[Federal Register: May 30, 2002 (Volume 67, Number 104)]
[Proposed Rules]
[Page 37731-37732]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30my02-21]
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DEPARTMENT OF AGRICULTURE
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.
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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
http://www.aphis.usda.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 20737-1228; (301) 734-7833.
SUPPLEMENTARY INFORMATION:
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. 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
levels.
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
tables.
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
programs?
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]
BILLING CODE 3410-34-P
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