[Federal Register Volume 67, Number 104 (Thursday, May 30, 2002)]
[Proposed Rules]
[Pages 37731-37732]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-13528]



Animal and Plant Health Inspection Service

9 CFR Parts 1 and 3

[Docket No. 93-076-17]

Animal Welfare; Marine Mammals

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Advance notice of proposed rulemaking and request for comments.


SUMMARY: We are considering amendments to the Animal Welfare 
regulations concerning the marine mammal standards for which consensus 
language was not developed during negotiated rulemaking we conducted in 
1995 and 1996, as well as the standards for interactive programs such 
as swim-with-the-dolphin programs. We are soliciting comments regarding 
appropriate changes or additions to the present standards.

DATES: We will consider all comments we receive that are postmarked, 
delivered, or e-mailed by July 29, 2002.

ADDRESSES: You may submit comments by postal mail/commercial delivery 
or by e-mail. If you use postal mail/commercial delivery, please send 
four copies of your comment (an original and three copies) to: Docket 
No. 93-076-17, Regulatory Analysis and Development, PPD, APHIS, Station 
3C71, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state 
that your comment refers to Docket No. 93-076-17. If you use e-mail, 
address your comment to regulations@aphis.usda.gov. Your comment must 
be contained in the body of your message; do not send attached files. 
Please include your name and address in your message and ``Docket No. 
93-076-17'' on the subject line.
    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 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) 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 dockets, are available on the Internet at 

Veterinarian, Animal Care, APHIS, 4700 River Road Unit 84, Riverdale, 
MD 20737-1228; (301) 734-7833.



    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. These regulations are found in 9 
CFR part 3, subpart E, ``Specifications for the Humane Handling, Care, 
Treatment, and Transportation of Marine Mammals'' ([sect][sect] 3.100 
through 3.118). Some sections of these standards 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

[[Page 37732]]

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 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 some 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--[sect] 3.100 on 
variances and implementation dates; [sect] 3.102 on indoor facilities; 
[sect] 3.103 on outdoor facilities; and [sect] 3.106 on water quality. 
Consensus language was developed for general space requirements in 
[sect] 3.104, 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

    On January 23, 1995 (60 FR 4383-4389, Docket No. 93-076-2), we 
published in the Federal Register a proposed rule to establish 
standards for swim-with-the-dolphin (SWTD) programs in a new [sect] 
3.111. After reviewing the comments, 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 issues raised in the proposed and final rules regarding 
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. 93-076-12), we announced that, as of the effective date of 
the September 4, 1998, final rule, and until further notice, we would 
not apply 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 the regulations and 
standards concerning SWTD programs.

Request for Comments

    Since advances continue to be made, new information developed, and 
new concepts implemented with regard to the handling, care, treatment, 
and transportation of marine mammals in captivity, we are now reviewing 
the standards to determine what amendments, if any, are necessary. 
Specifically, we are requesting comments regarding the standards for 
which the Committee did not develop consensus language ([sect][sect] 
3.100, 3.102, and 3.103; the specific space requirements for particular 
marine mammals in [sect] 3.104; and [sect] 3.106) and for the standards 
for SWTD programs in [sect] 3.111.
    In particular, we invite responses to the following questions:
    1. Should maximum temperature ranges for air and water be 
established for each species? If so, what should these temperature 
ranges be? Please submit any scientific data available to support 
maximum and/or minimum temperature ranges for each species.
    2. Should noise thresholds be established for each species? If so, 
please submit specific scientific data to support any proposed noise 
thresholds as well as specific methodologies for measuring sound 
    3. What components should we consider when determining space 
requirements for each species (e.g., surface area, volume, length, 
width, depth)? Has a method or system been developed by any marine 
mammal facility or other entity to address space requirements? If so, 
please describe it.
    4. Should we revise the representative average adult lengths used 
in the tables? If so, why? Please submit any scientific data that 
supports revising the representative average adult lengths used in the 
    5. Should we establish minimum depths for each species? If so, what 
should these depths be? Please submit any supporting scientific data 
for each species.
    6. Which is more important, minimum width or longest straight-line 
swimming distance? Should we require any specific straight-line 
swimming distance?
    7. Interactive programs are programs in which members of the public 
enter the primary enclosure of a marine mammal in order to interact 
with the animal. There are a wide range of interactive programs 
currently available to the public (e.g., wading, swimming, snorkeling, 
or scuba diving with marine mammals; sitting on a dock, ledge, or 
similar arrangement while the marine mammal approaches; ``trainer for 
the day'' and/or immersion experiences; and therapeutic sessions). Are 
there any interactive activities not listed here? If so, please provide 
a detailed description of the activity.
    8. How should the interactive activities described above be 
regulated? What, if any, paragraphs in [sect] 3.111 should be amended? 
How? Are there any other specific standards needed for interactive 
    9. Do you have any other specific concerns or recommendations for 
the sections mentioned above?
    We welcome all comments on the issues outlined above and encourage 
the submission of ideas on the specific standards for the humane 
handling, care, treatment, and transportation of marine mammals in 
captivity found in [sect][sect] 3.100, 3.102, 3.103, 3.104, 3.106, and 
3.111. We also invite data on the costs and benefits associated with 
any recommendations. We will consider all comments and recommendations 
we receive regarding changes to the current regulations and will 
initiate rulemaking for any changes deemed appropriate.

    Authority: 7 U.S.C. 2131-2159; 7 CFR 2.22, 2.80, and 371.7.

    Done in Washington, DC, this 23rd day of May 2002 .
Bill Hawks,
Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 02-13528 Filed 5-29-02; 8:45 am]