BILL ANALYSIS Ó
AB 2305
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Date of Hearing: April 12, 2016
ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE
Marc Levine, Chair
AB 2305
(Bloom) - As Amended April 5, 2016
SUBJECT: Captive Orcas
SUMMARY: Prohibits captive breeding of orcas in California, and
prohibits orcas, other than those currently in captivity, from
being held in captivity, and prohibits use of orcas for purposes
of display, performance or entertainment purposes, with
specified exceptions. Specifically, this bill:
1)Makes it unlawful for any person to do any of the following:
a) To hold an orca in captivity, whether wild-caught or
captive-bred, for purposes of display, performance or
entertainment. Allows an orca currently being held in
captivity in the state to continue to be held in
captivity and to be used for the purpose of educational
presentations until its death.
b) To breed or impregnate any orca in captivity in the
state.
c) To export, collect or import the semen, gametes, or
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embryos of an orca held in captivity for the purpose of
artificial insemination.
d) To export, transport, move or sell an orca located
in the state to another state or country unless
authorized by federal law. Permits the transfer of an
orca to another facility in North America that meets
standards comparable to those in the Animal Welfare Act.
2)Makes any person who intentionally or negligently violates any
of the above prohibitions guilty of a misdemeanor, punishable
by a fine not to exceed $100,000.
3)Provides that this section does not apply to an orca that is
held for rehabilitation after a rescue or stranding, or for
research purposes. Requires an orca that is held for
rehabilitation or research to be returned to the wild whenever
possible, and if return to the wild is not possible, prohibits
such an orca from being used for breeding, performance or
entertainment purposes.
4)Defines "educational presentation" for purposes of this bill
to mean live, scheduled orca display in the presence of
spectators that includes natural behaviors, enrichment and
exercise activities and provides live narration and video
content providing science-based education to the public about
orcas.
5)Includes a severability clause, providing that if any of the
provisions of this bill are found to be invalid that the
invalidity shall not affect the other provisions.
EXISTING LAW:
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1)Under the federal Marine Mammal Protection Act (MMPA),
prohibits the take of any whale species without specific
authorization. Allows permits to be issued for take of a
whale from the wild for a limited number of purposes,
including for scientific research, for purpose of public
display, or for enhancing the survival or recovery of specific
stocks. Authorization can also be given for incidental take
of marine mammals in the course of conducting certain
activities. The National Marine Fisheries Service (NMFS) is
responsible for enforcement of the MMPA. Requirements for
permits for public display include that the entity offers a
program for education or conservation based on professionally
recognized standards of the public display community, is
registered or holds a license under the Animal Welfare Act,
and maintains facilities open to the public on a regularly
scheduled basis.
2)Governs captive care, handling, treatment and transportation
of marine mammals held for public display, and maintenance of
marine mammal exhibits, under the federal Animal Welfare Act.
The Department of Agriculture, Animal and Plant Health
Inspection Service is responsible for enforcement of the
Animal Welfare Act. Standards for maintenance and structure
of orca pools include: minimum horizontal dimension, volume
and depth requirements; a plan of care approved by a
veterinarian; and that animals be housed with at least one
compatible animal of the same or biologically related species.
Examples of pool dimensions include that a pool holding two
orcas must have a minimum diameter of 48 feet, a depth of 12
feet, and a minimum volume of 615 meters.
FISCAL EFFECT: Unknown
COMMENTS: This bill prohibits captive breeding of orcas in
California, and would allow the orcas that are currently being
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held in captivity in the state to continue to live out their
lives in captivity. This language codifies SeaWorld's recently
announced decision to stop captive breeding of orcas, and to
transition their public orca programs away from an entertainment
or performance focus, and toward more science-based educational
presentations.
1)Author's Statement: The author indicates that while he
wholeheartedly endorses SeaWorld's announcement to end captive
breeding, company leadership can change and with it, so can
company directions. The author asserts that the people of
California and the animal welfare advocates who have been at
the forefront in calling for this change need and deserve the
assurance that codifying the end of captive breeding of orcas
in California will bring.
2)Background: This bill follows legislation proposed by the
author in 2014 (AB 2140), that proposed to prohibit the
holding of orcas in captivity, the use of orcas for
performance or entertainment purposes, the capture, import, or
export of orcas, and the breeding of orcas in captivity. AB
2140 also called for captive orcas that could not be released
to the wild to be retired to sea pens where available. AB
2140 was introduced following the release of "Black Fish", a
documentary which highlighted concerns over the keeping of
orcas in captivity, including the tragic death of a SeaWorld
trainer who was killed by an orca in 2010, and animal welfare
concerns regarding the impacts of captivity on orcas.
Orcas (Orcinus orca), also known as killer whales, are toothed
marine mammals belonging to the order Cetacea, which includes
whales, dolphins and porpoises. Orcas are wide ranging apex
predators found in most oceans of the world. They are known
to be highly intelligent and highly social animals, living in
matrilineal family groups which are among the most stable of
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any animal species. Family groups of orcas form pods that
live and hunt together, with male and often female offspring
staying with their mothers for life. They are one of the
world's fastest moving marine mammals, able to swim at speeds
approaching 35 miles per hour, and often covering 100 miles or
more per day
Since orcas have been kept in captivity there have been four
deaths of humans involving captive orcas. Between 1988 and
2009, SeaWorld documented 100 incident reports including
twelve documented injuries and one death. Following the death
of trainer Dawn Brancheau in 2010 at SeaWorld's Orlando,
Florida facility, SeaWorld was cited by OSHA for violating
federal safety standards. OSHA issued an order that
prohibited trainers from being allowed in the water with the
whales and required that they be protected by a physical
barrier.
Supporters of AB 2140, among other things, emphasized concerns
over the inability to replicate the orca's natural ocean
habitat in a marine park environment, the stress impacts of
captivity on the whales, ethical concerns over keeping of
orcas for entertainment, risks to humans working with orcas,
and concerns over genetic diversity and inbreeding in captive
breeding programs. The committee also received a statement
signed by 35 marine mammal scientists in support of phasing
out the practice of holding orcas in captivity and a ban on
captive breeding. The statement by the scientists noted that
the science on the nature of orcas makes them inherently
unsuited for confinement in tanks and urged that the whales be
placed in sea pens. SeaWorld and other opponents to AB 2140
at the time disputed that orcas held in captivity suffered as
a result and emphasized the orcas were well cared for, stated
their captive breeding program was carried out in accordance
with internationally recognized zoological standards, and
objected that retiring the orcas to sea pens was not a
practical or feasible solution and would not be in the best
interests of the whales.
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Both proponents and opponents of AB 2140 acknowledged the
significant positive contributions of SeaWorld to marine
research and marine rescue efforts. The committee heard
extensive testimony on AB 2140 and then referred the bill to
interim study without a vote. Please see the committee
analysis of AB 2140 for additional information on the natural
history of orcas, and the pros and cons of keeping orcas in
captivity.
Since AB 2140 was heard in this committee in 2014, several key
developments have occurred. First, SeaWorld proposed
development and construction of a new expanded aquarium
environment for the orcas at SeaWorld and applied for a permit
from the Coastal Commission for the construction. The Coastal
Commission granted the application but with the stipulation
that SeaWorld end all captive breeding of orcas in the state.
SeaWorld appealed that decision.
Then on March 17, 2016, SeaWorld announced that it had made a
decision to end all captive breeding of orcas, and to phase
out its orca entertainment shows and transition to a more
science-based educational program. SeaWorld stated in a press
release that the current generation of orcas will be the last
generation of orcas at SeaWorld. The release stated in part:
"The company will end all orca breeding as of today. SeaWorld
will also introduce new, inspiring, natural orca encounters,
rather than theatrical shows, as part of its ongoing
commitment to education, marine science research, and rescue
of marine animals."
The company also announced a broad new partnership with the
Humane Society of the United States to protect oceans and
educate the public about animal welfare and conservation
issues. "As society's understanding of orcas continues to
change, SeaWorld is changing with it." stated Joel Manby,
President and Chief Executive Officer of SeaWorld
Entertainment, Inc. "By making this the last generation of
orcas in our care and reimagining how guests will encounter
these beautiful animals, we are fulfilling our mission of
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providing visitors to our parks with experiences that matter."
The author of this bill, in support of SeaWorld's decision
stated "With today's announcement by SeaWorld to end orca
breeding and phase out their orca shows, I believe that we
have resolved a fundamental marine mammal welfare issue."
John Reilly, SeaWorld San Diego Park President added
"Assemblymember Bloom and SeaWorld share a common passion for,
and commitment to, marine mammals, ocean health and protection
of our natural world. We recognize that society's attitudes
about orcas in human care are changing, and our announcements
today shows that SeaWorld is listening and we are changing.
We are working toward new ways to deliver on our purpose."
3)Prior and Related Legislation: AB 2140 (Bloom) of 2014
proposed to make it unlawful to hold in captivity, or use, an
orca for performance or entertainment purposes, or to capture,
import, export, or breed an orca in captivity. AB 2140 was
heard in this committee but was referred to interim study
without a vote.
Legislation currently pending in Congress, HR 4019
(Schiff/Huffman) would prohibit the public display and
breeding of captive orcas.
4)Support Arguments: Supporters indicate that they fully
support SeaWorld's announcement that it would immediately end
captive breeding of orcas and phase out its theatrical orca
shows, but note that it is corporate policy only, a situation
subject to change. To ensure that the eleven orcas in San
Diego are the last generation of captive orcas displayed in
the state, supporters urge passage of this bill. The Humane
Society praises the reforms committed to by SeaWorld as a
major step forward in which the company is responding and
adapting to public concerns over animal welfare. They also
commended the company's commitment to redouble its work around
rescue and rehabilitation of marine mammals and to partner
with the Humane Society and others to tackle global threats to
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marine animals. "SeaWorld's commitment to end breeding of
orcas is a long held goal of many animal advocacy
organizations, and we commend the company for making this
game-changing commitment" said Wayne Pacelle, Humane Society
President and CEO.
5)Opposition Arguments: None received
6)Suggested Amendments: Committee staff suggests the following
clarifying amendments:
On page 2, lines 10-12, amend subparagraph (B) to read:
"(B) An orca located in the state on January 1, 2017, may
continue to be held in captivity for its current purpose and
after June 1, 2017 may continue to be used for educational
presentations until it is retired or until its death.
On page 3, line 7, after "orca" insert " may be used for
educational presentations, but "
REGISTERED SUPPORT / OPPOSITION:
Support
Animal Legal Defense Fund
Animal Welfare Society
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Azul
Born Free USA
California League of Conservation Voters
Cetacean Society International
Defenders of Wildlife
Environment California
Humane Society of the United States
In Defense of Animals
Marin Humane Society
North County Watch
Performing Animal Welfare Society
San Francisco SPCA
Sierra Club California
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Whale and Dolphin Conservation
Wildlands Conservancy
World Animal Protection
Opposition
None on file.
Analysis Prepared by:Diane Colborn / W., P., & W. / (916)
319-2096
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