Animal Law Review

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In recent years, increasing concern has emerged within the general public and scientific communities over the detrimental effects of captive maintenance on the health and welfare of cetaceans. There is widespread agreement that the medical records of cetaceans held in captivity are a source of important information that can shed light on the animal health impacts of certain captive conditions, as well as on diseases and environmental threats to cetaceans in the wild. Despite the value of such records to advancing animal husbandry, animal welfare, and wildlife conservation, the medical and behavioral records of cetaceans held in captivity are rou- tinely withheld from the public and the greater scientific community by the facilities that hold these animals captive. Absent voluntary compliance by the captive display industry, there remain legal avenues to bring about transparency and disclosure of medical and behavioral records through en- forcement of permit conditions included in the public display permits issued under the Marine Mammal Protection Act (MMPA) prior to 1994 and under the regulations for marine mammal care and maintenance under the Animal Welfare Act. Amendments to MMPA in 1994 to limit MMPA juris- diction, in most respects, to animals in the wild did not apply retroactively to permits issued before that date. Therefore, the medical requirements of pre-1994 MMPA permits remain in effect and generally also apply to the progeny of permitted animals. The National Marine Fisheries Service, however, denies it has authority to seek voluntary industry compliance or undertake permit enforcement. Furthermore, the Animal and Plant Health Inspection Service, which has express authority to collect medical or necropsy records under the Animal Welfare Act regulations, has not obtained these documents for agency review or public access. The failure of both agencies to act denies interested parties the ability to review information that could improve the health and wellbeing of cetaceans in captivity and in the wild, as well as help to inform public opinion about the ethical implications of maintaining cetaceans in captivity.

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