032?12/2014 16 2 54 FAX 202342345] KELLEY DRYE WARREN LLP KELLEY DRYE WARREN LLP I- WASHINGTON HARBOUR, SUITE 4113 3050 STREET, NW It}? 002/00? LG: 'P'iwltiasi ca 2:311 Shantt'na'tj r-utst: I :202; 342-3600 IZIRECT [292a ERUSFIEI- EMAIL: moo-Isom?gkaiioyoryc :orT? :n-?Ic?n Iri?l? March I2. 2014 VIA mo Faesmun Elisabeth I?annili. We ;tern Region Animal Care, Buitiing I3, Mailstop I Centre Avenue Fort Collins. CO 30526-8} 17' Phone; {970) 494-7473 Fax (970) 494?7461 Email: acwestti?anhis.ttsciagov Re: First Anneal ofinspec?on Report {Insoection LD. as141assumes)I 063? Dr. Pannill: On beltalfofour client. ScaWorld UfTexas (?SettWot'Id?} (Customer ED. 4853. Certificate we write to appeal the InsPection Report you issued on March 6. 2014 regarding an inspection you conducted of SeaWorld?s park on March 5. 2014 (the ?Inspection Report," attached hereto). As discussed below, SeaWorld disputes the allegation in the Inspection Report that SeaWorld violated regulation found at 9 can. (01:39). Accordingly. SeaWorld requeSts that you issue anew Inspection Report which deletes the erroneous ailcgation. iilcase note that this response. including the Inspection Report, is protected I'i?orn disclosure under FOIA and SeaWorld reserves all its rights under the statute. In the event that an}I Jolson seeks to obtain this appeal ietter or the Inspection Report discussed herein under FOLK. ScaWot'Id requests that it be noti?ed and be given ample opportunity to object and take whatever necessary action to protect its rights against any such disclosure. taunt: I not 03/12/2014 16:55 FAX 2023428451 KELLEY DRYE WARREN LLP 003/007 KELLEY DRYE WARREN LLP Mat-ch 20M Pug: "it?yo Factual Background As a preliminary matter, we note that at SeaWorld the safety and well-being of the unit ials, stall and visitors are of utmost importance. SeaWorld provides thousands of safe inte 'actions between its guests and animals each day, and incidents like the one alleged in the Inspection Report are few and far between. As a factual matter, all necessary and appropriate safety precautions were taken at the time of the alleged incident referenced in the inspection Report. indeed, SeaWorld had three responsible, knowledgeable and readily identi?able loyces present at the dolphin exhibit at the time of the alleged incident, which occurred when there were not ?large crowds? as alleged in the inspection Report (see below). Neither the guest nor the doiphin were in any danger at any point during the interaction. In tact, after the alleged incident the guest stayed at SeaWorld?s park to visit other attractions, and the dolphin, which did not suffer any injury or adverse health effects, required no treatment. The Inspection Report In the Inspection Report, you state: The public is allowed to touch the dolphins at one exhibit pool. There are usually 2- 3 knowledgeable employees present to monitor the interactions at this pool. Recently, a member of the public was nipped on the hand by a dolphin While attempting to touch the animal. There is concern that with large crowds, 2* 3 employees can not properly monitor all the interactions with the animals. The number of knowledgeable employees must be increased to assure the safety of the animals and the public. Based on these statements, you cite SeaWorid for a violation oi?) CPR. AS discussed below, SeaWorld believes this alleged violation is erroneous, and should be removed from the inspection Report, based not only on the facts outlined above, but on the law as disulssed below. APIJEIS Does Not Regulate Matters of Public Safetv Your citation is based on the allegation that ?a member of the public {allegedly} was nipped on the hand by a dolphin while attempting to touch the animal." Although Al?l?llS? regt-ilations on their face refer to ?public? safety, the Animal Welfare Act does not, in fact. grant the Secretary oi" .t?tgriculture, or his designee, Al?l-llS, the right to regulate public sa'l?t?ty. 'rlt )l-lNI-iffi 03/12/2014 16:55 PM 2023428451 KELLEY DRYE WARREN LLP 004f007 KELLEY DRYE 3? WARREN LLP March 2. 20 4 Page 'i?hree This is clear from a number of sources including a leading casc dealing with Section i] of the regulations, in re: The internationoi Siberian Tiger Foundation. oi oi, 2002 WI 234001 (USDA. 2002).2 in that case, the USDA Judicial Officer agreed with an argument made by the respondent exhibitioner that the AWA onlyr covers the humane treatment of animals. but does not cover public safety. The Judicial Officer explained that although ?section of the Regulations (9 OER. provides that exhihitcd animals must he handled in a manner that assures not only their safety but also the safety of the public." this sec' ion "is directly related to the humane care and treatment of animals and within the authority grag-ited to the Secretary of Agriculture under the Animal Welfare Act.? 2002 WL 234001 at *17 (err phasis added). in other words. according to the Judicial Of?cer= the sole basis for the Secretary (or APHIS Inspectors) to even consider the safety of the public is only with respect to the potential impact upon ?the humane care and treatment of animals.? The issue for APHIS is what potential adverse consequences there may be for animals interacting with the public. The AWA and thus the regulations simply do not concern public safety by itself. Later in his opinion, the Judicial Of?cer confirmed this understanding of the AWA. He did so by reversing the earlier decision of the Chief Administrative Law Judge who had apparently misunderstood Complainant?s arguments and had erroneously held that a violation of the handling regulation can he based on. mere evidence that a member of the public had been bitten. The Judicial Of?cer explained that the occurrence of a bite by itself was not a basis to line that a violation of the handling regulation had occurred: The record clearly establishes that Complainant views the bites and other injuries sustained by people who had close encounters with Respondents" animals as the consequence of Respondents? violations of the Regulations. 1 find nothing in Complainant's ?lings indicating that Complainant takes the position that Respondents= animals? bites constitute violations of the Regulations. and i do not adopt the Chiefxliuih statement that Conrpioinont ?s i'oiionoie?ir alleging a violation in this proceeding is that Respondents were in compliance with sacrion 2.13 Mini!) of the Regulations (9 55 until peopie were bitten. 200:: an. 234001 at *23 (emphasis added). Also available at: ?(20 if 3] iNliiSF 73' i3 03f12/2014 16:55 FAX 2023423451 KELLEY DRYE WARREN LLP 005/007 KELLEY DRYE 3. WARREN LLP March 12, 20H Page Four In short. based on the AWA and the opinion of the Judicial Officer in In re: The bin-.rnottonnt Siberian Tiger at (ii, there is and was no basis for your citation of World for a de?ciency or yiolation of Section 2.l3] on the basis of what alleged injuries may er may not have been sustained by public contact witl'i dolphins at SeaWorld. Moreover. because there is no evidence that any dolphin?s welfare was jeopardized in connection with the alleged ?nip? of a member ofthe public, there was and is no basis for SeaWorld?s citation for the vio ation of9 In Any Event, SeiWorld Did Not Violate 9 C.F.R. 2.1.31tdjt2} 9 previdcs: responsible, knowledgeable, and readily identifiable em'iloyee or attendant must be present at all times during periods of public contact.? "l?hus, the regulation does not require that any specific number of quali?ed employees or attendants be present. in any event- SeaWorld had three Such persons present during the interaction, which was both a reasonable and sufficient number under the circumstances. Accordingly, SeaWorld did. not commit any violation of 9 CFR. 1t by Tvirtue ofthe number ol?attendants present." Moreover, as noted, SeaWorid?s employees present at the dolphin exhibit otl'ierwise met the criteria identi?ed in 9 ORR. 2.l These employees were responsible, knowledgeable, and out?tted in readily identi?able, SeaWorld-issued uniforms. in sum, Set World was, and is, fully in compliance with 9 CPR. 3 Indeed, SeaWorld has more quali?ed employees present during the interactive dolphin exl'ibit than the regulation technically requires the regulation only requires that a (tea, a single) qualified employee or attendant be present at all times during periods ofpublic contact. 0f cocrse, SeaWorld reasonably adjusts the number of its employees available depending on the number of guests at the exhibit. However, the Inspection Report?s requirement that ?the number of knowledgeable employees must. be increased? ta, to deal with "large crowds? ?.is a vague. ants-Jiguous and unenforceable standard in any case. l-Eecause ScaWorld is not in violation org OER. and because as cor??rmed by undersigned counsel?s telephone call with Dr. 'l?ami l-Ioward. Veterinary Medical ('ll'ficer, on March l, 2014 the corrective action demanded by the inspection Report is stayed during the pendency of this appeal, and SeaWorld need not take any corrective action pursuant to the inspection Report at this time. ricer-niltits-sine 03f12f2014 16:55 FAX 2023423451 KELLEY DRYE WARREN LLP KELLEY DRYE 8: WARREN LLP Math 12: 2014 Page Fix-?e For the reasons set forth above, SeaWorld appeals the citation in the Inspection all its rights, and requests that APHIS issue an amended Inspection Report which de?etes the erroneous allegation. Sincerely, J?si?lizabeth? Johnson Ira T. Kasdan Elizabeth C. Johnson Comma! to Sea World cc: Laurie Barbara I-Ieffeman ?ll 16:56 FAX 202342845] KELLEY DRYE WARREN LLP US Dirk United States Department of Agrioutture [mm TL Animal and Plant Health inspection Serwce 55141433420403 Report. Sea We id Of Texas 10500 Sea World Dr Customer ID. 4353 33? Mimic" TX V3251 Certi?cate: 74-0-0130 Site: 001 SEA WORLD OF TEXAS Type: ROUTINE Date; Mar-032014 2.131 (dr oF A NIMALS. The put-tic is allowed to touch the doiphins atone exhibit pool.. There are usually 2? 3 knowledgeable employees present :o monitor the interactions at this pool . Recentiye member ofthe public was nipped on the hand by a dolphin while attempting to touch the animal. There is concern that with large crowds, 2- 3 employees can not property monitor all the interactions with the animals. The number of Hoowiedgeable employees must be increased to assure the safe-y of the animals and the public. CORREZT BY 3-12-?4 The inspection and exit briefing was conducted with Sea Worid of Texas curators and veterinarians in Prepared By: ELlirCtBETt-l oym. usoe. intents. Animal Care Date: Titre: MEDICAL OFFICER inspector 4013 Meow-2014 Received By: SENT BY EMAIL Date: Tittle: VP ZODLOGICAL OPERATEONS Mar?002014 Page?l of United States Department of Agriculture Animal and Plant . mil?i Health Inspectmn Sermee AnimatCare . .. .. -: . - . Wager? Region (. ?ute Mitt 2150 Canlre Avenue Building 3 3w? - if?? Street. mt Fort Coitins. CD lJt? 80526-811? Phene: Fax: acwast?gaphisusdagm ltu?t'e received and ret iettet'l :tuut? letter tit" i-?lut?elt 12. 3914 wherein you are uppettiing the i ?ll-N it'nimtil tt?elt?itre retain-t til? 5. 307: 4. 'l he impeetit?an revert uz'tr: t?e-et-ttltutted and with the regttlutiutta iutd its eiuttaineel in litle tifthe (tide of" l'edet'tt] Regulation. {."ltuptei' l. Stil?ieltitptet' A lit. I also 1' Live. had tiixettssiuus with the. .i?tf?tll?tltil ('tti'e inspectors ?he eendueted the inspeetii?m. 1.71mi] careful re i-ieu oi" your letter. I do nut iind jLiSlil-h?tilinll tn temut the eited ineident from the. report. l'l'te tt-?ita? cited li'it' Handling; uf (i019). .-1 and readily identifiable empt?qtfet- ur attendant must be present {If all {fines during periods :gf'puht'fe ennmet. Bli?cd tin ititet-eiet-t'is with in?ll-lift :iti-tt'l' eentlueted by the itispeetut'a regarding the incident. at the time ut'tlie incident publie euniuel titere tires-e. 2 readily ii?lenti?ztlile. resputthible pertains-t present ill the met: when the e-liiltl bitien by the Since lite occurrence (11' this it'teit'leiit'. the ul? Rtrt?i?t?ltas been itiet'et-tsicd tn 3 ttei?h?ntia. l?le?tthii': imam tltit't efforts [ii eurt'eet the rztidling Ninetlteless a bite did ueeut? ueeurdiug In therefore the tits-peanut report Will be amended. l'ltiti incident mould he more i?tppt?iilfwt?it'ttely ititd eI'i. cited under Hum?fug .S'tsetimt ul'ilte ?itiitiuls harm the pulwlie have at greater rial; oi" being ittii'titet'i The regulatur} requirement is that Listed in. regttlittet'l itC-?Ei?t?lil-J? he handled 50? lil'ltil there is mittimui rink milieu-tn 10 the untl mltilti?iitl riak tit?itut'm it; the puiwizex insuring public sitt'et}. '1 hits direct-ti} related {0 the. Immune et-tt'e :titd ut tittititztis and i5 indeed within the granted to the Secretary in? 5? grietiliure wider the Animal \k-el liu'e Aet. Fur llk?i?i'd t'eusun?. I can only grunt ttl'l nt'tlte inspection t'epeit?t tn elte the incident tinder the metre ?e?itm t'll? the lam. tut: ii cup} at the t-tmeitded report within the t'text mu iteekg. all". Ema. imar?i?? garid Ernie?s-4r If WU ?1511 in Lii'lpt'?l mm determination to the Regia'nml [)ireetne please knew ?11m ii" we de um hear from yet: wiil?nin EU days. the amended repel?; will he posted 3: mm Lime. ihank you fer year interest in the weiiare 01' aninmls. Should you have questions [?sermining [0 this. letter. or any ether issues em?iee ming the \R'eil'ure Art and regulation; please do net hesitate to eentaei us. at me above. 5% i neereiy. '1 :imi Ham'ard- DVM HLlperrism'y Animal ("are Enema-[list Dr. {{Hmheth l?annill. Via-1U Dr. Mary V310 Fl?meheth Meek. Regitmel [Jireeler Eng Qt rtr-r :i Animal and Plant Health Inspection Service Animal Care Western Region 2150 Centre Avenue Building B, SW11 Fort Collins, CO 80526-311? Phone: 9?Dl494-74?8 Fax: evened-r461 anest@aphis.usda.gov 9.5 United States Department of Agriculture May 27, 2014 Elizabeth C. Johnson Kelley Drye Warren Washington Harbour, Suite 400 3050 Street, NW, Washington, DC 20007-5108 Dear Ms. Johnson, I write in reply to yoor further appeal of the citation on the inspection report of March 5, 2014, issued to Sea World of Texas. Inasmuch as the USDA does not possess suf?cient evidence to prove that a violation ofSection took place when a member of the public was bitten while present at the dolphin pool on February 22, 2014 (Le, contact between the public and the dolphins is allowed at this pool by Sea World of 'l'exas), the citation will be removed from the inepeetion report and an amended inspection report will be issued. You should receive the amended inspection report within two weeks of receiving this letter. Thank you for your interest in the welfare of animals. Sincerely, fax/MW Robert M. Gibhens, DVM Director, Western Region USDA, Animal Care An Equal Opportunity Provider and Employer KELLEY DRYE 8. WARREN LLP .1. tun-TED LIABILITY WASHINGTON HARBOUR, SUITE 400 NEW YORK, NY LU, C, cHIcaco. IL WASHINGTON, DC 20007 STAMFORD CT PARSIPPANY. NJ [202' 342 3400 BRUSSELS. BELGIUM AFFILVATE OFFICE MUMSAI INDIA May 8. 2014 VIA EMAIL AND Elizabeth l?annill, D.V.M. Western Region Animal Care. Building B. Mailstop 1 2150 Centre Avenue FOrt Collins, CO 80526-8] 17 Phone: 494?7478 Fax: (970) 494-7461 Email: FAUSIMILE [202} 3112-34-51 Kelloydrye cum DIRECT LINE (202} 342-3525 EMAIL. com Re: First Appeal of Inspection Report dated April 23. 2014 {lnspectiop LI). 1041409220509611 (hereafter the ?Second Inspection Report") Dear Dr. I?annill: On behalf of our client, SeaWorld 01"Iiexas {?ScaWorld?) (Customer ID. 4358. Certificate we write to appeal the Second Inspection Report you issued on April 23. 20143 regarding an inspection yoa conducted ofSeaWorld"s park on March 5, 2014. The Second Inspection Report is attached hereto. As discussed below. SeaWorld disputes the This is the first appeal relating to this Inspection Report, which. in turn. is an amended Report issued after APHIS retracted the one dated March 5. 2014 (1D 65141438420403) [hereafter the ?First Inspection Report") pursuant to the letter from Tami L. lloward. D.V.lvl.. to Elizabeth Johnson. counsel for SeaWorld. dated April 1 l, 2014. Please note that this response, including the Second Inspection Report, is protected from disclosure under FOIA and SeaWorld reserves all its rights under the statute. In the. event that any person seeks to obtain this appeal letter or the Inspection Report discussed herein under FOIA. ScaWorld requests that it be notified and be given ample opportunity to object and take whatever necessary action to protect its rights against any such disclosure. 1 .3 See note 1. above. MAY 19 11114 KELLEY DRYE WARREN LLP Elizabeth Pannill. DVM. May S, 2014 Page Two allegation in the Second Inspection Report that now claims that SeaWorld violated regulation found at 9 CHI-ZR. instead of, as originally claimed in the First Inspection Repert, 9 C.F.R. Because SeaWorld did not violate 9 C.F.R. or APHIS regulation for that matter. SeaWorld requests that you issue a new Inspection Report which deletes the erroneous allegation. Factual Background As a preliminary matter, we note that at SeaWorld the safety and well-being o'l?the animals in its care, its guests and its employees are of utmost importance. SeaWorld provides thousands of sale interactions between its animals and guests each day. and incidents like the one alleged in the Second Inspection Report are few and far between. As a factual matter. all necessary and appropriate safety precautiOns were taken at the time of the alleged incident referenced in the Second Inspection Report. Indeed. SeaWorld had three responsible. knowledgeable and readily identi?able employees present at the dolphin exhibit at the time of the alleged incident. which occurred when there were not ?large crowds? as alleged in the First Inspection Report. but which erroneous allegation is not repeated in the Second Inspection Report. Neither the guest nor the dolphin was in any danger at any point during the interaction. In fact. after the alleged incident the guest stayed at SeaWorld?s park to visit other attractions. and the dolphin. which did not suffer any injury or adverse health effects. required no treatment. The First Inspection Report In the First Inspection Report. you stated: The public is allowed to touch the dolphins at one exhibit pool. There are usually 2- 3 knowledgeable employees present to monitor the interactions at this pool. Recently. a member of the public was nipped on the hand by a dolphin while attempting to touch the animal. There is concern that with large crowds, 2- 3 employees cannot properly monitor all the interactions with the animals. The number of knowledgeable employees must be increased to assure the safety ofthe animals and the public. Based on these statements. you cited SeaWorld for a violation of 9 As SeaWorld discussed in its appeal of the First Inspection Report. and as you now apparently agree given the issuance of the Second Inspection Report claiming a different violation. SeaWorld never violated 9 C.F.R. MM 19 I?ll?: KELLEY DRYE 8: WARREN Elizabeth l?annill. May 8, 2014 Page Three The Second lnsneetion Report In full. the Second Inspection Report. which alleges the violation of Section states: The public is allowed to touch the dolphins at one exhibit pool. Recently, there was an incident at the dolphin pool where a childs [sic] hand was nipped by a dolphin. During the exhibition. any animal must be handled so there is minimal risk to the animal and the public. The Facility must assure the safety of the regulated animal and the public. To be corrected from this day forward. The inspection and exit briefing was conducted with SeaWorld of Texas curators and veterinarians. Notably. the Second Inspection Report does not recommend or dictate any particular corrective action. APHIS Does Not Regulate Matters of Public Safety Like the First Inspection Report, the Second Inspection Report predicates a violation based on the erroneous premise that can regulate public safety under the Animal Welfare Act As we noted in the first appeal. the AWA does not, in fact, grant the Secretary of Agriculture. or his designee. the right to regulate public safety. This is clear from a number of sources including a leading case dealing with Section 2.131 of the APHIS regulations. in re: The International Siberian Tiger Foundation. at of. 2002 WL 234001 2002).4 In that case, the USDA Judicial Officer agreed with an argument made by the respondent exhibitioner that the AWA only covers the humane treatment of animals. but does not cover public safety. The Judicial Officer explained that although "section ofthe Regulations (9 CPR. provides that exhibited animals must be handled in a manner that assures not only their safety but also the safety ofthe public,? this section ?is directly related to the humane care and treatment of animal?s and within the authority granted to the Secretary of Agriculture under the Animal Welfare Act.? 2002 WI. 234001 at *17 (emphasis added). In other words, according to the Judicial Officer. the sofa basis for the ?1 Also available at: at 53.htm . Mm 1?3 tint KELLEY DRYE 3: WARREN LLP Elizabeth Pannill. D.V.M. May 8. 2014 Page Four Secretary (or APHIS Inspectors) to even consider the safety of the public is oniy with respect to the potential impact upon ?the humane care and treatment of animals." The issue for APHIS is what potential adverse consequences there may be for animals when interacting with the public. The AWA and thus the APT-HS regulations simply do not concern public safety by itself. Later in his opinion. the Judicial Officer confirmed this understanding of the AWA. He did so by reversing the earlier decision ofthe Chief Administrative Law Judge who had apparently misunderstood Complainant?s arguments and had erroneously held that a violation of the handling regulation can be based on more evidence that a member of the public had been bitten. The Judicial Of?cer explained that the occurrence of a bite by itself was not a basis to ?nd that a violation of the handling regulation had occurred: The record clearly establishes that Complainant views the bites and other injuries sustained by people who had close encounters with Respondents? animals as the consequence of Respondents? violations of the Regulations. I find nothing in Complainant?s ?lings indicating that Complainant takes the position that Respondents? animals? bites constitute violations of the Regulations. and 1 do not adopt the ChiefALJ's statement that ?s or violation in this proceeding is that Respondents were in eon'tpiirtnee with section 2. 131 (it) of the Regttirttions {9 CFR. 3i 2. i3] ?uff? anti! peopie were bitten. 2002 WI. 234001 at *23 (emphasis added). In short. based on the AWA and the opinion of the Judicial Of?cer in in re: The internetionoi Siberian Tiger Foundation, et oi. there is and was no basis for your citation of SeaWorld for a de?ciency or violation of Section 2.131 because there is no evidence that any dolphin?s welfare was jeopardized in connection with the alleged ?nip? of a member of the public. The mere fact that a ?nip? may have occurred simply is not suf?cient to cite SeaWorldf 5 We note that Dr. Howard. in her letter dated April 1 1. 2014. does not address the Siberian Tiger case at all. Thus. her reasoning that SeaWorld committed a violation of Section because ?a bite did occur.? Letter at 1. contradicts Siberian Tiger and her conclusion that a new citation should be issued is incorrect and of no effect. Dr. I?loward. in her Letter. also states that: ?Animals that harm the public have a greater risk of being banned themselves." While that may be true. the fact ofthe matter here is that the dolphin was not harmed. Whether or not a member of the public in this instance may have been harmed simply is not relevant in the absence of any injury or threat of harm to the dolphin. 1n the end. APHIS has no authority over this incident which did not implicate. or relate to, ?humane an 191st KELLEY DRYE 8- WARREN LLP Elizabeth Pannill, D.V.M. May 8, 2014 Page Five In Anv Event. SeaWorld Did Not Violate 9 C.F.R. 2-131I0lt1l As relevant here, and as the Second Inspection Report clearly notes, Section requires handling during public exhibition so that there is ?minimal risk of harm to the animal and the public." ?Minimal? does not mean ?no? risk. Thus, the regulation does not require SeaWorld to eliminate all risk of injury (and of course such a requirement would be impossible to meet]. and injuries still may occur even when (as here) SeaWorld takes all precautions necessary to render the risk of such injuries ?minimal.? Nonetheless. relies solely on the fact that an injury [to the public. and not to any animal) allegedly occurred as evidence that SeaWorld failed to minimize the risk of harm. The Second Inspection Report fails to identify a single fact that suggests ScaWorld was not doing its part to render risk ol?injury ?minimal? at the time of the alleged incident. in fact. SeaWot?ld was complying with all standard operating procedures designed to minimize risk of injury at the time the alleged ?nip? occurred. For instance. in compliance with Section SeaWorld had several ?responsible. knowledgeable. and readily identi?able employee[s_ or attendant . . .present at all times during periods of public contact" in order to ensure the safety of the animals. The fact that during the public contact -- which is expressly allowed by the regulation as the Second Inspection Report even acknowledges6 a ?nip? may have occurred does not mean that SeaWorld failed to handle the dolphins in the proper manner. See Siberian Tiger, above, 2002 WL 234001 at *23 (holding that fact that a bite occurred is not, in and ot?itsell?. evidence of a violation ot?the regulation). The regulation simply does not require that SeaWorld insure against any and all risks no matter how small or inconsequential they may be. SeaWorld acted (as it always does) reasonably and responsibly; it violated no regulation. No Corrective Action is Needed As noted above. the Second Inspection Report does not identify anything speci?c that SeaWorld allegedly did to violate the regulation. and therefore does not set forth any speci?c corrective action for SeaWorld to take. That is not surprising because as a matter of fact there is no corrective action that SeaWorld can take to ensure that there never would be a ?nip? during public contact with the dolphins. Accordingly. the admonition in the Second Inspection Report care and treatment of animals [which_. as Dr. Howard further wrote] is indeed within the authority granted to the Secretary of Agriculture under the Animal Weltarc Act." The Second inspection Report: like the First one states the outset: ?The public is allowed to touch the dolphins at one exhibit pool.? an 191014 KELLEY DRYE WARREN LLP Elizabeth Pannill, D.V.M. May 8. 2014 Page Six that the alleged violation must be ?corrected from this day forward" is vague and unenforceable. and thus null and void. as a matter of law.7 For the reasons set forth above. SeaWorld appeals the citation in the Inspection Report. reserves all its rights, and requests that APHIS issue an amended Inspection Report which deletes the erroneous allegation. Sincerely. ?st Elizabeth C. Johnson ira Kasdan Elizabeth C. Johnson (Intense! to SenWorfd Cc (by email): Laurie Beechner, Esq. Barbara Heffernan Tami Howard. D.V.M. i In any event. due to the pendency of this appeal. in accordance with practice as previously con?rmed by undersigned counsel?s telephone call with .Dr. Tami Howard. APHIS Veterinary Medical Of?cer. on March 11. 2014 4- the corrective action demanded by the Inspection Report is stayed and SeaWorld need not take any corrective act1on at this tlme. Mm 19 1314 gt Inf United States Department of Agriculture Animal and Plant Health Inspection Service EPANNILL 104140922050961 insp_id Inspection Report Sea World Of Texas 10500 Sea World Dr San Antonio, TX 78251 CustomerlD: 4858 Certi?cate: 74-0-0180 Site: 001 Sea World of Texas Type: ROUTINE INSPECTION Date: Mar-052014 2.131 (I) HANDLING OF ANIMALS. The public is allowed to touch the dolphins at one exhibit poolRecentlv there was an incident at the dolphin pool where a childs hand was nipped by a dolphin. During public exhibition. any animal must be handled so there is minimal risk to the animal and the publicThe facility must assure the safety of the regulated animal and the public. To be corrected from this day forward. The inspection and exit brie?ng was conducted with Sea World of Texas curators and veterinarians. Prepared By: Title: Received By: TitleILA. . ELIZABETH PANNILL, DVM. USDA, APHIS, Animai Care Date: VETERINARY MEDICAL OFFICER Inspector 4018 Apr-232014 SENT BY EMAIL Date: VP ZOOLOGICAL OPERATIONS Apr-232014 Page 1 of 1 an 1 9 tint