        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 216
        [Docket No. 001031304-0304-01; I.D. 080299B]
        RIN 0648-AH26
        Protected Species Special Exception Permits

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Proposed rule and request for comments.

          SUMMARY:

          NMFS is proposing to amend the regulations for permits to capture or import marine mammals for purposes of public display under the Marine Mammal Protection Act of 1972 (MMPA).  The proposed revisions would implement amendments to the MMPA enacted April 30, 1994, affecting marine mammals held captive for public display purposes and clarify the public display requirements relating to permits to capture or import, transport or transfer, and export marine mammals.

          DATES:
          Comments on this proposed rule must be postmarked or received by September 4, 2001.

          ADDRESSES:
          Comments on this proposed rule may be mailed to the National Marine Fisheries Service, Office of Protected Resources, Permits Division (F/PR1), 1315 East-West Highway, Rm. 13705, Silver Spring, MD 20910.  Comments may also be submitted by facsimile at (301) 713-0376, provided the facsimile is confirmed by hard copy submitted by mail and postmarked no later than the closing date of the comment period.  Please note that comments will not be accepted by e-mail or by other electronic media.

          FOR FURTHER INFORMATION CONTACT:
          Ann Terbush, National Marine Fisheries Service, Office of Protected Resources, Permits Division (301/713-2289).

        SUPPLEMENTARY INFORMATION:
        General Background
        A proposed rule was published on October 14, 1993 (58 FR 53320), to consolidate existing permit regulations promulgated  under the MMPA, the Endangered Species Act, and the Fur Seal Act (Acts), governing the take, import, or export of protected species under the jurisdiction of NMFS for purposes of scientific research, enhancement, and public display.  That proposed rule also clarified procedures for the disposition of rehabilitated stranded marine mammals.

        On April 30, 1994, amendments to the MMPA, Pub. L. 103-238, 16 U.S.C. 1361 et seq. (1994 amendments) added a prohibition on marine mammal exports and significantly changed the scope and extent of permitting authority for public display purposes.  These amendments eliminated the basis for many of the public display provisions in the 1993 proposed rule.  NMFS determined that permitting and other requirements specific to  capturing, importing, exporting, or transporting marine mammals for public display under the 1994 MMPA amendments could only be addressed in a new proposed rule.
        A final rule was issued on May 10, 1996, (61 FR 21926) implementing some of the changes proposed in 1993.  That final rule, which became effective on June 10, 1996, established basic permit requirements under the Acts to take, import, and export marine mammals and marine mammal parts for purposes of scientific research, enhancement, photography, and, where captures and initial imports are involved, for public display.  That final rule also provided additional permit criteria specific to scientific research and to enhancement, and established clarified administrative procedures for determining the releasability or the non-releasability and subsequent disposition of rehabilitated stranded marine mammals.
        This Proposed Rule
        In addition to implementing the revised public display requirements of the MMPA, this proposed rule would amend the regulations governing the taking and importing of marine animals to (1) incorporate the MMPA marine mammal export prohibition, (2) provide an opportunity for public comment on the acquisition of an unreleasable beached or stranded animal by a facility that has not previously held marine mammals for public display, (3) clarify that a permit is needed to retain a releasable beached or stranded marine mammal, and (4) establish a means for identifying parts taken from public display animals and authorize the importation of parts for medical examination.
        This proposed rule specifies particular requirements for the issuance of permits, the transfer or transport of marine mammals, the exportation of marine mammals, and the reporting of information to NMFS by marine mammal holders.  The proposed rule also provides general requirements applicable to holders of marine mammals under the MMPA.
        1. Scope
        The MMPA and implementing regulations do not apply to marine mammals and marine mammal parts taken or born in captivity before December 21, 1972.  The prior status of a marine mammal may be established by submitting an affidavit to the Director, Office of Protected Resources (Office Director) in accordance with § 216.14.
        2. General Requirements
        Animals held under a special exception permit may not be sold, purchased, exported, transferred, or transported for any purpose other than public display, scientific research, or enhancement.
        The Office Director may also authorize the retention or transfer of custody of non-releasable rehabilitated marine mammals for public display purposes in accordance with § 216.27 (c).
        A marine mammal held for public display may not be released into the wild unless such release is specifically authorized under the terms of a scientific research or enhancement permit.
        3. Disposition for a Special Exception Purpose

        The proposed rule provides that in cases where the proposed recipient of a rehabilitated non-releasable marine mammal is a new facility or does not currently hold U.S. marine mammals for public display purposes, NMFS will publish a notice in the Federal Register to open a special 30-day public comment period as part of the review of the facility to determine that MMPA requirements will be met.  This comment period will provide an opportunity for NMFS to gather information from the public and consider whether to authorize the permanent placement of the rehabilitated marine mammal at that facility.  In instances where a rehabilitated beached and stranded marine mammal has been determined releasable, it may be held for public display, scientific research, or enhancement in lieu of a direct capture from the wild.  A permit would be required for the permanent retention of the animal for public display, scientific research, or enhancement.
        Captive marine mammals may not be released into the wild. From a scientific perspective, the release of captive marine mammals is considered experimental.  Scientists question the effect of time in captivity on marine mammals’ ability to survive in the wild.  Captivity can affect marine mammals’ ability to forage in the wild, avoid predators, integrate with wild stocks, and avoid interactions with humans and vessels.  Additionally, release poses risks to wild stocks, including the risk that released animals will introduce contagious diseases, disrupt essential social structures, pass on behaviors acquired in captivity that can be harmful in the wild, and alter the genetic composition of wild populations.  These concerns are compounded by the fact that no established scientific protocols exist to guide researchers in the proper selection, training, release and follow-up of candidate marine mammals.  Many of these concerns are highlighted in a detailed study of release conducted in 1993 by the Department of the Navy in an effort to consider management options for marine mammals it maintained.
        The Conference Report on the Department of Defense Appropriations Act of 1995 specifically addressed the need to obtain a scientific research permit for the release of captive marine mammals:

          Given the potential for ‘takes’ under the Marine Mammal Protection Act or the Endangered Species Act, the conferees direct that in no case shall any release be attempted unless authorized by a scientific research permit issued by the Secretary of Commerce under the appropriate statutory authority.
          H.R. Conf. Rep. No. 747, 103rd Cong., 2nd Sess. 9643 (1994).

        On a related issue, there has been interest in conducting “pinger-recall” training of captive dolphins outside of pens or enclosures in the open ocean.  While NMFS believes that this is primarily under the purview of APHIS, NMFS remains concerned about the potential effect on wild populations of marine mammals and their possible interactions with captive dolphins.  These risks have been noted earlier in this section.  Another consideration associated with any inadvertent release is the potential disruption of long-term studies of resident populations of marine mammals in certain locations.  Based on the risks to captive marine mammals as well as resident wild populations of dolphins or other marine mammals in the area, the proposed regulations provide that any release of captive marine mammals for purposes of recall training requires advance authorization by the Office Director.  This authorization would provide conditions similar to those that would be included in scientific research or enhancement permits that authorize release of marine mammals to the wild.
        Under the proposed regulations, the only purpose for which an authorization would be granted is to train the animals for pinger-recall or similar behavioral conditioning to retrieve the animals should an inadvertent release occur or a release is required for the health and welfare of the animals in the event of a natural disaster or facility failure.  Since this training would not be part of an interactive program or show, the general public (including paying customers to that facility) would not participate in this training.  In addition, facility operators and trainers engaging in this activity would be expected to provide a contingency plan for approval by NMFS to locate and retrieve their animals should an inadvertent release occur.  Finally, NMFS must consider the status of any wild marine mammal stocks in the area and the potential effects of inadvertent release of the captive marine mammals on these wild stocks in evaluating such requests.
        4. General Public Display Requirements
        Some activities involving animals held for public display can only occur as authorized under scientific research permits.  The conduct of intrusive research (see definition, § 216.3) on any marine mammal held for public display is prohibited except under the conditions of a research permit.
        5. Falsification of Reports
        The proposed regulations would make it unlawful for any person subject to the jurisdiction of the United States to fail to disclose materially relevant information or to falsify information in connection with marine mammal inventory, permit-related reports, or transport notifications required under this subpart D of 50 CFR part 216..  Any person who violates these provisions would be subject to the imposition of penalties in accordance with the procedures set forth in 15 CFR part 904.
        6. Marine Mammal Parts
        As originally mandated in 1972, the restriction against the import and export of marine mammal parts was designed to prevent the development of commercial markets for marine mammal parts or products derived therefrom.  However, the circumstances of bona fide scientific research involving import and export of marine mammal parts are varied, making clarity in regulations difficult.  In addition, previously only the export of ESA listed species and parts was prohibited.  The 1994 Amendments extended this prohibition to all marine mammals and marine mammal parts, except for the export of living marine mammals for purposes of public display.
        In response, NMFS has made every effort to implement the intent of the law without unduly burdening scientific research activities by ensuring that adequate documentation is provided for a part’s acquisition, location and possession.
        The proposed regulations would revise §-216.37 to allow for the import, without a specific permit, of specimens for diagnostic or necropsy purposes from marine mammals that have been legally exported from the United States and are held in foreign jurisdictions.  In lieu of a permit, the Office Director will issue a letter of authorization to the requestor that must accompany the shipment.
        7. Permits to Capture or Import
        Prior to the 1994 amendments, under section 104 (c)(1) of the MMPA, NMFS was charged with specifying in its permits the methods of care and transportation that must be used both during and after the capture or importation of marine mammals.  Under this provision, NMFS was responsible for including captive care requirements in permits issued to both the initial holders of captured or imported animals and to the recipients of those animals when they were transferred from one facility to another.  The facilities receiving marine mammals were thus generally required to have permits before they could assume custody of the animals.
        The 1994 amendments removed the authority of NMFS to specify methods of care and transportation of marine mammals held for public display purposes.  Public display permits are now required only for the capture or importation of marine mammals, and not for the possession of marine mammals in captivity.  Captive care and maintenance of marine mammals held for public display are now under the sole jurisdiction of the Department of Agriculture's Animal and Plant Health Inspection Service (APHIS), which administers the Animal Welfare Act (AWA).
        By removing the jurisdiction of NMFS over public display captive animal care, the amendments eliminated the basis for NMFS requirement that all public display facilities be issued permits before acquiring marine mammals.  The MMPA now specifically states that a permit issued by NMFS to take or import a marine mammal for the purpose of public display grants the holder the right to transfer the marine mammal from one public display facility to another without obtaining any additional permit or authorization. However, this right to transfer may only be invoked under certain specified circumstances, including the requirement that the recipient complies with the three basic public display criteria requirements of section 104 (c)(2)(A) of the MMPA.
        a. Applicants.  An applicant for a public display permit is the person (or entity) that will assume custody of the marine mammal to be captured or imported under the permit.  All applicants for public display permits must comply with permit-application submission requirements.  These requirements are stated in § 216.33.
        b. Applications and Issuance Criteria.  Under the MMPA as amended, permits to take or import a marine mammal for public display may be issued only to an applicant who (1) is registered or licensed under the AWA, (2) maintains facilities for the public display of marine mammals that are open to the public on a regularly scheduled basis and provides access to such facilities that is not limited or restricted other than by charging of an admission fee, and (3) offers a program for education or conservation that is based on professionally recognized standards of the public display community.

        NMFS is proposing that the introductory phrase of the second criterion, “maintains facilities for the public display of marine mammals . . .,” means facilities that comply with all applicable APHIS standards (9 CFR 3.104 through 3.118).  In this regard, such facilities include traveling displays/exhibits where the primary enclosure used as the animal’s permanent housing structure is used to transport the marine mammal and also complies with all applicable APHIS standards (9 CFR 3.104).  In addition, if any marine mammal is to be held at a facility other than one maintained by the applicant, the applicant must include a letter from that facility agreeing to hold those marine mammals, and certifying that the facility is registered or licensed under the AWA and meets APHIS standards for holding marine mammals.
        Documentation of compliance with the requirement that public display facilities be “open to the public on a regularly scheduled basis and that access to such facilities is not limited or restricted other than by charging of an admission fee” may include a brochure, flyer, or other publicly distributed document that states the dates, times, and, where applicable, admission fee, for the public display facility involved.

        Prior to the 1994 amendments, section 104 (c)(2) of the MMPA required that NMFS determine whether the program for education or conservation offered by the applicant was acceptable based on professionally recognized standards of the public display community.  In 1989, NMFS determined that the statutory phrase “professionally recognized standards of the public display community” did not refer to any standards that had been established; i.e., such standards did not exist.  Therefore, on May 22, 1989, NMFS published in the Federal Register (54 FR 22001) a notice of interim policy stating that, in order to be determined acceptable by NMFS, “an applicant’s education or conservation program must include a program of formal or informal learning that conveys accurate information about the marine mammals being displayed and communicates in an effective manner a message and purpose that are consistent with the policies of the MMPA.”
        There are no uniform professionally recognized standards established by the entire public display community for education or conservation programs.  The Alliance of Marine Mammal Parks and Aquariums and the American Zoo and Aquarium Association, together, represent approximately 60 percent of the facilities that hold marine mammals for public display.  Following enactment of the 1994 MMPA amendments, NMFS asked both of these organizations to prepare a list of standards.  These two organizations prepared and submitted their separate respective standards, which were then published by NMFS for reference purposes (59 FR 50900, October 6, 1994) as examples of standards on which education or conservation programs are based.  Other professionally recognized standards may also be used.
        These proposed regulations, therefore, specify that any receiver of captive marine mammals (i.e., any person, including any permit applicant or display facility, to which captive animals are to be transported, sold, imported, exported, or otherwise transferred) must submit a description of their education or conservation program to NMFS.

        Applicants for permits to capture or import marine mammals for public display purposes must provide NMFS with documentation confirming that they:  (1) are registered or hold a license issued under 7 U.S.C. 2131 et seq.; (2) maintain facilities for the public display of captive marine mammals that is open to the public on a regularly scheduled basis with access not limited or restricted other than by charging of an admission fee; and (3) offer a program for education or conservation purposes based on professionally recognized standards of the public display community.
        In addition, applicants must also demonstrate that the proposed capture or importation is from a source that will have the least possible effect on wild populations and that any capture is consistent with quotas established by NMFS on captures and, where no quota is in effect, that it will not have a significant adverse impact on the species or stock of the animals to be captured.  The capture of marine mammals to be imported must also be consistent with requirements for capturing animals in waters under U.S. jurisdiction.
        c. Restrictions.  The final rule that became effective June 10, 1996, contained general restrictions, conditions, and reporting requirements applicable as appropriate to any special exception permit, including public display permits.  This proposed rule includes additional restrictions specific to public display permits and holders of captive marine mammals.
        8. Re-export of Marine Mammals
        When a marine mammal is imported into the United States under an import permit, the permit will authorize re-export of that animal to the original foreign holder provided NMFS is given 15 days advance notice of the re-export.  This will facilitate the re-export of animals that are in the United States on temporary public display or breeding loans.
        9. Transport or Transfer of Captive Animals and Notifications
        Holders of captive marine mammals for public display have the right to transport, export, sell, purchase, transfer an interest in or otherwise transfer marine mammals for public display purposes without authorization from NMFS, provided that the recipient is in compliance with the MMPA and certain other requirements, including advance notifications, are met.  All holders of marine mammals are required to provide identification data for each animal they hold, its location, and information about any animal transport or transfer.  This requirement applies to holders of animals exported from the United States as well as transfers and transports within the United States.  The proposed rule states that NMFS must be notified at least 15 days, but not more than 90 days, in advance of the transport, export, sale, purchase, transfer of an interest in or other transfer of any animal held for public display under the MMPA.  Holders must submit a new transport notification if the marine mammals are not transferred within 60 days after the planned transfer date, if the species to be transported changed or increased, or if the number of animals to be transported is increased.
        This 15-day advance notification requirement would apply to the transport of marine mammals among facilities maintained by the same permittee or holder as well as among those facilities maintained by different persons.  Marine mammal holders that transport animals from one site to another as traveling exhibits must also comply with the 15-day advance notification requirement, although a transport schedule may be provided in these cases.

        There are two proposed exceptions to this 15-day advance notification requirement.  In the first, NMFS may authorize a marine mammal transfer before the full 15-day notification period has elapsed on the basis of a request that details circumstances which justify the inability to provide 15 days advance notice of the transfer (e.g., time critical business opportunity).  In the second, a documented medical emergency that justifies the transport is provided to the Office Director within 24 hours.  These limited exceptions to the 15-day advance notification requirement are not applicable to exports.
        Where animals are transported among display facilities, notification must include a certification from the recipient facility that it meets the requirements for a public display permit.  Since the 1994 MMPA amendments, NMFS has asked both the shipper and the receiver of marine mammals to certify that the receiver is in compliance with the MMPA.  In this manner the receiver documents his or her compliance with the basic criteria for holding marine mammals for public display purposes, and the shipper/holder is assured, to the extent practicable, that the intended recipient meets the criteria necessary for the shipper to invoke the right to transport or otherwise transfer marine mammals without obtaining any additional permit or authorization.
        To ensure that all certification and notification requirements under the MMPA are met, holders must use NMFS′ Marine Mammal Transport Notification (MMTN). The receiver must verify receipt of transferred marine mammals within 30 days.
        10. Reporting
        All holders of marine mammals under the MMPA must comply with certain marine mammal inventory reporting requirements.  Holders are required to notify NMFS within 30 days of the birth or death of animals.  Stillbirths must be reported so that they can be distinguished for inventory purposes from successful births and from other mortalities.  If the cause of death will not be known within 30 days, holders may note in the death notification that the cause of death is undetermined, and must then notify NMFS of the cause of death upon completion of necropsy analysis.
        NMFS will also periodically request holders to verify data in its Marine Mammal Inventory database.  To facilitate the entry and ensure consistency in the information reported by marine mammal holders into the database, such information must be submitted in accordance with any reporting formats that NMFS may establish.  Holders must use NMFS’ Marine Mammal Data Sheet (MMDS) to report changes in their inventories (i.e., births and deaths).
        11. Submission of Notifications and Reports
        To ensure compliance with the statutory requirements and to reduce and streamline reporting and notification requirements, NMFS has entered into a Cooperative Agreement, under the authority of section 112 (c) of the MMPA (16 U.S.C. 1382), with the International Species Information System (ISIS) to administer the captive marine mammal inventory database, including marine mammal transport notifications.  ISIS is an international non-profit membership organization that manages a database and information system for wild animal species in captivity, including marine mammals, at more than 500 institutions in 54 countries.  Under this cooperative agreement, ISIS will administer the captive marine mammal inventory information in consultation with NMFS as part of the central ISIS captive wildlife database and information system.
        Many of the marine mammal holders who currently report marine mammal inventory information and transport/transfer notifications to NMFS also voluntarily contribute their inventory information to the ISIS.  It is estimated that one-half of the marine mammal specimens are reported separately to both databases; therefore, converting to ISIS administration of the  marine mammal database should ease the reporting burden for many marine mammal holders.
        The major objectives of this Cooperative Agreement are to: (1) improve the long-term efficiency and quality of the captive Marine Mammal Inventory and Transport/Transfer database, (2) increase convenience and efficiency, and reduce cost and burden for reporting required under the MMPA by all holders of marine mammals, (3) eliminate duplicative reporting by many of the marine mammal holders, (4) enhance public access to the captive marine mammal information required under the MMPA, (5) eliminate duplication of data-collection efforts, and (6) avoid current duplication of development and maintenance of custom inventory database software by the ISIS and NMFS.
        Under the proposed rule all marine mammal holders would be required to submit their 15-day transport notifications and birth/death reports directly to ISIS for processing and entering into the Marine Mammal Inventory database.  Since exceptional transfer-related activities may require NMFS authorization, proposed Table 1 of this document outlines the types of inventory/transfer submissions and the locations for submission.
        12. Export of Captive Marine Mammals
        Prior to the 1994 MMPA amendments, NMFS’ policy dictated that the export of captive marine mammals for public display purposes could occur only if NMFS issued a public display permit to the recipient.  Under this policy, NMFS made the issuance of permits to export marine mammals for public display contingent on (1) certification of the accuracy of information from foreign permit applicants by the government with jurisdiction over the applicants' facilities; and (2) certification by that government that it would afford comity to any decision by NMFS to amend, modify, suspend or revoke a permit.
        “Comity” is generally understood to be a rule of courtesy by which one government honors decisions made by another government.  It is in situations where the United States lacks jurisdiction over persons or things located abroad that the U.S. Government may need to seek assurances of comity from foreign governments. Executive Branch agencies have inherent authority to ask foreign governments to honor decisions of the U.S. Government on the basis of comity.  It has been the policy of NMFS since 1975 to require a comity statement for the export of marine mammals.
        When Congress amended the MMPA in 1994, it prohibited the export of marine mammals.  However, it also provided that, if certain conditions are met and maintained, persons holding marine mammals for public display purposes could export marine mammals without obtaining additional permits or authorizations from NMFS.
        NMFS determined that, based on sections 104 (c)(2)(C),  104 (c)(2)(D), and 104 (c)(9), of the MMPA, Congress intended that any person receiving marine mammals via export meet standards comparable to the public display requirements of the MMPA.  Since NMFS has no jurisdiction over the animals once they are exported, but is at the same time required to maintain an inventory of captive marine mammals and ensure comparability, NMFS concluded that the requirement of a comity statement is a reasonable means of ensuring that comparable public display requirements will be met.  In that context NMFS intends that through comity agreements, using their own laws, the foreign governments will ensure that: (1) care and maintenance standards comparable to the APHIS standards that apply in the U.S. are met; (2) marine mammals continue to be held for purposes consistent with section 104 of the MMPA; and (3) marine mammal inventory information for exported animals is provided to NMFS.

        The export of marine mammals has proven to be one of the more controversial provisions of the MMPA.  Since 1994, NMFS has heard from various parties with divergent views.  Some have argued that, because NMFS has no jurisdiction in foreign countries and the ability to ensure comparable standards are met is subject to changing political situations of foreign governments, exports must be banned altogether.  Others argue that public display facilities should be free to exercise their rights to export with 15 days notice.  They contend that NMFS has no authority to determine comparability, or to require comity letters, and that the requirement to meet comparable standards ends at the time of the export.  Others argue that more stringent requirements are needed, such as the posting of a surety bond prior to export, requiring that annual on-site inspections be performed at the expense of the foreign facility receiving marine mammals from the United States, or seeking a statutory amendment clarifying Congressional intent.  NMFS believes that requiring a comity letter is the most practical and reasonable solution.  However, NMFS is specifically requesting comments on this issue.
        13. Seizure of Marine Mammals
        This section clarifies that the loss of an APHIS Exhibitor’s License is grounds for NMFS to revoke permits or seize marine mammals held for public display.  Receipt from APHIS of a letter of intention to revoke such a license may indicate that a person or facility holding marine mammals is not reasonably likely to meet the requirements to hold them in the future and, therefore, those animals may be seized.  At NMFS′ discretion, the animals may be maintained in the same physical location with the assistance of any person under the direct control of, employed by or under contract to NMFS, or the animals may be physically moved to a new location.  NMFS may recover expenses incurred for the seizure from the holder in accordance with section 104 (c)(2)(D) of the MMPA.
        Classification

        NMFS prepared a Draft EA for this action and will finalize it before the final rule is published.  Copies of the Draft EA are available on request (see ADDRESSES).  NEPA requirements as they pertain to individual permits that may be issued under these proposed regulations will be addressed on a case-by-case basis.
        This proposed rule has been determined to be not significant for the purposes of Executive Order 12866.
        The Chief Counsel for Regulation, Department of Commerce, certified to the Chief Counsel for Advocacy, Small Business Administration, that this proposed rule, if adopted as proposed, would not have a significant economic impact on a substantial number of small entities as follows:

          The proposed rule would not alter the structure of any business or require any modification to these businesses. The types of businesses that this proposed rule would affect are marine mammal parks and aquariums, oceanariums and zoos. The number of these businesses that would qualify as small businesses under the Small Business Administration’s criteria is unknown. However, the only costs to these entities would be the administrative costs associated with applying for permits or major permit amendments and for various reports required for tracking the status of marine mammals held for display purposes. Permit fees would not be required, and the anticipated administrative costs should be minimal.

        Accordingly, an Initial Regulatory Flexibility Analysis was not prepared.

        A Regulatory Impact Review (RIR) was prepared by NMFS and is available upon request (see ADDRESSES).
        The RIR describes the reasons why the action is being considered and contains a succinct summary of the objectives of, and the legal basis for, the proposed rule.  These are described earlier in this preamble.
        The RIR contains a description of the entities to which the proposed rule will apply.  The Small Business Administration Standard Industrial Code for businesses of this type is 8422 - Arboreta and Botanical or Zoological Gardens. The entities within this group that would be affected are primarily existing public display and scientific research entities that hold marine mammals for public display purposes or conduct scientific research on captive marine mammals. The proposed rules may also affect entities that, although subject previously to MMPA requirements, were uncertain regarding such effects due to the less than specific nature of the previous regulations.  The more explicit provisions of the proposed regulations are likely to affect entities whose circumstances or characteristics were not addressed directly or otherwise provided for in previous regulations, i.e., traveling exhibitors.  The proposed rule establishes uniform criteria and requirements for all public display permit applicants and permit holders and others holding marine mammals for public display purposes, as well as consistent procedural, reporting and notification requirements.
        The projected economic impact of the proposed revisions on affected small business entities consists primarily of a reduction in paperwork burden costs and is, therefore, expected to be beneficial.  No other costs have been identified.
        Paperwork Reduction Act
        Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.
        This proposed rule contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA) and which have been approved by OMB under control number 0648-0084.  Public reporting burden for these collections of information is estimated to average 20 hours per response for public display permit applications, 29 hours per response for major amendments, 1 hour for transport/transfer notifications, and 30 minutes for each marine mammal inventory report.
        This proposed rule also contains collection-of-information requirements subject to review and approval by OMB under the Paperwork Reduction Act (PRA).  These requirements and their estimated response times have been submitted to OMB for approval.  Public reporting burden for these collections of information is estimated to average 2 hours for a permit capture report, 30 minutes for a permit import report, 30 minutes for a permit capture notification, 30 minutes for a waiver request of the 15-day advance notice of transport, 30 minutes for an initial escape report, 1 hour for an escape report filed a week after the event, 2 hours for an escape report filed six months after the event, and 1 hour for an export certification.
        The response estimates above include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed , and completing and reviewing the collection of information.

        Public comment is sought regarding: whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to the Permits Division, Office of Protected Resources listed under the ADDRESSES heading of this document, and to OMB at the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC. 20503 (Attention: NOAA Desk Officer).
        The proposed rule does not contain policies with federalism implications sufficient to warrant preparation of a federalism assessment under Executive Order12612.
        NOAA has determined that these proposed regulations do not directly affect the coastal zone of any state with an approved coastal zone management program.

          List of Subjects in 50 CFR Part 216

        Administrative practice and procedure, Imports, Indians, Marine mammals, Penalties, Reporting and recordkeeping requirements, Transportation.

          Dated: June 21, 2001.
          William T. Hogarth,
          Acting Assistant Administrator for Fisheries, National Marine Fisheries Service.

          For reasons set forth in the preamble, 50 CFR part 216 is proposed to be amended as follows:

            PART 216—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE ANIMALS

          1.  The authority citation for part 216 continues to read as follows:

            Authority:
            16 U.S.C. 1361 et seq.

          2.  In § 216.13, paragraphs (c) and (d) are redesignated as paragraphs (e) and (f), respectively, and new paragraphs (c), (d), and (g) are added to read as follows:

            § 216.13
            Prohibited uses, possessions, transportation, sales and permits.

          (c) Any person subject to the jurisdiction of the United States to purchase, possess, export, import, transport, or  transfer a captive marine mammal, except as authorized under the Act or this part 216 and pursuant to a special exception permit, where required (i.e., for the purpose of public display, scientific research, or enhancing the survival or recovery of the species).
          (d) Any person subject to the jurisdiction of the United States to release into the wild a captive marine mammal, except where the release into the wild of such a marine mammal is authorized specifically under a special exception permit, or pursuant to § 216.27 for beached and stranded marine mammals.

          (g) Any person to submit false information to any person authorized by the Secretary to implement or enforce the regulations of this part 216.

          3.  In § 216.27, paragraphs (c)(3) through (c)(6) are redesignated as (c)(5) through (c)(8), respectively, paragraph (c)(2) is redesignated as paragraph (c)(3), and new paragraphs (c)(2) and (c)(4) are added to read as follows:

            § 216.27
            Release, non-releasability, and disposition under special exception permits for rehabilitated marine mammals.

          (c) * * *
          (2) A special exception permit is required to retain a beached or stranded marine mammal that has been determined to be releasable to the wild following rehabilitation (see §§ 216.33 through 216.38 and § 216.43) for scientific research, enhancement or public display.  Retention of any such marine mammal pending issuance of a special exception permit is prohibited unless authorized by the Office Director and must comply with paragraph (b)(5) and (c) of this section.

          (4) Upon receipt of a request to retain or transfer a non-releasable marine mammal for public display at a facility that has not previously held marine mammals for public display, the Office Director shall publish a notice of receipt of the request in the Federal Register and invite comments from interested parties.  The notice will establish a 30-day comment period which must elapse before action can be taken on the request.

          4.  In § 216.32, paragraph (a) is revised to read as follows:

            § 216.32
            Scope.

          (a) All marine mammals and marine mammal parts taken,  including marine mammals born in captivity after December 20, 1972.  The prior status of a marine mammal may be established in accordance with 50 CFR 216.14; and

          5.  In § 216.37, the introductory text and (d)(2) are revised, and a new paragraph (e) is added to read as follows:

            § 216.37
            Marine mammal parts.

          With respect to marine mammal parts acquired by take or import authorized under a permit issued under this subpart or obtained from or following the death of a captive marine mammal held for public display:

          (d) * * *
          (2) A unique number assigned by the permit holder or for parts obtained from or following the death of a captive marine mammal held for public display, the NMFS Marine Mammal Inventory  Identification Number assigned to the subject captive marine mammal is marked on or affixed to the marine mammal specimen or container;

          (e) The Office Director may authorize the importation, without a permit, of any marine mammal part derived from a marine mammal exported from the United States if the purpose of the importation is for medical examination and diagnosis concerning that marine mammal’s health if it is alive or the cause of death if it has died.  Further disposition of any such part must be in accordance with paragraphs (a) through (d) of this section.

          6.  Section 216.43 is added to read as follows:

            § 216.43
            Public display.

          (a) General Public Display Requirements.  (1) For the purposes of the section, the terms “Custody,” “Holder,” “Receiver,” “Transfer,” and “Transports” are defined as follows:
          (i) Custody means the responsibility for and the authority to determine the disposition of the captive marine mammal, including transfer and transport.
          (ii) Holder means any person who has custody of a captive marine mammal.  A holder may also be a public display permit holder.
          (iii) Receiver means a person who receives custody of a transferred marine mammal.  Where an interest in a marine mammal is being purchased or otherwise transferred, the receiver is the purchaser or transferee.  After a marine mammal is transferred, the receiver becomes a holder.
          (iv) Transfer means to convey any custodial interest in a marine mammal by any means including, but not limited to donation, purchase, or sale.  A conveyance of interest in a marine mammal means the transfer of a whole interest.  A transfer of a marine mammal may occur without a transport from one facility to another.
          (v) Transport means the physical movement of marine mammals between facilities or between distinct geographic locations.
          (2) Holders of marine mammals for public display purposes must comply with the three public display requirements at paragraphs (b)(3)(i) through (iii) of this section.

          (3) No person, holder, or facility may conduct intrusive research on any captive marine mammal held for public display purposes unless the Office Director authorizes such research under a separate scientific research or enhancement permit.
          (4)  Right of inspection.  To facilitate compliance with the requirements of § 216.43:
          (i) The holder shall allow any designated employee of NOAA, or any person designated by the Office Director to:
          (A) Examine any marine mammal held for public display;
          (B) Inspect all facilities and operations which support any marine mammal held for public display; and
          (C) Review and copy all records concerning any marine mammal held for public display.
          (ii) The holder shall cooperate with any examination, inspection, or review conducted pursuant to paragraph (b)(6) of this section, and shall provide any other relevant information requested.
          (5) Temporary release authorizations for purposes of open-water training of captive marine mammals may be granted by the Office Director.
          (b) Permits to capture or import marine mammals.  No person may capture a marine mammal from the wild or import a marine mammal for public display purposes, except pursuant to a special exception permit for public display.  In addition to the provisions at § 216.33 through § 216.38, permits for public display are governed by the following requirements:
          (1) Applicant.  The applicant must be the person with or seeking custody of the marine mammal.  If the applicant is a corporation or partnership, the application must indicate the date of incorporation or when the partnership was formed, and the State in which the corporation or partnership was formed. In the case of imports, if authority over the custody of the marine mammal remains with a foreign entity, the applicant must be the U.S. entity that will assume temporary custody of the marine mammal while in the United States.
          (2) Application submission.  (i) An Applicant must submit a complete permit application at least 90 days before the desired effective date of the permit.  Application instructions can be obtained from the Permits Division, Office of Protected Resources.
          (ii) Upon receipt of an incomplete or inaccurate  application, the Office Director will notify the applicant of the deficiency.  If the applicant fails to correct any deficiencies within 60 calendar days, the application will be deemed withdrawn.
          (3) Issuance criteria.  For the Office Director to issue a public display permit, the applicant must:
          (i) Offer a program for education or conservation purposes based on professionally recognized standards of the public display community;

          (ii) Be registered or hold an exhibitor’s license issued under the Animal Welfare Act (AWA), 7 U.S.C. 2131 et seq., and  comply with all applicable Animal and Plant Health Inspection Service (APHIS) standards at 9 CFR subpart E;
          (iii) Maintain a facility for the public display of captive marine mammals that is open to the public on a regularly scheduled basis, with access not limited or restricted other than by charging of an admission fee.  For purposes of this  paragraph (b)(3)(iii):
          (A) A facility includes a traveling display/exhibit where the primary enclosure used to transport a marine mammal is also used as the permanent housing enclosure;
          (B) “Maintaining” a facility includes leasing, owning, or otherwise controlling the facility where the marine mammal will be kept; and
          (C) If an applicant’s facility is under construction at the time application is made and may not be licensed by APHIS before the Office Director’s decision to issue or deny a permit, the applicant must, as part of the application, identify an alternative licensed facility and include a letter from the facility agreeing to hold the subject marine mammals;
          (iv) Demonstrate that the proposed capture or importation of living marine mammals is one that will present the least practicable effect on wild populations;
          (v) Demonstrate that any proposed permanent removal from the wild:
          (A) Is consistent with any applicable quota established by NMFS, or
          (B) Where there is no quota in effect, will not have, by itself or in combination with all other known takes and sources of mortality, a significant direct or indirect adverse effect on the protected species or stock, as determined on the basis of the best available information on cumulative take for the species or stock, including information gathered by the applicant concerning the status of the species or stock; and
          (vi) Demonstrate that the capture of any marine mammal proposed for importation was, or will be, consistent with the MMPA, as outlined in § 216.34.
          (4) Permit restrictions.  In addition to the general permit restrictions outlined in § 216.35, the following restrictions apply to all public display permits issued under subpart D:
          (i) Permit holders must comply with the requirements of paragraphs (b)(3)(i) through (iii) of this section.
          (ii) Permit holders may not capture or import a marine mammal that is:
          (A) From a species or stock designated as depleted under the MMPA or proposed by NMFS to be designated as depleted unless, for imports, the marine mammal to be imported is captive born and the provisions of paragraph (b)(6)(iv)(A) of § 216.41 are met; or
          (B) At the time of capture or import, pregnant, lactating, or either unweaned or less than 8 months old unless the Office Director determines that such capture or importation is necessary for the protection or welfare of the animal.
          (iii) Permit holders may not transfer or transport captive marine mammals unless:
          (A) The receiver meets the public display criteria outlined in paragraphs (b)(3)(i)through(iii) of this section; and
          (B) The permit holder has met all marine mammal transfer/transport notification requirements of § 216.43(e).
          (iv) The authorization to capture a marine mammal from the wild or to import a marine mammal shall be valid for a period of time as set forth in the permit.  If the capture or import does not occur during the period initially authorized, the Office Director may extend the authorized period upon request of the permit holder.
          (5) Permit conditions.  All public display permits issued under this subpart shall, in addition to the specific conditions set forth in § 216.36(a), contain other conditions deemed appropriate by the Office Director, including but not limited to the following:
          (i) For a capture from the wild, the permit holder must provide the Office Director with 15 days notice in advance of the actual date(s) and location of the capture authorized by the permit to allow for the presence of an NMFS observer, if requested by the Office Director.
          (ii) The importation of marine mammals is subject to the provisions of 50 CFR part 14.  No marine mammal may be imported without the permits required under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).  Information regarding CITES permits may be obtained from the U.S. Fish and Wildlife Service.
          (iii) The permit holder must provide the Office Director with at least 15 days notice in advance of the actual date, time, and port of entry for imports.

          (iv) In the case of imports, marine mammals must be transported from the foreign facility to the United States in accordance with the U.S. Department of Agriculture’s Transportation Standards outlined in 9 CFR subpart E.  Ports of entry for imports of marine mammals or marine mammal parts are listed in § 216.50 (a) through (d).
          (v) For any subsequent transfer and/or transport, or export of the subject marine mammal, the permit holder and receiver must comply with the notification and certification requirements of § 216.43 (d) or § 216.43 (f), as appropriate.
          (vi) Progeny of marine mammals imported into the United States are subject to MMPA reporting and transfer notification requirements.  The permit holder and any subsequent holder of captive marine mammals must report births, deaths, and any transfer according to the notification and reporting provisions of § 216.43 (e).
          (vii) The permit holder may hold a marine mammal captured from the wild in a temporary facility, including a facility not licensed by APHIS, for the purpose of acclimation for a period not greater than 6 months provided:
          (A) The holding facility’s sole purpose is the acclimation  of marine mammals captured from the wild, and
          (B) The temporary holding facility meets all applicable AWA standards.
          (viii) The terms and conditions of a public display permit are effective as long as the permit holder maintains custody of the marine mammal authorized to be captured from the wild or imported.
          (6) Permit reports.  In addition to the notification and reporting requirements under § 216.38 and § 216.43 (e), all permit holders are subject to the following reporting requirements:
          (i) Collection reports.  Permit holders must submit a collection report within 30 days of the capture of a marine mammal authorized under a public display permit.  The collection report must describe:
          (A) The name of the individual who captured the marine mammal(s) and other personnel involved in the capture activities;
          (B) The method of taking for each marine mammal, including the gear used;
          (C) The specific date, time and location of the taking, including latitude and longitude and geographical location;
          (D) Any problems, injuries or complications that may have occurred during the collection,
          (E) The taking of any other marine mammals, including by harassment, that occurred during the collection;
          (F) Any lethal takes which occurred in connection with the capture, including the date, time, location, number, and to the extent possible, the age, sex and reproductive condition of the marine mammal(s);
          (G) A description of each marine mammal retained by the permit holder in accordance with the marine mammal inventory requirements of § 216.43 (e)(3); and
          (H) Any other information that the Office Director may require in the permit.
          (ii) Verification of import.  Within 30 days of an import, the permit holder must verify the importation into the United States of the living marine mammal identified in the permit by submitting updated inventory information in accordance with the inventory requirements of § 216.43 (e)(2).
          (c) Re-export of marine mammals imported into the United States.  (1) Holders of marine mammals imported into the United States under the authority of a public display permit may re-export these marine mammals without the foreign certifications specified in § 216.43 (f)(4)(i) through (iii), provided the marine mammal is returning to the original foreign holder and foreign facility.
          (2) Marine mammals re-exported under paragraph (c)(1) of this section are no longer subject to the MMPA transfer notification or reporting requirements.
          (3) A holder exporting the U.S. born progeny of the marine mammals identified in paragraph (c)(1) of this section must comply with the MMPA transfer notification and reporting requirements under § 216.43(e) and any export requirement under CITES.
          (4) The re-export of a marine mammal to a different holder or facility must conform to the export requirements under § 216.43 (f).
          (5) Once a marine mammal is re-exported, the permit holder may not re-import the subject marine mammal unless a new permit to import has been issued by the Office Director pursuant to § 216.43 (b).
          (d) Transfer and/or transport of captive marine mammals within the United States—Transfer and/or transport of marine mammals legally held for public display within the U.S. does not require a permit provided that the receiver complies with the public display requirements of § 216.43 (b)(3)(i) through (iii), and both holder and receiver comply with the notification requirements of § 216.43 (e).  Upon satisfaction of these requirements:
          (1) A holder may:
          (i) Transfer a marine mammal without physically transporting the marine mammal to another facility/physical location;
          (ii) Transport a marine mammal from one facility/physical location to another without transfer, including for purposes of a breeding loan; or
          (iii) Transfer a marine mammal and physically transport the marine mammal to another facility/physical location.
          (2) A receiver may:
          (i) Purchase or otherwise acquire a marine mammal through a transfer without physically transporting the marine mammal from another facility/physical location;
          (ii) Transport or receive a marine mammal from one facility or physical location to another without transfer, including for purposes of a breeding loan; or
          (iii) Purchase or otherwise acquire an interest in a marine mammal through a transfer, and physically transport the marine mammal from another facility/physical location.
          (e) Notifications and reporting.  Any holder of a marine mammal must comply with the following notification and reporting requirements.  If either the holder or receiver fail to meet the public display and/or notification requirements of § 216.43 (b)(3)(i) through (iii) and § 216.43 (e) the conditional right to transfer or transport marine mammals may not be invoked. Holders may obtain complete information regarding submission procedures and reporting from the Permits Division, Office of Protected Resources, 1315 East-West Highway, Silver Spring, MD 20910 or NMFS Marine Mammal Inventory c/o International Species Information System, 12101 Johnny Cake Ridge Road, Apple Valley, MN 55124 8151.
          (1) Fifteen-day notification of transfers/transports of captive marine mammals.  Except as provided in paragraph (e)(3) of this section, the Office Director must receive written notification at least 15 days in advance of any transfer or transport of captive marine mammals held for public display purposes.  Holders may submit a Marine Mammal Transport Notification (MMTN) by facsimile, provided the original is forwarded to the Office Director by certified mail within 3 business days.  Notification must be provided in the following manner:

          (i) The holder and receiver must submit a completed MMTN together with a supporting Marine Mammal Data Sheet (MMDS) for each marine mammal to be transferred.  A completed MMTN includes a MMDS for each animal proposed for transfer and/or transport and a certification signed by both the holder and the receiver which provides that the receiver and/or receiving facility meets the requirements of paragraphs (b)(3)(i) through (iii) of this section.
          (ii) In the case of traveling exhibits, the holder must notify the Office Director at least 15 days in advance of each transport from one location to another, unless the Office Director has approved an alternative notification schedule.
          (iii) In cases involving the transport of a marine mammal for a school visit or similar outreach event in which the marine mammal will be returning to the original holding facility more than 12 hours after departure, the holder must comply with the 15-day notification requirement.  In the absence of 15 days advance notice, the holder must request a transport authorization pursuant to paragraph (e)(3)(i) of this section.
          (iv) Upon receipt of a MMTN, the Office Director will acknowledge receipt of the notification and enter the proposed transfer and/or transport dates into the Marine Mammal Inventory database for those marine mammals identified in the MMTN.
          (v) A new MMTN must be submitted if:
          (A) Transfer and/or transport does not occur within 90 days of the proposed date;
          (B) The receiver or facility changes; or
          (C) Other animals will be transferred and/or transported.
          (2) Verification of receipt.  Receivers must provide verification within 30 days of the date of transfer and/or transport.  Verifications must include a revised MMDS for each marine mammal, indicating the actual date of transfer and/or arrival, the animal name and number assigned by the receiver, and the 8-digit identification number assigned by NMFS.  If the holder does not verify the transfer and/or transport or notify the Office Director of a cancellation, the proposed action will be subject to deletion from the inventory database after 90 days.
          (3) Special authorizations—(i) A holder may receive authorization from the Office Director to transfer and/or transport, but not export, captive marine mammals with less than 15 days advance notification prior to transfer or transport, if the holder and proposed receiver submit a written request for such a transfer and/or transport authorization to the Office Director that includes:
          (A) An  explanation  why  the  transfer  and/or  transport  must  be  conducted  in  less  than  15 days,
          (B) A  completed  and  signed  MMTN,  NOAA  Form  89-881,  and
          (C)  a  MMDS,  NOAA  Form  89-882,  for  each  affected  marine  mammal.
          (ii)  A  holder  may  transfer  and/or  transport,  but  may  not  export,  a  captive  marine  mammal  without  15 days  advance  notification  or  the  Office  Director’s  written  authorization  in  the  case  of  an  emergency  involving  the  imminent  and  serious  jeopardy  to  the  health  or  welfare  of  the  marine  mammal,  provided  that  within  24  hours  of  an  emergency  transfer  and/or  transport,  the  holder  or  the  holder’s  attending  veterinarian  submits  to  the  Office  Director:
          (A) A  written  explanation  of  the  emergency  circumstances  and  justification  for  the  transfer  and/or  transport,  and
          (B) A  MMDS  for  each  affected  marine  mammal.
          (iii)  Upon  resolution  of  the  emergency,  the  holder  must  notify  the  Office  Director  of  the  subsequent  return  of  the  marine  mammal  to  the  holder’s  facility  or  transfer  and/or  transport  to  another  facility.
          (iv)  The  Office  Director  may  periodically  review  emergency  transfers  and/or  transports  conducted  under  the  provisions  of  paragraphs  (e)(3)(i)  and  (ii)  of  this  section.   If  the  Office  Director  determines  that  there  is  a  reasonable  basis  for  questioning  whether  a  holder  has  abused  the  emergency  transfer/transport  allowance,  the  Office  Director  may  notify  a  holder:
          (A) That  they  are  not  authorized  to  conduct  emergency  transfers  or  transports;  or
           (B) Of  the  conditions  under  which  subsequent  emergency  transfers/transports  may  be  conducted;  and
          (C) What  steps  the  holder  may  take  to  remove  the  restrictions  imposed  under  paragraph (e)(3)(iv)(A)  or  (B) of this section.
          (4) Marine  mammal  inventory.   The  Office  Director  maintains  a  computerized  Marine  Mammal  Inventory  database  of  all  captive  marine  mammals  subject  to  the  MMPA.   To  enable  the  Office  Director  to  maintain  this  inventory,  holders  of  captive  marine  mammals  must  provide  an  updated  MMDS  to  the  Office  Director  whenever  a  change  in  inventory  occurs.   To  satisfy  the  30-day  requirement  for  reporting  births,  deaths,  transfers  or  other  changes  in  inventory,  holders  must  submit  by  mail  or  facsimile  written  reports  on  a  MMDS  to  the  Office  Director.   The  Office  Director  will  not  accept  telephone  notification.   This  updated  MMDS  must  include:
          (i)  The  name  or  other  identification  of  the  marine  mammal  involved;
          (ii)  Its  sex;
          (iii)  Its  actual  or  estimated  birth  date;
          (iv)  The  date  of  the  holder's  acquisition  or  disposition  of  the  marine  mammal;
          (v)  The  source  from  which  the  marine  mammal  was  acquired  including  the  location  of  the  stranding  or  take  from  the  wild,  if  applicable;
          (vi)  If  a  marine  mammal  is  being  transferred  and/or  transported,  the  name  and  street  address  of  the  receiver  and/or  receiving  facility  and  the  operator  of  that  facility  if  other  than  the  current  holder  of  the  marine  mammals  being  transferred  and/or  transported;  and
          (vii)  If  a  marine  mammal  dies,  including  stillbirths  and  animals  that  undergo  euthanasia,  the  holder  must  notify  the  Office  Director  within  30  days  of  the  date  of  death.  Notification  must  include  the  date  and  cause  of  death.   If  the  cause  of  death  has  not  been  determined  within  30  days,  holders  must  submit  an  amended  notification  once  the  cause  of  death  is  determined.   A  reasonable  effort  to  determine  the  cause  of  death  must  be  made  by  the  holder.
          (viii)   If  a  marine  mammal  escapes  from  a  facility  or  is  inadvertently  released  it  must  be  reported  immediately  by  phone  or  fax  to  the  Office  Director.   A  status  report  on  the  recovery  effort  and  the  conditions  of  escape  is  required  within  one  week  of  the  event.   An  updated  MMDS  noting  the  escape  or  release  is  required  within  30  days.   The  holder  must  report  the  results  of   all  reasonable  efforts  to  recapture  the  marine  mammal  within  6  months  of  the  escape  or  release.
          (5) Marine  Mammal  Inventory  Report-Summary  (MMIRS)  by  holder/species.   Upon  request  of  the  Office  Director,  holders  of  marine  mammals  subject  to  the  MMPA  must  review,  verify,  and  correct  any  discrepancies  regarding  the  marine  mammals  in  their  custody  and  listed  in  the  Marine  Mammal  Inventory  database.   Holders  may  obtain  information  about  the  marine  mammals  listed  on  their  inventory  and  request  a  MMIRS  for  the  marine  mammals  in  their  collection  at  any  time  by  sending  a  request  to  the  NMFS  Marine  Mammal  Inventory  at  the  address  listed  in  paragraph (e)(8)  of  this  section.
          (6) Change  of  address  or  trade  name.   Holders  must  notify  the  Office  Director  by  certified  mail  15 days  in  advance  of  any  change  in  name,  address  or  ownership.   An  updated  Person/Holder/Facility  Sheet,  NOAA  Form  89-871,  should  accompany  the  holder’s  notification.
          (7) Eligibility.   Holders  must  notify  the  Office  Director  immediately  of  any  other  change  in  operations  that  adversely  affects  the  holder’s  ability  to  meet  the  criteria  set  forth  in  § 216.43 (b)(3),  including  but  not  limited  to  the  expiration,  suspension,  revocation,  of  any  APHIS  registration  or  license,  or  voluntary  termination  upon  request  of  the  holder  or  licensee.
          (8) Submission  address.   Effective (30  days  after  publication  of  the  final  rule  in  the Federal  Register),  all  transfer  and  transport  notifications  and  inventory  reports  must  be  submitted  to  NMFS  Marine  Mammal  Inventory,  c/o  International  Species  Information  System  (ISIS),  1201  Johnny  Cake  Ridge  Road,  Apple  Valley,  MN  55124-8151.   Notifications  of  releases  or  escapes  of  marine  mammals,  collection  reports,  requests  for  waivers  of  the  15-day  advance  notification  requirement,  changes  in  eligibility  to  hold  marine  mammals,  export  notifications,  and  foreign  government  certifications,  must  continue  to  be  provided  to  the  Office  Director  as  specified  in  § 216.43 (e)(1)(iii),(3),  (4)(viii),  and  (7),  and  § 216.43 (f).
           (f) Export  of  captive  marine  mammals.   Marine  mammals  may  be  exported  under  the  authority  of  this  section  only  for  public  display.   Export  of  marine  mammals  legally  held  for  public  display  within  the  U.S.  does  not  require  a  permit  provided  that  the  receiver  complies  with  the  public  display  requirements  of  § 216.43 (b)(3)(i)  through  (iii),  and  both  holder  and  receiver  comply  with  the  requirements  of  this  section.
          (1)   Holders  intending  to  export  marine  mammals  to  a  foreign   holder  or  facility  for  public  display  purposes  must  follow  the  notification  requirements  at  §  216.43 (e)  and  ensure  the  documentation  required  in  paragraphs  (f)(3)  through  (6)  of  this  section  is  submitted  to  the  Office  Director,  together  with  a  copy  of  any  export  permit  required  under  CITES,  at  least  15 days  in  advance  of  the  proposed  export.
          (2) Persons  intending  to  receive  marine  mammals  for  public  display  by  export  from  the  United  States  must  meet  the  public  display  criteria  at  § 216.43 (b)(3)(i)  through  (iii)  and  § 216.43 (f)(1).   To  ensure  compliance  with  this  requirement,  persons  intending  to  receive  marine  mammals  must  submit  to  the  Office  Director,  pursuant  to  § 216.43 (f)(4),  the  following:
          (i)  A  description  of  their  program  for  education  or  conservation  and  identification  of  the  professionally  recognized  standards  upon  which  their  education  program  is  based;
          (ii)  A  letter  from  APHIS  certifying  that:

          (A)  The  receiving  facility  meets  standards  comparable  to  those  applicable  to  U.S.  licensees  and  registrants  under  the  AWA,  7  U.S.C.  2131 et  seq.;
          (B) The  transportation  arrangements  between  the  port  of  entry  and  the  foreign  facility  comply  with  the  AWA  transportation  standards  at  9  CFR  3.112  through  3.118;  and
          (C)  If  the  export  does  not  occur  within  1  year  of  the  certification,  a  new  letter  from  APHIS  must  be  provided.   For  evaluation  under  the  AWA,  persons  intending  to  import  marine  mammals  from  the  United  States  should  contact  APHIS,  U.S.  Department  of  Agriculture,  Riverdale,  MD.
          (iii)  The  name  and  mailing  address  of  the  foreign  receiver,  the  name  and  street  address  of  the  facility  where  the  marine  mammals  will  be  maintained,  the  hours  during  which  the  facility  is  open  to  the  public,  and  the  cost  of  admission.
          (iv)  If  the  foreign  receiver  maintains  more  than  one  public  display  facility  and  the  marine  mammals  will  be  transported  among  these  facilities,  the  receiver  must  provide  the  documentation  requested  in  paragraphs  (f)(2)(i)  through  (iii) of this section  for  each  of  the  facilities,  including  a  Person/Holder/Facility  Sheet,  NOAA  Form  89-871,  for  each  facility.
          (v)  If  the  foreign  receiver  will  lease  the  marine  mammals  to  a  public  display  facility  maintained  by  any  person  other  than  the  receiver,  the  receiver  must  provide,  in  addition  to  the  documentation  requested  in  paragraphs  (f)(2)(i)  through  (iii) of this section,  a  letter  from  the  head  of  the  facility  certifying  that  the  facility   meets  comparable  standards  under  the  AWA  for  the  term  of  the  contract.
          (4)  At  least  15  days in advance  of  any  proposed  export  of  a  marine  mammal  from  the  United  States  for  public  display,  the  Office  Director  must  receive  a  statement  from  an  appropriate  agency  of  the  government  of  the  country  where  the  foreign  receiver/facility  is  located  certifying  that:
           (i)  The  information  submitted  by  the  foreign  receiver/facility  is  accurate;
          (ii)  The  laws  and  regulations  of  the  foreign  government  involved  permit  that  government  to  enforce  requirements  equivalent  to  the  requirements  of  the  U.  S.  Marine  Mammal  Protection  Act  and  U.S.  Animal  Welfare  Act.   The  foreign  government  will  enforce  such  requirements,  and  take  protective  measures  where  necessary  for  marine  mammals  exported  from  the  United  States;  and
          (5)  If  the  foreign  receiver  has  submitted  a  government  certification  as  specified  in  paragraphs  (f)(4)(i)  through  (iii)  of  this  section  to  the  Office  Director  within  the  1-year  period  leading  to  the  export,  the  foreign  recipient  need  only  submit  re-certification  of  accuracy  as  required  by  paragraph  (f)(4)(i)  of  this  section.
          (6)  Documentation,  including  government  certifications  submitted  under  this  section,  must  be  provided  in  English  or  be  accompanied  by  a  certified  English  translation.
          (7)  Marine  mammals  held  for  public  display  by  U.S.  holders  that  are  exported  but  not  transferred  may  be  imported  back  into  the  U.S.  by  the  holder  without  additional  MMPA  permits,  provided  all  other  requirements  are  met,  including  appropriate  CITES  export  authorization  from  the  foreign  government.
          (g) Seizure  of  captive  marine  mammals.   (1)  Marine  mammals  held  for  public  display  are  subject  to  seizure  under  the  following  circumstances:
          (i)  The  holder  does  not  offer,  and  is  not  reasonably  likely  to  offer  in  the  near  future,  a  program  for  education  or  conservation  purposes  that  is  based  upon  professionally  recognized  standards  of  the  public  display  community;
          (ii)  The  holder  does  not  maintain,  and  is  not  reasonably  likely  to  maintain  in  the  near  future,  facilities  for  the  public  display  of  marine  mammals  that  are  open  to  the  public  on  a  regularly  scheduled  basis,  with  access  not  limited  or  restricted  other  than  the  charge  of  an  admission  fee;
          (iii)  The  Office  Director,  with  the  concurrence  of  the  Secretary  of  Agriculture,  determines  that  the  holder  does  not  possess,  and  is  not  reasonably  likely  to  possess  in  the  near  future,  a  registration  or  license  issued  pursuant  to  the  Animal  Welfare  Act  (AWA).   For  purposes  of  this  subparagraph,  marine  mammals  may  be  subject  to  seizure  upon  the  expiration,  suspension,  revocation,  or  notice  of  intent  to  suspend  or  revoke   any  registration  or  license  issued  by  the  Secretary  of  Agriculture.
          (2)  The  holder  shall  reimburse  the  Secretary  for  any  costs  associated  with  the  seizure  of  a  marine  mammal  that  occurs  under  paragraph  (g)(1) of this section.

            Table  1 to § 216.43.  Submission  Schedule

              Time
              Location
              NMFS   (MD)
              NMFS c/o ISIS   (MN)

              Permit   Application: At   least   90   days   in   advance
              X

              Application   Amendment: At   least   90  days in advance
              X

              Collection Report:Within 30   days
              X

              Birth and Death Reports: Within 30 days

              X

              Other Marine Mammal Inventory Updates:  As    requested by OD

              X

              Domestic Transfer Notifications:  At least 15 days in advance

              X

              Export Notifications:  At least 15 days in advance
              X

              Foreign   Government Certifications: At least 15 days  in   advance
              X

              Transfer/Export Verifications: Within 30 days

              X

              Transfer   Authorization   Requests: Less than 15 days in advance
              X

              Traveling Exhibitor’s Transfer Notifications: 15 days in advance unless  otherwise arranged with OD
              X

              Address/Trade Name Changes: Within 15 business days

              X

              Termination of Exhibitor’s  License/Registration:  Immediately-
              X

      [FR Doc. 01-16600 Filed 7-2-01; 8:45 am]
      BILLING CODE  3510-22-S