Standards for Birds Not Bred for Use in Research Under the Animal Welfare Act

CourtAnimal And Plant Health Inspection Service
Citation87 FR 9880
Published date22 February 2022
Record Number2022-03565
Federal Register, Volume 87 Issue 35 (Tuesday, February 22, 2022)
[Federal Register Volume 87, Number 35 (Tuesday, February 22, 2022)]
                [Proposed Rules]
                [Pages 9880-9913]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2022-03565]
                [[Page 9879]]
                Vol. 87
                Tuesday,
                No. 35
                February 22, 2022
                Part IVDepartment of Agriculture-----------------------------------------------------------------------Animal and Plant Health Inspection Service-----------------------------------------------------------------------9 CFR Parts 1, 2, and 3Standards for Birds Not Bred for Use in Research Under the Animal
                Welfare Act; Proposed Rule
                Federal Register / Vol. 87, No. 35 / Tuesday, February 22, 2022 /
                Proposed Rules
                [[Page 9880]]
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                DEPARTMENT OF AGRICULTURE
                Animal and Plant Health Inspection Service
                9 CFR Parts 1, 2, and 3
                [Docket No. APHIS-2020-0068]
                RIN 0579-AE61
                Standards for Birds Not Bred for Use in Research Under the Animal
                Welfare Act
                AGENCY: Animal and Plant Health Inspection Service, USDA.
                ACTION: Proposed rule.
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                SUMMARY: We are proposing to amend the regulations to establish
                standards governing the humane handling, care, treatment, and
                transportation of birds, excluding birds bred for use in research,
                covered under the Animal Welfare Act. This action would ensure the
                humane handling, care, treatment, and transportation of birds not bred
                for use in research and covered under the Act.
                DATES: We will consider all comments that we receive on or before April
                25, 2022.
                ADDRESSES: You may submit comments by either of the following methods:
                 Federale Rulemaking Portal: Go to www.regulations.gov.
                Enter APHIS-2020-0068 in the Search field. Select the Documents tab,
                then select the Comment button in the list of documents.
                 Postal Mail/Commercial Delivery: Send your comment to
                Docket No. APHIS-2020-0068, Regulatory Analysis and Development, PPD,
                APHIS, Station 3A-03.8, 4700 River Road, Unit 118, Riverdale, MD 20737-
                1238.
                 Supporting documents and any comments we receive on this docket may
                be viewed at www.regulations.gov or in our reading room, which is
                located in room 1620 of the USDA South Building, 14th Street and
                Independence Avenue SW, Washington, DC. Normal reading room hours are 8
                a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure
                someone is there to help you, please call (202) 799-7039 before coming.
                FOR FURTHER INFORMATION CONTACT: Dr. Cody M. Yager, DVM, Supervisory
                Animal Care Specialist, Animal Care, APHIS, 4700 River Road Unit 84,
                Riverdale, MD 20737; (301) 851-3751; [email protected]. Secondary
                Contact: Dr. David Miller, DVM, Ph.D., National Animal Welfare
                Specialist, Animal Care, APHIS, 2150 Centre Ave., Building B, Mailstop
                3W11, Fort Collins, CO 80526; (301) 851-3751; [email protected].
                SUPPLEMENTARY INFORMATION:
                Background
                 Under the Animal Welfare Act (AWA or the Act, 7 U.S.C. 2131 et
                seq.), the Secretary of Agriculture is authorized to promulgate
                standards and other requirements governing the humane handling, care,
                treatment, and transportation of certain animals by dealers, research
                facilities, exhibitors, operators of auction sales, and carriers and
                intermediate handlers. The Secretary has delegated responsibility for
                administering the AWA to the Administrator of the U.S. Department of
                Agriculture's (USDA) Animal and Plant Health Inspection Service
                (APHIS). Within APHIS, the responsibility for administering the AWA has
                been delegated to the Deputy Administrator for Animal Care. Regulations
                and standards are established under the AWA and are contained in 9 CFR
                parts 1, 2, and 3 (referred to below as the regulations). Part 1
                contains definitions for terms used in parts 2 and 3; part 2 provides
                administrative requirements and sets forth institutional
                responsibilities for regulated parties; and part 3 contains
                specifications for the humane handling, care, treatment, and
                transportation of animals covered by the AWA. Currently, part 3
                consists of subparts A through E, which contain specific standards for
                dogs and cats, guinea pigs and hamsters, rabbits, nonhuman primates,
                and marine mammals, respectively, and subpart F, which sets forth
                general standards for warmblooded animals not otherwise specified in
                that part.
                 The Act initially defined animal to mean ``live dogs, cats, monkeys
                (nonhuman primate mammals), guinea pigs, hamsters, and rabbits.'' In
                1970, amendments to the Act expanded the definition of animal to
                include ``any live or dead dog, cat, monkey (nonhuman primate mammal),
                guinea pig, hamster, rabbit, or such other warm-blooded animal, as the
                Secretary may determine is being used, or is intended for use, for
                research, testing, experimentation, or exhibition purposes, or as a
                pet,'' and to explicitly exclude horses not used for research purposes
                and other farm animals; amendments in 1976 clarified that dogs used for
                hunting, security, or breeding purposes fell within the scope of the
                Act.
                 The Farm Security and Rural Investment Act of 2002 \1\ (the ``Farm
                Bill'') included provisions that amended the definition of animal in
                the Act yet again by specifically excluding birds, rats of the genus
                Rattus, and mice of the genus Mus, bred for use in research. While the
                definition of animal contained in the AWA regulations at that time
                excluded rats of the genus Rattus and mice of the genus Mus bred for
                use in research, that definition also excluded all birds, not just
                those birds bred for use in research. Congress' amendment to the Act
                meant that birds not bred for research and not otherwise excluded under
                its provisions were, for the first time, explicitly subject to AWA
                regulation.
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                 \1\ Public Law 107-171, May 13, 2002; the text can be viewed at
                https://www.govinfo.gov/content/pkg/PLAW-107publ171/pdf/PLAW-107publ171.pdf.
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                 In a final rule published on June 4, 2004 in the Federal Register
                (69 FR 31513-31514, Docket No. 98-106-3), we amended the definition of
                animal in the AWA regulations to make it consistent with the revised
                definition of animal in the Act by limiting the exclusion to only those
                birds bred for use in research (i.e., breeding stock). On the same
                date, we published an advance notice of proposed rulemaking (69 FR
                31537-31541, Docket No. 98-106-4) notifying the public that we intended
                to extend enforcement of the AWA to birds not bred for use in research
                that are sold as pets at the wholesale level, or transported in
                commerce, or used for exhibition, research, teaching, testing, or
                experimentation purposes. To determine what regulations and standards
                are appropriate for those birds, we solicited and received 7,486 public
                comments and began reviewing these comments preliminary to drafting a
                proposed rule.
                 Beginning in 2013, several animal welfare organizations filed
                lawsuits against USDA for failure to promulgate regulations for birds
                not bred for use in research. As a result of one of those lawsuits,\2\
                on January 10, 2020, the U.S. Court of Appeals for the D.C. Circuit
                found that the AWA requires APHIS to issue standards applicable to
                birds not bred for use in research and that APHIS has not issued such
                standards. On remand, the U.S. District Court for the District of
                Columbia granted the parties' joint motion to stay the action and
                adopted the parties' proposed rulemaking schedule, ordering that USDA
                must publish a proposed rule establishing regulatory standards for
                birds not more than 18 months after publication of a notice of
                listening sessions, and promulgate them in a final rule to be published
                in the Federal Register no later than 1 year from that proposed rule's
                publication date. We
                [[Page 9881]]
                published the notice for a listening session, discussed below, on
                August 20, 2020, which under the Court's order requires that we publish
                the proposed rule no later than Tuesday, February 22, 2022.\3\
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                 \2\ American Anti-Vivisection Society and Avian Welfare
                Coalition v. USDA, 946 F.3d 615 (D.C. Cir. 2020): https://
                www.cadc.uscourts.gov/internet/opinions.nsf/
                80846063820C52F6852584EB005413E4/$file/19-5015-1823484.pdf.
                 \3\ February 20, 2022, falls on a Sunday, and Monday, February
                21, is a Federal holiday. As a result, the Court-imposed deadline
                would be the next business day that the Federal Register publishes,
                which is Tuesday, February 22.
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                 Beyond the Court's requirement that we publish a proposed rule, we
                believe there to be a significant welfare-based need for regulating
                birds and agree that this rulemaking is necessary. Although we
                currently do not consider birds when inspecting regulated facilities
                maintaining other animals due to the absence of AWA regulations
                regarding standards for birds, APHIS receives complaints from the
                public about inhumane conditions for birds. Additionally, if APHIS
                inspectors find birds kept in such conditions in the course of other
                duties, they are instructed to report their observations to the
                appropriate local or State authority. Moreover, some commenters during
                the listening sessions provided video and photographic documentation of
                birds held in unsanitary and inhumane conditions at several facilities
                across the United States. Based on our experience with animal welfare
                issues in the currently regulated community, we recognize that there
                are common challenges to maintaining humane conditions for animals--
                regardless of species--pertaining to shelter, health, husbandry,
                transport, and related needs. As a community covered under the AWA,
                persons dealing in, exhibiting, and transporting birds are also
                responsible for providing these needs. The standards we are proposing
                for birds include requirements that ensure animal welfare in the same
                areas of need.
                 Accordingly, we are proposing to establish new regulations and
                standards and amend existing regulations governing the humane handling,
                care, treatment, and transportation of birds covered by the AWA.
                Specifically, we propose to establish and amend definitions of terms
                used throughout parts 2 and 3 to inform licensees and registrants of
                their responsibilities under the Act with respect to birds that are not
                bred for use in research and not otherwise exempted from regulation. We
                also propose to amend several sections in part 2 to clarify the
                requirements and responsibilities for regulated parties with birds.
                Finally, we propose to establish specific standards in a new subpart in
                part 3 for the humane handling, care, treatment, and transportation of
                birds covered under the AWA.
                Notice of Listening Sessions
                 As noted above, the schedule ordered by the District Court required
                APHIS to publish a notice of virtual listening sessions to gather
                comments on the topic of establishing standards for birds prior to
                drafting a proposed rule. We scheduled three virtual listening sessions
                and published a notice in the Federal Register (85 FR 51368, Docket No.
                APHIS-2020-0068) asking the public to comment on establishing
                exemptions for dealers, exhibitors, and certain bird species and
                activities; licensing thresholds; performance-based standards; and ways
                of minimizing potential disturbances to nesting and breeding resulting
                from compliance inspections and implementation of standards.
                 We received 10,330 written comments on www.regulations.gov \4\ in
                response to the listening session notice, as well as approximately 75
                comments excerpted from the three listening session transcripts.
                Comments came from breeders and fanciers of finches, canaries, parrots,
                cockatiels, and other pet and show birds; raptor breeders,
                conservationists, and hobbyists; exotic poultry hobbyists; owners and
                breeders of show and racing pigeons; national and regional animal
                welfare organizations; organizations representing zoos, shelters, and
                rescues; avian veterinarians, ornithologists, and aviculturists;
                organizations promoting the conservation of waterfowl and wild birds; a
                Federal government agency; and members of the public. We have reviewed
                and considered all of the comments, which we have summarized below.
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                 \4\ To view the comments we received, go to www.regulations.gov.
                Enter APHIS-2020-0068 in the Search field. Transcripts of the
                listening sessions are available at https://www.aphis.usda.gov/aphis/ourfocus/animalwelfare/aw-news/bird-listening-sessions.
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                Exemptions From Licensing
                 The current regulations in Sec. 2.1(a)(3) include licensing
                exemptions based on criteria such as how the animals are used, whether
                and how they are sold, and size of business based on gross income or
                the number of covered animals maintained.
                 An exemption is provided for dealers who maintain four or fewer
                breeding females of pet animals, small exotic or wild animals, and/or
                domesticated farm type animals and offer their offspring for sale. Also
                exempted in this section are retail pet stores as the term is defined
                in Sec. 1.1,\5\ dealers who breed and sell 25 or fewer dogs and/or
                cats to research facilities annually, individuals who solely buy, sell,
                transport, or negotiate the sale, purchase, or transportation of an
                animal for food or fiber, and exhibitors covered under the AWA who
                maintain eight or fewer pet animals, small exotic or wild animals
                (sometimes referred to colloquially as ``pocket'' mammals), and
                domesticated farm type animals for exhibition. An income threshold
                exemption applies to any person who sells or negotiates the sale or
                purchase of any animal except wild or exotic animals, dogs, or cats,
                and who derives no more than $500 gross income from the sale of such
                animals during any calendar year. Finally, any person who buys animals
                solely for his or her own use or enjoyment and does not sell or exhibit
                animals is exempt from licensing if not otherwise required to obtain
                one.
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                 \5\ Retail pet store is defined as a place of business or
                residence at which the seller, buyer, and the animal available for
                sale are physically present so that every buyer may personally
                observe the animal prior to purchasing and/or taking custody of that
                animal after purchase, and where only the following animals are sold
                or offered for sale, at retail, for use as pets: Dogs, cats,
                rabbits, guinea pigs, hamsters, gerbils, rats, mice, gophers,
                chinchillas, domesticated ferrets, domesticated farm-type animals,
                birds, and coldblooded species.
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                 During the listening sessions, we asked for comments and supporting
                data on adding or revising licensing exemptions for certain dealers,
                exhibitors, operators of auction sales, and carriers and intermediate
                handlers of birds not bred for use in research. We also asked
                specifically if certain species of birds should be exempted. The
                comments that immediately follow address these questions, including the
                status of birds at shelters, birds that are part of conservation
                efforts, and the scope of regulatory authority. Comments for exemptions
                based on business size appear in the section following this one, under
                ``De Minimis Exemptions.''
                 Several commenters suggested that all bird breeders be exempted
                from regulation, with one stating that it has not been demonstrated
                that the current welfare of birds in breeding facilities are deficient
                and that bird breeders are continually improving captive bird care. A
                few commenters recommended that all persons exhibiting birds at shows
                be exempt from regulation.
                 On the other hand, a substantial number of commenters asked that
                all birds covered under the Act be subject to the regulations,
                regardless of species or use, particularly as some States do not have
                laws protecting birds. Many other commenters stated that there should
                be no exemptions for birds sold
                [[Page 9882]]
                in retail pet stores, noting that some pet stores house birds in poor
                sanitary conditions. One commenter added that no persons selling birds
                at auction should be exempt, stating that these are often the most
                egregious of offenders with respect to animal abuse.
                 Some commenters noted that many persons keep birds to preserve
                threatened or endangered species and safeguard them from extinction due
                to habitat loss and other threats, and recommended that any exemptions
                for wholesale trade and exhibition should also include birds bred for
                conservation or for sale or transfer to other breeding programs. On the
                other hand, a commenter stated that the majority of bird breeding in
                the United States ostensibly done in the name of conservation
                contributes little or nothing to conservation efforts because most
                captive breeding is done outside of official species survival plans and
                conservation efforts.
                 We also asked whether certain species of birds should qualify for
                exemption from licensing. In response, we received a wide range of
                explanations as to why certain species of birds covered under the AWA
                should or should not require a license.
                 Many bird owners and the organizations representing them commented
                that most non-agricultural bird species kept in the United States are
                for personal enjoyment and not for profit and should be exempted from
                AWA licensing.
                 Some commenters stated that the AWA should only be concerned about
                inspecting budgies, cockatiels, and other common species of birds bred
                for profit for the pet market. Several commenters stated that persons
                breeding or maintaining any types of finches, canaries, or songbirds
                should be exempt from licensing due to the enormous number of species,
                subspecies, and hybrids kept and their special requirements.
                 Commenters concerned about species conservation asked that we
                exempt from licensing breeders of endangered and non-native bird
                species, including rare poultry and waterfowl.
                 Several persons with an interest in raptors commented that existing
                U.S. Department of the Interior, U.S. Fish and Wildlife Service (USFWS)
                regulations likely meet or exceed proposed AWA standards and that no
                additional regulations are needed to ensure raptor welfare. Many noted
                that raptor owners are already subject to a robust regulatory system
                and that any new standards and regulations for most captive raptor
                breeders would be burdensome and duplicative. Some commenters stated
                that State and local laws already provide an adequate layer of
                regulation to ensure the welfare of their birds. Several commenters
                stated that raptors are migratory birds, not ``pet animals'' as defined
                in Sec. 1.1, with some noting that the Migratory Bird Treaty Act
                (MBTA, 16 U.S.C. 703 et seq.) already covers raptors. A commenter noted
                that falconers fall under the definition of neither ``dealer'' nor
                ``exhibitor,'' and the few that engage in exhibition should be exempted
                de minimis.
                 On the other hand, a commenter representing an animal welfare
                organization noted that the USDA has never considered activities
                regulated under other Federal, State, and local laws as a basis for
                granting exemptions for regulated activities and species from the AWA's
                requirements. Other commenters opined that the AWA does not
                discriminate or authorize the agency to discriminate between different
                species of warmblooded animals, or between different regulated uses,
                and that all are protected under the Act. In addition, a commenter
                noted that raptors are large animals and asked that they not be subject
                to the exhibitor licensing exemption.
                 A commenter representing the USFWS noted that exhibition of
                migratory birds and raptors is the primary area of overlap between that
                agency and the USDA with respect to regulation. The commenter stated
                that it is important that agencies are not in conflict with respect to
                regulating birds.
                 Several commenters asked that persons maintaining racing and show
                pigeons be exempt from licensing. One commenter stated that most pigeon
                racers are not dealers or exhibitors and therefore should be exempt
                from regulation. The commenter added that pigeon racing has elements of
                the farm in its origins and that farm animals are excluded from AWA
                regulation.
                 Conversely, one commenter stated that racing pigeons are prone to
                disease due to inadequate sanitation and veterinary care, that
                prominent race organizers and veterinarians acknowledge that disease
                leads to substantial numbers of racing pigeon deaths, and that racing
                pigeons pose a threat of spreading disease among wild pigeons and
                domestic poultry.
                 We received several comments from persons and organizations on the
                subject of bird rescues and shelters. Several commenters emphasized
                that rescues should never be exempt from inspections or regulations.
                Many commenters expressed concern about animal welfare, overcrowding,
                and health and sanitation conditions at bird rescues and shelters, and
                supported regulation of such facilities under the AWA. A commenter
                suggested that rescues who accept public donations or charge admission
                to their facilities should be required to be licensed just as mammal
                facilities are. Another commenter indicated that rescues and
                sanctuaries for pet birds that receive government grant money should
                not be exempt and be held to a higher standard. On the other hand,
                other commenters asked that shelters and rescues be exempted from
                licensing and that caregivers who foster or shelter birds on a
                temporary basis should be exempted also.
                 Some commenters asked that persons maintaining wild bird species be
                exempted from licensing. One commenter stated that for many wild
                species, the appropriate conditions for maintaining them are unknown
                and would need to be determined once the birds are brought into
                captivity. The commenter added that the range of taxa is broad and that
                species within a taxon may have very different requirements. Other
                commenters stated that all wild bird rescues should be subject to
                regulation and licensing.
                 One commenter asked that we be careful in describing wild birds
                with the terms ``domestic/domesticated,'' ``non-domestic/exotic,'' and
                ``wild/wildlife.'' The commenter noted that domesticated species of
                certain birds have husbandry and veterinary needs that differ
                substantially from those of closely related, captive-managed wild
                species.
                De Minimis Exemptions
                 Section 2133 of the Act includes the provision that ``a dealer or
                exhibitor shall not be required to obtain a license as a dealer or
                exhibitor under this chapter if the size of the business is determined
                by the Secretary to be de minimis.'' Section 2.1(a)(3) of the current
                regulations includes de minimis threshold licensing exemptions for
                dealers (including breeders) and exhibitors of AWA-covered animals
                based on gross income, numbers of animals maintained, and intended use
                of the animals, with exemptions granted accordingly for businesses
                under each threshold.
                 During the listening sessions, we asked persons to comment on
                whether there are thresholds beyond which an entity should not be
                required to be licensed. We noted that most bird breeding businesses
                are very small and invited persons to comment on what threshold
                criteria we might use to exempt such entities from licensing, which by
                their size have historically
                [[Page 9883]]
                posed an insignificant, or de minimis, risk to animal welfare.
                 Several commenters requested that we exempt certain dealers and
                exhibitors of birds from licensing, and many suggested specific
                exemption thresholds based on income or number of birds bred or
                exhibited. Many commenters asked that the exemption in Sec.
                2.1(a)(3)(i), the retail pet store exemption, remain in place for birds
                sold at retail.
                 One commenter stated that APHIS cannot exempt birds beyond the
                plain text of the AWA and its existing de minimis exemption, adding
                that the AWA statute plainly applies to warm-blooded animals that are
                used for regulated activities.
                 Some commenters stated that any individual or facility that raises
                fewer than 500 birds per year should be considered de minimis and
                exempt from regulation. Another commenter asked that the regulatory
                threshold be set at 500 or fewer breeding pairs of parakeets, finches,
                and other small birds, and 200 or fewer breeding pairs of larger birds
                such as parrots and gamebirds. The commenter asked that offspring not
                be counted toward the total number of pairs. Another commenter
                suggested that facilities with fewer than 100 breeding female birds
                should be exempt regardless of sales volume. Yet another recommended
                that small breeding operations (up to 25 pairs of birds) should be
                exempted from licensing under the AWA regulations and that not doing so
                will impose unnecessary regulatory burden on the public and APHIS
                personnel.
                 Other commenters recommended that proposed bird regulations follow
                the current de minimis thresholds for other animals in the regulations.
                One such commenter asked that we harmonize the bird regulations with--
                but not expand--the de minimis exemptions in Sec. 2.1(a)(3)(iii).
                 A commenter recommended that birds under 4 pounds should not be
                regulated or require licensing. Another commenter stated that if
                someone cares for non-wild birds and some of those birds generate
                offspring unintentionally, such persons should be exempt from
                licensing.
                 One commenter stated that although an aviary may breed many birds,
                the total sales may only be $100 or less per year. In contrast, the
                commenter noted, a pair of hyacinth macaws may produce a single chick
                per year that sells for $10,000. The commenter noted that one pair of
                birds producing a single chick per year is below the level that USDA
                should spend resources on regulating even though the dollar amount is
                above what is considered de minimis. On this point, another commenter
                stated that birds with low monetary value are often subjected to the
                cruelest of conditions and in greatest need of oversight.
                 One commenter stated that to avoid the creation of a double
                standard for birds, any proposed regulations must exclude from the
                exemption in Sec. 2.1(a)(3)(ii) all exotic or wild birds just as it
                currently does for all other covered wild or exotic animals. Another
                commenter stated that the exemption from licensing for facilities with
                annual sales not exceeding $500 is inadequate. Due to the capital
                expenditure and time investment required for successful hobby
                aviculture, the commenter recommended a threshold of $50,000.
                 With respect to bird exhibitors, a few commenters stated the need
                for an exemption like the current one in Sec. 2.1(a)(3)(vii) for
                exhibitors of eight or fewer pet type or ``pocket'' mammal species.
                 One commenter who recommended against allowing species-specific
                exemptions for birds noted that the only current de minimis exemptions
                in the regulations that could reasonably apply to birds would be for
                ``domesticated farm-type animals,'' which could include domesticated
                species of chickens, ducks, and turkeys.
                Performance-Based Standards
                 Section 2143 of the Act provides that standards for the humane care
                of animals must include requirements for handling, housing, feeding,
                watering, sanitation, ventilation, shelter from extremes of weather and
                temperatures, adequate veterinary care, and, when warranted, separation
                by species. The AWA regulations in 9 CFR part 3 fulfill this statutory
                obligation by listing standards for the humane handling, care,
                treatment, and transportation of animals, grouped under separate
                subparts for dogs and cats; guinea pigs and hamsters; rabbits; nonhuman
                primates; marine mammals; and warmblooded animals not included in the
                other subparts.
                 Most of the standards are performance-based, meaning that whenever
                practicable they do not mandate a single, prescribed approach to
                meeting the standard. For example, the standard for food storage and
                bedding for dogs and cats in Sec. 3.1(e) states that ``supplies of
                food and bedding must be stored in a manner that protects the supplies
                from spoilage, contamination, and vermin infestation.'' Similarly, in
                the proposed standards for birds under Sec. 3.150(e), we require that
                ``supplies of food, including food supplements, bedding, and substrate
                must be stored in a manner that protects the supplies from spoilage,
                contamination, and vermin infestation.'' In each case, the specific
                manner and location of storage is not prescribed, and any approach that
                protects the supplies from the conditions listed will meet the
                standard.
                 To cite another example, Sec. 3.81 of the standards for nonhuman
                primates requires that the primary enclosures of the animals be
                provided with environmental enrichments for expressing noninjurious
                species-typical activities, which includes perches, swings, mirrors,
                and other increased cage complexities, and that species differences
                should be considered when determining the type or methods of
                enrichment. Likewise, we are proposing in Sec. 3.154 an environmental
                enrichment standard for birds requiring that perches and other objects
                provided to enrich a bird's environment be species-appropriate and
                designed, constructed, and maintained so as to prevent harm to the
                bird. Businesses may use their own experience and knowledge with the
                species in question to determine the composition of the perches and
                other objects, their size and location, and other relevant
                considerations, so long as they are meeting the proposed standard.
                 Many of the comments we received during the listening sessions
                noted the great number of bird species and the highly diverse care and
                husbandry needs of each, and remarked on the challenge of establishing
                a single set of standards that could accommodate the scope of these
                needs. We acknowledge the concerns of these commenters and agree that
                birds constitute a uniquely diverse class, which is why we consider a
                performance-based, flexible approach to standards for birds especially
                important.
                 We asked commenters whether there are appropriate performance-based
                standards that could cover the wide variety of bird species. We also
                asked persons to comment on the feasibility of separating birds into
                smaller classes and setting performance-based standards appropriate for
                each class, and what such classes might look like.
                 A number of commenters supported regulating the humane handling,
                care, treatment, and transportation of covered birds under the existing
                standards in part 3, subpart F, which cover warmblooded animals other
                than dogs, cats, rabbits, hamsters, guinea pigs, nonhuman primates, and
                marine mammals. Other commenters supported the establishment of
                standards developed specifically for birds. Many commenters recommended
                that any performance standards developed for
                [[Page 9884]]
                birds should consider their specific physiological and behavioral
                needs.
                 An animal welfare organization proposed a set of avian performance
                standards to serve as a regulatory model and asked that they be
                included as a separate section in part 3 and reflected accordingly in
                parts 1 and 2. We note that the standards submitted by the commenter
                reflect in large part the standards we propose, with requirements that
                address handling, housing, feeding, watering, sanitation, ventilation,
                shelter, veterinary care, separation of species as warranted, and
                environmental enrichment.
                 A commenter asked APHIS to consult with ornithological professional
                organizations before drafting standards for birds, and others
                recommended that APHIS enlist the help of aviculturists and
                organizations representing raptor and parrot owners, rescues,
                conservation, and other avian interests to develop standards.
                 APHIS-Animal Care has engaged in such consultations to the extent
                we can, which is standard practice for the program with regard to other
                covered animals.
                 Conversely, several commenters questioned whether any set of
                standards could be developed that would address the husbandry needs of
                all bird species, with some noting that industry self-regulation has
                failed to prevent substandard care, welfare, and husbandry of birds. As
                we note in a previous section, some commenters submitted field reports,
                photographs, and videos showing birds held in unsanitary and barren
                cages throughout the United States and noted in particular the
                unhealthy appearance of the birds and abnormal behaviors resulting from
                confinement under such conditions.
                 One commenter stated that there are far too many species of exotic
                birds kept in aviculture to be able to set up individual standards, and
                another commented that generic standards that apply to large groups of
                birds probably do not encompass the needs of all species, even in
                family groups of birds. A commenter added that because the needs of
                many birds are influenced by age, geographical location, and seasonal
                changes, specifying exact standards of care may not allow enough
                flexibility to address these variable factors. One commenter
                acknowledged that due to the wide differences in size, morphology,
                diet, and social structure in the class Aves, it is impossible to
                present one set of minimum housing standards for all avian species.
                 Some commenters stated that the aviculturist community already has
                adequate best practices in place and that no government regulation is
                necessary. Several cited the Model Avicultural Program, adding that it
                represents a higher level of care than is typically required for AWA
                licensing.
                 While the program cited by these commenters includes general
                housing, husbandry, and other standards that we consider to be
                appropriately species-specific and performance-based, the standards we
                propose in this rule are both more detailed and comprehensive and
                include additional requirements governing transportation, enrichment,
                research uses, and identification, among others. We consider these
                requirements to be necessary to maintain consistency with the current
                regulations for mammals and to ensure a level of animal welfare
                commensurate with that required by the AWA.
                Facilities and Operating Standards
                 While some commenters proposed standards that differ in degree from
                those we have proposed, we agree with the majority of comments from the
                listening sessions indicating that facility and operating standards for
                regulating birds must address their special physiological, anatomical,
                behavioral, and psychological needs, and the standards we have proposed
                have been developed with those needs in mind. We discuss those
                standards in greater detail below.
                Enclosures
                 In accordance with the Act, we include enclosure standards in each
                subpart of part 3 to ensure that captive animals are confined safely
                and humanely. For example, the general standards for primary enclosures
                for dogs and cats under subpart A require that they be constructed and
                maintained so as to contain the animals securely, protect them against
                injury, and provide sufficient space commensurate with the animal
                species confined. The standards we propose for birds include similar
                requirements that are performance-based and allow flexibility to meet
                the wide diversity of needs among bird species cited by commenters.
                 Several commenters addressed the topic of bird enclosures,
                particularly with respect to size and the ability to permit movement. A
                few commenters submitted proposed standards that include detailed,
                performance-based shelter specifications for space, flooring and
                surfaces, lighting, humidity, and air quality. One such commenter noted
                that overcrowding causes stress in birds and spreads disease, and that
                small enclosures can cause stereotypic behaviors such as spot picking
                and route tracing. Some commenters also asked APHIS to develop
                standards requiring that enclosures be large enough to allow natural
                fliers to have enough space to fly, while other commenters stated that
                birds need room to stretch and flap wings, but not necessarily to fly.
                 We note that the standards we propose for enclosures mirror to a
                large degree those submitted by commenters, the objective being to
                provide an environment that ensures humane treatment of animals as
                required by the Act. The standard in proposed Sec. 3.153(b) requires
                that the space in all primary enclosures housing birds be adequate and
                allow for normal postural and social adjustments, such as dust-bathing
                and foraging, with adequate freedom of movement and freedom to escape
                from aggression demonstrated by other animals in the enclosure
                according to the program of veterinary care developed, documented in
                writing, and signed by the attending veterinarian. While we acknowledge
                the desire by many commenters that sufficient enclosure space be
                available for birds to fly, birds can be in good health and maintained
                humanely in accordance with the Act without such a requirement.
                 A commenter stated that due to the way pigeons live in communities
                and can tolerate disease, standards for lofts must be specific to the
                species. One commenter stated that wire flooring is harmful to the feet
                of many birds and proposed that we set standards requiring safe, non-
                toxic substrate (newspaper, towels, litter, straw, etc.) for the
                species being housed. We include in this proposal a performance-based
                requirement that floors of primary enclosures be constructed in a
                manner that protects the birds' feet and legs from injury, which
                addresses issues of harmful flooring regardless of composition, as well
                as a requirement that substrate be safe and non-toxic to the birds
                being housed.
                Sanitation
                 As noted above, the AWA requires that sanitation standards for
                regulated animals be issued for dealers, exhibitors, and research
                facilities that keep those animals. In the existing AWA regulations,
                consistent with this statutory obligation, we include standards for
                facility sanitation within each subpart for dogs and cats, rabbits, and
                other mammals. As with these standards, those that we propose for
                facilities having birds require a sanitary, pest-free environment
                conducive to their health and welfare but also allow for flexibility in
                how the standards are
                [[Page 9885]]
                met. Consistent with what we are proposing, several commenters called
                for standards specific to birds regarding waste disposal, food storage,
                and enclosure and pool cleaning to reduce disease and pest hazards.
                Lighting and Climate
                 As lighting and climate needs differ considerably among animal
                species, the existing standards in the regulations for animals covered
                under each subpart are performance-based to allow for lighting,
                humidity, temperature, and other climatic considerations appropriate
                for the species involved. We have proposed similar such standards for
                birds to accommodate the widely different temperature, humidity, and
                lighting needs of each species.
                 Some commenters advocated for more prescriptive lighting standards,
                specifically natural or artificial light in the same spectrum as
                sunlight. One commenter recommended that appropriate circadian rhythms
                must also be provided for nocturnal species, as well as adequate
                ventilation, temperature, and humidity control appropriate to the
                species. We agree with the latter commenter that lighting should be
                species-specific and need not mimic sunlight if the species is
                nocturnal, and our proposed standards reflect that. Another commenter
                stated that there should be standards to protect birds from sunlight
                and extreme heat, with appropriate shelter from rain and snow. We agree
                with this commenter, as providing shelter from weather extremes is
                consistent with animal welfare.
                Recordkeeping
                 The existing regulations require that dealers and exhibitors keep
                and maintain records which fully disclose certain identification and
                disposition information for animals other than dogs and cats that are
                purchased or otherwise acquired, owned, held, leased, or otherwise in
                their possession or under their control, or that they transport, sell,
                euthanize, or otherwise dispose of. Among other things, the records
                must include any offspring born of any animal while in the dealer's or
                exhibitor's possession or under his or her control. Similarly,
                operators of auction sales and brokers are required to maintain records
                for any animal consigned for auction or sold, whether or not a fee or
                commission is charged.
                 During the listening sessions, many commenters asked APHIS to
                require that records be kept of all transactions for birds that are
                sold or transferred to another owner. Commenters also called for APHIS
                to require bird dealers and exhibitors to keep health records on their
                birds.
                 On the other hand, several commenters stated that the recordkeeping
                requirements now required for mammals would be unreasonable and
                burdensome for commercial, high volume-produced birds such as budgies,
                zebra finches, cockatiels, lovebirds, waterfowl, pigeons, and
                gamebirds.
                 We propose to apply the existing recordkeeping requirements to
                persons engaging in these AWA-covered activities involving birds,
                unless otherwise exempt. We consider an accounting of each covered
                animal important for the purposes of ensuring adequate health and
                welfare, even for high-volume produced birds. If, for example, an
                individual bird moved to or from a premises is diagnosed with a
                serious, communicable disease, a record of that bird's movement is
                necessary to protect other birds from potential exposure and harm.
                Research Concerns
                 Regulations concerning AWA-covered animals at research facilities
                are located in 9 CFR part 2, subpart C. They require that facilities
                register with APHIS, that an Institutional Animal Care and Use
                Committee (IACUC) be established to assess facility treatment and use
                of animals, and that animals be treated by an attending veterinarian
                under a program of veterinary care. Personnel and recordkeeping
                requirements for research facilities are also included in subpart C. As
                these regulations ensure that activities on animals at research
                facilities are humanely designed and practiced in accordance with the
                Act, we propose that they also be applied to birds not bred for use in
                research.
                 Some commenters expressed concerns with the effects that
                establishing AWA standards for birds could have on research activities.
                 A commenter stated that the proposed regulation would hamper
                biomedical and ecological research using avian species. One commenter
                stated that additional regulation could be detrimental to
                ornithological research without improving protection for birds, noting
                that unlike biomedical research and testing that does not benefit the
                animals being used, such research is conducted for understanding bird
                biology and ecology and is already regulated through the Public Health
                Service.
                 A commenter asked USDA to clarify that neither a facility's IACUC
                nor APHIS inspection is required for field research sites involving
                wild birds. Another commenter asked that any proposed standards for
                birds do not prohibit field surgeries on wild birds and that biologists
                not be required to transport wild birds to dedicated facilities. APHIS'
                proposed changes to the regulations do not require that field studies
                involving wild birds be inspected, nor do we propose to prohibit field
                surgeries on wild birds, provided that such activities are conducted in
                accordance with current established veterinary medical procedures. As
                provided in proposed Sec. 2.31(d)(1)(ix), we would not require that
                persons transport wild birds to dedicated facilities for medical
                procedures.
                Animal Health and Husbandry
                 During the listening sessions, commenters frequently cited the need
                for health and husbandry standards that are performance-based, noting
                the wide range of requirements among different species of birds. The
                current standards for other animals in Part 3 include performance-based
                requirements for health and husbandry addressing grouping, feeding,
                sanitation, and other needs. We have likewise proposed similar health
                and husbandry standards for birds in this document that address the
                needs cited by commenters.
                Feeding and Watering
                 As noted above, the AWA requires that feeding and watering
                standards be established for regulated animals for dealers, exhibitors,
                and research facilities that contain those animals. In the existing
                regulations, we have implemented this statutory obligation by
                establishing feeding and watering standards. Generally, these require
                that food be uncontaminated, nutritious, easily accessible, and
                appropriate for the species involved. Current standards also require
                that clean water be provided sufficient to maintain health and that
                receptacles for food and water be kept clean and sanitary. Competent
                bird dealers and exhibitors are knowledgeable as to the types of food
                their birds require to remain in good health. As with persons
                maintaining other types of animals covered under the regulations, we
                acknowledge this fact, and as we have done with those animals, we have
                proposed a feeding standard that is flexible enough to ensure the
                health and well-being of all birds.
                 Several animal welfare organizations proposed performance standards
                for the feeding and watering of birds consistent with the standards we
                propose. We would require that food be nutritious, species-appropriate,
                and presented in a manner that encourages natural foraging
                [[Page 9886]]
                behaviors specific to the species, which as one commenter noted is
                exceptionally important to bird welfare.
                Environmental Complexity
                 Many commenters during the listening sessions noted that some
                species of birds are highly intelligent and social animals and can
                benefit from being able to practice natural behaviors in captivity,
                such as social interaction and foraging. Accordingly, they proposed
                standards to provide species-appropriate environmental complexity for
                birds in the living space to promote the expression of natural
                behaviors and opportunities for positive interactions with the
                environment. A commenter noted that species-specific perches,
                substrates, hide boxes and shelters, visual barriers, and water and
                dust baths are important to promoting such interactions and included
                details of these in the standards proposed.
                 One commenter stated that parrots should receive special
                consideration for enrichment under the AWA regulations because of their
                taxonomic uniqueness, documented intelligence, and popularity in
                domestic markets. Some commenters cited research showing that
                enrichment activities such as foraging enhance the psychological well-
                being of birds, reducing stereotypic behaviors and minimizing stress.
                One commenter proposed that an environmental enrichment plan be
                developed and maintained for all birds in consultation with a qualified
                veterinarian or veterinary behaviorist, and that behavioral assessments
                include a review of nutrition, husbandry, and housing to develop an
                appropriate treatment plan.
                 APHIS agrees that environmental enrichment is important to ensuring
                the health and well-being of birds consistent with the Act. We note
                that the current regulations in subpart D, Sec. 3.81, require persons
                maintaining nonhuman primates to provide an environmental enhancement
                plan that includes enrichment requirements. Accordingly, we would
                include similar enrichment requirements specifically for birds.
                Contact With Birds
                 The existing AWA regulations contain provisions regarding contact
                between captive animals being sold or exhibited and members of the
                public. These are intended to protect persons from injury while
                minimizing the risk of animals contracting a zoonotic disease,
                receiving inappropriate food, or being handled in an inappropriate
                manner. For example, a standard in each subchapter requires that
                primary enclosures used to transport animals be constructed to ensure
                that anyone handling the enclosure will not be in contact with the
                animals contained inside. In this document we propose a similar
                standard for birds.
                 Some commenters asked that APHIS create standards that restrict or
                prohibit public contact and interaction with exhibited birds. One
                commenter stated that exhibitors allow dangerous birds to be too close
                to the public. Others opined that direct contact programs pose a
                dramatically increased risk of zoonotic disease transmission between
                humans and animals. A commenter cited research indicating that hand-
                rearing of parrots and other birds can contribute to the development of
                aberrant behaviors such as stereotypy and feather plucking.
                 On the other hand, a commenter stated that many birds desire and
                will initiate interaction with their owners. Another commenter was
                concerned that breeders would be restricted from hand-rearing and
                handling young birds, noting that such activities are a necessary part
                of taming. We are not proposing regulations that would restrict
                breeders from handling their birds humanely.
                Veterinary Care
                 Veterinary requirements applicable to all animals covered under the
                Act are located in Sec. 2.40 of the regulations. These require that
                each facility maintain a program of veterinary care and have an
                attending veterinarian, as we acknowledge from commenter input to be
                the current practice for many facilities that would be affected by the
                proposed standards. Under the regulations we propose, birds covered
                under the Act would be subject to veterinary requirements to ensure
                animal welfare.
                 Several commenters stated that veterinary care should be a
                requirement for all birds that are subject to AWA regulations. Several
                such commenters proposed that regulated facilities be required to
                maintain a program of preventative veterinary healthcare for regulated
                birds, with annual physical exams for each bird and health records
                maintained for each regulated bird and available for review by APHIS.
                Many commenters called for health certificates for birds as is the case
                for covered animals currently.
                 A majority of commenters asked that we establish regulations to
                prohibit painful physical mutilations, including pinioning (disabling
                wings), toe clipping, devoicing, and beak alterations. A commenter
                recommended that when beak trimming is done for corrective purposes, it
                should be performed by a qualified avian veterinarian, and clipping or
                pinioning a bird's wings to prevent flight should be prohibited except
                to address a specific health issue. We acknowledge commenter concerns
                over these practices, but also acknowledge, as several commenters did
                themselves, that there can sometimes be health-based reasons for the
                practices. We encourage additional comments that address the concerns
                raised in light of animal welfare.
                 Also, a commenter proposed that facilities be required to consult
                with a veterinarian or nutritionist to formulate appropriate species-
                specific diets, and that facilities follow and keep records of a
                dietary plan that is reviewed annually by a qualified veterinarian or
                nutritionist who has directly evaluated the animals at the facility. We
                agree that the food provided to the birds should be species-specific
                and nutritious. This could be accomplished by consulting a veterinarian
                or nutritionist, but we do not consider recourse to a veterinarian or
                nutritionist to be the only way of obtaining or validating this
                information. Our proposed standards allow for such flexibility in
                determining the appropriate diet for the birds.
                Identification
                 We received a number of comments on the identification standards
                for birds. Several commenters supported a standard requiring that all
                birds have a humane form of permanent identification, such as a
                microchip, leg band, or wing band.
                 Some commenters requested that we not require permanent forms of
                identification on birds because they should not be subjected to
                unnecessary stressful surgical procedures. Another commenter stated
                that given the fragile nature of birds, ID marking should not be
                required for live birds. The commenter recommended either leg bands or
                microchips as being suitable for all bird species.
                 In these proposed regulations, we include identification standards
                for birds that allow for flexibility in meeting the requirements,
                including attaching information to primary enclosures identifying each
                bird housed within, using leg and wing bands for identifying birds, and
                employing microchips. We believe that these methods are the safest and
                most acceptable means of identifying birds humanely.
                Nesting and Breeding Activities
                 We asked commenters to provide information on how bird breeders
                avoid interfering with nesting and breeding or other biological
                activities of birds. We
                [[Page 9887]]
                also asked for comments to help APHIS ensure that housing, feeding, or
                inspection requirements do not interfere with these activities.
                 Several bird breeders commenting on the notice raised concerns
                about regulatory inspections disturbing nesting and breeding activity
                at their facilities, potentially resulting in losses due to damage to
                eggs, chicks, and mates. Some stated that licensees should have a say
                in when inspections occur and asked that inspections not be conducted
                during breeding cycles.
                 Many commenters raised biosecurity concerns about inspections and
                inspectors transmitting pathogens into the facility. Another commenter
                noted that operators frequently care for their birds in the early
                morning hours or evening hours before or after work, so these
                facilities would be inaccessible for the unannounced inspections called
                for in the AWA regulations.
                 Conversely, some commenters emphasized the importance of
                inspections for animal welfare, stating that procedures by trained
                APHIS inspectors are no more intrusive than normal human-interactive
                behaviors in many situations where birds are homed. Another commenter
                stated that rather than disease posing a barrier to regulation, the
                risk of which is overstated, it is another factor to consider when
                developing safe inspection practices. Another commenter stated that
                based on her experience, parrots are motivated to nest and breed
                regardless of the presence of humans. Other commenters stated that
                nesting and breeding concerns should not hamper the ability of
                officials to conduct inspections and noted that remote camera
                technology can allow inspectors to view birds without entering the
                nesting area.
                 We acknowledge the concerns of many commenters about the impact
                that inspections could have on the health and safety of their birds,
                particularly during periods of breeding and nesting. We note that APHIS
                inspectors would work with newly regulated persons to identify optimal
                times for inspections so that disruptions are minimized while
                maintaining the unannounced nature of inspections. As with inspections
                of other types of animals, APHIS inspectors are required to observe
                professionally accepted standards for minimizing the risk of
                introducing disease into facilities.
                Transportation
                 The transportation standards we propose for birds provide the same
                consideration for humane care as is required in the current regulations
                for other species of AWA-covered animals, and we acknowledge the point
                made by many commenters that some birds have highly specialized
                transportation needs. For example, while most birds require space to
                make normal postural adjustments during transport, there are some birds
                that may injure themselves if their movements are not restricted.
                Therefore, the intention of the proposed transportation standards for
                birds is to account for these animals' unique needs and provide them
                with equivalent protection and care as other covered animals.
                 One commenter stated that despite many concerns about the welfare
                of baby and unweaned birds, birds should not be subject to minimum age
                requirements for shipping. The commenter noted that precocial species,
                such as gallinaceous birds, have been shipped as ``day-old'' hatchlings
                for many years as an accepted practice in the poultry industry. Another
                commenter recommended that any person handling a primary enclosure
                containing a bird be required to use care and avoid causing physical
                harm or distress to the bird, while some commenters stated that all
                temporary transportation and housing of birds in trade or enroute to
                shows should be exempted as these constitute a temporary condition and
                not a permanent living space.
                 Conversely, numerous commenters requested that we establish
                regulations prohibiting the sale of unweaned and prematurely weaned
                baby birds, noting that such birds risk succumbing to disease,
                mishandling, and transport hazards.
                 We acknowledge that there could be legitimate reasons to transport
                an unweaned bird, but also agree with the concerns cited above. We note
                that under the standards we propose, carriers and intermediate handlers
                would not be permitted to accept unweaned birds for transport unless
                transport instructions are specified as a part of the program of
                veterinary care.
                 A commenter representing the USFWS recommended not requiring AWA
                licensing for transporters who are transporting birds under a valid
                MBTA permit to and from the wild for compensation at or less than
                recouping costs. The commenter noted that there are situations in which
                volunteers transport wild migratory birds for minimal compensation for
                the health and safety of these birds. The proposed regulations include
                an exemption from AWA licensing for anyone transporting a migratory
                bird covered under the MBTA from the wild to a facility for
                rehabilitation and eventual release in the wild, or between
                rehabilitation facilities. Any person transporting a migratory bird is
                currently required to obtain authorization to do so from USFWS.
                Proposed Regulations and Standards
                 The proposed regulations and standards in this document are
                intended to ensure the humane handling, care, treatment, and
                transportation of birds not bred for use in research that are used, or
                intended for use, for research, teaching, testing, experimentation, or
                exhibition purposes, or as a pet. Consistent with most of the comments
                we received during the listening sessions, these proposed animal
                welfare standards accommodate the species-specific needs of birds and
                consider their significant differences with respect to their biological
                and behavioral requirements. In every case, the goal of the proposed
                standards for birds is to provide each individual bird with acceptable
                conditions consistent with ensuring its good health and well-being and
                meeting its physical and behavioral needs as required under the Act.
                Definitions
                 In Sec. 1.1, we would revise the definitions of several terms used
                throughout parts 2 and 3. Specifically, we would revise the definitions
                of carrier, exhibitor, farm animal, intermediate handler, pet animal,
                retail pet store, and weaned. We would also add new definitions of
                bird, bred for use in research, and poultry to Sec. 1.1. The proposed
                revisions are discussed below. In addition to these proposed revisions,
                regulated parties with birds would be subject to all other applicable
                definitions contained in Sec. 1.1 if this proposed rule is adopted as
                a final rule.
                Bird
                 We would define the term bird as any members of the class Aves,
                excluding eggs. We consider a bird to no longer be an egg when the bird
                is fully separated from the eggshell.
                 We considered regulating the welfare of live avian eggs during the
                development of this proposed rule. However, we found that there was not
                enough scientific data available for each species of bird to determine
                the stages when human management can cause an animal welfare concern.
                Bred for Use in Research
                 We propose to add a definition for the term bred for use in
                research to clarify what animals are considered bred for use in
                research under the AWA regulations. This term would cover animals that
                are bred in captivity and
                [[Page 9888]]
                that are being used or are intended for use for research, teaching,
                testing, or experimentation purposes.
                 The definition of animal in the AWA and the regulations excludes
                birds, rats of the genus Rattus, and mice of the genus Mus, bred for
                use in research.\6\ Therefore, under this proposal, the following birds
                not bred for use in research would be covered by the regulations:
                ---------------------------------------------------------------------------
                 \6\ Birds are otherwise covered under the definition of animal
                in the Act and the current regulations by the term ``warm-blooded
                animal.''
                ---------------------------------------------------------------------------
                 Birds that are obtained from their natural habitat and
                used or intended for use for research, teaching, testing, or
                experimentation purposes; and
                 Birds that are being used or intended for use for
                exhibition purposes or for use as pets.
                Carrier
                 We would revise the definition of carrier to include an exemption
                from AWA licensing for anyone transporting a migratory bird covered
                under the MBTA from the wild to a facility for rehabilitation and
                eventual release in the wild, or between rehabilitation facilities, and
                who has authorization from USFWS for that purpose. As transport of such
                migratory birds is regulated by the USFWS, any person transporting a
                migratory bird is currently required to obtain authorization to do so
                from that agency. We are proposing this exception because APHIS and
                USFWS agree that the continued transport of MBTA-covered birds for
                rehabilitation without additional regulation is beneficial for species
                preservation and outweighs any potential risk to animal welfare. If
                USFWS receives animal welfare-related complaints about transport of
                such birds, USDA will work with that agency to address them.
                Exhibitor
                 We would also revise the definition of exhibitor. Currently, an
                exhibitor is defined as ``any person (public or private) exhibiting any
                animals, which were purchased in commerce or the intended distribution
                of which affects commerce, or will affect commerce, to the public for
                compensation, as determined by the Secretary. This term includes
                carnivals, circuses, animal acts, zoos, and educational exhibits,
                exhibiting such animals whether operated for profit or not. This term
                excludes retail pet stores, horse and dog races, an owner of a common,
                domesticated household pet who derives less than a substantial portion
                of income from a nonprimary source (as determined by the Secretary) for
                exhibiting an animal that exclusively resides at the residence of the
                pet owner, organizations sponsoring and all persons participating in
                State and country fairs, livestock shows, rodeos, field trials,
                coursing events, purebred dog and cat shows, and any other fairs or
                exhibitions intended to advance agricultural arts and sciences, as may
                be determined by the Secretary.''
                 Like horse and dog races and purebred dog and cat shows, we
                consider pigeon races and bird fancier shows to be exhibitions
                traditionally intended to advance agricultural arts and sciences.
                Therefore, we would amend the definition of exhibitor by adding pigeon
                races and bird fancier shows to the list of exhibitions that are
                excluded from coverage. In addition, for clarity, we would add free-
                flighted bird shows as an example of a type of animal act that is
                included under the definition of exhibitor.
                Farm Animal; Poultry
                 Currently, Sec. 1.1 defines a farm animal as ``any domestic
                species of cattle, sheep, swine, goats, llamas, or horses, which are
                normally and have historically, been kept and raised on farms in the
                United States, and used or intended for use as food or fiber, or for
                improving animal nutrition, breeding, management, or production
                efficiency, or for improving the quality of food or fiber. This term
                also includes animals such as rabbits, mink, and chinchilla, when they
                are used solely for purposes of meat or fur, and animals such as horses
                and llamas when used solely as work and pack animals.'' Poultry is not
                currently defined in the AWA regulations.
                 We are proposing to make several changes to the definition of farm
                animal to ensure appropriate coverage for birds. Like cattle, sheep,
                and other farm animals, there are domestic species of poultry that have
                historically been kept and raised on farms in the United States and
                used for food or fiber or for improving animal nutrition, breeding,
                management, or production efficiency, or for improving the quality of
                food or fiber. Therefore, we are proposing to amend this term to
                include such poultry. This proposed amendment would also make the
                definition of farm animal consistent with the definition of animal,
                which lists poultry as a kind of farm animal that is exempt from
                coverage when used or intended for use as food or fiber, for improving
                animal nutrition, breeding, management, or production efficiency, or
                for improving the quality of food or fiber.
                 We are also proposing to revise farm animal to include animals when
                used solely for their feathers or skins. The proposed addition of
                feathers to the list accounts for morphological differences between
                birds and other animals and is the avian equivalent to the current
                inclusion of animals when used solely for the purposes of fur. The
                proposed addition of skins to the list reflects the common practice of
                using ostrich and other skins of birds for leathers. Further, we would
                add ratites (e.g., ostrich, rhea, or emu) to the illustrative list of
                animals that are included in this term when used solely for purposes of
                meat, fur, feathers, or skins.
                 In addition to these changes to the definition of farm animal, we
                would also add a separate definition of poultry to the AWA regulations
                to clarify what birds are considered poultry. This term would be
                defined as any species of chickens, turkeys, swans, partridges, guinea
                fowl, and pea fowl; ducks, geese, pigeons, and doves; grouse,
                pheasants, and quail.
                Intermediate Handler
                 We would amend the definition of intermediate handler to include an
                exemption from AWA licensing for anyone transporting a migratory bird
                from the wild to a facility for rehabilitation and eventual release in
                the wild, or between rehabilitation facilities, with USFWS
                authorization. Any person transporting a migratory bird covered under
                the MBTA is currently required to obtain authorization from USFWS.
                Pet Animal
                 Under the current regulations, pet animal is defined as ``any
                animal that has commonly been kept as a pet in family households in the
                United States, such as dogs, cats, guinea pigs, rabbits, and hamsters.
                This term excludes exotic animals and wild animals.'' We are proposing
                to include birds under the definition of pet animal and amend the
                illustrative list of animals contained in the definition by adding
                examples of pet birds. Such birds would include but not be limited to
                parrots, canaries, cockatiels, lovebirds, and budgerigar parakeets.
                Although there are too many bird species that exist in the United
                States and are kept as pets to list under the definition, we propose to
                list these particular birds because they constitute the majority of
                birds bought and sold as pets in the United States and are thus a good
                illustrative example of what constitutes a pet bird.
                [[Page 9889]]
                Retail Pet Store
                 Currently, a retail pet store is defined as ``a place of business
                or residence at which the seller, buyer, and the animal available for
                sale are physically present so that every buyer may personally observe
                the animal prior to purchasing and/or taking custody of that animal
                after purchase, and where only the following animals are sold or
                offered for sale, at retail, for use as pets: Dogs, cats, rabbits,
                guinea pigs, hamsters, gerbils, rats, mice, gophers, chinchillas,
                domesticated ferrets, domesticated farm-type animals, birds, and
                coldblooded species.'' The current definition goes on to exclude
                establishments or persons conducting certain activities, meaning that
                these establishments or persons do not meet the retail pet store
                definition. These exclusions are as follows:
                 Establishments or persons who deal in dogs used for
                hunting, security, or breeding purposes;
                 Establishments or persons exhibiting, selling, or offering
                to exhibit or sell any wild or exotic or other nonpet species of
                warmblooded animals (except birds), such as skunks, raccoons, nonhuman
                primates, squirrels, ocelots, foxes, coyotes, etc.;
                 Any establishment or person selling warmblooded animals
                (except birds, and laboratory rats and mice) for research or exhibition
                purposes;
                 Any establishment wholesaling any animals (except birds,
                rats, and mice); and
                 Any establishment exhibiting pet animals in a room that is
                separate from or adjacent to the retail pet store, or in an outside
                area, or anywhere off the retail pet store premises.
                 We are proposing to revise the definition of retail pet store by
                removing the parenthetical exceptions for birds from the lists of
                exclusions above. Those exclusions exist as a result of the historical
                exclusion of all birds from the definition of animal in Sec. 1.1 of
                the regulations and are inconsistent with the current definition of
                animal.
                Weaned
                 Currently, Sec. 1.1 defines weaned to mean that ``an animal has
                become accustomed to take solid food and has so done, without nursing,
                for a period of at least 5 days.'' We are proposing to amend this
                definition to make it applicable to birds. Specifically, we propose to
                add that a bird is weaned if it has become accustomed to take food and
                has so done, without supplemental feeding from a parent or human
                caretaker, for at least 5 consecutive days. Signs that a bird or other
                animal has become accustomed to take food include the animal's ability
                to maintain a constant body weight during weaning.
                Regulations in 9 CFR Part 2 Pertaining to Newly Regulated Persons Under
                This Proposal
                 In addition to the amendments we propose, newly regulated persons
                under this proposal would be subject to all other applicable AWA
                regulations in effect for licensing, registration, research, and
                inspections under 9 CFR part 2. These regulations, addressed below, are
                intended as an overview of how newly regulated persons maintaining
                birds as dealers or exhibitors may be affected.
                 Under Subpart A--Licensing, persons who plan to maintain and use
                animals covered under the AWA regulations and who are not otherwise
                exempt from licensing are required to apply to APHIS for a license,
                which is valid for 3 years, in accordance with Sec. 2.1, and agree to
                a prelicensing inspection demonstrating that his or her location(s) and
                any animals, facilities, vehicles, equipment, or other locations used
                or intended for use in the business comply with the Act and the
                regulations and standards.
                 We are uncertain regarding the number of dealers and exhibitors who
                will now be subject to this licensing requirement, but believe,
                however, that under the regulations in part 2, many small bird dealers
                and exhibitors would be exempted from licensing. The retail pet store
                exemption exempts persons or businesses defined in Sec. 1.1 as a
                retail pet store, which means a place of business or residence at which
                the seller, buyer, and the animal available for sale are physically
                present so that every buyer may personally observe the animal prior to
                purchasing and/or taking custody of that animal after purchase. Under
                the de minimis exemptions in Sec. 2.1(a)(3), the income threshold
                exemption in that paragraph applies to ``any person who sells or
                negotiates the sale or purchase of any animal except wild or exotic
                animals, dogs, or cats, and who derives no more than $500 gross income
                from the sale of such animals during any calendar year and is not
                otherwise required to obtain a license.'' A licensing exemption is also
                provided for dealers who maintain four or fewer breeding females of pet
                animals, small exotic or wild animals, and/or domesticated farm type
                animals, and offer only their offspring for sale. Also, in Sec.
                2.1(a)(3), individuals who buy, sell, transport, or negotiate the sale,
                purchase, or transportation of an animal solely for food or fiber are
                exempt from licensing, as are exhibitors covered under the AWA who
                maintain eight or fewer pet animals, small exotic or wild animals, and/
                or domesticated farm type animals for exhibition.
                 Under Subpart B--Registration, carriers and intermediate handlers
                newly regulated under this proposal would not require a license to
                transport birds, but would be required to register by completing and
                filing a form provided by APHIS. Registrations, unlike licenses, do not
                have an expiration date.
                 Under Subpart C--Research facilities, a newly regulated research
                facility under this proposal would need to register by completing and
                filing a form available from APHIS. The chief executive officer of the
                newly registered research facility would be required to appoint an
                IACUC consisting of qualified persons to assess the research facility's
                animal program, facilities, and procedures. Each research facility
                would also need to have an attending veterinarian and maintain a
                program of veterinary care. Lastly, registered research facilities
                would be required to maintain records of IACUC meetings, activities
                involving animals, and animals purchased or acquired by the facility.
                 In addition, newly licensed dealers and exhibitors under part 2,
                subpart D, Sec. 2.40, also would be required to have an attending
                veterinarian and a program of veterinary care. Subpart E requires that
                dealers and exhibitors of all animals, except dogs and cats, delivered
                for transportation, transported, purchased, sold, or otherwise acquired
                or disposed of by any dealer or exhibitor would have to be identified
                by the dealer or exhibitor at the time of delivery for transportation,
                purchase, sale, acquisition or disposal, as provided in the subpart.
                Primary enclosures would require a means for identifying each of the
                animals within.
                 Subpart F prohibits any person from buying, selling, exhibiting,
                using for research, transporting, or offering for transportation, any
                stolen animal.
                 Subpart G would require dealers and exhibitors newly regulated
                under this proposal to make, keep, and maintain records or forms which
                fully and correctly disclose certain information as indicated in the
                subpart, concerning animals purchased or otherwise acquired, owned,
                held, leased, or otherwise in their possession or under their control,
                or which are transported, sold, euthanized, or otherwise disposed of by
                that dealer or exhibitor. Operators of an auction sale or broker would
                need to make, keep, and maintain records or forms which disclose the
                information indicated in the subpart concerning each bird consigned for
                auction or sold, whether or not a fee or commission is
                [[Page 9890]]
                charged. Carriers and intermediate handlers newly registered under this
                proposal would need to keep records concerning C.O.D. shipments of live
                birds.
                 Subpart I includes miscellaneous requirements for dealers,
                exhibitors, operators of auction sales, intermediate handlers, and
                carriers. Newly regulated persons under this proposal would agree to
                provide any information concerning the business which APHIS may request
                in connection with the enforcement of the provisions of the Act, the
                regulations, and the standards. Also, each dealer, exhibitor,
                intermediate handler, and carrier would be required to provide APHIS
                officials with access to and inspection of property and records during
                business hours. Any regulated person who intends to exhibit an animal
                at any location other than the person's approved site (including, but
                not limited to, circuses, traveling educational exhibits, animal acts,
                and petting zoos), except for travel that does not extend overnight, is
                required to submit a written itinerary to APHIS. The regulations in
                subpart I also include provisions for missing animals, situations in
                which captive animals are determined to be suffering, and demonstration
                of adequate experience and knowledge of the species maintained.
                 Lastly, under current part 2, subpart I, newly regulated dealers,
                exhibitors, intermediate handlers, and carriers under this proposal
                would be required to develop, document, and follow an appropriate plan
                to provide for the humane handling, treatment, transportation, housing,
                and care of their animals in the event of an emergency or disaster (one
                which could reasonably be anticipated and expected to be detrimental to
                the good health and well-being of the animals in their possession).
                Proposed Changes to 9 CFR Part 2
                 The proposed amendments to the regulations are discussed below by
                section. In addition to these proposed amendments, newly regulated
                persons under this proposal would be subject to all other applicable
                AWA regulations for licensing, registration, research and inspections
                as summarized above.
                Requirements and Application--Sec. 2.1
                 As noted previously, Sec. 2.1 of the regulations includes
                requirements for licensing, as well as exemptions from licensing. One
                such exception in Sec. 2.1(a)(3)(vi) exempts ``any person who buys,
                sells, transports, or negotiates the sale, purchase, or transportation
                of any animals used only for the purposes of food or fiber (including
                fur).'' To accommodate birds under this exemption, we would add
                ``feathers'' to the list of purposes for which birds are used.
                 Paragraph (b)(1) states that licenses are issued to specific
                persons, and are issued for specific activities, types and numbers of
                animals, and approved sites. As each license specifies the numbers and
                types of animals that a licensee can maintain, under paragraph
                (b)(2)(ii) a licensee is required to obtain a new license before
                acquiring or using any covered animal beyond those types or numbers of
                animals specifically authorized under the existing license.
                 We are aware that a number of currently licensed facilities, in
                addition to maintaining mammals of various types, are also maintaining
                birds that might be covered under the proposed changes to the
                regulations. These birds are not currently listed on the license.
                However, in order to minimize redundant administrative burden on these
                facilities, we would not require that they apply for a new license only
                for the purpose of meeting the effective date of these proposed
                regulations, if promulgated. Therefore, we propose to add a statement
                to Sec. 2.1(b)(2)(ii) explaining that a current licensee with birds is
                not required to apply for a new license until the recommended 90 days
                prior to the scheduled expiration date of that license (APHIS
                encourages such persons to apply for a new license at least 90 days
                before expiration of the current one). Licenses are valid for 3 years.
                We would also add to paragraph (b)(2)(ii) a reference to proposed
                subpart G in part 3, which lists standards for birds, and an effective
                date.
                 APHIS intends to provide guidance to both new and current licensees
                through documents, guides, and training to help them achieve compliance
                with the new regulations for birds. We invite potential licensees and
                other interested persons to comment on the types of training and
                guidance they need and the modes by which it might be best provided.
                Birds Covered Under the Migratory Bird Treaty Act
                 The MBTA implements a series of treaties between the United States
                and Canada, Mexico, Japan, and Russia intended to protect and sustain
                populations of migratory birds. Under regulations developed and
                enforced by USFWS, the MBTA prohibits the take (including killing,
                capturing, selling, trading, and transport) of protected migratory bird
                species without prior authorization.\7\ With some exceptions,\8\ any
                activity involving the use, possession, or transport of a migratory
                bird, or the parts, nests, or eggs of such birds, requires a USFWS
                permit specific to the activity. Types of migratory bird permits and
                their provisions, listed in 50 CFR part 21, subpart C, include but are
                not limited to those intended for import or export, scientific
                collecting, falconry, raptor propagation, and rehabilitation.\9\
                ---------------------------------------------------------------------------
                 \7\ A list of migratory birds protected under the MBTA can be
                found at https://ecfr.federalregister.gov/current/title-50/chapter-I/subchapter-B/part-10/subpart-B/section-10.13.
                 \8\ See 50 CFR 21.12, ``General exceptions to permit
                requirements.'' Exceptions address handling and transport of
                migratory birds by certain persons and institutions for the purpose
                of ensuring their health and safety.
                 \9\ Regulations and permits specific to bald and golden eagles
                are located in 50 CFR part 22.
                ---------------------------------------------------------------------------
                 As noted above, the 2002 amendments to the AWA by Congress
                subjected birds to regulation under the AWA, which does not distinguish
                migratory birds from other birds and therefore does not exclude them
                from regulation under its authority. Although migratory birds are
                currently covered under the MBTA and its regulations, the primary
                purpose of the MBTA is to sustain native populations of such birds
                rather than to establish specific standards of care and humane
                treatment for birds in captivity. For this reason, we acknowledge that
                a small number of persons maintaining captive migratory birds for some
                activities under USFWS regulation would also fall under AWA coverage
                and potentially be subject to APHIS regulation. In particular, some
                persons currently authorized under permit by USFWS to exhibit or breed
                migratory birds may be required to follow AWA regulations and obtain a
                license from APHIS to ensure that such birds are receiving humane care
                and treatment.
                 As noted above, we propose to revise the definitions of carrier and
                intermediate handler in Sec. 1.1 to include an exemption from AWA
                registration for anyone transporting a migratory bird covered under the
                MBTA from the wild to a facility for rehabilitation and eventual
                release in the wild, or between rehabilitation facilities.
                 APHIS continues to work closely with USFWS to determine situations
                where regulatory overlap may occur, and both agencies are coordinating
                efforts in order to minimize dual regulation of persons possessing and
                using migratory birds for breeding, exhibition, education, and
                research. To help us reduce regulatory burden on such persons, we
                invite comments that address specific activities and concerns
                [[Page 9891]]
                involving migratory birds potentially covered under both APHIS and
                USFWS regulations.
                Registration Requirements and Procedures--Sec. 2.25
                 Section 2.25 provides in part that each carrier and intermediate
                handler is required to register with the Secretary by completing a form
                furnished, upon request, by the Deputy Administrator. This requirement
                typically applies to persons who transport AWA-covered animals. Persons
                already registered to transport other animals would not be required to
                update their registration to transport birds.
                 We note that some persons transport wild migratory birds between
                rehabilitation facilities and the wild as part of conservation
                projects. As the transport of migratory birds covered under the MBTA
                requires authorization by USFWS under regulations in 50 CFR parts 21
                and 22, we would not require that such transporters register with
                APHIS. Accordingly, we would revise the definitions of carrier and
                intermediate handler to exempt such persons from AWA licensing.
                Institutional Animal Care and Use Committee (IACUC)--Sec. 2.31(d)
                 Under Sec. 2.31 of the regulations, each registered research
                facility must establish an IACUC to assess its animal program,
                facilities, and procedures. The IACUC must have at least three members,
                one of whom must be a Doctor of Veterinary Medicine, with training or
                experience in laboratory animal science and medicine, who has direct or
                delegated program responsibility for activities involving animals at
                the research facility. Another member must not be affiliated with the
                facility at all, and is intended to provide representation for general
                community interests. In order to approve proposed activities or
                proposed significant changes in ongoing activities, paragraph (d) of
                Sec. 2.31 requires that the IACUC conduct a review of those components
                of the activities related to the care and use of animals and determine
                that the proposed activities are in accordance with the regulations,
                unless acceptable justification for a departure is presented in
                writing.\10\ The IACUC is also required to determine that the proposed
                activities or significant changes in ongoing activities meet a number
                of requirements, including ones related to activities that involve
                surgery. We are proposing no additional requirements for IACUC
                membership, but research facilities that use birds not bred for use in
                research could choose to enlist additional IACUC members with avian
                expertise.
                ---------------------------------------------------------------------------
                 \10\ APHIS has issued guidance exempting field studies, defined
                by APHIS as studies conducted on free-living wild animals in their
                natural habitat, from this requirement. However, this term excludes
                any study that involves an invasive procedure, harms, or materially
                alters the behavior of an animal under study. For more detail, see
                the APHIS Tech Note, ``Research Involving Free-living Wild Animals
                in Their Natural Habitat,'' at https://www.aphis.usda.gov/animal_welfare/downloads/tech-note-free-living-wild-animals.pdf.
                ---------------------------------------------------------------------------
                 Under current Sec. 2.31(d)(1)(ix), activities that involve surgery
                must include appropriate provision for pre-operative and post-operative
                care of the animals in accordance with established veterinary medical
                and nursing practices, which means that survival surgery must be
                performed using aseptic procedures, including surgical gloves, masks,
                and sterile instruments. Major operative procedures on non-rodents must
                be conducted only in facilities intended for that purpose and must be
                operated and maintained under aseptic conditions. Non-major operative
                procedures and all surgery on rodents do not require a dedicated
                facility but also must be performed using aseptic procedures. Operative
                procedures conducted at field sites need not be performed in dedicated
                facilities but must be performed using aseptic procedures.
                 We would apply the same requirements for operative procedures for
                birds as we do for rodents in Sec. 2.31(d)(ix). Our determination for
                this decision is twofold. First, we are aligning our requirements with
                U.S. Public Health Service policy for the humane care and use of
                laboratory animals, which does not require a separate, dedicated
                surgical area for rodents, but does require a surgical area used solely
                for survival surgeries involving higher vertebrate species.\11\ Second,
                we have considered the operative conditions and practices for rodents
                and concluded that they would be humane and consistent with the AWA if
                applied to birds. As we noted above, the surgical standards currently
                listed in Sec. 2.31(d)(1)(ix) include appropriate provisions for
                aseptic surgery and pre-operative and post-operative care of the
                animals in accordance with established veterinary medical and nursing
                practices, which apply regardless of whether or not the surgery is
                performed in a dedicated facility used wholly for that purpose.
                Moreover, under current Sec. 2.31(d)(1)(ix), medical care for all AWA-
                covered animals at a registered research facility is required to be
                available and provided as necessary by a qualified veterinarian.
                ---------------------------------------------------------------------------
                 \11\ Guide for the Care and Use of Laboratory Animals, 8th
                Edition, National Research Council: https://grants.nih.gov/grants/olaw/guide-for-the-care-and-use-of-laboratory-animals.pdf. Page 144
                of the Guide states that, ``for most survival surgery performed on
                rodents and other small species such as aquatics and birds, an
                animal procedure laboratory is recommended; the space should be
                dedicated to surgery and related activities when used for this
                purpose, and managed to minimize contamination from other activities
                conducted in the room at other times.'' [Our emphasis.] In other
                words, a surgical area for rodents and birds is not exclusively
                intended for that purpose as it is for higher vertebrate species.
                ---------------------------------------------------------------------------
                Time and Method of Identification--Sec. 2.50
                 We are proposing to amend Sec. 2.50 of the regulations, which
                addresses methods of identifying animals. Currently, paragraph (e)(1)
                requires dealers and exhibitors to identify all animals, except for
                dogs and cats, delivered for transportation, transported, purchased,
                sold, or otherwise acquired or disposed of, at the time of delivery for
                transportation, purchase, sale, acquisition, or disposal. Paragraph
                (e)(2) requires such animals, when confined to a primary enclosure, to
                be identified using one of three methods: (1) A label attached to the
                primary enclosure that bears a description of the animals in the
                primary enclosure; (2) marking the primary enclosure with a painted or
                stenciled number which shall be recorded in the records of the dealer
                or exhibitor together with a description of the animals; or (3) a tag
                or tattoo applied to each animal in the primary enclosure that
                individually identifies each animal by description or number. When such
                an animal is not confined to a primary enclosure, paragraph (e)(3)
                provides that the animal must be identified on a record that must be
                kept and maintained by a dealer or exhibitor as part of his or her
                records.
                 Labels attached to primary enclosures, leg and wing bands, and
                transponders (also referred to as microchips) are preferred methods of
                identification for birds. These methods are commonly and safely used to
                identify birds in all segments of the avian industry that we would
                regulate. The ability to identify animals is a part of basic animal
                husbandry and allows for APHIS to track animals to monitor movement.
                Therefore, we propose to require dealers and exhibitors to identify
                their birds that are confined to a primary enclosure using one of the
                following: (1) A label attached to the primary enclosure that bears a
                description of the birds in the primary enclosure, including the number
                and species of birds and any distinctive physical features or
                identifying marks of the birds; (2) a leg or wing band applied to each
                bird in the primary enclosure by the dealer or
                [[Page 9892]]
                exhibitor that individually identifies each bird by description or
                number; or (3) a transponder (microchip) placed in a standard
                anatomical location for the species in accordance with currently
                accepted professional standards, provided that the facility has a
                compatible transponder reader that is capable of reading the
                transponder and that the reader is readily available for use by an
                APHIS official and/or facility employee accompanying the APHIS
                official. We would add these proposed requirements as a new paragraph
                (e)(2) in Sec. 2.50 and redesignate current paragraphs (e)(2) and (3)
                as paragraphs (e)(3) and (4), respectively, to accommodate that new
                paragraph. Birds that are not confined to a primary enclosure would be
                subject to the identification requirements contained in redesignated
                paragraph (e)(4) (current paragraph (e)(3)). Under that paragraph, such
                birds would have to be identified on a record, as required by Sec.
                2.75 of the regulations, which would have to accompany the bird at the
                time it is delivered for transportation, transported, purchased, or
                sold, and would have to be kept and maintained by the dealer or
                exhibitor as part of his or her records.
                Records: Dealers and Exhibitors--Sec. 2.75
                 Currently, Sec. 2.75(b)(1) of the regulations requires that
                dealers (other than operators of auction sales and brokers to whom
                animals are consigned) and exhibitors make, keep, and maintain records
                or forms which fully and correctly disclose certain identification and
                disposition information concerning animals other than dogs and cats
                that are purchased or otherwise acquired, owned, held, leased, or
                otherwise in their possession or under their control, or that they
                transport, sell, euthanize, or otherwise dispose of. Among other
                things, the records must include any offspring born of any animal while
                in the dealer's or exhibitor's possession or under his or her control.
                 We propose to apply these recordkeeping requirements to dealers and
                exhibitors of birds and would apply to all birds covered under the AWA.
                While we acknowledge that some stakeholders commented that maintaining
                records of individual birds in large flocks is infeasible, we consider
                an accounting of each covered animal important for the purposes of
                ensuring adequate animal welfare for every animal. For example, among
                other purposes, it is necessary in order to account for additions of
                covered animals to the inventory at the facility, as well as
                mortalities. The only change that would be necessary in Sec.
                2.75(b)(1) to reflect its applicability to dealers and exhibitors of
                birds would be to add the words ``or hatched'' after the word ``born''
                in the previously cited provision regarding records for offspring born
                to animals while they are under a dealer's or exhibitor's possession or
                control.
                Records: Operators of Auction Sales and Brokers--Sec. 2.76
                 Section 2.76 requires that operators of auction sales and brokers
                maintain records for any animal consigned for auction or sold, whether
                or not a fee or commission is charged. Paragraph (a) of Sec. 2.76
                provides that those records must include such information as the name
                and address of the buyer or consignee who received the animal, the USDA
                license or registration number (if applicable) of the person selling,
                buying, or receiving the animals, the date of consignment, the band,
                microchip, or other durable individualized identification method
                assigned to the animal under Sec. 2.50 or Sec. 2.54, and a
                description of each animal. Currently, Sec. 2.76(a)(7) requires a
                description of each animal that includes the species and breed or type
                of animal, the sex of the animal, the date of birth or approximate age,
                and the color and any distinctive markings.
                 Because the sex of some birds may not be readily determinable, we
                are proposing to amend paragraph (a)(7) to require operators of auction
                sales and brokers to record the sex of a bird only if it is readily
                determinable. To reflect the fact that birds lay eggs, rather than give
                birth to live young, we would also add the words ``or hatch date''
                after the words ``date of birth'' in paragraph (a)(7)(iii).
                 The regulations currently allow operators of auction sales and
                brokers to provide an approximate age in lieu of an animal's date of
                birth in those instances where the exact date of birth of the animal is
                unknown. We recognize that it is sometimes difficult to even estimate
                the approximate age of certain species of birds, so we also would allow
                the approximate developmental stage of an animal to be provided if the
                date of birth or hatch date is unknown. For example, an operator of an
                auction sale or broker who does not know the hatch date or approximate
                age of a bird may disclose that the bird is a chick, juvenile, or adult
                on the records or forms maintained for that bird in accordance with
                Sec. 2.76 of the regulations.
                Proposed Standards in 9 CFR Part 3
                 As we noted above, the Act authorizes the Secretary of Agriculture
                to promulgate standards governing the humane handling, care, treatment,
                and transportation of covered animals by dealers, research facilities,
                exhibitors, operators of auction sales, and carriers and intermediate
                handlers. For dealers, research facilities, and exhibitors of animals
                covered by the Act, such standards must include minimum requirements
                for handling, housing, feeding, watering, sanitation, ventilation,
                shelter from extreme weather and temperatures, adequate veterinary
                care, and separation by species where necessary.
                 The standards relating to the humane handling, care, treatment, and
                transportation of animals currently covered by the AWA are contained in
                9 CFR part 3, subparts A though F. Subparts A through E contain
                specific standards for dogs and cats, guinea pigs and hamsters,
                rabbits, nonhuman primates, and marine mammals respectively, while
                subpart F sets forth general standards for warmblooded animals not
                otherwise specified in that part. In this document, we are proposing to
                add a new subpart G to contain standards for birds.
                 The proposed standards for birds are divided into three broad
                areas: Facilities and operating standards; animal health and husbandry
                standards; and transportation standards. The standards in these areas
                address requirements under the Act. In the listening sessions held on
                this rulemaking, many commenters asked that we consider standards for
                birds that are flexible enough to ensure their species-specific needs
                are met. Many commenters also stated that, given the vast number of
                bird species, prescriptive standards would generally be impracticable
                and burdensome to the aviculture community. We agree with commenters on
                these points and have developed the proposed standards accordingly. As
                a whole, these standards provide APHIS the means to effectively measure
                compliance and ensure animal welfare, while also affording breeders,
                dealers, exhibitors, and transporters flexibility to implement the
                standards using the expertise and knowledge they have of their
                particular birds. On this point, we invite comments on ways that APHIS
                might assist regulated entities with implementation of these standards,
                whether through documents, guides, training, or other means. The
                standards for proposed Subpart G--Specifications for the Humane
                Handling, Care, Treatment, and Transportation of Birds are discussed
                below by topic.
                [[Page 9893]]
                Facilities and Operating Standards
                Facilities, General
                Facilities, General: Structure; Construction--Proposed Sec. 3.150(a)
                 Housing facilities must be safe and secure not only for birds but
                also for the persons attending to them and to the general public. As we
                noted above, the current regulations in part 3 for animals include
                requirements for housing that consider both animal and human safety.
                Therefore, we are proposing in Sec. 3.150(a) to require that housing
                facilities for birds be designed and constructed so that they are
                structurally and safely sound for the species of bird housed in them.
                We would also require that they be kept in good repair, protect the
                birds from injury, and restrict the entry of other animals. The
                facilities would have to employ security measures that contain all the
                birds securely. Such measures may include safety doors, entry/exit
                doors to the primary enclosure that are double-doored, or other
                equivalent systems designed to prevent escape of the birds. For birds
                that are flight-restricted or cannot fly and are allowed to roam free
                within the housing facility or a portion thereof, we would require that
                the birds have access to safety pens, enclosures, or other areas that
                offer the birds protection during overnight periods and at times when
                their activities are not observed by staff.
                Facilities, General: Condition and Site--Proposed Sec. 3.150(b)
                 Housing facilities and areas used for storing animal food or
                bedding would have to be adequately free of any accumulation of trash,
                waste material, other discarded materials, junk, weeds, and brush. We
                would also require that such areas be kept neat and free of clutter,
                including equipment, furniture, and stored material, except for
                materials actually used and necessary for cleaning the area, and
                fixtures or equipment necessary for proper husbandry practices and
                research needs.
                Facilities, General: Surfaces--Proposed Sec. 3.150(c)
                 The surfaces of housing facilities would have to be constructed in
                a manner and made of materials that allow them to be readily cleaned
                and/or sanitized, or removed and replaced when worn or soiled. Interior
                surfaces and surfaces that come in contact with birds would also have
                to be nontoxic to the bird, free of rust or damage that affects the
                structural integrity of the surface or prevents cleaning, and free of
                jagged edges or sharp points that could injure the birds. This proposed
                standard would allow for thorough cleaning of the primary enclosure to
                prevent bacterial, excrement, or other organic buildup that could be a
                health hazard to the birds. It would also ensure that the birds are
                contained securely and that the surfaces that come in contact with the
                birds are not harmful to them.
                Facilities, General: Water and Electric Power--Proposed Sec. 3.150(d)
                 A reliable source of water and power must be available. Therefore,
                we are proposing that the facility must have reliable electric power
                adequate for heating, cooling, ventilation, and lighting, and for
                carrying out other husbandry requirements in accordance with the
                proposed standards for birds. We also propose that the facility provide
                adequate potable water for the birds' drinking needs and adequate water
                for cleaning and carrying out other husbandry requirements.
                Facilities, General: Storage--Proposed Sec. 3.150(e)
                 Supplies of food, including food supplements, bedding, and
                substrate, would have to be stored in a manner that protects the
                supplies from spoilage, contamination, and vermin infestation. We would
                require that the supplies be stored off the floor and away from the
                walls, to allow cleaning underneath and around the supplies. All food
                would have to be stored at appropriate temperatures and in a manner
                that prevents contamination and deterioration of its nutritive value,
                and food would not be allowed to be used beyond its shelf-life date or
                expiration date listed on the label. All open supplies of food and
                bedding would have to be kept in waterproof containers with tightly
                fitting lids to prevent deterioration and contamination, except for
                live, frozen, or refrigerated food. We would also require that live
                food be maintained in a manner to ensure wholesomeness. We would also
                provide that substances such as cleaning supplies and disinfectants
                that are harmful to birds but required for normal husbandry practices
                may not be stored in food storage and preparation areas but may be
                stored in cabinets in the animal areas, provided that they are stored
                in properly labeled containers that are adequately secured to prevent
                potential harm to the birds. Finally, we would prohibit animal waste
                and dead animals and animal parts not intended for food from being kept
                in food storage or food preparation areas, food freezers, food
                refrigerators, and animal areas.
                Facilities, General: Waste Disposal--Proposed Sec. 3.150(f)
                 Proper waste disposal is essential in maintaining the cleanliness
                and sanitary condition of facilities housing birds and directly affects
                the health and well-being of such animals. Therefore, we are proposing
                to require that housing facility operators provide for regular and
                frequent collection, removal, and disposal of animal and food wastes,
                substrate, dead animals, debris, garbage, water, and any other fluids
                and wastes in a manner that minimizes contamination and disease. We
                would require that trash containers in housing facilities and in food
                storage and food preparation areas be leakproof and have tightly fitted
                lids.
                Facilities, General: Drainage--Proposed Sec. 3.150(g)
                 Proper drainage must be provided in order to maintain cleanliness
                and sanitary conditions. Therefore, we are proposing the following
                standards:
                 Housing facilities would have to be equipped with disposal
                and drainage systems that are constructed and operated so that animal
                wastes and water, except for water located in pools or other aquatic
                areas (e.g., ponds, waterfalls, fountains, and other water features),
                are rapidly eliminated and the animals have the option of remaining
                dry. We would require that any pool or other aquatic area be maintained
                in accordance with the regulations in proposed Sec. 3.157, which are
                discussed below.
                 Disposal and drainage systems would have to minimize
                vermin and pest infestation, insects, odors, and disease hazards.
                 All drains would have to be properly constructed,
                installed, and maintained so that they effectively drain water. If
                closed drainage systems are used, they would have to be equipped with
                traps and prevent the backflow of gases and the backup of sewage. If
                the facility uses sump ponds, settlement ponds, or other similar
                systems for drainage and animal waste disposal, the system would have
                to be located a sufficient distance from the bird area of the housing
                facility to prevent odors, diseases, insects, pests, and vermin
                infestation in the bird area.
                 If drip or constant flow watering devices are used to
                provide water to the animals, excess water would have to be rapidly
                drained out of the animal areas by gutters or pipes so that the animals
                have the option of remaining dry.
                [[Page 9894]]
                Facilities, General: Toilets, Washrooms, and Sinks--Proposed Sec.
                3.150(h)
                 Toilets and washing facilities, such as washrooms, basins, sinks,
                or showers, would have to be provided for and be readily accessible to
                animal caretakers.
                Facilities, Indoor
                Facilities, Indoor: Temperature and Humidity--Proposed Sec. 3.151(a)
                 Maintaining appropriate air temperature and humidity levels and, if
                present, pool or other aquatic area (e.g., ponds, waterfalls,
                fountains, and other water features) temperature is vital to the health
                and well-being of birds. Therefore, we would require that the air
                temperature and humidity levels and, if present, pool or other aquatic
                area temperatures in indoor facilities be sufficiently regulated and
                appropriate to the bird species to protect them against detrimental
                temperature and humidity levels, to provide for their health and well-
                being, and to prevent discomfort or distress, in accordance with
                current professionally accepted standards. Prescribed temperature and
                humidity levels would be part of the written program of veterinary care
                or part of the full-time veterinarian's records.
                Facilities, Indoor: Ventilation--Proposed Sec. 3.151(b)
                 Ventilation is important to ensure that birds are provided adequate
                fresh air for their respiratory needs in both quantity and quality.
                Therefore, we would require that indoor housing facilities be
                sufficiently ventilated at all times when birds are present to provide
                for their health, to prevent their discomfort or distress,
                accumulations of moisture condensation, odors, and levels of ammonia,
                chlorine, and other noxious gases. We would also require that the
                ventilation system minimize any drafts.
                Facilities, Indoor: Lighting--Proposed Sec. 3.151(c)
                 Indoor housing facilities would need to have lighting, by natural
                or artificial means, or both, of appropriate quality, distribution, and
                duration for the bird species. We would require that such lighting be
                sufficient to permit routine inspection and cleaning and be designed to
                protect the birds from excessive illumination that may cause discomfort
                or distress.
                Facilities, Indoor: Indoor Pool and Other Aquatic Areas--Proposed Sec.
                3.151(d)
                 Indoor pools or other aquatic areas (e.g., ponds, waterfalls,
                fountains, and other water features) would have to have sufficient
                vertical air space above the pool or other aquatic area to allow for
                behaviors typical to the species of bird under consideration. Such
                behaviors may include, but are not limited to, diving and swimming.
                Facilities, Outdoor
                Facilities, Outdoor: Acclimation--Proposed Sec. 3.152(a)
                 Birds come from a great variety of climatic conditions. There is
                also a wide range of climatic conditions within the United States.
                Outdoor housing facilities are completely dependent on the local
                environmental conditions. Therefore, we are proposing that birds may
                not be housed in outdoor facilities unless the air humidity and
                temperature ranges they may encounter do not adversely affect their
                health and comfort. This provision would also apply to the temperature
                of pools and other aquatic areas (ponds, waterfalls, fountains, and
                other water features). Further, we would provide that birds may not be
                introduced to an outdoor housing facility until they are acclimated to
                the ambient temperature and humidity and, if applicable, pool or other
                aquatic area temperature range which they will encounter therein.
                Facilities, Outdoor: Shelter From Inclement Weather--Proposed Sec.
                3.152(b)
                 Outdoor housing facilities would have to provide adequate shelter,
                appropriate to the species and physical condition of the birds, for the
                local climatic conditions, in order to protect the birds from any
                adverse weather conditions. We would require that such shelters be
                adequately ventilated in hot weather and have one or more separate
                areas of shade or other effective protection that is large enough to
                contain all the birds at one time and prevent their discomfort from
                direct sunlight, precipitation, or wind. The shelter would have to be
                constructed to provide sufficient space to comfortably hold all of the
                birds at the same time without adverse intraspecific aggression or
                grouping of incompatible birds. For birds that form dominance
                hierarchies and that are maintained in social groupings, we would make
                it explicit that such shelter(s) would have to be constructed so as to
                provide sufficient space to comfortably hold all the birds at the same
                time, including birds that are low in the hierarchy.
                Primary Enclosures
                Primary Enclosures: General Requirements--Proposed Sec. 3.153(a)
                 Primary enclosures would have to be designed and constructed of
                suitable materials so that they are structurally sound. We would also
                require that the primary enclosures be kept in good repair and be
                constructed and maintained so that they:
                 Have no sharp points or edges that could injure the birds;
                 Protect the birds from injury;
                 Contain the birds securely;
                 Restrict other animals from entering the enclosure;
                 Ensure that birds have the option to remain dry and clean;
                 Provide shelter and protection for each bird from climatic
                and environmental conditions that may be detrimental to its health and
                well-being;
                 Provide sufficient shade to comfortably shelter all birds
                housed in the primary enclosure at one time, including low ranking
                birds that are maintained in social groupings that form dominance
                hierarchies;
                 Provide all the birds with easy and convenient access to
                clean food and potable water;
                 Ensure that all surfaces in contact with the birds may be
                readily cleaned and/or sanitized in accordance with proposed Sec.
                3.158 of the regulations, or be replaced when worn or soiled; and
                 Have floors that are constructed in a manner that protects
                the birds' feet and legs from injury. If flooring material is
                suspended, it would have to be sufficiently taut to prevent sagging
                under the birds' weight. If substrate is used in the primary enclosure,
                the substrate would have to be clean and made of a suitably absorbent
                material that is safe and nontoxic to the birds.
                 In addition, we would require that furniture-type objects, such as
                perches and other objects that enrich a bird's environment, be species-
                appropriate and designed, constructed, and maintained so as to prevent
                harm to the birds. If the enclosure houses birds that rest by perching,
                there would have to be perches available that are appropriate to the
                age and species of birds housed therein and a sufficient number of
                perches of appropriate size, shape, strength, texture, and placement to
                comfortably hold all the birds in the primary enclosure at the same
                time, including birds that are ranked low in a dominance hierarchy.
                 Finally, we would require primary enclosures that are adjacent to
                one another or that share a common side with another enclosure to be
                suitably screened from each other or kept at a sufficient distance
                apart in order to prevent injury of the occupants due to predation,
                territorial disputes, or aggression.
                [[Page 9895]]
                Primary Enclosures: Space Requirements--Proposed Sec. 3.153(b)
                 Space requirements for the wide variety of birds that are subject
                to the Act are quite variable. Therefore, the proposed space
                requirements contained in this proposal are performance-based standards
                intended to provide adequate space to ensure the health and well-being
                of the birds. The primary enclosures would have to be constructed and
                maintained to allow each bird to make normal postural and social
                adjustments, such as dust-bathing and foraging, with adequate freedom
                of movement and freedom to escape from aggression by other animals in
                the enclosure according to the program of veterinary care developed,
                documented in writing, and signed by the attending veterinarian. The
                attending veterinarian for a facility, whether full- or part-time,
                would need to document and maintain a record that the space in all
                enclosures housing birds are adequate and allow for normal postural and
                social adjustments. Inadequate space may be indicated by evidence of
                malnutrition, poor condition, debility, stress, or abnormal behavior
                patterns.
                 We would provide three exceptions to this space requirement. First,
                we are proposing that the species-typical postural or social
                adjustments of a bird may be restricted when the attending veterinarian
                determines that allowing the bird to make normal postural and social
                adjustments would be detrimental to its good health and well-being. We
                propose that the species-typical postural or social adjustments of a
                bird may be restricted--for instance, in the case of a bird having
                undergone a medical procedure whose recovery could be adversely
                impacted unless movement is restricted--where the attending
                veterinarian determines that making normal postural and social
                adjustments would be detrimental to the bird's good health and
                recovery. The attending veterinarian would have to document the reason
                and recommended duration for the restriction and make such records
                available for review by an APHIS inspector.
                 Second, we would provide that a bird's normal postural and social
                adjustments may be restricted where the bird is tethered in accordance
                with professionally accepted standards. We would provide that a bird
                may only be tethered if: (1) It is appropriate for the species; (2) it
                will not cause any form of harm to the bird; (3) the bird is maintained
                on a perch appropriate for the species and age of the bird while
                tethered; (4) the bird has sufficient space to fully extend its wings
                without obstruction; and (5) the tether does not entangle the bird.
                 Third, we would provide that, when dealers, exhibitors, and
                research facilities breed or intend to breed their birds, such birds
                would have to be provided with structures and/or materials that meet
                the reproductive needs of the species during the appropriate season or
                time periods. A sufficient number of structures and materials must be
                provided to meet the needs of all breeding birds in an enclosure and to
                minimize aggression.
                 Fourth, we would provide that birds intended for breeding sale, in
                need of medical care, exhibited in traveling exhibits, or traveling for
                other reasons would have to be kept in enclosures that, at minimum,
                meet the specific space, safety, bedding, perch, and physical
                environment (including, but not limited to, temperature, humidity, sun
                and wind exposure) requirements for transport enclosures as specified
                in proposed Sec. 3.162. At all other times, we would require that
                birds be housed in enclosures that meet the space requirements of this
                section.
                Primary Enclosures: Special Space Requirements for Wading and Aquatic
                Birds--Proposed Sec. 3.153(c)
                 Wading and aquatic birds are active on both land and water and
                require access to pools or other aquatic areas (e.g., ponds,
                waterfalls, fountains, and other water features) to ensure their health
                and well-being. Therefore, we are proposing to require that primary
                enclosures housing wading and aquatic birds contain a pool or other
                aquatic area and a dry activity area that allows easy ingress or egress
                of the pool or other aquatic area. We would require that the pool or
                other aquatic area be of sufficient surface area and depth to allow
                each bird to make normal postural and social adjustments, such as
                immersion, bathing, swimming, and foraging, with adequate freedom of
                movement and freedom to escape from aggression demonstrated by other
                birds in the enclosure. Similarly, the dry areas would have to be of
                sufficient size to allow each bird to make normal postural and social
                adjustments with adequate freedom of movement and freedom to escape
                from aggression demonstrated by other birds in the enclosure.
                Inadequate space may be indicated by evidence of malnutrition, poor
                condition, debility, stress, or abnormal behavior patterns.
                Environment Enhancement To Promote Psychological Well-Being--Proposed
                Sec. 3.154
                 As evidenced by first-hand observation and scientific studies, many
                species of birds exhibit a level of intelligence and an ability to
                solve problems approaching that of higher mammals. As the regulations
                in subpart D, Sec. 3.81, require a plan to provide environmental
                enhancement for nonhuman primates that includes social grouping and
                enrichment requirements, we are likewise proposing a set of
                requirements specifically for birds in a proposed Sec. 3.154.
                 Under the proposed requirements, dealers, exhibitors, and research
                facilities would need to develop, document, and follow a species-
                appropriate plan for environment enhancement adequate to promote the
                psychological well-being of birds. The plan, which would be part of the
                required program of veterinary care, would have to be approved by a
                veterinarian and be in accordance with the other regulations proposed
                in Subpart G--Specifications for the Humane Handling, Care, Treatment,
                and Transportation of Birds. The plan would also have to conform with
                currently accepted professional standards.
                 We note that environmental enhancements, while essential to the
                psychological well-being of many birds, do not typically require
                extensive or costly facility modifications. Depending on the species,
                enhancement actions in a plan could include ensuring that birds are
                kept in appropriate social groupings, that they are given opportunities
                to forage, or that they have access to species-appropriate perches and
                chewing materials.
                 The plan for environment enhancement would be made available to
                APHIS upon request, and also, in the case of research facilities, to
                officials of any pertinent funding agency. The plan, at a minimum,
                would need to address social grouping needs, environmental enrichment,
                special considerations for young birds and birds needing to be isolated
                due to aggression or disease, use of restraints, and birds exempted
                from the plan.
                Environment Enhancement To Promote Psychological Well-Being: Social
                Grouping--Proposed Sec. 3.154(a)
                 Under proposed Sec. 3.154(a), the environment enhancement plan
                would need to include specific provisions to address the social needs
                of birds of species known to exist in social groups in nature. Such
                specific provisions would have to be in accordance with currently
                accepted professional standards. Birds that are overly aggressive,
                debilitated, or in need of isolation due to a contagious disease may be
                excepted from social grouping requirements. One or more birds
                [[Page 9896]]
                suspected of contagious diseases may be isolated from healthy animals
                prior to and as directed by the attending veterinarian or as instructed
                in the program of veterinary care. When an entire group or room of
                birds is known to have been or believed to be exposed to an infectious
                agent, the group could be kept intact during the process of diagnosis,
                treatment, and control.
                 We also propose to require that birds may only be housed with other
                animals, including members of their own species, if 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. We would require that bird compatibility be
                determined in accordance with generally accepted professional practices
                and observations by the attending veterinarian during his or her
                regularly scheduled visits to the facility. In addition, we would
                require that individually housed social species of birds are able to
                see and hear birds of their own or compatible species unless determined
                otherwise by the veterinarian.
                Environment Enhancement To Promote Psychological Well-Being:
                Environmental Enrichment--Proposed Sec. 3.154(b)
                 Proposed Sec. 3.154(b) would require that the plan address
                species-specific environmental enrichment for birds. Under this
                requirement, the plan would include enrichment materials or activities
                that would provide the birds with the means to express noninjurious
                species-typical activities. Examples of environmental enrichments could
                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.
                Environment Enhancement To Promote Psychological Well-Being: Special
                Considerations--Proposed Sec. 3.154(c)
                 Proposed paragraph (c) would require that special considerations
                for certain birds be included in the enhancement plan. Such birds,
                determined based on the needs of the individual species and under the
                instructions of the attending veterinarian, include infants and young
                juveniles, birds showing signs of psychological distress through
                behavior or appearance, birds used in research for which an IACUC-
                approved protocol requires restricted activity, and individually housed
                social species of birds that are unable to see and hear birds of their
                own or compatible species.
                Environment Enhancement To Promote Psychological Well-Being: Restraint
                Devices--Proposed Sec. 3.154(d)
                 We would impose restrictions on restraint devices in proposed
                paragraph (d). Birds would not be permitted to be maintained in
                restraint devices unless required for health reasons as determined by
                the attending veterinarian or approved by a research facility. Any
                restraining actions would have to be for the shortest period possible.
                If the bird is to be restrained for more than 12 hours, it must be
                provided the opportunity daily for unrestrained activity for at least 1
                continuous hour during the period of restraint, unless continuous
                restraint is required by the research proposal approved by the IACUC at
                research facilities.
                Environment Enhancement To Promote Psychological Well-Being:
                Exemptions--Proposed Sec. 3.154(e)
                 Proposed Sec. 3.154(e) would provide that the attending
                veterinarian may exempt a bird from participation in the environment
                enhancement plan due to considerations of health or condition and well-
                being. The basis of the exemption would have to be recorded by the
                attending veterinarian for each exempted bird. Unless the exemption is
                based on a permanent condition, we would require a review of the
                exemption by the attending veterinarian every 30 days.
                 For a research facility, the IACUC may exempt an individual bird
                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 IACUC, but not less than annually.
                 Finally, we would also require in paragraph (e) that records of any
                exemptions must be maintained by the dealer, exhibitor, or research
                facility for at least 1 year in accordance with Sec. 2.80 and must be
                made available to APHIS officials, and also to officials of any
                pertinent funding agency upon request.
                Animal Health and Husbandry Standards
                Feeding--Proposed Sec. 3.155
                 The nutritional needs of birds vary greatly. Therefore, we are
                proposing a general feeding standard that is flexible enough to ensure
                the health and well-being of all birds. Specifically, we would require
                that the diet be appropriate for the species, size, age, and condition
                of the bird. The food would have to be wholesome, palatable to the
                birds, and free of contamination. The food would also have to be of
                sufficient quantity and nutritive value to maintain a healthy condition
                and weight range of the bird and to meet its normal daily nutritional
                requirements. We would require that birds be fed at least once a day
                except as directed by the attending veterinarian. If birds are
                maintained in group housing, measures appropriate for the species would
                have to be taken to ensure that all the birds receive a sufficient
                quantity of food. For example, for some flighted birds, such measures
                may include locating multiple food receptacles at different levels in
                the enclosure to ensure that all the birds have access to food
                receptacles and the food contained therein, including birds that are
                ranked low in a dominance hierarchy.
                 Food and, if used, food receptacles would have to be readily
                accessible to all the birds being fed. Food and any food receptacles
                would have to be located so as to minimize any risk of contamination by
                excreta, precipitation (e.g., rain, hail, and snow), and pests. Food
                receptacles and feeding areas would have to be kept clean and sanitized
                in accordance with proposed Sec. 3.158. Used food receptacles would
                have to be cleaned and sanitized before they can be used to provide
                food to birds maintained in a separate enclosure. We would also require
                that measures be taken to ensure there is no molding, deterioration,
                contamination, or caking or undesirable wetting or freezing of food
                within or on food receptacles. Food receptacles would have to be made
                of a durable material that can be easily cleaned and sanitized or
                replaced when worn or soiled. Group-housed birds would have to have
                multiple food receptacles where needed to ensure that all birds have
                access to sufficient feed.
                Watering--Proposed Sec. 3.156
                 Under proposed Sec. 3.156, potable water would have to be provided
                in sufficient quantity to every bird housed at the facility, unless
                restricted by the attending veterinarian. If potable water is not
                continually available to the birds, it would need to be offered to them
                as often as necessary to ensure their health and well-being. In
                addition, water receptacles would have to be kept clean and sanitized
                in accordance with Sec. 3.158 as often as necessary to keep them free
                of contamination. Used water
                [[Page 9897]]
                receptacles must be cleaned and sanitized before they may be used to
                provide water to birds maintained in a separate enclosure. Finally,
                group-housed birds would have to have multiple water receptacles where
                needed to ensure that all birds have access to sufficient water.
                Water Quality--Proposed Sec. 3.157
                 Water quality is important for birds active on both land and water,
                and at least minimum water quality standards need to be maintained for
                the good health and well-being of the animals. Therefore, we are
                proposing that, if the primary enclosure or other areas in which birds
                may enter contain pools or other aquatic areas (e.g., ponds,
                waterfalls, fountains, and other water features), such areas must not
                be detrimental to the health of the birds contained therein.
                Particulate animal and food waste, trash, or debris that enters such
                pools or other aquatic areas would have to be removed as often as
                necessary to maintain the required water quality and minimize health
                hazards to the birds. Pools or other aquatic areas that are equipped
                with drainage systems would have to provide adequate drainage so that
                all of the water contained in such areas may be effectively eliminated
                when necessary to clean the pool or other aquatic area and for other
                purposes while not risking harm to birds. Pools or other aquatic areas
                with standing water, such as some ponds, would have to be aerated and
                have an incoming flow of fresh water or be managed in another manner to
                maintain appropriate water quality in accordance with current
                professionally accepted standards for the bird species in these ponds.
                 When the water is chemically treated, the chemicals would have to
                be added so as not to cause harm, discomfort, or distress to the
                animals. Natural organisms (such as fish, reptiles, amphibians,
                mammals, algae, commensal bacteria, protozoa, coelenterates, or
                mollusks) that do not degrade water quality, prevent proper
                maintenance, or pose a health hazard to the birds would not be
                considered contaminants. Should birds appear to be harmed by water
                quality, appropriate action would have to be taken immediately.
                 Finally, pools or other aquatic areas would have to be salinized
                for birds that require salinized water for their good health and well-
                being in accordance with current professionally accepted standards.
                Cleaning, Sanitization, Housekeeping, and Pest Control
                Cleaning--Proposed Sec. 3.158(a)
                 Proper cleaning of primary enclosures is necessary to prevent the
                accumulation of feces and food waste and to reduce disease hazards,
                pests, insects, and odors. Therefore, we are proposing to require that
                excreta and food waste be removed from primary enclosures and from
                under and around primary enclosures as often as necessary to prevent
                excessive accumulation of feces and food waste, to prevent soiling of
                the birds contained in the primary enclosures, and to reduce disease
                hazards, insects, pests, and odors. When steam or water is used to
                clean primary enclosures, measures would have to be taken to protect
                birds from being harmed, wetted involuntarily, or distressed in the
                process. Standing water, except in pools or other aquatic areas (e.g.,
                ponds, waterfalls, fountains, and other water features), would have to
                be removed from the primary enclosure.
                 Scheduled cleaning may be modified or delayed during breeding, egg-
                sitting, or feeding of chicks for those species of birds that are
                easily disrupted during such behaviors. Scheduled cleaning would have
                to resume when cleaning would no longer disrupt such behaviors. In
                these situations, we would require that a schedule of cleaning be
                documented that includes when breeding season began, when the primary
                enclosure was last cleaned, and when cleaning is expected to resume.
                Such records would have to be available for review by an APHIS
                inspector.
                Sanitization--Proposed Sec. 3.158(b)
                 Proper sanitary practices directly affect the good health and well-
                being of birds. Primary enclosures and food and water receptacles for
                birds would have to be sanitized as often as necessary to prevent
                accumulation of dirt, debris, food waste, excreta, and other disease
                hazards. However, as with cleaning, sanitization may be modified or
                delayed during breeding, egg-sitting, or feeding of chicks for those
                species of birds that are easily disrupted during such behaviors but
                would have to resume when it no longer disrupts such behaviors. In such
                situations, we would require that a schedule of sanitization be
                documented that includes when breeding season began, when the primary
                enclosure was last sanitized, and when sanitization is expected to
                resume. Such records would have to be available for review by an APHIS
                inspector.
                 We would require that the hard surfaces of primary enclosures and
                food and water areas and equipment be sanitized before a new bird may
                be brought into a housing facility or if there is evidence of
                infectious disease among the birds in the housing facility. Finally, we
                would require that primary enclosures using materials that cannot be
                sanitized using conventional methods, such as gravel, sand, grass,
                earth, planted areas, or absorbent bedding, be sanitized by removing
                all contaminated material as necessary or by establishing a natural
                composting and decomposition system that is sufficient to prevent
                wasted food accumulation, odors, disease, pests, insects, and vermin
                infestation.
                Housekeeping for Premises--Proposed Sec. 3.158(c)
                 Good housekeeping practices are essential in minimizing pest risks
                that can occur in animal areas. Premises where housing facilities are
                located, including buildings, surrounding grounds, and exhibit areas,
                would have to be kept clean and in good repair in order to protect the
                birds from injury and disease, to facilitate the husbandry practices
                required in the regulations, and to reduce or eliminate areas where
                rodents and other vertebrate and invertebrate animals harmful to birds
                can live and breed. Premises would also 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 of the premises and pest control, and to protect
                the health and well-being of the birds.
                Pest Control--Proposed Sec. 3.158(d)
                 A pest control program is necessary to promote the health and well-
                being of birds at a facility and to reduce contamination by pests in
                the animal area. Therefore, we are proposing that a safe and effective
                program for the control of insects, ectoparasites, and avian and
                mammalian pests be established and maintained so as to promote the
                health and well-being of the birds and reduce contamination by pests in
                animal areas. Insecticides, chemical agents, or other methods of
                controlling pests that may be harmful to the birds would be prohibited
                in primary enclosures and in other areas or on surfaces with which the
                birds may come in contact, unless their application is consistent with
                manufacturer recommendations or otherwise approved for use and does not
                harm birds.
                Employees--Proposed Sec. 3.159
                 A sufficient number of adequately trained employees or attendants
                would
                [[Page 9898]]
                have to be utilized to maintain the professionally acceptable level of
                husbandry and handling practices set forth in the proposed standards.
                The need for personnel to have the knowledge and skill to perform these
                practices is addressed in the current standards for all other animals
                covered under the AWA regulations. These practices would be conducted
                under the supervision of a bird caretaker who has appropriate
                experience in the husbandry and care of birds that are being managed in
                a given setting.
                Compatibility and Separation--Proposed Sec. 3.160
                 Under this section, we would require that socially dependent birds
                be housed in social groups, unless the attending veterinarian exempts
                an individual bird because of its health or condition, or in
                consideration of its well-being, or specific management needs.
                Veterinary exemption is also permissible where such social grouping is
                not in accordance with a research proposal and the proposal has been
                approved by the research facility IACUC. Birds may only be housed with
                other animals, including members of their own species, if 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 would have to be determined in
                accordance with generally accepted professional practices, and by
                actual observation, to ensure that the birds are, in fact, compatible.
                Finally, we would require that birds that have or are suspected of
                having a contagious disease or communicable condition must be separated
                from healthy animals that are susceptible to the disease as directed by
                the attending veterinarian. These proposed requirements are necessary
                to allow birds to peacefully coexist in primary enclosures and to
                protect their physical health and welfare.
                Transportation Standards
                 The proposed transportation standards contained in Sec. Sec. 3.161
                through 3.168 have been written to provide birds with the same general
                protection and care as that provided for other species of animals
                covered by the AWA. Some birds, however, do have special transportation
                needs. For example, while most birds require space to make normal
                postural adjustments during transport, there are some birds that may
                injure themselves if their movements are not restricted. Therefore, the
                intention of the proposed transportation standards for birds is to
                account for these animals' unique needs while still providing them with
                equivalent protection and care as other covered animals.
                 We note that many foreign air carriers are members of the
                International Air Transport Association (IATA) and may already comply
                with most of the physical requirements contained in this proposed rule.
                The IATA regulations generally align with the intent of the AWA in
                ensuring the humane and safe transportation of animals but diverge from
                the proposed regulations and standards in certain areas, such as
                recordkeeping requirements. Where such divergences exist, the AWA
                regulations and standards would need to be followed.
                Consignments to Carriers and Intermediate Handlers--Proposed Sec.
                3.161
                 Regulated entities, such as dealers and exhibitors, may elect to
                consign their bird to a carrier or intermediate handler in connection
                with the animal's transportation in commerce. To ensure the health and
                well-being of birds during such transport in commerce, we are proposing
                to establish several conditions that must be met before carriers and
                intermediate handlers can accept a bird for transport. Specifically, we
                would provide that carriers and intermediate handlers must not accept a
                live bird 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, we would provide that a carrier or
                intermediate handler may agree with anyone consigning a bird to extend
                this time by up to 2 hours if specific prior scheduling of the animal
                shipment to a destination has been made, provided that the extension is
                not detrimental to the health and well-being of the bird as determined
                by the consignor.
                 Carriers and intermediate handlers would not be allowed to accept a
                live bird for transport in commerce unless they are provided with the
                name, address, and telephone number of the consignee. Carriers and
                intermediate handlers would also not be allowed to accept a live bird
                for transport in commerce unless the consignor certifies in writing to
                the carrier or intermediate handler that the bird was offered food and
                water during the 4 hours prior to delivery to the carrier or
                intermediate handler. Carriers and intermediate handlers must not
                accept unweaned birds for transport unless transport instructions are
                specified as a part of the program of veterinary care.
                 Certification for shipment of birds would have to be securely
                attached to the outside of the primary enclosure in a manner that makes
                it easy to notice and read. The certification would have to include the
                following information for each live bird: The consignor's name,
                address, email address, and telephone number; the number of birds; the
                species or common names of the birds; the time and date the bird was
                last fed and watered; and the specific instructions for the next
                feeding(s) and watering(s) for a 24-hour period; and the consignor's
                signature and the date and time the certification was signed.
                 Carriers and intermediate handlers would not be allowed to accept a
                live bird for transport in commerce in a primary enclosure unless the
                enclosure meets the requirements of proposed Sec. 3.162. A carrier or
                intermediate handler would be prohibited from accepting a live bird for
                transport if the primary enclosure is defective or damaged and cannot
                be expected to contain the bird safely and comfortably.
                 Carriers and intermediate handlers would also not be allowed to
                accept a live bird for transport in commerce unless their animal
                holding area can maintain climatic and environmental conditions in
                accordance with the requirements of proposed Sec. 3.168. (As discussed
                below, Sec. 3.168 sets out climatic and environmental conditions for
                the transportation of animals and requires, among other things, that
                such transportation must be done in a manner that does not cause
                overheating, excessive cooling, or adverse environmental conditions
                that could cause discomfort or stress.)
                 Following the arrival of any live birds at the bird holding area of
                the terminal cargo facility, we would require that carriers and
                intermediate handlers attempt to notify the consignee at least once in
                every 6-hour period. The time, date, and method of each attempted
                notification and the final notification to the consignee and the name
                of the person notifying the consignee would have to be recorded on the
                copy of the shipping document retained by the carrier or intermediate
                handler and on a copy of the shipping document accompanying the bird
                shipment.
                Primary Enclosures Used To Transport Live Birds
                 Under proposed Sec. 3.162, no person subject to the AWA
                regulations would be allowed to transport or deliver for transport in
                commerce a bird unless the following requirements are met:
                [[Page 9899]]
                Primary Enclosures: Construction of Primary Enclosures--Proposed Sec.
                3.162(a)
                 Birds would have to be contained in a primary enclosure such as a
                compartment, transport cage, carton, or crate, except as provided in
                proposed paragraph (e) in Sec. 3.162. Primary enclosures used to
                transport birds would have to be constructed so that:
                 The primary enclosure is strong enough to contain the
                birds securely and comfortably and to withstand the rigors of
                transportation normally encountered during transportation;
                 The interior of the enclosure has no sharp points or edges
                and no protrusions that could injure the birds contained therein;
                 The bird 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 other
                persons or to other animals nearby;
                 The birds can be easily and quickly removed from the
                enclosure in an emergency;
                 Unless the enclosure is permanently affixed to the
                conveyance, adequate handholds or other devices such as handles are
                provided on its exterior, and enable the enclosure to be lifted without
                tilting it, and ensure that anyone handling the enclosure will not be
                in contact with the bird contained inside;
                 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
                centimeters) high, and with arrows or other markings to indicate the
                correct upright position of the primary enclosure;
                 Any material, treatment, paint, preservative, or other
                chemical used in or on the enclosure is nontoxic to the bird and not
                harmful to its health or well-being;
                 A bird that has a fractious or stress-prone disposition
                must be contained in an enclosure that is padded on the top and sides
                and has protective substrate on the bottom to prevent injury to the
                bird during transport;
                 Proper ventilation must be provided to the birds in
                accordance with proposed paragraph (b) in Sec. 3.162;
                 The primary enclosure has a solid, leak-proof bottom or a
                removable, leak-proof collection tray. If a mesh or other nonsolid
                floor is used in the enclosure, it would have to be designed and
                constructed so that the bird cannot put any part of its body through
                the holes in the mesh or the openings in the nonsolid floor; and
                 If substrate (newspaper, towels, litter, straw, etc.) is
                used in the primary enclosure, the substrate would have to be clean and
                made of a suitably absorbent material that is safe and nontoxic to the
                birds.
                 These proposed standards would consider the need for birds to be
                supported and protected from injury during transportation.
                Primary Enclosures: Ventilation--Proposed Sec. 3.162(b)
                 Ventilation is very important to ensure that birds are provided
                adequate fresh air for their respiratory needs. Therefore, unless the
                primary enclosure is permanently affixed to the conveyance, there would
                have to be ventilation openings located on two vertical walls of the
                primary enclosure that are at least 16 percent of the surface area of
                each such wall or ventilation openings located on all four walls of the
                primary enclosure that are at least 8 percent of the total surface area
                of each such wall. At least one-third of the total minimum area
                required for ventilation of the primary enclosure would have to be
                located on the lower one-half of the primary enclosure, and at least
                one-third of the total minimum area required for ventilation of the
                primary enclosure must be located on the upper one-half of the primary
                enclosure. This requirement would be modeled on our existing
                ventilation requirements for rabbits, which we have found to provide
                sufficient ventilation for the purposes of humane care.
                 Unless the primary enclosure is permanently affixed to the
                conveyance, we would require that projecting rims or other devices be
                on the exterior of the outside walls with any ventilation openings to
                prevent obstruction of the ventilation openings. The projecting rims or
                similar devices would have to 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 adjacent to, unless 90 percent
                or greater of the surface area of the enclosure wall is open (e.g.,
                cage mesh). We would require that any visually obscuring mesh used to
                provide security for the bird in the enclosure not interfere with
                proper ventilation. Again, this requirement is modeled on an existing
                requirement, found in paragraph (a)(5) of Sec. 3.61 of the
                regulations, that we have found to be effective.
                 If a primary enclosure is permanently affixed within the animal
                cargo space of the primary conveyance so that the front opening is the
                only source of ventilation for such primary enclosure, the front
                opening would have to open directly to the outside or to an
                unobstructed aisle or passageway within the primary conveyance. Such
                front ventilation opening would have to be at least 90 percent of the
                total surface area of the front wall of the primary enclosure and
                covered with bars, wire mesh, or smooth expanded metal.
                Primary Enclosures: Cleaning of Primary Enclosures--Proposed Sec.
                3.162(c)
                 Primary enclosures used to hold or transport birds in commerce
                would have to be cleaned and sanitized before each use in accordance
                with proposed Sec. 3.158 by the dealer, research facility, exhibitor,
                or operator of an auction sale.
                Primary Enclosures: Compatibility--Proposed Sec. 3.162(d)
                 Live birds transported in the same primary enclosure would have to
                be of the same species or compatible species and maintained in
                compatible groups. Socially dependent birds would have to be able to
                see and hear each other.
                Primary Enclosures: Space and Placement--Proposed Sec. 3.162(e)
                 We would require that primary enclosures used to transport live
                birds be large enough to ensure that each bird contained therein has
                sufficient space to turn about freely and to make normal postural
                adjustments, except that certain species may be restricted in their
                movements according to professionally accepted standards when such
                freedom of movement would constitute a danger to the birds, their
                handlers, or other persons.
                Primary Enclosures: Accompanying Documents and Records--Proposed Sec.
                3.162(f)
                 Documents accompanying the shipment of birds would have to be
                attached in an easily accessible manner to the outside of a primary
                enclosure which is part of such shipment and could not be allowed to
                obstruct ventilation openings.
                Primary Conveyances (Motor Vehicle, Rail, Air, and Marine)--Proposed
                Sec. 3.163
                 We would require that the animal cargo space of primary conveyances
                used in transporting live birds 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 minimizes the entry of exhaust from the primary conveyance
                during transportation. The animal cargo space would have to have a
                supply of
                [[Page 9900]]
                air that is sufficient for the normal breathing of all the animals
                being transported in it, and each primary enclosure containing birds
                would have to be positioned in the animal cargo space in a manner that
                provides protection from the elements and that allows each bird enough
                air for normal breathing. During transportation, we would require that
                the climatic conditions in the animal cargo area shall be maintained in
                accordance with the requirements of proposed Sec. 3.168.
                 We would require that primary enclosures be positioned in the
                primary conveyance in a manner that allows the birds to be quickly and
                easily removed from the primary conveyance in an emergency. We would
                also require that the interior of the bird cargo space be kept clean.
                Finally, we would provide that live birds may not be transported with
                any material, substance (e.g., dry ice), or device which may reasonably
                be expected to be injurious to the health and well-being of the birds
                unless proper precaution is taken to prevent such injury.
                Food and Water Requirements--Proposed Sec. 3.164
                 All weaned birds would have to be offered food and potable water
                within 4 hours before being transported in commerce. We would also
                require all birds transported in their own primary conveyance be
                provided potable water or other source of hydration to at least every
                12 hours after such transportation is initiated, except for birds
                which, according to professionally accepted standards, require watering
                or feeding more or less frequently.
                 All weaned birds would have to be fed at least once in each 24-hour
                period, except as directed by veterinary treatment, normal fasts, or
                other professionally accepted standards. Birds that require feeding
                more or less frequently would have to be fed accordingly.
                 A sufficient quantity of food and water or other source of
                hydration would have to accompany the bird to meet its needs for food
                and water during period of transport, except as directed by veterinary
                treatment and other professionally accepted standards. Any dealer,
                research facility, exhibitor, or operator of an auction sale offering
                any live bird to any carrier or intermediate handler for transportation
                in commerce would have to securely affix to the outside of the primary
                enclosure used for transporting the bird written instructions for the
                in-transit food and water requirements of the bird contained in the
                enclosure. We would prohibit carriers and intermediate handlers from
                accepting any live birds for transportation in commerce unless written
                instructions concerning the food and water requirements of the bird
                being transported are affixed to the outside of its primary enclosure.
                The instructions would have to be attached in accordance with proposed
                Sec. 3.162(f) and in a manner that makes them easy to notice and read.
                Care in Transit--Proposed Sec. 3.165
                Care in Transit: Surface Transportation (Ground and Water)--Proposed
                Sec. 3.165(a)
                 During surface transportation, we would require in Sec. 3.165(a)
                that any person subject to the AWA regulations transporting birds in
                commerce must ensure that the operator of the conveyance, or a person
                accompanying the operator, visually observes the birds as frequently as
                circumstances may allow, but not less than once every 4 hours, to
                ensure that the birds are receiving sufficient air for normal
                breathing, that climatic and environmental conditions are being
                maintained in accordance with the requirements in proposed Sec. 3.168,
                and that all other applicable standards are met. The regulated person
                would have to ensure that the operator or person accompanying the
                operator determines whether any of the birds are in physical distress
                and obtains any veterinary care needed for the birds as soon as
                possible.
                Care in Transit: Air Transportation--Proposed Sec. 3.165(b)
                 Similarly, when transported by air, we would require in Sec.
                3.165(b) that live birds be visually observed by the carrier as
                frequently as circumstances may allow, but not less than once every 4
                hours, if the animal cargo space is accessible during flight. If the
                animal cargo space is not accessible during flight, the carrier would
                have to visually observe the live birds whenever they are loaded and
                unloaded and whenever the bird cargo space is otherwise accessible to
                ensure that they are receiving sufficient air for normal breathing,
                that climatic and environmental conditions are being maintained in
                accordance with the requirements in proposed Sec. 3.168, and that all
                other applicable standards are met. The carrier would have to determine
                whether any such live birds are in physical distress and arrange for
                any needed veterinary care as soon as possible.
                Care in Transit: Prohibition on the Transport of Ill, Injured, or
                Distressed Birds--Proposed Sec. 3.165(c)
                 Finally, in proposed Sec. 3.165(c), we would prohibit any person
                subject to the AWA regulations from transporting in commerce birds that
                are ill, injured, or in physical distress, except to receive veterinary
                care for the condition.
                Terminal Facilities--Proposed Sec. 3.166
                Terminal Facilities: Placement--Proposed Sec. 3.166(a)
                 We would require that carriers and intermediate handlers not
                commingle shipments of live birds with other animals or inanimate cargo
                in animal holding areas of terminal facilities. This proposed standard
                would help to ensure that the live birds are accessible and that the
                following standards concerning cleaning, sanitization, and pest control
                in terminal facilities are met.
                Terminal Facilities: Cleaning, Sanitization, and Pest Control--Proposed
                Sec. 3.166(b)
                 We are proposing to require that all animal holding areas of
                terminal facilities be cleaned and sanitized in a manner prescribed in
                proposed Sec. 3.158, as often as necessary to prevent an accumulation
                of debris or excreta and to minimize vermin infestation and disease
                hazards. Terminal facilities would have to follow an effective program
                in all animal holding areas for the control of insects, ectoparasites,
                and other pests.
                Terminal Facilities: Ventilation--Proposed Sec. 3.166(c)
                 We would require that ventilation be provided in any animal holding
                area in a terminal facility containing birds, by means of windows,
                doors, vents, or air conditioning. The air would have to be circulated
                by fans, blowers, or air conditioning so as to minimize drafts, odors,
                and moisture condensation.
                Terminal Facilities: Climactic and Environmental Conditions--Proposed
                Sec. 3.166(d)
                 We would require that the climatic and environmental conditions in
                animal holding areas be maintained in accordance with the proposed
                performance standard in Sec. 3.168.
                Handling--Proposed Sec. 3.167
                 We are proposing to require that any person subject to the AWA
                regulations who moves (including loading and unloading) live birds
                within, to, or from the animal holding area of a terminal facility or a
                primary conveyance does so as quickly and efficiently as possible and
                provides sufficient shade to protect the birds from the direct rays of
                the sun and sufficient protection to allow the birds the option to
                remain dry during rain, snow, and other precipitation. We would also
                require that climatic and
                [[Page 9901]]
                environmental conditions be maintained in accordance with the proposed
                requirements in Sec. 3.168.
                 We would require that any person handling a primary enclosure
                containing a live bird uses care and avoids causing physical harm or
                distress to the bird. We would not allow a primary enclosure containing
                a live bird to be tossed, dropped, or tilted, or stacked in a manner
                which may reasonably be expected to result in its falling.
                Climatic and Environmental Conditions During Transportation--Proposed
                Sec. 3.168
                 Finally, we are proposing to require that the transportation of all
                live birds be done in a manner that does not cause overheating,
                excessive cooling, or adverse environmental conditions that could cause
                discomfort or stress. When climatic or environmental conditions,
                including temperature, humidity, exposure, ventilation, pressurization,
                time, or other environmental conditions, or any combination thereof,
                present a threat to the health or well-being of a live bird,
                appropriate measures would have to be taken immediately to alleviate
                the impact of those conditions. The different climatic and
                environmental factors prevailing during a journey would have to be
                considered when arranging for the transportation of and when
                transporting live birds. Considerations may include, but would not be
                limited to:
                 The temperature and humidity level of any enclosure used
                during transportation of live birds would have to be controlled by
                adequate ventilation or any other means necessary;
                 Appropriate care would have to be taken to ensure that
                live birds are not subjected to prolonged drafts detrimental to their
                health or well-being;
                 Appropriate care would have to be taken to ensure that
                live birds are not exposed to direct heat or cold if detrimental to
                their health or well-being, such as placement in direct sunlight or
                near a hot radiator; and
                 During prolonged air transit stops in local climatic
                conditions that could produce excessive heat for live birds held in
                aircraft compartments, the aircraft doors would have to be opened and,
                if necessary, ground equipment must be used to control the condition of
                the air within compartments containing live birds.
                 We would also provide examples of factors to consider when meeting
                these requirements. Specifically, we would state that, in order to
                determine what climatic and environmental conditions are appropriate
                for a live bird, factors such as, but not limited to, the bird's age,
                species, physiological state, last feeding and watering, and
                acclimation would have to be considered when such information is
                available.
                 Finally, for birds that are not able to maintain a constant body
                temperature at ambient temperatures, we would require their
                transportation in a brooder or other temperature-regulating unit that
                effectively assists the bird in maintaining a constant body temperature
                during transport. Signs that a bird is able to independently maintain a
                constant body temperature include the bird's ability to open its eyes
                fully and sit erect and the appearance of full or partial feathering on
                the body of the bird.
                 We would require that the temperature of the brooder or other
                temperature-regulating unit would have to be monitored during
                transportation and appropriate for the live bird. Written instructions
                for the temperature requirements of birds transported in brooders or
                other temperature-regulating units would have to be securely affixed to
                the outside of the primary enclosure used for transporting the bird.
                The instructions would have to be attached in accordance with proposed
                Sec. 3.162(f) in a manner that makes them easily noticed and read.
                 We believe the standards we propose in this document would ensure
                the humane handling, care, treatment, and transportation of birds
                covered by the AWA.
                Executive Orders 12866 and 13563 and Regulatory Flexibility Act
                 This proposed rule has been determined to be significant for the
                purposes of Executive Order 12866 and, therefore, has been reviewed by
                the Office of Management and Budget.
                 We have prepared an economic analysis for this rule. The economic
                analysis provides a cost-benefit analysis, as required by Executive
                Orders 12866 and 13563, which direct agencies to assess all costs and
                benefits of available regulatory alternatives and, if regulation is
                necessary, to select regulatory approaches that maximize net benefits
                (including potential economic, environmental, public health and safety
                effects, and equity). Executive Order 13563 emphasizes the importance
                of quantifying both costs and benefits, of reducing costs, of
                harmonizing rules, and of promoting flexibility. The economic analysis
                also provides an initial regulatory flexibility analysis that examines
                the potential economic effects of this rule on small entities, as
                required by the Regulatory Flexibility Act. The economic analysis is
                summarized below. Copies of the full analysis are available by
                contacting the person listed under FOR FURTHER INFORMATION CONTACT or
                on the Regulations.gov website (see ADDRESSES above for instructions
                for accessing Regulations.gov).
                 Based on the information we have, there is no reason to conclude
                that adoption of this proposed rule would result in any significant
                economic effect on a substantial number of small entities. However, we
                do not currently have all of the data necessary for a comprehensive
                analysis of the effects of this proposed rule on small entities.
                Therefore, we are inviting comments on potential effects. In
                particular, we are interested in determining the number and kind of
                small entities that may incur benefits or costs from the implementation
                of this proposed rule.
                 We are proposing to establish new regulations and standards and
                amend existing regulations governing the humane handling, care,
                treatment, and transportation of birds, other than birds bred for use
                in research, covered under the Animal Welfare Act. This action would
                ensure the humane handling, care, treatment, and transportation of
                birds not bred for use in research covered under the Act. The benefit
                of this rule would be improved animal welfare because certain birds
                would be brought under the protection of the AWA. The proposed rule
                would help ensure the humane handling and care of birds and help ensure
                that such birds are monitored for their health and humane treatment.
                 The proposed rule would affect U.S. facilities that handle or
                maintain birds not bred for use in research that are sold as pets at
                the wholesale level or at retail if not face-to face, or transported in
                commerce, or used for exhibition, research, teaching, testing, or
                experimentation purposes. Facilities affected would include research
                facilities that use wild-caught birds, breeders and distributors of
                birds, and exhibitors of birds, as well as carriers and intermediate
                handlers of birds.\12\
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                 \12\ Only those research facilities that use wild-caught birds
                for research, testing, teaching, or experimentation, including
                activities such as investigations into animal propagation and
                wildlife ecology, would be subject to the provisions of this
                proposed rule. Facilities using birds bred for use in research would
                not be subject to this rule.
                ---------------------------------------------------------------------------
                 We note that under the current AWA regulations, several licensing
                exemptions exist that would apply to persons possessing and using birds
                who are not otherwise required to obtain a license. Retail pet stores,
                as defined in the regulations and requiring the seller,
                [[Page 9902]]
                buyer, and the animal available for sale be physically present, are
                exempt from the licensing requirements. Therefore, under this proposed
                rule, bird breeders who sell pet birds strictly under the conditions of
                the definition would not be affected. In addition, the current
                regulations provide an exemption for any person who sells or negotiates
                the sale or purchase of any animal except wild or exotic animals, dogs,
                or cats, and who derives no more than $500 gross income from the sale
                of such animals during any calendar year and is not otherwise required
                to obtain a license. Exemptions are also provided for any person who
                maintains four or fewer breeding females and sells only the offspring
                for pets or exhibition; any person who arranges for transportation or
                transports animals solely for the purpose of breeding, exhibiting in
                purebred shows, boarding (not in association with commercial
                transportation), grooming, or medical treatment, and is not otherwise
                required to obtain a license; any person who buys, sells, transports,
                or negotiates the sale, purchase, or transportation of any animals used
                only for the purposes of food or fiber; any person who maintains eight
                or fewer animals for exhibition; and any person who buys animals solely
                for his or her own use or enjoyment and who does not sell or exhibit
                animals. Under this proposal, these exemptions to licensing would apply
                to bird breeders and bird exhibitors as well.
                 Newly regulated entities would be subject to licensing, animal
                identification, and recordkeeping requirements, as well as standards
                for facilities and operations, animal health and husbandry, and
                transportation under this proposed rule. Licensing costs would be
                incurred by all new licensees. Other costs would depend on the manner
                and extent to which entities are not currently complying with the basic
                standards under the AWA. Some of these costs would be one-time costs in
                the first year, such as providing adequate shelter; others would recur
                yearly, such as providing adequate veterinary care.
                 A great deal of uncertainty surrounds the number of facilities that
                would be affected by this proposed rule. Uncertainty also surrounds the
                number of those facilities that would need to make structural or
                operational changes, as well as the extent of such changes. We are
                seeking public input on those numbers and request any data support for
                those comments. For the purposes of this analysis, we have estimated
                that there could be as many as 5,625 new licensees--1,625 newly
                regulated breeders and distributors and 4,000 newly regulated
                exhibitors, and as many as 350 new registrants--250 newly regulated
                research facilities and 100 newly regulated carriers and intermediate
                handlers. For those new licensees, total new licensing costs could be
                about $675,000, or about $225,000 annually. We have estimated that the
                total annualized cost of the recordkeeping and other information
                collection requirements to be about $4.5 million. If all newly
                regulated licensees and registrants must develop new contingency
                planning costs, the total cost could be from about $388,000 to $1.4
                million. If all newly regulated dealers and research facilities must
                develop a new written plan of veterinary care, the total new cost could
                be about $881,000. Together, annually these costs range from about $3.3
                million to $7 million. To the extent that facilities are already
                keeping records, have already done contingency planning, and have
                already developed a plan of veterinary care for their birds, these
                costs could be overestimated.
                 For example, both the 2011 Guide for Care of Laboratory Animals and
                the 2010 Guide for the Care of Agricultural Animals in Research (``the
                Guide'') and the 2010 Guide for the Care of Agricultural Animals in
                Research and Teaching (``the Ag-Guide'') require contingency planning
                and emergency preparedness. Research facilities receiving funding from
                the U.S. Public Health Service (PHS) are required to follow standards
                of care set forth in the Guide. PHS-funded research facilities that
                utilize farm animals for biomedical research must follow either the
                Guide or the Ag-Guide. Research facilities may voluntarily acquire
                accreditation by the Association for Assessment and Accreditation of
                Laboratory Animal Care International (AAALAC). AAALAC uses the Guide as
                the standard when assessing animal care and use programs in the United
                States. We are seeking comments from the public on the accuracy of
                these costs and request any data support for those comments.
                 In addition to those requirements, newly regulated entities would
                also need to meet regulatory standards for bird identification,
                performance standards for facilities and operations, health and
                husbandry, and transportation. However, as acknowledged by a wide
                spectrum of commenters in listening sessions and during previous APHIS
                actions, bird dealers and exhibitors are often complying with
                professionally accepted standards to protect avian health and prevent
                discomfort and thus maintain their facilities well above the minimum
                standards of this proposed rule. Many of the proposed regulations are
                performance based, rather than having specific engineering standards.
                Therefore, a number of newly regulated entities would not need to make
                significant structural and/or other operational changes in order to
                comply with the standards in this proposed rule. Neither the number of
                entities that would need to make changes nor the extent of those
                changes is known. Therefore, the overall cost of structural and
                operational changes that would be incurred due to this rule is also
                unknown. However, commenters have identified potential costs that could
                have an impact on regulated activities with birds and the general
                potential magnitude of those costs are discussed. In addition, APHIS
                estimates that the public outreach, guidance, and training would cost
                about $726,000.
                 Table A--Potential Cost Categories for Licensees Associated With the
                 Rule
                 [2021 Dollars]
                ------------------------------------------------------------------------
                 Activity Certain potential costs
                ------------------------------------------------------------------------
                Licensing......................... $120/3 years.
                Recordkeeping and Other 20 hours annually; $720/respondent.
                 Information Collection.
                Contingency Planning.............. 1 to 2 hours preparation, and 1 hour
                 training; $65 to $226/entity.
                Plan of Veterinary Care........... $150 per facility, new; $50 per
                 facility for an update.
                ------------------------------------------------------------------------
                 Other Structural or Operational Changes
                ------------------------------------------------------------------------
                Bird identification............... Leg or wing band $0.03-$0.50/each;
                 Microchip $4-$15/each; Microchip
                 reader $60-$375/facility; Labor for
                 banding or microchipping $28-$57;
                 Primary enclosure label www.reginfo.gov/public/do/PRAMain. Find this particular information
                collection by selecting ``Currently under 60-day Review--Open for
                Public Comments'' or by using the search function. Please send a copy
                of your comments to: (1) Docket No. APHIS-2020-0068, Regulatory
                Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road
                Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer, OCIO,
                USDA, Room 404-W, 14th Street and Independence Avenue SW, Washington,
                DC 20250.
                 Administering the AWA requires the use of several information
                collection activities. The increase in respondents resulting from this
                proposed rule would result in a corresponding increase in burden for
                activities currently approved under 0579-0036. In addition to
                recordkeeping, they include online tools for licensing or registration
                packets; applications for new license or registration, and updates;
                filing of a debt collection form and payment of licensing fees; written
                requests for correction of renewal applications; request for appeals or
                hearings; requests for pre-licensing inspections;
                [[Page 9904]]
                inspections by licensed veterinarians; written programs of veterinary
                care for research facilities, exhibitors, or dealers; annual reports of
                research facilities; health certificates for transport; requests for
                variance; written guarantees; submission of itineraries of exhibition;
                complaint submissions; access and inspection of records and property;
                and creating instituted animal care and use committees.
                 The proposed changes to the regulations would also result in the
                creation of new reportable activities. These activities and any
                additional ones announced in the final rule resulting from public
                comment will be merged into 0579-0036 in the future after OMB approval.
                In addition to recordkeeping, information collected includes, but is
                not limited to, dealers and exhibitors identifying their confined birds
                using either an enclosure label, leg or wing bands, or transponders.
                They and research facilities will also be required to develop and
                document a species-appropriate plan for environment enhancement
                adequate to promote the psychological well-being of birds. Facilities
                maintaining enclosed birds will be required to create and document
                schedules of enclosure cleaning and sanitizing. Consignors will be
                required to provide carriers and intermediate handlers certification in
                writing that transported birds were offered food and water, and
                information about the sender.
                 These information collection activity requirements provide APHIS
                with the data necessary for the review and evaluation of program
                compliance by regulated facilities, and they provide a workable
                enforcement system to carry out the requirements of the AWA and the
                intent of Congress.
                 APHIS expects to solicit feedback from a variety of respondents
                affected by this proposed rule. They might request and submit licensure
                or registration packets or other documentation, and include private
                hobbyists; breeders and other for-profit businesses and farms; not-for-
                profit institutions such as foundations, refuges, zoos, rehabilitation
                facilities, as well as educational institutions; and State, local, or
                Tribal authorities partnering with USDA to enforce these regulations.
                For wage calculations reported in the information collection request,
                APHIS used the Bureau of Labor Statistics' Occupational Employment and
                Wage Statistics to estimate wages, specifically those for government
                animal health officials, ranchers (SOCC 11-9013), caretakers (SOCC 39-
                2021), transporters (SOCC 53-7199), and individuals (SOCC 00-0000).
                More information can be found in the information collection request
                supporting statement.
                 We are soliciting comments from the public concerning our proposed
                information collection and recordkeeping requirements. These comments
                will help us:
                 (1) Evaluate whether the proposed information collection is
                necessary for the proper performance of our agency's functions,
                including whether the information will have practical utility;
                 (2) Evaluate the accuracy of our estimate of the burden of the
                proposed information collection, including the validity of the
                methodology and assumptions used;
                 (3) Enhance the quality, utility, and clarity of the information to
                be collected; and
                 (4) Minimize the burden of the information collection on those who
                are to respond (such as through the use of appropriate automated,
                electronic, mechanical, or other technological collection techniques or
                other forms of information technology; e.g., permitting electronic
                submission of responses).
                 Respondents: Individuals or households; businesses or other for-
                profit entities; not-for-profit institutions; farms; and State, local,
                and Tribal governments.
                 Estimated annual number of respondents: 6,268.
                 Estimated annual number of responses per respondent: 24.
                 Estimated annual number of responses: 150,685.
                 Estimated total annual burden on respondents: 128,298 hours. (Due
                to averaging, the total annual burden hours may not equal the product
                of the annual number of responses multiplied by the reporting burden
                per response.)
                 A copy of the information collection may be viewed on the
                Regulations.gov website or in our reading room. (A link to
                Regulations.gov and information on the location and hours of the
                reading room are provided under the heading ADDRESSES at the beginning
                of this proposed rule.) Information about the information collection
                process may be obtained from Mr. Joseph Moxey, APHIS' Paperwork
                Reduction Act Coordinator, at (301) 851-2483. APHIS will respond to any
                information collection-related comments in the final rule. All comments
                will also become a matter of public record.
                E-Government Act Compliance
                 The Animal and Plant Health Inspection Service is committed to
                compliance with the E-Government Act to promote the use of the internet
                and other information technologies, to provide increased opportunities
                for citizen access to Government information and services, and for
                other purposes. APHIS estimates that 10 percent of the total responses
                can be processed electronically. Most of the activities that require
                forms also require original signatures or the completed forms must
                accompany the animals they were prepared for; processing them
                electronically is not feasible. APHIS is working towards making
                required forms available as fillable PDF format. Certification,
                accreditation, registration, permits, and other licensing activities
                and processes currently can be uploaded into DocuSign or eFile
                information systems, or emailed. Respondents are free to maintain
                required records as best suited for their organization. Details about
                specific forms for reportable activities can be found in the
                information collection request supporting statement.
                 For assistance with E-Government Act compliance related to this
                proposed rule, please contact Mr. Joseph Moxey, APHIS' Paperwork
                Reduction Act Coordinator, at (301) 851-2483, or the person listed
                under FOR FURTHER INFORMATION CONTACT.
                List of Subjects
                9 CFR Parts 1 and 2
                 Animal welfare, Pets, Reporting and recordkeeping requirements,
                Research.
                9 CFR Part 3
                 Animal welfare, Marine mammals, Pets, Reporting and recordkeeping
                requirements, Research, Transportation.
                 Accordingly, we propose to amend 9 CFR parts 1, 2, and 3 as
                follows:
                PART 1--DEFINITION OF TERMS
                0
                1. The authority citation for part 1 continues to read as follows:
                 Authority: 7 U.S.C. 2131-2159; 7 CFR 2.22, 2.80, and 371.7.
                0
                2. Section 1.1 is amended as follows:
                0
                a. By adding, in alphabetical order, definitions for ``Bird'' and
                ``Bred for use in research'';
                0
                b. By revising the definitions of ``Carrier'', ``Exhibitor'', ``Farm
                animal'', ``Intermediate handler'', and ``Pet animal'';
                0
                c. By adding, in alphabetical order, a definition for ``Poultry''; and
                0
                d. By revising the definitions of ``Retail pet store'' and ``Weaned''.
                 The additions and revisions read as follows:
                Sec. 1.1 Definitions.
                * * * * *
                 Bird means any member of the class Aves (excluding eggs).
                [[Page 9905]]
                 Bred for use in research means an animal that is bred in captivity
                and is being used or is intended for use for research, teaching,
                testing, or experimentation purposes.
                * * * * *
                 Carrier means the operator of any airline, railroad, motor carrier,
                shipping line, or other enterprise which is engaged in the business of
                transporting any animals for hire. Except anyone transporting a
                migratory bird covered under the Migratory Bird Treaty Act from the
                wild to a facility for rehabilitation and eventual release in the wild,
                or between rehabilitation facilities, and has obtained authorization
                from the U.S. Fish and Wildlife Service for that purpose, is not a
                ``carrier''.
                * * * * *
                 Exhibitor means any person (public or private) exhibiting any
                animals, which were purchased in commerce or the intended distribution
                of which affects commerce, or will affect commerce, to the public for
                compensation, as determined by the Secretary. This term includes
                carnivals, circuses, animal acts (including free-flighted bird shows),
                zoos, and educational exhibits, exhibiting such animals whether
                operated for profit or not. This term excludes retail pet stores,
                horse, dog, and pigeon races, an owner of a common, domesticated
                household pet who derives less than a substantial portion of income
                from a nonprimary source (as determined by the Secretary) for
                exhibiting an animal that exclusively resides at the residence of the
                pet owner, organizations sponsoring and all persons participating in
                State and country fairs, livestock shows, rodeos, field trials,
                coursing events, purebred dog and cat shows, bird fancier shows, and
                any other fairs or exhibitions intended to advance agricultural arts
                and sciences, as may be determined by the Secretary.
                * * * * *
                 Farm animal means any domestic species of cattle, sheep, swine,
                goats, llamas, horses, or poultry, which are normally and have
                historically been kept and raised on farms in the United States and
                used or intended for use as food or fiber, or for improving animal
                nutrition, breeding, management, or production efficiency, or for
                improving the quality of food or fiber. This term also includes animals
                such as rabbits, mink, chinchilla, and ratites when they are used
                solely for purposes of meat, fur, feathers, or skins, and animals such
                as horses and llamas when used solely as work and pack animals.
                * * * * *
                 Intermediate handler means any person, including a department,
                agency, or instrumentality of the United States or of any State or
                local government (other than a dealer, research facility, exhibitor,
                any person excluded from the definition of a dealer, research facility,
                or exhibitor, an operator of an auction sale, or a carrier), who is
                engaged in any business in which he receives custody of animals in
                connection with their transportation in commerce. Except anyone
                transporting a migratory bird covered under the Migratory Bird Treaty
                Act from the wild to a facility for rehabilitation and eventual release
                in the wild, or between rehabilitation facilities, and has obtained
                authorization from the U.S. Fish and Wildlife Service for that purpose,
                is not an ``intermediate handler''.
                * * * * *
                 Pet animal means any animal that has commonly been kept as a pet in
                family households in the United States, such as dogs, cats, guinea
                pigs, rabbits, hamsters, and birds. This term also includes but is not
                limited to such birds as parrots, canaries, cockatiels, lovebirds, and
                budgerigar parakeets. This term excludes exotic animals and wild
                animals.
                * * * * *
                 Poultry means any species of chickens, turkeys, swans, partridges,
                guinea fowl, and pea fowl; ducks, geese, pigeons, and doves; grouse,
                pheasants, and quail.
                * * * * *
                 Retail pet store means a place of business or residence at which
                the seller, buyer, and the animal available for sale are physically
                present so that every buyer may personally observe the animal prior to
                purchasing and/or taking custody of that animal after purchase, and
                where only the following animals are sold or offered for sale, at
                retail, for use as pets: Dogs, cats, rabbits, guinea pigs, hamsters,
                gerbils, rats, mice, gophers, chinchillas, domesticated ferrets,
                domesticated farm-type animals, birds, and coldblooded species. Such
                definition excludes--
                 (1) Establishments or persons who deal in dogs used for hunting,
                security, or breeding purposes;
                 (2) Establishments or persons exhibiting, selling, or offering to
                exhibit or sell any wild or exotic or other nonpet species of
                warmblooded animals such as skunks, raccoons, nonhuman primates,
                squirrels, ocelots, foxes, coyotes, etc.;
                 (3) Any establishment or person selling warmblooded animals (except
                laboratory rats and mice) for research or exhibition purposes;
                 (4) Any establishment wholesaling any animals (except rats and
                mice); and
                 (5) Any establishment exhibiting pet animals in a room that is
                separate from or adjacent to the retail pet store, or in an outside
                area, or anywhere off the retail pet store premises.
                * * * * *
                 Weaned means that a mammal has become accustomed to take solid food
                and has so done, without nursing, for a period of at least 5
                consecutive days; or that a bird has become accustomed to take food and
                has so done, without supplemental feeding from a parent or human
                caretaker, for a period of at least 5 consecutive days. Signs that an
                animal has become accustomed to take food include the animal's ability
                to maintain a constant body weight during those 5 days.
                * * * * *
                PART 2--REGULATIONS
                0
                3. The authority citation for part 2 continues to read as follows:
                 Authority: 7 U.S.C. 2131-2159; 7 CFR 2.22, 2.80, and 371.7.
                0
                4. Section 2.1 is amended as follows:
                0
                a. In paragraph (a)(3)(vi), by adding ``, feathers,'' after the word
                ``food''; and
                0
                b. In paragraph (b)(2)(ii), by removing the words ``subparts A through
                F'' in the first sentence and adding the words ``subparts A through G''
                in their place and revising the last sentence.
                 The revision reads as follows:
                Sec. 2.1 Requirements and application.
                * * * * *
                 (b) * * *
                 (2) * * *
                 (ii) * * * A licensee must obtain a new license before using any
                animal beyond those types or numbers of animals authorized under the
                existing license. Notwithstanding these provisions, a licensee in
                possession of birds on [Effective date of final rule], may continue to
                operate under that license until its scheduled expiration date. APHIS
                encourages such persons to apply for a new license at least 90 days
                before expiration of the current one.
                * * * * *
                Sec. 2.31 [Amended]
                0
                5. In Sec. 2.31, paragraph (d)(1)(ix) is amended as follows:
                0
                a. In the third sentence, by removing the word ``non-rodents'' and
                adding the words ``animals, other than rodents and birds,'' in its
                place; and
                0
                b. In the fourth sentence, by adding the words ``and birds'' after the
                word ``rodents''.
                0
                6. In Sec. 2.50, paragraph (e) is amended as follows:
                [[Page 9906]]
                0
                a. By redesignating paragraphs (e)(2) and (3) as paragraphs (e)(3) and
                (4), respectively, and adding a new paragraph (e)(2); and
                0
                b. In newly redesignated paragraph (e)(3) introductory text, by
                removing the words ``dogs or cats'' and adding the words ``dogs, cats,
                or birds'' in their place.
                 The addition reads as follows:
                Sec. 2.50 Time and method of identification.
                * * * * *
                 (e) * * *
                 (2) When one or more birds are confined in a primary enclosure, the
                bird shall be identified by:
                 (i) A label attached to the primary enclosure which shall bear a
                description of the birds in the primary enclosure, including:
                 (A) The number of birds;
                 (B) The species of the birds;
                 (C) Any distinctive physical features of the birds; and
                 (D) Any identifying marks on the birds; or
                 (ii) A leg or wing band applied to each bird in the primary
                enclosure by the dealer or exhibitor that individually identifies each
                bird by description or number; or
                 (iii) A transponder (microchip) placed in a standard anatomical
                location for the species in accordance with professionally accepted
                standards, provided that the receiving facility has a compatible
                transponder (microchip) reader that is capable of reading the
                transponder (microchip) and that the reader is readily available for
                use by an APHIS official and/or facility employee accompanying the
                APHIS official.
                * * * * *
                0
                7. In Sec. 2.75, paragraph (b)(1) introductory text is amended by
                revising the last sentence to read as follows:
                Sec. 2.75 Records: Dealers and exhibitors.
                * * * * *
                 (b)(1) * * * The records shall include any offspring born or
                hatched of any animal while in his or her possession or under his or
                her control.
                * * * * *
                0
                8. In Sec. 2.76, paragraph (a)(7) is revised to read as follows:
                Sec. 2.76 Records: Operators of auction sales and brokers.
                 (a) * * *
                 (7) A description of the animal which shall include:
                 (i) The species and the breed or type of animal;
                 (ii) The sex of the animal; or if the animal is a bird, only if the
                sex is readily determinable;
                 (iii) The date of birth or hatch date; or, if unknown, the
                approximate age or developmental stage; and
                 (iv) The color and any distinctive markings; and
                * * * * *
                PART 3--STANDARDS
                0
                9. The authority citation for part 3 continues to read as follows:
                 Authority: 7 U.S.C. 2131-2159; 7 CFR 2.22, 2.80, and 371.7.
                0
                10. The heading for subpart F is revised to read as follows:
                Subpart F--Specifications for the Humane Handling, Care, Treatment,
                and Transportation of Warmblooded Animals Other Than Dogs, Cats,
                Rabbits, Hamsters, Guinea Pigs, Nonhuman Primates, Marine Mammals,
                and Birds
                0
                11. Subpart G, consisting of Sec. Sec. 3.150 through 3.168, is added
                to read as follows:
                Subpart G--Specifications for the Humane Handling, Care, Treatment,
                and Transportation of Birds
                Sec.
                Facilities and Operating Standards
                3.150 Facilities, general.
                3.151 Facilities, indoor.
                3.152 Facilities, outdoor.
                3.153 Primary enclosures.
                3.154 Environmental enhancement to promote psychological well-being.
                Animal Health and Husbandry Standards
                3.155 Feeding.
                3.156 Watering.
                3.157 Water quality.
                3.158 Cleaning, sanitization, housekeeping, and pest control.
                3.159 Employees.
                3.160 Compatibility and separation.
                Transportation Standards
                3.161 Consignments to carriers and intermediate handlers.
                3.162 Primary enclosures used to transport live birds.
                3.163 Primary conveyances (motor vehicle, rail, air, and marine).
                3.164 Food and water requirements.
                3.165 Care in transit.
                3.166 Terminal facilities.
                3.167 Handling.
                3.168 Climate and environmental conditions during transportation.
                Subpart G--Specifications for the Humane Handling, Care, Treatment,
                and Transportation of Birds
                Facilities and Operating Standards
                Sec. 3.150 Facilities, general.
                 (a) Structure; construction. Housing facilities for birds must be
                designed and constructed so that they are structurally sound for the
                species of bird housed in them. They must be kept in good repair,
                protect the birds from injury, and restrict other animals from
                entering. Housing facilities must employ security measures that contain
                all birds securely. Such measures may include safety doors, entry/exit
                doors to the primary enclosure that are double-door, or other
                equivalent systems designed to prevent escape of the birds. Birds that
                are flight-restricted or cannot fly and are allowed to roam free within
                the housing facility or a portion thereof must have access to safety
                pens, enclosures, or other areas that offer the birds protection during
                overnight periods and at times when their activities are not monitored.
                 (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, other discarded materials, junk, weeds, and
                brush. 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 or
                research needs.
                 (c) Surfaces. The surfaces of housing facilities must be
                constructed in a manner and made of materials that allow them to be
                readily cleaned and/or sanitized, or removed and replaced when worn or
                soiled. Interior surfaces and surfaces that come in contact with birds
                must be:
                 (1) Nontoxic to the bird;
                 (2) Free of rust or damage that affects the structural integrity of
                the surface or prevents cleaning; and
                 (3) Free of jagged edges or sharp points that could injure the
                birds.
                 (d) Water and electric power. The 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 facility must
                provide adequate potable water for the birds' drinking needs and
                adequate water for cleaning and carrying out other husbandry
                requirements.
                 (e) Storage. Supplies of food, including food supplements, bedding,
                and substrate 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. All food must be stored at
                appropriate temperatures and in a manner that prevents contamination
                and deterioration of its
                [[Page 9907]]
                nutritive value. Food must not be used beyond its shelf-life date or
                expiration date listed on the label. All open supplies of food and
                bedding must be kept in waterproof containers with tightly fitting lids
                to prevent deterioration and contamination, except for live, frozen, or
                refrigerated food. Live food must be maintained in a manner to ensure
                wholesomeness. Substances such as cleaning supplies and disinfectants
                that are harmful to the birds 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, provided that
                they are stored in properly labeled containers that are adequately
                secured to prevent potential harm to the birds. Animal waste and dead
                animals and animal parts not intended for food must not be kept in food
                storage or food preparation areas, food freezers, food refrigerators,
                and animal areas.
                 (f) Waste disposal. Housing facility operators must provide for
                regular and frequent collection, removal, and disposal of animal and
                food wastes, substrate, dead animals, debris, garbage, water, and any
                other fluids and wastes, in a manner that minimizes contamination and
                disease risk. Trash containers in housing facilities and in food
                storage and preparation areas must be leakproof and have tightly fitted
                lids.
                 (g) Drainage. Housing facilities must be equipped with disposal and
                drainage systems that are constructed and operated so that animal
                wastes and water, except for water located in pools or other aquatic
                areas (e.g., ponds, waterfalls, fountains, and other water features),
                are rapidly eliminated so the animals have the option of remaining dry.
                Pools and other aquatic areas must be maintained in accordance with the
                regulations in Sec. 3.157. Disposal and drainage systems must minimize
                vermin and pest infestation, insects, odors, and disease hazards. All
                drains must be properly constructed, installed, and maintained so that
                they effectively drain water. If closed drainage systems are used, they
                must be equipped with traps and prevent the backflow of gases and the
                backup of sewage. If the facility uses sump ponds, settlement ponds, or
                other similar systems for drainage and animal waste disposal, the
                system must be located a sufficient distance from the bird area of the
                housing facility to prevent odors, diseases, insects, pests, and vermin
                infestation in the bird area. 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 animals
                have the option of remaining dry.
                 (h) Toilets, washrooms, and sinks. Toilets and washing facilities
                such as washrooms, basins, sinks, or showers must be provided for
                animal caretakers and must be readily accessible.
                Sec. 3.151 Facilities, indoor.
                 (a) Temperature and humidity. The air temperature and, if present,
                pool or other aquatic area (e.g., ponds, waterfalls, fountains, and
                other water features), and air humidity levels in indoor facilities
                must be sufficiently regulated and appropriate to bird species to
                protect the birds from detrimental temperature and humidity levels, to
                provide for their health and well-being, and to prevent discomfort or
                distress, in accordance with current professionally accepted standards.
                Prescribed temperature and humidity levels must be part of the written
                program of veterinary care or part of the full-time veterinarian's
                records.
                 (b) Ventilation. Indoor housing facilities must be sufficiently
                ventilated at all times when birds are present to provide for their
                health, to prevent their discomfort or distress, accumulations of
                moisture condensation, odors, and levels of ammonia, chlorine, and
                other noxious gases. The ventilation system must minimize drafts.
                 (c) Lighting. Indoor housing facilities must have lighting, by
                natural or artificial means, or both, of appropriate quality,
                distribution, and duration for the species of birds involved. Such
                lighting must be sufficient to permit routine inspection and cleaning.
                Lighting of primary enclosures must be designed to protect the birds
                from excessive illumination that may cause discomfort or distress.
                 (d) Indoor pool or other aquatic areas. Indoor pools or other
                aquatic areas (e.g., ponds, waterfalls, fountains, and other water
                features) must have sufficient vertical air space above the pool or
                other aquatic area to allow for behaviors typical to the species of
                bird under consideration. Such behaviors may include, but are not
                limited to, diving and swimming.
                Sec. 3.152 Facilities, outdoor.
                 (a) Acclimation. Birds may not be housed in outdoor facilities
                unless the air humidity and temperature ranges and, if applicable, pool
                or other aquatic area (e.g., ponds, waterfalls, fountains, and other
                water features) temperature ranges do not adversely affect bird health
                and comfort. Birds may not be introduced to an outdoor housing facility
                until they are acclimated to the ambient temperature and humidity and,
                if applicable, pool or other aquatic area temperature range which they
                will encounter therein.
                 (b) Shelter from inclement weather. Outdoor housing facilities must
                provide adequate shelter, appropriate to the species and physical
                condition of the birds, for the local climatic conditions to protect
                the birds from any adverse weather conditions. Shelters must be
                adequately ventilated in hot weather and have one or more separate
                areas of shade or other effective protection that is large enough to
                comfortably contain all the birds at one time and prevent their
                discomfort from direct sunlight, precipitation, or wind. Shelter must
                also be constructed to provide sufficient space to comfortably hold all
                of the birds at the same time without adverse intraspecific aggression
                or grouping of incompatible birds. For birds that form dominance
                hierarchies and that are maintained in social groupings, shelter(s)
                must be constructed so as to provide sufficient space to comfortably
                hold all the birds at the same time, including birds that are low in
                the hierarchy.
                Sec. 3.153 Primary enclosures.
                 (a) General requirements. 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.
                 (1) Primary enclosures must be constructed and maintained so that
                they:
                 (i) Have no sharp points or edges that could injure the birds;
                 (ii) Protect the birds from injury;
                 (iii) Contain the birds securely;
                 (iv) Restrict other animals from entering the enclosure;
                 (v) Ensure that birds have the option to remain dry and clean;
                 (vi) Provide shelter and protection for each bird from climatic and
                environmental conditions that may be detrimental to its health and
                well-being;
                 (vii) Provide sufficient shade to comfortably shelter all birds
                housed in the primary enclosure at one time, including low ranking
                birds that are maintained in social groupings that form dominance
                hierarchies;
                 (viii) Provide all the birds with easy and convenient access to
                clean food and potable water;
                 (ix) Ensure that all surfaces in contact with the birds may be
                readily cleaned and/or sanitized in accordance with Sec. 3.158 or be
                replaced when worn or soiled; and
                 (x) Have floors that are constructed in a manner that protects the
                birds' feet and legs from injury. If flooring material is suspended, it
                must be sufficiently taut to prevent excessive sagging under the
                [[Page 9908]]
                bird's weight. If substrate is used in the primary enclosure, the
                substrate must be clean and made of a suitably absorbent material that
                is safe and nontoxic to the birds.
                 (2) Furniture-type objects, such as perches and other objects that
                enrich a bird's environment, must be species-appropriate and be
                designed, constructed, and maintained so as to prevent harm to the
                bird. If the enclosure houses birds that rest by perching, there must
                be perches available that are appropriate to the age and species of
                birds housed therein and a sufficient number of perches of appropriate
                size, shape, strength, texture, and placement to comfortably hold all
                the birds in the primary enclosure at the same time, including birds
                that are ranked low in a dominance hierarchy.
                 (3) Primary enclosures that are adjacent to one another or that
                share a common side with another enclosure must be suitably screened
                from each other or kept at a sufficient distance apart in order to
                prevent injury of the occupants due to predation, territorial disputes,
                or aggression.
                 (b) Space requirements. Primary enclosures must be constructed and
                maintained so as to allow each bird to make normal postural and social
                adjustments, such as dust-bathing and foraging, with adequate freedom
                of movement and freedom to escape from aggression demonstrated by other
                animals in the enclosure according to the program of veterinary care
                developed, documented in writing, and signed by the attending
                veterinarian. Both part-time and full-time attending veterinarians at a
                facility must document and maintain a record that the space in all
                enclosures housing birds are adequate and allow for normal postural and
                social adjustments. Inadequate space may be indicated by evidence of
                malnutrition, poor condition, debility, stress, or abnormal behavior
                patterns. The normal postural and social adjustments of a bird may be
                restricted:
                 (1) When the attending veterinarian determines that making species-
                typical postural or social adjustments, such as dust-bathing, foraging,
                or running, would be detrimental to the bird's good health and well-
                being. The attending veterinarian must document the reason and
                recommended duration for the restriction and make such records
                available for review by an APHIS inspector.
                 (2) When the birds are tethered in accordance with current
                professionally accepted standards. Birds must not be tethered unless:
                 (i) It is appropriate for the species of bird;
                 (ii) It will not cause harm to the birds;
                 (iii) The birds are maintained on perches appropriate for the
                species and age of the bird while tethered;
                 (iv) The birds have sufficient space to fully extend their wings
                without obstruction; and
                 (v) The tether does not entangle the birds.
                 (3) When dealers, exhibitors, and research facilities breed or
                intend to breed their birds, such birds must be provided with
                structures and/or materials that meet the reproductive needs of the
                species during the appropriate season or time periods. A sufficient
                number of structures and materials must be provided to meet the needs
                of all breeding birds in an enclosure and to minimize aggression.
                 (4) Birds intended for breeding sale, in need of medical care,
                exhibited in traveling exhibits, or traveling for other reasons must be
                kept in enclosures that, at minimum, meet the individual specific
                space, safety, bedding, perch, and physical environment (including, but
                not limited to, temperature, humidity, sun and wind exposure)
                requirements for transport enclosures as specified in Sec. 3.162. At
                all other times, birds must be housed in enclosures that meet the space
                requirements of this section.
                 (c) Special space requirements for wading and aquatic birds.
                Primary enclosures housing wading and aquatic birds must contain a pool
                or other aquatic area (e.g., ponds, waterfalls, fountains, and other
                water features) and a dry area that allows easy ingress or egress of
                the pool or other aquatic area. Pools and other aquatic areas must be
                of sufficient surface area and depth to allow each bird to make normal
                postural and social adjustments, such as immersion, bathing, swimming,
                and foraging, with adequate freedom of movement and freedom to escape
                from aggression demonstrated by other birds in the enclosure. Dry areas
                must be of sufficient size to allow each bird to make normal postural
                and social adjustments with adequate freedom of movement and freedom to
                escape from aggression demonstrated by other birds in the enclosure.
                Inadequate space may be indicated by evidence of malnutrition, poor
                condition, debility, stress, or abnormal behavior patterns.
                Sec. 3.154 Environment enhancement to promote psychological well-
                being.
                 Dealers, exhibitors, and research facilities must develop,
                document, and follow a species-appropriate plan for environment
                enhancement adequate to promote the psychological well-being of birds.
                The plan is part of the required program of veterinary care and must be
                approved by a veterinarian and must be in accordance with the
                regulations in this subpart and with currently accepted professional
                standards. 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 species of birds
                known to exist in social groups in nature. Such specific provisions
                must be in accordance with currently accepted professional standards.
                The plan may provide for the following exceptions:
                 (1) If a bird exhibits vicious or overly aggressive behavior, or is
                debilitated as a result of age or other conditions (e.g., arthritis),
                it can be housed separately if approved by the veterinarian;
                 (2) Additionally, birds 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 birds is known to have been or believed to be exposed to an
                infectious agent, the group may be kept intact during the process of
                diagnosis, treatment, and control.
                 (3) Birds may not be housed with other species of birds 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 birds must be
                determined in accordance with generally accepted professional practices
                and actual observations by the attending veterinarian during his or her
                regularly scheduled visits to the facility. Individually housed social
                species of birds must be able to see and hear birds 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 materials or activities that
                would provide the birds with the means to express 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-
                [[Page 9909]]
                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 birds 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. Birds 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 Institutional Animal Care
                and Use Committee (IACUC)-approved protocol requires restricted
                activity; and
                 (4) Individually housed social species of birds that are unable to
                see and hear birds of their own or compatible species.
                 (d) Restraint devices. Birds must not be permitted to be maintained
                in restraint devices unless required for health reasons as determined
                by the attending veterinarian or by a research proposal approved by the
                IACUC at research facilities. Any restraining actions must be for the
                shortest period possible. If the bird is to be restrained for more than
                12 hours, it must be provided the opportunity daily for unrestrained
                activity for at least 1 continuous hour during the period of restraint,
                unless continuous restraint is required by the research proposal
                approved by the IACUC at research facilities.
                 (e) Exemptions. (1) The attending veterinarian may exempt an
                individual bird 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 bird. 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 IACUC may exempt an individual
                bird 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 IACUC, but not less than annually.
                 (3) Records of any exemptions must be maintained by the dealer,
                exhibitor, or research facility for at least 1 year in accordance with
                Sec. 2.80 of this subchapter and must be made available to APHIS upon
                request, and, in the case of research facilities, to officials of any
                pertinent funding agency.
                Animal Health and Husbandry Standards
                Sec. 3.155 Feeding.
                 (a) The diet for birds must be appropriate for the species, size,
                age, and condition of the bird. The food must be wholesome, palatable
                to the birds, and free of contamination. It must be of sufficient
                quantity and nutritive value to maintain a healthy condition and weight
                range of the bird and to meet its normal daily nutritional
                requirements. Birds must be fed at least once a day except as directed
                by the attending veterinarian. If birds are maintained in group
                housing, measures appropriate for the species must be taken to ensure
                that all the birds receive a sufficient quantity of food.
                 (b) Food and, if used, food receptacles must be readily accessible
                to all the birds being fed. Food and any food receptacles must be
                located so as to minimize any risk of contamination by excreta,
                precipitation, and pests. Food receptacles and feeding areas must be
                kept clean and sanitized in accordance with Sec. 3.158. Used food
                receptacles must be cleaned and sanitized before they can be used to
                provide food to birds maintained in a separate enclosure. Measures must
                be taken to ensure there is no molding, deterioration, contamination,
                or caking or undesirable wetting or freezing of food within or on food
                receptacles. Food receptacles must be made of a durable material that
                can be easily cleaned and sanitized or be replaceable when worn or
                soiled. Group-housed birds must have multiple food receptacles where
                needed to ensure that all birds have access to sufficient feed.
                Sec. 3.156 Watering.
                 Potable water must be provided in sufficient quantity to every bird
                housed at the facility, unless restricted by the attending
                veterinarian. If potable water is not continually available to the
                birds, it must be offered to them as often as necessary to ensure their
                health and well-being. Water receptacles must be kept clean and
                sanitized in accordance with Sec. 3.158 as often as necessary to keep
                them clean and free of contamination. Used water receptacles must be
                cleaned and sanitized before they may be used to provide water to birds
                maintained in a separate enclosure. Group-housed birds must have
                multiple water receptacles where needed to ensure that all birds have
                access to sufficient water.
                Sec. 3.157 Water quality.
                 (a) The primary enclosure or any other area in which birds may
                enter must not contain pools or other aquatic areas (e.g., ponds,
                waterfalls, fountains, and other water features) that are detrimental
                to the health of the birds contained therein.
                 (1) Particulate animal and food waste, trash, or debris that enters
                the pool or other aquatic area must be removed as often as necessary to
                maintain the required water quality and minimize health hazards to the
                birds.
                 (2) Pools or other aquatic areas with drainage systems must provide
                adequate drainage and must be located so that all of the water
                contained in such pools or other aquatic areas may be effectively
                eliminated when necessary for cleaning the pool or other aquatic area
                or for other purposes. Pools or other aquatic areas without drainage
                systems must be aerated and have an incoming flow of fresh water or be
                managed in a manner that maintains appropriate water quality in
                accordance with current professionally accepted standards appropriate
                for the species.
                 (b) When the water is chemically treated, the chemicals must be
                added in a manner that does not cause harm, discomfort, or distress to
                the animals. Should birds appear to be harmed by water quality,
                appropriate action must be taken immediately.
                 (c) Pools and other aquatic areas must be salinized for birds that
                require such water for their good health and well-being in accordance
                with current professionally accepted standards.
                Sec. 3.158 Cleaning, sanitization, housekeeping, and pest control.
                 (a) Cleaning. (1) Excreta and food waste must be removed from
                primary enclosures and from under and around primary enclosures as
                often as necessary to prevent excessive accumulation of feces and food
                waste, to prevent soiling of the birds contained in the primary
                enclosures, and to reduce disease hazards, insects, pests, and odors.
                When steam or water is used to clean primary enclosures, measures must
                be taken to protect birds from being harmed, wetted involuntarily, or
                distressed in the process. Standing water, except for such water in
                pools or other aquatic areas (e.g., ponds, waterfalls, fountains, and
                other water features), must be removed from the primary enclosure.
                 (2) Scheduled cleaning may be modified or delayed during breeding,
                egg-sitting, or feeding of chicks for birds that are easily disrupted
                during such
                [[Page 9910]]
                behaviors. Scheduled cleaning must resume when such cleaning no longer
                disrupts breeding, egg-sitting, or feeding of chicks. A schedule of
                cleaning must be documented and must include when breeding season
                began, when the primary enclosure was last cleaned, and when cleaning
                is expected to resume. Such records must be available for review by an
                APHIS inspector.
                 (b) Sanitization. (1) Primary enclosures and food and water
                receptacles for birds must be sanitized as often as necessary to
                prevent accumulation of dirt, debris, food waste, excreta, and other
                disease hazards. Provided, however, that sanitization may be modified
                or delayed during breeding, egg-sitting, or feeding of chicks for those
                birds that are easily disrupted during such behaviors. Sanitization
                must resume when such activity no longer disrupts breeding, egg-
                sitting, or feeding of chicks. A schedule of sanitization must be
                documented that includes when breeding season began, when the primary
                enclosure was last sanitized, and when sanitization is expected to
                resume. Such records must be available for review by an APHIS
                inspector.
                 (2) The hard surfaces of primary enclosures and food and water
                areas and equipment must be sanitized before a new bird is brought into
                a housing facility or if there is evidence of infectious disease among
                the birds in the housing facility.
                 (3) Primary enclosures using materials that cannot be sanitized
                using conventional methods, such as gravel, sand, grass, earth, planted
                areas, or absorbent bedding, must be sanitized by removing all
                contaminated material as necessary or by establishing a natural
                composting and decomposition system that is sufficient to prevent
                wasted food accumulation, odors, disease, pests, insects, and vermin
                infestation.
                 (c) Housekeeping for premises. Premises where housing facilities
                are located, including buildings, surrounding grounds, and exhibit
                areas, must be kept clean and in good repair in order to protect the
                birds from injury and disease, 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 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 birds.
                 (d) Pest control. A safe and effective program for the control of
                insects, ectoparasites, and avian and mammalian pests must be
                established and maintained so as to promote the health and well-being
                of the birds and reduce contamination by pests in animal areas.
                Insecticides, chemical agents, or other pest control products that may
                be harmful to the birds must not be applied to primary enclosures and
                other bird contact surfaces unless the application is consistent with
                manufacturer recommendations or otherwise approved for use and does not
                harm birds.
                Sec. 3.159 Employees.
                 A sufficient number of adequately trained employees or attendants
                must be utilized to maintain the professionally acceptable level of
                husbandry and handling practices set forth in this subpart. Such
                practices must be conducted under the supervision of a bird caretaker
                who has appropriate experience in the husbandry and care of birds that
                are being managed in a given setting.
                Sec. 3.160 Compatibility and separation.
                 (a) Socially dependent birds, such as clutch-mates, must be housed
                in social groups, except where the attending veterinarian exempts an
                individual bird because of its health or condition, or in consideration
                of its well-being, or for specific management needs, or where such
                social grouping is not in accordance with a research proposal and the
                proposal has been approved by the research facility IACUC.
                 (b) Birds may not be housed with other animals, including members
                of their own species, 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
                must be determined in accordance with generally accepted professional
                practices and by actual observations to ensure that the birds are, in
                fact, compatible.
                 (c) Birds that have or are suspected of having a contagious disease
                or communicable condition must be separated from healthy animals that
                are susceptible to the disease as directed by the attending
                veterinarian.
                Transportation Standards
                Sec. 3.161 Consignments to carriers and intermediate handlers.
                 (a) Carriers and intermediate handlers must not accept a live bird
                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 bird to extend this time by up to 2 hours if
                specific prior scheduling of the animal shipment to a destination has
                been made, provided that the extension is not detrimental to the health
                and well-being of the bird as determined by the consignor.
                 (b) Carriers and intermediate handlers must not accept a live bird
                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 live bird
                for transport in commerce unless the consignor certifies in writing to
                the carrier or intermediate handler that the bird was offered food and
                water during the 4 hours prior to delivery to the carrier or
                intermediate handler; provision for unweaned birds is made in paragraph
                (g) of this section. The certification must be securely attached to the
                outside of the primary enclosure in a manner that makes it easy to
                notice and read. The certification must include the following
                information for each live bird:
                 (1) The consignor's name, address, telephone number, and email
                address;
                 (2) The number of birds;
                 (3) The species or common names of the birds;
                 (4) The time and date the bird was last fed and watered and the
                specific instructions for the next feeding(s) and watering(s) for a 24-
                hour period; and
                 (5) The consignor's signature and the date and time the
                certification was signed.
                 (d) Carriers and intermediate handlers must not accept a live bird
                for transport in commerce unless the primary enclosure in which the
                birds are contained meets the requirements of Sec. 3.162. A carrier or
                intermediate handler must not accept a live bird for transport if the
                primary enclosure is defective or damaged and cannot be expected to
                contain the bird safely and comfortably.
                 (e) Carriers and intermediate handlers shall not accept a live bird
                for transport in commerce unless their animal holding area maintains
                climatic and environmental conditions in accordance with the
                requirements of Sec. 3.168.
                 (f) Carriers and intermediate handlers must attempt to notify the
                consignee at least once in every 6-hour period following the arrival of
                any live birds at the bird holding area of the terminal cargo facility.
                The time, date, and method of each attempted notification and the final
                notification to the consignee and the name of the person notifying the
                consignee must be recorded on the copy of the shipping
                [[Page 9911]]
                document retained by the carrier or intermediate handler and on a copy
                of the shipping document accompanying the bird shipment.
                 (g) Carriers and intermediate handlers must not accept unweaned
                birds for transport unless transport instructions are specified as a
                part of the consignee's program of veterinary care.
                Sec. 3.162 Primary enclosures used to transport live birds.
                 Any person subject to the Animal Welfare regulations (parts 1, 2,
                and 3 of this subchapter) must not transport or deliver for transport
                in commerce a bird unless the following requirements are met:
                 (a) Construction of primary enclosures. The bird must be contained
                in a primary enclosure such as a compartment, transport cage, carton,
                or crate. Primary enclosures used to transport birds must be
                constructed so that:
                 (1) The primary enclosure is strong enough to contain the bird
                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 bird contained therein;
                 (3) The bird 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 other
                persons or to animals nearby;
                 (4) The bird can be easily and quickly removed from the enclosure
                in an emergency;
                 (5) Unless the enclosure is permanently affixed to the conveyance,
                adequate handholds or other devices such as handles are provided on its
                exterior, and enable the enclosure to be lifted without tilting it, and
                ensure that anyone handling the enclosure will not be in contact with
                the bird 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 centimeters) 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 bird and not harmful to
                its health or well-being;
                 (8) A bird that has a fractious or stress-prone disposition must be
                contained in an enclosure that is padded on the top and sides and has
                protective substrate on the bottom to prevent injury to the bird during
                transport;
                 (9) Proper ventilation is provided to the animal in accordance with
                paragraph (b) of this section; and
                 (10) The primary enclosure has a solid, leak-proof bottom or a
                removable, leak-proof collection tray. If a mesh or other nonsolid
                floor is used in the enclosure, it must be designed and constructed so
                that the bird cannot put any part of its body through the holes in the
                mesh or the openings in the nonsolid floor. If substrate (newspaper,
                towels, litter, straw, etc.) is used in the primary enclosure, the
                substrate must be clean and made of a suitably absorbent material that
                is safe and nontoxic to the birds.
                 (b) Ventilation. (1) Unless the primary enclosure is permanently
                affixed to the conveyance, there must be ventilation openings located
                on two vertical walls of the primary enclosure that are at least 16
                percent of the surface area of each such wall or ventilation openings
                located on all four walls of the primary enclosure that are at least 8
                percent of the total surface area of each such wall; Provided, however,
                That at least one-third of the total minimum area required for
                ventilation of the primary enclosure must be located on the lower one-
                half of the primary enclosure and at least one-third of the total
                minimum area required for ventilation of the primary enclosure must be
                located on the upper one-half of the primary enclosure.
                 (2) Unless the primary enclosure is permanently affixed to the
                conveyance, projecting rims or other devices must be on the exterior of
                the outside walls with any ventilation openings to prevent obstruction
                of the ventilation 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 adjacent to, unless 90 percent or greater of the surface
                area of the enclosure wall is open (e.g., cage mesh).
                 (3) Any visually obscuring mesh used to provide security for the
                bird in the enclosure must not interfere with proper ventilation.
                 (4) If a primary enclosure is permanently affixed within the animal
                cargo space of the primary conveyance so that the front opening is the
                only source of ventilation for such primary enclosure, the front
                opening must open directly to the outside or to an unobstructed aisle
                or passageway within the primary conveyance. Such front ventilation
                opening must be at least 90 percent of the total surface area of the
                front wall of the primary enclosure and covered with bars, wire mesh,
                or smooth expanded metal.
                 (c) Cleaning of primary enclosures. A primary enclosure used to
                hold or transport birds in commerce must be cleaned and sanitized
                before each use in accordance with Sec. 3.158 by the dealer, research
                facility, exhibitor, or operator of an auction sale.
                 (d) Compatibility. Live birds transported in the same primary
                enclosure must be of the same species or compatible species and
                maintained in compatible groups. Socially dependent birds must be able
                to see and hear each other.
                 (e) Space and placement. Primary enclosures used to transport live
                birds must be large enough to ensure that each bird contained therein
                has sufficient space to turn about freely and to make normal postural
                adjustments; Provided, however, That certain species may be restricted
                in their movements according to professionally accepted standards when
                such freedom of movement would constitute a danger to the birds, their
                handlers, or other persons.
                 (f) Accompanying documents and records. Documents accompanying the
                shipment must be attached in an easily accessible manner to the outside
                of a primary enclosure which is part of such shipment and must not
                obstruct ventilation openings.
                Sec. 3.163 Primary conveyances (motor vehicle, rail, air, and
                marine).
                 (a) The animal cargo space of primary conveyances used in
                transporting live birds 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 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 birds must be positioned in
                the animal cargo space in a manner that provides protection from the
                elements and that allows each bird enough air for normal breathing.
                 (d) During transportation, the climatic conditions in the animal
                cargo area shall be maintained in accordance with the requirements of
                Sec. 3.168.
                 (e) Primary enclosures must be positioned in the primary conveyance
                in a manner that allows the birds to be quickly and easily removed from
                the primary conveyance in an emergency.
                [[Page 9912]]
                 (f) The interior of the bird cargo space must be kept clean.
                 (g) Live birds may not be transported with any material, substance
                (e.g., dry ice), or device which may reasonably be expected to be
                injurious to the health and well-being of the birds unless proper
                precaution is taken to prevent such injury.
                Sec. 3.164 Food and water requirements.
                 (a) All weaned birds must be offered food and potable water within
                4 hours before being transported in commerce.
                 (b) Dealers, exhibitors, research facilities, and operators of
                auction sales must provide potable water to all weaned birds
                transported in their own primary conveyance at least every 12 hours
                after such transportation is initiated, except for birds which,
                according to professionally accepted standards or under the direction
                of the attending veterinarian, require watering or feeding more or less
                frequently. Carriers and intermediate handlers must provide potable
                water to all live, weaned birds at least every 12 hours after accepting
                them for transportation in commerce, except for birds which, according
                to professionally accepted standards or under the direction of the
                attending veterinarian, require watering or feeding more or less
                frequently.
                 (c) All weaned birds must be fed at least once in each 24-hour
                period, except as directed by veterinary treatment, normal fasts, or
                other professionally accepted standards. Birds that require feeding
                more or less frequently must be fed accordingly.
                 (d) A sufficient quantity of food and water or other source of
                hydration must accompany the bird to provide food and water for such
                bird during period of transport, except as directed by veterinary
                treatment and other professionally accepted standards.
                 (e) Any dealer, research facility, exhibitor, or operator of an
                auction sale offering any live bird to any carrier or intermediate
                handler for transportation in commerce must securely affix to the
                outside of the primary enclosure used for transporting the bird written
                instructions for the in-transit food and water requirements of the bird
                contained in the enclosure. The instructions must be attached in
                accordance with Sec. 3.162(f) and in a manner that makes them easily
                noticed and read.
                 (f) No carrier or intermediate handler may accept any live bird for
                transportation in commerce unless written instructions concerning the
                food and water requirements of such bird while being so transported is
                affixed to the outside of its primary enclosure. The instructions must
                be attached in accordance with Sec. 3.162(f) and in a manner that
                makes them easily noticed and read.
                Sec. 3.165 Care in transit.
                 (a) Surface transportation (ground and water). During surface
                transportation, any person subject to the Animal Welfare regulations in
                parts 1, 2, and 3 of this subchapter transporting birds in commerce
                must ensure that the operator of the conveyance, or a person
                accompanying the operator, visually observes the birds as frequently as
                circumstances may allow, but not less than once every 4 hours, to
                ensure that the birds are receiving sufficient air for normal
                breathing, that climatic and environmental conditions are being
                maintained in accordance with the requirements in Sec. 3.168, and that
                all other applicable standards are met. The regulated person must
                ensure that the operator or person accompanying the operator determines
                whether any of the birds are in physical distress and obtains any
                veterinary care needed for the birds as soon as possible.
                 (b) Air transportation. When transported by air, live birds must be
                visually observed by the carrier as frequently as circumstances may
                allow, but not less than once every 4 hours, if the animal cargo space
                is accessible during flight. If the animal cargo space is not
                accessible during flight, the carrier must visually observe the live
                birds whenever they are loaded and unloaded and whenever the bird cargo
                space is otherwise accessible to ensure that they are receiving
                sufficient air for normal breathing, that climatic and environmental
                conditions are being maintained in accordance with the requirements in
                Sec. 3.168, and that all other applicable standards are met. The
                carrier must determine whether any such live birds are in physical
                distress and arrange for any needed veterinary care as soon as
                possible.
                 (c) Prohibition on the transport of ill, injured, or distressed
                birds. Any person subject to the Animal Welfare regulations in parts 1,
                2, and 3 of this subchapter may not transport in commerce birds that
                are ill, injured, or in physical distress, except to receive veterinary
                care for the condition.
                Sec. 3.166 Terminal facilities.
                 (a) Placement. Carriers and intermediate handlers must not
                commingle shipments of live birds with other animals or 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. 3.158 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 other pests of birds.
                 (c) Ventilation. Ventilation must be provided in any animal holding
                area in a terminal facility containing birds, 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.
                 (d) Climatic and environmental conditions. The climatic and
                environmental conditions in an animal holding area containing live
                birds shall be maintained in accordance with the requirements of Sec.
                3.168.
                Sec. 3.167 Handling.
                 (a) Any person subject to the Animal Welfare regulations (parts 1,
                2, and 3 of this subchapter) who moves (including loading and
                unloading) live birds 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 live birds:
                 (1) Shelter from sunlight and extreme heat. Sufficient shade shall
                be provided to protect the live birds from the direct rays of the sun.
                 (2) Shelter from rain and snow. Sufficient protection shall be
                provided to allow the live birds the option to remain dry during rain,
                snow, and other precipitation.
                 (3) Climatic and environmental conditions. Climatic and
                environmental conditions during movement shall be maintained in
                accordance with the requirements of Sec. 3.168.
                 (b) Any person handling a primary enclosure containing a live bird
                must use care and must avoid causing physical harm or distress to the
                bird.
                 (c) A primary enclosure containing a live bird must not be tossed,
                dropped, or tilted, and must not be stacked in a manner which may
                reasonably be expected to result in its falling.
                Sec. 3.168 Climatic and environmental conditions during
                transportation.
                 (a)(1) Transportation of all live birds shall be done in a manner
                that does not cause overheating, excessive cooling, or adverse
                environmental conditions that could cause discomfort or stress. When
                climatic or environmental conditions, including temperature, humidity,
                [[Page 9913]]
                exposure, ventilation, pressurization, time, or other environmental
                conditions, or any combination thereof, present a threat to the health
                or well-being of a live bird, appropriate measures must be taken
                immediately to alleviate the impact of those conditions. The different
                climatic and environmental factors prevailing during a journey must be
                considered when arranging for the transportation of and when
                transporting live birds. Corrections may include, but would not be
                limited to:
                 (i) The temperature and humidity level of any enclosure used during
                transportation of live birds must be controlled by adequate ventilation
                or any other means necessary;
                 (ii) Appropriate care must be taken to ensure that live birds are
                not subjected to prolonged drafts detrimental to their health or well-
                being;
                 (iii) Appropriate care must be taken to ensure that live birds are
                not exposed to direct heat or cold if detrimental to their health or
                well-being; and
                 (iv) During prolonged air transit stops in local climatic
                conditions that could produce excessive heat for live birds held in
                aircraft compartments, the aircraft doors must be opened and, if
                necessary, ground equipment must be used to control the condition of
                the air within compartments containing live birds.
                 (2) In order to determine what climatic and environmental
                conditions are appropriate for a live bird, factors such as, but not
                limited to, the bird's age, species, physiological state, last feeding
                and watering, and acclimation shall be considered when such information
                is available.
                 (b) Birds that are not able to maintain a constant body temperature
                at ambient temperatures must be transported in a brooder or other
                temperature-regulating unit that effectively assists the bird in
                maintaining a constant body temperature during transport.
                 (1) The temperature of the brooder or other temperature-regulating
                unit must be monitored during transportation and appropriate for the
                live bird.
                 (2) Written instructions for the temperature requirements of birds
                transported in brooders or other temperature-regulating units must be
                securely affixed to the outside of the primary enclosure used for
                transporting the bird. The instructions must be attached in accordance
                with Sec. 3.162(f) in a manner that makes them easily noticed and
                read.
                 Done in Washington, DC, this 14th day of February 2022.
                Jennifer Moffitt,
                Under Secretary for Marketing and Regulatory Programs.
                [FR Doc. 2022-03565 Filed 2-18-22; 8:45 am]
                BILLING CODE 3410-34-P
                

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