Animal Welfare; Marine Mammals, 5629-5657 [2016-01837]
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5629
Proposed Rules
Federal Register
Vol. 81, No. 22
Wednesday, February 3, 2016
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.
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
Executive Summary
Animal and Plant Health
Inspection Service, USDA.
ACTION: Proposed rule.
AGENCY:
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
https://www.regulations.gov/#!docket
Detail;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
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SUMMARY:
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may be viewed at https://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:
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
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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, §§ 3.100 through 3.118).
III. Summary of Major Provisions
We propose to revise swim-with-thedolphin 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 (§ 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,
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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.
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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, §§ 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
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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: § 3.100
on variances and implementation dates;
§ 3.102 on indoor facilities; § 3.103 on
outdoor facilities; and § 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 § 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-thedolphin 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.
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
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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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
§ 3.111. This meant that only the
specific requirements of § 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
§ 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
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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
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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
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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 § 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 § 3.111, as well as
elsewhere, unless reference to a specific
species is necessary. The term
‘‘interactive program’’ replaces ‘‘swimwith-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-thedolphin 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.’’
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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 offlimits 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-thedolphin (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
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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segment of an educational presentation
or performance of a show.’’
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
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 § 1.1
the definition of buffer area, which is
defined as ‘‘that area in a primary
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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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 § 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 § 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 § 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 § 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 § 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 § 3.102 provides that
the air and water temperatures in indoor
facilities shall be sufficiently regulated
by heating or cooling to protect the
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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.
We are proposing no substantive
changes to § 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.
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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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 § 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 performancebased 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
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5633
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
Lighting
Paragraph (c) of § 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.
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/. NIH provides ventilation
guidance for laboratory animals that can be used in
general animal housing as well: https://www.orf.od.
nih.gov/PoliciesAndGuidelines/Biomedicaland
AnimalResearchFacilitiesDesignPoliciesand
Guidelines/DRMHTMLver/Chapter2/Pages/
Section2-4AnimalResearchFacilities.aspx.
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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
In addition, sufficient light is needed
to allow observation of the animals by
the caretakers and the APHIS
inspectors. This requirement is not
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., https://www.
elephantcare.org/protodoc_files/2008/CCEWBCore
BestPractices.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., https://www.
nmfs.noaa.gov/pr/pdfs/health/rehab_facilities.pdf.
Anderson, Kevin, 2013, ‘‘Are the Lights On or Off?’’
12 pp., https://www.alnmag.com/articles/2013/11/
are-lights-or. Hotz, Vitaterna, Martha, Takahashi,
Joseph S., and Turek, Fred W., ‘‘Overview of
Circadian Rhythms,’’ https://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.
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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 § 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
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
9 https://www.gsa.gov/portal/content/101308.
10 https://www.aza.org/uploadedFiles/
Accreditation/AZA-Accreditation-Standards.pdf.
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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
§ 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.
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
§ 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 § 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 § 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
11 See
footnote 8.
groups that have developed such
practices include, but are not limited to, the
12 Industry
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Paragraph (b) of § 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 § 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 § 3.103(b)
that natural and artificial shelter must
be provided to afford protection from
direct sunlight.
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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
Association for Zoos and Aquariums (https://
www.aza.org) and the Alliance of Marine Mammal
Parks and Aquariums (https://www.ammpa.org).
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) https://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): https://www.oers.ca/journal/volume4/issue2/
Gage_Galley.pdf.
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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 § 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 § 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 § 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 § 3.104(a) at this time.
However, we propose to redesignate
§ 3.104(a) as § 3.104(a)(1) and to add a
new paragraph (a)(2), which is
discussed below.
In proposed § 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
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5635
parameters of MHD, volume, and
surface area meet the space
requirements. This requirement already
appears elsewhere in § 3.104 when
referring to the minimum depth
requirements for primary enclosures
housing particular species of marine
mammals. We would include this
standard in § 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 § 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 § 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
§ 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 § 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 § 3.104(a)(2)) so it is
unnecessary to include it here.
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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 § 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 § 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
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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
§ 3.104(a)(2) since it is a general
requirement applicable to all enclosures
housing marine mammals.
Space Requirements—Pinnipeds
Paragraph (d) of § 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.
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
14 This information was derived from APHISAnimal Care internal research based on several
inquiries with professionals in the field.
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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.
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 userfriendly 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
§ 3.104(a)(2)) and it is unnecessary to
include it here.
Space Requirements—Polar Bears
Paragraph (e) of § 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 § 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
15 https://www.pifsc.noaa.gov/library/pubs/Baker_
etal_MMS_2014.pdf.
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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 § 3.104 covers the
space requirements for primary
enclosures housing sea otters. Currently,
paragraph (f) of § 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.
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Water Quality
Currently, § 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.
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Paragraph (b) of § 3.106 contains the
bacterial standards and related water
quality testing requirements for facilities
housing marine mammals. The bacterial
standards provided in § 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 § 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.
Coliform Testing
Most of the marine mammal standards
were originally promulgated in 1979.
The bacterial standards of § 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
As with other areas of technology, test
kits have been developed to test for
coliforms. These kits focus on enzymes
and characteristic chemical properties
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.
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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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 § 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 48hour 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 § 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
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.
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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:
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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 nonpathogenic 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
§ 3.106(b)(2), which covers chemical
treatment of water, and § 3.106(b)(3),
which concerns water sampling
procedures, as § 3.106(b)(4) and
§ 3.106(b)(5), respectively, to
accommodate the addition of new
paragraphs § 3.106(b)(2) and (b)(3).
Proposed new paragraph § 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
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.
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sample would have to be taken within
48 hours of the first followup sample.
This timing requirement would differ
from the existing standard in § 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, § 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.
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 § 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
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.
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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 § 3.106(b)(2) as
§ 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
§ 3.106(b)(3) as § 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 1year 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 § 3.106, since this subject
would be covered in proposed
§ 3.106(b)(1). Under proposed
§ 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 § 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
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testing for any chemicals that have been
added.21
Finally, we would move the
discussion of water sampling
recordkeeping from current § 3.106(b)(3)
to a new paragraph, § 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 makeup 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 § 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 § 3.106(c) to reflect
the current level of scientific knowledge
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.
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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
§ 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.
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.
22 https://sam.ucsd.edu/sio210/lect_2/lecture_
2.html; SIO 210 Talley Topic 2: Properties of
seawater, Lynne Talley, 2000.
23 See footnote 13.
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Paragraph (d) of § 3.106 currently
covers filtration and water flow. We are
proposing to redesignate § 3.106(d) as
§ 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
§ 3.106(d) covering the subject of water
clarity. Although this subject is
addressed generally in § 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 § 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 swimwith-the-dolphin (SWTD) programs.
Specifically, § 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 § 3.111 and
related definitions found in § 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 § 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 § 3.111 are intended to address the
need to monitor interactive programs,
while giving consideration to program
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histories,24 enforcement history,
information and scientific
documentation on the effects of
interactive programs on marine
mammals, the general health and wellbeing requirements already in effect
regarding marine mammals, and the
need to avoid promulgation of
redundant provisions. We set forth the
proposed standards as performancebased standards wherever we believe
such an approach is feasible and
supportable by current information and
scientific documentation.
Throughout proposed § 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
§ 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 § 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
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.
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
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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:
• Up to two cetaceans: Surface area =
(3 × average adult body length/2)2 ×
3.14;
• Three cetaceans: Surface area = (3 ×
average adult body length/2)2 × 3.14 ×
2; and
• Additional surface area for each
animal in excess of three: Surface area
= (2 × average adult body length\2)2 ×
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 § 3.104. The interactive
area, however, would not have to meet
the space requirements set forth in
proposed § 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.
in the enclosure to be able to breathe at the surface
and have a degree of freedom of movement while
at the surface.
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As proposed, § 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 § 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 § 3.104. Proposed paragraph
(a) of § 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 noninteractive periods.
Under current § 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 § 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 § 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 inwater 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
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within the past 10 years, and who is
licensed to practice veterinary
medicine.
We are proposing to amend § 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 § 3.111(c) the specific
standards for the attending veterinarian.
We believe that the current
requirements in § 2.40 and § 3.110
provide sufficient oversight and
guidance on this subject; interactive
programs have not been shown to need
additional restrictions.
In proposed § 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 § 3.111(d)(4), which is
discussed below.
In proposed § 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 § 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 § 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
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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 § 3.111.
The introductory text of current
paragraph (e) of § 3.111 covers the
handling of cetaceans used in
interactive sessions. With the removal of
§ 3.111(d) on program animals, we
would redesignate § 3.111(e) as
§ 3.111(d), as well as make a number of
other changes to simplify and clarify the
handling requirements.
Paragraph (e)(1) of § 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 § 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 longstanding 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.
Paragraph (e)(2) of § 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
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.
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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
§ 3.111(d)(2), we propose to simplify
this requirement to apply to the
‘‘trainer, handler, or attendant.’’
Newly designated § 3.111(d)(3) would
parallel § 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 § 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
§ 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
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.
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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.
Paragraph (e)(5) of § 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
§ 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 § 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
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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 § 3.111(d)(4).
Proposed § 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 § 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 § 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
§ 3.111(d)(6) and in a new § 3.111(d)(7).
In newly designated § 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
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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
§ 3.111(d)(4), by either removing human
participants from the interactive area or
introducing another animal.
In proposed § 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 § 3.111(d)(7) would closely
parallel requirements that appear in the
current § 3.111(e)(7).
Paragraph (e)(8) of § 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 § 3.111(e)(8) as
§ 3.111(d)(8). In newly designated
§ 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
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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 § 3.111(d)(4), in
the event of a disruption caused by one
or more marine mammals during a
session.
Paragraph (g) of § 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 § 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.
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We would remove § 3.111(g) as
written and provide a new paragraph,
§ 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 §§ 2.33,
2.40, and 3.110. Section 2.33 contains
provisions on attending veterinarians
and adequate veterinary care at research
facilities, while § 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 §§ 2.33, 2.40, and
3.110, proposed § 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 § 3.111 contains the
recordkeeping requirements for facilities
with interactive programs. We are
proposing to amend § 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 § 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
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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 § 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 § 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 § 3.111(f)(1)(iii), which
requires that the program description
cover pre-encounter orientation. A
similar requirement would appear in
proposed § 3.111(f)(1)(ii). With the
deletion of § 3.111(f)(1)(iii), we would
redesignate paragraphs (f)(1)(iv) through
(f)(1)(vi) of § 3.111 as (f)(1)(iii) through
(f)(1)(v).
Current paragraph (f)(1)(iv) of § 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 § 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 § 3.111
provides that the program description
cover the training each cetacean has
undergone or will undergo prior to
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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
§ 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 § 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
§ 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
§ 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 § 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 § 3.111.
Paragraph (f)(3) of § 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
§ 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
§ 3.111(f)(2), which would require that
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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
(§ 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 § 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 § 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 § 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 § 3.111(f)(5),
discussed below.
Current § 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 § 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
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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 § 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 § 3.111(f)(6) that provides that
the facility must submit on a semiannual 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
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Federal Register / Vol. 81, No. 22 / Wednesday, February 3, 2016 / Proposed Rules
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:
§ 3.100 on variances and
implementation dates; § 3.102 on indoor
facilities; § 3.103 on outdoor facilities;
§ 3.104 on space requirements, § 3.106
on water quality; and § 3.111 on swimwith-the-dolphin programs. Objectives
of this proposed rule are to provide
regulated facilities with more flexibility
in meeting the space requirements
(§ 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
(§ 3.102); ensure proper air and water
temperature standards, and provide
shelter to protect animals from
overheating and sunburn due to direct
sunlight (§ 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 (§ 3.104); provide
water quality standards including
requirements relating to bacterial
standards, salinity, filtration, and water
flow (§ 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
(§ 3.111).28
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). Twothirds 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 onetime 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.
TABLE 1—SUMMARY OF EXPECTED BENEFITS AND COSTS OF THE PROPOSED RULE
Expected benefits
(Benefits are primarily qualitative and
are not monetized)
Sections
§ 3.100
Variance ...
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§ 3.102 Indoor facilities.
Make this section operative again and
provide more flexibility.
Ventilation: Reduce risks of skin and
mucous membrane irritation and
bacterial and mold growth.
28 Refer to the ‘‘Interactive Programs’’ section of
the proposed rule for more information on the
enforcement of interactive programs.
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
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Expected costs
One-time costs
Annual recurring costs
None .....................................................
None.
Ventilation: None ..................................
Ventilation: None.
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.
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Federal Register / Vol. 81, No. 22 / Wednesday, February 3, 2016 / Proposed Rules
TABLE 1—SUMMARY OF EXPECTED BENEFITS AND COSTS OF THE PROPOSED RULE—Continued
Expected benefits
(Benefits are primarily qualitative and
are not monetized)
Sections
§ 3.103 Outdoor facilities.
§ 3.104 Space requirements.
§ 3.106 Water
quality.
mstockstill on DSK4VPTVN1PROD with PROPOSALS
§ 3.111 Marine
mammal interactive programs.
VerDate Sep<11>2014
Lighting: Ensure normal functioning of
metabolic systems for animals and
provide facility personnel sufficient
light to observe animals and to operate safely.
Environmental temperatures: Clarify
the requirements and help animals
maintain their desired internal temperatures without stressing their metabolisms.
Shelter: Minimize overheating and sunburn of animals from direct and reflective sunlight. For pinnipeds, limit
the severity of lens-related disease.
Space requirements—general and
species specific: Clarify the requirements and update tables for average
adult lengths and corresponding
minimum space requirements.
Easy access and exit ramps and visual
barriers: Provide elderly, and ill or
infirm animals with easy access to
their dry resting areas, and, for sea
otters provide safe resting spaces.
Bacterial standards and salinity testing:
Clarify and update the bacterial
count and salinity requirements to
ensure animals’ health and wellbeing and to conform to the EPA
and 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: Allow APHIS
inspectors to better access the animal welfare information to assess
the animal health.
Water clarity, filtration and water flow:
Through performance based standards, provide flexibility while ensuring animals’ well-being.
The program name and marine mammal species: Provide consistency to
the industry and bring other animals
under the protection of interactive
programs.
The interactive area: Provide better
use of resources while providing improved safety for animals and public
participants.
Minimum qualification requirements for
program personnel: Provide more
flexibility in staffing decisions by focusing on an individual’s needed
knowledge, skills, and abilities.
Interactive time between animals and
the public and the ratio of human
participants to animal: Proposed increase of daily interactive time from
2 hours to 3 hours could generate
additional annual revenue of about
$23 million∼$24 million for the industry. (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.
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Frm 00018
Expected costs
One-time costs
Annual recurring costs
Lighting: Expected to be small, if any,
as most facilities are under compliance.
Lighting: Expected to be minimal, if
any, due to increased energy-efficiency and longer-life of bulbs.
Environmental temperatures: Expected
to be small, if any. (No citation in the
last 3 years.).
Environmental temperatures: Expect
little economic impact.
Shelter: None .......................................
Shelter:
$20,000∼$50,000 (Annual or biennial
costs, based on 50 pools.)
Space requirements—general
species specific: None.
Space requirements—general
species specific: None.
and
and
Easy access ramps and visual barriers: $85,000–$110,000 (Based on
50 fiberglass ramps @$1,500–
$2,000 and 50 barriers @$200).
Easy access ramps and visual barriers: None.
Bacterial standards: None ....................
Salinity testing: $46,000 (Based on
460 pools and a cost of portable refractometer @$100).
Bacterial standards: $554,000 (Based
on 460 pools, 20% lab-tests @$85
per week and 80% on-site tests with
$7.70 test kit per week per pool).
Salinity testing: None.
On-site record keeping: A small cost to
create a new on-site filing for those
facilities which keep records at a
centralized location.
Water clarity, filtration and water flow:
None.
On-site record keeping: A small: None.
The program name and marine mammal species: None.
The program name and marine mammal species: None.
The interactive area: None ..................
The interactive area: None.
Minimum qualification requirements for
program personnel: None.
Minimum qualification requirements for
program personnel: None.
Interactive time between animals and
the public and the ratio of human
participants to animal: Decisions to
increase interactive program time
are discretion of the facilities, and no
costs are expected which are directly caused by the proposed
changes.
Interactive time between animals and
the public and the ratio of human
participants to animal: None.
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Water clarity, filtration and water flow:
None.
Federal Register / Vol. 81, No. 22 / Wednesday, February 3, 2016 / Proposed Rules
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TABLE 1—SUMMARY OF EXPECTED BENEFITS AND COSTS OF THE PROPOSED RULE—Continued
Expected benefits
(Benefits are primarily qualitative and
are not monetized)
Sections
Sum of monetized
benefits and costs
of the proposed
rule.
Written agreements by participants, a
provision of APHIS consultations,
recordkeeping, and veterinary care
requirements: Streamline recordkeeping requirements to reduce administrative burdens without compromising the quality of animal welfare.
Not available ........................................
Expected costs
One-time costs
Annual recurring costs
Written agreements by participants, a
provision of APHIS consultations,
recordkeeping, and veterinary care
requirements: None.
Written agreements by participants, a
provision of APHIS consultations,
recordkeeping, and veterinary care
requirements: None.
$131,000–$156,000 .............................
$574,000–$604,000.
mstockstill on DSK4VPTVN1PROD with PROPOSALS
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
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17:55 Feb 02, 2016
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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
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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;
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(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.
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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
1. The authority citation for part 1
continues to read as follows:
■
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Authority: 7 U.S.C. 2131–2159; 7 CFR 2.22,
2.80, and 371.7.
PART 3—STANDARDS
3. The authority citation for part 3
continues to read as follows:
■
2. Section 1.1 is amended as follows:
■ a. By removing the definitions of
buffer area and swim-with-the-dolphin
(SWTD) program.
■ b. By revising the definitions of
interactive area, interactive session,
primary enclosure, and sanctuary area.
■ c. By adding, in alphabetical order, a
definition of interactive program.
The addition and revisions read as
follows:
■
§ 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 offlimits to the public.
*
*
*
*
*
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Authority: 7 U.S.C. 2131–2159; 7 CFR
2.22, 2.80, and 371.7.
4. Section 3.100 is revised to read as
follows:
■
§ 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 § 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 § 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
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 § 3.104.
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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 24hour 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.
■ 6. Section 3.103 is amended as
follows:
■ a. By revising paragraphs (a)
introductory text and (a)(3).
■ b. By revising paragraph (b).
The revisions read as follows:
§ 3.102
mstockstill on DSK4VPTVN1PROD with PROPOSALS
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 § 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 § 3.104.
■ 5. Section 3.102 is revised to read as
follows:
§ 3.103
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
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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,
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5649
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.
*
*
*
*
*
■ 7. Section 3.104 is amended as
follows:
■ a. In paragraph (a), by designating the
text following the paragraph heading
‘‘General.’’ as paragraph (a)(1) and
adding paragraph (a)(2).
■ 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.
■ c. In paragraph (b)(1)(i), footnote 8 is
redesignated as footnote 7.
■ 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’’.
■ e. Following paragraph (b)(1)(iv), by
removing Tables I, II, and III, and
adding Tables 1, 2, 3, and 4 in their
place.
■ f. In paragraph (b)(2), by removing the
last sentence.
■ 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.
■ 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.
■ i. In paragraph (b)(4)(i), by
redesignating footnote 9 as footnote 8.
■ j. In paragraph (b)(4)(ii), by removing
the last sentence and by redesignating
footnote 10 as footnote 9.
■ k. In paragraph (b)(4)(iii), by removing
the words ‘‘Table IV’’ and adding the
words ‘‘Table 1’’ in their place.
■ l. Following paragraph (b)(4)(iii)
introductory text, by removing Table IV.
■ m. In paragraph (c), by removing the
first sentence following the paragraph
heading ‘‘Sirenians.’’
■ n. In paragraph (c)(1), by adding a
sentence after the last sentence.
■ o. In paragraph (c)(2), by removing the
last sentence.
■ p. By revising paragraph (d)(1).
■ q. In paragraph (d)(3)(iii), by removing
the last sentence.
■ r. In paragraph (e), by adding a
sentence after the first sentence.
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Federal Register / Vol. 81, No. 22 / Wednesday, February 3, 2016 / Proposed Rules
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.
■ t. In paragraph (f)(2), by removing the
words ‘‘Table V’’ and adding the words
‘‘Table 5’’ in their place.
■ 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
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■
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appropriately sized individual resting
spaces must be used.’’ in their place.
■ 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:
§ 3.104
Space requirements.
(a) * * *
(2) Only those areas that meet or
exceed the minimum depth requirement
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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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Table 1. Average adult lengths and minimum space requirements for cetaceans in captivity
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CeQhalo!.Ynchus
commersonn
DelQhinaQtems
leucas
Eschrichtius
robustus
GlobiceQhala
macrorhvnchus
GlobiceQhala
melaena
Grampus griseus
Inia geoffrensis
E:\FR\FM\03FEP1.SGM
03FEP1
Monodon
monoceros
Orcinus orca
Phocoena
phocoena
Platanista, all
species
PontoQoria
blainvillei
Common name
Minimum
horizontal
dimension
Minimum
depth
Commerson's
dolphin
5.00
1.52 24.00
7.32
6.00
1.83
2,712.96
76.97
117.75
3.32
29.44
2.72
Beluga whale
14.0
4.27
8.54
7.00
2.14
4,308.08
55.11
1,077.02
30.63
230.79
21.47
Gray whale
42.60
13.00 85.20
862.32 2136.88
199.00
18.00
28.0
26.00 21.30
6.50 121,374.78 3,449.29 3,0343.69
5.49 36.00
10.98
9.00
2.75
9,156.24
260.26
2289.06
65.06
381.51
35.49
19.00
5.79 38.00
11.58
9.50
2.90
10,768.63
305.27
2692.16
76.32
425.08
39.47
12.00
3.66 24.00
7.32
6.00
1.83
2,712.96
76.97
678.24
19.24
169.56
15.77
8.00
2.44 24.00
7.32
6.00
1.83
2,712.96
76.97
301.44
8.55
75.36
7.01
Narwhal
13.00
3.96 26.00
7.92
6.50
1.88
3,499.29
92.57
862.32
20.86
192.92
16.65
Killer whale
24.0
7.32
48.0
14.64
12.0
3.66
21,793.68
615.79
5,425.92
153.95
678.24
63.09
Harbor porpoise
5.50
1.68 24.00
7.32
6.00
1.83
2,712.96
76.97
142.48
4.05
35.62
3.32
8.00
2.44 24.00
7.32
6.00
1.83
2,712.96
76.97
301.44
8.55
75.36
7.01
5.00
1.52 24.00
7.32
6.00
1.83
2,712.96
76.97
117.75
3.32
29.44
2.72
Short-finned pilot
whale
Long-finned pilot
whale
Risso's dolphin
Amazon river
dolphin
Ganges river
dolphin
La Plata river
dolphin or
Franciscana
Pseudo rca
crassidens
False killer whale
14.30
4.35 28.60
8.70
7.15
2.18
4,591.00
129.53
1,147.75
32.38
240.79
22.28
Sotalia fluviatilis
Tucuxi or white
dolphin
5.50
1.68 24.00
7.32
6.00
1.83
2,712.96
76.97
142.48
4.05
35.62
Federal Register / Vol. 81, No. 22 / Wednesday, February 3, 2016 / Proposed Rules
17:55 Feb 02, 2016
Species Group I
Volume of water
Surface area for
Volume of water for
required for each
additional animal in
1-2 animals
1-2 animals 1
excess of2
3
3
Feet Meters Feet Meters Feet Meters
Feet
Meters
Feet3
Meters 3 Feet2 Meters 2
Average adult
length
3.32
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Species Group II
Atlantic bottlenose
9.0
dolphin
Pacific bottlenose
10.00
dolphin
Common name
2.74
24.0
7.32
6.00
1.83
2,712.96
76.97
381.15
10.79
95.38
8.84
3.05 24.00
7.32
6.00
1.83
2,712.96
76.97
471.00
13.36
117.75
10.95
Average adult
length
Minimum
horizontal
dimension
Minimum
depth
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03FEP1
Feet Meters Feet Meters Feet Meters
Delohinus delohis Common dolphin
8.50
2.59 34.00 10.36 8.50
2.59
Feresa attenuata Pygmy killer whale 8.00
2.44 32.00
9.76 8.00
2.44
Pygmy sperm
Kogia breviceQS
13.00
3.96 52.00 15.84 13.00
3.96
whale
Dwarf sperm
Kogia simus
9.50
2.90 38.00 11.60 9.50
2.90
whale
Lagenorhynchus Atlantic white9.50
2.90 38.00 11.60 9.50
2.90
sided dolphin
acutus
Lagenorhynchus White-beaked
9.00
2.74 36.00 10.96 9.00
2.74
albirostris
dolphin
Lagenorhynchus
Hourglass dolphin
5.60
1.70 24.00
7.32 6.00
1.83
cruciger
Lagenorhynchus Pacific white-sided
7.50
2.29 30.00
9.15 7.50
2.29
obliauidens
dolphin
LissodelQhis
Northern right
9.00
2.74 36.00 10.96 9.00
2.74
borealis
whale dolphin
NeoQhocaena
6.00
1.83 24.00
7.32 6.00
1.83
Finless porpoise
ohocaenoides
PeQonoceQhala
Melon-headed
9.00
2.74 36.00 10.96 9.00
2.74
electra
whale
Phocoenoides
Dall's porpoise
6.50
2.00 26.00
8.00 6.50
2.00
dalli
Pantropical spotted
Stenella attenuata
7.50
2.29 30.00
9.15 7.50
2.29
dolphin
Volume of water for
1-4 animals
Feet3
Meters 3
7,713.41 218.22
6,430.72 182.46
Volume of water
required for each
additional animal
in excess of 4
Surface area for
1-4 animals
Feet3
Meters 3
1,928.35
54.55
1,607.68 45.61
Feet2 Meters 2
85.07
7.90
75.36
7.01
27,594.32
779.97
6,898.58
194.99
199.00
18.47
10,768.63
306.33
2,692.16
76.58
106.27
9.90
10,768.63
306.33
2,692.16
76.58
106.27
9.90
9,156.24
258.37
2,289.06
64.59
95.38
8.84
2,712.96
76.97
590.82
16.61
36.93
3.40
5,298.75
150.50
1,324.69
37.71
66.23
6.17
9,156.24
258.37
2,289.06
64.59
95.38
8.84
2,712.96
76.97
678.24
19.24
42.39
3.94
9,156.24
258.37
2,289.06
64.59
95.38
8.84
3,449.29
100.48
862.32
25.12
49.75
4.71
5,298.75
150.50
1,324.69
37.71
66.23
6.17
Federal Register / Vol. 81, No. 22 / Wednesday, February 3, 2016 / Proposed Rules
17:55 Feb 02, 2016
EP03FE16.002
TursioQS truncatus
(Atlantic)
TursioQS truncatus
(Pacific)
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Short-snouted
spinner dolphin
7.00
2.13 28.00
8.52
7.00
2.13
4,308.08
121.37
1,077.02
30.34
57.70
5.34
Stenella
coeruleoalba
Striped dolphin
7.50
2.29 30.00
9.15
7.50
2.29
5,298.75
150.50
1,324.69
37.71
66.23
6.17
Stenella frontalis
Atlantic spotted
dolphin/bridled
dolphin
7.50
2.29 30.00
9.15
7.50
2.29
5,298.75
150.50
1,324.69
37.71
66.23
6.17
Stenella
long:irostris
Spinner dolphin
7.00
2.13 28.00
8.52
7.00
2.29
4,308.08
130.49
1,077.02
32.62
57.70
5.34
Steno bredanensis
Rough -toothed
dolphin
8.00
2.44 32.00
9.76
8.00
2.44
6,430.72
182.46
1,607.68
45.61
75.36
7.01
1
Surface area required for additional cetaceans will be calculated in accordance with paragraph (b)( 1)(iii) of this section.
03FEP1
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17:55 Feb 02, 2016
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Federal Register / Vol. 81, No. 22 / Wednesday, February 3, 2016 / Proposed Rules
TABLE 2—AVERAGE ADULT LENGTHS OF SIRENIANS AND MUSTELIDS IN CAPTIVITY
Average adult length
Species
Common name
In feet
Sirenia:
Dugong dugon .......................................................
Trichechus inunguis ..............................................
Trichechus manatus ..............................................
Mustelids:
Enhydra lutris ........................................................
In meters
Dugong .........................................................................
Amazon manatee .........................................................
West Indian manatee ...................................................
11.00
8.00
11.50
3.35
2.44
3.51
Sea otter .......................................................................
4.10
1.25
TABLE 3—AVERAGE ADULT LENGTHS FOR PINNIPEDS IN CAPTIVITY
Average adult length
Species
Common name
In feet
Male
Group I:
Arctocephalus australis * ............
Arctocephalus gazella * ..............
Arctocephalus pusillis * ..............
Arctocephalus townsendi * .........
Arctocephalus tropicalis * ...........
Callorhinus ursinus * ..................
Eumetopias jubatus * .................
Halichoerus grypus * ..................
Hydrurga leptonyx ......................
Leptonychotes weddellii * ...........
Lobodon carcinophagus ............
Mirounga angustirostris .............
Mirounga leonina * .....................
Odobenus rosmarus * ................
Ommatophoca rossi * .................
Otaria byronia * ..........................
Phoca caspica ...........................
Phoca fasciata ...........................
Phoca groenlandica ...................
Phoca largha ..............................
Phoca sibirica ............................
Phoca vitulina ............................
Zalophus californianus * .............
Group II:
Cystophora cristata ....................
Erignathus barbatus ...................
Neomonachus schauinslandi .....
Phoca hispida ............................
South American fur seal ..................
Antarctic (or Kerguelen) fur seal ......
South African/Australian (or Cape)
fur seal.
Guadalupe fur seal ...........................
Subantarctic (or Amsterdam Island)
fur seal.
Northern fur seal ..............................
Steller sea lion .................................
Gray seal ..........................................
Leopard seal ....................................
Weddell seal .....................................
Crabeater seal ..................................
Northern elephant seal .....................
Southern elephant seal ....................
Walrus ..............................................
Ross seal .........................................
Southern (or Patagonian) sea lion ...
Caspian seal ....................................
Ribbon seal ......................................
Harp seal ..........................................
Spotted seal .....................................
Baikal seal ........................................
Harbor seal .......................................
California sea lion ............................
Hooded seal .....................................
Bearded seal ....................................
Hawaiian monk seal .........................
Ringed seal ......................................
In meters
Female
Male
Female
6.20
5.90
8.96
4.70
3.90
6.00
1.88
1.80
2.73
1.42
1.20
1.83
6.27
5.90
4.29
4.75
1.90
1.80
1.30
1.45
7.20
9.40
7.50
9.50
9.50
7.30
13.00
15.30
10.30
6.50
7.90
4.75
5.70
6.10
5.60
5.60
5.60
7.30
4.75
7.90
6.40
10.80
10.30
7.30
8.20
8.20
8.50
7.00
6.60
4.60
5.50
6.10
4.90
6.10
4.90
5.70
2.20
2.86
2.30
2.90
2.90
2.21
3.96
4.67
3.15
1.99
2.40
1.45
1.75
1.85
1.70
1.70
1.70
2.24
1.45
2.40
1.95
3.30
3.15
2.21
2.49
2.50
2.60
2.13
2.00
1.40
1.68
1.85
1.50
1.85
1.50
1.75
8.50
7.60
7.40
4.40
6.60
7.60
7.40
4.30
2.60
2.33
2.25
1.35
2.00
2.33
2.25
1.30
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* 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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Federal Register / Vol. 81, No. 22 / Wednesday, February 3, 2016 / Proposed Rules
Table 4.- MJnimum soooe requirements for pinnioeds in capuvity
Minim001 hori:rontill
din•tlSion
Coauru:m
In r11~
I'QIIJ<
Ant.an:tic fur
Balbi seal
Bearded seal
CaiJromia
caspian seal
Otlbeater
OrJyseal
Guadalupe
1
Surtaoe ami fOr l·lllnimllls
ORA (or l·2 aninnl
<~:
ln ftel:
Inmec.;orr
I
Minimum ()."PLh
Jnr~
In l'llt..""tfrs
Mille Fcll'llle Mill< Female
8.40
9.11 2.70
us
9.15
8.40
2.55
2.78
11.40 11.40
BO
3.50
1
0.95
8.55
3.36
2.55
1.n
6.90
2.18
2.10
1
0.95 10.95
3.32
3..12
11.25
3...5
1.43
9.60
In IDi:ICI'lJ
I
Male ·-·e Male female Male Ftmalc
3.00
3.00
0.92
0.92 69.62 30.42
0.92
3.00
3.05
0.93 62.72 74.42
1.17 167.50 1
67.50
3.80
3.80
1.17
3.65
3.00
1.12
0.92 106.58 64.98
2.38
2.30
0.73
0.70 45.13 42.32
3.6S
3.65
1.11
1.1 1 106.58 1
06.58
3.75
3.20
1.15
0.93 112.50 81.92
Male
f
Subru~•an::tjc
8.40
7.1
3
2.70
2.18 3.00
3.00
0.92
0.92
69.62
4S.I3
6.48
4.21
11.85
9.00
3.60
3.00 3.95
3.30
1.20
1.00 124.82
87.12
11 .52
8.00
tkpltant kal
22.95
12,30
7.01
3.7S 1.65
4.10
2.34
1.25 468. 18
134.48
43.62
12,50
Spo(t<:d seal
Slellet sea
Walnas
Wedi.Lell Setl
8.40
1
4.10
IS.4S
1
4.25
7.35
11.85
12.75
2.55
4.29
4.73
4.35
2.25 2.80
3.60 4.70
3.00 5. 15
4.73 4.75
2.45
3.95
4.25
5.15
0.85
1.43
1.58
0.75 62.72 48.02
1.20 176.72 1
24.82
44.50
1.30 212.18 1
1.58 180.50 212.18
5.78
1
6.36
1
9.85
1
6.82
4.50
11.52
13.52
19.85
fur ,;cal
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Southern
(PatagO2014
*
(1) * * * See Table 2 for the average
adult lengths of sirenians.
*
*
*
*
*
(d) * * *
*
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(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
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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.* * *
*
*
*
*
*
■ 8. Section 3.106 is revised to read as
follows:
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§ 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
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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.
■ 9. Section 3.111 is revised to read as
follows:
§ 3.111
Interactive programs.
All marine mammal interactive
programs must comply with this section
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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 § 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 § 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.
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(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 § 3.111(d)(4) by either removing
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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 § 3.111(d)(4) during
such disruption of an interactive
session.
(e) Veterinary care. The facility must
comply with all provisions of §§ 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 § 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
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5657
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
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Agencies
[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]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 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.
-----------------------------------------------------------------------
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 https://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 https://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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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/. NIH
provides ventilation guidance for laboratory animals that can be
used in general animal housing as well: https://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., https://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., https://www.nmfs.noaa.gov/pr/pdfs/health/rehab_facilities.pdf. Anderson, Kevin, 2013, ``Are the Lights On or
Off?'' 12 pp., https://www.alnmag.com/articles/2013/11/are-lights-or.
Hotz, Vitaterna, Martha, Takahashi, Joseph S., and Turek, Fred W.,
``Overview of Circadian Rhythms,'' https://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.
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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\ https://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.
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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 (https://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) https://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): https://www.oers.ca/journal/volume4/issue2/Gage_Galley.pdf.
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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.
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\14\ This information was derived from APHIS-Animal Care
internal research based on several inquiries with professionals in
the field.
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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.
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\15\ https://www.pifsc.noaa.gov/library/pubs/Baker_etal_MMS_2014.pdf.
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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.
---------------------------------------------------------------------------
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:
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\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.
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\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.
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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\
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\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.
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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.
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\22\ https://sam.ucsd.edu/sio210/lect_2/lecture_2.html; SIO 210
Talley Topic 2: Properties of seawater, Lynne Talley, 2000.
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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.
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\23\ See footnote 13.
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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.
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\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.
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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:
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\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.
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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) * * *
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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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* * * * *
(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]
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