[Federal Register Volume 60, Number 1 (Tuesday, January 3, 1995)]
[Proposed Rules]
[Pages 70-73]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-32281]



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DEPARTMENT OF THE INTERIOR
50 CFR Part 18

RIN 1018-AD04


Importation of Polar Bear Trophies From Canada; Proposed Rule to 
Implement Section 104(c)(5)(A) of the 1994 Amendments to the Marine 
Mammal Protection Act

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: On April 30, 1994, the Marine Mammal Protection Act (Act) was 
amended to allow for the issuance of permits to import sport-hunted 
trophies of polar bears (Ursus maritimus) (excluding internal organs) 
legally taken by the applicant while hunting in Canada. These permits 
may also authorize the importation of trophies of polar bears taken, 
but not imported, prior to the enactment of the Amendments. Prior to 
issuing a permit, the Fish and Wildlife Service (Service) must make 
legal and scientific findings required under section 104(c)(5)(A) of 
the Act in consultation with the Marine Mammal Commission and after 
notice and opportunity for public comment. This proposed rule would 
establish application requirements, permit procedures, issuance 
criteria and permit conditions. This notice also proposes a special 
issuance fee for each permit as required by law. Such fees will be used 
in developing and implementing cooperative research and management 
programs for the conservation of polar bears in Alaska and Russia.
    This proposed rule does not discuss the legal and scientific 
findings required by the 1994 Amendments that need to be made prior to 
issuing an import permit. The Service is currently working with the 
Canadian wildlife authorities to obtain the needed information to make 
these findings. A separate Federal Register notice will be published in 
early 1995 to review the findings.

DATES: The Service will consider comments and information received by 
March 6, 1995 in formulating its decision on this proposed rule.

ADDRESSES: Comments and information should be sent to: Director, Fish 
and Wildlife Service, c/o Office of Management Authority, 4401 N. 
Fairfax Drive, Room 420C, Arlington, VA 22203.

FOR FURTHER INFORMATION CONTACT: Margaret Tieger, Office of Management 
Authority, at the above address, telephone (703) 358-2104, extension 
5507.

SUPPLEMENTARY INFORMATION: This rule proposes regulations implementing 
provisions of the 1994 Amendments to the Act that allow for the 
issuance of permits to import sport-hunted trophies of polar bears 
legally taken by the applicant while hunting in Canada. At this time, 
Canada is the only country that allows polar bears to be harvested by 
non-residents through a regulated sport-hunting program. These 
amendments were signed into law on April 30, 1994. Prior to that time, 
those seeking authority to import polar bear trophies from Canada were 
required to first obtain a waiver of the Act's moratorium on importing 
marine mammals.
    The 1994 Amendments include a streamlined procedure for authorizing 
the importation of these sport-hunted trophies by permit. This proposed 
rule would establish the application requirements, permit procedures, 
issuance criteria, permit conditions and issuance fee for this type of 
permit. The notice discusses each paragraph of the proposed rule in the 
section below titled, ``Section Analysis by Paragraph''.
    Prior to issuing a permit for the importation of a polar bear 
trophy, the Service must make findings consistent with section 
104(c)(5)(A) of the Act, in consultation with the Marine Mammal 
Commission, after publishing notice in the Federal Register for public 
comment. These findings are to ensure that the trophy was legally 
taken; that Canada has a monitored and enforced hunting program that is 
consistent with the 1973 International Agreement on the Conservation of 
Polar Bears and is based on scientifically sound quotas ensuring the 
maintenance of the affected population stock at a sustainable level; 
and that the export and subsequent import meet the requirements of the 
Convention on International Trade in Endangered Species of Wild Fauna 
and Flora (CITES) and other international agreements and conventions 
and are not likely to contribute to illegal trade in bear parts.
    This proposed rule does not discuss the legal and scientific 
findings required by the 1994 Amendments that need to be made prior to 
issuing an import permit as the Service does not presently have all the 
information it needs to make such findings. A group of biologists from 
the Service and the National Biological Survey are consulting with the 
Canadian wildlife authorities in December 1994 to gather information 
and discuss Canada's program. The Service will also be addressing 
several questions that have been raised. A contract report prepared for 
the Marine Mammal Commission in 1993 has raised questions about 
Canada's sport-hunting program and its consistency with the 1973 
International Agreement on the Conservation of Polar Bears. In 
addition, the 1994 Amendments require the Service to determine whether 
for a particular population stock, Canada manages its hunting program 
through scientifically-based quotas that ensure the maintenance of a 
sustainable population. Canada manages polar bears at the subpopulation 
level, that appears to be consistent with this amendment and the 
discussion in the legislative history on Canada's management program in 
the Northwest Territories (140 Cong. Rec. H2725, April 26, 1994). 
[[Page 71]] The Service is gathering the specific information needed to 
resolve these and other related questions concerning the required 
findings. In early 1995, the Service anticipates publishing a summary 
of information on polar bear subpopulations in Canada, Canada's 
management program, and the legal and scientific findings in the 
Federal Register for public comment. At the same time, the Service will 
need to evaluate its actions under the National Environmental Policy 
Act, as appropriate. Once the questions have been resolved and the 
Service has made the findings outlined above, it will be able to act on 
specific permit applications.

Section Analysis by Paragraph

Section 18.30 Polar bear sport-hunted trophy import permits

    This section would establish application requirements, permit 
procedures, issuance criteria, permit conditions and fees to allow for 
the importation of trophies of polar bears legally taken by the 
applicant while sport hunting in Canada. The requirements in 50 CFR 
parts 13 (General permit procedures), 14 (Importation, exportation, and 
transportation of wildlife) and 23 (species listed in the Appendices to 
CITES) must also be met. Thus, for example, the polar bear is listed in 
Appendix II of CITES, and the export requires a permit issued by the 
Canadian Wildlife Service under CITES in addition to the import permit 
under the Act.

Paragraph (a) Application Procedure

    Persons desiring to import trophies of polar bear taken during a 
sport hunt in Canada must submit an application to the Service's Office 
of Management Authority. In addition to completing the basic 
information on the official application form, the applicant must 
provide information as prescribed in this section, including: the 
purpose of the taking and proposed use upon import; names and addresses 
of the persons exporting and importing the polar bear trophy; if the 
applicant is not the person who took the specimen proposed for import, 
documentation that the importer is the heir to the estate of a hunter 
who died prior to importation of the trophy; proof that the polar bear 
was legally harvested in Canada by the applicant or by a decedent from 
whom the applicant inherited the trophy, including the tag number and 
date, location and manner of taking; and a description of the polar 
bear parts to be imported, including the number of specimens or parts 
and the age, size and sex of the polar bear. This information is 
necessary to allow the Service to determine that the polar bear trophy 
in question meets the new provisions of the law and provides the 
specific details the Service needs to evaluate the application.

Paragraph (b) Definitions

    The term ``sport-hunted trophy'' has been defined to clarify what 
parts of the polar bear are included in the term and that the item has 
to be for personal, noncommercial use. There was concern that internal 
organs, such as the gall bladder, might enter into trade and possibly 
contribute to illegal trade in bear parts. The Committee Report (H.R. 
Rep. No. 439, 103d Cong., 2d Sess. (1994)) states that ``Trophies 
normally constitute the hide, hair, skull, teeth, and claws of the 
animal, which 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 definitions in Parts 10, 18 and 23 of 50 CFR 
also apply.

Paragraph (c) Review by the Marine Mammal Commission

    The law requires that the Service consult with the Marine Mammal 
Commission in making the specific findings required in section 
104(c)(5)(A). The Marine Mammal Commission is an independent Federal 
agency with statutory authority to make recommendations pursuant to 
Title II of the Act. Since this procedure for polar bear trophy import 
applications is substantially similar to that required for other 
applications considered under the Act, the proposed regulations refer 
the reader to the current provisions in section 18.31(c).

Paragraph (d) Procedures for issuance of permits and modification, 
suspension or revocation thereof

    Again, since general procedures to be followed for issuance of 
permits and modification, suspension or revocation of permits are 
currently in the regulations, the reader is referred to the current 
provisions in section 18.33. These regulations are based on the 
application procedures outlined in section 104(d) of the Act, which was 
not changed during the recent amendments. When Congress added section 
104(c)(5) to the Act to allow for issuance of permits to import polar 
bear trophies, polar bear import applications were not exempted from 
these procedures that include the requirement that the Service will 
publish a notice of each permit application in the Federal Register for 
a 30-day public comment period.

Paragraph (e) Issuance Criteria

    Before a permit can be issued, the Service proposes to consider the 
issuance criteria in this section in addition to the general criteria 
in 50 CFR 13.21. The floor debate in the House of Representatives (140 
Cong. Rec. H2725, April 26, 1994) emphasized that the intent of 
Congress was to limit importation of polar bear trophies to the hunter 
who actually took the polar bear and who desires to import the trophy. 
If an individual who has legally taken a polar bear dies prior to the 
importation, however, the heirs of that person's estate could apply for 
an import permit. The import permit requests for polar bear trophies 
can also be made for animals taken prior to enactment of the 1994 
Amendments (April 30, 1994) if the issuance criteria are met. However, 
this does not apply to polar bear parts that have been seized by the 
Federal government or have already been imported into the United 
States. The first three issuance criteria address these concerns, as 
follows: the trophy has not already been imported, it meets the 
definition of a sport-hunted trophy and it was legally harvested in 
Canada by the applicant (or by a decedent from whom the applicant 
inherited the trophy). The next issuance criteria are directly taken 
from the language of the law at section 104(c)(5)(A)(i)-(iv). Findings 
to be made include determinations that (1) Canada has a monitored and 
enforced hunting program consistent with the purposes of the 1973 
International Agreement on the Conservation of Polar Bears; (2) Canada 
has a sport-hunting program based on scientifically sound quotas 
ensuring the maintenance of the affected population stock at a 
sustainable level; and (3) and (4) the export and subsequent import are 
consistent with the provisions of CITES and other international 
agreements and conventions and are not likely to contribute to illegal 
trade in bear parts. These factors will be addressed in greater detail 
when the Service publishes its proposed findings in early 1995.

Paragraph (f) Additional Permit Conditions

    Every permit issued under this section would be subject to the 
conditions currently in the regulations for marine mammal permits at 
section 18.31(d). This paragraph would require all permits to be 
subject to the general permit conditions set forth in Part 13 of this 
subchapter and to certain specific conditions. These specific 
conditions [[Page 72]] would require that the original permit be in the 
possession of the person to whom it is issued, or his agent, at the 
time of importation and that a duplicate copy of the issued permit be 
physically attached to the container in which the polar bear specimen 
is placed while in storage or transit.

Paragraph (g) Duration of Permits

    The duration of a permit is designated on the face of the permit. 
The permit will be valid for no longer than one year, a timeframe that 
should allow for the importation to occur.

Paragraph (h) Fees

    The Act requires the Director to establish and charge a reasonable 
fee for polar bear trophy import permits that are issued. This issuance 
fee is over and above the standard permit processing fee of $25.00 that 
is required at the time of application in accordance with 50 CFR 
13.11(d). The permit issuance fee is to be paid after notice that the 
application has been approved but before the permit is issued. The 
Committee Report outlined that the Committee considered a reasonable 
fee to range from $250 to $1,000 for each permit depending on the 
administrative work involved. The 1994 Amendments require all of the 
issuance fee be made available for polar bear conservation programs 
being conducted in Alaska and Russia pursuant to section 113(d) of the 
Act. Based on the amount of information that needs to be collected and 
evaluated and the need for periodic review of information, the Service 
is proposing to charge a fee of $1,000 for each import permit issued. 
The Service believes setting the fee at this level is appropriate given 
the level of administrative work involved and as the monies generated 
will be used for polar bear conservation.

Paragraph (i) Scientific Review

    The language of the law requires that a scientific review of the 
impact of permits issued on the polar bear population stocks be 
undertaken within 2 years after enactment, that is by April 30, 1996. 
This review is to provide an opportunity for public comment and the 
final report shall include a response to such public comment. The 
Director shall not issue permits to allow for the import of polar bears 
taken in Canada after September 30, 1996, if the Service determines 
that the issuance of permits is having a significant adverse impact on 
the polar bear population stocks in Canada. The Director is further 
authorized to conduct an annual review of this determination. The 
review provides for the monitoring of the effects of permit issuance on 
Canada's polar bear population stocks and a means to guarantee the 
cessation of imports should there be an indication of an adverse impact 
on the sustainability of the Canadian population stocks. These reviews 
are to be based on the best scientific information available. If the 
Director does undertake a review, the Act requires that the review be 
completed by January 31 of the year in which the review was undertaken. 
The Director may not, however, refuse to issue permits solely on the 
basis that the review has not been completed by January 31.
    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)

Public Comments Solicited

    The Service intends that any final action resulting from this 
proposal will be as accurate and as effective as possible. Therefore, 
any comments or suggestions from the public, other concerned 
governmental agencies, the scientific or conservation communities, 
trade organizations or any other interested party concerning any aspect 
of this proposal are hereby solicited.

Required Determinations

    This proposed rule was not subject to review by the Office of 
Management and Budget (OMB) under Executive Order 12866. The Department 
of the Interior (Department) has determined that this proposed rule 
will not have a significant economic effect on a substantial number of 
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.). The proposal will affect only those in the United States who 
have hunted polar bear in Canada. This action is not expected to have 
significant taking implications, as per Executive Order 12630.
    The information collection requirement contained in this section 
has been approved by OMB as required by the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq., and assigned clearance number 1018-0022. Since the 
proposed rule would apply to importation of polar bear trophies into 
the United States, it does not contain any Federalism impacts as 
described in Executive Order 12612.
    The Service has determined that this proposed rule is categorically 
excluded under Departmental procedures from complying with the National 
Environmental Policy Act (NEPA) (516 Departmental Manual, Ch. 2, Appx. 
1, Para. 1.10) An Environmental Action Memorandum is on file at the 
Service's Office of Management Authority in Arlington, Virginia. The 
permits authorized under the Act and regulations, as well as the 
scientific findings required by the Act, may be subject to NEPA 
documentation requirements, on a case-by-case basis.
    The Department has certified to OMB that these regulations meet the 
applicable standards provided in Sections 2(a) and 2(b)(2) of Executive 
Order 12778.

List of Subjects in 50 CFR Part 18

    Administrative practice and procedures, Imports, Indians, Marine 
mammals, Transportation.

Proposed Regulation Promulgation

    Accordingly, the Service hereby proposes to amend part 18 of 
chapter I of title 50 of the Code of Federal Regulations by adding 
sections 18.4 and 18.30 to read 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. A new Sec. 18.4 is added to subpart A of part 18 to read as 
follows:


Sec. 18.4  Information collection requirements.

    (a) The information collection requirements contained in subpart D 
has been approved by the Office of Management and Budget under 44 
U.S.C. 3501 et seq. and assigned clearance number 1018-0022. The 
information is being collected because it is necessary for the 
evaluation of permit applications. The information will be used 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 obligation to 
respond is required to obtain or retain a permit.
    (b) Public reporting burden for this collection of information is 
estimated to vary from 15 minutes to 4 hours per [[Page 73]] 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. A new Sec. 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. Applications for permits to import polar 
bear trophies shall be submitted to the Director, U.S. Fish and 
Wildlife Service, Office of Management Authority, 4401 N. Fairfax 
Drive, Room 420C, Arlington, Virginia 22203. Each application must be 
submitted on an official application (Form 3-200) provided by the 
Service and must include as an attachment, all of the following 
additional information:
    (1) A statement of the purpose of the taking and proposed use upon 
import;
    (2) Name and address of the person from whom the polar bear trophy 
is to be exported;
    (3) Name and address of the person in the United States to whom the 
polar bear trophy is to be imported;
    (4) If the person who took the polar bear in Canada died prior to 
submittal of the import permit application, documentation that the 
importer is the heir of that person's estate;
    (5) Proof that the polar bear was legally harvested in Canada by 
the applicant (or by a decedent from whom the applicant inherited the 
trophy), including the tag number and date, location, and manner of 
taking; and
    (6) A description of the polar bear parts to be imported, including 
the number of specimens or parts and the age, size, and sex of the 
polar bear.
    (b) Definitions. (1) The definitions in 50 CFR 10.12, 18.3, and 
23.3 apply to this paragraph.
    (2) Sport-hunted trophy means the hide, hair, skull, teeth, and 
claws of the specimen, which can be used by a taxidermist to create a 
mount of the animal for display or tanned for use as a rug, taken by 
the applicant during a sport hunt for personal, noncommercial use. It 
does not include any internal organ of the animal, including the gall 
bladder.
    (c) Review by Marine Mammal Commission. Upon receipt of an 
application the Director shall forward it to the Marine Mammal 
Commission as described in Sec. 18.31(b).
    (d) Procedures for issuance of permits and modification, suspension 
or revocation thereof. Permits applied for under this section shall be 
issued, suspended, modified or revoked pursuant to regulations 
contained in Sec. 18.33.
    (e) Issuance criteria. In determining whether to issue an import 
permit for a sport-hunted trophy, the Director shall consider, in 
addition to the general criteria in Part 13 of this subchapter, the 
following factors:
    (1) The specimen has not been imported into the United States;
    (2) The specimen to be imported meets the definition of a sport-
hunted trophy in paragraph (b) of this section;
    (3) The polar bear was legally harvested in Canada by the applicant 
(or by a decedent from whom the applicant inherited the trophy);
    (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 stock 
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 and 
other international agreements and conventions; and
    (ii) Are not likely to contribute to illegal trade in bear parts.
    (f) Additional permit conditions. Permits to import a sport-hunted 
trophy are subject to the conditions outlined in Sec. 18.31(d).
    (g) Duration of permits. The duration of permits issued under this 
section shall be designated on the face of the permit, but in no case 
will the permit be valid for more than one year from the date of 
issuance.
    (h) Fees. (1) The applicant must pay the required standard permit 
processing fee at the time of application as given in 50 CFR 13.11(4).
    (2) The Service will promptly notify an applicant of its decision 
on the import permit application. If the decision is to approve the 
application, the applicant must remit the issuance fee of $1,000 before 
receiving an import permit. The issuance fee will be used in developing 
and implementing cooperative research and management programs for the 
conservation of polar bears in Alaska and Russia pursuant to section 
113(d) of the Marine Mammal Protection Act.
    (i) Scientific review. (1) The Director shall undertake a 
scientific review of the impact of permits issued under this section on 
the polar bear population stocks in Canada by April 30, 1996.
    (i) The review shall provide an opportunity for public comment, and 
shall include a response to such public comment in the final report.
    (ii) The Director shall not issue permits under this section after 
September 30, 1996, if it is determined that the issuance of permits 
under this section is having a significant adverse impact on the polar 
bear population stocks in Canada.
    (2) After the initial review, the Director may review whether the 
issuance of permits under this section is having a significant adverse 
impact on the polar bear population stocks 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.
* * * * *
    Dated: December 15, 1994.
George T. Frampton, Jr.,
Assistant Secretary for Fish, and Wildlife and Parks.
[FR Doc. 94-32281 Filed 12-30-94; 8:45 am]
BILLING CODE 4310-55-P