Marine Mammals in Captivity: Background and Management Issues in the United States

Patricia Lawson, Intern,
Environment and Natural Resources Policy Division

Eugene H. Buck, Senior Analyst
Environment and Natural Resources Policy Division

May 5, 1997

97-517 ENR

TABLE OF CONTENTS:

Summary
Introduction
Development of Federal Legislation

Animal Welfare Act
Marine Mammal Protection Act
Endangered Species Act

International Regulation
Permitting and Licensing

NMFS/FWS MMPA Permits

Capture from the Wild
Release of Captive Animals
Importing and Exporting Animals
Tracking Animals Transferred Between Domestic Institutions
Handling Beached and Stranded Animals

APHIS AWA Standards

Licensing, Registering, and Inspecting Facilities
Care and Maintenance Standards
Interim Holding of Captive Marine Mammals
Swim-With-The-Dolphin Programs

NMFS/FWS ESA and CITES Permits
Enforcement of Permit Provisions and Standards
Controversy over Captivity

Arguments for Captivity and Public Display
Arguments Against Captivity and Public Display

Conclusion

Appendix A: Acronyms
Appendix B: Regulations Enforcing the Animal Welfare Act Discussed at Meetings on Revising the Regulations through Negotiated Rulemaking

SUMMARY

Maintenance of marine mammals in captivity is a topic of interest for marine mammal keepers at public display facilities, research scientists, environmental and animal protection groups, government agencies, and others. Holders of marine mammals have a financial stake in protecting animals held captive as part of their research and/or business goals.

Taking marine mammals from the wild and maintaining them in captivity were not extensively regulated before the Marine Mammal Protection Act (MMPA) in 1972. Later, marine mammal care and handling standards were developed under the Animal Welfare Act (AWA). Three federal agencies regulate various aspects of obtaining and holding marine mammals captive for public display, scientific research, or species enhancement (e.g., taking, importing, exporting, care, maintenance, and tracking): the Animal and Plant Health Inspection Service (APHIS, Department of Agriculture); the Fish and Wildlife Service (FWS, Department of the Interior); and the National Marine Fisheries Service (NMFS, Department of Commerce). The MMPA also established the independent Marine Mammal Commission (MMC) to provide recommendations on federal activities pertaining to marine mammals, including those in captivity.

The AWA directs APHIS to promulgate regulations for the handling, housing, care, treatment, and transportation of animals. In 1979, APHIS promulgated regulations to address the specific needs of marine mammals in captivity. APHIS recently undertook a revision of these regulations (9 CFR 3.100-3.118). APHIS held three Marine Mammal Negotiated Rulemaking Meetings, one in 1995 and two in 1996, to attempt to develop a consensus on proposed regulations and standards to implement the AWA for marine mammals. NMFS and FWS share the responsibility for protecting marine mammals under the authority of the MMPA and the Endangered Species Act. NMFS and FWS have jurisdiction over different species of marine mammals. They are responsible for various permits or authorizations.

Proponents of maintaining marine mammals in captivity argue that they provide people an opportunity to learn about these animals and their environment. Opponents of captivity argue that, given the nature and needs of these animals, it is immoral to maintain them in captivity, and that human beings learn very little from captive animals because they behave differently from animals in the wild.

Later in 1997, APHIS anticipates publishing proposed revisions to their AWA regulations on the handling, housing, care, treatment, and transportation of marine mammals. The controversy over holding marine mammals in captivity generates public interest in marine mammal policy and is likely to stimulate debate during MMPA reauthorization, which may begin during the second session of the 105th Congress.

Introduction

Public display of marine mammals is a business in many states, and public display facilities often are part of a public or private zoo. Although initial motives for capturing these animals may have been curiosity, marine mammals have considerable public appeal and some operators have been successful in combining research, educational, and business goals. Marine mammals are held in captivity in at least 36 countries for public display, education, entertainment, swim-with-the-dolphin programs, and scientific research. ¹ Marineland of Florida in St. Augustine, which opened in 1938, was the world's first large oceanarium. Approximately 109 facilities in North America currently display 1,459 marine mammals.² At least 22 species of marine mammals are currently held in captivity in the United States; the most abundant species in marine parks is the California sea lion (557 animals), followed by bottlenose dolphins (332 animals) and harbor seals (248 animals).³ In 1995, about 60 million people visited U.S. facilities holding marine mammals.⁴

Before the 1970s, no federal law addressed how many marine mammals could be collected, how they were to be collected and transported, or how these animals were to be cared for and maintained. Concerns about threats to and declines in wild populations were among the worries that led to regulation. The 1972 Marine Mammal Protection Act (MMPA) provides for the conservation and management of marine mammals under U.S. jurisdiction, and authorizes and regulates the collection of animals from the wild for scientific research, public display, education, or to enhance the survival of a species or stock. The MMPA provides a specific exception authorizing public display of these animals. The 1973 Endangered Species Act (ESA) was enacted to protect rare, threatened, and endangered species (including some marine mammals) and their habitats. Both domestic and foreign species are afforded protection under the ESA. The ESA also implements the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), which governs international trade in listed species. In 1979, Animal Welfare Act (AWA) regulations and standards were promulgated to address the specific needs of marine mammals in captivity. Currently, three federal agencies oversee the various aspects of marine mammal care and conservation. The Animal and Plant Health Inspection Service (APHIS) administers and enforces the AWA. Together, the National Marine Fisheries Service (NMFS) and the Fish and Wildlife Service (FWS) jointly administer and enforce the MMPA and the ESA.

This report discusses federal legislation, regulations including permit provisions, and standards as well as international efforts relevant to the captive holding of marine mammals. In addition, a final section of the report reviews many of the arguments for and against maintaining marine mammals in captivity.

Development of Federal Legislation

Animal Welfare Act

On August 24, 1966, President Lyndon Johnson signed the Laboratory Animal Welfare Act (P.L. 89-544), renamed the Animal Welfare Act on December 24, 1970 (AWA; 7 U.S.C. 2131 et seq.). This Act directs the Secretary of Agriculture to establish federal minimum regulations and standards for the care and maintenance of regulated animals, including marine mammals. The Secretary has delegated to APHIS the responsibility for regulating facilities to assure humane care and treatment of animals during transport and while in captivity. Regulations under the AWA specific to marine mammals were first promulgated on September 20, 1979, and are found in 9 CFR 3.100-3.118. From 1988 through September 1996, the Regulatory Enforcement and Animal Care (REAC) section of APHIS was responsible for administering and enforcing AWA regulations. As of October 1996, Animal Care (AC) became a separate program within APHIS, which now administers and enforces the AWA.

In 1995 and 1996, APHIS held three Marine Mammal Negotiated Rulemaking Advisory Committee meetings under the authority of the Federal Advisory Committee Act (P.L. 92-463). ⁵ APHIS's goal was to bring together the different primary stakeholders (public display community, scientific research community, animal protection community, and affiliated federal agencies) to review, discuss, and reach consensus on regulations and standards under the AWA for the handling, care, maintenance, and transport of marine mammals. Consensus-building was seen as an effective tool for developing regulatory solutions to address the concerns that affect diverse and often competing marine mammal stakeholders. ⁶ Work was completed on 12 of the 18 sections (see appendix B for the status of this effort), ⁷ and the consensus proposal is scheduled for publication in the Federal Register during the summer of 1997. Language for the remaining sections on which consensus was not reached ⁸ is scheduled to be published in the Federal Register as a separate proposed rule later in 1997.

Marine Mammal Protection Act

On October 21, 1972, the Marine Mammal Protection Act (MMPA; 16 U.S.C. 1361 et seq.) was signed into law as P.L. 92-522. This Act is the principal federal legislation providing for the conservation and management of marine mammals under U.S. jurisdiction, and established a moratorium on the "taking" of marine mammals ⁹ subject to certain exceptions. The Act, as amended, authorizes the collection of animals from the wild for scientific research, public display, or to enhance the survival of a species or stock. Under the MMPA, the Secretary of Commerce is responsible for managing members of the order Cetacea (whales and porpoises) and all pinnipeds other than walruses (seals and sea lions). The Secretary has delegated management authority to the National Oceanic and Atmospheric Administration (NOAA) which has further delegated most responsibilities under the Act to NMFS. The Secretary of the Interior is responsible for all other marine mammals -- sea otters, walruses, polar bears, dugongs, and manatees -- and has delegated management authority to the FWS for these species. ¹⁰

Prior to the 1994 MMPA amendments (P.L. 103-238), both NMFS and FWS interpreted the MMPA as allowing the inclusion of permit conditions addressing captive maintenance of marine mammals when authorizing the removal of marine mammals from the wild. However, the 1994 amendments provided that APHIS has sole responsibility over the care and maintenance of marine mammals once in captivity, and specified that an MMPA permit is not required for transferring marine mammals between facilities as long as the recipient meets the criteria applicable to the permittee. ¹¹ NMFS and FWS must maintain basic inventory records of all marine mammals held in captivity in the United States.

The MMPA established the Marine Mammal Commission (MMC) to. among other things, "recommend to the Secretary [of Commerce and the Interior] and other federal officials such steps as it deems necessary or desirable for the protection and conservation of marine mammals." ¹² The Commission reviews ah applications for MMPA permits for scientific research, public display, and enhancement of the survival or recovery of a species or stock as well as Some, but not all, letters of intent under the general authorization for level B harassment ¹³ and requests for authorizations to export or incidentally take marine mammals. The Commission consists of three Commissioners appointed by the President and knowledgeable in the fields of marine ecology and resource management, who serve part-time. The Commission has a full-time staff, and an advisory committee, the Committee of Scientific Advisors on Marine Mammals, which consists of nine scientists who are knowledgeable in marine ecology and marine mammal affairs.

The MMPA requires permits for taking any marine mammal from the wild for public display, scientific research, or enhancement of the species. The 1994 MMPA amendments require that facilities holding marine mammals for public display:

• offer education or conservation programs based on professionally recognized standards of the public display community,

• be registered or hold a license under the Animal Welfare Act, and

• be open to the public on a regularly scheduled basis and to which access is not limited other than by charging an admission fee. ¹⁴

The American Zoo and Aquarium Association (AZA) and the Alliance of Marine Mammal Parks and Aquariums (AMMPA) together represent approximately 60% of the facilities holding marine mammals in the United States. On October 6, 1994, NMFS announced education program standards submitted by the AZA and the AMMPA as a model of professionally recognized standards. Non-members of these groups have the option of either following the AZA/AMMPA guidelines or submitting for approval alternative guidelines for their education or conservation programs. ¹⁵

Endangered Species Act

The 1973 Endangered Species Act (ESA; 16 U. S. C. 1531 et seq.) requires the Secretaries of Commerce and of the Interior to identify species that are endangered or threatened, and requires the Secretaries to designate critical habitat for listed species except in certain circumstances. ¹⁶ This Act prohibits taking, importing, exporting, selling, transporting, or possessing any illegally acquired species listed as endangered under this Act, subject to certain exceptions. One exception allows the Secretaries to issue permits for scientific research or species enhancement. The ESA also requires the Secretaries to prepare recovery plans for listed species (i.e., a plan designed to bring about the recovery and eventual de-listing of the species). Finally, the ESA implements the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) in the United States.

International Regulation

The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is the principal global agreement regulating imports and exports of endangered and threatened species. CITES entered into force on July 1, 1975, ¹⁷ and, as of December 1996, had 134 signatory nations, including the United States. ¹⁸ The Convention restricts imports and exports of certain species agreed to by the Parties. A CITES permit is required when importing or exporting marine mammals (including their parts and products as well as marine mammals destined for captivity) that are listed in the CITES appendices. CITES regulates the trade of listed animals that are taken from the wild as well as those born or bred in captivity. The FWS cooperates with APHIS, NMFS, and the Customs Service (Department of the Treasury) to enforce the Convention in the United States. FWS inspectors at major ports of entry into the United States physically inspect incoming shipments.

Protected species are listed in Appendices 1,11, and III of CITES. Appendix I includes species threatened with extinction that are or may be affected by trade; international trade in these species is strictly regulated and a permit may not be issued unless the government of the importing country is satisfied that the specimen would not be used for primarily commercial purposes. Appendix II includes species that, although not presently threatened with extinction, may become so unless their trade is regulated to avoid uses incompatible with their survival, and other species of similar appearance that must be regulated so that trade in species at risk can be effectively controlled. ¹⁹ Appendix III includes species that any Party identifies as being regulated domestically to prevent or restrict exploitation, and as needing the cooperation of other Parties to control trade. Wildlife and wildlife products imported to or exported from the United States generally must pass through one of several ports designated by FWS for clearance by an FWS inspector. However, live marine mammals are not required to enter or leave the United States from specific ports.

The list of species regulated under CITES and regulations applicable to these listed animals are presented in 50 CFR Part 23. Most marine mammal species appear in Appendix II, with the exception of 19 species that are listed in Appendix I and walrus (from Canada) on Appendix III.

ENDNOTES:

1 Argentina, Australia, Austria, Bahamas, Belgium, Bermuda, Canada, Columbia, Finland, French Polynesia, France, Germany, Hong Kong, India, Indonesia, Ireland, Israel, Italy, Japan, Korea, Malaysia, Mexico, Netherlands, New Zealand, Norway, Portugal, Romania, Russia, Singapore, South Africa, Spain, Sweden, Switzerland, Taiwan, United Kingdom, and the United States.

2 Alliance of Marine Mammal Parks and Aquariums. Annual Report to Congress, 1995. Alexandria, VA: 1996. p.5.

3 Ibid.

4 Personal communication with Joseph Geraci, D.V.M., Ph.D., National Aquarium, Baltimore, MD, on July 24,1996.

5 Federal Register No. 98 (May 22, 1995): 27050

6 Ibid.

7 It should be noted that many of the more controversial issues were not resolved. Thus, the number of sections on which consensus was achieved does not reveal the full picture.

8 Because the negotiated rulemaking exercise was truncated, it is unknown whether consensus could have been reached on these additional issues.

9 The MMPA defines taking of marine mammals as "to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal."

10 16 U.S.C. 1362(12).

11 U.S. Dept. of Commerce, National Oceanic and Atmospheric Administration. Marine Marnn~al Protection Act of 1972 Annual Report, January 1, 1994 to December 31, 1994. Washington, DC: June 9,1996. p.3-7.

12 16 U.S.C. 1402(a)(4).

13 The MMPA defines level B harassment as "any act of pursuit, torment, or annoyance which bas the potential to disturb a marine mamma] or marine mamm~ stock in the wild by causing disruption of behavioral patterns including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering."

14 16 U.S.C. 1374(c)(2).

15 59 Federal Register No. 193 (Oct. 6, 1994): 50900.

16 For more information on the ESA and current issues, see CR5 Report 1B95003, Endangered Species: Continuing Controversy.

17 U.S. Dept. of the Interior, Fish and Wildlife Service. Fish & Wildlife Facts. FWSF-039. Washington, DC: October, 1985. p.1.

18 Personal communication with Margaret Tieger, Branch Chief of Permits, U.S. Fish and Wildlife Service, Arlington, VA, on Dec. 10,1996.

19 While Appendix I is roughly comparable to "endangered" under the ESA, Appendix II is not. Species may be listed under Appendix II as a preventive measure, well before the species' status is serious. There is no parallel for Appendix III under the ESA.