MARINE MAMMAL COMMISSION — Annual Report for 1998 



includes temperature and shelter requirements); space; 

 and water quality. Voting members of the rulemaking 

 committee are not allowed to comment negatively or 

 in opposition to any of the consensus language at the 

 proposed rule stage. Observers such as the Marine 

 Mammal Commission, however, are not similarly 

 constrained in how they may comment. 



After considering projected costs for additional 

 negotiating sessions and the likelihood of the commit- 

 tee reaching consensus on the remaining issues, the 

 Animal and Plant Health Inspection Service decided to 

 hold no more negotiating meetings and to develop 

 remaining sections of the proposed rules itself. 



By letter of 23 December 1997 the Commission 

 advised the Service that it remained concerned about 

 the status of the proposed rule. Noting that consensus 

 had been reached on several sections of the proposed 

 rule and that a proposed rule was to have been pub- 

 lished some time during the first half of 1997, the 

 Commission asked the Service to advise it as to what 

 work remained to be done and what clearances needed 

 to be obtained before publication. 



The Service responded that proposed regulations 

 reflecting the consensus language agreed to by the 

 negotiated rulemaking committee had been drafted and 

 should be ready for departmental review in February 

 1998. The Service further noted that it had decided 

 to bifurcate the rulemaking process. Those portions 

 of the proposed regulations that will not be based on 

 consensus language developed by the negotiated 

 rulemaking committee will be published separately. 

 The Service indicated that it was currently developing 

 proposed regulations for those sections. The Service 

 anticipates that it will publish the second portion of 

 the proposed rule during fiscal year 1999. 



The portion of the proposed regulations based on 

 the consensus language was submitted on 19 Novem- 

 ber 1998 to the Office of Management and Budget for 

 its review before publication. The Service expects 

 that clearance to publish this portion of the regulations 

 will be forthcoming during the first quarter of 1999. 

 Once the proposed rule based on the consensus 

 language is published, the Service expects to focus on 

 completing the second portion of the proposed rule. 



Swim-with-the-Dolphin Regulations 



In a separate rulemaking initiated in 1995, the 

 Animal and Plant Health Inspection Service proposed 

 to regulate swim-with-the-dolphin programs, which 

 prior to the 1994 Marine Mammal Protection Act 

 amendments had been regulated by the National 

 Marine Fisheries Service. As discussed in previous 

 annual reports, the Commission commented on 17 

 March 1995 recommending, among other things, that 

 the Animal and Plant Health Inspection Service 

 conduct on-site inspections of current and proposed 

 facilities; clarify its authority to suspend a swim 

 program's authorization if the facility is found to be 

 deficient or is not adhering to the applicable regula- 

 tions; and clarify what constitutes adequate training 

 for dolphins in swim programs. On 4 September 

 1998 the Service published a final rule in the Federal 

 Register that amended the Animal Welfare Act regula- 

 tions to establish standards for swim-with-the-dolphin 

 programs. The rule, effective as of 5 October 1998, 

 included standards for the humane handling, care, and 

 treatment of cetaceans used in swim programs. It also 

 established requirements pertaining to the size of 

 enclosures in which swim programs can be conducted, 

 veterinary care programs, personnel qualifications, 

 handling the animals, and record-keeping. The 

 Service considered the Commission's comments, but 

 the recommendations noted above were not accepted. 



Through its definition of "swim programs," the 

 Service included "wading programs" as being covered 

 by the regulations. Wading programs are defined as 

 programs in which human participants interact with 

 dolphins by remaining stationary and non-buoyant. In 

 response to complaints ft'om facilities that were 

 subject to the regulations solely because they offered 

 wading programs, the Service on 14 October 1998 

 published a Federal Register notice announcing that, 

 until further notice, it would not apply those provi- 

 sions of the swim regulations pertaining to partici- 

 pant/attendant ratio and space requirements for the 

 interactive areas to these facilities. In the meantime, 

 the Service intended to examine separately the issue of 

 interactive space requirements and human partici- 

 pant/attendant ratios for wading programs in which 

 contact between humans and cetaceans is limited and 

 controlled, and in which movement of humans within 



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