The National Marine Fisheries Service Is Proposing Changes To The Regulations Concerning Captive Marine Mammals

Orca Network relayed that NOAA/NMFS has posted a notice calling for public comment on much of the verbiage and some of the rules governing their role concerning captive marine mammals. I read the 86 page document, and if you are feeling equally masochistic you can find it here, but be forewarned: it is a formal document full of cross-references and inferences.

Their official announcement is below, but even that doesn’t quite get to the heart of the matter – which is that NMFS has very little control over what happens once the marine mammals are in captivity; that responsibility rests with the Department of Agriculture (!). What they do have control over, and what is important here, is the permitting process and how thoroughly the animals are tracked once they are in captivity. If those of us who are concerned about the welfare of the orcas don’t send in comments, then the “captive display community” (theme parks such as Seaworld) will encourage NMFS to loosen the regulations because theirs will be the strongest voices.

Lolita performs for sparse audiences in a sad theme park.

Please write, call or email NMFS and ask for changes you would like to see, even though your concerns may not address the specific items being considered at this time. The window of opportunity may be open just enough to make more changes to the rules while they are undergoing modification, and it may be more difficult to get the government to go through this process again soon.

Send comments to:

P. Michael Payne
Chief, Permits, Conservation and Education Division
Office of Protected Resources
National Marine Fisheries Service
1315 East-West Highway
Room 13705
Silver Spring, MD 20910-3226
Phone: 301-713-2289
Fax: 301-713-0376

The official announcement:

NMFS is considering changes to the regulations implementing the Section 104 permit provisions of the Marine Mammal Protection Act (MMPA) to clarify existing permitting procedures and to codify procedures being implemented through agency policy.

These regulations govern issuance of scientific research and enhancement permits for marine mammals, including threatened and endangered species. These regulations also cover the General Authorization for Scientific Research, photography permits, and public display permits.

Public Participation Opportunities
As part of the process, NMFS is preparing an environmental assessment (EA) to evaluate the potential environmental impacts of promulgating revised regulations governing permit procedures and conditions. NMFS requests public participation in the scoping process that will help identify alternatives and determine the scope of environmental issues to be addressed in the EA.

NMFS has developed a Scoping Document [pdf] with proposed revisions, additions, and restructuring of the marine mammal permit regulations. This Scoping Document contains proposed regulatory language but does not necessarily represent a preferred alternative.

More information about opportunities to comment on this phase of the process can be found in the Notice of Intent [pdf] published in the Federal Register (75 FR 11130).

Comments about the EA or on the Scoping Document must be received by May 10, 2010 and should be directed to:

Mail: P. Michael Payne
Chief, Permits, Conservation and Education Division
Office of Protected Resources
National Marine Fisheries Service
1315 East-West Highway
Room 13705
Silver Spring, MD 20910-3226
Phone: 301-713-2289
Fax: 301-713-0376

On May 10, 1996, a final rule was published establishing requirements for issuing permits and authorizations to take, import, or export marine mammals (including endangered and threatened marine mammals) and marine mammal parts under NMFS jurisdiction for purposes of scientific research and enhancement, photography, and public display.

NMFS published an Advanced Notice of Proposed Rulemaking (ANPR) in the Federal Register (72 FR 52339, September 13, 2007) proposing changes to implementing regulations (50 CFR 216, Subpart D) governing the issuance of permits under Section 104 of the Marine Mammal Protection Act (MMPA) and solicited public input on the proposed changes or any other changes commenters deemed appropriate.

The ANPR solicited input from the public on specific recommended changes to the regulations (as listed below) and how NMFS can streamline, clarify, or change sections of these regulations to improve the process for obtaining a permit (see 50 CFR Subpart D-Special Exceptions, sections 216.30-216.45). We also considered recommendations regarding changes to any of the sections of 50 CFR part 216 prior to proposed rulemaking.

Specific recommended changes proposed in the ANPR include the following:

* Changing requirements regarding National Environmental Policy Act (NEPA) determinations such that NEPA documentation is not required at the time an application is made available for public review and comment.
* Allowing only minor amendments to original permits, not major vs. minor as currently exists; any proposed change such as an increased level of take would require a new permit since the regulatory process for issuing a major amendment is currently consistent with processing a new application.
* Applying the General Authorization (GA) to research activities involving Level A harassment of non-ESA listed marine mammals; currently the GA only applies to research activities that result in Level B harassment.
* Implementing a “permit application cycle” for application submission and processing of all marine mammal permits;
* Consolidating sections of the regulations that pertain to the transfer of marine mammal parts (including those taken from non-listed stranded animals and those taken under permit from both listed and non-listed marine mammals) to provide consistency and eliminate confusion in interpretation.
* Adding provisions for long-term captive maintenance of non-releasable ESA-listed marine mammals.
* Writing regulations for photography permits such that it would be similar to the GA process.

More Information

* Permit Regulations ANPR [pdf]
(72 FR 52339, September 13, 2007)
o Text Version of Permit Regulations ANPR [txt]
* MMPA Regulations: 50 CFR 216 [pdf]
o Text Version of MMPA Regulations: 50 CFR 216 [txt]
o 50 CFR 216 by Section (with Text and PDF options)
* Summary of Public Comments [pdf] [284 KB]
* Public Comments Received [pdf] [3.8 MB]

Be A Part Of The ‘Orca Video Pod’ – Join In The Effort To Create A Video Series On J,K, and L Pods.

This spring, along with regular updates on the whereabouts of the Southern Resident orcas we will bring you a video series on their lives, from the calves to the oldest adults. We will show them as they are in the wild – swimming, feeding, playing – and at times we’ll contrast this to the lives of the captive orcas:

Our video will come from the research boat when possible as well as from shore.

If you would like, you can share your ideas, comments, video footage or photos of the orcas, and we’ll also be looking for videos on salmon issues, as long as it is relevant to the whales. Related video can be on anything from the effect of fish farms to dams to what kind of luck you’re having this year catching Chinook salmon. And we’d love to hear what the children have to say too. We’ll put together a series and post it on YouTube as well as in this blog.

It is our goal to have this video series reflect the community – the orcas’ story is your story as well in that the measures we take to help them survive impact us all.

Fraser River Salmon Are Only Part Of The Solution For Orcas

Today’s news report on the significance of Fraser River Chinook salmon to the Southern Resident orcas left the viewer with the impression that 90% of the orcas’ diet is composed of fish from that river, specifically Chinook salmon. This is misleading.

By studying the composition of whale feces and collecting fish scales where the orcas were feeding, scientists at NOAA/ Northwest Fisheries Service (NWFS) determined that most of the diet consisted of fish from the Fraser and its tributaries…the problem is that they only collected samples where the Fraser River salmon run, and during the part of the year that the orcas come in to feed on those fish.

No one knows the extent of the orcas’ winter feeding range, but by taking blubber samples of some of the Southern Resident orcas, NWFS has shown that the Southern Resident whales go as far south as the Sacramento River to feed in the winter, and the Resident pods have been identified feeding at the mouth of the Columbia River. The orcas need fish from many sources to meet their energy demands during the winter months.

What should have been said is that when the Southern Resident orcas are present in the Salish Sea (inland waterways of Washington state and British Columbia), their diet is composed primarily of Fraser River salmon because that is what is available to them.

Don’t Let This Happen Here – Hungry Orcas Are Disappearing

A population of resident type orcas – whose feeding strategy is remarkably parallel to that of the Southern Resident orcas – are disappearing from their home range in the Ross Sea. Scientists know that the whales are decreasing in number, the only question that remains is whether the orcas have moved on or if they are dying of hunger.
That population of orcas prefers to eat toothfish (dubbed “sea bass” to make them sound more palatable – related to the Chilean sea bass that has been all but wiped out by over-fishing) much like the Southern Resident orcas of the Salish Sea prefer Chinook salmon. In their recently published article, An apparent decrease in the prevalence of “Ross Sea killer whales” in the southern Ross Sea, (Ainley et al, Aquatic Mammals, Vol. 35 No. 3), the scientists relay a dire warning yet again: wise up before it’s too late.

Resident type orcas are disappearing in the Ross Sea (Creative Commons photo)

Over and over the data is coming in from around the world – fisheries are collapsing, animals are starving, and we are next if we don’t get this figured out while there is still time. We can make some choices that will have a positive effect on fisheries everywhere (choosing only sustainable food is one easy way to make a difference), but we have a chance to make a huge difference to the salmon populations of the Pacific northwest.
I know that we have been hammering on the importance of restoring salmon, and it is because time is running out and we have to do something. I urge each and everyone of you to think of what you can do to help fix the salmon situation, then do it. Don’t eat farmed salmon. Help restore habitat. Figure out how to compensate our fisherpersons for lost revenue if they choose to let more fish slip past their nets.
The single most powerful change? Pressure the government to remove some unneeded dams and let the salmon back up the rivers.

Orcas Are In The South Sound Today!

Report from OrcaNetwork:

Orcas spotted in Commencement Bay, Tacoma between 11 am & noon, watch KOMO 4 news for video. 1 male, sev. females – possibly Transient T87 & friends who have been in Haro Strait the past few days?

Note: “Transient” orcas are different from our familiar Residents; whereas the Residents eat only fish and invertebrates, the Transients eat marine mammals.

Update: Kiro TV also has footage, so check with them and King 5 too.

Top Fisheries Scientists Find Obama Salmon Plan Insufficient to Protect Salmon

The following is adapted from a recent press release.

Kenneth C. Balcomb, Principal Investigator of the Center for Whale Research, has been tracking, researching and publishing research on Southern Residents since 1976. He remarks here on the Southern Resident orcas’ dependence upon salmon stocks:

The Western Division of the American Fisheries Society (WDAFS) recently released a scientific review of the Obama Administration’s proposed additions to the federal salmon plan for the Columbia-Snake River Basin. Even though the WDAFS report is sharply critical of the Obama team’s salmon science, it does not comment on one of the most glaring errors in the salmon plan: Its complete failure to consider the effects of salmon declines on endangered Southern Resident orcas.

Balcomb commented: “As bad as the Adaptive Management Implementation Plan (AMIP) is with respect to salmon – and the AFS review makes plain that it is very bad – it is even worse with respect to Puget Sound’s resident orca population. First, every one of the shortcomings with respect to salmon reflects a shortcoming with respect to the primary prey of these orcas. Second, the Obama team simply ignored the proven relationship between salmon mortality and orca population declines. Had it been concerned about a thorough backstopping of the 2008 Bush BiOp (Biological Opinion), the Obama team would have given at least a passing glance to the other Pacific Northwest icon, the orca.” The current depleted Southern Resident population consumes about 820,000 chinook salmon each year.

Balcomb also noted that while NOAA was reviewing the Bush-era plan for the Columbia and Snake Rivers, it released a salmon plan for the Sacramento River, in which it emphatically recognized that Southern Residents will not survive if water operations keep killing chinook salmon. “And in the Sacramento River plan, NOAA stated clearly that mortality to wild salmon jeopardizes orcas, regardless of the hatchery fish produced as mitigation. Why that finding should be different on the Columbia is a mystery. Why the AMIP would not even mention these contradictory approaches – well, all I can think of is that either NOAA didn’t know what was in its own salmon plans, or it knew and hoped nobody else would notice it.”

“People who care about Southern Residents should insist that the Obama Administration seize the opportunity to correct the shortcomings of the 2008 salmon plan. Not only does it matter for salmon – it is essential for the survival of Puget Sound’s orcas.”

Link to the American Fisheries Society review: The Western Division of AFS’s review of the Obama Administration’s AMIP

Sign Of The Times: “The Cove” Won Best Documentary At The Academy Awards

Tonight’s win by the documentary film “The Cove” is testimony both to the skill and talent of the filmmakers and to the interest shown by the public in learning about the subject it covers: the brutal capture and slaughter of dolphins in japan.

From ‘The Cove‘ website

Academy Award® Nominee for Best Documentary of 2009, THE COVE follows an elite team of activists, filmmakers and freedivers as they embark on a covert mission to penetrate a remote and hidden cove in Taiji, Japan, shining a light on a dark and deadly secret. Utilizing state-of-the-art techniques, including hidden microphones and cameras in fake rocks, the team uncovers how this small seaside village serves as a horrifying microcosm of massive ecological crimes happening worldwide. The result is a provocative mix of investigative journalism, eco-adventure and arresting imagery, adding up to an unforgettable story that has inspired audiences worldwide to action.

THE COVE is directed by Louie Psihoyos and produced by Paula DuPré Pesmen and Fisher Stevens. The film is written by Mark Monroe. The executive producer is Jim Clark and the co-producer is Olivia Ahnemann.

The Secret is Out. Spread the Word.

The Cove exposes the slaughter of more than 20,000 dolphins and porpoises in Taiji, Japan every year, and how their meat, containing toxic levels of mercury, is being sold as food in Japan and other parts of Asia, often labeled as whale meat. The majority of the world is not aware this is happening as the Taiji cove is blocked off from the public. The focus of the Social Action Campaign for The Cove is to create worldwide awareness of this annual practice as well as the dangers of eating seafood contaminated with mercury and to pressure those in power to put an end to the slaughter.

And it’s been working. The film has been making waves since it premiered last year. Critical praise and audience awards worldwide have focused international attention on Taiji and the annual dolphin drives off the coast of Japan. Under intense pressure, Taiji called for a temporary ban on killing bottlenose dolphins. The film, which was originally rejected, was shown at the Tokyo Film Festival due to public outcry. Residents in Taiji are being tested for mercury poisoning, and for the first time Japanese media are covering the issue.

Close to a million people have signed on to the campaign, but this is just the beginning. The fisherman are clearly rattled, but haven’t stopped killing dolphins.

TakePart now to help shut down the cove for good.

Please check out the website to see how you can get involved, and spread the word: text “Dolphin” to 44144.

The Life Of A Trained Whale

In the wild, orcas behave benignly towards humans, and are reasonably safe to be around, but in captivity these gentle animals can act in ways that are dangerous to their human caretakers – as the recent tragic death of a trainer at Seaworld illustrates.

In my opinion there are three main reasons that orcas hurt their handlers: they don’t understand our frailty and breath-holding ability, they are constantly frustrated by the one way communication we have with them, and they experience discomfort, pain, and fear at our hands.

The orca whale “Lolita”, taken from the endangered Southern Resident orca population is no exception.

Please watch the following clip with a critical eye, and you will be able to learn a great deal about what the life of a trained whale is like when they are not performing. Notice how the Seaquarium seems to have controlled what the camera is allowed to see of “Lolita’s” tank (it is small and she her only companion is a Pacific white-sided dolphin) and to turn this into a public relations piece. Then pay attention to how the trainer keeps her close – by giving her chunks of fish.

But here is the most important thing to notice: as the interview goes on, “Lolita” begins to try different behaviors to get a piece of fish. She doesn’t understand that she is supposed to sit there and be cute for the camera, what she has been taught is that she has to do something to get her food, but in this situation she doesn’t know what it is.

Within the few minutes it took to shoot this video, the whale started to increase the scale of her behavior, searching her repertoire to figure out what the heck the trainer expected. I can almost guarantee that her trainer was aware of her every second and knew exactly how long he could push her patience. Most likely when the cameras left she was given the rest of her food, but hopefully someone ran through a familiar routine with her to ease her back from her annoyance level – had that gone on much longer the whale would have done something to show her feelings, such as swimming off at speed or slapping the water with her tail.
{Video is no longer available}

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This orca has nothing to do all day and night except to bob in her tank or sink to the bottom, and wait for something interesting to happen. And by the way, one of the reasons theme parks prefer to put Pacific white-sided dolphins in with orcas is that those dolphins are fast and agile, and are less likely to become injured when the orcas want to play.

Below are the most widely known incidents with captive orcas – the first entries are about orcas that hurt themselves, the second series is about encounters that involved humans. Most of these are recounted in ‘Dying to Entertain You‘ (linked at the end).

“Marine mammal veterinarian Jay Sweeney writes that ‘aggression expressed by killer whales towards their trainers is a matter of grave concern [and has] included butting, biting, grabbing, dunking and holding trainers on the bottom of pools and preventing
their escape. Several situations have resulted in potentially life-threatening situations.’

“In the 1970s, a male named Hugo broke an observation window at Miami Seaquarium, causing significant water loss and slicing off the end of his nose.

In 1985, researcher Jerye Mooney witnessed Corky – then at Marineland in California – break an observation window. The incident resulted in the loss of over a third of the water in the pool.
In 1991, Kahana died at Sea World, Texas after colliding with a pool wall. She suffered multiple skull fractures, cerebral contusions and severe haemorrhaging.

In 1992, a young female named Samoa died at Sea World at the age of only 13. For months prior to her death, horrified onlookers had watched her performing bizarre, repetitive movements, hurling her body into the air and crashing down again and again upon the hard surface of a wide shelf at the side of her pool. Sea World staff claimed never to have witnessed such behaviour.

Keet, the original ‘Grandbaby Shamu’ born in February 1993, has been observed by visitors allegedly slamming his head and body repeatedly into the walls of his tank at Sea World, Texas. He was taken from his mother, Kalina, at the age of just one year, 8 months.
During the autumn of 1995, Splash, then six years old, was involved in an incident at Sea World’s San Diego park. It appears that he was interacting with another male when he collided with the side of the pool, cutting his chin badly and requiring stitches.

During 1997, there were even reports that Keiko – the male Icelandic orca transferred from a sub-standard pool on Mexico to much improved conditions at Oregon Coast Aquarium, as the first stage in a rehabilitation and potential release programme – was repeatedly banging his head against the viewing window of his pool and displaying signs of aggression. The aquarium was forced to temporarily close the viewing area to visitors, who were charged $8.50 a head to see the famous ‘Free Willy’orca.

A female caught at Taiji in February 1997 and sent to the Taiji Whale Museum was observed in May 1997 by orca expert Dr Paul Spong to be making a “strange twisting movement with her body every minute or two.”

Aggression towards trainers:
In March 1987, at Sea World, San Diego, 21 year-old trainer Jonathan Smith was suddenly grabbed by a six-ton orca and carried to the bottom of the tank. He was carried, bleeding to the surface, but no sooner was he released, than a second whale slammed into him. Both whales repeatedly dragged him to the bottom of the pool, as if trying to drown him. He finally escaped from the pool, but had suffered a ruptured kidney, lacerations to his liver and severe cuts.
In June 1987, 28-year-old trainer Joanne Weber had a three-ton orca, Kandu, land on her during rehearsals at Sea World. Joanne fractured a bone in her neck which has resulted in permanent loss of head movement.

November 1987, Orky, the five-ton male came crashing down upon 26-year-old trainer John Sillick during a show at Sea World, San Diego. At the time, Sillick was riding on the back of a female orca. Sillick suffered severe fractures to both hips, pelvis, ribs and legs. He nearly died of his injuries.

In February 1991, the first death occurred. Part-time trainer Keltie Byrne, 20, slipped and fell into the orca pool at Sealand of the Pacific, Canada. Sealand trainers had stopped doing in-the-water-work, so she wasn’t wearing a wetsuit. Three orcas were in the pool: Tillikum, Haida and Nootka. One of the orcas seized her in its mouth and began dragging her around the pool, mostly underwater.

Although a champion swimmer, Byrne proved no match for three orcas determined to keep her in the pool and she finally drowned. It was several hours before her body could be recovered. Smith, Sillick and Weber all filed lawsuits. Despite being encouraged to go to court, all three accepted out-of-court settlements, with confidentiality clauses (‘gag orders’)attached – effectively ensuring that many pertinent details remain hidden. Keltie Byrne’s parents have so far decided not to sue.

On 12th June, 1999, at the 2.30pm show, Sea World trainer, Ken Peters, was shaken up but otherwise unharmed after an incident at the San Diego facility in which 23 year-old female orca, Kasatka, grabbed him by the leg. Previously, Kasatka had been circling and had started to thrash around in the water near Mr Peters. Then, without warning, she grabbed him by the shin with her teeth and tried to push him out of the pool. The incident forced the cancellation of the show. Sea World later issued a statement that the orca would be given “additional training to discourage aggressive behaviour”. Spokesperson Darla Davis said that “we’re keeping her in the show but not allowing any trainers in the water with her and she will be doing additional behaviour modification.” She added that “while it is unusual for a whale to bite a trainer, Kasatka is the dominant whale in her pod (sic) and will definitely be more aggressive than the others.” This incident was the second of its kind involving Kasatka: in 1993, she had previously tried to bite a trainer.

On the morning of July 6th, 1999, a member of the public was found dead in an orca enclosure. The body of Daniel Dukes, 27, was discovered naked and draped over the back of male orca, Tillikum, at Sea World’s Florida site. Daniel, whose address was listed as a Hare Krishna temple in Miami, is believed to have hidden in the marine park at closing time on July 5th. Authorities say he either jumped, fell or was pulled into Tillikum’s tank. At almost 5 tonnes, the 14 year-old male is the largest in captivity and was also involved in the death at Sealand in 1991.

Tillikum may have played with Duke’s 81kg body as if it was a toy. Whilst initial reports suggested that the body had no obvious injuries, the autopsy report indicated that Dukes had been bitten in the groin after drowning in cold water. Duke’s parents initially filed a several million dollar law suit against Sea World for pain and suffering caused at the death of their only son. Attorney Patricia Sigman said that Sea World was legally liable as it had portrayed the orca as human loving, and as a “huggable stuffed toy”. She went on to say that an inaccurate image had been given of this whale, when in fact, “he is extremely dangerous.” Sea World said at the time that they would be vigorously contesting the suit. General manager, Vic Abbey, stated that “a fellow trespasses on our property, evades our security, scales two very clear barriers and takes off his clothes and jumps into 50 degree water with an 11,000 pound (4,990kg) killer whale. This is an incredibly unwise thing to do. He is responsible for his actions.” In early October 1999, Duke’s parents dropped their suit. Vic Abbey said he did not know why the suit was dropped, but stressed it had not been settled.

The 1991 tragedy at Sealand has no precedent, and the full details surrounding the 1999 death of Daniel Dukes may never be known, so it is impossible to assess whether Tillikum played any active role in his death or whether Dukes was unable to swim and
simply drowned. However, other incidents involving sometimes serious injury to trainers are by no means as isolated as the marine parks would have the public believe.

So what exactly was going on in these and other incidents?

Why are the whales displaying such open aggression towards their trainers? Part of the reason may lie in the training philosophy espoused by each marine park. Graeme Ellis,a former trainer and now researching orca in the wild, maintains that a good training programme is one which keeps orcas mentally healthy and interested, whilst promoting trainer safety. ‘It’s not how many tricks you can train them to do in two months; it’s how long you can maintain a whale’s sanity… We seem to have a limited imagination when it comes to keeping these animals from becoming bored or neurotic.’

Bud Krames, a senior trainer, resigned because he didn’t agree with the new training system. He estimated that around 35 trainers also departed within the space of one year. Some commentators feel that part of the problem has been an over-dependence upon young or inexperienced trainers, unfamiliar both with training signals and with the particular personality of each orca.

…Over the years, most ‘accidents’ have occurred at facilities which routinely feature trainers performing in-the-water stunts such as riding the whales around the pool or balancing upon the orca’s head.”

For the full article and references: Dying To Entertain You
(Since that article was published, the aggression towards trainers has continued, including a second time on trainer Ken Peters.)