[Federal Register Volume 88, Number 34 (Tuesday, February 21, 2023)]
[Rules and Regulations]
[Pages 10654-10721]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03357]



[[Page 10653]]

Vol. 88

Tuesday,

No. 34

February 21, 2023

Part II





Department of Agriculture





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Animal and Plant Health Inspection Service





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9 CFR Parts 1, 2 and 3





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

  Federal Register / Vol. 88, No. 34 / Tuesday, February 21, 2023 / 
Rules and Regulations  

[[Page 10654]]


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DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Parts 1, 2 and 3

[Docket No. APHIS-2029-0068]
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: Final rule.

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SUMMARY: We are amending 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 will ensure the humane handling, care, 
treatment, and transportation of birds not bred for use in research and 
covered under the Act.

DATES: This rule is effective March 23, 2023. For current AWA licensees 
and registrants, this rule is applicable August 21, 2023. For new AWA 
licensees and registrants, this rule is applicable February 21, 2024.

FOR FURTHER INFORMATION CONTACT: Dr. Cody M. Yager, DVM, MPH, Avian 
Specialist, Animal Care, APHIS, 4700 River Road Unit 84, Riverdale, MD 
20737; [email protected]; (970) 494-7478.

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, or the Department) 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 standards for the humane handling, care, treatment, and 
transportation of animals covered by the AWA.
    In 2002, Congress amended \1\ the definition of animal in the AWA 
by limiting the exclusion of birds from that definition to only those 
birds ``bred for use in research,'' which by so doing explicitly placed 
birds not bred for research and not otherwise excluded from regulation 
under the protection of the AWA. While that amendment placed birds not 
bred for research under the protection of the Act, the USDA did not 
immediately promulgate regulatory standards specific to birds, causing 
several animal welfare organizations to file lawsuits against the 
Department. In 2020, an opinion by the U.S. Court of Appeals for the 
District of Columbia in one such case \2\ resulted in the District 
Court's ordering USDA to publish a proposal in the Federal Register to 
establish regulatory standards for birds no later than February 22, 
2022, and to publish a final rule no later than 1 year after 
publication of the proposal. Establishing standards in the AWA 
regulations specifically for birds is necessary to ensure animal 
welfare and align the regulations with the intent of the Act.
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    \1\ The AWA, signed into law in August 1966, has been amended 
numerous times since its original passage.
    \2\ American Anti-Vivisection Society and Avian Welfare 
Coalition v. USDA: https://www.cadc.uscourts.gov/internet/opinions.nsf/80846063820C52F6852584EB005413E4/%24file/19-5015-1823484.pdf.
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Discussion of Comments

    On February 22, 2022, we published in the Federal Register (87 FR 
9880-9913, Docket No. APHIS-2020-0068) a proposal \3\ to amend the 
animal welfare regulations by establishing standards governing the 
humane handling, care, treatment, and transportation of birds, 
excluding birds bred for use in research, covered under the AWA. We 
began soliciting comments concerning the proposal for 60 days, ending 
April 25, 2022, and in response to several requests by commenters we 
extended \4\ the comment period by 30 days, to May 25, 2022.
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    \3\ To view the proposal, supporting documents, and the comments 
we received, go to www.regulations.gov. Enter APHIS-2020-0068 in the 
Search field. Among the available supporting documents is a draft 
environmental assessment prepared in accordance with the National 
Environmental Policy Act. The environmental assessment evaluates 
potential effects of the proposed action on the human environment.
    \4\ The comment extension notice was published on April 22, 2022 
(87 FR 24072-24073, Docket No. APHIS-2020-0068).
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    We received 19,195 comments by the extended date. They included 
comments from breeders and fanciers of finches, budgerigars, canaries, 
parrots, cockatiels, and other pet and show birds; falconers, raptor 
breeders, exhibitors, hobbyists, and conservationists; businesses and 
educational organizations exhibiting birds to the public; ratite and 
poultry producers; exotic poultry hobbyists; owners and breeders of 
show and racing pigeons; national and regional animal welfare 
organizations; biologists; laboratories and other research facilities; 
universities; organizations representing zoos, shelters, and rescues; 
avian veterinarians, ornithologists, aviculturists, and organizations 
representing them; organizations promoting the conservation of 
waterfowl and wild birds; State and Federal government agencies; and 
members of the public.
    A substantial number of comments we received consisted of duplicate 
and near-duplicate comments endorsed by members and supporters of 
several animal welfare advocacy organizations. Many of the comments 
submitted on the proposal expressed broad concerns about ensuring 
animal welfare for birds or excessive government regulation, but 
relatively few referred to specific parts of the proposal. We also 
received a substantial number of comments regarding the regulatory 
status of falconry, as well as comments from small businesses that 
breed and sell pet birds. We reviewed and considered all the comments 
we received prior to drafting this final rule.

Summary of Amendments to the Proposed Rule

    Our review of comments received on the proposal led us to re-
examine some of the provisions in the proposed rule. For reasons that 
we will explain in this final rule, we are revising some of regulatory 
provisions and requirements that we had proposed in 9 CFR parts 1, 2, 
and 3. Following is a list of substantive revisions that we are making 
to the proposed rule in response to comments:
     Excluding falconry under the definition of animal in Sec.  
1.1 of the regulations, as the use of birds for falconry is not covered 
under the uses listed for the definition in the Act: ``[R]esearch, 
testing, experimentation, or exhibition purposes, or as a pet.''
     Revising our proposed definition of bred for use in 
research to mean ``an animal that is bred in captivity and used for 
research, teaching, testing, or

[[Page 10655]]

experimentation purposes,'' in order to clarify that it pertains to 
actual use of the birds in research rather than stated intended use at 
the time of breeding.
     Establishing a de minimis threshold exemption for sales of 
200 or fewer pet birds 250 grams or less annually, and/or sales of 8 or 
fewer birds over 250 grams annually, which we will add to Sec.  
2.1(a)(3) of the regulations.
     Establishing a de minimis threshold exemption for 
exhibition of four or fewer raptors, which we will add to Sec.  
2.1(a)(3) of the regulations.
     Revising water and electric power requirements in proposed 
Sec.  3.150(d), so that they would only be required for the purpose of 
complying with other standards in proposed subpart G rather than be 
broadly applicable to all facilities.
     Revising proposed Sec.  3.150(e) to replace proposed food 
storage temperature and shelf-life requirements with performance-based 
requirements.
     Revising temperature and humidity requirements in proposed 
Sec.  3.151(a) to allow facilities to develop temperature and humidity 
levels using professionally accepted standards, and removing our 
proposed requirement that prescribed levels be part of the written 
program of veterinary care.
     Revising space requirements in proposed Sec.  3.153(b) to 
allow facilities to develop space requirements using professionally 
accepted standards in consultation with the attending veterinarian, and 
removing the requirement that the space requirements be part of the 
written program of veterinary care.
     Revising the environmental enhancement plan requirement in 
proposed Sec.  3.154 in order to allow facilities to document the plan 
using professionally accepted standards and in consultation with and 
approved by the attending veterinarian, and removing the requirement 
that the plan be part of the written program of veterinary care.
     Revising proposed Sec.  3.154(a)(3) to allow individuals 
other than the attending veterinarian to make decisions of 
compatibility by facilities based on professionally accepted standards, 
and removing the requirement that the plan be part of the written 
program of veterinary care.
     Revising a proposed daily feeding requirement in Sec.  
3.155 in order to allow exceptions as directed by the attending 
veterinarian, normal fasts, or other professionally accepted practices.
     Revising proposed Sec.  3.161(f) to require that if delays 
will cause a shipment of birds to arrive more than 12 hours later than 
originally scheduled, the carrier must contact the consignor or the 
consignee for food and water needs.
     Revising proposed Sec.  3.161(g) to require that carriers 
and intermediate handlers not accept unweaned birds for transport 
unless instructions for conditions of transport to ensure the health 
and well-being of the birds are specified and written by the attending 
veterinarian, and signed within 10 days of shipment, and removing the 
requirement that the plan be part of the written program of veterinary 
care.
     Revising proposed Sec.  3.162(b)(1) by removing 
restrictive ventilation requirements that prevented use of shipping 
enclosures that would otherwise meet APHIS standards.
     Revising proposed Sec.  3.164(a) to waive the requirement 
to offer weaned birds food and potable water within 4 hours before 
being transported in commerce if the attending veterinarian approves a 
delay or in accordance with professionally accepted standards.
    Substantive comments are discussed below under the sections within 
9 CFR parts 1, 2 and 3 they address.

General Comments

    Many commenters asked that we prohibit trade of all captive birds. 
Some commenters asked that we require the release of all captive birds 
into their natural habitats.
    APHIS does not have the authority to prohibit the legal trade of 
birds or to require the release of captive birds into their natural 
habitats.
    Some commenters stated that we have not demonstrated that the 
current welfare of birds in breeding facilities are deficient.
    We disagree with the commenters. As we noted in the proposed rule, 
APHIS has received complaints from the public about inhumane conditions 
for birds, including many comments submitted for this rulemaking. While 
APHIS does not currently inspect facilities engaged exclusively in 
avian breeding and exhibition, we do inspect mammals at mixed animal 
facilities that also house birds. During these inspections, if 
inspectors encounter birds kept in inhumane conditions they are 
instructed to report what they see to the appropriate local or State 
authority. Lastly, Congress' amendment to the AWA, along with the court 
opinion noted above, are both acknowledgements that welfare standards 
for birds are necessary, and APHIS is promulgating such standards 
accordingly.
    A commenter asked how the rule can be applied to a large, newly 
regulated community given the agency's limited resources. One commenter 
suggested that the rule be delayed from implementation until the 
necessary agency resources are available.
    APHIS has sufficient resources to fulfill the mandates of the Act 
and successfully employs a risk-based process to determine frequency of 
facility inspections and enforce the regulations fairly. We intend to 
use this approach in our regulation and enforcement of standards for 
birds. As to delay of implementation, we are establishing a delayed 
applicability of the regulations, which we address below, in order to 
give persons additional time to comply with the regulations. The delay 
is not associated with the availability of agency resources.
    A commenter asked that APHIS consider giving all licensed 
facilities one provisional inspection cycle to fix, modify, or 
challenge noncompliance issues, noting that many of the ``untested'' 
requirements in the proposal may prove to be unwarranted and possibly 
harmful to bird welfare. Another commenter stated that a 5-year 
implementation period must be established to allow time to disseminate 
regulatory information to aviculturalists and for facilities to perform 
retrofitting to comply with the regulations. The commenter added that 
facilities existing at the time of implementation should be 
``grandfathered'' if their primary enclosures are sound and healthful, 
until structural improvements are required.
    An implementation period will be provided for all facilities 
conducting covered activities to ensure compliance with these 
standards. During this period, we intend to confer with facilities and 
offer guidance to help them identify and correct any noncompliances 
prior to the date that the rule becomes applicable. While the 
regulations will be effective 30 days after issuance of this final 
rule, they will not immediately be applicable to regulated persons and 
businesses. For current AWA licensees and registrants, the rule will 
become applicable 180 days after date of publication. For new licensees 
and registrants, the applicable date will begin 365 days after date of 
publication. As new licensees may be unfamiliar with AWA licensing and 
inspection practices or lack the resources required to comply with the 
regulations, we have provided them with additional time to attain 
compliance. Based on our own prior knowledge of the industry, the 
comments that we received, and the nature of the compliance standards 
in this final rule, we consider this sufficient time for entities to 
come into

[[Page 10656]]

full compliance with the standards. With respect to other commenter 
recommendations, we do not consider a 5-year implementation period or a 
``grandfather'' clause for some facilities to be necessary or conducive 
to animal welfare. We also note that the AWA itself sets forth minimum 
standards for care of covered animals, which legally precludes a 
``grandfather'' clause for facilities that are not in compliance with 
those particular standards.
    A commenter proposed that we have an additional comment period so 
that stakeholders can address all their concerns with the proposal.
    In response to commenter requests, we extended the comment period 
for 30 days to May 25, 2022.
    Several commenters stated that APHIS has not accurately estimated 
the number of people who will be impacted by the proposal and that the 
actual number is much larger than what is cited in the economic 
analysis.
    In the economic analysis that accompanied the proposed rule, we 
acknowledged that a great deal of uncertainty surrounds the number of 
facilities affected by this rule, and we requested data from the public 
that may indicate a number of facilities different from what we 
estimated in the analysis. We explain in more detail in the economic 
analysis our estimate of the number of facilities affected.
    We received several comments indicating higher numbers of affected 
entities, one of which provided a detailed discussion of what the 
commenter considered to be the number of potential new licensees. Based 
on information the commenter provided, we adjusted our estimate of 
potential new facilities breeding or distributing birds that could 
require an AWA license from 1,625 to a range between 1,625 and 
3,563.\5\ Including new registrants, we estimate that there will be 
between 5,975 and 7,913 newly regulated entities in total. Of the 
facilities that we estimate may be covered under the regulations, we 
continue to believe many are already maintaining their facilities at or 
above the minimum standards of the proposal and would not need to make 
significant changes in order to come into compliance with the 
standards.
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    \5\ Details of how APHIS arrived at this revised estimate are 
explained in the Regulatory Impact Analysis that accompanies this 
rule.
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    A commenter asked that APHIS include a regulatory provision 
allowing for the emergency transfer or sale of breeding groups of birds 
belonging to deceased breeders, or for persons with birds affected by 
natural disasters. The commenter added that it is critical to transfer 
birds before they are lost for lack of care.
    Under Sec.  2.1(b)(1), licenses are issued to specific persons, and 
are issued for specific activities, types and numbers of animals, and 
approved sites. Although a new license must be obtained upon a change 
of ownership resulting from an owner's death, APHIS can grant a one-
time exemption in such situations to allow for sale or transfer of 
animals. In addition, every AWA licensee is required under Sec.  
2.38(l) to have a contingency plan in place for the humane handling, 
treatment, transportation, housing, and care of their covered animals. 
The plan is required to address emergencies such as natural disasters 
and animals at risk of neglect from disruption of care, including death 
of the breeder or responsible person, and allows for the sale and 
transfer of such animals. Given these provisions, we do not consider a 
new regulation to cover such contingencies to be necessary.
    A commenter suggested that the Animal Care Inspection Guide should 
be applicable to all birds in captivity.
    The Animal Care Inspection Guide serves as an aid for APHIS Animal 
Care personnel when inspecting USDA licensed and registered facilities. 
As is currently the practice with other covered animals, APHIS 
inspectors will use the guide, updated for avian facilities, to ensure 
consistency and accuracy when inspecting facilities that conduct 
activities involving birds not bred for use in research and therefore 
covered under the AWA regulations.
    A coalition of three national avicultural organizations submitted a 
survey \6\ of aviculturalists, of which 282 provided responses. The 
survey asked respondents to provide information about topics of concern 
to them in the proposed rule, including exemption thresholds, 
recordkeeping requirements, inspection procedures, environmental 
enhancement, and access to veterinarians with avian expertise. The 
commenter reviewed the responses in light of how the respondents, many 
of them home-based businesses, might be affected by the proposed 
regulations.
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    \6\ See comment and survey at https://www.regulations.gov/comment/APHIS-2020-0068-27043.
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    APHIS appreciates the commenter providing us with the survey and 
notes that we have addressed many of the concerns it expresses about 
compliance, privacy, and recordkeeping. The commenter noted that over 
70 percent of respondents kept more than four breeding females, and 
that many small aviculturalists are uncertain about counting breeding 
females for the purposes of determining exemption status. Under 
``Licensing Exemptions'' below, we indicate that we have adjusted how 
the de minimis exemption threshold is determined by basing it on number 
of birds sold annually, rather than on number of breeding females. This 
change will exempt from inspection and licensing many more facilities 
as a result. For home-based facilities that will require licensing and 
inspections, we emphasize that APHIS only inspects for compliance 
within the areas of a domicile where business is conducted. Finally, as 
survey respondents use many means of inventorying and identifying their 
birds, from cage cards to software, the standards we are finalizing 
accommodate each of them. We intend to provide ongoing guidance on 
these topics as needed to help current and newly licensed entities with 
birds achieve compliance.
    A commenter stated that a Federal-level database collecting data 
about the birds inspected would allow for accuracy of breeding numbers. 
Another commenter stated that all inspection and annual reports, as 
well as actual cases, assessments, and penalty discounts should be 
published on the APHIS website to increase public transparency.
    As is currently the case with inspection of other species, APHIS 
will maintain inspection information for birds and use it to determine 
compliance. In addition, the USDA-Animal Care Public Search Tool \7\ is 
a publicly searchable database that includes persons licensed and 
registered under the AWA, as well as inspection reports, enforcement 
actions, and research facility annual reports of animal use. We are 
unclear as to what assessments or discounts the commenter refers to, 
but we do support public transparency of APHIS animal welfare 
activities even as we respect the personal information and privacy of 
persons subject to AWA regulations.
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    \7\ The USDA Animal Care Public Search Tool is available at 
https://aphis-efile.force.com/PublicSearchTool/s/.
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    A commenter stated that regulations should be imposed for all 
``commercial reseller/pet stores'' to have a basic course on proper 
care of species and sanitation.
    While businesses defined as retail pet stores in Sec.  1.1 are 
exempt from licensing and regulation, we support efforts to educate 
such businesses on humane avian care and sanitation practices.

[[Page 10657]]

    A commenter urged APHIS to prohibit the capture of wild and exotic 
birds, including their eggs, for any reason.
    Within the United States, the capture and possession of most birds 
from the wild, including eggs, is regulated by the U.S. Fish and 
Wildlife Service (USFWS) regulations under the Migratory Bird Treaty 
Act (MBTA). USDA has neither the authority to enforce provisions of the 
MBTA nor the authority under any other statute delegated to the Agency 
to enforce such a general prohibition.
    A commenter stated that the proposed regulations fall short of the 
``Five Freedoms'' of animal welfare that have been adopted worldwide.
    Our statutory obligation for this rulemaking is to enforce the 
provisions of the AWA regarding standards for birds other than birds 
bred for use in research. The ``Five Freedoms,'' in contrast, are a set 
of internationally recognized animal welfare standards that advocate 
freedom from hunger and thirst; freedom from discomfort; freedom from 
pain, injury, and disease; freedom to express normal behaviors; and 
freedom from fear and distress. While APHIS does not derive our 
statutory authority with regard to animal welfare from the ``Five 
Freedoms,'' we respectfully disagree with the commenter, as the 
standards for birds that we have established under the provisions of 
the AWA address all five freedoms.
    A commenter noted that quarantine practices for birds are not 
mentioned in the proposed rule and that a section on quarantining 
should be included.
    While we do not use the term ``quarantine'' in the proposed 
standards for birds, we did include a provision in paragraph (c) of 
Sec.  3.160, ``Compatibility and separation,'' stating that ``[b]irds 
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.'' 
We consider this requirement to constitute a quarantine under normal 
conditions. Furthermore, the attending veterinarian has the authority 
to require quarantine practices if necessary for bird health or 
welfare.
    A commenter asked whether our estimated number of respondents under 
the Paperwork Reduction Act referred to respondents to the proposed 
rule or the estimate of licensees.
    The estimated number of respondents refers to the number of 
licensees and registrants affected by the rule.
    The same commenter stated that most activities requiring forms also 
require original signatures, so aviculturists must fill out the form, 
sign it, and store it on paper or scan again and store electronically. 
The commenter added that this is onerous for small breeders and 
exhibitors.
    Few covered activities, such as acquisition and disposition of 
animals, require a licensee or registrant to complete forms, and the 
time required to do so is minimal. Only the license application 
requires a signature, and those can be completed and signed 
electronically. Information provided on forms is important to 
establishing a record of animal welfare at the facility.

9 CFR Part 1: Definition of Terms

    In Sec.  1.1, we proposed to revise the definitions of carrier, 
exhibitor, farm animal, intermediate handler, pet animal, retail pet 
store, and weaned. We also proposed adding new definitions of bird, 
bred for use in research, and poultry. These changes were intended to 
incorporate birds that are newly subject to licensing and regulatory 
standards under the AWA. The comments for each of the revisions and 
additions to Sec.  1.1 are addressed below. Other terms currently 
defined in 9 CFR part 1 that pertain to AWA licensees or registrants in 
general will also pertain to persons newly licensed or registered as 
bird dealers, exhibitors, operators of auction sales, or carriers and 
intermediate handlers. For example, the term inspector, defined as 
``any person employed by the Department who is authorized to perform a 
function under the Act and the regulations in 9 CFR parts 1, 2, and 
3,'' will also pertain to inspectors performing functions related to 
verifying compliance with the regulations applicable to birds.
    A few commenters proposed that we include additional terms to 
define. One commenter proposed that we add the terms ``bird breeder,'' 
``bird dealer,'' and ``bird exhibitor'' to the regulations in order to 
differentiate them from mammal breeders, dealers, and exhibitors.
    We are making no changes in response to the commenter, as we see no 
benefit for the purposes of animal welfare to create standalone 
definitions that differentiate breeders, dealers, and exhibitors based 
on species. We note, moreover, that this has not been APHIS' practice 
to date with the many species of mammals that are subject to the AWA.
Animal
    We noted in the proposed rule that, in 2002, Congress amended the 
definition of animal in the Act to specifically exclude birds, rats of 
the genus Rattus, and mice of the genus Mus, bred for use in research, 
and that APHIS amended the definition of animal in the regulations to 
be consistent with this change. The amendment means that birds bred for 
use in research are not covered under the AWA or its regulations.
    A commenter stated that ``they would like to see all official 
wording changed that states birds are excluded from the AWA once this 
regulation is passed.''
    When this final rule becomes effective, we intend to make the 
necessary changes in APHIS guidance, such as in the Animal Care 
Inspection Guide, that does not currently reflect that birds not bred 
for use in research are regulated under the Act.
    Several commenters asked if raptors would be exempt from licensing 
or excluded from coverage under the Act, while other commenters 
remarked positively upon their inclusion.
    We are not excluding or exempting raptors from licensing, although 
we have included an exhibition exemption threshold for persons with 
four or fewer raptors in exhibition for any purpose and is not 
otherwise required to be licensed, which we discuss below. However, we 
have amended the definition of animal to exclude from coverage all 
activities involving falconry, which is the practice of training and 
using certain raptors to hunt wild animals. We made this change in 
response to the many commenters noting the cultural and historical 
agrarian roots of falconry, and because falconry falls outside of the 
regulated uses specified in the definition of animal in the Act: 
``[R]esearch, testing, experimentation, or exhibition purposes, or as a 
pet.'' Moreover, USFWS regulations require a permit to possess raptors 
according to use, none of which include use as a pet. Many commenters 
also noted that falconers are required to serve an apprenticeship under 
a master falconer and undergo extensive training in caring for and 
handling birds as prerequisites to acquiring State and Federal falconry 
permits. This extensive degree of oversight further supports our 
interpretation of the AWA not to regulate falconry.
    Along with the practice of falconry, exhibitions of birds that 
solely promote the art of falconry will also be excluded from 
regulation, much in the same way that exhibitions of animals that 
promote the agricultural arts are not regulated. APHIS will determine 
whether an exhibition qualifies as promoting falconry on a case-by-case 
basis.
Bird
    We proposed to add a definition for the term bird as being any 
member of

[[Page 10658]]

the class Aves, excluding eggs. This definition implies that a bird is 
no longer an egg when the bird is fully separated from the eggshell. As 
we noted in the proposed rule, we considered regulating the welfare of 
live avian eggs but there was not enough scientific data available for 
each species of bird to determine the stages of egg development at 
which human management can cause an animal welfare concern.
    One commenter stated that the proposed definition of bird should 
not require that the bird be entirely separated from the shell. The 
commenter explained that while it is necessary to maintain humane care 
of the bird after it has separated from its eggshell, there should be 
care in place for birds in the process of hatching but not yet 
separated from the shell.
    We agree with the commenter that a bird in the process of hatching 
should be defined as a bird. For this reason, we are revising the 
definition of bird to mean ``any member of the class Aves, excluding 
eggs, but including birds once the hatching process commences.''
    Another commenter asked that if eggs are excluded from the 
definition, whether an egg collected from the wild and brought into 
captivity would not be regulated, but a bird hatched from that egg 
would be regulated. The commenter also asked what happens if the 
location of breeding of the dam and sire are unknown to the individual 
that obtains the unregulated egg, adding that the definition makes 
tracking dam and sire information for an egg a requirement, thus 
regulating the egg in some capacity.
    An egg collected from the wild, regardless of whether it hatches, 
is likely to be from a migratory bird and therefore regulated under the 
MBTA by USFWS. We do not intend to regulate eggs, but if the egg 
hatches and the bird is not bred for use in research, it may be 
regulated under the AWA depending on its use. Information about the dam 
and sire of the egg is not a consideration in whether the egg is 
regulated.
    Another commenter asked that the proposed definition of bird be 
clarified. The commenter stated that the rule does not define what 
birds are included in the definition and asked if it includes poultry 
and waterfowl or only domesticated birds.
    All species of Aves are included under the definition of bird, 
although under Sec.  2.1(a)(3) several uses of poultry and domestic 
waterfowl are exempt from AWA licensing requirements. Wild waterfowl 
are regulated under the MBTA by USFWS.
Bred for Use in Research
    The definition of ``animal'' in section 2132 of the AWA means ``any 
live or dead dog, cat, monkey (nonhuman primate mammal), guinea pig, 
hamster, rabbit, or other such 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 . . .''. 
The definition in the Act excludes ``birds, rats of the genus Rattus, 
and mice of the genus Mus, bred for use in research.'' Birds not bred 
for use in research,\8\ unless excluded for agricultural or other uses 
listed in the definition of ``animal,'' are considered to be animals 
under the Act.
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    \8\ Unless otherwise excluded from the definition, birds are 
implicitly defined as animals in the Act and regulations by being 
``warm-blooded.''
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    We proposed to define the term bred for use in research so that the 
regulations are consistent with the Act and to make clear what birds 
are included under the term and therefore not covered under the Act or 
regulations. The term as we proposed it means ``an animal \9\ that is 
bred in captivity and is being used or is intended for use for 
research, teaching, testing, or experimentation purposes.'' Along with 
``research,'' we added ``teaching, testing, or experimentation'' to our 
proposed definition because the Act includes these uses as elements of 
research under its definition of ``research facility.''
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    \9\ The apparent irony of referring to a bird bred for use in 
research as an animal excluded from the definition of ``animal'' is 
noted.
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    Research facilities under the AWA are required to register with 
APHIS and comply with the regulations, including those specific to 
research facilities in part 2, subpart C. Research facilities must keep 
records and report regularly on animal use activities, including common 
names and numbers of animals actually used in experiments and other 
research, and names and numbers of animals that the research facility 
is holding for use in teaching, testing, experiments, research, or 
surgery but has not yet used for those purposes.
    A substantial number of persons commenting on our proposed 
definition of bred for use in research indicated that the definition 
does not clearly delineate which uses of birds would be considered bred 
for use in research and which would not be, and many asked how APHIS 
would regulate based on a facility's intended use versus actual use of 
animals.
    The commenters' questions on this subject highlight an important 
point, in that the use of the term in the AWA itself is ambiguous: 
``Bred for use in research'' could be construed to mean bred with the 
intended use at the time of breeding being future use in research, or 
bred and used in research at a research facility. Several commenters 
pointed out that the intended use for the bird at the time of breeding 
may not be its ultimate use: A bird could be bred intending to be used 
in research and later sold or exhibited if determined to be ill-suited 
for research, or, alternatively, bred for purposes other than use in 
research and later determined to be suitable for research and used in a 
study or experiment.
    The fact that intended use of animals can differ from actual use 
later on poses two areas for revision for our rule and specifically our 
proposed definition of bred for use in research.
    First, the definition leaves open a broad path for breeders to 
evade regulation: If APHIS regulated based on intended use of a bird, a 
breeder could simply state that the bird is intended for research and 
subsequently divert it to another, regulated use, thus circumventing 
the regulations entirely. Second, it creates a compliance challenge for 
registered research facilities, which are required to follow AWA 
regulations specific to research facilities: At what point does a bird 
in their possession stop being an AWA-covered, regulated animal and 
begin being a bird used in research? Could a stated intent to use all 
birds in research serve to exclude all birds in their possession from 
regulation, even those not being used in research? In other words, when 
do the regulations apply to a particular bird?
    For these reasons, we decided that the most defensible 
interpretation of ``bred for use in research'' in the AWA is that the 
bird is bred in captivity and used for research at a research facility. 
``Used for research'' applies to testing, experimentation, teaching, 
and research, including activities such as holding, conditioning, 
acclimating, and preparing animals for procedures. ``Used for 
research'' is unambiguous and makes it easier for the regulated 
community and APHIS to determine which birds are to be regulated and 
which are not, and eliminates the challenges of regulating for intended 
use. Accordingly, we are amending our definition of bred for use in 
research to mean ``an animal that is bred in captivity and used for 
research, teaching, testing, or experimentation purposes.'' We address 
the comments below in light of the revised definition.
    One commenter stated that the definition of bred for use in 
research in the proposed rule is unclear as to whose

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intent is at issue--the owner of the bird at the time it is bred or the 
ultimate user of the bird. The commenter asked us to clarify the 
meaning of ``intended for use,'' including how intent is determined and 
whose intent is at issue, and that we affirm that a change in intended 
use will not by itself result in being regulated.
    We acknowledge above that intended use would be difficult for 
inspectors to externally verify and could expose an impermissible 
exception in the regulations, as breeders excluded from regulation 
based on their intention to breed birds for use in research could later 
divert the birds to a different use such as pets or exhibition. Under 
the revised definition, only bred and used for research, not a change 
in intended use, would dictate a bird's regulatory status.
    As we have noted, a bird may be intended for regulated purposes 
such as for exhibition, only later to be determined to be suitable for 
and used in research. On this point, a commenter asked if the proposed 
definition would include birds ultimately acquired by a laboratory for 
research, but that had been bred for the pet trade, such as a parrot, 
finch, or other bird bred as a companion animal. Another commenter 
asked if zebra finches bred for the pet trade but purchased by a 
research institution would be covered by the proposed amendment. 
Another commenter asked whether birds for which the intent of use has 
changed over their lifetime, for example, birds raised as poultry to 
provide eggs, but later given to a biomedical research institution for 
teaching or research, are to be regulated.
    In keeping with our revised definition, birds that are bred in 
captivity and used by a research facility for research, education, or 
product testing, would be considered ``bred for use in research.'' Such 
birds would not be covered under the AWA or its regulations at the time 
that they are so used. Their intended use prior to being used for 
research would be immaterial for the purposes of meeting the 
definition.
    A commenter using wild and captive-bred birds in research asked us 
to address their concerns as to which birds used for research would be 
covered under the proposed regulations: Offspring of wild birds brought 
into captivity and bred; birds used in research that are obtained from 
wholesalers who breed birds for the pet trade; offspring of birds 
obtained from wholesalers, and birds not bred for research but raised 
in captivity. The commenter added that knowing the status of each is 
important as it impacts the specific standards by which birds are 
maintained and used with respect to identification, housing, and other 
points on which compliance will be determined.
    Birds obtained from their natural habitat (i.e., ``the wild''), are 
covered under the AWA and do not meet the definition of bred for use in 
research because the Act requires that such birds be ``bred,'' which we 
interpret to mean hatched and raised in captivity. Moreover, possession 
of wild birds is likely subject to USFWS regulations. Offspring of wild 
birds, if hatched and bred in captivity, would not be covered under the 
regulations if used for research, nor would birds obtained from 
wholesalers and used for research. Birds not bred and used for research 
but raised in captivity would be regulated if used for any covered 
activity, but would not be regulated if used for research or exempted 
under other provisions.
    Several commenters stated that when a wild bird is bred in 
captivity and intended to be used for more than one purpose, it should 
not be covered under the regulations so long as the primary purpose is 
research, teaching, testing or experimentation.
    Under the revised definition of bred for use in research, a bird 
hatched and bred in captivity and used for research would not be 
covered. If the bird is used for any covered purpose prior to being 
used for research, it would be covered under the regulations until used 
in research.
    A commenter stated that APHIS should provide guidance as to how 
research institutions should document which birds in their possession 
meet the definition of bred for use in research.
    The revised definition of the term, described above, simplifies 
determining whether birds meet the definition: if they have been bred 
in captivity and used for research, they meet the definition.
    A commenter asked whether APHIS has considered the challenges to 
the supply of birds used for research that this proposed regulation 
likely will cause, if enacted.
    As birds bred for use in research are excluded under the definition 
of animal in the Act and regulations and not covered under the proposed 
regulations, we do not expect this rulemaking to impose regulatory 
pressures on the supply of birds used for research.
    A commenter stated that the phrase ``bred in captivity'' is not 
species-specific, as both domesticated and wild species may be bred in 
captivity, and noted that wild birds bred in captivity for use in 
research fall under the definition of bred for use in research. The 
commenter stated that footnote 12 in the proposal, which indicates that 
research facilities using wild-caught birds to conduct investigations 
into animal propagation activities are subject to the rule's 
provisions, should be revised by removing ``investigations into animal 
propagation'' as a regulated research activity.
    While offspring of wild birds hatched in captivity and bred for use 
in research would be excluded from regulation, birds that are captured 
in the wild and held for use in research would be subject to 
regulation, as those birds have not been bred in captivity but were 
taken from the wild.
    A commenter asked that we consider changing wording in the proposed 
definition from ``bred in captivity'' to ``born or hatched in 
captivity'' since the breeding activity may occur at a location outside 
of the current owner's knowledge.
    ``Bred in captivity'' encompasses the act of being born or hatched 
in captivity under the direction of a breeder, regardless of the 
location where it occurs. It differentiates bred birds from wild, 
caught birds.
    A commenter suggested that we simply delete the definition of bred 
for use in research because it includes birds bred for purposes other 
than research, such as teaching and testing. Another commenter agreed, 
stating that the definition, as worded, impermissibly broadens the 
scope of excluded birds beyond those simply bred for research.
    We are not removing the term or its definition, which we have 
revised above. Under the definition of animal in the Act, regulated 
uses include the use of birds in ``research, testing, and 
experimentation,'' all of which are activities integral to research 
conducted at research facilities. For this reason, we consider ``use in 
research'' to be inclusive of teaching, testing, and experimentation, 
and their supporting activities when these activities are conducted at 
research facilities.
    Finally, during the implementation period for this final rule, we 
will respond to any research facilities having questions about the 
regulatory status of their birds.
Carrier
    In the regulations, carrier is defined as ``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.''
    We proposed to revise the definition of carrier to include an 
exemption from AWA registration for anyone

[[Page 10660]]

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. As transport of such migratory birds 
is regulated by USFWS, any person transporting or otherwise possessing 
a migratory bird is required to obtain authorization to do so from that 
agency. We added 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.
    One commenter expressed concern that exempting transporters of wild 
birds for rehabilitation purposes or release into the wild creates a 
loophole through which such birds may be brought into captivity. The 
commenter added that the exemption, as stated here and elsewhere in the 
regulations, must be amended to indicate that the exemption is 
effective only if the bird is released from human guardianship upon 
completion of medical care or rehabilitation.
    We disagree with the commenter, as not all wild birds that are 
transported for rehabilitation purposes under the exemption are 
released into the wild. Some may need to be euthanized, and others may 
no longer be able to survive in the wild and must remain captive, at 
which point they would be regulated and covered under transportation 
and care standards.
    Another commenter asked that the phrase ``and eventual release in 
the wild'' should be omitted from this proposed revision and from that 
of intermediate handler, as not all migratory birds requiring 
rehabilitation are suitable for release.
    We are making no changes in response to the comment as removing the 
reference to release also removes the exemption for any transporter 
moving a bird to a location where it is to be released.
    A commenter recommended that if APHIS retains the wild bird 
rehabilitation exemption, it should clarify in the rule and regulatory 
text that ``rehabilitation'' is a regulated term and should also 
provide definitions and guidelines consistent with or stricter than 
USFWS guidelines for rehabilitation permits.
    We are taking no action in response to the commenter's request. The 
AWA does not regulate rehabilitation activity or issue rehabilitation 
permits, and our use of the term ``rehabilitation'' is a reference to 
USFWS's issuance of rehabilitation permits. The conditions under which 
USFWS issues such permits are found in 50 CFR 21.76. The definitions of 
carrier and intermediate handler thus refer to rehabilitation only in 
the context of transporting wild birds covered under MBTA regulations 
and under the USFWS's understanding of that term.
Dealer
    Although we proposed no changes to the current definition of dealer 
in Sec.  1.1 of the AWA regulations, a commenter requested that APHIS 
expressly exclude breeders and purchasers of racing pigeons from the 
definition.
    We see no need to provide such an exclusion from the definition, as 
in the exhibitor definition below we already exempt this activity from 
regulation on grounds of being historically associated with the 
agricultural arts and sciences.
Exhibitor
    We proposed to revise the definition of exhibitor to include 
persons who exhibit birds not bred for use in research. An exhibitor is 
currently 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. Excluded 
from the term, and therefore not regulated under the AWA regulations, 
are 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.
    As with horse and dog races, and purebred dog and cat shows, we 
noted in the proposal that we consider pigeon races and bird fancier 
shows to be exhibitions rooted historically in the advancement of 
agricultural arts and sciences. Animals exhibited or intended for 
exhibit in agricultural exhibitions that USDA has determined are 
intended to advance agricultural arts and sciences are not covered 
under the AWA. Therefore, we proposed amending the definition of 
exhibitor by adding pigeon races and bird fancier shows to the list of 
exhibitions excluded from coverage. In addition, for clarity, we added 
free-flighted bird shows as an illustrative example of an animal 
exhibition that is included under the definition of exhibitor, although 
persons who free-fly their birds solely for their own use or enjoyment, 
without compensation, are not required to obtain a license for that 
activity.
    A few commenters asked that we not exclude pigeon races and bird 
fancier shows as protected exhibitions, with one stating that pigeon 
racing is an exhibition activity with animal welfare and disease risks 
and should be regulated, and adding that it is difficult to think of 
pigeon races as advancing agricultural arts and sciences. Similarly, 
another commenter disagreed with our position that pigeon racing has 
agricultural origins, noting that the sport is instead rooted in ``the 
use of homing pigeons for non-agricultural activities since ancient 
times,'' and added that homing pigeons used in racing are not farm-type 
animals. The commenter also disagreed with our reference to horse and 
dog shows as examples of other activities similar to pigeon racing 
based in agriculture, noting that horse and dog racing comprise a 
separate exclusion under the definition of exhibitor and should not 
necessarily be used as a basis for an agriculture-based exclusion.
    We are making no changes in response to the commenters' request. 
Under the definition of exhibitor in the AWA, the USDA Secretary has 
the authority to determine whether exhibitions are intended to advance 
agricultural arts and sciences and to exclude them from regulation on 
that basis. While pigeons are not typically kept on farms as a food 
animal, the exemption in the AWA's definition of exhibitor is thus 
broader than mere use of an animal on the farm. We also disagree that 
pigeon racing should be considered aligned with the use of homing 
pigeons, and maintain that the act of racing pigeons has a distinct 
agricultural heritage. Staged agricultural exhibitions of racing 
pigeons have occurred since the 1800s. Moreover, these have occurred 
without a demonstrated history of spread of disease or lapses in animal 
welfare.
    Because we are excluding falconry from the definition of animal in 
Sec.  1.1, we are also amending the proposed definition of exhibitor to 
also exclude falconry, as we received many comments noting that 
falconry birds are not typically used under any of the uses under the 
definition of animal in the Act: ``[R]esearch, testing, 
experimentation, or exhibition purposes, or as a pet.'' Several 
commenters noted that falconers rarely exhibit their birds for purposes 
outside the practice of falconry. Commenters also cited the historical 
and agrarian roots of falconry, and the fact that falconers are already 
regulated, required

[[Page 10661]]

to be sponsored under a master falconer, undergo extensive training, 
and demonstrate competence with controlling their birds. They must also 
hold both State and Federal permits, and Tribal permits as applicable.
    A commenter stated that APHIS should clarify the proposed 
regulations with regard to the scope of exhibitor facilities to be 
regulated, as it is unclear whether they apply to wildlife sanctuaries, 
which also exhibit birds for commercial and fund-raising purposes. The 
commenter added that if APHIS is unable to implement new regulations 
for all such facilities, then it should withdraw any new regulations 
until it can do so.
    Captive birds in a wildlife sanctuary that are exhibited for the 
purposes described by the commenter would be regulated. Birds 
undergoing rehabilitation would be exempt from regulation provided they 
are not exhibited and physically separated at the facility from 
exhibited birds. Without separation, the birds undergoing 
rehabilitation could affect the health or well-being of the exhibited 
birds. APHIS intends to implement and enforce the regulations for all 
such facilities covered under the AWA.
    A commenter noted that educational exhibits developed for a primary 
purpose other than animal exhibition may ``incidentally'' include 
birds, e.g., an indoor arboretum in which wild birds are present, or in 
which a few birds are kept, and the birds themselves are not being 
exhibited but are in an exhibit of an entirely different nature. The 
commenter encouraged APHIS to consider revising the definition of 
exhibitor by adding an exclusion for such incidental exhibits with 
birds.
    We are making no exclusions from the definition of exhibitor as 
requested by the commenter because one is not necessary. If wild birds 
inadvertently enter an exhibit, they are not exhibited birds and 
efforts should be made to remove them if they pose a threat to the 
welfare of covered animals in the exhibit.
    A commenter asked us to clarify whether the definition of exhibitor 
includes individuals on social media, or ``influencers,'' who present 
their birds to the public through social media platforms and receive 
compensation. The commenter opined that influencers are covered under 
the proposed standards but is unclear if APHIS intends to apply the 
regulations to these persons.
    Birds that would be covered under the Act if exhibited live would 
also be covered if exhibited via social media. Any exemptions for 
online exhibitors would be the same ones available to persons 
exhibiting animals live.
    A commenter objected to the inclusion of free-flighted bird shows 
under the definition of exhibitor and requested that APHIS exempt 
individuals who free-fly personal pet birds and members of free-flying 
clubs who fly their birds in public. Similarly, another commenter asked 
us to provide examples of free-flighted shows covered under the 
regulations and stated that free-flighted birds should not be subject 
to licensing unless someone has more than eight birds that fly at one 
time. Another commenter asked that the definition of exhibitor be 
amended to exempt the use of raptors protected under the MBTA for 
educational uses, particularly free-flighted bird shows.
    Falconers and others who free-fly birds for their personal use and 
enjoyment and not for exhibition purposes are not covered under the 
regulations. Persons who exhibit birds to the public for any purpose 
and who are not otherwise exempted are subject to AWA licensing.
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 proposed 
including birds under the definition of pet animal and amending the 
illustrative list of animals contained in the definition by adding 
examples of pet birds. We proposed that such birds include, but are not 
limited to parrots, canaries, cockatiels, lovebirds, and budgerigar 
parakeets. We listed 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.
    A few commenters asked that we amend the list of birds in the 
definition because cockatiels, lovebirds, and budgerigar parakeets are 
all types of parrots. One commenter suggested that parrots, canaries, 
finches, and doves would serve as better examples of pet birds.
    The list we provided of pet birds is intended for illustrative 
purposes, and we do not intend it to be exhaustive. We acknowledge that 
birds listed by the commenter can be kept as pets but see no need to 
add them to the definition.
    Numerous commenters disagreed with our proposed inclusion of birds 
under the definition of pet animal. Many commenters expressed concern 
that if such birds are defined as pet animals, they would not receive 
protection, as retail pet stores could confine and sell them without 
obtaining a license and that, for this reason, parrots and other bird 
species should never be kept or sold as pets.
    The inclusion of birds in the definition of pet animal will only 
improve the welfare status of birds sold as pets at retail, as many 
currently unlicensed outlets already selling birds as pets will need to 
become licensed. Although a retail outlet that sells birds meeting the 
definition of pet animal may meet the definition of a retail pet store 
in Sec.  1.1 and thus be exempt from licensing, that outlet can only 
remain exempt if all such animals are sold in face-to-face transactions 
in which the seller, buyer, and animal are physically present at the 
place of business or residence, which affords a measure of protective 
public oversight. Retail outlets selling any animal via remote or 
online transactions and not otherwise eligible for de minimis or other 
exemptions are subject to APHIS licensing and inspection. Moreover, 
outlets selling wild or exotic animals as defined in Sec.  1.1 are not 
eligible for the retail pet store licensing exemption.
    Several commenters asked that we define pet animal such that all 
bird species are protected as wild and exotic animals. A commenter 
stated that no explanation is given for why non-native, non-
domesticated birds are considered exotic or wild, and another asked 
that we make a clearer distinction between wild birds and various 
domestic species. Another commenter who disagreed with the definition 
of pet animal stated that animals commonly kept on display or traded as 
pets are often indistinguishable from their wild counterparts--they are 
native species of other countries, and, in some cases, of the United 
States, and meet the definition of exotic animal, or wild animal, under 
the Act.
    We note that many mammals that meet the definition of pet animal, 
such as hamsters, were once considered exotic and wild, and that 
parakeets and several other species of pet birds were similarly 
regarded. Accordingly, the fact that a bird species that was once wild 
or non-native is now sold as a pet should not preclude it from being 
considered a pet animal. While we proposed amending the definition of 
pet animal by adding ``birds'' and listing examples of birds commonly 
kept as pets, we emphasize that birds meeting the definition of exotic 
animal or wild animal as currently defined in Sec.  1.1 will continue 
to be excluded from the definition of pet animal and would thus be 
subject to regulation. Any retail

[[Page 10662]]

outlets selling exotic or wild birds will require APHIS licensing and 
inspections. Furthermore, trade in native migratory wild birds is 
prohibited under the MBTA without prior authorization from the USFWS. 
Pet stores that are uncertain whether they sell pet birds or wild or 
exotic birds may contact APHIS during the implementation period after 
this rule becomes effective but before it is applied to regulated 
entities for guidance.
    One commenter noted that a parrot is an exotic species and not a 
pet, and that genetically and behaviorally they cannot be considered to 
be a domesticated species.
    A distinction exists between birds that have historically been used 
as pets, including some species of parrots, and birds that are wild or 
exotic animals as defined under those terms. On this point, we 
acknowledge that some types of parrots are not commonly kept as pets in 
family households in the United States and may fall under the 
definition of exotic animal. Accordingly, we are removing ``parrots'' 
from the illustrative list in the definition, although some parrots 
will still be defined as a pet animal if they meet the definition of 
pet animal. In short, while not all parrots are pet animals, some are.
    A commenter stated that USDA has failed to provide an illustrative 
list of exotic birds, despite having historically done so for other 
species.
    We do not intend to develop a list of exotic species of birds. 
However, we are drafting a list of birds commonly kept as pets that we 
intend to make available prior to the implementation period for this 
rule. We will offer guidance to new and current licensees as to the 
regulatory status of their bird species if they have questions during 
that time.
    A commenter stated that raptors as classified by APHIS are either 
``wild animals'' or ``exotic animals'' depending on the raptor's native 
origin and do not fall under the pet animal definition, noting there is 
no raptor pet trade. Similarly, a commenter asked that we revise the 
definition of pet animal to explicitly state that it does not include 
birds protected under the MBTA, whether of wild or captive origin.
    We agree that raptors and other birds protected under the MBTA do 
not meet the definition of pet animal. However we do not find it 
necessary to revise the definition to exclude them because the absence 
of a raptor pet trade suggests that they are not being sold as pets. 
Furthermore, as we discuss in this document, falconry is not a use of 
birds that is covered under the AWA.
    A commenter requested that APHIS specifically exclude racing 
pigeons from the definition of pet animal.
    We are making no change to the definition in response to the 
commenter's request, as racing pigeons do not meet the definition of 
pet animal for reasons previously articulated.
Exotic Animal
    Exotic animal in the current regulations is defined in part as an 
animal that is ``native to a foreign country or of foreign origin or 
character, is not native to the United States, or was introduced from 
abroad.'' While some birds that were introduced from abroad meet the 
definition of pet animal, as discussed above, exotic and wild animals 
are excluded from the definition of pet animal.
    In proposing to regulate birds not bred for use in research, we 
noted that such birds would be subject to all applicable regulations in 
9 CFR parts 1 and 2. Accordingly, birds meeting the definition of 
exotic animal would be defined and regulated as such.
    A commenter opined that this definition would consider as 
``exotic'' certain species of birds such as parakeets, canaries, and 
zebra finches that were not initially native to the United States, but 
are now commonly kept as pets or used in research and no longer exotic 
in the normal sense of the word. The commenter encouraged APHIS to 
review the definition of exotic animal and exclude species of birds 
that were introduced into the United States long ago and are now 
commonly kept in captivity.
    The commenter is correct in indicating that the definition of 
exotic animal applies to many animals that were introduced into the 
United States long ago and now kept in captivity or as pets. However, 
the types of birds that the commenter asked that we exclude from the 
definition of exotic animal are already excluded from that definition 
by virtue of their being included under the revised pet animal 
definition. The terms pet animal and exotic animal are thus used in a 
mutually exclusive sense within the regulations: A pet animal cannot be 
an exotic animal and vice versa. For this reason, we are making no 
changes to the definition of exotic animal as requested by the 
commenter. However, the commenter does raise a significant point. As 
with parakeets and cockatiels, other birds now considered to be exotic 
could, over time, be routinely sold as pets and meet the definition of 
pet animal. We will monitor the pet market in birds to identify exotic 
species that are being marketed as pet birds and after notice is 
provided, ensure that they are included under the proper definition.
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 proposed several changes to the definition of farm animal to 
ensure appropriate coverage for birds. Domestic species of poultry 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 proposed amending this definition to 
include such poultry. This would 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.
    A commenter stated that in order to eliminate any 
misinterpretations we should revise the definition of farm animal to 
specifically identify chickens, as well as chicken breeder flocks and 
parent flocks used in broiler chicken production. The commenter 
recommended adding ``or breeding of food-producing animals or their 
progenitors'' as one of the listed uses that qualifies animals as farm 
animals in the definition.
    We see no need to revise the proposed definition of farm animal to 
include chickens, as they are specifically listed under poultry and 
poultry are included under the definition of farm animal. Moreover, the 
use of broiler chickens as poultry used or intended for use as food 
already excludes them from coverage by virtue of their being excluded 
from the definition of animal in Sec.  1.1.
    We also proposed to revise farm animal to include animals when used 
solely for their feathers or skins. Our proposed addition of feathers 
accounted for morphological differences between

[[Page 10663]]

birds and other animals and is the avian equivalent of farm animals 
excluded from regulation when used solely for the purposes of fur. The 
addition of skins to the list reflects the common practice of using 
ostrich and other skins of birds for leathers. We also proposed adding 
ratites (e.g., ostrich, rhea, and 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 
proposed adding a separate definition of the term poultry to the AWA 
regulations to clarify what birds are considered poultry. This term is 
defined as any species of chickens, turkeys, swans, partridges, guinea 
fowl, and pea fowl; ducks, geese, pigeons, and doves; grouse, 
pheasants, and quail.
    A commenter stated that poultry obtained from commercial production 
for research, teaching, and education fall outside the scope of this 
proposed rule and asked that we confirm that these poultry are not 
covered.
    Such poultry would be considered bred for use in research and not 
subject to the regulations.
    A commenter requested that we specifically clarify that racing 
pigeons meet the definition of farm animal.
    Pigeons used for food or feathers are poultry and would be 
considered farm animals not covered under the regulations. As discussed 
above, racing pigeons are not covered under the regulations because we 
consider them to be used in an agricultural context, and animals used 
in such a manner are excluded from regulation.
    Another commenter asked that feral pigeons receive protection under 
the AWA regulations.
    Feral pigeons by definition live in a wild state and are not 
covered under the AWA.
    A commenter asked if farmed ostrich, rhea, and emu will be 
considered domestic poultry under the proposed regulations.
    We do not consider ratites to be poultry, but under the definition 
of animal in Sec.  1.1, farm animals used or intended for use as food 
or fiber, including farmed ratites, are excluded from AWA regulation.
    Another commenter stated that gamefowl farms should be exempt from 
regulation as such birds cannot be housed or transported together in a 
social environment, noting that the spurs of roosters contain a 
bacteria that can cause a septic infection.
    Provided that the farmed gamefowl are used or intended for use as 
food or feathers, or for improving animal nutrition, breeding, 
management, or production efficiency, or for improving the quality of 
food or feathers, the birds are excluded from coverage under the Act.
    A commenter asked if poultry are exempt from regulation under the 
``food and fiber'' provision if they are used as feeder animals for 
other species.
    If poultry are being bred and used as food for other animals, they 
are exempt under this provision.
    The commenter also asked if a group of grouse not meant for 
exhibition and being managed as a breeding colony would be exempt from 
regulation, as one of the exempted activities listed under farm animal 
(in which poultry will be included) is breeding.
    If the grouse breeding colony and offspring are used or intended 
for use as food or feathers, or for improving animal nutrition, 
breeding, management, or production efficiency, or for improving the 
quality of food or feathers, the colony and offspring are exempt from 
regulation.
Intermediate Handler
    In the regulations, an 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.
    We proposed amending 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. Any 
person intending to transport or otherwise possess a migratory bird 
covered under the MBTA is currently required to obtain authorization 
from USFWS.
    As we proposed the same amendment to carrier, the comments on this 
provision addressed both terms and thus are discussed above under the 
definition of carrier.
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 also excludes establishments or persons 
conducting certain activities, meaning that these establishments do not 
meet the retail pet store definition and are therefore not exempt from 
licensing. These exclusions from the definition 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 proposed to revise the definition of retail pet store by 
removing the parenthetical exceptions for birds from this list of 
exclusions. As we noted in the proposal, these parenthetical exceptions 
exist as a result of the historical exclusion of all birds from the 
definition of animal in Sec.  1.1 of the regulations, but they are now 
inconsistent with the current definition of animal (under which birds 
not bred for use in research are included).
    A substantial number of commenters requested that we revise the 
definition of retail pet store to ensure that all wild and exotic bird 
species receive protection. In support of this request, commenters 
stated that many bird species are wild and exotic and have not been 
domesticated like dogs and cats, and that pet shops that sell birds 
should be licensed.
    We disagree with the commenters that pet stores should need to be 
licensed simply because they sell birds. As we noted above in our 
response to comments on our proposed changes to the pet animal 
definition, several species of birds have historically been used as 
household pets, including some species of parrots. While these birds 
were initially exotic when introduced

[[Page 10664]]

into the pet trade, they have become widely regarded as pet animals 
today, and we see no reason to consider them distinct from other pet 
animals. Conversely, we agree with the commenters that many species of 
birds are wild or exotic animals, and should not be considered pets. In 
this regard, we believe that our proposed definition of retail pet 
store actually provides additional oversight protection for such birds, 
as businesses selling any bird meeting the definition of exotic animal 
or wild animal \10\ as currently defined in Sec.  1.1 would not be 
eligible for the retail pet store exemption and require licensing. The 
definition we proposed also excludes businesses that sell pets in 
transactions without the buyer being physically present to purchase or 
take custody of the animal. Currently unregulated businesses already 
selling wild or exotic birds, or birds as pets online without the buyer 
being physically present at sale, will need to become licensed or seek 
an exemption.
---------------------------------------------------------------------------

    \10\ Moreover, nearly all wild birds in the United States are 
regulated by USFWS under the MBTA.
---------------------------------------------------------------------------

    A commenter stated that because of their longevity, many parrots 
are abandoned by their owners and end up in rescue organizations and 
sanctuaries. The commenter asked that we revise the definition of 
retail pet store to explicitly include protections for long-lived 
exotic birds such as parrots that are being bred and sold at retail pet 
stores.
    As the definition of retail pet store is intended for persons or 
businesses physically having pet animals for sale, revising the 
definition of retail pet store would not address the commenter's 
concern about abandoned parrots because they would no longer be in the 
retail pet store's possession. We note that birds at rescue 
organizations and sanctuaries that are exhibited or sold receive 
protection as they are covered under the AWA.
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 proposed to amend this definition 
to make it applicable to birds by adding 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. 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.
    A commenter stated that many falconers choose to train imprinted 
birds that they have raised themselves from a young age and that 5 days 
is a long time in the development of an imprint. The commenter noted 
that approximately a fifth of falconers in their organization have 
received young birds from breeders via commercial shipment that did not 
meet this 5-day test, and that a more reasonable definition for raptors 
would be eating unassisted for 2 days.
    Practices associated with the sport of falconry, including the 
activity described by the commenter, are not among the uses covered 
under the AWA.
    Another commenter disagreed with the definition of weaned, noting 
that some species feed their young well after they are able to feed and 
fend for themselves. The commenter added that ``constant body weight'' 
implies unchanging weight, which is unreasonable, and suggested that 
``stable'' be used instead. Similarly, a commenter asked that APHIS 
amend the definition to remove the requirement that a bird maintains 
its weight during this period.
    Although some species may continue to feed their young well after 
the young can feed and fend for themselves, we consider the offspring 
as being weaned. In the proposed definition, we indicated that 
maintaining a constant body weight is only included among other 
possible signs that a bird has become accustomed to take food during 
weaning. We agree with commenters that ``weaned'' does not necessarily 
mean that the bird has stopped growing or that its body weight is 
constant and are removing the last sentence referring to signs of 
weaning.
Other Applicable Terms and Definitions in Sec.  1.1
    Finally, persons affected by this rule would be subject to other 
terms and definitions in Sec.  1.1 that we did not add to the 
regulations or revise, as applicable. Those terms, which include 
commerce, transporting vehicle, and zoo, are germane to many or all 
AWA-related activities.

Regulations for AWA Licensees and Registrants in 9 CFR Part 2

    In addition to the amendments we proposed making to the 
regulations, all applicable licensing, registration, research, and 
inspection requirements currently in 9 CFR part 2 for licensees and 
registrants will apply to all persons newly regulated as a result of 
this rulemaking.

9 CFR Part 2, Subpart A: Licensing

    Under Sec.  2.1(a)(1) in 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 submit a license 
application provided by APHIS. Information requested by the application 
includes the address of each facility or facilities; maximum number of 
animals on hand at any one time during the period of licensure; types 
of animals maintained; and disclosure of any no contest plea or finding 
of violation of Federal, State, or local laws or regulations pertaining 
to animal cruelty or the transportation, ownership, neglect, or welfare 
of animals. The application must be submitted to APHIS-Animal Care, 
along with a $120 licensing fee as indicated in Sec.  2.1(a)(2). 
Licenses are valid for 3 years. Persons seeking a license must also 
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.
    A commenter stated that license fees should be adjusted by the 
Secretary in accordance with Sec.  2153 of the Act such that the value 
of the fees also supports bird inspection and rehabilitation processes.
    Section 2153 states that ``[T]he Secretary shall charge, assess, 
and cause to be collected reasonable fees for licenses issued. Such 
fees shall be adjusted on an equitable basis taking into consideration 
the type and nature of the operations to be licensed. . . .'' These 
fees are not user fees and are not linked to recovering the cost of 
licensing, inspection, enforcement, or other APHIS services, but rather 
set at a level by APHIS to ensure that the fees are reasonable based on 
the classes of persons and businesses regulated. As to rehabilitation 
processes, we note that APHIS does not regulate animal rehabilitation 
activities.
    We received numerous comments in which persons expressed concerns 
about the prelicensing inspection requirement. These comments, 
discussed below, include concerns about APHIS having the resources to 
adequately conduct inspections, as well as concerns about the 
inspection disrupting facility activities and violating privacy.
    Some commenters questioned APHIS' ability to conduct equitable, 
comprehensive inspections and enforce the proposed regulations without 
additional human or financial resources.
    We estimate in the revised economic analysis prepared for this 
final rule that there will be between 5,975 to 7,913 newly regulated 
entities maintaining

[[Page 10665]]

birds for covered uses. While APHIS will need to allocate resources to 
conducting prelicensing inspections for new licensees, we are confident 
based on our long experience with inspections that we can perform these 
activities effectively. Moreover, our adoption of a 1-year delayed 
implementation of the rule's provisions allows us to better manage 
prelicensing inspections. APHIS also uses a risk-based inspection 
system \11\ that uses several objective criteria, including but not 
limited to past compliance history, to determine the minimum inspection 
frequency at each licensed and registered facility. Facilities meeting 
the criteria for low-frequency intervals are subject to inspection once 
every year, or every 2-3 years, or in some cases only when we receive a 
complaint. Facilities determined to require high-frequency inspections 
are subject to inspection as often as every 3 months. Those in the 
middle are inspected about once per year. Registered research 
facilities are inspected at least once per year, as required by the 
AWA.
---------------------------------------------------------------------------

    \11\ See more about the risk-based inspection process at https://www.aphis.usda.gov/aphis/ourfocus/animalwelfare/awa/ct_awa_risk_based_inspection_system.
---------------------------------------------------------------------------

    Some commenters stated that the inspection of home-based businesses 
was an unconstitutional invasion of privacy, and that APHIS is not 
authorized to conduct such inspections.
    While the U.S. Constitution affords rights to persons against 
unlawful search and seizure in their homes, Sec.  2146 of the AWA 
explicitly authorizes inspections of licensees to determine compliance 
with the regulations. However, such inspections are limited to only 
those areas that impact the well-being of the animals, such as areas 
where food and medicine for the animals are stored. In other words, 
only the ``business'' part of a residence would be inspected for 
compliance with animal welfare standards, and APHIS inspectors are 
trained to observe and respect this distinction.
    Some commenters raised biosecurity concerns about inspectors 
carrying pathogens into the facility. A few commenters stated that 
weekly PCR testing and vaccination requirements for COVID-19 should be 
considered for APHIS inspectors. Some stated that inspectors should be 
required to wear protective clothing to reduce the risk of disease 
transmission.
    As is currently the practice, APHIS inspectors will take all 
biosecurity precautions sufficient to minimize introduction of human- 
or bird-based pathogens into facilities.
    Several commenters stated that their birds are sensitive to 
strangers during breeding and nesting periods and that the presence of 
an inspector could cause birds to injure themselves or their nestlings. 
One such commenter stated that minor stresses, like strangers walking 
into the aviary and being seen or heard by the birds, can lead to the 
death of the female and offspring. Another commenter stated that 
psittaculture, the captive breeding and conservation of rare parrots, 
would be harmed by inspectors disrupting nesting and breeding 
activities. Some commenters called for all breeding facilities to be 
exempt from regulation, as disruption of breeding resulting from 
inspections could cause substantial costs to the breeder. On the other 
hand, some commenters stated that nesting and breeding concerns should 
not impede compliance inspections, and others noted that remote camera 
technology can allow inspectors to view birds without entering the 
nesting area.
    We acknowledge commenter concerns regarding the presence of 
strangers during periods of breeding while affirming the importance of 
determining compliance through visual inspection. APHIS will not impose 
any requirements that will interfere with a species' natural behavior 
when it comes to nesting and breeding. APHIS will work with facilities 
to find approaches that accommodate these concerns while ensuring that 
inspections can occur at appropriate times and possibly with the 
assistance of technology, if appropriate. As we note above, inspections 
in such situations would not be random but would be based on the 
facility's record of compliance and other objective criteria we use to 
determine inspection frequency.
    One commenter stated that, in addition to demonstrating compliance 
through a prelicensing inspection, license applicants should also have 
to demonstrate experience with the taxa they are caring for as measured 
by the number of years they have been working with the taxa, by working 
with a mentor or outside expert who is able to provide knowledge-based 
skills, or by an industry certification. Similarly, another commenter 
stated that some form of experience or knowledge-based skills should be 
expected, as no level of experience is required to acquire the USDA 
license.
    We agree that an applicant having the ability to adequately care 
for their particular types of birds is a prerequisite for obtaining a 
license. However, APHIS has other ways of gauging this ability through 
the inspection without requiring a certain number of years of 
experience or an industry certification. During the prelicensing 
inspection, inspectors can see that a well-maintained facility 
indicates knowledge and application of professional standards on the 
part of the applicant. Inspectors also ask questions and engage in 
dialogue to gauge an applicant's ability to ensure adequate care for 
its animals.
    A commenter asked if there will be a compliance period for newly 
regulated entities, and what will happen to birds of persons not in 
compliance.
    APHIS will establish an implementation period of 180 days after 
date of publication for persons already licensed for mammals and using 
birds, and a period of 365 days for newly licensed persons using birds 
for regulated purposes. During these periods, APHIS will provide 
guidance to facilities to help them come into compliance with the 
regulations to ensure the birds' health and well-being. If inspectors 
discover conditions or records that are not in compliance with the 
regulations, APHIS-Animal Care establishes a deadline for correcting 
these items and provides it in the inspection report. If the 
noncompliance is a repeat noncompliance for which the original 
correction deadline has already passed, no additional time is given for 
corrections. Inspectors are required to reinspect any facilities where 
areas of noncompliance were found that have, or are likely to have, a 
serious impact on the well-being of the animals. In cases of unrelieved 
suffering, APHIS may confiscate the animals or arrange for their 
placement elsewhere.
    Some commenters raised questions about the qualifications of APHIS 
inspectors and whether such inspectors would have the avian expertise 
needed to evaluate facilities housing birds. One stated that APHIS 
inspectors lack the skills necessary for assessing avian health and 
husbandry, such as knowledge of caging, flocking birds, and housing 
different bird species for compatibility. Some recommended that only 
veterinarians with avian expertise should conduct inspections of 
facilities, as they have the education and experience necessary to 
inspect birds. Another commenter suggested that we require veterinary 
oversight in lieu of inspections, adding that if a qualified 
veterinarian is not available, entities could use an avian-specific 
regulatory agency such as the Model Avicultural Program to assist in 
qualifying facilities.
    All APHIS officials conducting compliance inspections will have the 
knowledge and resources needed to determine whether facilities are 
meeting the standards, with regular trainings to

[[Page 10666]]

inform them of emerging developments in aviculture. This can be 
accomplished without a specific prior background in avian health. 
Veterinary oversight and the Model Avicultural Program alone would 
provide some level of humane care, but are not sufficient surrogates 
for Federal inspection of the facilities. For example, as we mentioned 
in the proposed rule, the Program addressed some, but not all, of our 
proposed standards.
    A commenter asked us to include a provision to have care for birds 
be a point of evaluation, and not just a category investigated on the 
basis of a complaint.
    Inspections are not conducted only in response to complaints, 
although we do investigate complaints as they are received. APHIS 
requires a prelicensing inspection as a condition of licensing as well 
as subsequent compliance inspections of facilities based on level of 
risk, with more frequent and in-depth inspections at facilities posing 
a higher risk of animal welfare concerns.

AWA Licensing Requirements and Birds Covered Under the Migratory Bird 
Treaty Act

    The MBTA (16 U.S.C. 703-712), passed by Congress in 1918, 
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.\12\ With some exceptions,\13\ 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.\14\
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    \12\ 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.
    \13\ 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.
    \14\ Regulations and permits specific to bald and golden eagles 
are located in 50 CFR part 22.
---------------------------------------------------------------------------

    As we noted in the proposal, the 2002 amendments Congress made to 
the Act subjected birds not bred for use in research to regulation, and 
did so without distinguishing migratory birds from other birds. While 
migratory birds are currently covered under the MBTA and its 
regulations, the MBTA's primary objective is to sustain and protect 
native populations of such birds rather than to establish specific 
standards of care and humane treatment for birds in captivity. In other 
words, the MBTA was drafted with the intention of preventing poaching 
and overhunting of migratory birds and does not include specific animal 
welfare requirements.
    In the proposal, we invited comments on ways that we may reduce 
regulatory burden on persons who could be potentially regulated by both 
APHIS and USFWS.
    One commenter asked us to interpret all migratory birds as wild 
animals to be consistent with a ``plain reading'' interpretation of the 
definition of wild animal in 9 CFR 1.1.
    We are taking no action in response to the commenter's request. The 
regulations define wild animal as ``any animal which is now or 
historically has been found in the wild, or in the wild state, within 
the boundaries of the United States, its territories, or possessions,'' 
whereas some migratory birds travel beyond those boundaries. Moreover, 
certain birds sold in the pet trade (e.g., cockatiels) are migratory, 
and the commenter's suggestion would lead to confusion about whether 
such animals, when sold as pets, are or are not regulated.
    The same commenter also requested that we interpret migratory birds 
to not qualify as ``small,'' so that migratory birds would not be 
excepted from licensing requirements under 9 CFR 2.1(a)(3)(iii). The 
commenter added that while the term ``small'' implies a meaning of 
size, in USDA practice it is used to indicate the need for specialized 
care in captivity.
    Contextually, the word ``small'' is used in Sec.  2.1(a)(3)(iii) to 
refer only to mammals. Birds are not mammals.
    One commenter stated that while Federal authority over migratory 
birds remains under the MBTA, it does not replace or prohibit welfare-
based regulations for migratory birds in captivity. The commenter added 
that the MBTA was specifically enacted to address hunting of migratory 
birds, not their care and conditions in captivity, and covers conduct 
that is not addressed by the AWA, just as the AWA covers conduct not 
covered by the MBTA. The commenter reasoned from this that there is no 
conflict in having both the USFWS and APHIS regulate the treatment of 
migratory birds. Another commenter stated that rather than drafting 
regulations with the intent to ``minimize dual regulation'' and 
potentially carve out migratory birds from AWA protections, USDA should 
maximize animal welfare. The commenter noted that the AWA and MBTA have 
distinct missions and that other Federal regulatory overlaps have not 
prevented USDA from promulgating robust standards for the care and use 
of animals--the commenter cited the interplay between the AWA and 
Endangered Species Act as one such example.
    We agree with the commenters that both agencies may regulate 
migratory birds with minimal regulatory overlap, although we have no 
intention of exercising duplicative oversight of handlers and 
transporters. Unlike the MBTA, which addresses the protection of free 
and captive migratory birds, the focus of the AWA is on the standards 
of care, use, and welfare of regulated birds. As the commenter noted, 
many mammals currently regulated under the AWA are also regulated, for 
different purposes, under the Endangered Species Act and statutes of 
other Federal Agencies.
    One commenter requested that APHIS communicate not only with USFWS 
but also the U.S. Geological Survey's (USGS) Bird Banding Laboratory 
and work with both agencies to reduce the amount of regulatory overlap. 
The commenter noted that the USGS issues bird banding permits and data 
needs to be submitted to USGS, State agencies, and the relevant 
Institutional Animal Care and Use Committee (IACUC) in fulfillment of 
each of those units' permits, which is a heavy administrative burden 
for bird banders and researchers. The commenter suggested that APHIS 
rely on USGS oversight for marking and tagging, and on USFWS oversight 
for waterfowl and endangered birds.
    We appreciate the commenter's suggestion to work with USGS and 
USFWS in identifying birds. We will consider the suggestion and, if 
working with USGS allows us to continue meeting our requirements for 
individual identification while reducing burden on bird banders and 
researchers, we will consider developing a strategy to do so.
    A commenter stated that it is unclear how birds that are part of a 
cooperative Endangered Species Act recovery and reintroduction program 
will be regulated under the proposed regulations.
    Wild birds used strictly for the purpose described by the commenter 
are not regulated under the AWA.
    A commenter recommended that USFWS continue to regulate migratory 
birds taken from or returned to the wild so that USFWS authorization 
would be

[[Page 10667]]

required to authorize the use of MBTA-protected birds that are wild-
bred (e.g., not captive-bred).
    USFWS will continue to regulate such species as is currently the 
case, and APHIS will enforce AWA regulations as applicable.

AWA Licensing and Raptors

    Raptors that are native to the United States or its territories are 
protected and regulated as migratory birds under the MBTA, with bald 
and golden eagles receiving additional protections under the Bald and 
Golden Eagle Protection Act (16 U.S.C. 668-668c). The MBTA prohibits 
taking, possessing, purchasing, bartering, selling, or offering to 
purchase, barter, or sell raptors unless allowed by a permit issued by 
the USFWS.\15\ The MBTA regulations in 50 CFR part 21 contain specific 
permit provisions for raptors used for falconry, education, abatement, 
propagation, banding, scientific collection, and those in 
rehabilitation. Facilities and care requirements are listed in Sec.  
21.82(d), and include general provisions for shelter from environmental 
conditions, predators, and domestic animals, as well as requirements 
for watering, perches, tethering, and indoor and outdoor enclosures. As 
we have noted, the MBTA includes no specific animal welfare 
requirements.
---------------------------------------------------------------------------

    \15\ In addition to MBTA requirements, regulations under the 
Bald and Golden Eagle Protection Act (50 CFR part 22) place further 
restrictions on the uses of bald and golden eagles. Among these 
restrictions, no person may sell, purchase, barter, trade, import, 
or export, or offer for sale, purchase, barter, or trade, at any 
time or in any manner, any bald eagle or any golden eagle or the 
parts, nests, or eggs of these birds.
---------------------------------------------------------------------------

    We received a large number of comments from persons concerned about 
the status of raptors under the proposed standards. The comments were 
consistent with those received during the listening sessions, in which 
many falconers and other interested persons stated that USFWS care, 
training, and handling standards for raptors meet or exceed those 
proposed by APHIS, and that many States already regulate falconry and 
raptor enterprises. Some commenters expressed uncertainty about which 
situations would require raptors to be subject to AWA regulations, and 
how the proposed standards would align with current standards of care 
and best practices. Many commenters expressed concerns that any new 
standards and regulations for captive raptor breeders would be 
burdensome and duplicative, noting that persons who enter captive-bred 
raptors in commerce, as well as those who rehabilitate and keep captive 
birds used in exhibition for education, are already highly regulated 
through both USFWS and State agencies. In addition, many noted a long 
history of successful self-regulation among falconers. Accordingly, 
most persons submitting comments specifically on this topic stated that 
no additional Federal regulations on them are necessary.
    We are amending the definition of animal under Sec.  1.1 to exclude 
falconry, for reasons discussed above under 9 CFR part 1: Definition of 
Terms. This amendment excludes falconry from coverage under the AWA. 
Other comments pertaining to the regulatory status of raptor use are 
addressed below.
    One commenter noted that housing and care requirements for a USFWS 
special purpose permit come from the University of Minnesota Raptor 
Center guidelines, and that facilities housing raptors must meet or 
exceed these guidelines and be inspected to ensure compliance prior to 
the issuance of a permit. The commenter stated that these guidelines 
exceed those of the AWA and proposed regulations. Another commenter 
similarly stated that USFWS regulations already address the same 
standards for humane care listed in Sec.  2143 of the Act for 
``handling, housing, feeding, watering, sanitation, ventilation, 
shelter from extremes of weather and temperatures, adequate veterinary 
care, and, when warranted, separation by species,'' and another 
declared false our point in the proposal that 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. On the other 
hand, a commenter noted that neither the MBTA nor any other 
conservation-oriented law ensures humane care and treatment, and that 
regulation under State or other Federal laws does not disqualify birds 
from protection under the AWA.
    We acknowledge that falconers, rehabilitators, and other raptor 
owners are regulated both by USFWS and at the State level, and that 
many such owners maintain high standards of care for their birds using 
industry guidelines and best practices. However, as the last commenter 
points out, neither the MBTA nor any other Federal law focuses on the 
protection of raptors and other migratory birds from lapses in animal 
welfare, meaning that applying AWA regulations to certain raptors would 
not duplicate requirements. We note that in many States, many species 
of mammals that are regulated under the Endangered Species Act are also 
subject to AWA regulations.
    Some commenters stated that APHIS did not seek advice from raptor 
specialists before drafting the proposed rule, nor did the proposal 
appear to reflect input they provided during the listening sessions.
    We typically conduct informal stakeholder outreach prior to 
drafting proposals, as well as formal outreach in the form of listening 
sessions and advance notices of public rulemakings. In drafting the 
proposal, we considered all input we received during the three virtual 
listening sessions that were held, during which we received numerous 
comments from raptor exhibitors, persons engaged in raptor conservation 
and research, and falconers.
    A commenter stated that the Congressional statement of policy in 
Sec.  2131 of the Act appears to impact only birds that are purchased 
in interstate or international commerce. The commenter added that, as 
most exhibitors of raptors have obtained their birds from the wild and 
not through interstate or international commerce, it seems reasonable 
that wild birds held for exhibition or breeding would be exempt from 
AWA regulations. Another commenter stated that raptors obtained from 
the wild are prohibited from use as a commercial commodity by USFWS 
regulations, and as such would not be regulated under this proposal 
because such birds do not touch or concern commerce.
    The animals and activities referred to by the first commenter are 
either in interstate commerce or foreign commerce (not necessarily 
``obtained''). Commerce is defined in the AWA as trade, traffic, 
transportation, or other commerce,\16\ so as it is defined, any animals 
obtained from the wild and then used for commerce (including 
exhibition, and breeding for sales) would not be exempt from AWA 
regulation.
---------------------------------------------------------------------------

    \16\ The term commerce means trade, traffic, transportation, or 
other commerce--
    (1) between a place in a State and any place outside of such 
State, or between points within the same State but through any place 
outside thereof, or within any territory, possession, or the 
District of Columbia;
    (2) which affects trade, traffic, transportation, or other 
commerce described in paragraph (1).
---------------------------------------------------------------------------

    Several commenters expressed the view that falconry should be 
regulated under the AWA and that the only exemption for birds with any 
connection to commerce are those that are specifically bred for use in 
research. On the other hand, a commenter representing a national raptor 
organization stated that the possession, propagation, and sale of 
raptors for falconry and falconry-related activities

[[Page 10668]]

should not be covered by the AWA or the regulations proposed by APHIS, 
as they are not pets under any generally accepted definition, including 
the definition in the AWA. The commenter also noted that raptors may 
not be sold as pets under the MBTA and existing USFWS regulations, and 
raptors are not known to be sold for experimental research. 
Accordingly, this commenter and others assumed that the AWA and 
proposed regulations would apply only to the exhibition of raptors, and 
propagation and sale for exhibition.
    As we have noted above, we agree with commenters that raptors are 
not included under the definition of pet animal. While persons 
exhibiting raptors, or propagating and selling raptors for exhibition 
purposes, would be subject to AWA regulation unless otherwise exempt 
under amended Sec.  2.1(a)(3), falconry is excluded under the AWA as it 
is not covered under the uses listed under the definition of animal in 
the Act: ``[R]esearch, testing, experimentation, or exhibition 
purposes, or as a pet.''
    Another commenter expressed the view that the captive breeding and 
sale of falconry raptors does not meet the definition of either a 
dealer or exhibitor, and that the closest analogy to a captive breeding 
operation is a retail pet store because a captive raptor breeder sells 
to licensed falconers at retail, without intermediaries, but that the 
captive-bred raptor is not sold for ``research, teaching, testing, 
experimentation, exhibition, or for use as a pet.''
    Persons under USFWS permit practicing falconry are not covered 
under the AWA and excluded from coverage under the regulations, and as 
such their inclusion under these terms does not apply, unless they are 
engaged in activities outside of falconry that would be covered under 
the AWA. Such persons would not be eligible for the retail pet store 
exemption, as raptors are not defined in the proposed regulations as 
pet animals.
    Several commenters asked if raptor rehabilitation and rescue 
facilities are exempted under the exhibitor exemption.
    In the proposed rule, we did not provide an exhibitor exemption for 
raptors, as the current exhibitor exemption in Sec.  2.1(a)(3)(vii) 
applies primarily to pet animals. In the comments we received on the 
proposed rule, several persons asked that we provide an exhibitor 
exemption for raptors, such as those displayed in rehabilitation 
facilities or for educational purposes. Conversely, other commenters 
stated that no exhibitor exemptions should exist for raptors because of 
concerns about animal welfare as well as safety risks to the public.
    We determined, based on commenter input and our experience from 
regulating exhibitors, that applying the existing de minimis exemption 
of eight or fewer animals to raptors would pose a heightened level of 
risk to both raptors and persons participating in or watching the 
exhibition, clearly higher than the exhibition of small mammals. On the 
other hand, raptor rehabilitators and educators noted that raptors are 
already regulated by other Federal and State agencies, particularly 
USFWS, and underscored the value of their work to educate the public 
about conservation and species preservation. These comments suggest the 
need for some de minimis threshold for exhibition of raptors, if at a 
lower number than eight. Considering these factors, and in light of the 
comments that we received, we have determined that four or fewer 
raptors would be a reasonable de minimis exhibition threshold that 
ensures animal welfare by requiring licensing and inspection at 
facilities with many raptors while also minimizing burden on smaller 
facilities. This is consistent with previously articulated APHIS 
policy: APHIS considers entities that possess four or fewer animals 
that would otherwise be subject to regulation to provide sufficient 
care and oversight to their animals so as to eliminate the need for our 
regulatory oversight. This is particularly true of raptor exhibitors, 
who, as commenters noted, must already possess a permit from USFWS that 
provides a degree of Federal oversight. We are therefore amending the 
proposal by adding a raptor exhibition exemption to Sec.  2.1(a)(3). We 
intend to monitor this exemption and its implications on animal 
welfare, public safety, and business needs, and will make adjustments 
if needed.
    We emphasize, lastly, that raptors at rehabilitation and rescue 
facilities that are not being exhibited are not covered under the 
regulations, provided that they are maintained separately from the 
exhibited birds. Without separation, the birds undergoing 
rehabilitation could affect the health or well-being of the exhibited 
birds. This is consistent with our current policy for determining the 
status of mammals at facilities which only exhibit some of their 
animals.
    A commenter stated that the requirement for ``a program of 
preventative veterinary healthcare for regulated birds, with annual 
physical exams for each bird and health records maintained for each 
regulated bird [to be made] available for review by APHIS'' constituted 
excessive oversight, adding that, in addition to the cost, an annual 
physical exam can cause disruption and harm in a breeding facility.
    We note that, to ensure adequate animal welfare, the current 
regulations in Sec.  2.40 require licensed dealers and exhibitors to 
have an attending veterinarian under a formal arrangement, as well as a 
program of veterinary care. Veterinary oversight requirements are 
addressed in detail under Standards for Birds in 9 CFR part 3. While 
persons maintaining covered birds are required to comply with the 
veterinary requirement, birds are not required to undergo a hands-on 
physical examination.
    A commenter stated that any new regulations or permits imposed on 
breeders should be issued to each individual that has qualified for a 
USFWS permit and should not be issued per facility, as it will create 
an unnecessary burden to report individually to some agencies and 
together for another in the case where two permitted propagators share 
a facility. The commenter asked for an exclusion for USFWS raptor 
propagation permit-holders, or if they are to be included, to have the 
exclusion limit for licensing set at $250,000 net income after 
expenses, or to exclude anyone for whom breeding raptors is not their 
primary source of income.
    USFWS propagation permittees that do not exhibit their birds are 
not defined as exhibitors under Sec.  2132(h) of the AWA and therefore 
are not subject to its provisions or to these regulations, which have 
been issued pursuant to the AWA.
    Several persons commented that birds exhibited for conservation 
education and already permitted by USFWS should fall under the 
standards of that agency only.
    As we have noted, USFWS does not regulate for animal welfare.
    A commenter asked APHIS to provide supplemental documentation that 
explains the standards as they apply to groups of similar birds, noting 
that raptors have requirements for perch shapes, food types, and social 
interactions that differ from those of other birds.
    We intend to engage in dialogue with current and new licensees to 
help them attain and maintain compliance with the standards, both 
during and after the implementation period.
    Several commenters stated that falconers and caretakers who work 
closely with raptors are more experienced and qualified than an 
attending veterinarian to make housing and equipment decisions 
regarding their

[[Page 10669]]

birds, with one commenter noting that the unique housing and equipment 
needs of falconry birds are not areas commonly addressed in general 
veterinary school curricula. On this point, several commenters stated 
that the level of expertise a veterinarian might possess in these areas 
would not match that of staff who have spent decades caring for 
raptors. Another commenter stated that the proposal's excessive 
reliance upon veterinarian oversight of simple procedures is 
unnecessary. One commenter stated that most veterinarians do not 
possess the skills necessary to adequately cope (trim and shape) the 
beaks of different varieties of raptors. Many commenters noted that 
falconers serve an apprenticeship and undergo extensive training in 
caring for and handling birds as prerequisites to acquiring a falconry 
license, and one such commenter added that a network of falconer-
veterinarians are embedded within the U.S. falconry community.
    While we acknowledge that raptor caretakers have a great deal of 
experience in husbandry and caring for their birds, we emphasize that 
only a licensed veterinarian in good standing has the training and 
medical knowledge to diagnose and treat many conditions, which is why 
persons using raptors for purposes covered under the AWA require 
licensing that includes a program of veterinary care and regular visits 
by an attending veterinarian.
    A few commenters stated that pest bird abatement companies should 
be regulated. One such commenter noted that sport falconry is an 
entirely different activity than commercial falconry bird abatement, 
with abatement businesses sometimes employing dozens of birds for 
compensated work. The commenter expressed the view that commercial 
abatement practitioners should pay the cost of inspections according to 
the number of birds used in commercial activities and the 
practitioner's level of annual compensation. On the other hand, a 
commenter stated that abatement companies should be excluded from AWA 
coverage because the use of falconry for pest bird abatement provides a 
nonlethal approach to abatement without the need to poison or shoot 
nuisance birds at airfields and other locations for public safety.
    Falconry activities, including pest bird abatement, are not 
included under the AWA and therefore are excluded from coverage.
    A commenter emphasized the importance of USDA officials who inspect 
Native American eagle aviaries to meet with the leaders of those 
facilities and learn the Tribal perspective.
    In accordance with Executive Order 13175, ``Consultation and 
Coordination With Indian Tribal Governments'' we informed Tribal 
leaders of the proposal, and held a Tribal consultation on November 4, 
2021. No Tribal leaders raised significant questions or concerns during 
the consultation, and we received no subsequent comments from Tribes 
during the comment period for the proposed rule. We do, however, 
acknowledge and respect the importance of eagles and other raptors to 
many Tribes and will continue to actively engage Tribal nations and 
communities on this rule.
    As we noted under Definitions, we are revising 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.
    A commenter stated that it is unclear if birds undergoing 
rehabilitation for release back into the wild will be regulated under 
this proposal.
    Migratory birds undergoing rehabilitation for intended release back 
into the wild would be subject to AWA regulations if they are 
exhibited, bearing in mind that raptors are eligible for a de minimis 
exemption if four or fewer are exhibited. If birds are no longer able 
to survive in the wild and must remain captive, they would be covered 
under the AWA only if used for exhibition or another covered purpose.

Licensing Exemptions--Sec.  2.1(a)(3)

    The current regulations in Sec.  2.1(a)(3) include licensing 
exemptions based on criteria such as types of animals and how they are 
used, whether and how they are sold, and size of business based on 
gross income, or the number of covered animals bred or exhibited.
    We received numerous comments regarding exemption criteria and 
which species and uses of birds should be exempted from licensing. Many 
commenters stated there should be no de minimis exemption based on 
revenue, the number of animals, or activity (such as pigeon racing or 
bird fancier shows). One commenter stated that we should require 
licensing and inspections in response to any complaint for facilities 
that house birds, regardless of the number of birds.
    APHIS is authorized under Sec.  2132 of the Act to exempt from 
regulation certain uses of animals, including animals used in 
agriculture and birds bred for use in research. Under Sec.  2133 of the 
Act, which states, ``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,'' 
APHIS is also authorized to exempt from licensing and inspection small 
businesses that pose a minimal risk of animal welfare problems. We have 
determined that certain facilities that keep birds are de minimis in 
size, and/or present a minimal risk of animal welfare problems, and we 
consider exempting them from regulation to be appropriate in light of 
our statutory authority. By exempting de minimis businesses, we are 
able to focus inspection and enforcement efforts on those businesses at 
greater risk of animal welfare concerns.
    Many commenters stated that there should be no species-based 
exemptions from licensing.
    We have not included in this rule exemptions from licensing or 
exclusion from regulation based on species.
    A commenter stated that APHIS should consider additional exemptions 
for entities who are already heavily monitored, including non-profits, 
bird sanctuaries, and zoos, as many of these facilities are subject to 
other Federal and State requirements and additional administrative 
requirements are unlikely to improve conditions for the animals in 
their care. The commenter suggested that where such entities are 
required to undergo State inspections and receive certification, 
perhaps APHIS could accept submission of those inspection reports and 
certificates in place of another inspection or form. One commenter 
stated that facilities formally accredited by the Association of Zoos 
and Aquariums should be exempt from the proposed regulations, and 
another commenter requested that we include a licensing exemption for 
any bird breeder, bird dealer, or bird exhibitor certified under an 
inspection and certification program available to all within the bird 
industry.
    We are making no changes in response to these commenters. We 
acknowledge that facilities with birds may already be subject to other 
Federal and State requirements and industry-based standards. While they 
are beneficial, as we noted in the proposed rule, industry 
certification programs and existing government requirements are not 
necessarily equivalent to the proposed standards, nor are they 
structured to be consistent with the Act and its animal welfare 
requirements.
    Several commenters stated that rescues and shelters should never be 
exempt from APHIS inspections or licensing, and many cited concerns

[[Page 10670]]

about animal welfare, overcrowding, and poor sanitation. Other 
commenters noted that some entities calling themselves rescues are 
actually commercial operators breeding and selling birds with little 
regard for animal welfare. On the other hand, some commenters asked 
that we exempt all rescues and shelters from licensing requirements, 
noting that such facilities are not run for profit and that regulations 
will cut into their financial capability to assist birds in need. 
Another commenter stated that rescues that do not exhibit should be 
exempt from licensing.
    If bird shelters or rescues act as dealers or exhibitors, they are 
covered under the AWA and may require licensing unless they meet one or 
more of the exemptions set forth in Sec.  2.1(a)(3). Rescues and 
shelters that do not exhibit or engage in any other covered activity 
are exempt from licensing.
    Some commenters asked APHIS to consider an exemption for 
organizations and persons that breed birds strictly for conservation 
and restoration purposes with the intent of releasing birds produced 
into the wild, retaining into the captive flock for genetic purposes, 
or enhancing the captive population to maintain a restoration program.
    Conservation and restoration entities that release birds into the 
wild or maintain bird restoration programs will not be required to be 
licensed, provided that they do not act as dealers or exhibitors. If 
they do act in such a manner, they may still be exempt from licensing 
if they meet one or more of the exemptions from licensing set forth in 
the regulations.
    A commenter requested that we exclude holders of a USFWS ``Special 
Purpose-Abatement Using Raptors Permit'' from regulation, adding that 
without a specific exemption, it could cause confusion for inspectors 
when they inspect someone that holds multiple migratory bird permits.
    Pest abatement falconry activities are not covered under AWA 
regulations. APHIS inspectors only inspect for compliance with AWA 
regulations, not USFWS regulations or those of any other agency. For 
this reason, we are making no changes in response to the commenter's 
request as we see no need to include a specific exclusion.
    The same commenter also stated that the exemption limit for raptor 
exhibitors is too low, noting that for educational programs with 
raptors that free fly, it is necessary to rotate through different 
teams or have understudies when some birds are unavailable. The 
commenter asked us to exclude from AWA regulations USFWS Special 
Purpose Possession-Live Migratory Birds for Educational Use permit-
holders, or if they will be regulated, to have the exclusion limit set 
at 25 birds to minimize burden on educators. Additionally, the 
commenter asked that we exclude from regulation falconry schools 
holding USFWS Special Purpose-Falconry Education permits, as the sport 
of falconry is not included within the AWA.
    The commenter erroneously read the proposed rule to include 
provisions for exempting raptor exhibitors from licensing. As discussed 
previously, the proposed rule contained no such provisions; however, 
several commenters asked us to add a de minimis threshold. Based on 
those comments, we have added such an exemption, but consider the 25-
raptor threshold proposed by the commenter too high in light of 
possible health and welfare considerations. Persons using more than 
four raptors for exhibition will be required to apply to APHIS for a 
license regardless of whether all the raptors are being exhibited at 
one time. Persons under USFWS permit using raptors for falconry are not 
covered under the AWA and its regulations.
    One commenter encouraged APHIS to consider a de minimis exception 
that would permit research facilities registered under the AWA to 
engage in a small number of transactions involving birds that fall 
outside of the bred for use in research definition without having to 
become licensed as a dealer.
    If the research facility adopts a business model that exempts them 
from licensing by only conducting face-to-face transactions and meeting 
the other elements of the definition of ``retail pet store,'' the 
research facility could sell birds and not require licensing as a 
dealer.
    Currently exempted in Sec.  2.1(a)(3)(i) are retail pet stores as 
the term is defined in Sec.  1.1. A retail pet store is 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 exemption allows persons to sell 
any number of animals as pets, at retail, and without a license 
provided that all animals are sold at the business or residence with 
the buyer physically present to see the animal before purchase.
    We proposed to revise the definition of retail pet store by making 
it consistent with the definition of animal, which includes birds not 
bred for use in research.
    A commenter stated that the proposed definition of a retail pet 
store could include a bird rescue because many are maintained in a 
residence at which the bird is present, the adopters come and pick up 
the bird, and pay an adoption fee. The commenter added that because 
parrot and other bird rescues are typically 501(c)(3) nonprofits, their 
tax status could be adversely affected by being regulated. The 
commenter proposed including language in the standards specifically for 
rescue and sanctuaries.
    We agree that a rescue operating as the commenter describes can be 
defined as a retail pet store and exempt from regulation, provided that 
each adoptee is physically present at the rescue to pay an adoption fee 
if applicable and pick up the bird. We do not see a need to include 
language in the rule specific to rescues and sanctuaries on this topic. 
We consider private rescues and shelters that perform any of the 
activities listed in the definition of dealer, including transporting 
or offering animals for compensation, to be dealers. We consider acts 
of compensation to include any remuneration for the animal, regardless 
of whether it is for profit or not for profit. Remuneration includes, 
but is not limited to, sales, adoption fees, and donations.
    A substantial number of commenters stated that birds have not been 
long domesticated like dogs and cats and thus pose a greater welfare 
risk, and for this reason asked that we require the licensing of retail 
pet stores that sell birds.
    We disagree that birds pose a greater welfare risk than other 
animals sold in retail pet stores merely because they may not have been 
domesticated as long.
    One such commenter cited low standards of care at retail outlets, 
adding that not requiring licensure of pet stores allows them to 
overfill cage space with more birds than can be properly housed.
    We assume the commenter is referring to the current exemption for 
retail pet stores, which are defined in part 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.'' The exemption, as

[[Page 10671]]

currently applied to dogs, cats, and other animals, does not require 
that the buyer observe anything other than the animal, although a 
concerned buyer could always request to view additional information 
from the seller as to the animal's housing and care. Retail outlets 
that sell any pets online or in any situation where the buyer, seller, 
or animal is not physically present would require licensing and regular 
inspections. It is APHIS' long-standing contention that the AWA 
exempted retail pet stores from regulation because the buyer may 
observe the health and welfare of an animal prior to purchase, and this 
observation constitutes sufficient monitoring of the health and welfare 
of the animal. In this regard, we note that overcrowding can cause 
visible stress in birds, affecting their physical appearance and 
behavior.
    Another commenter recommended that licensing and inspection be 
required for retail pet stores that sell any wild-caught birds, or any 
captive-bred birds other than doves and pigeons, finches, canaries, 
lovebirds, cockatiels, or budgerigars.
    Businesses selling wild-caught animals are excluded from the retail 
pet store definition and are thus subject to regulation. In addition, 
wild-caught birds likely fall under authority of the MBTA and are 
regulated by USFWS. Captive-bred birds may be pet animals if they meet 
that definition as listed in Sec.  1.1. The list of pet birds we 
provided in that proposed definition is intended to be for illustrative 
purposes and is not exhaustive.
    A commenter stated that the retail pet store exemption should not 
remain in place for long-lived bird species such as parrots. The 
commenter added that pet owners should obtain a license in order to 
purchase such long-lived exotic avian species.
    The length of a bird's life span is not germane to determining 
whether or not it is intended as a pet animal, and the act of owning a 
pet is not subject to licensing under the AWA.
    A commenter asked if meeting people at a neutral meeting point to 
conduct a sale, such as a parking lot, would fulfill what is required 
for the retail pet store exemption.
    As long as 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 the sale is not otherwise covered under the regulations, 
a meeting point could be eligible for the retail pet store exemption.
    Under Sec.  2.1(a)(3)(ii), 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.
    A commenter suggested that for the purposes of the $500 exemption 
we include all migratory birds under the definition of wild animal, as 
well as populations of free parrots living in the southern United 
States.
    We are taking no action in response to the commenter. The sale of 
migratory birds is an activity covered under the authority of the USFWS 
and a migratory bird cannot be sold without a permit from that agency. 
Depending on the species, free parrots living in the United States are 
subject to some State and Federal regulations, but we do not see the 
relevance of an income exemption to populations of parrots living in 
the wild.
    A few commenters stated that we underestimated the costs for 
attending veterinarians to develop and monitor a veterinary care 
program and it would be difficult for small facilities to qualify for 
the $500 de minimis exemption. The commenters recommended that we 
increase the de minimis amount to reflect the realistic cost for 
veterinarians to conduct site visits.
    The income de minimis threshold is tied to the income derived from 
the sale of animals and not to expenditures such as veterinary costs.
    Several other commenters recognized that the $500 gross income 
exemption was linked to income and not facility costs. Most noted that 
few, if any, aviculturalists would be eligible for this licensing 
exemption, as nearly all earn more than $500 and even a single pair of 
birds could cause a hobbyist to go over that amount from selling the 
offspring. A few commenters stated that the gross income exemption 
threshold should be $30,000, and others suggested thresholds between 
$1,000 and $20,000. One commenter stated that a dollar value for de 
minimis exemptions is ``nonsensical'' as some birds have very little 
value while others have a very high value. One commenter stated that 
the threshold should be increased to $250,000 net profit if raptor 
propagators are to be subjected to APHIS regulations, or that only 
commercial breeders who rely on breeding as their primary income should 
be covered. Another commenter representing raptor owners stated that a 
de minimis exemption threshold based on the number, rather than the 
value, of birds sold for exhibition is more meaningful and aligned with 
the AWA, but that otherwise a monetary threshold of $50,000 for birds 
sold for exhibition should be established.
    We acknowledge that many, if not most, facilities selling birds 
earn more than $500 in annual gross income for that activity and would 
not be eligible for the exemption. We considered other ways of 
exempting businesses that pose a de minimis, or minimal, risk to animal 
welfare based on the size of the business. Drawing on our experience 
with small facilities and on comments we received from persons 
supporting a sales threshold, we determined that a threshold based on 
numbers of birds sold annually would be most equitable with respect to 
balancing regulatory burden with animal welfare.
    As explained below, we replaced number of breeding females with 
number of birds sold annually as the threshold for determining a de 
minimis exemption from licensing. Generally, any person is exempt from 
the licensing requirements who sells 200 or fewer pet birds of 250 
grams or less annually, and/or sells 8 or fewer pet birds of more than 
250 grams annually. This change will exempt from inspection and 
licensing many more facilities as a result. We believe that the revised 
de minimis exemption from licensing will apply to most small breeders, 
while very few businesses selling birds would qualify for the $500 
dollar or less gross income exemption in Sec.  2.1(a)(3)(ii).
    Under Sec.  2.1(a)(3)(iii), a licensing exemption is also provided 
for any person who maintains four or fewer breeding females of pet 
animals, small exotic or wild animals, and/or domesticated farm type 
animals and sells only the offspring of these animals, which were born 
and raised on his or her premises, for pets or exhibition, and is not 
otherwise required to obtain a license. We proposed for this exemption 
threshold to also apply to AWA-covered birds
    Several commenters expressed support for an exemption threshold of 
four or fewer breeding female birds. A comment co-signed by several 
animal welfare advocacy organizations stated that, as both dogs and 
birds are bred for sale, and as the AWA is focused on ensuring humane 
treatment, no variation in licensing thresholds between the species in 
terms of numbers of animals is supportable. The commenter added that a 
species' physical size or commercial profitability is no more adequate 
justification for altering the de minimis rule than it would be for 
altering the rule for any other covered species, and that focusing on 
financial rather than welfare

[[Page 10672]]

considerations runs counter to the AWA.
    On the other hand, numerous commenters disagreed with the proposed 
licensing de minimis exemption of persons maintaining four or fewer 
breeding female birds on grounds that the threshold is too small.
    Several commenters proposed a licensing de minimis threshold higher 
than four. One commenter stated that APHIS has not considered the vast 
number and variety of species of birds in captivity, adding that 
keeping four zebra finches is very different than keeping four macaws. 
A few commenters stated that four or fewer breeding females is far too 
low to allow for the maintenance of genetic diversity among many 
species. Some commenters asked why the de minimis threshold for four 
breeding female mammals is applied arbitrarily to an entirely different 
class of animals, with no consideration of the different breeding 
characteristics between and within the two classes. A few commenters 
noted that many species of birds are sexually dimorphic only in size, 
and only a person with advanced knowledge of a species or laboratory 
tests can determine if an individual is female or male. Several 
commenters noted that most bird breeders maintain more than four 
breeding females and sell the offspring, and another commenter stated 
that a more detailed analysis by avicultural organizations suggests 
that the subset of persons who would be exempt under the proposed 
licensing threshold is smaller than APHIS anticipates. Several 
commenters asked for more explanation of circumstances where a female 
bird would be considered a ``breeding female'' for the purposes of the 
threshold--for instance, whether a ``retired'' breeding female would be 
counted.
    As these and many other commenters noted, the breeding habits and 
number of offspring produced by different species of birds, or birds 
within a species, can range dramatically, much more so than mammals 
such as dogs, cats, and other AWA-covered mammals widely kept in the 
United States. As the current de minimis thresholds for breeding 
females were originally developed to address these animals, the 
comments we have received on this topic have caused us to reevaluate 
the current de minimis threshold measured by number of breeding female 
animals maintained as applied to birds. As we noted above, several 
commenters requested that a new de minimis exemption for bird breeders 
be established that is based on the number of birds sold instead of the 
number of breeding females maintained, with some commenters further 
recommending exemptions contingent on weight of birds sold.
    For these reasons, in Sec.  2.1(a)(3) we would establish a new de 
minimis exemption specific to birds, in which any person is exempt from 
the licensing requirements who sells 200 or fewer pet birds of 250 
grams or less annually, and/or sells 8 or fewer pet birds of more than 
250 grams annually, determined by average adult weight of the species, 
which were born and raised on his or her premises, for pets or 
exhibition, and is not otherwise required to obtain a license. This 
exemption does not extend to any person residing in a household that 
collectively sells more than 200 pet birds 250 grams or less annually, 
and/or sells more than 8 pet birds more than 250 grams annually, 
regardless of ownership. Pet birds at or below 250 grams typically 
include cockatiels, budgies, finches, lovebirds, and parakeets, while 
pet birds over 250 grams may include cockatoos, macaws, and African 
gray parrots.
    We chose the above annual sales thresholds for pet birds after 
reviewing many comments that proposed licensing exemption thresholds 
ranging from dozens of birds to thousands. We also sought a threshold 
that does not unduly burden small pet bird businesses while ensuring 
animal welfare for AWA-covered birds at these facilities. In deciding 
upon 200 or fewer birds 250 grams or less as the exemption threshold, 
we noted that smaller birds reproduce more quickly, can be bred in 
colonies, and have fewer behavioral welfare concerns. While no 
commenters specifically suggested 250 grams as the cutoff limit for the 
200 sales threshold, some suggested weights between 100 and 200 grams. 
We consider 250 or more grams (using adult average weight) to generally 
distinguish larger pet birds such as cockatoos, macaws, and African 
grey parrots from canaries, budgies, and other small birds. We also 
consider eight or fewer large pet birds sold annually to constitute a 
small facility that poses a de minimis, or minimal, risk to animal 
welfare and would therefore be exempt from licensing.
    Some commenters stated that the thresholds for exemption are 
arbitrary and inappropriate for raptor breeding and education. One 
commenter representing raptor owners stated that the de minimis 
thresholds for licensing should be raised for birds of prey because 
their possession and sale are already regulated and subject to animal 
welfare standards enforced by each State under USFWS guidelines, they 
cannot be sold as pets, and falconers and other raptor owners have a 
strong motivation to ensure the welfare of their birds. The commenter 
requested that a de minimis exemption for raptor breeders be 
established based on the number of birds the breeder sells or transfers 
for exhibition purposes and recommended that this number be 24, based 
on an estimate of the average number of young produced by 12 breeding 
pairs of raptors. Another stated that the licensing threshold on raptor 
breeding pairs should be no lower than 25 to ensure genetic diversity 
for wild raptors.
    We note that in the proposed rule, we did not apply the breeding 
exemption in Sec.  2.1(a)(3)(iii) to raptors, as it only applies to 
persons breeding and selling pet animals (which includes pet birds), 
small exotic or wild mammals, or domesticated farm-type animals for 
pets or for exhibition. As the sales per year exemption we have 
included in this final rule only applies to pet birds, the exemption 
does not apply to persons breeding and selling raptors. We have, 
however, excluded falconry from the definition of animal and exhibitor 
in the AWA regulations.
    A commenter requested exempted status for any bird dealer who does 
not place birds into wholesale trade in interstate commerce.
    Persons dealing in birds are covered under the AWA regulations. The 
commenter did not provide a rationale for exempting wholesale trade.
    A commenter recommended that the regulations should state that the 
only MBTA species that may be bred are those authorized under 50 CFR 
part 21 and that there be no de minimis exemption for MBTA-protected 
species.
    The AWA covers animal welfare for certain animals, including birds 
not bred for use in research. Its provisions are not contingent on what 
is covered and not covered under the MBTA. The MBTA does not include 
specific protections for animal welfare. That being said, APHIS has no 
statutory authority to prescribe what birds may or may not be bred.
    An exemption is also provided in Sec.  2.1(a)(3)(vi) for 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 
proposed to add ``feathers'' to the list of purposes for maintaining 
animals.
    A commenter asked that we include ``skin'' in the list.
    As we added ``skins'' as one of the products under farm animal, we 
agree with the commenter and will add

[[Page 10673]]

``skin'' to the list of uses for which farmed animals may be exempted.
    One commenter recommended a plain English reading of the exemption, 
where only birds of the family Anatidae may be included for food and 
fiber purposes. Another commenter stated that the propagation of game 
birds should fall under the ``agriculture exemption.''
    We are making no change in response to these comments. With regard 
to the first commenter, we note that commercial poultry bred for food 
or fiber purposes include birds not in the family Anatidae. For this 
reason, we believe it is more appropriate to add the term ``poultry'' 
to the definition of farm animal, and add a separate definition of 
poultry that lists doves, pheasants, grouse, and quail as among the 
birds included. The term poultry also includes ducks, geese, and swans 
in the family Anatidae. With regard to the second commenter, under the 
definition of animal, poultry used or intended for use for improving 
animal nutrition, breeding, management, or production efficiency, or 
for improving the quality of food or fiber would be exempted from 
licensing. Propagation of gamebirds would fall under this agricultural 
exemption.
    In addition, Sec.  2.1(a)(3) includes an exemption for any person 
who maintains a total of eight or fewer pet animals as defined in Sec.  
1.1, small exotic or wild mammals (such as hedgehogs, degus, spiny 
mice, prairie dogs, flying squirrels, jerboas, domesticated ferrets, 
chinchillas, and gerbils), and/or domesticated farm-type animals (such 
as cows, goats, pigs, sheep, llamas, and alpacas) for exhibition, and 
is not otherwise required to obtain a license. We proposed for this 
exemption to apply to pet birds also, and note that under our proposed 
revision to the term pet animal, we added that the term also includes 
but is not limited to such birds as parrots, canaries, cockatiels, 
lovebirds, and budgerigar parakeets.
    Some commenters requested that persons using poultry for exhibition 
be exempted from the licensing requirement.
    The current definition of exhibitor excludes persons exhibiting 
animals at shows, fairs, and other events intended to advance 
agricultural arts and sciences. In addition, we proposed to amend 
exhibitor to also exclude bird fancier shows, as we note above that 
these are rooted historically in the advancement of agricultural arts 
and sciences. Within these contexts, we consider poultry exhibition to 
be an activity exempted from the licensing requirement.
    Paragraph Sec.  2.1(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.
    A commenter expressed concern with the requirement for obtaining a 
new license before acquiring additional types or numbers of animals. 
The commenter noted that zoos and other members of its organization 
frequently accept confiscated birds at the request of Federal or State 
law enforcement agencies, with little control over the species or 
numbers of birds in need of protection, and asked that we modify the 
license requirement to allow for more flexibility for such situations.
    If acquiring confiscated birds is a possibility, facilities 
completing a new license application before acquiring additional types 
or numbers of animals are encouraged to put the highest total number of 
animals they expect to have. We also note that licenses only require 
specific authorization for type of animal if the animal is subject to 
subparts D or F of 9 CFR part 3 and in a group listed in Sec.  
2.1(b)(2)(ii). As this list does not include birds, licensees acquiring 
new species of birds would not be required to obtain a new license as a 
result of their acquisition of such birds unless the licensee exceeds 
their authorized number of overall animals.
    A few commenters recommended that licensing options should be 
available for both individuals and organizations, explaining that 
organizations can ensure, execute and enforce standards of care 
(presumably for each of its members). One commenter opposed to the rule 
noted that an organization-wide license limits the number of licenses 
needed when there are multiple rehabilitation caregivers within a given 
agency.
    The agency considers and issues licenses to a person. Under Sec.  
1.1, person means any individual, partnership, firm, joint stock 
company, corporation, association, trust, estate, or other legal 
entity.
    APHIS is aware that a number of currently licensed facilities, in 
addition to maintaining mammals of various types, also maintain birds 
that might be newly covered under these 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 regulations. Therefore, 
we proposed to add a sentence to Sec.  2.1(b)(2)(ii) stating that a 
licensee in possession of birds on the effective date of the 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. As we note above, 
licenses are valid for 3 years.
    A commenter contrasted this license deferment with current Sec.  
2.30(c) (Notification of Change), in which research facilities are 
expected to provide APHIS with notification of any change in 
operations, including a change in activities or location stemming from 
birds in their possession, within 10 days from the date of such change. 
The commenter asked APHIS to establish an effective date for the final 
rule that affords research institutions at least 6 months to analyze 
the final rule's impact on their operations, and stated that APHIS 
should provide research facilities with at least 6 months to notify it 
of changes resulting from compliance with the final rule. The commenter 
added that APHIS should ensure that the rule's effective date provides 
institutions with at least 6 months before Annual Reports are due to 
conduct their analyses.
    We agree with the commenter's request to afford additional time for 
research facilities to understand and comply with the regulation. An 
implementation period will be provided for all facilities conducting 
covered activities to ensure compliance with these standards and we 
intend to provide facilities during this time with guidance to help 
them comply with the regulations. For new licensees and registrants, 
the rule will be applied 365 days after the date of publication. For 
current AWA licensees and registrants, the rule will be applied 180 
days after date of publication. To the commenter's question about 
research facilities needing to report changes stemming from this rule 
within 10 days from the date of that change, this requirement will not 
be enforced until after the end of the implementation period. Insofar 
as annual reports cover activities beyond those solely involving birds, 
we cannot grant the commenters request for a 6-month delay in filing 
Annual Reports, which are due by December 1 each year and report on 
activities for the previous Federal fiscal year. However, we will not 
require that information concerning birds be included in the annual 
report

[[Page 10674]]

until the one prepared for fiscal year 2024.

9 CFR Part 2, Subpart B: Registration

    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.
    One commenter asked whether wildlife rehabilitators who are not 
conducting educational or research activities need to register with 
APHIS.
    Wildlife rehabilitators not conducting covered activities would not 
be subject to AWA regulations.

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 will not be required to 
update their registration to transport birds. APHIS proposed no changes 
to this section and received no comments on it.

9 CFR Part 2, Subpart C: Research Facilities--Sec.  2.30

    Under Subpart C, Research facilities, a newly regulated research 
facility under this proposal must register by completing a registration 
application form available from APHIS. The chief executive officer of 
the newly registered research facility is required to appoint an IACUC 
consisting of qualified persons to assess the research facility's 
animal program, facilities, and procedures. Each research facility also 
needs to have an attending veterinarian and maintain a program of 
veterinary care. Registered research facilities are required to 
maintain records of IACUC meetings, activities involving animals, and 
animals purchased or acquired by the facility.
    Several commenters stated that birds bred for use in research 
should also be regulated under the proposed standards. One such 
commenter stated that, assuming the proposed standards will form the 
baseline defining the minimum care for birds, there is no reason for 
experimental facilities to be exempt from coverage. On the other hand, 
some commenters expressed the view that current regulation of Federal 
and non-Federal research facilities is already sufficient and that 
applying the proposed standards to facilities using birds bred for 
research would be unduly redundant and costly, without a commensurate 
increase in humane protection for birds. The commenter added that 
another inspection as required under the standards would be unlikely to 
uncover deficiencies that IACUC inspections did not detect, and 
recommended that APHIS reduce redundancy by aligning its review 
policies with those of the U.S. Public Health Service (PHS).
    Birds bred for use in research are excluded as ``animals'' from the 
AWA regulations as that term is defined in the Act, so the use of such 
birds at research facilities is therefore not regulated. However, while 
the birds themselves are not subject to regulation if bred for use in 
research, research facilities using such birds are required to register 
with APHIS \17\ and adhere to standards under the Act and regulations 
in Sec.  2.30, provided that they also conduct research on other live 
``animals'' as this term is defined in Sec.  1.1 of the regulations. 
The regulations in Sec.  2.30 include monitoring by the IACUC of animal 
facilities and uses of animals to ensure that they receive humane care, 
and that the facility follows professional standards governing the 
care, treatment, and use of animals, including appropriate use of 
anesthetic, analgesic, and tranquilizing drugs, prior to, during, and 
following actual research, teaching, testing, surgery, or 
experimentation. Regulation by other Federal agencies does not 
necessarily address animal welfare considerations covered under the 
AWA.
---------------------------------------------------------------------------

    \17\ Although only non-Federal research facilities are required 
to register with APHIS, Federal facilities must still maintain an 
IACUC and maintain the same standards of humane care and treatment 
as indicated in Sec.  2.37.
---------------------------------------------------------------------------

    Moreover, as another commenter explained, Federal agencies \18\ 
either voluntarily or by law follow PHS regulation and oversight 
policies for their animal research facilities, which include 
requirements for compliance with the AWA. As the commenter noted, 
Federal researchers who use birds in research also submit proposals for 
IACUC review, and facilities where birds are housed or studied are 
subject to semiannual IACUC inspections. Finally, we note that in a 
recent rulemaking \19\ APHIS aligned several IACUC review provisions in 
subpart C with PHS policies.
---------------------------------------------------------------------------

    \18\ Under Sec.  2.30(a)(1), Federal research facilities are not 
required to register with APHIS.
    \19\ ``AWA Research Facility Registration Updates, Reviews, and 
Reports'' (86 FR 66919-66926, Docket No. APHIS-2019-0001), November 
24, 2021.
---------------------------------------------------------------------------

    A commenter noted that wild birds or birds that are otherwise not 
exempt from regulation and that are studied in captivity may reproduce 
while in captivity and asked that any such birds be considered ``bred 
for research'' and therefore exempt from regulations under the AWA. The 
commenter noted that the proposal's definition of bred for use in 
research does not explicitly exempt unintentional offspring of wild 
birds or birds that are otherwise not exempt from regulation which are 
born in captivity, and asked that we exempt them from regulation by 
including them under the definition of bred for use in research. 
Similarly, a commenter asked whether offspring of wild birds brought 
into captivity and bred for research purposes would be regulated.
    Offspring of wild birds that reproduce in captivity and are used 
for research are considered to be bred for use in research and not 
covered under the regulations. We did not intend to mean the definition 
to apply to any birds bred in captivity, but rather those bred in 
captivity and used in research. We note that in an earlier section of 
this rule we indicated that we have amended the definition of bred for 
use in research to mean ``an animal that is bred in captivity and used 
for research, teaching, testing, or experimentation purposes.''
    Another commenter noted that the proposal is silent on how it would 
apply to ornithological research done in the field that does not 
qualify as a field study as defined in 9 CFR part 1. The commenter 
added that most ornithological research involves birds in the wild and 
much of it would not be exempt under the specific field studies 
provision. The commenter asked APHIS to clarify that the regulations do 
not apply to this type of research.
    Field studies that do not materially alter the birds, such as 
observational studies, are not covered under the AWA regulations. Any 
study that involves an invasive procedure, harms, or materially alters 
the behavior of an animal under study is not considered a field study 
under the definition of that term and is covered by the regulations.
    A commenter noted that although the USDA has not proposed 
regulations for maintaining acquisition and disposition records for 
birds by research facilities, the agency should implement such 
regulations in order to ensure bird health and welfare and preserve the 
integrity of research.
    Acquisition and disposition records, which are required at research 
facilities for dogs and cats, allow APHIS to determine whether animals 
are being acquired or disposed of in accordance with the regulations. 
However, we have no evidence that birds are being

[[Page 10675]]

acquired or disposed of illegally by research facilities. If such 
evidence emerges, we will investigate accordingly.
    The same commenter stated that APHIS must include regulatory 
considerations for birds used in laboratories to minimize excessive or 
unwarranted pain and distress, among them a limit on the number of 
invasive surgeries, analgesic plans for painful procedures, and limits 
on anesthetic episodes, restraint, and injections.
    Birds used by the laboratories would be considered ``bred for use 
in research'' provided that they were bred in captivity and thus exempt 
from regulations under the Act. With respect to research conducted on 
birds that were not bred in captivity, Sec.  2.31(d) of subpart C, 
Research facilities, includes several requirements for ensuring IACUC 
review of all activities involving animals with respect to avoiding or 
minimizing discomfort, distress, and pain. These include use of 
analgesics and limits on numbers of operative procedures performed.
    A commenter asked if a ``newly registered site'' means it is newly 
registered for birds, or newly registered through the USDA.
    Contextually within the proposed rule, ``newly registered research 
facility'' meant a research facility that is not currently registered 
with APHIS but that would need to be registered with APHIS as a result 
of the rule, for example, a research facility that solely conducts 
research on wild-caught birds. A currently registered facility would 
not need to re-register just for birds, but would need to follow the 
bird-specific requirements of this rule following the implementation 
period afforded by this rule.

IACUC Review of Activities Involving Animals--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.\20\ 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. If they wish, 
facilities that use birds not bred for use in research may choose to 
enlist additional IACUC members with avian expertise.
---------------------------------------------------------------------------

    \20\ 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.
---------------------------------------------------------------------------

    A commenter recommended that we require at least one member of each 
IACUC at facilities using birds to have avian training, expertise, and 
experience in avian medicine, behavior, and husbandry.
    We are making no changes in response to the recommendation, as we 
consider the IACUC to possess or have access to expertise sufficient to 
care for birds adequately. One member of the IACUC is required to be a 
veterinarian, and the Committee may invite consultants to assist in 
reviewing complex avian-related issues as needed. Under Sec.  2.32, the 
research facility is responsible for ensuring that all scientists, 
research technicians, animal technicians, and other personnel are 
qualified to perform their duties.
    Under current Sec.  2.31(d)(1)(ix), activities that involve surgery 
must include appropriate provision for pre-operative and post-operative 
care of animals in accordance with established veterinary medical and 
nursing practices, meaning 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 proposed to apply the same requirements for operative procedures 
for birds as we do for rodents in Sec.  2.31(d)(1)(ix). Our 
determination for this decision is twofold. First, as we explained in 
the proposed rule, we are aligning our requirements with PHS 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.\21\
---------------------------------------------------------------------------

    \21\ 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.
---------------------------------------------------------------------------

    Second, we have considered the operative conditions and practices 
for rodents and concluded that they will 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 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.
    A commenter asked that we include a reference to analgesia in this 
section.
    Paragraph Sec.  2.31(d) includes provisions for the use of 
analgesics for procedures that may cause pain or distress, and Sec.  
2.32(c) provides for training and instruction in the proper use of 
analgesics by facility personnel.
    A commenter requested that we add a statement clarifying the 
exemption of wildlife management agencies, including wild bird capture, 
translocation, temporary holding, and field procedures. Another 
commenter asked that we clarify the definitions of ``research'' versus 
field study, and which procedures might be considered invasive or 
altering animal behavior that require review by an IACUC. As examples, 
they asked if accessing a wild bird nest to evaluate nestlings or 
applying bands as part of a research

[[Page 10676]]

project could be considered altering behavior, requiring a review.
    Animal, pest, and population management programs (e.g., culling, 
relocation, and nonsurgical sterilization) for the purposes of limiting 
wildlife damage and human interaction are exempted from licensing. In 
addition, APHIS has issued guidance \22\ on studies conducted on free-
living wild animals in their natural habitat to help clarify the 
distinctions between research studies and field studies. We believe 
this existing guidance is responsive to the commenters' questions. 
However, specific questions about wild bird studies may also be 
addressed to APHIS at [email protected].
---------------------------------------------------------------------------

    \22\ Please see the APHIS Tech Note referenced in footnote 20, 
``Research Involving Free-living Wild Animals in Their Natural 
Habitat.''
---------------------------------------------------------------------------

    Another commenter asked that we consider an exemption to the 
proposed requirement that aseptic conditions be used for operative 
procedures in field studies, noting that preparing aseptic conditions 
for non-major surgical procedures confers far less benefit to the bird 
than returning it as quickly as possible to its natural habitat. 
Another commenter stated that aseptic techniques may not always be 
practical or safe for the bird or the researcher to implement in the 
field and asked us to revise this requirement to require aseptic 
techniques only as conditions allow. Similarly, one commenter stated 
that APHIS should consider including language that introduces a harm-
benefit analysis to the use of anesthetics in field studies involving 
birds, as withholding anesthetics may be justified when the bird's 
welfare or survival may otherwise be compromised.
    In order for field research to be considered a field study rather 
than regulated research under the regulations, it must not involve 
invasive procedures, and such procedures would be considered regulated 
research and subject to the regulations governing research facilities, 
including the requirement for aseptic surgery and pre-operative and 
post-operative care of the animals under current Sec.  2.31(d)(1)(ix). 
However, the regulations do make allowances for deviations from this 
requirement for just cause and with proper documentation. Under Sec.  
2.36, the IACUC may approve exemptions to operative conditions, 
provided that the IACUC documents these exemptions in the Annual Report 
submitted to the Deputy Administrator on or before December 1 of each 
calendar year for the previous Federal fiscal year. The Annual Report 
assures that professionally acceptable standards are being used, that 
all standards and regulations are being followed, and other information 
attesting to the animal welfare status of the facility. Under Sec.  
2.36(b)(3), the report must assure that the facility is adhering to the 
standards and regulations under the Act, and that it has required that 
exceptions to the standards and regulations be specified and explained 
by the principal investigator and approved by the IACUC. A summary and 
explanation of all such exceptions must be attached to the facility's 
Annual Report.
    A commenter recommended that the proposed language on bird 
identification and counting by research institutions in Sec.  
2.36(b)(8) include an exemption in cases where identification of newly 
hatched or juvenile birds would disrupt nesting or rearing activities 
as determined by the attending veterinarian.
    We are making no changes in response to the commenter's 
recommendations. The commenter is referring to the Annual Report 
requirement for research facilities, which includes the reporting of 
common names and the numbers of animals being bred or held for use in 
teaching, testing, experiments, research, or surgery but not yet used 
for such purposes. As the report is submitted to APHIS by December 1st 
annually and counts animals used during the previous fiscal year, a 2-
month window exists to count animals born at the end of the fiscal 
year. We consider this to be a sufficient amount of time for 
identifying newly hatched and juvenile birds without disrupting rearing 
activities.

9 CFR Part 2, Subpart D: Attending Veterinarian and Adequate Veterinary 
Care

    Under Sec.  2.40, newly licensed dealers and exhibitors are 
required to have an attending veterinarian under a formal arrangement, 
as well as a program of veterinary care. In the case of a part-time 
attending veterinarian or consultant arrangements, the formal 
arrangements must include a written program of veterinary care and 
regularly scheduled visits to the premises of the dealer or exhibitor. 
Each dealer and exhibitor is also required to assure that the attending 
veterinarian has appropriate authority to ensure the provision of 
adequate veterinary care and to oversee the adequacy of other aspects 
of animal care and use.
    One commenter stated that the term ``attending veterinarian'' is 
confusing because in situations where there are multiple veterinarians, 
the attending veterinarian of record can delegate authority to other 
members of the staff. The commenter suggested that the proposed 
standards for birds should use the term ``attending veterinarian'' when 
referring to oversight for the program of veterinary care. Another 
commenter with the same suggestion requested replacing ``attending 
veterinarian'' with ``full-time veterinarian'' in the standards.
    Even at facilities with multiple veterinarians, there is only one 
attending veterinarian. When we refer to the ``attending veterinarian'' 
in the proposed standards, the term can refer to the actual attending 
veterinarian or his or her delegation of responsibilities to other 
veterinarians. We do not believe that replacing ``attending 
veterinarian'' with ``full-time veterinarian'' makes reference to roles 
more accurate.
    A commenter observed that the degree of veterinarian engagement 
required throughout the proposed standards may not be appropriate for 
smaller facilities or individual exhibitors, and that veterinarians may 
not have sufficient knowledge to provide the necessary information on 
housing, diet, and suitability for exhibition use. The commenter 
recommended that APHIS develop or incorporate by reference existing 
taxa-specific standards on enclosures, handler experience, diet, and 
evaluation for exhibition use.
    We acknowledge that the expertise of staff at many avian facilities 
makes them well-suited to make housing and husbandry decisions 
affecting their birds, and we attempted to accommodate that fact in the 
standards. We do not plan to develop taxa-specific standards for birds, 
but we intend to work with newly licensed facilities to provide them 
with the knowledge they need to attain and maintain compliance both 
during and following the implementation period for this rule.
    Some commenters disagreed with the requirement to arrange for an 
attending veterinarian to make regularly scheduled visits, stating that 
their birds are tested for diseases, quarantined, and seen by a 
veterinarian on an as-needed basis.
    Regularly scheduled, routine examinations are key in preventative 
medicine and in ensuring the health, care, and welfare of the animal in 
question. In addition, an attending veterinarian must be available to 
respond to emergency health or other situations that arise.
    Another commenter stated that APHIS should consider whether an on-
site veterinarian is necessary and feasible in all instances, and 
whether there may be other mechanisms for ensuring the welfare of the 
animals such as through

[[Page 10677]]

self-certifications and ensuring compliance with existing state 
licensing requirements. Another commenter proposed identifying a 
qualified caretaker at each facility who would ultimately be the 
responsible party for the welfare of the birds under their care. Many 
experienced veterinarians would then be available for occasional 
consultations without being responsible for creating and executing 
husbandry plans.
    An attending veterinarian need not be on site; we discuss this at 
greater length below. APHIS has no plans to approve self-certification 
programs for birds or any other species regulated under the AWA. In 
order to best ensure the health, care, and welfare of regulated 
species, the involvement of an attending veterinarian under a 
documented program of veterinary care is necessary.
    Under the program of veterinary care in Sec.  2.40(b), each dealer 
and exhibitor must establish a program that includes availability of 
appropriate facilities, personnel, equipment, and services to comply 
with the provisions of the subchapter A, Animal Welfare; appropriate 
methods to prevent, control, diagnose, and treat diseases and injuries, 
and the availability of emergency, weekend, and holiday care; daily 
observation of all animals to assess their health and well-being, 
although daily observation of animals may be accomplished by someone 
other than the attending veterinarian; and a mechanism of direct and 
frequent communication so that timely and accurate information on 
problems of animal health, behavior, and well-being is conveyed to the 
attending veterinarian. The veterinary program must also include 
adequate guidance to personnel involved in the care and use of animals 
regarding handling, immobilization, anesthesia, analgesia, 
tranquilization, and euthanasia; and adequate pre-procedural and post-
procedural care in accordance with established veterinary medical and 
nursing procedures.
    A commenter asked us to clarify the definition of ``program of 
veterinary care,'' particularly as it relates to the requirement for 
species-specific care.
    Minimum requirements for a program of adequate veterinary care are 
included in Sec.  2.40(b). We note that, under the definition of 
attending veterinarian in Sec.  1.1, he or she must have received 
training and/or experience in the care and management of the species 
being attended. Furthermore, an attending veterinarian may create a 
written program and work with facilities to ensure that the program 
includes details pertinent to the species being maintained.
    A few commenters asked what the proposed regulations mean by a 
``qualified'' veterinarian.
    We consider a qualified veterinarian as one meeting the definition 
of attending veterinarian, which means a person who has graduated from 
a veterinary school accredited by the American Veterinary Medical 
Association's Council on Education, or has a certificate issued by the 
American Veterinary Medical Association's Education Commission for 
Foreign Veterinary Graduates, or has received equivalent formal 
education as determined by the Administrator; has received training 
and/or experience in the care and management of the species being 
attended; and who has direct or delegated authority for activities 
involving animals at a facility subject to the jurisdiction of the 
Secretary.
    One commenter noted that veterinarians approving husbandry and 
construction requirements as indicated in the proposed rule is not 
standard practice in most zoological facilities. Another commenter from 
an association representing zoos and aquariums noted that much of the 
recordkeeping and decision making that veterinarians are tasked with in 
the proposal, such as signing off on programs and determining elements 
such as environmental conditions, enclosure construction, normal 
postural and social adjustments, and environmental enhancement, should 
be part of a consultative process among the leadership of larger 
facilities and institutions. On this topic, another commenter added 
that it is often the husbandry and curatorial staff and managers that 
are the decision makers and recordkeepers (in consultation with the 
institution's veterinary staff). The commenters asked that APHIS 
revisit some of these proposed tasks in light of their organization's 
own veterinary care standards, which include provisions for 
preventative medicine and disease outbreaks, 24-hour availability of 
veterinary services, and procedures for handling pharmaceuticals.
    We agree with the assertion made by commenters that many avian 
facilities of every size have staff that are able to apply professional 
standards to make significant decisions on questions of care and 
husbandry. For many of these decisions, it is sufficient that the 
attending veterinarian play a consultative role rather than to develop 
and impose what should be done, and allow other knowledgeable persons 
to make and execute care and husbandry decisions. We discuss revisions 
we are making to the proposal on this subject under ``Standards for 
Birds in 9 CFR part 3'' below.
    A commenter stated that if veterinarians are involved in husbandry 
decisions, they might have some liability if they make recommendations 
which have a detrimental impact on production, or are simply 
unaffordable. The commenter asked what appeals or mediation processes 
will be available in such cases.
    As we note above, it is adequate that attending veterinarians play 
a consultative role in husbandry decisions that have historically been 
made by facility personnel. There are no such veterinarian liability 
processes provided for in the AWA or regulations, although State 
veterinary boards may have recourse for such actions.
    A commenter asked that we establish requirements for veterinarian 
training in avian topics and have only veterinarians conduct 
inspections of facilities. One commenter suggested that there be avian 
veterinarian involvement in training the inspectors, clauses for the 
transparency of how inspectors are chosen, and continuing education in 
avian welfare. The commenter added that inspectors should be members of 
the Association of Avian Veterinarians as a show of commitment to avian 
welfare and medicine, or, in the case of small animal veterinarians, 
have proof of substantial avian knowledge and experience. Other 
commenters asked how APHIS plans to train inspection staff on different 
avian species and their unique welfare needs, particularly given the 
Agency's limited human and fiscal resources.
    We acknowledge commenter concerns about APHIS' ability to conduct 
inspections of avian facilities, but we emphasize that APHIS has the 
resources, access to specialized knowledge and training, and personnel 
to ensure that inspectors will meet all requirements and will have 
received the training necessary to conduct fair and accurate 
inspections of avian facilities. Trained inspectors will not require 
veterinary credentials in order to conduct such inspections 
successfully.
    A number of commenters disagreed with the proposed veterinary 
requirement on grounds that few veterinarians are experienced in avian 
medicine and that those who are experienced would need to travel long 
distances to conduct visits, as many areas lack qualified avian 
veterinary care. One commenter stated there is a shortage of 
veterinarians in rural areas and requiring veterinary involvement for 
simple procedures is not a viable option. Another such commenter 
recommended that veterinarian visits be

[[Page 10678]]

required only once a year. A commenter noted that there are only 79 
board-certified avian veterinarians in the United States and that they 
are not always located where bird owners operate, and another stated 
that few avian veterinarians specialize in or have significant 
experience with doves, finches, canaries, and waxbills.
    Given the challenges cited above, a number of commenters asked 
whether the veterinary visit requirement could be met through 
telemedicine, i.e., virtual visits by the attending veterinarian. A few 
commenters suggested that telemedicine with avian specialists could be 
integrated with local non-avian veterinarians, with the latter 
conducting the physical inspection. One commenter called for onsite 
inspections every 3 to 5 years with a ``Zoom type'' meeting annually. 
Another commenter asked whether the attending veterinarian would need 
to hold a license in the State where the virtual visit occurs and 
whether an initial in-person inspection of the facility would be 
required. One commenter stated that APHIS should support a veterinary 
care model that does not require transporting birds and has easy access 
to remote laboratory services for diagnoses. Finally, a commenter asked 
whether an attending veterinarian could work remotely with 
aviculturists in other States if needed.
    We acknowledge the challenges faced by some facilities to secure an 
attending veterinarian with avian expertise within their geographical 
area. To that end, we wish to clarify that the attending veterinarian 
need not be physically present at the facility in order to conduct 
visits, but could use a local veterinarian without specialized training 
and/or experience in the care and management of birds as a proxy if the 
attending veterinarian is comfortable with such an arrangement and 
provides direction to the local veterinarian. This is provided for in 
the regulations in Sec.  2.40(a)(1), which allows for ``consultant 
arrangements'' in which another local veterinarian other than the 
attending veterinarian serves as a proxy for the attending veterinarian 
and conducts the visit. To that end, we encourage facilities and 
veterinarians needing to confer remotely with experts in avian medicine 
or aviculture that may be located in other States to do so. We do, 
however, maintain that the facility inspection must be done in person 
because virtual inspections may provide an incomplete picture of 
conditions at a facility. A veterinarian at the facility can acquire 
detailed sensory and visual information to assess compliance in ways 
that a camera cannot.
    In addition, we wish to highlight additional flexibilities in the 
regulations in Sec.  2.40 that will allow facilities with birds to 
minimize the frequency of veterinary visits and manage the costs of 
specialized care while maintaining the health of their birds as the AWA 
requires. Current Sec.  2.40(a)(1) includes the requirement that each 
dealer and exhibitor employing a part-time attending veterinarian 
include, as part of formal arrangements in the program of veterinary 
care, regularly scheduled visits to the premises. APHIS recommends that 
the regular visit be once a year, but the regulations do not require a 
set frequency of visits. As the frequency and types of examinations are 
determined by the attending veterinarian, he or she may reason that a 
facility with staff knowledgeable and attentive to the medical needs of 
its birds requires less frequent visits to that facility. Moreover, the 
regulations do not specify that routine examinations of birds for signs 
or symptoms of disease or injury must be conducted in person; we 
acknowledge that these can often be conducted adequately through 
telehealth visits, should the attending veterinarian agree to such an 
arrangement given the circumstances in question.
    Finally, we wish to emphasize that one of the purposes of the 
implementation period referenced earlier in this document is to afford 
facilities an opportunity to present to APHIS any logistical challenges 
to compliance so that both parties are aware of the challenges and can 
work collaboratively to remediate them within that implementation 
period, and that APHIS has experience working with facilities who have 
difficulty finding an attending veterinarian for a particular species 
maintained at the facility.
    A few commenters stated that because wild-caught birds are fragile 
and easily stressed, it is unclear if mandating annual physical exams 
by a veterinarian would benefit the bird or further stress them. 
Similarly, another commenter stated that netting and grabbing birds 
every year for an arbitrary and unnecessary health check is dangerous 
and stressful to certain birds, particularly birds in aviaries with 
water elements. Another commenter noted that raptors have robust immune 
systems and that annual exams are unnecessary, and that hands-on exams 
are particularly stressful and potentially fatal for these birds.
    APHIS will ensure that inspections of birds in large enclosures and 
enclosures with water elements are conducted in a manner that will not 
harm the birds. A physical, hands-on annual examination for birds is 
not a requirement under the AWA regulations, nor do we propose to 
require one. The attending veterinarian will monitor the health of 
birds through regular visits and consultation with facilities and will 
only conduct a physical examination on a bird if he or she considers it 
safe and necessary to its health and well-being.
    In the proposed rule, within the context of our discussion of 
veterinary care, we asked for specific comment on pinioning (disabling 
wings) and other deflighting procedures, toenail clipping, devoicing, 
and beak alterations. We noted that some comments that we received 
during the listening sessions requested that we prohibit some of these 
procedures on grounds that they are mutilations, while some comments 
suggested that there could sometimes be valid health-based reasons for 
performing them.
    We received numerous comments regarding physical alterations to 
birds that, the commenters stated, could adversely affect their health 
and well-being. One commenter suggested that APHIS phase out the 
practice of deflighting birds through physical alterations in regulated 
facilities within the next 10 years with the provision that 
veterinarians may grant exemptions for individual birds. Several 
commenters stated that the attending veterinarian must be involved in 
every decision regarding whether or not to deflight an individual bird.
    While APHIS did not propose to prohibit the practice of deflighting 
birds in the proposed standards, we agree that any decision to 
permanently deprive a bird of flight through surgical interventions 
would have to be made in consultation with, and either by or under the 
supervision of, the attending veterinarian. Involvement of the 
attending veterinarian in such decisions is consistent with the 
requirement in Sec.  2.40(a) that each dealer and exhibitor have an 
attending veterinarian to provide adequate veterinary care, and Sec.  
2.40(b) requires the use of appropriate methods to prevent, control, 
diagnose, and treat diseases and injuries under the program of 
veterinary care. Moreover, an attending veterinarian has the medical 
training to suggest other interventions and remediations, if available, 
as alternatives to surgical interventions that permanently physically 
alter the bird in question. The attending veterinarian ultimately 
determines whether pinioning would be detrimental to a bird's health 
and well-being and therefore would not be in

[[Page 10679]]

compliance with the Act and regulations.
    One commenter cited evidence that wing-trimmed birds suffer from 
detrimental levels of stress and behavioral deprivation, and suggested 
that APHIS ban wing trimming prior to and during fledging, as learning 
to fly is critical to normal brain development. Another commenter 
acknowledged that when done properly, the trimming of a bird's wings to 
temporarily affect flight should not cause pain, permanent 
disfigurement, or complete impairment of flight. The commenter advised 
that wing trimming must only be permitted when medically necessary, as 
determined by the attending veterinarian, and must not be used to make 
up for poor housing facilities.
    While we acknowledge the commenters' concerns, we do not consider 
wing trimming to be an activity requiring consultation with or 
supervision by the attending veterinarian. As the second commenter 
indicated, wing trimming performed by qualified personnel in accordance 
with professionally accepted standards does not permanently deprive a 
bird of flight, nor does it cause pain or disfigurement.
    A substantial number of commenters stated that APHIS should 
prohibit non-therapeutic pinioning (the surgical removal of the 
outermost bones in a bird's wing, resulting in an inability to fly), as 
well as brailing, feather-pulling, and patagiectomy, or the surgical 
removal of the skin between the humerus and radius. One commenter noted 
that pinioning, which is frequently performed without anesthesia, 
causes operative and post-operative pain to birds and can permanently 
affect balance. Accordingly, the commenter encouraged APHIS to prohibit 
all forms of permanent deflighting unless medically necessary. Several 
commenters stated that APHIS should require licensees to use the least 
invasive alternatives to mutilations wherever possible. Some commenters 
not opposed to pinioning asked that appropriate use of pain management 
be required for all surgical methods of deflighting.
    On the other hand, one commenter stated that pinioning is an 
important tool in zoological management of species such as flamingoes 
and waterfowl as it allows for more spacious housing as opposed to 
large, covered ponds, which are costly to construct and cannot provide 
the largest possible space. The commenter added that if pinioning is 
performed in the first week of life, the nervous system is not mature 
and discomfort is minimal. Another commenter stated that banning 
pinioning would be wrong because it can make birds calmer.
    We acknowledge that pinioning can cause pain and lead to the 
permanent physical alteration of the bird, and accordingly we strongly 
discourage its practice for non-therapeutic purposes. However, it is 
sometimes necessary to remove a severely injured or self-mutilated wing 
to preserve the health of the bird. For that reason, we are not 
prohibiting its practice but requiring that the procedure be considered 
and performed in consultation with, and either by or under the 
supervision of, the attending veterinarian in accordance with the 
requirement to provide adequate veterinary care in Sec.  2.40. The 
attending veterinarian ultimately determines whether pinioning would be 
detrimental to a bird's health and well-being. With respect to pain 
management when such a procedure is necessary, we note that Sec.  
2.40(b)(4) requires that the program of veterinary care include 
adequate guidance to personnel involved in the humane care and use of 
animals regarding anesthesia and analgesia.
    Some commenters stated that APHIS should encourage changes in 
housing and management that permit flight rather than using surgical 
alterations to prevent flight and noted that this idea is supported by 
numerous zoological associations.
    We agree, and strongly encourage facilities to consider changes in 
bird management practices before considering and performing non-
therapeutic surgical interventions in consultation with, and either by 
or under the supervision of, the attending veterinarian in accordance 
with the veterinary care requirements in Sec.  2.40.
    A number of commenters also asked that we prohibit other physical 
alterations for non-therapeutic purposes such as devoicing and beak 
alterations, noting that such alterations constitute mutilation and 
cause pain. One such commenter stated that regular beak trimming is not 
necessary in a healthy bird with no predisposing beak abnormalities and 
proposed that it must not be performed without medical necessity as 
determined by the attending veterinarian. Another commenter opposed to 
the practice noted that several countries prohibit beak trimming. 
Regarding the practice of devoicing birds, a commenter stated that the 
procedure can significantly harm birds physically and behaviorally.
    We strongly discourage beak trimming and devoicing for non-
therapeutic purposes. Such procedures must be considered and performed 
only consultation with, and either by or under the direct supervision 
of, the attending veterinarian in accordance with veterinary care 
requirements in Sec.  2.40. The attending veterinarian will determine 
whether the procedure is detrimental to a bird's health and well-being.
    Several commenters also asked that we include standards that 
prohibit public contact with birds, including public handling of 
exhibition birds. One commenter stated that the current regulations on 
handling animals are inadequate to ensure the welfare of captive birds 
and that the proposed rule fails to acknowledge that allowing the 
public to handle them poses risks to the animals as well as the public. 
The commenter stated that the USDA must address these risks by 
promulgating regulations that strictly prohibit public contact. Other 
commenters similarly asked that we restrict or prohibit public 
interaction programs (handfeeding, photos, touching, swimming with 
penguins), noting that physical contact with birds can result in 
injuries and spread psittacosis and other diseases to humans. Several 
commenters stated that requiring a sufficient distance or barriers 
between animals and the viewing public is important to ensure the 
safety of both animals and people. One commenter noted that public 
interaction stresses birds and that public feeding can result in 
improper nutrition. The commenter added that for the same reasons, the 
public should never be permitted to enter a primary enclosure where 
birds are housed.
    Requirements for public contact are included under Sec.  2.131, 
Handling of Animals, and are intended to protect animals being 
exhibited as well as the public. All licensees who maintain wild or 
exotic animals must demonstrate the ability to adequately care for the 
species they maintain. Under paragraph (c)(1), during public 
exhibition, animals must be handled so there is minimal risk of harm to 
the animal and to the public, with sufficient distance and/or barriers 
between the animal and the general viewing public so as to assure the 
safety of animals and the public. A responsible, knowledgeable, and 
readily identifiable employee or attendant must also be present at all 
times during periods of public contact. If public feeding of animals is 
allowed, the food must be provided by the animal facility and shall be 
appropriate to the type of animal and its nutritional needs and diet. 
Additionally, APHIS is currently evaluating the conditions under which 
the public should be allowed to come in contact with various species of 
regulated animals more broadly and we will evaluate these issues as 
they

[[Page 10680]]

pertain to birds in the context of that larger evaluation.\23\
---------------------------------------------------------------------------

    \23\ An advance notice of public rulemaking was published for 
public comment in the Federal Register on January 9, 2023 (88 FR 
1151-1154, Docket No. APHIS 2022-0022).
---------------------------------------------------------------------------

    A commenter provided several examples of the animal welfare and 
zoonotic disease risks associated with ``budgie barns,'' in which the 
public enters an enclosure with birds on exhibit. The commenter stated 
that USDA should either ban such exhibits or prescribe strict standards 
for how facilities should maintain them, including supervision of 
public feeding, limiting the number of birds and persons allowed in the 
enclosure at any one time, and providing for the needs of geriatric 
birds.
    Persons exhibiting large numbers of birds to the public in ``budgie 
barns'' will typically be required to be licensed. These facilities 
will be required to comply with all applicable AWA regulations and 
standards, which include specific requirements in Sec.  2.131 for 
handling of animals and provisions for the concerns expressed by the 
commenter. As we note above, we are also undertaking an initiative to 
evaluate the conditions under which the public should be around or in 
contact with various species of regulated animals, and we intend to 
examine budgie barns in the context of that larger initiative.
    Many commenters asked us to specifically prohibit riding birds such 
as ostriches, as it stresses the animals, causes pain to their limbs, 
and puts them at risk of injury. One such commenter stated that ostrich 
racing activities are not consistent with animal well-being. The 
commenter recommended that the USDA strictly prohibit all activities 
involving the wrangling, mounting, and riding of birds.
    Again, our current initiative to examine the risks of public 
contact with animals covered under the AWA, to animals as well as 
persons, will evaluate activities in which the public has unmediated 
physical contact with a regulated animal, such as ostrich riding. That 
being said, the regulations in Sec.  2.131, Handling of Animals, 
currently contain provisions for restricting such activities. Under 
paragraph (b)(1), handling of all animals shall be done as 
expeditiously and carefully as possible in a manner that does not cause 
trauma, overheating, excessive cooling, behavioral stress, physical 
harm, or unnecessary discomfort. Under paragraph (a)(2)(i), physical 
abuse shall not be used to train, work, or otherwise handle animals.
    A commenter noted that the proposed rule fails to include any 
suggested regulations or commentary on the practice of euthanasia. The 
commenter listed many current agricultural practices used for killing 
birds, noting that most do not qualify as euthanasia because they fail 
to prevent pain and distress or are not applied reliably and 
consistently. The commenter stated that APHIS should prohibit such 
practices.
    Under current 9 CFR part 2, subparts C and D, research facilities, 
dealers, and exhibitors are subject to several provisions regarding the 
humane application of euthanasia that will apply to AWA-covered bird 
facilities. Other methods of euthanasia raised by the commenter are 
used in an agricultural context and are outside the scope of this rule 
and the AWA.

9 CFR Part 2, Subpart E: Identification of Animals

    Subpart E, Sec.  2.50(e)(1), requires that dealers and exhibitors 
of all animals, except dogs and cats,\24\ delivered for transportation, 
transported, purchased, sold, or otherwise acquired or disposed of by 
any dealer or exhibitor 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 require a 
means for identifying each of the animals within the enclosure. 
Comments received on this subpart are discussed below.
---------------------------------------------------------------------------

    \24\ Identification for dogs and cats is covered in Sec.  
2.50(a) through (d).
---------------------------------------------------------------------------

Time and Method of Identification--Sec.  2.50

    We proposed to amend Sec.  2.50 of the regulations, which addresses 
methods of identifying animals. 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: A label attached to the primary enclosure that bears a 
description of the animals in the primary enclosure; 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 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 be identified on a 
record that must accompany the animal and 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 proposed to add a new paragraph Sec.  2.50(e)(2) to 
require dealers and exhibitors to identify birds confined to a primary 
enclosure with one of the following: 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; 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 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 proposed that birds that are not confined to a primary enclosure 
will be subject to the identification requirements contained in 
redesignated paragraph (e)(4). 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.
    Several persons commented on the methods we proposed for 
identifying birds. Some commenters recommended that any method of 
identification used should not affect a bird's mobility, social life, 
behavior, and longevity, and that the least invasive identification 
method possible should be used. One commenter stated that many birds 
cannot be safely identified with bands or microchips because of the 
bird's size,

[[Page 10681]]

citing hummingbirds as an example. Another commenter stated that bands 
should not be used for identification as they can get caught in the 
bird's toys or other enclosure items and cause harm. A few commenters 
noted a shortage of band suppliers.
    We agree that if the least invasive identification method can be 
used to identify birds, it should be employed. We note that under Sec.  
2.50(e)(2)(i), persons can identify birds by use of a label affixed to 
the primary enclosure.
    A commenter stated that leg bands or microchips should be required 
for all birds except those under 20 grams in weight, as it would be 
impractical to band entire flocks of smaller birds.
    We are making no changes in response to the commenter's suggestion, 
as persons may also identify such birds using a label on the primary 
enclosure.
    One commenter stated that identification is not required in dogs 
and cats and so should not be required in birds.
    The commenter is incorrect. Identification requirements for dogs 
and cats are listed in Sec.  2.50(a) through (d). Provisions for 
identification of other animals by dealers and exhibitors are included 
in Sec.  2141 of the Act. The accurate identification of animals is a 
part of basic animal husbandry and allows for APHIS to track animals to 
monitor movement for purposes of assessing animal health and well-
being.
    Several commenters expressed concerns with the cost and logistics 
of attaching tags or tattooing every bird within a very large colony. 
Another stated that there are also labor costs in labeling enclosures 
with identifying information.
    While we acknowledge that recordkeeping and labor may be involved 
in complying with the identification requirements, licensees can comply 
with the standards by attaching labels to primary enclosures to 
identify the birds within. Identification is important to ensure that 
birds are accounted for and maintained safely in accordance with the 
Act.
    A commenter stated that the requirement that an enclosure must have 
a painted or stenciled number is excessive and asked if a handwritten 
number would suffice.
    As long as the number is legibly stenciled, painted, or written by 
hand, with all required information included, it would comply with the 
requirement in Sec.  2.50(e)(2)(ii).
    A commenter requested that APHIS confirm that if a licensee 
complies with a label attached to the enclosure, they do not have to 
band, microchip, tattoo, or apply any other individual identifier to 
covered birds.
    We can confirm that the commenter is correct.

9 CFR Part 2, Subpart F: Stolen Animals

    Subpart F, Stolen Animals, prohibits any person from buying, 
selling, exhibiting, using for research, transporting, or offering for 
transportation, any stolen animal.
    APHIS proposed no changes to this subpart and received no specific 
comments on it.

9 CFR Part 2, Subpart G: Records

    Subpart G, Records, would require dealers and exhibitors 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 his or her possession or under his or her 
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 
charged. Carriers and intermediate handlers newly registered under this 
proposal would need to keep records concerning C.O.D. shipments of live 
birds. Comments received on this subpart are discussed below.

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.
    A few commenters noted that time spent on administrative tasks may 
be at the expense of adequately caring for the birds and may not 
provide as much benefit to the birds as the agency anticipates. One 
commenter encouraged APHIS to explore other methods to account for and 
ensure the welfare of each individual bird, such as keeping records on 
families of birds and starting records at the time the offspring is 
hatched rather than having breeders backtrack and account for adult 
birds. Another commenter recommended that instead of filling out forms, 
a simpler means of maintaining disposition and acquisitions records 
would be to keep invoices from purchases and sales, maintain a log of 
hatches or clutches, and maintain a mortality log. A commenter stated 
that it will be problematic to account for birds individually such as 
finches, weavers, and other flock-managed species that are regularly 
producing offspring. The commenter noted that many zoos and other 
facilities undertake group management of some bird species and have 
protocols to ensure their welfare. Similarly, a commenter recommended 
that ``herd records'' be allowed, with total numbers of births, 
acquisitions, and dispositions required, with birds over 100 grams 
requiring individual records, and another asked that we allow ``flock 
care'' for birds under 50 grams. Finally, commenters expressed concerns 
about the cost of recordkeeping for small bird breeders who maintain 
hundreds of birds, with one noting that the time required to capture, 
band, and write records for each bird would be six minutes with a 
helper.
    While we consider keeping records of each covered animal important 
for the purposes of ensuring adequate welfare, we acknowledge the 
challenges of accounting for individual birds in large flocks. To this 
point, we note that Sec.  2.75(b)(1) only requires that a record be 
kept of the species and numbers of animals on hand at the facility, and 
when animals are born, purchased or otherwise acquired, or when 
transported, sold, euthanized, or otherwise disposed of. Identifying 
information of persons engaged in such transactions with the licensee 
is also required. As stated in Sec.  2.75(b)(2), dealers and exhibitors 
can record this information on forms provided by APHIS.
    Another commenter stated that recordkeeping under the AWA should 
only be for ensuring there are no smuggling or welfare violations.
    We disagree with the commenter, and consider the proposed 
recordkeeping requirements to be necessary to ensure adequate welfare 
for each animal. Moreover, under Sec.  2151 of the Act, ``the Secretary 
is authorized to promulgate such rules, regulations, and orders as he 
may deem necessary in order to effectuate the purposes of this 
chapter.''

[[Page 10682]]

    Several commenters stated there is no need to document activities 
such as cleaning schedules, moving a bird to a new cage, or replacing a 
perch.
    If facility cleaning and sanitation procedures are delayed for 
breeding and nesting or other reasons, a documented schedule provides 
inspectors with important information regarding the delays to ensure 
that a facility remains in compliance with the standards. A documented 
schedule is not required if cleaning and sanitation are not delayed. 
Moving a bird to a new cage or replacing a perch under the proposed 
regulations would not require documentation.
    A commenter noted that Sec.  2.75(b)(1) requires dealers and 
exhibitors to keep records of ``any offspring born or hatched of any 
animal'' while under the dealer or exhibitor's possession or control. 
The commenter acknowledged that, while this section concerns records 
kept by dealers and exhibitors, research institutions must report to 
APHIS the number of animals ``held for use in teaching, testing, 
experimentation, research, or surgery, but not yet used for such 
purposes.'' The commenter noted that the requirement to keep records of 
wild birds at hatching may cause stress on the birds and interrupt 
nesting and rearing activities and so urged APHIS to amend the 
requirement in Sec.  2.75(b)(1) by adding ``to the extent that any 
identification or counting of offspring can be carried out without 
unduly disturbing nesting or rearing activities.''
    We agree with the commenter that observing birds during nesting and 
rearing can cause disruption and are amending Sec.  2.75(b)(1) to read 
that ``the records shall include any offspring born or hatched of any 
animal while in his or her possession or under his or her control, to 
the extent that any identification or counting of offspring can be 
carried out without unduly disturbing nesting or rearing activities.''
    We proposed in Sec.  3.151(a)(2) that scheduled cleaning must be 
modified or delayed during breeding, egg-sitting, or feeding of chicks 
for those species of birds that are easily disrupted during such 
behaviors. As we have noted above, we will not impose any requirements 
that will interfere with a species' natural behavior when it comes to 
nesting and breeding. APHIS will work with facilities to find 
approaches that accommodate these concerns while ensuring that 
inspections can occur at appropriate times and possibly with the 
assistance of technology.
    A commenter stated that bird breeders should all maintain health 
records on all birds sold.
    Health records are generally not necessary for birds insofar as a 
program of veterinary care and veterinary visits are required. However, 
the attending veterinarian may require such records based on their 
professional judgment of need.
    We also proposed amending the last sentence of Sec.  2.75(b)(1) to 
reflect its applicability to dealers and exhibitors of birds by adding 
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. We 
received no comments on this proposed amendment.

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 Sec.  2.76(a) 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 
proposed to amend paragraph (a)(7)(ii) to require operators of auction 
sales and brokers to record the sex of a bird only if it is readily 
determinable.
    The regulations 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 will allow the 
approximate developmental stage of an animal to be provided if the date 
of birth or hatch date is unknown. We proposed to add this provision to 
(a)(7)(iii). 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. In addition, to reflect the fact that birds lay eggs 
rather than give birth to live young, we also proposed to add the words 
``or hatch date'' after the words ``date of birth'' in paragraph 
(a)(7)(iii). We received no comments specifically on these proposed 
changes.

9 CFR Part 2, Subpart H: Compliance With Standards and Holding Period

    Under Sec.  2.100(a), each dealer, exhibitor, operator of an 
auction sale, and intermediate handler must comply in all respects with 
the regulations in part 2 and the standards in part 3 of this 
subchapter for the humane handling, care, treatment, housing, and 
transportation of animals.
    Under Sec.  2.100(b), each carrier must comply in all respects with 
the regulations in part 2 and the standards in part 3 of this 
subchapter setting forth the conditions and requirements for the humane 
transportation of animals in commerce and their handling, care, and 
treatment. We received no comments specifically on this subpart.

9 CFR Part 2, Subpart I: Miscellaneous

    Subpart I includes miscellaneous requirements for dealers, 
exhibitors, operators of auction sales, intermediate handlers, and 
carriers. Under Sec.  2.125, newly regulated persons under this 
proposal must 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, under 
Sec.  2.126(a), each dealer, exhibitor, intermediate handler, and 
carrier is required to provide APHIS officials with access to and 
inspection of property and records during business hours, as well as 
extend the use to APHIS officials of a room, table, or other facilities 
for proper examination of the records and inspection of the property or 
animals.
    Under Sec.  2.126(c), any regulated persons who intend 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 ability to adequately care for the 
species maintained.
    A commenter asked us to clarify the meaning of ``travel itinerary'' 
and the duration of travel requiring one.
    Under Sec.  2.126(c), traveling exhibitors of AWA-covered birds 
intending to exhibit animals at any location other

[[Page 10683]]

than the person's approved facility site, except for travel that does 
not extend overnight, are required to submit a written itinerary to the 
Deputy Administrator of Animal Care no fewer than 2 days in advance of 
any travel. The itinerary includes names, dates, locations and 
addresses where the animals will travel. However, under Sec.  
2.1(a)(3)(vii), persons meeting the de minimis threshold of eight or 
fewer covered pet birds in an exhibition, or four or fewer raptors in 
exhibition under the new exemption in Sec.  2.1(a)(3), will be exempted 
from licensing and regulatory requirements, including submission of 
itineraries.
    Several commenters using raptors for educational exhibition 
objected to the itinerary requirement, with one such commenter stating 
that the USFWS falconry license allows persons to go on overnight hunts 
without the need for an itinerary.
    Falconry activities, including the activity described by the 
commenter, are not covered under the AWA and therefore excluded from 
regulation and licensing.
    Section 2.127 states that APHIS will publish on its website lists 
of persons licensed or registered in accordance with the provisions of 
this part. The lists may also be obtained upon request by contacting 
the Deputy Administrator of Animal Care.
    Several commenters, citing privacy and bird theft risk, expressed 
concern over the public disclosure of facility addresses by APHIS.
    We note the address for business purposes does not necessarily need 
to be the facility address. An address that may be used for service of 
process suffices.
    Under Sec.  2.134 of subpart I, newly regulated dealers, 
exhibitors, intermediate handlers, and carriers are required to 
develop, document, and follow an appropriate continency plan \25\ 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).
---------------------------------------------------------------------------

    \25\ An overview of the contingency planning requirement is 
available at https://www.aphis.usda.gov/aphis/ourfocus/animalwelfare/new-contingency-planning-rule/aphis-2020-0101.
---------------------------------------------------------------------------

    A commenter expressed uncertainty about what a contingency plan is 
and how long it may take to develop it, and asked us to clarify. 
Another commenter asked APHIS to ensure that facilities have sufficient 
time to prepare or revise contingency plans prior to the effective date 
of the rule.
    As we have noted above, APHIS intends to set an extended period of 
implementation so that facilities will have time available to come into 
compliance with the standards, which would include developing a 
contingency plan. Such a plan, required in Sec.  2.134, provides 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). The 
contingency plan must be in place prior to conducting regulated 
activities. APHIS has made available a template for developing and 
documenting the contingency plan.\26\
---------------------------------------------------------------------------

    \26\ The contingency planning template is available at https://www.aphis.usda.gov/library/forms/pdf/aphis7093.pdf.
---------------------------------------------------------------------------

Standards for Birds in 9 CFR Part 3

    As we have noted, 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 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. They accommodate 
the species-specific needs of birds and consider significant 
differences with respect to their biological and behavioral 
requirements. The standards are also designed 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, which is the aim of the standards 
developed for all other animals covered under the Act.
    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. We proposed to add a new subpart G to 
contain standards for birds.
    The standards for birds that we proposed were divided into three 
broad areas: Facilities and operating standards; animal health and 
husbandry standards; and transportation standards. As a whole, these 
proposed standards would provide APHIS the means to effectively measure 
compliance and ensure animal welfare, while also affording breeders, 
dealers, exhibitors, researchers, and transporters the flexibility to 
use professionally accepted standards and the knowledge they have of 
their particular birds.
    A commenter asked APHIS to acknowledge that all animal care 
professionals must focus on determining whether the care standards 
implemented by a facility provide sufficient welfare benefits to each 
individual animal. Accordingly, the commenter added, the standards and 
their implementation should be flexible enough to accommodate for 
variability in individual birds. This commenter and several others 
raised a concern about our use of the term ``professionally accepted 
standards'' throughout the proposal, noting that it seems too vague to 
be enforceable when applied to specific facility and husbandry 
requirements for each bird. The commenter added that it does not 
indicate which professional standard will be utilized and validated.
    We agree that APHIS inspectors must focus on determining whether 
every covered animal at a facility is provided sufficient welfare 
benefits in compliance with the standards. To this end, we have 
developed the standards to be flexible enough to account for the great 
variability among birds that commenters have noted. As we stated in the 
proposal, we do not mandate a single, prescribed approach to meeting 
the standard, as the number of ``professionally accepted standards'' 
that facilities can use to comply with our standards are too numerous 
and species-specific to be listed. However, inspectors will receive 
training relevant to the inspections that they will conduct and we are 
confident that APHIS inspectors will be able to observe and determine 
compliance with each standard however a particular facility may choose 
to meet that standard. Additionally, we intend to provide

[[Page 10684]]

guidance to facilities in terms of how to interpret the standard for 
their facility both during and following the implementation period. 
This will help to ensure that APHIS inspectors and facilities have the 
same understanding of what it means to be in compliance with a given 
standard, and what that compliance looks like in practice.
    One commenter stated that the proposed standards are open to 
subjective interpretation, adding that many of the care standards 
explicitly state that APHIS will base their citations on published 
literature and apply them to compliance. The commenter expressed 
concern that licensees will not be privy to the literature that 
inspectors are interpreting to check for compliance with performance 
standards.
    We disagree with the commenter, as the proposal makes no reference 
to interpretations of published literature in determining compliance 
with the standards. We do state that such determinations will be made 
in accordance with ``professionally accepted'' standards, which may 
vary based on the species in question. In some instances, they could be 
articulated in published literature and industry guidelines that would 
provide a ``safe harbor'' for the entities; in others, they may simply 
be based on widely accepted best practices applied in conjunction with 
the expertise of the facility's employees. As noted above, we intend to 
provide guidance to facilities in terms of how to interpret the 
standard for their facility both during and following the 
implementation period.
    Another commenter noted that none of the professionally accepted 
standards are identified and there is no explanation of where to go to 
find them. The commenter added that because APHIS proposes to make 
compliance with these standards mandatory without including the content 
of those standards in the rule, APHIS is engaging in incorporation by 
reference but fails to follow the laws that governs incorporation by 
reference of industry standards into agency rules. The commenter stated 
that if APHIS continues to desire to make compliance with 
professionally accepted standards a part of its bird care rules, APHIS 
should republish the proposed rule with the mandatory ``professionally 
accepted standards'' fully identified, with instructions on finding 
those standards and accept public comments on them, or simply forgo 
incorporation by reference by including the actual standard. The 
commenter also recommended that APHIS publish guidance assisting zoos 
and aquariums in complying with the performance standards found in the 
proposed rule.
    We are making no changes in response to the commenter's 
recommendation to republish the proposal. The commenter's assertion 
that ``professionally accepted standards'' constitutes incorporation by 
reference appears to be based on the assumption that there is a single, 
written set of standards within the professional aviculture community 
and that this set of standards is being obliquely referenced in the 
proposed rule. This is incorrect. As noted above, professionally 
accepted standards can vary from species to species. While for some 
species there may be published literature or industry guidelines, for 
others there may simply be widely accepted best practices applied in 
conjunction with the expertise of the facility's employees. The purpose 
of our including ``professionally accepted standards'' in the rule is 
to provide facilities with the flexibility to use the knowledge they 
have of their particular birds and the ability to apply professional 
standards in order to meet our proposed standards. The means by which 
the standards may be met are too numerous and species-specific to 
include as prescriptive standards, and any attempt to do so directly or 
by incorporation by reference would eliminate the flexibility that 
newly licensed entities will need to ensure that their facilities are 
compliant. If facilities need guidance in how to meet any of the 
standards, APHIS will work with the licensee and assist them with ways 
of doing so both during and following the implementation period for 
this final rule before it becomes applicable to the licensee.
    A commenter expressed the concern that performance-based standards 
are routinely interpreted and enforced in an inconsistent ``anything 
goes'' manner that undermines the welfare of regulated animals and the 
authority of the Act. The commenter stated that engineering standards 
for basic requirements will provide bright-line rules making compliance 
with and enforcement of the AWA easier.
    We disagree with the commenter that performance-based standards are 
enforced capriciously and without consideration for animal welfare. 
While engineering standards evaluate compliance based on the manner in 
which an object is constructed or an action is performed, performance 
standards evaluate compliance based on the outcome of that construction 
or action, and specifically whether the outcome constitutes adequate 
animal welfare. Performance standards allow facilities to use the 
knowledge they have of their particular birds and reference to 
professional best practices to meet the standards. The means by which 
the standards may be met are too numerous and species-specific to be 
practicable, and imposing engineering standards would eliminate the 
flexibility that newly licensed entities will need to ensure that their 
facilities are compliant for their particular birds and circumstances. 
As we noted in the proposed rule, performance standards appear 
throughout the existing regulations and have been implemented and 
enforced successfully for other covered species.
    Many commenters expressed the view that the proposed standards 
apply a ``one-size-fits-all'' approach to stakeholders, subjecting 
hobbyists who breed just a few birds a year to the same costs and 
requirements as larger-scale commercial breeding operations.
    APHIS inspectors determine compliance at each facility based on 
whether a standard is being met at that particular facility. Food, 
water, shelter, and other standards of animal welfare apply to covered 
animals at all facilities, regardless of size, and we have crafted the 
proposed standards such that there are multiple ways that facilities 
can meet them. If persons have questions about meeting the standards, 
APHIS will work with the licensee and assist them with ways of doing so 
both during and following the implementation period.
    A commenter stated that APHIS should clarify in the final rule that 
so long as the welfare of the bird can be verified, the agency will not 
mandate any one performance-based standard over another. The commenter 
stated that the approach and method used to satisfy a particular 
requirement of the rule depends on the species of the bird in question, 
how and where the animal lives, and in some instances the particular 
use of the animal. The commenter added that APHIS should therefore 
focus on ``best practices'' to achieve the goals of the rule without 
prescribing unworkable requirements.
    We agree with the commenter. As we have explained above, the 
proposed performance standards in 9 CFR part 3 may be met through a 
variety of approaches. We developed these standards with the 
flexibility to allow facilities to use the knowledge they have of their 
particular birds, as well as professional guidance and best practices, 
to meet each standard.

[[Page 10685]]

Facilities and Operating Standards

Facilities, General
Facilities: Structure; Construction--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 in the proposal, the current regulations in part 3 for animals 
include requirements for housing that consider both animal and human 
safety. Therefore, we proposed 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 also required that they be kept in good repair, protect the 
birds from injury, and restrict other animals from entering. The 
facilities have to employ security measures that contain all the birds 
securely. Such measures may, as appropriate, 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 proposed to 
require that the birds have access to safety pens, enclosures, or other 
areas that offer the birds protection during overnight periods and at 
other times when their activities are not observed by staff.
    A commenter asked for clarification as to the meaning of ``housing 
facilities,'' noting that it can include a piece of land or a building 
but appears to be intended as a building. The commenter asked that we 
clarify whether the regulations require that primary enclosures be 
located within housing facilities and whether housing facilities remain 
defined as land or a building. The commenter objected to a prohibition 
of free-standing primary enclosures, if this is APHIS' intent, as such 
facilities constitute a large percent of the U.S. breeding facilities. 
Finally, the commenter also asked us to explain how Sec.  3.150 
(facility) and Sec.  3.153 (primary enclosure) are intended to be read 
in conjunction.
    As defined in Sec.  1.1, a housing facility means any land, 
premises, shed, barn, building, trailer, or other structure or area 
housing or intended to house animals. An indoor housing facility has 
connected doors and walls and can be climate controlled, while an 
outdoor housing facility cannot be climate controlled. A primary 
enclosure restricts an animal to a limited amount of space, using a 
room, pen, run, or cage. We are uncertain as to the meaning of a 
``free-standing primary enclosure,'' but it would be evaluated as any 
primary enclosure with respect to whether it is in compliance with the 
standards for birds.
    A commenter asked that whether, under Sec.  3.150, a secondary 
enclosure would be required inside indoor, mobile, and traveling 
housing facilities. As an example, the commenter cited whether finches 
housed in a cage in an environmentally controlled room indoors would 
need another safety pen within their cage. The commenter recommended 
that we change ``housing facility'' in this context in Sec.  3.150 to 
``outdoor housing facility.''
    Based on the commenter's description, a secondary enclosure would 
not be required inside a cage within an indoor housing facility, as the 
cage appears to be the primary enclosure. We do not see the reason for 
changing ``housing facility'' to ``outdoor housing facility,'' as 
``housing facility'' encompasses both indoor and outdoor facilities.
    A commenter asked whether this standard requires the construction 
of overhead caging and netting to keep out predators from above. The 
commenter also stated that Sec.  3.150(a) is intended to separate 
ground-based predators from flightless and flight-restricted birds but 
in many instances perimeter fences already provide such protection. The 
commenter suggested we add language to Sec.  3.150(a) that makes 
overhead netting unnecessary if there is no threat to the flightless or 
flight-restricted birds within, and ground barriers unnecessary if an 
existing perimeter fence already provides sufficient protection for the 
birds.
    We note that Sec.  3.150(a) contains only a general requirement to 
restrict other animals from entering the facility and makes no 
references to ``ground barriers'' or ``overhead netting.'' If such 
items, though not necessarily required, are among the means to ensure 
the standard is met, we do not see the utility of announcing they are 
unnecessary.
    A few commenters disagreed with the requirement for ``double 
doors'' as a required security measure, noting that other enclosure 
configurations that can keep birds from escaping and that requiring 
such doors could cause financial burdens on breeders. The commenter 
asked that we remove the safety measure examples in Sec.  3.150(a) or 
include other examples of acceptable safety configurations currently in 
use. Similarly, another commenter asked that we do not require double 
doors to contain some flightless or flight-restricted birds if a 
sufficiently tall outer set of walls or nonpenetrable perimeter fence 
is in place to adequately prevent escape from the facility.
    We note in the standard that while double doors may be one security 
measure, ``as appropriate,'' for containing birds safely, they are only 
one of many professionally accepted measures for securing birds under 
the standard.
    A commenter asked us to define ``protected'' as used in 
``protection during overnight periods,'' stating that birds at their 
facility that cannot fly can still move around an enclosure designed 
for their needs and do not need to be restricted to a smaller space 
overnight when staff is not there to observe them. Similarly, another 
commenter stated that for facilities that observe animals 24 hours a 
day, not all species need a protective safety pen or enclosure and 
suggested modifying the standard for protecting birds to be more 
flexible. One commenter noted that large flocks of birds, especially 
those with long legs, can be injured if herded into a shelter each 
night.
    The commenters are referring to Sec.  3.150(a), which requires that 
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. While the requirement does not require birds to be 
placed or herded into an enclosure, if an enclosure is not used there 
still must be an ``area that offers protection'' to birds overnight and 
when they are not being monitored. For example, protection from 
predators could be one defining feature of the ``area.''
    A commenter disagreed with the wording in Sec.  3.150(a) to 
restrict other animals from entering the housing facility, noting that 
keeping out small animals such as sparrows and lizards would cause 
exhibitors to redo significant amounts of caging and netting with no 
welfare benefit. Another commenter noted that keeping out all animals 
would effectively ban the use of wire mesh for avian housing 
enclosures, as insects and other small animals could enter through the 
mesh. The commenter asked that this provision be reworded for more 
flexibility and to account for the avian species' risk of predation. 
Similarly, a commenter asked that we incorporate a performance-based 
standard into this section of the regulation to reasonably restrict 
other harmful animals from entering the primary housing facility, as 
limiting

[[Page 10686]]

predation events to zero is difficult and costly.
    We acknowledge the commenters' concerns as to restricting other 
animals from entering the housing facility and adhering to the 
standard. We are revising the second sentence of Sec.  3.150(a) by 
adding the words ``and restrict other animals from entering that may 
negatively affect the welfare of the birds within.'' It is meant to be 
a performance standard that allows persons to use generally accepted 
professional practices to restrict or prevent entry into the facility 
of harmful animals and to allow for incidental entry of benign animals.
    One commenter asked that we reconsider defining standardized 
housing requirements, as species-specific housing does not allow for 
the flexibility required to address the individual needs of same-
species birds. As an example, the commenter noted that some pairs of 
raptors will breed and rear young in an open breeding chamber, while 
others of the same species require enclosed chambers with only skylight 
openings and very little human contact.
    We disagree with the commenter that Sec.  3.150(a) is 
insufficiently flexible to accommodate the commenter's needs. The 
facility adjustments mentioned by the commenter, modified to 
accommodate the welfare needs of not only the species but individuals 
within that species, are the types of unique contingencies for which we 
developed the standards.
Facilities: Condition and Site--Sec.  3.150(b)
    We proposed that housing facilities for birds and areas used for 
storing animal food or bedding must be adequately free of any 
accumulation of trash, waste material, other discarded materials, junk, 
weeds, and brush. We also proposed to 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. We did not receive substantive comments 
specifically referring to Sec.  3.150(b) and are finalizing it as 
proposed.
Facilities: Surfaces--Sec.  3.150(c)
    We proposed that the surfaces of housing facilities need 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 standard allows for thorough cleaning of the primary enclosure and 
ensures that the birds are contained securely and that the surfaces 
that come in contact with the birds do not cause harm.
    A few commenters stated that the standard is overly prescriptive, 
in that the requirement to clean or sanitize surfaces of housing 
facilities does not work for outside birds in large enclosures, such as 
peacocks, ducks, and geese. More specifically, another commenter stated 
that APHIS has failed to consider or explain how Sec.  3.150(c) would 
apply to a facility with aviaries suspended over grass, gravel, or 
dirt, which has no contact with the animal but nonetheless is 
maintained in a healthy state by biological processes or by washing the 
waste into the soil. The commenter asked whether the definition of 
``surface'' includes grass, gravel, or dirt, and asked us to amend the 
regulation so that natural surfaces such as grass, gravel, sand, and 
dirt are permitted when maintained to neutralize waste through 
biological processes.
    We acknowledge the concern of commenters with outdoor cages and 
other enclosures suspended over dirt, grass, or gravel. For geese and 
other birds in such enclosures, we note that we intended the term 
``surface'' in the cleaning and sanitizing standards in Sec.  3.150(c) 
to include dirt, grass, or gravel, or a similar surface that can be 
raked, shoveled, and hosed down, or where biological processes break 
down the waste. However for such natural surfaces beneath cages, 
accumulations of waste will need to be removed if composting or other 
biological processes fail to maintain a safe and healthy environment 
for the birds and facility personnel as required under the standards.
Facilities: Water and Electric Power--Sec.  3.150(d)
    We proposed that, for facilities maintaining birds, reliable 
sources of water and power must be available. The facility would have 
to have reliable electric power adequate for heating, cooling, 
ventilation, and lighting, and for carrying out other husbandry 
requirements in accordance with the standards. We also proposed that 
the facility provide adequate potable water for the birds' drinking 
needs and adequate water for cleaning and carrying out other husbandry 
requirements.
    A commenter expressed doubt that the requirement for electric power 
in a housing facility is performance based, noting that roughly half of 
all falconers house their birds in facilities without power and that 
for those who do have it, electric power is more a convenience and not 
an animal welfare need.
    Practices associated with falconry are not covered under the AWA 
and are therefore excluded from regulation.
    Another commenter asked us to clarify if each cage needs to have 
individual electrical power access or if the facility as a whole needs 
to have access to electricity.
    The facility must have reliable electrical power adequate for 
heating, cooling, ventilation, and lighting if necessary, or for 
carrying out other husbandry requirements in accordance with the 
regulations in this subpart. In this regard, we are revising this 
proposed provision so that reliable electric power is only required in 
a housing facility for heating, cooling, ventilation, and lighting if 
necessary, or for carrying out other husbandry requirements in 
accordance with the regulations in this subpart. Accordingly, required 
access to power in a facility will depend on whether that access is 
necessary to comply with the regulations. If electric power is not 
necessary for compliance with other provisions and does not jeopardize 
animal welfare and proper husbandry, it is not a requirement.
    A commenter stated that the term ``potable water'' is confusing as 
it is typically used to describe fresh water for consumption, noting 
that fresh water is not indicated for many birds kept in zoos and 
aquariums, for example penguins. The commenter asked that we explain 
the intended use of the term or clarify that the requirement to supply 
adequate potable water applies specifically to birds who get their 
water by drinking water. Another commenter stated that most of a 
raptor's water needs are met through their diet of meat, which greatly 
diminishes their requirement for drinking water. For this reason, the 
commenter asked that the regulations be clearly worded so they do not 
require continuous or daily access to water.
    We acknowledge that some birds do not require fresh water and that 
some are hydrated primarily through diet, in which case they may not 
require availability of potable water. However, clean water is 
necessary for cleaning and carrying out other husbandry requirements, 
in accordance with Sec.  3.150(d) as we proposed.

[[Page 10687]]

    Another commenter asked that we include a performance-based 
amendment to the standard that affirms the use of wells, so long as the 
water provided is non-detrimental to the health of the animals. The 
commenter also asked APHIS to allow the presence of aesthetic nuisance 
contamination in well water affecting taste, smell, or sediment that 
does not affect the health of the animals.
    If water from any source is safe and potable for birds that drink 
water, and does not otherwise affect the health of the animals, it can 
be used to address the standard. We see no need therefore to 
specifically affirm the use of wells as the commenter requested. APHIS 
will verify compliance with the standard as part of the facility 
prelicensing inspection and in subsequent visits.
Facilities: Storage--Sec.  3.150(e)
    We proposed 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 and that 
supplies be stored off the floor and away from the walls, to allow 
cleaning underneath and around the supplies.
    A commenter stated that ``off the floor and away from the walls, to 
allow cleaning underneath and around the supplies'' is language used in 
the regulations pertaining to dogs and non-human primates. The 
commenter asked us to consider removing this requirement and including 
a performance-based requirement in its place. Another commenter asked 
that we amend the proposal to permit storage of large pallets of feed 
bags on floors and against walls, so long as it is non-detrimental to 
the quality of the feed.
    We are making no changes to proposed Sec.  3.150(e) regarding 
keeping supplies off the floor and away from walls. As the commenter 
noted, these requirements are included for storage for other regulated 
animals, which we included to allow for cleaning and to prevent pest 
infestation of feed.
    A commenter proposed that the regulation be amended to allow 
cleanings of the storage facility once the stored product has been 
expended and before a new supply is stored.
    We disagree with the commenter on this point, as frequency of 
cleaning should not be based on the rate at which bedding or food 
products are consumed.
    We also proposed that all food must be stored at appropriate 
temperatures and in a manner that prevents contamination and 
deterioration of its nutritive value, and that food would not be 
allowed to be used beyond its shelf-life date or expiration date listed 
on the label.
    A few commenters stated that the temperature storage and shelf-life 
requirement is not included for any other regulated species and will 
add unnecessary burden because owners would need to be aware of the 
temperature at which the bird food should be stored, and such 
information is usually not available on the label. One commenter noted 
that the standard requires an engineering control for a potential 
unknown variable (i.e., storage temperature). Another commenter asked 
for flexibility in interpreting this standard, noting that nonprofit 
organizations sometimes receive donated food for birds that is near or 
past its expiration date and is used while the nutritional value is 
still acceptable. A commenter recommended that we replace ``tightly 
fitting lids'' to ``tightly fitting lid, seal, or clip'' to allow feed 
to be stored in the original container, as transferring feed to another 
container may make it difficult to determine its nutritional value, 
expiration date, and storage information. The same commenter proposed 
that placing bedding material such as straw and wood shavings in 
``waterproof containers'' is impractical, and proposed that we amend 
the regulation to state that ``bedding must be stored in a way that 
prevents it from being wetted and must not be used if it would be 
harmful to the health of the animals.''
    We agree with the commenters that the temperature and storage 
standards for food and bedding could be more performance-based while 
still ensuring the health and well-being of the birds maintained. 
Accordingly, we are revising proposed Sec.  3.150(e) to remove the 
temperature and shelf-life requirement and instead to provide that 
supplies of food and bedding must be stored in facilities that 
adequately protect such supplies from deterioration, spoilage (harmful 
microbial growth), and vermin or other contamination, and that all food 
must be stored in a manner that prevents deterioration of its nutritive 
value.
    We also proposed in paragraph (e) that live food be maintained in a 
manner to ensure wholesomeness and 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 
proposed to 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.
    A commenter asked us to consider revising this standard to be more 
performance-based. More specifically, another commenter was unsure how 
we intended to define ``food storage and preparation areas'' and 
``animal area,'' and asked whether the term ``area'' allows one room to 
be divided into two areas: One for food storage and preparation and one 
for cleaning supply storage.
    Activities involving animals and activities involving food storage 
and preparation must be performed in separate areas configured to 
prevent animal intrusion into supplies and food contamination. One room 
may be used provided that animals are kept in an area away from food 
storage and preparation.
    Further, the same commenter asked why cleaning supplies and 
disinfectants cannot be stored in the food preparation area, which in 
many home-based businesses is the kitchen. Aside from stating that the 
proposal is unclear about what constitutes the ``animal area,'' the 
commenter asked us to amend the proposal to permit the storage of 
cleaning supplies and disinfectants in both areas, so long as they are 
properly labeled and in containers with tight-fitting lids.
    As long as the cleaning supplies pose no risk of contaminating food 
or other items that the animal could come into contact with, cleaning 
supplies can be stored in a kitchen area provided they are adequately 
secured to prevent potential harm to the birds. The proposed standard 
allows for that flexibility.
    Another commenter asked us to define ``wholesomeness'' in the 
context of the standard.
    If live food is being provided to birds, we define 
``wholesomeness'' to mean that the live food is maintained or kept in 
such a way that it is alive when fed to the birds and is free from 
spoilage and contamination, and protects against the deterioration of 
its nutritive value.
Facilities: Waste Disposal--Sec.  3.150(f)
    We proposed 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.

[[Page 10688]]

    Several commenters noted that it is critically important to limit 
intrusion into raptor breeding chambers for waste disposal. One 
commenter noted that most breeding chambers are large enough that food 
waste and feces do not accumulate excessively, and that a typical 
raptor breeding chamber today is no more unsanitary than a wild nest 
site that also accumulates food waste in the form of dead animal 
remains during the nesting season. The commenter stated that APHIS 
should not expect or require breeders to clean the chambers between 
February 1 and August 31 of each year. Another commenter asked that we 
provide an exception to ``regular and frequent waste disposal'' to 
accommodate birds that are destined for release into the wild. In 
requesting an accommodation to this requirement, the commenter, who 
works with endangered California condors, noted that the birds take 6 
to 8 months to rear their young, during which time staff must limit 
entry into the enclosures to prevent unintended habituation. The 
commenter also stated it is important that juvenile California condors 
intended for release do not see staff handle food items and therefore 
cleaning around pre-release birds must be limited. In addition, 
disturbance of breeding pairs can result in aggression and injury 
between mates and damage to eggs or nestlings.
    We acknowledge the importance of avoiding intrusion into breeding 
chambers for cleaning purposes. Under amended Sec.  3.158(a)(2) we will 
allow for a delay in cleaning, as we will not impose any requirements 
that will interfere with a species' natural behavior when it comes to 
nesting and breeding.
    We also proposed that trash containers in housing facilities and in 
food storage and food preparation areas be leakproof and have tightly 
fitted lids.
    A commenter asked us to consider removing this requirement, as 
``leakproof and tightly fitting lids'' are engineering standards, and 
to make the standard more performance-based.
    We agree with the commenter and are revising the requirement in 
proposed Sec.  3.150(f) to require that the trash containers ``be able 
to contain trash securely to minimize odors and be inaccessible to 
animals and pests.''
Facilities: Drainage--Sec.  3.150(g)
    As proper drainage must be provided in order to maintain 
cleanliness and sanitary conditions, we proposed several standards.
    We proposed that housing facilities 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. Any pool or other aquatic area would have to be maintained in 
accordance with the regulations in proposed Sec.  3.157.
    One commenter stated drainage systems are not necessary in some 
buildings used for breeding at their facility because the cages are 
suspended and the floors in those buildings never need washing. Another 
commenter stated that the term ``drainage system'' and the requirement 
that ``all drains must be properly constructed, installed, and 
maintained so that they effectively drain water'' seems to imply having 
a floor drain with plumbing to a wastewater system for indoor housing 
facilities. The commenter stated that installing drains may be 
challenging and expensive for individuals that have been successfully 
maintaining birds without a drainage system and recommended that we 
change the requirement to something akin to the performance-based 
drainage standard for rabbits.
    As long as animal wastes and water are rapidly eliminated and the 
animals have the option of remaining dry, the standard in Sec.  
3.150(g) is met. We note that a ``disposal and drainage system'' does 
not need to be a constructed floor drainage system but can be a 
procedure that achieves this objective, such as shoveling or otherwise 
moving animal wastes, water, and wet bedding from an area.
    We also proposed that disposal and drainage systems must minimize 
vermin and pest infestation, insects, odors, and disease hazards, and 
that 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, we proposed that 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.
    In addition, we proposed that if drip or constant flow watering 
devices are used to provide water to the animals, excess water must be 
rapidly drained out of the animal areas by gutters or pipes so that the 
animals have the option of remaining dry.
    A commenter stated that the terms ``gutters or pipes'' is an 
engineering control that may be expensive and unnecessary for some bird 
housing systems, and asked that we consider changing the ``gutters or 
pipes'' requirement to a performance standard that describes the same 
outcome, i.e., that animals remain dry.
    As the commenter notes, the performance standard is that animals 
have the option of remaining dry. Accordingly, if there are ways for 
meeting the standard other than gutters and pipes for rapidly draining 
excess water from animal areas, then the facility can use them to 
comply with this standard. For this reason, we are amending the 
requirement to read as follows: ``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, pipes, or other 
methods so that the animals have the option of remaining dry.''
Facilities: Toilets, Washrooms, and Sinks--Sec.  3.150(h)
    We proposed that toilets and washing facilities, such as washrooms, 
basins, sinks, or showers, must be provided for and be readily 
accessible to animal caretakers.
    A commenter asked that the regulation be amended to permit a 
facility to rely on a toilet facility that is nearby, but not on the 
same property, as some facilities have running water but no toilet on 
the property. Another commenter asked why showers and toilets are 
required and asked for clarification.
    We see no need to amend the standard, as the regulation as written 
does not require a readily accessible toilet to be on the same property 
as the facility. As long as a working toilet is accessible somewhere 
within a reasonable distance to caretakers, it will meet the standard. 
As to why caretaker access to a toilet is required, it is a matter of 
basic hygiene. A shower is not a requirement, as long as basins, sinks, 
or other sources of water are readily available to caretakers.
Facilities, Indoor
Indoor Facilities: Temperature and Humidity--Sec.  3.151(a)
    We noted in the proposed rule that 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 proposed that the air temperature and humidity levels and, if 
present, pool or other aquatic area

[[Page 10689]]

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. In addition, we proposed 
that prescribed temperature and humidity levels must be part of the 
written program of veterinary care or part of the full-time 
veterinarian's records.
    A commenter noted that specificity in prescribed temperature and 
humidity levels may be difficult to determine for some avian species 
because no industry standard exists for humidity levels for adult 
birds. The commenter asked that we provide detail regarding what we 
expect for this requirement, which could include having institutional 
staff involved in such determinations. Similarly, a commenter stated 
that a search for ``professionally accepted standards'' for humidity 
levels yielded no results, making it impossible to determine what the 
professionally accepted standards for humidity for indoor bird exhibits 
might be. Another commenter asked how APHIS knows what the range of air 
temperature and humidity would be for a bird's health and comfort when 
there are 10,000 species from around the world.
    We acknowledge that correct temperature and humidity levels are 
essential to a bird's health and well-being and that there are 
thousands of species of birds with widely varying needs, which is why 
we proposed a performance-based standard for birds that requires 
protection against detrimental temperature and humidity levels, 
supports health and well-being, and prevents discomfort or distress. We 
do not expect an exact temperature and humidity figure to be determined 
and maintained for every species kept. APHIS has ample knowledge of 
what constitutes appropriate temperature and humidity levels for most 
species, and persons with questions about what levels are appropriate 
can contact APHIS.
    Another commenter suggested that temperature and humidity 
guidelines could be written by a qualified caretaker in consultation 
with peers or their veterinarian, as most veterinarians unfamiliar with 
birds already depend on a caretaker for husbandry care.
    We agree that qualified caretakers in consultation with 
veterinarians or other experienced persons, along with reference to 
professionally accepted standards, are capable of determining and 
instituting temperature and humidity levels that comply with this 
standard. Accordingly, we are amending Sec.  3.151(a) to no longer 
require that prescribed temperature and humidity levels be part of the 
written program of veterinary care or part of the full-time 
veterinarian's records. However, if the attending veterinarian of a 
facility sees fit to prescribe such levels to ensure bird health and 
well-being, he or she can do so.
    A commenter representing raptor owners stated that native raptor 
species kept for falconry can withstand the range of year-round 
temperatures across the United States when shade and shelter from wind 
are provided.
    Practices associated with the sport of falconry are not covered 
under the AWA and are therefore excluded from regulation.
Indoor Facilities: Ventilation--Sec.  3.151(b)
    We proposed that 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 any drafts.
    A commenter asked to explain how the space must be ventilated while 
also minimizing drafts.
    The facility can be ventilated in such a way that incoming fresh 
air is vented away from the birds and diffused throughout the space, 
such that the air in the facility is replenished without drafts hitting 
the birds directly.
    A commenter asked that we broaden the list of noxious fumes to 
include cleaners and air fresheners.
    We are making no changes in response to the commenter's request. As 
we allow certain substrates and surface coatings that are ``safe and 
nontoxic to the birds'' in other standards we have proposed, we would 
allow cleaners and air fresheners provided that their use is safe and 
nontoxic to people and birds in the facility. In such an instance they 
would not be considered to be ``noxious'' under the standard.
Indoor Facilities: Lighting--Sec.  3.151(c)
    We proposed that indoor housing facilities must have lighting, by 
natural or artificial means, or both, of appropriate quality, 
distribution, and duration for the bird species. Lighting must be 
sufficient to permit routine inspection and cleaning and be designed to 
protect the birds from excessive illumination that may cause discomfort 
or distress.
    A commenter asked that we consider a provision to account for light 
bulbs with toxic coatings, recommending that we add ``if coated bulbs 
are used, the coating must be nontoxic to prevent inhaled toxicities.''
    We are making no changes in response to the commenter's request. We 
allow certain substrates and surface coatings in other standards as 
long as they are ``safe and nontoxic to the birds.'' If coated bulbs 
emit toxic fumes or gases into the facility, they would not be in 
compliance with Sec.  3.151(b).
Indoor Facilities: Indoor Pool and Other Aquatic Areas--Sec.  3.151(d)
    In the proposal, we indicated that indoor pools or other aquatic 
areas (e.g., ponds, waterfalls, fountains, and other water features) 
would need 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.
    A commenter stated that in some cases, space constraints may allow 
for aquatic areas that permit some, but not all, of a species' 
behaviors (e.g., swimming, but not diving), and presumed that inclusion 
of such an aquatic area is permitted when the area would continue to 
benefit birds using it, as determined by the attending veterinarian. 
The commenter stated that guidance clarifying this issue would be 
useful in assisting facilities in their compliance efforts.
    Provided that the vertical space allows for behaviors typical to 
the species and conforms to the space requirement standard, it would be 
in compliance. Also, it is subject to the discretion of the attending 
veterinarian.
Facilities, Outdoor
Outdoor Facilities: Acclimation--Sec.  3.152(a)
    As we noted in the proposal, outdoor housing facilities are 
completely dependent on local environmental conditions. We proposed 
that birds must not be housed in outdoor facilities unless the air 
humidity and temperature ranges they experience do not adversely affect 
their health and comfort. This requirement also applies to the 
temperature of pools and other water features. We also proposed that 
birds must 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 ranges they will 
encounter.
    A commenter noted that, although the standard states that the 
humidity and temperature ranges must not adversely

[[Page 10690]]

affect bird health and comfort, we did not indicate how this standard 
will be determined. The commenter added that cage modifications, such 
as shade cloths, can help keep the birds comfortable when the outside 
temperature is not in their normal range of health and comfort.
    The standard is met if the cage modifications are in compliance 
with the standards in the proposed subpart and allow for ambient 
temperature and humidity ranges outdoors such that the health and 
comfort of the birds is not adversely affected.
    A commenter asked us to clarify expectations regarding acclimating 
birds to outdoor enclosures, specifically whether outdoor acclimation 
would only be needed for birds already accustomed to indoor enclosures.
    If birds are already acclimated to outdoor humidity and temperature 
ranges of the outdoor enclosure, they do not need to be acclimated 
again.
    The commenter also asked if acclimation would be required for birds 
captured from environments of similar temperature or humidity, and how 
``similar'' is defined in these scenarios (e.g., within a specified 
temperature or humidity range).
    Environments of similar temperature or humidity are those in which 
a bird's health and comfort would not be adversely affected if moved 
from one such environment to the other.
    The commenter also asked what the guidelines for acclimation are 
for birds captured from outdoor climates that are considerably 
different from the outdoor enclosures where birds will be housed during 
research, testing, or teaching, and where APHIS expects birds to be 
housed until acclimation to the new outdoor enclosure is achieved.
    Birds captured from outdoor climates that are considerably 
different from outdoor enclosures where they are to be housed will need 
to be acclimated in accordance with professionally accepted standards 
until the time that they may be introduced to the outdoor housing 
facility without adversely affecting their health and comfort.
    Finally, this and another commenter stated support for adding a 
statement to the proposed section acknowledging that some birds may not 
require acclimatization, such as wild-caught birds being housed in 
outdoor facilities with conditions similar to their natural habitat.
    As implied in the standard, birds that are acclimated to the 
ambient temperature and humidity in the outdoor housing facility do not 
need to be acclimated. Accordingly, we see no reason to revise the 
proposed standard.
    A commenter asked that we reiterate in Sec.  3.152(a) the 
requirements from Sec.  3.151(a) for indoor facilities regarding 
temperature and humidity. The commenter also asked that Sec.  3.152(a) 
be revised to include provisions for acclimating birds gradually to 
outdoor environments, including pools.
    The requirements in Sec.  3.151(a) are for an indoor regulated 
environment and those in Sec.  3.152(a) are for acclimation in outdoor 
unregulated environment, and thus have two different purposes. The 
standard for acclimating birds to outdoor environments can be met by 
using professionally accepted standards.
    A commenter stated that many species housed in zoos are maintained 
year-round or seasonally outdoors, are well-acclimated to the regional 
climate, and subsequently do not require supplemental heating, cooling, 
or ventilation.
    Provided that the air humidity and temperature ranges experienced 
by such birds does not adversely affect their health and comfort, they 
may be housed outdoors. This requirement also applies to the 
temperature of pools and other water features they may also use.
Outdoor Facilities: Shelter From Inclement Weather--Sec.  3.152(b)
    Under our proposed changes, outdoor housing facilities must provide 
adequate shelter, appropriate to the species and physical condition of 
the birds and for the local climatic conditions, in order to protect 
the birds from any adverse weather conditions. Such shelters must be 
adequately ventilated in hot weather and have one or more separate 
areas of shade or other effective protection large enough to contain 
all the birds at one time and prevent their discomfort from direct 
sunlight, precipitation, or wind.
    A commenter stated that the requirement to provide adequate shelter 
to protect the birds from adverse weather conditions is vague, noting 
that many species of waterfowl and other bird species will not thrive 
in or use sheltered areas, and that species appropriateness and not 
local climatic conditions is more important to consider for this 
standard. The commenter also stated that in some large aviaries, there 
is insufficient shelter space for all birds in the exhibit to take 
refuge from adverse weather at the same time, should they choose. The 
commenter asked if vegetation would suffice as shelter for this 
particular requirement. Similarly, another commenter noted that 
constructing a shelter that all birds can access at any time would be 
costly and most likely be unused by many birds.
    We agree with the commenter that shelter must be appropriate to the 
species and that some species will not use sheltered areas. Vegetation 
providing shade and other natural protection may be used as shelter if 
appropriate to the species, but under the standard there must be enough 
such protection to cover all the birds to protect from sun and weather 
extremes. In addition, we differ with the commenter on considering 
local climatic conditions, as some birds may require that alternative 
shelter be provided to them during certain seasons, for instance, when 
leaves fall in temperate climates and no longer provide cover.
    A commenter asked that APHIS consider alternatives that better 
mimic the natural environment of the birds, as the proposed sheltering 
standards may be unnecessary and costly for some smaller businesses. 
Finally, one commenter noted that zoos strive to maintain natural 
habitats akin to what the birds would find in the wild, and that large 
shelters and climate-controlled bird houses may confuse and agitate the 
birds, rather than provide the intended protection.
    Natural shade and shelter may be sufficient as an alternative to 
constructed shelters for meeting the standard, if appropriate to the 
species, but under the standard there must be enough such shelter to 
protect all the birds at once from sun and weather extremes as 
necessary. As we noted above, seasonal changes may require that 
alternative shelter be provided for all the birds during certain times 
of year when natural shelter may not be available.
    We also proposed that the shelter must 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 proposed that such 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.
    Many commenters stated that captive birds should be housed in 
groups or pairs of compatible species or individuals to ensure that 
their need for social contact is met.
    We agree that birds should be housed in such a way that their need 
for social contact is met. We note that sufficient space must be 
provided to house all birds safely, including birds low in the 
hierarchy.

[[Page 10691]]

    A commenter stated that not all injuries due to aggression can be 
prevented and that the social needs of the birds are more important, 
making singly housing birds from dominance hierarchies to prevent 
injury unfeasible. The commenter recommended that APHIS use performance 
standards to evaluate ``sufficient space'' to provide for these social 
hierarchies to play out naturally with the understanding that harm 
cannot be entirely prevented.
    The commenter is correct about the importance of the social needs 
of birds and that not all aggression among birds is preventable. In 
line with the commenter's recommendation, we have developed a 
performance standard that requires sufficient space for all birds in a 
hierarchy, including low hierarchy birds, which is intended to minimize 
aggression and competition for space.
Primary Enclosures
Primary Enclosures: General Requirements--Sec.  3.153(a)
    We proposed that primary enclosures must be designed and 
constructed of suitable materials so that they are structurally sound, 
and that the primary enclosures be kept in good repair and 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; and
     Provide all the birds with easy and convenient access to 
clean food and potable water.
    We also proposed that enclosures 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.
    A commenter suggested that natural means of shade be added to this 
section.
    We note in the discussion of Sec.  3.152(b) that either artificial 
or natural shade is adequate, provided that some type of shade be 
available to all birds at once throughout the year as appropriate.
    In addition, we proposed that all surfaces in contact with the 
birds must be readily cleaned and/or sanitized in accordance with 
proposed Sec.  3.158 of the regulations, or be replaced when worn or 
soiled.
    A commenter stated that in some cases, cleaning and sanitizing all 
surfaces in an enclosure is not reasonable, noting that many bird 
enclosures contain natural vegetation and trees that would be difficult 
to clean and sanitize as required by the proposed wording. The 
commenter suggested that we use flexible wording similar to the 
standard used for mammals in current Sec.  3.131. Another commenter 
recommended language that allows for natural materials for some species 
and use of alternative methods of sanitation for natural materials that 
are not easily moved.
    Cleaning and sanitation of trees and vegetation is not indicated 
under the standard. The standard in Sec.  3.131 referred to by the 
commenter addresses cleaning and sanitation of ``cages, rooms, and 
hard-surfaced pens or runs,'' and Sec.  3.158(b)(2) of our proposal 
only refers to hard surfaces of primary enclosures and food and water 
areas, and equipment needing to be sanitized.
    We also proposed to require that floors be constructed in a manner 
that protects the birds' feet and legs from injury. If flooring 
material is suspended, we proposed that it would have to be 
sufficiently taut to prevent excessive 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.
    A commenter stated that the requirement for an absorbent substrate 
is dangerous for raptors, noting that absorbent materials can harbor 
fungal spores and bacteria and produce ammonia, all of which place 
raptors at risk for respiratory disease. This and many other commenters 
also noted that pea gravel, sand, or other inert substrate is typically 
used in raptor facilities and that the regulations should recognize 
this practice. Another commenter noted that other sections in the 
standards disallow standing water or damp substrate and that therefore 
removal of the word ``absorbent'' from this requirement may be 
appropriate.
    Under proposed Sec.  3.158(b)(3), materials such as gravel, sand, 
grass, earth, planted areas, or absorbent bedding, can be cleaned or 
sanitized by removing and replacing contaminated material in whole or 
in spots as necessary or by establishing a natural composting and 
decomposition system. We are retaining the word ``absorbent'' as it is 
relevant in the context of species of birds for which absorbent 
substrates are used.
    A commenter stated that the phrase ``prevent excessive sagging'' in 
Sec.  3.153(a)(1)(x) is not well-defined and recommended that the 
wording be revised to ``provide stable walking or perching surface.''
    We are making no changes in response to the commenter, as 
``sufficiently taut to prevent excessive sagging under the bird's 
weight'' indicates that the surface is stable and safe. ``Excessive 
sagging'' is a significant term as it can reveal a potential structural 
hazard to birds housed in the enclosure.
    We proposed that furniture-type objects, such as perches and other 
objects that enrich a bird's environment, must 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 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.
    Finally, we proposed that primary enclosures 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.
    One commenter noted that the proposed rule does not require space 
for birds to escape from public view, even though this is a natural 
species-specific behavior, and that APHIS should require such 
structures as hide boxes and other opportunities for hiding as a part 
of the enhancement of the birds' environment.
    We agree that many birds require space for hiding from public view 
and that this is a natural, species-specific behavior that a facility 
can include in the environment enhancement plan required in proposed 
Sec.  3.154, which we discuss at greater length later in this document. 
In addition, we note that Sec.  2.131(b) requires that handling of all 
animals be done as expeditiously and carefully as possible in a manner 
that does not cause trauma, overheating, excessive cooling, behavioral 
stress, physical harm, or unnecessary discomfort.
    The proposed standards in Sec.  3.152 for outdoor facilities and 
Sec.  3.153 for primary enclosures require that sufficient space exists 
to comfortably hold all of the birds at the same time without adverse 
intraspecific aggression or grouping of incompatible birds. In

[[Page 10692]]

addition, 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.
    A commenter expressed concern with the requirement to screen 
enclosures from each other, noting that making such modifications would 
be a financial strain on their condor breeding program and disturb 
breeding birds. The commenter requested that we consider including a 
``grandfather'' clause exempting structures and enclosures constructed 
before the implementation of the proposal, and to establish an annual 
monetary limit to put toward potential structural modifications needed 
for compliance. Another commenter also disagreed with the requirement 
for screened enclosures, stating that that not all species of birds 
will harm each other through unscreened common walls. The commenter 
asked that we amend the rule to permit battery cages with common 
unscreened sides with the approval of attending veterinarians as part 
of the veterinary care plan. Similarly, a commenter stated that a 
requirement for adjacent enclosures to be suitably screened should be 
enforced on a case-by-case, species-by-species basis, as screening is 
not needed with many non-aggressive bird species housed in adjacent 
enclosures.
    The requirement in proposed Sec.  3.153(a)(3) states that primary 
enclosures 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. Screening as defined in the standard can simply mean a 
shared mesh separation between cages if birds sharing each side of the 
screen area are non-aggressive. If a facility does not want to use 
screens to separate aggressive birds, they can ensure cages are a 
sufficient distance apart to meet the standard.
Primary Enclosures: Space Requirements--Sec.  3.153(b)
    Space requirements for the wide variety of birds subject to the Act 
are highly variable, and the requirements we proposed are performance-
based standards intended to provide adequate space to ensure the health 
and well-being of the birds. We proposed that 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 according to the program of veterinary care developed, 
documented in writing, and signed by the attending veterinarian. Spaces 
would also have to be adequate and allow for normal postural and social 
adjustments and approved in writing by the attending veterinarian.
    Some commenters suggested that we prescribe specific minimum space 
requirements for birds in the standards themselves, based on species 
and number of occupants, and that width of the space should be a 
greater consideration than height. One commenter stated that 
engineering standards for primary enclosure space will make compliance 
with and enforcement of the AWA unequivocal and easier for both 
licensees and inspectors, and noted that we have promulgated such 
standards for minimum space requirements for mammals covered under the 
AWA in other subparts.
    As we have noted, we developed the space requirements for primary 
enclosures to be performance-based, with several requirements to ensure 
the health and well-being of the birds. Requiring facilities to comply 
with specific minimum enclosure sizes and width dimensions specific to 
each species would result in greater burden on many facilities to 
comply and on APHIS' efforts in inspection and enforcement. Moreover, 
requiring specific enclosure sizes gives facilities and attending 
veterinarians less flexibility in determining what constitutes adequate 
space for individual birds to ensure their health and well-being. While 
the commenter is correct that other AWA subparts prescribe minimum 
space requirements for other animals, including dogs, cats, guinea 
pigs, hamsters, rabbits, and nonhuman primates, the number of species 
in each of these subparts is small compared to the hundreds, if not 
thousands, of bird species that could potentially be covered under this 
rulemaking. In addition, the space requirements to maintain the health 
and well-being of the species within each of these groups do not range 
nearly as widely as those for birds. We also note that Subpart F, 
``Specifications for the Humane Handling, Care, Treatment, and 
Transportation of Warmblooded Animals Other Than Dogs, Cats, Rabbits, 
Hamsters, Guinea Pigs, Nonhuman Primates, and Marine Mammals,'' does 
not prescribe minimum space requirements. Similar to birds, the large 
number of mammal species potentially covered under Subpart F requires 
performance standards to ensure that all are adequately covered.
    A commenter stated that the term ``postural adjustment'' does not 
specifically include full extension of both wings without feathers 
contacting perches or the sides of the cage, which can damage feathers 
and is known to be a cause of feather destructive behavior. Another 
commenter cited several sources that recommended the cage size be one 
and one-half to twice the width of the bird's wingspan.
    We believe the standard addresses the commenters' concerns without 
including wingspan specifications for birds. In situations in which 
inadequate cage size for a bird could potentially result in feather 
damage or cause adverse behaviors, the standard requires that the 
facility provide adequate space to that bird to ensure its health and 
well-being--in other words, to provide that bird with enough room, 
relative to the bird's size, to fully extend its wings in the cage. 
Moreover, an attending veterinarian, or a local veterinarian approved 
and directed by the attending veterinarian, can require that a bird be 
provided additional space if necessary to ensure the standard is met.
    Several commenters expressed concern over our proposal to require 
documentation in the program of veterinary care that spaces in all 
enclosures housing birds are adequate and allow for normal postural and 
social adjustments. Some interpreted the requirement to mean that the 
attending veterinarian would document and require specific space 
dimensions for each of their birds, and stated that needing to comply 
with a static set of documented requirements would limit the 
flexibility they need to move birds between primary enclosures. 
Commenters also noted the large number of bird species and the wide 
range of husbandry needs for each, and indicated that breeding 
behaviors, compatibility between birds, and other husbandry concerns 
change frequently and require prompt adjustments to enclosure space. 
Other commenters added that facility caretakers know their birds and 
are in the best position to develop appropriate space needs for them 
that allow for normal postural and social adjustments.
    As long as facility caretakers in consultation with the attending 
veterinarian are able to apply professionally accepted space standards 
that allow for normal postural and social adjustments, we agree that 
the attending veterinarian does not need to document and maintain a 
record of space requirements in the program of veterinary care. 
Therefore, we are

[[Page 10693]]

revising proposed Sec.  3.153(b) to no longer require that space 
requirements be documented in the program of veterinary care. 
Compliance with the standard will be evaluated through APHIS 
inspections and regularly scheduled visits to the premises by the 
attending veterinarian. Facilities will still be required to consult 
with the attending veterinarian on space requirements and changes 
thereto, and the attending veterinarian may prescribe space 
requirements as deemed necessary for animal welfare. Also, under Sec.  
3.153(b)(1), the attending veterinarian must document instances in 
which he or she 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, and make such 
records available to APHIS for review. As we have noted, Subpart F, 
``Specifications for the Humane Handling, Care, Treatment, and 
Transportation of Warmblooded Animals Other Than Dogs, Cats, Rabbits, 
Hamsters, Guinea Pigs, Nonhuman Primates, and Marine Mammals,'' neither 
prescribes minimum space requirements nor requires documentation of 
such requirements as a condition of compliance.
    A commenter asked us to clarify how often the attending 
veterinarian's space plan must be updated.
    As noted above, we are no longer requiring space requirements to be 
part of the program of veterinary care, although the requirements would 
have to be developed in consultation with the attending veterinarian.
    One commenter stated that the first sentence of Sec.  3.153(b) is a 
run-on sentence that creates ambiguity and should be edited. The 
commenter explained that, as drafted, the ``adequate freedom of 
movement'' requirement could be construed as being merged with the 
``freedom to escape from aggression'' requirement, but opined that the 
USDA clearly views ``adequate freedom of movement'' as a separate and 
independent requirement for enclosure space.
    The standard states that birds must be in an enclosure constructed 
and maintained so as to allow for freedom of movement and freedom to 
escape from aggression demonstrated by other animals in the enclosure. 
We do not see how the juxtaposition of ``freedom to escape from 
aggression'' with ``adequate freedom of movement'' makes ``adequate 
freedom of movement'' somehow less separate. ``Adequate freedom of 
movement'' means the freedom to move for any reason the bird chooses or 
needs to move.
    In addition, the commenter stated that the way ``program of 
veterinary care'' is situated in the first sentence of Sec.  3.153(b), 
the meaning could be construed as only requiring facilities to comply 
with space requirements in their own program of veterinary care. The 
commenter stated that the sentence must be broken into three sentences 
to clarify that it is ultimately up to the agency--and not a facility's 
veterinarian--to determine whether the enclosure space is adequate.
    We disagree that the sentence cited by the commenter could be 
construed to allow facilities to determine space requirements without 
veterinary involvement. Although we are amending Sec.  3.153(b) to no 
longer require that space requirements be documented in the program of 
veterinary care, we emphasize that facilities must develop space 
requirements in consultation with the attending veterinarian, and he or 
she may prescribe space requirements whenever deemed necessary.
    We received numerous comments regarding space requirements in 
enclosures as it pertained to the ability of the enclosures to allow 
for flight.\27\ Most persons commenting on this topic stated that 
flight is essential to bird health and well-being and noted that the 
proposed rule does not specifically require sufficient space to allow 
for flight.
---------------------------------------------------------------------------

    \27\ See ``9 CFR part 2, subpart E: Attending Veterinarian and 
Adequate Veterinary Care'' for comments pertaining to deflighting 
birds by wing trimming and surgical procedures.
---------------------------------------------------------------------------

    One commenter noted that the proposed rule requires space for 
``adequate freedom of movement,'' which could be reasonably construed 
to at least sometimes require that flying birds should fly and added 
APHIS should acknowledge that adequate freedom of movement may require 
giving some birds flying space. Another commenter stated that, while 
acknowledging that captive conditions are inherently constraining and 
necessarily involve compensating for behavioral inhibition, for most 
birds the need to fly is essential to engaging in their most basic 
capacities and behaviors.
    The ultimate objective of the proposed space standard is to ensure 
the health and well-being of every bird covered under the regulations. 
As many commenters have noted, there are thousands of species of birds 
with widely varying husbandry and care needs, including the need for 
space. However, the requirement for space to allow for adequate freedom 
of movement does not necessarily equate with flight. Some birds, such 
as penguins and kiwis, are flightless, while many other species may be 
able to fly but choose to do so infrequently. Wildlife centers often 
maintain raptors and other wild birds that have lost the ability to 
fly, and some pet rescues take in injured or aged birds that no longer 
fly. Fledglings of flighted species will be able to fly at some point, 
but that point varies greatly depending on the species. Each of these 
birds has its own unique spatial needs for maintaining health and well-
being. In short, species variability requires a performance standard 
which ensures every bird has space for adequate freedom of movement.
    Most commenters supporting a requirement that birds be able to fly 
in enclosures did not provide details on space size for species. A 
commenter, however, stated that flight must be possible for birds in 
all directions and must not be restricted to distances less than 1,000 
body lengths of the bird in question. Another commenter provided a list 
of suggested minimum space dimensions for enclosures to facilitate 
flight.
    Given the great variation in sizes of bird species, enforcing such 
a body length space standard and requiring flight space ``in all 
directions'' would constitute a major compliance challenge to 
facilities that would not necessarily correlate to the space required 
for the health and well-being for individual birds, flighted as well as 
flightless, as our proposed standard does.
    A commenter disagreed with our statement in the proposal that 
flight is not necessary to good health and humane treatment and cited 
research studies demonstrating that flight is critically important to 
their physiological and behavioral health and well-being. Other 
commenters stated that depriving birds of flight can decrease bone 
strength, cause muscle atrophy and physiologic changes to flight 
muscles, and contribute to atherosclerosis, obesity, lipomas, and 
physiologic stress. Several other commenters cited evidence from 
studies showing the benefits of flight for avian health and 
psychological well-being.
    We noted in the proposed rule that birds can be in good health and 
maintained humanely in accordance with the AWA without a flight 
requirement, and as noted above, some species of birds are flightless 
by nature or have lost the ability to fly. Nonetheless, as we also 
noted, the attending veterinarian may prescribe space for flight if he 
or she determines it is necessary for a bird's health and well-being.

[[Page 10694]]

    Another commenter stated that USDA offers no explanation of how 
flying birds can be humanely kept without the ability to fly. The 
commenter asked why the proposed rule focuses on posture while ignoring 
the need for space to engage in normal locomotion necessary to health 
and well-being.
    We disagree with the commenter that the proposed rule focuses on 
postural adjustments, as this is only one requirement included under 
other behaviors such as dust bathing that require ``adequate freedom of 
movement.''
    In support of a flight requirement for birds, a commenter cited 
previous APHIS guidance advising licensees maintaining captive flying 
and gliding mammals to allow them sufficient space for flying and 
gliding.
    Guidance we provided for flying and gliding mammals is based on the 
specific health and welfare needs of a small number of particular 
mammal species and is not necessarily or generally applicable to the 
adequate movement needs of bird species, which are greatly more 
variable.
    Finally, a commenter proposed that the space requirement standards 
be amended to state that the professional opinion of the attending 
veterinarian regarding space requirements be definitive, absent a 
disciplinary finding by a veterinary board.
    An attending veterinarian may prescribe space requirements as 
necessary to ensure the health and well-being of each bird. APHIS has 
no direct authority to regulate veterinary boards in the manner 
requested by the commenter.
    On the other hand, some commenters stated that allowing space for 
flight is cost-prohibitive and may be dangerous in some species. One 
such commenter stated that pheasants and quail can incur head damage if 
startled and given sufficient space to fly into the top of an 
enclosure.
    We noted in the proposal that one objective of the standards we 
proposed for birds, including standards for space in primary 
enclosures, is to provide a physical environment that ensures humane 
treatment of animals as required by the Act and affirmed by the 
attending veterinarian. In this final rule, the space requirements for 
such birds would be developed by the facility in consultation with the 
attending veterinarian to ensure that the space provided does not 
result in such injuries
    We also proposed exceptions to the space requirements for primary 
enclosures. We proposed in Sec.  3.153(b)(1) 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 must 
document the reason and recommended duration for the restriction and 
make such records available for review by an APHIS inspector.
    A commenter asked that we include ``as required by the research 
proposal approved by the Committee at research facilities'' as one of 
the instances in which the normal postural and social adjustments of a 
bird may be restricted under Sec.  3.153(b)(1).
    We do not consider it necessary to add this language to proposed 
Sec.  3.153(b), as under Sec.  2.36 of the regulations, the IACUC may 
approve such exceptions, provided that the IACUC documents these 
exceptions in the Annual Report.
Tethering
    We proposed in Sec.  3.153(b)(2) that a bird's normal postural and 
social adjustments may be restricted where the bird is tethered in 
accordance with professionally accepted standards. We provided 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.
    One commenter asked that all tethering be prohibited, including in 
retail pet stores.
    Retail outlets that meet the definition of retail pet store in 
Sec.  1.1 are exempted from licensing and therefore not subject to the 
regulations.
    A commenter stated that APHIS must prohibit tethering of birds that 
can easily sustain injury, including growing birds, owls, old world 
vultures, raptor species, and any bird that does not otherwise tolerate 
tethering. Another commenter stated that tethered birds may also 
develop or aggravate leg injuries from repeatedly hitting the end of 
the tether when startled or attempting to engage in natural behavior, 
including flight.
    The proposed space standard in Sec.  3.153(b)(1) prohibits any 
tethering that could cause any form of harm to the bird and requires 
that the bird is maintained on a perch appropriate for the species and 
age of the bird while tethered. Licensees must comply with the 
regulations when tethering birds for any reason.
    Several commenters expressed concern that tethering severely limits 
mobility of birds, restricts normal behaviors, and should not be used 
in place of an enclosure. Several other commenters stated that USDA 
provided no animal welfare rationale to justify depriving birds of 
their adequate freedom of movement and normal posture via tethering.
    We note that under the proposed space requirements in Sec.  
3.153(b)(2)(iv), tethering must allow the bird to have sufficient space 
to fully extend its wings without obstruction. In addition, most 
professionally accepted standards do not support replacing an enclosure 
with a tether, and do not allow tethered birds to be tethered 
unsupervised for a duration such that a bird's health and well-being 
are adversely affected. Accordingly, if the professionally accepted 
standard does not support replacing an enclosure with a tether, then 
tethering in that instance would not be allowed under the requirements 
we proposed.
    One commenter added that USDA fails to identify what organizations 
or guidelines are qualified to provide ``professionally accepted 
standards'' for tethering. Numerous other commenters stated that the 
standards should require time limits for tethering. One such commenter 
stated that the proposed regulations do not state whether tethering is 
acceptable only as a temporary means of primary containment or if it 
may be used permanently in place of free movement. The commenter added 
that while there may be circumstances in which tethering is an 
appropriate method of containment on a short-term basis, long-term 
tethering can never meet the welfare needs of any bird.
    While we are not designating a required time limit for tethering, 
we stress that in proposed Sec.  3.153(b)(2), birds must not be 
tethered unless it is appropriate for the species and will not cause 
harm to the birds. Several organizations, including the International 
Association of Avian Trainers and Educators and Association of Zoos and 
Aquariums, provide guidelines and professional standards for tethering 
birds. We do not regard tethering in itself as being detrimental to 
bird health and well-being, provided the provisions in this section are 
consistent with professionally accepted standards. Persons with 
questions about tethering and the regulation of birds can submit 
questions to [email protected].

[[Page 10695]]

    On the other hand, a commenter representing raptor owners stated 
that tethering is a critically important tool for the proper care and 
management of captive raptors, as it is a stress-free way to keep a 
bird comfortable and safe from injury. The commenter added that proper 
tethering does not restrict normal postural or social adjustment.
    The tethering requirements we have proposed are not inconsistent 
with the commenter's statements.
    For the requirement in Sec.  3.153(b)(2)(iii) to maintain birds 
``on perches appropriate for the species and age of the bird while 
tethered,'' a commenter recommended that a perch should include a 
person or an additional statement that the bird may also be 
``maintained on the person of the caretaker.''
    Caretakers are required to maintain birds on species- and age-
appropriate perches but a person is not considered to be a perch while 
holding the bird.
    We also proposed in Sec.  3.153(b)(3) that 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.
    A commenter asked APHIS to revise the standard to make it clear 
that there is no requirement to provide breeding structures to birds 
not allowed to breed. Another commenter stated that an area for 
reproducing is not part of the primary enclosure and often nest 
material is limited at certain periods to discourage nesting.
    We do not plan to revise the standard as it does not require that 
birds not allowed to breed have breeding structures provided. If 
persons choose to discourage their birds from nesting and breeding, the 
standards do not prohibit it, provided that the birds are otherwise 
maintained safely and humanely.
    We proposed in Sec.  3.153(b)(4) that 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 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, birds must be housed in 
enclosures that meet the space requirements of this section.
    A commenter asked what the phrase ``birds intended for breeding 
sale'' means.
    A comma was excluded from the proposal. The phrase was intended to 
read ``birds intended for breeding, sale . . .'' to indicate birds 
being transported for those purposes. We are making the correction in 
this final rule.
Primary Enclosures: Wading and Aquatic Birds--Sec.  3.153(c)
    We proposed that primary enclosures housing wading and aquatic 
birds must 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 also proposed that the pool or other aquatic area must have 
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. 
Additionally, we proposed that the 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. We stated that inadequate 
space may be indicated by evidence of malnutrition, poor condition, 
debility, stress, or abnormal behavior patterns.
    A commenter stated that to the sentence beginning ``Pools and other 
aquatic areas must be of sufficient surface area and depth to allow 
each bird to make normal postural and social adjustments . . .,'' a 
requirement should be added to consider the ecological needs of the 
species, such that adequate depth is provided to diving birds.
    This requirement is implicit in our proposed requirement that each 
bird be allowed to make ``normal postural and social adjustments.''
    A commenter noted the importance of bathing for many bird species 
and stated that we should explicitly require the provision of clean 
water in sufficient quantities and frequencies to promote normal, 
healthy bathing behaviors as appropriate for the species (not just 
wading and aquatic birds).
    Under Sec.  3.156, we require that potable water be provided in 
sufficient quantity to every bird housed at the facility or be offered 
to them as often as necessary to ensure their health and well-being. If 
bathing is necessary for the health and well-being of the bird species 
kept, this standard includes that requirement. If potable water is 
provided to birds elsewhere in the enclosure, water in pools for 
bathing is only required to not pose a harm to the birds.
Environment Enhancement To Promote Psychological Well-Being--Sec.  
3.154
    We noted in the proposal the importance of providing environmental 
enhancement requirements specifically for birds. Under these 
requirements, dealers, exhibitors, and research facilities would have 
to develop, document, and follow a species-appropriate plan for 
environment enhancement adequate to promote the psychological well-
being of their birds. The plan, which is 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 and conform with currently accepted 
professional standards.
    A commenter asked why birds are being held to the standard of non-
human primates for environmental enhancement, when dogs, cats, and 
other species are not. The commenter added that social interaction and 
other enrichment activities are covered elsewhere in the proposed 
standards and thus the proposed standards in Sec.  3.154 are not 
necessary.
    We reply that birds are highly intelligent animals and meeting 
their enrichment needs constitute basic avian husbandry. We included 
Sec.  3.154 specifically to address the unique enhancement needs of 
birds. It requires environment enhancement adequate to promote their 
psychological well-being. Husbandry and other standards we proposed do 
not specifically address this need. Finally, the commenter is incorrect 
about the proposed standards, in that the environmental enhancement 
standards for birds are different from those established for non-human 
primates.
    Another commenter suggested that an enrichment plan can be created 
by the primary caretaker and customized as needed, and advised that 
APHIS revise the proposed standard so that whoever is most qualified 
can create and adjust the plan as needed.
    We agree with the commenter that a caretaker or other knowledgeable 
person can create the environmental enhancement plan, subject to 
consultation with and approval by the attending veterinarian without it 
needing to be in his or her program of veterinary care. Accordingly, we 
are amending proposed Sec.  3.154 by removing the requirement that the 
plan be part of a program of veterinary care.

[[Page 10696]]

    We noted in the proposal that environmental enhancements 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.
    Under the standard we proposed, the plan for environment 
enhancement must 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, must 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.
    Several commenters disagreed with our approach to environmental 
enhancement as described in the proposal, stating that APHIS needs to 
clarify that basic provisions such as opportunities to perch and forage 
alone are insufficient to fulfill the environmental enhancement 
standards. One commenter, for example, stated that given the advanced 
cognitive abilities of many birds, APHIS should also include the 
requirement that any enrichment plan include opportunities for birds to 
exercise control of their environment and make choices. One such 
commenter recommended that Sec.  3.154(b) be amended to emphasize that 
a combination of novel and routinely rotated structural, object, and 
task enrichment specific to the species be provided, and that APHIS 
must offer structured guidance to ensure that the environmental 
enhancement standard is adequately implemented as proposed. Another 
commenter stated that regulated entities' enrichment program plans 
should include documentation to justify the plan, including novelty of 
enrichment, sensory stimulation, exemptions, and provisions for birds 
in persistent psychological distress. The same commenter added that 
USDA should require regulated entities to submit their plan to the 
agency annually for review, not just upon inspection. Additionally, the 
commenter stated that USDA should also develop guidance on particular 
needs of individual birds or classes of birds, including guidance on 
enhancement requirements for birds with special needs and solitary 
birds from social species.
    We acknowledge the concerns of the commenters regarding the need to 
provide adequate, species-specific environmental enhancement to birds. 
However, we are making no changes in response to the commenter's 
suggestions, as we believe development and execution of the plan as we 
have proposed will address environmental enhancement and enrichment 
needs specific to the birds being maintained, including challenging 
them cognitively and giving them opportunities to manipulate their 
environment consistent with professionally accepted standards. We 
welcome questions from licensees on enhancement practices for 
particular birds and compliance.
    Under Sec.  3.154(a) as proposed, the environment enhancement plan 
must include specific provisions to address the social needs of birds 
of species known to exist in social groups in nature. We proposed that 
specific provisions must be in accordance with currently accepted 
professional standards. Birds that are overly aggressive, debilitated, 
or in need of isolation due to a contagious disease must be excepted 
from social grouping requirements, and one or more birds suspected of 
contagious diseases must be isolated prior to and as directed by the 
attending veterinarian or as instructed in the program of veterinary 
care.
    We also proposed that birds must 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. Bird compatibility must be determined in accordance with 
generally accepted professional practices and observations by husbandry 
staff and the attending veterinarian during his or her regularly 
scheduled visits to the facility.
    Many commenters indicated that caretakers at facilities have 
experience with bird compatibility and are capable of grouping and 
housing birds so they are socially compatible.
    We agree with the commenters on this point and we have amended the 
proposed standard to no longer require actual observations of 
compatibility by the attending veterinarian during his or her regularly 
scheduled visits to the facility. Facilities may determine social 
grouping of birds in accordance with professionally accepted standards 
and consultation with the attending veterinarian as needed.
    In addition, we proposed that individually housed social species of 
birds must be able to see and hear birds of their own or compatible 
species unless determined otherwise by the attending veterinarian.
    A commenter stated that, when possible, individuals of social 
species should be housed together with one or more individuals in the 
same enclosure, rather than within visual and auditory range.
    The commenter's point is addressed in Sec.  3.160, which requires 
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.
    One commenter acknowledged that many bird species maintained in 
zoos and aquariums exist in social groups in nature. However, the 
commenter noted that reproducing this social structure may not always 
be possible in a captive setting due to the acquisition of birds from 
wildlife rehabilitators.
    We are aware that zoos and other facilities may at times acquire a 
bird from a wildlife rehabilitator and that a lone bird is insufficient 
to re-create a natural social grouping. In such instances, a provision 
in proposed Sec.  3.154(c)(4) provides for enhancement for individually 
housed social species of birds that are unable to see and hear birds of 
their own or compatible species.
    A commenter stated that social grouping may also be harmful to 
birds due to crowding and conflict, and another stated that some birds, 
though they live in social groups in the wild, will actually kill or 
become stressed when grouped.
    We acknowledge that birds in social groupings can exhibit 
aggression and have included provisions in the standards to minimize 
harm to birds. We require in Sec.  3.160 that socially dependent birds 
be housed in social groups, unless birds are determined to be 
incompatible. Under proposed Sec.  3.153(b), primary enclosures must be 
constructed and maintained so as to allow each bird to make normal 
postural and social adjustments with adequate freedom of movement and 
freedom to escape from aggression by other animals.
    In proposed Sec.  3.154(b), we stated that the plan must address 
species-specific environmental enrichment for birds and include 
enrichment materials or activities that provide the birds with the 
means to express noninjurious species-typical activities. We noted in 
the proposal that 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

[[Page 10697]]

methods; and providing interaction with the care giver or other 
familiar and knowledgeable person consistent with personnel safety 
precautions.
    A commenter agreed with the need for enrichment but asked APHIS to 
clarify that natural enrichment such as leaves and branches, varied 
diets, and social interaction is both sufficient and preferred over 
artificial enrichment objects such as toys. Another commenter stated 
that enrichment for breeding birds is different than for non-breeding 
birds, and that interacting with a mate and raising chicks is 
considered by many aviculturists as sufficient enrichment.
    We acknowledge that many species and individual birds may prefer 
natural enrichments, social interaction, and variation in diet to toys, 
and we believe our enrichment standards allow for that preference as 
well as for birds that use toys. We disagree with the commenter that 
the process of breeding and raising chicks in itself constitutes 
enrichment.
    A commenter also asked APHIS to explicitly require that at least a 
portion of feed is presented in a way that encourages natural species-
typical foraging behaviors. Another commenter stated that APHIS should 
incorporate into the final rule requirements that all birds who engage 
in foraging behaviors be given a daily time-consuming foraging 
opportunity.
    We note that in proposed Sec.  3.153 we require sufficient space so 
as to allow each bird to make normal postural and social adjustments, 
such as dust-bathing and foraging, and that proposed Sec.  3.154 offers 
``foraging or task-oriented feeding methods'' as one example of 
environmental enrichment. Should facilities wish to include a scheduled 
foraging opportunity as enrichment, they may do that.
    A commenter disagreed with the proposed standard, stating that 
environmental enhancement is clearly aimed towards mammals or parrots 
and that during mating season, swings, mirrors and other such items can 
cause injury or death to breeding birds and their offspring. Another 
commenter stated that some parrots who have not been exposed to a 
diversity of novelty may be neophobic and introducing novel objects can 
cause fear reactions.
    The program of environmental enhancement must be developed with the 
approval of the attending veterinarian. All birds benefit from 
enrichment in their environments, and its complexity is dependent on 
the species. Any enrichment items or activities that may adversely 
affect the health and well-being of the species in question will not be 
permitted. Further, APHIS will impose no requirements that may 
interfere with a species' natural behaviors when nesting and breeding.
    We noted in the proposed rule that businesses may use their 
expertise and ability to apply professional standards to determine the 
composition of the perches and other objects, their size and location, 
and other relevant considerations for avian welfare, so long as they 
meet the standard.
    A commenter expressed concern about allowing businesses to make 
such determinations, adding ``big box'' retail outlets have a history 
of harm to parrots and finches with inappropriate perching, inadequate 
veterinary care, and untrained employees.
    The ``big box'' retail outlets that the commenter referenced tend 
to sell birds to customers in face-to-face transactions, and thus are 
considered retail pet stores that are exempt from AWA regulation. 
Because the public can visually inspect the animals at the store to 
observe their standard of care, we have long considered this sufficient 
to ensure the health and well-being of the animals being sold. That 
being said, to the extent that the ``big box'' stores currently engage 
in virtual sales of birds or sales where the buyer, seller, and the 
bird are not all physically present so that the buyer can inspect the 
bird, they will be considered dealers under this rule and regulated as 
such. In both instances, we consider the commenter's concern to be 
addressed.
    We proposed in Sec.  3.154(c) that special considerations for 
certain birds must 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.
    We are amending ``infants and young juveniles'' in Sec.  
3.154(c)(1) by replacing these terms with ``nestling, chicks, or 
fledglings.'' We are making this change as these are the terms more 
frequently used by commenters in the aviculture community and in 
publications containing professionally accepted aviculture standards.
    A commenter disagreed with the inclusion of infant birds because 
they do not require special attention during the growing process with 
regards to environmental enrichment, noting that they are focused on 
growing and learning their environment.
    We disagree with the commenter, as chicks develop rapidly and 
require sensory enrichment for their well-being, although it may be 
different in form from adult bird enrichment.
    A commenter stated that considerations of social birds unable to 
see and hear other compatible birds may be contingent on whether 
another such bird is available to meet this requirement. The commenter 
suggested that we add the qualification to the requirement stating ``. 
. . unless a compatible species is not available, or the attending 
veterinarian determines that it would endanger their health, safety, or 
well-being.''
    We are making no change in response to the commenter's suggestion. 
Paragraph (c) of Sec.  3.154 requires that certain birds be provided 
special attention regarding enhancement of their environment, including 
``individually housed social species of birds that are unable to see 
and hear birds of their own or compatible species'' in paragraph 
(c)(4). In other words, when compatible species are not available, 
their absence must be offset by environmental enhancement.
    We also proposed restrictions on restraint devices in paragraph (d) 
of Sec.  3.154. Birds must not be permitted to be kept in restraint 
devices unless required for health reasons as determined by the 
attending veterinarian or approved by a research facility, and 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.
    A few commenters asked that tethering and restraint devices be 
further defined. Another commenter stated that it is unclear whether 
the tethering referenced in Sec.  3.153(b)(2) is considered to be a 
restraint device under Sec.  3.154(d), and requested that we clarify 
this point.
    The tethers and restraint devices referred to by the commenter are 
for distinct purposes, although both limit movement. The tether 
provision in proposed Sec.  3.153(b)(2) is intended to limit the space 
in which birds can move or run, while under Sec.  3.154(d), birds are 
not 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

[[Page 10698]]

research facilities. Any restraining actions must be for the shortest 
period possible.
    A commenter asked how the restrictions will relate to falconry, 
where jesses are used when handling birds.
    Jesses and other items on birds used for falconry are not covered 
under the AWA and excluded from regulation, although jesses on birds 
not used in falconry would be covered.
    In proposed Sec.  3.154(e)(1), we provided 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 must be recorded by the attending 
veterinarian for each exempted bird. Unless the exemption is based on a 
permanent condition, a review of the exemption by the attending 
veterinarian must occur every 30 days.
    One commenter stated that wild-caught birds are diverse in their 
requirements and may only be housed in facilities for a short time, and 
proposed that we use a flexible standard given the diverse needs of 
different bird species and research groups. Another commenter concerned 
about unintended habituation in a California condor breeding program 
asked us to include a provision stating that birds destined for release 
to the wild may be exempt from environmental enrichment activities that 
require interactions with staff, specifically that we define 
``permanent condition'' in Sec.  3.154(e) for exempting a bird from 
participation in enhancement activities to include pre-release 
candidates or birds destined for release into the wild.
    Proposed Sec.  3.154(e) provides 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. Human 
interaction is not required for enrichment of birds destined for 
release into the wild, and nesting materials or dietary options can be 
provided to the birds as enrichment without such interaction. 
Facilities using wild-caught birds in short-term housing may tailor 
their environment enhancement plan to these birds' needs, subject to 
approval by the attending veterinarian. We see no reason to include 
pre-release into the wild as a ``permanent condition,'' as pre-release 
is not a medical condition.
    For research facilities, we proposed in paragraph (e)(2) that an 
IACUC may exempt an individual bird from participation in some or all 
of the required environment enhancement plans for scientific reasons 
set forth in the research proposal. The basis of the exemption must be 
documented in the approved proposal and reviewed at appropriate 
intervals as determined by the IACUC, but not less than annually.
    A few commenters stated that the annual review requirement is 
inconsistent with a November 2021 final rulemaking,\28\ which amended 
the regulations so that the required annual review of research/teaching 
activities is now required no less than once every 3 years. The 
commenters requested that APHIS harmonize the proposed regulations with 
those of the National Institutes of Health/Office of Laboratory Animal 
Welfare (OLAW).
---------------------------------------------------------------------------

    \28\ AWA Research Facility Registration Updates, Reviews, and 
Reports (86 FR 66919-66926, Docket No. APHIS-2019-0001), November 
24, 2021.
---------------------------------------------------------------------------

    The commenter is referring to Sec.  2.31(d)(5), which requires the 
IACUC to conduct complete reviews of covered activities at appropriate 
intervals as determined by the IACUC, but not less than every 3 years. 
However, Sec.  2.36(a) requires that an Annual Report be submitted by 
research facilities on or before December 1 covering the previous year. 
Among the requirements of the Annual Report in Sec.  2.36(b), the 
facility is required to assure that it has followed professionally 
acceptable standards governing the care, treatment, and use of animals, 
and that exceptions to the standards and regulations be explained by 
the principal investigator and approved by the IACUC.
    In Sec.  3.154(e)(3), we proposed that records of any exemptions 
from participation in the environment enhancement plan must be 
maintained by the dealer, exhibitor, or research facility for at least 
1 year and made available to APHIS upon request.
    A commenter stated that the proposed language for maintaining 
records of exemptions ``in accordance with Sec.  2.80 of this 
subchapter'' is incorrect, as Sec.  2.80 makes no reference to such 
records. Instead, the commenter stated that paragraph (e)(3) should be 
amended to use language from current Sec.  3.81(e)(3): ``Records of any 
exemptions must be maintained by the dealer, exhibitor, or research 
facility and must be available to USDA officials or officials of any 
pertinent funding Federal agency upon request.''
    The commenter is correct. We intended records maintenance and 
availability for the proposed environment enhancement program to be 
similar procedural requirements to the current nonhuman primate 
environment enhancement program in subpart D. We have revised the 
regulatory text accordingly.

Animal Health and Husbandry Standards

Feeding--Sec.  3.155
    We proposed a general feeding standard that is flexible enough to 
ensure the health and well-being of all birds. Specifically, the diet 
provided 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, and be of sufficient quantity and nutritive 
value to maintain a healthy condition and weight of the bird and to 
meet its normal daily nutritional requirements.
    A commenter stated that the concept of ``free from contamination'' 
is overly broad and unclear if it would only apply to gross 
contamination or if there is an expectation that a laboratory analysis 
should be done on food for covert contamination.
    The proposed requirement states that the food must be ``wholesome, 
palatable to the birds, and free of contamination.'' Unless there is 
cause to suspect covert contamination that may injure the birds, the 
standard does not require that food be subject to laboratory analysis. 
This requirement is similar to those in other subparts regarding food 
for mammal species.
    We also proposed that birds must be fed at least once a day except 
as directed by the attending veterinarian.
    A commenter stated that raptors have highly specialized feeding 
habits that vary through the year, and which are closely attended to by 
falconers and other raptor owners. As a result, the commenter stated 
that veterinary oversight for this routine element of falconry and 
raptor husbandry is unnecessary and contrary to well-established 
management procedures. Similarly, a commenter noted that for many 
raptors, fast days are a part of the animals' natural history, and 
stated that fast days should not be eliminated by daily feeding.
    Feeding practices associated with falconry are not covered under 
the AWA and thus excluded from regulation.
    A commenter stated that imposing these proposed requirements would 
be detrimental to condors, as they only eat once a week. One commenter 
asked us to modify the requirement that birds must be fed at least once 
a day except as directed by the attending veterinarian by adding, ``or 
required by the research proposal approved by the Committee at research 
facilities.'' Another commenter noted that food may be made accessible

[[Page 10699]]

to birds through feeders to which they have free access and there may 
be no need to refill them at least once a day. Similarly, a commenter 
asked that APHIS amend this regulation to require that feeders must be 
checked once a day to ensure that food is available and wholesome but 
to eliminate the requirement that birds be fed daily. Another commenter 
asked how this standard will be enforced, asking whether access to food 
with daily checks to ensure adequate supply and cleanliness will meet 
this standard, or is it expected that food be replaced daily regardless 
of condition.
    We acknowledge that some birds do not eat daily or are on a 
restricted diet in accordance with professional standards or medical 
and research needs. Moreover, feeders to which birds have free access 
do not need to be refilled daily, although food quality and maintenance 
of feeding receptacles must conform with proposed Sec.  3.155(a) and 
(b). Accordingly, we are revising the daily feeding requirement in 
Sec.  3.155 to read, ``Birds must be fed at least once a day except as 
directed by the attending veterinarian, normal fasts, or other 
professionally accepted practices.''
    If birds are maintained in group housing, we proposed in Sec.  
3.155(a) to require measures appropriate for the species 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.
    We also proposed in Sec.  3.155(b) that food receptacles and 
feeding areas must be kept clean and sanitized in accordance with 
proposed Sec.  3.158, and that food and any food receptacles must be 
located so as to minimize any risk of contamination by excreta, 
precipitation, and pests. Used food receptacles must be cleaned and 
sanitized before they can be used to provide food to birds maintained 
in a separate enclosure. We also proposed that 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 and that food receptacles be made of a durable material 
that can be easily cleaned and sanitized or replaced when worn or 
soiled. Group-housed birds must have multiple food receptacles where 
needed to ensure that all birds have access to sufficient feed.
    A commenter asked that we consider removing the term 
``precipitation'' from the list of contaminants, as proposed Sec.  
3.155 already requires that food not be subject to undesirable wetting.
    We see the commenter's point but are retaining ``precipitation'' in 
the list to underscore the point that placing food in areas open to 
weather events is one way that ``undesirable wetting'' can occur.
Watering--Sec.  3.156
    We proposed in Sec.  3.156 that 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.
    To the proposed requirement that potable water be available to 
birds or offered as necessary to ensure their health and well-being, a 
commenter suggested that we add the qualification ``unless restriction 
is required by the research proposal approved by the Committee at 
research facilities.''
    We reply that this qualification is already covered in the 
regulations. In addition to proposed Sec.  3.156 allowing for 
restriction by the attending veterinarian, paragraph (f)(2)(ii) of 
Sec.  2.38 provides that ``the short-term withholding of food or water 
from animals, when specified in an IACUC-approved activity that 
includes a description of monitoring procedures, is allowed by these 
regulations.''
    We also proposed that water receptacles must be kept clean and 
sanitized in accordance with Sec.  3.158 as often as necessary to keep 
them 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. Finally, group-housed birds must have multiple 
water receptacles where needed to ensure that all birds have access to 
sufficient water. We received no comments that specifically addressed 
water receptacles and are adding these proposed requirements to the 
regulations.
Water Quality--Sec.  3.157
    We proposed minimum water quality standards for the good health and 
well-being of the animals. If the primary enclosure or other areas in 
which birds may enter contain pools or other aquatic areas, such areas 
must not be detrimental to the health of the birds within. Particulate 
animal and food waste, trash, or debris that enters such pools or other 
aquatic areas must 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 must 
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. We also proposed that pools or other aquatic areas with standing 
water, such as some ponds, must 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.
    A commenter stated that in the context of outdoor pools, this 
section does not align with proposed Sec.  3.156 and asked if the 
``required water quality'' of this section fulfills the ``potable'' 
water requirement.
    The commenter is correct with respect to the water quality 
requirement of this section being equivalent to potable water in Sec.  
3.156. Some birds do not live in exhibits with water features, and so 
obtain their potable water in accordance with Sec.  3.156. We note that 
birds in exhibits with water features may choose to obtain their water 
intake from ponds and other features. Under paragraph (a), the water in 
pools and water features must not be detrimental to bird health if 
birds bathe in it or choose to drink it instead of other water provided 
to them.
    Another commenter stated that the statement to ``maintain the 
required water quality'' is a vague requirement, and that additional 
guidance is needed.
    We disagree and note that, to maintain the required water quality, 
the proposed standard provides guidance in the form of removing 
particulate animal and food waste, trash, or debris that enters the 
pool or other aquatic area. Also, to maintain water quality for pools 
or other aquatic areas without drainage systems, the guidance is that 
water be aerated and have an incoming flow of fresh water or that these 
requirements be performed in accordance with current professionally 
accepted standards appropriate for the species. These standards, widely 
available, are an additional form of guidance for meeting the standard.
    When the water is chemically treated, we proposed that the 
chemicals must 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

[[Page 10700]]

the birds are not considered to be contaminants. Should birds appear to 
be harmed by water quality, corrective action must be taken 
immediately.
    Finally, we proposed the standard that pools or other aquatic areas 
must be salinized for birds that require salinized water for their good 
health and well-being in accordance with current professionally 
accepted standards.
    A commenter noted that in paragraph (c), the proposal refers to 
``professionally accepted standards'' to aid in deciding whether 
salinization is required for their health and well-being but does not 
indicate what these standards are. The commenter suggested removing the 
reference to ``professionally accepted standards'' and indicating 
instead that a species successfully housed in a freshwater environment 
does not have to be provided a saltwater environment simply because in 
the wild they live in that environment.
    We agree that some birds living in the wild in a saltwater 
environment can be housed in captivity in a freshwater environment with 
no negative effects on their health and well-being. As long as birds 
that need appropriately salinized water for their health and well-being 
are provided with it, the standard is met. However, we are retaining 
the reference to ``professionally accepted standards'' because such 
resources can help facilities determine which species of birds can move 
between water environments of different salinities while retaining 
their health and well-being.
Cleaning, Sanitization, Housekeeping, and Pest Control
Cleaning--Sec.  3.158(a)
    We proposed a standard requiring 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 must be taken to protect birds from being harmed, wetted 
involuntarily, or distressed in the process. Standing water, except in 
pools or other aquatic areas, must be removed from the primary 
enclosure.
    We also proposed in Sec.  3.158(a)(2) that scheduled cleaning must 
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 must resume when cleaning would no longer 
disrupt such behaviors. We proposed to require that a schedule of 
cleaning be documented 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. If there is no delay in cleaning due to breeding or nesting 
activities, the cleaning schedule does not need to be documented.
    Some commenters asked if, in addition to cleaning schedules, daily 
observation of birds could be modified to reduce disruption of breed 
and nesting activity.
    In subpart D of the AWA regulations, Sec.  2.40(b)(3) requires that 
dealers and exhibitors perform ``daily observation of all animals to 
assess their health and well-being.'' We note that some captive 
animals, such as hibernating bears, denning wolves, and prairie dogs in 
zoos may deliberately occupy spaces that are not easily observed. 
Similarly, in certain enclosures containing large numbers of animals, 
it is not always possible to directly observe every animal every day. 
When these are normal, species-specific behaviors known to facility 
staff, they actively monitor the animal's environment and ensure its 
protection, check that food and water are available, and conduct other 
husbandry and care activities and assessments as needed during times 
the animal is not visible within its den, nest, or other space. 
Facilities knowledgeable of professional standards are aware that 
disrupting animals in such states to observe them can actually be 
detrimental to their health and well-being. We agree with this means of 
assessing the health and well-being of animals engaged in such natural 
behaviors, provided the facility has the approval of the attending 
veterinarian and that he or she is able to confirm that the animal is 
being cared for properly. APHIS will impose no requirements that 
interfere with a species' natural behavior when it comes to nesting and 
breeding.
    A commenter asked what criteria we will use to determine the degree 
of ``excessive accumulation'' of food waste for cleaning or replacing 
natural elements in the enclosure, noting that birds are naturally 
messy.
    The standard in Sec.  3.158(a) requires that accumulation of feces 
and food waste be prevented from becoming excessive. If the waste is 
excessive, it means that it is adversely affecting the health and well-
being of the bird or activities such as nesting.
Sanitization--Sec.  3.158(b)
    We proposed a standard requiring that 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. As with cleaning, we stipulated that 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 must resume when it no longer disrupts such behaviors. In 
such situations, 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.
    A commenter opposed to the sanitation requirement stated that, 
because their birds breed year-round, it is impossible to sanitize 
surfaces that the birds come in contact with while they are in their 
breeding cages or flight pens, and that sanitizing cages, flight pens, 
and feeding and watering devices is unnecessary anyway. The commenter 
added that birds would have to be removed from the cages or flight pens 
in order to perform this requirement, resulting in months of lost 
production. The commenter asked that the sanitization requirement be 
flexible enough to address the individual needs of each facility. 
Similarly, another commenter asked that inspectors work with facilities 
to minimize these types of impacts during inspections.
    We will not impose any requirements that interfere with a species' 
natural behavior when it comes to nesting and breeding, and APHIS 
inspectors work closely with facilities to minimize or eliminate 
impacts on nesting and breeding activities. However, never sanitizing 
the facilities is not an option, as this could jeopardize the health 
and well-being of the birds within. Accordingly, proposed Sec.  
3.158(b) provides 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 commenter asked us to specify whether applications of soap and 
hot water would meet the sanitization requirement.
    If the application of soap and hot water meets the definition of 
sanitize in Sec.  1.1, which means ``to make physically clean and to 
remove and destroy, to the

[[Page 10701]]

maximum degree that is practical, agents injurious to health,'' it 
meets the standard in Sec.  3.158(b).
    We proposed that the hard surfaces of primary enclosures and food 
and water areas and equipment must 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.
    A commenter asked us to consider changing ``housing facility'' to 
``primary enclosure,'' adding that ``housing facility'' includes any 
structure with environmental controls that houses or is intended to 
house animals. The commenter opined that in a facility with multiple 
rooms, the entry of a new bird into one area of the housing facility 
would not necessitate sanitation of all primary enclosures and food and 
water areas in the facility.
    We are making no changes in response to the commenter's request, as 
there may be food and water areas or other common areas shared by birds 
that would require sanitation. We would not require sanitization of 
cages, rooms, or areas in a facility that are not accessed by the new 
bird. The standard also considers evidence of infectious disease among 
birds at a facility, which may require broader sanitization measures.
    We also required in paragraph (b)(3) 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 sufficient 
to prevent wasted food accumulation, odors, disease, pests, insects, 
and vermin infestation.
    A commenter asked us to clarify the frequency that these materials 
would need to be removed and replaced.
    The frequency for removal and replacement of contaminated material 
will vary according to the characteristics of each facility. If the 
contaminated material accumulates such that it creates health or 
welfare risks for birds and facility staff, it must be removed at a 
frequency to prevent such an adverse situation.
    For materials such as sand, gravel, and earth that cannot be 
sanitized through conventional means, a commenter asked that other 
means of sanitization be permitted such as removal of excessive 
accumulations of wastes or maintaining an effective natural composting 
and decomposition system.
    We note in Sec.  3.158(b)(3) that other such means of sanitization 
of such materials described by the commenter are options for meeting 
the standard.
    A commenter stated that APHIS should eliminate redundancy in the 
regulation by condensing Sec.  3.158(a) and (b) into one single 
regulation. The commenter explained that the use of the term 
``cleaning'' and its apparent definition in Sec.  3.158(a) is 
redundant, because the sanitization requirement in Sec.  3.158(b) by 
definition already includes cleaning.
    We are making no changes in response to the commenter's request, as 
``cleaning'' and ``sanitization'' are not redundant terms. While there 
may be overlap in the two processes, cleaning primarily removes dirt, 
waste, and other visible debris from an area, while sanitizing reduces 
the number of pathogens on clean surfaces to acceptable levels.
Housekeeping for Premises--Sec.  3.158(c)
    We noted in the proposed rule that good housekeeping practices are 
essential in minimizing pest risks that can occur in animal areas, and 
proposed the standard that 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 the regulations, and to reduce or eliminate areas where rodents and 
other vertebrate and invertebrate animals harmful to birds can live and 
breed. Premises also must be kept free of accumulations of trash, junk, 
waste products, and discarded matter. In addition, we proposed that 
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.
Pest Control--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, so we proposed 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. We also 
proposed to prohibit the use of insecticides, chemical agents, or other 
methods of controlling pests that may be harmful to the birds in 
primary enclosures and in other areas or on surfaces with which the 
birds may come in contact.
    A commenter asked that we clarify what is being defined as a 
``pest'' and what control measures are required.
    A pest is any animal that adversely affects the health and well-
being of covered animals. Depending on the pest, a facility could use 
any professionally accepted method available to control the pest, 
provided it is effective and not harmful to the birds.
    One commenter stated that there is no insecticide that is not 
harmful to birds and suggested that safe containment units to catch 
pests not accessible to birds be used instead.
    An insecticide may be used with birds provided it is safe for the 
birds, effective, and applied in accordance with its on-label use. If a 
facility chooses to use a containment unit for catching pests that will 
not harm birds and that safely and effectively meets the standard for 
pest control, the facility may do so.
Employees--Sec.  3.159
    We proposed that 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 the 
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. The standards we 
proposed for birds must be conducted under the supervision of a 
caretaker who has appropriate experience in the husbandry and care of 
birds that are being managed in a given setting. We received no 
substantive comments on this section and are adding it to the 
regulations.
Compatibility and Separation--Sec.  3.160
    We proposed a standard requiring 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 must be determined in accordance with generally 
accepted professional practices, and by actual observation, to

[[Page 10702]]

ensure that the birds are, in fact, compatible. These requirements are 
necessary to allow birds to peacefully coexist in primary enclosures 
and to protect their physical health and well-being.
    A commenter stated that the final rule should require variations on 
housing compatible species together with an order of preference that 
mandates that social species be housed in an enclosure with compatible 
individuals. The commenter added that if individuals from social 
species are not housed with compatible individuals, a written 
justification for alternative housing should be developed, approved, 
and signed by the attending veterinarian along with a plan to implement 
social housing.
    We agree insofar that only the attending veterinarian can make such 
exceptions to the standard. The plan must include provisions to address 
the social needs of social species and must address individually housed 
social species of birds that are unable to see and hear birds of their 
own or compatible species. However, the only exception that needs to be 
documented is when the attending veterinarian exempts a bird from 
participation in the environment enhancement plan because of its health 
or condition, or in consideration of its well-being.
    A commenter stated that it is unrealistic to assume a veterinarian 
has the best knowledge of interaction in the flocks and that the 
determination of how to house individuals based on social interaction 
should be on the breeder, who is around the flocks daily. The commenter 
added that, under Sec.  3.160, the veterinarian should only be 
responsible if birds need to be removed from the flock for medical 
reasons.
    Compatibility of birds must be determined in accordance with 
generally accepted professional practices and actual observations. We 
note that facilities can group birds socially based on their knowledge 
of the birds and professionally accepted practices, although the 
attending veterinarian may exempt an individual bird because of its 
health or condition, or in consideration of its well-being, or specific 
management needs. While facilities know their birds well, only a 
veterinarian has the medical expertise needed to evaluate the birds in 
order to make such exceptions.
Transportation Standards
    In the transportation standards we proposed, we acknowledged the 
fact that many birds have highly specialized transportation needs. 
While most birds require space to make normal postural adjustments 
during transport, other birds may injure themselves if their movements 
are not restricted. Therefore, we intended these standards to account 
for these animals' unique needs and provide them with equivalent 
protection and care as other covered animals.
    Many foreign air carriers are members of the International Air 
Transport Association (IATA) and already comply with most of the 
physical requirements contained in the proposed regulations. The IATA 
regulations generally align with the intent of the AWA in ensuring the 
humane and safe transportation of animals but diverge from the 
regulations and standards in certain areas, such as recordkeeping 
requirements. Where such divergences exist, we proposed that the AWA 
regulations and standards be followed.
    A few commenters recommended following the IATA Live Animal 
Regulations and Container Requirements for both air and ground 
transports of avian species.
    For recordkeeping and any other procedural divergences from the 
IATA, we will use the transportation standards proposed here. While the 
AWA regulations align with IATA standards in many ways, we have 
developed the transportation standards specifically to meet the needs 
of compliance with the Act.
Consignments to Carriers and Intermediate Handlers--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 proposed to 
establish several conditions that must be met before carriers and 
intermediate handlers can accept a bird for transport. Specifically, we 
provided 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, 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.
    One commenter expressed broad concerns about how the proposed 
transportation regulations will affect the ability to obtain birds by 
impacting carriers and intermediate handlers, including time when 
animals can be transported after capture, requirements for primary 
enclosures, and regular observation and other requirements during 
transportation. Another commenter stated that several airlines no 
longer transport birds and the proposed transportation standards may 
cause the remaining carriers to no longer accept birds, which will make 
it very difficult to ship birds.
    We acknowledge the commenters' concerns but are making no changes 
in response. The objective of these transportation standards is to 
ensure the health and well-being of birds during transport. If carriers 
and transporters have compliance questions regarding enclosures and 
required responsibilities during transport, they can direct questions 
to APHIS-Animal Care.
    Another commenter requested that because seasonal migration often 
dictates when research on wild birds can occur, APHIS should allow 
newly regulated carriers and intermediate handlers at least 1 year to 
analyze and adjust their operations in accordance with the final rule.
    We agree, and noted above that we are setting a period of 
implementation 365 days after publication for new licensees and 
registrants before the rule is applicable, and a 180-day period for 
current licensees and registrants.
    We proposed that carriers and intermediate handlers of birds must 
not accept a live bird for transport in commerce unless they are 
provided with the name, address, and telephone number of the consignee. 
Additionally, in proposed Sec.  3.161(c), carriers and intermediate 
handlers must not accept a live weaned 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.
    A commenter stated that a health certificate should be a 
requirement for birds being transported.
    The commenter has not provided a reason as to why such a 
certificate would be necessary to the health and well-being of birds. 
We note that most species of mammals covered under the AWA regulations 
do not require a health certificate for transport.
    A commenter proposed that any carrier may accept for transport a 
bird if the consignor furnishes to the carrier a signed certificate 
stating that the primary enclosure complies to the standards, unless 
the enclosure is obviously defective and cannot reasonably be expected 
to contain the bird without causing it suffering or

[[Page 10703]]

injury. The commenter added that a copy of such certificate must 
accompany the shipment certifying that the enclosure complies with USDA 
standards for primary enclosures.
    Under Sec.  3.161(d), carriers and intermediate handlers must not 
accept a live bird for transport unless the primary enclosure of the 
birds meets the requirements of Sec.  3.162, which lists structural and 
safety considerations. In addition, carriers and intermediate handlers 
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. It is the carrier's responsibility to determine the 
requirements are met. If the carrier chooses to require a consignor to 
attest to the compliance of an enclosure, the carrier may do so for 
protection from liability or other reasons but APHIS does not require 
such a certificate or consider it to have any official status.
    In Sec.  3.161(f), we proposed that 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 document retained by the carrier or intermediate 
handler and on a copy of the shipping document accompanying the bird 
shipment.
    A commenter asked us to require that whenever a live bird shipment 
is delayed in transit, where those delays will cause the shipment to 
arrive more than 12 hours later than its originally scheduled arrival, 
the carrier must contact the consignor or the consignee to notify them 
of the delay of the live shipment and to determine the necessity or 
methods to supply fresh food, water, or moisture providing foods.
    We agree with the commenter and are amending Sec.  3.161(f) to 
require that if delays will cause the shipment to arrive more than 12 
hours later than its originally scheduled arrival, the carrier must 
contact the consignor or the consignee to notify them of the delay of 
the live shipment and to determine the necessity or methods to supply 
fresh food, water, or moisture providing foods.
    Under Sec.  3.161(g), we proposed that 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.
    One commenter stated that the proposed rule provides no 
restrictions on transport of unweaned birds who are physically too 
vulnerable and fragile to travel, and asked APHIS to prohibit the 
transport of unweaned birds unless medically necessary. Another 
commenter stated that unweaned birds should only be transported in 
emergencies. Citing the susceptibility of unweaned birds to stresses 
and temperature changes during transport, other commenters similarly 
disagreed with transporting unweaned birds unless transport is 
essential to safeguard the animal's welfare as determined by the 
attending veterinarian.
    We agree with the commenter that transport of unweaned birds 
subjects them to many stressful and potential risks that would benefit 
from additional oversight. The attending veterinarian makes the 
determination as to whether the unweaned birds can be transported 
safely. Accordingly, we are amending proposed Sec.  3.161(g) to 
indicate that carriers and intermediate handlers must not accept 
unweaned birds for transport unless instructions for conditions of 
transport to ensure the health and well-being of the birds are 
specified and written by the attending veterinarian, and signed within 
10 days of shipment. These instructions are intended to ensure that 
temperature, handling, and other conditions of transport are not 
detrimental to the health and well-being of the birds in accordance 
with the Act. The instructions would no longer need to be in the 
program of veterinary care but would accompany the shipment.
    A commenter disagreed with prohibiting the shipment of unweaned 
raptors on domestic flights, noting that raptors in transit do not 
typically take food or water, even if capable. The commenter stated 
that the prohibition on unweaned raptors places an unreasonable 
expectation on transport agents and APHIS should exempt raptors in this 
section. Another commenter stated that to support efforts to protect 
endangered bird species, USDA must allow the movement of unweaned 
endangered birds or even fertile eggs between licensed facilities for 
artificial incubation, hand-rearing, and other biological care.
    We note that in amended Sec.  3.161(g), unweaned birds may be 
transported via commercial carrier, provided that carriers and 
intermediate handlers must not accept unweaned birds for transport 
unless transport instructions are specified and written by the 
attending veterinarian, and signed within 10 days of shipment. The 
transport instructions can include specific food and water requirements 
as needed.
    Under the proposed standard, certification for shipment of birds 
must be securely attached to the outside of the primary enclosure in a 
manner that makes it easy to notice and read, and must include the 
following information for each live bird: The consignor's name, 
address, email, and telephone number; the number of birds; the species 
or common names of the birds; the time and date the bird(s) 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.
    We also proposed that carriers and intermediate handlers must not 
accept a live bird for transport in commerce in a primary enclosure 
unless the enclosure meets the requirements of Sec.  3.162. A carrier 
or intermediate handler is 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 must not 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. Section 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.
Primary Enclosures Used To Transport Live Birds
    Under proposed Sec.  3.162, no person subject to the AWA 
regulations may transport or deliver for transport in commerce a bird 
unless the following requirements are met.
Primary Enclosures: Construction--Sec.  3.162(a)
    We proposed that birds in transport must be contained in a primary 
enclosure such as a compartment, transport cage, carton, or crate, 
except as provided in paragraph (e) of Sec.  3.162. Primary enclosures 
used to transport birds must 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;

[[Page 10704]]

     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 cm) 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 Sec.  3.162(b);
     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; and
     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.
    These standards consider the need for birds to be supported and 
protected from injury during transportation.
    A commenter expressed concern that while padding may be needed with 
some birds, the material used for padding the sides of the crate could 
restrict the ventilation as required under proposed Sec.  3.162(b). 
Another commenter cited the danger of entanglement within the padding, 
as well as the cost of modifying crates for larger businesses.
    Under proposed Sec.  3.162(a)(7), any material used in or on the 
enclosure must not be harmful to the bird's health or well-being. This 
includes padding within the crate.
    A commenter expressed concern with the proposed requirements for 
transport enclosures. While acknowledging that it is unrealistic for 
birds to be housed in enclosures that meet primary enclosure standards 
while in transit, the commenter noted that the proposed rule, as 
written, allows for birds to be maintained in transport cages in 
perpetuity and thus denied the essential space and environment required 
of primary enclosures. The commenter asked that APHIS eliminate or 
provide time limits on the proposed rule's exemption from primary 
enclosure standards for birds that are traveling for exhibition or 
other reasons.
    ``In active transit'' means transporting a bird in a primary 
enclosure that complies with the standards in proposed Sec.  3.153 to 
another location where it will be housed. Birds should not be 
transported or housed in an enclosure meeting the requirements for 
transportation in perpetuity, and after finishing active transit must 
be housed again in a suitable primary enclosure as provided for under 
proposed Sec.  3.153.
Primary Enclosures: Ventilation--Sec.  3.162(b)
    It is critically important to ensure that birds are provided 
adequate fresh air for their respiratory needs. We proposed that, 
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 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 wall. We additionally proposed 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.
    A commenter stated that this standard, as written, would not allow 
the use of standard rigid plastic air kennels for transporting birds, 
which are commonly used successfully for many bird species. The 
commenter requested that we provide flexibility to this standard to 
allow for such kennels. Another commenter stated that the standard is 
extremely specific and does not support IATA-approved kennels that are 
routinely used in the zoo and aquariums for transporting avian species.
    We agree with the commenters and are amending proposed Sec.  
3.162(b) to remove the part of the standard for ventilation 
specifications on the lower half of the enclosure. This will allow the 
use of the containers specified by the commenter and will support IATA-
approved kennels meeting our standard.
    Another commenter asked whether cardboard shipping boxes used for 
poultry by the U.S. Postal Service, and sometimes used for shipping 
game birds or pigeons, would be covered under the standards.
    A cardboard shipping box of the use and type described by the 
commenter is in compliance under the standard. We note, however, that 
the birds mentioned by the commenter are not covered under the AWA, 
meaning they are excluded from regulation.
    We proposed that, 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 cm) 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 
also proposed that any visually obscuring mesh used to provide security 
for the bird in the enclosure must not interfere with proper 
ventilation.
    We also proposed that 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. We received no comments 
on this proposed requirement and are adding it to the regulations.
Primary Enclosures: Cleaning--Sec.  3.162(c)
    We proposed in Sec.  3.162(c) that primary enclosures 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

[[Page 10705]]

of an auction sale. We received no substantive comments on this 
proposed requirement and are adding it to the regulations.
Primary Enclosures: Compatibility--Sec.  3.162(d)
    We proposed that 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.
    A commenter stated that there are instances where a social bird is 
singly being shipped to a new flock or where it is preferable to keep 
the crate dark for reasons related to stress and visual access to other 
birds could be problematic.
    The instances described by the commenter do not conflict with the 
proposed requirement, provided that the shipping is compliant with all 
other standards, and the health and well-being of the birds being 
shipped is not adversely affected.
Primary Enclosures: Space and Placement--Sec.  3.162(e)
    We proposed in Sec.  3.162(e) that primary enclosures used to 
transport live birds must be large enough to ensure that each bird 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. We received no substantive comments 
specifically on this provision.
Primary Enclosures: Accompanying Documents and Records--Sec.  3.162(f)
    Documents accompanying the shipment of birds must 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.
    A commenter noted that some crates have additional compartments, 
especially for international shipments, that could store all 
documentation for the shipment. The commenter added that paperwork is 
sometimes pulled off the exterior of the crate and lost during 
transport. The commenter asked if a drawer outside of where the animal 
is contained meets the definition of outside of primary enclosure.
    A drawer on or near the enclosure containing the animal in which 
documentation would be obscured or not readily visible does not meet 
the standard. This is because the primary purpose of having paperwork 
attached directly to the enclosure is to ensure essential information 
is easily noticed and read, such as when feed and water were offered, 
in accordance with the food and water requirements in proposed Sec.  
3.164(e).
Primary Conveyances (Motor Vehicle, Rail, Air, and Marine)--Sec.  3.163
    We proposed that 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 minimizes the entry of exhaust from the primary conveyance 
during transportation. The animal cargo space must also have a supply 
of air that is sufficient for the normal breathing of all the animals 
being transported in it, and 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. During transportation, the climatic conditions in the 
animal cargo area must be maintained in accordance with the 
requirements of Sec.  3.168.
    We also proposed in Sec.  3.163 that primary enclosures must be 
positioned in the primary conveyance to allow the birds to be quickly 
and easily removed from the conveyance in an emergency. We also 
proposed that the interior of the bird cargo space be kept clean. 
Finally, we provided that live birds 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. We received 
no substantive comments specifically addressing these proposed 
provisions and are adding them to the regulations.
Food and Water in Transport--Sec.  3.164
    We proposed in Sec.  3.164(a) the standard that all weaned birds 
must be offered food and potable water within 4 hours before being 
transported in commerce.
    A commenter disagreed that raptors in transport should be offered 
food and water every 4 hours, stating that raptors naturally do not eat 
daily and receive about 80% of the water they need from food. Another 
commenter stated that there should be exceptions to the requirement for 
the offering of food and water 4 hours prior to delivery, as species 
such as raptors, pelicans, and penguins go extended periods without 
food, and harm can occur by feeding too close to a shipment due to 
potential regurgitation/aspiration issues. A commenter stated that 
veterinarians should be allowed to waive the 4-hour pre-transport 
feeding/watering rule prior to transport when doing so is in the bests 
interests of the birds being transported.
    We agree with these commenters and others who noted that some birds 
have special feeding requirements that preclude feeding within 4 hours 
of transport. Accordingly, we are amending Sec.  3.164(a) to require 
that all weaned birds be offered food and potable water within 4 hours 
before being transported in commerce, unless the attending veterinarian 
approves a delay or unless a delay is in accordance with professionally 
accepted standards. We reiterate that falconry is not covered under the 
AWA and therefore excluded from regulation.
    Another commenter stated that some chick species still absorbing 
their yolk sac may appear weaned, but providing the chick with food 
prior to absorption can result in severe medical implications and 
death. The commenter asked how APHIS will address this concern.
    We amended Sec.  3.161(g) to indicate that carriers and 
intermediate handlers must not accept unweaned birds for transport 
unless transport instructions are specified and written by the 
attending veterinarian, and signed within 10 days of shipment. The 
commenter could request such instructions from the attending 
veterinarian.
    We also proposed to require in Sec.  3.164(c) that 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. We proposed in Sec.  
3.164(c) that 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. Also, a sufficient 
quantity of food and water or other source of hydration must 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.

[[Page 10706]]

    A commenter stated that for most birds, every 24 hours is far too 
infrequent for feeding and suggested that they be fed every 12 hours 
when stopping for hydration.
    We reply that under proposed Sec.  3.164(c) birds that require 
feeding more or less frequently must be fed accordingly.
    We proposed in Sec.  3.164(d) that a sufficient quantity of food 
and water or other source of hydration must accompany the bird to 
provide food and water during period of transport, except as directed 
by veterinary treatment and other professionally accepted standards. We 
received no comments specific to this proposed requirement and are 
adding it to the regulations.
    We proposed in Sec.  3.164(e) that 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. We proposed 
to 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 must be attached in accordance with Sec.  3.162(f) and in 
a manner that makes them easy to notice and read. Carriers and 
intermediate handlers must be able to ensure that food and water is 
provided according to regulatory schedules while ensuring that birds 
cannot escape.
Care in Transit--Sec.  3.165
    During surface transportation of birds, we proposed 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 
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.
    Similarly, when birds are transported by air, we will require 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 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 also determine whether any such 
live birds are in physical distress and arrange for any needed 
veterinary care as soon as possible.
    Some commenters stated that frequent checking on avian species 
during transport may cause undue stress. One such commenter suggested 
that for such sensitive species or individuals, an alternative such as 
a letter from the husbandry team and veterinarian could provide 
instruction for appropriate check frequency in lieu of the 4-hour 
requirement.
    We acknowledge commenter concerns on this topic but are making no 
changes to the requirement. Birds in transit by ground or air must be 
observed as frequently as circumstances may allow, but not less than 
once every 4 hours if accessible, to ensure that the birds are being 
maintained in accordance with all requirements and applicable welfare 
standards. We require a similar transit check for certain other mammal 
species in subpart F, Sec.  3.140(a) and subpart D, Sec.  3.90(a) and 
(b).
    A commenter recommended that APHIS reevaluate the requirement to 
observe the birds frequently during shipping and transport, as this may 
cause distress to the bird and hardship for the shipping company. 
Further, this and other commenters observed that delivery or air cargo 
handlers may not know the warning signs indicating whether a particular 
bird is in distress or requires assistance.
    Visual observation of the bird in the enclosure does not require 
disturbing or handling the bird. We note that carriers are accustomed 
to this practice, as we currently require a similar transit check for 
certain other mammal species. While cargo handlers would not be 
expected to have the expertise of an experienced caretaker or 
veterinarian, they should be able to recognize signs of obvious 
physical distress in birds such as panting.
    Finally, we proposed to 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.
    A commenter asked us to clarify what is considered an injury under 
this prohibition, noting that some wild birds that acquire an injury 
are deemed non-releasable but suitable for education and exhibition. 
The commenter asked whether an injured bird could be transported for 
exhibit if their injury is permanent and as healed as it will be, but 
they remain restricted in their movement.
    We define an injured bird as one from which the animal is still 
actively healing or recovering.
Terminal Facilities: Placement--Sec.  3.166(a)
    We proposed to 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 
helps to ensure that the live birds are accessible for observation and 
that the following standards concerning cleaning, sanitization, and 
pest control in terminal facilities are met.
    A commenter asked us to clarify the proposed prohibition on 
commingling live birds with other animals during shipment, particularly 
with respect to the risk APHIS is trying to avoid. The commenter added 
that absent a justification for this requirement, it may simply become 
another disincentive for commercial carriers to transport zoological 
animals.
    Animals or inanimate cargo must not be commingled with live birds 
in the same shipment at the terminal facility in order to minimize 
risks to the health and well-being of the birds, such as contact with 
other animals or stacked cargo hindering ventilation. A similar 
prohibition exists for commingling in Sec.  3.91 for nonhuman primates.
    Similarly, another commenter asked us to define ``commingle.''
    We define ``commingle'' to mean placing different species of 
animals, or mixing birds with inanimate cargo, in the same confined 
space such that their welfare may be adversely affected.
    Another commenter noted that this standard is more restrictive than 
the corresponding regulation for mammals in Sec.  3.141, which states 
that carriers and intermediate handlers shall not commingle live animal 
shipments with inanimate cargo. The commenter expressed concern that 
the more restrictive language could reduce

[[Page 10707]]

commercial carriers' willingness to ship birds.
    The proposed standards for birds necessarily include considerations 
of health and well-being that differ in some respects from those 
developed for mammals. Determination of requirements is based primarily 
on the welfare needs of birds in accordance with the AWA and not on 
business choices.
Terminal Facilities: Cleaning, Sanitization, and Pest Control--Sec.  
3.166(b)
    We proposed to require that all animal holding areas of terminal 
facilities 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. We received no comments specifically addressing this paragraph 
and are adding it to the regulations.
Terminal Facilities: Ventilation--Sec.  3.166(c)
    We proposed that 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. We received no comments specifically on this 
provision and are adding it to the regulations.
Terminal Facilities: Temperature--Sec.  3.166(d)
    We proposed that the climatic and environmental conditions in 
animal holding areas must be maintained in accordance with the 
performance standard in Sec.  3.168 governing climatic and 
environmental conditions.
    A commenter proposed that we add the requirement that transporting 
devices must be covered to provide protection for live birds when the 
outdoor air temperature falls below 50 [deg]F and such live birds shall 
not be subjected to surrounding air temperatures which fall below 32 
[deg]F for a period of more than 45 minutes, unless such birds are 
accompanied by a certificate of acclimation to lower temperatures.
    We are making no changes in response to the commenter's request, as 
considerable variability exists in the temperature ranges of each 
species. Some penguin species, for example, require temperature ranges 
at or below 32 [deg]F. The performance standards for climatic and 
environmental conditions in proposed Sec.  3.168 are intended to 
provide flexibility to ensure that the transportation of all live birds 
is done in a manner that does not cause overheating, excessive cooling, 
or adverse environmental conditions that could cause discomfort or 
stress.
Handling--Sec.  3.167
    We proposed 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 proposed that climatic 
and environmental conditions must be maintained in accordance with the 
requirements in Sec.  3.168.
    We also proposed to require that any person handling a primary 
enclosure containing a live bird uses care and avoids causing physical 
harm or distress to the bird, and that the primary enclosure containing 
a live bird must not be allowed to be tossed, dropped, or tilted, or 
stacked in a manner which may reasonably be expected to result in its 
falling. We received no substantive comments specifically on these 
provisions and are adding them to the regulations.
Climatic and Environmental Conditions During Transportation--Sec.  
3.168
    Finally, we proposed in Sec.  3.168 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 
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. Considerations may 
include, but are not limited to:
     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;
     Appropriate care must be taken to ensure that live birds 
are not subjected to prolonged drafts detrimental to their health or 
well-being;
     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, 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 must be opened and, if 
necessary, equipment must be used to control the condition of the air 
within compartments containing live birds.
    We also provided examples of factors to consider when meeting these 
requirements. Specifically, we will provide 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 must be 
considered when such information is available.
    A commenter proposed that auxiliary ventilation, such as fans or 
air conditioning, be used for any holding area containing live birds 
when the air temperature within such animal holding area is 85 [deg]F 
or higher, and that the air temperature around any live bird in any 
holding area must not be allowed to fall below 32 [deg]F nor be allowed 
to exceed 95 [deg]F at any time. Moreover, the commenter asked that we 
require that no live bird be subjected to surrounding air temperatures 
which exceed 85 [deg]F for more than 4 hours at any time. The same 
commenter also proposed that to determine compliance, the air 
temperature around any live bird shall be measured and read outside the 
primary enclosure which contains such bird at a distance not to exceed 
0.91 meters (3 feet) from any one of the external walls of the primary 
enclosure and at a level approximately halfway between the top and 
bottom of the enclosure.
    The proposed regulations for environmental and climatic conditions 
during transport are intended to be performance-based. Accordingly, 
welfare implications of temperatures that may adversely affect birds 
are already addressed in the proposed language. As noted in previous 
responses, birds may prefer different ambient temperatures.
    Finally, for birds that are not able to maintain a constant body 
temperature at ambient temperatures, we proposed to require their 
transportation in a brooder or other temperature-regulating unit that

[[Page 10708]]

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 received no comments on this proposed 
requirement and are adding it to the regulations.
    We proposed to 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 must be securely affixed to the 
outside of the primary enclosure used for transporting the bird, and 
must be attached in accordance with Sec.  3.162(f) in a manner that 
makes them easily noticed and read. We received no comments on these 
requirements and are adding them to the regulations.
Guidance for Newly Regulated Entities
    We noted in the proposed rule that APHIS would provide guidance to 
new and current licensees and registrants through documents, guides, 
and training to help them achieve compliance with the new regulations 
for birds. In the proposed rule, we invited 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.
    One commenter asked that APHIS establish an email address to which 
the regulated community can submit questions for prompt agency 
response, and to publish answers to frequently asked questions.
    Persons with questions about the regulation of birds can submit 
questions to [email protected]. We also intend to develop guidance by 
publishing and responding to frequently asked questions.
    Commenters also suggested that we conduct webinars explaining the 
new standards and how to implement them. A commenter requested that we 
consider providing online workshops for those who will be affected by 
these regulations, and another requested that we make training 
materials available so that falconry organizations can educate their 
members on the changes they may face.
    We acknowledge the value of providing such resources to help newly 
licensed persons come into compliance with the standards and intend to 
develop both web-based and paper-based training resources to reach as 
many licensees as possible. We also note that practices associated with 
falconry are not covered under the AWA and therefore excluded from 
coverage.
    A few commenters also requested that it would be helpful for APHIS 
and USFWS to issue guidance identifying areas in which each Agency's 
requirements intersect with the other and summarizing each agency's 
requirements accordingly. A commenter also requested that we conduct 
joint, live webinars with APHIS and OLAW to discuss the intersection 
between existing regulations included in The Guide for the Care and Use 
of Laboratory Animals and the proposed rule. The same commenter also 
asked for guidance on how these intersecting regulations apply to birds 
that are captured for research, teaching, or testing and then released, 
as well as to birds that are captured and then used for terminal 
studies.
    The commenters have provided useful suggestions for new guidance, 
particularly as these regulations intersect with regulations and 
policies of other Federal agencies. We intend to develop guidance on 
these topics as we receive and evaluate them.
    A commenter proposed that we add, for the sale of birds, an 
educational certification requirement to ensure the buyer knows how to 
adequately care for a bird.
    We are making no changes in response to the commenter's request, as 
we do not have the authority to impose such a requirement on pet owners 
and other buyers who will not be conducting any activities covered 
under the AWA.
Legal Issues
    A commenter stated that requiring current facilities to comply with 
the proposed standards is unconstitutional pursuant to Bowen v. 
Georgetown Univ. Hosp. because such standards cannot be retroactively 
applied. The commenter stated that APHIS must grandfather the 
structures of all facilities preexisting the enactment of these 
regulations.
    This final rule does not have retroactive effect, and we have 
established an implementation period after it is effective before we 
will enforce it. The case is not germane.
    A commenter stated that a jurisdictional conflict exists because 
APHIS has failed to acknowledge that Congress granted regulatory 
authority of migratory birds through the MBTA and the Bald and Golden 
Eagle Protection Act to the USFWS and that authority has not been 
removed by Congress or a Federal court regardless of the 2002 amendment 
to the AWA.
    Agencies may have overlapping jurisdiction over an entity or 
subject area.
Economic Issues
    Estimates of the number of persons affected by this rule and costs 
of compliance are included in the final economic analysis accompanying 
this rule, along with comments and responses we received on the 
analysis prepared for the proposed rule.
Miscellaneous
    A commenter asked whether our estimated number of respondents under 
the Paperwork Reduction Act referred to respondents to the proposed 
rule or the estimate of licensees.
    The estimated number of respondents refers to the number of 
licensees and registrants affected by the rule.
    A commenter stated that APHIS needs to consider eliminating the 
term ``husbandry'' from the regulations and replace it with 
``guardianship,'' as the former carries sexist, supremacist 
connotations.
    We are making no changes in response to the commenter, as 
``husbandry'' is an established term used widely to connote the 
management, care, and breeding of animals.
    Therefore, for the reasons given in the proposed rule and in this 
document, we are adopting the proposed rule as a final rule, with the 
changes discussed in this document.

Executive Orders 12866 and 13563 and Regulatory Flexibility Act

    This final 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

[[Page 10709]]

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 a final 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 on the Regulations.gov website (see footnote 3 in this 
document for a link to Regulations.gov) or by contacting the person 
listed under FOR FURTHER INFORMATION CONTACT.
    We are establishing new regulations and standards and amending 
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 will 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 
will be improved animal welfare because certain birds will be brought 
under the protection of the AWA. The rule will help ensure the humane 
handling and care of birds and help ensure that such birds are 
monitored for their health and humane treatment.
    The final rule will affect certain U.S. facilities that handle or 
maintain birds not bred for use in research. This includes entities 
that sell birds as pets at the wholesale level or at retail if not sold 
in face-to-face transactions, or transport birds in commerce, or use 
birds for exhibition, unless otherwise exempt. In addition, facilities 
affected will include research facilities that use wild-caught birds, 
as well as carriers and intermediate handlers of birds.\29\
---------------------------------------------------------------------------

    \29\ 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 final 
rule. Facilities using birds bred for use in research would not be 
subject to this rule.
---------------------------------------------------------------------------

    We note that under this rule, several licensing exemptions apply to 
some persons possessing and using birds. Most small bird breeders that 
actually sell birds are likely considered retail pet stores and are 
thus exempt from licensing under this rule. A retail pet store is any 
place of business or residence at which the seller, buyer, and the pet 
animal available for sale (including pet birds) are all physically 
present so that the buyer may personally observe the animal prior to 
purchasing and/or taking custody of that animal. In addition, the 
current regulations provide an exemption for de minimis sized entities 
that are not otherwise required to obtain a license. This final rule 
establishes a new de minimis exemption specific to birds, to exempt 
from the licensing requirements any person who sells 200 or fewer pet 
birds of 250 grams or less annually, and/or sells 8 or fewer pet birds 
of more than 250 grams annually, determined by average adult weight of 
the species, which were born and raised on his or her premises, for 
pets or exhibition, and is not otherwise required to obtain a license.
    Exemptions are also provided for 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; persons practicing 
falconry and raptors used in falconry, unless they are engaged in 
activities outside of falconry that will be covered under the AWA; any 
person keeping four or fewer raptors for exhibition who is not 
otherwise required to obtain a license; and any person who buys animals 
solely for his or her own use or enjoyment and who does not sell or 
exhibit animals. Under these regulations, these exemptions to licensing 
will apply to bird breeders as well as bird exhibitors. Those 
considered exempt will not be required to obtain a license under this 
rule.
    Newly regulated entities will 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 rule. Licensing costs will be incurred by all 
new licensees. Other costs will depend on the manner and extent to 
which entities are not currently complying with the basic standards 
under the AWA. Some of these costs will be one-time costs in the first 
year, such as providing adequate shelter; others may be recurring 
costs, such as providing adequate veterinary care.
    A great deal of uncertainty surrounds the number of facilities that 
will be affected by this rule. Uncertainty also surrounds the number of 
those facilities that will need to make structural or operational 
changes, as well as the extent of such changes. For purposes of this 
final regulatory analysis, we estimate that the number of newly 
regulated entities is likely between 5,975 to 7,913. This includes 
1,625 to 3,563 newly licensed breeders and distributors and 4,000 newly 
licensed exhibitors, and as many as 350 new registrants--250 newly 
regulated research facilities and 100 newly regulated carriers and 
intermediate handlers. These estimates are based on information 
gathered from a variety of sources, including industry experts, 
internal records on existing regulated entities, other U.S. government 
agencies, industry group surveys and other data, online registries, and 
information from public comments on the proposed rule. More information 
about the development of the estimates is contained in the body of the 
Regulatory Impact Analysis.
    For new licensees, total new licensing costs could be between 
$225,000 and $303,000 averaged annually. We have also estimated that 
the total annual cost of the recordkeeping and other information 
collection requirements to be about $5.7 million. The new annual costs 
could total between $5.9 million and $6 million.
    In addition, one-time costs could be incurred. If all newly 
regulated licensees and registrants must develop new contingency plans, 
the total associated one-time cost for new contingency planning could 
be from about $370,000 to $1.66 million. If all newly regulated dealers 
and research facilities must develop a new written program of 
veterinary care (PVC), the total associated one-time cost for new PVC 
development could be from $1.25 million to $1.66 million. Therefore, 
all one-time new costs for new licensees could range from $1.62 million 
to $3.32 million in total across all new licensees. Table A presents 
those annual and one-time costs likely to be incurred by newly 
regulated facilities.

  Table A--Potential Compliance Costs for New Licensees Associated With
                         the Rule, 2021 Dollars
------------------------------------------------------------------------
                                                     Potential total for
          Activity              Certain potential    all newly regulated
                                      costs               entities
------------------------------------------------------------------------
Licensing...................  $120/3-year license.  $225,000 to $303,000/
                                                     year (averaged).
Recordkeeping and Other       20 hours annually;    $5.7 million/year.
 Information Collection \1\.   $790/respondent.
Total Potential New Annual    $830 annually.......  $5.9-$6 million/
 Costs.                                              year.

[[Page 10710]]

 
Contingency Planning \1\....  1 to 2 hours          $370,000 to $1.66
                               preparation, and 1    million.
                               hour training; $62
                               to $210-/entity.
Program of Veterinary Care    $210 per facility,    $1.25 million to
 \1\.                          new; $70 per          $1.66 million.
                               facility for an
                               update.
Total Potential New One-Time  $132-$420 one time    $1.62 to $3.32
 Costs.                        \2\.                  million one time.
------------------------------------------------------------------------
\1\ These are only new costs where these activities are not already
  occurring. Therefore, these costs could be overestimated. Totals may
  not sum due to rounding.
\2\ These estimates are based on the facility drawing up their own
  program of veterinary care and then having this document approved by
  the attending veterinarian.

    To the extent that facilities are already keeping records, have 
already done contingency planning, and have already developed a program 
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.
    In addition to those requirements, newly regulated entities must 
meet regulatory standards for bird identification, and performance 
standards for facilities and operations, health and husbandry, and 
transportation. However, as acknowledged by a wide spectrum of 
commenters in listening sessions, commenters on the proposed rule, and 
commenters on previous APHIS actions, bird dealers and exhibitors are 
often complying with professionally accepted standards to protect avian 
health and prevent discomfort and thus already maintain their 
facilities well above the minimum standards of this rule. The 
provisions of this rule are performance-based, rather than having 
specific engineering standards. We do acknowledge that some commenters 
interpreted all of the costs presented in the analysis accompanying the 
proposed rule to be new costs applicable to all regulated entities, 
regardless of whether that entity was already in compliance with the 
requirements. However, only those newly regulated entities that are 
considerably noncompliant will need to make significant structural and/
or other operational changes in order to comply with the standards in 
this rule.
    Neither the number of entities that will need to make changes nor 
the extent of those changes is known. Therefore, the overall cost of 
structural and operational changes that will be incurred due to this 
rule is also unknown. We discuss illustrative and non-prescriptive 
examples of costs that could be incurred by some newly regulated 
noncompliant facilities. While not prescriptive, Table B presents 
potential compliance costs illustrative of those that could be incurred 
by some newly regulated noncompliant entities.

              Table B--Areas of Potential Compliance Costs
                [Structural or operational modification]
------------------------------------------------------------------------
           Activity                       Some potential costs
------------------------------------------------------------------------
New bird identification......  None Needed: $0.
                               OR Primary enclosure label/record <$0.02/
                                bird in labor and materials.
                               OR Microchip $4-$17/each; Microchip
                                reader $66-$413/facility. Labor for
                                banding or microchipping $28-$56.
                               OR Leg or wing band $0.03-$0.55/each;
                                Labor for banding or microchipping $28-
                                $56.
Additional veterinary care,    Not Needed: $0.
 as needed.
                               OR $40-$344/bird.
Facility Repairs.............  None Needed: $0.
                               OR $56-$112/repair.
Access to Water..............  Not Needed: $0.
                               OR For facility with 20 birds; $722 for
                                plumbed water.
                               OR $99-$330 for bottles.
Access to Electrical Power...  Not Needed: $0.
                               OR $440-$2,200/generator.
Temperature & Humidity.......  Not Needed: $0.
                               OR Brood box thermometer $7-$165/each;
                                Space heating $28-$220.
Ventilation improvements.....  None Needed: $0.
                               OR Hardware cloth $22-$55; Attic fan $55-
                                $330 plus installation; HEPA filter $110-
                                $220.
Shelter improvements.........  None Needed: $0.
                               OR Nest box $56-$112.
Primary enclosure              None Needed: $0.
 improvements.
                               OR Commercial enclosures $110, to $1,100/
                                each; Repair or upgrade of existing
                                enclosure $256-$387.
Environment enhancement......  Not Needed: $0.
                               OR $11-$22/enclosure.
Cleaning, sanitation, and      Not Needed: $0.
 pest control.
                               OR Storage container/shed $165-$1,100;
                                Label maker $22.
New labor (includes other      Not Needed: $0.
 listed activities).
                               OR 1-10 hours/week; $1,453-$14,527/year.
New training.................  Not Needed: $0.
                               OR $45-$75/employee.
Food storage improvements....  None Needed: $0.
                               OR Containers $11-$110; Commercial
                                freezer $275-$1,650.
New primary enclosures during  None Needed: $0.
 transport.

[[Page 10711]]

 
                               OR Pet crates approved for air travel $66-
                                $385.
New food, water, and health    Not Needed: $0.
 monitoring during transit.    OR Brooder $165-$660.
------------------------------------------------------------------------
Note: Illustrative example costs that could be incurred by some newly
  regulated noncompliant facilities.

    The majority of businesses potentially affected by this final rule 
are likely to be small entities. As explained, the wide range in 
potential cost is mainly derived from the uncertainty surrounding the 
total number of breeders that will need to become licensed as a result 
of this rule and the number of those newly regulated entities that will 
then need to make structural or operational changes, as well as from 
the specific structural or operational changes chosen to remedy 
instances of noncompliance.

Executive Order 12372

    This program/activity is listed in the Catalog of Federal Domestic 
Assistance under No. 10.025 and is subject to Executive Order 12372, 
which requires intergovernmental consultation with State and local 
officials. (See 2 CFR chapter IV.)

Executive Order 12988

    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. It is not intended to have retroactive effect. 
The Act does not provide administrative procedures which must be 
exhausted prior to a judicial challenge to the provisions of this rule.

Executive Order 13175

    This final rule has been reviewed in accordance with the 
requirements of Executive Order 13175, ``Consultation and Coordination 
with Indian Tribal Governments.'' Executive Order 13175 requires 
Federal agencies to consult and coordinate with Tribes on a government-
to-government basis on policies that have Tribal implications, 
including regulations, legislative comments or proposed legislation, 
and other policy statements or actions that have substantial direct 
effects on one or more Indian Tribes, on the relationship between the 
Federal Government and Indian Tribes or on the distribution of power 
and responsibilities between the Federal Government and Indian Tribes.
    In 2020, the U.S. Court of Appeals for the D.C. Circuit ruled that 
APHIS must schedule virtual listening sessions to gather comments on 
establishing standards for birds. APHIS subsequently consulted with 
Tribal nations on November 4, 2021, and no questions or comments were 
raised at that time. In the proposed rulemaking, APHIS determined that 
this rule may have substantial direct effects on one or more Tribes and 
affirmed its intention to fully comply with Executive Order 13175. 
During the comment period, APHIS received no requests for consultation 
or comment from Tribal nations. Should a Tribe request consultation, 
APHIS will collaborate with the Office of Tribal Relations to ensure 
meaningful consultation occurs.

Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
the Office of Information and Regulatory Affairs designated this rule 
as not a major rule, as defined by 5 U.S.C. 804(2).

Paperwork Reduction Act

    In accordance with Section 3507(d) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.), some of the reporting and 
recordkeeping requirements included in the proposed rule and this final 
rule were previously approved under Office of Management and Budget 
(OMB) control number 0579-0036, Animal Welfare. The remaining reporting 
and recordkeeping requirements that were solely associated with the 
proposed rule and this final rule were submitted to OMB as a new 
information collection and were assigned OMB comment-filed number 0579-
0486. After approval, this information collection will be merged into 
0579-0036 in the future.
    New information collection requirements created by the regulations 
of this final rule include bird identification records, environmental 
enhancement plan records, cleaning and sanitation records, consignment 
documents, and certifications for shipment of birds. Estimates 
reflected in 0579-0486 include additional respondents, responses, and 
burden estimates across all activities affected by this rule. As 
described above, APHIS received several public comments on the proposed 
rule concerning recordkeeping burden, but the estimates were unchanged. 
The remaining information collection procedures and forms are also 
unchanged, except estimates for numbers of respondents for 22 
activities were increased to capture a new segment of the business 
community now affected by the rule change. APHIS added 1,159 
respondents across the 22 activities for a new total of 7,427 estimated 
respondents, which in turn added 14,165 additional estimated responses 
(164,850 total) and 19,579 hours of estimated burden (147,877 total). 
Estimated hours per response remained unchanged.

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. Specific details about forms for reportable activities 
can be found in the information collection request supporting 
statement.
    APHIS uses DocuSign and eFile as a master, cross-program IT system 
for providing a standard approach to collect, record, analyze, 
maintain, and report certification, accreditation, registration, 
permitting, and other licensing activities and processes. This system 
is designed to comply with the Government Paperwork Elimination Act 
(GPEA) and e-Authentication, and will be used by the Animal Care 
Program office to conduct inspections and serve as a central point for 
information sharing whereby eFile business processes, standard 
operational procedures, and sharing data internally. The respondent 
will be able to input the necessary information directly into the 
system. APHIS anticipates that this will save time and cost both for 
the regulated community and for the Animal Care program.
    For forms not available via DocuSign and eFile, APHIS is working 
towards making them available for download from Agency websites. APHIS 
is striving to ensure these forms are in fillable PDF format for 
simplified completion and printing or electronic storage. These forms 
may be submitted via regular mail or courier services (such as FedEx, 
UPS, etc.), fax, or email to APHIS at the respondents' preference. The 
documents may require a physical signature of the

[[Page 10712]]

respondent, or printing if accompanying transported animals. The use of 
electronic submissions (fax and email) affords a decrease in 
notification time, record of submission, and reduction of paperwork, 
costs, and mailing activities. Respondents are free to maintain 
required records as best suited for their organization.
    For assistance with E-Government Act compliance related to this 
final rule, please contact Mr. Joseph Moxey, APHIS' Paperwork Reduction 
Act Coordinator, at (301) 851-2483, or the Animal Care contact listed 
above 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 are amending 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. In the definition of Animal, by adding a sentence before the last 
sentence;
0
b. By adding in alphabetical order definitions for Bird and Bred for 
use in research;
0
c. By revising the definitions of Carrier, Exhibitor, Farm animal, 
Intermediate handler, and Pet animal;
0
d. By adding in alphabetical order a definition for Poultry; and
0
e. By revising the definitions of Retail pet store and Weaned.
    The additions and revisions read as follows:


Sec.  1.1   Definitions.

* * * * *
    Animal * * * This term also excludes falconry. * * *
* * * * *
    Bird means any member of the class Aves, excluding eggs, but 
including birds once the hatching process commences.
    Bred for use in research means an animal that is bred in captivity 
and used 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, falconry, 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 skin, 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 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.
* * * * *

[[Page 10713]]

    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.
* * * * *

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)(iii), by removing the semicolon at the end of 
the paragraph and adding a period in its place, and adding two 
sentences after the newly added period;
0
b. In paragraph (a)(3)(vi), by adding ``, feathers, skin,'' after the 
word ``food'';
0
c. By redesignating paragraph (a)(3)(viii) as paragraph (a)(3)(ix) and 
adding a new paragraph (a)(3)(viii);
0
d. 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 adding two sentences after the last sentence; and
0
e. By revising the OMB citation at the end of the section.
    The additions and revision read as follows:


Sec.  2.1   Requirements and application.

    (a) * * *
    (3) * * *
    (iii) * * * Also exempt from licensing is any person who sells 200 
or fewer pet birds 250 grams or less, and/or sells 8 or fewer pet birds 
more than 250 grams, determined by average adult weight of the species, 
which were born and raised on his or her premises, for pets or 
exhibition, and is not otherwise required to obtain a license. This 
exemption does not extend to any person residing in a household that 
collectively sells more than 200 pet birds 250 grams or less, and/or 
sells more than 8 pet birds more than 250 grams, regardless of 
ownership;
* * * * *
    (viii) Any person who maintains a total of four or fewer raptors 
for exhibition, holds a valid permit from the U.S. Fish and Wildlife 
Service, and is not otherwise required to obtain a license. This 
exemption does not extend to any person acting in concert with others 
where they collectively maintain a total of more than four raptors for 
exhibition, regardless of possession and/or ownership;
* * * * *
    (b) * * *
    (2) * * *
    (ii) * * * Notwithstanding these provisions, a licensee in 
possession of birds on March 23, 2023, 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.
* * * * *
(Approved by the Office of Management and Budget under control 
numbers 0579-0036, 0579-0470, and 0579-0486)

0
5. Section 2.2 is amended by revising the OMB citation at the end of 
the section to read as follows:


Sec.  2.2   Acknowledgement of regulations and standards.

* * * * *
(Approved by the Office of Management and Budget under control 
numbers 0579-0036, 0579-0470, and 0579-0486)

0
6. Section 2.3 is amended by revising the OMB citation at the end of 
the section to read as follows:


Sec.  2.3   Demonstration of compliance with standards and regulations.

* * * * *
(Approved by the Office of Management and Budget under control 
numbers 0579-0036 and 0579-0486)

0
7. Section 2.5 is amended by adding an OMB citation at the end of the 
section to read as follows:


Sec.  2.5   Duration of license and termination of license.

* * * * *
(Approved by the Office of Management and Budget under control 
numbers 0579-0036 and 0579-0486)

0
8. Section 2.11 is amended by adding an OMB citation at the end of the 
section to read as follows:


Sec.  2.11   Denial of license application.

* * * * *
(Approved by the Office of Management and Budget under control 
numbers 0579-0036 and 0579-0486)

0
9. Section 2.25 is amended by adding an OMB citation at the end of the 
section to read as follows:


Sec.  2.25   Requirements and procedures.

* * * * *
(Approved by the Office of Management and Budget under control 
numbers 0579-0036 and 0579-0486)

0
10. Section 2.26 is amended by adding an OMB citation at the end of the 
section to read as follows:


Sec.  2.26   Acknowledgment of regulations and standards.

* * * * *
(Approved by the Office of Management and Budget under control 
numbers 0579-0036 and 0579-0486)

0
11. Section 2.30 is amended by adding an OMB citation at the end of the 
section to read as follows:


Sec.  2.30   Registration.

* * * * *
(Approved by the Office of Management and Budget under control 
numbers 0579-0036 and 0579-0486)

0
12. Section 2.31 is amended as follows:
0
a. In paragraph (d)(1)(ix):
0
i. 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
ii. In the fourth sentence, by adding the words ``and birds'' after the 
word ``rodents''; and
0
b. By adding an OMB citation at the end of the section.
    The addition reads as follows:


Sec.  2.31   Institutional Animal Care and Use Committee (IACUC).

* * * * *
(Approved by the Office of Management and Budget under control 
numbers 0579-0036 and 0579-0486)

0
13. Section 2.33 is amended by adding an OMB citation at the end of the 
section to read as follows:


Sec.  2.33   Attending veterinarian and adequate veterinary care.

* * * * *
(Approved by the Office of Management and Budget under control 
numbers 0579-0036 and 0579-0486)

0
14. Section 2.35 is amended by revising the OMB citation at the end of 
the section to read as follows:


Sec.  2.35   Recordkeeping requirements.

* * * * *
(Approved by the Office of Management and Budget under control 
numbers 0579-0036 and 0579-0486)

0
15. Section 2.36 is amended by adding an OMB citation at the end of the 
section to read as follows:


Sec.  2.36   Annual report.

* * * * *
(Approved by the Office of Management and Budget under control 
numbers 0579-0036 and 0579-0486)

0
16. Section 2.38 is amended by revising the OMB citation at the end of 
the section to read as follows:


Sec.  2.38   Miscellaneous.

* * * * *
(Approved by the Office of Management and Budget under control 
numbers 0579-0036, 0579-0479, and 0579-0486)

[[Page 10714]]


0
17. Section 2.40 is amended by adding an OMB citation at the end of the 
section to read as follows:


Sec.  2.40   Attending veterinarian and adequate veterinary care 
(dealers and exhibitors).

* * * * *
(Approved by the Office of Management and Budget under control 
numbers 0579-0036 and 0579-0486)

0
18. Section 2.50 is amended as follows:
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; and
0
c. By adding an OMB citation at the end of the section.
    The additions read 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.
* * * * *
(Approved by the Office of Management and Budget under control 
numbers 0579-0036 and 0579-0486)

0
19. Section 2.75 is amended by revising the last sentence in paragraph 
(b)(1) introductory text and adding an OMB citation at the end of the 
section 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, to the extent that any identification or counting of 
offspring can be carried out without unduly disturbing nesting or 
rearing activities.
* * * * *
(Approved by the Office of Management and Budget under control 
numbers 0579-0036 and 0579-0486)

0
20. Section 2.76 is amended by revising paragraph (a)(7) and adding an 
OMB citation at the end of the section 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
* * * * *
(Approved by the Office of Management and Budget under control 
numbers 0579-0036 and 0579-0486)

0
21. Section 2.77 is amended by adding an OMB citation at the end of the 
section to read as follows:


Sec.  2.77   Records: Carriers and intermediate handlers.

* * * * *
(Approved by the Office of Management and Budget under control 
numbers 0579-0036 and 0579-0486)

0
22. Section 2.78 is amended by adding an OMB citation at the end of the 
section to read as follows:


Sec.  2.78   Health certification and identification.

* * * * *
(Approved by the Office of Management and Budget under control 
numbers 0579-0036 and 0579-0486)

0
23. Section 2.79 is amended by adding an OMB citation at the end of the 
section to read as follows:


Sec.  2.79   C.O.D. shipments.

* * * * *
(Approved by the Office of Management and Budget under control 
numbers 0579-0036 and 0579-0486)

0
24. Section 2.80 is amended by adding an OMB citation at the end of the 
section to read as follows:


Sec.  2.80   Records, disposition.

* * * * *
(Approved by the Office of Management and Budget under control 
numbers 0579-0036 and 0579-0486)

0
25. Section 2.125 is amended by adding an OMB citation at the end of 
the section to read as follows:


Sec.  2.125   Information as to business; furnishing of same by 
dealers, exhibitors, operators of auction sales, intermediate handlers, 
and carriers.

* * * * *
(Approved by the Office of Management and Budget under control 
numbers 0579-0036 and 0579-0486)

0
26. Section 2.126 is amended by revising the OMB citation at the end of 
the section to read as follows:


Sec.  2.126   Access and inspection of records and property; submission 
of itineraries.

* * * * *
(Approved by the Office of Management and Budget under control 
numbers 0579-0036 and 0579-0486)

PART 3--STANDARDS

0
27. 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
28. 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
29. 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

Facilities and Operating Standards

Sec.
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.

[[Page 10715]]

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 
that may negatively affect the welfare of the birds within. 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 
electrical power adequate for heating, cooling, ventilation, and 
lighting, if necessary, or 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 water for cleaning and for carrying out other husbandry 
requirements in accordance with the regulations in this subpart.
    (e) Storage. Supplies of food, including food supplements, bedding, 
and substrate must be stored in a manner that protects the supplies 
from deterioration, spoilage (harmful microbial growth), 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 in a manner that prevents 
deterioration of its nutritive value. 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 able to contain trash securely to 
minimize odors and be inaccessible to animals and pests.
    (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, pipes, or other methods so 
that the 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.
    (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, and to minimize 
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.

[[Page 10716]]

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 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. Both part-time and full-time attending veterinarians at a 
facility must consult with the facility to ensure that the space in all 
enclosures housing birds is adequate and allows 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

[[Page 10717]]

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 must be approved by the attending veterinarian and must be in 
accordance with the regulations in this subpart and with currently 
accepted professional standards as cited in appropriate professional 
journals or reference guides. 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 as 
cited in appropriate professional journals or reference guides. 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;
    (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 as directed by the attending veterinarian, to 
ensure that the birds are in fact compatible. 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. If individually 
housed social species of birds are unable to see and hear birds of 
their own or compatible species then special attention regarding 
enhancement to their environment must be provided as specified in 
paragraph (c)(4) of this section.
    (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-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/or individual bird and in 
accordance with the instructions of the attending veterinarian. Birds 
requiring special attention are the following:
    (1) Nestlings, chicks, or fledglings;
    (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.  3.81(e)(3) and must be made available to APHIS upon request, and, 
in the case of research facilities, to officials of any pertinent 
funding agency.

(Approved by the Office of Management and Budget under control 
number 0579-0486)

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, normal fasts, or other professionally 
accepted practices. 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

[[Page 10718]]

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 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.

(Approved by the Office of Management and Budget under control 
number 0579-0486)


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

[[Page 10719]]

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 
weaned 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 document 
retained by the carrier or intermediate handler and on a copy of the 
shipping document accompanying the bird shipment. If delays will cause 
the shipment to arrive more than 12 hours later than its originally 
scheduled arrival, the carrier or intermediate handler must contact the 
consignor or the consignee to notify them of the delay of the live 
shipment and to determine the necessity or methods to supply fresh 
food, water, or moisture-providing foods.
    (g) Carriers and intermediate handlers must not accept unweaned 
birds for transport unless an attending veterinarian finds that such 
transportation is necessary for veterinary care, and transport 
instructions are specified and written by the attending veterinarian, 
and signed within 10 days of shipment.

(Approved by the Office of Management and Budget under control 
number 0579-0486)


Sec.  3.162   Primary enclosures used to transport live birds.

    Any person subject to the Animal Welfare regulations (this part and 
parts 1 and 2 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

[[Page 10720]]

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.
    (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. If more than one bird is being 
transported, 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.
    (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, unless the attending 
veterinarian approves a delay or a delay is in accordance with 
professionally accepted standards.
    (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.

(Approved by the Office of Management and Budget under control 
number 0579-0486)


Sec.  3.165   Care in transit.

    (a) Surface transportation (ground and water). During surface 
transportation, any person subject to the Animal Welfare regulations in 
this part and parts 1 and 2 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

[[Page 10721]]

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 this 
part and parts 1 and 2 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 (this part 
and parts 1 and 2 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, 
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, 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 13th day of February 2023.
Mae Wu,
Deputy Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 2023-03357 Filed 2-17-23; 8:45 am]
BILLING CODE 3410-34-P