[Federal Register Volume 60, Number 14 (Monday, January 23, 1995)]
[Proposed Rules]
[Pages 4383-4389]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-1637]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 60, No. 14 / Monday, January 23, 1995 /
Proposed Rules
[[Page 4383]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Parts 1 and 3
[Docket No. 93-076-2]
RIN 0579-AA59
Animal Welfare; Marine Mammals
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: We are proposing to amend the Animal Welfare regulations to
establish standards for ``swim-with-the-dolphin'' interactive programs.
These proposed standards would be promulgated under the authority of
the Animal Welfare Act and appear to be necessary to ensure that the
marine mammals used in these programs are handled and cared for in a
humane manner.
DATES: Consideration will be given only to comments received on or
before February 22, 1995.
ADDRESSES: Please send an original and three copies of your comments to
Chief, Regulatory Analysis and Development, PPD, APHIS, USDA, P.O.
Drawer 810, Riverdale, MD 20738. Please state that your comments refer
to Docket No. 93-076-2. Comments received may be inspected at USDA,
room 1141, South Building, 14th Street and Independence Avenue SW.,
Washington, DC, between 8 a.m. and 4:30 p.m., Monday through Friday,
except holidays. Persons wishing to inspect comments are requested to
call ahead on (202) 690-2817 to facilitate entry into the comment
reading room.
FOR FURTHER INFORMATION CONTACT:
Dr. Barbara Kohn, Senior Staff Veterinarian, Animal Care Staff,
Regulatory Enforcement and Animal Care, APHIS, USDA, P.O. Drawer 810,
Riverdale, MD 20738. The telephone number for the agency contact will
change when agency offices in Hyattsville, MD, move to Riverdale, MD,
during February 1995. Telephone: (301) 436-7833 (Hyattsville); (301)
734-8699 (Riverdale).
SUPPLEMENTARY INFORMATION:
Background
Since 1979, the Departments of Commerce and the Interior have
shared jurisdiction with the Department of Agriculture for regulating
the care and transportation of captive marine mammals. Under the Animal
Welfare Act (7 U.S.C. Secs. 2131, et seq.) (AWA), authority was given
by Congress to the Department of Agriculture to promulgate regulations
and standards for the humane handling, care, treatment, and
transportation of captive marine mammals by regulated entities. In
1979, the Department published a final rule in the Federal Register (44
FR 36868) which set forth the regulations and standards for captive
marine mammals.
The AWA regulations are contained in title 9 of the Code of Federal
Regulations, chapter 1, subchapter A, parts 1, 2, and 3. Part 1
provides definitions of the terms used in parts 2 and 3. Part 2 sets
forth the regulations and part 3 sets forth the standards for the
humane handling, care, treatment, and transportation of covered animals
by regulated entities. Subpart E of part 3 contains the standards
applicable to marine mammals.
Under provisions of the Marine Mammal Protection Act of 1972 (16
U.S.C. Secs. 1361 et seq.) (MMPA), the Departments of Commerce and the
Interior have had the responsibility for regulating marine mammals in
the wild, and those removed from the wild and held in captivity. Such
authority is exercised through a permit system whereby permits to
obtain new marine mammals or replacements from the wild are issued,
provided that the applicants for such permits comply with provisions of
these permits with respect to the handling and care of the animals. The
National Marine Fisheries Service (NMFS), U.S. Department of Commerce,
regulated ``swim-with-the-dolphin'' (SWTD) programs, by incorporating
standards of care into the permits. In SWTD programs, members of the
public participate in an orientation and education program regarding
marine mammals, and then take part in an interactive swimming session
with dolphins.
Recently, the regulation of SWTD programs has significantly
changed. The April 30, 1994, amendments to the MMPA contain a
requirement that holders of marine mammal permits issued by NMFS be
licensed by USDA under the AWA. The NMFS permits have changed in that
the special conditions concerning standards of care imposed on SWTD
permit holders are no longer contained in the permits. Therefore, there
are no specific standards in place for SWTD programs.
Although 9 CFR part 3, subpart E contains general standards,
developed and enforced by APHIS, for the housing, care, treatment, and
transportation of marine mammals, it contains no standards that apply
specifically to SWTD programs. Specific APHIS standards for these
programs, including exhibit design, veterinary care, personnel
training, and recordkeeping, were to be addressed in APHIS's review and
anticipated proposed revision of the regulations. As part of this
anticipated revision of the regulations, APHIS published an advance
notice of proposed rulemaking on July 23, 1993, (58 FR 39458) in which
members of the public were invited to submit comments on appropriate
specific standards for the care of marine mammals at facilities
licensed by or registered with APHIS. The amendments to the MMPA, and
the elimination of the MMPA requirement for NMFS to specify conditions
for the care and transportation of captive marine mammals used in SWTD
programs, has precipitated a need for specific APHIS standards
regarding SWTD programs at this time. Therefore, we are proposing such
standards to ensure the safety and health of captive marine mammals
used in SWTD programs.
Program Animals
This rule proposes standards for SWTD in a new Sec. 3.111. We are
providing in proposed Sec. 3.111(d) that only Tursiops truncatus,
commonly referred to as bottlenose dolphins, may be used in SWTD
programs. Industry experience has demonstrated that Tursiops truncatus
can be adequately trained and conditioned to interact safely with
humans. Similar information is not yet available regarding other
species of cetaceans. [[Page 4384]]
Space Requirement
We are proposing to require in Sec. 3.111(a) that primary
enclosures used to contain dolphins that are used in SWTD programs
consist of three areas: An interactive area, a buffer area, and a
sanctuary area. Both the buffer area and the sanctuary area would be
off-limits to members of the public. The sanctuary area is necessary to
allow dolphins to separate themselves voluntarily from the area of the
enclosure where humans are permitted during program sessions. The
buffer area, situated between the interactive area and the sanctuary
area, is necessary to ensure that the sanctuary area is an adequate
distance from the interactive area to ensure dolphins the opportunity
for complete freedom from the public.
We would establish the same minimum space requirements for each of
the three required areas. Each of the areas would be required to meet
minimum space requirements for horizontal dimension, surface area,
depth, and volume. Each of these proposed space requirements exceeds
that in the current regulations for Tursiops truncatus. The space
requirements set forth in this proposed rule were developed in
conjunction with professional industry organizations, and were
recommended by those organizations as providing adequate space for the
health and well-being of dolphins used in the SWTD programs.
We believe the increased space is necessary in the interactive area
to accommodate the presence of both dolphins and humans, and that a
like amount of space is necessary in both the buffer area and the
sanctuary area, so that the buffer and sanctuary areas are not made
intentionally uninviting to participating dolphins. For the same
reason, we would prohibit the restriction of a dolphin's entrance into
the buffer and sanctuary areas. In our view, SWTD programs are not to
be forced contact programs. The dolphins must always have the choice
not to participate. In this regard, the dolphin's choice of area should
not be influenced by factors such as restricted entrance into an area
or differences between sizes of areas (e.g., a sanctuary area that is
smaller than the interactive area).
The minimum space requirements for the three required areas and for
the entire primary enclosure are set forth in proposed Sec. 3.111(a)(5)
in a table which is replicated below.
Minimum Space Requirements for Each Area and Primary Enclosure
----------------------------------------------------------------------------------------------------------------
Minimum horizontal Surface area Depth Volume
dimension -----------------------------------------------------------------
Number of animals ----------------------
Each area Enclosure Each area Enclosure Each area Enclosure Each area Enclosure
(ft) (ft) (ft\2\) (ft\2\) (ft) (ft) (ft\3\) (ft\3\)
----------------------------------------------------------------------------------------------------------------
1-2..................... 27 81 572 1,716 9 9 5,148 15,444
3....................... 27 81 1,144 3,432 9 9 10,296 30,888
Each additional animal.. (\1\) (\1\) 254 763 (\1\) (\1\) 2,289 6,867
----------------------------------------------------------------------------------------------------------------
\1\No change.
Proposed section 3.111(a) also sets forth the formulae used to
arrive at the space requirements, which are based on the average adult
body length of Tursiops truncatus (9 feet) and which assume use of a
circular pool. The measurements in the table were calculated as
follows.
1. Horizontal dimension. The minimum horizontal dimension for each
area would be at least three times the average adult body length of the
species of animal used in the program. As noted above, under this
proposed rule, only Tursiops truncatus would be allowed in SWTD
programs.
2. Surface area. The minimum surface area for each of the three
required areas would be based on the following formulae:
Up to two dolphins
[GRAPHIC][TIFF OMITTED]TP23JA95.006
Three dolphins
[GRAPHIC][TIFF OMITTED]TP23JA95.007
Additional SA for each animal in excess of three
[GRAPHIC][TIFF OMITTED]TP23JA95.008
3. Depth. The average depth for each area would be required to be
at least 9 feet.
4. Volume. The minimum volume required for each animal would be
based on the following formula:
Volume = SA x 9
Water Quality
Standards for water quality for marine mammals are set forth in
existing Sec. 3.106. In Sec. 3.111(b) of this proposed rule, we are
providing that SWTD programs must also maintain sufficient water
clarity so that attendants are able to observe dolphins and humans at
all times within the interactive area. If the level of water clarity
does not allow these observations to be made, the interactive sessions
would be required to be canceled until such clarity is achieved.
Personnel
In proposed Sec. 3.111(c), we are setting forth minimum
requirements for the type and number of personnel necessary for
operating a SWTD program. Additionally, we are proposing to set forth
minimum levels of experience necessary for each required employee. We
believe this experience is necessary to ensure that these individuals
have been exposed to the critical elements of safe human/dolphin
interactions.
In this proposed rule, we are providing that each SWTD program must
have, at the minimum, the following personnel with the following
backgrounds: [[Page 4385]]
(1) Licensee or manager--at least one full-time staff member with
at least 6 years in a professional or managerial position dealing with
captive cetaceans;
(2) Primary behaviorist--at least one full-time staff member with
at least 6 years experience in training cetaceans for SWTD behaviors,
or with an equivalent amount of experience involving in-water training
of cetaceans, who serves as the head trainer for the SWTD program;
(3) Supervising attendant--at least one full-time staff member with
at least 3 years experience involving human/dolphin interactions;
(4) Attending veterinarian--at least one staff or consultant
veterinarian who has had at least the equivalent of 2 years experience
with cetacean medicine within the past 10 years.
A separate individual would be required to fill each of the
required positions.
Handling
We are providing in proposed Sec. 3.111(e)(1) that time dolphins
spend interacting with humans as part of a SWTD program may not exceed
2 hours per day, and that each participating dolphin must have no less
than 10 continuous hours without public interaction in each 24 hours.
We are providing in proposed Sec. 3.111(e)(2) that all dolphins used in
the session must be adequately conditioned and trained for interaction,
so that they respond in the session to the attendants with appropriate
behavior for safe interaction.
We are also providing in proposed Sec. 3.111(e)(3) that the ratio
of human participants to dolphins shall not exceed 3:1, and that the
ratio of human participants to attendants shall not exceed 3:1. These
ratios are based on permit requirements established by NMFS as part of
their regulation of SWTD programs, and, based on MNFS' enforcement
experience, we believe they are adequate to protect dolphins used in
SWTD programs.
Under Sec. 3.111(e)(5) of this proposed rule, all sessions must
have at least two attendants, and more if required according to the
ratio discussed above. At least one attendant would be required to be
positioned in the water, except in cases where at least one attendant
is positioned so as to be able to intervene during the interactive
session as quickly as if positioned in the water. However, if the
program has had more than two incidents during interactive sessions
that have been dangerous or harmful to either dolphins or humans, at
least one attendant would be required to be positioned in the water.
To help ensure that the requirements of this proposed rule
regarding interactive sessions are met, we are requiring in
Sec. 3.111(e)(4) that, prior to participation in a SWTD program,
members of the public be provided with, and agree in writing to abide
by, the SWTD program rules. We are also proposing that any participant
who fails to follow the rules or the instructions of the attendants be
removed from the session.
Under Sec. 3.111(e)(6) of this proposed rule, a SWTD program must
limit contact between humans and dolphins so as to ensure that the
dolphins and humans are not harmed, that the element of choice
regarding interaction is not removed from the dolphins (such as by
recalling the animal from the sanctuary area), and that undesirable
behavior is not elicited from the dolphins. At all times, each dolphin
must be free to remove itself from the human/dolphin interaction. To
ensure that this is possible, grasping or holding of the dolphin's
body, unless under the direct and explicit instruction of an attendant
eliciting a specific dolphin behavior, and the chasing or harassing of
dolphins, would be prohibited by the SWTD programs.
We would require in proposed Sec. 3.111(e)(7) that, in cases where
animals used in the program exhibit unsatisfactory behaviors, such as
charging, biting, mouthing, or sexual contact between dolphins and
humans, these animals must be removed from the interactive session. We
recognize that, in some cases, it may become difficult or impossible to
remove a particular animal from an interactive session. For instance,
in some cases, an animal may refuse to respond to commands from
attendants. In order for a facility to anticipate and respond to such
situations, we would require that written criteria must be developed
and submitted to APHIS regarding conditions and procedures for the
termination of a session. The primary behaviorist shall determine when
operations will be terminated, and when they may resume. In the primary
behaviorist's absence, these determinations shall be made by the
supervising attendant.
Recordkeeping
We would establish reporting and recordkeeping requirements for
SWTD programs. This information would help us monitor compliance with
the regulations, and assist us in evaluating SWTD programs to assess
the effectiveness of the regulations.
As part of the reporting requirements, we would require in
Sec. 3.111(f)(1) that a description of each SWTD program be provided to
APHIS at least 30 days prior to initiation of any SWTD program.
Facilities which have programs in place when this rule becomes final
would also be required to provide APHIS with the same information
within thirty days after the rule becomes final. This description would
be required to include, at the minimum, the following: (1)
Identification of each dolphin in the program by means of name and/or
number, sex, age, and any other means determined by the Administrator
as necessary to adequately identify the dolphin; (2) a description of
the educational content and agenda of planned interactive sessions, and
the anticipated average and maximum frequency and duration, of
encounters per dolphin per day; (3) the content and method of pre-
encounter orientation, rules, and instructions, including restrictions
on types of physical contact with the dolphins; (4) a description of
the SWTD facility, including the primary enclosure and other housing at
the facility; (5) a description of the training the dolphin has
undergone or will undergo prior to the participation in the program;
(6) curriculum vitae for all staff involved in the handling, care, and
maintenance of the dolphins; (7) the current behavior patterns and
health of each dolphin, to be assessed and submitted by the attending
veterinarian; (8) a written program of veterinary care (APHIS form
7002), including protocols and schedules of professional visits; and
(9) a detailed description of the monitoring program to be used to
detect and identify changes in the behavior and health of the dolphins.
We would require in Sec. 3.111(f) (3) and (4) that the following
records be kept at the SWTD site and be made available to an APHIS
official upon request during normal business hours: (1) Individual
dolphin veterinary records, including all examinations, lab reports,
treatments, and necropsy reports; (2) individual dolphin feeding
records; and (3) individual dolphin behavioral records. The veterinary
records would be required to be kept at the site at least 5 years. The
feeding and behavioral records would be required to be kept at the site
at least 3 years.
Under Sec. 3.111(f)(5) of this proposed rule, the following reports
would be required to be kept at the SWTD site at least 3 years, and a
copy would be required to be submitted to the Administrator on a semi-
annual basis: (1) Statistical summaries of the number of minutes per
day and the number of hours per week that each animal
[[Page 4386]] participated in an interactive session; (2) a statistical
summary of the number of human participants per month in the SWTD
program; and (3) a description of any changes made in the SWTD program
since the previous report was submitted.
We would also require, in Sec. 3.111(f)(6), that any incident
resulting in injury to either dolphins or humans during an interactive
session be reported to APHIS within 24 hours of the incident. Within a
week of any such incident, a written report would be required to be
submitted to the Administrator. The report would be required to provide
a detailed description of the incident and must establish a plan of
action for the prevention of further occurrences.
Veterinary Care
In Sec. 3.111(g) of this proposed rule, we are establishing
standards for veterinary care and veterinary supervision for SWTD
programs. The veterinary care standards set forth in this rule are
based on documents developed at a NMFS-sponsored workshop by experts in
marine mammal medicine and parties experienced in dealing with SWTD
animals. We consider these veterinary care standards necessary to
safeguard the health of both dolphins and humans participating in
interactive programs. The veterinary requirements, discussed below,
would require regular monitoring by the attending veterinarian of
dolphins used in the programs and of other aspects of the program. This
regular monitoring is necessary to help prevent the spread of zoonotic
diseases during the program. Additionally, because dolphins often do
not exhibit clinical signs of illness until very late in the disease
process, early detection of stress or health problems is essential for
the well-being of the dolphins.
In Sec. 3.111(g)(1) of this proposed rule, we are requiring that
the attending veterinarian conduct on-site evaluations at least once a
month of each dolphin used in a SWTD program. The evaluation would have
to include a visual inspection of the animal; examination of the
behavioral, feeding, and medical records of the animal; and a
discussion of each animal with an animal care staff member familiar
with the animal. We would require in Sec. 3.111(g)(2) that the
attending veterinarian observe an interactive swim sessions at least
once a month.
Additionally, under proposed Sec. 3.111(g)(3), the attending
veterinarian would be required to conduct a complete physical
examination of each dolphin at least once every 6 months. The
examination would have to include a profile of the dolphin, including
the following: The dolphins's identification (name and/or number, sex,
and age), weight, length, axillary girth, appetite, and behavior. The
attending veterinarian would also be required to conduct a general
examination to evaluate body condition, skin, eyes, mouth, blow hole
and cardio-respiratory system, genitalia, and feces (gastrointestinal
status). In addition, the examination would have to include a complete
blood count and serum chemistry analysis, and cytology and parasite
evaluation of fecal and blow hole smears. As part of the examination,
the attending veterinarian would be required to record the nutritional
and reproductive status of the dolphin (whether in active breeding
program, pregnant, or nursing). While at the site, the attending
veterinarian would also be required to examine water quality records
and make an assessment of the overall water quality during the
preceding month.
In proposed Sec. 3.111(g)(6), we are providing that, should a
dolphin used in a SWTD program die, complete necropsy results,
including all appropriate histopathology, must be recorded in the
animal's individual file and be made available to APHIS officials
during facility inspections, or as requested by APHIS. The necropsy
would be required to be performed within 48 hours of the dolphin's
death, by a veterinarian experienced in marine mammal necropsies. If
the necropsy is not to be performed within 3 hours of the discovery of
the dolphin's death, the dolphin must be refrigerated. We would require
that written results of the necropsy be available in the dolphin's
individual file within 7 days after death for gross pathology and
within 45 days after death for histopathology.
Executive Order 12866 and Regulatory Flexibility Act
This proposed rule has been determined to be significant and was
reviewed by OMB under Executive Order 12866.
Under this proposed rule, operators of SWTD programs would be
required to meet specified standards for those programs. These
standards would include requirements for handling, facility design,
reporting, and recordkeeping. Currently, 135 exhibitors in the United
States are licensed by APHIS to hold marine mammals. Of this number,
four operate SWTD programs. Three of these four exhibitors already meet
the standards we are proposing. The fourth exhibitor would have to make
certain design changes and provide for additional training to comply
with the proposed standards. The cost of the additional training
requirements would be approximately $15,000. The estimated costs of
materials to complete the design changes would be approximately $850.
Based on information provided by the industry concerning the average
annual gross revenue of SWTD programs, the additional costs involved in
complying with the proposed standards should not pose a significant
economic burden on exhibitors.
Under these circumstances, the Administrator of the Animal and
Plant Health Inspection Service has determined that this action would
not have a significant economic impact on a substantial number of small
entities.
Executive Order 12778
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. It is not intended to have retroactive effect. This
rule will not preempt any State or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule. The Act does not provide administrative procedures which must be
exhausted prior to a judicial challenge to the provisions of this rule.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1980 (44 U.S.C.
3501 et seq.), the information collection or recordkeeping requirements
included in this proposed rule will be submitted for approval to the
Office of Management and Budget. Please send written comments to the
Office of Information and Regulatory Affairs, OMB, Attention: Desk
Officer for APHIS, Washington, DC 20503. Please send a copy of your
comments to: (1) Chief, Regulatory Analysis and Development, PPD,
APHIS, USDA, P.O. Drawer 810, Riverdale, MD 20738, and (2) Clearance
Officer, OIRM, USDA, room 404-W, 14th Street and Independence Avenue
SW., Washington, DC 20250.
List of Subjects
9 CFR Part 1
Animal welfare, Animal housing, Dealers, Exhibitors, Humane animal
handling, Research facilities.
9 CFR Part 3
Animal welfare, Humane animal handling, Pets, Reporting and
recordkeeping requirements, Transportation.
Accordingly, 9 CFR parts 1 and 3 would be amended as
follows: [[Page 4387]]
PART 1--[AMENDED]
1. The authority citation for part 1 would continue to read as
follows:
Authority: 7 U.S.C. 2131-2159; 7 CFR 2.17, 2.51, and 371.2(g).
2. In Sec. 1.1, definitions of buffer area, interactive area,
interactive session, sanctuary area, and swim-with-the-dolphins (SWTD)
program would be added in alphabetical order, to read as follows:
Sec. 1.1 Definitions.
* * * * *
Buffer area means that area in a primary enclosure for a swim-with-
the-dolphins program that is off-limits to members of the public and
that directly abuts the interactive area.
* * * * *
Interactive area means that area in a primary enclosure for a swim-
with-the-dolphins program where an interactive session takes place.
Interactive session means a swim-with-the-dolphins program session
where members of the public enter a primary enclosure to swim with
dolphins.
* * * * *
Sanctuary area means that area in a primary enclosure for a swim-
with-the-dolphins program that is off-limits to the public and that
directly abuts the buffer area.
* * * * *
Swim-with-the-dolphins SWTD program means any human-dolphin
interactive program in which a member of the public enters the primary
enclosure in which a dolphin is housed to interact with the animal.
This excludes feeding and petting pools and the participation of any
member(s) of the public audience as a minor segment of an educational
show.
* * * * *
PART 3--[AMENDED]
3. The authority citation for part 3 would be revised to read as
follows:
Authority: 7 U.S.C. 2131-2159; 7 CFR 2.17, 2.51, and 371.2(g).
4. In subpart E, footnote 2 would be redesignated as footnote 3,
footnote 5 would be redesignated as footnote 2, footnote 8 would be
redesignated as footnote 4, and footnote 9 would be redesignated as
footnote 5.
5. A new section Sec. 3.111 would be added to read as follows:
Sec. 3.111 Swim-with-the-dolphins programs.
Swim-with-the-dolphins programs must comply with the requirements
in this section, as well as with all other requirements of this subpart
pertaining to dolphins.
(a) Space requirements. The primary enclosure for SWTD dolphins
must contain an interactive area, a buffer area, and a sanctuary area.
Movement of dolphins into the buffer or sanctuary area must not be
restricted. Notwithstanding the space requirements set forth in
Sec. 3.104, each of the three areas required for SWTD programs must
meet the following space requirements:
(1) The horizontal dimension for each area must be at least three
times the average adult body length of the species of dolphin used in
the program.
(2) The minimum surface area required for each area is calculated
as follows:
(i) Up to two dolphins:
[GRAPHIC][TIFF OMITTED]TP23JA95.009
(ii) Three dolphins:
[GRAPHIC][TIFF OMITTED]TP23JA95.010
(iii) Additional SA for each animal in excess of three:
[GRAPHIC][TIFF OMITTED]TP23JA95.011
(3) The average depth for each area must be at least 9 feet.
(4) The minimum volume required for each animal is calculated as
follows:
Volume=SA x 9
(5) Minimum space requirements for each area are summarized in
Table VI.
Table VI.--Minimum Space Requirements for Each Area and Primary Enclosure--SWTD
----------------------------------------------------------------------------------------------------------------
Minimum horizontal Surface area Depth Volume
dimension -----------------------------------------------------------------
Number of animals ----------------------
Each area Enclosure Each area Enclosure Each area Enclosure Each area Enclosure
(ft) (ft) (ft\2\) (ft\2\) (ft) (ft) (ft\3\) (ft\3\)
----------------------------------------------------------------------------------------------------------------
1-2..................... 27 81 572 1,716 9 9 5,148 15,444
3....................... 27 81 1,144 3,432 9 9 10,296 30,888
Each additional animal.. (\1\) (\1\) 254 763 (\1\) (\1\) 2,289 6,867
----------------------------------------------------------------------------------------------------------------
\1\No change.
(b) Water quality. Sufficient water clarity must be maintained so
that attendants are able to observe dolphins and humans at all times
while within the interactive area. If water clarity does not allow
these observations, the interactive sessions must be canceled until the
required clarity is provided.
(c) Employees and attendants. Each SWTD program must have, at the
minimum, the following personnel, with the following minimum
backgrounds (each position must be held by a separate individual):
(1) Licensee or manager--at least one full-time staff member with
at least 6 years in a professional or managerial position dealing with
captive cetaceans;
(2) Primary behaviorist--at least one full-time staff member with
at least 6 years experience in training cetaceans for SWTD behaviors,
or an equivalent amount of experience involving in-water training of
cetaceans, who serves as the head trainer for the SWTD program;
(3) Supervising attendant--at least one full-time staff member with
at least 3 years experience involving human/dolphin interactions; and
(4) Attending veterinarian--at least one staff or consultant
veterinarian who [[Page 4388]] has at least the equivalent of 2 years
full-time experience with cetacean medicine within the past 10 years.
(d) Program animals Only Tursiops truncatus may be used in SWTD
programs.
(e) Handling. (1) Interaction time for each dolphin shall not
exceed 2 hours per day. Each participating dolphin shall have at least
one period in each 24 hours of at least 10 continuous hours without
public interaction.
(2) All dolphins used in an interactive session must be adequately
trained and conditioned in human interaction so that they respond in
the session to the attendants with appropriate behavior for safe
interaction.
(3) The ratio of human participants to dolphins shall not exceed
3:1. The ratio of human participants to attendants shall not exceed
3:1.
(4) Prior to participating in a SWTD interaction session, members
of the public must be provided with written rules and instructions for
the session. Members of the public must agree, in writing, the abide by
the rules and instructions before being allowed to participate in the
session. Any participant who fails to follow the rules or instructions
must be removed from the session.
(5) All interactive sessions must have at least two attendants. At
least one attendant must be positioned in the water, except in cases
where at least one attendant is positioned so as to be able to
intervene during the session as quickly as if positioned in the water.
However, if the program has had more than two incidents during
interactive sessions that have been dangerous or harmful to either a
dolphin or a human, at least one attendant must be positioned in the
water.
(6) The SWTD program must limit interaction between dolphins and
humans so that the interaction does not harm the dolphins, does not
remove the element of choice from the dolphins, such as by recalling
the animal from the sanctuary area, and does not elicit undesirable
responses from the dolphins. The program must prohibit grasping or
holding of the dolphin's body, unless under the direct and explicit
instruction of an attendant eliciting a specific dolphin behavior, and
must prevent the chasing or other harassment of the dolphins.
(7) In cases where dolphins used in an interactive session exhibit
unsatisfactory behaviors, such as charging, biting, mouthing, or sexual
contact with humans, these dolphins must either be removed from the
interactive area or the session must be terminated. Written criteria
must be developed and submitted to APHIS\6\ regarding conditions and
procedures for the termination of a session when removal of a dolphin
is not possible and potentially unsafe behaviors are exhibited by one
or more dolphins. The primary behaviorist shall determine when
operations will be terminated, and when they may resume. In the absence
of the primary behaviorist, these determinations shall be made by the
supervising attendant.
\6\Send to Administrator, c/o Animal and Plant Health Inspection
Service, Regulatory Enforcement and Animal Care, Animal Care, 4700
River Road Unit 84, Riverdale, Maryland 20737-1234.
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(f) Recordkeeping. (1) In order for APHIS to properly evaluate a
proposed or an ongoing SWTD program, each facility must provide
APHIS\7\ with a description of its program at least 30 days prior to
initiation of the program, or in the case of any program already in
place, the description must be provided within 30 days from the
effective date of this final rule. The description must include at
least the following:
\7\Send to Administrator, c/o Animal and Plant Health Inspection
Service, Regulatory Enforcement and Animal Care, Animal Care, 4700
River Road Unit 84, Riverdale, Maryland 20737-1234.
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(i) Identification of each dolphin in the program, by means of name
and/or number, sex, age, and any other means the Administrator
determines to be necessary to adequately identify the dolphin;
(ii) A description of the educational content and agenda of planned
interactive sessions, and the anticipated average and maximum frequency
and duration of encounters per dolphin per day;
(iii) The content and method of pre-encounter orientation, rules,
and instructions, including restrictions on types of physical contact
with the dolphins;
(iv) A description of the SWTD facility, including the primary
enclosure and other housing at the facility;
(v) A description of the training the dolphin has undergone or will
undergo prior to participation in the program;
(vi) The curriculum vitae of all staff involved in the handling,
care, and maintenance of the dolphins;
(vii) The current behavior patterns and health of each dolphin, to
be assessed and submitted by the attending veterinarian;
(viii) A written program of veterinary care (APHIS form 7002),
including protocols and schedules of professional visits; and
(ix) A detailed description of the monitoring program to be used to
detect and identify changes in the behavior and health of the dolphins.
(2) In the case of a new SWTD program which APHIS finds deficient
in any respect, the facility will be notified so that it may correct
any deficiencies prior to the initiation of its program. In the case of
an existing SWTD program which APHIS finds deficient in any respect,
the facility will be notified of any deficiencies and provided the
opportunity to make corrections.
(3) Individual animal veterinary records, including all
examinations, laboratory reports, treatments, and necropsy reports must
be kept at the SWTD site for at least 5 years and be made available to
an APHIS official upon request during inspection:
(4) The following records must be kept at the SWTD site for at
least 3 years and be made available to an APHIS official upon request
during inspection:
(i) Individual dolphin feeding records; and
(ii) Individual dolphin behavioral records.
(5) The following reports must be kept at the SWTD site for at
least 3 years and a copy must be submitted to APHIS\8\ on a semi-annual
basis:
\8\See footnote 6.
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(i) Statistical summaries of the number of minutes per day and the
number of hours per week that each animal participated in an
interactive session;
(ii) A statistical summary of the number of human participants per
month in the SWTD program; and
(iii) A description of any changes made in the SWTD program since
the previous report was submitted.
(6) All incidents resulting in injury to either dolphins or humans
participating in an interactive session must be reported to APHIS
within 24 hours of the incident.\9\ Within 7 days of any such incident,
a written report must be submitted to the Administrator.\10\ The report
must provide a detailed description of the incident and must establish
a plan of action for the prevention of further occurrences.
\9\Telephone numbers for Regulatory Enforcement and Animal Care,
APHIS, sector offices can be found in local telephone books.
\10\See footnote 6.
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(g) Veterinary care. (1) The attending veterinarian must conduct
on-site evaluations of each dolphin at least once a month. The
evaluation must include a visual inspection of the animal; examination
of the behavioral, feeding, and medical records of the animal; and a
discussion of each animal with an animal care staff member familiar
with the animal.
(2) The attending veterinarian must observe an interactive swim
session at the SWTD site at least once each month. [[Page 4389]]
(3) The attending veterinarian must conduct a complete physical
examination of each dolphin at least once every 6 months. The
examination must include a profile of the dolphin, including the
dolphin's identification (name and/or number, sex, and age),
weight,\11\ length, axillary girth, appetite, and behavior. The
attending veterinarian must also conduct a general examination to
evaluate body condition, skin, eyes, mouth, blow hole and cardio-
respiratory system, genitalia, and feces (gastroin estinal status). The
examination must also include a complete blood count and serum
chemistry analysis. Fecal and blow hole smears must be obtained for
cytology and parasite evaluation.
\11\Weight may be measured either by scale or calculated using
the following formulae:
Females: Natural log of body mass=-8.44+1.34 (natural log of
girth)+1.28 (natural log of standard length)
Males: Natural log of body mass=-10.3+1.62 (natural log of
girth)+1.38 (natural log of standard length)
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(4) The attending veterinarian must record the nutritional and
reproductive status of each dolphin (whether in active breeding
program, pregnant, or nursing).
(5) The attending veterinarian must examine water quality records
and provide a written assessment, to stay at the SWTD site for at least
3 years, of the overall water quality during the preceding month.
(6) In the event that a dolphin dies, complete necropsy results,
including all appropriate histopathology, must be recorded in the
dolphin's individual file and be made available to APHIS officials
during facility inspections, or as requested by APHIS. The necropsy
must be performed within 48 hours of the dolphin's death, by a
veterinarian experienced in marine mammal necropsies. If the necropsy
is not be performed within 3 hours of the discovery of the dolphin's
death, the dolphin must be refrigerated until necropsy. Written results
of the necropsy must be available in the dolphin's individual file
within 7 days after death for gross pathology and within 45 days after
death for histopathology.
Done in Washington, DC, this 18th day of January 1995.
Lonnie J. King,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 95-1637 Filed 1-20-95; 8:45 am]
BILLING CODE 3410-34-M