Animal Welfare; Marine Mammals

SUMMARY: We are proposing to amend the Animal Welfare regulations to

establish standards for ``swim-with-the-dolphin'' interactive programs.

These proposed standards would be promulgated under the authority of

the Animal Welfare Act and appear to be necessary to ensure that the

marine mammals used in these programs are handled and cared for in a

humane manner.

DATES: Consideration will be given only to comments received on or

before February 22, 1995.

ADDRESSES: Please send an original and three copies of your comments to

Chief, Regulatory Analysis and Development, PPD, APHIS, USDA, P.O.

Drawer 810, Riverdale, MD 20738. Please state that your comments refer

to Docket No. 93-076-2. Comments received may be inspected at USDA,

room 1141, South Building, 14th Street and Independence Avenue SW.,

Washington, DC, between 8 a.m. and 4:30 p.m., Monday through Friday,

except holidays. Persons wishing to inspect comments are requested to

call ahead on (202) 690-2817 to facilitate entry into the comment

reading room.

FOR FURTHER INFORMATION CONTACT:

Dr. Barbara Kohn, Senior Staff Veterinarian, Animal Care Staff,

Regulatory Enforcement and Animal Care, APHIS, USDA, P.O. Drawer 810,

Riverdale, MD 20738. The telephone number for the agency contact will

change when agency offices in Hyattsville, MD, move to Riverdale, MD,

during February 1995. Telephone: (301) 436-7833 (Hyattsville); (301)

734-8699 (Riverdale).

SUPPLEMENTARY INFORMATION:

Background

Since 1979, the Departments of Commerce and the Interior have

shared jurisdiction with the Department of Agriculture for regulating

the care and transportation of captive marine mammals. Under the Animal

Welfare Act (7 U.S.C. Secs. 2131, et seq.) (AWA), authority was given

by Congress to the Department of Agriculture to promulgate regulations

and standards for the humane handling, care, treatment, and

transportation of captive marine mammals by regulated entities. In

1979, the Department published a final rule in the Federal Register (44

FR 36868) which set forth the regulations and standards for captive

marine mammals.

The AWA regulations are contained in title 9 of the Code of Federal

Regulations, chapter 1, subchapter A, parts 1, 2, and 3. Part 1

provides definitions of the terms used in parts 2 and 3. Part 2 sets

forth the regulations and part 3 sets forth the standards for the

humane handling, care, treatment, and transportation of covered animals

by regulated entities. Subpart E of part 3 contains the standards

applicable to marine mammals.

Under provisions of the Marine Mammal Protection Act of 1972 (16

U.S.C. Secs. 1361 et seq.) (MMPA), the Departments of Commerce and the

Interior have had the responsibility for regulating marine mammals in

the wild, and those removed from the wild and held in captivity. Such

authority is exercised through a permit system whereby permits to

obtain new marine mammals or replacements from the wild are issued,

provided that the applicants for such permits comply with provisions of

these permits with respect to the handling and care of the animals. The

National Marine Fisheries Service (NMFS), U.S. Department of Commerce,

regulated ``swim-with-the-dolphin'' (SWTD) programs, by incorporating

standards of care into the permits. In SWTD programs, members of the

public participate in an orientation and education program regarding

marine mammals, and then take part in an interactive swimming session

with dolphins.

Recently, the regulation of SWTD programs has significantly

changed. The April 30, 1994, amendments to the MMPA contain a

requirement that holders of marine mammal permits issued by NMFS be

licensed by USDA under the AWA. The NMFS permits have changed in that

the special conditions concerning standards of care imposed on SWTD

permit holders are no longer contained in the permits. Therefore, there

are no specific standards in place for SWTD programs.

Although 9 CFR part 3, subpart E contains general standards,

developed and enforced by APHIS, for the housing, care, treatment, and

transportation of marine mammals, it contains no standards that apply

specifically to SWTD programs. Specific APHIS standards for these

programs, including exhibit design, veterinary care, personnel

training, and recordkeeping, were to be addressed in APHIS's review and

anticipated proposed revision of the regulations. As part of this

anticipated revision of the regulations, APHIS published an advance

notice of proposed rulemaking on July 23, 1993, (58 FR 39458) in which

members of the public were invited to submit comments on appropriate

specific standards for the care of marine mammals at facilities

licensed by or registered with APHIS. The amendments to the MMPA, and

the elimination of the MMPA requirement for NMFS to specify conditions

for the care and transportation of captive marine mammals used in SWTD

programs, has precipitated a need for specific APHIS standards

regarding SWTD programs at this time. Therefore, we are proposing such

standards to ensure the safety and health of captive marine mammals

used in SWTD programs.

Program Animals

This rule proposes standards for SWTD in a new Sec. 3.111. We are

providing in proposed Sec. 3.111(d) that only Tursiops truncatus,

commonly referred to as bottlenose dolphins, may be used in SWTD

programs. Industry experience has demonstrated that Tursiops truncatus

can be adequately trained and conditioned to interact safely with

humans. Similar information is not yet available regarding other

species of cetaceans. [[Page 4384]]

Space Requirement

We are proposing to require in Sec. 3.111(a) that primary

enclosures used to contain dolphins that are used in SWTD programs

consist of three areas: An interactive area, a buffer area, and a

sanctuary area. Both the buffer area and the sanctuary area would be

off-limits to members of the public. The sanctuary area is necessary to

allow dolphins to separate themselves voluntarily from the area of the

enclosure where humans are permitted during program sessions. The

buffer area, situated between the interactive area and the sanctuary

area, is necessary to ensure that the sanctuary area is an adequate

distance from the interactive area to ensure dolphins the opportunity

for complete freedom from the public.

We would establish the same minimum space requirements for each of

the three required areas. Each of the areas would be required to meet

minimum space requirements for horizontal dimension, surface area,

depth, and volume. Each of these proposed space requirements exceeds

that in the current regulations for Tursiops truncatus. The space

requirements set forth in this proposed rule were developed in

conjunction with professional industry organizations, and were

recommended by those organizations as providing adequate space for the

health and well-being of dolphins used in the SWTD programs.

We believe the increased space is necessary in the interactive area

to accommodate the presence of both dolphins and humans, and that a

like amount of space is necessary in both the buffer area and the

sanctuary area, so that the buffer and sanctuary areas are not made

intentionally uninviting to participating dolphins. For the same

reason, we would prohibit the restriction of a dolphin's entrance into

the buffer and sanctuary areas. In our view, SWTD programs are not to

be forced contact programs. The dolphins must always have the choice

not to participate. In this regard, the dolphin's choice of area should

not be influenced by factors such as restricted entrance into an area

or differences between sizes of areas (e.g., a sanctuary area that is

smaller than the interactive area).

The minimum space requirements for the three required areas and for

the entire primary enclosure are set forth in proposed Sec. 3.111(a)(5)

in a table which is replicated below.

Minimum Space Requirements for Each Area and Primary Enclosure

----------------------------------------------------------------------------------------------------------------

Minimum horizontal Surface area Depth Volume

dimension -----------------------------------------------------------------

Number of animals ----------------------

Each area Enclosure Each area Enclosure Each area Enclosure Each area Enclosure

(ft) (ft) (ft\2\) (ft\2\) (ft) (ft) (ft\3\) (ft\3\)

----------------------------------------------------------------------------------------------------------------

1-2..................... 27 81 572 1,716 9 9 5,148 15,444

3....................... 27 81 1,144 3,432 9 9 10,296 30,888

Each additional animal.. (\1\) (\1\) 254 763 (\1\) (\1\) 2,289 6,867

----------------------------------------------------------------------------------------------------------------

\1\No change.

Proposed section 3.111(a) also sets forth the formulae used to

arrive at the space requirements, which are based on the average adult

body length of Tursiops truncatus (9 feet) and which assume use of a

circular pool. The measurements in the table were calculated as

follows.

1. Horizontal dimension. The minimum horizontal dimension for each

area would be at least three times the average adult body length of the

species of animal used in the program. As noted above, under this

proposed rule, only Tursiops truncatus would be allowed in SWTD

programs.

2. Surface area. The minimum surface area for each of the three

required areas would be based on the following formulae:

Up to two dolphins

[GRAPHIC][TIFF OMITTED]TP23JA95.006

Three dolphins

[GRAPHIC][TIFF OMITTED]TP23JA95.007

Additional SA for each animal in excess of three

[GRAPHIC][TIFF OMITTED]TP23JA95.008

3. Depth. The average depth for each area would be required to be

at least 9 feet.

4. Volume. The minimum volume required for each animal would be

based on the following formula:

Volume = SA x 9

Water Quality

Standards for water quality for marine mammals are set forth in

existing Sec. 3.106. In Sec. 3.111(b) of this proposed rule, we are

providing that SWTD programs must also maintain sufficient water

clarity so that attendants are able to observe dolphins and humans at

all times within the interactive area. If the level of water clarity

does not allow these observations to be made, the interactive sessions

would be required to be canceled until such clarity is achieved.

Personnel

In proposed Sec. 3.111(c), we are setting forth minimum

requirements for the type and number of personnel necessary for

operating a SWTD program. Additionally, we are proposing to set forth

minimum levels of experience necessary for each required employee. We

believe this experience is necessary to ensure that these individuals

have been exposed to the critical elements of safe human/dolphin

interactions.

In this proposed rule, we are providing that each SWTD program must

have, at the minimum, the following personnel with the following

backgrounds: [[Page 4385]]

(1) Licensee or manager--at least one full-time staff member with

at least 6 years in a professional or managerial position dealing with

captive cetaceans;

(2) Primary behaviorist--at least one full-time staff member with

at least 6 years experience in training cetaceans for SWTD behaviors,

or with an equivalent amount of experience involving in-water training

of cetaceans, who serves as the head trainer for the SWTD program;

(3) Supervising attendant--at least one full-time staff member with

at least 3 years experience involving human/dolphin interactions;

(4) Attending veterinarian--at least one staff or consultant

veterinarian who has had at least the equivalent of 2 years experience

with cetacean medicine within the past 10 years.

A separate individual would be required to fill each of the

required positions.

Handling

We are providing in proposed Sec. 3.111(e)(1) that time dolphins

spend interacting with humans as part of a SWTD program may not exceed

2 hours per day, and that each participating dolphin must have no less

than 10 continuous hours without public interaction in each 24 hours.

We are providing in proposed Sec. 3.111(e)(2) that all dolphins used in

the session must be adequately conditioned and trained for interaction,

so that they respond in the session to the attendants with appropriate

behavior for safe interaction.

We are also providing in proposed Sec. 3.111(e)(3) that the ratio

of human participants to dolphins shall not exceed 3:1, and that the

ratio of human participants to attendants shall not exceed 3:1. These

ratios are based on permit requirements established by NMFS as part of

their regulation of SWTD programs, and, based on MNFS' enforcement

experience, we believe they are adequate to protect dolphins used in

SWTD programs.

Under Sec. 3.111(e)(5) of this proposed rule, all sessions must

have at least two attendants, and more if required according to the

ratio discussed above. At least one attendant would be required to be

positioned in the water, except in cases where at least one attendant

is positioned so as to be able to intervene during the interactive

session as quickly as if positioned in the water. However, if the

program has had more than two incidents during interactive sessions

that have been dangerous or harmful to either dolphins or humans, at

least one attendant would be required to be positioned in the water.

To help ensure that the requirements of this proposed rule

regarding interactive sessions are met, we are requiring in

Sec. 3.111(e)(4) that, prior to participation in a SWTD program,

members of the public be provided with, and agree in writing to abide

by, the SWTD program rules. We are also proposing that any participant

who fails to follow the rules or the instructions of the attendants be

removed from the session.

Under Sec. 3.111(e)(6) of this proposed rule, a SWTD program must

limit contact between humans and dolphins so as to ensure that the

dolphins and humans are not harmed, that the element of choice

regarding interaction is not removed from the dolphins (such as by

recalling the animal from the sanctuary area), and that undesirable

behavior is not elicited from the dolphins. At all times, each dolphin

must be free to remove itself from the human/dolphin interaction. To

ensure that this is possible, grasping or holding of the dolphin's

body, unless under the direct and explicit instruction of an attendant

eliciting a specific dolphin behavior, and the chasing or harassing of

dolphins, would be prohibited by the SWTD programs.

We would require in proposed Sec. 3.111(e)(7) that, in cases where

animals used in the program exhibit unsatisfactory behaviors, such as

charging, biting, mouthing, or sexual contact between dolphins and

humans, these animals must be removed from the interactive session. We

recognize that, in some cases, it may become difficult or impossible to

remove a particular animal from an interactive session. For instance,

in some cases, an animal may refuse to respond to commands from

attendants. In order for a facility to anticipate and respond to such

situations, we would require that written criteria must be developed

and submitted to APHIS regarding conditions and procedures for the

termination of a session. The primary behaviorist shall determine when

operations will be terminated, and when they may resume. In the primary

behaviorist's absence, these determinations shall be made by the

supervising attendant.

Recordkeeping

We would establish reporting and recordkeeping requirements for

SWTD programs. This information would help us monitor compliance with

the regulations, and assist us in evaluating SWTD programs to assess

the effectiveness of the regulations.

As part of the reporting requirements, we would require in

Sec. 3.111(f)(1) that a description of each SWTD program be provided to

APHIS at least 30 days prior to initiation of any SWTD program.

Facilities which have programs in place when this rule becomes final

would also be required to provide APHIS with the same information

within thirty days after the rule becomes final. This description would

be required to include, at the minimum, the following: (1)

Identification of each dolphin in the program by means of name and/or

number, sex, age, and any other means determined by the Administrator

as necessary to adequately identify the dolphin; (2) a description of

the educational content and agenda of planned interactive sessions, and

the anticipated average and maximum frequency and duration, of

encounters per dolphin per day; (3) the content and method of pre-

encounter orientation, rules, and instructions, including restrictions

on types of physical contact with the dolphins; (4) a description of

the SWTD facility, including the primary enclosure and other housing at

the facility; (5) a description of the training the dolphin has

undergone or will undergo prior to the participation in the program;

(6) curriculum vitae for all staff involved in the handling, care, and

maintenance of the dolphins; (7) the current behavior patterns and

health of each dolphin, to be assessed and submitted by the attending

veterinarian; (8) a written program of veterinary care (APHIS form

7002), including protocols and schedules of professional visits; and

(9) a detailed description of the monitoring program to be used to

detect and identify changes in the behavior and health of the dolphins.

We would require in Sec. 3.111(f) (3) and (4) that the following

records be kept at the SWTD site and be made available to an APHIS

official upon request during normal business hours: (1) Individual

dolphin veterinary records, including all examinations, lab reports,

treatments, and necropsy reports; (2) individual dolphin feeding

records; and (3) individual dolphin behavioral records. The veterinary

records would be required to be kept at the site at least 5 years. The

feeding and behavioral records would be required to be kept at the site

at least 3 years.

Under Sec. 3.111(f)(5) of this proposed rule, the following reports

would be required to be kept at the SWTD site at least 3 years, and a

copy would be required to be submitted to the Administrator on a semi-

annual basis: (1) Statistical summaries of the number of minutes per

day and the number of hours per week that each animal

[[Page 4386]] participated in an interactive session; (2) a statistical

summary of the number of human participants per month in the SWTD

program; and (3) a description of any changes made in the SWTD program

since the previous report was submitted.

We would also require, in Sec. 3.111(f)(6), that any incident

resulting in injury to either dolphins or humans during an interactive

session be reported to APHIS within 24 hours of the incident. Within a

week of any such incident, a written report would be required to be

submitted to the Administrator. The report would be required to provide

a detailed description of the incident and must establish a plan of

action for the prevention of further occurrences.

Veterinary Care

In Sec. 3.111(g) of this proposed rule, we are establishing

standards for veterinary care and veterinary supervision for SWTD

programs. The veterinary care standards set forth in this rule are

based on documents developed at a NMFS-sponsored workshop by experts in

marine mammal medicine and parties experienced in dealing with SWTD

animals. We consider these veterinary care standards necessary to

safeguard the health of both dolphins and humans participating in

interactive programs. The veterinary requirements, discussed below,

would require regular monitoring by the attending veterinarian of

dolphins used in the programs and of other aspects of the program. This

regular monitoring is necessary to help prevent the spread of zoonotic

diseases during the program. Additionally, because dolphins often do

not exhibit clinical signs of illness until very late in the disease

process, early detection of stress or health problems is essential for

the well-being of the dolphins.

In Sec. 3.111(g)(1) of this proposed rule, we are requiring that

the attending veterinarian conduct on-site evaluations at least once a

month of each dolphin used in a SWTD program. The evaluation would have

to include a visual inspection of the animal; examination of the

behavioral, feeding, and medical records of the animal; and a

discussion of each animal with an animal care staff member familiar

with the animal. We would require in Sec. 3.111(g)(2) that the

attending veterinarian observe an interactive swim sessions at least

once a month.

Additionally, under proposed Sec. 3.111(g)(3), the attending

veterinarian would be required to conduct a complete physical

examination of each dolphin at least once every 6 months. The

examination would have to include a profile of the dolphin, including

the following: The dolphins's identification (name and/or number, sex,

and age), weight, length, axillary girth, appetite, and behavior. The

attending veterinarian would also be required to conduct a general

examination to evaluate body condition, skin, eyes, mouth, blow hole

and cardio-respiratory system, genitalia, and feces (gastrointestinal

status). In addition, the examination would have to include a complete

blood count and serum chemistry analysis, and cytology and parasite

evaluation of fecal and blow hole smears. As part of the examination,

the attending veterinarian would be required to record the nutritional

and reproductive status of the dolphin (whether in active breeding

program, pregnant, or nursing). While at the site, the attending

veterinarian would also be required to examine water quality records

and make an assessment of the overall water quality during the

preceding month.

In proposed Sec. 3.111(g)(6), we are providing that, should a

dolphin used in a SWTD program die, complete necropsy results,

including all appropriate histopathology, must be recorded in the

animal's individual file and be made available to APHIS officials

during facility inspections, or as requested by APHIS. The necropsy

would be required to be performed within 48 hours of the dolphin's

death, by a veterinarian experienced in marine mammal necropsies. If

the necropsy is not to be performed within 3 hours of the discovery of

the dolphin's death, the dolphin must be refrigerated. We would require

that written results of the necropsy be available in the dolphin's

individual file within 7 days after death for gross pathology and

within 45 days after death for histopathology.

Executive Order 12866 and Regulatory Flexibility Act

This proposed rule has been determined to be significant and was

reviewed by OMB under Executive Order 12866.

Under this proposed rule, operators of SWTD programs would be

required to meet specified standards for those programs. These

standards would include requirements for handling, facility design,

reporting, and recordkeeping. Currently, 135 exhibitors in the United

States are licensed by APHIS to hold marine mammals. Of this number,

four operate SWTD programs. Three of these four exhibitors already meet

the standards we are proposing. The fourth exhibitor would have to make

certain design changes and provide for additional training to comply

with the proposed standards. The cost of the additional training

requirements would be approximately $15,000. The estimated costs of

materials to complete the design changes would be approximately $850.

Based on information provided by the industry concerning the average

annual gross revenue of SWTD programs, the additional costs involved in

complying with the proposed standards should not pose a significant

economic burden on exhibitors.

Under these circumstances, the Administrator of the Animal and

Plant Health Inspection Service has determined that this action would

not have a significant economic impact on a substantial number of small

entities.

Executive Order 12778

This rule has been reviewed under Executive Order 12778, Civil

Justice Reform. It is not intended to have retroactive effect. This

rule will not preempt any State or local laws, regulations, or

policies, unless they present an irreconcilable conflict with this

rule. The Act does not provide administrative procedures which must be

exhausted prior to a judicial challenge to the provisions of this rule.

Paperwork Reduction Act

In accordance with the Paperwork Reduction Act of 1980 (44 U.S.C.

3501 et seq.), the information collection or recordkeeping requirements

included in this proposed rule will be submitted for approval to the

Office of Management and Budget. Please send written comments to the

Office of Information and Regulatory Affairs, OMB, Attention: Desk

Officer for APHIS, Washington, DC 20503. Please send a copy of your

comments to: (1) Chief, Regulatory Analysis and Development, PPD,

APHIS, USDA, P.O. Drawer 810, Riverdale, MD 20738, and (2) Clearance

Officer, OIRM, USDA, room 404-W, 14th Street and Independence Avenue

SW., Washington, DC 20250.

List of Subjects

9 CFR Part 1

Animal welfare, Animal housing, Dealers, Exhibitors, Humane animal

handling, Research facilities.

9 CFR Part 3

Animal welfare, Humane animal handling, Pets, Reporting and

recordkeeping requirements, Transportation.

Accordingly, 9 CFR parts 1 and 3 would be amended as

follows: [[Page 4387]]

PART 1--[AMENDED]

1. The authority citation for part 1 would continue to read as

follows:

Authority: 7 U.S.C. 2131-2159; 7 CFR 2.17, 2.51, and 371.2(g).

2. In Sec. 1.1, definitions of buffer area, interactive area,

interactive session, sanctuary area, and swim-with-the-dolphins (SWTD)

program would be added in alphabetical order, to read as follows:

Sec. 1.1 Definitions.

* * * * *

Buffer area means that area in a primary enclosure for a swim-with-

the-dolphins program that is off-limits to members of the public and

that directly abuts the interactive area.

* * * * *

Interactive area means that area in a primary enclosure for a swim-

with-the-dolphins program where an interactive session takes place.

Interactive session means a swim-with-the-dolphins program session

where members of the public enter a primary enclosure to swim with

dolphins.

* * * * *

Sanctuary area means that area in a primary enclosure for a swim-

with-the-dolphins program that is off-limits to the public and that

directly abuts the buffer area.

* * * * *

Swim-with-the-dolphins SWTD program means any human-dolphin

interactive program in which a member of the public enters the primary

enclosure in which a dolphin is housed to interact with the animal.

This excludes feeding and petting pools and the participation of any

member(s) of the public audience as a minor segment of an educational

show.

* * * * *

PART 3--[AMENDED]

3. The authority citation for part 3 would be revised to read as

follows:

Authority: 7 U.S.C. 2131-2159; 7 CFR 2.17, 2.51, and 371.2(g).

4. In subpart E, footnote 2 would be redesignated as footnote 3,

footnote 5 would be redesignated as footnote 2, footnote 8 would be

redesignated as footnote 4, and footnote 9 would be redesignated as

footnote 5.

5. A new section Sec. 3.111 would be added to read as follows:

Sec. 3.111 Swim-with-the-dolphins programs.

Swim-with-the-dolphins programs must comply with the requirements

in this section, as well as with all other requirements of this subpart

pertaining to dolphins.

(a) Space requirements. The primary enclosure for SWTD dolphins

must contain an interactive area, a buffer area, and a sanctuary area.

Movement of dolphins into the buffer or sanctuary area must not be

restricted. Notwithstanding the space requirements set forth in

Sec. 3.104, each of the three areas required for SWTD programs must

meet the following space requirements:

(1) The horizontal dimension for each area must be at least three

times the average adult body length of the species of dolphin used in

the program.

(2) The minimum surface area required for each area is calculated

as follows:

(i) Up to two dolphins:

[GRAPHIC][TIFF OMITTED]TP23JA95.009

(ii) Three dolphins:

[GRAPHIC][TIFF OMITTED]TP23JA95.010

(iii) Additional SA for each animal in excess of three:

[GRAPHIC][TIFF OMITTED]TP23JA95.011

(3) The average depth for each area must be at least 9 feet.

(4) The minimum volume required for each animal is calculated as

follows:

Volume=SA x 9

(5) Minimum space requirements for each area are summarized in

Table VI.

Table VI.--Minimum Space Requirements for Each Area and Primary Enclosure--SWTD

----------------------------------------------------------------------------------------------------------------

Minimum horizontal Surface area Depth Volume

dimension -----------------------------------------------------------------

Number of animals ----------------------

Each area Enclosure Each area Enclosure Each area Enclosure Each area Enclosure

(ft) (ft) (ft\2\) (ft\2\) (ft) (ft) (ft\3\) (ft\3\)

----------------------------------------------------------------------------------------------------------------

1-2..................... 27 81 572 1,716 9 9 5,148 15,444

3....................... 27 81 1,144 3,432 9 9 10,296 30,888

Each additional animal.. (\1\) (\1\) 254 763 (\1\) (\1\) 2,289 6,867

----------------------------------------------------------------------------------------------------------------

\1\No change.

(b) Water quality. Sufficient water clarity must be maintained so

that attendants are able to observe dolphins and humans at all times

while within the interactive area. If water clarity does not allow

these observations, the interactive sessions must be canceled until the

required clarity is provided.

(c) Employees and attendants. Each SWTD program must have, at the

minimum, the following personnel, with the following minimum

backgrounds (each position must be held by a separate individual):

(1) Licensee or manager--at least one full-time staff member with

at least 6 years in a professional or managerial position dealing with

captive cetaceans;

(2) Primary behaviorist--at least one full-time staff member with

at least 6 years experience in training cetaceans for SWTD behaviors,

or an equivalent amount of experience involving in-water training of

cetaceans, who serves as the head trainer for the SWTD program;

(3) Supervising attendant--at least one full-time staff member with

at least 3 years experience involving human/dolphin interactions; and

(4) Attending veterinarian--at least one staff or consultant

veterinarian who [[Page 4388]] has at least the equivalent of 2 years

full-time experience with cetacean medicine within the past 10 years.

(d) Program animals Only Tursiops truncatus may be used in SWTD

programs.

(e) Handling. (1) Interaction time for each dolphin shall not

exceed 2 hours per day. Each participating dolphin shall have at least

one period in each 24 hours of at least 10 continuous hours without

public interaction.

(2) All dolphins used in an interactive session must be adequately

trained and conditioned in human interaction so that they respond in

the session to the attendants with appropriate behavior for safe

interaction.

(3) The ratio of human participants to dolphins shall not exceed

3:1. The ratio of human participants to attendants shall not exceed

3:1.

(4) Prior to participating in a SWTD interaction session, members

of the public must be provided with written rules and instructions for

the session. Members of the public must agree, in writing, the abide by

the rules and instructions before being allowed to participate in the

session. Any participant who fails to follow the rules or instructions

must be removed from the session.

(5) All interactive sessions must have at least two attendants. At

least one attendant must be positioned in the water, except in cases

where at least one attendant is positioned so as to be able to

intervene during the session as quickly as if positioned in the water.

However, if the program has had more than two incidents during

interactive sessions that have been dangerous or harmful to either a

dolphin or a human, at least one attendant must be positioned in the

water.

(6) The SWTD program must limit interaction between dolphins and

humans so that the interaction does not harm the dolphins, does not

remove the element of choice from the dolphins, such as by recalling

the animal from the sanctuary area, and does not elicit undesirable

responses from the dolphins. The program must prohibit grasping or

holding of the dolphin's body, unless under the direct and explicit

instruction of an attendant eliciting a specific dolphin behavior, and

must prevent the chasing or other harassment of the dolphins.

(7) In cases where dolphins used in an interactive session exhibit

unsatisfactory behaviors, such as charging, biting, mouthing, or sexual

contact with humans, these dolphins must either be removed from the

interactive area or the session must be terminated. Written criteria

must be developed and submitted to APHIS\6\ regarding conditions and

procedures for the termination of a session when removal of a dolphin

is not possible and potentially unsafe behaviors are exhibited by one

or more dolphins. The primary behaviorist shall determine when

operations will be terminated, and when they may resume. In the absence

of the primary behaviorist, these determinations shall be made by the

supervising attendant.

\6\Send to Administrator, c/o Animal and Plant Health Inspection

Service, Regulatory Enforcement and Animal Care, Animal Care, 4700

River Road Unit 84, Riverdale, Maryland 20737-1234.

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(f) Recordkeeping. (1) In order for APHIS to properly evaluate a

proposed or an ongoing SWTD program, each facility must provide

APHIS\7\ with a description of its program at least 30 days prior to

initiation of the program, or in the case of any program already in

place, the description must be provided within 30 days from the

effective date of this final rule. The description must include at

least the following:

\7\Send to Administrator, c/o Animal and Plant Health Inspection

Service, Regulatory Enforcement and Animal Care, Animal Care, 4700

River Road Unit 84, Riverdale, Maryland 20737-1234.

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(i) Identification of each dolphin in the program, by means of name

and/or number, sex, age, and any other means the Administrator

determines to be necessary to adequately identify the dolphin;

(ii) A description of the educational content and agenda of planned

interactive sessions, and the anticipated average and maximum frequency

and duration of encounters per dolphin per day;

(iii) The content and method of pre-encounter orientation, rules,

and instructions, including restrictions on types of physical contact

with the dolphins;

(iv) A description of the SWTD facility, including the primary

enclosure and other housing at the facility;

(v) A description of the training the dolphin has undergone or will

undergo prior to participation in the program;

(vi) The curriculum vitae of all staff involved in the handling,

care, and maintenance of the dolphins;

(vii) The current behavior patterns and health of each dolphin, to

be assessed and submitted by the attending veterinarian;

(viii) A written program of veterinary care (APHIS form 7002),

including protocols and schedules of professional visits; and

(ix) A detailed description of the monitoring program to be used to

detect and identify changes in the behavior and health of the dolphins.

(2) In the case of a new SWTD program which APHIS finds deficient

in any respect, the facility will be notified so that it may correct

any deficiencies prior to the initiation of its program. In the case of

an existing SWTD program which APHIS finds deficient in any respect,

the facility will be notified of any deficiencies and provided the

opportunity to make corrections.

(3) Individual animal veterinary records, including all

examinations, laboratory reports, treatments, and necropsy reports must

be kept at the SWTD site for at least 5 years and be made available to

an APHIS official upon request during inspection:

(4) The following records must be kept at the SWTD site for at

least 3 years and be made available to an APHIS official upon request

during inspection:

(i) Individual dolphin feeding records; and

(ii) Individual dolphin behavioral records.

(5) The following reports must be kept at the SWTD site for at

least 3 years and a copy must be submitted to APHIS\8\ on a semi-annual

basis:

\8\See footnote 6.

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(i) Statistical summaries of the number of minutes per day and the

number of hours per week that each animal participated in an

interactive session;

(ii) A statistical summary of the number of human participants per

month in the SWTD program; and

(iii) A description of any changes made in the SWTD program since

the previous report was submitted.

(6) All incidents resulting in injury to either dolphins or humans

participating in an interactive session must be reported to APHIS

within 24 hours of the incident.\9\ Within 7 days of any such incident,

a written report must be submitted to the Administrator.\10\ The report

must provide a detailed description of the incident and must establish

a plan of action for the prevention of further occurrences.

\9\Telephone numbers for Regulatory Enforcement and Animal Care,

APHIS, sector offices can be found in local telephone books.

\10\See footnote 6.

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(g) Veterinary care. (1) The attending veterinarian must conduct

on-site evaluations of each dolphin at least once a month. The

evaluation must include a visual inspection of the animal; examination

of the behavioral, feeding, and medical records of the animal; and a

discussion of each animal with an animal care staff member familiar

with the animal.

(2) The attending veterinarian must observe an interactive swim

session at the SWTD site at least once each month. [[Page 4389]]

(3) The attending veterinarian must conduct a complete physical

examination of each dolphin at least once every 6 months. The

examination must include a profile of the dolphin, including the

dolphin's identification (name and/or number, sex, and age),

weight,\11\ length, axillary girth, appetite, and behavior. The

attending veterinarian must also conduct a general examination to

evaluate body condition, skin, eyes, mouth, blow hole and cardio-

respiratory system, genitalia, and feces (gastroin estinal status). The

examination must also include a complete blood count and serum

chemistry analysis. Fecal and blow hole smears must be obtained for

cytology and parasite evaluation.

\11\Weight may be measured either by scale or calculated using

the following formulae:

Females: Natural log of body mass=-8.44+1.34 (natural log of

girth)+1.28 (natural log of standard length)

Males: Natural log of body mass=-10.3+1.62 (natural log of

girth)+1.38 (natural log of standard length)

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(4) The attending veterinarian must record the nutritional and

reproductive status of each dolphin (whether in active breeding

program, pregnant, or nursing).

(5) The attending veterinarian must examine water quality records

and provide a written assessment, to stay at the SWTD site for at least

3 years, of the overall water quality during the preceding month.

(6) In the event that a dolphin dies, complete necropsy results,

including all appropriate histopathology, must be recorded in the

dolphin's individual file and be made available to APHIS officials

during facility inspections, or as requested by APHIS. The necropsy

must be performed within 48 hours of the dolphin's death, by a

veterinarian experienced in marine mammal necropsies. If the necropsy

is not be performed within 3 hours of the discovery of the dolphin's

death, the dolphin must be refrigerated until necropsy. Written results

of the necropsy must be available in the dolphin's individual file

within 7 days after death for gross pathology and within 45 days after

death for histopathology.

Done in Washington, DC, this 18th day of January 1995.

Lonnie J. King,

Acting Administrator, Animal and Plant Health Inspection Service.

[FR Doc. 95-1637 Filed 1-20-95; 8:45 am]

BILLING CODE 3410-34-M