[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]



 ========================================================================
 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.
 
 ========================================================================
 

  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