[Federal Register Volume 66, Number 128 (Tuesday, July 3, 2001)]
[Proposed Rules]
[Pages 35209-35220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-16600]


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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.

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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

[[Page 35210]]

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 Sec. 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 Sec. 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:

[[Page 35211]]

    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, Sec. 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 Sec. -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 Sec. 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.

[[Page 35212]]

    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

[[Page 35213]]

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.

[[Page 35214]]

 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

[[Page 35215]]

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 Sec. 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:


Sec. 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 Sec. 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 Sec. 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:


Sec. 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 Secs. 216.33 through 216.38 and 
Sec. 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 Sec. 216.32, paragraph (a) is revised to read as follows:


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


Sec. 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:


Sec. 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

[[Page 35216]]

a separate scientific research or enhancement permit.
    (4) Right of inspection. To facilitate compliance with the 
requirements of Sec. 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 Sec. 216.33 
through Sec. 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 
Sec. 216.34.
    (4) Permit restrictions. In addition to the general permit 
restrictions outlined in Sec. 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 Sec. 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 Sec. 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 
Sec. 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

[[Page 35217]]

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 Sec. 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 Sec. 216.43 (d) or 
Sec. 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 Sec. 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 Sec. 216.38 and Sec. 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 
Sec.  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 
Sec. 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 Sec. 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 Sec.  
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 Sec. 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 Sec. 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 
Sec. 216.43 (b)(3)(i) through (iii), and both holder and receiver 
comply with the notification requirements of Sec. 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 Sec. 216.43 (b)(3)(i) through (iii) and 
Sec. 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

[[Page 35218]]

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 Sec. 216.43 
(b)(3),

[[Page 35219]]

 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 Sec. 216.43 (e)(1)(iii),(3), (4)(viii), and 
(7), and Sec. 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 Sec. 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 Sec.  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 Sec. 216.43 (b)(3)(i) through (iii) and Sec. 216.43 (f)(1). To 
ensure compliance with this requirement, persons intending to receive 
marine mammals must submit to the Office Director, pursuant to 
Sec. 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.

[[Page 35220]]



                                  Table 1 to Sec.  216.43. Submission Schedule
----------------------------------------------------------------------------------------------------------------
                                                                               Location
                        Time                         -----------------------------------------------------------
                                                            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                                                      X
 by OD
Domestic Transfer Notifications: At least 15 days in                                                     X
 advance
Export Notifications: At least 15 days in advance                    X
Foreign Government Certifications: At least 15 days                  X
 in advance
Transfer/Export Verifications: Within 30 days                                                            X
Transfer Authorization Requests: Less than 15 days                   X
 in advance
Traveling Exhibitor's Transfer Notifications: 15                     X
 days in advance unless otherwise arranged with OD
Address/Trade Name Changes: Within 15 business days                                                      X
Termination of Exhibitor's License/Registration:                     X
 Immediately
----------------------------------------------------------------------------------------------------------------

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