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.

Proposed Rules Federal Register

5629 

Vol. 81, No. 22 

Wednesday, February 3, 2016 

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 

http://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 

may be viewed at http://www.

regulations.gov/#!docketDetail;D=

APHIS-2006-0085 or in our reading 

room, which is located in Room 1141 of 

the USDA South Building, 14th Street 

and Independence Avenue SW., 

Washington, DC. Normal reading room 

hours are 8 a.m. to 4:30 p.m., Monday 

through Friday, except holidays. To be 

sure someone is there to help you, 

please call (202) 799–7039 before 

coming. 

FOR FURTHER INFORMATION CONTACT: Dr. 

Barbara Kohn, Senior Staff Veterinarian, 

Animal Care, APHIS, 4700 River Road, 

Unit 84, Riverdale, MD 20737–1234; 

(301) 851–3751. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

I. Purpose of Regulatory Action 

This proposed rule would affect 

sections in the regulations for the 

protection of all marine mammals in the 

United States relating to interactive 

programs (e.g., swim-with-the-dolphin), 

space requirements, water quality, 

indoor facilities, outdoor facilities, 

implementation dates, and variances. 

The U.S. Department of Agriculture’s 

(USDA) Animal and Plant Health 

Inspection Service (APHIS) established 

regulations for these mammals in 1998, 

based on the outcome of meetings of the 

Marine Mammal Negotiated Rulemaking 

Advisory Committee. When the original 

regulations were published, the 

provisions we are now amending were 

written in a very general way because 

APHIS had few relevant scientific 

studies or data available to help design 

the most effective practical regulatory 

approach for these areas. Over time, 

more relevant studies and data 

involving these sections and interactive 

programs have become available and 

APHIS has gained substantial 

experience working with regulated 

parties. 

II. Legal Authority 

The Animal Welfare Act (the Act) (7 

U.S.C. 2131 et seq.) authorizes the 

Secretary of Agriculture to promulgate 

standards and other requirements 

governing the humane handling, care, 

treatment, and transportation of certain 

animals by dealers, research facilities, 

exhibitors, carriers, and other regulated 

entities. Under the Act, APHIS 

established regulations in 1979 for the 

humane handling, care, treatment, and 

transportation of marine mammals used 

for research or exhibition purposes. The 

regulations contain standards for the 

humane handling, care, treatment, and 

transportation of marine mammals (part 

3, subpart E, §§ 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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5630 Federal Register / Vol. 81, No. 22 / Wednesday, February 3, 2016 / Proposed Rules 

1Samuels, 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. 

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, §§ 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: § 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 

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 

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 § 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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2We 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. 

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. 

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 

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 

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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Federal Register / Vol. 81, No. 22 / Wednesday, February 3, 2016 / Proposed Rules 5633 

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. 

5Akin, J. A. (2011) Homeostatic Processes for 

Thermoregulation. Nature Education Knowledge 

3(10):7. 

6See ASHRAE recommendations cited in 

footnote 7. 

7ASHRAE recommendations minimize the 

accumulation of noxious and potentially toxic 

gases, such as chlorine, chloramines, methyl 

bromide, and ammonia: 2013 ASHRAE Handbook— 

Fundamentals (SI). OSHA investigates reported 

incidents of potentially hazardous air quality 

conditions: https://www.osha.gov/SLTC/

ventilation/index.html. NIH provides ventilation 

guidance for laboratory animals that can be used in 

general animal housing as well: http://www.orf.od.

nih.gov/PoliciesAndGuidelines/Biomedicaland

AnimalResearchFacilitiesDesignPoliciesand

Guidelines/DRMHTMLver/Chapter2/Pages/

Section2-4AnimalResearchFacilities.aspx. 

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. 

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 

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. 

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5634 Federal Register / Vol. 81, No. 22 / Wednesday, February 3, 2016 / Proposed Rules 

8 Gaston, Kevin J.; Duffy, James P.; Gaston, Sian; 

Bennie, Jonathan; Davies, Thomas W.; ‘‘Human 

alteration of natural light cycles: causes and 

ecological consequences,’’ Oecologia (2014) 

176:917–931. Gaston, Kevin J.; Bennie, Jonathan; 

‘‘Demographic effects of artificial lighting on animal 

populations,’’ Environ. Rev.(2014), 22:323–330. 

Edwards, L. and Torcellini, P., 2002, ‘‘A Literature 

Review of the Effects of Natural Light on Building 

Occupants,’’ (NREL/TP–550–30769), National 

Renewable Energy Laboratory, 58 pp. Rich, 

Catherine and Longcore, Travis (eds), 2006, 

‘‘Ecological Consequences of Artificial Night 

Lighting,’’ Island Press. Covelo, CA. Pages 15–42. 

Kane, Lisa, Forthman, Debra, and Hancocks, David 

(eds.), 2005, ‘‘Best Practices by the Coalition for 

Captive Elephant Well-Being,’’ 33 pp., http://www.

elephantcare.org/protodoc_files/2008/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., http://www.

nmfs.noaa.gov/pr/pdfs/health/rehab_facilities.pdf. 

Anderson, Kevin, 2013, ‘‘Are the Lights On or Off?’’ 

12 pp., http://www.alnmag.com/articles/2013/11/

are-lights-or. Hotz, Vitaterna, Martha, Takahashi, 

Joseph S., and Turek, Fred W., ‘‘Overview of 

Circadian Rhythms,’’ http://pubs.niaaa.nih.gov/

publications/arh25-2/85-93.htm. Penev, Toncho, 

Radev, Veselin, Slavov, Todor, Kirov, Veselin, 

Dimov, Dimo, Atanassov, Alexandar and Marinov, 

Ivaylo, (2014), ‘‘Effect of lighting on the growth, 

development, behaviour, production and 

reproduction traits in dairy cows,’’ Int. J. Curr. 

Microbiol. App. Sci 3(11) 798–810. 

9http://www.gsa.gov/portal/content/101308. 

10https://www.aza.org/uploadedFiles/

Accreditation/AZA-Accreditation-Standards.pdf. 

11See footnote 8. 

12 Industry groups that have developed such 

practices include, but are not limited to, the 

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 

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 

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

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Federal Register / Vol. 81, No. 22 / Wednesday, February 3, 2016 / Proposed Rules 5635 

Association for Zoos and Aquariums (https://

www.aza.org) and the Alliance of Marine Mammal 

Parks and Aquariums (http://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) http://www.

ncbi.nlm.nih.gov/pubmed/20707754. Gage, Laurie, 

‘‘Captive pinniped eye problems, we can do better,’’ 

Journal of Marine Animals and Their Ecology 

(2011): http://www.oers.ca/journal/volume4/issue2/ 

Gage_Galley.pdf. 

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. 

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 § 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 

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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5636 Federal Register / Vol. 81, No. 22 / Wednesday, February 3, 2016 / Proposed Rules 

14This information was derived from APHISAnimal Care internal research based on several 

inquiries with professionals in the field. 

15http://www.pifsc.noaa.gov/library/pubs/Baker_

etal_MMS_2014.pdf. 

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 

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 

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 

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Federal Register / Vol. 81, No. 22 / Wednesday, February 3, 2016 / Proposed Rules 5637 

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. 

17An 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. 

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. 

Continued 

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. 

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. 

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 

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 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 § 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 

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5638 Federal Register / Vol. 81, No. 22 / Wednesday, February 3, 2016 / Proposed Rules 

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.’’ 

19While 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. 

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. 

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: 

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 

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 

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 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 § 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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21Enclosures 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. 

22http://sam.ucsd.edu/sio210/lect_2/lecture_

2.html; SIO 210 Talley Topic 2: Properties of 

seawater, Lynne Talley, 2000. 

23See footnote 13. 

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 

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. 

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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5640 Federal Register / Vol. 81, No. 22 / Wednesday, February 3, 2016 / Proposed Rules 

24We 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. 

25The 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. 

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 

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. 

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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26See 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. 

27The 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. 

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 

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 

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 

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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 

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 

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. 

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 

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 

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 

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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28Refer to the ‘‘Interactive Programs’’ section of 

the proposed rule for more information on the 

enforcement of interactive programs. 

29The 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. 

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

Sections 

Expected benefits 

(Benefits are primarily qualitative and 

are not monetized) 

Expected costs 

One-time costs Annual recurring costs 

§ 3.100 Variance ... Make this section operative again and 

provide more flexibility.

None ..................................................... None. 

§ 3.102 Indoor facilities.Ventilation: Reduce risks of skin and 

mucous membrane irritation and 

bacterial and mold growth.

Ventilation: None .................................. Ventilation: None. 

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5646 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 

Sections 

Expected benefits 

(Benefits are primarily qualitative and 

are not monetized) 

Expected costs 

One-time costs Annual recurring costs 

Lighting: Ensure normal functioning of 

metabolic systems for animals and 

provide facility personnel sufficient 

light to observe animals and to operate safely.

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. 

§ 3.103 Outdoor facilities.Environmental temperatures: Clarify 

the requirements and help animals 

maintain their desired internal temperatures without stressing their metabolisms.

Environmental temperatures: Expected 

to be small, if any. (No citation in the 

last 3 years.).

Environmental temperatures: Expect 

little economic impact. 

Shelter: Minimize overheating and sunburn of animals from direct and reflective sunlight. For pinnipeds, limit 

the severity of lens-related disease.

Shelter: None ....................................... Shelter: 

$20,000∼$50,000 (Annual or biennial 

costs, based on 50 pools.) 

§ 3.104 Space requirements.Space requirements—general and 

species specific: Clarify the requirements and update tables for average 

adult lengths and corresponding 

minimum space requirements.

Space requirements—general and 

species specific: None.

Space requirements—general and 

species specific: None. 

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.

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. 

§ 3.106 Water 

quality.

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.

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: Allow APHIS 

inspectors to better access the animal welfare information to assess 

the animal health.

On-site record keeping: A small cost to 

create a new on-site filing for those 

facilities which keep records at a 

centralized location.

On-site record keeping: A small: None. 

Water clarity, filtration and water flow: 

Through performance based standards, provide flexibility while ensuring animals’ well-being.

Water clarity, filtration and water flow: 

None.

Water clarity, filtration and water flow: 

None. 

§ 3.111 Marine 

mammal interactive programs.

The program name and marine mammal species: Provide consistency to 

the industry and bring other animals 

under the protection of interactive 

programs.

The program name and marine mammal species: None.The program name and marine mammal species: None. 

The interactive area: Provide better 

use of resources while providing improved safety for animals and public 

participants.

The interactive area: None .................. The interactive area: None. 

Minimum qualification requirements for 

program personnel: Provide more 

flexibility in staffing decisions by focusing on an individual’s needed 

knowledge, skills, and abilities.

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: 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.

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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Federal Register / Vol. 81, No. 22 / Wednesday, February 3, 2016 / Proposed Rules 5647 

TABLE 1—SUMMARY OF EXPECTED BENEFITS AND COSTS OF THE PROPOSED RULE—Continued 

Sections 

Expected benefits 

(Benefits are primarily qualitative and 

are not monetized) 

Expected costs 

One-time costs Annual recurring costs 

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.

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. 

Sum of monetized 

benefits and costs 

of the proposed 

rule.

Not available ........................................ $131,000–$156,000 ............................. $574,000–$604,000. 

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; 

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5648 Federal Register / Vol. 81, No. 22 / Wednesday, February 3, 2016 / Proposed Rules 

6Written 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. 

(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 

■ 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. 

■ 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. 

* * * * * 

PART 3—STANDARDS 

■ 3. The authority citation for part 3 

continues to read as follows: 

Authority: 7 U.S.C. 2131–2159; 7 CFR 

2.22, 2.80, and 371.7. 

■ 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 

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Federal Register / Vol. 81, No. 22 / Wednesday, February 3, 2016 / Proposed Rules 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 § 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: 

§ 3.102 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. 

■ 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: 

§ 3.103 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. 

* * * * * 

■ 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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5650 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 

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 

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 captiv

Minimum Volume o

Average adult horizontal Minimum Volume of water for required f

Species Group I Common name length dimension depth 1-2 animals additional a

excess 

Feet Meters Feet Meters Feet Meters Feet3 Meters3 Feet3 

CeQhalo!.Ynchus Commerson's 5.00 1.52 24.00 7.32 6.00 1.83 2,712.96 76.97 117.75 

commersonn dolphin 

DelQhinaQtems Beluga whale 14.0 4.27 28.0 8.54 7.00 2.14 4,308.08 55.11 1,077.02 

leu cas 

Eschrichtius Gray whale 42.60 13.00 85.20 26.00 21.30 6.50 121,374.78 3,449.29 3,0343.69 

robustus 

GlobiceQhala Short-finned pilot 18.00 5.49 36.00 10.98 9.00 2.75 9,156.24 260.26 2289.06 

macrorhvnchus whale 

GlobiceQhala Long-finned pilot 19.00 5.79 38.00 11.58 9.50 2.90 10,768.63 305.27 2692.16 

melaena whale 

Grampus griseus Risso's dolphin 12.00 3.66 24.00 7.32 6.00 1.83 2,712.96 76.97 678.24 

Inia geoffrensis Amazon river 8.00 2.44 24.00 7.32 6.00 1.83 2,712.96 76.97 301.44 

dolphin 

Monodon Narwhal 13.00 3.96 26.00 7.92 6.50 1.88 3,499.29 92.57 862.32 

monoceros 

Orcinus orca Killer whale 24.0 7.32 48.0 14.64 12.0 3.66 21,793.68 615.79 5,425.92 

Phocoena Harbor porpoise 5.50 1.68 24.00 7.32 6.00 1.83 2,712.96 76.97 142.48 

phocoena 

Platanista, all Ganges river 8.00 2.44 24.00 7.32 6.00 1.83 2,712.96 76.97 301.44 

species dolphin 

PontoQoria La Plata river 

blainvillei dolphin or 5.00 1.52 24.00 7.32 6.00 1.83 2,712.96 76.97 117.75 

Franciscana 

Pseudo rca False killer whale 14.30 4.35 28.60 8.70 7.15 2.18 4,591.00 129.53 1,147.75 

crassidens 

Sotalia fluviatilis Tucuxi or white 5.50 1.68 24.00 7.32 6.00 1.83 2,712.96 76.97 142.48 

dolphin 

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TursioQS truncatus Atlantic bottlenose 9.0 2.74 24.0 7.32 6.00 1.83 2,712.96 76.97 381.15 

(Atlantic) dolphin 

TursioQS truncatus Pacific bottlenose 10.00 3.05 24.00 7.32 6.00 1.83 2,712.96 76.97 471.00 

(Pacific) dolphin 

Minimum Volume o

Average adult horizontal Minimum Volume of water for required f

Species Group II Common name length dimension depth 1-4 animals additional 

in exces

Feet Meters Feet Meters Feet Meters Feet3 Meters3 Feet3 

Delohinus delohis Common dolphin 8.50 2.59 34.00 10.36 8.50 2.59 7,713.41 218.22 1,928.35 

Feresa attenuata Pygmy killer whale 8.00 2.44 32.00 9.76 8.00 2.44 6,430.72 182.46 1,607.68 

Kogia breviceQS Pygmy sperm 13.00 3.96 52.00 15.84 13.00 3.96 27,594.32 779.97 6,898.58 

whale 

Kogia simus Dwarf sperm 9.50 2.90 38.00 11.60 9.50 2.90 10,768.63 306.33 2,692.16 

whale 

Lagenorhynchus Atlantic white- 9.50 2.90 38.00 11.60 9.50 2.90 10,768.63 306.33 2,692.16 

acutus sided dolphin 

Lagenorhynchus White-beaked 9.00 2.74 36.00 10.96 9.00 2.74 9,156.24 258.37 2,289.06 

albirostris dolphin 

Lagenorhynchus Hourglass dolphin 5.60 1.70 24.00 7.32 6.00 1.83 2,712.96 76.97 590.82 

cruciger 

Lagenorhynchus Pacific white-sided 7.50 2.29 30.00 9.15 7.50 2.29 5,298.75 150.50 1,324.69 

obliauidens dolphin 

LissodelQhis Northern right 9.00 2.74 36.00 10.96 9.00 2.74 9,156.24 258.37 2,289.06 

borealis whale dolphin 

NeoQhocaena Finless porpoise 6.00 1.83 24.00 7.32 6.00 1.83 2,712.96 76.97 678.24 

ohocaenoides 

PeQonoceQhala Melon-headed 9.00 2.74 36.00 10.96 9.00 2.74 9,156.24 258.37 2,289.06 

electra whale 

Phocoenoides Dall's porpoise 6.50 2.00 26.00 8.00 6.50 2.00 3,449.29 100.48 862.32 

dalli 

Stenella attenuata Pantropical spotted 7.50 2.29 30.00 9.15 7.50 2.29 5,298.75 150.50 1,324.69 

dolphin 

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Stenella clymene Short -snouted 7.00 2.13 28.00 8.52 7.00 2.13 4,308.08 121.37 1,077.02 

spinner dolphin 

Stenella Striped dolphin 7.50 2.29 30.00 9.15 7.50 2.29 5,298.75 150.50 1,324.69 

coeruleoalba 

Atlantic spotted 

Stenella frontalis dolphin/bridled 7.50 2.29 30.00 9.15 7.50 2.29 5,298.75 150.50 1,324.69 

dolphin 

Stenella Spinner dolphin 7.00 2.13 28.00 8.52 7.00 2.29 4,308.08 130.49 1,077.02 

long:irostris 

Steno bredanensis Rough -toothed 8.00 2.44 32.00 9.76 8.00 2.44 6,430.72 182.46 1,607.68 

dolphin 

1 Surface area required for additional cetaceans will be calculated in accordance with paragraph (b)( 1 )(iii) of this section. 
5654 Federal Register / Vol. 81, No. 22 / Wednesday, February 3, 2016 / Proposed Rules 

TABLE 2—AVERAGE ADULT LENGTHS OF SIRENIANS AND MUSTELIDS IN CAPTIVITY

Species Common name 

Average adult length 

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

Species Common name 

Average adult length 

In feet In meters 

Male Female Male Female 

Group I: 

Arctocephalus australis * ............ South American fur seal .................. 6.20 4.70 1.88 1.42 

Arctocephalus gazella * .............. Antarctic (or Kerguelen) fur seal ...... 5.90 3.90 1.80 1.20 

Arctocephalus pusillis * .............. South African/Australian (or Cape) 

fur seal.

8.96 6.00 2.73 1.83 

Arctocephalus townsendi* ......... Guadalupe fur seal ........................... 6.27 4.29 1.90 1.30 

Arctocephalus tropicalis * ........... Subantarctic (or Amsterdam Island) 

fur seal.

5.90 4.75 1.80 1.45 

Callorhinus ursinus * .................. Northern fur seal .............................. 7.20 4.75 2.20 1.45 

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 elephant seal ..................... 13.00 8.20 3.96 2.49 

Mirounga leonina * ..................... Southern elephant seal .................... 15.30 8.20 4.67 2.50 

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 Patagonian) sea lion ... 7.90 6.60 2.40 2.00 

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 lion ............................ 7.30 5.70 2.24 1.75 

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 seal ......................... 7.40 7.40 2.25 2.25 

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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Federal Register / Vol. 81, No. 22 / Wednesday, February 3, 2016 / Proposed Rules 5655 

BILLING CODE 3410–34–C 

* * * * * 

(c) * * * 

(1) * * * See Table 2 for the average 

adult lengths of sirenians. 

* * * * * 

(d) * * * 

(1) Primary enclosures housing 

pinnipeds shall contain a pool of water 

and a dry resting area or social activity 

area that must be close enough to the 


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Table 4.- MJnimum soooe requirements for pinnioeds in capuvity 

Minim001 hori:rontill Minimum ()."PLh Surtaoe ami fOr l·lllnimllls 

Coauru:m din•tlSion ORA (or l·2 aninnl<~: 

I'QIIJ< In 11~ 1 In l'llt..""tfrs Jnr~ I In IDi:ICI'lJ ln ftel: I Inmec.;orr 

Mille Fcll'llle Mill< Female Male ·-·e Male female Male Ftmalc Male f<mlle 

Ant.an:tic fur 8.40 9.11 2.70 us 3.00 3.00 0.92 0.92 69.62 30.42 6.48 2.88 

Balbi seal 8.40 9.15 2.55 2.78 3.00 3.05 0.92 0.93 62.72 74.42 5.78 6.85 

Bearded seal 11.40 11.40 BO 3.50 3.80 3.80 1.17 1.17 167.50 167.50 15.74 15.74 

CaiJromia 10.95 8.55 3.36 2.55 3.65 3.00 1.12 0.92 106.58 64.98 10.04 6.13 

caspian seal 1.n 6.90 2.18 2.10 2.38 2.30 0.73 0.70 45.13 42.32 4.21 3.92 

Otlbeater 10.95 10.95 3.32 3..12 3.6S 3.65 1.11 1.1 1 106.58 106.58 9.77 9.77 

OrJyseal 11.25 9.60 3 ... 5 1.43 3.75 3.20 1.15 0.93 112.50 81.92 10.58 7.61 

Guadalupe 9.41 6.44 2.85 1.95 3.14 3.00 0.95 0.92 78.63 36.81 7.22 3.38 tiJr ,..1 

Harbor,..l 8.40 1.35 255 2.25 3.00 3.00 0.92 0.92 62.72 48.02 5.78 4.50 

Hnrp ""' 9.15 9.15 2.78 2.78 3.05 3.05 0.93 0.93 74.42 74.42 6.85 6.85 

Ha"'"'aiian 

monk 11.10 11.10 3.38 3.38 l-70 !It'll 3.70 1.12 1.12 158.80 158.80 14.68 14.68 

Hoodtd ttal 12.75 9.90 3.90 3.00 4.25 3.30 1.30 1.00 209.53 126..12 19.60 11.60 

Leop&l(local 14.25 16.20 4.35 4.95 4.75 5.30 1.45 1.65 180.50 233.28 16.82 21.78 

Nonhero 

depbantseal 19.50 12.30 5.94 3.74 6.$0 4.10 1.98 1.25 J33.00 134.48 31.36 11.40 

Nortbc:tn fur 10.80 7.13 3.30 2.18 3.60 2..18 1.10 0.73 103.68 45.13 9.68 4.21 

Ribbon..,.J 8.55 8.25 2.63 2.S2 2.&5 2.15 0-88 D.84 64.98 60.50 6.13 5.64 

Rlogod,..l 6.60 6.45 2.03 1.95 2.20 2.15 0.68 0.65 56.14 53.62 5.29 4.90 

Roll• ~Ill 9.75 10.50 2.99 3.20 3.25 3.50 1.00 1.07 84.50 98.00 7.92 9.07 

Sottlh 

African/ 13.44 9.00 4.10 2.75 4.48 3.00 l..l7 0.92 160.56 72.00 14.91 6.70 

AustraltM 

SOttlh 

American 9.)0 1.05 2.82 2.13 3.10 2.35 0.9< 0.7 1 76.88 44.18 7.07 4.03 • • , > 

Subru~ an::tjc 

8.40 7.13 2.70 2.18 3.00 3.00 0.92 0.92 69.62 4S.I3 6.48 4.21 fur ,;cal 

Southern 

(PatagO<U.n) 11.85 9.00 3.60 3.00 3.95 3.30 1.20 1.00 124.82 87.12 11 .52 8.00 

Sk!:t lion 

Southern 22.95 12,30 7.01 3.7S 1.65 4.10 2.34 1.25 468. 18 134.48 43.62 12,50 tkpltant kal 

Spo(t<:d seal 8.40 7.35 2.55 2.25 2.80 2.45 0.85 0.75 62.72 48.02 5.78 4.50 

Slellet sea 14.10 11.85 4.29 3.60 4.70 3.95 1.43 1.20 176.72 124.82 16.36 11.52 

Walnas IS.4S 12.75 4.73 3.00 5.15 4.25 1.58 1.30 212.18 144.50 19.85 13.52 

Wedi.Lell Setl 14.25 15.45 4.35 4.73 4.75 5.15 1.45 1.58 180.50 212.18 16.82 19.85 
5656 Federal Register / Vol. 81, No. 22 / Wednesday, February 3, 2016 / Proposed Rules 

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: 

§ 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. 

■ 9. Section 3.111 is revised to read as 

follows: 

§ 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 § 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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Federal Register / Vol. 81, No. 22 / Wednesday, February 3, 2016 / Proposed Rules 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 § 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 § 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 

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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