[Federal Register Volume 60, Number 98 (Monday, May 22, 1995)]
[Proposed Rules]
[Pages 27049-27051]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-12434]



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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service

9 CFR Part 3

[Docket No. 93-076-3]


Marine Mammal Negotiated Rulemaking Advisory Committee; 
Establishment

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Notice of intent to establish a committee.

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SUMMARY: The Department of Agriculture announces its intent to 
establish an advisory committee to develop a recommended rulemaking 
proposal to revise the regulations governing the handling, care, 
treatment, and transportation of marine mammals in captivity. This 
committee, called the Marine Mammal Negotiated Rulemaking Advisory 
Committee, will be comprised of representatives with a definable stake 
in the outcome of the proposed rule.

DATES: Consideration will be given only to comments received on or 
before June 21, 1995.

ADDRESSES: Please send an original and three copies of your comments to 
Docket No. 93-076-3, Animal and Plant Health Inspection Service, Policy 
and Programs Development, Regulatory Analysis and Development, 4700 
River Road Unit 118, Riverdale, MD 20737-1228. Please state that your 
comments refer to Docket No. 93-076-3. Comments received may be 
inspected at USDA, room 1141, South Building, 14th Street and 
Independence Avenue, SW., Washington, DC, between 8 a.m. and 4:30 p.m., 
Monday through Friday, except holidays. Persons wishing to inspect 
comments are requested to call ahead on (202) 690-2817 to facilitate 
entry into the comment reading room.

FOR FURTHER INFORMATION CONTACT:
Dr. Barbara Kohn, Senior Staff Veterinarian, Animal and Plant Health 
Inspection Service, Regulatory Enforcement and Animal Care, Animal 
Care, 4700 River Road Unit 84, Riverdale, MD 20737-1228, (301) 734-
8699. [[Page 27050]] 

SUPPLEMENTARY INFORMATION:

Background

    We are announcing our intent to establish an advisory committee to 
develop a recommended rulemaking proposal to revise the regulations 
governing the handling, care, treatment and transportation of marine 
mammals in captivity.
    Under the Animal Welfare Act (the Act) (7 U.S.C. 2131 et seq.), the 
Secretary of Agriculture is authorized to promulgate standards and 
other requirements governing the human handling, housing, care, 
treatment, and transportation of certain animals by dealers, research 
facilities, exhibitors, and carriers and intermediate handlers. 
Regulations established under the Act are contained in 9 CFR parts 1, 
2, an 3.
    Under the Act, the Department established regulations in 1979 for 
the human handling, care, treatment, and transportation of marine 
mammals used for research or exhibition purposes. These standards were 
amended in 1984. During the 9 years since the standards were amended, 
advances have been made, new information has been developed, and new 
concepts have been implemented with regard to the housing and care of 
marine mammals.
    On July 23, 1993, we published in the Federal Register (58 FR 
39458, Docket No. 93-076-1) an advance notice of proposed rulemaking 
that solicited comments on appropriate revisions or additions to the 
standards for the humane care and transportation of marine mammals used 
for exhibition or research.
    The comments we received in response to our advance notice suggest 
that it would be highly desirable to involve all interested parties in 
developing appropriate regulatory standards. We believe consensus among 
interested parties is attainable and that we should proceed with 
negotiated rulemaking in developing such standards

Negotiated Rulemaking

    Negotiated rulemaking is a consensus-based approach to the 
promulgation of agency rules. It is considered to be an effective tool 
for developing regulatory solutions to problems that affect diverse, 
and often competing, interests among the regulated public. By 
participating in this effort, interested parties have more direct input 
into the substance of a proposed rule than they would through the usual 
form of notice-and-comment rulemaking, where a regulatory agency works 
more independently to develop a proposed rule. In negotiated 
rulemaking, the participating parties agree to work together until 
consensus is reached on the content of the proposed rule, which is then 
published for public comment. In this manner, negotiated rulemaking 
enables an agency to avoid many of the obstacles that might be raised 
in a usual notice-and-comment proposed rulemaking, and expedites the 
promulgation and implementation of a final rule.
    We therefore intend to establish a Marine Mammal Negotiated 
Rulemaking Advisory Committee (Committee), chartered under the Federal 
Advisory Committee Act (Pub. L. 92-463). The Committee will advise the 
Department on the content of regulations to revise and update the 
standards for the handling, care, treatment, and transportation of 
marine mammals in captivity.
    The establishment of this Committee is necessary and in the public 
interest in connection with the duties and responsibilities of the 
Administrator of the Animal and Plant Health Inspection Service (APHIS) 
in ensuring the humane care of marine mammals held in captivity by 
researchers and exhibitors. These duties and responsibilities include 
the promulgation of regulations. The Committee is intended to serve as 
a public forum in which interested parties can discuss and resolve the 
issues involved in developing revised standards for the care of marine 
mammals in captivity. We believe that this process will allow APHIS to 
develop effective regulations for the care of these animals.
Key Issues for Negotiation

    We anticipate that the Committee will need to address the following 
issues in formulating a proposal:

* Space requirements;
* Transportation of marine mammals;
* ``Swim-with-the-dolphins'' programs;
* Noise levels;
* Water temperatures;
* Recordkeeping requirements;
* Water quality parameters to be monitored;
* Separation/isolation;
* Feeding;
* Training; and
* Stranding: When does rehabilitation end and captivity begin?

Guidelines

    The following guidelines will apply to this negotiated rulemaking, 
subject to appropriate changes made as a result of comments received on 
this notice or as determined necessary during the negotiation process:
    1. Facilitator. APHIS will use a facilitator. The facilitator, a 
neutral third party, will not be involved in the substantive 
development of the regulation. The facilitator's role will be to chair 
negotiating sessions, to act as a mediator, to help the negotiations 
proceed smoothly, and to help the participants define and reach 
consensus.
    2. Good faith negotiation. Because participants must be willing to 
negotiate in good faith, each organization must authorize a senior 
official to represent its interest and to negotiate on its behalf. The 
issue of keeping or holding animals in captivity will not be addressed 
by the Committee. The Committee will address only issues relating to 
the care and maintenance of captive marine mammals.
    3. Administrative support and meetings. APHIS will provide staff 
support for the Committee. Meetings will be held in the Washington, DC, 
metropolitan area.
    4. Consensus. The goal of the negotiating process is consensus. 
Generally, consensus means that each interest concurs in the result.
    5. Record of meeting. In accordance with the Federal Advisory 
Committee Act, APHIS will keep a record of all Committee meetings. The 
record will be placed in the administrative record for this rulemaking, 
and be made available for public inspection upon request. meetings will 
be open to the public.
    6. Committee procedures. Under the general guidance and direction 
of the facilitator and subject to applicable legal requirements, the 
members of the Committee will establish detailed procedures for the 
conduct of their Committee meetings.
    7. Schedule. The time and location of Committee meetings will be 
announced in the Federal Register.
    8. Participants. The Committee will consist of no more than 25 
members and a facilitator. Participation by more than 25 persons could 
make it difficult to conduct effective negotiations. One purpose of 
this notice is to help determine whether regulations concerning the 
care of marine mammals in captivity would substantially affect 
interests not adequately represented by the proposed participants 
listed in this notice. We do not believe that each potentially affected 
organization or individual must have its own representative on the 
Committee. However, we firmly believe that each interest must be 
adequately represented. Equal opportunity practices, consistent with 
U.S. Department of Agriculture policies, will be followed in all 
appointments to the Committee.
    APHIS has tentatively identified the following interests and 
parties as potential participants on the Marine [[Page 27051]] Mammal 
Negotiated Rulemaking Advisory Committee:

Representing Facility Owners and Managers

American Zoo and Aquarium Association
Alliance of Marine Mammal Parks
International Association of Amusement Parks and Attractions
Marine Mammal Coalition
United States Navy

Related Industry Groups

Coalition of Animal Welfare Institute, Society for Animal Protective 
Legislation, and numerous other organizations

Center for Marine Conservation

Humane Society of the United States

Representing Those Who Work with Captive Marine Mammals in Various 
Capacities

American Association of Zoo Veterinarians

International Association for Aquatic Animal Medicine

International Marine Animal Trainers Association

Society for Marine Mammology

Federal Government

Marine Mammal Commission

Animal and Plant Health Inspection Service, USDA

    Comments on this tentative list of participants are invited, as are 
suggestions for other potential participants. Please keep in mind that 
it is not necessary that every concerned organization be represented, 
as long as every significant interest is represented. Negotiation 
sessions will be open to the public. individuals and organizations 
without designated representatives on the Committee may attend sessions 
and communicate informally with members of the Committee.

    Done in Washington, DC, this 17th day of March.

Wardell C. Townsend,

Assistant Secretary for Administration.

[FR Doc. 95-12434 Filed 5-19-95; 8:45 am]

BILLING CODE 3410-34-M