Improving Captive Marine Mammal Welfare in the United States: Science-Based Recommendations for Improved Regulatory Requirements for Captive Marine Mammal Care

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Acknowledgments

The authors wish to thank Ingrid Visser, Courtney Vail, and Cathy Williamson for their input during the drafting of this review.

Notes

1 7 U.S.C. § 2131.

2 Animal Legal Def. Fund v. Espy, 29 F.3d 720, 722 (D.C. Cir. 1994).

3 Id. (quoting 7 U.S.C. § 2143(a)(1)).

4 9 C.F.R. § 3.113 (2016) (concerning the humane handling, care, treatment, and transportation of marine mammals in captivity).

5 Animal Welfare; Marine Mammals, 81 Fed. Reg. 5629, 5630 (February 3, 2016).

6 Id.

7 Animal Welfare; Marine Mammals, 67 Fed. Reg. 37731 (May 30, 2002).

8 See, e.g., Marine Mammal Negotiated Rulemaking Advisory Committee; Establishment, 60 Fed. Reg. 27049 (May 22, 1995); see also Animal Welfare; Marine Mammals, 66 Fed. Reg. 239 (January 3, 2001).

9 7 U.S.C. § 2131(1) (1976).

10 Animal Legal Def. Fund v. U.S. Dep't of Agric., 789 F.3d 1206, 1216 (11th Cir. 2015) (quoting Consol. Bank, N.A., Hialeah, Fla. v. U.S. Dep't of Treasury, 118 F.3d 1461, 1464 (11th Cir. 1997)).

11 Humane, Merriam-Webster.com, http://www.merriam-webster.com/dictionary/humane (last visited December 31, 2016).

12 Humane, Cambridge Dictionary, http://dictionary.cambridge.org/us/dictionary/english/humane (last visited December 31, 2016).

13 Humane definition, Google, https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=humane+definition (last searched December 9, 2016).

14 16 U.S.C. § 1362(4) (2003).

15 See, e.g., Animal Welfare; Marine Mammals, 81 Fed. Reg. 5629, 5633 (February 3, 2016).

16 Id. at 5629.

17 See, e.g., International Whaling Commission, Report of the Standing Working Group on Environmental Concerns (2016) (citing numerous studies on health, disease, and noise, although not necessarily on the environmental conditions of natural habitat). Available at https://archive.iwc.int/pages/search.php?search=%21collection73&k= (click on Annex K).

18 Animal Welfare; Marine Mammals, 81 Fed. Reg. at 5639.

19 Id.

20 Id.

21 9 C.F.R. § 3.102(c) (2016).

22 Animal Welfare; Marine Mammals, 81 Fed. Reg. at 5634.

23 Id. at 5633.

24 9 C.F.R. § 3.102(a) (2016).

25 Animal Welfare; Marine Mammals, 81 Fed. Reg. at 5633.

26 Animal Welfare; Marine Mammals, 67 Fed. Reg. 37731 (May 30, 2002) (discussing possible new regulations).

27 Animal Welfare; Marine Mammals, 81 Fed. Reg. at 5635.

28 Resource-based (or engineering-based) standards are strictly quantitative, requiring specific management practices and specific facility conditions to be provided to the animals. Performance-based standards tend to be more qualitative, requiring management practices, facility conditions, or animal behavior to attain or demonstrate certain subjective states, such as “sufficient,” “adequate,” or “normal.” What constitutes these qualities is not universally agreed.

29 In Animal Legal Defense Fund, Inc. v. Glickman, the court generally acknowledged the inherent superiority of resource-based or “engineering standards” to performance-based standards in the AWA context with respect to primates. 204 F.3d 229, 232 (D.C. Cir. 2000); see also Joyce Tischler, A Brief History of Animal Law, Part II (1985–2011), 5 Stan. J. Animal L. & Pol'y 27, 65 (2012) (observing that “just a few years” after Animal Legal Defense Fund, Inc. v. Glickman, “the USDA itself admitted that its AWA [performance-based] regulations were inadequate to provide guidance to its own inspectors”). Citing the USDA Employee Opinions on the Effectiveness of Performance-Based Standards for Animal Care Facilities (APHIS) 1996, Tischler notes, “As early as … 1996, the USDA was aware that there were significant problems with the vague ‘standards’ established by its” 1991 final regulations for primates. “Facility inspectors were unable to determine whether the facilities were providing adequate enrichment to the primates, or whether the plans were actually being implemented.” Id.

30 9 C.F.R. § 1.1 (2016).

31 Animal Welfare; Marine Mammals, 81 Fed. Reg. at 5632.

32 Id.

33 9 C.F.R. § 3.105(c) (2016).

34 “‘Attending veterinarian’ means a person who has graduated from a veterinary school … [and] has received training and/or experience in the care and management of the species being attended.” 9 C.F.R. § 1.1 (2016).

35 9 C.F.R. § 3.111(c)(5) (2016).

36 9 C.F.R. § 3.102 (2016).

37 The Arctic Winter, U. of Guelph, http://www.arctic.uoguelph.ca/cpe/environments/climate/climte_present/temp/arc_winter.htm# (last visited November 23, 2016).

38 Summary of Polar Bear Population Status per 2014, Polar Bear Specialist Group, Species Survival Commission, The International Union for Conservation of Nature, http://pbsg.npolar.no/en/status/status-table.html (last visited November 23, 2016).

39 The Arctic Winter, supra note 37.

40 See Polar Bear Population Map, Polar Bear Specialist Group, Species Survival Commission, The International Union for Conservation of Nature, http://pbsg.npolar.no/en/status/population-map.html (last visited November 23, 2016) for a map of the 19 known polar bear populations and their distributions.

41 The Arctic Winter, supra note 37.

42 Animal Welfare; Marine Mammals, 81 Fed. Reg. 5629, 5634 (February 3, 2016).

43 Id.

44 9 C.F.R. § 3.103 (2016).

45 9 C.F.R. § 3.104 (2016).

46 See, e.g., SeaWorld Responds to Questions About Captive Orcas, “Blackfish” Film, CNN (October 28, 2013, 11:27 AM), http://www.cnn.com/2013/10/21/us/seaworld-blackfish-qa/, in which SeaWorld's Vice President of Communications, Fred Jacobs, stated the following in a CNN interview: “While a killer whale can and occasionally might travel as much as 100 miles in a day, it should be said that swimming that distance is not integral to a whale's health and well-being. It is likely foraging behavior…. Killer whales living in our parks are given all the food they require.”

47 9 C.F.R. § 3.104(a) (2016) (emphasis added).

48 Id.

49 Throughout this section of the review, the recommendation to allow a cetacean to move at least 10–12 tail strokes (a tail stroke is roughly equivalent to one body length) in a straight line, see 67 Fed. Reg. 37731 (May 30, 2002), is based on the authors’ common sense assessment of the taxon's natural history and what is reasonable from an engineering perspective.

50 Architectural documents available from the California Coastal Commission and also available from NAR on request.

51 Killer Whale (Orcinus orca), NOAA Fisheries, http://www.nmfs.noaa.gov/pr/species/mammals/whales/killer-whale.html (last visited November 12, 2016).

52 Animal Welfare; Marine Mammals, 81 Fed. Reg. 5629, 5652 (February 3, 2016).

53 Continental Shelf, Nat'l. Geographic Soc'y Encyclopedia, http://education.nationalgeographic.org/encyclopedia/continental-shelf (last visited January 21, 2017).

54 Georgia Aquarium Application to Import 18 Beluga Whales, NOAA Fisheries (September 29, 2015), http://www.nmfs.noaa.gov/pr/permits/georgia_aquarium_belugas.htm.

55 9 C.F.R. § 3.104(d)(3)(i) (2001) (emphasis added).

56 9 C.F.R. § 3.104(e) (2001).

57 9 C.F.R. § 3.106 (2001).

58 81 Fed. Reg. 5629 5638 (February 3, 2016).

59 9 C.F.R. §3.106(b)(3) (2001).

60 81 Fed. Reg. 5629, 5656 (February 3, 2016).

61 81 Fed. Reg. 5629, 5632 (February 3, 2016).

62 9 C.F.R. § 3.111 (suspended regulations for swim-with-the-dolphin programs where tourists are allowed to swim and come into physical contact with live marine mammals) (suspended April 2, 1999, see 64 Fed. Reg. 15918, 15912 (April 2, 1999)).

63 Disease-causing agents.

64 Pathogens that can pass from animals to humans and vice versa.

65 Food Safety (homepage), Centers for Disease Control & Prevention, http://www.cdc.gov/foodsafety/diseases/clostridium-perfringens.html (last updated October 8, 2015).

66 A location that animals can voluntarily retreat to that is free from human contact.

67 Animal Welfare; Marine Mammals, 81 Fed. Reg. 5629, 5651 (February 3, 2016).

68 Id. at 5640.

69 9 C.F.R. § 3.111(a).

70 Animal Welfare; Marine Mammals, 81 Fed. Reg. at 5656.

71 Id. at 5657.

72 Id. at 5641.

73 “There must be a sufficient number of session attendants (includes trainer, handler, or attendants) to effectively conduct the session in a safe manner,” and “[t]he number of public participants per marine mammal must not exceed the number that the attendant can monitor safely.” Id. at 5657 (emphasis added).

74 9 C.F.R. § 3.111(g)(1), (3).

75 9 C.F.R. § 3.111(f)(5)(i), (ii).

76 Animal Welfare; Marine Mammals, 81 Fed. Reg. at 5638–39.

77 However, even Scheifele et al. (2012, EL92) noted that “care should still be taken not to locate public address speakers (those used for the demonstrations and shows in aquariums) over the water, since the coupling of sound pressure is significant in the vertical plane.” Note, however, that they do not address the in-air component of the sound emitting from such public address speakers and its potential impact on cetaceans stationed by trainers or otherwise with their ears above water.

78 See 9 C.F.R. §§ 3.102–3.103.

79 Council Directive 1999/22/EC, art. 3, 1999 O.J. (L 094) (EU) (emphasis added) (related to the keeping of wild animals in zoos), http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A31999L0022.

80 Animal Welfare; Marine Mammals, 81 Fed. Reg. 5629, 5629 (February 3, 2016).

81 7 U.S.C. § 2131(1).