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

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).

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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/Pf),

where N is the total number of individuals in the population and

Pf is the proportion of females in the harvest measured directly

from the harvest returns. The formula can also be modified for

populations with different renewal rates and, if new information

becomes available, on birth and death rates (GNWT).

Table 3 provides information on each population including the

population estimate, the total kill (excluding natural deaths),

percentage of females killed, and the calculated sustainable harvest

for the 1993/94 harvest season and averaged over the preceding three

and five seasons. Based on this information, the status of the

population is designated as increasing, stable, or decreasing,

represented by the symbols ``+'', ``0'', ``-''. The population status

is expressed as the difference between the calculated sustainable

harvest and the kill. For example, the calculated sustainable harvest

for the Southern Beaufort Sea 1993/94 harvest season was 81.1. Since

the total kill was 64, the harvest of polar bears in the Southern

Beaufort Sea did not exceed the sustainable yield. Therefore, the

population had the potential to increase. In contrast, the Foxe Basin

(FB) kill exceeded the sustainable harvest, thus the population status

is represented as declining.

Table 3.--Population Status for Canadian Polar Bear Populations Incorporating Harvest Statistics From 1989/90 to 1993/94. The Populations Are Identified As Follows: Southern Beaufort Sea (SB),

Northern Beaufort Sea (NB), Viscount Melville (VM), Queen Elizabeth Islands (QE), Parry Channel (PC), Baffin Bay (BB), Gulf of Boothia (GB), M'Clintock Channel (MC), Foxe Basin (FB), Davis

Strait (DS), Western Hudson Bay (WH), and Southern Hudson Bay (SH). The Percent Females (%) Statistic \1\ Does Not Include Bears of Unknown Sex Except for Labrador (1991/92 and 1992/93) and

Greenland (All 5 Years). Harvest Statistics Include All Reported Human-caused Mortality of Polar Bears. Natural Deaths Are Not Included

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

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)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

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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 pop

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