Animal welfare: Marine mammals— dolphin interactive programs,

[Federal Register: April 2, 1999 (Volume 64, Number 63)]

[Rules and Regulations]

[Page 15918-15920]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr02ap99-4]

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

9 CFR Parts 1 and 3

[Docket No. 93-076-13]

RIN 0579-AA59

Animal Welfare; Marine Mammals; Swim-with-the-Dolphin Programs

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Reconsideration of final rule and suspension of enforcement.

SUMMARY: We are hereby suspending the enforcement of those provisions of the Animal Welfare regulations and standards that deal with ``swim- with-the-dolphin programs.'' In addition, we are soliciting public comment on all aspects of the suspended regulations and on all human/ marine mammal interactive programs.

DATES: This suspension of enforcement is effective April 2, 1999. We invite you to comment on this docket. We will consider all comments that we receive by June 1, 1999.

ADDRESSES: Please send your comment and three copies to: Docket No. 93- 076-13, Regulatory Analysis and Development, PPD, APHIS, Suite 3C03, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. 93-076-13.

You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Ave., 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) 690-2817 before coming.

APHIS documents published in the Federal Register, and related information, including the names of organizations and individuals who have commented on APHIS rules, are available on the Internet at http:// www.aphis.usdaa.gov/ppd/rad/webrepor.html.

FOR FURTHER INFORMATION CONTACT: Dr. Barbara Kohn, Senior Staff Veterinarian, Animal Care, APHIS, 4700 River Road Unit 84, Riverdale, MD 20737-1234; (301) 734-7833.

SUPPLEMENTARY INFORMATION:

Background

Under the Animal Welfare Act (AWA) (7 U.S.C. 2131 et seq.), the Secretary of Agriculture is authorized to promulgate standards and other requirements regarding the humane handling, care, treatment, and transportation of certain animals by dealers, research facilities, exhibitors, and carriers and intermediate handlers. The Secretary has delegated responsibility for administering the AWA to the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture (USDA). Regulations established under the AWA are contained in the Code of Federal Regulations (CFR) in 9 CFR parts 1, 2, and 3. Part 1 contains definitions for terms used in parts 2 and 3; part 2 contains general requirements for regulated parties; and part 3 contains specific requirements for the care and handling of certain animals.

On January 23, 1995, we published in the Federal Register a proposal (60 FR 4383-4389, Docket No. 93-076-2) to amend the regulations in 9 CFR part 3, subpart E (referred to below as the regulations), by establishing standards for ``swim-with-the-dolphin'' (SWTD) programs. After reviewing comments from the public on the proposal, 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 certain 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 asked us to address issues not specifically raised in the final rule or the proposed rule regarding shallow water interactive programs. We are using the term ``shallow water interactive program'' because it has come to our attention that a number of facilities have different names for their programs in which a member of the public enters the primary enclosure of an SWTD cetacean to interact with the animal and in which the participants remain primarily stationary and non-buoyant. For purposes of this notice, it is our intent that the term ``shallow water interactive program'' encompass wade programs, encounter programs, or any other program as described above.

The 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, and that, because of this misunderstanding, they had not been able to participate fully in the rulemaking process.

Although the definition of an SWTD program set forth in the proposed rule

[[Page 15919]]

did not exclude shallow water interactive programs, our use in the proposal of the word ``swim'' may have led a segment of the regulated industry to assume that the regulations would not apply to shallow water interactive programs in which the participants remain primarily stationary and non-buoyant. In addition, the confusion of the regulated parties may have been heightened by our not specifically referring to ``wading'' until the final rule.

It was always our intent to include shallow water interactive programs within the scope of the rule. However, between publication of the proposed rule and the final rule, a number of facilities began new shallow water interactive programs, which we were not aware of. Therefore, we did not specifically address the potential economic impact of the rule on these new shallow water interactive programs.

We recognize that the number and makeup of shallow water interactive programs may have changed since we initiated SWTD rulemaking several years ago, and that the industry has gained more experience in operating such programs. The parties who contacted us following publication of the final rule expressed concern that the final rule did not fully reflect, among other things, the current issues involved in shallow water interactive programs.

In response to these concerns, on October 14, 1998, we published a notice in the Federal Register (63 FR 55012, Docket No. 93-076-12) in which we announced that, as of the effective date of the final rule and until further notice, we would not apply to wading programs (referenced in this document as shallow water interactive programs) the standards in Sec. 3.111(a) of the final rule for space for the interactive area in a SWTD program, or the standards in Sec. 3.111(e)(4) for human participant/attendant ratio. We stated that, for the purposes of that notice, we considered wading programs to be those in which human participants interact with cetaceans by remaining stationary and non- buoyant. Additionally, we expressed our intention to examine more fully the issue of interactive space requirements and human participant/ attendant ratios for programs in which contact between humans and cetaceans is limited and controlled, with negligible movement of humans within the enclosure.

Additionally, we were made aware of concerns regarding the specificity of the experience and training requirements for SWTD program personnel, including the attending veterinarian. Some parties expressed concern regarding the nature of the veterinary care requirements and the issue of interactive session time limits for the animals.

We also have become aware of two unintentional consequences concerning the exclusions contained in the definition of an SWTD program. First, our intent was to exclude from regulation feeding and petting pools where the participant does not enter the primary enclosure of the animal. However, the wording we used in the rule does not make clear the narrow exclusion we intended.

Second, we intended to exclude from regulation the participation of a limited number of members of a larger public audience that are part of a presentation or performance (e.g., when one or two members of an audience are invited to interact with an animal as part of the overall presentation or performance). Contrary to our intent, however, by inserting the exclusion in the definition of an SWTD program, we inadvertently allowed this exclusion to apply to shallow water interactive programs where all or a significant number of program participants are provided the opportunity to enter the primary enclosure to interact with the animal.

While we could attempt to address these issues by responding individually to each concern or point, we believe that the most effective way to address the concerns and confusion surrounding the SWTD rule is to suspend enforcement of the provisions and seek new, additional, and more current scientific, documentable, or other information on human/marine mammal interactive programs. This information will aid the agency in determining the most appropriate action regarding the regulation of human/marine mammal interactive programs.

In this notice, we are soliciting information from the public on all aspects of human/marine mammal interactive programs, and are asking that commenters give special consideration to the issues set forth below. We request that commenters submit scientific, documentable, or other information to support their positions.

1. Based on past and present experience with human/marine mammal interactive programs, is there a need to have regulations specific to these programs under the Animal Welfare Act?

2. Should shallow water interactive programs be regulated in the same way as other regulated interactive programs?

3. How much space (length, width, and depth) is needed in the interactive area for shallow water interactive programs? Is there a need for deeper water somewhere in the interactive area?

4. For shallow water interactive programs, what participant-to- attendant and participant-to-animal ratios have been or can be used safely?

5. For the purposes of this notice, we consider shallow water interactive programs to be those in which human participants enter the primary enclosure of the marine mammal to interact with the animal, but in which human participants remain primarily stationary and non- buoyant. Do you believe this definition adequately describes shallow water interactive programs? If not, what definition do you consider satisfactory?

6. If shallow water interactive programs are regulated in the same way as other programs, should the heading for Sec. 3.111 of the regulations, which currently reads ``Swim-with-the-dolphin programs,'' be amended to read ``Human/marine mammal interactive programs'' or something similar?

7. In the final rule, we explained that the requirement set forth in the proposed rule that the attending veterinarian for an SWTD program have at least 2 years of full-time experience with cetacean medicine meant that the veterinarian needed at least 4,160 hours of experience. This inclusion of a specific number of hours generated a number of questions and concerns from regulated parties. Is the SWTD rule the appropriate place to address this issue? If so, do you think we should remove the reference to a specific number of hours (while retaining the requirement for at least 2 years of experience)? Is there a better way to make the experience requirement clear? In this notice, we are soliciting information on whether there are alternative requirements that would assure an adequate level of experience and knowledge to achieve the purposes of the regulations.

8. In the final rule, we required that certain employees at a SWTD facility have a specified minimum number of years of experience or training, as follows:

   Licensee or manager: At least 6 years experience in a professional or managerial position dealing with captive cetaceans.

   Head trainer/behaviorist: At least 6 years experience in training cetaceans for SWTD behaviors in the past 10 years, or an equivalent amount of experience involving in-water training of cetaceans.

   Trainer/supervising attendant: At least 3 years training and/or handling experience involving human/cetacean interaction programs.

   [[Page 15920]]

   In this notice, we are soliciting information on whether there are alternative requirements that would assure an adequate level of experience and knowledge to achieve the purposes of the regulations.

9. Should therapy sessions (i.e., interactive sessions involving a therapist or established programs that deal with mentally or physically handicapped persons) be excluded from or covered by regulation? Why do you consider therapy sessions different from or the same as other shallow water interactive programs? Should regulation of therapy sessions be based on the frequency of sessions at the facility or other criteria? If based on frequency, what should be the threshold for regulation?

   Accordingly, effective April 2, 1999, in 9 CFR part 1, Sec. 1.1, the definitions of buffer area, interactive area, interactive session, sanctuary area, and swim-with-the dolphin (SWTD) program are suspended, and, in 9 CFR part 3, Sec. 3.111 is suspended.

   Authority: 7 U.S.C. 2131-2159; 7 CFR 2.22, 2.80, and 371.2(g).

   Done in Washington, DC, this 29th day of March 1999. Craig A. Reed, Administrator, Animal and Plant Health Inspection Service.

   [FR Doc. 99-8153Filed4-1-99; 8:45 am]

   BILLING CODE 3410-34-P