[Federal Register Volume 63, Number 172 (Friday, September 4, 1998)]
[Rules and Regulations]
[Pages 47128-47151]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23789]


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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

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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.
---------------------------------------------------------------------------

    \11\ Send to Administrator, c/o Animal and Plant Health 
Inspection Service, Animal Care, 4700 River Road Unit 84, Riverdale, 
Maryland 20737-1234.
---------------------------------------------------------------------------

    (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:
---------------------------------------------------------------------------

    \12\ See footnote 11 in Sec. 3.111(e)(8).
---------------------------------------------------------------------------

    (i) Identification of each cetacean 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 cetacean;
    (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 cetacean per day;
    (iii) The content and method of pre-encounter orientation, rules, 
and instructions, including restrictions on types of physical contact 
with the cetaceans;
    (iv) A description of the SWTD facility, including the primary 
enclosure and other SWTD animal housing or holding enclosures at the 
facility;
    (v) 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;
    (vi) The resume of the licensee and/or manager, the head trainer/
behaviorist, the trainer/supervising attendant, any other attendants, 
and the attending veterinarian;
    (vii) The current behavior patterns and health of each cetacean, to 
be assessed and submitted by the attending veterinarian;
    (viii) 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; and
    (ix) A detailed description of the monitoring program to be used to 
detect and identify changes in the behavior and health of the 
cetaceans.
    (2) All SWTD programs shall comply in all respects with the 
regulations and standards set forth in parts 2 and 3 of this 
subchapter.
    (3) Individual animal veterinary records, including all 
examinations, laboratory reports, treatments, and necropsy reports 
shall be kept at the SWTD site for at least 3 years and shall be made 
available to an APHIS official upon request during inspection.
    (4) The following records shall be kept at the SWTD site for at 
least 3 years and shall be made available to an APHIS official upon 
request during inspection:
    (i) Individual cetacean feeding records; and
    (ii) Individual cetacean behavioral records.
    (5) The following reports shall be kept at the SWTD site for at 
least 3 years and shall be made available to an APHIS official upon 
request during inspection:
    (i) Statistical summaries of the number of minutes per day 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
     (6) A description of any changes made in the SWTD program, which 
shall be submitted to APHIS 13 on a semi-annual basis.
---------------------------------------------------------------------------

    \13\ See footnote 11 in Sec. 3.111(e)(8).
---------------------------------------------------------------------------

    (7) All incidents resulting in injury to either cetaceans or humans 
participating in an interactive session, which shall be reported to 
APHIS within 24 hours of the incident.14 Within 7 days of 
any such incident, a written report shall be submitted to the 
Administrator.15 The report shall provide a detailed 
description of the incident and shall establish a plan of action for 
the prevention of further occurrences.
---------------------------------------------------------------------------

    \14\ Telephone numbers for APHIS, Animal Care, regional offices 
can be found in local telephone books.
    \15\ See footnote 11 in Sec. 3.111(e)(8).
---------------------------------------------------------------------------

    (g) Veterinary care. (1) The attending veterinarian shall conduct 
on-site evaluations of each cetacean at least once a month. The 
evaluation shall 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 shall observe an interactive swim 
session at the SWTD site at least once each month.
    (3) The attending veterinarian shall conduct a complete physical 
examination of each cetacean at least once every 6 months. The 
examination shall include a profile of the cetacean, including the 
cetacean's identification (name and/or number, sex, and age), 
weight,16 length, axillary girth, appetite, and behavior. 
The attending veterinarian shall also conduct a general examination to 
evaluate body condition, skin, eyes, mouth, blow hole and cardio-

[[Page 47151]]

respiratory system, genitalia, and feces (gastrointestinal status). The 
examination shall also include a complete blood count and serum 
chemistry analysis. Fecal and blow hole smears shall be obtained for 
cytology and parasite evaluation.
---------------------------------------------------------------------------

    \16\ 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).
---------------------------------------------------------------------------

    (4) The attending veterinarian, during the monthly site visit, 
shall record the nutritional and reproductive status of each cetacean 
(i.e., whether in an active breeding program, pregnant, or nursing).
    (5) The attending veterinarian shall examine water quality records 
and provide a written assessment, to remain at the SWTD site for at 
least 3 years, of the overall water quality during the preceding month. 
Such records shall be made available to an APHIS official upon request 
during inspection.
    (6) In the event that a cetacean dies, complete necropsy results, 
including all appropriate histopathology, shall be recorded in the 
cetacean's individual file and shall be made available to APHIS 
officials during facility inspections, or as requested by APHIS. The 
necropsy shall be performed within 48 hours of the cetacean'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 
cetacean's death, the cetacean shall be refrigerated until necropsy. 
Written results of the necropsy shall be available in the cetacean's 
individual file within 7 days after death for gross pathology and 
within 45 days after death for histopathology.

(Approved by the Office of Management and Budget under control 
numbers 0579-0036 and 0579-0115)

    Done in Washington, DC, this 31st day of August 1998.
Joan M. Arnoldi,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 98-23789 Filed 9-3-98; 8:45 am]
BILLING CODE 3410-34-P