[Federal Register Volume 81, Number 22 (Wednesday, February 3, 2016)]
[Proposed Rules]
[Pages 5629-5657]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-01837]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 81, No. 22 / Wednesday, February 3, 2016 / 
Proposed Rules  

[[Page 5629]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Parts 1 and 3

[Docket No. APHIS-2006-0085]
RIN 0579-AB24


Animal Welfare; Marine Mammals

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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SUMMARY: We are proposing to amend the Animal Welfare Act regulations 
concerning the humane handling, care, treatment, and transportation of 
marine mammals in captivity. These proposed changes would affect 
sections in the regulations relating to variances and implementation 
dates, indoor facilities, outdoor facilities, space requirements, and 
water quality. We are also proposing to revise the regulations that 
relate to swim-with-the-dolphin programs. We believe these actions are 
necessary to ensure that the minimum standards for the humane handling, 
care, treatment, and transportation of marine mammals in captivity are 
based on current industry and scientific knowledge and experience.

DATES: We will consider all comments on this proposed rule that we 
receive on or before April 4, 2016. To be assured consideration, 
comments on the information collection requirements related to this 
proposal should be submitted on or before March 4, 2016.

ADDRESSES: You may submit comments by either of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov/#!docketDetail;D=APHIS-2006-0085.
     Postal Mail/Commercial Delivery: Send your comment to 
Docket No. APHIS-2006-0085, Regulatory Analysis and Development, PPD, 
APHIS, Station 3A-03.8, 4700 River Road, Unit 118, Riverdale, MD 20737-
1238.
    Supporting documents and any comments we receive on this docket may 
be viewed at http://www.regulations.gov/#!docketDetail;D=APHIS-2006-
0085 or in our reading room, which is located in Room 1141 of the USDA 
South Building, 14th Street and Independence Avenue SW., Washington, 
DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through 
Friday, except holidays. To be sure someone is there to help you, 
please call (202) 799-7039 before coming.

FOR FURTHER INFORMATION CONTACT: Dr. Barbara Kohn, Senior Staff 
Veterinarian, Animal Care, APHIS, 4700 River Road, Unit 84, Riverdale, 
MD 20737-1234; (301) 851-3751.

SUPPLEMENTARY INFORMATION:

Executive Summary

I. Purpose of Regulatory Action

    This proposed rule would affect sections in the regulations for the 
protection of all marine mammals in the United States relating to 
interactive programs (e.g., swim-with-the-dolphin), space requirements, 
water quality, indoor facilities, outdoor facilities, implementation 
dates, and variances. The U.S. Department of Agriculture's (USDA) 
Animal and Plant Health Inspection Service (APHIS) established 
regulations for these mammals in 1998, based on the outcome of meetings 
of the Marine Mammal Negotiated Rulemaking Advisory Committee. When the 
original regulations were published, the provisions we are now amending 
were written in a very general way because APHIS had few relevant 
scientific studies or data available to help design the most effective 
practical regulatory approach for these areas. Over time, more relevant 
studies and data involving these sections and interactive programs have 
become available and APHIS has gained substantial experience working 
with regulated parties.

II. Legal Authority

    The Animal Welfare Act (the Act) (7 U.S.C. 2131 et seq.) authorizes 
the Secretary of Agriculture to promulgate standards and other 
requirements governing the humane handling, care, treatment, and 
transportation of certain animals by dealers, research facilities, 
exhibitors, carriers, and other regulated entities. Under the Act, 
APHIS established regulations in 1979 for the humane handling, care, 
treatment, and transportation of marine mammals used for research or 
exhibition purposes. The regulations contain standards for the humane 
handling, care, treatment, and transportation of marine mammals (part 
3, subpart E, Sec. Sec.  3.100 through 3.118).

III. Summary of Major Provisions

    We propose to revise swim-with-the-dolphin program regulations, for 
which enforcement was suspended effective April 2, 1999. This proposal 
contains revised standards that we propose to enforce for these 
programs. The proposed standards address interactive program facility 
space requirements, layout, operations, staffing, recordkeeping, and 
related matters. We set forth the proposed standards as performance-
based standards wherever we believe such an approach is feasible and 
supportable by current information and scientific documentation.
    The current subpart E regulations include minimum space 
requirements for the primary enclosure for species of marine mammals. 
We do not propose substantive changes to any of the minimum space 
requirements (Sec.  3.104), but we do propose clarifying how such areas 
are measured, updating and correcting discrepancies between formal 
calculations and current entries into space tables, and other enclosure 
matters.
    We also propose some changes to the regulations concerning water 
quality in facilities. These changes would implement the results of our 
review of recent studies of water quality and waterborne pathogens 
affecting marine mammals.
    The current regulations include conditions and deadlines for 
variance requests for space. These deadlines are out of date, but the 
ability for APHIS to grant temporary variances is an important tool 
when assuring the welfare of marine mammals. Therefore, we propose to 
update the conditions that can be addressed by a variance and identify 
the factors we use to approve or disapprove a variance request.
    The current regulations also provide standards for air and water 
temperatures, ventilation, and lighting at regulated indoor facilities 
that house marine mammals. We propose to revise these requirements to 
apply current best practices and recent scientific studies in order to 
ensure the welfare of the animals with respect to temperature,

[[Page 5630]]

ventilation, and lighting for indoor facilities.
    We also propose to revise the regulations covering standards for 
outdoor facilities, to require that the air and water temperature 
ranges at outdoor facilities be in accordance with the currently 
accepted husbandry practices for the species housed.

Background

    The Animal Welfare Act (the Act) (7 U.S.C. 2131 et seq.) authorizes 
the Secretary of Agriculture to promulgate standards and other 
requirements governing the humane handling, care, treatment, and 
transportation of certain animals by dealers, research facilities, 
exhibitors, carriers, and other regulated entities. The Secretary of 
Agriculture has delegated the responsibility for enforcing the Act to 
the Administrator of the Animal and Plant Health Inspection Service 
(APHIS). Regulations established under the Act are contained in 9 CFR 
parts 1, 2, and 3.
    Under the Act, APHIS established regulations in 1979 for the humane 
handling, care, treatment, and transportation of marine mammals used 
for research or exhibition purposes. The regulations contain standards 
for the humane handling, care, treatment, and transportation of marine 
mammals (part 3, subpart E, Sec. Sec.  3.100 through 3.118). Some 
sections of these regulations have not been substantively amended since 
1984.
Marine Mammal Regulations
    In 1995, we established a Marine Mammal Negotiated Rulemaking 
Advisory Committee (the Committee) to advise the Department on 
revisions to the marine mammal regulations. The Committee met for three 
sessions between 1995 and 1996. Under the rules governing the 
negotiated rulemaking process, and in accordance with the organization 
protocols established by the Committee, APHIS agreed to publish as a 
proposed rule any consensus language developed during the meetings 
unless substantive changes were made as a result of authority exercised 
by another Federal Government entity. The Committee developed consensus 
language for changes to 13 of the 18 sections that comprise the 1979 
regulations and for 1 paragraph in a 14th section.
    On February 23, 1999, we published a proposed rule in the Federal 
Register (64 FR 8735-8755, Docket No. 93-076-11) that contained the 
language developed by the Committee for those sections of the 
regulations for which consensus had been reached. The rule was made 
final, with changes, on January 3, 2001 (66 FR 239-257, Docket No. 93-
076-15), and became effective on April 3, 2001 (66 FR 8744, Docket No. 
93-076-16).
Remaining Issues
    Although consensus language was developed by the Committee for 13 
of the 18 sections of the regulations in their entirety, and for 1 
paragraph of another section, the Committee conducted extensive 
discussions on all sections of the regulations. No consensus language 
was developed for four sections of the standards: Sec.  3.100 on 
variances and implementation dates; Sec.  3.102 on indoor facilities; 
Sec.  3.103 on outdoor facilities; and Sec.  3.106 on water quality. 
Consensus language was developed for general space requirements for the 
14th section, but not on the specific space requirements for particular 
marine mammals. The Committee agreed that APHIS would develop and 
promulgate a proposed rule to address those parts of the regulations 
for which consensus language was not developed.
Interactive Programs
    In addition to the 1979 regulation and the 2001 amendments, we 
published a proposed rule to establish standards for swim-with-the-
dolphin programs in a new Sec.  3.111 on January 23, 1995 (60 FR 4383-
4389, Docket No. 93-076-2). The swim-with-the-dolphin rule was a new 
standard and not included in the goal of updating the existing 
standards in subpart E. After reviewing the comments for the swim-with-
the-dolphin proposed rule and the results from a National Oceanic and 
Atmospheric Administration (NOAA)-sponsored study conducted between 
1992-1994,\1\ we published a final rule in the Federal Register on 
September 4, 1998 (63 FR 47128-47151, Docket No. 93-076-10), that made 
final some of the proposed provisions, along with changes we made based 
on the comments received. The final rule became effective October 5, 
1998.
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    \1\ Samuels, A. and T.R. Spradlin. 1994. Quantitative behavioral 
study of bottlenose dolphins in Swim-With-The-Dolphin programs in 
the United States. Final Report to the National Marine Fisheries 
Service, Office of Protected Resources. 25 April 1994. 57 pp. 
Samuels, A. and T.R. Spradlin. 1995. Quantitative behavioral study 
of bottlenose dolphins in Swim-With-Dolphin programs in the United 
States. Marine Mammal Science, 11(4): 520-544.
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    Following publication of the final rule, a number of parties 
affected by the rule contacted us and asserted that they did not fully 
understand the regulatory implications of the proposed and final rules 
for wading programs, encounter programs, and other interactive 
programs. Specifically, these regulated parties stated that it had not 
been clear to them that we intended the provisions of the rule to apply 
to shallow-water interactive programs. Shallow-water interactive 
programs are programs in which members of the public enter the primary 
enclosure of a cetacean to interact with the animal, and in which the 
participants remain primarily stationary and nonbuoyant. The regulated 
parties stated that, because of this misunderstanding, they had not 
been able to participate fully in the rulemaking process.
    In response to these concerns, on October 14, 1998 (63 FR 55012, 
Docket No. 9307612), we announced that, as of the effective date of the 
September 4, 1998, final rule, and until further notice, we would not 
enforce the standards relating to space for the interactive area and 
human participant/attendant ratio to shallow-water interactive 
programs. Subsequently, on April 2, 1999 (64 FR 15918-15920, Docket No. 
93-076-13), we suspended enforcement of all of Sec.  3.111. This meant 
that only the specific requirements of Sec.  3.111 would be excluded 
from citation of noncompliant items. All interactive programs were and 
still are at AWA licensed facilities and thereby required to comply 
with all other regulations and standards appropriate for that facility. 
The facility and animals remained under AWA oversight by USDA.
Advance Notice of Proposed Rulemaking
    On May 30, 2002 (67 FR 37731-37732, Docket No. 93-076-17), we 
published in the Federal Register an advance notice of proposed 
rulemaking (ANPR) in which we solicited comments regarding appropriate 
changes or additions to the marine mammal standards for which consensus 
language was not developed during the negotiated rulemaking, as well as 
the standards for interactive programs such as swim-with-the-dolphin 
programs. We solicited comments for 60 days ending on July 29, 2002. We 
received 365 comments by that date. They were from private citizens, 
exhibitors, and professional organizations. We have reviewed and 
considered all of the comments and any information submitted with the 
comments. The issues raised by the commenters are discussed below.
    A commenter recommended that Sec.  3.100, ``Special considerations 
regarding compliance and/or variance,'' should be deleted, stating that 
there is no good reason to grant a variance from the space 
requirements. Another commenter suggested that temporary

[[Page 5631]]

variances be granted for 6 months with only one extension and that 
lifetime variances be granted only when necessary. The commenter also 
stated that APHIS should confiscate animals at facilities that fail to 
comply with the regulations after the expiration of the variance.
    Several commenters asserted that rigid standards for air and water 
temperatures would be counterproductive and would not guarantee the 
health and well-being of the marine mammals. These commenters said that 
animals may be acclimated to temperatures outside of any ranges that 
APHIS may establish. On the other hand, another commenter said that 
water temperature requirements are necessary because water that is too 
warm is stressful to the animal and facilitates the spread of disease. 
Another commenter stated that APHIS should prohibit polar bear exhibits 
in tropical locales.
    One commenter recommended that APHIS establish standards for sound 
that address decibel levels as well as the type of sound. Another 
commenter suggested that pools be required to have sloping walls in 
order to lessen underwater echoes.
    A number of commenters stated that the regulations for ventilation 
and lighting were adequate; however, these commenters also stated that 
it wasn't unreasonable to require 6 hours of uninterrupted darkness per 
day.
    Several commenters stated that some portion of an outdoor pool must 
be shaded. Other commenters suggested that the regulations concerning 
shade be amended to require that shade be provided if deemed necessary 
by a veterinarian.
    One commenter recommended that seagull harassment of marine mammals 
be specifically addressed in the regulations. The commenter also 
recommended that pools be cleaned daily by a qualified diver.
    A commenter asked APHIS to explore alternatives to chlorine to 
improve water quality. Several commenters suggested that requirements 
for water quality be established for each species based on the 
conditions the animal may encounter in the wild. Similarly, a commenter 
stated that marine species should be housed in saltwater tanks and 
freshwater species housed in freshwater tanks.
    Some commenters recommended that enclosures resemble an animal's 
natural habitat. One commenter suggested that marine mammals should be 
moved from concrete enclosures to manmade lakes.
    A number of commenters supported an increase in the space 
requirements for marine mammals. Several commenters stated that pool 
depth and volume should be used to determine the space requirements. 
These commenters stated that the average adult length of a species 
should be used to determine the minimum depth requirements and that the 
tables setting out the average adult length for each species should be 
updated. Finally, these same commenters stated that the space 
requirements should not take into account minimum width or longest 
straight-line swimming distance.
    A commenter recommended that space requirements should be based on 
the maximum adult length of an animal instead of the average adult 
length. Several commenters suggested that APHIS match or exceed the 
minimum space requirements used in the United Kingdom, Brazil, and 
Italy. Some commenters recommended that pools be at least 300 feet wide 
and 60 feet deep. One commenter recommended that pools be at least 25 
meters deep. One commenter suggested that the current space 
requirements be doubled within the next 5 years, while another 
commenter suggested a tenfold increase in the current space 
requirements.
    A number of commenters claimed that it would be unfair and costly 
to require facilities to retrofit their marine mammal enclosures to 
comply with new space requirements. Several commenters stated that it 
would be financially unfeasible to retrofit facilities.
    Some commenters stated that the regulations for interactive 
programs should be flexible enough to accommodate the wide variety of 
interactive programs in the United States. These commenters went on to 
state that the current regulations provide the necessary protection for 
marine mammals used in interactive programs.
    One commenter asserted that APHIS should require that dolphins and 
humans participating in an interactive program be free of disease. The 
commenter noted that certain human diseases pose a threat to dolphins 
(e.g., influenza, chicken pox). The commenter also stated that feeding 
a dolphin and grasping or holding a dolphin should be prohibited during 
interactive programs.
    Several commenters argued that petting pools and dolphin-assisted 
therapy should be regulated as interactive programs. Another commenter 
stated that feeding and petting pools should be eliminated.
    One commenter stated that interactive programs should be allowed 
only if the interactions are tightly controlled at all times by 
professional trainers and the animals are allowed to choose whether or 
not to participate.
    A commenter stated that any release of a marine mammal into the 
wild should be authorized by the U.S. Fish and Wildlife Service or the 
National Marine Fisheries Service prior to the release. Finally, a 
number of commenters asked APHIS to free or retire a killer whale named 
Lolita.
    Based on our review of the ANPR comments, information submitted by 
exhibitors and professional organizations, a review of published 
scientific studies and current standards for lighting, ventilation, 
water quality, etc., and our experience with the marine mammal 
standards, we are now proposing to amend the regulations concerning the 
humane handling, care, treatment, and transportation of marine mammals 
in captivity. These proposed changes would affect sections in the 
regulations relating to variances, indoor facilities, outdoor 
facilities, space requirements, and water quality. We are also 
proposing to revise the regulations that relate to swim-with-the-
dolphin programs. Each of these changes is discussed in detail below.
Definitions
    We are proposing to amend Sec.  1.1 of the regulations, 
``Definitions,'' by revising the terms interactive area, interactive 
session, primary enclosure, and sanctuary area. Section 1.1 defines an 
interactive area as ``that area in a primary enclosure for a swim-with-
the dolphin program where an interactive session takes place.'' We are 
proposing to redefine interactive area to mean ``that area of a marine 
mammal primary enclosure where an interactive program takes place.'' 
Use of the term ``marine mammal'' is necessary because facilities may 
use marine mammals other than cetaceans in interactive programs. It is 
also consistent with our use of the term throughout proposed Sec.  
3.111, as well as elsewhere, unless reference to a specific species is 
necessary. The term ``interactive program'' replaces ``swim-with-the-
dolphin program'' since we are proposing to no longer use the term 
``swim-with-the-dolphin program,'' as discussed below.
    Section 1.1 defines an interactive session to mean a ``swim-with-
the-dolphin program session where members of the public enter a primary 
enclosure to interact with cetaceans.'' For the reasons given above for 
our changes to the definition of interactive area, we are proposing to 
redefine interactive session to mean ``the time during which a marine 
mammal and a member of the public are in the interactive area.''

[[Page 5632]]

    Section 1.1 defines a primary enclosure to mean ``any structure or 
device used to restrict an animal or animals to a limited amount of 
space, such as a room, pen, run, cage, compartment, pool, or hutch.'' 
We are proposing to add additional examples of structures and devices 
that qualify as primary enclosures. Specifically, we are proposing to 
add that primary enclosures, which may also be referred to as 
``enclosures'' in the regulations and standards, include, but are not 
limited to, display enclosures, holding enclosures, night enclosures, 
off-exhibit enclosures, and medical enclosures. This proposed change is 
nonsubstantive because the listed examples already qualify as primary 
enclosures under the existing definition of that term, but it is 
necessary because there has been some confusion over the years about 
what constitutes a primary enclosure. This proposed clarification would 
ensure that regulated entities apply all appropriate requirements, such 
as space, safety, sanitation, and protection from the elements, to all 
areas where regulated animals are kept, unless otherwise provided in 
the regulations or standards.
    Section 1.1 defines a sanctuary area to mean ``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.'' We are 
proposing to redefine this term to mean ``that area in a primary 
enclosure for marine mammals that abuts the interactive area and is 
off-limits to the public.'' These changes are consistent with the 
reasons given above for our changes to the definition of interactive 
area and our intent to no longer use the term ``buffer area,'' as 
discussed below.
    Section 1.1 defines 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 inclusions are not limited to, wading, swimming, 
snorkeling, or scuba diving in the enclosure.\2\ 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.''
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    \2\ We note that interactive programs have been operating for 
over 20 years without any indications of health problems or 
incidents of aggression in marine mammals, as evidenced by medical 
records maintained by licensed facilities and observations by 
experienced APHIS inspectors.
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    We would remove the definition of swim-with-the-dolphin (SWTD) 
program and add in its place the term interactive program. We would 
define interactive program as ``any human-marine mammal interactive 
program where a member of the public enters a primary enclosure for a 
marine mammal with the intent of interacting with the marine mammal(s), 
except for potentially dangerous marine mammals, such as, but not 
limited to, polar bears. Such programs include, but are not limited to, 
sessions in which the human participants swim, snorkel, scuba dive, or 
wade in the enclosure and sessions in which the human participants sit 
on a dock or ledge, including therapeutic sessions. Such programs 
exclude, but such exclusions are not limited to, feeding or petting 
pools where the members of the public are not allowed to enter the 
enclosure, and the participation of an audience member at what has been 
traditionally known as a performance or show involving the exhibition 
of marine mammals.'' \3\
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    \3\ During such performances, 1 or 2 persons are typically 
brought from the audience to stand near and perhaps touch or signal 
the animal under the monitoring or control of a trainer. We do not 
consider animal performances that include brief participation by a 
few audience members to be interactive programs.
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    The proposed definition of interactive program differs from the 
definition of swim-with-the-dolphin program in several ways. It uses 
the term ``marine mammal'' in place of ``cetacean'' and clarifies that 
interactive programs are inappropriate for potentially dangerous marine 
mammals, such as, but not limited to, polar bears. This new definition 
also provides additional examples of interaction including ``sessions 
in which participants sit on a dock or ledge, including therapeutic 
sessions.'' However, the term interactive program would continue to 
exclude programs such as feeding or petting pools, or any other 
programs ``where members of the public are not allowed to enter the 
primary enclosure.'' The proposed definition of interactive program 
would also exclude participation of an audience member at what is 
traditionally known as a performance or show involving the exhibition 
of marine mammals. This would simplify the current requirement which 
excludes from consideration the participation of the public ``as a 
minor segment of an educational presentation or performance of a 
show.''
    Finally, we would remove from Sec.  1.1 the definition of buffer 
area, which is defined as ``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.'' This definition 
would no longer be necessary based upon our intention to remove the 
requirement in proposed Sec.  3.111 that interactive programs must 
contain a buffer area for animals. We have found that it is redundant 
and not necessary to require both a buffer area and a sanctuary area as 
long as the animal has unrestricted access to a sanctuary area.
Variances
    Section 3.100 contains the conditions under which a regulated 
facility may request and qualify for a variance for a limited period of 
time from one or more of the space requirements in Sec.  3.104. The 
provisions were put into place to allow regulated facilities time to 
come into compliance with the space requirements made in 1984. These 
provisions are no longer applicable because we are not increasing the 
space requirements.
    There were few recommendations on the implementation dates and 
variances in the comments on the ANPR. One commenter recommended that 
Sec.  3.100, ``Special considerations regarding compliance and/or 
variance,'' be deleted because there is no good reason to grant a 
variance from the space requirements. Another commenter suggested that 
temporary variances be granted for 6 months with only one extension and 
that lifetime variances be granted only when necessary. The commenter 
also stated that APHIS should confiscate animals at facilities that 
fail to comply with the regulations after the expiration of the 
variance.
    We propose to revise Sec.  3.100 to make it operative once again 
with respect to exhibition and research facilities covered by the 
regulations. This will provide regulated facilities greater flexibility 
in complying with the regulations and standards. Regarding the comment 
about animal confiscation, APHIS' confiscation authority under the AWA 
is outlined in Sec.  2.129 of the AWA regulations and standards. The 
animal must be found to be suffering as a result of noncompliance with 
the regulations and standards and the licensee fails to provide the 
remedy required by APHIS.
Indoor Facilities
    Section 3.102 provides the standards for air and water 
temperatures, ventilation, and lighting at regulated facilities that 
house marine mammals.
    Paragraph (a) of Sec.  3.102 provides that the air and water 
temperatures in indoor facilities shall be sufficiently regulated by 
heating or cooling to protect the

[[Page 5633]]

marine mammals from extremes of temperature, to provide for their good 
health and well-being and to prevent discomfort, in accordance with the 
currently accepted practices as cited in appropriate professional 
journals or reference guides. The section also states that rapid 
changes in air and water temperatures shall be avoided.
    Animals kept in a temperature range appropriate to their species 
benefit from improved health and welfare.\4\ While animals may be able 
to survive warmer or colder temperatures, animal metabolism has 
developed to function best within a particular temperature range for 
both air and water (thermoneutral zone). The animal may be able to 
survive outside this range, but the added stress can negatively affect 
the animal's metabolism as it tries to maintain internal temperatures 
and other metabolic processes \5\ in non-ideal environmental 
conditions.
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    \4\ ``Marine Mammals Ashore,'' Joseph R. Geraci and Valerie J. 
Lounsbury, Texas A&M Sea Grant Publication, 1993, outlines habitat 
ranges for many marine mammals.
    \5\ Akin, J. A. (2011) Homeostatic Processes for 
Thermoregulation. Nature Education Knowledge 3(10):7.
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    We are proposing no substantive changes to Sec.  3.102(a). The 
question of ambient and environmental temperatures was discussed in 
depth during the negotiated rulemaking process. While the members of 
the Committee acknowledged the importance of maintaining marine mammals 
within their optimum temperature range, there was not enough published 
scientific data available to develop a list of acceptable temperature 
ranges for each marine mammal species. We are unaware of any definitive 
publications that combine the habitat ranges of marine mammals with the 
environmental temperature ranges in that habitat. This information 
would be beneficial to USDA and our licensees and we request any and 
all such data appropriate to marine mammal species during the comment 
period. That may not be possible, though, as we think it would require 
using diverse sources from fisheries data, biological oceanography 
species distributions, and physical oceanography sources on 
temperatures and salinity. Habitat usage budgets would also be needed 
in order to determine the most appropriate temperature range for the 
marine mammal. Since this information is not readily tabulated, we will 
continue to use the health and behavior of the marine mammals in 
assessing the adequacy and appropriateness of the pools and enclosure 
temperatures.
    Several commenters on the ANPR asserted that rigid standards for 
air and water temperatures would be counterproductive and would not 
guarantee the health and well-being of the marine mammals. These 
commenters said that animals may be acclimated to temperatures outside 
of any ranges that APHIS may establish. On the other hand, another 
commenter said that water temperature requirements are necessary 
because water that is too warm is stressful to the animal and 
facilitates the spread of disease. As noted earlier, another commenter 
stated that APHIS should prohibit polar bear exhibits in tropical 
locales.
    Taking into account the discussions regarding air and water 
temperatures during the negotiated rulemaking process and in the ANPR 
comments, we are retaining the performance-based standards of the 
current regulations and, as needed, will develop guidelines for 
appropriate temperature ranges for marine mammal species based on 
scientific and published data when, and if, it becomes available. We 
request any and all such data appropriate to marine mammal species 
during the comment period.
    Paragraph (b) of Sec.  3.102 contains the ventilation standards for 
indoor facilities housing marine mammals. It provides that facilities 
shall be ventilated by natural or artificial means to provide a flow of 
fresh air for the marine mammals and to minimize the accumulation of 
chlorine fumes, other gases, and objectionable odors.
    The benefit of providing adequate ventilation for indoor marine 
mammal enclosures is improved animal welfare. Improved ventilation can 
reduce the effects of skin and mucous membrane irritation in marine 
mammals. Improvements in ventilation can also result in less 
accumulation of moisture and potential trapping of bacteria and 
particles on walls. Excessive moisture may allow for bacterial and mold 
growth in the enclosure area, risking the health and well-being of the 
marine mammals. These same considerations apply to personnel working in 
enclosure and exhibit areas, and potentially to the general public.
    Few comments on the ANPR addressed the current ventilation 
requirements. Those commenters who did address the ventilation 
standards stated that the current performance-based standard was 
sufficient. However, based on our experience regulating marine mammal 
facilities and on commonly accepted human standards for ventilation 
followed by engineers and architects for buildings throughout the 
United States, we are proposing to modify the ventilation standards in 
several ways. The majority of the changes are performance-based in 
nature. Instead of stating that the ventilation shall minimize the 
accumulation of chlorine fumes, other gases, and objectionable odors, 
we are proposing that the ventilation would have to prevent the 
accumulation of chlorine/chloramine fumes, ammonia fumes, ozone, other 
gases, or odors at levels that would be objectionable or harmful to a 
person of average sensitivity. We would also add that the ventilation 
would have to maintain relative humidity at a level that prevents 
condensation in order to minimize the potential for bacterial, fungal, 
or viral contamination from condensation. Relative humidity can be 
controlled by a variety of methods, including increased ventilation 
with drier air or the use of dehumidifiers. Furthermore, we would 
provide that the average ventilation rate should exceed 0.2 cubic feet 
per minute per kilogram (cfm/kg) of animal. An average ventilation rate 
is the rate at which indoor air enters and leaves a building. We are 
proposing to require that the average ventilation rate should exceed 
0.2 cfm/kg of animal in facilities with marine mammals because that is 
the rate necessary to dilute odors and limit the concentration of 
carbon dioxide and airborne pollutants harmful to marine mammals and 
humans.\6\ These proposed requirements are based on commonly accepted 
standards for ventilation used by engineers, architects, and government 
agencies for buildings with human occupants.\7\
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    \6\ See ASHRAE recommendations cited in footnote 7.
    \7\ ASHRAE recommendations minimize the accumulation of noxious 
and potentially toxic gases, such as chlorine, chloramines, methyl 
bromide, and ammonia: 2013 ASHRAE Handbook--Fundamentals (SI). OSHA 
investigates reported incidents of potentially hazardous air quality 
conditions: https://www.osha.gov/SLTC/ventilation/index.html. NIH 
provides ventilation guidance for laboratory animals that can be 
used in general animal housing as well: http://www.orf.od.nih.gov/PoliciesAndGuidelines/BiomedicalandAnimalResearchFacilitiesDesignPoliciesandGuidelines/DRMHTMLver/Chapter2/Pages/Section2-4AnimalResearchFacilities.aspx.
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Lighting

    Paragraph (c) of Sec.  3.102 contains performance-based standards 
for lighting in indoor housing facilities, providing that the lighting 
shall: (1) Be of a quality, distribution, and duration that is 
appropriate for the species involved; (2) allow for routine 
inspections, observations, and cleaning; and (3) prevent exposure of 
the marine mammals to excessive illumination.

[[Page 5634]]

    The ANPR commenters that addressed this issue stated that the 
current requirements for lighting were adequate; however, the 
commenters also stated that it was not unreasonable to require 6 hours 
of uninterrupted darkness per day for marine mammals.
    Ensuring the health and normal functioning of metabolic systems for 
animals used to a diurnal light pattern (day and night periods) can be 
impacted by the use of artificial lighting and changes to the normal 
pattern of diurnal fluctuations in the day and night light patterns. 
Natural light sources, such as large windows and skylights for indoor 
enclosures, provide marine mammals with both natural light variations 
and full-spectrum lighting. Full spectrum lighting approximates natural 
sunlight by providing all natural wavelengths of light from an 
artificial light source. Studies in animals suggest that natural and 
full spectrum lighting may be beneficial for animal welfare, behavior, 
physiology, and regulating diurnal cycles. When natural light sources 
are not available or light patterns do not closely mimic natural 
patterns of light and dark provided by the sun, there can be negative 
impacts on the health and metabolism of terrestrial and aquatic 
animals.\8\
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    \8\ Gaston, Kevin J.; Duffy, James P.; Gaston, Sian; Bennie, 
Jonathan; Davies, Thomas W.; ``Human alteration of natural light 
cycles: causes and ecological consequences,'' Oecologia (2014) 
176:917-931. Gaston, Kevin J.; Bennie, Jonathan; ``Demographic 
effects of artificial lighting on animal populations,'' Environ. 
Rev.(2014), 22:323-330. Edwards, L. and Torcellini, P., 2002, ``A 
Literature Review of the Effects of Natural Light on Building 
Occupants,'' (NREL/TP-550-30769), National Renewable Energy 
Laboratory, 58 pp. Rich, Catherine and Longcore, Travis (eds), 2006, 
``Ecological Consequences of Artificial Night Lighting,'' Island 
Press. Covelo, CA. Pages 15-42. Kane, Lisa, Forthman, Debra, and 
Hancocks, David (eds.), 2005, ``Best Practices by the Coalition for 
Captive Elephant Well-Being,'' 33 pp., http://www.elephantcare.org/protodoc_files/2008/CCEWBCoreBestPractices.2.pdf. Gage, Laurie 
(author), and Whaley, Janet E. (ed.), 2006, ``Interim Policies and 
Best Practices Marine Mammal Stranding Response, Rehabilitation, and 
Release Standards for Rehabilitation Facilities,'' NOAA National 
Marine Fisheries Service Marine Mammal Health and Stranding Response 
Program, 50 pp., http://www.nmfs.noaa.gov/pr/pdfs/health/rehab_facilities.pdf. Anderson, Kevin, 2013, ``Are the Lights On or 
Off?'' 12 pp., http://www.alnmag.com/articles/2013/11/are-lights-or. 
Hotz, Vitaterna, Martha, Takahashi, Joseph S., and Turek, Fred W., 
``Overview of Circadian Rhythms,'' http://pubs.niaaa.nih.gov/publications/arh25-2/85-93.htm. Penev, Toncho, Radev, Veselin, 
Slavov, Todor, Kirov, Veselin, Dimov, Dimo, Atanassov, Alexandar and 
Marinov, Ivaylo, (2014), ``Effect of lighting on the growth, 
development, behaviour, production and reproduction traits in dairy 
cows,'' Int. J. Curr. Microbiol. App. Sci 3(11) 798-810.
---------------------------------------------------------------------------

    In addition, sufficient light is needed to allow observation of the 
animals by the caretakers and the APHIS inspectors. This requirement is 
not changed in this docket, but the level of light recommended assures 
the ability to adequately observe the animals in the enclosure.
    To better provide for the well-being of marine mammals, we believe 
the lighting standards need to be more specific. Accordingly, we 
propose to amend Sec.  3.102(c) to state that, in addition to the 
general standards already provided, artificial lighting must provide 
full spectrum lighting. We are proposing this change so that the 
environment these mammals are housed in more closely resembles the 
natural world. We would also require that artificial light levels 
measured 1 meter above pools or decks should not exceed 500 lux, which 
is the minimum unit of measure of light sufficient to provide proper 
illumination for marine mammal primary enclosures.\9\ This minimum 
level was developed to provide persons in the space sufficient light to 
see everything needed to operate safely within that area. In addition, 
the light levels that provide for the safety of the people in the space 
also allow for sufficient light to observe the animals. Employees must 
be able to observe the animals in order to assess their behavior and 
health, as well as to determine if the animals are interacting with 
portions of the enclosure, such as drains and pipes, that would present 
a potential health risk. The minimum light levels must be over all 
parts of the pool/enclosure. This requirement is compatible with the 
standards required by the Association of Zoos and Aquariums (AZA) in 
the reference material for accreditation.\10\
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    \9\ http://www.gsa.gov/portal/content/101308.
    \10\ https://www.aza.org/uploadedFiles/Accreditation/AZA-Accreditation-Standards.pdf.
---------------------------------------------------------------------------

    Facilities would be required to provide at least 6 hours of 
uninterrupted darkness during each 24-hour period, which mimics the 
normal diurnal cycles of light and dark that marine mammals are adapted 
to. When possible, the lighting should approximate the lighting 
conditions encountered by the animal in its natural environment. For 
example, if a species of marine mammal is primarily tropical, the 
lighting conditions for that animal should be as close to 12 hours of 
light and 12 hours of dark as possible, whereas the lighting conditions 
for other species of marine mammals may be closer to 10 hours of light 
and 14 hours of dark. Whatever the facilities' hours are, a minimum of 
6 hours of dark must be provided to give all animals some period of 
night. We request comment on information on this minimum period of 
darkness, and whether it should be shorter or longer. We chose 6 hours 
as a reasonable minimum, since we think it may correspond with typical 
work hours at a facility. The lighting must not cause overexposure, 
discomfort, or trauma.
    The standards for lighting that we are proposing are based on our 
review of findings and recommendations in scientific literature for 
lighting animal enclosures.\11\ We reviewed general published articles 
and books, as well as those specific to marine mammals. We believe the 
proposed changes to Sec.  3.102(c) are necessary to ensure that the 
lighting provided is of a quality, quantity, and duration that 
approximates the lighting conditions found in the animal's natural 
environment, a practice recognized by experts in the field of animal 
husbandry and behavior to be beneficial in maintaining the overall 
health of all animals.
---------------------------------------------------------------------------

    \11\ See footnote 8.
---------------------------------------------------------------------------

Outdoor Facilities
    Section 3.103 of the regulations provides the standards for air and 
water temperature, shelter, and perimeter fencing at outdoor facilities 
housing marine mammals. Paragraph (a) of Sec.  3.103 provides that 
marine mammals shall not be housed in outdoor facilities unless the air 
and water temperature ranges they may encounter do not adversely affect 
their health and comfort. Paragraph (a) further provides that marine 
mammals shall not be introduced to an outdoor housing facility until 
they are acclimated to the air and water temperature ranges that they 
will encounter there.
    We are proposing to make several changes to Sec.  3.103(a). We are 
proposing to require that the air and water temperature ranges at 
outdoor facilities be in accordance with the currently accepted 
husbandry practices for the species housed.
    Paragraph (a)(3) of Sec.  3.103 provides that no sirenian or warm 
water dwelling species of pinnipeds or cetaceans shall be housed in 
outdoor pools where water temperature cannot be maintained within the 
temperature range to meet their needs. To clarify what we mean by the 
``needs'' of marine mammals, we would revise this standard by 
specifying instead that the water temperature for these particular 
marine mammals be maintained within the temperature range needed to 
maintain their good health and to prevent discomfort in accordance with 
currently accepted practices as cited in appropriate professional 
journals or reference guides.\12\
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    \12\ Industry groups that have developed such practices include, 
but are not limited to, the Association for Zoos and Aquariums 
(https://www.aza.org) and the Alliance of Marine Mammal Parks and 
Aquariums (http://www.ammpa.org).

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[[Page 5635]]

    Paragraph (b) of Sec.  3.103 contains the standards for providing 
shelter for marine mammals housed in outdoor facilities. It provides 
that natural or artificial shelter, as appropriate for the particular 
species when local climatic conditions are taken into consideration, 
shall be provided for all marine mammals kept outdoors to afford them 
protection from the weather or from direct sunlight.
    Several commenters on the ANPR stated that some portion of an 
outdoor pool must be shaded. Other commenters suggested that the 
regulations concerning shade be amended to require that shade be 
provided if deemed necessary by a veterinarian.
    Because marine mammals are susceptible to overheating and sunburn 
and/or eye damage from direct and/or reflected sunlight, and UV light 
reflections can cause or exacerbate damage to marine mammal eyes,\13\ 
we are proposing to amend Sec.  3.103(b) by adding that the shade must 
be accessible and must cover sufficient area to afford all the animals 
within the enclosure protection from direct sunlight while not limiting 
their ability to move or not be too close to another animal. The shaded 
areas need not be contiguous. In addition, feeding and training of 
animals must be performed so that the animals are not required to look 
directly into the sun. Shade requirements are compatible with published 
AZA standards. Shade structures may be permanent or temporary (easily 
moved or deployed). We believe the performance-based standard we are 
proposing will allow facilities to provide the required amount of shade 
according to the unique conditions of each enclosure. This standard 
expands the requirement in current Sec.  3.103(b) that natural and 
artificial shelter must be provided to afford protection from direct 
sunlight.
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    \13\ Gage, Laurie, ``Risk factors associated with cataracts and 
lens luxations in captive pinnipeds in the United States and the 
Bahamas,'' Journal of the American Veterinary Medical Association, 
August 15, 2010, Vol. 237, No. 4 (429-436) http://www.ncbi.nlm.nih.gov/pubmed/20707754. Gage, Laurie, ``Captive 
pinniped eye problems, we can do better,'' Journal of Marine Animals 
and Their Ecology (2011): http://www.oers.ca/journal/volume4/issue2/Gage_Galley.pdf.
---------------------------------------------------------------------------

Space Requirements
    Section 3.104 contains the minimum space requirements for primary 
enclosures, including pools of water, housing marine mammals. These 
space requirements are based on standards and scientific information 
available at the time the regulations were promulgated in 1979, and 
amended in 1984. The current space requirements are based on circular 
pools which, while prevalent 30 years ago, have been largely replaced 
by more intricately shaped pools.
    As discussed previously, some commenters on the ANPR recommended 
that enclosures resemble an animal's natural habitat. A number of 
commenters supported an increase in the space requirements for marine 
mammals, although the majority of commenters focused on the space 
requirements for cetaceans. A number of commenters claimed that it 
would be unfair and costly to require facilities to retrofit their 
marine mammal enclosures to comply with new space requirements. Several 
commenters stated that it would be financially unfeasible to retrofit 
facilities.
    We are proposing to make a number of changes to Sec.  3.104, as 
discussed in detail below. However, we are not proposing changes to the 
minimum space requirements (i.e., minimum horizontal dimension (MHD), 
depth, volume, and surface area) at this time. In light of the 
disparate recommendations by the ANPR commenters (2002) and the limited 
scientific data available on this issue, we do not have sufficient 
scientific or other supporting data to propose space requirements 
changes at this time. We would appreciate any published literature, 
science-based data or other studies that would support changes in the 
space requirements for any marine mammals.

Space Requirements--General

    Paragraph (a) of Sec.  3.104 provides a general description of the 
space requirements for primary enclosures, including pools, that house 
marine mammals and sets out some of the requirements for temporary use 
of smaller enclosures. The general standards provided in Sec.  3.104(a) 
reflect the consensus language that was developed by the Committee 
during the negotiated rulemaking sessions. We are proposing no 
substantive changes to the minimum space requirements (i.e., minimum 
horizontal dimension, depth, volume, and surface area) for marine 
mammals in Sec.  3.104(a) at this time. However, we propose to 
redesignate Sec.  3.104(a) as Sec.  3.104(a)(1) and to add a new 
paragraph (a)(2), which is discussed below.
    In proposed Sec.  3.104(a)(2), we would provide that only those 
areas that meet or exceed the minimum depth requirement could be used 
in determining whether the other parameters of MHD, volume, and surface 
area meet the space requirements. This requirement already appears 
elsewhere in Sec.  3.104 when referring to the minimum depth 
requirements for primary enclosures housing particular species of 
marine mammals. We would include this standard in Sec.  3.104(a) since 
it is a general requirement applicable to all enclosures housing marine 
mammals. Indeed, this standard is the basis for determining whether 
naturalistic or irregularly shaped pools meet the space requirements. 
In addition, we would provide that APHIS would be authorized to 
determine if partial obstructions of a horizontal dimension compromise 
the intent of the regulations and/or significantly restrict the freedom 
of movement of the animal(s) in the enclosure.

Space Requirements--Cetaceans

    Paragraph (b) of Sec.  3.104 provides that primary enclosures 
housing cetaceans shall contain a pool of water and may consist 
entirely of a pool of water. It further provides that, in determining 
the minimum space required in a pool holding cetaceans, requirements 
relating to MHD, depth, volume, and surface area must be satisfied.
    We propose to remove the statement in current Sec.  3.104(b), 
``Primary enclosures housing cetaceans shall contain a pool of water 
and may consist entirely of a pool of water.'' This statement is 
unnecessary because cetaceans only need a pool of water.
    In addition, we propose to amend Sec.  3.104(b) by removing Tables 
I through IV and by adding a new Table 1 that sets out the average 
adult length and corresponding minimum space requirements for Group I 
and Group II cetaceans. We have also corrected a longstanding 
discrepancy between the figures in tables for volume required for 
additional animals and the actual calculated volume required. The 
proposed tables correct these entries, which have been included in the 
tables since 1984. In the last 30 years, however, this error has not 
presented any welfare issues, as the written formulas have been used 
only for calculations.
    We would also remove paragraph (b)(2) of Sec.  3.104, which 
provides that those parts of the primary enclosure pool which do not 
meet the minimum depth requirements cannot be included when calculating 
space requirements. As discussed previously, we would make this 
provision applicable to all marine mammal primary enclosures (proposed 
Sec.  3.104(a)(2)) so it is unnecessary to include it here.

[[Page 5636]]

    We have been requested to consider updating the average adult 
lengths of certain cetaceans ((the Beluga whale (Delphinapterus 
leucas), the killer whale (Orcinus orca), and the Atlantic bottlenose 
dolphin (Tursiops truncatus (Atlantic)) based on empirical information 
that was compiled by the Alliance of Marine Mammal Parks and Aquariums 
(AMMPA) and the AZA and provided to APHIS. This proposed update would 
reflect the average adult lengths based on the actual sizes of certain 
species of marine mammals in exhibition facilities. These are the only 
three species for which data was submitted by the commenter. If used, 
the empirical lengths would result in decreased calculated minimum 
space requirements for these animals. The data provided by AMMPA and 
AZA reflect measurements from all killer whales at U.S. facilities, 
most of the beluga whales, and about 25 percent of the bottlenose 
dolphin population in the United States in 2002. It has been brought to 
our attention by NOAA that these figures do not take into account 
animals potentially added from the wild (stranded or taken by AMMPA 
permit), nor does it provide information on morphometrics that may have 
been published more recently. Taking this into account, APHIS is open 
to submission of all scientific data that may clarify the size of 
marine mammals. In updating Table 1, we have chosen to not include 
hybrid animals here, such as offspring of Atlantic and Pacific 
bottlenose dolphins. Space requirements for hybrid cetaceans would be 
handled on a case-by-case basis, as they are rare and reliable 
information is not generally available.
    We welcome comments and data addressing this approach, including 
comments on the reliability and utility of the empirical average adult 
length data that is the basis for this proposed change.

Space Requirements--Sirenians

    Paragraph (c) of Sec.  3.104 provides that primary enclosures 
housing sirenians shall contain a pool of water and may consist 
entirely of a pool of water. Space requirements are based on meeting 
MHD and depth parameters.
    We propose to remove the statement in current Sec.  3.104(c), 
``Primary enclosures housing sirenians shall contain a pool of water 
and may consist entirely of a pool of water.'' This statement is 
unnecessary since sirenians only need a pool of water. We would also 
add a new Table 2 which would provide average adult lengths for 
different sirenian species that are currently held by exhibitors on 
public display. Finally, we propose to remove the statement that those 
parts of the primary enclosure pool which do not meet the minimum depth 
requirement cannot be included when calculating space requirements for 
sirenians. As discussed previously, we propose to include this 
requirement in proposed Sec.  3.104(a)(2) since it is a general 
requirement applicable to all enclosures housing marine mammals.

Space Requirements--Pinnipeds

    Paragraph (d) of Sec.  3.104 provides that primary enclosures 
housing pinnipeds shall contain a pool of water and a dry resting or 
social activity area that must be close enough to the water to allow 
easy access for entering or leaving the pool. Despite this requirement, 
APHIS is aware of instances where animals have shown difficulties 
getting in and out of pools when the distance between the water and the 
dry resting area has been too much for them to easily negotiate, either 
due to the size and strength of the animal, such as young animals, or 
health, such as older animals or those animals with injuries or 
infirmities such as arthritis.\14\ Some facilities, due to the 
filtering systems on the pools, do not have the ability to easily raise 
the water level. As a result, other means of safe ingress and egress 
are needed to prevent further injury or death of such marine mammals. 
Many of the newer pinniped pools at a number of zoological facilities 
have a gradually sloping floor that is suitable for pinnipeds of all 
sizes and capacities to exit the pool. As more institutions commit to 
making improvements to their pinniped exhibits, the pools with an edge 
or ``lip'' that make exiting difficult for the very young or very old 
are becoming obsolete. However, many such pools remain in use.
---------------------------------------------------------------------------

    \14\ This information was derived from APHIS-Animal Care 
internal research based on several inquiries with professionals in 
the field.
---------------------------------------------------------------------------

    Therefore, we propose to require that pool exit and entry areas be 
of a depth and grade that allows for easy access and exit for pinnipeds 
of all ages and infirmities. These changes would ensure that young, 
elderly, and ill or infirm pinnipeds are able to get out of the water 
to access their dry resting or social activity area. As a ramp or 
platform may cut down on the swimming space in a smaller pool, 
designing of the ramps or platforms which factors in the minimum space 
requirements is essential.
    The list of Group I and Group II pinnipeds and their average adult 
length in feet and meters would be provided in a new Table 3. In 
proposed Table 3, we would reverse the order of displaying average 
adult length, with feet being shown first followed by meters. The 
average adult length information, which currently appears as part of 
Table 3 of the regulations, would not be changed except that we would 
add Arctocephalus townsendi (Guadalupe fur seal) to the Group I list, 
and the Neomonachus schauinslandi \15\ (Hawaiian monk seal) to the 
Group II list of pinnipeds. We are proposing to add the Guadalupe fur 
seal and the Hawaiian monk seal to the list of Group I and Group II 
pinnipeds, respectively, because both species are now being held in 
captivity. We would also add the California sea lion to the list of 
Group I pinnipeds that will be considered as Group II when two or more 
sexually mature males are maintained together. In our experience, 
sexually mature male California sea lions can become aggressive during 
the breeding season, and visual barriers (e.g., fences, rocks, or 
foliage) would provide relief from any aggressive animals.
---------------------------------------------------------------------------

    \15\ http://www.pifsc.noaa.gov/library/pubs/Baker_etal_MMS_2014.pdf.
---------------------------------------------------------------------------

    We would also reference a proposed new Table 4, which would 
summarize the minimum space requirements for pinnipeds in captivity, 
including MHD, depth, and surface area, as well as the required dry 
resting and social activity area required for different pinniped 
species. This table would provide user-friendly calculations of space 
requirements that should spare licensees and other stakeholders from 
having to perform the calculations themselves.
    Finally, we propose to remove the statement that those parts of the 
primary enclosure pool which do not meet the minimum depth requirement 
cannot be included when calculating space requirements for pinnipeds. 
As discussed previously, we propose to make this requirement applicable 
to all marine mammals (proposed Sec.  3.104(a)(2)) and it is 
unnecessary to include it here.

Space Requirements--Polar Bears

    Paragraph (e) of Sec.  3.104 sets out the space requirements for 
primary enclosures housing polar bears. It provides that primary 
enclosures housing polar bears shall consist of a pool of water, a dry 
resting and social activity area, and a den.
    We are proposing to amend Sec.  3.104(e) to require that pool exit 
and entry areas be of a depth and grade that allows for easy access and 
exit for polar bears of all ages and infirmities. This change would 
ensure that young, elderly, and

[[Page 5637]]

ill or infirm polar bears are able to get out of the water to access 
their dry resting or social activity area.

Space Requirements--Sea Otters

    Paragraph (f) of Sec.  3.104 covers the space requirements for 
primary enclosures housing sea otters. Currently, paragraph (f) of 
Sec.  3.104 provides that primary enclosures for sea otters must 
consist of a pool of water and a dry resting area. The minimum dry 
resting area required for one or two sea otters is based on the sea 
otter's average adult length, and is provided in Table V.
    We propose to require that pool exit and entry areas be of a depth 
and grade that allows for easy access and exit for sea otters of all 
ages and infirmities. This change would ensure that young, elderly, and 
ill or infirm sea otters are able to get out of the water to access 
their dry resting or social activity area.
    The regulations currently do not provide a surface area 
requirement. We would not change the existing formula for calculating 
the minimum dry resting area per animal. However, since sea otters do 
not readily use shared resting areas, we propose to add a requirement 
that individual areas or visual barriers separating appropriately sized 
individual resting spaces must be used.
    Finally, we would redesignate Table V as Table 5. However, the 
information in the table would not be changed.
Water Quality
    Currently, Sec.  3.106 provides water quality standards for 
facilities housing marine mammals. Paragraph (a) provides a general 
introductory statement. Paragraphs (b), (c), and (d) contain 
requirements relating to bacterial standards, salinity, and filtration 
and water flow. We are proposing to make a number of changes throughout 
this section.
    While sterile water was once considered the ideal standard, recent 
scientific research supports the point that non-sterile water is better 
for marine mammals. Non-sterile water seems to support the development 
of a healthy immune system, providing improved ability for marine 
mammals to better handle routine and novel types of bacteria. The 
presence of water quality test results that consistently show no 
bacteria may be indicative of an overly disinfected system, which may 
negatively impact the animals by causing skin and eye irritations from 
overchlorination. Over-disinfection may also reduce the effectiveness 
of the filtration system, which usually depends on a healthy microbial 
population for proper operation.
    Paragraph (b) of Sec.  3.106 contains the bacterial standards and 
related water quality testing requirements for facilities housing 
marine mammals. The bacterial standards provided in Sec.  3.106(b) are 
based on accepted measures for monitoring water quality for human use 
at the time the regulations were promulgated in 1979. However, based on 
a review of the scientific literature \16\ and the Environmental 
Protection Agency's (EPA's) 2012 Recreational Water Quality Criteria, 
we have determined that there are now additional tests that should be 
used to screen water quality. Accordingly, we are proposing to amend 
the bacterial standards in Sec.  3.106(b) to reflect some of these 
current testing measures. We also propose to make other changes in the 
requirements for testing if high levels of bacteria are found. These 
changes are discussed below.
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    \16\ Van Bonn, William, et al. (eds.), ``Maintaining Healthy 
Marine Mammal Pools,'' draft/correspondence (2015). Venn-Watson, S., 
et al, ``Primary bacterial pathogens in bottlenose dolphins Tursiops 
truncatus: Needles in haystacks of commensal and environmental 
microbes,'' Dis. Aquat Organ, (2008) 79(2): 87-93. IAAAM Water 
Quality Workshop 2015, notes. Health and Ecological Criteria 
Division, Office of Science and Technology, EPA, Office of Water 
820-F-12-058 ``Recreational Water Quality Criteria.'' Donlan, R.M., 
``Biofilms: Microbial life on surfaces,'' Emerg. Infect. Dis., 
(2002) 49(1): 1-5.
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Coliform Testing

    Most of the marine mammal standards were originally promulgated in 
1979. The bacterial standards of Sec.  3.106(b)(1) were based on the 
drinking water quality standards of that time and focused on coliform 
bacteria. Based on testing methods used during that time, the unit of 
measure was ``most probable number'' (MPN), a statistical measurement 
based on inoculation series (dilution series) using 1 mL aliquots of 
the sample. Usually 5-10 samples (diluted by powers of 10) were 
incubated and the actual number of bacteria present was estimated for a 
100 ml sample.
    With the advent of filtration techniques, the MPN method was no 
longer used as the sole measure of bacterial contamination in water 
samples. With MPN, actual numbers of bacteria in a 100 mL sample could 
now be measured and counted.\17\
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    \17\ An example of this method is the Millipore filter kits that 
use differential media to grow only coliforms. Individual colonies 
could be re-plated and grown for identification if specific coliform 
type was needed, although most media provided a characteristic sheen 
to the fecal coliform colonies.
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    As with other areas of technology, test kits have been developed to 
test for coliforms. These kits focus on enzymes and characteristic 
chemical properties to simplify bacterial testing and identification. 
The EPA is responsible for setting Recreational Water Quality Criteria 
recommendations for primary contact recreational uses (i.e., swimming 
and similar water contact activities). The EPA has also produced 
documents explaining how alternative methods and indicators can be used 
in place of standard filtration methods.
    The bacterial standards requirements in this section are devised to 
not only protect the health and well-being of the marine mammals housed 
in the enclosures, but to conform with the EPA and related standards 
that address human activities, such as swimming (interactive programs). 
Accepted criteria recommendations in place at the time of 
implementation of the current standards (1984) have been in use since 
that time. APHIS has not found that marine mammal facilities routinely 
have compliance issues with these historic requirements. We do 
acknowledge that testing techniques and accepted criteria 
recommendations have changed since 1984, and we are proposing to update 
this section to reflect those changes. We are requesting data and 
references that would support or refute these criteria.
    The AWA does not require a specific methodology for coliform 
testing, but rather defines an upper limit for total coliforms. If the 
methodology selected provides an actual colony count, then that is 
interchangeable with MPN.
    Current paragraph (b)(1) of Sec.  3.106 provides that the coliform 
bacteria count of the primary enclosure pool shall not exceed 1,000 MPN 
per 100 mL of water. Should the coliform bacterial count exceed 1,000 
MPN, two subsequent samples may be taken at 48-hour intervals and 
averaged with the first sample. If the average count does not fall 
below 1,000 MPN, then the water in the pool is deemed unsatisfactory, 
and the condition must be corrected immediately.
    Paragraph (b)(3) of Sec.  3.106 requires water samples to be taken 
and tested on a weekly basis for coliform count. We are proposing that 
the coliform count can be either a total coliform count or a fecal 
coliform count. In the case of a total coliform count, we propose that 
the coliform count shall not exceed 500 colonies per 100 mL. If a fecal 
coliform test is used, we propose that the fecal count shall not exceed 
400 colonies per 100 mL.\18\ While total or fecal coliforms

[[Page 5638]]

are one indicator of fecal contamination, they may not be the best sole 
criteria for determining true fecal contamination or the health of the 
water that marine mammals live in. Therefore, in addition to a total 
coliform or fecal coliform test, we propose to require that one \19\ of 
the following tests also be conducted on a weekly basis:
---------------------------------------------------------------------------

    \18\ Van Bonn, William, et al. (eds.), ``Maintaining Healthy 
Marine Mammal Pools,'' draft/correspondence (2015). Venn-Watson, S., 
et al, ``Primary bacterial pathogens in bottlenose dolphins Tursiops 
truncatus: Needles in haystacks of commensal and environmental 
microbes,'' Dis. Aquat Organ, (2008) 79(2): 87-93. Health and 
Ecological Criteria Division, Office of Science and Technology, EPA, 
Office of Water 820-F-12-058 ``Recreational Water Quality 
Criteria.''
    \19\ While we would not require a facility to conduct more than 
one of these tests on a weekly basis, we would encourage facilities 
to conduct several of these tests weekly.

Enterococci count (count shall not exceed 35 colonies per 100 mL); 
or
Pseudomonas count (count shall not exceed 10 colonies per 100 mL); 
or
Staphylococcus count (count shall not exceed 10 colonies per 100 
mL).

    These tests are used to indicate fecal contamination as well as 
pathogens in the water. Enterococci are bacteria that are primarily 
from the intestinal tract and can be a sensitive indicator of fecal 
contamination. If a facility only performs a total coliform test, this 
test would indicate the fecal portion of the coliform contamination. 
Pseudomonas is a bacterial pathogen very common to lung infections in 
marine mammals. Its presence in a water sample may indicate either an 
infection on an animal or the contamination of the environment of the 
animal with pathogenic bacteria. Staph bacteria can be pathogenic or 
non-pathogenic in all animals. It is a skin pathogen, and can also 
cause infections internally. Its presence can be an indicator of 
contamination and/or possible danger to the animals. We would require 
that one of these other bacterial tests be conducted, in addition to a 
total coliform or fecal coliform test, in order to obtain a more 
complete picture of the water quality of facilities housing marine 
mammals.
    We propose to redesignate current Sec.  3.106(b)(2), which covers 
chemical treatment of water, and Sec.  3.106(b)(3), which concerns 
water sampling procedures, as Sec.  3.106(b)(4) and Sec.  3.106(b)(5), 
respectively, to accommodate the addition of new paragraphs Sec.  
3.106(b)(2) and (b)(3).
    Proposed new paragraph Sec.  3.106(b)(2) provides that if any of 
the above tests yield results that exceed the allowable bacterial count 
levels, then two followup samples must be taken to repeat the tests(s) 
for those bacterial contaminants identified as being present at levels 
exceeding the standards. The first followup sample would have to be 
taken immediately after the initial test result, while the second 
followup sample would have to be taken within 48 hours of the first 
followup sample. This timing requirement would differ from the existing 
standard in Sec.  3.106(b), which provides that the two followup 
samples may be taken at 48-hour intervals.
    The rationale regarding retesting after 48 hours is based on the 
fact that the lab testing (inoculation or filtration and incubation) 
takes 48 hours.\20\ Regardless of testing methods and timing, Sec.  
3.106(a) should be the overriding consideration; the water must not be 
harmful to the animals. This means if high bacterial levels are found, 
they should be addressed immediately. Although we require averaging of 
test results when retesting, the goal is to get the coliform count 
below 500 (proposed standard) as soon as possible.
---------------------------------------------------------------------------

    \20\ In APHIS' view, the intent was to retest immediately if the 
results (48 hours after the initial sampling) exceed the 1000 MPN 
limit. Logic and bacteriology dictate that the first resample should 
be at 48 hours from the initial sample.
---------------------------------------------------------------------------

    This amendment is to clarify the timing of the follow-up test. At 
it currently reads, some entities interpret the testing to be after the 
first test results are known. The coliform test, if using traditional 
microbiological techniques (culture and incubation) takes 48 hours. If 
the first test is 500 (proposed) MPN, the retesting should be done 
immediately (relative to knowing the test results).
    In the last 3 years, approximately four citations issued to marine 
mammal facilities involved high coliform counts without the required 
retesting.
    Over the years there has been some confusion among regulated 
facilities and inspectors as to exactly when the followup samples 
should be taken. This change would address this problem by clarifying 
that the first followup sample has to be carried out immediately 
following the initial test result and the second followup sample has to 
be taken within 48 hours of the first followup sample. We would 
continue to require that the test results of the three samples be 
averaged and, if the averaged value of the three samples still exceeds 
the allowable bacterial counts referenced above, then the pool water 
would be considered unsatisfactory and its condition would have to be 
corrected immediately.
    Proposed new paragraph Sec.  3.106(b)(3) would provide that 
additional testing for suspect pathogenic organisms must be conducted 
when there is evidence of health problems at the facility or a 
potential health hazard to the animals. In the past, we have suspected 
that water-borne pathogens contributed to the poor health of animals at 
certain facilities; however, the regulations did not require additional 
testing for pathogens. This change would address that issue in the 
regulations.
    As discussed above, we would redesignate current Sec.  3.106(b)(2) 
as Sec.  3.106(b)(4). That paragraph provides that whenever the water 
is chemically treated, the chemicals shall be added so as not to cause 
harm or discomfort to the marine mammals, such as eye and skin 
irritation. We propose to amend the standard to state that any 
chemicals added to a pool must not cause harm or discomfort to the 
marine mammals during the introduction of the chemical or during the 
chemical's presence in the enclosure (in the water, on the surfaces, or 
in the air). This change would clarify that the health, safety, and 
welfare of the marine mammals must be taken into consideration not only 
when chemicals are added to the water, but whenever chemicals are 
present in and around the water.
    As discussed previously, we would redesignate current paragraph 
Sec.  3.106(b)(3) as Sec.  3.106(b)(5). That paragraph contains the 
standards for water sampling and states that water samples shall be 
taken and tested at least weekly for coliform count and at least daily 
for pH and any chemicals (e.g., chlorine and copper) that are added to 
the water to maintain water quality. Facilities that use natural 
seawater must test for coliforms, but are exempt from pH and chemical 
testing unless chemicals are added to the seawater to maintain water 
quality. Records must be kept that document when samples are taken and 
the test results. Records of the test results must be maintained by 
management for a 1-year period and must be made available for 
inspection by APHIS upon request.
    We would remove the references to coliform testing in paragraphs 
(b)(1) and (b)(3) of Sec.  3.106, since this subject would be covered 
in proposed Sec.  3.106(b)(1). Under proposed Sec.  3.106(b)(5), we 
would continue to provide that facilities must conduct daily testing 
for pH, as well as for any chemicals (e.g., chlorine, ozone, and 
copper) that are added to the water. We propose to add a new 
requirement that the water also be tested daily for salinity to ensure 
conformance with the salinity standards set out in proposed Sec.  
3.106(c). We would remove the reference to ``facilities using natural 
seawater'' and substitute in its place the term ``natural lagoon and 
coastal enclosures.'' Facilities consisting of natural lagoon or 
coastal enclosures would continue to be exempt from pH testing but 
would be subject to testing for salinity, as well as

[[Page 5639]]

testing for any chemicals that have been added.\21\
---------------------------------------------------------------------------

    \21\ Enclosures that are not explicitly sea pens would need to 
be monitored and salinity adjusted as needed. There are 
approximately five facilities that pump sea water directly into on-
land enclosures. These facilities would need to be monitored and 
salinity adjusted. The salinity adjustments would likely be for only 
1-2 weeks a year to compensate for excessively rainy periods that 
would decrease salinity near the input pipes.
---------------------------------------------------------------------------

    Finally, we would move the discussion of water sampling 
recordkeeping from current Sec.  3.106(b)(3) to a new paragraph, Sec.  
3.106(b)(6). This amendment would require that all water quality 
records be kept on site, not at a management office if that is located 
elsewhere. This will save APHIS time and effort in reviewing the 
records. APHIS needs to review the records at every inspection, as 
assessing the bacterial loads and the chemical make-up of the water is 
necessary to ensuring the health and welfare of the animals. For 
example, by reviewing such records, chlorine levels could be correlated 
with the eye issues of the animals in the enclosure. Identifying a 
probable cause not only will improve the welfare and health of the 
animal, but may speed the diagnosis of the underlying issue so that 
proper care can be provided.
    We would also require that, in addition to noting the time of 
testing, the facility must document the date and location of the 
testing, including the particular pool and the sampling site within the 
pool. We would continue to provide that the records be maintained for a 
1-year period. However, instead of providing that the records be 
maintained ``by management,'' which could be at a location away from 
the facility, we propose to require that the records be maintained ``at 
the facility.'' This would ensure that the records would be readily 
available to APHIS inspectors during inspections. We would also clarify 
the current requirement that records ``must be made available for 
inspection purposes on request'' to instead state that the records 
``must be made readily available to APHIS inspectors.''
    Paragraph (c) of Sec.  3.106 contains the salinity standards for 
primary enclosure pools, providing that such pools of water shall be 
salinized for marine cetaceans as well as for those other marine 
mammals which require salinized water for their good health and well-
being. The current standards provide that water salinity shall be 
maintained within a range of 15-36 parts per thousand.
    We are proposing to amend the salinity standards in Sec.  3.106(c) 
to reflect the current level of scientific knowledge and accepted 
industry practices. Specifically, instead of providing that the 
salinity standards shall apply ``to marine cetaceans and other marine 
mammals that require salinized water for their good health and well-
being,'' we would be more specific in stating that ``all primary 
enclosure pools must be salinized for cetaceans, pinnipeds, and sea 
otters.'' However, we would specifically exempt from this requirement 
enclosures housing river dolphins and other species in fresh water, as 
well as enclosures housing pinnipeds that are provided salt supplements 
at appropriate levels, as determined by the attending veterinarian, and 
daily saltwater eye baths. We expect this will minimize additional 
costs and renovations at existing facilities.
    We are also proposing to amend the currently required salinity 
range of 15-36 parts per thousand to a range of 24-36 parts per 
thousand in order to more closely approximate the salinity levels 
marine mammals encounter in their natural environments beyond certain 
coastal areas.\22\ However, in the case of natural lagoon or coastal 
enclosures, where salinity can be lower due to mixing with freshwater 
sources entering into the oceans, we would require that the salinity 
level be no less than 15 parts per thousand, which is the lower limit 
of the currently allowed salinity range. If the salinity level falls 
below this level in such enclosures, the marine mammal facilities would 
have to temporarily house the animals in another enclosure where 
salinity can be controlled. We would further provide that the salinity 
requirements in Sec.  3.106(c) would not preclude the use of other 
salinity levels when prescribed by the attending veterinarian to treat 
a specific medical condition or conditions. This proposed standard is 
not intended to limit treatment options prescribed by the attending 
veterinarian.
---------------------------------------------------------------------------

    \22\ http://sam.ucsd.edu/sio210/lect_2/lecture_2.html; SIO 210 
Talley Topic 2: Properties of seawater, Lynne Talley, 2000.
---------------------------------------------------------------------------

    The benefits of requiring salinity monitoring and increasing the 
lower limit that is acceptable will benefit the health and well-being 
of the animals by maintaining pools closer to the actual conditions the 
animals would find in nature. The combination of the requirements 
regarding salinity will allow our inspectors to better assess the 
welfare of the marine mammals and potentially prevent any ongoing eye 
\23\ or skin problems that can be associated with salinity issues.
---------------------------------------------------------------------------

    \23\ See footnote 13.
---------------------------------------------------------------------------

    Paragraph (d) of Sec.  3.106 currently covers filtration and water 
flow. We are proposing to redesignate Sec.  3.106(d) as Sec.  3.106(e). 
In addition, we propose to add that water quality may also be 
maintained through naturally occurring tidal flow. This change would 
address those facilities with natural lagoon or coastal enclosures.
    Finally, we propose to add a new Sec.  3.106(d) covering the 
subject of water clarity. Although this subject is addressed generally 
in Sec.  3.106(a), in recent years members of the public have contacted 
APHIS to express concern over the appearance of pool water at 
facilities. For our purposes, we believe pool water should be clear 
enough for caretakers to observe the animals. Therefore, under proposed 
Sec.  3.106(d), we would require that pools be maintained in such a 
manner as to provide sufficient water clarity to view the animals in 
order to observe them and monitor their behavior and health. This 
performance-based requirement would provide flexibility while ensuring 
that the animals can be observed at any depth or placement in the pool 
in order to promote their health and well-being. If an animal cannot be 
observed clearly, it cannot be provided adequate animal welfare.
Interactive Programs
    Section 3.111 contains additional regulatory requirements covering 
swim-with-the-dolphin (SWTD) programs. Specifically, Sec.  3.111 
includes provisions relating to space requirements, water clarity, 
employees and attendants, program animals, handling, recordkeeping, and 
veterinary care.
    As previously discussed, in 1999 we suspended enforcement of the 
SWTD requirements found in Sec.  3.111 and related definitions found in 
Sec.  1.1. At that time, we solicited public comment on all aspects of 
the suspended regulations and on all human/marine mammal interactive 
programs. We accepted comments until July 1, 1999, and received 20 
comments by that date.
    The proposed changes to Sec.  3.111 are based on the information 
contained in those comments; on our review of the comments received in 
response to the January 23, 1995, proposed rule; on information made 
available to us by the public following publication of the September 4, 
1998, final rule; on our review of the ANPR comments; and on our 
experience enforcing the Act and the regulations. The proposed changes 
to Sec.  3.111 are intended to address the need to monitor interactive 
programs, while giving consideration to program

[[Page 5640]]

histories,\24\ enforcement history, information and scientific 
documentation on the effects of interactive programs on marine mammals, 
the general health and well-being requirements already in effect 
regarding marine mammals, and the need to avoid promulgation of 
redundant provisions. We set forth the proposed standards as 
performance-based standards wherever we believe such an approach is 
feasible and supportable by current information and scientific 
documentation.
---------------------------------------------------------------------------

    \24\ We note that interactive programs have been operating for 
over 20 years without any indications of health problems or 
significant and ongoing incidents of aggression in marine mammals, 
as evidenced by medical records maintained by licensed facilities 
and observations by experienced APHIS inspectors.
---------------------------------------------------------------------------

    Throughout proposed Sec.  3.111, we would use the term ``marine 
mammal(s)'' in place of ``cetaceans.'' We would also use the term 
``interactive program(s)'' in place of SWTD program(s). These changes 
are designed to clarify that programs may involve animals other than 
cetaceans (i.e., sea lions) and may involve activities other than 
swimming with the animal (i.e., programs where the participants sit on 
a dock or ledge, including therapeutic sessions).
    The current introductory paragraph to Sec.  3.111 provides that 
SWTD programs shall comply with the requirements in this section, as 
well as with all other applicable requirements of the regulations 
pertaining to marine mammals. We propose to amend this introductory 
paragraph to more specifically provide that all marine mammal 
interactive programs must comply in all respects with the regulations 
set forth in 9 CFR parts 2 and 3, which address animal welfare.
    Paragraph (a) of Sec.  3.111 provides the space requirements for 
the primary enclosure used by animals in an interactive program. This 
includes the interactive area, a buffer area, and the sanctuary area. 
The regulations provide that none of these areas shall be made 
uninviting to the animals, and that movement of cetaceans into the 
buffer or sanctuary area shall not be restricted in any way. The space 
requirements for each of the three areas are based upon the 
``horizontal dimension,'' the minimum surface area, the average depth, 
and minimum volume.\25\ 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. The minimum surface area required for 
each of the three areas is calculated as follows:
---------------------------------------------------------------------------

    \25\ The space requirements, as promulgated in 1984, were based 
on circular pools, as most if not all pools were circular at that 
time. Many pools today are neither circular nor rectangular, but 
rather more natural curved shapes. The AWA requirements mean that 
there will be at least the minimum area in the pool, which is 
sufficient space at the surface of the pool for all marine mammals 
in the enclosure to be able to breathe at the surface and have a 
degree of freedom of movement while at the surface.
---------------------------------------------------------------------------

     Up to two cetaceans: Surface area = (3 x average adult 
body length/2)\2\ x 3.14;
     Three cetaceans: Surface area = (3 x average adult body 
length/2)\2\ x 3.14 x 2; and
     Additional surface area for each animal in excess of 
three: Surface area = (2 x average adult body length\2)\2\ x 3.14.
    Generally, the average depth for sea pens, lagoons, and similar 
natural enclosures at low tide shall be at least 9 feet. The average 
depth for manmade enclosures or other structures not subject to tidal 
action shall also be at least 9 feet. The minimum volume required for 
each animal must equal 9 times the minimum surface area.
    We are proposing that the sanctuary area for interactive programs 
meet the space requirements set forth in current and proposed Sec.  
3.104. The interactive area, however, would not have to meet the space 
requirements set forth in proposed Sec.  3.104. Instead, we are 
proposing to require that the interactive area provide sufficient space 
for all marine mammals to freely swim or move about, consistent with 
the type of interaction. We believe that this performance-based 
standard would provide flexibility while promoting the health and well-
being of the animals. We seek comment on this, and request any 
published scientific data or studies on this issue.
    We are also proposing to remove the requirement for a separate 
buffer area. We are removing this requirement because we have found 
that it is unnecessary to require both a buffer area and a sanctuary 
area as long as the animal has unrestricted access to a sanctuary area. 
The intent of the buffer area was to provide a place where the animals 
could leave the interactive area but still be eligible for recall to 
the interactive area. This requirement has not been shown to be 
necessary for the welfare of the animals during the 20 years that these 
programs have been under USDA jurisdiction, and the requirement of no 
recall from the sanctuary area is sufficient to safeguard the animals 
during the interactive sessions. The sanctuary area is sufficient to 
safeguard the animal during the interactive sessions.
    As proposed, Sec.  3.111(a) would provide that each animal must 
have unrestricted access to the interactive area and the sanctuary area 
during an interactive session. Neither area shall be made uninviting to 
the animals. As previously discussed, the interactive area would not 
have to meet the minimum space requirements set forth in proposed Sec.  
3.104, but it must provide sufficient space for all marine mammals to 
freely swim or move about, consistent with the type of interaction, 
even with a full complement of public participants and employees in the 
area. We propose to require that the sanctuary area meet the minimum 
space requirements provided in Sec.  3.104. Proposed paragraph (a) of 
Sec.  3.111 would also provide that the sanctuary area may be within 
the enclosure containing the interactive area or it may be within a 
second enclosure to which free and unrestricted access is provided 
during the interactive session. The degree of free and unrestricted 
access would be assessed by the facility and the inspector through 
observation of whether the animals move freely between the areas during 
non-interactive periods.
    Under current Sec.  3.111(b), interactive programs are subject to 
certain water clarity standards. Paragraph (b) provides that sufficient 
water clarity 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. We 
propose to make only one change to Sec.  3.111(b). We would substitute 
the phrase ``marine mammals and the human participants'' in place of 
``cetaceans and humans'' for the reasons discussed previously.
    Paragraph (c) of Sec.  3.111 sets forth the minimum qualification 
requirements for personnel associated with a SWTD program. Each program 
must have a licensee or manager with at least 6 years of experience 
dealing with captive cetaceans; at least one head trainer/behaviorist 
with at least 6 years of experience in training cetaceans for SWTD 
behaviors, or an equivalent amount of experience involving in-water 
training of cetaceans; at least one full-time staff member with at 
least 3 years training and/or handling experience involving human/
cetacean interaction programs; an adequate number of staff members who 
are adequately trained in the care, behavior, and training of the 
program animals; and at least one staff or consultant veterinarian who 
has at least the equivalent of 2 years full-time experience with 
cetacean medicine

[[Page 5641]]

within the past 10 years, and who is licensed to practice veterinary 
medicine.
    We are proposing to amend Sec.  3.111(c) so that personnel 
qualifications are not based entirely on job titles and absolute years 
of experience and training. We would instead provide standards that are 
based on the level of knowledge and skill needed to be a head trainer, 
or other trainers and attendants. This would provide the licensee or 
registrant greater flexibility to hire the most qualified individuals. 
We would also remove from Sec.  3.111(c) the specific standards for the 
attending veterinarian. We believe that the current requirements in 
Sec.  2.40 and Sec.  3.110 provide sufficient oversight and guidance on 
this subject; interactive programs have not been shown to need 
additional restrictions.
    In proposed Sec.  3.111(c), we would change the heading from 
``Employees and attendants'' to ``Employees.'' We propose to require 
that each interactive program have a sufficient number of adequately 
trained personnel to meet the husbandry and care requirements for the 
animals and comply with all training, handling, and attendant 
requirements of the regulations. We propose to provide that, during 
interactive sessions, there must be a trainer, handler, and sufficient 
number of adequately trained attendants, as specified in Sec.  
3.111(d)(4), which is discussed below.
    In proposed Sec.  3.111(c)(1), we would require that the head 
trainer/supervisor of the interactive program have demonstrable in-
depth knowledge of the husbandry and care requirements of the family 
and species of marine mammals being exhibited, demonstrable knowledge 
of and skill in currently accepted professional standards and 
techniques in animal training and handling, and the ability to 
recognize normal and abnormal behavior and signs of behavioral stress 
in the animal families and species being exhibited. This proposed 
standard would differ from the current regulations, which focus on the 
person having a specific number of years of appropriate experience.
    In proposed Sec.  3.111(c)(2), we would require that all 
interactive program trainers and attendants have the knowledge and 
skill level sufficient to safely conduct and monitor an interactive 
session.
    Current paragraph (d) of Sec.  3.111 specifies what animals are 
eligible to participate in SWTD programs, providing only for cetaceans 
that meet certain requirements with respect to training and 
conditioning in human interaction, as well as being under the control 
of a trainer, handler, or attendant during sessions with the public as 
described and defined in the NOAA-sponsored study by Samuels and 
Spradlin (1994 and 1995) cited above. Such animals must also be in good 
health. We are proposing to remove this paragraph in its entirety, 
removing the provision that limits program animals to cetaceans. The 
standards relating to conditioning, the presence of trainers or 
attendants, and animal health are sufficiently covered in other 
paragraphs of Sec.  3.111.
    The introductory text of current paragraph (e) of Sec.  3.111 
covers the handling of cetaceans used in interactive sessions. With the 
removal of Sec.  3.111(d) on program animals, we would redesignate 
Sec.  3.111(e) as Sec.  3.111(d), as well as make a number of other 
changes to simplify and clarify the handling requirements.
    Paragraph (e)(1) of Sec.  3.111 provides that the interaction time 
for ``each cetacean'' shall not exceed 2 hours per day and that each 
program cetacean shall have at least one period in each 24 hours of at 
least 10 continuous hours without public interactions. In newly 
designated Sec.  3.111(d)(1), we propose to provide that the 
interactive time between marine mammals and the public (i.e., 
interactive session) not exceed 3 hours per day. We are making this 
change based on information provided by licensees with long-standing 
interactive programs involving, for example, bottlenose dolphins, 
beluga whales, spinner dolphins, California sea lions, and harbor 
seals, which suggested that the marine mammals would not be harmed by a 
modest increase in interactive time per day, and a study of Atlantic 
bottlenose dolphins showing that interactive programs can be an 
important part of an enrichment program.\26\ The requirement of at 
least 10 continuous hours without public interactions would remain in 
effect. We request data or evidence supporting or opposing this change.
---------------------------------------------------------------------------

    \26\ See also L.J. Miller, J. Mellen, T. Greer, S.A. Kuczaj II, 
``The effects of education programs on Atlantic bottlenose 
dolphin.'' Animal Welfare (2011): 159-172, for a discussion on 
interactive time limits. We acknowledge that while a limited number 
of species other than bottlenose dolphins are used in interactive 
programs, there is scant published scientific information available 
on the effect of education programs on these species.
---------------------------------------------------------------------------

    Paragraph (e)(2) of Sec.  3.111 provides that cetaceans used in 
interactive sessions shall be adequately trained and conditioned in 
human interaction, with the head trainer/behaviorist, trainer/
supervising attendant, or attendant maintaining control of the nature 
and extent of the animal's interaction with the public at all times 
consistent with the findings and recommendations in the NOAA-sponsored 
study by Samuels and Spradlin (1994 and 1995) cited above. In newly 
designated Sec.  3.111(d)(2), we propose to simplify this requirement 
to apply to the ``trainer, handler, or attendant.''
    Newly designated Sec.  3.111(d)(3) would parallel Sec.  3.111(e)(3) 
of the current regulations by requiring that marine mammals be free of 
infectious disease and in good health. In addition, we would provide 
that marine mammals undergoing veterinary treatment may be used in 
interactive sessions only with the written approval of the attending 
veterinarian.
    Current paragraph (e)(4) of Sec.  3.111 provides that the ratio of 
human participants to cetaceans shall not be greater than 3 to 1. 
Paragraph (e)(4) also provides that the ratio of human participants to 
attendants or other authorized SWTD personnel (i.e., head trainer/
behaviorist or trainer/supervising attendant) shall also not exceed 3 
to 1. In newly designated Sec.  3.111(d)(4), instead of requiring the 
presence of a fixed number of certain personnel, we propose to require 
that there be a sufficient number of session attendants (which includes 
trainer, handler, or attendants) to effectively conduct the session in 
a safe manner. We propose this requirement based on the fact that the 
number of human participants and marine mammals swimming freely during 
such a session would determine the number of attendants needed to 
monitor and ensure the safety of all animal and human participants. 
This situation is different from a session in which fewer animals are 
used and participants are restricted to staying on a wharf or standing 
in shallow water.
    We also propose to require at least one attendant per marine mammal 
in the session, and at least one attendant positioned to monitor each 
session. We would also provide that the number of public participants 
per marine mammal must not exceed the number that the attendant can 
monitor safely, appropriate to the type of interactive session.\27\ 
These changes are intended to take into account the differences between 
shallow-water interactive programs (i.e., sessions during which the 
marine mammal remains relatively

[[Page 5642]]

stationary) and other interactive programs. We believe these changes 
would provide greater flexibility to interactive programs while still 
ensuring proper supervision to ensure the health and safety of marine 
mammals and human participants. We seek comment on this, and on any 
data or studies that support or refute this requirement.
---------------------------------------------------------------------------

    \27\ The number of attendants required to monitor each session 
may vary by facility according to how many are needed to ensure the 
safety of the animals and human participants involved in the 
interactive session. The programs are observed routinely by the 
attending veterinarian and the APHIS inspector to ensure safe 
functioning of the program.
---------------------------------------------------------------------------

    Paragraph (e)(5) of Sec.  3.111 provides that, prior to 
participating in an SWTD interactive session, public participants 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. Public participants must 
agree in writing to abide by the rules and instructions before 
participating in an interactive session. Any public participant who 
fails to follow the rules or instructions will be removed from the 
interactive session by the facility.
    Under newly redesignated Sec.  3.111(d)(5), we would continue to 
require that participants be provided with oral rules and instructions 
prior to participating in the session; however, we propose to remove 
the requirement that participants must agree in writing to abide by the 
rules and instructions before being allowed to participate in the 
session. This requirement is unnecessary since we can enforce the 
regulations whether or not a participant has signed such an agreement. 
We would add a requirement that a copy of the written rules be made 
available to APHIS during an inspection. Furthermore, instead of 
requiring that participants be provided telephone and FAX numbers for 
APHIS, Animal Care, for reporting injuries or complaints, we propose to 
require that participants be provided with contact information for the 
appropriate Animal Care Field Operations office. We propose that this 
could be provided either in the form of a written handout to attendees, 
or in a notice, posted in a highly visible location, that summarizes 
the rules and instructions for the session and includes contact 
information for the appropriate Animal Care Field Operations office for 
reporting injuries or complaints.
    We would also clarify the grounds for expelling session 
participants by providing that any participant who fails to follow the 
rules and instructions and jeopardizes human or animal safety or health 
must be immediately removed from the session by the facility 
management.
    Paragraph (e)(6) of Sec.  3.111 provides that all interactive 
sessions shall have at least two attendants or other authorized 
personnel (i.e., head trainer/behaviorist or trainer/supervising 
attendant). At least one attendant shall be positioned out of the 
water, while one or more attendants or other authorized personnel may 
be positioned in the water. If a facility has more than two incidents 
(defined as when a participant or an animal has been harmed or the 
marine mammal exhibits aggression) during interactive sessions within a 
year's time span involving human or animal injury or aggression by the 
animal, APHIS, in consultation with the head trainer/behaviorist, will 
determine if changes in attendant positions are needed.
    We are proposing to remove paragraph (e)(6) in its entirety. The 
requirements regarding the presence of session attendants at an 
interactive session would be covered as part of newly designated Sec.  
3.111(d)(4). Proposed Sec.  3.111(d)(4) would require that there be at 
least one attendant per marine mammal in the session, and at least one 
attendant positioned to monitor the session. However, the new standards 
in proposed Sec.  3.111(d)(4) would not include specific language 
requiring APHIS consultations with the trainer to discuss personnel 
changes in cases where the facility has had more than two session 
incidents over a year's time that would be considered dangerous or 
harmful to the animal or the human participant. We do not believe this 
provision is necessary based on the available accident and injury data 
and taking into account our authority under the Act to respond to any 
incident.
    Current paragraph (e)(7) of Sec.  3.111 provides that 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.
    We propose to amend these provisions to simplify and clarify them. 
The amended standards would be located in newly designated Sec.  
3.111(d)(6) and in a new Sec.  3.111(d)(7). In newly designated Sec.  
3.111(d)(6), we would provide that all interactive programs would have 
to limit interactions between marine mammals and human participants so 
that the interaction does not present an undue risk of harm to the 
marine mammal or humans, and does not restrict by word, action, or 
enclosure design, the ability of the animal to leave the interactive 
area and session as it chooses. Recalling animals from the sanctuary 
area would still not be allowed. If an animal removes itself or is 
removed from a session, the facility must maintain the appropriate 
balance of public participants per marine mammal, as discussed 
previously under proposed Sec.  3.111(d)(4), by either removing human 
participants from the interactive area or introducing another animal.
    In proposed Sec.  3.111(d)(7), we would provide that all 
interactive programs must prohibit grasping or holding of the animal's 
body unless it is done under the direct and explicit instruction of the 
attendant. In addition, we would provide that all interactive programs 
must prohibit the chasing or other harassment of the animal(s). The 
proposed language in newly redesignated Sec.  3.111(d)(7) would closely 
parallel requirements that appear in the current Sec.  3.111(e)(7).
    Paragraph (e)(8) of Sec.  3.111 provides that, in cases where 
cetaceans exhibit unsatisfactory, undesirable, or unsafe behaviors 
during an interactive session, 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 regarding conditions 
and procedures for maintaining compliance with the required ratios of 
human participants to cetaceans and human participants to attendants, 
procedures for the termination of a session when removal of a cetacean 
is not possible, as well as procedures for handling program animals 
exhibiting unsatisfactory, undesirable, or unsafe behaviors, including 
retraining time and techniques, and removal from the program and/or 
facility, if appropriate. Paragraph (e)(8) provides that 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.
    We would redesignate Sec.  3.111(e)(8) as Sec.  3.111(d)(8). In 
newly designated Sec.  3.111(d)(8), we propose to provide that marine 
mammals that exhibit unsatisfactory, undesirable, or unsafe behaviors, 
including, but not limited to, charging, biting, mouthing, or sexual

[[Page 5643]]

contact with humans, must be removed from the interactive session 
immediately, or, if the animal cannot be removed, that the session be 
terminated. We propose to remove the requirement that the facility's 
staff determine when operations or sessions at the facility shall be 
terminated and when they resume. The focus would instead switch to the 
marine mammal(s) in question. We would provide that such animals must 
not be used in an interactive session until the trainer determines that 
the unsatisfactory, undesirable, or unsafe behavior is no longer being 
exhibited by the marine mammal. We would also simplify the requirements 
regarding the facility having a written plan in place in the case of a 
disruption due to the behavior of one or more marine mammals. We 
propose to require that written criteria that addresses the termination 
of a session due to such behavior and the retraining of such an animal 
be developed and maintained at the facility, and also be made available 
to APHIS during inspection or upon request. The written criteria must 
also disclose how the facility would maintain session staffing 
requirements, as provided in proposed Sec.  3.111(d)(4), in the event 
of a disruption caused by one or more marine mammals during a session.
    Paragraph (g) of Sec.  3.111 requires that the attending 
veterinarian carry out certain duties with regard to animals used in 
interactive programs. This includes on-site evaluations of each 
cetacean at least once a month, as well as examination of related 
behavioral, feeding, and medical records, and discussion of each animal 
with the appropriate animal care personnel at the facility. The 
attending veterinarian must record the nutritional and reproductive 
status of each cetacean. The attending veterinarian must also observe 
an interactive session at the facility at least once a month. In 
addition, the attending veterinarian is required to conduct a complete 
physical examination of each cetacean at least once every 6 months, 
which must include a complete blood count and serum chemistry analysis, 
as well as the taking of smear tests for cytology and parasite 
evaluation. The attending veterinarian is responsible for examining 
water quality records. Paragraph (g) of Sec.  3.111 also provides a 
timetable for conducting a necropsy in the event 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.
    We would remove Sec.  3.111(g) as written and provide a new 
paragraph, Sec.  3.111(e), on veterinary care. In response to the large 
number of comments on the lack of supporting evidence for requiring 
veterinary care measures beyond those required for all other marine 
mammals, we would provide that the facility would have to comply with 
all provisions in Sec. Sec.  2.33, 2.40, and 3.110. Section 2.33 
contains provisions on attending veterinarians and adequate veterinary 
care at research facilities, while Sec.  2.40 contains provisions on 
attending veterinarians and adequate veterinary care applicable to 
animals held by dealers or exhibitors of animals. Section 3.110 
provides veterinary care standards for marine mammals generally, as 
well as necropsy requirements should a marine mammal die in captivity. 
In addition to meeting the requirements of Sec. Sec.  2.33, 2.40, and 
3.110, proposed Sec.  3.111(e) would require the attending veterinarian 
to observe an interactive session at least once a month or observe each 
interactive session if they are offered less frequently than twice a 
month, and review the feeding records, behavior records, and water 
quality records at least biannually or as often as needed to assure the 
health and well-being of the marine mammals.
    Paragraph (f) of Sec.  3.111 contains the recordkeeping 
requirements for facilities with interactive programs. We are proposing 
to amend Sec.  3.111(f) by streamlining its content to reduce the 
burden on the regulated parties while continuing to require certain 
documentation for effective enforcement of the regulations and 
standards.
    Paragraph (f)(1) of Sec.  3.111 provides that each facility shall 
provide APHIS with a description of its program at least 30 days prior 
to initiation of the program, or not later than October 5, 1998 in the 
case of any program in place before September 4, 1998. The description 
shall include at least the following information: Identification of 
each cetacean in the program; 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; 
the content and method of pre-encounter orientation, rules, and 
instructions; a description of the SWTD facility, including the primary 
enclosure and other SWTD animal housing or holding enclosures at the 
facility; 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; the resume of the licensee and/or 
manager, the head trainer/behaviorist, the trainer/supervising 
attendant, any other attendants, and the attending veterinarian; the 
current behavior patterns and health of each cetacean, to be assessed 
and submitted by the attending veterinarian; 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 a detailed 
description of the monitoring program to be used to detect and identify 
changes in the behavior and health of the cetaceans.
    In proposed Sec.  3.111(f)(1), we would continue to require that 
each facility provide APHIS 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 the date a final rule is published, not later 
than 30 days after the effective date of the final rule. We also 
propose to provide that facilities that submitted the required 
documentation during the period of October through December 1998, and 
received approval letters, need only submit information that has 
changed. These letters were issued to approximately 16 facilities.
    In proposed Sec.  3.111(f)(1)(ii), we would clarify that the 
session agenda would have to include, at a minimum, written information 
distributed, topics addressed prior to entry in the water, and the 
planned program, including behaviors and activities expected to be 
presented or performed. We propose to delete current Sec.  
3.111(f)(1)(iii), which requires that the program description cover 
pre-encounter orientation. A similar requirement would appear in 
proposed Sec.  3.111(f)(1)(ii). With the deletion of Sec.  
3.111(f)(1)(iii), we would redesignate paragraphs (f)(1)(iv) through 
(f)(1)(vi) of Sec.  3.111 as (f)(1)(iii) through (f)(1)(v).
    Current paragraph (f)(1)(iv) of Sec.  3.111 requires that the 
program description include a description of the SWTD facility, 
including the primary enclosure and other SWTD animal housing or 
holding enclosures at the facility. In newly designated Sec.  
3.111(f)(1)(iii), we propose to clarify this requirement by providing 
that the program description must include a description of the 
interactive program enclosures, including identification of nonsession 
housing enclosures, sanctuary area, and interactive area. All 
enclosures housing or used by program animals would have to be covered 
in the description.
    Current paragraph (f)(1)(v) of Sec.  3.111 provides that the 
program description cover the training each cetacean has undergone or 
will undergo prior to

[[Page 5644]]

participation in the program. This includes the actual and expected 
number of hours of training. We propose making this requirement more 
performance-based. In newly designated Sec.  3.111(f)(1)(iv), we would 
instead require that the program description include verification from 
the trainer that the program animals have received adequate and 
appropriate training for an interactive program. We would not require 
that the training description specifically include the number of hours 
of actual or expected training. Paragraph (f)(1)(vi) of Sec.  3.111 
currently provides that the program description include the resume of 
the licensee and/or manager, the head trainer/behaviorist, the trainer/
supervising attendant, any other attendants, and the attending 
veterinarian. We propose to amend this requirement in newly designated 
Sec.  3.111(f)(1)(v) to provide that the facility description include 
documentation of the experience and training of the trainer, handler, 
attendants, and attending veterinarian.
    We propose to eliminate the requirements, currently appearing in 
Sec.  3.111(f)(1)(vii) through (ix), that the facility description 
include information regarding the current behavior patterns and health 
of each cetacean, a written program of veterinary care for facilities 
that utilize a part-time attending veterinarian or consultant, and a 
detailed description of the monitoring program to be used to detect and 
identify changes in the behavior and health of the cetaceans. These 
requirements are redundant to what would already be required elsewhere 
in the regulations for maintaining medical and behavioral records for 
marine mammals held in captivity.
    Current paragraph (f)(2) of Sec.  3.111 provides that all SWTD 
programs shall comply in all respects with the regulations and 
standards set forth in 9 CFR parts 2 and 3. We would remove this 
language. A similar requirement would instead appear in the 
introductory paragraph at the beginning of Sec.  3.111.
    Paragraph (f)(3) of Sec.  3.111 requires that all individual animal 
veterinary records, including all examinations, laboratory reports, 
treatments, and necropsy reports, be kept at the facility site for at 
least 3 years, while Sec.  3.111(f)(4) requires that the facility 
retain for at least 3 years individual feeding and behavioral records. 
These records must be made available to APHIS officials during 
inspection. We would combine the information provided in paragraphs 
(f)(3) and (f)(4) into one paragraph, newly designated Sec.  
3.111(f)(2), which would require that medical, feeding, water quality, 
and any behavioral records be kept at the facility for at least 1 year. 
This is consistent with other recordkeeping requirements in the 
subpart. We would, however, continue to require that necropsy records 
be maintained for 3 years (Sec.  3.110(g)(2)). We would also continue 
to require that the records be made available to APHIS officials during 
inspection.
    Paragraph (f)(5) of Sec.  3.111 requires that the facility retain 
for at least 3 years certain statistical summaries involving the amount 
of time each day that animals participated in an interactive session, 
as well as the number of persons who participated in the interactive 
sessions per month. We propose to amend this requirement, to appear at 
newly designated Sec.  3.111(f)(3), to instead provide that records of 
individual animal participation times (date, start time of interactive 
session, and duration) must be maintained by the facility for a period 
of at least 1 year and be made available to APHIS officials during 
inspection. It would no longer be necessary for facilities to maintain 
statistical summaries of the number of persons who participated in the 
interactive program each month.
    Paragraph (f)(6) of Sec.  3.111 requires the facility to submit on 
a semi-annual basis a description of any changes made in the SWTD 
program. We propose to remove this paragraph. A new paragraph 
addressing these requirements on program changes would appear as 
proposed Sec.  3.111(f)(5), discussed below.
    Current Sec.  3.111(f)(7) provides that facilities must maintain 
records regarding all incidents resulting in injury to either cetaceans 
or humans participating in an interactive session. All such incidents 
shall be reported to APHIS within 24 hours of the incident and a 
written report of the incident that provides a detailed description of 
the incident and a plan of action for the prevention of further 
occurrences shall be submitted to the Administrator within 7 days. We 
would make certain changes to this provision, which would appear at 
newly designated Sec.  3.111(f)(4). We propose to expand the 
applicability of this provision to apply not only in cases of injury to 
human participants or marine mammals, but also to other members of the 
public and facility staff. In addition, we propose to require that 
incidents that occur during training sessions also be reported. We 
would require this reporting so that we would have information about 
all incidents at a facility, not just those incidents involving members 
of the public, and we would be able to identify any patterns or problem 
areas that need to be addressed. We would continue to require that the 
incident be reported to APHIS within 24 hours of its occurrence, with a 
written report to be submitted to APHIS within 7 days. We would clarify 
that the 7-day deadline means 7 calendar days. We would add that, in 
addition to detailing the incident, the written report must also 
describe the facility's response to the incident. We would no longer 
require that the written report specifically include a plan of action 
for the prevention of further occurrences. We are proposing the latter 
change as we have determined from experience that working directly with 
the licensee after an incident is a more timely and flexible means to 
ensure that adequate measures are in place to prevent such an incident 
from occurring again.
    We propose to add a new paragraph, to appear at Sec.  3.111(f)(5), 
which would provide that any changes to the interactive program, such 
as, but not limited to, personnel, animals, facilities (enclosures and 
interactive areas), and behaviors used, must be submitted to APHIS 
within 30 calendar days of the change. As long as the change is 
consistent with requirements, no additional approval from APHIS would 
be needed. If there is any question of the change being consistent with 
requirements, APHIS would relay the information to the inspector to 
discuss with the licensee. This requirement would replace an existing 
requirement found at Sec.  3.111(f)(6) that provides that the facility 
must submit on a semi-annual basis a description of any changes made in 
the SWTD program.
Miscellaneous
    We also propose to make a number of minor editorial changes in 
various sections for clarity and consistency.

Executive Orders 12866 and 13563 and Regulatory Flexibility Act

    This proposed 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.
    We have prepared an economic analysis for this rule. The economic 
analysis provides a cost-benefit analysis, as required by Executive 
Orders 12866 and 13563, which direct agencies to assess all costs and 
benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety 
effects, and equity). Executive Order 13563 emphasizes the importance 
of

[[Page 5645]]

quantifying both costs and benefits, of reducing costs, of harmonizing 
rules, and of promoting flexibility. The economic analysis also 
provides an initial regulatory flexibility analysis that examines the 
potential economic effects of this rule on small entities, as required 
by the Regulatory Flexibility Act. The economic analysis is summarized 
below. Copies of the full analysis are available by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT or on the 
Regulations.gov Web site (see ADDRESSES above for instructions for 
accessing Regulations.gov).
    Based on the information we have, there is no reason to conclude 
that adoption of this proposed rule would result in any significant 
economic effect on a substantial number of small entities. However, we 
do not currently have all of the data necessary for a comprehensive 
analysis of the effects of this proposed rule on small entities. 
Therefore, we are inviting comments on potential effects. In 
particular, we are interested in determining the number and kind of 
small entities that may incur benefits or costs from the implementation 
of this proposed rule.
    We are proposing to amend six sections of 9 CFR part 3 subpart E: 
Sec.  3.100 on variances and implementation dates; Sec.  3.102 on 
indoor facilities; Sec.  3.103 on outdoor facilities; Sec.  3.104 on 
space requirements, Sec.  3.106 on water quality; and Sec.  3.111 on 
swim-with-the-dolphin programs. Objectives of this proposed rule are to 
provide regulated facilities with more flexibility in meeting the space 
requirements (Sec.  3.100); prevent the accumulation of chlorine/
chloramine fumes, ammonia fumes, ozone, other gases, and odors; 
maintain relative humidity; and provide lighting that simulates natural 
lighting patterns for healthy animal metabolism (Sec.  3.102); ensure 
proper air and water temperature standards, and provide shelter to 
protect animals from overheating and sunburn due to direct sunlight 
(Sec.  3.103); provide easy access and exit for pinnipeds, polar bears, 
and sea otters of all ages and infirmities to ensure that young, 
elderly, and ill or infirm animals are able to get out of the water to 
access their dry resting or social activity area (Sec.  3.104); provide 
water quality standards including requirements relating to bacterial 
standards, salinity, filtration, and water flow (Sec.  3.106); and 
address the need to avoid promulgation of redundant provisions and 
enable APHIS to again enforce regulations covering marine mammal 
interactive programs which have been suspended since 1999 (Sec.  
3.111).\28\
---------------------------------------------------------------------------

    \28\ Refer to the ``Interactive Programs'' section of the 
proposed rule for more information on the enforcement of interactive 
programs.
---------------------------------------------------------------------------

    The entities primarily affected by this proposed rule would be 115 
facilities that handle or maintain marine mammals in captivity, such as 
aquariums, zoos, marine life parks, marine mammal rehabilitation and 
conservation facilities that are open to the public, and research 
facilities. Other stakeholders include, but are not limited to, 
organizations and individuals who are dedicated to improving the 
welfare of marine mammals in captivity, other Federal agencies that are 
responsible for the protection and conservation of marine mammals, as 
well as members of the general public who view and interact with marine 
mammals in captivity.
    A total of 1,544 marine mammals are listed in the latest APHIS 
inspection data: Dolphins (35 percent), sea lions (25 percent), and 
seals (21 percent) are the principal species housed at regulated 
facilities, followed by polar bears (5 percent), sirenians (4 percent), 
sea otters (3 percent), whales other than killer whales (3 percent), 
killer whales (2 percent) and walruses (1 percent). The number of 
marine mammals housed per facility varies from fewer than 4 animals (48 
facilities or 42 percent of the 115 facilities) to over 50 animals (4 
facilities or 3 percent of the total). Two-thirds of the 115 facilities 
currently house fewer than 9 marine mammals, and 13 facilities (11 
percent) house more than 25 marine mammals. The average number of 
marine mammals housed is 13.
    This proposed rule would directly impact these regulated 
facilities. Categories of expected benefits and costs of the proposed 
rule are summarized in Table 1.\29\ As for the monetized costs, we 
estimate that one-time costs to the industry would total about $131,000 
to $156,000 for providing easy access and exit ramps for pinnipeds, 
polar bears, and sea otters; individual visual barriers for sea otters; 
and portable refractometer for salinity testing. Annual recurring costs 
would total about $574,000 to $604,000 for shelters and bacterial 
testing for water quality. We estimate that the total additional annual 
revenue for the marine mammal interactive industry would be about $23 
million to $24 million, but we lack data with which to estimate 
profits--which, rather than revenues, represent the benefits of this 
proposed rule's interactive program provision. We encourage the public 
to provide information that would help us to refine these estimates.
---------------------------------------------------------------------------

    \29\ The proposed changes are intended to benefit the welfare of 
marine mammals in captivity. These benefits are included in the 
table without monetizing as no studies or models to quantify these 
benefits are available. Impacts for the individual facilities would 
vary due to the degree to which they are already in compliance with 
the proposed amendments, and because various approaches and 
applications could be used when changes are needed. The proposed 
rule also includes certain changes that are for clarification 
purposes only, or for which the majority of affected entities are 
already in compliance. For these changes, we expect little or no 
associated economic impact, and they are therefore not included in 
the table.

                      Table 1--Summary of Expected Benefits and Costs of the Proposed Rule
----------------------------------------------------------------------------------------------------------------
                                       Expected benefits                        Expected costs
                                    (Benefits are primarily  ---------------------------------------------------
             Sections               qualitative and are not
                                           monetized)              One-time costs        Annual recurring costs
----------------------------------------------------------------------------------------------------------------
Sec.   3.100 Variance............  Make this section          None....................  None.
                                    operative again and
                                    provide more flexibility.
Sec.   3.102 Indoor facilities...  Ventilation: Reduce risks  Ventilation: None.......  Ventilation: None.
                                    of skin and mucous
                                    membrane irritation and
                                    bacterial and mold
                                    growth.

[[Page 5646]]

 
                                   Lighting: Ensure normal    Lighting: Expected to be  Lighting: Expected to be
                                    functioning of metabolic   small, if any, as most    minimal, if any, due to
                                    systems for animals and    facilities are under      increased energy-
                                    provide facility           compliance.               efficiency and longer-
                                    personnel sufficient                                 life of bulbs.
                                    light to observe animals
                                    and to operate safely.
Sec.   3.103 Outdoor facilities..  Environmental              Environmental             Environmental
                                    temperatures: Clarify      temperatures: Expected    temperatures: Expect
                                    the requirements and       to be small, if any.      little economic impact.
                                    help animals maintain      (No citation in the
                                    their desired internal     last 3 years.).
                                    temperatures without
                                    stressing their
                                    metabolisms.
                                   Shelter: Minimize          Shelter: None...........  Shelter:
                                    overheating and sunburn                             $20,000~$50,000 (Annual
                                    of animals from direct                               or biennial costs,
                                    and reflective sunlight.                             based on 50 pools.)
                                    For pinnipeds, limit the
                                    severity of lens-related
                                    disease.
Sec.   3.104 Space requirements..  Space requirements--       Space requirements--      Space requirements--
                                    general and species        general and species       general and species
                                    specific: Clarify the      specific: None.           specific: None.
                                    requirements and update
                                    tables for average adult
                                    lengths and
                                    corresponding minimum
                                    space requirements.
                                   Easy access and exit       Easy access ramps and     Easy access ramps and
                                    ramps and visual           visual barriers:          visual barriers: None.
                                    barriers: Provide          $85,000-$110,000 (Based
                                    elderly, and ill or        on 50 fiberglass ramps
                                    infirm animals with easy   @$1,500-$2,000 and 50
                                    access to their dry        barriers @$200).
                                    resting areas, and, for
                                    sea otters provide safe
                                    resting spaces.
Sec.   3.106 Water quality.......  Bacterial standards and    Bacterial standards:      Bacterial standards:
                                    salinity testing:          None.                     $554,000 (Based on 460
                                    Clarify and update the    Salinity testing:          pools, 20% lab-tests
                                    bacterial count and        $46,000 (Based on 460     @$85 per week and 80%
                                    salinity requirements to   pools and a cost of       on-site tests with
                                    ensure animals' health     portable refractometer    $7.70 test kit per week
                                    and well-being and to      @$100).                   per pool).
                                    conform to the EPA and                              Salinity testing: None.
                                    related standards that
                                    protect the health and
                                    well-being of humans in
                                    the water, such as when
                                    taking part in
                                    interactive programs.
                                   On-site record keeping:    On-site record keeping:   On-site record keeping:
                                    Allow APHIS inspectors     A small cost to create    A small: None.
                                    to better access the       a new on-site filing
                                    animal welfare             for those facilities
                                    information to assess      which keep records at a
                                    the animal health.         centralized location.
                                   Water clarity, filtration  Water clarity,            Water clarity,
                                    and water flow: Through    filtration and water      filtration and water
                                    performance based          flow: None.               flow: None.
                                    standards, provide
                                    flexibility while
                                    ensuring animals' well-
                                    being.
Sec.   3.111 Marine mammal         The program name and       The program name and      The program name and
 interactive programs.              marine mammal species:     marine mammal species:    marine mammal species:
                                    Provide consistency to     None.                     None.
                                    the industry and bring
                                    other animals under the
                                    protection of
                                    interactive programs.
                                   The interactive area:      The interactive area:     The interactive area:
                                    Provide better use of      None.                     None.
                                    resources while
                                    providing improved
                                    safety for animals and
                                    public participants.
                                   Minimum qualification      Minimum qualification     Minimum qualification
                                    requirements for program   requirements for          requirements for
                                    personnel: Provide more    program personnel: None.  program personnel:
                                    flexibility in staffing                              None.
                                    decisions by focusing on
                                    an individual's needed
                                    knowledge, skills, and
                                    abilities.
                                   Interactive time between   Interactive time between  Interactive time between
                                    animals and the public     animals and the public    animals and the public
                                    and the ratio of human     and the ratio of human    and the ratio of human
                                    participants to animal:    participants to animal:   participants to animal:
                                    Proposed increase of       Decisions to increase     None.
                                    daily interactive time     interactive program
                                    from 2 hours to 3 hours    time are discretion of
                                    could generate             the facilities, and no
                                    additional annual          costs are expected
                                    revenue of about $23       which are directly
                                    million~$24 million for    caused by the proposed
                                    the industry.              changes.
                                    (Assumptions--87
                                    interactive programs, 3
                                    participants per session
                                    in the programs, 360
                                    days/year operations)
                                    The benefit of this
                                    provision would be
                                    increased profit, not
                                    increased revenue, but
                                    we have no net profit
                                    estimates for the
                                    industry.

[[Page 5647]]

 
                                   Written agreements by      Written agreements by     Written agreements by
                                    participants, a            participants, a           participants, a
                                    provision of APHIS         provision of APHIS        provision of APHIS
                                    consultations,             consultations,            consultations,
                                    recordkeeping, and         recordkeeping, and        recordkeeping, and
                                    veterinary care            veterinary care           veterinary care
                                    requirements: Streamline   requirements: None.       requirements: None.
                                    recordkeeping
                                    requirements to reduce
                                    administrative burdens
                                    without compromising the
                                    quality of animal
                                    welfare.
Sum of monetized benefits and      Not available............  $131,000-$156,000.......  $574,000-$604,000.
 costs of the proposed rule.
----------------------------------------------------------------------------------------------------------------
Source: Data compiled by APHIS based on publicly available costs and marine mammal interactive program fees.
Note 1: Number of facilities not currently in compliance is not available but is thought to be small.
Note 2: The total number of pools is not available. The number of pools at a given facility ranges widely from 1
  pool at some small facilities to over 20 pools including back area holding pools in some large facilities.
Note 3: The annual industry revenue under the assumption that, on average, each interactive session has 1 marine
  mammal which is participating in the interactive session. The annual revenue for the industry is calculated by
  multiplying the 87 interactive programs by the average annual revenue per marine mammal interactive program.
  For more detail, refer to the marine mammal interactive programs in the expected benefit section.
Note 4: Revenues are estimated based on the information retrieved from Web sites of the 32 facilities.

    As shown in Table 1, we expect that the proposed rule would not 
result in significant costs for most of the regulated facilities.
    Facilities that house marine mammals for exhibition purposes are 
grouped under the following industries by the North American Industry 
Classification System: Zoos, Aquariums, and Botanical Gardens (NAICS 
712130), Amusement and Theme Parks (NAICS 713110), and Nature Parks and 
other Similar Institutions (NAICS 712190). Establishments in these 
three industries are considered small according to the Small Business 
Administration's (SBA) size standards if annual receipts are, 
respectively, not more than $27.5 million (NAICS 712130), $38.5 million 
(NAICS 713110) and $7.5 million (NAICS 712190). Facilities that 
maintain marine mammals for research purposes (NAICS 541712) are 
considered small if they have 500 or fewer employees. In 2012, the 
average annual value of sales per entity for Zoos, Aquariums, and 
Botanical Gardens (NAICS 712130) was $5.2 million; for Amusement and 
Theme Parks (NAICS 713110), $27.6 million; and for Nature Parks and 
Other Similar Institutions (NAICS 712190), $1.1 million. Ninety-eight 
percent of the facilities that maintain marine mammals for research 
purposes (NAICS 541712) had fewer than 500 employees. Based on this 
information most if not all businesses in these industries are 
considered to be small.

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 2 CFR chapter IV.)

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. It is not intended to have retroactive effect. 
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 section 3507(d) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.), the information collection or 
recordkeeping requirements included in this proposed rule have been 
submitted for approval to the Office of Management and Budget (OMB). 
Please send written comments to the Office of Information and 
Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, 
DC 20503. Please state that your comments refer to Docket No. APHIS-
2006-0085. Please send a copy of your comments to: (1) Docket No. 
APHIS-2006-0085, Regulatory Analysis and Development, PPD, APHIS, 
Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238, 
and (2) Clearance Officer, OCIO, USDA, Room 404-W, 14th Street and 
Independence Avenue SW., Washington, DC 20250.
    We are proposing to amend the Animal Welfare Act regulations 
concerning the humane handling, care, treatment, and transportation of 
marine mammals in captivity. These proposed changes would affect 
sections in the regulations relating to variances, indoor facilities, 
outdoor facilities, space requirements, and water quality. We are also 
proposing to revise the regulations that relate to swim-with-the-
dolphin programs. These proposed amendments may increase paperwork by 
requiring more records pertaining to water quality and by creating more 
frequent requests concerning variances and variance extensions from 
space requirements and other requirements for marine mammals. For 
interactive programs, the proposed amendments will decrease the amount 
of recordkeeping and reporting. However, because of an increase in 
these types of programs and a more inclusive definition of interactive 
programs under the proposed rule, a larger number of facilities may be 
required to maintain and report such records. In addition, the 
estimated annual number of respondents is the number of respondents 
that we estimate will respond to all of the information collections 
annually. We are soliciting comments from the public (as well as 
affected agencies) concerning our proposed reporting, third party 
disclosure, and recordkeeping requirements. These comments will help 
us:
    (1) Evaluate whether the proposed information collection is 
necessary for the proper performance of our agency's functions, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of our estimate of the burden of the 
proposed information collection, including the validity of the 
methodology and assumptions used;

[[Page 5648]]

    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the information collection on those who 
are to respond (such as through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology; e.g., permitting electronic 
submission of responses).
    Estimate of burden: Public reporting burden for this collection of 
information is estimated to average 0.31426 hours per response.
    Respondents: Dealers, exhibitors, research facilities, intermediate 
carriers, veterinarians, marine mammal experts, and handlers.
    Estimated annual number of respondents: 162.
    Estimated annual number of responses per respondent: 90.
    Estimated annual number of responses: 14,507.
    Estimated total annual burden on respondents: 4,559 hours. (Due to 
averaging, the total annual burden hours may not equal the product of 
the annual number of responses multiplied by the reporting burden per 
response.)
    Copies of this information collection can be obtained from Ms. 
Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 
851-2727.

E-Government Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the E-Government Act to promote the use of the Internet 
and other information technologies, to provide increased opportunities 
for citizen access to Government information and services, and for 
other purposes. For information pertinent to E-Government Act 
compliance related to this proposed rule, please contact Ms. Kimberly 
Hardy, APHIS' Information Collection Coordinator, at (301) 851-2727.

List of Subjects

9 CFR Part 1

    Animal welfare, Pets, Reporting and recordkeeping requirements, 
Research.

9 CFR Part 3

    Animal welfare, Marine mammals, Pets, Reporting and recordkeeping 
requirements, Research, Transportation.

    Accordingly, we propose to amend 9 CFR parts 1 and 3 as follows:

PART 1--DEFINITION OF TERMS

0
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 371.7.

0
2. Section 1.1 is amended as follows:
0
a. By removing the definitions of buffer area and swim-with-the-dolphin 
(SWTD) program.
0
b. By revising the definitions of interactive area, interactive 
session, primary enclosure, and sanctuary area.
0
c. By adding, in alphabetical order, a definition of interactive 
program.
    The addition and revisions read as follows:


Sec.  1.1  Definitions.

* * * * *
    Interactive area means that area of a marine mammal primary 
enclosure where an interactive program takes place.
    Interactive program means any human-marine mammal interactive 
program where a member of the public enters a primary enclosure for a 
marine mammal with the intent of interacting with the marine mammal(s), 
except for potentially dangerous marine mammals, such as, but not 
limited to, polar bears. Such programs include, but are not limited to, 
sessions in which the human participants swim, snorkel, scuba dive, or 
wade in the enclosure and sessions in which the human participants sit 
on a dock or ledge, including therapeutic sessions. Such programs 
exclude, but such exclusions are not limited to, feeding or petting 
pools where the members of the public are not allowed to enter the 
enclosure, and the participation of an audience member at what has been 
traditionally known as a performance or show involving the exhibition 
of marine mammals.
    Interactive session means the time during which a marine mammal and 
a member of the public are in the interactive area.
* * * * *
    Primary enclosure means any structure or device used to restrict an 
animal or animals to a limited amount of space, such as a room, pen, 
run, cage, compartment, pool, or hutch. This term, which may also be 
referred to as enclosures, includes, but such inclusions are not 
limited to, display enclosures, holding enclosures, night enclosures, 
off-exhibit enclosures, and medical enclosures.
* * * * *
    Sanctuary area means that area in a primary enclosure for marine 
mammals that abuts the interactive area and is off-limits to the 
public.
* * * * *

PART 3--STANDARDS

0
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 371.7.

0
4. Section 3.100 is revised to read as follows:


Sec.  3.100  Special considerations regarding compliance and/or 
variance.

    (a) All persons subject to the Animal Welfare Act who maintain or 
otherwise handle marine mammals in captivity must comply with the 
provisions of this subpart, except that they may request a variance \6\ 
from the Deputy Administrator from one or more specified provisions of 
Sec.  3.104.
---------------------------------------------------------------------------

    \6\ Written permission from the Deputy Administrator to operate 
as a licensee or registrant under the Act without being in full 
compliance with one or more specified provisions of Sec.  3.104.
---------------------------------------------------------------------------

    (b) An application for a variance must be made to the Deputy 
Administrator in writing. The request must include:
    (1) The species, number, and gender of animals involved;
    (2) A statement from the attending veterinarian certifying the age 
and health status of the animals involved and how the granting of a 
variance would be beneficial or detrimental to the marine mammals 
involved;
    (3) Each provision of Sec.  3.104 that is not being met;
    (4) The time period requested for a variance;
    (5) The specific reasons why a variance is requested; and
    (6) The estimated cost of coming into compliance, if construction 
is involved.
    (c) After receipt of an application for a variance, APHIS may 
require the submission in writing of a report by two recognized experts 
selected by the Deputy Administrator concerning potential adverse 
impacts on the animals involved or on other matters relating to the 
effects of the requested variance on the health and well-being of such 
marine mammals. Such a report will be required in those cases where the 
Deputy Administrator determines that such expertise is necessary to 
determine whether the granting of a variance would cause a situation 
detrimental to the health and well-being of the marine mammals 
involved. All costs associated with such a report will be borne by the 
applicant.
    (d) Variances may be granted for facilities because of ill or 
infirm marine mammals that cannot be moved without placing their well-
being in jeopardy, or for facilities within 1 foot (0.3048 meters) of 
compliance with any linear space requirement. Such variances may

[[Page 5649]]

be granted for up to the life of the marine mammals involved.
    (e) The Deputy Administrator will deny any application for a 
variance if it is determined that the requested variance is not 
justified under the circumstances or that allowing it will be 
detrimental to the health and well-being of the marine mammals 
involved.
    (f) A research facility may be granted a variance from specified 
requirements of this subpart when such variance is necessary for 
research purposes, is fully explained in the experimental design, and 
has the appropriate scientific research permit under the Marine Mammal 
Protection Act, Endangered Species Act, and Institutional Animal Care 
and Use Committee (IACUC) approval. Any time limitation stated in this 
section will not be applicable in such case. This provision cannot be 
used to avoid complying with Sec.  3.104.
    (g) A facility may be granted a variance from specified 
requirements of this subpart when such variance is necessary due to an 
emergency or temporary special circumstance. Any time limitation stated 
in this section will not be applicable in such case. This provision 
cannot be used to avoid complying with Sec.  3.104.
0
5. Section 3.102 is revised to read as follows:


Sec.  3.102  Facilities, indoor.

    (a) Ambient temperature. The air and water temperatures in indoor 
facilities must be sufficiently regulated by heating or cooling to 
protect the marine mammals from extremes of temperature, to provide for 
their good health and well-being, and to prevent discomfort, in 
accordance with the currently accepted practices as cited in 
appropriate professional journals or reference guides, depending upon 
the species housed therein. Rapid changes in air and water temperatures 
must be avoided.
    (b) Ventilation. Indoor housing facilities must be ventilated by 
natural and/or mechanical means to provide a flow of fresh air for the 
marine mammals that will prevent the accumulation of chlorine/
chloramine fumes, ammonia fumes, ozone, other gases, or odors at levels 
that would be objectionable or harmful to a reasonable person of 
average sensitivity, and maintain relative humidity at a level that 
prevents condensation in order to minimize the potential for bacterial, 
fungal, or viral contamination from condensation. The average 
ventilation rate should exceed 0.2 cubic feet per minute per kilogram 
(cfm/kg) of animal. A vertical air space averaging at least 6 feet 
(1.83 meters) must be maintained in all enclosures housing marine 
mammals, including over pools.
    (c) Lighting. Indoor housing facilities for marine mammals must 
have ample lighting, by natural or artificial means, or both, of a 
quality, distribution, and duration which is appropriate for the 
species involved. Artificial lighting must provide full spectrum 
lighting. Sufficient lighting must be available to provide uniformly 
distributed illumination which is adequate to permit routine 
inspection, observation, and cleaning of all parts of the enclosure 
including any den area(s). Artificial light levels measured 1 meter 
above pools or decks should not exceed 500 lux. Lighting intensity and 
duration must be consistent with the general well-being and comfort of 
the animals and provide at least 6 hours of uninterrupted darkness 
during each 24-hour period. Lighting must not cause overexposure, 
discomfort, or trauma to the marine mammals. To the extent possible, it 
should approximate the lighting conditions encountered by the animal in 
its natural environment.
0
6. Section 3.103 is amended as follows:
0
a. By revising paragraphs (a) introductory text and (a)(3).
0
b. By revising paragraph (b).
    The revisions read as follows:


Sec.  3.103  Facilities, outdoor.

    (a) Environmental temperatures. Marine mammals must not be housed 
in outdoor facilities unless the air and water temperature ranges that 
they may encounter while they are so housed are in accordance with 
currently accepted practices for the species, as cited in appropriate 
professional journals or reference guides, and do not adversely affect 
their health and comfort. A marine mammal must not be introduced to an 
outdoor housing facility until it is acclimated to the air and water 
temperature ranges that it will encounter there. The following 
requirements will be applicable to all outdoor pools:
* * * * *
    (3) Sirenians and primarily warm water dwelling species of 
pinnipeds or cetaceans must not be housed in outdoor pools where water 
temperature cannot be maintained within the temperature range needed to 
maintain their good health and prevent discomfort in accordance with 
currently accepted practices as cited in appropriate professional 
journals or reference guides.
    (b) Shelter. Natural or artificial shelter that is appropriate for 
the species concerned, when the local climatic conditions are taken 
into consideration, must be provided for all marine mammals kept 
outdoors to afford them protection from the weather. Shade must be 
provided to protect marine mammals from direct sunlight, including 
during feeding and training sessions. Shade must be accessible and 
cover sufficient area to afford all animals within the enclosure 
protection. Shaded areas need not be contiguous and shade structures 
may be permanent or temporary for easy movement or deployment.
* * * * *
0
7. Section 3.104 is amended as follows:
0
a. In paragraph (a), by designating the text following the paragraph 
heading ``General.'' as paragraph (a)(1) and adding paragraph (a)(2).
0
b. In paragraph (b) introductory text, by removing the first sentence 
after the paragraph heading ``Cetaceans.'' and by removing the words 
``Table III'' and adding the words ``Table 1'' in their place.
0
c. In paragraph (b)(1)(i), footnote 8 is redesignated as footnote 7.
0
d. In paragraph (b)(1)(iv), in the last sentence, by removing the words 
``, and for Group II cetaceans in Table II'' and by adding the words 
``and Group II'' after the words ``Group I''.
0
e. Following paragraph (b)(1)(iv), by removing Tables I, II, and III, 
and adding Tables 1, 2, 3, and 4 in their place.
0
f. In paragraph (b)(2), by removing the last sentence.
0
g. In paragraph (b)(3) introductory text, by removing the words 
``Tables I, II, and IV'' and adding the words ``Table 1'' in their 
place.
0
h. In paragraph (b)(3)(ii), in the last sentence, by removing the words 
``Table II'' and adding the words ``Table 1'' in their place.
0
i. In paragraph (b)(4)(i), by redesignating footnote 9 as footnote 8.
0
j. In paragraph (b)(4)(ii), by removing the last sentence and by 
redesignating footnote 10 as footnote 9.
0
k. In paragraph (b)(4)(iii), by removing the words ``Table IV'' and 
adding the words ``Table 1'' in their place.
0
l. Following paragraph (b)(4)(iii) introductory text, by removing Table 
IV.
0
m. In paragraph (c), by removing the first sentence following the 
paragraph heading ``Sirenians.''
0
n. In paragraph (c)(1), by adding a sentence after the last sentence.
0
o. In paragraph (c)(2), by removing the last sentence.
0
p. By revising paragraph (d)(1).
0
q. In paragraph (d)(3)(iii), by removing the last sentence.
0
r. In paragraph (e), by adding a sentence after the first sentence.

[[Page 5650]]

0
s. In paragraph (f)(1), by adding a sentence after the first sentence 
and by removing the words ``Table V'' and adding the words ``Table 5'' 
in their place.
0
t. In paragraph (f)(2), by removing the words ``Table V'' and adding 
the words ``Table 5'' in their place.
0
u. In paragraph (f)(3), by removing the words ``will result in the 
following figures:'' and adding the words ``are in Table 5. Since sea 
otters do not readily use shared resting areas, individual areas or 
visual barriers separating appropriately sized individual resting 
spaces must be used.'' in their place.
0
v. Following paragraph (f)(3) introductory text, in the table heading, 
by removing the words ``Table V'' and adding the words ``Table 5'' in 
their place.
    The additions and revision read as follows:


Sec.  3.104  Space requirements.

    (a) * * *
    (2) Only those areas that meet or exceed the minimum depth 
requirement may be used in determining compliance with minimum 
horizontal dimension (MHD), volume, and surface area. APHIS will 
determine if partial obstructions in a horizontal dimension compromise 
the intent of the regulations and/or significantly restrict freedom of 
movement of the animal(s) in the enclosure.
    (b) * * *
    (1) * * *
    (iv) * * *
BILLING CODE 3410-34-P

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[[Page 5654]]



                     Table 2--Average Adult Lengths of Sirenians and Mustelids in Captivity
----------------------------------------------------------------------------------------------------------------
                                                                                       Average adult length
                    Species                                Common name           -------------------------------
                                                                                      In feet        In meters
----------------------------------------------------------------------------------------------------------------
Sirenia:
    Dugong dugon..............................  Dugong..........................           11.00            3.35
    Trichechus inunguis.......................  Amazon manatee..................            8.00            2.44
    Trichechus manatus........................  West Indian manatee.............           11.50            3.51
Mustelids:
    Enhydra lutris............................  Sea otter.......................            4.10            1.25
----------------------------------------------------------------------------------------------------------------


                            Table 3--Average Adult Lengths for Pinnipeds in Captivity
----------------------------------------------------------------------------------------------------------------
                                                                       Average adult length
                                                 ---------------------------------------------------------------
            Species                Common name                In feet                        In meters
                                                 ---------------------------------------------------------------
                                                       Male           Female           Male           Female
----------------------------------------------------------------------------------------------------------------
Group I:
    Arctocephalus australis *.  South American              6.20            4.70            1.88            1.42
                                 fur seal.
    Arctocephalus gazella *...  Antarctic (or               5.90            3.90            1.80            1.20
                                 Kerguelen) fur
                                 seal.
    Arctocephalus pusillis *..  South African/              8.96            6.00            2.73            1.83
                                 Australian (or
                                 Cape) fur seal.
    Arctocephalus townsendi *.  Guadalupe fur               6.27            4.29            1.90            1.30
                                 seal.
    Arctocephalus tropicalis *  Subantarctic (or            5.90            4.75            1.80            1.45
                                 Amsterdam
                                 Island) fur
                                 seal.
    Callorhinus ursinus *.....  Northern fur                7.20            4.75            2.20            1.45
                                 seal.
    Eumetopias jubatus *......  Steller sea lion            9.40            7.90            2.86            2.40
    Halichoerus grypus *......  Gray seal.......            7.50            6.40            2.30            1.95
    Hydrurga leptonyx.........  Leopard seal....            9.50           10.80            2.90            3.30
    Leptonychotes weddellii *.  Weddell seal....            9.50           10.30            2.90            3.15
    Lobodon carcinophagus.....  Crabeater seal..            7.30            7.30            2.21            2.21
    Mirounga angustirostris...  Northern                   13.00            8.20            3.96            2.49
                                 elephant seal.
    Mirounga leonina *........  Southern                   15.30            8.20            4.67            2.50
                                 elephant seal.
    Odobenus rosmarus *.......  Walrus..........           10.30            8.50            3.15            2.60
    Ommatophoca rossi *.......  Ross seal.......            6.50            7.00            1.99            2.13
    Otaria byronia *..........  Southern (or                7.90            6.60            2.40            2.00
                                 Patagonian) sea
                                 lion.
    Phoca caspica.............  Caspian seal....            4.75            4.60            1.45            1.40
    Phoca fasciata............  Ribbon seal.....            5.70            5.50            1.75            1.68
    Phoca groenlandica........  Harp seal.......            6.10            6.10            1.85            1.85
    Phoca largha..............  Spotted seal....            5.60            4.90            1.70            1.50
    Phoca sibirica............  Baikal seal.....            5.60            6.10            1.70            1.85
    Phoca vitulina............  Harbor seal.....            5.60            4.90            1.70            1.50
    Zalophus californianus *..  California sea              7.30            5.70            2.24            1.75
                                 lion.
Group II:
    Cystophora cristata.......  Hooded seal.....            8.50            6.60            2.60            2.00
    Erignathus barbatus.......  Bearded seal....            7.60            7.60            2.33            2.33
    Neomonachus schauinslandi.  Hawaiian monk               7.40            7.40            2.25            2.25
                                 seal.
    Phoca hispida.............  Ringed seal.....            4.40            4.30            1.35            1.30
----------------------------------------------------------------------------------------------------------------
* Any Group I animals maintained together will be considered as Group II when the animals maintained together
  include two or more sexually mature males from species marked with an asterisk, regardless of whether the
  sexually mature males are from the same species.


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BILLING CODE 3410-34-C
* * * * *
    (c) * * *
    (1) * * * See Table 2 for the average adult lengths of sirenians.
* * * * *
    (d) * * *
    (1) Primary enclosures housing pinnipeds shall contain a pool of 
water and a dry resting area or social activity area that must be close 
enough to the

[[Page 5656]]

surface of the water to allow easy access for entering or leaving the 
pool for all animals regardless of age or infirmity. For the purposes 
of this subpart, pinnipeds have been divided into Group I pinnipeds and 
Group II pinnipeds as shown in Table 3 in this section. In certain 
instances some Group I pinnipeds shall be considered Group II 
pinnipeds. (See Table 3.) Minimum space requirements for pinnipeds are 
given in Table 4.
* * * * *
    (e) * * * Exit and entry area to the pool shall be of a depth and 
grade to allow easy access and exit for all animals regardless of age 
or infirmity. * * *
    (f) * * *
    (1) * * * Exit and entry area to the pool shall be of a depth and 
grade to allow easy access and exit for all animals regardless of age 
or infirmity.* * *
* * * * *
0
8. Section 3.106 is revised to read as follows:


Sec.  3.106  Water quality.

    (a) General. The primary enclosure must not contain water which 
could be detrimental to the health of the marine mammal contained 
therein.
    (b) Bacterial standards. (1) All primary enclosure pools must be 
tested for fecal bacterial contamination on a weekly basis. The 
facility must conduct the following tests:
    (i) Total coliform count (count shall not exceed 500 colonies per 
100 mL) or fecal coliform count (count shall not exceed 400 colonies 
per 100 mL); and
    (ii) Enterococci count (count shall not exceed 35 colonies per 100 
mL); or
    (iii) Pseudomonas count (count shall not exceed 10 colonies per 100 
mL); or
    (iv) Staphylococcus count (count shall not exceed 10 colonies per 
100 mL).
    (2) Should any of the bacterial counts exceed these levels, two 
followup samples must be taken to repeat the test(s) for those 
bacterial contaminants identified as being present at levels exceeding 
the standards. The first followup must be taken immediately after the 
initial test result and the second followup must be taken within 48 
hours of the first followup. The results of the initial test result, 
first followup test result, and second follow up test result must be 
averaged. If the averaged value exceeds the acceptable levels above, 
the pool water is unsatisfactory and conditions must be corrected 
immediately.
    (3) Additional testing for suspect pathogenic organism(s) should be 
conducted when there is sufficient evidence of health problems at the 
facility or of a potential health hazard to the animals.
    (4) The addition of any chemicals to a pool must be done in a 
manner that will not cause harm or discomfort to the marine mammals 
during the introduction of the chemical or during its presence in the 
enclosure (in the water, on the surfaces, or in the air).
    (5) Water samples must be taken at least daily for pH, salinity, 
and any chemicals (e.g., chlorine and copper) that are added to the 
water to maintain water quality standards. Natural lagoon and coastal 
enclosures will be exempt from pH testing, but must be tested for 
salinity and any chemical additives, if used.
    (6) Records must be kept documenting the date, time, location (pool 
and sampling site within the pool) of the sample collection and the 
results of the sampling. Records of all such test results must be 
maintained at the facility for a 1-year period and made readily 
available to APHIS inspectors.
    (c) Salinity. (1) All primary enclosure pools must be salinized for 
cetaceans, pinnipeds, and sea otters, except for pools housing:
    (i) River dolphins; or
    (ii) Pinnipeds where oral administration of sodium chloride (salt) 
supplements at appropriate levels for the species, as determined by the 
attending veterinarian, is provided and saltwater eye baths are used on 
a daily basis.
    (2) Salinity must be maintained within the range of 24-36 parts per 
thousand except in natural lagoon or coastal enclosures, where the 
salinity must be no less than 15 parts per thousand.
    (3) The requirements in paragraphs (c)(1) and (2) of this section 
do not preclude the use of other salinity levels when prescribed by the 
attending veterinarian to appropriately treat specific medical 
conditions.
    (d) Water clarity. Pools must be maintained in a manner that will 
provide sufficient water clarity to view the animals in order to 
observe them and monitor their behavior and health.
    (e) Filtration and water flow. Water quality must be maintained by 
filtration, chemical treatment, naturally occurring tidal flow, or 
other means that will comply with the water quality standards specified 
in this section.
0
9. Section 3.111 is revised to read as follows:


Sec.  3.111  Interactive programs.

    All marine mammal interactive programs must comply with this 
section and all other appropriate provisions set forth in parts 2 and 3 
of this subchapter.
    (a) Space requirements. During an interactive session, each animal 
must have unrestricted access to the interactive area and the sanctuary 
area. Neither area may be made uninviting to the animals. Each area 
must meet the requirements of paragraphs (a)(1) and (2) of this 
section.
    (1) The interactive area must provide sufficient space for all 
marine mammals to freely swim or move about, consistent with the type 
of interaction, even with a full complement of public participants and 
employees in the area.
    (2) The sanctuary area may be within the enclosure containing the 
interactive area or it may be within a second enclosure to which free 
and unrestricted access is provided during the interactive session. The 
sanctuary area must meet the minimum space requirements found in Sec.  
3.104.
    (b) Water clarity. Sufficient water clarity must be maintained so 
that attendants are able to observe the marine mammals and the human 
participants at all times while within the interactive area. If water 
clarity does not allow these observations, the interactive sessions 
must be canceled until the required clarity is provided.
    (c) Employees. Each interactive program must have a sufficient 
number of adequately trained personnel to meet the husbandry and care 
requirements for the animals and comply with all training, handling, 
and attendant requirements of the regulations. For interactive 
programs, there must be a trainer, handler, and sufficient number of 
adequately trained attendants to comply with Sec.  3.111(d)(4).
    (1) The head trainer/supervisor of the interactive program must 
have demonstrable in-depth knowledge of the husbandry and care 
requirements of the family and species of marine mammals being 
exhibited, demonstrable knowledge of and skill in current accepted 
professional standards and techniques in animal training and handling, 
and the ability to recognize normal and abnormal behavior and signs of 
behavioral stress in the animal families and species being exhibited.
    (2) All interactive program trainers and attendants must have the 
knowledge and skill level sufficient to safely conduct and monitor an 
interactive session.
    (d) Handling. (1) Interactive time between marine mammals and the 
public (i.e., interactive session) must not exceed 3 hours per day per 
animal. Each animal must have at least one period in each 24 hours of 
at least 10 continuous hours without public interactions.

[[Page 5657]]

    (2) All marine mammals 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. The trainer, handler, or attendant must, at all 
times, control the nature and extent of the marine mammal interaction 
with the public during a session using the trained responses of the 
program animal.
    (3) All marine mammals used in interactive sessions must be in good 
health, including, but not limited to, not being infectious. Marine 
mammals undergoing veterinary treatment may be used in interactive 
sessions only with the written approval of the attending veterinarian.
    (4) There must be a sufficient number of session attendants 
(includes trainer, handler, or attendants) to effectively conduct the 
session in a safe manner. There must be at least one attendant per 
marine mammal in the session, and at least one attendant positioned to 
monitor each session. The number of public participants per marine 
mammal must not exceed the number that the attendant can monitor 
safely, appropriate to the type of interactive session.
    (5) Prior to participating in an interactive session, members of 
the public must be provided with oral rules and instructions for the 
session. The program must also either provide to the attendees in a 
written handout, or post in a highly visible location, a notice that 
summarizes the rules and instructions for the session and includes 
contact information for the appropriate Animal Care Field Operations 
office for reporting injuries or complaints. A copy of the written 
rules must be made available to APHIS during an inspection. Any 
participant who fails to follow the rules and instructions and 
jeopardizes human or animal safety or health must be immediately 
removed from the session by the facility management.
    (6) All interactive programs must limit interactions between marine 
mammals and human participants so that the interaction does not harm 
the marine mammal or human participants, does not elicit 
unsatisfactory, undesirable, or unsafe behaviors from the marine 
mammal, and does not restrict by word or action (including recalling), 
from the sanctuary area, or enclosure design, the ability of the animal 
to leave the interactive area and session as it chooses. If an animal 
removes itself or is removed from a session, the facility must maintain 
the ratios of Sec.  3.111(d)(4) by either removing human participants 
from the interactive area or introducing another animal.
    (7) All interactive programs must prohibit grasping or holding of 
the animal's body unless it is done under the direct and explicit 
instruction of the attendant, and must prohibit the chasing or other 
harassment of the animal(s).
    (8) Marine mammals that exhibit unsatisfactory, undesirable, or 
unsafe behaviors, including, but not limited to, charging, biting, 
mouthing, or sexual contact with humans, must be removed from the 
interactive session immediately, or, if the animal cannot be removed, 
the session must be terminated. Such an animal must not be used in an 
interactive session until the trainer determines that the animal is no 
longer exhibiting the unsatisfactory, undesirable, or unsafe behavior. 
Written criteria for the termination of a session due to such behavior 
and the retraining of such an animal must be developed and maintained 
at the facility and be made available to APHIS during inspection or 
upon request. This document must also address the procedures to be used 
to maintain compliance with Sec.  3.111(d)(4) during such disruption of 
an interactive session.
    (e) Veterinary care. The facility must comply with all provisions 
of Sec. Sec.  2.33, 2.40, and 3.110 of this subchapter. In addition, 
the attending veterinarian must observe an interactive session at least 
once a month or each interactive session if they are offered less 
frequently than twice a month, and review the feeding records, behavior 
records, and water quality records biannually or more often if needed 
to assure the health and well-being of the marine mammals. Necropsy 
requirements are found in Sec.  3.110(g).
    (f) Recordkeeping. (1) Each facility must provide APHIS 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 [Date of 
publication of final rule], not later than [Date 30 days after 
effective date of final rule]. Facilities that submitted the required 
documentation from October through December 1998 and received approval 
letters need only submit information about any regulated aspects of the 
program that have changed since that time. The description must, at 
least, include the following:
    (i) Identification of each marine mammal in the interactive 
program, by means of name and/or number, sex, age, and any other means 
the Administrator determines to be necessary to adequately identify the 
animal;
    (ii) An outline of the session agenda, including, but not limited 
to, written information distributed, topics addressed prior to entry in 
the water, an in-water program agenda, including behaviors and 
activities expected to be presented or performed;
    (iii) A description of the interactive program enclosures, 
including identification of non-session housing enclosures, sanctuary 
area, and interactive area. All enclosures housing or used by program 
animals must be included;
    (iv) Verification from the trainer that the program animals have 
received adequate and appropriate training for an interactive program; 
and
    (v) Documentation of the experience and training of the trainer, 
handler, attendants, and attending veterinarian.
    (2) Medical, feeding, water quality, and any behavioral records 
must be kept at the facility for at least 1 year or as otherwise 
required in this subchapter and be made available to APHIS during 
inspection or upon request.
    (3) Records of individual animal participation times (date, start 
time of interactive session, and duration) must be maintained by the 
facility for a period of at least 1 year and be made available to APHIS 
officials during inspection or upon request.
    (4) All incidents resulting in injury to either a marine mammal, 
members of the public, or facility staff during an interactive session 
or training session must be reported to APHIS within 24 business hours 
of the incident. A written report detailing the incident and the 
facility's response to the incident must be submitted to APHIS within 7 
calendar days of the incident.
    (5) Any changes to the interactive program, such as, but not 
limited to, personnel, animals, facilities (enclosures and interactive 
areas), and behaviors used, must be submitted to APHIS within 30 
calendar days of the change.

(Approved by the Office of Management and Budget under control 
numbers 0579-0036 and 0579-0093)

    Done in Washington, DC, this 21st day of January 2016.
Gary Woodward,
Deputy Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 2016-01837 Filed 2-2-16; 8:45 am]
 BILLING CODE 3410-34-P