Redistributed as a Service of the National Library for the Environment*
|
Redistributed as a Service of the National Library for the Environment* |
|
|
|
Marine Mammals in Captivity: 97-517 ENR
NMFS/FWS ESA and
CITES Permits
NMFS and FWS are responsible for issuing MMPA and ESA permits for their respective species. APHIS is responsible for licensing holding facilities as well as setting standards for care and maintenance of marine mammals under the authority of the AWA. The major issues include 1) what standards and regulations are appropriate for capturing wild animals and for maintaining them in captivity, and 2) how are federal agencies to share and coordinate their respective roles? Permits, authorizations, or notifications are required to: capture marine mammals from the wild; release captive-held marine mammals to the wild; import live marine mammals; and handle beached and stranded marine mammals. 20 All MMPA permit applications are reviewed by the Marine Mammal Commission and its Committee of Scientific Advisors on Marine Mammals. Under the MMPA, a permit is necessary for capturing marine mammals from the wild for purposes of public display, scientific research, or enhancement of the species. 21 To obtain a permit authorizing capture, an applicant must meet applicable statutory requirements (16 U.S.C. 1374) as implemented through federal regulations (50 CFR 216.34 for NMFS and 50 CFR 18.31 for FWS). Since 1989, no permits authorizing capture have been issued by NMFS for purposes of public display. Advancements in captive husbandry and closures of some facilities have resulted in sufficient numbers of offspring or existing captive animals to meet the needs of the public display industry for many species. However, FWS has continued to issue permits for collecting marine mammals from the wild. Before a public display or research facility can release a captive marine mammal, a scientific research permit must be obtained from either NMFS or FWS. 22 To date, no permits have been issued by NMFS or FWS for the release to the wild of a marine mammal held for an extended period for research or public display purposes. Several unauthorized releases of captive marine mammals apparently were conducted before formal applications were filed. 23 The unauthorized release of a captive dolphin from Sugarloaf Lodge in the Florida Keys is currently under investigation by NMFS. 24 Permits are not required to release beached or stranded marine mammals after rehabilitation. Importing and Exporting Animals Exporting a captive marine mammal for public display requires an MMPA permit. In addition, 16 U.S.C. 1374(c)(9) requires that foreign receiving facility must:
Before a marine mammal may be exported from the United States, the foreign receiving facility must submit sufficient government-certified documentation to APHIS demonstrating the adequacy of the facilities. Based on this documentation, APHIS advises NMFS and FWS that comparable standards are in place. Although not expressly required by the MMPA, inspection of a foreign facility by a qualified individual (e.g., an APHIS inspector.) for comparability with AWA standards has been recommended by the MMC. 25 However, APHIS does not have jurisdiction under the AWA to require that a foreign facility submit to such an inspection as a condition for obtaining marine mammals from the United States. 26 NMFS and FWS do not, but could, require foreign facilities to be inspected. Some observers believe that if comparability determinations are based only on paper submissions, interpretations of standards (e.g., water quality or readiness of a facility to hold a marine mammal) can differ and lead to mistrust between U.S. and foreign agencies responsible for these animals. Thus, they maintain that a facility inspection would be helpful in validating paper submissions. An MMPA export permit contains conditions that must be maintained by the importing country -- that MMPA and AWA regulations be followed and that any transfers and deaths be recorded. The United States includes a comity statement with each export permit, requesting that the foreign government sign the statement, giving NMFS and FWS continued jurisdiction over the marine mammals at the foreign facility to which they are being exported. Such a statement allows NMFS or FWS to revoke the permit and/or seize the animals if the facility does not abide by U.S. criteria. There is disagreement between the public display industry and federal agencies as to how long a foreign facility is bound by a comity statement. While the public display industry believes that U.S. jurisdiction does not continue after an animal is exported, NMFS and FWS believe that their responsibility does not end when an animal is exported. 27 The MMPA requires a permit for importing a marine mammal. A U.S. public display facility receiving an imported animal must be certified as being in compliance with the 3 public display criteria. The permit process usually requires 90 days from application submission, including a 30-day public comment period. NMFS regulations governing the importing of marine mammals are found in 50 CFR 216. FWS regulations are found in 50 CFR 14. Marine mammals may not be imported or exported unless a FWS Form 3-177 (Declaration for Importation or Exportation of Fish or Wildlife) is filed with the FWS or U.S. Customs Service at the time of importation or exportation. Exports and re-exports of live marine mammals by air carriers must also conform to International Air Transport Association (IATA) regulations. FWS regulations for importing and exporting marine mammals are found in 50 CFR 12, 13, 14, and 18. Tracking Animals Transferred Between Domestic Institutions Under the MMPA, at least 15 days advance notice is to be provided to NMFS or FWS (depending upon the species) before any transfer between institutions of marine mammals for public display, scientific research, or species enhancement. 28 Recipients of transferred marine mammals must meet the three basic requirements for public display, described above, or meet requirements for holding these animals for scientific research or species enhancement. To assist with tracking, the MMPA directs the Secretaries of Commerce and the Interior to maintain an inventory of all marine mammals possessed under permits as well as their offspring. 29 NMFS record-keeping is computerized in a Marine Mammal Inventory Report (MMIR). Transfers of marine mammals under FWS jurisdiction are tracked through its Service-wide Permits and Information Tracking System (SPITS). Handling Beached and Stranded Animals A letter of authorization from NMFS or FWS is required for handling any live beached or stranded marine mammal, including those maintained in captivity for treatment and rehabilitation in anticipation of future release (16 U.S.C. 1379(h)). If an animal is determined to be unreleaseable, the rehabilitating facility may request to retain that animal or have that animal transferred to a public display or research facility. 30 Federal regulations for rehabilitated marine mammals are found in 50 CFR 216.27 for NMFS and in 50 CFR 18.22 for FWS. If a foreign facility wants to import an unreleaseable beached or stranded marine mammal from the United States, a letter of authorization from either NMFS or FWS is needed. The foreign receiving facility must: (1) meet standards that are comparable to the requirements for U.S. facilities under the MMPA (16 U.S.C. 1374(c)(9)); (2) submit sufficient documentation which is certified by the foreign government, to allow evaluation for comparability of captive care and maintenance standards (inspection of a foreign facility by APHIS personnel remains an option, subject to monetary and diplomatic arrangements); and (3) allow a 30-day public comment period. The public is thus given an opportunity to voice concerns regarding a foreign facility before a retained, stranded animal can be sent outside the United States. 31 FWS has specific stranding programs for manatees and southern sea otters, which include guidelines for the release of rehabilitated animals.32 APHIS's Animal Care (AC) office is responsible for enforcing the AWA in regard to: licensing, registering, and inspecting facilities that hold marine mammals in captivity; and care and maintenance standards for marine mammals held in captivity, including swim-with-the-dolphin (SWTD) programs. This office also receives and responds to complaints from the public questioning the care and maintenance of marine mammals. Licensing, Registering, and Inspecting Facilities For a public facility to be licensed and registered to hold marine mammals, it must meet all the requirements found in the applicable regulations (9 CFR Parts 2 and 3) established under the AWA. Among other things, the facility must pass an initial inspection by APHIS. Facilities are also subject to periodic re-inspections to allow continued monitoring of compliance. To date, there is no standardized written manual for facility inspection, but APHIS is developing a standard training manual for its employees, which will address the issue of inspecting marine mammal facilities. This manual is expected to be completed in late 1997. Care and Maintenance Standards APHIS regulations for the humane handling, care, treatment, and transportation of marine mammals are found in 9 CFR Chapter 1, Subchapter A, Part 3, Subpart E. These standards encompass the dimensions and construction of primary enclosures for marine mammals, sanitation, water and air quality, temperature, veterinary care, transportation and intermediate handling, and other standards relating to the humane handling, care, and treatment of marine mammals. All U.S. facilities that operate as dealers, exhibitors, or registered research facilities holding marine mammals must satisfy these requirements. AWA standards for the humane and healthful transport of marine mammals are found in 9 CFR 3.112-3.118. Many public display facilities exceed current AWA standards. AWA regulations, however, are being revised (see appendix B). Many standards are being re-examined in light of research findings and other information obtained since the original standards were promulgated in 1979. Among other things, APHIS is considering revising the criteria for indoor facility air and water temperatures, ventilation, and lighting (§3.102), outdoor facilities (§3.103), and water quality (§3.106), including bacterial standards, salinity, and filtration. Animal protection groups argue that the current AWA regulations are ambiguous, preventing clear and straightforward regulation and enforcement. They also argue that standards need to be more particularized to accommodate variations in individual species' needs. Animal protection advocates and others at the 1995-1996 Marine Mammal Negotiated Rulemaking Meetings expressed concerns that criteria for space, water temperature, water quality, lighting, and other features need to be revised to reflect species-specific differences. The public display industry agrees that there is a need to re-examine the standards to reflect new knowledge and is looking to provide background information on these standards. 33 Interim Holding of Captive Marine Mammals Every U.S. marine mammal public display facility must meet all AWA requirements for interim holding. As specified in 9 CFR 3.110(c), marine mammals may be temporarily held in enclosures, such as medical pools, treatment pools, and other isolated enclosures (which may be smaller than primary enclosures), under specific circumstances, such as medical necessity, transport, and training. Swim- With- The-Dolphin Programs The first swim-with-the-dolphin (SWTD) program was established in 1985 in Key Largo, Florida. There are six SWTD programs now in existence in the United States. 34 Each swim session under these programs begins with a pre-swim orientation describing dolphin natural history, training techniques, and safety rules to follow while in the water with the dolphins. 35 Prior to the 1994 MMPA amendments, NMFS regulated SWTD programs, which were held at AWA-licensed facilities that were required to meet all AWA regulations and standards as well as all NMFS permit conditions. Now these programs are solely under APHIS jurisdiction. Final APHIS standards for SWTD programs are currently being prepared, and publication is anticipated in late 1997. These standards will appear in 9 CFR 3.111. NMFS/FWS ESA and CITES Permits An applicant must, in writing, request an authorization from FWS or NMFS within 5 days before taking an ESA-listed marine mammal that is sick, injured, or orphaned, or if it is deceased and needs to be disposed, or if a dead animal can be salvaged and used for scientific study. NMFS and FWS may also issue permits to take ESA-listed marine mammals for purposes of scientific research, public display, education, enhancement of propagation or survival, or other special purposes consistent with the ESA. FWS or NMFS publishes a notice of each ESA permit application in the Federal Register, and provides 30 days for written comments. A CITES permit is required to import a CITES-listed marine mammal to the United States. FWS personnel at major U.S. ports inspect marine mammals entering the United States at those terminals. Both an export permit and an import permit are required for international transport of marine mammals listed on CITES Appendix I. Only a CITES export permit is required for animals listed on CITES Appendix II. For species listed on CITES Appendix III, the country listing the species would have to issue an export permit when exporting the animal, whereas only a certificate of origin would be required for export by countries that did not list the species. Enforcement of Permit Provisions and Standards APHIS inspectors enforce marine mammal standards (9 CFR 3.100-3.118 as well as some aspects of 9 CFR Part 2) through, among other things, unannounced facility inspections. APHIS policy is to inspect each facility at least once a year, or as often as necessary to monitor compliance, and respond to public complaints. During 1995, marine mammal facilities were visited an average of 1.8 times each. 36 APHIS is developing an inspection manual, which is expected to be completed in late 1997. Currently, APHIS inspectors are trained by existing personnel. FWS field and port agents are responsible for enforcing the provisions of CITES as well as those of the MMPA and ESA. Port agents are required to submit an annual summary of trade activities in listed species to the CITES Secretariat in Switzerland. NMFS requires notification prior to the start of any permitted activity (e.g., field work on or collection of marine mammals) to allow regional office personnel to monitor the activity, if desired. Other applicable regulations pertaining to NMFS enforcement are found in 15 CFR 904. Is the enforcement of permit provisions, standards, and regulations adequate? Animal protection advocates and others claim that enforcement of regulations and standards is inadequate to insure the welfare of captive marine mammals. The public display industry argues that, since captive marine mammals are living longer and reproducing, enforcement of regulations and standards is adequate. Captivity of marine mammals, especially cetaceans (whales and dolphins), continues to be a controversial issue for Congress, government agencies, marine mammal trainers and keepers, public display facility operators, scientists, animal protection groups, environmental organizations, and other interested citizens. Although 60 million visitors enjoy public display facilities annually, animal protection interests raise concerns on a variety of captivity issues. There are many opinions and arguments on both sides of this issue. The main issue is whether it is acceptable for marine mammals to be held captive, and if so, under what circumstances and for what purposes? The following sections provide some of the arguments supportive of each side of this issue. Arguments for Captivity and Public Display The public display industry argues that captivity of marine mammals provides four benefits: entertainment, conservation, research, and education. The following summarizes this perspective. Public display facilities provide entertainment that may generate public interest in marine mammals -- '"with their energy, their playfulness, and their apparent sense of fun, [marine mammals] convince us that they are happy to see us, even if we know that in truth the quizzical fixed smile is just a result of the unusual shape of the dolphin's jawline." 37 Many facilities have a variety of displays, such as fish, turtles, sharks, birds, and coral reef ecology. Marine mammal exhibits often seek to entertain the public by offering views of marine mammal behavior below the water surface. In addition, marine mammals may perform a variety of behaviors, such as flips, twirls, fluke waves, and synchronized jumps, in response to a trainer's signals. Audio-visual materials, interactive exhibits, and interpretive graphics often enhance the presentation. The training regimens for captive marine mammals often include behaviors designed to assist veterinarians in examining animals, thereby reducing the stress typically associated with physical restraint for medical examination and treatment. This allows facilities to make more extensive use of preventive medical protocols. Training of captive marine mammals also provides exercise for these animals; in the wild, marine mammals spend much of their time and energy foraging for food. Thus, training may redirect some of their attention that is no longer focused on such pursuits. 38 Public display facilities are resource centers that help people to expand their knowledge of "the importance of marine conservation, responsible human behavior, and the principles of ecology." 39 Conservation of marine mammals and their environment can be furthered by increasing public awareness of marine mammals and the marine ecosystem through lectures, exhibits, courses, and conservation programs for adults and children. Providing the opportunity for 60 million people to view marine mammals at public display facilities could arguably forestall much harassment of marine mammal populations in the wild. Many facilities have programs to assist stranded or sick marine mammals, which also can communicate the importance of conservation. Thus, a public display facility's presentation of captive marine mammals could communicate conservation values, focusing on how marine mammals can be rescued and rehabilitated. Public display proponents assert that captivity provides medical care, reliable food, and freedom from predators that animals in the wild do not enjoy. 40 Public display facilities are very concerned about marine mammal health, because healthier animals are less expensive to maintain and because the facilities have a financial interest in maintaining their animals and their facilities. Much of what has been learned regarding marine mammal behavior, biology, and physiology has been derived from scientific research on captive marine mammals, and can be important in better understanding how to sustain marine mammal populations in the wild. Greater knowledge about marine mammals can improve efforts to help the animals cope with natural and anthropogenic risks and threats. Marine mammals can be difficult to observe in the wild, and captive settings offer opportunities to develop field research techniques. Successful breeding and husbandry programs for the more common marine mammal species currently on display (e.g., bottlenose dolphins and California sea lions) have negated much of the need for some species to be removed from the wild for public display. 41 Public display proponents assert that captive-born marine mammals may be more suitable for captivity, as they have not experienced the stress of capture and removal from their social group. Proponents of captivity assert that captive-born and -reared marine mammals are more likely to survive in captivity than in the wild, since these animals are less likely to have developed the behavioral traits necessary to forage and survive in the wild. In addition, many coastal public display facilities rehabilitate stranded and sick marine mammals for eventual release back into the wild. Public display proponents assert that the care of these animals has helped scientists and managers learn about marine mammal diseases and how to cure them. The expense of care for stranded animals is generally underwritten by each display facility. Education of the public about marine mammals has made people feel strongly about protecting the animals and their environment. The various shows, lectures, exhibits, and courses at public display facilities are all part of their educational programs. A national Roper poll released in 1995 reported that 9 out of 10 Americans believe that public display facilities provide a valuable means of educating the public. 42 Public display can elevate peoples' understanding of marine mammals and the marine ecosystem. Many people who live away from the coasts might never be exposed to these animals without visiting a public display facility. Arguments Against Captivity and Public Display Animal protection groups argue that the entertainment, conservation, research, and education benefits derived from captive marine mammals are not sufficient to justify their captivity. Some of these groups believe that captivity of marine mammals should not be permitted, "that keeping marine mammals captive in concrete tanks is a form of cruelty, morally equivalent to imprisoning innocent human beings" 43 since, in the wild, marine mammals spend much of their time foraging and some may travel as much as 100 miles daily and dive to substantial depths. 44 In addition, animal protection groups argue that taking marine mammals (particularly cetaceans) from the wild may jeopardize natural populations and disrupt their social structure, and that captivity is harmful to the animals. 45 These concerns generally address the welfare of individual captive animals or local populations rather than entire species. Approximately $45 million a year is raised by animal advocates to free marine mammals in captivity. 46 Animal protection interests assert that training for shows and for medical purposes cannot equal or replace the activity or the stimulation they get in the wild. Further, captivity is not without risk to humans that associate themselves with these animals; this includes risks to trainers and the public. 47 Animal protection groups do not believe that maintaining marine mammals in captivity contributes to species conservation. Although survival rates of captive marine mammals have improved, some species (e.g., orcas) may still have lower survival rates than they do in the wild. 48 Tanks (e.g., concrete tanks and chemically treated water) do not offer natural habitats, and marine mammals are not able to forage for food. In addition, captive marine mammals seldom get to choose with whom they share their surroundings, as they do in the wild. Thus, captivity breaks social bonds formed by these animals. In some instances, rescued animals could be used in captivity, instead of wild-caught marine mammals. Animal protection groups believe that the results of research conducted on captive marine mammals may not be applicable to populations in the wild. The habitats of captive marine mammals are not as rich and diverse as their wild environment. This can lead to captive behaviors significantly differing from those observable in the wild. Some cetaceans are known to travel in pods, where they have long-term social bonds, and can dive to depths of 300 meters or more. 49 One critic contends that "[N]othing can be learned about dolphins' behavior in captivity because captivity itself so alters how they act." 50 Animal protection interests assert that most, if not all, of the educational benefits of captivity can be obtained from books, videotapes, field trips to experience marine mammals in the wild, and "virtual reality" presentations. 51 They view the display of marine mammals as counter-educational, because it presents a distorted view of these animals. The public sees animal behavior that is not characteristic of what these animals would display in the wild. Endnotes 20 Although not relevant to this report, these agencies are also responsible for regulating trade in marine mammal parts and products (e.g., trophies, skins, ivory). 21 16 U.S.C. 1374 22 16 U.S.C. 1374. However, the necessity that such a permit be obtained for the release of animals that were captured illegally is currently disputed by some animal protection groups. 23 NMF S, Office of Protected Resources. "Former Navy Dolphins Rescued in Florida Keys." MMPA Bulletin, no.9 (Sept./Oct. 1996): 3. 24 Personal communication with Joel Lapissonniere, Office of the General Counsel, NOAA, Silver Spring, MD, on Mar.13, 1997. 25 Marine Mammal Commission. Annual Report to Congress, 1995. Washington, DC: Feb. 29,1996. p.2O7. 26 Marine Mammal Commission. Annual Report to Congress, 1996. Washington, DC: Jan. 31,1997. p.213. 27 Ibid. 28 16 U.S.C. 1374(c)(2)(E). 29 16 U.S.C. 1374(c)(10). 30 For example, if the animal is too young to survive in the wild or is physically impaired such that survival in the wild is unlikely. 31 There is no public comment period provided if an already captive animal is to be sent to a foreign facility. 32 Personal communication with Margaret Tieger, Branch Chief of Permits, U.S. Fish and Wildlife Service, Arlington, VA, on Dec.10, 1996. 33 Marine Mammal Negotiated Rulemaking Meeting, July 8-10,1996, USDA Center, Riverdale, MD. 34 Personal communication with Barbara Kohn, D.V.M., APHIS, USDA, Riverdale, MD, on March 18,1997. 35 U.S. Dept. of Commerce, National Marine Fisheries Service. Final Environmental Impact Statement on the Use of Marine Mammals in Swim-With-The-Dolphin Programs. Washington, DC: April 1990. 98 p. 36 Personal communication with Barbara Kohn, D.V.M., APHIS, USDA, Riverdale, MD, on July 16,1996. 37 Catton, Chris. Dolphins. New York, NY: St. Martin's Press, 1995. p. 128. 38 Ibid., p. 129. 39 Alliance of Marine Mammal Parks and Aquariums. The Role of Education at Marine Life Parks, Aquariums, and Zoos. Alexandria, VA: October 1993. p 3. 40 Riley, David. "Our Love of Dolphins has Turned into a Questionable Affair." Smithsonian, vol.23, no.1 (Jan.1993): 63. 41 However, some public display interests suggest that it may be necessary to capture marine mammals from the wild to maintain genetic diversity in the captive breeding population. 42 Alliance of Marine Mammal Parks and Aquariums. Annual Report to Congress, 1995. Alexandria, VA: 1996. p.4. 43 Brownlee, Shannon. "Ambassadors and Their Species." Pacific Discovery, vol.39, no.4 (Oct.-Dec. 1986): 3. 44 Rose, Naomi A. "The Well-being of Captive Marine Mammals: Concerns and Conflicts." The Well-being of animals in Zoo and Aquarium Sponsored Research. Greenbelt, MD: Scientists Center for Animal Welfare, October 1996. p.67. 45 Ibid., p.9. 46 Watson, Captain Paul. "The Cult of Animal Celebrity." Animal People, June 1995. p. 15. 47 Risks can include biting, ramming with the rostrum, slapping with flukes, or sexual aggression. See Hoyt, Erich. The performing Orca-Why The Show Must Stop. An In-Depth Review of the Captive Orca Industry. Avon, Bath, England: Whale and Dolphin Conservation Society, 1992. p.vii; Samuels, Amy, and Trevor Spadlin. Quantitative Behavioral Study of Bottlenose Dolphins in Swim-With-the-Dolphin Programs in the United States. Silver Spring, MD: National Marine Fisheries Service, Apr.25, 1994. p.1. 48 T.H. woodley, J.L. Hannah, and D.M. Lavigne. A Comparison of Survival Rates for Captive and Free-ranging Bottlenose Dolphins (Tursiops truncatus), Killer Whales (Orcinus orca) and Beluga Whales (Delphinapteras leucas). Draft Tech. Rept No. 93-01. Guelph, Ontario, Canada: International Marine Mammal Association, Inc., 1994. p 1. 49 Wursig, Bernd. "Cetaceans." Science, vol.244 (June 30, 1989): 1550,1552. 50 Brownlee, Shannon. "Ambassadors and Their Species." Pacific Discovery, v.39, no.4 (Oct.-Dec. 1986): 9. 51 Hoyt, Erich. The Performing Orca - Why The Show Must Stop. An In-Depth Review of the Captive Orca Industry. Avon, Bath, England: Whale and Dolphin Conservation Society, 1992. 102 p.
|
CRS Reports Home
|
||
 |
National Council for Science and the Environment 1725 K Street, Suite 212 - Washington, DC 20006 202-530-5810 - info@NCSEonline.org |
 |
