Animal Welfare; Marine Mammals, Swim-With-the-Dolphin Programs

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Parts 1 and 3

[Docket No. 93-076-10]

RIN 0579-AA59

Animal Welfare; Marine Mammals, Swim-With-the-Dolphin Programs

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the Animal Welfare regulations to establish

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

standards are being promulgated under the authority of the Animal

Welfare Act and are necessary to ensure that the marine mammals used in

these programs are handled and cared for in a humane manner.

EFFECTIVE DATE: October 5, 1998.

FOR FURTHER INFORMATION CONTACT: Dr. Barbara Kohn, Senior Staff

Veterinarian, Animal Care, APHIS, 4700 River Road Unit 84, Riverdale,

MD 20737-1228, (301) 734-7833.

SUPPLEMENTARY INFORMATION:

Background

Under the Animal Welfare Act (7 U.S.C. 2131 et seq.) (AWA),

Congress authorized the Department of Agriculture to promulgate

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

transportation of captive marine mammals by regulated entities. The AWA

regulations are contained in title 9 of the Code of Federal

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

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

designated as ``Regulations,'' and part 3 is designated as

``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.

On January 23, 1995, we published in the Federal Register (60 FR

4383-4389, Docket No. 93-076-2) a proposal to amend the regulations by

establishing standards for ``swim-with-the-dolphin'' (SWTD) programs in

a new Sec. 3.111.

We solicited comments concerning our proposal for an initial

comment period of 30 days ending February 22, 1995, followed by three

extensions ending March 24, 1995 (see 60 FR 10810, Docket No. 93-076-4;

60 FR 12908, Docket No. 93-076-5; and 60 FR 15524-15525, Docket No. 93-

076-6).

Comments Received on the SWTD Proposed Rule

From January 23, 1995, the date the comment period on proposed rule

Docket No. 93-076-2 opened, until March 24, 1995, the final close of

the comment period, we received a total of 22 comments. They came from

exhibitors, exhibitor associations, animal protection organizations,

Federal agencies, and other members of the public. The comments are

discussed below by topic.

In this final rule, we are establishing regulations and standards

for the humane handling, care, and treatment of cetaceans used in SWTD

programs. These regulations and standards address space requirements,

veterinary care, personnel and handling requirements, and

recordkeeping.

We are amending the definition we proposed for ``Swim-with-the

dolphin (SWTD) program'' to substitute the word ``cetacean'' for

``dolphin'' in the first sentence and throughout this final rule,

except in the generally accepted name of these interactive programs. We

consider the term cetacean to more accurately describe the types of

marine mammals that may be used in SWTD programs. For consistency's

sake, in the preamble of this final rule, we use the term cetacean in

discussing the comments submitted by the public. We consider such use

to be consistent with the intent of the issues raised.

Opposition to SWTD Programs

One commenter opposed SWTD programs because of what the commenter

saw as the risk of zoonotic diseases being transmitted to the cetaceans

from humans. The commenter stated that because cetaceans tend to mask

signs of illness, they do not lend themselves to efficient diagnosis,

and, therefore, are unsuited to captivity.

The issues raised by the commenter, those of whether cetaceans

should be used in SWTD programs, and whether cetaceans should be kept

in captivity at all, transcend the scope of the proposed rule. The rule

as proposed was predicated on the assumption that marine mammals will

continue to be used in interactive programs. The proposed provisions

were intended to address the regulatory needs of the specialized

captive display SWTD programs, so that the animals used in the programs

are treated in a humane manner. The statement that cetaceans tend to

mask signs of illness as long as possible can be made for many species.

However, competent use of behavioral and feeding observations, and

preventive and therapeutic veterinary medical programs of care, can and

do provide adequate information and a strong basis for efficient

medical diagnosis and treatment. Therefore, we are making no changes to

the final rule based on this comment.

One commenter stated that no new SWTD programs should be approved

until APHIS has independent, trained observers conduct a long-term

continuous study on all aspects of human/cetacean interaction.

Prior to the reauthorization of the Marine Mammal Protection Act

(MMPA) and the cessation of SWTD program oversight by the National

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

commissioned an independent study of the SWTD programs operating at

that time. The results of that study, submitted to NMFS in 1994, and

[[Page 47129]]

published in the journal Marine Mammal Science, 1 were

considered in the development of the proposed rule. APHIS has concluded

that commissioning another such study would be duplicative and not cost

efficient, and would pose an unnecessary delay in the development of

the rule. Therefore, we are making no changes to the final rule based

on this comment.

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\1\ Amy Samuels and Trevor R. Spradlin, ``Quantitative

Behavioral Study of Bottlenose Dolphins in Swim-with-the-Dolphin

Programs in the United States,'' Marine Mammal Science, 11(4), 1995,

pp. 520-544.

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One commenter recommended that SWTD programs be classified as

``experimental'' until review of current and future information

warrants the designation of permanent status. The commenter stated that

this approach could include setting specific dates for future

programmatic review and reconsideration of permanent status.

The granting of ``experimental'' or temporary licenses is outside

the authority of APHIS under the AWA, and we are making no changes to

the final rule based on this comment.

Public Involvement in Development of the Proposed Rule

One commenter stated that it was ``offensive and inequitable'' that

no input was sought from animal welfare groups in the development of

the proposed rule. Another commenter objected to what the commenter

termed ``industry conflict of interest'' because our proposal stated

that the proposed minimum space requirements were developed ``in

conjunction with professional industry organizations.''

APHIS has conducted this rulemaking in accordance with the

Administrative Procedure Act (APA) and other applicable laws and

executive orders. As stated in the preamble of the proposed rule, APHIS

developed the proposed rule using several sources of information. This

information was in APHIS's possession at the time the proposed rule was

developed. Comments were not solicited from specific groups or

organizations during development of the proposal. Following publication

of the proposed rule, APHIS provided for an adequate public comment

period to provide all interested parties the opportunity to support,

oppose, recommend changes, or to otherwise comment on the proposed

rule.

One commenter recommended that APHIS publish an interim rule

establishing SWTD regulations until a final rule could be published.

APHIS examined the possibility of publishing an interim rule. However,

it was determined that this would not be the best regulatory approach.

As noted above, by conducting proposed rulemaking rather than

publishing an interim rule, APHIS provided the public an opportunity to

comment on and recommend changes to the SWTD standards prior to their

being made effective.

Need for SWTD Regulations

One commenter stated that, unless APHIS can show that the current

regulations are harming animals, the Agency should not say in the

preamble of its proposed rule that the rule is necessary to ensure the

humane care of program animals.

Until this final rule becomes effective, APHIS does not have in

place specific standards that address the special considerations of

SWTD programs. The reference in the proposed rule to the need for

standards was not intended as a judgment concerning the currently

operating programs. However, it was intended to emphasize the need to

implement regulatory provisions that specifically address AWA issues

with regard to these specialized captive display facilities.

Several commenters stated that establishing regulations

specifically for SWTD programs, in addition to those regulations

already established regarding marine mammals, was arbitrary and

redundant. One commenter stated that standards for SWTD programs should

be the same as for any marine mammal facility, except in what the

commenter termed ``rare'' instances where SWTD facilities are

necessarily different from other facilities. Several commenters stated

that facilities with existing SWTD programs have already established

standards for those programs and, therefore, that specific U.S.

Department of Agriculture (USDA) standards for such programs are

unnecessary.

We consider the special circumstances of SWTD programs, both for

the cetaceans involved and the people who participate in them, to

require specific regulatory language. The regulations promulgated in

this final rule address the humane care and maintenance of marine

mammals used in these specialized programs, and we consider them

necessary to ensure the marine mammals' continued well-being.

SWTD Program Definitions

A number of commenters commented on the proposed definition of

swim-with-the-dolphin (SWTD) program that was set forth in Sec. 1.1 of

the proposed rule.

One commenter expressed concern that the proposed definition of

SWTD programs excluded those programs where members of an audience

participate as a minor segment of an educational show. The commenter

said the meaning of ``minor'' was unclear, and that whenever members of

the public enter the water with the ability to ``swim'' with marine

mammals, the activity should be regulated.

The use of audience participation as a segment of any presentation,

educational or otherwise, is an integral component of the presentations

at many regulated marine mammal facilities. The proposed rule was not

meant to include such presentations where a member of the public enters

the primary enclosure to pet, feed, or issue a behavioral command to

the animal(s) as part of such a performance. Since presentations vary

greatly from facility to facility, it would be inappropriate to

strictly define ``minor,'' and we do not do so in this final rule. SWTD

programs are programs that have been designed with the primary purpose

of having members of the public interact with the animals in the water

by swimming (this includes wading, scuba diving, and snorkeling). This

rule has been developed to address the special needs of such programs.

One commenter stated that no facility that conducts shows or

performances of any kind should be allowed to conduct SWTD sessions,

because such shows cause additional unnecessary stress for cetaceans.

APHIS is unaware of any valid scientific research or other

information that documents or supports that performances, as referred

to above, cause additional unnecessary stress for the animals. We are

not aware of any scientific or other reason to restrict such a program,

and we are making no changes to the final rule based on this comment.

Several commenters recommended that the proposed definition of

swim-with-the-dolphin (SWTD) program be revised to mean [with the

commenters' suggested additions italicized; suggested deletions

bracketed] any human-cetacean interactive program in which a member of

the public enters the primary enclosure in which an SWTD designated

cetacean is housed [to interact with the animal] for the purpose of

swimming, snorkeling, or scuba diving with the cetacean. The commenters

recommended that this exclude, but such exclusion not be limited to,

feeding and petting pools and the participation of any member(s) of the

public audience as a [minor] segment of [an educational] a presentation

of a show. The commenter

[[Page 47130]]

stated that this revision would make clear that ``swimming'' with the

animal is the key to an SWTD session. According to the commenter,

removing the words ``minor'' and ``educational'' in describing

exclusions to the definition, and referring only to SWTD-designated

cetaceans, would clarify the scope of the programs regulated. Another

commenter recommended that ``swim'' be clarified to mean ``immersed in

water.''

Our intent was to make the definition of SWTD programs as clear as

possible without being so restrictive that future activities that would

need to be regulated as SWTD programs are excluded. After reviewing the

comments on the definition of SWTD programs, APHIS has incorporated

language that we believe addresses the concerns raised by the

commenters without being unduly narrow in definition. Accordingly, we

are defining swim-with-the-dolphin (SWTD) program to mean any human-

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

primary enclosure in which an SWTD designated cetacean is housed to

interact with the animal. This interaction includes, but such inclusion

is not limited to, wading, swimming, snorkeling, or scuba diving in the

enclosure. This interaction excludes, but such exclusion is not limited

to, feeding and petting pools, and participation of any member(s) of

the public audience as a minor segment of an educational presentation

or performance of a show.

One commenter recommended that the definition of swim-with-the-

dolphin (SWTD) program be expanded to specify that the regulations

apply to all programs involving swim encounters with cetaceans,

including ``therapy'' programs.

The regulations and standards apply to all facilities that engage

in activities for which a license or registration is required under the

AWA. At present there may be private therapy programs that are not

licensed or registered under the AWA. APHIS cannot enforce AWA

regulations and standards at facilities that are not required to be

licensed or registered under the AWA. Any SWTD programs that engage in

activities for which a license or registration is required under the

AWA are subject to this final rule.

In various places in the proposed regulations, we used the word

``interactive'' to describe sessions or areas where SWTD activities are

carried out. Several commenters recommended that the term

``interactive'' be replaced with ``swim-with-the-dolphin'' to avoid

confusion with other programs referred to as ``interactive.''

We do not agree that there would be confusion over the use of the

term ``interactive.'' In reviewing its use throughout the rule, we do

not find an instance where switching to the term ``swim-with-the-

dolphin'' would clarify the meaning. The terms ``interactive area'' and

``interactive session'' are defined in Sec. 1.1. Additionally,

Sec. 3.111 is entitled ``Swim-with-the-dolphin programs.'' There should

be no reasonable confusion over the terminology used. Therefore, we are

making no changes to the final rule based on this comment.

Types of Cetaceans Used in SWTD Programs

Under Sec. 3.111(d), APHIS proposed that only Tursiops truncatus

may be used in SWTD programs. Several commenters objected to this

provision, stating that there is no scientific justification for

limiting SWTD programs to Tursiops truncatus, and that experience has

shown that other cetaceans can be trained and conditioned to take part

in such interactive swimming programs.

At the time the proposed rule was published, APHIS believed that

the only animals in use in SWTD programs in the United States were

Tursiops truncatus. This information was incorrect and, therefore, this

final rule addresses the use of varied species of cetaceans in SWTD

programs. Of the approximately 88 species of cetacea, 35 species have

been or currently are being maintained in U.S. aquaria and zoos. While

many species may never be considered for inclusion in SWTD programs,

based on temperament, difficulty in maintaining them in captivity,

conservation and breeding considerations, etc., individual

representatives of a species may be suitable for inclusion in a SWTD

program.

We are amending Sec. 3.111(d) to read: Program animals: Only

cetaceans that meet the requirements of Sec. 3.111(e)(2) and (3) may be

used in SWTD programs. We believe that this provision will provide

safeguards on the animals used in SWTD programs, while providing

flexibility to facilities in choosing which animals to use. As long as

a cetacean is adequately trained and conditioned in human interaction,

and is in good health, it may be used in an SWTD program. All program

animals are subject to removal (temporary or permanent) from a SWTD

program if they exhibit unsatisfactory, undesirable, or unsafe

behaviors (Sec. 3.111(e)(8) in this final rule). Section 3.111(e)(3) is

a new section added to clarify that all animals used in SWTD programs

shall be in good health.

Several commenters took issue with the statement in our proposal

that industry experience has demonstrated that Tursiops truncatus can

be adequately trained and conditioned to interact safely with humans,

stating that this conclusion has not been definitively proven by any

report issued to date. The commenters stated that injuries have

occurred in both petting pools and hands-on interactive sessions.

The statement in the preamble of the proposed rule concerning the

training and conditioning of Tursiops truncatus to interact safely with

humans was not meant to imply that no injuries had ever occurred, only

that the incidence of injuries in SWTD programs has been low. According

to NMFS statistics during the years of their oversight (1989 to April,

1994) of these programs, there were approximately 14 reported injuries

during 166,615 encounters (individuals participating in SWTD sessions).

Using these statistics, the overall injury rate was less than 0.01

percent, with yearly rates varying between 0 percent and 0.03 percent.

It can be inferred that injuries caused by human-cetacean interaction

during SWTD sessions occur at an extremely low rate, and that these

interactions are relatively safe.

Several commenters recommended that the animals used in SWTD

programs be limited to those that are ``captive-born,'' stating that

sufficient numbers of Tursiops breed in captivity, and that captive-

born animals are more tractable.

It is beyond the scope of the AWA to restrict the activities of a

licensee or registrant who is in compliance with the AWA and the

regulations and standards. In addition, we believe that the final rule

contains adequate safeguards that will ensure that animals which are

aggressive or display inappropriate behavior will not be used in SWTD

programs. We are not making any changes to the final rule based on this

comment.

Handling Requirements and SWTD Enclosure Areas

Proposed Sec. 3.111(a) provided that the primary enclosure for SWTD

cetaceans must contain an interactive area, a buffer area, and a

sanctuary area, and that movement of cetaceans into the buffer or

sanctuary area must not be restricted. Several commenters expressed

their support for this requirement. Several commenters recommended that

the regulations also provide that there be no verbal or nonverbal

reprimands to cetaceans going to the buffer area, that there be

[[Page 47131]]

full rations in timely fashion even to cetaceans choosing not to take

part in the programs, and that, in general, stronger language be added

to make clear that movement into or use by the cetaceans of the buffer

or sanctuary area shall not be restricted in any way. Another commenter

recommended that the regulations specifically state that the buffer or

sanctuary areas may not be intentionally or inadvertently uninviting to

program cetaceans.

Handling requirements for all animals are found in Sec. 2.131.

Specifically, in Sec. 2.131(a)(2)(ii), the issues of withholding of

food are addressed. This regulation prohibits deprivation of food or

water in training, working, or other handling. However, the regulations

allow for the short-term withholding of food or water from animals by

exhibitors, as long as each of the animals affected receives its full

dietary and nutrition requirements each day. (emphasis added). Because

a regulation addressing the issue of full rations for all animals is

already in effect, it is not necessary to promulgate additional

language in this final rule.

In the Supplementary Information section of the proposed rule, the

issue of unrestricted movement by the cetaceans into the buffer and/or

sanctuary area, as well as the intent of the rule to provide that the

designated enclosure areas are not made intentionally uninviting to the

animals, was addressed. APHIS wishes to clarify the use of the word

``uninviting'' as used in this rule. ``Uninviting'' means that the area

is less attractive to the animal for whatever reason. Examples of

conditions that may make a certain area ``uninviting'' to a program

animal include, but are not limited to, loud background or other noise,

unappealing substrate, different lighting patterns, or uncomfortable

water temperature. In this final rule, we are adding language to

clarify this intent, by amending Sec. 3.111(a) to provide, in part,

that the primary enclosure for SWTD cetaceans must contain an

interactive area, a buffer area, and a sanctuary area, that none of

these areas shall be made uninviting to the animals, and that movement

of the cetaceans into the buffer or sanctuary area must not be

restricted in any way.

The intent of the proposed regulations, among other things, was to

provide for a sanctuary area that the program animals may choose to use

at any time. The buffer area was not intended to be used as an extra

sanctuary area. We consider it acceptable for the program animals to be

recalled from the buffer area. However, the cetaceans must have the

option of either returning to the interactive area or ignoring the

recall command, by staying in the buffer area or moving to the

sanctuary area. To emphasize that the animals are not to be recalled

from the sanctuary area during an interactive session, we are amending

Sec. 3.111(e)(6) as proposed (redesignated as paragraph (e)(7) in this

final rule) to provide, in part that each SWTD program must limit

interaction between cetaceans and humans so that the interaction does

not harm the cetaceans; does not remove the element of choice from the

cetaceans by actions such as, but not limited to, recalling the animal

from the sanctuary area; and does not elicit unsatisfactory,

undesirable, or unsafe responses from the cetaceans.

One commenter stated that the regulations should specify that

cetaceans that are ``resting'' should not be kept in isolation from

their conspecifics (members of the same species). Another commenter

recommended that facilities be required to have at least two cetaceans

resting at the same time.

It is the intent of the standards set forth in Sec. 3.109 of the

current regulations that no marine mammal be kept in isolation without

medical or compatibility justifications. Under the proposed rule, given

the restrictions on public interaction times and the requirement for

enclosure design and availability of all areas (interactive, buffer,

and sanctuary) to program animals at all times, it seems highly

unlikely that any active program animal will be kept in isolation from

conspecifics for other than justifiable medical reasons. Therefore, we

do not consider it necessary to make any changes to the final rule

based on these comments.

Two commenters recommended that the regulations include language

that states: ``Construction and configuration of the interactive,

buffer, and sanctuary areas should be similar in design and consistent

in location. Redesign or reconfiguration of these areas should not be

undertaken without prior authorization by the Administrator.'' The

commenters stated that such requirements would help ensure that

cetaceans would be equally comfortable in the sanctuary area and the

interactive area.

The proposed rule included the requirements that the buffer and

sanctuary area each offer at least as much space as the interactive

area, that movement be unrestricted, and that the animals not be

recalled from the sanctuary area during an interactive session. We

consider the revision to Sec. 3.111(a) in this final rule, discussed

above in response to concerns about space requirements, to adequately

address the issues raised by the commenters. We do not consider it

necessary to oversee enclosure changes that comply with the

regulations.

A number of commenters supported the proposed requirements for the

three areas and for their minimum size. Several commenters objected to

the requirement for a buffer area in an SWTD program. One commenter

stated that forcing an existing facility to divide one interactive area

into three areas may be impracticable, would result in a small area for

interaction, and would penalize those facilities that do not use food

to lure cetaceans. One commenter recommended that, in place of a buffer

zone, a 2:1 human participant-to-cetacean ratio be established, and

space requirements be based on the following calculations: Program

cetaceans would be provided with over half the available surface area

that is not within 2 meters of any swimming human (assuming that all

swimmers are maximally dispersed--i.e., not within 2 meters of each

other).

The intent of the buffer area is to allow the animals to leave the

interactive area, but still be recalled, as well as provide a buffer

zone from human contact during sessions. Because the rule requires the

interactive sessions to be controlled swims, the animals will be under

the direction of the trained personnel, and it will be up to the

behaviorists to determine if food or other reinforcement measures are

used to reward the animals.

With regard to calculating required space (surface area) as

recommended by the commenter in lieu of a buffer zone, we consider the

method recommended by the commenter to be unduly complicated, and

subject to the hypothetical placement of humans during a session. In

addition, no justification for or advantages of this proposed method

were offered. Therefore, we are making no changes to the final rule

based on this comment.

One commenter supported the concept of requiring a buffer zone

between the interactive area and the sanctuary area, but objected to

the requirement that it be the same size as the sanctuary area. The

commenter stated that, with the buffer zone and the sanctuary area

being the same size, two-thirds of the pool would be a cetaceans-only

area. Conversely, several other commenters stated that, although

captive cetaceans may swim away from human swimmers in designated

refuge areas, humans still remain in close proximity to them. To help

reduce the stress to cetaceans, the commenters

[[Page 47132]]

recommended that the buffer and sanctuary areas be at least three times

larger than the interactive area.

The need for three areas within the enclosure for SWTD cetaceans

has been discussed above, as has the rationale for requiring the areas

to be equivalent in size and acceptability to the cetaceans. Requiring

a sanctuary and buffer area to be at least three times the interactive

area would place an undue burden on the facilities, and would require

some existing programs to terminate sessions for lack of required

space. Further, no documented evidence of the necessity for such

expansive sanctuary or buffer areas has been presented to APHIS.

Therefore, we are making no changes to the final rule based on this

comment.

One commenter stated that, in addition to the three areas proposed,

each SWTD facility should have a fourth area for cetaceans that are

resting, to keep the cetaceans from the interactive area during their

resting period. The commenter recommended that the resting area have

the same minimum requirements as the other three areas, in case it is

used for cetacean retraining.

Because the sanctuary area will provide the cetaceans with an area

from which they cannot be recalled during an interactive session, we

consider a fourth area of equal proportion to be duplicative and to

place an unnecessary space burden on the facility, and are not

requiring such an area in this rule. There are more economical means

available at most facilities housing marine mammals (i.e., holding

pools, other enclosures, etc.) To handle animals that should not be

participating in a given session.

Swimmer-to-Cetacean and Swimmer to Attendant Ratios

In Sec. 3.111(e)(3) as proposed (redesignated in this final rule as

paragraph (e)(4)), we provided that neither the ratio of human

participants to cetaceans in an SWTD session, nor the ratio of human

participants to attendants, may exceed 3:1. In the explanatory

information to our proposal, we stated that these ratios were based on

permit requirements established by NMFS as part of its regulation of

SWTD programs.

A number of commenters opposed the proposed 3:1 ratio for both

swimmers to cetaceans and human participants to attendants. Several

commenters stated that the ratio of swimmers to cetaceans set forth in

the NMFS regulations was 2:1, and supported that ratio. Several

commenters recommended that the allowable ratio of swimmers to

cetaceans be 1:1. One of these commenters stated that at a 2:1 ratio,

high risk behaviors were observed during SWTD programs. Several

commenters stated that, if only controlled swims (discussed below) are

allowed, the maximum ratio of swimmers to cetaceans should be 4:1.

One commenter stated that NMFS did not specify a required human

participant-to-attendant ratio, but that under NMFS regulations, all

sessions had to be supervised by at least two attendants. One commenter

stated that there should be at least one attendant for each two

participating swimmers. Another commenter recommended no more than a

1:1 ratio for human participants to attendants in the water, attendants

in the water to cetaceans, and attendants in the water to human

participant-cetacean pairs.

We consider that the two 3:1 ratios proposed allow for adequate

supervision of SWTD sessions under normal circumstances, without

imposing an undue burden on SWTD facilities, and are, therefore, making

no changes to the final rule based on these comments. Although we

stated in the explanatory information of the proposed rule that the

proposal was based on pre-existing NMFS permit conditions for programs

prior to April 1994, we did not intend to imply that the precise permit

conditions were set forth in the proposed rule. We regret any confusion

the explanatory wording may have caused.

One commenter stated that, if cetaceans enter the buffer area or

the sanctuary area for an extended period of time, human participants

should be removed from the interactive area to maintain the allowable

human-to-cetacean ratio.

To achieve compliance with the required human participant-to-

cetacean ratio, a facility may need to address what measures would be

taken to assure that the maximum ratio will not be exceeded if a

cetacean leaves the interactive area. Although this contingency may

have been implied in the proposed rule, we believe there is merit in

including specific language in the final rule. The methods of complying

with the handling requirements are left to the discretion of the

facility. Therefore, we are amending Sec. 3.111(e)(7) (redesignated as

paragraph (e)(8) in this final rule), which specified the information

that an SWTD facility must provide in a description of the program, to

include the protocol for maintaining compliance with the required human

participant-to-cetacean ratio if an animal is removed from or leaves

the interactive and buffer area during an interactive session.

SWTD Personnel Requirements

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

requirements for personnel at an SWTD program. We proposed that each

program must have at least a licensee or manager, a primary

behaviorist, a supervising attendant, and an attending veterinarian,

and we described the minimum qualifications for each position. One

commenter recommended that the regulations require an SWTD program to

have at least one attendant for every two cetaceans. The commenter also

recommended that the supervising attendant should have at least 3 years

experience with SWTD programs and the operant conditioning of cetacean

in such programs.

The proposed rule required at least one attendant for every three

human participants in an interactive session. It also required at least

two attendants per session. Compliance with each of these requirements

would ensure that the commenter's recommended ratio of at least one

attendant per two cetaceans will be met and exceeded. Allowing only one

attendant per two cetaceans would mean that one attendant would need to

supervise two areas of activity and up to six humans. We do not

consider this to be in the best interests of safety for the animals or

the human participants. In light of the training and experience

requirements for other personnel, we do not consider it necessary to

require comparable training experience for the supervising attendant.

Therefore, we are making no changes to the final rule based on this

comment.

One commenter stated that because proposed Sec. 3.111(e)(5)

(redesignated as paragraph (e)(6) of this final rule) requires each

session to have at least two attendants, such a personnel requirement

should be included along with the other personnel requirements in

Sec. 3.111(c)(3).

Handling requirements are found in Sec. 3.111(e) as proposed. We

consider it appropriate to include with the handling requirements the

requirement that at least two attendants be present during an

interactive session. We do not consider it necessary or appropriate to

include that requirement in Sec. 3.111(c), cited by the commenter,

because that paragraph deals with personnel qualifications and overall

staff requirements.

One commenter stated that the regulations should require that the

supervising attendant have 3 years experience within the past 5 years.

Another commenter, while opposing the inclusion of specific personnel

[[Page 47133]]

qualifications in the regulations, recommended that, if qualifications

are included, they should include a recent time frame within which a

person must have had experience that qualifies them for a given

personnel designation. The commenter recommended that the following

personnel requirements be added to the regulations in place of those

proposed:

Experienced head trainer: 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. The

required experience must have been obtained within the last 10 years.

Experienced qualified trainer: At least one full-time staff member

with at least 3 years experience involving human/cetacean interactions.

The required experience must have been obtained within the last 5

years.

Attendants or employees: The experienced qualified trainer, in

consultation with the experienced head trainer and/or licensee or

manager, may designate other adequately trained attendants or employees

from the licensee's staff to conduct and monitor individual SWTD

program sessions consistent with the regulations.

Attending veterinarian: At least one staff or consulting

veterinarian who was graduated from an accredited college of veterinary

medicine and is licensed to practice veterinary medicine.

As proposed, Sec. 3.111(c), ``Employees and Attendants,'' sets

forth minimum experience requirements for SWTD personnel. We agree that

the names recommended by the commenter represent titles more consistent

with those used elsewhere in the industry, without affecting the intent

or implementation of this rule. For the purposes of this document, the

required positions will be referred to as licensee/manager, head

trainer/behaviorist, trainer/supervising attendant, attendant, and

attending veterinarian.

We agree that the key personnel position of head trainer/

behaviorist must be held by an individual knowledgeable of up-to-date

training and handling techniques and behavioral training theories. This

person will hold major responsibility for the training programs for the

animals and the implementation of the SWTD program, and will have

supervisory responsibilities over the other trainers and attendants.

This final rule will require that the 6 years of experience required of

the head trainer/behaviorist have been obtained within the previous 10

years. With this provision, we do not consider it necessary to specify

the time period for the experience for the licensee/manager, trainer/

supervising attendant, and attendants, as long as these personnel meet

the experience and training requirements set forth in this rule.

We agree that including a requirement for the training of the

attendants will serve to clarify the intent of the regulations, that of

providing adequately and appropriately trained staff participating in

interactive sessions and providing for the safety of the cetaceans and

the human participants within reasonably expected limits. Therefore, we

are adding such a requirement at Sec. 3.111(c)(4).

With respect to the criteria recommended by the commenter for the

attending veterinarian, the AWA is not intended to supersede any State

Board of Veterinary Medicine. While requiring that the attending

veterinarian be licensed to practice veterinary medicine is an

acceptable clarification of the requirements, and we are adding such a

clarification in this rule, most State licensing boards have provisions

for licensing foreign graduates and/or graduates from non-accredited

veterinary schools. We are, therefore, not including a requirement that

the attending veterinarian have been graduated from an accredited

college.

One commenter stated that, although proposed Sec. 3.111(c)(4) would

require the attending veterinarian at an SWTD facility to have had at

least the equivalent of 2 years' full-time experience with cetacean

medicine, the word ``equivalent'' is not defined. The commenter stated

that the lack of such a definition makes the regulatory requirement

virtually meaningless.

The requirement for ``at least the equivalent of 2 years full-time

experience with cetacean medicine within the past 10 years'' was

intended to mean that, although it is not required that the attending

veterinarian work as a full-time marine mammal veterinarian for at

least 2 years, he or she must have the equivalent in experience (at

least 4,160 hours of actual marine mammal medicine work). We are,

therefore, amending the definition of attending veterinarian to clarify

this intent.

In this final rule, we are amending Sec. 3.111(c) to require that

each SWTD program have, at the minimum, the following personnel, with

the following minimum backgrounds (each position must be held by a

separate individual, with a sufficient number of attendants to comply

with Sec. 3.111(e)(4)). We are also amending Sec. 3.111(c)(4) of this

final rule to clarify our intent concerning the training of attendants.

1. The licensee or manager must be at least one full-time staff

member, with at least 6 years experience in a professional or

managerial position dealing with captive cetaceans.

2. The head trainer/behaviorist must be at least one full-time

staff member with at least 6 years experience within the past 10 years

in training cetaceans for SWTD behaviors, or an equivalent amount of

experience involving in-water training of cetaceans, who serves as head

trainer for the SWTD program.

3. The trainer/supervising attendant must be at least one full-time

staff member with at least 3 years training and/or handling experience

involving human/cetacean interaction programs.

4. An adequate number of attendants at a facility must be

adequately trained in the care, behavior, and training of the program

animals. Attendants shall be designated by the trainer, in consultation

with the head trainer/behaviorist and licensee/manager to conduct and

monitor interactive sessions in accordance with Sec. 3.111(e).

5. The facility must have an attending veterinarian, who is at

least one staff or consultant veterinarian with at least the equivalent

of 2 years full-time experience (4,160 or more hours) with cetacean

medicine within the past 10 years, and who is licensed to practice

veterinary medicine.

One commenter recommended that the regulations require that the

experienced head trainer or experienced qualified trainer be on-site at

all times while in-water SWTD program sessions are in progress.

We do not consider this recommended change to be necessary. If

attendants are required to be adequately trained to conduct and monitor

an SWTD session, as discussed above, and all other handling and

personnel requirements are met, it should not be necessary to require

that specific additional personnel be present during the session.

One commenter stated that it was not clear from the proposal

whether only the facility personnel required by the regulations could

conduct an SWTD program, or whether it would be required merely that

one of the personnel be on-site during operation of all SWTD sessions.

The commenter recommended the latter. The commenter also recommended

that the regulations allow the manager and primary behaviorist to be

the same person.

The intent of the proposed rule was that only qualified personnel

could conduct the sessions. Given the

[[Page 47134]]

requirements discussed above, this will include adequately trained

attendants, as well as the designated trainers. It is not the intent of

the rule to specify the work schedule of individual facilities. No

evidence has been presented to support the need for all personnel to be

available during a session.

The intent of requiring the manager and the head trainer/

behaviorist to be separate people is to minimize the potential conflict

of interest between the business aspect of the facility and the welfare

of the animals. The designations and requirements were developed to

provide safeguards for the protection of the animals. Therefore, we are

making no changes to the requirement that these positions be kept

separate.

One commenter recommended that the regulations require that all

attendants have at least 3 years experience with SWTD programs. The

commenter recommended that, to promote this goal, an apprenticeship

program should be established that requires on-site supervision at all

times by a qualified attendant of any attendant who does not have the

required experience.

It is not within APHIS's jurisdiction to establish such an

apprenticeship program, nor to require participation in such a program.

Several commenters recommended that the background requirements for

supervising attendant under proposed Sec. 3.111(c) be made more

specific. One commenter stated that, overall, the proposed personnel

requirements contain only general background, experience, and exposure

elements. The commenter recommended that the regulations set forth

certified job descriptions; explicit skill, knowledge, education,

experience, and training levels; formal credential requirements; and

valid performance tests to demonstrate the hands-on abilities of

applicants.

We cannot tell from the comments what specific requirements the

commenters had in mind with regard to supervising attendants. As noted

above, we have amended proposed Sec. 3.111(c) to clarify our intent

regarding the background requirements for SWTD program personnel.

With regard to personnel requirements overall, we consider the

personnel requirements as set forth in this final rule to provide

adequate minimum standards for personnel engaged in SWTD programs. The

requirements for uniform job descriptions recommended by the commenter

could potentially impose an undue burden on the licensees.

One commenter stated that requirements for employees and attendants

should specifically require knowledge and experience in ``operant

conditioning'' of animals using positive reinforcement techniques.

At this time, we do not have sufficient supporting scientific

evidence to warrant requiring a given training system, and are not

including such a requirement in this final rule. The current animal

handling regulations, set forth at Sec. 2.131, already prohibit the use

of physical abuse, deprivation of food or water, and handling

techniques that cause behavioral distress, physical harm, or

unnecessary discomfort.

Several commenters stated that requirements for employees and

attendants already exist in the current regulations for marine mammals,

and that any updating of employee requirements should be incorporated

into those existing provisions. Another commenter stated that the

requirements for SWTD personnel should be the same ``performance-

based'' requirements as those under the general marine mammal

regulations in Sec. 3.108. The commenter also stated that having a

certain number of ``years of experience'' does not necessarily qualify

an individual for a position.

As indicated in the Supplementary Information section of the

proposed rule, we consider SWTD programs to require more specialized

regulations and standards than are set forth in the current regulations

regarding marine mammals, due to the intense interactive nature of

these programs. Although we agree that a person's ability can not

always be gauged by a given number of years of experience, we do

consider length of experience to be a measurable, minimum initial

standard.

Several commenters objected to the inclusion in the proposed rule

of minimum requirements for a licensee or manager. The commenters

stated that the definitions in 9 CFR 1.1 already contain a definition

of licensee, and one commenter stated that the proposed requirements

for an SWTD licensee or manager are unduly specific when compared to

the broad discretion given to research facilities in Sec. 2.32(a) of

the existing regulations.

We do not consider the regulations for research facilities, set

forth in Sec. 2.32(a), to be applicable to SWTD facilities. If the

requirements of Sec. 2.32(a) were applied to SWTD programs, it would

fall on the licensee or manager of the SWTD program to determine

whether he or she was qualified for the position. This would represent

a substantial conflict of interest. APHIS maintains its position that

SWTD programs require additional requirements, beyond those promulgated

to date for public display facilities, and that providing training and

experience requirements for all personnel directly responsible for the

well-being of the cetaceans is necessary to meet this objective. The

definition of licensee (Sec. 1.1) does not preclude the application of

additional training and experience requirements to specific subparts of

the regulations as necessary. Therefore, we are making no changes based

on these comments.

Restrictions on Cetacean Interaction Time

A number of commenters addressed the requirement set forth in

proposed Sec. 3.111(e)(1) that interaction time for each cetacean not

exceed 2 hours per day, and that each program cetacean have at least

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

public interaction. Several commenters stated that the interaction time

for each cetacean should not exceed 1 hour per day. One of these

commenters stated that the recommended 1 hour of interaction time

should be divided into two 30-minute sessions per day, with a rest

period of at least 2 hours between sessions. The other commenter stated

that, in addition to being limited to 1 hour of interaction time per

day, any cetacean exposed to human swimmers for 30 consecutive minutes

should have at least 4 subsequent uninterrupted hours to rest. Another

commenter stated that no animal should interact with more than 16 human

participants per week.

One commenter recommended that interactive time for each cetacean

be limited to no more than 2 hours per day, divided into no fewer than

4 interactive sessions of 30 minutes each, with at least 90 minutes

separating each of these sessions, even if any of the sessions do not

run a full 30 minutes. Another commenter stated that each cetacean

should average no more than four interactive encounters per day, with

no cetacean having more than six of these sessions per day. The

commenter recommended that the mean length of these sessions should be

no more than 15 minutes each, with none lasting more than 20 minutes.

We consider the minimum handling requirements regarding cetacean

interaction time in Sec. 3.111(e)(1) of this final rule, in combination

with other handling requirements in this final rule, as well as those

in the existing regulations, to be adequate to provide sufficient

safeguards to protect the well-being of the program animals. In

addition to the requirements of Sec. 3.111(e)(1), the other handling

[[Page 47135]]

requirements include (1) the general handling requirements of

Sec. 2.131 (handling may not cause, among other things, trauma,

behavioral stress, physical harm, or unnecessary discomfort); (2) the

handling requirements of Sec. 3.111(e)(6) (redesignated as paragraph

(e)(7) in this final rule) to allow the freedom of choice for

participation by the cetacean; and (3) Sec. 3.111(e)(7) (redesignated

as paragraph (e)(8) in this final rule), which requires the removal of

an animal from the session and/or termination of the session if

unsatisfactory behaviors occur.

Although we share the commenters' concern that adequate rest

periods be provided for SWTD cetaceans, we do not believe that evidence

has been presented indicating that the proposed interaction and rest

times are not sufficient to protect the health and well-being of the

animals. Without such evidence, further restriction of the interaction

times or the number of human participants a cetacean may interact with

would place an undue burden on the facility, by either requiring the

addition of animals to the program in order to maintain current

interaction levels, or forcing the facility to sustain a potentially

high economic burden in loss of income due to the increased

restrictions on interactive sessions. The requirements in this rule

pertaining to the enclosure areas, along with a prohibition on the

recall of any animal from the sanctuary area during a session, provide

each SWTD cetacean the option of avoiding interactive sessions.

Therefore, we are making no changes based on these comments.

One commenter opposed the proposed requirement that each program

cetacean have at least one period in each 24 hours of at least 10

continuous hours without public interaction. The commenter said that 10

hours of continuous rest would be on the extreme low side, and that the

commenter knew of no existing program that had less than 16 hours of

continuous rest.

Given the above restrictions on the number of hours of public

interaction for program animals (2 hours per day), the required minimum

of at least one 10-hour continuous rest period is, in fact, not the

only rest period that will be required for program animals. There is no

public interaction allowed for 22 of the 24 hours. Requiring at least

one of the rest periods to be at least 10 continuous hours does not

imply that the animals cannot be rested for longer periods. We see no

indication or reason for currently existing facilities to alter their

operations to lessen their established rest periods. By circumstance

(business hours), most, if not all, facilities will likely exceed the

10-hour rest period overnight. No compelling, scientifically validated

data or other material was supplied to support the above

recommendation. Therefore, we are not making any change to the final

rule based on this comment.

One commenter recommended that, in addition to 10 consecutive hours

of rest in each 24-hour period, each cetacean should have no less than

two full, nonconsecutive days of rest in each 7-day period, or no more

than 2 days of work followed by 1 day of rest. Another commenter stated

that each SWTD cetacean should have 3 full days off per week, and that,

therefore, according to the commenter, no animal should take part in

interactive sessions more than 4 hours a week.

The restrictions recommended by the commenters were not imposed

under the original NMFS permits for the ``experimental'' programs, and

no adverse affects attributed to overwork of animals were reported or

documented. No scientifically valid data or other material was supplied

to support the commenters' recommendations, and we are not aware of

such data or material. Therefore, we are making no changes based on

these comments.

One commenter recommended that the provisions regarding the number

of hours of cetacean participation per day, and the number of rest

hours per day, be more flexible. The commenter, an SWTD facility,

stated that it had sometimes altered its normal schedule of sessions

per day to accommodate bad weather or peak seasons, with no visible ill

effects on program cetaceans.

We are making no changes based on this comment. We consider the

provisions regarding the time limits for participation of cetaceans in

the interactive sessions to be the minimum requirements necessary for

the well-being of the animals affected.

One commenter requested that the regulations clarify that the 2-

hour restriction on sessions set forth in proposed Sec. 3.111 apply to

the actual swim time with the animal, and not to activities such as

introductory explanations by the staff.

The commenter's recommendation is consistent with the intent of the

regulation. To clarify this intent, we are amending Sec. 3.111(e)(1) in

this final rule to state that interaction time (which we describe as

designated interactive swim sessions) for each cetacean shall not

exceed 2 hours per day.

One commenter stated that time constraints for human/cetacean

interaction should either be established for all marine mammals or for

none. The commenter stated that activities such as training and feeding

currently require more than 2 hours at a time throughout the day, with

no negative effects to either animals or humans.

The intent of the proposed rule was to provide regulations and

standards for SWTD programs, not for all marine mammals. Program

animals are, like their non-SWTD counterparts, subject to the training

and handling necessary for marine mammal care and well-being. However,

the SWTD programs place additional interactive time commitments on the

animals. It is this additional interactive activity that this rule is

designed to regulate. Therefore, we are making no changes based on this

comment.

Training and Behavior of Cetaceans

Proposed Sec. 3.111(e)(2) provided that all cetaceans 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. One commenter stated that

the term ``appropriate behavior'' was open to broad interpretation and

should be precisely defined. One commenter stated that the regulations

should specify that, before being used in an SWTD program, cetaceans

must be well-trained for ``stationing,'' as well as for immediate

``recall'' under a wide variety of circumstances. Several commenters

recommended that ``gate-training'' of cetaceans be specifically

required.

Several commenters recommended a specified minimum period of

training for cetaceans before participation in SWTD programs, ranging

from 6 months to 1 year. Several other commenters recommended that,

before being used in an SWTD program, cetaceans should have to

demonstrate competency for a variety of husbandry/medical behaviors

that would be useful for veterinary examinations without inducing

excessive stress to cetaceans. One commenter stated that the proposed

regulations did not define ``adequately trained,'' and that such an

omission would give too much leeway to operators.

We are not making any changes to the final rule regarding the

training of program animals. However, in this final rule,

Sec. 3.111(e)(7) and (e)(8) (paragraphs (e)(6) and (e)(7) in our

proposed rule) are reworded to clarify our intent regarding what

constitutes ``inappropriate'' behavior. We are adding the terms

unsatisfactory, undesirable, or unsafe to describe such

[[Page 47136]]

behavior. An exhaustive list of ``appropriate'' behavior would vary in

different situations, depending on the facility and program design, and

not all behaviors will be necessary in all situations. Such a list is

variable, depending on the facility and program design.

Under the requirements set forth in Sec. 3.111(g), semi-annual

medical examinations of program animals by the attending veterinarian

are required. In order to comply with this requirement, and at the same

time meet the general requirement of Sec. 2.131 that handling be

conducted so as to minimize stress to the animals, it will be necessary

for facilities (management, trainers, and attending veterinarian) to

establish a workable veterinary/husbandry protocol that minimizes

stress on program animals. This will likely include trained husbandry

and veterinary behaviors, but other methods may be developed as well.

Innate animal characteristics, trainability, and temperament, as

well as training techniques, training schedule, and prior trained

behaviors, will all influence the length of time needed to train an

animal to participate safely in an SWTD program. It would not be

practical to impose a specific time limit on the training of a program

animal. The regulations in Sec. 3.111(f) as proposed required, among

other things, that prospective SWTD programs provide APHIS with a

description of the training each animal has undergone or will undergo

prior to participation in the program. One commenter requested that we

require this description to include the number of hours of training for

each animal and its responsiveness to the training.

We intended the number of hours of training to be included in the

description of training. To clarify this intent, we are requiring at

Sec. 3.111(f)(1)(v) of this final rule ``a description of the training,

including actual or expected number of hours, each cetacean has

undergone or will undergo prior to participation in the program.'' This

requirement will give APHIS an overview of each facility's training

program. We do not consider a mere description of the animal's

responsiveness to training necessary to improve the animal's well-being

and are not adding such a requirement to the regulations.

One commenter recommended that cetaceans being trained undergo no

greater exposure to humans during each 24-hour period than that allowed

for cetaceans already participating in a program.

The proposed rule did not limit cetacean/trainer interaction time,

only public interaction time during designated SWTD sessions. It is not

the intent of this rule to restrict cetacean/trainer interactions,

which are necessary to maintain desirable behaviors, and we are making

no changes based on this comment.

Positioning of Attendants

Under the handling requirements proposed at Sec. 3.111(e)(5)

(redesignated as paragraph (e)(6) in this final rule), we set forth the

requirement that all interactive sessions must have at least two

attendants. We proposed further that at least one of the attendants

must be positioned in the water, except in cases where at least one

attendant is positioned so as to be able to intervene in the session as

quickly as if positioned in the water. We proposed, however, that, if a

program has had more than two incidents during interactive sessions

that have been dangerous or harmful to either a cetacean or a human, at

least one attendant must be positioned in the water.

Several commenters opposed the requirement that one attendant be

positioned in the water, stating that each attendant would have a

better view and be able to respond better if positioned out of the

water. Further, the commenters stated that an attendant positioned in

the water may distract SWTD cetaceans, and, additionally, might have to

continuously tread water at facilities where there is no shoreline or

shallow water. Conversely, several commenters stated that there should

be no exceptions to the requirement that one attendant be positioned in

the water during SWTD sessions. One of these commenters stated that

requiring an attendant in the water if there have been more than two

dangerous incidents implies that it is safer to do so; therefore, an

attendant should be required in the water at all times. Another

commenter recommended that the regulations require that one staff

member be positioned in the water within 5 feet of each human

participant/cetacean pair, and that one attendant be positioned pool

side for every two human participant/cetacean pairs.

The proposed provisions regarding how many, if any, attendants need

to be in the water were based on the premise that an attendant in the

water could observe more easily and react more quickly to a situation

where either a cetacean or a human was behaving in a potentially

harmful way. The proposed provision that an attendant be required to be

in the water at a facility where two or more incidents harmful to a

cetacean or human have taken place, but not necessarily at other

facilities, was predicated on the premise that, at a facility where

such incidents do not take place, the attendants are adequately

positioned out of the water to forestall any such incidents.

We consider the commenters' observations that attendants not

positioned in the water have a better view overall, and that an in-

water attendant recognized by the cetaceans may be distracting to the

cetaceans, to be valid ones, and are addressing the commenters'

concerns by revising the final rule as set forth in the following

paragraph.

Additionally, we can see why the dual standard we proposed with

regard to positioning of attendants might be confusing to readers. In

the proposed rule, no limit on the time period during which the two

incidents may have occurred was defined. As proposed, the rule would

cover the lifetime of the facility. This does not seem reasonable, and

it was not the intent of the proposed rule to impose such a

restriction. Therefore, we are including in this final rule a 1-year

time frame regarding the two incidents that have been dangerous or

harmful to either a cetacean or a human. As modified, Sec. 3.111(e)(6)

will provide that all interactive sessions must have at least two

attendants. At least one attendant must be positioned out of the water.

One or more attendants may be positioned in the water. If a facility

has more than two incidents during interactive sessions within a year's

time span that have been dangerous or harmful to either a cetacean or a

human, APHIS, in consultation with the head trainer/behaviorist, will

determine if changes in attendant positions are needed.

With regard to the commenter's recommendation that one attendant be

required to be in the water for each human participant/cetacean pair,

Sec. 3.111(e)(4) of this final rule addresses the minimum number of

attendants required for each interactive session by requiring that the

ratio of human participants to attendants not exceed 3:1. We consider

this requirement to provide an adequate number of attendants and are

making no changes to the ratio.

Dangerous or Harmful Incidents

One commenter recommended that any SWTD program that experiences

two or more dangerous or harmful incidents in any 6-month period should

be forced to close permanently. Another commenter stated that if a

program experiences more than two dangerous incidents, interactive

sessions should be

[[Page 47137]]

suspended until APHIS has reexamined the program.

Formal disciplinary proceedings initiated by APHIS are subject to

the AWA and the Administrative Procedure Act's statutory due process

requirements. The AWA currently allows the Secretary to impose a 21-day

summary license suspension, and any additional license suspension,

revocation, or civil penalty can only be imposed after notice and an

opportunity for a hearing. If a dangerous or harmful incident occurs at

an SWTD facility, APHIS will determine if noncompliance with the

regulations contributed to or was responsible for the incident. If such

a finding is made, appropriate enforcement action will be taken. This

may include letters of warning, stipulations, license suspensions,

license revocations, or civil penalties. Due process will be afforded

by APHIS to each respondent. Therefore, we are making no changes to the

final rule based on these comments.

Space Requirements

In Sec. 3.111(a) of our proposed rule, we proposed requirements for

the amount of space that must be provided to cetaceans in SWTD

programs. A number of commenters addressed those provisions. One

commenter stated the current space requirements for marine mammals in

subpart E of the regulations should be expanded, which the commenter

stated would eliminate the need to establish space requirements unique

to SWTD programs. Several commenters said the SWTD calculations should

be extended to all facilities, not just SWTD facilities.

We are in the process of reviewing and considering revisions to the

current space requirements for marine mammals, as set forth in

Sec. 3.104, and consider it beyond the scope of this rulemaking to

address the general space requirements here.

One commenter stated that, even though the proposed space

provisions for SWTD cetaceans exceed those in the current regulations,

the increases are so marginal as to be inconsequential. The commenter

stated that the regulations should promote what the commenter termed

one of the primary principles of captive animal containment--i.e.,

``space to move in any direction that is normal to the species without

being unduly cramped or confined.'' One commenter stated that the

minimum surface area requirement and the minimum volume requirement for

each animal in the interactive area should be tripled.

We do not agree that the proposed increases in space requirements

for SWTD cetaceans are ``marginal.'' For example, under current

Sec. 3.104, the minimum horizontal dimension (MHD) for Tursiops

truncatus is 24 feet; the proposed SWTD MHD was 81 feet (an increase of

over 300 percent). Likewise, the proposed depth requirement is 50

percent greater than that found in Sec. 3.104. The surface area

requirement in the proposed rule was 572.26 ft2 for each

area, compared with 95.38 ft2 for nonprogram animals under

Sec. 3.104. We consider the proposed space requirements for SWTD

programs to be sufficient to allow the animals to move freely in all

three dimensions. Therefore, we are making no changes to the final rule

based on these comments.

Several commenters stated that the regulations should include

language to make clear that the proposed space requirements relate only

to marine mammals designated for SWTD programs, and that standards for

other marine mammals are contained elsewhere in the regulations.

We consider our intent to apply the provisions of this rule to SWTD

animals to be clearly stated in the provisions as written, and are

making no changes based on the comment.

One commenter stated that the regulations should specify that the

space requirements promulgated for SWTD cetaceans shall be calculated

on the basis of the maximum number of SWTD cetaceans participating per

session within each primary enclosure for SWTD programs.

As written, the space requirements for an SWTD enclosure are to be

calculated based on the number of animals in the enclosure (sanctuary,

buffer, and interactive areas). We do not consider it necessary to

revise the wording as proposed.

A number of commenters addressing the proposed space requirements

for SWTD programs submitted specific recommended calculations. Several

commenters stated that the minimum horizontal dimension should be 10 to

12 times the average Tursiops truncatus adult body length.

The commenters did not support their recommendations with

scientific justification or other evidence. We believe that

implementing the standards recommended by the commenters would place an

undue economic burden on each licensee, perhaps unnecessarily forcing

most, if not all, operations out of business, due either to the cost of

expansion or to the inability to obtain the space needed for such

expansion. In the absence of evidence that the recommended standards

are necessary, we are making no changes to the final rule based on

these comments.

Several commenters recommended that the proposed minimum horizontal

dimension (MHD) for each of the three areas in SWTD programs should be

increased to take into account additional space for each human

participant in the water. Several commenters recommended adding 67

inches to the MHD for each person in the water; another commenter

recommended adding 7-8 feet for each swimmer. Several commenters

recommended that the minimum surface area for one cetacean plus

swimmers be based on the following formula:

[GRAPHIC] [TIFF OMITTED] TR04SE98.020

\*\ Assuming a swimmer-to-cetacean ratio of 2:1.

Commenters also recommended that, at a minimum, the surface area

formula for each additional cetacean in excess of one should be:

[GRAPHIC] [TIFF OMITTED] TR04SE98.021

[[Page 47138]]

Because the interactive session time per animal is restricted to 2

hours per day (approximately 8 percent of the time), and the public

interaction is restricted to the interactive area, we do not consider

it practical or necessary to increase the space requirements for the

interactive area or the entire enclosure.

One commenter recommended adding an additional shallow section of

at least 8' x 12' to accommodate participants who are only wading.

Each SWTD program has the choice to provide certain interactive

facilities. It is beyond the scope of APHIS authority to require a

facility to allow wading. Space requirements for interactive areas with

wading sections are discussed below.

In our proposed rule, we proposed to require a minimum average

depth of 9 feet in each of the three SWTD areas. Several commenters

said that the minimum average depth for each area should be 3 to 4

times the length of the average cetacean.

At this time, we consider the 9-feet average depth requirement to

provide sufficient space for the average cetacean that is currently

being used in SWTD programs. This requirement will enable the average

cetacean currently being used in SWTD programs to pass under or around

the average human participant in the water. Therefore, we are making no

changes based on this comment. APHIS will, however, closely monitor

this issue to ensure that cetaceans used in SWTD programs are provided

adequate space. If the need for any modifications to the average depth

requirement or any other requirement becomes necessary in the future,

APHIS will address such modifications in a subsequent rulemaking.

One commenter stated that basing required depth on an average

minimum of 9 feet is not sufficient, given that mean low tides of open

ocean facilities can differ dramatically from, and be significantly

less than, their average depth. The commenter said that because

sufficient depth is necessary to accommodate inter-specific (cetacean-

with-cetacean) interactions, the regulations should include a mean low

depth requirement of more than 9 feet.

In natural seawater (sea pen) facilities, the depth requirements in

Sec. 3.104 and Sec. 3.111(a)(3) mean that the water depth at low tide

must meet or exceed the minimum depth required by each regulatory

section. The use of the term ``average depth'' in Sec. 3.111(a)(3)

means that the area depth profile must average at least 9 feet (at low

tide). We recognize that not all programs will advocate or require all

public participants to be fully immersed in the water and actually swim

with the cetaceans. Some facilities will provide the opportunity for

wading with the animals or interacting with the animals from a dock or

similar structure. Wading areas, obviously, would not be 9 feet in

depth. Including such areas in space requirement calculations would

likely require other parts of the enclosure to have areas significantly

deeper that 9 feet. This was not the intent of the rule. Consistent

with our enforcement of general space requirements for marine mammals

in the current regulations (Sec. 3.104), only those areas that are used

in calculating the average depth may be used in calculating whether the

area meets the minimum requirements for MHD, surface area, and volume--

i.e., other sections may be shallower, and not be included in

determining the average depth of the entire area, but may not

contribute to meeting other minimum space requirements.

To clarify our intent with regard to calculating the average depth

of an interactive area, we are revising Sec. 3.111(a)(3) to provide

that although the average depth for each of the enclosure's areas at

low tide must be at least 9 feet, a portion of each area (e.g., wading

areas) may be excluded when calculating the average depth. However, the

excluded portion may not be used in calculating whether the area meets

the minimum requirements for MHD, surface area, and volume. In

addition, proposed Sec. 3.111(a)(3) contained an inadvertent oversight

of depth requirements for non-ocean pen enclosures. Therefore, in this

final rule, Sec. 3.111(a)(3) requires that all pools not subject to

tidal action shall have an average depth of at least 9 feet.

One commenter stated that one-on-one patient therapy sessions

require much less space than other types of interactions.

The space required for an interactive session was not the basis for

the space requirements. Rather, the space requirements were developed

to provide as stress-free an environment as possible for SWTD animals

involved in these types of programs. Interactions with members of the

public are the same, whether general open sessions or therapy sessions.

Water Clarity

In Sec. 3.111(b) of our proposal, we proposed that sufficient water

clarity must be maintained so that attendants are able to observe

cetaceans and humans at all times while within the interactive area. We

proposed that if the water clarity does not allow these observations,

the interactive sessions must be canceled until the required clarity is

provided.

The introductory heading to proposed Sec. 3.111(b) read ``Water

quality.'' One commenter stated that the heading was a misnomer,

because proposed Sec. 3.111(b) was concerned only with ``in-water

visibility'' in the interactive area.

We agree that the heading to the paragraph in question could be

confusing. To clarify our intent, we are revising the heading of

Sec. 3.111(b) as proposed to read ``Water clarity.''

One commenter, while supporting the proposed water clarity

provisions, stated that the regulations should require some quantified

degree of clarity that makes proprietors totally accountable in the

event of any harm to animals or people. Another commenter recommended

that the regulations provide that, at facilities with reduced water

clarity, swimmers be required to remain at the surface and cetaceans be

maintained under direct trainer control.

We are making no changes based on these comments. There exists no

recognized or generally accepted quantitative marker of acceptable

water clarity. Establishing a quantitative requirement for acceptable

water clarity would place an increased recordkeeping and reporting

burden on the facility, without recognizable benefit to the animals. If

attendants can see the animals and human participants in the session,

the water clarity is sufficient. The intent of provisions regarding

water clarity is to ensure that attendants maintain visual contact with

all session participants. If this is not possible, the session must be

terminated. This rule already requires the cetaceans to be under the

direct control of the attendants.

Several commenters stated that the same water quality standards

should be applied to the sanctuary and buffer areas as are applied to

the interactive area. One commenter stated that the existing water

quality criteria under Sec. 3.106 (for indoor and outdoor facilities)

should be applied to SWTD programs. One commenter, who recommended that

the regulations allow only controlled swims (discussed below), said

that if all SWTD swims are controlled, it would be necessary to observe

SWTD program cetaceans only when in direct contact with participating

humans in the interactive area. The commenter stated that proposed

Sec. 3.111(b) should therefore either be removed or be revised to

reflect the need for limited observation of the cetaceans.

Because SWTD attendants are unlikely to know exactly where program

cetaceans and swimmers will move in the interactive area, it is not

feasible to provide for only limited application to

[[Page 47139]]

the water clarity standards in that area. The same degree of clarity,

however, will not always be necessary in the buffer and sanctuary

areas. The introductory text to Sec. 3.111 as proposed specified that

SWTD programs must comply with both the provisions of Sec. 3.111 and

with all other requirements of subpart E pertaining to cetaceans. This

includes all water quality requirements found in Sec. 3.106. Under

Sec. 3.106(a), the primary enclosure may not contain water that would

be detrimental to the health of the marine mammals contained in the

enclosure. We consider the wording of Secs. 3.106 and 3.111(b) adequate

and necessary to provide the water quality and clarity needed for the

health of the animals and the safe conduct of SWTD sessions, and are

making no changes based on these comments.

One commenter stated that consideration should be given to

broadening the required water quality testing to ensure adequate

cetacean and human health. The commenter stated that existing standards

assume that natural seawater pens do not have the potential for water

quality problems except for coliform bacteria.

All general water quality parameters, including any special

requirements for natural seawater facilities, will be addressed in a

proposed revision of subpart E, currently under development, and are

beyond the scope of this rule.

Instructions to the Public

Several commenters specifically supported the proposed provision in

Sec. 3.111(e)(4) (redesignated as paragraph (e)(5) in this final rule)

that, prior to participating in an SWTD interactive session, members of

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

session, and that members of the public must agree, in writing, to

abide by the rules and instructions. However, the commenters each

recommended that the regulations also require that the rules and

instructions be presented orally.

Those SWTD programs that are currently operating hold oral

orientation sessions prior to the interactive session. APHIS supports

this practice, and considers it appropriate to include such a

requirement in the regulations. Therefore, we are adding language at

the introduction to Sec. 3.111(e)(5) of this final rule to require that

prior to participating in an SWTD interaction session, members of the

public be provided with oral and written rules and instructions for the

session.

Several commenters recommended that customers be informed of the

potential risk of injury or disease transmission, and be warned that,

except for staff or program negligence, they participate at their own

risk.

There is no documented evidence of any significant zoonotic

(disease transmission between cetaceans and humans) risk to date, and

we do not consider it appropriate to require that the public be

provided with undocumented information. Therefore, we are making no

change in response to these comments.

Controlled Sessions

A number of commenters recommended that all SWTD interactive

sessions be required to be ``controlled.'' One commenter requested that

APHIS acknowledge a 1994 report to NMFS by Amy Samuels, which the

commenter stated concluded that controlled SWTD sessions do not pose

any significant risk to cetacean or human participants. Several

commenters suggested definitions of ``controlled swim.'' Central to

each definition was the provision that professional animal trainers or

attendants must directly control each human/cetacean interaction. One

commenter requested that the regulations include an outline of a

typical or anticipated interactive session that demonstrates the

trainers' method and degree of control over interactions.

We do not consider it necessary or appropriate to include in the

regulations an outline of a typical interactive session. Such an

outline could be unnecessarily restrictive and potentially inaccurate,

since each facility is allowed to develop its own program within the

framework of this rule. However, the intent of the proposed rule was to

require head trainer/behaviorist, trainer/supervising attendant, or

attendant control of the SWTD interactive sessions. We are amending

Sec. 3.111(e)(2) as proposed to clarify this intent, adding the

provision that the head trainer/behaviorist, trainer/supervising

attendant, or attendant must at all times control the nature and extent

of the cetacean interaction with the public during a session, using the

trained responses of the program animal.

Inappropriate Behavior

Proposed Sec. 3.111(e)(6) (redesignated as paragraph (e)(7) in this

final rule) provided that each SWTD program must limit interaction

between cetaceans and humans so that the interaction does not harm the

cetaceans, does not remove the element of choice from cetaceans, and

does not elicit undesirable responses from cetaceans.

Several commenters requested that the regulations include

definitions of ``harm'' and ``undesirable responses.'' Another

commenter stated that ``harm'' should include, among other things, any

action causing the cetaceans to flee, flinch, spontaneously breach, or

exhibit other abrupt behavior.

We are making no changes based on these comments. The definitions

set forth in Sec. 1.1 of the regulations apply to all sections of the

regulations. Because the term ``harm'' is already used throughout the

regulations and standards, it is beyond the scope of this regulatory

action to develop a definition that would apply to all regulated

entities and species. The use of the term ``harm'' in Sec. 3.111 is

consistent with use of this term throughout the rest of the

regulations. The term ``undesirable behaviors'' is discussed later in

this document. As with the term ``harm,'' because of the number of

different animals and activities regulated under the AWA, and the fact

that definitions set forth in Sec. 1.1 apply throughout the

regulations, we consider it more practicable to address the term

``undesirable behavior'' in the provisions relating to SWTD programs

than to include a definition of the term in the definitions sections.

As previously noted, Sec. 3.111(e)(7) and (e)(8) of this final rule

clarify what constitutes inappropriate behavior. We are using the terms

unsatisfactory, undesirable, or unsafe to describe such behavior.

Proposed Sec. 3.111(e)(6) also provided that SWTD programs must

prohibit grasping or holding of the cetacean's body, unless under the

direct and explicit instruction of an attendant eliciting a specific

cetacean behavior. A small number of commenters addressed this proposed

provision as it would apply to ``dorsal towing.'' One commenter opposed

any ban on dorsal towing. Another cited studies that the commenter said

indicated some cetaceans actually seek certain types of SWTD

interactions. The commenter also cited the study commissioned by NMFS

that the commenter said indicated dorsal towing is not associated with

any type of problematic cetacean-swimmer interaction. One commenter

stated the proposed regulations seemed to imply that the decision

whether to allow dorsal towing would be left to each facility. The

commenter expressed concern that this would give an economic advantage

to facilities that allow such towing.

The language used in proposed Sec. 3.111(e)(6) concerning the

grasping or holding of any cetacean body part unless under the direct

and explicit instruction of the attendant eliciting a specific cetacean

behavior was intended to apply to activities such as, but not

[[Page 47140]]

limited to, dorsal towing. As indicated in one of the comments, dorsal

towing, in and of itself, is not specifically associated with

problematic interactive behaviors. However, we consider the

restrictions of proposed Sec. 3.111(e)(6) necessary to protect other

sensitive body areas on the cetacean, such as the blowhole and the

eyes. The behaviors elicited during an interactive session are

determined by the head trainer and management, and are reviewed by

APHIS under Sec. 3.111(f). With regard to any economic advantage that

might be gained from allowing dorsal towing, data available to us

regarding current SWTD programs does not indicate a disparity between

programs that allow dorsal towing and those that prohibit it.

One commenter stated that because touching of cetaceans in

sensitive places has been associated with triggering antagonistic

cetacean behavior, human participants who restrain, pull, or grab at

cetaceans should immediately be removed from the swim session and not

permitted to return. Another commenter stated that the following

behaviors by human participants should be considered high-risk:

Hitting, chasing, flinching or screaming, slapping of water, grabbing,

and a rapid or abrupt approach.

The proposed rule did not include an exhaustive list of specific

``high-risk'' behaviors by human participants, and we do not consider

it appropriate to include such a list in this final rule. Each facility

will develop its own list of instructions and rules, which must be

submitted to APHIS for review. Grasping or holding the cetacean's body

(this would include grabbing, restraining, or pulling, etc.) is

prohibited under Sec. 3.111(e)(7). As such, it must appear in the

written and oral rules presented to the public. In Sec. 3.111,

paragraph (e)(5) requires anyone who violates these rules to be removed

by the facility from the session.

Proposed Sec. 3.111(e)(7) (redesignated as paragraph (e)(8) in this

final rule) provided that, in cases where cetaceans used in an

interactive session exhibit unsatisfactory behaviors, such as charging,

biting, mouthing, or sexual contact with humans, either those cetaceans

must be removed from the interactive area or the session must be

terminated. The regulations as proposed also provided that written

criteria must be developed and submitted to APHIS regarding conditions

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

cetacean is not possible.

A number of commenters addressed these proposed provisions. One

commenter requested that the regulations include definitions of

behavior that is ``inappropriate, undesirable, unsatisfactory, or

harmful'' for participating cetaceans and swimmers. Where we proposed

to provide examples of undesirable behavior by saying ``such as

charging, biting, mouthing, or sexual contact with humans,'' several

commenters stated that the ``such as'' should be replaced by

``including but not limited to.''

We do not consider it practicable or appropriate to provide an

exhaustive list of all exhibited behaviors that might be

unsatisfactory, undesirable, or unsafe during an interactive session.

Each situation or set of circumstances is unique, and the array of

cetacean behaviors is extensive. To clarify that the list of behaviors

included in Sec. 3.111(e)(8) of this final rule is not exhaustive, we

are adopting the commenter's recommendation to preface the examples

provided with the words ``including, but not limited to.'' In addition,

we are amending Sec. 3.111(e) (7) and (8) to include the words

``unsatisfactory,'' ``undesirable,'' or ``unsafe'' to describe such

types of behaviors. In the absence of a specific regulatory definition,

terms used are considered to have their common meaning in ordinary

usage.

Several commenters considered the list of examples of undesirable

behaviors to be imprecise and over-inclusive. One commenter stated that

``charging'' and ``mouthing'' should be considered unsatisfactory only

if done in a manner deemed unsatisfactory in the judgment of the

trainers present. One commenter stated that the regulations should

distinguish between aggressive mouthing and gentle mouthing, the latter

of which the commenter said may be an attempt by a cetacean to be

affectionate toward a human swimmer. Another commenter stated that

rubbing up against humans by the animals that is not of a sexual nature

should be allowed to continue.

Although it is possible that, in some circumstances, mouthing may

not be an inappropriate behavior during an interactive session,

charging cannot be considered innocuous at any time. For the safety of

the humans, and to decrease the risk of retaliatory behavior in the

event the human participant provokes the cetacean through responses to

these behaviors, these types of behaviors will not be tolerated during

an interactive session. Therefore, we are making no further changes to

Sec. 3.111(e)(8) of this final rule, other than those changes discussed

above. Several commenters recommended expansion of the list of what we

would consider ``undesirable behavior'' on the part of cetaceans to

include behaviors likely to result in harm to a swimmer or indicative

of risk to a cetacean. The commenter suggested such things as biting,

hitting, ramming, body-slams, forceful pushing, chasing, open-mouth

threats, head-jerk threats, jaw clap threats, fleeing, flinching,

mounting, thrusting, genital insertion, erection, repetitive genital

rubbing, beak-to-genital propulsion, abrupt turning or circling, quick

approaches, leaping, and breaching. One commenter suggested that we

additionally include ``porpoising'' and ``slapping water.''

As stated above, we do not consider it necessary to amend the

proposed language other than as noted. The list of ``undesirable

behaviors'' recommended by the commenters is very specific and includes

behaviors (such as leaping, breaching, and circling) that, when

exhibited under the direction of the trainer/attendant, may not be

inappropriate.

One commenter stated that swimmers should be notified of what

undesirable behavior on the part of cetaceans is, in case the attendant

fails to observe it. Another commenter stated that swimmers should be

warned that cetaceans can be aggressive and dangerous, and be

instructed to call the local APHIS office if they are injured in an

interactive program.

Although we recognize the commenter's rationale for informing the

SWTD participants what constitutes undesirable behavior, such a list is

extensive, and can be greatly influenced by circumstances. We consider

it adequate to include in the pre-encounter instructions the

appropriate rules and instructions, as well as restrictions on types of

physical contact with the cetaceans (as set forth in

Sec. 3.111(f)(1)(iii) of this rule).

We agree that it would be helpful for participants to know how to

contact an APHIS office in the case of injuries or complaints, and are

adding such information to Sec. 3.111(e)(5) of this final rule. To help

ensure that the public knows whom to contact in case of injury,

Sec. 3.111(e)(5) of this final rule will require that the oral and

written information provided to human participants include telephone

and FAX numbers for APHIS, Animal Care, for reporting injuries or

complaints.

Several commenters recommended that the regulations require removal

of the participating humans, rather than the cetaceans, in cases where

cetaceans exhibit unsatisfactory behaviors. One commenter stated that

the return of swimmers to the water should be dependent on the decision

of the primary behaviorist. Several commenters recommended the removal

[[Page 47141]]

of both the human participant and the cetacean in such situations. Two

commenters stated that, when removing cetaceans or swimmers, it will be

necessary to maintain the swimmer/cetacean ratio at the allowable

level.

Under Sec. 3.111(e)(8) of this final rule, the facility must

develop, and submit to APHIS for approval, written criteria that

address termination and resumption of a session. As noted above, if an

incident is the fault of the human participant not adhering to the

rules, under Sec. 3.111(e)(5)of this final rule, that participant must

be removed. In all cases, the human participant/cetacean ratio

specified in Sec. 3.111(e)(4) of this final rule must be observed,

which may require removing public members from the session if a

cetacean is removed. We consider the language of this final rule to be

sufficient to cover these issues. If the cetacean cannot be removed

from the interactive area, Sec. 3.111(e)(8) of this final rule requires

that the session be terminated.

One commenter stated that mildly aggressive behavior merely

demonstrates momentary annoyance on the part of the cetacean, and that

extremely aggressive behavior by cetaceans is very rare and occurs only

when the human is acting aggressively. The commenter recommended that

if a cetacean is repeatedly severely aggressive, or is observed to be

severely aggressive without provocation, that animal should be removed

from the SWTD program and be returned only at the discretion of the

primary attendant. One commenter recommended that cetaceans exhibiting

aggressive behavior be removed from the program for at least 24 hours,

and also recommended that the conditions under which the animals could

be returned be specified in the regulations. Some commenters stated

generally that provision should be made for reintroducing the cetaceans

to an SWTD program after they are retrained. Several commenters stated

that the regulations should require the submission of plans for either

retraining and reintroducing the cetaceans to an SWTD program, or

transferring the animals to a standard public display facility.

In Sec. 3.111(e)(7) as proposed (redesignated as paragraph (e)(8)

in this final rule), we set forth the requirement for a written

protocol addressing program animals that exhibit potentially unsafe

behaviors, as well as a protocol for ending a session when an animal

exhibiting unsatisfactory behaviors cannot be removed from the

interactive area. In order to clarify our intent with regard to the

issues raised by the commenters, we are adding language to

Sec. 3.111(e)(8) of this final rule to require that the written

protocol address how animals exhibiting potential unsatisfactory,

undesirable, or unsafe behaviors will be handled, including, but not

limited to, such things as retraining protocols, time off from program,

and what the facility will do with animals that can no longer

participate safely in the program.

Several commenters recommended that, in addition to being removed

from an SWTD session, cetaceans exhibiting undesirable behavior should

be permanently banned from SWTD programs and be set free after

successfully completing a readaption and release program.

We believe that this final rule provides safeguards on animals that

exhibit inappropriate behavior. We are making no changes based on these

comments. It is not within the jurisdiction or authority of APHIS to

require that animals not usable in an SWTD session be released into the

wild.

One commenter recommended that APHIS consult with the professional

marine mammal trainer community to determine the following: (1)

Conditions under which cetaceans must be permanently removed from SWTD

programs; (2) conditions under which cetaceans must be removed

temporarily from SWTD programs for retraining; (3) what form retraining

will take; and (4) what housing conditions and social environments are

appropriate for cetaceans removed temporarily or long-term from SWTD

programs.

Because the regulations in this final rule require the facility to

develop a plan and submit it to APHIS for the handling of problem

animals in the SWTD program, we do not consider it necessary to consult

with the International Marine Animal Trainer's Association or a similar

organization at this time. If a concern arises regarding a specific

protocol submitted, APHIS will determine the acceptability of the

protocol.

One commenter stated that criteria for termination of a session

should be developed by APHIS, not by the SWTD facility, and that the

decision whether to implement the termination procedures should be left

to the behaviorist or supervising attendant. Conversely, one commenter

stated that protocols for removing cetaceans or terminating sessions

should not have to be submitted to APHIS, but rather, should be

developed by and be maintained at the facility for review upon request.

We consider the language in Sec. 3.111(e)(8) of this final rule

regarding unsatisfactory, undesirable, or unsafe cetacean behavior,

discussed above, to provide for the necessary APHIS oversight on the

issue of session termination. Therefore, we are making no changes based

on these comments.

Proposed Sec. 3.111(e)(7) (redesignated as paragraph (e)(8) in this

final rule) provided that the primary behaviorist shall determine when

operations will be terminated, and when they may resume. We proposed,

further, that in the absence of the primary behaviorist, these

determinations shall be made by the supervising attendant.

One commenter recommended that the decision whether to terminate a

session be made by the ``experienced head trainer,'' and that, in cases

where SWTD cetaceans exhibit unsatisfactory behaviors during a session,

direct contact between participating cetaceans and humans be terminated

until the experienced head trainer, experienced qualified trainer, or

designated attendant determines that the unsatisfactory behavior has

been ameliorated through operant conditioning.

As noted above, the requirements of Sec. 3.111(e)(8) of this rule

include submission to APHIS of a written protocol for responding to

instances of inappropriate behavior by program animals. This allows the

facility to designate the chain of responsibility for making the

decision to remove the animal and/or terminate the session. APHIS will

be responsible for reviewing and approving all such protocols. However,

we consider it to be in the best interest of the animals and the SWTD

program to allow only the head trainer/behaviorist to determine when a

session may be resumed, and such a provision is included in

Sec. 3.111(e)(8) of this final rule.

With regard to the commenter's reference to amelioration of

unsatisfactory behavior through ``operant conditioning,'' we have

discussed earlier our policy of not requiring any specific training

method, as long as the training methods used are not in violation of

the AWA.

One commenter expressed concern that the proposed rule did not

include requirements governing how long offending cetaceans must be

kept out of the program and under what conditions they may be returned.

Because each animal and the circumstances for its removal from the

program will be unique, it would not be advisable to mandate one

protocol for determining how the behavioral infraction and retraining

must be handled. We consider the language as proposed for

Sec. 3.111(e)(7) and as modified for Sec. 3.111(e)(8) of this final

rule, as discussed above, to be adequate

[[Page 47142]]

to address the concerns and issues raised in these comments.

One commenter expressed concern that the requirements in proposed

Sec. 3.111(e)(7) did not require separate gated holding area(s) for

cetaceans that must be removed, either temporarily or permanently, from

swim activities.

The requirements under proposed Sec. 3.111(e)(7) (as amended above

as paragraph (e)(8)) include submission of written protocols to APHIS

for approval, and termination of a session if the offending cetacean

cannot be removed from the interactive area. These provisions will

require the facility to determine and to set forth how it will handle

an animal that must be removed from the program for an extended period

of time, and such protocols will be subject to APHIS approval. We do

not consider it necessary or practical to require facilities to

maintain a primary enclosure that may never be needed.

Reporting and Recordkeeping

In Sec. 3.111(f) of the proposed rule, we set forth requirements

for reporting and recordkeeping that would have to be met by SWTD

facilities. Several commenters expressed general opposition to any

reporting and recordkeeping requirements that are not applicable to all

marine mammals under the regulations. One commenter recommended that

the only additional recordkeeping required for SWTD programs should be

a log of cetacean/human interaction times and a listing of cetacean

participants in the programs.

Due to the nature of the SWTD programs, which may place

participating animals at an increased risk of stress and injury

compared to other marine mammal exhibits, we consider the recordkeeping

requirements specific to SWTD programs to be necessary in enforcing the

SWTD regulations and in protecting the well-being of the program

animals. In the following paragraphs, we discuss specific proposed

recordkeeping requirements as addressed by commenters.

We proposed in Sec. 3.111(f)(1) that prospective SWTD programs must

submit to APHIS specified descriptive information about their program

at least 30 days prior to the proposed initiation of the program, and

that existing facilities must submit such information within 30 days of

the effective date of the final rule.

Commenters stated that the regulations should require that

descriptions of SWTD programs must be received by APHIS at least 120

days prior to the proposed initiation of a program, rather than 30 days

as required by the proposed rule, so that APHIS can give notice of the

request for approval in the Federal Register and accept comments on the

request. One commenter recommended that APHIS also forward the notice

of intent to the Marine Mammal Commission for comment.

We are making no changes based on these comments. Under the AWA, a

person meeting the regulations and standards of the AWA will be issued

a license. The AWA, and the regulations promulgated under the AWA, do

not require publication of a notice in the Federal Register prior to

the issuance of a license. Such a requirement would be inconsistent

with all other licensing procedures under the AWA, and we consider it

unnecessary in the licensing of facilities that comply with the

regulations and standards.

One commenter requested that the regulations state that a new SWTD

program may not begin operations until any deficiencies noted by APHIS

in its pre-approval inspection have been corrected. Another commenter

stated that the regulations should set forth or cite the processes and

procedures for revoking or denying licenses.

New facilities are subject to all licensing requirements

promulgated under the AWA, including being in compliance with the AWA

during a pre-licensing inspection (Secs. 2.1 through 2.11). Currently

licensed facilities that wish to add an SWTD program would be subject

to the requirements of Sec. 3.111, including APHIS evaluation of the

plans and facility prior to the start of the program.

The process for revoking a license is found in the AWA (7 U.S.C.

2149), and we do not consider it necessary to include it in the

regulations. Denial of a license is addressed in Sec. 2.11. All

facilities must comply with all AWA regulations that apply to their

regulated activity.

Several commenters specifically opposed a number of the reporting

and recordkeeping requirements in proposed Sec. 3.111(f), and certain

of the proposed veterinary requirements in Sec. 3.111(g). The proposed

provisions in question, the commenter's concerns and recommendations,

and our responses, are as follows.

One commenter opposed the provision in proposed Sec. 3.111(f)(1)(i)

that the Administrator could require that a description of program

cetaceans include more than each animal's name and/or number, sex, and

age.

We consider this provision necessary to allow APHIS to require

further identifying information or techniques if more specific and

permanent identification is necessary to trace animals in or between

SWTD programs. For example, instances may arise where an animal that

shows a pattern of inappropriate behavior changes ownership and

location. In such a case, APHIS may require that information be

available in order to trace the animal's ownership and history.

Therefore, we are retaining the provision in question in this final

rule.

One commenter opposed the requirement in proposed

Sec. 3.111(f)(1)(ii) for the reporting of the duration of encounters

per cetacean per day, stating that, because the regulations require

that interaction time not exceed 2 hours per day, the average duration

of encounters is not relevant.

We consider the reporting of the duration of interactive periods

for each cetacean necessary in enforcing the 2-hour daily interaction

limit, and are making no changes based on the comment.

One commenter opposed the requirement for a description of the

educational content of interactive sessions, stating that such a

requirement was outside the scope of APHIS's regulatory authority.

Conversely, several commenters stated that APHIS should conduct a

formal, in-depth review of the educational content of proposed

programs, with the Administrator retaining the right to deny a permit

to a facility whose educational content is misleading or inadequate.

We disagree that requiring a description of educational content is

beyond APHIS's authority. Prior to APHIS's being mandated to regulate

SWTD programs, NMFS regulated the educational content of SWTD programs

under special permit conditions. APHIS was granted sole jurisdiction

for SWTD programs in 1994. The educational material presented to

participants may directly impact the well-being of the cetaceans, by

presenting information regarding what is ``acceptable'' treatment of

cetaceans, both in captivity and in the wild. With regard to denying a

permit based on review by APHIS of an educational program, APHIS does

not grant permits under the AWA, and, therefore, cannot deny such a

permit. As discussed above, we designed this rule to provide protection

of the animals under the AWA, without placing an undue burden on

licensees. Therefore, if a person applies for a license, is determined

to be in compliance with all appropriate regulations and standards

under the AWA, and pays the appropriate licensing fee, that person will

be licensed. Under Sec. 3.111(f)(2), APHIS will inform the facility of

any

[[Page 47143]]

deficiencies found in the submitted recordkeeping documents.

With regard to the commenter recommendation that APHIS conduct a

``formal, in-depth'' review of the educational content of proposed

programs, it is not clear to us from the comments exactly what form of

review the commenters were recommending. As discussed above, APHIS will

officially review the content of each educational program.

As part of the information required to be submitted to APHIS under

proposed Sec. 3.111, we proposed under Sec. 3.111(f)(1)(iii) that an

SWTD facility must provide APHIS with the content and method of pre-

encounter orientation, rules, and instructions, including restrictions

on types of physical contact with the cetaceans. One commenter stated

that the restrictions on physical contact should be determined by

APHIS.

The regulations as proposed and as set forth in this final rule

include prohibition of certain forms of contact. However, beyond what

is specifically prohibited by the regulations, different facilities may

wish to establish additional rules concerning what program content may

be safe and appropriate for that facility. For example, whether a

facility includes behavior such as kissing or presenting of tail may

depend on the level of expertise and training of its staff. APHIS will

review each program and may request clarification or justification of a

given proposed behavior, and will determine if the proposed program is

in accordance with Sec. 3.111(e)(7) of this final rule.

One commenter stated that it would be more appropriate to keep at

the facility the information regarding pre-encounter instruction

required under Sec. 3.111(f)(1)(iii), than to submit it to APHIS as

required under the proposed provisions.

Submission to APHIS of the information in question is necessary to

allow the Animal Care Staff Officer responsible for APHIS oversight of

SWTD programs, in conjunction with APHIS regional and field personnel,

to evaluate as needed the records in question. This oversight is

necessary to provide consistent and uniform enforcement.

One commenter objected to the requirement in proposed

Sec. 3.111(f)(1)(iv) that a description of the SWTD facility include

housing at the facility other than the primary enclosure, stating that

such a requirement was outside the scope of the regulations. Another

commenter said that the regulations should specify that operations may

not commence until a site visit by APHIS inspectors has confirmed that

the description of the program and facility is accurate and that the

facility meets all the requirements of the regulations.

It appears from the comments that we should clarify the intent of

this requirement. The information that must be submitted under

Sec. 3.111(f)(1)(iv) includes a description of the primary enclosure

and other housing facilities utilized by SWTD cetaceans. These include,

but are not limited to, holding or training enclosures and medical

facilities. To clarify this intent, we are requiring at

Sec. 3.111(f)(1)(iv) of this rule ``a description of the SWTD facility,

including the primary enclosure and other SWTD animal housing or

holding enclosures at the facility.'' (The licensee must also comply

with any other applicable regulations in subpart E, ``Marine

Mammals.'') All new (previously unlicensed) facilities will, by

regulation, be required to undergo the regular prelicensing protocols

as set forth in part 2 of the AWA regulations and standards. Currently

licensed facilities that may wish to begin an SWTD program will be

subject to inspection as deemed necessary by APHIS. This is consistent

with APHIS enforcement of the AWA in other areas of animal care.

One commenter opposed the requirement in proposed

Sec. 3.111(f)(1)(vi) for a reporting of the curriculum vitae of all

staff involved in the handling, care, and maintenance of cetaceans in

the program, stating that such a requirement was burdensome,

unnecessary, and not consistent with other APHIS requirements. The

commenter recommended that the regulations require instead only a

summary of the background of the licensee, the experienced head

trainer, and the experienced qualified trainer.

The proposed language requiring submission of a curriculum vitae

for all staff involved in the handling, care, and maintenance of the

program animals was intended to provide documentation of compliance

with Sec. 3.111(c) and to verify that the persons involved in the care

of the cetaceans have adequate training and experience. We believe that

at least part of the perceived burden of this requirement was due to

our use of the term curriculum vitae, which to some people implies a

rigid, lengthy format. To clarify our intent, we are removing the

reference to curriculum vitae in Sec. 3.111(f)(1)(vi) and are replacing

it with the requirement that a ``resume'' be submitted for each of the

employees in question. In ordinary common usage, a resume allows for a

more flexible format than does a curriculum vitae.

One commenter stated that, along with a curriculum vitae, the

regulations should require a description of how the staff positions

were established and filled through the use of validated, professional

personnel protocols.

Beyond assuring the use of adequately trained and experienced

personnel, we consider it inappropriate to dictate the personnel or

resource management practices of private enterprises.

One commenter stated that, in addition to requiring proof of each

animal's physical health, the regulations at Sec. 3.111(f)(1)(vii)

should require that every cetacean that is a candidate for an SWTD

program must first pass a thorough behavioral evaluation conducted by

the attending veterinarian.

We are making no changes based on this comment. Although a number

of experienced marine mammal veterinarians may have exposure to or

experience in the area of marine mammal behavior, we do not consider a

behavioral evaluation by an attending veterinarian a necessity. We

consider it most appropriate for a trained behaviorist to evaluate the

suitability of a cetacean for an SWTD program and to conduct its

subsequent training.

One commenter recommended deletion of the proposed requirement in

Sec. 3.111(f)(1)(viii) that a written program of veterinary care (APHIS

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

be submitted to APHIS. The commenter stated that APHIS should apply its

standard approach with regard to veterinary care.

The regulations regarding SWTD programs set forth at Sec. 3.111 are

designed to address issues and areas where additional requirements or

clarification appear necessary to address the special needs of a given

program or species. As stated previously in this document, SWTD

programs may potentially pose a higher risk of injury and stress to the

animals than do standard marine mammal facilities. To address this

possibility, more detailed veterinary care requirements are set forth

at Sec. 3.111(g). However, after review of the comments received, we

have reassessed the need for submission of a written program of

veterinary care at all facilities, and have determined that a written

protocol is not necessary if the facility employs a full-time

veterinarian or consultant. We continue to believe that a written

program of veterinary care is necessary at facilities that do not have

a full-time attending veterinarian or consultant, and are including

language in this final rule to clarify that intent. Therefore,

Sec. 3.111(f)(1)(viii) of this final

[[Page 47144]]

rule will require the submission of, ``for facilities that employ a

part-time attending veterinarian or consultant arrangements, a written

program of veterinary care (APHIS form 7002), including protocols and

schedules of professional visits.''

We proposed in Sec. 3.111(f)(1)(ix) to require a detailed

description of the monitoring program to be used to detect and identify

changes in the behavior and health of SWTD cetaceans. One commenter

stated that such a monitoring program should be developed and

prescribed by APHIS.

Because each facility will be developing its own program, we do not

consider it practical to impose a strict, standardized monitoring

system that may be inappropriate for a facility and its personnel.

Because documentation of each monitoring program must be submitted to

APHIS for evaluation, we will have adequate opportunity to clarify any

issues concerning each program and to work with each facility in

developing an appropriate program.

One commenter stated that it would be more appropriate to keep the

information required in Sec. 3.111(f)(1)(ix) on site for APHIS

inspection than to require that it be submitted to APHIS.

As discussed above regarding the need to submit pre-encounter

presentation and instruction to APHIS, the intent of Sec. 3.111(f) is

to allow APHIS to evaluate in a consistent manner proposed programs for

compliance with the regulations. Because this evaluation will be

carried out at APHIS Animal Care headquarters, the necessary

information must be submitted to APHIS.

We provided in proposed Sec. 3.111(f)(2) that, in the case of a new

or existing SWTD program that APHIS finds deficient in any respect, the

facility will be notified of the deficiencies and be provided the

opportunity to make corrections. One commenter opposed this provision,

stating that APHIS should deny or revoke operating licenses if the

regulations are not complied with.

The procedures for denying a license and revocation of a license

have been previously discussed. However, in order to clarify our intent

in the proposed rule, Sec. 3.111(f)(2) of this final rule will require

that all SWTD programs comply in all respects with the regulations and

standards set forth in parts 2 and 3 of the AWA regulations. Correction

dates are only given by APHIS to licensees or registrants to facilitate

compliance with the AWA and the regulations and standards. Licensees

and registrants are still liable for violations at the time they are

identified by APHIS, even though they may subsequently be corrected.

One commenter recommended that the requirement in proposed

Sec. 3.111(f)(3) that individual animal veterinary records be kept at

the SWTD site for 5 years be changed to follow what the commenter

called ``general APHIS requirements''-- i.e., retention of records on-

site for 1 year, retention of necropsy reports for 3 years, and

availability of such records for inspection at the facility.

The potential long-term medical and stress effects of SWTD programs

have not been documented to date. In order to assess any chronic

problems that may be associated with these programs, medical records of

longer than 1 year are necessary. For example, any changes in the

reproductive cycle of program animals would require examination of

records of more than 1 year. However, after review of comments

received, we consider retention of records for 3 years, instead of 5

years, to be sufficient to document long-term effects on program

animals. Accordingly, we are amending the requirement for veterinary

recordkeeping at Sec. 3.111(f)(3) to require that such records be

retained for 3 years and be made available to an APHIS official upon

request during inspection. We are also clarifying the recordkeeping

requirements at Sec. 3.111(f)(5) and (g)(5) to state that the records

that must be kept at the facility regarding participation in the SWTD

program and water quality must be made available to an APHIS official

upon request during inspection.

One commenter expressed concern that the individual animal

veterinary records required under proposed Sec. 3.111(f)(3) would not

be required to be submitted to APHIS.

We are making no changes based on this comment. The regulations

promulgated under the AWA have never required that medical records,

including necropsy records, be submitted to APHIS. Rather, the records

are required to be maintained at the regulated facility for APHIS's

inspection. We have found this requirement adequate for effective

enforcement of the regulations, and do not consider the additional

reporting burden of submitting such records to APHIS to be justified.

APHIS may acquire copies of these records during an investigation.

Several commenters suggested that complete reports of necropsies

conducted on SWTD cetaceans should be submitted to APHIS as a matter of

course, rather than only ``during facility inspections, or as required

by APHIS,'' as was proposed. One commenter recommended that the

regulations include the name and telephone number of an APHIS contact.

Several commenters recommended that the regulations require that a copy

of the necropsy results be submitted to NMFS as well as to APHIS.

As noted above, the requirement that necropsy reports be retained

at the facility and be made available to APHIS for inspection is

consistent with all other species requirements under the AWA

regulations. This requirement has been sufficient for APHIS enforcement

of those regulations. Therefore, we are making no changes to the final

rule based on these comments.

In Sec. 3.111(g)(6) of our proposed rule, we set forth the

requirement that, in the event of the death of a cetacean, complete

necropsy results, including all appropriate histopathology, must be

recorded in the cetacean's individual file and be made available to

APHIS officials during facility inspections, or as requested by APHIS.

Several commenters recommended that APHIS delineate, comprehensively

and in detail, what would be required in a ``complete necropsy.''

Additionally, a commenter recommended that, prior to cetaceans being

necropsied, still photographs should be made of the cetaceans, and also

that necropsies of cetaceans should be videotaped.

As discussed above, the intent of this rule is not to define or

regulate the practice of veterinary medicine. We consider

Sec. 3.111(g)(6) of this final rule to be adequate for APHIS

enforcement of the regulations.

Several commenters opposed the requirement in proposed

Sec. 3.111(f)(5) that a copy of statistical reports regarding

participation by cetaceans and humans, and a report of any changes in

the SWTD program, be submitted to APHIS on a semi-annual basis. The

commenter stated that ``general APHIS requirements'' should be

followed. One commenter recommended that the submission of such reports

be required more often than every 6 months. Several commenters

recommended that the statistical summary include the number of minutes

per day that each cetacean participated in an SWTD session, rather than

both that information and the number of hours each week that a program

animal participated in an interactive session.

We assume that, by ``general APHIS requirements,'' the commenter

was referring to requirements elsewhere in the regulations that the

information be kept on hand and available at the facility for

inspection by an APHIS official. We agree that maintaining at the

facility records of the number of minutes of cetacean interaction per

day,

[[Page 47145]]

rather than both that information and the number of hours per week, is

acceptable with regard to the required statistical analysis. Therefore,

this final rule does not require semi-annual submission of records of

the number of hours of participation per week. However, it does require

that the number of minutes of each animal's participation per day be

kept at the facility. Further, we continue to consider it necessary

that changes in an SWTD program be documented and submitted to APHIS on

a semi-annual basis, in order to allow for APHIS evaluation of the

program content. We do not consider semi-annual reporting of program

changes to be excessive, and we believe it provides sufficient and

necessary oversight of program changes and compliance.

One commenter opposed the requirement at proposed Sec. 3.111(f)(6)

for the reporting of all incidents resulting in injury to either

cetaceans or humans participating in an interactive session. The

commenter recommended that the regulations require instead the

reporting only of injurious incidents that result from direct contact

between participating animals and humans and that require treatment by

either a veterinarian or a physician. The commenter also recommended

that APHIS provide a voice mail number and a FAX number to SWTD

operators to facilitate compliance with the reporting requirements.

In order to enforce the safe operation of SWTD programs, APHIS

needs to be made aware of all injuries resulting from the interactive

sessions, both to humans and cetaceans. This information will be used,

not only in the enforcement of the current regulations and standards,

but as a tool to evaluate the need for regulatory changes to prevent

future injuries. There are many types or degrees of injuries that would

not require intervention by a veterinarian or physician, but that may

be preventable in the future. Therefore, we are retaining the

requirement that all incidents involving injury to human or cetacean

SWTD participants be reported to APHIS.

Because of the danger of telephone and FAX numbers in the

regulations becoming outdated, we do not consider it advisable to

publish such information in the Code of Federal Regulations. However,

we will provide to each SWTD facility information on available means of

communication.

One commenter recommended that the regulations require that, in

addition to the reporting of injuries, incidence of disease

transmission to cetaceans and/or humans be reported to APHIS on a

timely basis.

Because there has been no reported disease transmission between

cetaceans and humans in the U.S. public display industry, there does

not appear to be a need to require such reporting. Therefore, we are

not making any changes to the final rule based on this comment.

One commenter recommended that the regulations specifically require

consistency and thoroughness in both immediate and quarterly reports.

All records will be examined during routine, unannounced

inspections by APHIS personnel. Any problems or discrepancies will be

addressed at that time. As long as the required information is

available in an understandable form, APHIS does not require, at this

time, that a specific format be used.

Veterinary Evaluations

Among other things, proposed Sec. 3.111(g) contained the

requirements that the attending veterinarian at an SWTD program conduct

on-site evaluations of each cetacean at least once a month, observe an

interactive swim session at the SWTD site at least once each month, and

conduct a complete physical examination of each cetacean at least once

every 6 months. One commenter recommended that the regulations require

instead that the attending veterinarian conduct an on-site evaluation

of each cetacean every 2 weeks, that a fully qualified veterinarian

with proven marine mammal competence be physically present pool side

during each commercial human/cetacean interaction, and that the

attending veterinarian physically examine each cetacean every 3 months

instead of every 6 months.

Requiring a physical examination of the program animals by the

attending veterinarian every 6 months is consistent with currently

accepted practices for marine mammal veterinary medicine.

There is neither historical nor current information to support the

recommendation that the attending veterinarian must be on-site during

every interactive session. Because most current SWTD facilities employ

a part-time veterinarian, such a regulation would place an undue burden

on the facilities and the attending veterinarians.

The comments received included no evidence of the advantages of

requiring biweekly, rather than monthly, visits to the program by the

attending veterinarian. In the absence of data demonstrating the

benefits of such a requirement, relative to the burden and costs it

would entail, we do not consider it appropriate or necessary to impose

such a requirement.

One commenter objected to the proposed requirement that each

cetacean be physically examined every 6 months. The commenter stated

that conducting such an examination could potentially harm a cetacean,

by making it necessary that it be netted. The commenter stated that

netting would be necessary for programs in a natural environment where

cetaceans could not be trained to beach themselves for examination.

Additionally, the commenter questioned the need for physical

examinations of cetaceans that are maintained in a stress-free

environment.

Because program animals are required to be trained and under the

control of the trainers/attendants during sessions, we do not agree

that requiring semi-annual examinations is unreasonable. All animals

should be trained in husbandry behaviors that facilitate the required

examinations. Regular preventive medicine check-ups represent the

current state of accepted and adequate veterinary medical care

programs. The goal is to prevent problems, rather than have to deal

with emergencies or very sick animals. Additionally, although we can

try to reduce unnecessary stress, we are not aware of any stress-free

environment. Further, stress is not the only factor that can affect the

health and well-being of an animal.

Several commenters stated that requirements relating to veterinary

evaluations of the cetaceans participating in SWTD programs should be

incorporated into and be consistent with ``general'' APHIS

requirements. Additionally, the commenter took issue with our statement

in the explanatory information of the proposed rule that the proposed

veterinary monitoring is necessary to help prevent the spread of

zoonotic diseases. The commenter stated that APHIS inspections have

produced no evidence of such diseases, and that the scientific

literature does not contain such evidence. Another commenter stated

that the reference in our explanatory information to veterinary

standards developed at an NMFS-sponsored workshop refers to temporary

standards developed for a specific study.

The nature of the SWTD program, with much more diverse human

interaction than other programs of public display of marine mammals,

necessitates a focused monitoring of the health and well-being of these

animals.

[[Page 47146]]

As noted above, we are aware of no scientific documentation

demonstrating a risk of zoonotic disease transmission between human and

cetaceans. It was not the intent of the proposed rule to imply that

such data exists. Perhaps our intent would have been better conveyed by

the statement that ``this regular monitoring will be a beneficial tool

in the prevention of the spread of potentially zoonotic diseases during

the program.'' Therefore, we are making no changes to the final rule

based on these comments.

Animals Adversely Affected

One commenter recommended that the regulations should use the

wording developed by NMFS to require the following: (1) That animals

that respond adversely to encounters be removed from the program until

such time as their health is restored and/or their behavior poses no

risk to humans involved in the program; (2) that cetaceans be removed

from swims with members of the public while on medication for

infectious illness or a debilitating condition; and (3) that the

program be suspended immediately if a cetacean shows signs of program-

related health problems or undesirable behavior as a result of the SWTD

program.

The issues of when, behaviorally, an animal must be removed from

and may be returned to the interactive program sessions have been

addressed above and are set forth in Sec. 3.111(e)(8) of this final

rule. We do not consider it necessary to require cessation of a session

if the offending animal can be removed from the area. Although we agree

there is potential value in including specific language concerning the

health status of animals used during a session, we are aware of no

medical reason to require the removal of all animals that may be on

medication. (Medication for an infectious or chronic illness may be

administered well beyond any infectious or dangerous stage.) To clarify

our intent, Sec. 3.111(e)(3) of this final rule provides that all

cetaceans used in interactive sessions must be in good health,

including, but not limited to, not being infectious, and that cetaceans

undergoing veterinary treatment may be used in interactive sessions

only with the approval of the attending veterinarian.

Several commenters stated that the proposed regulations included no

course of action for cetaceans found to be sick or injured. One

commenter expressed concern that the proposed regulations did not

require isolation pools for sick animals.

Regulations concerning the use of medical or isolation pools for

sick animals are found in the general marine mammal regulations of 9

CFR part 3, subpart E. The regulations in Sec. 3.111 deal with

situations and concerns specific to SWTD programs.

Nutritional and Reproductive Status of SWTD Cetaceans

In Sec. 3.111(g)(4) of our proposed rule, we set forth the

requirement that the attending veterinarian record the nutritional and

reproductive status of each cetacean. One commenter stated that the

regulations should specify that the attending veterinarian must

determine and record the nutritional and reproductive status of each

cetacean every 3 months.

Our intent was that the information required in Sec. 3.111(g)(4) be

recorded during each monthly visit to the facility. Therefore, we are

rewording proposed Sec. 3.111(g)(4) to clarify this intent. In this

final rule, Sec. 3.111(g)(4) will read: ``The attending veterinarian,

during the monthly site visit, shall record the nutritional and

reproductive status of each cetacean (i.e., whether in active breeding

program, pregnant, or nursing).''

Health and Safety Precautions

One commenter recommended that the rules of each program require

human participants to shower with soap and water before and after

interactive sessions. Another commenter stated that each human

participant should be informed that facilities for showering with soap

and water before and after swim sessions are available, and that

showering is recommended.

Because we do not, under the AWA, require trainers and attendants

at facilities other than SWTD facilities to shower, we are leaving this

decision to the facility and to State and local health ordinances to

dictate. Because it would not be in the best interest of facilities to

risk the health of their animals, we believe that facilities, through

the issuance of their own rules for the program (which are subject to

APHIS evaluation) will address these issues in the most appropriate

manner for each facility.

One commenter stated that the regulations should require that all

human participants in an SWTD session be ``disease-free''--i.e., no one

should be allowed to swim with cetaceans if he or she has any known

conditions. The same commenter stated that SWTD facilities should be

used only for recreational swims, not for therapy.

We are making no changes based on this comment. All SWTD activities

held at USDA licensed facilities, including therapy sessions, will be

subject to this final rule. It is beyond the scope of this rule to

restrict licensed facilities from participating in therapy sessions. We

consider it appropriate to allow each facility to establish the health

rules that apply to the human participants in the interactive sessions,

in accordance with all State, local, and public health ordinances.

One commenter recommended that each SWTD facility be required to

develop a contingency plan for storms, to deal with the potential

escape of cetaceans. The commenter stated that such a contingency plan

should include a strategy for marking each cetacean so that ``escaped''

cetaceans can be distinguished from wild animals, and therefore be more

easily recognized and captured.

The need for contingency plans is addressed in the general marine

mammal regulations in Sec. 3.101. Any changes to those provisions will

be addressed in future rulemaking.

One commenter expressed concern that the proposed regulations

included no provision for or discussion of human safety with regard to

an SWTD pool being a swimming pool--e.g., with regard to lifeguard and

cardio-pulmonary resuscitation training.

Our authority under the AWA extends to the humane handling, care,

and treatment of animals covered by that Act. However, the AWA and duly

promulgated regulations and standards do not preclude a facility from

adhering to all appropriate State and local laws and ordinances. If a

facility is located in a community that requires lifeguards, etc., at

the facility, it is the responsibility of the facility to comply with

such a requirement.

One commenter stated that SWTD program rules should specifically

prohibit the feeding of cetaceans by customers.

Under the current regulations, feeding of marine mammals is

acceptable under certain conditions (Sec. 3.105(c)). As discussed

above, it is up to the facility, subject to APHIS evaluation of program

parameters, to determine which behaviors and activities it will include

in its interactive sessions.

One commenter stated that more research regarding human/cetacean

interactions should be done before additional SWTD programs are

created.

Four NMFS-permitted SWTD programs have already been studied (see

footnote 1, above). Further program analysis cannot be done without

more programs to study. We consider there to be sufficient historical

and study data to conclude that no justifiable reason exists to

prohibit the operations of SWTD programs. APHIS does not have

[[Page 47147]]

the authority to allow some facilities to operate an SWTD program,

while prohibiting others that meet the requirements under the AWA from

operating.

One commenter expressed concern that the proposed rule did not

restrict the participation of small children in an SWTD program. The

commenter stated that the lack of such a restriction would increase the

risk of injury to human participants and, as a result, could have an

adverse effect on program cetaceans.

At this time, we consider the issue of the age of human

participants to be most appropriately left to the facility. While it

seems obvious that facilities' whose program involves swimming in deep

water must require their customers to be able to swim, facilities that

also offer programs for wading or participation from a dock may require

the same degree of swimming ability. At this time, no evidence has been

presented to us that would support a strict age limit on human

participation in these programs. APHIS will reevaluate this position if

injury data and/or animal medical records indicate a change is

necessary.

Miscellaneous

We are also making nonsubstantive changes in this final rule for

conformity and clarity.

Therefore, based on the information set forth in the proposed rule

and in this final rule, we are adopting the provisions of the proposal

as a final rule with the changes discussed in this document.

Executive Order 12866 and Regulatory Flexibility Act

This rule has been reviewed under Executive Order 12866. The 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. The analyses required by Executive Order 12866

and the Regulatory Flexibility Act are set forth below.

We are issuing this rule in accordance with our authority under the

Animal Welfare Act (AWA) (7 U.S.C. 2131 et seq.). The AWA requires that

the Secretary of Agriculture promulgate standards to govern the humane

handling, care, treatment and transportation of animals by dealers,

exhibitors, research facilities, and carriers and intermediate

handlers.

This final rule establishes regulations and standards for the

humane handling, care, and treatment of cetaceans used in SWTD

programs. These regulations and standards address space requirements,

veterinary care, personnel and handling requirements, and

recordkeeping. Until this final rule becomes effective, APHIS does not

have in place specific standards that address the special

considerations of SWTD programs. The provisions of this final rule are

necessary to address those considerations, so that the animals used in

the program are treated in a humane manner.

Under this rule, operators of SWTD programs will be required to

meet specified standards for those programs. These standards will

include requirements for handling, facility design, reporting, and

recordkeeping.

Currently, close to 135 exhibitors in the United States are

licensed by APHIS to hold marine mammals. Of this number, at least six

operate SWTD programs. At least four of these six exhibitors already

meet the standards we are establishing in this final rule. The

remaining exhibitors may have to make certain design changes and

provide for additional training to comply with the standards. The cost

of the additional training requirements would be approximately $15,000

per facility. The estimated costs of materials to complete the design

changes would be approximately $1,000 per facility. Based on

information provided by the industry concerning the average annual

gross revenue of SWTD programs, the additional costs involved in

complying with the standards should not pose a significant economic

burden on SWTD exhibitors, all of whom are considered small entities.

Through this final rule, benefits will accrue to society by the

public's knowing that animals in future, as well as in existing SWTD

programs, will be cared and handled in a humane manner. The value of

these social benefits are subject to personal preferences and concerns

and cannot be directly compared with the costs to affected entities.

In development of this rule, we examined and rejected the

alternative options of (1) foregoing AWA regulations in favor of

industry self-regulation, and (2) developing regulations more stringent

than those set forth in this rule.

We did not consider it feasible to choose the option of foregoing

regulation of SWTD program facilities. The special needs and

requirements of these programs are not conducive to self-regulation at

this time, because we cannot be sure that all facilities that may

become licensed will voluntarily accept the same standards.

Likewise, we did not consider the option of adopting even more

stringent requirements to be warranted. Standards more restrictive than

those set forth in this rule would require significant increases in

expenses and recordkeeping, without a commensurate increase in the

well-being of program animals.

A summary of our analysis of selected specific recommendations

addressed in detail in the preamble that we consider to be

unnecessarily costly include the following:

Space requirements in excess of those required by this rule:

Commenters recommended that each SWTD facility have four areas, rather

than three; that the sanctuary and buffer areas be three times the size

of the interactive areas; and that space requirements be based on 10-12

times the average adult body length. We do not consider there to be

documented benefits to program animals to justify these recommended

requirements. Requiring an increase in the size of the enclosure beyond

that required in this final rule, or requiring an additional enclosure

area would potentially force five of the six currently operating

facilities to close or to move and/or build new facilities. Recent pool

construction of a new facility with one primary enclosure similar in

size to those recommended cost approximately $10 million. If space were

available for existing facilities to expand the size of their cetacean

areas, small to medium pool enlargements could cost approximately $1

million per facility.

Increased personnel requirements: Commenters recommended that the

regulations set forth certified job descriptions; that a fully

qualified veterinarian with proven marine mammal competence be

physically present at poolside during each commercial human/cetacean

interaction; and that the attending veterinarian conduct an on-site

evaluation of each cetacean every 2 weeks, rather than every month as

required by this rule. We consider the regulations in this final rule

to be adequate to protect the well-being of program animals and the

additional cost that would be imposed by the commenter recommendations

to be unnecessary. Creating uniform position descriptions would require

meeting and negotiations among current facilities. We estimate such

interaction would cost each facility approximately $10,000 in travel

costs and time absent from duties at the facility. To require a full-

time veterinarian to be present at all sessions would cost between

$75,000 and $100,000 per year per facility. Requiring biweekly visits

by the attending veterinarian would double the costs for such visits

required by this rule, with the chance that some facilities would

[[Page 47148]]

not be able to retain their attending veterinarian due to excessive

time requirements.

Increased cetacean rest periods: Several commenters recommended

that the rest periods for each program animal be increased beyond that

required by this rule. We consider the rest periods required by this

rule to be adequate for the well-being of the animals, and consider

increased rest periods to be unnecessarily costly with no documented

benefit to the animals. If the requirements recommended by the

commenters were implemented, facilities would either have to add

animals to their programs or decrease the number of sessions per

facility. Adding animals would require an estimated 25-100 percent

increase in animal maintenance costs, in addition to the cost of

acquiring the animals and possible increased personnel costs. If the

number of allowable sessions per day were decreased by one beyond those

allowed under this rule, each facility would suffer the loss of six to

nine customers per session. At approximately $125 per session for each

person, each facility would lose from $750-1,125 per day. Over a period

of 350 to 365 operating days per year, the annual loss per facility

would total from $262,500 to $410,625.

This final rule will require affected entities to comply with

reporting and recordkeeping requirements. Each facility operating an

SWTD program must submit written copies of the rules and instructions

used in the introductory session, the procedures for terminating a

session, a description of the SWTD program, and reports regarding

participation in the program. Additionally, each facility will be

required to maintain veterinary, feeding, and behavioral records for

SWTD animals, as well as profile (animal identification) information,

nutritional and reproductive status information, and a written

assessment by the attending veterinarian. Facilities will be required

to report to APHIS injuries sustained by cetaceans or human

participants.

The estimated extent of the reporting and recordkeeping

requirements is as follows:

Estimate of burden: The public reporting burden for this collection

of information is estimated to average .16830 hours per response.

Respondents: Owners and operators of SWTD facilities.

Estimated annual number of respondents: 6.

Estimated annual number of responses: 30,344.

Estimated annual number of responses per respondent: 7,586.

Estimated total annual burden on respondents: 5,170 hours. (Due to

rounding, the total annual burden hours may not equal the product of

the annual number of responses multiplied by the average reporting

burden per response.)

The Department has identified no Federal rules that duplicate,

overlap, or conflict with this rule.

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 7 CFR part 3015, subpart V.)

Executive Order 12988

This final rule has been reviewed under Executive Order 12988,

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

This rule would 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 1995 (44 U.S.C.

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

included in this final rule have been approved by the Office of

Management and Budget (OMB) under OMB control numbers 0579-0036 and

0579-0115.

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 are amended as follows:

PART 1--DEFINITION OF TERMS

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 371.2(g).

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

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

program are 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-dolphin 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-dolphin program where an interactive session takes place.

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

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

cetaceans.

* * * * *

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

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

directly abuts the buffer area.

* * * * *

Swim-with-the-dolphin (SWTD) program means any human-cetacean

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

enclosure in which an SWTD designated cetacean is housed to interact

with the animal. This interaction includes, but such inclusions are not

limited to, wading, swimming, snorkeling, or scuba diving in the

enclosure. This interaction excludes, but such exclusions are not

limited to, feeding and petting pools, and the participation of any

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

presentation or performance of a show.

* * * * *

PART 3--STANDARDS

3. 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 371.2(g).

4. In subpart E, Sec. 3.104, paragraph (b)(4)(ii), footnote 9 is

redesignated as footnote 10 and footnote 8 in Sec. 3.104(b)(4)(i) is

redesignated as footnote 9.

5. A new Sec. 3.111 is added to read as follows:

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

Swim-with-the-dolphin programs shall comply with the requirements

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

the regulations pertaining to marine mammals.

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

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

None of these

[[Page 47149]]

areas shall be made uninviting to the animals. Movement of cetaceans

into the buffer or sanctuary area shall not be restricted in any way.

Notwithstanding the space requirements set forth in Sec. 3.104, each of

the three areas required for SWTD programs shall 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 cetacean used in

the program;

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

as follows:

(i) Up to two cetaceans:

[GRAPHIC] [TIFF OMITTED] TR04SE98.022

(ii) Three cetaceans:

[GRAPHIC] [TIFF OMITTED] TR04SE98.023

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

[GRAPHIC] [TIFF OMITTED] TR04SE98.024

(3) The average depth for sea pens, lagoons, and similar natural

enclosures at low tide shall be at least 9 feet. The average depth for

any manmade enclosure or other structure not subject to tidal action

shall be at least 9 feet. A portion of each area may be excluded when

calculating the average depth, but the excluded portion may not be used

in calculating whether the interactive, buffer, and sanctuary area meet

the requirements of paragraphs (a)(1), (a)(2), and (a)(4) of this

section.

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

follows:

Volume = SA x 9

(b) Water clarity. Sufficient water clarity shall be maintained so

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

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

these observations, the interactive sessions shall be canceled until

the required clarity is provided.

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

minimum, the following personnel, with the following minimum

backgrounds (each position shall be held by a separate individual, with

a sufficient number of attendants to comply with Sec. 3.111(e)(4)):

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

at least 6 years experience in a professional or managerial position

dealing with captive cetaceans;

(2) Head trainer/behaviorist--at least one full-time staff member

with at least 6 years experience in training cetaceans for SWTD

behaviors in the past 10 years, or an equivalent amount of experience

involving in-water training of cetaceans, who serves as the head

trainer for the SWTD program;

(3) Trainer/supervising attendant--at least one full-time staff

member with at least 3 years training and/or handling experience

involving human/cetacean interaction programs;

(4) Attendant--an adequate number of staff members who are

adequately trained in the care, behavior, and training of the program

animals. Attendants shall be designated by the trainer, in consultation

with the head trainer/behaviorist and licensee/manager, to conduct and

monitor interactive sessions in accordance with Sec. 3.111(e); and

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

veterinarian who has at least the equivalent of 2 years full-time

experience (4,160 or more hours) with cetacean medicine within the past

10 years, and who is licensed to practice veterinary medicine.

(d) Program animals. Only cetaceans that meet the requirements of

Sec. 3.111(e)(2) and (3) may be used in SWTD programs.

(e) Handling. (1) Interaction time (i.e., designated interactive

swim sessions) for each cetacean shall not exceed 2 hours per day. Each

program cetacean shall have at least one period in each 24 hours of at

least 10 continuous hours without public interaction.

(2) All cetaceans used in an interactive session shall be

adequately trained and conditioned in human interaction so that they

respond in the session to the attendants with appropriate behavior for

safe interaction. The head trainer/behaviorist, trainer/supervising

attendant, or attendant shall, at all times, control the nature and

extent of the cetacean interaction with the public during a session,

using the trained responses of the program animal.

(3) All cetaceans used in interactive sessions shall be in good

health, including, but not limited to, not being infectious. Cetaceans

undergoing veterinary treatment may be used in interactive sessions

only with the approval of the attending veterinarian.

(4) The ratio of human participants to cetaceans shall not exceed

3:1. The ratio of human participants to attendants or other authorized

SWTD personnel (i.e., head trainer/behaviorist or trainer/supervising

attendant) shall not exceed 3:1.

(5) Prior to participating in an SWTD interactive session, members

of the public shall be provided with oral and written rules and

instructions for the session, to include the telephone and FAX numbers

for APHIS, Animal Care, for reporting injuries or complaints. Members

of the public shall agree, in writing, to abide by the rules and

instructions before being allowed to participate in the session. Any

participant who fails to follow the rules or instructions shall be

removed from the session by the facility.

[[Page 47150]]

(6) All interactive sessions shall have at least two attendants or

other authorized SWTD personnel (i.e., head trainer/behaviorist or

trainer/supervising attendant). At least one attendant shall be

positioned out of the water. One or more attendants or other authorized

SWTD personnel may be positioned in the water. If a facility has more

than two incidents during interactive sessions within a year's time

span that have been dangerous or harmful to either a cetacean or a

human, APHIS, in consultation with the head trainer/behaviorist, will

determine if changes in attendant positions are needed.

(7) All SWTD programs shall limit interaction between cetaceans and

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

remove the element of choice from the cetaceans by actions such as, but

not limited to, recalling the animal from the sanctuary area, and does

not elicit unsatisfactory, undesirable, or unsafe behaviors from the

cetaceans. All SWTD programs shall prohibit grasping or holding of the

cetacean's body, unless under the direct and explicit instruction of an

attendant eliciting a specific cetacean behavior, and shall prevent the

chasing or other harassment of the cetaceans.

(8) In cases where cetaceans used in an interactive session exhibit

unsatisfactory, undesirable, or unsafe behaviors, including, but not

limited to, charging, biting, mouthing, or sexual contact with humans,

such cetaceans shall either be removed from the interactive area or the

session shall be terminated. Written criteria shall be developed by

each SWTD program, and shall be submitted to and approved by APHIS

11 regarding conditions and procedures for maintaining

compliance with paragraph (e)(4) of this section; for the termination

of a session when removal of a cetacean is not possible; and regarding

criteria and protocols for handling program animal(s) exhibiting

unsatisfactory, undesirable, or unsafe behaviors, including retraining

time and techniques, and removal from the program and/or facility, if

appropriate. The head trainer/behaviorist shall determine when

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

of the head trainer/behaviorist, the determination to terminate a

session shall be made by the trainer/supervising attendant. Only the

head trainer/behaviorist may determine when a session may be resumed.

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\11\ Send to Administrator, c/o Animal and Plant Health

Inspection Service, Animal Care, 4700 River Road Unit 84, Riverdale,

Maryland 20737-1234.

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(f) Recordkeeping. (1) Each facility shall provide APHIS

12 with a description of its program at least 30 days prior

to initiation of the program, or in the case of any program in place

before September 4, 1998, not later than October 5, 1998. The

description shall include at least the following:

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