After years of bureaucratic inertia, the Department of Agriculture is finally updating their regulations for the keeping of captive dolphins and whales. Now, for the first time ever, regulations are being proposed for swim with dolphin programs, along with other regulations for captive cetacean welfare generally.
In order for facilities to publicly display captive dolphins and whales, the US National Marine Fisheries Service must issue a permit to the aquarium. However, the day-to-day welfare and keeping of marine mammals has been delegated by Congress (at the behest of the captivity industry) to the Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS), an agency that is chiefly concerned with livestock and crops.
APHIS originally established regulations for captive marine mammals in 1979 under the provisions of the Animal Welfare Act. These regulations address the humane handling, care, treatment, and transportation of marine mammals used for research or exhibition purposes. Those regulations were amended several times, the last time being in 2001. In 1998, regulations were published governing swim-with-dolphins programs. However, due to objections from that industry, APHIS announced they would no longer enforce those regulations on swim-with-dolphins programs - meaning that these programs have gone virtually unregulated for nearly 20 years!
The new draft regulations are a hodge-podge of requirements for the facilities (e.g. minimum sizes for tanks, temperature ranges, water quality, etc.) for both indoor, outdoor and swim-with-dolphins programs (the latter now termed “interactive programs”).
In reviewing these proposed regulations, our dolphin team members feel that the regulations were inadequate to address the ongoing problems of keeping captive marine mammals, and especially captive cetaceans (including dolphins, orcas, beluga whales and pilot whales), in facilities where they simply cannot thrive and live healthy lives.
The International Marine Mammal Project supplied comments to APHIS on these regulations on May 4, 2016. Below are our comments. It remains to be seen how (and especially when) APHIS will respond to our and other negative comments.
The International Marine Mammal Project of Earth Island Institute submits these comments for the public record on the draft APHIS Rule regarding captive marine mammals.
We believe the regulations are totally inadequate to protect the health and welfare of marine mammals, particularly dolphins, orcas and beluga whales, currently held in captivity in the US, in violation of the Marine Mammal Protection Act and the Animal Welfare Act.
As the proposed rule will have a large effect on marine mammals in captivity throughout the US, an issue that has generated a great deal of public interest, as a quick review of public media and social media will show, we believe the rule should be subject to review under the provisions of the National Environmental Policy Act.
We further believe that the Animal Plant and Health Inspection Service (APHIS) should consult, under provisions of the Endangered Species Act, with the US Fish & Wildlife Service and the National Marine Fisheries Service on the issue of captivity for endangered and threatened species.
While we generally support the steps proposed for Indoor Facilities in the Rule, we believe they do not go far enough. We propose that APHIS phase out Indoor Facilities for marine mammals as being unnatural and counter to the health and welfare of marine mammals in these facilities.
We agree with APHIS arguments in support of natural spectrum lighting and provision of specified periods of dark, but believe that APHIS errs in requiring only a minimum of 6 hours of darkness in the rule. 8-10 hours minimum would, by APHIS’s own arguments, provide better, more natural lighting conditions for marine mammals.
We support APHIS proposed regulations involving shade, ensuring shade is available at all times for marine mammals in outdoor pools.
With regard to Space Requirements, we believe the APHIS minimum space requirements are inadequate and contribute to continuing declines in marine mammal health and welfare in captivity. The space APHIS recommends is far too small for most marine mammals.
We believe APHIS should push for the more humane and healthy alternative of sea pens for captive cetaceans in particular, retiring them from education-less entertainment venues and placing them in sea pens. A sea pen provides natural seawater without chemicals, clean air, and larger and more varied habitats for cetaceans and other marine mammals. Veterinary care and feeding could continue as appropriate for the species in sea pens. Sea pens would provide a scientifically superior habitat for captive cetaceans and other marine mammals than concrete tanks.
While we support the APHIS improvements in water quality testing and expanded tests, we do believe more is needed to ensure the health and welfare of marine mammals in captivity.
Testing should be done more often than quarterly for all of the techniques and agents recommended by APHIS. In addition, we believe much more needs to be done to protect marine mammals from added chemicals, such as chlorine, to marine mammal tanks.
Too much reliance is made by APHIS on the testing by the facilities themselves. The captive industry is notorious for their false information they give to the public, such as falsely claiming that orcas live as long on captivity as in the wild and that drooping dorsal fins are normal, and falsifying of water quality testing should be something APHIS strives to avoid.
That APHIS set up a water quality testing regime of their own, in which APHIS agents do unannounced inspections of marine mammal tanks, with water quality testing one of the steps in such inspections. Results of such testing by APHIS should be posted online for public review.
If due to cost constraints or lack of personnel, APHIS cannot fulfill unannounced inspections or testing of water quality, we recommend APHIS authorized qualified NGO’s in the US to take on such inspection services. We believe several organizations would be interested in providing third party testing of tanks to ensure the health and welfare of captive marine mammals.
We believe much more needs to be done to avoid the impacts of chlorine on marine mammals. Do APHIS inspectors check the health of the eyes of marine mammals in captivity? If not, this should be done, preferably by a third party veterinarian without economic ties to marine parks. John Hargrove, for example, a former SeaWorld trainer of orcas, notes in his new book Beneath the Surface that trainers in the water with orcas suffer intense burning and pain in their eyes from chlorine.
We are frankly at a loss as to why interactions with marine mammals are illegal in the wild but legal in captivity.
There are no provisions in the Marine Mammal Protection Act that allow interactions of captive marine mammals with untrained individuals.
Such programs should be banned by APHIS as inconsistent with the MMPA.
The APHIS rule is silent on the use of drugs to control and change the behavior of cetaceans in captivity. While the use of antacids, antibiotics, antipsychotics, and antidepressants are arguably necessary to maintain the health and welfare of captive cetaceans, we would argue that the use of these drugs, especially if routinely used, is prima facie evidence that these animals should not be kept in captivity.
Furthermore, the use of drugs such as altrenogest are clearly used not for the welfare and health of cetaceans, but to speed up the reproductive cycle to produce more captive animals. This does not improve the health and welfare of the cetaceans upon which it is used and should be prohibited.
We again ask where in the Marine Mammal Project Act are such drugs allowed for use on cetaceans and other marine mammals? If they are being used illegally, APHIS should take action against the facility. If they are being used to control animals that do not belong in captivity, APHIS should take steps to remove the animals from such situations (see our comments above on sea pens). At the least, APHIS should be reviewing and policing the use of these dangerous drugs on marine mammals in captivity.