[Federal Register Volume 62, Number 32 (Tuesday, February 18, 1997)]
[Rules and Regulations]
[Pages 7302-7331]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3954]



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Part II





Department of the Interior





_______________________________________________________________________



Fish and Wildlife Service



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50 CFR Part 18



Importation of Polar Bear Trophies From Canada Under the 1994 
Amendments to the Marine Mammal Protection Act; Final Rule

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

[[Page 7302]]



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 sport-hunting 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 Sec. 18.30(e), as well as 
the prohibitions of Sec. 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 ``sport-hunted trophy'' to specify 
what parts of the polar bear are included in the term

[[Page 7303]]

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 
(Sec. 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 sport-hunted 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 Sec. 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 sport-hunted 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.

[[Page 7304]]

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 human-caused 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 long-
term 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).

BILLING CODE 4310-55-P

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[GRAPHIC] [TIFF OMITTED] TR18FE97.000



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 east-west 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 non-government 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 co-managed 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

[[Page 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)                                       
----------------------------------------------------------------------------------------------------------------
                                                      1993/94 Season                   1992/93 Season           
                                                ----------------------------------------------------------------
                                                    Number                                 Number               
                   Population                       killed     Sport hunt    Percent       Killed     Percent of
                                                 (number not   percent of      male     (number not     total   
                                                 successful)     total                  successful)             
----------------------------------------------------------------------------------------------------------------
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                                  
----------------------------------------------------------------------------------------------------------------
                                                                                                       Percent  
                                                                              Number                 total sport
                           Season                             Total sport     killed    Known total    hunt to  
                                                                  hunt       (percent   kill in NWT   known kill
                                                                             success)                   in NWT  
----------------------------------------------------------------------------------------------------------------
1989/90.....................................................           60     48  (80)          537         11.2
1990/91.....................................................           66     50  (76)          490         13.5

[[Page 7308]]

                                                                                                                
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 Sec. 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 Sec. 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).

[[Page 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 ``Home-rule'' 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 
Sec. 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 non-Indian 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

[[Page 7310]]

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 Sec. 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 * * *

[[Page 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 non-traditional 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 Sec. 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 Sec. 18.30(i)(1).
    No person may import a polar bear prior to the Service's issuance 
of an import permit for the specific sport-hunted 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

[[Page 7312]]

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/P<INF>f),

where N is the total number of individuals in the population and 
P<INF>f 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                            
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               5-Year average  (1989/90-     3-Year average  (1991/92-      Current Year  (1993/94)                             
                                                                                       1993/94)                      1993/94)           ------------------------------                          
               Pop.\2\                    Pop.           Reliability *      ------------------------------------------------------------                                 Population  status **  
                                        estimate                                              Sustainable                   Sustainable      Kill(%)      Sustainable        (5yr/3yr/1yr)      
                                                                                 Kill(%)       harvest\3\      Kill(%)       harvest\3\                    harvest\3\                           
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
SB...................................     \6\1800  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  +/+/+                    
VM\4\................................         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                    

[[Page 7313]]

                                                                                                                                                                                                
PC-BB................................     \6\2470  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  -/+/+                    
FB\5\................................        2020  Good....................   128.6 (40.8)           74.3   125.0 (41.7)           72.7     100 (48.5)           62.5  -/-/-                    
DS...................................     \6\1400  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:                                                                                                                                                                                          
\1\ The 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.                                       
\3\ Except 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 x 0.015)<divide>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.                                                                                                                
\4\ The 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.                                                                                                                                                                 
\6\ Totals 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 sex-selective 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 co-
operatively 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

[[Page 7314]]

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 Sec. 18.30(i).

Southern Beaufort Sea (SB)

    The estimated population is 1,800 and is considered to be 
conservative. Mark-recapture and studies of movements using telemetry, 
conducted semi-continuously 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 
Sec. 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

[[Page 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. Mark-recapture 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 
Sec. 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

[[Page 7316]]

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 Canadian-Greenland 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 mark-recapture 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

[[Page 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 under-sampled. 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

[[Page 7318]]

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 Sec. 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

[[Page 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, one-year-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 two-year-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.

[[Page 7320]]

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 
Sec. 18.30(d) and the conditions of Sec. 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 
Sec. 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 
Sec. 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 
Sec. 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 Sec. 18.30(b). One respondent 
urged the Service to stress that the permittee can use the imported 
trophy only for non-commercial 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)

[[Page 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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

[[Page 7322]]

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 sport-hunting program.
    Response: After considering the comments, the Service continues to 
find that Canada has an effective sport-hunting 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 Sec. 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 
Sec. 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 
self-implementing, 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

[[Page 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 non-nationals, 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

[[Page 7324]]

of data. On the contrary such re-examinations 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

[[Page 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 non-discriminatory 
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 co-management 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.

[[Page 7326]]

    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 ice-covered 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

[[Page 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 Sec. 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 
Sec. 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

[[Page 7328]]

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 
Sec. 104(c)(5) to avoid the more thorough waiver proceeding required by 
Secs. 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 pre-
Amendment 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.

[[Page 7329]]

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:


Sec. 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:


Sec. 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 
sport-hunted 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.

[[Page 7330]]

    (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 Sec. 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 Sec. 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 Sec. 18.30(b);
    (3) You may not import a sport-hunted 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 
Sec. 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

[[Page 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