Animal Welfare Information Center Newsletter, Summer 1994, Vol. 5, no. 2 *************************

Marine Mammal Welfare: The Role of USDA, APHIS

Barbara Kohn, DVM
Animal Care Staff
Regulatory Enforcement and Animal Care

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The Past

The U.S. Department of Agriculture (USDA), Animal and Plant Health Inspection Service (APHIS) was mandated by Congress to develop regulations and standards needed to enforce the Laboratory Animal Welfare Act of 1966. This was the predecessor of the current Animal Welfare Act (AWA, 7 U.S.C. §§ 2131 et. seq.) and the beginning of APHIS' role in enforcing its legislated provisions. As written, the AWA applies to all warmblooded animals in commerce used for research, exhibition, or the pet trade. The Secretary of Agriculture has been empowered to designate which animals and activities will be regulated. For example, retail pet stores are exempt from licensure, while wholesale trade in pet animals is regulated. Amendments to the AWA and revisions of the regulations and standards have been periodically undertaken to accommodate the expansion of covered animals and activities.

APHIS first proposed to regulate marine mammals in captivity, under the AWA, in 1978. This action was undertaken at the request of the Marine Mammal Commission (MMC), the National Marine Fisheries Service (NMFS), and organized sectors of the marine mammal industry. Regulations and standards were developed by APHIS in close association with NMFS, MMC, marine mammal exhibitors, and the American Zoo and Aquarium Association (AZA, formerly AAZPA). A Memorandum of Agreement (MOA) was signed in 1979 by APHIS, NMFS, and the U.S. Fish and Wildlife Service (F&WS). Under this agreement, AWA standards and regulations were acknowledged to be the evaluation criteria for captive care and maintenance requirements for marine mammals, and APHIS was designated to provide the inspection and enforcement workforce to implement the regulations.

Advances in scientific knowledge and husbandry practices, as well as requests from the industry, prompted a revision of the APHIS captive care and maintenance standards for marine mammals in 1984. The most prominent change made at that time was an increase in the space requirements for cetaceans (whales and dolphins). These standards are still in effect today.

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The Present

MMC and NMFS requested review and revision of the 1984 regulations and standards. This process was first initiated in 1990, but a Governmentwide moratorium on regulatory changes suspended progress on this endeavor. On July 23, 1993, APHIS published an Advanced Notice of Proposed Rulemaking for the captive care and maintenance standards for marine mammals. The comment period on this advanced notice closed October 6, 1993. Thirty-seven comments were received and reviewed. These comments are being used in developing interest areas which need to be addressed during the regulatory review process.

Revision of the captive care and maintenance standards and regulations for marine mammals (9 CFR, Subchapter A, Part 3, Subpart E) is currently proceeding under the Negotiated Rulemaking (reg-neg) process. The negotiated rulemaking process is governed by the Federal Advisory Committee Act (FACA). During the first phase of this process the convener interviews potential negotiated rulemaking panel participants, formulates an issues list, and, if proceeding with the reg-neg process is deemed feasible (i.e., likely to succeed), recommends a list of organizations to participate on the panel. This panel is limited by law to no more than 25 members. Expert advisors are allowed to accompany the panel members at each session. All reg-neg sessions will be announced in the Federal Register and are open to the public. Phase 1 is currently underway, and should be completed by August 1994.

Formal reg-neg sessions are expected to begin early in fiscal year 1995. This second phase of the reg-neg process involves a facilitator to mediate the sessions in which issues and specific regulations are addressed and a consensus is reached. This consensus is used to revise or amend the appropriate regulations. A proposed rule (revised regulations and standards) is expected to be published in mid-1995. The proposed rule will undergo a comment period, and a final rule will be published after the comments have been evaluated and addressed.

In addition to the current regulations and standards review, APHIS faces several procedural and jurisdictional changes under the Marine Mammal Protection Act (MMPA) reauthorization. The MMPA was amended and reauthorized by Congress on April 25, 1994, and signed into law on April 30, 1994. MMPA amendments which affect APHIS deal primarily with captive display issues. Under the new MMPA, a NMFS permit is still required for the acquisition and holding of marine mammals for display, research, or species enhancement purposes. [See correction below.] NMFS will continue to maintain the captive marine mammal inventory and confiscate animals when permit conditions are violated. Transfer and transport of captive marine mammals must meet the conditions set in the MMPA, and prior notification must still be given to NMFS. Sole jurisdiction over captive care and maintenance conditions and standards has been delegated to APHIS, to be administered under the AWA. Several areas which need to be addressed under the AWA regulations and standards as a result of the MMPA reauthorization include interactive programs, primarily "swim-with-the-dolphin" (SWTD) programs, animal transfer protocols for assuring AWA compliance of the receiving facility, and facility assurance of foreign facilities. Transitional procedures are being developed to implement the MMPA amendments while safeguarding the welfare of the animals.

[Correction: A correction to this paragraph was printed in the Newsletter's next issue, Vol. 5 No. 3:

In the AWIC Newsletter, Vol.5 #2, Summer 1994, the article Marine Mammal Welfare: The Role of USDA, APHIS, by Dr. Barbara Kohn, incorrectly states (p. 7) that "Under the new MMPA [Marine Mammal Protection Act], a NMFS [National Marine Fisheries Service] permit is still required for the acquisition and holding of marine mammals for display, research, or species enhancement purposes." This statement has been revised to read "Under the new MMPA, a NMFS permit is NOT required for the acquisition and holding of marine mammals for display, research, or species enhancement purposes, provided that the animals are already members of the captive population." APHIS regrets the error and any problems this may have caused.]

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The Future

APHIS will continue to take a leading role in the welfare of marine mammals held for display, research, and/or species enhancement. While the reauthorization of the MMPA has legislated that standards promulgated under the AWA be used as the sole regulations for care and maintenance of marine mammals in captivity, this will not significantly impact the day-to-day enforcement efforts of APHIS. This has been part of the APHIS role in marine mammal issues since the signing of the MOA in 1979. Unannounced inspections will remain the cornerstone of enforcement of the AWA. As scientific knowledge about marine mammals increases, APHIS will continue to revise the regulations and standards which protect these animals in captivity.

The future will be bringing changes, however. As previously discussed, the current regulations and standards for marine mammals under the AWA are undergoing revision. The outcome of the negotiated rulemaking process is not predictable. It is the consensus positions developed by the reg-neg panel that will provide the basis for the proposed rule. Issues which will be addressed include space requirements, psychological well-being and social grouping of animals, water quality parameters to be monitored, noise levels as they affect the animals, water temperature ranges for certain (or all) species, recordkeeping requirements, animal identification, animal transfers and transportation, interactive programs such as swim-with-the-dolphin programs, and veterinary care. The use of negotiated rulemaking to address these issues will result in strong, balanced regulations that ensure the health and well-being of marine mammals in display and research facilities. It allows APHIS to directly incorporate input from experts (scientific, academic, industry) and interested public and private organizations designed to protect these animals.

The field of animal welfare, in general, continues to make progress through increased scientific knowledge and advocacy. Consideration of psychological factors, such as environmental enrichment and family/social groupings, is important to all species held in the care of humans. This includes marine mammals. APHIS is continuing to incorporate this area wherever possible into the development and revision of the animal welfare regulations. To aid in this endeavor, APHIS not only makes use of recognized experts in this field, but it is working to develop the same expertise in its own personnel.

Specifically related to the reauthorization of the MMPA, APHIS faces several immediate changes and challenges. Among the situations which were not previously covered by the AWA regulations are the SWTD programs, transfer of animals to foreign facilities, and domestic transfers of marine mammals to facilities that are in compliance with the AWA. The SWTD programs were previously regulated by NMFS through the permit criteria for these programs. APHIS is now developing an interim rule to address these programs. This interim rule is expected to be published in the Federal Register in August or September of this year. The rule will remain in effect until the publication of the final rule developed for Subpart E through the negotiated rulemaking discussed above.

Changes in the procedures and requirements for transfers of animals (both domestic and foreign) have resulted in the need for APHIS to address the issue of certifying that the receiving facilities are in compliance with the AWA and have the facilities and personnel to properly care for the animals (domestic transfers), or maintain animal care standards which are equivalent to APHIS standards (foreign transfers). The methods and protocols for developing these assurances are currently being developed.

The coming year(s) looks to be interesting and full of change. APHIS will work to obtain a balanced input from all stakeholders and interested parties in order to establish regulations and standards that ensure the continuing health and well-being of all marine mammals under its jurisdiction.

(For related articles see AWIC Newsletter April-June 1992 Vol. 3, No. 2.)

This article appeared in the Animal Welfare Information Center Newsletter, Volume 5, Number 2, Summer 1994

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