From 1995–1996, the USDA’s Animal and Plant Health Inspection Service (APHIS) conducted a negotiated rulemaking, bringing together stakeholders of varying viewpoints in an attempt to hammer out consensus language to update the regulations governing the care and maintenance of captive marine mammals. The group agreed on language to update several of the regulatory provisions, but key aspects, such as space requirements, indoor and outdoor facilities, and water quality, were left to the agency to update in a traditional rulemaking process.
APHIS issued an advanced notice of proposed rulemaking on the nonconsensus language in 2002. On February 3—14 years later—the agency finally published a proposed rule. It is an understatement to call this long-awaited update to the captive marine mammal standards a grave disappointment.
The proposed rule essentially maintains the status quo for the captive marine mammal industry, despite the increasing realization among the general public and scientists alike that the status quo is unacceptable. The most glaring failure of the proposed rule is the agency’s intention to maintain the current space requirements. These space requirements were last updated over 30 years ago, yet the agency claims it is unaware of any science supporting an increase.
For orcas alone, this means the agency believes there is no science supporting an increase from the current requirement to provide a tank merely twice as wide and half as deep as an average orca is long. This amount of space does not even allow an orca to hang vertically in the water or to swim in a straight line for more than one tail stroke.