7302 Federal Register / Vol. 62, No. 32 / Tuesday, February 18, 1997 / Rules and Regulations

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 18

RIN 1018–AD04

Importation of Polar Bear Trophies

From Canada Under the 1994

Amendments to the Marine Mammal

Protection Act

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: The U.S. Fish and Wildlife

Service (Service) establishes application

requirements, permit procedures, and a

fee for the issuance of permits to import

trophies of polar bears (Ursus

maritimus) sport hunted in Canada,

including bears taken before the

enactment of the 1994 Amendments.

The Northwest Territories (NWT) is

the only area in Canada that currently

allows sport hunting. The Service finds

that the NWT polar bear management

program meets the general criteria in the

Marine Mammal Protection Act

(MMPA) and approves specific

populations when provisions are in

place to be consistent with the

International Agreement on the

Conservation of Polar Bears

(International Agreement) and ensure

the maintenance of the affected

population at a sustainable level. The

Service intends these findings to be

effective for multiple sport-hunting

seasons pending review as required

under the MMPA.

DATES: This rule is effective March 20,

1997.

FOR FURTHER INFORMATION CONTACT:

Kenneth Stansell, Office of Management

Authority, 4401 N. Fairfax Drive,

Arlington, Virginia 22203, telephone

(703) 358–2093; fax (703) 358–2281.

SUPPLEMENTARY INFORMATION: On April

30, 1994, Congress amended the MMPA

to allow for the issuance of permits to

import sport-hunted trophies of polar

bears legally taken by the applicant

while hunting in Canada. At the present

time, Canada is the only country that

allows non-residents to harvest polar

bears through a regulated sport-hunting

program. Prior to the 1994

Amendments, the MMPA required those

seeking authority to import polar bear

trophies from Canada to obtain a waiver

of the MMPA’s moratorium on

importing marine mammals. The

Amendments provide for development

of regulations to authorize the import of

sport-hunted trophies by permit.

This final rule establishes the

application requirements, permit

procedures, issuance criteria, permit

conditions, and issuance fee for such

permits and makes the legal and

scientific findings required by the

MMPA. Under section 104(c)(5)(A) of

the MMPA, before issuing a permit for

the import of a polar bear trophy, the

Service must make a finding that the

applicant legally took the polar bear

while hunting in Canada. In

consultation with the Marine Mammal

Commission (MMC) and after

opportunity for public comment, the

Service also must make the following

findings: (A) Canada has a monitored

and enforced sport-hunting program

that is consistent with the International

Agreement; (B) Canada has a sporthunting program based on scientifically

sound quotas ensuring the maintenance

of the affected population stock at a

sustainable level; (C) the export from

Canada and subsequent import into the

United States are consistent with the

provisions of the Convention on

International Trade in Endangered

Species (CITES) and other international

agreements or conventions; and (D) the

export and subsequent import are not

likely to contribute to the illegal trade

in bear parts.

According to the Committee Report

(H.R. Rep. No. 439, 103d Cong., 2d Sess.

(1994)), Congress placed these

provisions in the law partly to ensure

that the import of polar bear trophies

into the United States would not

increase hunting demand in Canada that

would result in unsustainable harvest

levels. The Committee believed

Canada’s polar bear management

program regulates harvest through a

quota system based on principles of

sustainable yield and Canada would

base any increase in the harvest quota

on scientific data showing the

population had increased to such an

extent as to support an increase in the

quota.

This final rule provides information

on polar bear biology and Canada’s

management program for this species.

The Service discusses each of the legal

and scientific findings for the NWT in

relation to the information provided and

made these findings in consultation

with the MMC and after notice and

opportunity for public comment.

The Service consulted with the

Canadian wildlife authorities to gather

information on Canada’s program. Based

on the best available scientific

information on polar bear populations

in Canada and current information on

Canada’s management program, the

Service believes its findings are

consistent with section 104(c)(5)(A) of

the MMPA.

Application Procedures

Section 18.30 establishes the

application requirements, permit

procedures, issuance criteria, permit

conditions, and fees to allow for the

importation of polar bear trophies. The

applicant also must meet the applicable

requirements in 50 CFR Parts 13

(General permit procedures), 14

(Importation, exportation, and

transportation of wildlife), 18 (Marine

mammals), and 23 (Endangered species

convention (CITES)). Thus, for example,

all sport-hunted polar bear import

permits will be subject to the conditions

of the new § 18.30(e), as well as the

prohibitions of § 18.12(c)(1) and (2)

regarding the import of pregnant or

nursing marine mammals.

To ensure the requirements are met,

the sport hunter must submit an

application to the Service’s Office of

Management Authority. The application

form will outline the general

information needed for permit

processing and information specific to

the import of a trophy of a polar bear

taken in Canada. This includes

information indicating that the

applicant legally hunted the bear, the

sex of the bear, and an itemized

description of the polar bear parts to be

imported (e.g., one female polar bear

trophy consisting of a tanned hide, 2.5

m head to tail length, with claws

attached and skull). Inheritors of

trophies taken by a hunter who died

prior to import of the trophy must

provide documentation to show that he

or she is the lawful heir.

The Service recognizes that some

applicants may wish to apply for an

import permit prior to sport hunting.

The Service will accept such

applications for processing but will not

issue a permit until the applicant

submits the permit issuance fee of

$1,000 and any information that may

not have been known at the time of

application, i.e., an itemized description

of the polar bear parts, sex of the polar

bear, information indicating that the

applicant legally harvested the bear,

certification that the bear was not

pregnant or nursing (i.e., in a family

group) or a bear constructing or in a den

at the time of take, documentation to

confirm the bear was not pregnant at the

time of take, and any available

documentation to indicate the bear was

not taken while part of a family group.

Definitions

The definitions in Parts 10, 18, and 23

of 50 CFR apply to this section.

The Service defined the term ‘‘sporthunted trophy’’ to specify what parts of

the polar bear are included in the term
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and to stipulate that the permittee may

only import such items for personal,

noncommercial use. The Service

considered the House Committee Report

(H.R. Rep. No. 439, 103d Cong., 2d Sess.

(1994)) in developing the definition.

The report states that ‘‘Trophies

normally constitute the hide, hair, skull,

teeth, and claws of the animal, that can

be used by a taxidermist to create a

mount of the animal for display or

tanned for use as a rug. This provision

does not allow the importation of any

internal organ of the animal, including

the gall bladder.’’

The definition in this rule includes

parts that are traditionally considered

trophy items for personal display and

excludes items such as clothing and

jewelry. Since the definition includes

skull, teeth, bones, and baculum (penis

bone), the Service points out that these

items must be marked in accordance

with marking requirements for loose

parts under the laws and regulations of

Canada and the United States

(§ 18.30(e)(7)).

The terms and conditions of the

import permit govern the subsequent

use of the trophy, outlining that even

after import the permittee may only

alter and use the trophy in a manner

consistent with the definition of a sporthunted trophy.

The Service defined the term

‘‘management agreement’’ for the

purposes of this rule to mean a written

agreement between parties that share a

polar bear population which describes

what portion of the harvestable quota

will be allocated to each party and other

measures that may be taken for the

conservation of the population, such as

harvest seasons, sex ratio of the harvest,

and protection of females and/or cubs.

Review by the Marine Mammal

Commission

The MMPA requires the Service to

make the specific findings outlined in

section 104(c)(5)(A) in consultation with

the MMC, an independent Federal

agency with statutory authority to make

recommendations pursuant to Title II of

the Act. On November 9, 1995, the

MMC, in consultation with its

Committee of Scientific Advisors,

provided the Service substantive

comments on the proposed rules. The

Service carefully evaluated this advice,

clarified some information with the

Canadian Wildlife Service (CWS) based

on the advice, and considered the

information in making the decisions in

this final rule.

Procedures for Issuance of Permits and

Modification, Suspension, or

Revocation of Permits

The general procedures to be followed

for issuance, modification, suspension,

or revocation of permits are set forth in

50 CFR Part 13 and 18.33. Section 18.33

outlines the application procedures

required by section 104(d) of the

MMPA. When Congress added section

104(c)(5) to the MMPA to allow for

issuance of permits to import polar bear

trophies, they did not exempt polar bear

applications from the procedures in

section 104(d) that require the Service to

publish a notice of each permit

application in the Federal Register for

a 30-day public comment period.

Issuance Criteria

Before the Service can issue a permit,

the Service must consider the issuance

criteria of this section in addition to the

general criteria in 50 CFR 13.21. The

first issuance criterion provides that the

specimen is ineligible for a permit if the

applicant already imported it into the

United States without a permit or if the

Federal government seized it for illegal

import.

The second and third issuance criteria

specify what parts qualify under the

definition as a sport-hunted trophy and

stipulate who can be the applicant. The

floor debate in the House of

Representatives (140 Cong. Rec. H2725,

April 26, 1994) emphasized that the

intent of Congress was to limit import

of polar bear trophies to the hunter who

actually took the polar bear and who

desires to import the trophy. If an

individual who legally took a polar bear

dies prior to the import, however, the

heirs of that person’s estate could apply

for an import permit.

The Service took the next issuance

criteria directly from the language of the

law at section 104(c)(5)(A)(I)–(iv) and

addresses determinations in regard to

these criteria in the section on legal and

scientific findings.

Permit Conditions

The general permit conditions in Part

13 of this subchapter apply. In addition,

every permit issued is subject to the

conditions currently in the regulations

for marine mammal permits at

§ 18.31(d). These conditions require the

permittee or an agent to possess the

original permit at the time of import and

to ensure a duplicate copy of the permit

is attached to the container that holds

the polar bear specimen while in storage

or transit.

This rule adds eight conditions that

help the Service make the legal and

scientific findings required by the

MMPA. These conditions specify that

the permittee: may not import internal

organs of the polar bear; may not alter

and use the trophy except in a manner

consistent with the definition of a sporthunted polar bear trophy even after

importing the trophy; may not import a

polar bear that was a nursing bear or a

female with such a bear (i.e., in a family

group), a bear in a den or moving into

a den, or a pregnant female, at the time

of take; must ensure the import of a

trophy is accompanied by a CITES

export permit or re-export certificate;

must import the trophy through a

designated port, except for full mounts

when accompanied with an exception to

designated port permit; must import all

parts of the trophy at the same time;

must ensure the hide is permanently

tagged and parts marked; and if the tag

is lost, must present the trophy to the

Service for retagging in a timely manner.

Duration of Permits

The Service designates the duration of

the permit on the face of the permit.

Permits for the import of sport-hunted

polar bear trophies will be valid for no

longer than one year, a timeframe that

should allow for the import to occur.

Fees

The MMPA requires the Director to

establish and charge a reasonable

issuance fee for polar bear trophy

import permits. The Service can issue

the permit only after the applicant has

paid the issuance fee which is due upon

notice that the Service has approved the

application. The issuance fee is in

addition to the standard permit

processing fee of $25 that is required at

the time of application in accordance

with 50 CFR 13.11(d).

The Service set the issuance fee at

$1,000. The Committee Report outlined

that the Committee considered a

reasonable fee to range from $250 to

$1,000. The Service believes this level

of fee is appropriate given the use of

such funds for polar bear conservation.

The MMPA further requires the

Service to use all of the issuance fee for

polar bear conservation programs

conducted in Alaska and Russia under

section 113(d) of the MMPA. The

United States has concern for polar bear

conservation worldwide, as shown by

adoption of the International

Agreement. The population shared

between Alaska and Russia is of

particular concern in light of renewed

interest in polar bear hunting in Russia

and the need for a well monitored and

enforced conservation program in that

country.
7304 Federal Register / Vol. 62, No. 32 / Tuesday, February 18, 1997 / Rules and Regulations

Scientific Review

The MMPA required the Service to

undertake a scientific review of the

impact of the issuance of import permits

on the polar bear populations in Canada

within 2 years from the enactment of the

MMPA, that was by April 30, 1996. Due

to the time it has taken to develop the

final rule, the Service is setting the

timeframe for this review as 2 years

from the effective date of the final rule.

The review provides for the

monitoring of the effects of permit

issuance on Canada’s polar bear

populations and a means to guarantee

the cessation of imports should there be

an indication of a significant adverse

impact on the sustainability of the

Canadian populations. The Service is

not defining the phrase ‘‘significant

adverse impact’’ at this time but

considers the intent of the 1994

Amendments was to require the Service

not to issue trophy permits if the

issuance of such permits was negatively

affecting the sustainability of Canada’s

polar bear populations. Congressman

Jack Fields, during the House of

Representatives floor debate on the 1994

Amendments stated, ‘‘A significant

adverse impact means more than a

simple decrease, ordinary fluctuation, or

normal change in the population cycle.

A decline should not be considered

significant if the decline is of short

duration, affects a minuscule percentage

of the population, or does not jeopardize

the sustainability of the species in the

long term. The decrease must be proven

to be directly related to the trophy

imports by sport hunters and of such a

magnitude as to warrant suspension of

those imports. Even so, the issuance of

permits should not be suspended unless

Canada does not reduce the harvest

quota in response to this decline.’’ (140

Cong. Rec. H2725. April 26, 1994)

The MMPA requires the Service to

base the review on the best scientific

information available and solicit public

comment. The final report must include

a response to such public comment. The

Director must not issue permits

allowing for the import of polar bears

taken in Canada if the Service

determines, based on such review, that

the issuance of permits is having a

significant adverse impact on the polar

bear populations in Canada.

Following the mandatory review of

the impact of the issuance of permits on

Canadian polar bear populations, the

Director may conduct subsequent

annual reviews. If the Director does

undertake a review, the MMPI requires

that the Service complete the review by

January 31. The Director may not refuse

to issue permits solely on the basis that

the Service did not complete the review

by January 31. However, the Director

may refuse to issue permits if the

Service cannot make the legal and

scientific findings as described below.

Consideration of Population Stocks

Under the MMPI

The language in the MMPI refers to

both an ‘‘affected population stock’’ and

‘‘affected population stocks,’’ raising the

question of whether the Service needs to

make the findings on one population for

the whole of Canada or on each of the

12 identified population stocks.

Canada’s polar bears have alternatively

been described in terms of management

units, subpopulations, or populations.

Discussions of polar bears frequently

use inconsistent terms. For example,

one summary at the Polar Bear

Specialist Group (PBSG) 1993 meeting

referred to polar bears in terms of a

‘‘circumpolar population,’’ as

‘‘Canadian populations,’’ and ‘‘world’s

polar bear sub-populations’’ (PBSG

1995).

Section 3(11) of the MMPA defines

the term ‘‘population stock’’ as ‘‘a group

of marine mammals of the same species

or smaller taxa in a common spatial

arrangement, that interbreed when

mature.’’ The decision to consider a

segment as a distinct population

includes relative discreteness of the

grouping in relation to the whole, i.e.,

whether the population is markedly

separate from other populations as a

consequence of physical, physiological,

ecological, or biological factors.

There have been difficulties in

consistently defining population stocks

for many marine species under the

MMPA. Dr. Barbara Taylor (1995) in a

NMFS administrative report pointed out

that although the definition of

population remains elusive, it can be

critical to good management. She

asserted that ‘‘population stock’’ in the

MMPA has both a biological and

management meaning. In her

discussion, Dr. Taylor contended that

two populations should be managed

separately if interchange is low as there

are potentially strong negative effects of

treating large areas as single populations

when mortality is concentrated in small

areas. Dr. Taylor also suggested that

‘‘maintaining the range of a species

meets the MMPA objective of

maintaining marine mammals as

significantly functioning elements of

their ecosystems.’’

Canada’s management program for

polar bear recognizes 12 discrete

populations with a set quota for humancaused mortality specific to each

population. Canada recognizes that it is

important when delineating populations

for effective management to consider

geographic barriers, distribution,

abundance, rate of exchange,

recruitment, and mortality. Harvest data

and scientific research have provided

information to show that each

population is relatively closed, with a

clear core area and minimal overlap. A

recent publication by Bethke et al.

(1996) provides information on the

manner in which the NWT populations

are delineated, including methods and

types of statistical analyses involved.

Lee and Taylor (1994) summarized

information on harvest data and

practices.

Since harvest data and scientific

research of Canada’s polar bears have

provided information to show that

interchange between populations is low

and human-caused mortality is

concentrated within localized areas, the

Service believes the management of

polar bears in Canada as discrete

populations is consistent with the term

‘‘population stock’’ as used in the

MMPA and helps to ensure the

maintenance of the polar bear

throughout its range in Canada. Thus,

the Service looked at whether it could

make the required findings of the

MMPA for each of Canada’s 12 polar

bear populations.

Population Status and Distribution

Although polar bears occur in most

ice-covered areas of the Arctic Ocean

and adjacent coastal land areas, their

distribution is not continuous. They are

most abundant along the perimeter of

the polar basin for 120 to 180 miles (200

to 300 kilometers) offshore. The primary

prey of polar bears is the ringed seal

(Phoca hispida), followed by the

bearded seal (Erignathus barbatus), with

the relative abundance of seals affecting

the distribution of polar bears. The longterm distribution of polar bears and

seals depends on the availability of

habitat which is influenced by seasonal

and annual changes in ice position and

conditions (U.S. Fish and Wildlife

Service (USFWS) 1995).

It is estimated that there are 21,000 to

28,000 polar bears worldwide (PBSG

1995). The number of polar bears in

Canada is estimated at 13,120 and is

dispersed among 12 relatively discrete

stocks as discussed above (Government

of the Northwest Territories (GNWT)

unpublished documents on file with the

Service) (Map 1).

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BILLING CODE 4310–55–C
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Canada initially identified the

boundaries of polar bear populations

based on geographic features using

reconnaissance surveys. Over time,

Canada has confirmed and refined

boundaries through scientific research

on the movement of polar bears (e.g.,

mark-recapture, mark-kill harvest data,

radio tracking, and satellite telemetry),

local knowledge of bear movements,

and physical factors affecting

movements, such as ice formation and

location of polynyas (i.e., areas where

ice consistently breaks up and creates

open water or areas where ice is

refrozen at intervals during the winter)

(GNWT). Canada expects to revise

boundaries as research continues.

The boundaries of some of the 12

populations fall outside of Canadian

jurisdiction. Specifically, extensive eastwest movements of polar bears occur

between northwestern Canada and

northern Alaska, while in eastern

Canada there is some information which

demonstrates movement of bears

between Canada and Greenland. The

extent of this exchange is not yet clear.

Reproduction and Survival

Polar bears are intimately associated

with Arctic ice. Based on the

unpredictability in the structure of

Arctic sea ice and associated availability

of food, it is thought that adult males do

not defend stable territories but may

instead distribute themselves among

different sea ice habitats at the same

relative densities as solitary adult

females (Ramsay and Stirling 1986).

Males locate females that are ready to

breed by scent and tracks. Polar bears

mate while on the sea ice from late

March through May, with implantation

occurring in September. They typically

form maternity dens in drifted snow in

late October and November and cubs are

born in December through January

(USFWS 1995).

A summary of research data on the

reproduction and survival in polar bears

is given in Taylor et al. (1987) and

Ramsay and Stirling (1986). Polar bears

have a low birth rate and exhibit birth

pulse reproduction. A small number

breed for the first time at 3 years of age

and slightly more at 4 years of age. Most

females start to produce young at 5 or

6 years of age. Cubs remain with the

female until they are about 2.5 years

old, during which time the female

avoids associating with adult males.

This results in a skewed sex ratio, with

fewer females available to breed in any

one year than males and in intrasexual

competition among males for access to

breeding females. When the cubs are

weaned, the female is again ready for

breeding. Some females lose their cubs

before weaning and are available for

breeding the next season. Overall

survival rates of cubs, adult female

survival rates, litter size, and litter

production rates affect the number of

females available to breed. Females, on

the average, breed every 3 years and

stop reproducing at about 20 years of

age.

Typically, each litter consists of two

cubs with an overall 50:50 sex ratio.

However, due to mortality, the average

litter size ranges from 1.58 to 1.87 in the

High Arctic populations to as high as

2.0 in Hudson Bay. The first year

survival rate is high (0.70 to 0.85)

because of the long period of female

parental care. The life history strategy of

the polar bear is typified by high adult

survival rates (0.76 to 0.95) (GNWT).

Canada’s Polar Bear Management

Program

Polar bears occur in Canada in the

Northwest Territories, in the Yukon

Territory, and in the provinces of

Manitoba, Ontario, Quebec, and

Newfoundland and Labrador (Map 1).

All 12 polar bear populations lie within

or are shared with the NWT. The NWT

geographical boundaries include all

Canadian lands and marine

environment north of the 60th parallel

(except the Yukon Territory) and all

islands and waters in Hudson Bay and

Hudson Strait up to the low water mark

of Manitoba, Ontario, and Quebec. The

offshore marine areas along the coast of

Newfoundland and Labrador are under

Federal jurisdiction (GNWT).

Although Canada manages each of the

12 populations of polar bear as separate

units, there is a somewhat complex

sharing of responsibilities. While

wildlife management has been delegated

to the Provincial and Territorial

Governments, the Federal Government

(Environment Canada’s CWS) has an

active research program and is involved

in management of wildlife populations

shared with other jurisdictions,

especially ones with other nations. In

the NWT, Native Land Claims resulted

in Co-management Boards for most of

Canada’s polar bear populations.

Canada formed the Federal-Provincial

Technical and Administrative

Committees for Polar Bear Research and

Management (PBTC and PBAC,

respectively) to ensure a coordinated

management process consistent with

internal and international management

structures and the International

Agreement. The committees meet

annually to review research and

management of polar bears in Canada

and have representation from all the

Provincial and Territorial jurisdictions

with polar bear populations and the

Federal Government. Beginning in 1984,

members of the Service have attended

meetings of the PBTC and biologists

from Norway and Denmark have

attended a number of meetings as well.

In recent years, the PBAC meetings have

included the participation of nongovernment groups, such as the

Inuvialuit Game Council and the

Labrador Inuit Association for their

input at the management level. The

annual meetings of the PBTC provide

for continuing cooperation between

jurisdictions and for recommending

management actions to the PBAC

(Calvert et al. 1995).

NWT Polar Bear Management Program

The GNWT manages polar bears

under the Northwest Territories Act

(Canada). The 1960 Order-in-Council

granted authority to the Commissioner

in Council (NWT) to pass ordinances

that are applicable to all people to

protect polar bear, including the

establishment of a quota system. The

Wildlife Act, 1988, and Big Game

Hunting Regulations provide supporting

legislation which addresses each polar

bear population.

Although the Inuvialuit and Nunavut

Land Claim Agreements supersede the

Northwest Territories Act (Canada) and

the Wildlife Act, no change in

management consequences for polar

bears is expected since the GNWT

retains management and enforcement

authority. Under the umbrella of this

authority, polar bears are now comanaged through wildlife management

boards made up of Land Claim

Beneficiaries and Territorial and Federal

representatives. One of the strongest

aspects of the program is that the

management decision process is

integrated between jurisdictions and

with local hunters and management

boards. A main feature of this approach

is the development of Local

Management Agreements between the

communities that share a population of

polar bears. Management agreements are

in place for all NWT populations.

However, in the case of populations that

the NWT shares with Quebec and

Ontario (neither of which is approved

under the criteria specified in this rule),

the management agreement is not

binding upon residents of communities

outside of NWT jurisdiction.

The GNWT uses these agreements to

develop regulations that implement the

agreements. In addition to regulations to

enforce the agreements, there is strong

incentive to comply with the

management agreements since they are

developed co-operatively between the

government and the resource users who

directly benefit from the commitment to
Federal Register / Vol. 62, No. 32 / Tuesday, February 18, 1997 / Rules and Regulations 7307

long-term maintenance of the

population. The interest and willingness

of members of the community to

conform their activities to observe the

law reinforces other law enforcement

measures. Regulations specify who can

hunt; season timing and length; age and

sex classes that can be hunted; and the

total allowable harvest for a given

population in Polar Bear Management

Areas. The Department of Renewable

Resources (DRR) has officers to enforce

the regulations in most communities of

the NWT. The officers investigate and

prosecute incidents of violation of

regulations, kills in defense of life, or

exceeding a quota.

Harvest of Polar Bears

The hunting of polar bears is an

important part of the culture and

economy of indigenous peoples of the

Arctic (PBSG 1995). Canada first

imposed a hunting season in 1935;

restricted hunting opportunities to

Native people in 1949; and introduced

quotas for polar bears in 1967. The

harvest of polar bears was almost 700 in

1967/68, but dropped dramatically with

the introduction of quotas. The largest

increase occurred in the 1978/79 season

when the quota was increased by 12

percent (Lee et al. 1994).

There often are a number of

communities within the boundaries of

each polar bear population. The total

sustainable harvest for each population

is divided among communities that

harvest polar bears within the

population boundaries. The resulting

portions are referred to as the settlement

quotas. When agreement on a

community’s settlement quota has been

reached, that number of tags are

provided each year to the Hunters’ and

Trappers’ Organizations or Associations

or Committees (HTO). Some

communities may hold quota tags for

several separate populations within

their traditional hunting area, but

communities may use tags only for the

population for which the tags are issued

(GNWT).

The GNWT does not administer sport

hunting separately from other polar bear

harvesting. An agent or broker usually

arranges the polar bear sport hunts. In

general, the agent or broker contacts the

community’s HTO to arrange for the

hunt including the acquisition of a

hunting license and tag for the hunter.

If the community has not already

decided what portion of its quota, if

any, to designate for sport hunters, the

HTO representative presents all requests

for sport-hunting tags at a community

meeting. The community decides on the

number of tags designated for sport

hunting. The tag cannot be resold or

used by other sport hunters. In most

cases the DRR officer retains the polar

bear tags for sport hunts and provides

them to the hunters. In a few cases, the

HTO representative retains the tags and

provides them to the hunters (GNWT).

There is substantial economic return

to the community from sport hunts. The

potential value of the actual hunt cost

in 1993/94 in Parry Channel for one

polar bear was $18,500 (US) with 80

percent of the money staying in the

community. However, only a few

communities currently take part in sport

hunts as it reduces hunting

opportunities for local hunters (GNWT).

Table 1 summarizes the number of sport

hunts that occurred in the different

populations in the NWT for the 1992/93

and 1993/94 seasons. Overall, the

number of quota tags used for sport

hunting, including unsuccessful hunts,

compared to the total known kill in the

NWT averaged 10.9 percent for the

1989–1994 hunting seasons (Table 2).

Sport hunting for polar bears began in

the NWT in 1969/70 with three hunts

and gradually increased (GNWT). Over

the five seasons between 1989–1994 the

total number of sport hunts ranged from

37 to 66 (Table 2). All sport hunts are

subject to certain restrictions. Sport

hunts must be conducted under

Canadian jurisdiction and guided by a

Native hunter. In addition,

transportation during the hunt must be

by dog sled, the tags must come from

the community quota, and tags from

unsuccessful sport hunts may not be

used again.

The success rate of a sport hunt is

relatively high. The 1989–1994 seasons

are characterized by success rates of 76

to 84 percent (Table 2), although the

success rate does vary between

populations (Table 1). Sport hunters

typically select trophy animals, usually

large adult males. For example, in the

1993/94 hunting season, 79 percent of

polar bears taken as sport-hunting

trophies were male (Table 1).

TABLE 1.—STATISTICS FOR POLAR BEAR SPORT HUNTING IN THE NWT FOR POPULATIONS IDENTIFIED AS SOUTHERN

BEAUFORT SEA (SB), NORTHERN BEAUFORT SEA (NB), QUEEN ELIZABETH ISLANDS (QE), PARRY CHANNEL (PC),

BAFFIN BAY (BB), GULF OF BOOTHIA (GB), AND FOXE BASIN (FB)

Population

1993/94 Season 1992/93 Season

Number

killed (number not successful)

Sport hunt

percent of

total

Percent

male

Number

Killed (number not successful)Percent of

total

SB ............................................................................................................. 3 (3) 9.7 67 1 (0) 2.7

NB ............................................................................................................. 2 (3) 8.1 100 1 (1) 5.4

QE ............................................................................................................. 0 (1) 1.6 .................... 1 (0) 2.7

PC ............................................................................................................. 26 (2) 45.2 85 22 (2) 64.9

BB ............................................................................................................. 5 (0) 8.1 80 2 (1) 8.1

GB ............................................................................................................. 7 (3) 16.1 86 4 (1) 13.5

FB ............................................................................................................. 5 (2) 11.3 40 0 (1) 2.7

Total ................................................................................................... 48 (14) .................... 79 31 (6) ....................

TABLE 2.—SUMMARY OF SPORT HUNT KILLS IN NWT

Season Total sport

hunt

Number

killed (percent success)Known total

kill in NWT

Percent

total sport

hunt to

known kill in

NWT

1989/90 ............................................................................................................................. 60 48 (80) 537 11.2

1990/91 ............................................................................................................................. 66 50 (76) 490 13.5
7308 Federal Register / Vol. 62, No. 32 / Tuesday, February 18, 1997 / Rules and Regulations

TABLE 2.—SUMMARY OF SPORT HUNT KILLS IN NWT—Continued

Season Total sport

hunt

Number

killed (percent success)Known total

kill in NWT

Percent

total sport

hunt to

known kill in

NWT

1991/92 ............................................................................................................................. 48 39 (81) 549 8.7

1992/93 ............................................................................................................................. 37 31 (84) 506 7.3

1993/94 ............................................................................................................................. 62 48 (77) 432 14.4

Average ..................................................................................................................... .................... .................... .................... 10.9

Legal and Scientific Findings and

Summary of Applicable Information

Currently, only the GNWT allows the

sport hunting of polar bears. The

Service reviewed the available scientific

and management data for each of the 12

populations contained wholly or partly

within the NWT and made findings to

approve populations on an aggregate

basis when the criteria of section

104(c)(5)(A) were met. The Service

intends these findings to apply to bears

taken in multiple harvest seasons, but

can consider new information that may

affect the findings at any time. If the

Service determines by new information

that the finding(s) are no longer

supported, the Service must stop issuing

import permits for sport-hunted

trophies from affected polar bear

population(s) following consultation

with the MMC and after notice and

opportunity for public comment.

The Service deferred making a

decision on the remaining populations

until further scientific and management

data become available. Upon receipt of

substantial new information, the Service

will publish a proposal for public

comment and consult with the Marine

Mammal Commission. Any population

found to meet all the criteria will be

added to the list in § 18.30(i)(l).

A. Legal Take

1. Finding

The Service finds that the GNWT has

a management program that ensures

hunters are taking polar bears legally.

This program includes the use of

hunting licenses; quota tags; DRR

officers in communities; collection of

biological samples from the trophy and

collection of data from the hunter; a

regulated tannery; a computerized

tracking system for licenses, permits

and tags; and an export permit

requirement to export the trophy from

the NWT to other provinces. This is all

within the context of the laws,

regulations, and co-management

agreements discussed earlier.

Under the 1994 Amendments the

Service can issue permits only after the

applicant submits proof that he or she

took the polar bear legally. The Service

will accept one of several different

forms of documentation, as detailed in

the regulations at § 18.30(a)(4).

2. Discussion of Legal Take

As described above, the agent or

broker usually obtains the hunting

license and tag for the hunter. Once the

hunter has taken a polar bear, the DRR

officer affixes a tag to the hide and

collects biological samples. Polar bear

tags are metal, designed for one-time

use, and stamped with the words polar

bear, an identification number, and the

harvest year. The identification number

in combination with the harvest year

identifies the community to which the

tag was assigned. If a tag is lost prior to

being affixed to a hide, the hunter must

report the lost tag number and other

required information to the DRR officer

prior to issuance of a replacement tag.

In the event that the sport hunt is

unsuccessful, the unused tag is

destroyed.

By regulation, as soon as practicable

after a person kills a bear, he or she

must provide the following information

to a DRR officer in the community, or

a person who has been designated by

the HTO and has the approval of a DRR

officer: (a) the person’s name; (b) the

date and location where the bear was

killed; (c) the lower jaw or undamaged

post-canine tooth and, when present, lip

tattoos and ear tags from the bear; (d)

evidence of the sex of the bear; and (e)

any other information as required.

Except where an officer verifies the sex

of the polar bear, the hunter must

provide the baculum of the male polar

bear for the purposes of determining

sex. If proof of sex is not provided or an

officer does not verify the sex of the

bear, the GNWT will deem the bear to

have been female for the purposes of

population modeling.

Additional information, collected to

complete a numbered Polar Bear Hunter

Kill Return form, includes: community;

polar bear population; harvest season;

sex of the bear; approximate latitude

and longitude of take using a map or

description of the location with

geographical references; general

comments on the physical condition of

the bear, including a measure of the fat

depth; indication of whether the bear

was alone or part of a family group (i.e.,

based on observation of the bears or bear

tracks), including if the bear was a

mother with cubs; estimated age class of

the bear before tooth examination;

disposition of the hide; hide value to the

hunter; hunter’s address and the

hunter’s license number; guide/

outfitters name; and name of the DRR

officer in the applicable community.

By NWT regulation, a licensed tanner

must needle stamp each hide or pelt

upon receipt so that the hide or pelt

may be identified as belonging to a

specific customer. Polar bear tags are

not intended to remain on the hide

during tanning. The tanner removes the

polar bear tag and returns it to the

owner of the hide.

In 1991, the DRR developed a Game

License System to track all licenses,

permits, and tags issued by the

Department. It is accessible from any

area of the NWT. All eight Regional

Offices complete a monthly vendor

return that contains information on all

the licenses, permits, and tags issued

during that month. The DRR can

generate reports and searches as needed.

Canada also maintains a computerized

national polar bear harvest database. Up

until quotas were established in 1967/

68, harvest data were recorded

opportunistically. Since 1977/78 all

harvests have been recorded. If needed,

Canada could track a polar bear trophy

imported from Canada to the individual

who took the bear.

An exporter of wildlife, including

polar bear parts, must obtain a NWT

Wildlife Export Permit from a DRR

officer prior to export. The hunter must

show the hunting license and submit

the tag, either removed for tanning or

removed at the time of export. The

exporter also must obtain a CITES

export permit prior to export of the

polar bear parts from Canada (see

discussion in the section on CITES)

(GNWT).
Federal Register / Vol. 62, No. 32 / Tuesday, February 18, 1997 / Rules and Regulations 7309

B. 1973 International Agreement on the

Conservation of Polar Bears

During the 1950’s and 1960’s, there

was a growing international concern for

the welfare of polar bear populations.

The primary concern was that the

increased number of bears being killed

could lead to endangerment of

populations. In 1968, biologists from the

five nations with jurisdiction over polar

bears (Canada, Denmark (for Greenland),

Norway, the United States, and the

former Union of Soviet Socialist

Republics) formed the PBSG under the

auspices of the International Union for

Conservation of Nature and Natural

Resources, now known as the World

Conservation Union (IUCN). This group

was in large part responsible for the

development and ratification of the

International Agreement, which entered

into force in 1976 for a 5-year period

and was reaffirmed in 1981 for an

indefinite period. Greenland was later

provided recognition through ‘‘Homerule’’ although the Government of

Denmark maintained its role in affairs of

international scope.

The International Agreement unites

nations with a vested interest in the

Arctic ecosystem in supporting a

biologically and scientifically sound

conservation program for polar bears. It

is a conservation tool that provides

guidelines for management measures for

polar bears. It defines prohibitions on

the taking of polar bears as well as the

methods of taking, and identifies action

items to be addressed by the signatories,

including protection of polar bear

habitat and conducting research for

polar bear.

The International Agreement is not

self-implementing and does not in itself

provide for national conservation

programs. Each signatory nation has

implemented a conservation program to

protect polar bears and their

environment (USFWS 1995). In the

United States, the MMPA implements

the International Agreement. Since the

International Agreement left

implementation and enforcement to

each nation, different interpretations

resulted in a diversity of practices in

managing polar bear populations

(Prestrud and Stirling 1995).

The main purpose of the PBSG is to

promote cooperation between

jurisdictions that share polar bear

populations, coordinate research and

management, exchange information, and

monitor compliance with the

International Agreement. The 1993

PBSG meeting concluded, ‘‘Overall, it

seemed that all countries were

complying fairly well to the intent, if

not necessarily the letter of the

Agreement’’ (PBSG 1995). Prestrud and

Stirling (1995) concluded that the

influence of the International

Agreement on the circumpolar

development of polar bear conservation

has been significant and polar bear

populations are now reasonably secure

worldwide.

1. Finding

The Service finds that the GNWT has

a monitored and enforced sport-hunting

program that is consistent with the

purposes of the International Agreement

as required by the 1994 Amendments

with the following limitation. The

Service only approved populations

where provisions are in place to protect

females with cubs, their cubs, and bears

in denning areas during periods when

bears are moving into denning areas or

are in dens. At this time the Service has

deferred making a final decision for the

Southern Hudson Bay or Foxe Basin

populations. These populations share

polar bears with Ontario and Quebec,

respectively. Neither province has

legislation to protect such bears or a

written agreement with the GNWT to

afford such protection. Native hunters of

both provinces have agreed to protect

females with cubs, their cubs, bears

moving into dens, and bears in dens.

However, given the limited reporting

and collection of harvest information in

Quebec and Ontario (PBSG, 1995) it is

not possible to determine the

effectiveness of the respective

management programs to protect

females with cubs, their cubs, bears

moving into dens or bears in dens. As

new management data become available

on these populations, the Service will

evaluate the data as to whether a

proposed rule should be published to

consider adding the populations to the

approved list in § 18.30(i)(1).

2. Taking and Exceptions

Article I of the International

Agreement prohibits the taking of polar

bears, including hunting, killing, and

capturing. Article III establishes five

exceptions to the taking prohibition of

Article I as follows: (a) for bona fide

scientific purposes; (b) for conservation

purposes; (c) to prevent serious

disturbance of the management of other

living resources; (d) by local people

using traditional methods in the

exercise of their traditional rights and in

accordance with the laws of that Party;

and (e) wherever polar bears have or

might have been subject to taking by

traditional means by its nationals.

The International Agreement does not

disallow sport hunting of polar bears.

Mr. Curtis Bohlen, head of the U.S.

delegation at the 1973 negotiations of

the International Agreement, clarified to

the Service (pers. comm. 1995) that the

U.S. position, which was generally

agreed to by all, was that sport hunting

could occur if the countries could

define the national territories and

waters subject to national jurisdiction so

the remainder of the Arctic Ocean

would become a ‘‘de facto’’ polar bear

sanctuary.

However, the somewhat overlapping

nature of Article III.1.(d) and (e) has led

to confusion over which exception is

applicable to allowing a sport hunt or

who may hunt. The Service views them

as follows. Exception (d) vests the local

people with their traditional hunting

rights when exercised in accordance

with national law, whereas exception (e)

creates a de facto polar bear sanctuary

by allowing the take of polar bears only

where polar bears have or might have

been taken by traditional means by its

nationals. Part of the confusion in

viewing these exceptions is caused by

Canada’s declaration that allows the

local people to sell a polar bear permit

from the quota to a non-Inuit or nonIndian hunter, a provision that is in

accordance with the laws of Canada.

Baur suggests that one possible

interpretation of exception (e) would be

that only ‘‘nationals’’ of a country could

take polar bears within that country’s

area of traditional taking. Under this

interpretation it would be illegal for

U.S. citizens to hunt polar bears outside

the United States. Baur offered,

however, that the best interpretation of

exception (e) is that the intent of all the

IUCN drafts was to establish a taking

prohibition outside of national

territories, with particular reference to

the ‘‘high seas.’’ The Parties chose to

define a sanctuary area for polar bears

in the Arctic Ocean by limiting the area

within which taking could occur to

those where hunting by traditional

means occurred. Since such hunting

was conducted mostly by Natives by

ground transportation (e.g., dog teams,

snowmobiles, etc.), the area affected

seldom reached into the areas

commonly understood to be ‘‘high seas’’

(Baur 1993).

Early drafts of the agreement included

an exception to the prohibitions on

killing polar bears for ‘‘local people who

depend on that resource.’’ U.S.

representatives, who were concerned

that commercial dealers might hire local

people to kill bears, felt the language

was appropriate. Canadian

representatives, on the other hand,

wanted the words ‘‘who depend on that

resource’’ deleted, arguing that the

agreement should include the rights of

people who are only culturally
7310 Federal Register / Vol. 62, No. 32 / Tuesday, February 18, 1997 / Rules and Regulations

dependent or even potentially

dependent.

During development of the final

document at the November 1973

meeting in Oslo, the delegates resolved

the concerns raised by the terms ‘‘high

seas’’ in Article III of the draft and

‘‘local people who depend on the

resource’’ by specifying the vested class

without resorting to geographic

boundaries. A report to the Secretary of

State from the U.S. delegation explained

that the delegates agreed that ‘‘there

should be an overall prohibition on the

taking of polar bears in Article I without

specifying any geographic units and that

the exceptions of Article III’’ include

exception (e), which in effect establishes

a polar bear sanctuary. The report

further explained that exception (d),

allowing hunting by local people, did

not appear to the U.S. delegation to be

necessary because under exception (e)

‘‘such hunting is of course permissible.

However, some of the delegations felt

that the Agreement would be more

acceptable to their governments if the

exception for local people was explicitly

stated.’’

Canada issued a declaration at the

time of ratification of the International

Agreement to clarify that it regards the

guiding of sport hunters by aboriginal

people, within conservation limits, to be

allowed. The declaration states, ‘‘The

Government of Canada therefore

interprets Article III, paragraph 1,

subparagraphs (d) and (e) as permitting

a token sports hunt based on

scientifically sound settlement quotas as

an exercise of the traditional rights of

the local people.’’ Canada declared that

the local people in a settlement may

authorize the selling of a polar bear

permit from the quota to a non-Inuit or

non-Indian hunter, provided a Native

hunter guides the hunt, a dog team is

used, and the hunt is conducted within

Canadian jurisdiction.

The Canadian declaration did not

define ‘‘token sports hunt’’ in terms of

a specific percentage. In a May 1996

letter, the CWS wrote the Service that

Canada did not define the term ‘‘token’’

at the time of the declaration and it

would be difficult, if not impossible, to

define it now. ‘‘At the time the

Agreement was signed, there was a

fairly small number of Inuit guided

sport hunts for polar bears taking place

and no one knew whether or not the

Inuit would continue to be interested in

this option. However, it was strongly

felt by Canada that if the Inuit wished

to develop guided hunting, within

scientific and legal constraints in order

to realize a greater economic benefit,

that their right to do so should be

protected. The term ‘token’ was added

because, in 1973, there was still a

significant mood of public revulsion

about the extremely unsportsmanlike

hunting of polar bears from aircraft in

Alaska and from large vessels in

Svalbard. Consequently, the term ‘token’

in the Canadian letter of declaration was

used to try to deflect or minimize

unjustified negative public reaction to

the inclusion of Inuit-guided hunts

within a sustainable quota.’’ Canada

believes ‘‘token’’ should remain

undefined since ‘‘the important issue is

that polar bears are being harvested

within sustainable levels and the

portion taken by Inuit-guided hunters is

a matter for local people to determine

for themselves.’’

Neither the International Agreement

nor Canada’s declaration specifically

restricts the proportion of hunts that can

be sport hunts. Based on the above

clarification from Canada and further

review of the International Agreement,

the Service dropped the proposed

interpretation of ‘‘token sports hunts’’ as

15 percent of the total number of polar

bear taken in the NWT. The Service

believes that although it may be

confusing that Canada has not defined

‘‘token,’’ as long as the quota is

scientifically calculated and the NWT

polar bear management program is

sustainable, the International Agreement

is not violated. Therefore, the Service is

interpreting ‘‘token sports hunt’’ as

sport hunts that are within conservation

limits. The Service notes that any

pressure to increase the quota as a result

of an increase in sport hunting will be

carefully examined by the Service in the

course of its scientific review of the

impact of import permits on the polar

bear populations in Canada.

3. Protection of Habitat, Management of

Polar Bear Populations, and the

Prohibition on Taking Cubs and

Females With Cubs

Article II of the International

Agreement provides that Parties: (1) take

‘‘appropriate action to protect the

ecosystem of which polar bears are a

part’’; (2) give ‘‘attention to habitat

components such as denning and

feeding site and migration patterns’’;

and (3) manage polar bear populations

in accordance with ‘‘sound conservation

practices’’ based on the best available

scientific data (Baur 1993).

At the 1973 Conference, the Parties to

the International Agreement adopted a

non-binding ‘‘Resolution on Special

Protection Measures’’ urging Parties to

take steps to: (a) provide a complete ban

on the hunting of female polar bears

with cubs and their cubs and (b)

prohibit the hunting of polar bears in

denning areas during periods when

bears are moving into denning areas or

are in dens. In adopting this resolution,

the Parties recognized the low

reproductive rate of polar bears and

suggested that the measures ‘‘are

generally accepted by knowledgeable

scientists’’ to be ‘‘sound conservation

practices’’ within the meaning of Article

II. While the signatory nations consider

the prohibitions in the resolution

important, they are not terms of the

International Agreement itself and are

not legally binding (Baur 1993).

Although biologists at the 1993 PBSG

meeting discussed the resolution, they

did not reach agreement over the

interpretation of whether females with

their cubs and cubs are specially

protected under the International

Agreement (PBSG 1995).

Although the Service recognizes that

the resolution is not binding, the 1994

Amendments require the Service to

make a finding that Canada’s

management program is consistent with

the purposes of the International

Agreement. The resolution clearly falls

within the purposes of sound

conservation practices of Article II.

Thus, the Service will only approve

populations where provisions are in

place to protect females with cubs, their

cubs, and bears in denning areas during

periods when bears are moving into

denning areas or are in dens.

The Service finds that the GNWT

meets the resolution to the International

Agreement. At the time of the proposed

rulemaking the GNWT wildlife

regulations protected cubs-of-the year,

1-year-old cubs, and mothers of these

bears. The GNWT in cooperation with

the resource users have since revised all

management agreements to protect all

bears in family groups regardless of the

age of the cubs (Ron Graf, DRR, personal

communication). The Service has

deferred a decision on the Southern

Hudson Bay population that is shared

with Ontario and the Foxe Basin

population that is shared with Quebec.

These provinces have no legislation in

place to protect such bears and no

written management agreement with the

GNWT to afford such protection. Upon

receipt of substantial new management

data, the Service will publish a proposal

for public comment and consult with

the MMC. If the Service finds that a

population meets all the criteria, the

population will be added to the list in

§ 18.30(i)(1).

4. Prohibition on the Use of Aircraft and

Large Motorized Vessels

Article IV of the International

Agreement prohibits the use of ‘‘aircraft

and large motorized vessels for the

purpose of taking polar bears * * *
Federal Register / Vol. 62, No. 32 / Tuesday, February 18, 1997 / Rules and Regulations 7311

except where the application of such

prohibition would be inconsistent with

domestic laws.’’

It is illegal in Canada to hunt, pursue,

or scout for polar bears from aircraft

(PBSG 1995). Native hunters may travel

and hunt polar bears by 3-wheel ATV

(all-terrain vehicles), snowmobile, and

boats under 15 meters. Sport hunters

and their aboriginal guides must

conduct the hunt by dog team or on

foot. Access to the communities is by air

only, so sport hunters must fly to reach

their destinations. Aircraft, snow

machines, and boats are used sometimes

to transport equipment, hunters, and

dogs to base camps that can be a great

distance from the community. The hunt

continues from the base camp by dog

team. Canada does not interpret

transportation by air or other motorized

vehicle to a place where the hunt begins

as a violation of Article IV of the

International Agreement (GNWT). The

Service agrees with this interpretation.

Baur (1993) explained that Article IV of

the International Agreement ‘‘followed

strong opinion that the hunting of polar

bears with aircraft should be stopped

and, furthermore, that the prohibition

against the use of large motorized

vessels for taking was directed at the

practice, which was particularly

common in the Spitsbergen area, of

hunting bears from vessels of 100 feet or

longer.’’ Article IV of the International

Agreement, appears to address the use

of aircraft for actually hunting the bear,

not the use of aircraft as a means of

transport to a base camp from which a

hunt begins.

A second issue regarding the use of

snowmobiles and aircraft is whether the

use of such equipment opens up nontraditional areas of polar bear hunting,

thus violating exception (e) of Article

III.1. of the International Agreement.

The Service believes that the use of

snowmobiles and aircraft in the NWT

for transportation in the course of a hunt

does not violate exception (e). First,

numerous historical accounts identify

and document traditional land use areas

for polar bear hunting in the NWT. In

particular, the Inuit Land Use and

Occupancy Project, which formed the

basis of the Nunavut land claim,

established much of the information on

the historical and traditional land use

by Inuit in the NWT (CWS 1996).

Second, the delegates addressed

concerns regarding the use of

snowmobiles during development of the

International Agreement. The report to

the Secretary of State from the U.S.

delegation to the Conference states, ‘‘In

regard to the snowmobile, which in

many places has replaced the dog sled

as the means of transportation for

Eskimos, the polar scientists explained

that in many circumstances it cannot

penetrate the ice area as far as a dog sled

can. Therefore, the use of the

snowmobile should not diminish the

area of protection.’’ Similarly, due to the

high operating costs and the

inaccessibility of aviation fuel in many

Arctic communities, airplanes cannot

travel into areas that were not otherwise

reached by traditional means such as

dog sled.

C. Scientifically Sound Quotas and

Maintenance of Sustainable Population

Levels

The GNWT manages polar bear with

a quota system based on inventory

studies, sex ratio of the harvest, and

population modeling using the best

available scientific information. The

rationale of the polar bear management

program is that the human-caused kill

(e.g., harvest, defense, or incidental

kills) must remain within the

sustainable yield, with the anticipation

of a slow increase in number for any

population. Each population is unique

in terms of both ecology and

management issues, and baseline

information ranges from very good in

some areas to less developed in others.

But overall, polar bear populations in

Canada are considered to be healthy

(GNWT).

The text of the House of

Representatives floor debate on the 1994

Amendments (140 Cong. Rec. H2725,

April 26, 1994) states that the intent of

the Amendments was not to change

Canada’s management program or to

impose polar bear management policy

or practices on Canada through the

imposition of any polar bear import

criteria. The Service agrees and believes

the intent of Congress was to ensure

‘‘* * * sport hunting of polar bears

does not adversely affect the

sustainability of the country’s polar bear

populations and that it does not have a

detrimental effect on maintaining those

populations throughout their range’’

(Committee Report, H.R. Rep. No. 439,

103d Cong., 2d Sess. 34 (1994)).

1. Finding

Based on information as summarized

in this final rule, the Service finds that

the GNWT has a sport-hunting program,

based on scientifically sound quotas,

ensuring the maintenance of the affected

population at a sustainable level for the

following populations: Southern

Beaufort Sea, Northern Beaufort Sea,

Viscount Melville Sound (under a 5-

year moratorium), M’Clintock Channel,

and Western Hudson Bay with

provisions that there are management

agreements in place.

These are aggregate findings that are

applicable in subsequent years.

However, if the Service receives

substantial new information on a

population, the Service will review the

information and make a new finding as

to whether to continue to approve the

population. If, after consultation with

the MMC and notice and opportunity

for public comment, the Service

determines that the finding is no longer

supported, the Service must stop issuing

import permits for sport-hunted

trophies from the affected polar bear

population.

Prior to making the finding as

required under § 18.30(d)(5), the Service

will consider the overall sport-hunting

program, including such factors as

whether the sport-hunting program

includes: (a) reasonable measures to

make sure the population is managed

for sustainability (i.e., monitoring to

identify problems, ways of correcting

problems, etc.); (b) harvest quotas

calculated and based on scientific

principles; (c) a management agreement

between the representatives of

communities that share the population

to achieve the sustainability of the

program through, among other things,

the allocation of the population quota;

and (d) compliance with quotas and

other aspects of the program as agreed

in the management agreement or other

international agreements.

The Service has deferred making

findings for the following populations:

Queen Elizabeth Island, Parry Channel/

Baffin Bay, Gulf of Boothia, Davis Strait,

Foxe Basin, and Southern Hudson Bay.

Upon receipt of substantial new

scientific or management data on the

overall sport-hunting program of any of

these populations, the Service will

evaluate whether a given population

meets the issuance criteria after

consultation with the MMC and notice

and opportunity for public comment. If

the decision is to approve a population,

the Service will add it to the list at

§ 18.30(i)(1).

No person may import a polar bear

prior to the Service’s issuance of an

import permit for the specific sporthunted trophy.

2. Inventory

It is difficult and expensive to

determine population trends for polar

bears since they are distributed over

vast areas in the Arctic environment. A

minimum of 3 to 5 years of research is

needed to gain a reliable population

estimate, and data collection needs to

continue for 10 to 20 years to detect

significant changes (Prestrud and

Stirling 1995). Each population in the

NWT is assessed by periodic population
7312 Federal Register / Vol. 62, No. 32 / Tuesday, February 18, 1997 / Rules and Regulations

inventory done on a rotational basis.

With study of two or more populations

conducted concurrently, the time

required to sequentially assess all 12

populations and then begin the process

over again is projected to be 20 years.

The first part of the inventory process

identifies the geographic boundaries of

each population. The second part of the

inventory process is to estimate the size

of a population. The basic principle

behind the use of mark-recapture and

mark-kill data in wildlife management

is that given a known number of

identifiable animals, the rate at which

those animals are recaptured or killed

provides an assessment of the size of the

population. By regulation, a person

must submit to the DRR at the time of

harvest of the bear the lip tattoos or ear

tags applied to polar bears in the course

of population inventories. The GNWT

monitors the sex and age structure of the

harvest. Changes in the sex and age of

the harvest over time provide insight

into whether the population may be

increasing or declining.

The GNWT then uses this information

to calculate a sustainable level of

harvest. Should mark-kill data,

information from the monitoring

program, or reports from local hunters

suggest a problem with a particular

population, Canada could shorten the

period between assessments depending

on the availability of research resources.

Canada incorporates data from

ongoing research into management

practices as appropriate. Management of

this species is based on information

from studies that have been published

in reports, conference proceedings, and

refereed scientific journals.

3. Calculation of Sustainable Harvest

Polar bears are a long-lived and late

maturing species that have a low annual

recruitment rate. Their life history

strategy is a reliance on a constantly

high adult survival rate and stable

recruitment. Consequently polar bears

are particularly vulnerable to

overharvest. Conservation management

and comparisons with other long-lived

species suggest that noncompensatory

harvest models are most appropriate for

polar bears (Taylor et al. 1987).

The GNWT manages polar bears

under the assumption that the polar

bear populations are experiencing

maximal recruitment and survival rates

(e.g., no density effects). The estimated

sustainable rate of harvest is then the

maximum sustainable harvest. When

the Service inquired why this

assumption was made, the GNWT

responded that they believe it is a

legitimate and conservative approach.

Little is known about density-dependent

population regulation in bears,

including polar bears (Taylor et al.

1994). The current data are insufficient

to determine if the mechanism is mainly

nutritional, mainly social, or a

combination of social and nutritional. In

addition, the study of density effects on

polar bears would be a long-term

proposition and very expensive due to

the slow growth rates, high

environmental variability, and

behavioral plasticity of the species. The

intention of the GNWT is to ensure the

conservation of existing populations

with good data and management before

doing more experimental work. They

believe the need for information on

density effects will increase as

populations slowly increase under the

current management system, and

anticipate that their periodic inventory

and subsequent management changes

will provide information on how polar

bear populations respond to various

density levels over the long term

(GNWT).

Based on a model developed

cooperatively between all jurisdictions

managing polar bears, it was

demonstrated that the two most critical

parameters for estimating sustainable

harvest are population numbers and

adult female survival rate (Taylor et al.

1987a). As a result of sampling biases in

the available data, Canada simplified

the detailed analysis to contain only the

most important features. One such

simplification involved the use of

pooled best estimates for vital rates for

all Canadian polar bear populations.

Using the pooled best estimates for vital

rates, the polar bear harvest model

indicated that the sustainable harvest

(H) of a population could be estimated

as:

H = N (0.015/Pf),

where N is the total number of

individuals in the population and Pf is

the proportion of females in the harvest

measured directly from the harvest

returns. The formula can also be

modified for populations with different

renewal rates and, if new information

becomes available, on birth and death

rates (GNWT).

Table 3 provides information on each

population including the population

estimate, the total kill (excluding

natural deaths), percentage of females

killed, and the calculated sustainable

harvest for the 1993/94 harvest season

and averaged over the preceding three

and five seasons. Based on this

information, the status of the population

is designated as increasing, stable, or

decreasing, represented by the symbols

‘‘+’’, ‘‘0’’, ‘‘¥’’. The population status is

expressed as the difference between the

calculated sustainable harvest and the

kill. For example, the calculated

sustainable harvest for the Southern

Beaufort Sea 1993/94 harvest season

was 81.1. Since the total kill was 64, the

harvest of polar bears in the Southern

Beaufort Sea did not exceed the

sustainable yield. Therefore, the

population had the potential to increase.

In contrast, the Foxe Basin (FB) kill

exceeded the sustainable harvest, thus

the population status is represented as

declining.

TABLE 3.—POPULATION STATUS FOR CANADIAN POLAR BEAR POPULATIONS INCORPORATING HARVEST STATISTICS FROM

1989/90 TO 1993/94. THE POPULATIONS ARE IDENTIFIED AS FOLLOWS: SOUTHERN BEAUFORT SEA (SB), NORTHERN

BEAUFORT SEA (NB), VISCOUNT MELVILLE (VM), QUEEN ELIZABETH ISLANDS (QE), PARRY CHANNEL (PC), BAFFIN

BAY (BB), GULF OF BOOTHIA (GB), M’CLINTOCK CHANNEL (MC), FOXE BASIN (FB), DAVIS STRAIT (DS), WESTERN

HUDSON BAY (WH), AND SOUTHERN HUDSON BAY (SH). THE PERCENT FEMALES (%/) Statistic 1 Does Not Include

Bears of Unknown Sex Except for Labrador (1991/92 AND 1992/93) AND GREENLAND (ALL 5 YEARS). HARVEST

STATISTICS INCLUDE ALL REPORTED HUMAN-CAUSED MORTALITY OF POLAR BEARS. NATURAL DEATHS ARE NOT INCLUDED

Pop.2 Pop.

estimate Reliability *

5-Year average

(1989/90–1993/94)

3-Year average

(1991/92–1993/94)

Current Year

(1993/94) Population

status **

(5yr/3yr/1yr) Kill(%/) Sustainable

harvest3 Kill(%/) Sustainableharvest3 Kill(%/) Sustainableharvest3

SB ............................. 61800 Good ........................ 60.4 (39.6) 68.2 66.0 (39.5) 68.4 64 (32.2) 81.1 +/+/+

NB ............................. 1200 Good ........................ 32.2 (49.4) 36.4 30.0 (45.5) 39.6 16 (50.0) 36.0 +/+/+

VM4 ........................... 230 Good ........................ 5.2 (45.8) 1.2 2.0 (83.3) 0.7 2 (50.0) 1.1 ¥/0/0

QE ............................ 200 Poor .......................... 10.6 (32.1) 9.0 9.7 (24.1) 9.0 11 (29.3) 9.0 0/0/0
Federal Register / Vol. 62, No. 32 / Tuesday, February 18, 1997 / Rules and Regulations 7313

TABLE 3.—POPULATION STATUS FOR CANADIAN POLAR BEAR POPULATIONS INCORPORATING HARVEST STATISTICS FROM

1989/90 TO 1993/94. THE POPULATIONS ARE IDENTIFIED AS FOLLOWS: SOUTHERN BEAUFORT SEA (SB), NORTHERN

BEAUFORT SEA (NB), VISCOUNT MELVILLE (VM), QUEEN ELIZABETH ISLANDS (QE), PARRY CHANNEL (PC), BAFFIN

BAY (BB), GULF OF BOOTHIA (GB), M’CLINTOCK CHANNEL (MC), FOXE BASIN (FB), DAVIS STRAIT (DS), WESTERN

HUDSON BAY (WH), AND SOUTHERN HUDSON BAY (SH). THE PERCENT FEMALES (%/) Statistic 1 Does Not Include

Bears of Unknown Sex Except for Labrador (1991/92 AND 1992/93) AND GREENLAND (ALL 5 YEARS). HARVEST

STATISTICS INCLUDE ALL REPORTED HUMAN-CAUSED MORTALITY OF POLAR BEARS. NATURAL DEATHS ARE NOT INCLUDED—Continued

Pop.2 Pop.

estimate Reliability *

5-Year average

(1989/90–1993/94)

3-Year average

(1991/92–1993/94)

Current Year

(1993/94) Population

status ** (5yr/3yr/1yr) Kill(%/) Sustainable

harvest3 Kill(%/) Sustainable

harvest3 Kill(%/) Sustainableharvest3

PC–BB ...................... 62470 Fair ........................... 197.0 (30.7) 111.3 199.3 (31.5) 111.3 200 (31.9) 111.3 ¥/¥/¥

(data uncertain)

GB ............................ 900 Poor .......................... 37.8 (40.4) 33.4 38.7 (36.5) 37.0 36 (40.0) 33.7 ¥/0/0

MC ............................ 700 Poor .......................... 30.4 (40.3) 26.1 27.3 (33.7) 31.2 24 (33.3) 31.5 ¥/+/+

FB5 ........................... 2020 Good ........................ 128.6 (40.8) 74.3 125.0 (41.7) 72.7 100 (48.5) 62.5 ¥/¥/¥

DS ............................. 61400 Fair ........................... 55.0 (41.6) 50.5 58.0 (38.2) 55.0 58 (36.2) 58.0 ¥/0/0

WH ............................ 1200 Good ........................ 44.8 (32.1) 54.1 41.3 (27.6) 54.1 32 (40.6) 44.3 +/+/+

SH ............................. 1000 Fair ........................... 59.0 (32.5) 45.0 51.0 (36.2) 41.4 45 (33.3) 45.0 ¥/¥/0

Total 6 ................ 13120 .............................. 661.0 509.5 648.3 520.4 588 513.5

* GOOD: Minimum capture bias, acceptable precision. FAIR: Capture bias problems, precision uncertain. POOR: Considerable uncertainty, bias and/or few data.

**A difference of up to 3 bears between the kill and sustainable harvest statistics was considered to be no change in status. (¥=decrease 0=no change

+=increase)

Notes:

1The percent of killed bears that are females is not regulated by law in all populations, but rather % Females is specified as a target in many of the Local Management Agreements. 2 Local Management Agreements now exist for all populations except QE. These agreements are reviewed periodically as new information becomes available.

3Except for the VM population, the sustainable harvest is based on the sex ratio of the harvest, the population estimate (N) for the area and the estimated rates of

birth and death (Taylor et al. 1987):

SUSTAINABLE HARVEST=(N×0.015)÷Proportion of Harvest that were Females.

Unpublished modelling indicates a sex ratio of 2 males to a female is sustainable, although the mean age and abundance of males will be reduced at maximum

sustainable yield. Harvest date (Lee and Taylor, 1994) indicates that the harvest is typically selective for males. 4The rate of sustained yield of the VM population is one sixth that of the other populations because of lower cub and yearling survival, and lower recruitment. The

projected proportion of the harvest that are females is 15% based on the intention to take only males. A 5-year voluntary moratorium on harvesting bears in the VM

population began in 1994/95. 5 Communities that harvest from the FB population have agreed to a phased reduction in quota. The final harvest level will be 91 bears or the sustainable yield as

determined by subsequent population estimates by 1997. 6Totals refer to the sum of the all populations within or shared with Canada.

Modeling has shown that the sex ratio

of the polar bear harvest is a critical

factor in calculating the sustainable

yield of polar bear populations (Lee et

al. 1994). A selective harvest quota

based on a harvest ratio of two males to

one female can be 50 percent higher

than an unselective one (GNWT).

Increasing the harvest of males as a

means of increasing the sustainable

yield and conserving the reproduction

potential of the population is a common

technique in wildlife management. This

is applicable particularly for species

such as bears where mating is

promiscuous and recruitment is

primarily a function of the number of

adult females (Taylor et al. 1987).

Since the GNWT bases the population

quota, in part, on the sex ratio of the

harvest, Local Management Agreements

have been developed with the intention

to limit the female kill by prescribing a

harvest sex ratio of two males for each

female. Some communities have the sex

ratio as a target and others have it as a

regulation. For both situations, the kill

of female polar bears has exceeded the

annual sustainable yield in some

communities in some years. The DRR is

seeking resolution to this problem

including the development of

conservation education materials in an

effort to reduce take of females due to

misidentification of sex. They revised a

booklet on how to distinguish between

males and females to incorporate

suggestions from hunters and produced

posters to encourage hunters to select

for males. In addition, the DRR

developed a revised system referred to

as the ‘‘Flexible Quota Option’’, based

on the number of female bears that can

be taken annually. This system requires

adoption into regulation prior to

implementation (GNWT).

When Canada presented the sexselective harvest model at the 1993

PBSG meeting, biologists raised

concerns. One concern was the

difficulty of accounting for

compensation in the model if more

females were taken. Also, there was

concern that if the population model

was incorrect or if ecological conditions

changed substantially, there would be a

delay of many years before managers

would realize that the predictions of the

model were incorrect. Some felt this

delay was too high a risk for use as a

management tool (PBSG 1995). The DRR

is aware of the concerns and continues

to monitor information on number, sex,

and age of most polar bears harvested.

In addition, local hunters are familiar

with the relative abundance of polar

bears in their areas and would likely

notice significant increasing or

decreasing trends in polar bear

numbers. Because of both the

monitoring program and the

contribution of local knowledge, the

DRR anticipates they would likely

detect any overharvest or significant

change in the population due to natural

ecological reasons. The DRR plans to do

a comprehensive risk analysis to

consider all sources of uncertainty and

to examine the inventory rotation period

and the current standards for precision

in the estimates of population size, but

a date has not been set for its

completion (Mitch Taylor, personal

communication). Canada is cooperatively developing a simulation

model to explore the effects of

harvesting black, grizzly, and polar

bears with the Ontario Ministry of

Natural Resources (GNWT 1996).

4. Quota

In 1968 when the GNWT started to set

quotas, the size of polar bear
7314 Federal Register / Vol. 62, No. 32 / Tuesday, February 18, 1997 / Rules and Regulations

populations on which to base

sustainable quotas was largely

unknown. So the GNWT introduced

quotas on an interim basis considering

previous harvest records for each

community. After the late 1970’s, quotas

were increased on the basis of new

scientific information for each

population (Prestrud and Stirling 1995).

Quotas continue to undergo adjustments

based on new information. As a result

of studies conducted since 1991 and

earlier, quotas have been reduced for the

M’Clintock Channel and Foxe Basin

populations, and there is currently a

moratorium on hunting in the Viscount

Melville population. Presently, the

calculated sustainable harvest for each

population represents the population

quota. The quota allocated is specific to

each population. A quota allocated for

one population cannot be used in

another population. Quotas are not

carried over from one year to the next.

The GNWT subtracts all human

caused mortality from the quota,

including polar bears killed in sport

hunts, taken in defense of life or

property, or shot illegally, as well as

accidental deaths from research studies.

Occasionally the quota is exceeded due

to unexpected defense kills, mistakes, or

illegal kills. Typically the GNWT

deducts an overharvest from the

following year’s quota as a correction

(GNWT). On an annual basis, the GNWT

presents the population quotas and a

summary of previous years harvest data

for each population to the PBTC in a

manner comparable to that shown in

Table 3. The DRR has reported the

reliability of each population estimate

in qualitative terms (i.e., Good, Fair, or

Poor) rather than quantitative because of

bias in the population estimate as a

result of sampling problems. The DRR

expects they will use quantitative terms

in future status reports as they complete

population inventories (GNWT).

5. Status of Populations the Service

Approves

The Service approved populations as

meeting the required finding of section

104(c)(5)(A)(ii) of the MMPA based on

currently available information. A list of

the approved populations and general

provisions are given in § 18.30(i).

Southern Beaufort Sea (SB)

The estimated population is 1,800 and

is considered to be conservative. Markrecapture and studies of movements

using telemetry, conducted semicontinuously since the late 1960’s in

Alaska and the early 1970’s in Canada

have determined the boundaries of this

population. The GNWT rates the

population data as good. Table 3 shows

the status of the population as

increasing based on the 5-year and 3-

year average of harvests and the 1993/

94 harvest. Of the 64 bears taken in the

1993/94 harvest, 32.2 percent were

females. Guiding of sport hunts occurs

on a limited basis in the Canadian

portion of the population. The number

of sport hunts conducted for the 1993/

94, and 1992/93 seasons was 6 and 1,

respectively (GNWT).

The NWT and Yukon Territory share

this population with Alaska. In Alaska

polar bears are only taken for

subsistence and handicraft purposes by

Alaska Natives. Harvest of bears on

either side of the international border

affects the entire population. The

Beaufort Sea boundary remains an issue

of dispute between the United States

and Canada as noted in the results of the

Ottawa Summit. The United States

views the Canadian jurisdiction to end

at the equidistant line and no bears

should be taken west of that line.

To date, the governments of the

United States and Canada have not

signed an international agreement for

the joint management of the Southern

Beaufort Sea population. However, in

January 1988, representatives of the

Inuvialuit Game Council (IGC) in the

NWT and the Fish and Game

Management Committee of the North

Slope Borough (NSB) in Alaska (USFWS

1995) signed a management agreement

for polar bears in the Southern Beaufort

Sea. Although the agreement is not with

the Canadian or U.S. governments, it is

signed by both Native groups and

continues to be successful overall

(Prestrud and Stirling 1995). The

agreement is a precedent-setting

example of how Native groups can

successfully manage traditional harvest

practices through self-regulation. In

Canada the agreement is consistent with

previously existing regulations. In

Alaska it is more restrictive than the

MMPA (Nageak, Brower, and Schliebe

1991). The agreement has management

restrictions that are consistent with the

International Agreement. The

agreement, among other things, calls for:

(1) establishing harvest limits based on

the best available scientific evidence; (2)

prohibitions on the use of large vessels

or aircraft for hunting polar bears; (3)

protection of all bears in dens or

constructing dens, pregnant females,

cubs, and females with cubs; (4) a

management system to regulate the

number of polar bears harvested and to

ensure compliance with harvest limit

allocations; (5) a reporting system to

collect critical information from

harvested polar bears; and (6) protection

of important polar bear habitat.

Under the agreement, the Native

groups set the initial annual harvest

quota for the Southern Beaufort Sea

population at 38 bears each in Canada

and Alaska. They share information

pertinent to the status of the entire

population in various ways, including

the PBTC meetings, IUCN/PBSG

meetings, and the annual Technical

Committee meeting for the agreement.

Both Parties have agreed that all bears

in dens or constructing dens are

protected and family groups made up of

females and cubs-of-the-year or

yearlings are protected. During the first

harvest (1988/89) under the

management agreement take in Alaska

exceeded the guidelines by 20, while

the harvest in Canada was below the

allocation. However the harvest during

the next three seasons were less than

allocation guidelines in both Alaska and

Canada. It is believed that the reduced

take by the second harvest season was

due to extensive efforts to distribute

information on the management

agreement. In addition, there has been a

general trend in Alaska to harvest fewer

family groups (USFWS 1995).

The population is also shared by the

Yukon Territory where the legal basis

for regulating polar bears is the Wildlife

Act, 1981. Currently there are no

residents of the Yukon harvesting polar

bears as the people all moved to the

NWT. The Yukon wishes to retain their

management system in case the

aboriginals return to the Yukon coast

and harvest polar bears. The Yukon has

a total quota of six tags that they have

loaned to the GNWT. These tags are

included in the NWT quota (GNWT).

The Service approves the Southern

Beaufort Sea population with the

specific provision that hunters not take

bears in Canada west of the equidistant

line of the Beaufort Sea and that the

general provisions in § 18.30(i) must be

met. These provisions require the

communities that share a population to

have a management agreement that

allocates portions of a scientifically

sound quota among the parties.

Northern Beaufort Sea (NB)

Canada estimates the population at

1,200 polar bears and believes the

estimate is unbiased and conservative.

At intervals since the early 1970’s,

Canada has conducted mark-recapture

and studies of movements using

telemetry. They determined boundaries

of the population using telemetry and

recovery of tagged bears. An ongoing

study is examining the possibility that

this population extends further north

than the data previously indicated. The

GNWT rates the population data as

good. Table 3 shows the status of the
Federal Register / Vol. 62, No. 32 / Tuesday, February 18, 1997 / Rules and Regulations 7315

population as increasing based on the 5-

year and 3-year average of harvests and

the 1993/94 harvest. Although the

proportion of females in the harvest has

been at or near 50 percent, the

sustainable yield of females has not

been exceeded. Guiding of sport hunters

occurs on a limited basis. Only 2 to 3

sport hunts occurred in the two seasons

between 1992–1994.

Viscount Melville Sound (VM)

Canada believes the population

estimate of 230 polar bears to be

unbiased. In 1992, Canada completed a

5-year mark-recapture and telemetry

study of movements and population

size. They based boundaries of the

population on observed movements of

female polar bears. In the mid-1970’s

when Canada allocated the original

quotas, they thought this population

was large and productive. This area,

however, has poor seal habitat and the

productivity of polar bears was lower

than expected. Harvesting polar bears at

the initial quota levels caused the

number of bears in the population to

drop, especially males. There is a

moratorium on polar bear hunting in

this population until the year 2000. The

GNWT anticipates that when harvest

activities resume, there will be an

annual quota of 4 males. The Service

does not consider this area as being

available for U.S. sport hunters at this

time.

Although all hunting is currently

disallowed in this area, the Service

approved the Viscount Melville

population since there is a management

program in place that includes measures

to return and then maintain the

population at a sustainable level.

M’Clintock Channel (MC)

In the mid-1970’s, Canada conducted

a 6-year mark-capture population study.

They estimated the population to be 900

polar bears. Local hunters advised that

700 might be a more accurate estimate.

Under a Local Management Agreement

between Inuit communities that share

this population, the harvest quota for

this area has been revised to levels

expected to achieve slow growth based

on the more conservative population

estimate of 700 polar bears. The

recoveries of tagged bears and

movements documented by telemetry in

adjacent areas support the boundaries.

Table 3 shows the status of the

population as increasing based on the 3-

year average and the 1993/94 harvest. Of

the 24 bears taken in the 1993/94

harvest, 33 percent were females.

Although Canada considers the

population estimate information as

poor, the Service approved this

population since the DRR in

conjunction with local resource users

have agreed to a reduction in the

population estimate, hunting has been

at a 2:1 ratio for several years, and there

is a management agreement in place.

Western Hudson Bay (WH)

Canada believes the population

estimate of 1,200 is conservative as a

portion of the southern range has not

been included in the mark-recapture

program. Canada has conducted

research programs on the distribution

and abundance of the population since

the late 1960’s, with 80 percent of the

adult population marked. Markrecapture studies and return of tags from

bears killed by Inuit hunters have

provided extensive records. The GNWT

rates the population data as good. Table

3 shows the status of the population as

increasing based on the 5-year and 3-

year average of harvests and the 1993/

94 harvest. Of the 32 bears taken in last

year’s harvest, 40.6 percent were

females. During the open-water season,

this population is geographically

segregated. During the ice-covered

months there is some mixing of bears

with the Foxe Basin and Southern

Hudson Bay populations. However,

such movements are believed to be very

limited. Given the high number of

marked bears in the Western Hudson

Bay population and the recent, intensive

study of the Foxe Basin population,

substantial mixing of bears would be

apparent if it were occurring.

The NWT shares the Western Hudson

Bay population with Manitoba, where

the Wildlife Act of 1991 lists the polar

bear as a protected species. There is no

open hunting season and polar bears

cannot be hunted at any time of the year

by anyone. To hunt polar bears,

including hunting by Treaty Indians,

requires a permit from the Minister and

the Minister is not issuing permits at

this time. The Local Management

Agreement allocates a quota of 27 tags

out of 55 for the Western Hudson Bay

population to Manitoba. Manitoba holds

eight tags in reserve for the control

program and accidental deaths

associated with the research program.

They currently loan the remaining 19 to

the GNWT for its quota (GNWT). This

does not mean that there is a total ban

on hunting polar bears in the future.

The Minister can authorize the taking of

bear for any purpose ‘‘not contrary to

public interest.’’ The current policy is

that no person will be granted a permit

to hunt polar bear until it is established

there is a harvestable surplus over

conservation needs of the population

that takes into account political and

scientific concerns (Calvert et al. 1995).

6. Status of Populations for Which

Scientific and Management Data are not

Presently Available for Making a Final

Decision

After reviewing the best available

scientific and management data on the

populations addressed below, the

Service is not prepared to make a final

decision on whether these populations

satisfy the statutory criteria of section

104(c)(5)(A) of the MMPA. As future

scientific and management data become

available on these populations, the

Service will evaluate such data to

determine whether a proposed rule

should be published that would add

such populations to the approved list in

§ 18.30(i)(l).

Except for the Gulf of Boothia, the

NWT shares all of the following

populations with Greenland, another

Canadian province, or both. Greenland

and the other Canadian provinces do

not have agreements with other NWT

communities as to how they will

manage their portions of the

populations. Management agreements

drafted in 1994 for the Davis Strait, Foxe

Basin, and Southern Hudson Bay

populations allocated existing harvest

levels to NWT communities and

documented current known annual

harvest levels for Ontario, Quebec,

Newfoundland and Labrador, and

Greenland. Following completion of

comprehensive population studies, the

sustainable harvest of each population

will be estimated and the user groups

through joint negotiations will allocate

the quotas. Canada and Greenland are

conducting joint research to confirm

shared population boundaries and

population estimates. Upon completion

of this joint research the two countries

are expected to move ahead with

negotiations on developing joint

management agreements (GNWT).

Gulf of Boothia (GB)

Currently Canada estimates this

population at 900 animals. Canada

based a population estimate of 333 polar

bears on a limited research program of

mark and recapture restricted to the

western coastal areas. They increased

the population estimate to 900 based on

the information from local Inuit hunters

and an estimate of bears in the central

and eastern portions of the area that

Canada had not sampled. Although the

900 animal estimate has no statistical

level of precision, managers believe it to

be more accurate than the previous

estimate. The population data is still

considered limited and the GNWT rates

the population data as poor. Studies

conducted in adjacent areas support the

boundaries. The status of the population
7316 Federal Register / Vol. 62, No. 32 / Tuesday, February 18, 1997 / Rules and Regulations

was stable at the 3-year average harvests

and the 1993/94 harvest. Of the 36 bears

taken in the 1993/94 harvest, 40 percent

were females (Table 3). The number of

sport hunts guided for the two seasons

between 1992–1994 was 10 and 5,

respectively.

The Service revised its proposed

finding for this population given the

lack of scientific data to support the

population estimate and the harvest of

females in excess of the quota. Although

the GNWT considers the population

estimate to be conservative, they

substantially increased the estimate

based primarily on anecdotal

information. NWT polar bear managers

rate the population data as poor. The

Service believes that the strict requisite

that the quota be ‘‘scientifically sound’’

has not been met. In addition, the slight

but persistent overharvest of females in

this population raises concerns as to

whether there is effective management

action.

Queen Elizabeth Island (QE)

Canada estimates the population at

200. Current information is that there

are few polar bears in this remote area.

The reliability of the data is poor. A

likely scenario is that Canada will

eventually manage this area as a

sanctuary for polar bears. The status of

the population was stable at the 5-year

and 3-year average of harvests and the

1993/94 harvest. Of the 11 bears taken

in last year’s harvest, 29.3 percent were

females. Only one sport hunt occurred

during each of the past two seasons. A

Local Management Agreement has not

been finalized for this population. In

addition, the NWT shares this

population with Greenland although the

movement of polar bears between the

NWT and Greenland is thought to be

small (see Parry Channel/Baffin Bay

below).

Parry Channel (PC) and Baffin Bay (BB)

The Service is considering this area as

a single unit in this rulemaking since

Canada is still researching what fraction

of the Greenland harvest was from

either Parry Channel or Baffin Bay

populations. Information on the amount

of exchange between these populations

in Canada and Greenland is important

for management since communities in

both countries harvest polar bears.

Canada considers the current

population estimate of 2,470 polar bears

preliminary and conservative. Canada

obtained the population estimate by

pooling the previous estimates for

Lancaster Sound (1,657, increased to

2,000, based on sampling bias in the

original studies that could have resulted

in an underestimate of the population)

and NE Baffin (470) populations with

the assumption that a distinct

population for west Greenland would

not be found. The GNWT rates the

population data as fair. The status of the

population as shown in Table 3 is

decreasing for the 5-year and 3-year

average of harvests and the 1993/94

harvest. The 1993/94 season’s harvest

was 200 bears (31.9 percent females).

Most sport hunting has occurred in

Parry Channel, 28 in 1993/94 harvest

season and 24 in 1992/93. Limited

guided sport hunts of 5 and 3 occurred

in Baffin Bay during the same seasons

(GNWT).

According to Born (1995) there is

little information available on the take

of polar bears in Greenland. There is no

quota for harvest of polar bears in

Greenland. Regulations prohibit the use

of vehicles for the hunt and stipulate

that hunters must be citizens of

Greenland and hunt or fish full time. As

of January 1, 1993, Greenland requires

residents to obtain special permits to

hunt polar bear. The reporting of take is

voluntary, and the system of reporting

has not worked reliably for many years.

Greenland needs to obtain information

on the number and sex ratio of bears

taken in all areas and number of animals

in the populations to establish a

sustainable harvest level of polar bears.

There is an ongoing CanadianGreenland joint study to obtain data to

delineate the range and number of bears

in the shared populations. A summary

of results of a polar bear survey suggests

a harvest of 40 to 60 bears each year in

West Greenland from the population

shared with Canada (PBSG 1995).

Recent satellite telemetry data indicates

four populations: Lancaster Sound,

Baffin Bay, Norwegian Bay, and Kane

Basin. Local hunters have requested one

more year of capture work to confirm

the current estimates for Baffin Bay. At

least two more years of mark-recapture

work will be required to provide

estimates for the Lancaster Sound, Kane

Basin, and Norwegian Bay populations

(GNWT 1996). Management agreements

have been developed for these areas

between GNWT and the local

communities.

Foxe Basin (FB)

Canada concluded an 8-year markrecapture and telemetry study of

movements and population size in 1992.

They believe the population estimate of

2,020 is accurate as they included the

entire area in the marking effort. Polar

bears were concentrated on the

Southampton Island and Wager Bay

areas during the ice-free season. But,

significant numbers of bears were found

throughout the other islands and coastal

areas. Because Canada believes the

previous harvest quotas to have reduced

the population from about 3,000 in the

early 1970’s to about 2,000 in 1991, they

incrementally reduced the harvest quota

to levels that will permit recovery of

this population. The reduction process

is described in the NWT Local

Management Agreements between the

Inuit communities that share these polar

bears. The GNWT rates the population

data as good. Table 3 shows the status

of the population as decreasing for the

5-year and 3-year average of harvests

and the 1993/94 harvest. Of the 100

bears taken in last year’s harvest, 48.5

percent were females.

The NWT shares the population with

Quebec where the legal basis for

regulating polar bear are the Wildlife

Conservation and Management Act,

1983; the Order in Council 1 3234, 1971;

and the James Bay International

Agreement, 1978 (GNWT). Inuit and

Indians are allowed to hunt polar bears

from three different populations, based

on the ‘‘guaranteed harvest’’ levels

determined for the James Bay

Agreement, as long as the they respect

the principle of conservation (PBSG

1995). The guaranteed harvest levels are

determined between the user groups

and the Government of Quebec based on

harvest records between 1976 and 1980.

The harvest levels set are 22, 31, and 9

for populations shared in Southern

Hudson Bay, Davis Strait, and Foxe

Basin. The Inuit have agreed with the

harvest levels, while negotiations are

occurring with the Crees. If the Inuit

exceed the ‘‘guaranteed harvest’’, which

is uncommon, there is no penalty. The

number and sex of polar bears in the

harvest are monitored, with age

determined on many of them. There has

been, however, some concern expressed

over the inconsistencies in harvest data.

As previously mentioned, Native

hunters have agreed to protect females

with cubs, their cubs, bears moving into

dens, and bears in dens but the

collection of harvest information is

sporadic and the effectiveness of the

protection measures cannot be fully

determined.

Davis Strait (DS)

Canada estimates the population at

1,400, based on field work conducted

during the spring from 1976 through

1979. Traditional knowledge

observations suggest that the population

may have increased since 1979. These

include that: (a) hunters from

Pangnirtung reported larger numbers of

bears in recent years and in 1994 took

their entire quota in less than 2 days; (b)

hunters from the Labrador Inuit

Association reported seeing an
Federal Register / Vol. 62, No. 32 / Tuesday, February 18, 1997 / Rules and Regulations 7317

increased number of bears in the last

several years; (c) hunters from Iqaluit

report they harvest the highest

proportion of males of any settlement in

the NWT due to high densities of bears

encountered; and (d) hunters from Lake

Harbour reported a higher rate of

encounters with polar bears in recent

years. Observations made by biologists

also support an increase in population

size: (a) during surveys conducted in the

fall of 1992 and 1993, observers found

high densities of bears on the

Cumberland Peninsula, Baffin Island;

(b) the number of bears captured per

hour of search time during 1991–94 on

the Labrador coast almost doubled from

1976–79; (c) during the above surveys

conducted in the 1990’s, observers saw

a large proportion of old adult males

(such sightings would not occur in an

overharvested population where the

harvest was selective for males); and (d)

satellite tracking data from 1991–94

indicate that a large proportion of the

population is offshore in the pack ice

during the spring and would not have

been included in the capture and

tagging as part of the 1980 population

estimate.

The GNWT rate the population

estimate data as fair. Based on

population modeling that indicates the

population would need to be at least

1,400 to sustain the present annual kill

of 58 polar bear and observations by

hunters and biologists, the 1995 PBTC

supported revision of the population

estimate from 950 to 1,400. Canada will

need to do further work to resolve the

status of polar bears in this population.

A joint resolution was signed by Quebec

and GNWT supporting a co-operative

inventory of this population as a high

priority. Table 3 shows the status of the

population as stable for the 3-year

average of harvests and the 1993/94

harvest. Of the 58 bears in last year’s

harvest, 40.6 percent were females.

The NWT shares the Davis Strait

population with Quebec, Newfoundland

and Labrador, and Greenland. For a

discussion of Quebec, see Foxe Basin

above. In Newfoundland and Labrador,

the legal basis for regulating polar bear

is the Wildlife Act, 1970. The current

hunting season is limited to residents of

the Torngat Electoral District on the

northern Labrador coast, with no

distinction made between Natives and

non-Natives. To maintain consistency

with the International Agreement, the

Labrador Inuit Association issues the

tags, with unused tags being accounted

for. Land claim negotiations that may

affect how polar bears are managed in

Newfoundland and Labrador are

currently underway. In typical years

Greenland harvests no polar bears from

the Davis Strait population. In some

years, however, when ice blows onto

southern Greenland, hunters take an

average of two bears in Greenland. For

additional discussion on Greenland’s

program, see Parry Channel/Baffin Bay

above.

Southern Hudson Bay (SH)

Canada considers the population

estimate of 1,000 to be conservative.

They base the estimate on a 3-year study

mainly along the Ontario coastline of

movements and population size using

telemetry and mark-recapture. Since

Canada did not include a portion of the

eastern and western coastal areas in the

study area, they increased the calculated

estimate of 763 bears to 1,000. In

addition, because of difficulties locating

polar bears inland from the coast in the

boreal forest, the inshore was undersampled. The study confirmed the

population boundary along the Ontario

coast during the ice-free season but

showed the intermixing with the

western Hudson Bay and Foxe Basin

populations during the months when

the bay is frozen over. The GNWT rates

the population data as fair. Table 3

shows the status of the population as

decreasing for the 5-year and 3-year

average harvests, but as stable for the

1993/94 harvest. Of the 45 bears taken

in last year’s harvest, 33.3 percent were

females.

The NWT shares this population with

Quebec (see discussion under Foxe

Basin) and Ontario. In Ontario, polar

bears are protected under the Game and

Fish Act, 1980. Treaty Indians are

allowed to hunt polar bears with an

annual permissible kill of 30 animals

(GNWT). Ontario has supported the

adoption of guidelines for dividing the

quota for polar bear populations shared

with the NWT and Quebec, but there is

no joint management agreement. If

hunters exceed the quota, which is

uncommon, they are encouraged to

count the excess polar bears against the

next year quota. There are no officers

located in the villages where polar bears

are hunted. It was reported at the 1994

PBTC meeting that hunters are not

reporting all known kills, resulting in

incomplete data. Ontario does not

specifically protect bears in dens and

females with cubs. Although the take of

such animals is believed to be rare, the

omission in Ontario law to implement

the resolution has been a point of

concern to polar bear biologists and

managers (PBSG 1995).

D. CITES and Other International

Agreements and Conventions

1. Finding

The MMPA requires that the Service

find that the export from Canada and

subsequent import into the United

States are consistent with CITES and

other international agreements and

conventions. Based on the discussion

below, the Service finds that the

provision of CITES will be met for the

export and import of polar bear trophies

taken in Canada. The Service discussed

the International Agreement previously

in this final rule. At this time, the

Service is not aware of any other

agreements or conventions that the

Service needs to consider.

2. CITES

CITES is a treaty established to

protect species impacted by

international trade. Canada and the

United States, along with 132 other

countries, are Parties to CITES. The

polar bear has been protected under

Appendix II of CITES since 1975.

Appendix II includes ‘‘species which

although not necessarily now threatened

with extinction may become so unless

trade in specimens of such species is

subject to strict regulation in order to

avoid utilization incompatible with

their survival’’ (Article II of CITES). A

CITES export permit must accompany

each shipment from the country of

origin. A country can issue an export

permit for dead specimens for any

purpose as long as the scientific

authority determines that the shipment

will not be detrimental to the survival

of the species and the management

authority determines that the specimen

was obtained legally.

Canada controls the export of polar

bear trophies based on the harvest of

polar bears under quotas enforced by

legislation and co-management

agreements. In the NWT, only the DRR

Headquarters in Yellowknife and its

Regional Offices can issue CITES

permits for polar bears and polar bear

products. Another Canadian province or

territory can issue a CITES permit for a

polar bear product originating in the

NWT if the product was exported from

the NWT with a Northwest Territories

Wildlife Export Permit into that

province or territory. Customs Canada

must validate the CITES permit upon

export.

For import into the United States, all

wildlife and wildlife products requiring

a permit under CITES and the MMPA

must meet inspection and clearance

requirements as outlined in regulation

(50 CFR Part 14), including entry

through one of the ports designated for
7318 Federal Register / Vol. 62, No. 32 / Tuesday, February 18, 1997 / Rules and Regulations

wildlife import and completion of a

Wildlife Declaration Form (3–177).

E. Illegal Trade in Bear Parts

1. Finding

The Service finds that the import of

sport-hunted polar bear trophies from

Canada into the United States is not

likely to contribute to the illegal trade

in polar bear parts and/or the illegal

trade in parts of all other species of

bears, when such activity is done in

accordance with the Service’s

regulations. The permittee must make

an appointment with Service personnel

at a designated port for Wildlife at least

48 hours prior to import for inspection

and clearance under 50 CFR § 14.52. He

or she must arrange for a Service Officer

to affix a permanent tag to the trophy

and mark hard parts upon import. The

permittee also must import all parts of

a single trophy at the same time. The

Service will not consider exceptions to

the designated port requirement except

for the import of full mount trophies.

Trophies may not be sent through the

international mail. If the original tag is

broken during tanning or is lost, the

permittee must contact the Service to

get the polar bear hide or mount

retagged.

To ensure that the gall bladders of

polar bears taken by U.S. hunters after

the date of this final rule do not enter

into trade, all applicants must certify

that the gall bladder, including its

contents, was destroyed.

2. Trade in Hides and Other Hard Parts

and Tagging Requirement

Participants in the 1993 PBSG

meeting reported that the fur market is

currently glutted, resulting in low prices

for polar bear pelts on the open market.

A legal trade exists in Greenland that

assists in marketing polar bear pelts for

local communities. In 1992, the tannery

purchased 60 hides. Thirty of these

went to Denmark (PBSG 1995).

The MMPA prohibits, with limited

exceptions, the import of polar bear

parts into the United States as well as

the harvest and trade of polar bears and

polar bear parts in the United States.

The MMPA restricts the take of polar

bears to any Indian, Aleut, or Eskimo

who resides in Alaska and who dwells

on the coast of the North Pacific Ocean

or the Arctic Ocean, provided such

taking is not accomplished in a wasteful

manner and is for subsistence purposes

or is done for purposes of creating and

selling authentic native articles of

handicrafts and clothing.

All polar bear hides and skulls taken

as part of the Native subsistence harvest

in Alaska must be tagged within 30 days

of harvesting the polar bear. Only

Service personnel or authorized Service

representatives (e.g., Native residents of

the community) may tag the polar bear

parts. The skin and skull of an animal

must accompany each other when

presented for tagging. Tags are attached

to the skins and skulls in such a manner

as to maximize their longevity and

minimize any adverse effect to the

appearance of the specified parts, or the

resulting handicraft. Tags must remain

affixed to the skin through the tanning

process and until the skin has been

severed into parts for crafting into

handicrafts or for as long as practical

during the handicrafting process. If the

tag comes off of the specified part

prematurely, the person in possession of

the part has 30 days to present the part

and broken tag to the Service or the

Service’s local representative for

retagging.

As previously described, the NWT tag

applied to a polar bear hide is removed

either at the time of tanning or upon

export. Therefore, once imported, a

person could not distinguish raw or

tanned hides, rugs, and mounts of

Canadian sport-hunted polar bears from

illegally imported Canadian polar bears

or untagged Alaskan polar bear hides

that may have been illegally acquired or

transported. Thus, this rule is requiring

the permittee to present the trophy to

the Service for tagging and marking

upon import. The Service Officer will

affix a permanent-locking tag to all

sport-hunted polar bear trophies

including raw (untanned) hides, tanned

hides, and prepared rugs and mounts

and mark the skull of the polar bear, as

well as other hard parts with the tag

number of the accompanying polar bear

hide. The permittee must ensure the tag

and marks remain on the trophy and

trophy parts indefinitely.

The Service has experience with

tagging programs for polar bear, walrus,

and sea otter taken in the Native

subsistence harvest in Alaska and for

CITES regulated fur-bearing species,

including brown bear, bobcat, river

otter, and lynx. Prior to making a

decision on the type of tag to be used

for sport-hunted polar bears, the Service

considered: (1) information from Service

personnel experienced with other

tagging programs; (2) comments from

taxidermists and tanners; (3) the

condition of the trophy upon import

(i.e., untanned hide, tanned hide,

finished rug or mount); (4) the

readability of identification marks on

the tag; (5) the ability to replace lost

tags; and (6) the effect of the tag on the

overall appearance of the trophy. Based

on these considerations, the Service will

affix a plastic tag to the hide in the belly

or flank area of all raw hides, rugs, or

mounts in an area that is least

disruptive to the taxidermy process,

more likely to be concealed by the

longer hair in these areas, and easily

accessible to examination.

3. Trade in Gall Bladders

There is some illegal trade in bear

parts in Canada, but the extent is

unknown. While British Columbia,

Alberta, Newfoundland and Labrador,

and Manitoba prohibit the trade in bear

parts, it is still legal to sell bear parts in

Ontario, Quebec, Saskatchewan, and the

NWT.

There is a diversity of opinion on

trade in polar bear gall bladders.

Resolution 5 of the 1993 PBSG meeting

recommended that each party consider

restricting the traffic in polar bear gall

bladders. This was done in recognition

that worldwide trade in bear parts,

particularly gall bladders, threatens the

survival of several species of bear, and

that the legal availability of gall

bladders of any species of bear makes it

impossible to control the illegal trade,

encouraging further illegal take of all

species of bears, including polar bear

(PBSG 1995). Canada’s PBTC endorsed

the resolution which allows each party

to make its own decision. The PBTC

recommended the PBAC discuss the

issue and consider recommending a ban

on trade of gall bladders from all bear

species. Although people can sell

legally harvested bear gall bladders in

the NWT, the GNWT is reviewing the

practice. Between 1992 and 1994, the

GNWT issued export permits for 61

polar bear gall bladders.

There is an absence of documentation

substantiating the extent of the demand

for polar bear gall bladders. There is

anecdotal information that suggests

there is not an extensive commercial

demand for polar bear gall bladders,

possibly due to a fishy odor. On the

other hand, in 1992 U.S. law

enforcement agents in Alaska

documented the first case of the sale of

polar bear gall bladders (Schliebe et al.

1995).

Regardless of the existing legal trade

in some Canadian provinces and

territories, as well as the relative

demand that may exist for polar bear

gall bladders, the Service believes that

the safeguards imposed in this rule at

18.30 (a)(1)(iv) and (e)(7) & (8) will

ensure that the import of legally taken

polar bear trophies does not contribute

to illegal trade in bear parts. The

required certification that the gall

bladder and its contents were destroyed

and the strict tagging requirements

stipulated by this rule are effective
Federal Register / Vol. 62, No. 32 / Tuesday, February 18, 1997 / Rules and Regulations 7319

deterrents to the illegal trade in bear

parts.

F. Import of Pregnant or Nursing

Animals Under the MMPA

1. Finding

The Service finds that provisions of

section 102(b) of the MMPA that

prohibit the import of pregnant and

nursing marine mammals will be met

under the application requirements,

issuance criteria, and permit conditions

placed in the final regulations. The

applicant must certify that the bear was

not pregnant at the time of take and

include relevant documentation with

applications for a permit to import

female bears or bears of unknown sex to

indicate that the bear was taken legally

and, for such bears taken prior to

January 1, 1986, other documentation to

indicate that the bear was taken at a

time or place when it could not have

conceivably been pregnant near term.

For a bear taken prior to the 1996/97

NWT hunting season, the applicant

must provide a certification and any

other documentation that may be

available to demonstrate a female polar

bear, a bear of unknown sex, or a male

bear that is less than 6 feet in length was

not taken from a family group (i.e.,

nursing). The regulations also provide

for import permits to have a condition

that the polar bear at the time of take

was not pregnant near term, was not a

dependent nursing bear or a female with

such offspring (i.e., in a family group),

and was not moving into a den or

already in a den. These measures ensure

that the prohibitions of Section 102(b) of

the MMPA will not be violated, as

discussed further below.

2. Discussion of Pregnant or Nursing

Section 102(b) of the MMPA prohibits

the import of any marine mammal,

except under a permit for scientific

research or enhancing the survival or

recovery of a species or stock, if such

marine mammal was pregnant or

nursing at the time of take. Since

Congress did not specifically exclude

the issuance of polar bear import

permits from this prohibition, the

Service considers the requirement to

apply.

In the proposed rule (60 FR 36382),

the Service requested comments on the

following options to ensure that the

requirements of section 102(b) of the

MMPA are met prior to issuing a permit

for the import of polar bear trophies

taken in the NWT as follows: (1) have

the GNWT certify that at the time of take

the bear was not pregnant, was not a

nursing cub, and was not a mother with

cubs based on information presented to

the DRR office; (2) condition the import

permit that the permittee must certify at

the time of import that at the time of

take a female bear was not pregnant or

a mother with cubs, and a young bear

was not nursing; and/or (3) include

issuance criteria that the Service would

not issue permits for female bears taken

during the month of October and bears

taken while in family groups.

Based on the comments received, the

Service adopted a modification of

proposed actions (2) and (3). In the

proposed rule, the Service noted two

timeframes when it might be difficult to

ensure the provisions of section 102(b)

would be met. First, it would be

difficult to know if a polar bear was

pregnant in any months preceding

denning. Polar bears mate in spring,

become implanted in late September

and usually start building dens in late

October and early November. Cubs are

typically born at the end of December.

As was pointed out by the MMC,

‘‘* * * determining whether a female is

pregnant would be difficult early in a

pregnancy and, very early, might require

analysis of hormones in the blood or

histological examination of the ovaries

and uterus. It is unlikely that either the

hunter or the guide would be qualified,

or would have the equipment or

material necessary to do such analyses.’’

Because of this concern, the Service

reviewed the legislative history of the

MMPA for information on the meaning

of the term ‘‘pregnant’’. In 1972, when

the MMPA was enacted the House

Conference Report (H.R. Rep. Conf. No.

92–1488, 92d Cong., 2d Sess. 24 (1972))

indicates that the conferees discussed

the provision of prohibiting the import

of pregnant marine mammals. The

report states, ‘‘It is known that some

marine mammals are technically

pregnant almost year-round, and in the

cases of others, it is extremely difficult

for even trained observers to detect

pregnancy except in the latter stages or

in seasons when such animals are

known to give birth. It is the intent of

the conferees that the term ‘‘pregnant’’

be interpreted as referring to animals

pregnant near term or suspected of

being pregnant near term as the case

may be.’’

The GNWT currently prohibits the

hunting of bears constructing dens or in

dens. Since the proposed rule, the

Service has learned that the GNWT

affords such protection to female bears,

in part, by prohibiting the hunting of

female bears prior to December 1 in

areas where denning occurs. These

measures effectively protect female

bears pregnant near term.

It is unclear when the GNWT put

protection measures in place for

denning bears. In a December 20, 1996,

memo to the Service, it was stated that,

‘‘For more than ten years, the Northwest

Territories have had regulations in place

protecting polar bears at or constructing

dens’’ (GNWT). Therefore, for female

polar bears or bears of unknown sex

sport hunted in the NWT prior to

January 1, 1986, the Service will require

an applicant to provide documentation

that the polar bear was not pregnant

near term at the time of take. This

documentation could be a copy of the

travel itinerary or hunting license which

shows the date(s) or location of the

hunt, as proof that the bear was taken

during the time period when the bear

could not conceivably be pregnant near

term or from an area that does not

support maternity dens. The Service

selected the date of January 1, 1986,

since bears typically give birth prior to

January 1, and 1986 represents the ten

year period of protection referred to in

the memo.

The second timeframe of concern was

for nursing bears (mother and young).

Bears typically nurse until they are

approximately 2.0 to 2.5 years of age at

which time they are about the same size

as the mother. Polar bears nearing the

time when they are weaned would be

difficult to identify as nursing. At the

time of the proposed rulemaking and as

discussed previously, the NWT wildlife

regulations protect cubs of the year, oneyear-old cubs, and mothers of bears in

these two age groups. However, in some

areas, the regulations do not protect

two-year-old bears or mothers of twoyear-old bears. Effective with the 1996/

97 NWT polar bear hunting season, all

management agreements were changed

to protect bears in family groups (Ron

Graf, DRR, personal communication).

Although sport hunters tend to target

large, older male polar bears it is

possible that 2-year-old bears or mothers

of such bears were legally sport hunted

in the NWT prior to the management

agreement changes. Therefore, to ensure

that the MMPA prohibition on the

import of nursing marine mammals is

met, the Service will require applicants

who took a bear prior to the 1996/97

NWT hunting season to certify that the

bear was not hunted from a family

group and provide any available

documentation that a female bear, a bear

of unknown sex, or a male bear that is

less than 6 feet in length (from tip of

nose to the tail) was not taken from a

family group. Such documentation may

include certification from the DRR

based on their harvest records that the

bear was not taken as part of a family

group.
7320 Federal Register / Vol. 62, No. 32 / Tuesday, February 18, 1997 / Rules and Regulations

G. Finding for Bears Taken Before the

1994 Amendments

1. Finding

The Service will issue permits for

polar bears taken from approved

populations in the NWT between

December 21, 1972, and April 30, 1994,

the date the MMPA was amended, when

the issuance criteria of § 18.30(d) and

the conditions of § 18.30(e) are met. The

Service proposed that bears taken in all

12 populations in the NWT would be

eligible for import permits under an

aggregate finding, but now the Service

finds that pre-Amendment bears must

have been taken from approved

populations as discussed below. The

Service will accept several different

forms of documentation, as described in

§ 18.30(a)(4) as evidence of legal take.

The Service notes that documenting the

polar bear was legally harvested in

Canada by the applicant or by a

decedent from whom the applicant

inherited the trophy may be more

problematic for polar bears taken

between late 1972 to 1976 since records

maintained by DRR start from the mid

1970’s. The application information

needed to determine the bear was not

pregnant or nursing at the time of take

is the same as for bears taken after April

30, 1994. This is to address the factors

set forth in § 18.30(a)(7) and (8).

2. Discussion of Bears Taken Before the

1994 Amendments

Section 104(c)(5)(A) includes polar

bears taken, but not imported, prior to

the 1994 Amendments. The Service

proposed (60 FR 36382) to issue an

aggregate finding covering the NWT

historic sport-hunting program for each

year starting in late 1972 to the present

for the following reasons: (1) Canada is

a signatory to the 1973 International

Agreement on the Conservation of Polar

Bears that came into effect on May 26,

1976; (2) since 1949 Canada has

restricted hunting of polar bears to

Native people; (3) the GNWT has

managed polar bears under a quota

since 1968; (4) the GNWT has

maintained a data collection and

monitoring program on the polar bear

harvest in its territory since the 1976/77

harvest season; (5) the DRR has

demonstrated a progressive management

program for polar bear that includes

scientific research and traditional

knowledge; and (6) the 1994

Amendments do not require the

evaluation of Canada’s past polar bear

management history.

Based on comments received and a

review of the MMPA, the Service finds

pre-Amendment bears must have been

taken from approved populations. The

‘‘grandfather’’ provision that allows

permits to be issued for pre-Amendment

trophies is tied to the same statutory

criteria that apply to the import of polar

bears taken after the passage of the 1994

Amendments. Section 104(c)(5) of the

MMPA allows the issuance of import

permits for polar bear trophies taken

before April 30, 1994, if the Secretary

makes the necessary findings that, inter

alia, the Canadian management program

is consistent with the International

Agreement and that ‘‘the affected

population stock’’ is managed under

scientifically sound quotas ‘‘at a

sustainable level.’’

For those pre-Amendment trophies

which were taken from currently

deferred populations, the Service will

consider substantial new scientific and

management data as it becomes

available. If, after public comment and

consultation with the MMC, the Service

is able to approve the population at

some future time, the regulations would

be amended to add that population to

the list of approved populations in

§ 18.30(i)(1). Then, permits could be

issued for the import of pre-Amendment

trophies of polar bears taken from the

newly approved population.

Background

On January 3, 1995, the Service

published a proposed rule in the

Federal Register (60 FR 70) to establish

application requirements, permit

procedures, issuance criteria, permit

conditions, and a special permit

issuance fee. The Service published a

second proposed rule (60 FR 36382) on

July 17, 1995, on the legal and scientific

findings that the Service must make

before issuing permits for the import of

polar bears trophies. A notice (60 FR

54210) to reopen the public comment

period for 15 days was published on

October 20, 1995. The Service received

61 comments from the public, including

7 form letters from hunters, 8 humane

organizations, 11 hunting organizations,

23 individuals, 3 Native groups in

Alaska, 3 businesses, and 7

governmental agencies.

Summary of Comments and

Information Received; General

Comments

Several respondents were concerned

with the length of time it was taking to

finalize the rulemaking. One thought the

National Environmental Policy Act

(NEPA) was inapplicable and was

causing undue delay.

Response: The Service made every

effort to complete this rule in a timely

manner. The rulemaking process

requires the Service to review and give

due consideration to public comments.

NEPA requires the Service to consider

the environmental effects of proposed

actions so the Service can make a fully

informed decision and assure the public

that it has considered all significant

environmental concerns. Since the

Service conducted the rulemaking and

NEPA review at the same time and since

the Service made a Finding of No

Significant Impact under NEPA which

precludes the need to conduct an

Environmental Impact Statement, the

NEPA review did not delay the Service’s

rulemaking.

Comments on Application

Requirements and Permit Procedures

Issue 1: Several respondents

encouraged the Service to make the

permit process more efficient and user

friendly. Some suggested the Service not

require some of the proposed

application information.

Response: The Service agrees the

permit process should be easy to

understand and is developing an

application package for the import of

polar bear trophies. Once available, the

Service welcomes comments on clarity

of information. Individuals currently on

the Service’s polar bear mailing list will

be sent a copy of this package.

After further consideration, the

Service revised the regulations on

application requirements. The Service is

no longer asking for the name and

address of the exporter since the

information will be on the CITES export

permit. Nor will the applicant need to

give the age of the polar bear as he or

she generally will not know this

information at the time of import. The

Service does not agree with some of the

comments and will continue to require

the applicant to provide the sex of the

polar bear and the size of the hide or

mount. The Service believes it is

important the permit describe the items

being imported, to facilitate inspection

and clearance of the trophy into the

United States.

Issue 2: The Service received several

comments on the proposed definition of

‘‘sport-hunted trophy’’ in § 18.30(b).

One respondent urged the Service to

stress that the permittee can use the

imported trophy only for noncommercial purposes. Another

suggested the Service expand the

definition to include any part that

would normally constitute polar bear

trophy items, such as the baculum and

bones.

Response: The Service agrees and

revised its definition. The definition

allows the trophy to be finished or

unfinished, but requires the items be

suitable for the creation of a mount,

display, or rug. It does not include: (1)
Federal Register / Vol. 62, No. 32 / Tuesday, February 18, 1997 / Rules and Regulations 7321

unspecified polar bear parts and

internal organs that may be of curiosity

but not traditionally kept as trophy

items; (2) items that are purchased in

Canada; or (3) articles of clothing or

ornamentation such as pants, hats,

shoes, gloves or jewelry, or other

finished polar bear products such as

fishing lures or accessories.

Issue 3: One respondent correctly

noted that the Service mistakenly

proposed in § 18.30(c) that the MMC

must review each polar bear trophy

application. The law only requires

consultation with the MMC on a series

of general findings, not on each permit

application.

Response: The Service agrees that

Section 101(a)(1) of the Act specifically

exempts review by the MMC of each

application for a permit to import a

sport-hunted polar bear trophy and

revised the regulations to reflect this.

Issue 4: One individual requested the

Service set a timeframe for the review

and approval of applications.

Response: The Service believes the

time already specified in the regulations

at 50 CFR § 13.11 is appropriate. The

permit applicant should allow at least

90 days prior to the requested effective

date of a permit to be issued under the

MMPA. The Service processes all

applications as quickly as possible, but

notes that actual processing time varies

based on available resources and

number of applications received in a

period of time. Applicants can facilitate

the process by ensuring that all

information and documentation

submitted in their application is

complete.

Issue 5: Two respondents objected to

the proposal to publish a notice of each

permit in the Federal Register.

Response: Section 104(d)(2) the

MMPA requires the Service to publish

notice of each application in the Federal

Register. When Congress added section

104(c)(5) to the MMPA to allow for

issuance of permits to import polar bear

trophies, it did not exempt this type of

permit from the public notice and

comment procedures required under

section 104(d) of the MMPA.

Issue 6: One respondent

recommended the Service delete the

issuance criteria listed in § 18.30(d)(4),

(5), and (6) on Canada’s sport-hunting

program, scientific quotas, and

consistency with CITES since the

Service was making generic findings.

Response: Although the Service

recognizes that some of the criteria will

be met through generic findings, it

continues to believe the regulations

must contain all issuance criteria. To

assist the public in understanding the

requirements, the application package

will provide information explaining

issuance criteria and findings.

Applicants may cite the generic findings

made in this rule on the consistency of

the Canadian program with the

International Agreement and the

sustainable management of the

particular population from which the

trophy was taken. However, for polar

bears taken from populations other than

those approved in the final rule, the

applicant should submit data on each of

the criteria so that the Service can

determine whether the new data are

sufficient to allow the Service to make

affirmative findings under Section

104(c)(5)(A) of the MMPA.

Issue 7: Two individuals indicated

that the import permit needs to be valid

for longer than one year since taxidermy

work cannot be done in Canada in that

time interval. In addition, there should

be a provision to extend the permit

without payment of another fee.

Response: The Service believes that a

one-year duration of a permit should be

adequate time to make the shipping

arrangements and import a trophy since

the permit is required to import the

trophy, not to hunt the polar bear. The

permit applicant can apply for the

import permit at any time as best suits

the anticipated completion date of the

taxidermy work in Canada. The Service

continues to believe the standard

processing fee in 50 CFR § 13.11(d)(4)

should apply to renewal of permits,

including polar bear trophy import

permits. This is a permit administration

fee to help defray the processing costs,

not the one-time polar bear issuance fee

of $1,000.

Issue 8: Some respondents thought

the proposed fee rate for the issuance of

polar bear permits was reasonable while

others were concerned the proposed fee

was excessive. Several respondents

were concerned about the Service’s use

of the fee and its accounting of

disbursements.

Response: After consideration of the

comments, the Service retained the

issuance fee at $1,000, as proposed.

Congress specifically wrote the law

(section 113(d)) so the Service would

use the funds from the issuance fee to

further the purposes of the International

Agreement for the conservation of polar

bear populations shared between the

United States and the Russian

Federation. An issuance fee of less than

$1000.00 (compared to the projected

number of import permits) would not

produce sufficient revenue to

implement the conservation provisions

of Sections 104(c)(5)(B) and 113(d).

The Service, working with the State

Department, the MMC, and the State of

Alaska, is working with the Russian

Federation to coordinate measures for

the conservation, sustainable use,

protection of habitat, and study of the

Alaska-Chukotka shared polar bear

population. The Service anticipates they

will fund the following kind of

activities: development of a harvest

monitoring management program;

collection of specimen material;

conducting aerial den or population

surveys; providing technical assistance

for enforcement programs; and

development of conservation

educational materials.

The Service will use monies from

issuance fees to fund research and

conservation projects as outlined by the

MMPA and not to process polar bear

import permit applications. The Service

will provide periodic progress reports to

Congress on the effectiveness of the

implementation of the International

Agreement and of the progress made in

the cooperative research and

management programs with the Russian

Federation under section 113(c) and (d)

of the MMPA.

Issue 9: One respondent urged the

Service to define ‘‘significant adverse

impact’’ in its final rule under § 18.30(h)

on scientific review.

Response: The Service decided not to

develop a regulatory definition of

‘‘significant adverse impact’’ at this

time, but did give consideration to its

meaning as discussed in the section on

scientific review above.

Comments on Consideration of

Population Stocks Under the MMPA

Issue 1: Many respondents questioned

the management of polar bears in

Canada as 12 separate population

stocks.

Response: After review of the

comments and further consideration,

the Service continues to conclude that

each of the 12 polar bear management

units in Canada is a separate population

stock as the MMPA defines the term.

The Service believes that this

designation ensures the maintenance of

the polar bear throughout its range in

Canada. This decision was made by

applying sound biological principles to

the examination of polar bear biology

and reviewing the data from scientific

research. A complete discussion of the

Service’s position on this issue is

provided under the heading

‘‘Consideration of Population Stocks

under the MMPA.’’

Issue 2: Although the MMC agreed

that in the face of uncertainty it

generally is prudent to manage based on

local populations or subpopulations,

they pointed out that splitting a discrete

population into smaller sub-units could

lead to a positive finding for sub-units
7322 Federal Register / Vol. 62, No. 32 / Tuesday, February 18, 1997 / Rules and Regulations

that would not be reached if the

population were considered as a whole.

Response: The Service agrees with the

MMC, and notes Canada’s polar bear

management program recognizes that

there may be adverse consequences if

Canada defines and manages a

population too broadly or too narrowly.

For example, when scientific data

showed that the recruitment level of the

Viscount Melville population was

substantially different from other

populations in Canada, the GNWT

changed its management of polar bears

in this population. If the GNWT had

lumped this population with other

populations and managed them as one,

the number of polar bears would have

continued to decline in Viscount

Melville.

Comments on Canada’s and NWT Polar

Bear Management Programs

Issue 1: Many respondents praised the

Canadian polar bear management

program as a model of good

conservation and co-management and

asked the Service to defer to Canada’s

expertise.

Response: The Service agrees that

Canada has established an effective

management program for polar bear, but

the MMPA requires the Service to

independently make the findings set out

by Congress.

Issue 2: Several respondents

questioned Canada’s ability to monitor

and enforce their polar bear sporthunting program.

Response: After considering the

comments, the Service continues to find

that Canada has an effective sporthunting program. The Service does not

agree with the comment that Native

land claim agreements will supersede

NWT and Canadian law. The NWT

regulations implement the agreements

and apply to all hunters. The

agreements include actions necessary to

fulfill the provisions of the International

Agreement. Some agreements have been

in place a number of years (e.g., the

Inuvialuit Land Claim Agreement has

been in place since 1984) and have been

shown to be effective in developing and

implementing co-operative management

of polar bear and other wildlife

resources.

Comments on the Harvest of Polar

Bears

The Service received many extensive

and contradictory comments on the role

of sport hunting in the harvest and

management of polar bears.

Respondents disagreed on the

significance of cannibalism by males;

whether sport hunting has an effect on

the total harvest of polar bears; the

significance of sexual competition; the

potential consequences of targeting

older, adult male bears; and the social

and economic effects of sport hunting

on Native peoples.

Response: The Service must consider

not whether sport hunting should occur

or is beneficial but whether Canada has

a monitored and enforced hunting

program that is consistent with the

International Agreement and is based on

scientifically sound quotas that will

ensure the maintenance of populations

at a sustainable level. Thus, the Service

believes it is not necessary in this forum

to respond to the detailed comments

debating the role of sport hunting. The

Service recognizes that, under certain

conditions, sport hunting can be a

useful management tool. Canada has

elected to incorporate it into their total

management program for polar bears.

The selective harvesting of males is a

part of the Canadian model of

management and is based on biological

and management considerations, not on

the relative merits of sport hunting.

Comments on Legal and Scientific

Findings

Issue 1: The MMC thought the

regulations should permanently prohibit

the import of polar bears taken in

disapproved populations. They wrote

the Service that ‘‘at the absolute

minimum, the Service should require

the applicant to demonstrate that the

trophy to be imported was taken from a

population for which the Service has

made a current affirmative finding.’’

Response: The Service has carefully

considered the comments received and

agrees that only polar bear trophies

which were taken from currently

approved populations should be eligible

for import at this time. The Service will

consider issuing import permits for

polar bear trophies taken from currently

deferred populations if, after notice and

opportunity for public comment and in

consultation with the MMC, the Service

is able to make all of the required

findings for the deferred population and

add that population to the list of

approved populations at § 18.30(i)(l).

Issue 2: Several respondents thought

the proposed system to review and

update the status of populations would

delay the subsequent approval of

populations that the Service had

disapproved. The CWS asked that the

system retain flexibility so as to allow

findings to be reviewed and updated

regularly.

Response: The Service agrees and

revised the regulations to look at the

overall sport-hunting program. The

Service removed the requirement that

the population status as reported by the

DRR had to be either ‘‘+’’ or ‘‘o’’ for the

average of the past three harvest

seasons. For additional discussion of the

method of approving populations, see

the previous section on scientifically

sound quotas and maintenance of

sustainable population levels.

Issue 3: One respondent was

concerned that if the population status

changed for any particular year (i.e., an

approved population became

disapproved), the Service would be

required to confiscate already imported

trophies.

Response: The Service would

consider legally imported trophies from

approved populations to be legal even if

the population was subsequently

disapproved based on new information.

A. Comments on Legal Take

One respondent commented that the

proposed rule placed the authority to

prove legal taking of a bear with the

GNWT.

Response: The Service retains the

responsibility to decide for each permit

application whether the hunter legally

harvested the polar bear in the NWT.

The finding of legal take consists of two

decisions by the Service: (1) the

aggregate finding on Canada’s program

as given in this rule and (2) the finding

for each permit application. The type of

documentation the applicant must

provide is given in the regulations at

§ 18.30(a)(4) and is based on provisions

in Canada’s management program.

B. Comments on the International

Agreement

Issue 1: The MMC commented it is an

open question whether the International

Agreement is self-executing.

International law binds the Parties to

the provisions of the International

Agreement, whether or not a Party has

domestic legislation to fully implement

the Treaty’s provisions.

Response: The Service believes the

International Agreement is not selfimplementing, but agrees with the MMC

that international law binds the Parties

to its provisions. In any event, the

Service believes that the GNWT

program for the management of polar

bears is consistent with the

International Agreement.

Issue 2: The MMC asked which

exemption in Article III.1—either (d) or

(e)—the Service considers to authorize a

sport hunt by non-nationals.

Response: Although exception (e) is

the clearer authority, the Service

interprets both exceptions to allow sport

hunts under specified conditions

discussed earlier in the section on the

International Agreement. Exception (d)

allows for sport hunts in Canada
Federal Register / Vol. 62, No. 32 / Tuesday, February 18, 1997 / Rules and Regulations 7323

because of Canada’s declaration.

Exception (e) allows sport hunts by any

Party. So as referenced in Canada’s

declaration, both (d) and (e) permit a

sport hunt based on scientifically sound

quotas under Canada’s laws.

Issue 3: Two respondents provided

opposing views as to whether

exceptions (d) and (e) are more

appropriately interpreted by plain

meaning or consideration of negotiating

history.

Response: The Service agrees with the

comment that negotiating history may

be consulted where the provisions of a

treaty are unclear, and that the plain

meaning interpretation must be used

where the provisions are clear.

Issue 4: The MMC thought the Service

should consider whether exception (d)

is limited to taking by local people as a

literal reading would suggest, or

whether it allows taking by nonnationals, non-Inuit, or non-Indian

hunters under the guidance of a Native

hunter, as the negotiating history may

support. One respondent argued that

under the plain meaning of the phrases

of the exception hunting is limited to

only local people in contiguous land

areas.

Response: The Service does not

believe the scope of this exception is

limited to actual taking by local people

in Canada based on Canada’s

declaration to the International

Agreement. Since persons may disagree

on the interpretation of the generalized

words in the exception, the Service

believes it is necessary to look to the

negotiating history as discussed

previously.

Issue 5: The MMC and two

respondents gave widely divergent

interpretations of exception (e). One

respondent suggested the exception

imposes a geographic restriction rather

than a restriction on the class of

persons. Another thought the

interpretation given by the Service and

the Baur Report was overly broad and

overlooked the consequences.

Response: The Service agrees with the

MMC that the best interpretation of

exception (e) is that a Party nation may

authorize taking by any person,

including a non-national, as long as the

take occurs in an area where nationals

have hunted by traditional means. A

discussion of traditional hunting areas

can be found in the section on the

International Agreement. Since the

language of this exception is open to

different interpretations as shown by the

range of comments received, the Service

examined the negotiating history of

exception (e) as discussed earlier.

Issue 6: One respondent suggested

that Canada’s polar bear sport-hunting

program is in violation of the

International Agreement because

Canada filed its declaration after the

Treaty was signed and the declaration

contravenes the language of the Treaty.

Response: The Canadian government

submitted its declaration when it

deposited its instrument of ratification

for the Agreement in 1976 (Baur 1993).

The declaration provides Canada’s

interpretation of the phrases ‘‘traditional

rights’’ and ‘‘in accordance with the

laws of that Party’’ from the

International Agreement. Moreover the

Service is not in a position to criticize

Canada’s interpretation of the

International Agreement or Canada’s

domestic implementation of the treaty.

It is the Service’s judgment that Canada

has the best polar bear management

programs in the world. The Service

finds that the GNWT management

program for polar bears as well as the

Canadian interpretations of the

International Agreement are consistent

with the purposes of the International

Agreement.

Issue 7: Many respondents disagreed

with the Service’s interpretation of

‘‘token’’, arguing that Canada had not

defined the term and Canada should

determine the meaning. On the other

hand, the MMC thought the Service

should define the term more

conservatively.

Response: After considering

comments and consulting further with

the CWS, the Service decided not to

independently define the phrase ‘‘token

sports hunt’’ in terms of percentage of

the quota, but to accept Canada’s

interpretation that token refers to sport

hunts that are within conservation

limits.

Issue 8: The Service received two

opposing comments on the Resolution

on Special Protection Measures to the

International Agreement that calls for

the protection of females with cubs and

their cubs.

Response: The Service believes the

Resolution is complementary to the

objectives of the International

Agreement, and failure to comply with

the Resolution results in failure to meet

those objectives. Therefore, the Service

will continue to consider whether

populations have provisions to protect

females with cubs and their cubs prior

to deciding whether to approve polar

bear populations for the import of

trophies into the United States.

Issue 9: Several respondents thought

that hunts would be in violation of the

International Agreement if (1) hunters

used aircraft, snow machines, or boats

to reach base camps in areas beyond

where nationals traditionally hunted or

to areas that could not be reached by

Native hunters on dog sleds or (2)

hunters used aircraft to assist in locating

or taking bears, or selecting base camps

within areas of high polar bear

densities.

Response: After further consideration,

the Service continues to find that

Canada’s polar bear management

program, including the use of aircraft,

snow machines or boats to reach base

camps, meets the provisions of the

International Agreement. A discussion

that addresses the concerns raised by

these comments is given in the section

on the International Agreement above.

Issue 10: The MMC pointed out that

section 102(a)(1) of the MMPA prohibits

any person subject to U.S. jurisdiction

from taking any marine mammal on the

high seas, and advised that if sport

hunts are being conducted beyond

Canada’s 12-mile limit, which the MMC

is interpreting as the high seas, the

Service will need to determine whether

such taking is consistent with the

MMPA.

Response: The MMPA does not define

the term ‘‘high seas.’’ Canada signed the

UN Convention of the Law of the Sea in

1982 and considers waters under

Canadian jurisdiction to include waters

up to the limit of the 200 nautical mile

exclusive economic zone (GNWT). This

interpretation is comparable to the

definition of ‘‘waters under the

jurisdiction of the United States’’ as

defined in the MMPA.

The MMPA provides for exception to

the taking prohibitions of section 102 by

permit issued under section 104.

Section 104(c)(5)(A) allows the Director

to issue permits for the import of polar

bear trophies legally taken in Canada.

The Service has, therefore, determined

that the taking of polar bear trophies by

U.S. hunters is consistent with the

MMPA so long as the trophy is hunted

legally in Canada, which includes the

waters under the jurisdiction of Canada

as long as the provisions of the

International Agreement are met.

C. Comments on Scientifically Sound

Quotas and Maintenance of Sustainable

Population Levels

Issue 1: Several respondents

questioned the quality of the data used

by the Service to make its findings,

suggesting the information was

insufficient or uncertain for key

elements of the management program

such as definition of population

boundaries.

Response: The Service based its

findings on the best available

information. The Service does not

consider the re-examination of

population boundaries, for example, by

the DRR as being indicative of a scarcity
7324 Federal Register / Vol. 62, No. 32 / Tuesday, February 18, 1997 / Rules and Regulations

of data. On the contrary such reexaminations demonstrate an interest in

obtaining the best information possible

given current management practices and

technology.

Issue 2: Several respondents thought

the GNWT relied too much on

population inventories. The length of

time between inventories was long and

the lack of adequate funds might limit

the periodic inventories being

conducted.

Response: The Service notes that the

20-year timeframe between inventories

is practical considering other data

Canada collects and uses to monitor

polar bear populations and polar bear

life history that is characterized by a

long life span, slow population growth,

large distribution, and low density.

Issue 3: Several respondents

expressed concern by the lack of

standard error measures for population

estimates.

Response: The Service considers the

use of the population estimates within

the present context to be valid. The

population estimates were determined

through research using scientific

methodology and are a conservative

approach. Although the Service

acknowledges that the use of a

quantitative term, such as the standard

error, to report the reliability of the

population estimate is more acceptable

scientifically, the use of qualitative

terms is appropriate at this time due to

sampling bias.

Issue 4: The Service received a

number of comments on the use of local

knowledge collected from hunters in the

NWT polar bear management program.

Response: The use of local knowledge

by the GNWT demonstrates one aspect

of co-management of the polar bear

resource and reflects the efforts of the

GNWT to collect as much information

as possible to identify research and

management needs. Local knowledge is

one kind of information considered in

conjunction with monitoring of the

polar bear populations. This is similar

to other wildlife management programs

that use hunter information, such as the

white-tail deer programs in the United

States. The Service notes that the

analyses used to examine the harvest

data as well as their interpretation and

the conclusions of the investigators have

been discussed in a recent publication

by Lee and Taylor (1994).

Issue 5: Several respondents

commented that allowing the import of

polar bear trophies into the United

States might result in pressure on the

GNWT to increase the harvest quotas.

Response: The drafters of the 1994

Amendments to the MMPA recognized

this possibility and placed provisions in

the MMPA to address it, i.e., specific

scientific review and findings to ensure

the issuance of permits is not having a

significant adverse impact on the polar

bear populations in Canada. In addition,

the NWT polar bear program is subject

to review by the IUCN PBSG as well as

other national and international

representatives at annual PBTC and

PBAC meetings.

Issue 6: Several respondents were

critical of the model used by Canadian

wildlife managers for a variety of

reasons. One of the biggest concerns was

there would be a delay of many years

before managers would know if the

predictions of the model were correct.

Response: Given the varied aspects of

the NWT polar bear management

program and the constraints of the polar

bear life history, the Service believes the

model used to calculate sustainable

harvest is appropriate. Some time may

be required before certain variables

within the existing model can be

precisely quantified, but this is typical

of models for species, such as the polar

bear, characterized by low reproductive

potential, long life spans, low density,

and large distribution. Given this life

history, there is no model available

which could provide a prediction of

trends within a short timeframe. This

includes the model currently mandated

by the MMPA for U.S. marine mammal

stocks which includes the

determination of maximum net

productivity.

Issue 7: The MMC commented that

the use of this model would result in

very conservative management for

populations near carrying capacity, but

that populations below their maximum

net productivity level will remain

depleted. The choice of this model

indicates the GNWT intends to

maximize yield and to sustain existing

populations rather than bring those

populations to optimum sustainable

levels.

Response: The 1994 Amendments do

not require the Service to apply the

terms ‘‘depleted,’’ ‘‘maximum net

productivity,’’ and ‘‘optimum

sustainable levels’’ in relation to the

NWT polar bear program. The Service

must make a finding that Canada has a

sport-hunting program based on

scientifically sound quotas ensuring the

maintenance of the affected population

at a sustainable level, not at an optimum

sustainable level.

Issue 8: Some respondents believed

that the GNWT should not manage polar

bears under the assumption of maximal

recruitment and survival rates (e.g., no

density effects).

Response: The Service does not agree

with these comments. As discussed

previously, information is lacking on

density-dependent population

regulation in bears, including polar

bears. Until such time as there is

accurate data on how density affects

bears, the Service believes the GNWT

has taken a reasonable approach by

assuming that there is no density effect

and basing its management program on

measurable numbers.

Issue 9: The MMC asked why the

Service used the midpoint or best

population estimates, rather than

minimum population estimates, which

are used in calculating potential

biological removal levels under the

MMPA.

Response: The Service used the

phrase ‘‘best estimates for vital rates’’ in

the proposed rule, not ‘‘best population

estimates.’’ The Service believes the

population estimates used are

appropriate. It was agreed at the

workshop for the development of the

DRR polar bear model (DeMaster 1988)

that minimum estimates of population

size should be used when reliable

estimates of population size are not

available. This results in a conservative

quota.

Issue 10: Several respondents

considered the emphasis on harvest at a

2:1 sex ratio as inappropriate given the

lack of information on number of males

needed to make up a healthy population

and male reproductive success, and the

possible reduction of genetic vigor in

the population.

Response: The Service acknowledges

that genetic viability, mate selection,

and genetic vigor are not well

documented for polar bear but believes

that Canada is using the best available

information in deciding on tools to

manage this species. It is known that

male polar bears are opportunistic

breeders and do not contribute to the

care of young. The loss of a male bear

generally will have less of an impact on

population recruitment than the loss of

a female. So the sex-selective harvest is

a valid wildlife management tool that is

based on science and is utilized to

conserve the population by reducing the

impact of the harvest on females.

Issue 11: Other respondents thought

the GNWT could not keep the harvest of

females within the specified ratio

because the DRR does not appear to

have effective law enforcement against

the taking of female bears.

Response: The DRR has regulations

and enforces such regulations for the

harvest of females in excess of the

quota. Because there have been

problems with implementation of the

harvest sex ratio, the GNWT developed

the Flexible Quota Option that provides

a more consistent means of reducing the
Federal Register / Vol. 62, No. 32 / Tuesday, February 18, 1997 / Rules and Regulations 7325

community quota when there has been

an overharvest of either male or female

polar bears.

Issue 12: The MMC pointed out that

if the proportion of females in the

harvest drops to 1.5 percent, the

allowable harvest would be the entire

population.

Response: The Service agrees that the

theoretically absurd outcome

hypothesized by the MMC could occur

if the GNWT blindly followed its

formula without regard to the dramatic

change in the composition of the

harvest. It is highly unlikely that such

would occur. To further ensure that

such an event does not occur, the

GNWT encourages polar bear harvesting

at a 2:1 ratio. The use of the Flexible

Quota Option will help to ensure this

level of harvest is not exceeded.

Issue 13: The Service received a

number of comments on the method

used by the Service to approve

populations. Some respondents thought

it was inappropriate to use the

population status or exceeding the quota

as determinative factors, but rather the

Service should look at the success of the

overall management program.

Response: The Service agrees that

neither factor alone fully reflects how a

particular population meets the required

finding. The Service proposed to use the

population status as a nondiscriminatory means of approving

populations, but now believes the

population status is better used as an

indicator of how well the allocated

quota is being adhered to.

The Service must make a finding that

there is a sport-hunting program based

on scientifically sound quotas to ensure

the sustainability of the affected

population. To clarify, the Service views

scientifically sound quotas as ones that

are based on scientific methodology that

have undergone some scientific (i.e.,

peer) review and/or are generally

accepted by the scientific community at

large. It is the sport-hunting program,

not the quota, that must include

mechanisms that will ensure the

maintenance of the affected population

at a sustainable level. The quota is one

factor that affects the growth or decline

of the population. See the previous

section on the legal and scientific

findings for further discussion.

Issue 14: One respondent thought the

Service should approve populations

where authorities are working to

establish a management agreement

rather than requiring such an agreement

be in place.

Response: The Service believes that

the management agreements are an

essential part of co-management of polar

bear populations between the resource

users and government wildlife

managers. So the Service continues to

require management agreements be in

place before approving a population.

Issue 15: One respondent noted that

the Service had approved the Southern

Beaufort Sea and Western Hudson Bay

populations with a condition that the

management agreements between

communities remain in place. The

respondent questioned why the Service

had not placed a similar condition on

other approved populations.

Response: The Service reviewed the

management agreements for all

populations in making its proposed

findings, but only conditioned the

approval for these two particular areas

that involve interjurisdictional

management agreements. Given the

critical role that management

agreements play in the NWT polar bear

management program, the Service

agrees that the approval of all

populations should be conditioned and

revised the regulations to reflect this.

Issue 16: In the proposed rule, the

Service stated that the Quebec Inuit had

declined to participate in comanagement agreements with the

GNWT. The CWS clarified that although

there is no specific agreement between

Quebec and the NWT, both Quebec and

the Quebec Inuit have been active

participants in the cooperative

management of shared populations, and

that all parties are committed to

cooperating to ensure the conservation

of polar bears.

Response: The Service regrets the

error regarding participation of the

Quebec Inuit and removed the statement

from the preamble of this rule.

Issue 17: The Hunting, Fishing and

Trapping Coordinating Committee

established under the James Bay and

Northern Quebec Agreement and the

Act Respecting Hunting and Fishing

Rights in the James Bay and New

Quebec Territories asked the Service to

allow the import of polar bear hides

resulting from subsistence harvest in

Quebec.

Response: The 1994 Amendment to

the MMPA only allows the issuance of

a permit to import a polar bear trophy

that was sport hunted by the permittee.

Any other exemption to the prohibitions

of the MMPA, including the import of

purchased hides or handicrafts for

personal use, would require

administrative action under other

provisions of the MMPA.

Issue 18 Southern Beaufort Sea: One

respondent thought the Service should

not approve the Southern Beaufort Sea

area based on the lack of: management

provisions, including a treaty or

agreement between the United States

and Canada to manage this population;

limits on Native take of marine

mammals; and enforceable measures on

the take of pregnant polar bears and

cubs.

Response: The Service accepts the

agreement between the resource user

groups in Canada and Alaska as being

in the same context as management

agreements for populations contained

within the NWT. The agreement

establishes the sustainable harvest level

and allocation of the quota, provides for

protection of cubs and their mothers

and denning females, and restricts

hunting seasons. The NWT management

program incorporates measures to

resolve problems and to investigate or

correct a suspected decline in this

shared population.

Issue 19 Northern Beaufort Sea: One

respondent disagreed with the Service’s

approval of the Northern Beaufort Sea

population due to the failure of hunters

to adhere to a 2:1 harvest ratio of males

to females.

Response: The Service provides the

following clarification. Although the

harvest in the Northern Beaufort Sea has

not been at 2:1, the harvest of females

did not exceed the 2:1 quota. For

example, the sustainable harvest in the

1993/1994 season was 36. If the harvest

was conducted at a 2:1 ratio, then 12

females could have been harvested. The

total kill was 16, with 50 percent of

these being female. So eight female

polar bears were killed in the 1993/1994

season, and the quota of 12 females was

not exceeded.

Issue 20 Viscount Melville: Several

respondents disagreed with the

Service’s approval of the Viscount

Melville population since there is a

moratorium on hunting. One felt that it

was not clear whether the DRR had

enforcement authority over this

moratorium.

Response: The Service considers this

area closed to U.S. sport hunters, but

approved the population since the

GNWT based the quotas on recent

scientific information and a

management program is in place.

Although the residents in the

geographic area inhabited by this

population voluntarily agreed to reduce

hunting pressure, the GNWT has

enforcement authority under the

management agreement.

Issue 21 Gulf of Boothia: Some

respondents thought the Service should

not approve the Gulf of Boothia

population and noted that the Service

had acknowledged that the data for this

population is limited and rated as poor

and that the population status is listed

as decreasing over the 5-year average.
7326 Federal Register / Vol. 62, No. 32 / Tuesday, February 18, 1997 / Rules and Regulations

Response: The Service agrees. After

evaluating the overall sport-hunting

program in this area, the Service revised

the regulations to defer approval of this

population. The GNWT considers the

population estimate information, which

plays a substantial part in the

calculation of the quota, as poor with no

measurable level of precision. The

Service found that the quota for this

population does not fully meet the

criteria of being scientifically sound. In

addition the Service is concerned that

the harvest of females has exceeded the

quota.

Issue 22 M’Clintock Channel: One

respondent similarly disagreed with the

Service’s approval of the M’Clintock

Channel population, arguing that

Canada has not conducted reliable

surveys in this area for over 20 years.

Response: Contrary to the Gulf of

Boothia population where there was an

increase in the population estimate

based in part on anecdotal evidence, the

GNWT decreased the population

estimate for the M’Clintock Channel

population based on anecdotal evidence

and concerns regarding the previous

estimate obtained many years before.

The Service continues to approve this

population given this more conservative

approach. The DRR recognized the

problem of the poor population estimate

and Canada has scheduled research to

occur within the next 5 years. A

management agreement is in place

between the communities that share the

quota and hunting was at a 2:1 male to

female ratio in the 1993–1994 season.

Issue 23 Western Hudson Bay: Some

respondents thought the Service should

disapprove the Western Hudson Bay

population because bears from this

population intermix with bears from the

Foxe Basin and Southern Hudson Bay

populations that the Service had not

proposed for approval.

Response: Canada based the

boundaries of the Western Hudson Bay

population on movements of marked

bears. In the open water months the

water acts as a natural geographical

barrier between the populations. In icecovered months when this natural

barrier is no longer present some limited

movements of bears between

populations have been found. Given the

high number of marked bears in the

Western Hudson Bay population and

the recent and intensive study of the

Foxe Basin population, biologists would

most likely have discovered substantial

mixing of bears between the populations

if it were occurring.

Issue 24 Parry Channel and Baffin

Bay: Numerous respondents thought the

Service should approve the Parry

Channel/Baffin Bay population(s),

noting most sport hunting occurs in

these areas. Many said that the GNWT

has significant new data on the Parry

Channel/Baffin Bay population(s),

including information on population

boundaries and sustainable harvest

level. They urged the Service to evaluate

fully the data from Canada before

making any final decision on

disapproval of the populations.

Response: The Service is aware that

study of the Parry Channel and Baffin

Bay area is in progress. When available,

the Service will consider in a

subsequent review any new data for

these populations, as described

previously for all populations that the

Service has deferred findings.

The Service notes that data on the

1993/1994 hunting season as well as the

3-year and 5-year averages (Table 3)

indicate the total harvest in these areas

has consistently been more than 70

percent greater than the calculated

sustainable harvest. Compliance with

quotas is one factor the Service

considers in its review.

Issue 25 Davis Strait: One respondent

advised that every indication suggested

a substantially growing population of

polar bears in Davis Strait and the

Service should approve this population.

Response: The Service agrees there is

observational information to suggest this

population has increased since the 1979

field work. The Service, however, was

unable to find based on the scientific

and management data currently

available that the quota is scientifically

sound, and that communities in the

NWT and Greenland, Labrador, or

Quebec have management agreements in

place. The Service has deferred making

a decision on approving the Davis Strait

population at this time.

D. Comments on CITES

A couple of respondents noted that

provincial wildlife offices issue CITES

permits, not the CWS as indicated in the

proposed rule.

Response: To clarify, the Service

notes the CWS is the CITES

Management Authority for Canada, but

provincial and territorial offices issue

CITES permits for the export of polar

bear trophies.

E. Comments on Illegal Trade in Bear

Parts

Issue 1: Several respondents

commented that the provisions of the

proposal would not prevent bear gall

bladders from entering into illegal trade.

Response: The Service agrees and

revised the regulations so the applicant

certifies that the gall bladder and its

contents have been destroyed at the

time of application, rather than at the

time of import. This allows the Service

to review documentation prior to the

issuance of the import permits. Since

Canadian law does not require physical

surrender of the gall bladder to the

community DRR officials, the Service

was unable to adopt that suggestion.

Issue 2: The Service received

opposing comments on the requirement

that the permittee must import the polar

bear trophy only at a designated port for

wildlife.

Response: In considering the

comments, the Service agrees that the

import of a full mount trophy could

cause a financial burden to the owner.

The Service revised the regulations to

allow applicants with this type of

trophy to request an exception to

designated port authorization at the

time the applicant submits an MMPA

import permit application to the

Service. Such request will need to meet

the requirements of 50 CFR Part 14. The

permittee will need to make special

arrangements for a Service Office to tag

the trophy at the time of entry. All other

trophies must be imported through a

designated port for wildlife.

Issue 3: One respondent thought

hunters should be allowed to ship

trophies through the international mail.

Response: To prevent misdirection of

trophies and difficulties in clearing

parcels, the Service revised the

regulations specifically not to allow the

shipment of polar bear trophies through

the international mail. The Service

encourages the permittee to work

directly with Service personnel at a

designated port when making

arrangements to import a trophy. The

Service recommends that the permittee

use airline cargo or common carriers to

facilitate the inspection, clearance, and

tagging of a trophy.

Issue 4: One respondent requested the

Service not allow sport hunters to

present CITES permits retrospectively

for clearance.

Response: The Service will not accept

retrospective CITES permits for the

import of polar bear trophies since a

condition of the MMPA import permit

is that the trophies must be

accompanied by a valid CITES

document.

Issue 5: Some respondents stated that

import requirements would not prevent

illegal activities while others thought

the requirements were burdensome,

especially notification of the Service

prior to import.

Response: The Service believes that

the general inspection and clearance

procedures of 50 CFR Part 14 (i.e., prior

notice of arrival, filing of a wildlife

declaration form, etc.) and the specific

requirements for polar bear trophy
Federal Register / Vol. 62, No. 32 / Tuesday, February 18, 1997 / Rules and Regulations 7327

imports (i.e., use of a designated port for

wildlife, tagging of the hide, etc.) will be

effective in ensuring only legally taken

polar bears enter the United States. The

Service works with Canadian

enforcement and U.S. Customs to ensure

effective inspection of shipments and

notes that Service wildlife inspectors

must inspect and cancel Canadian

export permits at the time of import as

required by CITES.

Prior notification of the import of a

polar bear trophy is necessary to

coordinate inspection and tagging by

Service wildlife inspectors. The Service

did, however, reduce the proposed

notification to 48 hours in this rule to

agree with the current timeframe in 50

CFR Part 14.

To assist the importer, the Service

will provide information to the

permittee when the permit is issued that

outlines import procedures. In addition,

the Service will condition each import

permit with specific polar bear import

requirements.

Issue 6: Two respondents urged the

Service to eliminate some of the

paperwork required at the time of

import, especially duplicate

certifications.

Response: The Service agrees and

revised the regulations to require

certifications at the time of application

for a permit. The Service also changed

the regulations to require the applicant

to present documents to show legal take,

such as a copy of the NWT hunting

license and tag number, at the time of

application for a permit, rather than at

the time of import.

Issue 7: One individual requested that

the Service refrain from issuing permits

until a tagging program is in place and

fully functional.

Response: The Service remains

interested in pursuing a joint tagging

program with Canada. However, given

the time necessary to develop and

implement such a program, the Service

has developed an independent program

for tagging and marking polar bear

trophies upon import as described in

§ 18.30(e).

Issue 8: One respondent questioned

whether trophy parts other than the

hide or rug need to be tagged.

Response: Only the hide (i.e., raw or

finished as a rug or mount) must be

tagged. But the Service revised the

regulations at § 18.30(e)(7) to clarify that

parts of the trophy other than the hide,

such as the skull or bones, must be

permanently marked with the hide tag

number upon import to show they are

part of the same trophy.

Issue 9: One individual asked the

Service to eliminate the proposed

requirement to tag a full mount with a

leg bracelet.

Response: The Service agrees. Full

mounts will now have the same tagging

requirement as rugs or hides. The

Service must affix a permanent plastic

tag in a plainly visible yet unobtrusive

location.

Issue 10: The Service received a range

of comments on the replacement of lost

or broken tags: the Service should

require proof that the trophy had been

tagged and legally imported, not just a

written statement when a tag is lost; the

hunter may not know when the tag was

lost; the Service should consider the

time and expense necessary to move

and retag a full mounted bear; and the

permittee should be required to pay a

tag replacement fee.

Response: The Service revised the

regulations to clarify information

needed to show the trophy had been

tagged and legally imported. The

permittee needs to keep copies of the

cleared import permit and canceled

Canadian CITES export permit to

document legal import. The Service

anticipates few permittees will need to

have tags replaced and intends

permittees to work with Service regional

staff to make reasonable arrangements

for replacement tags. The Service

regards the tagging of sport-hunted polar

bear trophies as essential for the proper

administration of the program and is not

planning to charge a fee to replace lost

or broken tags.

F. Comments on Importation of

Pregnant or Nursing Animals Under the

MMPA

The Service received numerous

comments on the three proposed

options for ensuring that bears to be

imported were neither pregnant nor

nursing when sport hunted.

Respondents thought it would be

difficult to ascertain whether a polar

bear is pregnant prior to moving into a

den; to determine whether a bear is

pregnant if in the early stages of

pregnancy; for a hunter, guide, Wildlife

Inspector, or a DRR Officer to make the

required certification; and to determine

whether a young bear was nursing or a

female was lactating.

The MMC proposed a fourth option

not to issue import permits for polar

bears taken from populations with

hunting seasons that begin before

December 1st. Another respondent

suggested limiting permits to the import

of adult male bears.

Response: Current NWT regulations

protect female polar bears from being

hunted in denning areas, when in dens

or moving into dens, or in family

groups. The Service learned that the

GNWT affords such protection, in part,

by opening polar bear hunting seasons

in December when females would

already be in dens, or prohibiting the

hunting of female polar bears until

December in areas where the polar bear

hunting season begins in October. The

Service added provisions to the

regulations to ensure that bears pregnant

near term or nursing (either mother or

young) are not imported. See the

previous section on the finding on

pregnant and nursing polar bears for

further discussion.

G. Comments on Bears Taken Before the

1994 Amendments

Issue 1: The MMC questioned why the

Service proposed to establish the cutoff

for this provision as the effective date of

the final rule, rather than the date the

1994 Amendments were enacted.

Response: The Service proposed to

establish this date in view of the elapsed

time between enactment of the

amendments and final regulations in

order to more fully inform the public of

the proposed regulations. However, in

considering the MMC’s comment in

view of the plain language of the

Amendments, the Service decided to set

the grandfather date as the date

provided by the law, April 30, 1994.

Issue 2: Several respondents thought

the Service was required to make the

findings on the sport-hunting program

that was in place at the time the bear

was taken. The MMC suggested that if

quotas have been adjusted downward in

response to overharvesting, such

adjustments underscore the need to

review the quotas that were in place at

the time of taking.

Response: The Service does not agree

that the Service must base the findings

on the program in place at the time the

bear was sport hunted. The MMPA

specifically uses the present tense in the

findings—‘‘Canada has a monitored and

enforced sport-hunting program

consistent with the purposes of the

Agreement on the Conservation of Polar

Bears.’’ There is no other reference in

the MMPA amendment that requires or

infers that the Service must base the

findings for trophies taken in the past

on the program at the time of taking.

Furthermore, since Congress enacted the

MMPA prior to development and

implementation of the International

Agreement, it is possible that some

bears were sport hunted but not

imported in the time span between

enactment of the MMPA and the

International Agreement.

Issue 3: Several respondents did not

agree with the Service’s interpretation

that bears taken, but not imported, prior

to final regulations were exempt from
7328 Federal Register / Vol. 62, No. 32 / Tuesday, February 18, 1997 / Rules and Regulations

the required findings of section

104(c)(5)(A) of the MMPA.

Response: After careful consideration

of the comments submitted concerning

the grandfathering of polar bears, the

Service agrees that the required findings

of section 104(c)(5)(A) of the MMPA are

applicable to all polar bear sport-hunted

trophies taken in the NWT since

implementation of the MMPA in 1972.

Therefore, the grandfather provision of

this final rule will apply only to those

populations which have been approved.

Polar bear trophies sport-hunted from

currently deferred populations could be

imported once the Service was able to

make all of the findings and the

population was approved.

Issue 4: One individual commented

that grandfathering of previously taken

bears rewarded people who took bears

counter to the purposes of the MMPA

before the law allowed their import.

Response: Congress crafted the special

import provision in § 104(c)(5) to avoid

the more thorough waiver proceeding

required by §§ 101(a)(3) and 103. By this

rule, we implement the special import

procedure to effectuate the intent of

Congress. The Service lacks discretion

to modify this procedure by adding

additional requirements.

Issue 5: The MMC recommended that

the Service assume that a preAmendment bear may have been

pregnant or nursing unless the applicant

provides sufficient evidence that the

bear was a male or the bear was taken

at a time of year when all polar bears

normally would be in dens.

Response: The Service reviewed the

information currently available and

revised the application requirements

and issuance criteria in the final

regulations to avoid the possibility that

pregnant or nursing bears might be

imported. See the discussion in the

previous section on the import of

pregnant and nursing bears.

Required Determinations

The Service prepared an

Environmental Assessment (EA) in

accordance with the National

Environmental Policy Act (NEPA), for

this final rule and concluded in a

Finding of No Significant Impact

(FONSI) based on a review and

evaluation of the information contained

within the EA that there would be no

significant impact on the human

environment as a result of this

regulatory action and that the

preparation of an environmental impact

statement on this action is not required

by Section 102(2) of NEPA or its

implementing regulations. The issuance

of individual marine mammal permits is

categorically excluded under 516 DM 6,

Appendix 1. The EA and FONSI for this

rule are on file at the Service’s Office of

Management Authority in Arlington,

Virginia, and a copy may be obtained by

contacting the individual identified

under the section entitled, FOR FURTHER

INFORMATION.

This final rule was not subject to

review by the Office of Management and

Budget (OMB) under Executive Order

12866. A review under the Regulatory

Flexibility Act (5 U.S.C. 601 et seq.)

revealed that this rulemaking would not

have a significant economic effect on a

substantial number of small entities

which includes certain businesses,

organizations, or governmental

jurisdictions, because no burden will be

added to the already generally

mandated permit requirements imposed

under the Marine Mammal Protection

Act, 16 U.S.C. 1374. No change in the

demography of populations is expected.

The final rule will affect only those in

the United States who have hunted, or

intend to hunt, polar bear in Canada.

This action is not expected to have

significant taking implications, per

Executive Order 12630.

The Office of Management and Budget

under the Paperwork Reduction Act (44

U.S.C. 3501 et seq.) has approved the

collection of information contained in

this final rule and assigned clearance

number 1018–0022 which expires on

January 31, 1997. The Service submitted

the necessary documentation to OMB

requesting three year approval for the

collection of information for all areas

covered by this rule. The collection of

information will not be required until it

has been approved by OMB. The Service

will collect information through the use

of the Service’s form 3–200, which will

be modified pursuant to 50 CFR 18.30,

to address the specific requirements of

this final rule. The Service is collecting

the information to evaluate permit

applications. The likely respondents to

this collection will be sport hunters who

wish to import sport-hunted trophies of

polar bears legally taken while hunting

in Canada. The Service will use the

information to review permit

applications and make decisions,

according to criteria established in

various Federal wildlife conservation

statutes and regulations, on the issuance

or denial of permits. The applicant must

respond to obtain or retain a permit. A

single response is required to obtain a

benefit. The Service estimates the public

reporting burden for this collection of

information to vary from 15 minutes to

4 hours per response, with an average of

1.028 hours per response, including the

time for reviewing instructions,

searching existing data sources,

gathering and maintaining the data

needed, and completing and reviewing

the collection of information. The

estimated number of likely respondents

is less than seventy (70), yielding a total

annual reporting burden of seventy-two

(72) hours or less. The Service

determined and certifies pursuant to the

Unfunded Mandates Reform Act, 2

U.S.C. 1502 et seq., that this rulemaking

will not impose a cost of $100 million

or more in any given year upon local or

state governments or private entities.

The Service determined that these

regulations meet the applicable

standards provided in Sections 3(a) and

3(b)(2) of Executive Order 12988.

References Cited

Baur, D.C. 1993. Reconciling the legal

mechanisms to protect and manage polar

bears under U.S. laws and the Agreement

for the Conservation of Polar Bears.

Report prepared for the Marine Mammal

Commission, Washington, D.C. 153 pp.

Bethke, R., M. Taylor, F. Messier, and S.E.

Amstrup. 1996. Population delineation

of polar bears using satellite collar data.

Ecol. Appl. 6: 311–317.

Born, E.W. 1995. Status of the polar bear in

Greenland 1993. Pages 81–103 in O.

Wiig, E.W. Born, and G.W. Garner, eds.

Polar Bears. Proc. Eleventh Working

Meet. IUCN/SSC PBSG Jan. 25–59, 1993,

Copenhagen, Denmark. Occas. Pap.

IUCN Spec. Surv. Comm. No. 10. Gland,

Switzerland. (in press)

Calvert, W., M. Taylor, L. Stirling, G.B.

Kolenosky, S. Kearney, M. Crete, and S.

Luttich. 1995. Polar bear management in

Canada 1988–92. Pages 61–80 in O. Wiig,

E.W. Born, and G.W. Garner, eds. Polar

Bears. Proc. Eleventh Working Meet.

IUCN/SSC PBSG Jan. 25–28, 1993,

Copenhagen, Denmark. Occas. Pap.

IUCN Spec. Surv. Comm. No. 10. Gland,

Switzerland. (in press)

Frankfurther, F. 1947. Some Reflections on

the Reading of Statutes, Difficulties of

Construction. 47 Colum.L.Rev. 527–546.

Lee, J., M. Taylor, and A. Sutherland. 1994.

Aspects of the polar bear harvest in the

Northwest Territories, Canada.

Northwest Terr. Dept. Ren. Res. File Rep.

No. 113. 27 pp.

Nageak, B.P., C.D. Brower, and S.L. Schliebe.

1991. Polar bear management in the

Southern Beaufort Sea: An agreement

between the Inuvialuit Game Council

and North Slope Borough Fish and Game

Committee. Trans. 56th N.A. Widl. and

Nat. Res. Conf. 337–343.

PBSG, The World Conservation Union. 1995.

Polar Bears. Proc, Eleventh Working

Meet. IUCN/SSC PBSG Jan. 25–28, 1993,

Copenhagen, Denmark. O. Wiig, E.W.

Born, and G.W. Garner, eds. Occas. Pap.

IUCN Spec. Surv. Comm. No. 10. Gland,

Switzerland. (in press)

PBSG, The World Conservation Union

(IUCN). 1988. Polar Bears. Proc. Tenth

Working Meet. IUCN/SSC PBSG Oct. 25–

29, 1988, Sochi, USSR. O. Wiig, ed.

Occas. Pap. IUCN Spec. Surv. Comm.

No. 7. Gland, Switzerland.
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Prestrud, P. and I. Stirling. 1995. The

International Polar Bear Agreement and

the current status of polar bear

conservation. Aquat. Mammals. (in

press)

Ramsay, M.A. and I. Stirling. 1986. On the

mating system of polar bears. Can. J.

Zool. 64:2142–2151.

Schliebe, S.L., S.C. Amstrup, and G.W.

Garner. 1995. The status of polar bears in

Alaska 1993. Pages 121–134 in O. Wiig,

E.W. Born, and G.W. Garner, eds. Polar

Bears. Proc. Eleventh Working Meet.

IUCN/SSC PBSG Jan. 25–28, 1993,

Copenhagen, Denmark. Occas. Pap.

IUCN Spec. Surv. Comm. No. 10. Gland,

Switzerland. (in press)

Taylor, B.L. 1995. Defining ‘‘population’’ to

meet management objectives for marine

mammals. Adm. Rep. LJ–95–03, NMFS,

La Jolla, CA.

Taylor, M., ed. 1994. Density-dependent

population regulation in black, brown,

and polar bears. Int. Conf. Bear Res. and

Manage. Monogr. Series No. 3. 43 pp.

Taylor, M.K., D.P. DeMaster, F.L. Bunnell,

and R.E. Schweinsburg. 1987. Modeling

the sustainable harvest of female polar

bears. J. Wildl. Manage. 51(4):811–820.

U.S. Fish and Wildlife Service. 1995. Habitat

Conservation Strategy for Polar Bears in

Alaska. Anchorage, Alaska. 91 pp.

Authorship

The originators of this final rule are

Lynn Noonan, Paul McGowan, and

Maggie Tieger of the Office of

Management Authority, Branch of

Permits, U.S. Fish and Wildlife Service,

Washington, DC.

List of Subjects in 50 CFR Part 18

Administrative practice and

procedure, Alaska, Imports, Indians,

Marine mammals, Oil and gas

exploration, Reporting and

recordkeeping requirements,

Transportation.

Regulation Promulgation

Accordingly, Part 18 of Chapter I of

Title 50 of the Code of Federal

Regulations is hereby amended as

follows:

PART 18—MARINE MAMMALS

1. The authority citation for part 18

continues to read as follows:

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

2. Section 18.4 is added to subpart A

of part 18 to read as follows:

§ 18.4 Information collection requirements.

(a) The Office of Management and

Budget under 44 U.S.C. 3501 et seq. has

approved the information collection

requirements contained in Subpart D

and assigned clearance number 1018–

0022. The Service is collecting this

information to review and evaluate

permit applications and make decisions

according to criteria established in

various Federal wildlife conservation

statutes and regulations, on the issuance

or denial of permits. The applicant must

respond to obtain or retain a permit.

(b) The Service estimated the public

reporting burden for this collection of

information to vary from 15 minutes to

4 hours per response, with an average of

1.028 hours per response, including the

time for reviewing instructions,

searching existing data sources,

gathering and maintaining the data

needed, and completing and reviewing

the collection of information. Send

comments regarding this burden or any

other aspect of this collection of

information, including suggestions for

reducing the burden, to the Service

Information Collection Clearance Office,

Fish and Wildlife, Service Office of

Management and Budget, Mail Stop 224,

Arlington Square, U.S. Department of

the Interior, 1849 C Street, N.W.,

Washington, DC 20240 and the Office of

Management and Budget, Paperwork

Reduction Project (1018–0022),

Washington, DC 20503.

3. Section 18.30 is added to subpart

D of part 18 to read as follows:

§ 18.30 Polar bear sport-hunted trophy

import permits.

(a) Application procedure. You, as the

hunter or heir of the hunter’s estate,

must submit an application for a permit

to import a trophy of a polar bear taken

in Canada to the U.S. Fish and Wildlife

Service, Office of Management

Authority, 4401 N. Fairfax Drive,

Arlington, Virginia 22203. You must use

an official application (Form 3–200)

provided by the Service and must

include as an attachment all of the

following additional information:

(1) Certification that:

(i) You or the deceased hunter took

the polar bear as a personal sporthunted trophy;

(ii) You will use the trophy only for

personal display purposes;

(iii) The polar bear was not a pregnant

female, a female with dependent

nursing cub(s) or a nursing cub (such as

in a family group), or a bear in a den or

constructing a den when you took it;

and

(iv) For a polar bear taken after April

30, 1994, you made sure the gall bladder

and its contents were destroyed;

(2) Name and address of the person in

the United States receiving the polar

bear trophy if other than yourself;

(3) For a polar bear received as an

inheritance, documentation to show that

you are the legal heir of the decedent

who took the trophy;

(4) Proof that you or the decedent

legally harvested the polar bear in

Canada as shown by one of the

following:

(i) A copy of the Northwest Territories

(NWT) hunting license and tag number;

(ii) A copy of the Canadian CITES

export permit that identifies the polar

bear by hunting license and tag number;

(iii) A copy of the NWT export permit;

or

(iv) A certification from the

Department of Renewable Resources,

Northwest Territories, that you or the

decedent legally harvested the polar

bear, giving the tag number, location

(settlement and population), and season

you or the decedent took the bear;

(5) An itemized description of the

polar bear parts you wish to import,

including size and the sex of the polar

bear;

(6) The month and year the polar bear

was sport hunted;

(7) The location (nearest settlement or

community) where the bear was

sporthunted;

(8) For a female bear or a bear of

unknown sex that was taken before

January 1, 1986, documentary evidence

that the bear was not pregnant at the

time of take, including, but not limited

to, documentation, such as a hunting

license or travel itinerary, that shows

the bear was not taken in October,

November, or December or that shows

that the location of the hunt did not

include an area that supported

maternity dens; and

(9) For a female bear, bear of

unknown sex, or male bear that is less

than 6 feet in length (from tip of nose

to the base of the tail) that was taken

prior to the 1996/97 NWT polar bear

harvest season, available documentation

to show that the bear was not nursing,

including, but not limited to,

documentation, such as a certification

from the NWT, that the bear was not

taken while part of a family group.

(b) Definitions. In addition to the

definitions in this paragraph, the

definitions in 50 CFR 10.12, 18.3, and

23.3 apply to this section.

(1) Sport-hunted trophy means a

mount, rug or other display item

composed of the hide, hair, skull, teeth,

baculum, bones, and claws of the

specimen which was taken by the

applicant or decedent during a sport

hunt for personal, noncommercial use

and does not include any internal organ

of the animal, including the gall

bladder. Articles made from the

specimen, such as finished or

unfinished, worked, manufactured, or

handicraft items for use as clothing,

curio, ornamentation, jewelry, or as a

utilitarian item are not considered

trophy items.
7330 Federal Register / Vol. 62, No. 32 / Tuesday, February 18, 1997 / Rules and Regulations

(2) Management agreement means a

written agreement between parties that

share management responsibilities for a

polar bear population which describes

what portion of the harvestable quota

will be allocated to each party and other

measures which may be taken for the

conservation of the population, such as

harvest seasons, sex ratio of the harvest,

and protection of females and cubs.

(c) Procedures for issuance of permits

and modification, suspension or

revocation of permits. We, the Service,

shall suspend, modify or revoke permits

issued under this section:

(1) In accordance with regulations

contained in § 18.33; and

(2) If, in consultation with the

appropriate authority in Canada, we

determine that the sustainability of

Canada’s polar bear populations is being

adversely affected or that sport hunting

may be having a detrimental effect on

maintaining polar bear populations

throughout their range.

(d) Issuance criteria. In deciding

whether to issue an import permit for a

sport-hunted trophy, we must determine

in addition to the general criteria in part

13 of this subchapter whether:

(1) You previously imported the

specimen into the United States without

a permit;

(2) The specimen meets the definition

of a sport-hunted trophy in paragraph

(b) of this section;

(3) You legally harvested the polar

bear in Canada;

(4) Canada has a monitored and

enforced sport-hunting program

consistent with the purposes of the 1973

International Agreement on the

Conservation of Polar Bears;

(5) Canada has a sport-hunting

program, based on scientifically sound

quotas, ensuring the maintenance of the

affected population at a sustainable

level; and

(6) The export and subsequent import:

(i) Are consistent with the provisions

of the Convention on International

Trade in Endangered Species of Wild

Fauna and Flora (CITES) and other

international agreements and

conventions; and

(ii) Are not likely to contribute to

illegal trade in bear parts, including for

bears taken after April 30, 1994, that the

gall bladder and its contents were

destroyed.

(e) Additional permit conditions.

Your permit to import a sport-hunted

trophy of a polar bear taken in Canada

is subject to the permit conditions

outlined in § 18.31(d) and the following

additional permit conditions:

(1) You, the permittee, may not

import internal organs of the polar bear,

including the gall bladder;

(2) After import you may not alter or

use the trophy in a manner inconsistent

with the definition of a sport-hunted

polar bear trophy as given in § 18.30(b);

(3) You may not import a sporthunted trophy if the polar bear at the

time you or the decedent took it was:

(i) A nursing bear or a female with

nursing young (i.e., part of a family

group);

(ii) A pregnant female; or

(iii) A bear moving into a den or in

a den;

(4) You must present to Service

personnel at the time of import a valid

CITES document from the country of

export or re-export;

(5) You must comply with the

following import procedures:

(i) Import the sport-hunted trophy

through a designated port for wildlife

imports (see § 14.12 of this subchapter)

during regular business hours, except

for full mount trophies that have been

granted an exception to designated port

permit requirements under § 14.32 of

this subchapter;

(ii) Not send the trophy through the

international mail; and

(iii) Notify Service personnel at the

port at least 48 hours before the import

(see § 14.54 of this subchapter) and

make arrangements for Service

personnel to affix a tag in accordance

with paragraph (e)(7) of this section

prior to being cleared (see § 14.52 of this

subchapter);

(6) You must import all parts of a

single trophy at the same time;

(7) The following tagging/marking

procedures apply:

(i) Service personnel must affix a

permanently locking tag that contains a

unique serial number and the common

name ‘‘polar bear’’ to the hide which

must remain fixed indefinitely to the

hide as proof of legal import; and

(ii) Service personnel must

permanently mark upon import the

parts of the trophy other than the hide,

such as the skull and bones, with the

hide tag number; and

(8) If the tag comes off the hide, you

must within 30 days:

(i) Contact the nearest Service office at

a designated port or a Law Enforcement

office as given in § 10.22 of this

subchapter to schedule a time to present

the trophy for retagging;

(ii) Provide as proof that the trophy

had been tagged and legally imported a

copy of the:

(A) Canceled CITES export permit or

re-export certificate;

(B) Cancelled U.S. import permit

issued under this section; or

(C) Cleared wildlife declaration form

(3–177); and

(iii) Present either the broken tag, or

if the tag was lost, a signed written

explanation of how and when the tag

was lost.

(f) Duration of permits. The permit

will be valid for no more than one year

from the date of issuance.

(g) Fees.

(1) You must pay the standard permit

processing fee as given in § 13.11(4)

when filing an application.

(2) You must pay the issuance fee of

$1,000 when we notify you the

application is approved. We cannot

issue an import permit until you pay

this fee. We will use the issuance fee to

develop and implement cooperative

research and management programs for

the conservation of polar bears in

Alaska and Russia under section 113(d)

of the Marine Mammal Protection Act.

(h) Scientific review. (1) We will

undertake a scientific review of the

impact of permits issued under this

section on the polar bear populations in

Canada within 2 years of March 20,

1997.

(i) The review will provide an

opportunity for public comment and

include a response to the public

comment in the final report; and

(ii) We will not issue permits under

this section if we determine, based upon

scientific review, that the issuance of

permits under this section is having a

significant adverse impact on the polar

bear populations in Canada; and

(2) After the initial review, we may

review whether the issuance of permits

under this section is having a significant

adverse impact on the polar bear

populations in Canada annually in light

of the best scientific information

available. The review must be

completed no later than January 31 in

any year a review is undertaken.

(i) Findings. Polar bear sport-hunted

trophies may only be imported after

issuance of an import permit, and in

accordance with the following findings

and conditions:

(1) We have determined that the

Northwest Territories, Canada, has a

monitored and enforced sport-hunting

program that meets issuance criteria of

paragraphs (d)(4) and (5) of this section

for the following populations: Southern

Beaufort Sea, Northern Beaufort Sea,

Viscount Melville Sound (subject to the

lifting of the moratorium in this

population), Western Hudson Bay, and

M’Clintock Channel, and that:

(i) For the Southern Beaufort Sea

population, no bears are taken west of

the equidistant line of the Beaufort Sea;

(ii) For all populations, females with

cubs, cubs, or polar bears moving into

denning areas or already in dens are

protected from taking by hunting

activities; and
Federal Register / Vol. 62, No. 32 / Tuesday, February 18, 1997 / Rules and Regulations 7331

(iii) For all populations, management

agreements among all management

entities with scientifically sound quotas

are in place; and

(2) Any sport-hunted trophy taken in

the Northwest Territories, Canada,

between December 21, 1972, and April

30, 1994, may be issued an import

permit when:

(i) From an approved population

listed in paragraph (i)(1); and

(ii) The issuance criteria of paragraph

(d)(1), (2), (3), and (6) of this section are

met.

Dated: February 7, 1997.

George T. Frampton, Jr.,

Assistant Secretary for Fish and Wildlife and

Parks.

[FR Doc. 97–3954 Filed 2–14–97; 8:45 am]

BILLING CODE 4310–55–P