new standards in part 3
constitute a "major rule" and may significantly increase costs for
animal care and housing. The study indicates that over 71 percent
of the total capital expenditures would potentially fall on
research facilities. The study also indicates that approximately 81
percent of the total annual operating costs would also fall on
research facilities.
  These additional compliance costs may also result in increased
costs for animal exhibits, wholesale pet dealers, and biomedical
research and drug development where there are no available
alternatives that fully replace the use of a living biological
system. Continued animal research is vital to develop therapies for
diseases such as AIDS, Parkinson's disease, and heart diseases.
Important tradeoffs between the welfare of animals and human
welfare may occur.
  Little evidence exists to indicate that increased regulatory
costs would cause regulated establishments to abandon their uses of
animals. In order to maintain the same level of activity, the cost
of operating these establishments would increase in the short run.
However, for those forms of research where alternative testing
methods that do not require the use of animals exist, this final
rule may promote more rapid development of alternative technologies
that might otherwise take longer to evolve. In the long run, the
availability of substitutes to animal uses in research, testing,
and education or the use of innovative techniques may moderate the
initial increase in the cost of production.
  The main focus of the regulatory analysis is on the potential
compliance costs to be imposed on regulated establishments. The
least-cost criterion indicates that the performance-based
alternatives included in this final rule are preferred. This is
because the final standards allow more flexibility, thus regulated
establishments can meet requirements through several means of
compliance.
  A more stringent set of standards was considered in the original
proposal to amend part 3 that was published in the Federal Register
on March 15, 1989. The discounted value of the total impact of the
original proposed rule was estimated at $1.75 billion dollars, an
amount over four times the impact estimated for this final rule.
  We are aware that animal welfare standards are social regulation
activities of government that are characterized by extensive market
externalities and inherent difficulties in measuring social
benefits and costs at the margin.
   In the case of this final rule, it is difficult to measure its
efficiency or net benefits, because economic agents other than the
regulated establishments and consumers are involved. For animal
welfare, the applicable economic theory is for the case of a
regulated establishment that produces a private good and generates
a social concern in the process--animal use, pain, discomfort, and
suffering. Regulations force the regulated entity to change its
production process and reduce the social implications of its
actions, but it will also raise its production and consumer costs
and generate social opportunity costs.
  Alternatively, society in general has an interest in whether the
production activities of such entities create excessive animal
pain, discomfort, and suffering, and any net benefit-cost
estimation must include any improvements in the level of animal
welfare. The crucial economic question is whether the social costs
imposed by this final rule are adequately balanced with the social
benefits at the margin.
  Potential social benefits resulting from the new standards were
discussed in the analysis, but could not be properly quantified.
The estimation of social benefits in monetary terms would have
required a lengthy and cost prohibitive study of marginal increases
in social welfare or utility. This is because animal welfare is an
anthropomorphic attribute. Such study would have measured the
increase in the level of public perception in animal welfare as the
level of stringency of the regulations also increases.
   Finally, because of the complexity and difficulty in measuring
the regulatory implications, we have continually given careful and
extensive consideration to the potential regulatory impacts
associated with the animal welfare regulations. Finalizing the
regulations as mandated by Congress has been a difficult and
lengthy process. In performing this task, we set regulatory
priorities with the aim of developing the most reasonable and
justified standards based on our past experience and available
scientific knowledge.
 
  Regulatory Flexibility Act
 
  The Department also analyzed the potential impact of this final
rule on small entities as required by the Regulatory Flexibility
Act (Pub. L. 96-354).
  The study is discussed in more detail in a Final Regulatory
Impact and Flexibility Analysis, which is available for public
inspection in the APHIS Public Reading Room, room 1141, U.S.
Department of Agriculture, 14th Street and Independence Avenue SW.,
Washington, DC, between 8 a.m. and 4:30 p.m., Monday through
Friday, except holidays, or by telephoning (202) 382-1368.
   The Department estimates that approximately 1,460 small entities
may be affected by the revised requirements in subparts A and D,
part 3, Standards. These 1,460 entities represent about 39 percent
of all small establishments (3,771) licensed to operate animal
ventures under provisions of the Animal Welfare Act. We estimate
that this rule imposes additional compliance costs to 1,227 small
breeders, 183 small dealers, and 50 small exhibitors. The
Department does not anticipate major regulatory impacts on small
research sites. This is because the affected research sites or
facilities housing cats, dogs, or nonhuman primates for research,
testing, or educational purposes would not qualify as small
entities. For the most part, affected animal research sites belong
to large academic and non-profit institutions, or private
companies.
  The total regulatory burden on small breeders, dealers, and
exhibitors resulting from this final rule is estimated at
approximately $32 million. This estimate represents the sum of
discounted values of annual costs ($1.64 million per year
discounted at 10 percent into perpetuity) to hire additional animal
caretakers or handlers, and capital expenditures of $16 million to
replace, construct, or equip new cat, dog, and nonhuman primate
enclosures and improve sheltered housing facilities. The average
discounted total impact per affected small entity is estimated at
approximately $22,000 per affected animal site.
  Of the small entities, small breeders would be most affected by
this final rule, incurring approximately 80 percent of the
estimated compliance costs, mostly from the new revised
requirements for the exercise of dogs. An important distributional
effect is that the impact on breeders will be concentrated on dog
breeders in the Midwest region of the country. Eighty-five percent
of all breeders are located in this region.
  In developing this final rule, the Department has adopted the
less costly approach to amend subparts A and D of part 3,
Standards. The preliminary regulatory flexibility analysis of the
March 15, 1989 original proposal estimated a discounted value of
the total impact on all small affected entities at about $154
million, or an average of $105,249 per affected animal site. A
comparison between the original proposed rule and this final rule
indicates a potential five-fold decrease in the potential costs to
be imposed on affected small entities.
 
  Executive Order 12372
 
  These programs/activities under 9 CFR part 3, subparts A and D,
are listed in the Catalog of Federal Domestic Assistance under No.
10.025 and are subject to the provisions of Executive Order 12372,
which requires intergovernmental consultation with State and local
officials. (See 7 CFR part 3015, subpart V.)
 
  Paperwork Reduction Act
 
  In accordance with Section 3507 of the Paperwork Reduction Act of
1980 (44 U.S.C. 3501, et seq.), the information collection
provisions that are included in this rule have been approved by the
Office of Management and Budget (OMB) and have been given OMB
control number 0579-0093.  
  List of Subjects in 9 CFR Part 3
 
  Animal welfare, Humane animal handling, Pets, Reporting and
recordkeeping requirements, Transportation.
 
  Accordingly, we are amending 9 CFR part 3 to read as follows:
  
  PART 3--STANDARDS
 
  1. The authority citation for part 3 is revised to read as
follows, and the authority citation following all the sections is
removed:  
  Authority: 7 U.S.C. 2131-2156; 7 CFR 2.17, 2.51, and 371.2(d).  
2. Subpart A is revised to read as follows:
 
  Subpart A--Specifications for the Humane Handling, Care,
Treatment, and Transportation of Dogs and Cats
 
  Facilities and Operating Standards
 
  Sec.
  3.1  Housing facilities, general.
  3.2  Indoor housing facilities.
  3.3  Sheltered housing facilities.
  3.4  Outdoor housing facilities.
  3.5  Mobile or traveling housing facilities.
  3.6  Primary enclosures.
 
  Animal Health and Husbandry Standards
 
  3.7  Compatible grouping.
  3.8  Exercise for dogs.
  3.9  Feeding.
  3.10  Watering.
  3.11  Cleaning, sanitization, housekeeping, and pest control.   
  3.12  Employees.
 
  Transportation Standards
 
  3.13  Consignments to carriers and intermediate handlers. 3.14 
Primary enclosures used to transport live dogs and cats. 3.15 
Primary conveyances (motor vehicle, rail, air, and marine). 3.16 
Food and water requirements.
  3.17  Care in transit.
  3.18  Terminal facilities.
  3.19  Handling.
 
  Subpart A--Specifications for the Humane Handling, Care,
Treatment, and Transportation of Dogs and Cats /1/
 
  Facilities and Operating Standards
 
  Sec. 3.1 Housing facilities, general.
 
  (a) Structure; construction. Housing facilities for dogs and cats
must be designed and constructed so that they are structurally
sound. They must be kept in good repair, and they must protect the
animals from injury, contain the animals securely, and restrict
other animals from entering.  
  NOTE /1/ These minimum standards apply only to live dogs and
cats, unless stated otherwise.
 
  (b) Condition and site. Housing facilities and areas used for
storing animal food or bedding must be free of any accumulation of
trash, waste material, junk, weeds, and other discarded materials.
Animal areas inside of housing facilities must be kept neat and
free of clutter, including equipment, furniture, and stored
material, but may contain materials actually used and necessary for
cleaning the area, and fixtures or equipment necessary for proper
husbandry practices and research needs. Housing facilities other
than those maintained by research facilities and Federal research
facilities must be physically separated from any other business. If
a housing facility is located on the same premises as another
business, it must be physically separated from the other business
so that animals the size of dogs, skunks, and raccoons are
prevented from entering it.
  (c) Surfaces--(1) General requirements. The surfaces of housing
facilities--including houses, dens, and other furniture-type
fixtures and objects within the facility--must be constructed in a
manner and made of materials that allow them to be readily cleaned
and sanitized, or removed or replaced when worn or soiled. Interior
surfaces and any surfaces that come in contact with dogs or cats
must:
  (i) Be free of excessive rust that prevents the required cleaning
and sanitization, or that affects the structural strength of the
surface; and
  (ii) Be free of jagged edges or sharp points that might injure
the animals.
  (2) Maintenance and replacement of surfaces. All surfaces must be
maintained on a regular basis. Surfaces of housing facilities--
including houses, dens, and other furniture-type fixtures and
objects within the facility--that cannot be readily cleaned and
sanitized, must be replaced when worn or soiled.
  (3) Cleaning. Hard surfaces with which the dogs or cats come in
contact must be spot-cleaned daily and sanitized in accordance with
Sec. 3.11(b) of this subpart to prevent accumulation of excreta and
reduce disease hazards. Floors made of dirt, absorbent bedding,
sand, gravel, grass, or other similar material must be raked or
spot-cleaned with sufficient frequency to ensure all animals the
freedom to avoid contact with excreta. Contaminated material must
be replaced whenever this raking and spot-cleaning is not
sufficient to prevent or eliminate odors, insects, pests, or vermin
infestation. All other surfaces of housing facilities must be
cleaned and sanitized when necessary to satisfy generally accepted
husbandry standards and practices. Sanitization may be done using
any of the methods provided in Sec. 3.11(b)(3) for primary
enclosures.
  (d) Water and electric power. The housing facility must have
reliable electric power adequate for heating, cooling, ventilation,
and lighting, and for carrying out other husbandry requirements in
accordance with the regulations in this subpart. The housing
facility must provide adequate running potable water for the dogs'
and cats' drinking needs, for cleaning, and for carrying out other
husbandry requirements.
  (e) Storage. Supplies of food and bedding must be stored in a
manner that protects the supplies from spoilage, contamination, and
vermin infestation. The supplies must be stored off the floor and
away from the walls, to allow cleaning underneath and around the
supplies. Foods requiring refrigeration must be stored accordingly,
and all food must be stored in a manner that prevents contamination
and deterioration of its nutritive value. All open supplies of food
and bedding must be kept in leakproof containers with tightly
fitting lids to prevent contamination and spoilage. Only food and
bedding that is currently being used may be kept in the animal
areas. Substances that are toxic to the dogs or cats but are
required for normal husbandry practices must not be stored in food
storage and preparation areas, but may be stored in cabinets in the
animal areas.
  (f) Drainage and waste disposal. Housing facility operators must
provide for regular and frequent collection, removal, and disposal
of animal and food wastes, bedding, debris, garbage, water, other
fluids and wastes, and dead animals, in a manner that minimizes
contamination and disease risks. Housing facilities must be
equipped with disposal facilities and drainage systems that are
constructed and operated so that animal waste and water are rapidly
eliminated and animals stay dry. Disposal and drainage systems must
minimize vermin and pest infestation, insects, odors, and disease
hazards. All drains must be properly constructed, installed, and
maintained. If closed drainage systems are used, they must be
equipped with traps and prevent the backflow of gases and the
backup of sewage onto the floor. If the facility uses sump or
settlement ponds, or other similar systems for drainage and animal
waste disposal, the system must be located far enough away from the
animal area of the housing facility to prevent odors, diseases,
pests, and vermin infestation. Standing puddles of water in animal
enclosures must be drained or mopped up so that the animals stay
dry. Trash containers in housing facilities and in food storage and
food preparation areas must be leakproof and must have tightly
fitted lids on them at all times. Dead animals, animal parts, and
animal waste must not be kept in food storage or food preparation
areas, food freezers, food refrigerators, or animal areas.
  (g) Washrooms and sinks. Washing facilities such as washrooms,
basins, sinks, or showers must be provided for animal caretakers
and must be readily accessible.
 
  Sec. 3.2 Indoor housing facilities.
 
  (a) Heating, cooling, and temperature. Indoor housing facilities
for dogs and cats must be sufficiently heated and cooled when
necessary to protect the dogs and cats from temperature extremes
and to provide for their health and well-being. When dogs or cats
are present, the ambient temperature in the facility must not fall
below 50 deg.F (10 deg.C) for dogs and cats not acclimated to lower
temperatures, for those breeds that cannot tolerate lower
temperatures without stress or discomfort (such as short-haired
breeds), and for sick, aged, young, or infirm dogs and cats, except
as approved by the attending veterinarian. Dry bedding, solid
resting boards, or other methods of conserving body heat must be
provided when temperatures are below 50 deg.F (10 deg.C). The
ambient temperature must not fall below 45 deg.F (7.2 deg.C) for
more than 4 consecutive hours when dogs or cats are present, and
must not rise above 85 deg.F (29.5 deg.C) for more than 4
consecutive hours when dogs or cats are present.
  (b) Ventilation. Indoor housing facilities for dogs and cats must
be sufficiently ventilated at all times when dogs or cats are
present to provide for their health and well-being, and to minimize
odors, drafts, ammonia levels, and moisture condensation.
Ventilation must be provided by windows, vents, fans, or air
conditioning. Auxiliary ventilation, such as fans, blowers, or air
conditioning must be provided when the ambient temperature is 85
deg.F (29.5 deg.C) or higher. The relative humidity must be
maintained at a level that ensures the health and well-being of the
dogs or cats housed therein, in accordance with the directions of
the attending veterinarian and generally accepted professional and
husbandry practices.
  (c) Lighting. Indoor housing facilities for dogs and cats must be
lighted well enough to permit routine inspection and cleaning of
the facility, and observation of the dogs and cats. Animal areas
must be provided a regular diurnal lighting cycle of either natural
or artificial light. Lighting must be uniformly diffused throughout
animal facilities and provide sufficient illumination to aid in
maintaining good housekeeping practices, adequate cleaning,
adequate inspection of animals, and for the well-being of the
animals. Primary enclosures must be placed so as to protect the
dogs and cats from excessive light.
  (d) Interior surfaces. The floors and walls of indoor housing
facilities, and any other surfaces in contact with the animals,
must be impervious to moisture. The ceilings of indoor housing
facilities must be impervious to moisture or be replaceable (e.g.,
a suspended ceiling with replaceable panels).
 
  Sec. 3.3  Sheltered housing facilities.
 
  (a) Heating, cooling, and temperature. The sheltered part of
sheltered housing facilities for dogs and cats must be sufficiently
heated and cooled when necessary to protect the dogs and cats from
temperature extremes and to provide for their health and well-
being. The ambient temperature in the sheltered part of the
facility must not fall below 50 deg.F (10 deg.C) for dogs and cats
not acclimated to lower temperatures, for those breeds that cannot
tolerate lower temperatures without stress and discomfort (such as
short-haired breeds), and for sick, aged, young, or infirm dogs or
cats, except as approved by the attending veterinarian. Dry
bedding, solid resting boards, or other methods of conserving body
heat must be provided when temperatures are below 50 deg.F (10
deg.C). The ambient temperature must not fall below 45 deg.F (7.2
deg.C) for more than 4 consecutive hours when dogs or cats are
present, and must not rise above 85 deg.F (29.5 deg.C) for more
than 4 consecutive hours when dogs or cats are present.
  (b) Ventilation. The enclosed or sheltered part of sheltered
housing facilities for dogs and cats must be sufficiently
ventilated when dogs or cats are present to provide for their
health and well-being, and to minimize odors, drafts, ammonia
levels, and moisture condensation. Ventilation must be provided by
windows, doors, vents, fans, or air conditioning. Auxiliary
ventilation, such as fans, blowers, or air-conditioning, must be
provided when the ambient temperature is 85 deg.F (29.5 deg.C) or
higher.
   (c) Lighting. Sheltered housing facilities for dogs and cats
must be lighted well enough to permit routine inspection and
cleaning of the facility, and observation of the dogs and cats.
Animal areas must be provided a regular diurnal lighting cycle of
either natural or artificial light. Lighting must be uniformly
diffused throughout animal facilities and provide sufficient
illumination to aid in maintaining good housekeeping practices,
adequate cleaning, adequate inspection of animals, and for the
well-being of the animals. Primary enclosures must be placed so as
to protect the dogs and cats from excessive light.
  (d) Shelter from the elements. Dogs and cats must be provided
with adequate shelter from the elements at all times to protect
their health and well-being. The shelter structures must be large
enough to allow each animal to sit, stand, and lie in a normal
manner and to turn about freely.
  (e) Surfaces. (1) The following areas in sheltered housing
facilities must be impervious to moisture:
  (i) Indoor floor areas in contact with the animals;
  (ii) Outdoor floor areas in contact with the animals, when the
floor areas are not exposed to the direct sun, or are made of a
hard material such as wire, wood, metal, or concrete; and
  (iii) All walls, boxes, houses, dens, and other surfaces in
contact with the animals.
  (2) Outside floor areas in contact with the animals and exposed
to the direct sun may consist of compacted earth, absorbent
bedding, sand, gravel, or grass.
 
  Sec. 3.4  Outdoor housing facilities.
 
  (a) Restrictions. (1) The following categories of dogs or cats
must not be kept in outdoor facilities, unless that practice is
specifically approved by the attending veterinarian:
  (i) Dogs or cats that are not acclimated to the temperatures
prevalent in the area or region where they are maintained;
  (ii) Breeds of dogs or cats that cannot tolerate the prevalent
temperatures of the area without stress or discomfort (such as
short-haired breeds in cold climates); and
  (iii) Sick, infirm, aged or young dogs or cats.
  (2) When their acclimation status is unknown, dogs and cats must
not be kept in outdoor facilities when the ambient temperature is
less than 50 deg.F (10 deg.C).
  (b) Shelter from the elements. Outdoor facilities for dogs or
cats must include one or more shelter structures that are
accessible to each animal in each outdoor facility, and that are
large enough to allow each animal in the shelter structure to sit,
stand, and lie in a normal manner, and to turn about freely. In
addition to the shelter structures, one or more separate outside
areas of shade must be provided, large enough to contain all the
animals at one time and protect them from the direct rays of the
sun. Shelters in outdoor facilities for dogs or cats must contain
a roof, four sides, and a floor, and must:
  (1) Provide the dogs and cats with adequate protection and
shelter from the cold and heat;
  (2) Provide the dogs and cats with protection from the direct
rays of the sun and the direct effect of wind, rain, or snow;
  (3) Be provided with a wind break and rain break at the entrance;
and
  (4) Contain clean, dry, bedding material if the ambient
temperature is below 50 deg.F (10 deg.C). Additional clean, dry
bedding is required when the temperature is 35 deg.F (1.7 deg.C) or
lower.
  (c) Construction. Building surfaces in contact with animals in
outdoor housing facilities must be impervious to moisture. Metal
barrels, cars, refrigerators or freezers, and the like must not be
used as shelter structures. The floors of outdoor housing
facilities may be of compacted earth, absorbent bedding, sand,
gravel, or grass, and must be replaced if there are any prevalent
odors, diseases, insects, pests, or vermin. All surfaces must be
maintained on a regular basis. Surfaces of outdoor housing
facilities--including houses, dens, etc.--that cannot be readily
cleaned and sanitized, must be replaced when worn or soiled.
 
  Sec. 3.5  Mobile or traveling housing facilities.
 
  (a) Heating, cooling, and temperature. Mobile or traveling
housing facilities for dogs and cats must be sufficiently heated
and cooled when necessary to protect the dogs and cats from
temperature extremes and to provide for their health and well-
being. The ambient temperature in the mobile or traveling housing
facility must not fall below 50 deg.F (10 deg.C) for dogs and cats
not acclimated to lower temperatures, for those breeds that cannot
tolerate lower temperatures without stress or discomfort (such as
short-haired breeds), and for sick, aged, young, or infirm dogs and
cats. Dry bedding, solid resting boards, or other methods of
conserving body heat must be provided when temperatures are below
50 deg.F (10 deg.C). The ambient temperature must not fall below 45
deg.F (7.2 deg.C) for more than 4 consecutive hours when dogs or
cats are present, and must not exceed 85 deg.F (29.5 deg.C) for
more than 4 consecutive hours when dogs or cats are present.
   (b) Ventilation. Mobile or traveling housing facilities for dogs
and cats must be sufficiently ventilated at all times when dogs or
cats are present to provide for the health and well-being of the
animals, and to minimize odors, drafts, ammonia levels, moisture
condensation, and exhaust fumes. Ventilation must be provided by
means of windows, doors, vents, fans, or air conditioning.
Auxiliary ventilation, such as fans, blowers, or air conditioning,
must be provided when the ambient temperature within the animal
housing area is 85 deg.F (29.5 deg.C) or higher.
  (c) Lighting. Mobile or traveling housing facilities for dogs and
cats must be lighted well enough to permit proper cleaning and
inspection of the facility, and observation of the dogs and cats.
Animal areas must be provided a regular diurnal lighting cycle of
either natural or artificial light. Lighting must be uniformly
diffused throughout animal facilities and provide sufficient
illumination to aid in maintaining good housekeeping practices,
adequate cleaning, adequate inspection of animals, and for the
well-being of the animals.
 
  Sec. 3.6  Primary enclosures.
 
  Primary enclosures for dogs and cats must meet the following
minimum requirements:
  (a) General requirements.
  (1) Primary enclosures must be designed and constructed of
suitable materials so that they are structurally sound. The primary
enclosures must be kept in good repair.
  (2) Primary enclosures must be constructed and maintained so that
they:
  (i) Have no sharp points or edges that could injure the dogs and
cats;
  (ii) Protect the dogs and cats from injury;
  (iii) Contain the dogs and cats securely;
  (iv) Keep other animals from entering the enclosure;
  (v) Enable the dogs and cats to remain dry and clean;
  (vi) Provide shelter and protection from extreme temperatures and
weather conditions that may be uncomfortable or hazardous to all
the dogs and cats;
  (vii) Provide sufficient shade to shelter all the dogs and cats
housed in the primary enclosure at one time;
  (viii) Provide all the dogs and cats with easy and convenient
access to clean food and water;
  (ix) Enable all surfaces in contact with the dogs and cats to be
readily cleaned and sanitized in accordance with Sec. 3.11(b) of
this subpart, or be replaceable when worn or soiled;
  (x) Have floors that are constructed in a manner that protects
the dogs' and cats' feet and legs from injury, and that, if of mesh
or slatted construction, do not allow the dogs' and cats' feet to
pass through any openings in the floor. If the floor of the primary
enclosure is constructed of wire, a solid resting surface or
surfaces that, in the aggregate, are large enough to hold all the
occupants of the primary enclosure at the same time comfortably
must be provided; and
  (xi) Provide sufficient space to allow each dog and cat to turn
about freely, to stand, sit, and lie in a comfortable, normal
position, and to walk in a normal manner.
  (b) Additional requirements for cats.
  (1) Space. Each cat, including weaned kittens, that is housed in
any primary enclosure must be provided minimum vertical space and
floor space as follows:
  (i) Prior to February 15, 1994 each cat housed in any primary
enclosure shall be provided a minimum of 2 1/2  square feet of
floor space;
  (ii) On and after February 15, 1994:
  (A) Each primary enclosure housing cats must be at least 24 in.
high (60.96 cm);
  (B) Cats up to and including 8.8 lbs (4 kg) must be provided with
at least 3.0 ft/2/ (0.28 m/2/);
  (C) Cats over 8.8 lbs (4 kg) must be provided with at least 4.0
ft/2/ (0.37 m/2/);
  (iii) Each queen with nursing kittens must be provided with an
additional amount of floor space, based on her breed and behavioral
characteristics, and in accordance with generally accepted
husbandry practices. If the additional amount of floor space for
each nursing kitten is equivalent to less than 5 percent of the
minimum requirement for the queen, such housing must be approved by
the attending veterinarian in the case of a research facility, and,
in the case of dealers and exhibitors, such housing must be
approved by the Administrator; and
  (iv) The minimum floor space required by this section is
exclusive of any food or water pans. The litter pan may be
considered part of the floor space if properly cleaned and
sanitized.
  (2) Compatibility. All cats housed in the same primary enclosure
must be compatible, as determined by observation. Not more than 12
adult nonconditioned cats may be housed in the same primary
enclosure. Queens in heat may not be housed in the same primary
enclosure with sexually mature males, except for breeding. Except
when maintained in breeding colonies, queens with litters may not
be housed in the same primary enclosure with other adult cats, and
kittens under 4 months of age may not be housed in the same primary
enclosure with adult cats, other than the dam or foster dam. Cats
with a vicious or aggressive disposition must be housed separately. 
 (3) Litter. In all primary enclosures, a receptacle containing
sufficient clean litter must be provided to contain excreta and
body wastes.
 (4) Resting surfaces. Each primary enclosure housing cats must
contain a resting surface or surfaces that, in the aggregate, are
large enough to hold all the occupants of the primary enclosure at
the same time comfortably. The resting surfaces must be elevated,
impervious to moisture, and be able to be easily cleaned and
sanitized, or easily replaced when soiled or worn. Low resting
surfaces that do not allow the space under them to be comfortably
occupied by the animal will be counted as part of the floor space. 
 (5) Cats in mobile or traveling shows or acts. Cats that are part
of a mobile or traveling show or act may be kept, while the show or
act is traveling from one temporary location to another, in
transport containers that comply with all requirements of Sec. 3.14
of this subpart other than the marking requirements in Sec.
3.14(a)(6) of this subpart. When the show or act is not traveling,
the cats must be placed in primary enclosures that meet the minimum
requirements of this section.
  (c) Additional requirements for dogs.--(1) Space. (i) Each dog
housed in a primary enclosure (including weaned puppies) must be
provided a minimum amount of floor space, calculated as follows:
Find the mathematical square of the sum of the length of the dog in
inches (measured from the tip of its nose to the base of its tail)
plus 6 inches; then divide the product by 144. The calculation is:
(length of dog in inches + 6) x (length of dog in inches + 6) =
required floor space in square inches. Required floor space in
inches/144 = required floor space in square feet.
  (ii) Each bitch with nursing puppies must be provided with an
additional amount of floor space, based on her breed and behavioral
characteristics, and in accordance with generally accepted
husbandry practices as determined by the attending veterinarian. If
the additional amount of floor space for each nursing puppy is less
than 5 percent of the minimum requirement for the bitch, such
housing must be approved by the attending veterinarian in the case
of a research facility, and, in the case of dealers and exhibitors,
such housing must be approved by the Administrator.
  (iii) The interior height of a primary enclosure must be at least
6 inches higher than the head of the tallest dog in the enclosure
when it is in a normal standing position: Provided that, prior to
February 15, 1994, each dog must be able to stand in a comfortable
normal position.
  (2) Dogs on tethers. (i) Dogs may be kept on tethers only in
outside housing facilities that meet the requirements of Sec. 3.4
of this subpart, and only when the tether meets the requirements of
this paragraph. The tether must be attached to the front of the
dog's shelter structure or to a post in front of the shelter
structure and must be at least three times the length of the dog,
as measured from the tip of its nose to the base of its tail. The
tether must allow the dog convenient access to the shelter
structure and to food and water containers. The tether must be of
the type and strength commonly used for the size dog involved and
must be attached to the dog by a well-fitted collar that will not
cause trauma or injury to the dog. Collars made of materials such
as wire, flat chains, chains with sharp edges, or chains with rusty
or nonuniform links are prohibited. The tether must be attached so
that the dog cannot become entangled with other objects or come
into physical contact with other dogs in the outside housing
facility, and so the dog can roam to the full range of the tether.
  (ii) On and after February 15, 1994, dog housing areas where dogs
are on tethers must be enclosed by a perimeter fence that is of
sufficient height to keep unwanted animals out. Fences less than 6
feet high must be approved by the Administrator. The fence must be
constructed so that it protects the dogs by preventing animals the
size of dogs, skunks, and raccoons from going through it or under
it and having contact with the dogs inside.
   (3) Compatibility. All dogs housed in the same primary enclosure
must be compatible, as determined by observation. Not more than 12
adult nonconditioned dogs may be housed in the same primary
enclosure. Bitches in heat may not be housed in the same primary
enclosure with sexually mature males, except for breeding. Except
when maintained in breeding colonies, bitches with litters may not
be housed in the same primary enclosure with other adult dogs, and
puppies under 4 months of age may not be housed in the same primary
enclosure with adult dogs, other than the dam or foster dam. Dogs
with a vicious or aggressive disposition must be housed separately. 
 (4) Dogs in mobile or traveling shows or acts. Dogs that are part
of a mobile or traveling show or act may be kept, while the show or
act is traveling from one temporary location to another, in
transport containers that comply with all requirements of Sec. 3.14
of this subpart other than the marking requirements in Sec.
3.14(a)(6) of this subpart. When the show or act is not traveling,
the dogs must be placed in primary enclosures that meet the minimum
requirements of this section.
  (d) Innovative primary enclosures not precisely meeting the floor
area and height requirements provided in paragraphs (b)(1) and
(c)(1) of this section, but that provide the dogs or cats with a
sufficient volume of space and the opportunity to express species-
typical behavior, may be used at research facilities when approved
by the Committee, and by dealers and exhibitors when approved by
the Administrator.
 
  (Approved by the Office of Management and Budget under control
number 0579-0093)
 
  Animal Health and Husbandry Standards
 
  Sec. 3.7  Compatible grouping.
 
  Dogs and cats that are housed in the same primary enclosure must
be compatible, with the following restrictions:
  (a) Females in heat (estrus) may not be housed in the same
primary enclosure with males, except for breeding purposes;
  (b) Any dog or cat exhibiting a vicious or overly aggressive
disposition must be housed separately;
  (c) Puppies or kittens 4 months of age or less may not be housed
in the same primary enclosure with adult dogs or cats other than
their dams or foster dams, except when permanently maintained in
breeding colonies;
  (d) Dogs or cats may not be housed in the same primary enclosure
with any other species of animals, unless they are compatible; and 
  (e) Dogs and cats that have or are suspected of having a
contagious disease must be isolated from healthy animals in the
colony, as directed by the attending veterinarian. When an entire
group or room of dogs and cats is known to have or believed to be
exposed to an infectious agent, the group may be kept intact during
the process of diagnosis, treatment, and control.  
 
 Sec. 3.8  Exercise for dogs.
 
  Dealers, exhibitors, and research facilities must develop,
document, and follow an appropriate plan to provide dogs with the
opportunity for exercise. In addition, the plan must be approved by
the attending veterinarian. The plan must include written standard
procedures to be followed in providing the opportunity for
exercise. The plan must be made available to APHIS upon request,
and, in the case of research facilities, to officials of any
pertinent funding Federal agency. The plan, at a minimum, must
comply with each of the following:
  (a) Dogs housed individually. Dogs over 12 weeks of age, except
bitches with litters, housed, held, or maintained by any dealer,
exhibitor, or research facility, including Federal research
facilities, must be provided the opportunity for exercise regularly
if they are kept individually in cages, pens, or runs that provide
less than two times the required floor space for that dog, as
indicated by Sec. 3.6(c)(1) of this subpart.
  (b) Dogs housed in groups. Dogs over 12 weeks of age housed,
held, or maintained in groups by any dealer, exhibitor, or research
facility, including Federal research facilities, do not require
additional opportunity for exercise regularly if they are
maintained in cages, pens, or runs that provide in total at least
100 percent of the required space for each dog if maintained
separately. Such animals may be maintained in compatible groups,
unless:
  (1) Housing in compatible groups is not in accordance with a
research proposal and the proposal has been approved by the
research facility Committee;
 (2) In the opinion of the attending veterinarian, such housing
would adversely affect the health or well-being of the dog(s); or 
 (3) Any dog exhibits aggressive or vicious behavior.
 (c) Methods and period of providing exercise opportunity. (1) The
frequency, method, and duration of the opportunity for exercise
shall be determined by the attending veterinarian and, at research
facilities, in consultation with and approval by the Committee.
  (2) Dealers, exhibitors, and research facilities, in developing
their plan, should consider providing positive physical contact
with humans that encourages exercise through play or other similar
activities. If a dog is housed, held, or maintained at a facility
without sensory contact with another dog, it must be provided with
positive physical contact with humans at least daily.
  (3) The opportunity for exercise may be provided in a number of
ways, such as:
  (i) Group housing in cages, pens or runs that provide at least
100 percent of the required space for each dog if maintained
separately under the minimum floor space requirements of Sec.
3.6(c)(1) of this subpart;
  (ii) Maintaining individually housed dogs in cages, pens, or runs
that provide at least twice the minimum floor space required by
Sec. 3.6(c)(1) of this subpart;
  (iii) Providing access to a run or open area at the frequency and
duration prescribed by the attending veterinarian; or
  (iv) Other similar activities.
  (4) Forced exercise methods or devices such as swimming,
treadmills, or carousel-type devices are unacceptable for meeting
the exercise requirements of this section.
  (d) Exemptions. (1) If, in the opinion of the attending
veterinarian, it is inappropriate for certain dogs to exercise
because of their health, condition, or well-being, the dealer,
exhibitor, or research facility may be exempted from meeting the
requirements of this section for those dogs. Such exemption must be
documented by the attending veterinarian and, unless the basis for
exemption is a permanent condition, must be reviewed at least every
30 days by the attending veterinarian.
  (2) A research facility may be exempted from the requirements of
this section if the principal investigator determines for
scientific reasons set forth in the research proposal that it is
inappropriate for certain dogs to exercise. Such exemption must be
documented in the Committee-approved proposal and must be reviewed
at appropriate intervals as determined by the Committee, but not
less than annually.
  (3) Records of any exemptions must be maintained and made
available to USDA officials or any pertinent funding Federal agency
upon request. (Approved by the Office of Management and Budget
under control number 0579-0093)  

  Sec. 3.9  Feeding.
 
  (a) Dogs and cats must be fed at least once each day, except as
otherwise might be required to provide adequate veterinary care.
The food must be uncontaminated, wholesome, palatable, and of
sufficient quantity and nutritive value to maintain the normal
condition and weight of the animal. The diet must be appropriate
for the individual animal's age and condition.
   (b) Food receptacles must be used for dogs and cats, must be
readily accessible to all dogs and cats, and must be located so as
to minimize contamination by excreta and pests, and be protected
from rain and snow. Feeding pans must either be made of a durable
material that can be easily cleaned and sanitized or be disposable.
If the food receptacles are not disposable, they must be kept clean
and must be sanitized in accordance with Sec. 3.11(b) of this
subpart. Sanitization is achieved by using one of the methods
described in Sec. 3.11(b)(3) of this subpart. If the food
receptacles are disposable, they must be discarded after one use.
Self-feeders may be used for the feeding of dry food. If self-
feeders are used, they must be kept clean and must be sanitized in
accordance with Sec. 3.11(b) of this subpart. Measures must be
taken to ensure that there is no molding, deterioration, and caking
of feed.
 
  Sec. 3.10 Watering.
 
  If potable water is not continually available to the dogs and
cats, it must be offered to the dogs and cats as often as necessary
to ensure their health and well-being, but not less than twice
daily for at least 1 hour each time, unless restricted by the
attending veterinarian. Water receptacles must be kept clean and
sanitized in accordance with Sec. 3.11(b) of this subpart, and
before being used to water a different dog or cat or social
grouping of dogs or cats.
 
  Sec. 3.11 Cleaning, sanitization, housekeeping, and pest control. 

  (a) Cleaning of primary enclosures. Excreta and food waste must
be removed from primary enclosures daily, and from under primary
enclosures as often as necessary to prevent an excessive
accumulation of feces and food waste, to prevent soiling of the
dogs or cats contained in the primary enclosures, and to reduce
disease hazards, insects, pests and odors. When steam or water is
used to clean the primary enclosure, whether by hosing, flushing,
or other methods, dogs and cats must be removed, unless the
enclosure is large enough to ensure the animals would not be
harmed, wetted, or distressed in the process. Standing water must
be removed from the primary enclosure and animals in other primary
enclosures must be protected from being contaminated with water and
other wastes during the cleaning. The pans under primary enclosures
with grill-type floors and the ground areas under raised runs with
wire or slatted floors must be cleaned as often as necessary to
prevent accumulation of feces and food waste and to reduce disease
hazards pests, insects and odors.
  (b) Sanitization of primary enclosures and food and water
receptacles. (1) Used primary enclosures and food and water
receptacles must be cleaned and sanitized in accordance with this
section before they can be used to house, feed, or water another
dog or cat, or social grouping of dogs or cats.
   (2) Used primary enclosures and food and water receptacles for
dogs and cats must be sanitized at least once every 2 weeks using
one of the methods prescribed in paragraph (b)(3) of this section,
and more often if necessary to prevent an accumulation of dirt,
debris, food waste, excreta, and other disease hazards.
  (3) Hard surfaces of primary enclosures and food and water
receptacles must be sanitized using one of the following methods:
  (i) Live steam under pressure;
  (ii) Washing with hot water (at least 180 deg.F (82.2 deg.C)) and
soap or detergent, as with a mechanical cage washer; or
  (iii) Washing all soiled surfaces with appropriate detergent
solutions and disinfectants, or by using a combination
detergent/disinfectant product that accomplishes the same purpose,
with a thorough cleaning of the surfaces to remove organic
material, so as to remove all organic material and mineral buildup,
and to provide sanitization followed by a clean water rinse.
   (4) Pens, runs, and outdoor housing areas using material that
cannot be sanitized using the methods provided in paragraph (b)(3)
of this section, such as gravel, sand, grass, earth, or absorbent
bedding, must be sanitized by removing the contaminated material as
necessary to prevent odors, diseases, pests, insects, and vermin
infestation.
  (c) Housekeeping for premises. Premises where housing facilities
are located, including buildings and surrounding grounds, must be
kept clean and in good repair to protect the animals from injury,
to facilitate the husbandry practices required in this subpart, and
to reduce or eliminate breeding and living areas for rodents and
other pests and vermin. Premises must be kept free of accumulations
of trash, junk, waste products, and discarded matter. Weeds,
grasses, and bushes must be controlled so as to facilitate cleaning
of the premises and pest control, and to protect the health and
well-being of the animals.
  (d) Pest control. An effective program for the control of
insects, external parasites affecting dogs and cats, and birds and
mammals that are pests, must be established and maintained so as to
promote the health and well-being of the animals and reduce
contamination by pests in animal areas.  

  Sec. 3.12 Employees.
 
  Each person subject to the Animal Welfare regulations (9 CFR
Parts 1, 2, and 3) maintaining dogs and cats must have enough
employees to carry out the level of husbandry practices and care
required in this subpart. The employees who provide for husbandry
and care, or handle animals, must be supervised by an individual
who has the knowledge, background, and experience in proper
husbandry and care of dogs and cats to supervise others. The
employer must be certain that the supervisor and other employees
can perform to these standards.
 
  Transportation Standards
 
  Sec. 3.13 Consignments to carriers and intermediate handlers.  
  (a) Carriers and intermediate handlers must not accept a dog or
cat for transport in commerce more than 4 hours before the
scheduled departure time of the primary conveyance on which the
animal is to be transported. However, a carrier or intermediate
handler may agree with anyone consigning a dog or cat to extend
this time by up to 2 hours.
  (b) Carriers and intermediate handlers must not accept a dog or
cat for transport in commerce unless they are provided with the
name, address, and telephone number of the consignee.
  (c) Carriers and intermediate handlers must not accept a dog or
cat for transport in commerce unless the consignor certifies in
writing to the carrier or intermediate handler that the dog or cat
was offered food and water during the 4 hours before delivery to
the carrier or intermediate handler. The certification must be
securely attached to the outside of the primary enclosure in a
manner that makes it easily noticed and read. Instructions for no
food or water are not acceptable unless directed by the attending
veterinarian. Instructions must be in compliance with Sec. 3.16 of
this subpart. The certification must include the following
information for each dog and cat:
  (1) The consignor's name and address;
  (2) The tag number or tattoo assigned to each dog or cat under
Secs. 2.38 and 2.50 of this chapter;
  (3) The time and date the animal was last fed and watered and the
specific instructions for the next feeding(s) and watering(s) for
a 24-hour period; and
  (4) The consignor's signature and the date and time the
certification was signed.
  (d) Carriers and intermediate handlers must not accept a dog or
cat for transport in commerce in a primary enclosure unless the
primary enclosure meets the requirements of Sec. 3.14 of this
subpart. A carrier or intermediate handler must not accept a dog or
cat for transport if the primary enclosure is obviously defective
or damaged and cannot reasonably be expected to safely and
comfortably contain the dog or cat without causing suffering or
injury.
  (e) Carriers and intermediate handlers must not accept a dog or
cat for transport in commerce unless their animal holding area
meets the minimum temperature requirements provided in Secs. 3.18
and 3.19 of this subpart, or unless the consignor provides them
with a certificate signed by a veterinarian and dated no more than
10 days before delivery of the animal to the carrier or
intermediate handler for transport in commerce, certifying that the
animal is acclimated to temperatures lower than those required in
Secs. 3.18 and 3.19 of this subpart. Even if the carrier or
intermediate handler receives this certification, the temperatures
the dog or cat is exposed to while in a terminal facility must not
be lower than 45 deg.F (2.2 deg.C) for more than 4 consecutive
hours when dogs or cats are present, as set forth in Sec. 3.18, nor
lower than 45 deg.F (2.2 deg.C) for more than 45 minutes, as set
forth in Sec. 3.19, when moving dogs or cats to or from terminal
facilities or primary conveyances. A copy of the certification must
accompany the dog or cat to its destination and must include the
following information:
  (1) The consignor's name and address;
  (2) The tag number or tattoo assigned to each dog or cat under
Secs. 2.38 and 2.50 of this chapter;
  (3) A statement by a veterinarian, dated no more than 10 days
before delivery, that to the best of his or her knowledge, each of
the dogs or cats contained in the primary enclosure is acclimated
to air temperatures lower than 50 deg.F (10 deg.C); but not lower
than a minimum temperature, specified on a certificate, that the
attending veterinarian has determined is based on generally
accepted temperature standards for the age, condition, and breed of
the dog or cat; and
  (4) The signature of the veterinarian and the date the
certification was signed.
  (f) When a primary enclosure containing a dog or cat has arrived
at the animal holding area at a terminal facility after transport,
the carrier or intermediate handler must attempt to notify the
consignee upon arrival and at least once in every 6-hour period
thereafter. The time, date, and method of all attempted
notifications and the actual notification of the consignee, and the
name of the person who notifies or attempts to notify the consignee
must be written either on the carrier's or intermediate handler's
copy of the shipping document or on the copy that accompanies the
primary enclosure. If the consignee cannot be notified within 24
hours after the dog or cat has arrived at the terminal facility,
the carrier or intermediate handler must return the animal to the
consignor or to whomever the consignor designates. If the consignee
is notified of the arrival and does not accept delivery of the dog
or cat within 48 hours after arrival of the dog or cat, the carrier
or intermediate handler must return the animal to the consignor or
to whomever the consignor designates. The carrier or intermediate
handler must continue to provide proper care, feeding, and housing
to the dog or cat, and maintain the dog or cat in accordance with
generally accepted professional and husbandry practices until the
consignee accepts delivery of the dog or cat or until it is
returned to the consignor or to whomever the consignor designates.
The carrier or intermediate handler must obligate the consignor to
reimburse the carrier or intermediate handler for the cost of
return transportation and care.
 
  (Approved by the Office of Management and Budget under control
number 0579-  0093)
 
  Sec. 3.14 Primary enclosures used to transport live dogs and
cats.  

  Any person subject to the Animal Welfare regulations (9 CFR parts
1, 2, and 3) must not transport or deliver for transport in
commerce a dog or cat unless the following requirements are met:
  (a) Construction of primary enclosures. The dog or cat must be
contained in a primary enclosure such as a compartment, transport
cage, carton, or crate. Primary enclosures used to transport dogs
and cats must be constructed so that:
  (1) The primary enclosure is strong enough to contain the dogs
and cats securely and comfortably and to withstand the normal
rigors of transportation;
  (2) The interior of the primary enclosure has no sharp points or
edges and no protrusions that could injure the animal contained in
it;
  (3) The dog or cat is at all times securely contained within the
enclosure and cannot put any part of its body outside the enclosure
in a way that could result in injury to itself, to handlers, or to
persons or animals nearby;
   (4) The dog or cat can be easily and quickly removed from the
enclosure in an emergency;
  (5) Unless the enclosure is permanently affixed to the
conveyance, adequate devices such as handles or handholds are
provided on its exterior, and enable the enclosure to be lifted
without tilting it, and ensure that anyone handling the enclosure
will not come into physical contact with the animal contained
inside;
  (6) Unless the enclosure is permanently affixed to the
conveyance, it is clearly marked on top and on one or more sides
with the words "Live Animals," in letters at least 1 inch (2.5 cm.)
high, and with arrows or other markings to indicate the correct
upright position of the primary enclosure;
   (7) Any material, treatment, paint, preservative, or other
chemical used in or on the enclosure is nontoxic to the animal and
not harmful to the health or well-being of the animal;
  (8) Proper ventilation is provided to the animal in accordance
with paragraph (c) of this section; and
  (9) The primary enclosure has a solid, leak-proof bottom or a
removable, leak-proof collection tray under a slatted or wire mesh
floor that prevents seepage of waste products, such as excreta and
body fluids, outside of the enclosure. If a slatted or wire mesh
floor is used in the enclosure, it must be designed and constructed
so that the animal cannot put any part of its body between the
slats or through the holes in the mesh. Unless the dogs and cats
are on raised slatted floors or raised floors made of wire mesh,
the primary enclosure must contain enough previously unused litter
to absorb and cover excreta. The litter must be of a suitably
absorbent material that is safe and nontoxic to the dogs and cats.
  (b) Cleaning of primary enclosures. A primary enclosure used to
hold or transport dogs or cats in commerce must be cleaned and
sanitized before each use in accordance with the methods provided
in Sec. 3.11(b)(3) of this subpart. If the dogs or cats are in
transit for more than 24 hours, the enclosures must be cleaned and
any litter replaced, or other methods, such as moving the animals
to another enclosure, must be utilized to prevent the soiling of
the dogs or cats by body wastes. If it becomes necessary to remove
the dog or cat from the enclosure in order to clean, or to move the
dog or cat to another enclosure, this procedure must be completed
in a way that safeguards the dog or cat from injury and prevents
escape.
   (c) Ventilation. (1) Unless the primary enclosure is permanently
affixed to the conveyance, there must be:
  (i) Ventilation openings located on two opposing walls of the
primary enclosure and the openings must be at least 16 percent of
the surface area of each such wall, and the total combined surface
area of the ventilation openings must be at least 14 percent of the
total combined surface area of all the walls of the primary
enclosure; or
  (ii) Ventilation openings on three walls of the primary
enclosure, and the openings on each of the two opposing walls must
be at least 8 percent of the total surface area of the two walls,
and the ventilation openings on the third wall of the primary
enclosure must be at least 50 percent of the total surface area of
that wall, and the total combined surface area of the ventilation
openings must be at least 14 percent of the total combined surface
area of all the walls of the primary enclosure; or
   (iii) Ventilation openings located on all four walls of the
primary enclosure and the ventilation openings on each of the four
walls must be at least 8 percent of the total surface area of each
such wall, and the total combined surface area of the openings must
be at least 14 percent of total combined surface area of all the
walls of the primary enclosure; and
   (iv) At least one-third of the ventilation area must be located
on the upper half of the primary enclosure.
  (2) Unless the primary enclosure is permanently affixed to the
conveyance, projecting rims or similar devices must be located on
the exterior of each enclosure wall having a ventilation opening,
in order to prevent obstruction of the openings. The projecting
rims or similar devices must be large enough to provide a minimum
air circulation space of 0.75 in. (1.9 cm) between the primary
enclosure and anything the enclosure is placed against.
   (3) If a primary enclosure is permanently affixed to the primary
conveyance so that there is only a front ventilation opening for
the enclosure, the primary enclosure must be affixed to the primary
conveyance in such a way that the front ventilation opening cannot
be blocked, and the front ventilation opening must open directly to
an unobstructed aisle or passageway inside the conveyance. The
ventilation opening must be at least 90 percent of the total area
of the front wall of the enclosure, and must be covered with bars,
wire mesh, or smooth expanded metal having air spaces.
   (d) Compatibility. (1) Live dogs or cats transported in the same
primary enclosure must be of the same species and be maintained in
compatible groups, except that dogs and cats that are private pets,
are of comparable size, and are compatible, may be transported in
the same primary enclosure.
   (2) Puppies or kittens 4 months of age or less may not be
transported in the same primary enclosure with adult dogs or cats
other than their dams.
   (3) Dogs or cats that are overly aggressive or exhibit a vicious
disposition must be transported individually in a primary
enclosure.
   (4) Any female dog or cat in heat (estrus) may not be
transported in the same primary enclosure with any male dog or cat.
  (e) Space and placement. (1) Primary enclosures used to transport
live dogs and cats must be large enough to ensure that each animal
contained in the primary enclosure has enough space to turn about
normally while standing, to stand and sit erect, and to lie in a
natural position.
  (2) Primary enclosures used to transport dogs and cats must be
positioned in the primary conveyance so as to provide protection
from the elements.
   (f) Transportation by air. (1) No more than one live dog or cat,
6 months of age or older, may be transported in the same primary
enclosure when shipped via air carrier.
  (2) No more than one live puppy, 8 weeks to 6 months of age, and
weighing over 20 lbs (9 kg), may be transported in a primary
enclosure when shipped via air carrier.
  (3) No more than two live puppies or kittens, 8 weeks to 6 months
of age, that are of comparable size, and weighing 20 lbs (9 kg) or
less each, may be transported in the same primary enclosure when
shipped via air carrier.
   (4) Weaned live puppies or kittens less than 8 weeks of age and
of comparable size, or puppies or kittens that are less than 8
weeks of age that are littermates and are accompanied by their dam,
may be transported in the same primary enclosure when shipped to
research facilities, including Federal research facilities.
  (g) Transportation by surface vehicle or privately owned
aircraft. (1) No more than four live dogs or cats, 8 weeks of age
or older, that are of comparable size, may be transported in the
same primary enclosure when shipped by surface vehicle (including
ground and water transportation) or privately owned aircraft, and
only if all other requirements of this section are met.
  (2) Weaned live puppies or kittens less than 8 weeks of age and
of comparable size, or puppies or kittens that are less than 8
weeks of age that are littermates and are accompanied by their dam,
may be transported in the same primary enclosure when shipped to
research facilities, including Federal research facilities, and
only if all other requirements in this section are met.
  (h) Accompanying documents and records. Shipping documents that
must accompany shipments of dogs and cats may be held by the
operator of the primary conveyance, for surface transportation
only, or must be securely attached in a readily accessible manner
to the outside of any primary enclosure that is part of the
shipment, in a manner that allows them to be detached for
examination and securely reattached, such as in a pocket or sleeve.
Instructions for administration of drugs, medication, and other
special care must be attached to each primary enclosure in a manner
that makes them easy to notice, to detach for examination, and to
reattach securely. Food and water instructions must be attached in
accordance with Sec. 3.13(c).
 
  (Approved by the Office of Management and Budget under control
number 0579-  0093)
 
  Sec. 3.15 Primary conveyances (motor vehicle, rail, air, and
marine).  
  (a) The animal cargo space of primary conveyances used to
transport dogs and cats must be designed, constructed, and
maintained in a manner that at all times protects the health and
well-being of the animals transported in them, ensures their safety
and comfort, and prevents the entry of engine exhaust from the
primary conveyance during transportation.
   (b) The animal cargo space must have a supply of air that is
sufficient for the normal breathing of all the animals being
transported in it.
   (c) Each primary enclosure containing dogs or cats must be
positioned in the animal cargo space in a manner that provides
protection from the elements and that allows each dog or cat enough
air for normal breathing.
   (d) During air transportation, dogs and cats must be held in
cargo areas that are heated or cooled as necessary to maintain an
ambient temperature that ensures the health and well-being of the
dogs or cats. The cargo areas must be pressurized when the primary
conveyance used for air transportation is not on the ground, unless
flying under 8,000 ft. Dogs and cats must have adequate air for
breathing at all times when being transported.
   (e) During surface transportation, auxiliary ventilation, such
as fans, blowers or air conditioning, must be used in any animal
cargo space containing live dogs or cats when the ambient
temperature within the animal cargo space reaches 85 deg.F (29.5
deg.C). Moreover, the ambient temperature may not exceed 85 deg.F
(29.5 deg.C) for a period of more than 4 hours; nor fall below 45
deg.F (7.2 deg.C) for a period of more than 4 hours.
   (f) Primary enclosures must be positioned in the primary
conveyance in a manner that allows the dogs and cats to be quickly
and easily removed from the primary conveyance in an emergency.
  (g) The interior of the animal cargo space must be kept clean.  
  (h) Live dogs and cats may not be transported with any material,
substance (e.g., dry ice) or device in a manner that may reasonably
be expected to harm the dogs and cats or cause inhumane conditions.
 
  Sec. 3.16 Food and water requirements.
 
  (a) Each dog and cat that is 16 weeks of age or more must be
offered food at least once every 24 hours. Puppies and kittens less
than 16 weeks of age must be offered food at least once every 12
hours. Each dog and cat must be offered potable water at least once
every 12 hours. These time periods apply to dealers, exhibitors,
research facilities. including Federal research facilities, who
transport dogs and cats in their own primary conveyance, starting
from the time the dog or cat was last offered food and potable
water before transportation was begun. These time periods apply to
carriers and intermediate handlers starting from the date and time
stated on the certificate provided under Sec. 3.13(c) of this
subpart. Each dog and cat must be offered food and potable water
within 4 hours before being transported in commerce. Consignors who
are subject to the Animal Welfare regulations (9 CFR parts 1, 2,
and 3) must certify that each dog and cat was offered food and
potable water within the 4 hours preceding delivery of the dog or
cat to a carrier or intermediate handler for transportation in
commerce, and must certify the date and time the food and potable
water was offered, in accordance with Sec. 3.13(c) of this subpart. 
 (b) Any dealer, research facility, including a Federal research
facility, or exhibitor offering any dog or cat to a carrier or
intermediate handler for transportation in commerce must securely
attach to the outside of the primary enclosure used for
transporting the dog or cat, written instructions for the in-
transit food and water requirements for a 24-hour period for the
dogs and cats contained in the enclosure. The instructions must be
attached in a manner that makes them easily noticed and read.
  (c) Food and water receptacles must be securely attached inside
the primary enclosure and placed so that the receptacles can be
filled from outside the enclosure without opening the door. Food
and water containers must be designed, constructed, and installed
so that a dog or cat cannot leave the primary enclosure through the
food or water opening.
 
  (Approved by the Office of Management and Budget under control
number 0579-  0093)
 
  Sec. 3.17 Care in transit.
 
  (a) Surface transportation (ground and water). Any person subject
to the Animal Welfare regulations transporting dogs or cats in
commerce must ensure that the operator of the conveyance, or a
person accompanying the operator, observes the dogs or cats as
often as circumstances allow, but not less than once every 4 hours,
to make sure they have sufficient air for normal breathing, that
the ambient temperature is within the limits provided in Sec.
3.15(e), and that all applicable standards of this subpart are
being complied with. The regulated person must ensure that the
operator or person accompanying the operator determines whether any
of the dogs or cats are in obvious physical distress and obtains
any veterinary care needed for the dogs or cats at the closest
available veterinary facility.
  (b) Air transportation. During air transportation of dogs or
cats, it is the responsibility of the carrier to observe the dogs
or cats as frequently as circumstances allow, but not less than
once every 4 hours if the animal cargo area is accessible during
flight. If the animal cargo area is not accessible during flight,
the carrier must observe the dogs or cats whenever they are loaded
and unloaded and whenever the animal cargo space is otherwise
accessible to make sure they have sufficient air for normal
breathing, that the animal cargo area meets the heating and cooling
requirements of Sec. 3.15(d), and that all other applicable
standards of this subpart are being complied with. The carrier must
determine whether any of the dogs or cats are in obvious physical
distress, and arrange for any needed veterinary care as soon as
possible.
  (c) If a dog or cat is obviously ill, injured, or in physical
distress, it must not be transported in commerce, except to receive
veterinary care for the condition.
  (d) Except during the cleaning of primary enclosures, as required
in Sec. 3.14(b) of this subpart, during transportation in commerce
a dog or cat must not be removed from its primary enclosure, unless
it is placed in another primary enclosure or facility that meets
the requirements of Sec. 3.6 or Sec. 3.14 of this subpart.
  (e) The transportation regulations contained in this subpart must
be complied with until a consignee takes physical delivery of the
dog or cat if the animal is consigned for transportation, or until
the animal is returned to the consignor.
 
  Sec. 3.18 Terminal facilities.
 
  (a) Placement. Any person subject to the Animal Welfare
regulations (9 CFR parts 1, 2, and 3) must not commingle shipments
of dogs or cats with inanimate cargo in animal holding areas of
terminal facilities.
   (b) Cleaning, sanitization, and pest control. All animal holding
areas of terminal facilities must be cleaned and sanitized in a
manner prescribed in Sec. 3.11(b)(3) of this subpart, as often as
necessary to prevent an accumulation of debris or excreta and to
minimize vermin infestation and disease hazards. Terminal
facilities must follow an effective program in all animal holding
areas for the control of insects, ectoparasites, and birds and
mammals that are pests to dogs and cats.
  (c) Ventilation. Ventilation must be provided in any animal
holding area in a terminal facility containing dogs or cats, by
means of windows, doors, vents, or air conditioning. The air must
be circulated by fans, blowers, or air conditioning so as to
minimize drafts, odors, and moisture condensation. Auxiliary
ventilation, such as exhaust fans, vents, fans, blowers, or air
conditioning must be used in any animal holding area containing
dogs and cats, when the ambient temperature is 85 deg.F (29.5
deg.C) or higher
   (d) Temperature. The ambient temperature in an animal holding
area containing dogs or cats must not fall below 45 deg.F (7.2
deg.C) or rise above 85 deg.F (29.5 deg.C) for more than four
consecutive hours at any time dogs or cats are present. The ambient
temperature must be measured in the animal holding area by the
carrier, intermediate handler, or a person transporting dogs or
cats who is subject to the Animal Welfare regulations (9 CFR parts
1, 2, and 3), outside any primary enclosure containing a dog or cat
at a point not more than 3 feet (0.91 m) away from an outside wall
of the primary enclosure, and approximately midway up the side of
the enclosure.
   (e) Shelter. Any person subject to the Animal Welfare
regulations (9 CFR parts 1, 2, and 3) holding a live dog or cat in
an animal holding area of a terminal facility must provide the
following:
  (1) Shelter from sunlight and extreme heat. Shade must be
provided that is sufficient to protect the dog or cat from the
direct rays of the sun.
  (2) Shelter from rain or snow. Sufficient protection must be
provided to allow the dogs and cats to remain dry during rain,
snow, and other precipitation.
  (f) Duration. The length of time any person subject to the Animal
Welfare regulations (9 CFR parts 1, 2, and 3) can hold dogs and
cats in animal holding areas of terminal facilities upon arrival is
the same as that provided in Sec. 3.13(f) of this subpart.
 
  Sec. 3.19 Handling.
 
  (a) Any person subject to the Animal Welfare regulations (9 CFR
parts 1, 2, and 3) who moves (including loading and unloading) dogs
or cats within, to, or from the animal holding area of a terminal
facility or a primary conveyance must do so as quickly and
efficiently as possible and must provide the following during
movement of the dog or cat:
  (1) Shelter from sunlight and extreme heat. Sufficient shade must
be provided to protect the dog or cat from the direct rays of the
sun The dog or cat must not be exposed to an ambient air
temperature above 85 deg.F (29.5 deg.C) for a period of more than
45 minutes while being moved to or from a primary conveyance or a
terminal facility. The temperature must be measured in the manner
provided in Sec. 3.18(d) of this subpart.
  (2) Shelter from rain and snow. Sufficient protection must be
provided to allow the dogs and cats to remain dry during rain,
snow, and other precipitation.
  (3) Shelter from cold temperatures. Transporting devices on which
live dogs or cats are placed to move them must be covered to
protect the animals when the outdoor temperature falls below 50
deg.F (10 deg.C). The dogs or cats must not be exposed to an
ambient temperature below 45 deg.F (7.2 deg.C) for a period of more
than 45 minutes, unless they are accompanied by a certificate of
acclimation to lower temperatures as provided in Sec. 3.13(e). The
temperature must be measured in the manner provided in Sec. 3.18(d)
of this subpart.
  (b) Any person handling a primary enclosure containing a dog or
cat must use care and must avoid causing physical harm or distress
to the dog or cat.
   (1) A primary enclosure containing a live dog or cat must not be
placed on unattended conveyor belts, or on elevated conveyor belts,
such as baggage claim conveyor belts and inclined conveyor ramps
that lead to baggage claim areas, at any time; except that a
primary enclosure may be placed on inclined conveyor ramps used to
load and unload aircraft if an attendant is present at each end of
the conveyor belt.
  (2) A primary enclosure containing a dog or cat must not be
tossed, dropped, or needlessly tilted, and must not be stacked in
a manner that may reasonably be expected to result in its falling.
It must be handled and positioned in the manner that written
instructions and arrows on the outside of the primary enclosure
indicate.
  (c) This section applies to movement of a dog or cat from primary
conveyance to primary conveyance, within a primary conveyance or
terminal facility, and to or from a terminal facility or a primary
conveyance.
  
  (Approved by the Office of Management and Budget under control
number 0579-  0093)
 
  3. Subpart D is revised to read as follows:
 
  Subpart D--Specifications for the Humane Handling, Care,
Treatment, and Transportation of Nonhuman Primates
 
  Facilities and Operating Standards
 
  Sec.
  3.75  Housing facilities, general.
  3.76  Indoor housing facilities.
  3.77  Sheltered housing facilities.
  3.78  Outdoor housing facilities.
  3.79  Mobile or traveling housing facilities.
  3.80  Primary enclosures.
  3.81  Environment enhancement to promote psychological well-
being.  
  Animal Health and Husbandry Standards
 
  3.82  Feeding.
  3.83  Watering.
  3.84  Cleaning, sanitization, housekeeping, and pest control.   
  3.85  Employees.
 
  Transportation Standards
 
  3.86  Consignments to carriers and intermediate handlers. 3.87 
Primary enclosures used to transport nonhuman primates. 3.88 
Primary conveyances (motor vehicle, rail, air, and marine). 3.89 
Food and water requirements.
  3.90  Care in transit.
  3.91  Terminal facilities.
  3.92  Handling.
 
  Subpart D--Specifications for the Humane Handling, Care,
Treatment, and Transportation of Nonhuman Primates /2/
 
  Facilities and Operating Standards
 
  Sec. 3.75  Housing facilities, general.
 
  (a) Structure: construction. Housing facilities for nonhuman
primates must be designed and constructed so that they are
structurally sound for the species of nonhuman primates housed in
them. They must be kept in good repair, and they must protect the
animals from injury, contain the animals securely, and restrict
other animals from entering.
 
  NOTE /2/ Nonhuman primates include a great diversity of forms,
ranging from the marmoset weighing only a few ounces, to the adult
gorilla weighing hundreds of pounds, and include more than 240
species. They come from Asia, Africa, and Central and South
America, and they live in different habitats in nature. Some have
been transported to the United States from their natural habitats
and some have been raised in captivity in the United States. Their
nutritional and activity requirements differ, as do their social
and environmental requirements. As a result, the conditions
appropriate for one species do not necessarily apply to another.
Accordingly, these minimum specifications must be applied in
accordance with the customary and generally accepted professional
and husbandry practices considered appropriate for each species,
and necessary to promote their psychological well-being.   These
minimum standards apply only to live nonhuman primates, unless
stated otherwise.
 
  (b) Condition and site. Housing facilities and areas used for
storing animal food or bedding must be free of any accumulation of
trash, waste material, junk, weeds, and other discarded materials.
Animal areas inside of housing facilities must be kept neat and
free of clutter, including equipment, furniture, or stored
material, but may contain materials actually used and necessary for
cleaning the area, and fixtures and equipment necessary for proper
husbandry practices and research needs. Housing facilities other
than those maintained by research facilities and Federal research
facilities must be physically separated from any other businesses.
If a housing facility is located on the same premises as any other
businesses, it must be physically separated from the other
businesses so that animals the size of dogs, skunks, and raccoons,
are prevented from entering it.
  (c) Surfaces--(1) General requirements. The surfaces of housing
facilities--including perches, shelves, swings, boxes, houses,
dens, and other furniture-type fixtures or objects within the
facility--must be constructed in a manner and made of materials
that allow them to be readily cleaned and sanitized, or removed or
replaced when worn or soiled. Furniture-  type fixtures or objects
must be sturdily constructed and must be strong enough to provide
for the safe activity and welfare of nonhuman primates. Floors may
be made of dirt, absorbent bedding, sand, gravel, grass, or other
similar material that can be readily cleaned, or can be removed or
replaced whenever cleaning does not eliminate odors, diseases,
pests, insects, or vermin. Any surfaces that come in contact with
nonhuman primates must:
   (i) Be free of excessive rust that prevents the required
cleaning and sanitization, or that affects the structural strength
of the surface; and
   (ii) Be free of jagged edges or sharp points that might injure
the animals.
   (2) Maintenance and replacement of surfaces. All surfaces must
be maintained on a regular basis. Surfaces of housing facilities--
including houses, dens, and other furniture-type fixtures and
objects within the facility--that cannot be readily cleaned and
sanitized, must be replaced when worn or soiled.
  (3) Cleaning. Hard surfaces with which nonhuman primates come in
contact must be spot-cleaned daily and sanitized in accordance with
Sec. 3.84 of this subpart to prevent accumulation of excreta or
disease hazards. If the species scent mark, the surfaces must be
sanitized or replaced at regular intervals as determined by the
attending veterinarian in accordance with generally accepted
professional and husbandry practices. Floors made of dirt,
absorbent bedding, sand, gravel, grass, or other similar material,
and planted enclosures must be raked or spot-cleaned with
sufficient frequency to ensure all animals the freedom to avoid
contact with excreta. Contaminated material must be removed or
replaced whenever raking and spot cleaning does not eliminate
odors, diseases, insects, pests, or vermin infestation. All other
surfaces of housing facilities must be cleaned and sanitized when
necessary to satisfy generally accepted husbandry standards and
practices. Sanitization may be done by any of the methods provided
in Sec. 3.84(b)(3) of this subpart for primary enclosures.
  (d) Water and electric power. The housing facility must have
reliable electric power adequate for heating, cooling, ventilation,
and lighting, and for carrying out other husbandry requirements in
accordance with the regulations in this subpart. The housing
facility must provide running potable water for the nonhuman
primates' drinking needs. It must be adequate for cleaning and for
carrying out other husbandry requirements.
   (e) Storage. Supplies of food and bedding must be stored in a
manner that protects the supplies from spoilage, contamination, and
vermin infestation. The supplies must be stored off the floor and
away from the walls, to allow cleaning underneath and around the
supplies. Food requiring refrigeration must be stored accordingly,
and all food must be stored in a manner that prevents contamination
and deterioration of its nutritive value. Only the food and bedding
currently being used may be kept in animal areas, and when not in
actual use, open food and bedding supplies must be kept in
leakproof containers with tightly fitting lids to prevent spoilage
and contamination. Substances that are toxic to the nonhuman
primates but that are required for normal husbandry practices must
not be stored in food storage and preparation areas, but may be
stored in cabinets in the animal areas.
   (f) Drainage and waste disposal. Housing facility operators must
provide for regular and frequent collection, removal, and disposal
of animal and food wastes, bedding, dead animals, debris, garbage,
water, and any other fluids and wastes, in a manner that minimizes
contamination and disease risk. Housing facilities must be equipped
with disposal facilities and drainage systems that are constructed
and operated so that animal wastes and water are rapidly eliminated
and the animals stay dry. Disposal and drainage systems must
minimize vermin and pest infestation, insects, odors, and disease
hazards. All drains must be properly constructed, installed, and
maintained. If closed drainage systems are used, they must be
equipped with traps and prevent the backflow of gases and the
backup of sewage onto the floor. If the facility uses sump ponds,
settlement ponds, or other similar systems for drainage and animal
waste disposal, the system must be located far enough away from the
animal area of the housing facility to prevent odors, diseases,
insects, pests, and vermin infestation. If drip or constant flow
watering devices are used to provide water to the animals, excess
water must be rapidly drained out of the animal areas by gutters or
pipes so that the animals stay dry. Standing puddles of water in
animal areas must be mopped up or drained so that the animals
remain dry. Trash containers in housing facilities and in food
storage and food preparation areas must be leakproof and must have
tightly fitted lids on them at all times. Dead animals, animal
parts, and animal waste must not be kept in food storage or food
preparation areas, food freezers, food refrigerators, and animal
areas.
   (g) Washrooms and sinks. Washing facilities, such as washrooms,
basins, sinks, or showers must be provided for animal caretakers
and must be readily accessible.
 
  Sec. 3.76 Indoor housing facilities.
 
  (a) Heating, cooling, and temperature. Indoor housing facilities
must be sufficiently heated and cooled when necessary to protect
nonhuman primates from temperature extremes and to provide for
their health and well-being. The ambient temperature in the
facility must not fall below 45 deg.F (7.2 deg.C) for more than 4
consecutive hours when nonhuman primates are present, and must not
rise above 85 deg.F (29.5 deg.C) for more than 4 consecutive hours
when nonhuman primates are present. The ambient temperature must be
maintained at a level that ensures the health and well-being of the
species housed, as directed by the attending veterinarian, in
accordance with generally accepted professional and husbandry
practices.
  (b) Ventilation. Indoor housing facilities must be sufficiently
ventilated at all times when nonhuman primates are present to
provide for their health and well-being and to minimize odors,
drafts, ammonia levels, and moisture condensation. Ventilation must
be provided by windows, doors, vents, fans, or air conditioning.
Auxiliary ventilation, such as fans, blowers, or air conditioning,
must be provided when the ambient temperature is 85 deg.F (29.5
deg.C) or higher. The relative humidity maintained must be at a
level that ensures the health and well-being of the animals housed,
as directed by the attending veterinarian, in accordance with
generally accepted professional and husbandry practices.
  (c) Lighting. Indoor housing facilities must be lighted well
enough to permit routine inspection and cleaning of the facility,
and observation of the nonhuman primates. Animal areas must be
provided a regular diurnal lighting cycle of either natural or
artificial light. Lighting must be uniformly diffused throughout
animal facilities and provide sufficient illumination to aid in
maintaining good housekeeping practices, adequate cleaning,
adequate inspection of animals, and for the well-being of the
animals. Primary enclosures must be placed in the housing facility
so as to protect the nonhuman primates from excessive light.
 
  Sec. 3.77 Sheltered housing faciIities
 
  (a) Heating, cooling, and temperature. The sheltered part of
sheltered housing facilities must be sufficiently heated and cooled
when necessary to protect the nonhuman primates from temperature
extremes, and to provide for their health and well-being. The
ambient temperature in the sheltered part of the facility must not
fall below 45 deg.F (7.2 deg.C) for more than 4 consecutive hours
when nonhuman primates are present, and must not rise above 85
deg.F (29.5 deg.C) for more than 4 consecutive hours when nonhuman
primates are present, unless temperatures above 85 deg.F (29.5
deg.C) are approved by the attending veterinarian, in accordance
with generally accepted husbandry practices. The ambient
temperature must be maintained at a level that ensures the health
and well-being of the species housed, as directed by the attending
veterinarian, in accordance with generally accepted professional
and husbandry practices.
  (b) Ventilation. The sheltered part of sheltered animal
facilities must be sufficiently ventilated at all times to provide
for the health and well-being of nonhuman primates and to minimize
odors, drafts, ammonia levels, and moisture condensation.
Ventilation must be provided by windows, doors, vents, fans, or air
conditioning. Auxiliary ventilation, such as fans, blowers, or air
conditioning, must be provided when the ambient temperature is 85
deg.F (29.5 deg.C) or higher. The relative humidity maintained must
be at a level that ensures the health and well-being of the species
housed, as directed by the attending veterinarian, in accordance
with generally accepted professional and husbandry practices.
  (c) Lighting. The sheltered part of sheltered housing facilities
must be lighted well enough to permit routine inspection and
cleaning of the facility, and observation of the nonhuman primates.
Animal areas must be provided a regular diurnal lighting cycle of
either natural or artificial light. Lighting must be uniformly
diffused throughout animal facilities and provide sufficient
illumination to aid in maintaining good housekeeping practices,
adequate cleaning, adequate inspection of animals, and for the
well-being of the animals. Primary enclosures must be placed in the
housing facility so as to protect the nonhuman primates from
excessive light.
   (d) Shelter from the elements.  Sheltered housing facilities for
nonhuman primates must provide adequate shelter from the elements
at all times. They must provide protection from the sun, rain,
snow, wind, and cold, and from any weather conditions that may
occur.
  (e) Capacity: multiple shelters. Both the sheltered part of
sheltered housing facilities and any other necessary shelter from
the elements must be sufficiently large to provide protection
comfortably to each nonhuman primate housed in the facility. If
aggressive or dominant animals are housed in the facility with
other animals, there must be multiple shelters or other means to
ensure that each nonhuman primate has access to shelter.
   (f) Perimeter fence. On and after February 15, 1994, the outdoor
area of a sheltered housing facility must be enclosed by a fence
that is of sufficient height to keep unwanted species out. Fences
less than 6 feet high must be approved by the Administrator. The
fence must be constructed so that it protects nonhuman primates by
restricting unauthorized humans, and animals the size of dogs,
skunks, and raccoons from going through it or under it and having
contact with the nonhuman primates. It must be of sufficient
distance from the outside wall or fence of the primary enclosure to
prevent physical contact between animals inside the enclosure and
outside the perimeter fence. Such fences less than 3 feet in
distance from the primary enclosure must be approved by the
Administrator. A perimeter fence is not required if:
   (1) The outside walls of the primary enclosure are made of a
sturdy, durable material such as concrete, wood, plastic, metal, or
glass, and are high enough and constructed in a manner that
restricts contact with or entry by humans and animals that are
outside the sheltered housing facility; or
   (2) The housing facility is surrounded by a natural barrier that
restricts the nonhuman primates to the housing facility and
protects them from contact with unauthorized humans and animals
that are outside the sheltered housing facility, and the
Administrator gives written permission
  (g) Public barriers. Fixed public exhibits housing nonhuman
primates, such as zoos, must have a barrier between the primary
enclosure and the public at any time the public is present, that
restricts physical contact between the public and the nonhuman
primates. Nonhuman primates used in trained animal acts or in
uncaged public exhibits must be under the direct control and
supervision of an experienced handler or trainer at all times when
the public is present. Trained nonhuman primates may be permitted
physical contact with the public, as allowed under Sec. 2.131, but
only if they are under the direct control and supervision of an
experienced handler or trainer at all times during the contact.
 
  (Approved by the Office of Management and Budget under control
number 0579-  0093)
 
  Sec. 3.78 0utdoor housing facilities
 
  (a) Acclimation. Only nonhuman primates that are acclimated, as
determined by the attending veterinarian, to the prevailing
temperature and humidity at the outdoor housing facility during the
time of year they are at the facility, and that can tolerate the
range of temperatures and climatic conditions known to occur at the
facility at that time of year without stress or discomfort, may be
kept in outdoor facilities.
  (b) Shelter from the elements. Outdoor housing facilities for
nonhuman primates must provide adequate shelter from the elements
at all times. It must provide protection from the sun, rain, snow,
wind, and cold, and from any weather conditions that may occur. The
shelter must safely provide heat to the nonhuman primates to
prevent the ambient temperature from falling below 45 deg.F (7.2
deg.C), except as directed by the attending veterinarian and in
accordance with generally accepted professional and husbandry
practices.
  (c) Capacity: multiple shelters. The shelter must be sufficiently
large to comfortably provide protection for each nonhuman primate
housed in the facility. If aggressive or dominant animals are
housed in the facility with other animals there must be multiple
shelters, or other means to ensure protection for each nonhuman
primate housed in the facility.
   (d) Perimeter fence. On and after February 15, 1994, an outdoor
housing facility must be enclosed by a fence that is of sufficient
height to keep unwanted species out. Fences less than 6 feet high
must be approved by the Administrator. The fence must be
constructed so that it protects nonhuman primates by restricting
unauthorized humans, and animals the size of dogs, skunks, and
raccoons from going through it or under it and having contact with
the nonhuman primates. It must be of sufficient distance from the
outside wall or fence of the primary enclosure to prevent physical
contact between animals inside the enclosure and outside the
perimeter fence. Such fences less than 3 feet in distance from the
primary enclosure must be approved by the Administrator. A
perimeter fence is not required if:
   (1) The outside walls of the primary enclosure are made of a
sturdy, durable material such as concrete, wood, plastic, metal, or
glass, and are high enough and constructed in a manner that
restricts contact with or entry by humans and animals that are
outside the housing facility; or
   (2) The housing facility is surrounded by a natural barrier that
restricts the nonhuman primates to the housing facility and
protects them from contact with unauthorized humans and animals
that are outside the housing facility, and the Administrator gives
written permission.
  (e) Public barriers. Fixed public exhibits housing nonhuman
primates, such as zoos, must have a barrier between the primary
enclosure and the public at any time the public is present, in
order to restrict physical contact between the public and the
nonhuman primates. Nonhuman primates used in trained animal acts or
in uncaged public exhibits must be under the direct control and
supervision of an experienced handler or trainer at all times when
the public is present. Trained nonhuman primates may be allowed
physical contact with the public, but only if they are under the
direct control and supervision of an experienced handler or trainer
at all times during the contact.
 
  (Approved by the Office of Management and Budget under control
number 0579-0093)
 
  Sec. 3.79 Mobile or traveling house facilities
 
  (a) Heating, cooling, and temperature. Mobile or traveling
housing facilities must be sufficiently heated and cooled when
necessary to protect nonhuman primates from temperature extremes
and to provide for their health and well-being. The ambient
temperature in the traveling housing facility must not fall below
45 deg.F (7.2 deg.C) for more than 4 consecutive hours when
nonhuman primates are present, and must not rise above 85 deg.F
(29.5 deg.C) for more than 4 consecutive hours when nonhuman
primates are present. The ambient temperature must be maintained at
a level that ensures the health and well-being of the species
housed, as directed by the attending veterinarian, and in
accordance with generally accepted professional and husbandry
practices.
  (b) Ventilation. Traveling housing facilities must be
sufficiently ventilated at all times when nonhuman primates are
present to provide for the health and well-being of nonhuman
primates and to minimize odors, drafts, ammonia levels, moisture
condensation, and exhaust fumes. Ventilation must be provided by
means of windows, doors, vents, fans, or air conditioning.
Auxiliary ventilation, such as fans, blowers, or air conditioning,
must be provided when the ambient temperature in the traveling
housing facility is 85 deg.F (29.5 deg.C) or higher.
  (c) Lighting. Mobile or traveling housing facilities must be
lighted well enough to permit routine inspection and cleaning of
the facility, and observation of the nonhuman primates. Animal
areas must be provided a regular diurnal lighting cycle of either
natural or artificial light. Lighting must be uniformly diffused
throughout animal facilities and provide sufficient illumination to
aid in maintaining good housekeeping practices, adequate cleaning,
adequate inspection of animals, and for the well-being of the
animals. Primary enclosures must be placed in the housing facility
so as to protect the nonhuman primates from excessive light.
  (d) Public barriers. There must be a barrier between a mobile or
traveling housing facility and the public at any time the public is
present, in order to restrict physical contact between the nonhuman
primates and the public. Nonhuman primates used in traveling
exhibits, trained animal acts, or in uncaged public exhibits must
be under the direct control and supervision of an experienced
handler or trainer at all times when the public is present. Trained
nonhuman primates may be allowed physical contact with the public,
but only if they are under the direct control and supervision of an
experienced handler or trainer at all times during the contact.  

  Sec. 3.80 Primary enclosures.
 
  Primary enclosures for nonhuman primates must meet the following
minimum requirements:
  (a) General requirements. (1) Primary enclosures must be designed
and constructed of suitable materials so that they are structurally
sound for the species of nonhuman primates contained in them. They
must be kept in good repair.
  (2) Primary enclosures must be constructed and maintained so that
they:
   (i) Have no sharp points or edges that could injure the nonhuman
primates;
   (ii) Protect the nonhuman primates from injury;
  (iii) Contain the nonhuman primates securely and prevent
accidental opening of the enclosure, including opening by the
animal;
  (iv) Keep other unwanted animals from entering the enclosure or
having physical contact with the nonhuman primates;
  (v) Enable the nonhuman primates to remain dry and clean;
  (vi) Provide shelter and protection from extreme temperatures and
weather conditions that may be uncomfortable or hazardous to the
species of nonhuman primate contained;
  (vii) Provide sufficient shade to shelter all the nonhuman
primates housed in the primary enclosure at one time;
  (viii) Provide the nonhuman primates with easy and convenient
access to clean food and water;
  (ix) Enable all surfaces in contact with nonhuman primates to be
readily cleaned and sanitized in accordance with Sec. 3.84(b)(3) of
this subpart, or replaced when worn or soiled;
  (x) Have floors that are constructed in a manner that protects
the nonhuman primates from injuring themselves; and
  (xi) Provide sufficient space for the nonhuman primates to make
normal postural adjustments with freedom of movement.
  (b) Minimum space requirements. Primary enclosures must meet the
minimum space requirements provided in this subpart. These minimum
space requirements must be met even if perches, ledges, swings, or
other suspended fixtures are placed in the enclosure. Low perches
and ledges that do not allow the space underneath them to be
comfortably occupied by the animal will be counted as part of the
floor space.
  (1) Prior to February 15, 1994:
  (i) Primary enclosures must be constructed and maintained so as
to provide sufficient space to allow each nonhuman primate to make
normal postural adjustments with adequate freedom of movement; and
  (ii) Each nonhuman primate housed in a primary enclosure must be
provided with a minimum floor space equal to an area at least three
times the area occupied by the primate when standing on four feet.
  (2) On and after February 15, 1994:
  (i) The minimum space that must be provided to each nonhuman
primate, whether housed individually or with other nonhuman
primates, will be determined by the typical weight of animals of
its species, except for brachiating species and great apes./3/ and
will be calculated by using the following table: /4/
 
  NOTE /3/ The different species of nonhuman primates are divided
into six weight groups for determining minimum space requirements,
except that all brachiating species of any weight are grouped
together since they require additional space to engage in species-
typical behavior. The grouping provided is based upon the typical
weight for various species and not on changes associated with
obesity, aging, or pregnancy. These conditions will not be
considered in determining a nonhuman primate's weight group unless
the animal is obviously unable to make normal postural adjustments
and movements within the primary enclosure. Different species of
prosimians vary in weight and should be grouped with their
appropriate weight group. They have not been included in the weight
table since different species typically fall into different weight
groups. Infants and juveniles of certain species are substantially
lower in weight than adults of those species and require the
minimum space requirements of lighter weight species, unless the
animal is obviously unable to make normal postural adjustments and
movements within the primary enclosure.
 
  NOTE /4/ Examples of the kinds of nonhuman primates typically
included in each age group are:
  Group 1--marmosets, tamarins, and infants (less than 6 months of
age) of various species.
  Group 2--capuchins, squirrel monkeys and similar size species,
and juveniles (6 months to 3 years of age) of various species.    
  Group 3--macaques and African species.
  Group 4--male macaques and large African species.
  Group 5--baboons and nonbrachiating species larger than 33.0 lbs.
(15 kg.).
  Group 6--great apes over 55.0 lbs. (25 kg.), except as provided
in paragraph (b)(2)(ii) of this section, and brachiating species. 
            
            Weight         floor area/animal   Height 
Group  lbs.       (kg.)      ft./2/  m/2/     in. (cm.)
1      under 2.2  (under 1)  1.6    (0.15)    20  (50.8)
2      2.2-6.6    (1-3)      3.0    (0.28)    30  (76.2)
3      6.6-22.0   (3-10)     4.3    (0.40)    30  (76.2)
4      22.0-33.0  (10-15)    6.0    (0.56)    32 (81.28)
5      33.0-55.0  (15-25)    8.0    (0.74)    36 (91.44)
6      over 55.0  (over 25)  25.1   (2.33)    84 (213.36)  

  (ii) Dealers. exhibitors, and research facilities, including
Federal research facilities, must provide great apes weighing over
110 lbs. (50 kg) an additional volume of space in excess of that
required for Group 6 animals as set forth in paragraph (b)(2)(i) of
this section, to allow for normal postural adjustments.
  (iii) In the case of research facilities, any exemption from
these standards must be required by a research proposal or in the
judgment of the attending veterinarian and must be approved by the
Committee. In the case of dealers and exhibitors, any exemption
from these standards must be required in the judgment of the
attending veterinarian and approved by the Administrator.
  (iv) When more than one nonhuman primate is housed in a primary
enclosure, the minimum space requirement for the enclosure is the
sum of the minimum floor area space required for each individual
nonhuman primate in the table in paragraph (b)(2)(i) of this
section, and the minimum height requirement for the largest
nonhuman primate housed in the enclosure. Provided however, that
mothers with infants less than 6 months of age may be maintained
together in primary enclosures that meet the floor area space and
height requirements of the mother.
  (c) Innovative primary enclosures not precisely meeting the floor
area and height requirements provided in paragraphs (b)(1) and
(b)(2) of this section, but that do provide nonhuman primates with
a sufficient volume of space and the opportunity to express
species-typical behavior, may be used at research facilities when
approved by the Committee, and by dealers and exhibitors when
approved by the Administrator.
 
  (Approved by the Office of Management and Budget under control
number 0579-0093)
 
  Sec. 3.81 Environment enhancement to promote psychological well-
being.  
  Dealers, exhibitors, and research facilities must develop,
document, and follow an appropriate plan for environment
enhancement adequate to promote the psychological well-being of
nonhuman primates. The plan must be in accordance with the
currently accepted professional standards as cited in appropriate
professional journals or reference guides, and as directed by the
attending veterinarian. This plan must be made available to APHIS
upon request, and, in the case of research facilities, to officials
of any pertinent funding agency. The plan, at a minimum, must
address each of the following:
  (a) Social grouping. The environment enhancement plan must
include specific provisions to address the social needs of nonhuman
primates of species known to exist in social groups in nature. Such
specific provisions must be in accordance with currently accepted
professional standards, as cited in appropriate professional
journals or reference guides, and as directed by the attending
veterinarian. The plan may provide for the following exceptions:  
  (1) If a nonhuman primate exhibits vicious or overly aggressive
behavior, or is debilitated as a result of age or other conditions
(e.g., arthritis), it should be housed separately;
  (2) Nonhuman primates that have or are suspected of having a
contagious disease must be isolated from healthy animals in the
colony as directed by the attending veterinarian. When an entire
group or room of nonhuman primates is known to have or believed to
be exposed to an infectious agent, the group may be kept intact
during the process of diagnosis, treatment, and control.
   (3) Nonhuman primates may not be housed with other species of
primates or animals unless they are compatible, do not prevent
access to food, water, or shelter by individual animals. and are
not known to be hazardous to the health and well-being of each
other. Compatibility of nonhuman primates must be determined in
accordance with generally accepted professional practices and
actual observations, as directed by the attending veterinarian, to
ensure that the nonhuman primates are in fact compatible.
Individually housed nonhuman primates must be able to see and hear
nonhuman primates of their own or compatible species unless the
attending veterinarian determines that it would endanger their
health, safety, or well-being.
  (b) Environmental enrichment. The physical environment in the
primary enclosures must be enriched by providing means of
expressing noninjurious species-typical activities. Species
differences should be considered when determining the type or
methods of enrichment. Examples of environmental enrichments
include providing perches, swings, mirrors, and other increased
cage complexities; providing objects to manipulate; varied food
items; using foraging or task-oriented feeding methods; and
providing interaction with the care giver or other familiar and
knowledgeable person consistent with personnel safety precautions.
  (c) Special considerations. Certain nonhuman primates must be
provided special attention regarding enhancement of their
environment, based on the needs of the individual species and in
accordance with the instructions of the attending veterinarian.
Nonhuman primates requiring special attention are the following:
  (1) Infants and young juveniles;
  (2) Those that show signs of being in psychological distress
through behavior or appearance;
  (3) Those used in research for which the Committee-approved
protocol requires restricted activity;
  (4) Individually housed nonhuman primates that are unable to see
and hear nonhuman primates of their own or compatible species; and 
 (5) Great apes weighing over 110 lbs. (50 kg). Dealers,
exhibitors, and research facilities must include in the environment
enhancement plan special provisions for great apes weighing over
110 lbs. (50 kg), including additional opportunities to express
species-typical behavior.
 (d) Restraint devices. Nonhuman primates must not be maintained in
restraint devices unless required for health reasons as determined
by the attending veterinarian or by a research proposal approved by
the Committee at research facilities. Maintenance under such
restraint must be for the shortest period possible. In instances
where long-term (more than 12 hours) restraint is required, the
nonhuman primate must be provided the opportunity daily for
unrestrained activity for at least one continuous hour during the
period of restraint, unless continuous restraint is required by the
research proposal approved by the Committee at research facilities. 
 (e) Exemptions. (1) The attending veterinarian may exempt an
individual nonhuman primate from participation in the environment
enhancement plan because of its health or condition, or in
consideration of its well-being. The basis of the exemption must be
recorded by the attending veterinarian for each exempted nonhuman
primate. Unless the basis for the exemption is a permanent
condition, the exemption must be reviewed at least every 30 days by
the attending veterinarian.
  (2) For a research facility, the Committee may exempt an
individual nonhuman primate from participation in some or all of
the otherwise required environment enhancement plans for scientific
reasons set forth in the research proposal. The basis of the
exemption shall be documented in the approved proposal and must be
reviewed at appropriate intervals as determined by the Committee,
but not less than annually.
  (3) Records of any exemptions must be maintained by the dealer,
exhibitor, or research facility and must be made available to USDA
officials or officials of any pertinent funding Federal agency upon
request.  
  (Approved by the Office of Management and Budget under control
number 0579-0093)
 
  Animal Health and Husbandry Standards
 
  Sec. 3.82 Feeding.
 
  (a) The diet for nonhuman primates must be appropriate for the
species, size, age, and condition of the animal, and for the
conditions in which the nonhuman primate is maintained, according
to generally accepted professional and husbandry practices and
nutritional standards. The food must be clean, wholesome, and
palatable to the animals. It must be of sufficient quantity and
have sufficient nutritive value to maintain a healthful condition
and weight range of the animal and to meet its normal daily
nutritional requirements.
  (b) Nonhuman primates must be fed at least once each day except
as otherwise might be required to provide adequate veterinary care.
Infant and juvenile nonhuman primates must be fed as often as
necessary in accordance with generally accepted professional and
husbandry practices and nutritional standards, based upon the
animals' age and condition.
  (c) Food and food receptacles, if used, must be readily
accessible to all the nonhuman primates being fed. If members of
dominant nonhuman primate or other species are fed together with
other nonhuman primates, multiple feeding sites must be provided.
The animals must be observed to determine that all receive a
sufficient quantity of food.
  (d) Food and food receptacles, if used, must be located so as to
minimize any risk of contamination by excreta and pests. Food
receptacles must be kept clean and must be sanitized in accordance
with the procedures listed in Sec. 3.84(b)(3) of this subpart at
least once every 2 weeks. Used food receptacles must be sanitized
before they can be used to provide food to a different nonhuman
primate or social grouping of nonhuman primates. Measures must be
taken to ensure there is no molding, deterioration, contamination,
or caking or wetting of food placed in self-feeders.
 
  Sec. 3.83 Watering.
 
  Potable water must be provided in sufficient quantity to every
nonhuman primate housed at the facility. If potable water is not
continually available to the nonhuman primates, it must be offered
to them as often as necessary to ensure their health and well-
being, but no less than twice daily for at least l hour each time,
unless otherwise required by the attending veterinarian, or as
required by the research proposal approved by the Committee at
research facilities. Water receptacles must be kept clean and
sanitized in accordance with methods provided in Sec. 3.84(b)(3) of
this subpart at least once every 2 weeks or as often as necessary
to keep them clean and free from contamination. Used water
receptacles must be sanitized before they can be used to provide
water to a different nonhuman primate or social grouping of
nonhuman primates.
 
  (Approved by the Office of Management and Budget under control
number 0579-0093)
 
  Sec. 3.84 Cleaning, sanitization, housekeeping, and pest control. 

  (a) Cleaning of primary enclosures. Excreta and food waste must
be removed from inside each indoor primary enclosure daily and from
underneath them as often as necessary to prevent an excessive
accumulation of feces and food waste, to prevent the nonhuman
primates from becoming soiled, and to reduce disease hazards,
insects, pests, and odors. Dirt floors, floors with absorbent
bedding, and planted areas in primary enclosures must be spot- 
cleaned with sufficient frequency to ensure all animals the freedom
to avoid contact with excreta, or as often as necessary to reduce
disease hazards, insects, pests, and odors. When steam or water is
used to clean the primary enclosure, whether by hosing, flushing,
or other methods, nonhuman primates must be removed, unless the
enclosure is large enough to ensure the animals will not be harmed,
wetted, or distressed in the process. Perches, bars, and shelves
must be kept clean and replaced when worn. If the species of the
nonhuman primates housed in the primary enclosure engages in scent
marking, hard surfaces in the primary enclosure must be spot-
cleaned daily.
   (b) Sanitization of primary enclosures and food and water
receptacles.
   (1) A used primary enclosure must be sanitized in accordance
with this section before it can be used to house another nonhuman
primate or group of nonhuman primates.
  (2) Indoor primary enclosures must be sanitized at least once
every 2 weeks and as often as necessary to prevent an excessive
accumulation of dirt, debris, waste, food waste, excreta, or
disease hazard, using one of the methods prescribed in paragraph
(b)(3) of this section. However, if the species of nonhuman
primates housed in the primary enclosure engages in scent marking,
the primary enclosure must be sanitized at regular intervals
determined in accordance with generally accepted professional and
husbandry practices.
  (3) Hard surfaces of primary enclosures and food and water
receptacles must be sanitized using one of the following methods:
  (i) Live steam under pressure;
  (ii) Washing with hot water (at least 180 deg.F (82.2 deg.C)) and
soap or detergent, such as in a mechanical cage washer;
  (iii) Washing all soiled surfaces with appropriate detergent
solutions or disinfectants, or by using a combination
detergent/disinfectant product that accomplishes the same purpose,
with a thorough cleaning of the surfaces to remove organic
material, so as to remove all organic material and mineral buildup,
and to provide sanitization followed by a clean water rinse.
   (4) Primary enclosures containing material that cannot be
sanitized using the methods provided in paragraph (b)(3) of this
section, such as sand, gravel, dirt, absorbent bedding, grass, or
planted areas, must be sanitized by removing the contaminated
material as necessary to prevent odors, diseases, pests, insects,
and vermin infestation.
  (c) Housekeeping for premises. Premises where housing facilities
are located, including buildings and surrounding grounds, must be
kept clean and in good repair in order to protect the nonhuman
primates from injury, to facilitate the husbandry practices
required in this subpart, and to reduce or eliminate breeding and
living areas for rodents, pests, and vermin. Premises must be kept
free of accumulations of trash, junk, waste, and discarded matter.
Weeds, grass, and bushes must be controlled so as to facilitate
cleaning of the premises and pest control.
  (d) Pest control. An effective program for control of insects,
external parasites affecting nonhuman primates, and birds and
mammals that are pests, must be established and maintained so as to
promote the health and well-being of the animals and reduce
contamination by pests in animal areas.  

  Sec. 3.85 Employees.
 
  Every person subject to the Animal Welfare regulations (9 CFR
parts 1, 2, and 3) maintaining nonhuman primates must have enough
employees to carry out the level of husbandry practices and care
required in this subpart. The employees who provide husbandry
practices and care, or handle nonhuman primates, must be trained
and supervised by an individual who has the knowledge, background,
and experience in proper husbandry and care of nonhuman primates to
supervise others. The employer must be certain that the supervisor
can perform to these standards.
 
  Transportation Standards
 
  Sec. 3.86 Consignments to carriers and intermediate handlers.  
  (a) Carriers and intermediate handlers must not accept a nonhuman
primate for transport in commerce more than 4 hours before the
scheduled departure time of the primary conveyance on which the
animal is to be transported. However, a carrier or intermediate
handler may agree with anyone consigning a nonhuman primate to
extend this time by up to 2 hours.
  (b) Carriers and intermediate handlers must not accept a nonhuman
primate for transport in commerce unless they are provided with the
name, address, telephone number, and telex number, if applicable,
of the consignee.
  (c) Carriers and intermediate handlers must not accept a nonhuman
primate for transport in commerce unless the consignor certifies in
writing to the carrier or intermediate handler that the nonhuman
primate was offered food and water during the 4 hours before
delivery to the carrier or intermediate handler. The certification
must be securely attached to the outside of the primary enclosure
in a manner that makes it easily noticed and read. Instructions for
no food or water are not acceptable unless directed by the
attending veterinarian. Instructions must be in compliance with
Sec. 3.89 of this subpart. The certification must include the
following information for each nonhuman primate:
  (1) The consignor's name and address;
  (2) The species of nonhuman primate;
  (3) The time and date the animal was last fed and watered and the
specific instructions for the next feeding(s) and watering(s) for
a 24-hour period; and
  (4) The consignor's signature and the date and time the
certification was signed.
  (d) Carriers and intermediate handlers must not accept a nonhuman
primate for transport in commerce unless the primary enclosure
meets the requirements of Sec. 3.87 of this subpart. A carrier or
intermediate handler must not accept a nonhuman primate for
transport if the primary enclosure is obviously defective or
damaged and cannot reasonably be expected to safely and comfortably
contain the nonhuman primate without suffering or injury.
   (e) Carriers and intermediate handlers must not accept a
nonhuman primate for transport in commerce unless their animal
holding area facilities meet the minimum temperature requirements
provided in Secs. 3.91 and 3.92 of this subpart, or unless the
consignor provides them with a certificate signed by a veterinarian
and dated no more than 10 days before delivery of the animal to the
carrier or intermediate handler for transport in commerce,
certifying that the animal is acclimated to temperatures lower than
those that are required in Secs. 3.91 and 3.92 of this subpart.
Even if the carrier or intermediate handler receives this
certification, the temperatures the nonhuman primate is exposed to
while in the carrier's or intermediate handler's custody must not
be lower than the minimum temperature specified by the veterinarian
in accordance with paragraph (e)(4) of this section, and must be
reasonably within the generally and professionally accepted
temperature range for the nonhuman primate, as determined by the
veterinarian, considering its age, condition, and species. A copy
of the certification must accompany the nonhuman primate to its
destination and must include the following information for each
primary enclosure:
   (1) The consignor's name and address;
  (2) The number of nonhuman primates contained in the primary
enclosure;
   (3) The species of nonhuman primate contained in the primary
enclosure;
   (4) A statement by a veterinarian that to the best of his or her
knowledge, each of the nonhuman primates contained in the primary
enclosure is acclimated to air temperatures lower than 50 deg.F (10
deg.C), but not lower than a minimum temperature specified on the
certificate based on the generally and professionally accepted
temperature range for the nonhuman primate, considering its age,
condition, and species; and
   (5) The veterinarian's signature and the date the certification
was signed.
   (f) When a primary enclosure containing a nonhuman primate has
arrived at the animal holding area of a terminal facility after
transport, the carrier or intermediate handler must attempt to
notify the consignee upon arrival and at least once in every 6-hour
period after arrival. The time, date, and method of all attempted
notifications and the actual notification of the consignee, and the
name of the person who notifies or attempts to notify the consignee
must be written either on the carrier's or intermediate handler's
copy of the shipping document or on the copy that accompanies the
primary enclosure. If the consignee cannot be notified within 24
hours after the nonhuman primate has arrived at the terminal
facility, the carrier or intermediate handler must return the
animal to the consignor or to whomever the consignor designates. If
the consignee is notified of the arrival and does not take physical
delivery of the nonhuman primate within 48 hours after arrival of
the nonhuman primate, the carrier or intermediate handler must
return the animal to the consignor or to whomever the consignor
designates. The carrier or intermediate handler must continue to
provide proper care, feeding, and housing to the nonhuman primate,
and maintain the nonhuman primate in accordance with generally
accepted professional and husbandry practices until the consignee
accepts delivery of the nonhuman primate or until it is returned to
the consignor or to whomever the consignor designates. The carrier
or intermediate handler must obligate the consignor to reimburse
the carrier or intermediate handler for the cost of return
transportation and care.
 
  (Approved by the Office of Management and Budget under control
number 0579-0093)
 
  Sec. 3.87 Primary enclosures used to transport nonhuman primates. 

  Any person subject to the Animal Welfare regulations (9 CFR parts
1, 2, and 3) must not transport or deliver for transport in
commerce a nonhuman primate unless it is contained in a primary
enclosure, such as a compartment, transport cage, carton, or crate,
and the following requirements are met:
   (a) Construction of primary enclosures. Primary enclosures used
to transport nonhuman primates may be connected or attached to each
other and must be constructed so that:
  (1) The primary enclosure is strong enough to contain the
nonhuman primate securely and comfortably and to withstand the
normal rigors of transportation;
  (2) The interior of the enclosure has no sharp points or edges
and no protrusions that could injure the animal contained in it;  
  (3) The nonhuman primate is at all times securely contained
within the enclosure and cannot put any part of its body outside
the enclosure in a way that could result in injury to the animal,
or to persons or animals nearby;
   (4) The nonhuman primate can be easily and quickly removed from
the enclosure in an emergency;
  (5) The doors or other closures that provide access into the
enclosure are secured with animal-proof devices that prevent
accidental opening of the enclosure, including opening by the
nonhuman primate;
  (6) Unless the enclosure is permanently affixed to the
conveyance, adequate devices such as handles or handholds are
provided on its exterior, and enable the enclosure to be lifted
without tilting it, and ensure that anyone handling the enclosure
will not come into physical contact with the animal contained
inside;
  (7) Any material, treatment, paint, preservative, or other
chemical used in or on the enclosure is nontoxic to the animal and
not harmful to the health or well-being of the animal;
  (8) Proper ventilation is provided to the nonhuman primate in
accordance with paragraph (c) of this section;
  (9) Ventilation openings are covered with bars, wire mesh, or
smooth expanded metal having air spaces; and
  (10) The primary enclosure has a solid, leak-proof bottom, or a
removable, leak-proof collection tray under a slatted or wire mesh
floor that prevents seepage of waste products, such as excreta and
body fluids, outside of the enclosure. If a slatted or wire mesh
floor is used in the enclosure, it must be designed and constructed
so that the animal cannot put any part of its body between the
slats or through the holes in the mesh. It must contain enough
previously unused litter to absorb and cover excreta. The litter
must be of a suitably absorbent material that is safe and nontoxic
to the nonhuman primate and is appropriate for the species
transported in the primary enclosure.
  (b) Cleaning of primary enclosures. A primary enclosure used to
hold or transport nonhuman primates in commerce must be cleaned and
sanitized before each use in accordance with the methods provided
in Sec. 3.84(b)(3) of this subpart.
  (c) Ventilation. (1) If the primary enclosure is movable,
ventilation openings must be constructed in one of the following
ways:
   (i) If ventilation openings are located on two opposite walls of
the primary enclosure, the openings on each wall must be at least
16 percent of the total surface area of each such wall and be
located above the midline of the enclosure; or
  (ii) If ventilation openings are located on all four walls of the
primary enclosure, the openings on every wall must be at least 8
percent of the total surface area of each such wall and be located
above the midline of the enclosure.
  (2) Unless the primary enclosure is permanently affixed to the
conveyance, projecting rims or similar devices must be located on
the exterior of each enclosure wall having a ventilation opening,
in order to prevent obstruction of the openings. The projecting
rims or similar devices must be large enough to provide a minimum
air circulation space of 0.75 inches (1.9 centimeters) between the
primary enclosure and anything the enclosure is placed against.   
  (3) If a primary enclosure is permanently affixed to the primary
conveyance so that there is only a front ventilation opening for
the enclosure, the primary enclosure must be affixed to the primary
conveyance in such a way that the front ventilation opening cannot
be blocked, and the front ventilation opening must open directly to
an unobstructed aisle or passageway inside of the conveyance. The
ventilation opening must be at least 90 percent of the total area
of the front wall of the enclosure, and must be covered with bars,
wire mesh, or smooth expanded metal having air spaces.
   (d) Compatibility. (1) Only one live nonhuman primate may be
transported in a primary enclosure, except as follows:
  (i) A mother and her nursing infant may be transported together; 
 (ii) An established male-female pair or family group may be
transported together, except that a female in estrus must not be
transported with a male nonhuman primate;
  (iii) A compatible pair of juveniles of the same species that
have not reached puberty may be transported together.
  (2) Nonhuman primates of different species must not be
transported in adjacent or connecting primary enclosures.
  (e) Space requirements. Primary enclosures used to transport
nonhuman primates must be large enough so that each animal
contained in the primary enclosure has enough space to turn around
freely in a normal manner and to sit in an upright, hands down
position without its head touching the top of the enclosure.
However, certain larger species may be restricted in their
movements, in accordance with professionally accepted standards of
care, when greater freedom of movement would be dangerous to the
animal, its handler, or to other persons.
  (f) Marking and labeling. Primary enclosures, other than those
that are permanently affixed to a conveyance, must be clearly
marked in English on the top and on one or more sides with the
words "Wild Animals," or "Live Animals," in letters at least 1 inch
(2.5 cm.) high, and with arrows or other markings to indicate the
correct upright position of the primary enclosure. Permanently
affixed primary enclosures must be clearly marked in English with
the words "Wild Animals" or "Live Animals," in the same manner.   
 (g) Accompanying documents and records. Shipping documents that
must accompany shipments of nonhuman primates may be held by the
operator of the primary conveyance, for surface transportation
only, or must be securely attached in a readily accessible manner
to the outside of any primary enclosure that is part of the
shipment, in a manner that allows them to be detached for
examination and securely reattached, such as in a pocket or sleeve.
Instructions for administration of drugs, medication, and other
special care must be attached to each primary enclosure in a manner
that makes them easy to notice, to detach for examination, and to
reattach securely. Food and water instructions must be attached in
accordance with Sec. 3.86(c) of this subpart.
 
  (Approved by the Office of Management and Budget under control
number 0579-0093)
 
  Sec. 3.88 Primary conveyances (motor vehicle, rail, air, and
marine).  
  (a) The animal cargo space of primary conveyances used to
transport nonhuman primates must be designed, constructed, and
maintained in a manner that at all times protects the health and
well-being of the animals transported in it, ensures their safety
and comfort, and prevents the entry of engine exhaust from the
primary conveyance during transportation.
   (b) The animal cargo space must have a supply of air that is
sufficient for the normal breathing of all the animals being
transported in it.
   (c) Each primary enclosure containing nonhuman primates must be
positioned in the animal cargo space in a manner that provides
protection from the elements and that allows each nonhuman primate
enough air for normal breathing.
  (d) During air transportation, the ambient temperature inside a
primary conveyance used to transport nonhuman primates must be
maintained at a level that ensures the health and well-being of the
species housed, in accordance with generally accepted professional
and husbandry practices, at all times a nonhuman primate is
present.
  (e) During surface transportation, the ambient temperature inside
a primary conveyance used to transport nonhuman primates must be
maintained between 45 deg.F (7.2 deg.C) and 85 deg.F (30 deg.C) at
all times a nonhuman primate is present.
  (f) A primary enclosure containing a nonhuman primate must be
placed far enough away from animals that are predators or natural
enemies of nonhuman primates, whether the other animals are in
primary enclosures or not, so that the nonhuman primate cannot
touch or see the other animals.
   (g) Primary enclosures must be positioned in the primary
conveyance in a manner that allows the nonhuman primates to be
quickly and easily removed from the primary conveyance in an
emergency.
  (h) The interior of the animal cargo space must be kept clean   
  (i) Nonhuman primates must not be transported with any material,
substance (e.g., dry ice), or device in a manner that may
reasonably be expected to harm the nonhuman primates or cause
inhumane conditions.
 
  Sec. 3.89 Food and water requirements.
 
  (a) Each nonhuman primate that is 1 year of age or more must be
offered food /5/ at least once every 24 hours. Each nonhuman
primate that is less than 1 year of age must be offered food at
least once every 12 hours. Each nonhuman primate must be offered
potable water at least once every 12 hours. These time periods
apply to dealers, exhibitors, and research facilities, including
Federal research facilities, who transport nonhuman primates in
their own primary conveyances, starting from the time the nonhuman
primate was last offered food and potable water before
transportation was begun. These time periods apply to carriers and
intermediate handlers starting from the date and time stated on the
certification provided under Sec. 3.86(c) of this subpart Each
nonhuman primate must be offered food and potable water within 4
hours before being transported in commerce. Consignors who are
subject to the Animal Welfare regulations (9 CFR parts 1, 2, and 3)
must certify that each nonhuman primate was offered food and
potable water within the 4 hours preceding delivery of the nonhuman
primate to a carrier or intermediate handler for transportation in
commerce, and must certify the date and time the food and potable
water was offered, in accordance with Sec. 3.86(c) of this subpart.
 
  NOTE /5/ Proper food for purposes of this section is described in
Sec. 3.82 of this subpart, with the necessities and circumstances
of the mode of travel taken into account.
 
  (b) Any dealer, exhibitor, or research facility, including a
Federal research facility, offering a nonhuman primate to a carrier
or intermediate handler for transportation in commerce must
securely attach to the outside of the primary enclosure used for
transporting the nonhuman primate, written instructions for a 24-
hour period for the in-transit food and water requirements of the
nonhuman primate(s) contained in the enclosure. The instructions
must be attached in a manner that makes them easily noticed and
read.
  (c) Food and water receptacles must be securely attached inside
the primary enclosure and placed so that the receptacles can be
filled from outside of the enclosure without opening the door. Food
and water receptacles must be designed, constructed, and installed
so that a nonhuman primate cannot leave the primary enclosure
through the food or water opening.
 
  (Approved by the Office of Management and Budget under control
number 0579-0093)
 
  Sec. 3.90 Care in transit.
 
  (a) Surface transportation (ground and water). Any person subject
to the Animal Welfare regulations (9 CFR parts 1, 2, and 3)
transporting nonhuman primates in commerce must ensure that the
operator of the conveyance or a person accompanying the operator of
the conveyance observes the nonhuman primates as often as
circumstances allow, but not less than once every 4 hours, to make
sure that they have sufficient air for normal breathing, that the
ambient temperature is within the limits provided in Sec. 3.88(d)
of this subpart, and that all other applicable standards of this
subpart are being complied with. The regulated person transporting
the nonhuman primates must ensure that the operator or the person
accompanying the operator determines whether any of the nonhuman
primates are in obvious physical distress, and obtains any
veterinary care needed for the nonhuman primates at the closest
available veterinary facility.
  (b) Air transportation. During air transportation of nonhuman
primates, it is the responsibility of the carrier to observe the
nonhuman primates as frequently as circumstances allow, but not
less than once every 4 hours if the animal cargo area is accessible
during flight. If the animal cargo area is not accessible during
flight, the carrier must observe the nonhuman primates whenever
they are loaded and unloaded and whenever the animal cargo space is
otherwise accessible to make sure that the nonhuman primates have
sufficient air for normal breathing, that the ambient temperature
is within the limits provided in Sec. 3.88(d) of this subpart, and
that all other applicable standards of this subpart are being
complied with. The carrier must determine whether any of the
nonhuman primates is in obvious physical distress, and arrange for
any needed veterinary care for the nonhuman primates as soon as
possible.
  (c) If a nonhuman primate is obviously ill, injured, or in
physical distress, it must not be transported in commerce, except
to receive veterinary care for the condition.
  (d) During transportation in commerce, a nonhuman primate must
not be removed from its primary enclosure unless it is placed in
another primary enclosure or a facility that meets the requirements
of Sec. 3.80 or Sec. 3.87 of this subpart. Only persons who are
experienced and authorized by the shipper, or authorized by the
consignor or the consignee upon delivery, if the animal is
consigned for transportation, may remove nonhuman primates from
their primary enclosure during transportation in commerce, unless
required for the health or well-being of the animal.
  (e) The transportation regulations contained in this subpart must
be complied with until a consignee takes physical delivery of the
animal if the animal is consigned for transportation, or until the
animal is returned to the consignor.
 
  Sec. 3.91 Terminal facilities.
 
  (a) Placement. Any persons subject to the Animal Welfare
regulations (9 CFR parts l, 2, and 3) must not commingle shipments
of nonhuman primates with inanimate cargo or with other animals in
animal holding areas of terminal facilities. Nonhuman primates must
not be placed near any other animals, including other species of
nonhuman primates, and must not be able to touch or see any other
animals, including other species of nonhuman primates.
  (b) Cleaning, sanitization, and pest control. All animal holding
areas of terminal facilities must be cleaned and sanitized in a
manner prescribed in Sec. 3.84(b)(3) of this subpart, as often as
necessary to prevent an accumulation of debris or excreta and to
minimize vermin infestation and disease hazards. Terminal
facilities must follow an effective program in all animal holding
areas for the control of insects, ectoparasites, and birds and
mammals that are pests of nonhuman primates.
  (c) Ventilation. Ventilation must be provided in any animal
holding area in a terminal facility containing nonhuman primates by
means of windows, doors, vents, or air conditioning. The air must
be circulated by fans, blowers, or air conditioning so as to
minimize drafts, odors, and moisture condensation. Auxiliary
ventilation, such as exhaust fans, vents, fans, blowers, or air
conditioning, must be used in any animal holding area containing
nonhuman primates when the ambient temperature is 85 deg.F (29.5
deg.C) or higher.
   (d) Temperature. The ambient temperature in an animal holding
area containing nonhuman primates must not fall below 45 deg.F (7.2
deg.C) or rise above 85 deg.F (29.5 deg.C) for more than four
consecutive hours at any time nonhuman primates are present. The
ambient temperature must be measured in the animal holding area by
the carrier, intermediate handler, or a person transporting
nonhuman primates who is subject to the Animal Welfare regulations
(9 CFR parts 1, 2, and 3), outside any primary enclosure containing
a nonhuman primate at a point not more than 3 feet (0.91 m.) away
from an outside wall of the primary enclosure, on a level that is
even with the enclosure and approximately midway up the side of the
enclosure.
   (e) Shelter. Any person subject to the Animal Welfare
regulations (9 CFR parts l, 2, and 3) holding a nonhuman primate in
an animal holding area of a terminal facility must provide the
following:
  (1) Shelter from sunlight and extreme heat. Shade must be
provided that is sufficient to protect the nonhuman primate from
the direct rays of the sun.
   (2) Shelter from rain or snow. Sufficient protection must be
provided to allow nonhuman primates to remain dry during rain,
snow, and other precipitation.
  (f) Duration. The length of time any person subject to the Animal
Welfare regulations (9 CFR parts 1, 2, and 3) can hold a nonhuman
primate in an animal holding area of a terminal facility upon
arrival is the same as that provided in Sec. 3.86(f) of this
subpart.
 
  Sec. 3.92  Handling.
 
  (a) Any person subject to the Animal Welfare regulations (9 CFR
parts 1, 2, and 3) who moves (including loading and unloading)
nonhuman primates within, to, or from the animal holding area of a
terminal facility or a primary conveyance must do so as quickly and
efficiently as possible, and must provide the following during
movement of the nonhuman primate:
   (1) Shelter from sunlight and extreme heat. Sufficient shade
must be provided to protect the nonhuman primate from the direct
rays of the sun. A nonhuman primate must not be exposed to an
ambient temperature above 85 deg.F (29.5 deg.C) for a period of
more than 45 minutes while being moved to or from a primary
conveyance or a terminal facility, The ambient temperature must be
measured in the manner provided in Sec. 3.91(d) of this subpart.  
   (2) Shelter from rain or snow. Sufficient protection must be
provided to allow nonhuman primates to remain dry during rain,
snow, and other precipitation.
  (3) Shelter from cold temperatures. Transporting devices on which
nonhuman primates are placed to move them must be covered to
protect the animals when the outdoor temperature falls below 45
deg.F (7.2 deg.C). A nonhuman primate must not be exposed to an
ambient air temperature below 45 deg.F (7.2 deg.C) for a period of
more than 45 minutes, unless it is accompanied by a certificate of
acclimation to lower temperatures as provided in Sec. 3.86(e) of
this subpart. The ambient temperature must be measured in the
manner provided in Sec. 3.91(d) of this subpart.
  (b) Any person handling a primary enclosure containing a nonhuman
primate must use care and must avoid causing physical harm or
distress to the nonhuman primate.
  (1) A primary enclosure containing a nonhuman primate must not be
placed on unattended conveyor belts or on elevated conveyor belts,
such as baggage claim conveyor belts and inclined conveyor ramps
that lead to baggage claim areas, at any time; except that a
primary enclosure may be placed on inclined conveyor ramps used to
load and unload aircraft if an attendant is present at each end of
the conveyor belt.
  (2) A primary enclosure containing a nonhuman primate must not be
tossed, dropped, or needlessly tilted, and must not be stacked in
a manner that may reasonably be expected to result in its falling.
It must be handled and positioned in the manner that written
instructions and arrows on the outside of the primary enclosure
indicate.
  (c) This section applies to movement of a nonhuman primate from
primary conveyance to primary conveyance, within a primary
conveyance or terminal facility, and to or from a terminal facility
or a primary conveyance.  
  (Approved by the Office of Management and Budget under control
number 0579-0093)
 
  Done in Washington, DC, this 6th day of February 1991.
 
  James W. Glosser,
 
  Administrator, Animal and Plant Health Inspection Service.  
  [FR Doc. 91-3236 Filed 2-14-91; 8:45 am]
 
  BILLING CODE 3410-34-M