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

DEPARTMENT OF THE INTERIOR

50 CFR Part 18

RIN 1018-AD04

Importation of Polar Bear Trophies From Canada; Proposed Rule to

Implement Section 104(c)(5)(A) of the 1994 Amendments to the Marine

Mammal Protection Act

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: On April 30, 1994, the Marine Mammal Protection Act (Act) was

amended to allow for the issuance of permits to import sport-hunted

trophies of polar bears (Ursus maritimus) (excluding internal organs)

legally taken by the applicant while hunting in Canada. These permits

may also authorize the importation of trophies of polar bears taken,

but not imported, prior to the enactment of the Amendments. Prior to

issuing a permit, the Fish and Wildlife Service (Service) must make

legal and scientific findings required under section 104(c)(5)(A) of

the Act in consultation with the Marine Mammal Commission and after

notice and opportunity for public comment. This proposed rule would

establish application requirements, permit procedures, issuance

criteria and permit conditions. This notice also proposes a special

issuance fee for each permit as required by law. Such fees will be used

in developing and implementing cooperative research and management

programs for the conservation of polar bears in Alaska and Russia.

This proposed rule does not discuss the legal and scientific

findings required by the 1994 Amendments that need to be made prior to

issuing an import permit. The Service is currently working with the

Canadian wildlife authorities to obtain the needed information to make

these findings. A separate Federal Register notice will be published in

early 1995 to review the findings.

DATES: The Service will consider comments and information received by

March 6, 1995 in formulating its decision on this proposed rule.

made prior to

issuing an import permit. The Service is currently working with the

Canadian wildlife authorities to obtain the needed information to make

these findings. A separate Federal Register notice will be published in

early 1995 to review the findings.

DATES: The Service will consider comments and information received by

March 6, 1995 in formulating its decision on this proposed rule.

ADDRESSES: Comments and information should be sent to: Director, Fish

and Wildlife Service, c/o Office of Management Authority, 4401 N.

Fairfax Drive, Room 420C, Arlington, VA 22203.

FOR FURTHER INFORMATION CONTACT: Margaret Tieger, Office of Management

Authority, at the above address, telephone (703) 358-2104, extension

5507.

SUPPLEMENTARY INFORMATION: This rule proposes regulations implementing

provisions of the 1994 Amendments to the Act that allow for the

issuance of permits to import sport-hunted trophies of polar bears

legally taken by the applicant while hunting in Canada. At this time,

Canada is the only country that allows polar bears to be harvested by

non-residents through a regulated sport-hunting program. These

amendments were signed into law on April 30, 1994. Prior to that time,

those seeking authority to import polar bear trophies from Canada were

required to first obtain a waiver of the Act's moratorium on importing

marine mammals.

The 1994 Amendments include a streamlined procedure for authorizing

the importation of these sport-hunted trophies by permit. This proposed

rule would establish the application requirements, permit procedures,

issuance criteria, permit conditions and issuance fee for this type of

permit. The notice discusses each paragraph of the proposed rule in the

section below titled, ``Section Analysis by Paragraph''

dments include a streamlined procedure for authorizing

the importation of these sport-hunted trophies by permit. This proposed

rule would establish the application requirements, permit procedures,

issuance criteria, permit conditions and issuance fee for this type of

permit. The notice discusses each paragraph of the proposed rule in the

section below titled, ``Section Analysis by Paragraph''.

Prior to issuing a permit for the importation of a polar bear

trophy, the Service must make findings consistent with section

104(c)(5)(A) of the Act, in consultation with the Marine Mammal

Commission, after publishing notice in the Federal Register for public

comment. These findings are to ensure that the trophy was legally

taken; that Canada has a monitored and enforced hunting program that is

consistent with the 1973 International Agreement on the Conservation of

Polar Bears and is based on scientifically sound quotas ensuring the

maintenance of the affected population stock at a sustainable level;

and that the export and subsequent import meet the requirements of the

Convention on International Trade in Endangered Species of Wild Fauna

and Flora (CITES) and other international agreements and conventions

and are not likely to contribute to illegal trade in bear parts.

This proposed rule does not discuss the legal and scientific

findings required by the 1994 Amendments that need to be made prior to

issuing an import permit as the Service does not presently have all the

information it needs to make such findings. A group of biologists from

the Service and the National Biological Survey are consulting with the

Canadian wildlife authorities in December 1994 to gather information

and discuss Canada's program. The Service will also be addressing

several questions that have been raised

or to

issuing an import permit as the Service does not presently have all the

information it needs to make such findings. A group of biologists from

the Service and the National Biological Survey are consulting with the

Canadian wildlife authorities in December 1994 to gather information

and discuss Canada's program. The Service will also be addressing

several questions that have been raised. A contract report prepared for

the Marine Mammal Commission in 1993 has raised questions about

Canada's sport-hunting program and its consistency with the 1973

International Agreement on the Conservation of Polar Bears. In

addition, the 1994 Amendments require the Service to determine whether

for a particular population stock, Canada manages its hunting program

through scientifically-based quotas that ensure the maintenance of a

sustainable population. Canada manages polar bears at the subpopulation

level, that appears to be consistent with this amendment and the

discussion in the legislative history on Canada's management program in

the Northwest Territories (140 Cong. Rec. H2725, April 26, 1994).

The Service is gathering the specific information needed to

resolve these and other related questions concerning the required

findings. In early 1995, the Service anticipates publishing a summary

of information on polar bear subpopulations in Canada, Canada's

management program, and the legal and scientific findings in the

Federal Register for public comment. At the same time, the Service will

need to evaluate its actions under the National Environmental Policy

Act, as appropriate. Once the questions have been resolved and the

Service has made the findings outlined above, it will be able to act on

specific permit applications.

Section Analysis by Paragraph

Section 18.30 Polar bear sport-hunted trophy import permits

n that the importer is the heir to the estate of a hunter

who died prior to importation of the trophy; proof that the polar bear

was legally harvested in Canada by the applicant or by a decedent from

whom the applicant inherited the trophy, including the tag number and

date, location and manner of taking; and a description of the polar

bear parts to be imported, including the number of specimens or parts

and the age, size and sex of the polar bear. This information is

necessary to allow the Service to determine that the polar bear trophy

in question meets the new provisions of the law and provides the

specific details the Service needs to evaluate the application.

Paragraph (b) Definitions

The term ``sport-hunted trophy'' has been defined to clarify what

parts of the polar bear are included in the term and that the item has

to be for personal, noncommercial use. There was concern that internal

organs, such as the gall bladder, might enter into trade and possibly

contribute to illegal trade in bear parts. The Committee Report (H.R.

Rep. No. 439, 103d Cong., 2d Sess. (1994)) states that ``Trophies

normally constitute the hide, hair, skull, teeth, and claws of the

animal, which can be used by a taxidermist to create a mount of the

animal for display or tanned for use as a rug. This provision does not

allow the importation of any internal organ of the animal, including

the gall bladder.'' The definitions in Parts 10, 18 and 23 of 50 CFR

also apply.

Paragraph (c) Review by the Marine Mammal Commission

itute the hide, hair, skull, teeth, and claws of the

animal, which can be used by a taxidermist to create a mount of the

animal for display or tanned for use as a rug. This provision does not

allow the importation of any internal organ of the animal, including

the gall bladder.'' The definitions in Parts 10, 18 and 23 of 50 CFR

also apply.

Paragraph (c) Review by the Marine Mammal Commission

The law requires that the Service consult with the Marine Mammal

Commission in making the specific findings required in section

104(c)(5)(A). The Marine Mammal Commission is an independent Federal

agency with statutory authority to make recommendations pursuant to

Title II of the Act. Since this procedure for polar bear trophy import

applications is substantially similar to that required for other

applications considered under the Act, the proposed regulations refer

the reader to the current provisions in section 18.31(c).

Paragraph (d) Procedures for issuance of permits and modification,

suspension or revocation thereof

Again, since general procedures to be followed for issuance of

permits and modification, suspension or revocation of permits are

currently in the regulations, the reader is referred to the current

provisions in section 18.33. These regulations are based on the

application procedures outlined in section 104(d) of the Act, which was

not changed during the recent amendments. When Congress added section

104(c)(5) to the Act to allow for issuance of permits to import polar

bear trophies, polar bear import applications were not exempted from

these procedures that include the requirement that the Service will

publish a notice of each permit application in the Federal Register for

a 30-day public comment period.

Paragraph (e) Issuance Criteria

the recent amendments. When Congress added section

104(c)(5) to the Act to allow for issuance of permits to import polar

bear trophies, polar bear import applications were not exempted from

these procedures that include the requirement that the Service will

publish a notice of each permit application in the Federal Register for

a 30-day public comment period.

Paragraph (e) Issuance Criteria

Before a permit can be issued, the Service proposes to consider the

issuance criteria in this section in addition to the general criteria

in 50 CFR 13.21. The floor debate in the House of Representatives (140

Cong. Rec. H2725, April 26, 1994) emphasized that the intent of

Congress was to limit importation of polar bear trophies to the hunter

who actually took the polar bear and who desires to import the trophy.

If an individual who has legally taken a polar bear dies prior to the

importation, however, the heirs of that person's estate could apply for

an import permit. The import permit requests for polar bear trophies

can also be made for animals taken prior to enactment of the 1994

Amendments (April 30, 1994) if the issuance criteria are met. However,

this does not apply to polar bear parts that have been seized by the

Federal government or have already been imported into the United

States. The first three issuance criteria address these concerns, as

follows: the trophy has not already been imported, it meets the

definition of a sport-hunted trophy and it was legally harvested in

Canada by the applicant (or by a decedent from whom the applicant

inherited the trophy). The next issuance criteria are directly taken

from the language of the law at section 104(c)(5)(A)(i)-(iv)

tates. The first three issuance criteria address these concerns, as

follows: the trophy has not already been imported, it meets the

definition of a sport-hunted trophy and it was legally harvested in

Canada by the applicant (or by a decedent from whom the applicant

inherited the trophy). The next issuance criteria are directly taken

from the language of the law at section 104(c)(5)(A)(i)-(iv). Findings

to be made include determinations that (1) Canada has a monitored and

enforced hunting program consistent with the purposes of the 1973

International Agreement on the Conservation of Polar Bears; (2) Canada

has a sport-hunting program based on scientifically sound quotas

ensuring the maintenance of the affected population stock at a

sustainable level; and (3) and (4) the export and subsequent import are

consistent with the provisions of CITES and other international

agreements and conventions and are not likely to contribute to illegal

trade in bear parts. These factors will be addressed in greater detail

when the Service publishes its proposed findings in early 1995.

Paragraph (f) Additional Permit Conditions

Every permit issued under this section would be subject to the

conditions currently in the regulations for marine mammal permits at

section 18.31(d). This paragraph would require all permits to be

subject to the general permit conditions set forth in Part 13 of this

subchapter and to certain specific conditions. These specific

conditions would require that the original permit be in the

possession of the person to whom it is issued, or his agent, at the

time of importation and that a duplicate copy of the issued permit be

physically attached to the container in which the polar bear specimen

is placed while in storage or transit.

Paragraph (g) Duration of Permits

The duration of a permit is designated on the face of the permit.

The permit will be valid for no longer than one year, a timeframe that

should allow for the importation to occur.

Paragraph (h) Fees

and that a duplicate copy of the issued permit be

physically attached to the container in which the polar bear specimen

is placed while in storage or transit.

Paragraph (g) Duration of Permits

The duration of a permit is designated on the face of the permit.

The permit will be valid for no longer than one year, a timeframe that

should allow for the importation to occur.

Paragraph (h) Fees

The Act requires the Director to establish and charge a reasonable

fee for polar bear trophy import permits that are issued. This issuance

fee is over and above the standard permit processing fee of $25.00 that

is required at the time of application in accordance with 50 CFR

13.11(d). The permit issuance fee is to be paid after notice that the

application has been approved but before the permit is issued. The

Committee Report outlined that the Committee considered a reasonable

fee to range from $250 to $1,000 for each permit depending on the

administrative work involved. The 1994 Amendments require all of the

issuance fee be made available for polar bear conservation programs

being conducted in Alaska and Russia pursuant to section 113(d) of the

Act. Based on the amount of information that needs to be collected and

evaluated and the need for periodic review of information, the Service

is proposing to charge a fee of $1,000 for each import permit issued.

The Service believes setting the fee at this level is appropriate given

the level of administrative work involved and as the monies generated

will be used for polar bear conservation.

Paragraph (i) Scientific Review

mation that needs to be collected and

evaluated and the need for periodic review of information, the Service

is proposing to charge a fee of $1,000 for each import permit issued.

The Service believes setting the fee at this level is appropriate given

the level of administrative work involved and as the monies generated

will be used for polar bear conservation.

Paragraph (i) Scientific Review

The language of the law requires that a scientific review of the

impact of permits issued on the polar bear population stocks be

undertaken within 2 years after enactment, that is by April 30, 1996.

This review is to provide an opportunity for public comment and the

final report shall include a response to such public comment. The

Director shall not issue permits to allow for the import of polar bears

taken in Canada after September 30, 1996, if the Service determines

that the issuance of permits is having a significant adverse impact on

the polar bear population stocks in Canada. The Director is further

authorized to conduct an annual review of this determination. The

review provides for the monitoring of the effects of permit issuance on

Canada's polar bear population stocks and a means to guarantee the

cessation of imports should there be an indication of an adverse impact

on the sustainability of the Canadian population stocks. These reviews

are to be based on the best scientific information available. If the

Director does undertake a review, the Act requires that the review be

completed by January 31 of the year in which the review was undertaken.

The Director may not, however, refuse to issue permits solely on the

basis that the review has not been completed by January 31.

Congressman Jack Fields, during the House of Representatives floor

debate on the 1994 Amendments stated, ``A significant adverse impact

means more than a simple decrease, ordinary fluctuation, or normal

change in the population cycle

hich the review was undertaken.

The Director may not, however, refuse to issue permits solely on the

basis that the review has not been completed by January 31.

Congressman Jack Fields, during the House of Representatives floor

debate on the 1994 Amendments stated, ``A significant adverse impact

means more than a simple decrease, ordinary fluctuation, or normal

change in the population cycle. A decline should not be considered

significant if the decline is of short duration, affects a minuscule

percentage of the population, or does not jeopardize the sustainability

of the species in the long term. The decrease must be proven to be

directly related to the trophy imports by sport hunters and of such a

magnitude as to warrant suspension of those imports. Even so, the

issuance of permits should not be suspended unless Canada does not

reduce the harvest quota in response to this decline.'' (140 Cong. Rec.

H2725, April 26, 1994)

Public Comments Solicited

The Service intends that any final action resulting from this

proposal will be as accurate and as effective as possible. Therefore,

any comments or suggestions from the public, other concerned

governmental agencies, the scientific or conservation communities,

trade organizations or any other interested party concerning any aspect

of this proposal are hereby solicited.

Required Determinations

This proposed rule was not subject to review by the Office of

Management and Budget (OMB) under Executive Order 12866. The Department

of the Interior (Department) has determined that this proposed rule

will not have a significant economic effect on a substantial number of

small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et

seq.). The proposal will affect only those in the United States who

have hunted polar bear in Canada. This action is not expected to have

significant taking implications, as per Executive Order 12630

ior (Department) has determined that this proposed rule

will not have a significant economic effect on a substantial number of

small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et

seq.). The proposal will affect only those in the United States who

have hunted polar bear in Canada. This action is not expected to have

significant taking implications, as per Executive Order 12630.

The information collection requirement contained in this section

has been approved by OMB as required by the Paperwork Reduction Act, 44

U.S.C. 3501 et seq., and assigned clearance number 1018-0022. Since the

proposed rule would apply to importation of polar bear trophies into

the United States, it does not contain any Federalism impacts as

described in Executive Order 12612.

The Service has determined that this proposed rule is categorically

excluded under Departmental procedures from complying with the National

Environmental Policy Act (NEPA) (516 Departmental Manual, Ch. 2, Appx.

1, Para. 1.10) An Environmental Action Memorandum is on file at the

Service's Office of Management Authority in Arlington, Virginia. The

permits authorized under the Act and regulations, as well as the

scientific findings required by the Act, may be subject to NEPA

documentation requirements, on a case-by-case basis.

The Department has certified to OMB that these regulations meet the

applicable standards provided in Sections 2(a) and 2(b)(2) of Executive

Order 12778.

List of Subjects in 50 CFR Part 18

Administrative practice and procedures, Imports, Indians, Marine

mammals, Transportation.

Proposed Regulation Promulgation

Accordingly, the Service hereby proposes to amend part 18 of

chapter I of title 50 of the Code of Federal Regulations by adding

sections 18.4 and 18.30 to read as follows:

PART 18--MARINE MAMMALS

1. The authority citation for part 18 continues to read as follows:

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

2. A new Sec. 18.4 is added to subpart A of part 18 to read as

follows:

ation Promulgation

Accordingly, the Service hereby proposes to amend part 18 of

chapter I of title 50 of the Code of Federal Regulations by adding

sections 18.4 and 18.30 to read as follows:

PART 18--MARINE MAMMALS

1. The authority citation for part 18 continues to read as follows:

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

2. A new Sec. 18.4 is added to subpart A of part 18 to read as

follows:

Sec. 18.4 Information collection requirements.

(a) The information collection requirements contained in subpart D

has been approved by the Office of Management and Budget under 44

U.S.C. 3501 et seq. and assigned clearance number 1018-0022. The

information is being collected because it is necessary for the

evaluation of permit applications. The information will be used to

review permit applications and make decisions, according to criteria

established in various Federal wildlife conservation statutes and

regulations, on the issuance or denial of permits. The obligation to

respond is required to obtain or retain a permit.

(b) Public reporting burden for this collection of information is

estimated to vary from 15 minutes to 4 hours per response,

with an average of 1.028 hours per response, including the time for

reviewing instructions, searching existing data sources, gathering and

maintaining the data needed, and completing and reviewing the

collection of information. Send comments regarding this burden or any

other aspect of this collection of information, including suggestions

for reducing the burden, to the Service Information Collection

Clearance Office, Fish and Wildlife Service Office of Management and

Budget, Mail Stop 224, Arlington Square, U.S. Department of the

Interior, 1849 C Street, N.W., Washington, DC 20240 and the Office of

Management and Budget, Paperwork Reduction Project (1018-0022),

Washington, DC 20503.

3. A new Sec. 18.30 is added to subpart D of part 18 to read as

follows:

Sec. 18.30 Polar bear sport-hunted trophy import permits.

Wildlife Service Office of Management and

Budget, Mail Stop 224, Arlington Square, U.S. Department of the

Interior, 1849 C Street, N.W., Washington, DC 20240 and the Office of

Management and Budget, Paperwork Reduction Project (1018-0022),

Washington, DC 20503.

3. A new Sec. 18.30 is added to subpart D of part 18 to read as

follows:

Sec. 18.30 Polar bear sport-hunted trophy import permits.

(a) Application procedure. Applications for permits to import polar

bear trophies shall be submitted to the Director, U.S. Fish and

Wildlife Service, Office of Management Authority, 4401 N. Fairfax

Drive, Room 420C, Arlington, Virginia 22203. Each application must be

submitted on an official application (Form 3-200) provided by the

Service and must include as an attachment, all of the following

additional information:

(1) A statement of the purpose of the taking and proposed use upon

import;

(2) Name and address of the person from whom the polar bear trophy

is to be exported;

(3) Name and address of the person in the United States to whom the

polar bear trophy is to be imported;

(4) If the person who took the polar bear in Canada died prior to

submittal of the import permit application, documentation that the

importer is the heir of that person's estate;

(5) Proof that the polar bear was legally harvested in Canada by

the applicant (or by a decedent from whom the applicant inherited the

trophy), including the tag number and date, location, and manner of

taking; and

(6) A description of the polar bear parts to be imported, including

the number of specimens or parts and the age, size, and sex of the

polar bear.

e heir of that person's estate;

(5) Proof that the polar bear was legally harvested in Canada by

the applicant (or by a decedent from whom the applicant inherited the

trophy), including the tag number and date, location, and manner of

taking; and

(6) A description of the polar bear parts to be imported, including

the number of specimens or parts and the age, size, and sex of the

polar bear.

(b) Definitions. (1) The definitions in 50 CFR 10.12, 18.3, and

23.3 apply to this paragraph.

(2) Sport-hunted trophy means the hide, hair, skull, teeth, and

claws of the specimen, which can be used by a taxidermist to create a

mount of the animal for display or tanned for use as a rug, taken by

the applicant during a sport hunt for personal, noncommercial use. It

does not include any internal organ of the animal, including the gall

bladder.

(c) Review by Marine Mammal Commission. Upon receipt of an

application the Director shall forward it to the Marine Mammal

Commission as described in Sec. 18.31(b).

(d) Procedures for issuance of permits and modification, suspension

or revocation thereof. Permits applied for under this section shall be

issued, suspended, modified or revoked pursuant to regulations

contained in Sec. 18.33.

(e) Issuance criteria. In determining whether to issue an import

permit for a sport-hunted trophy, the Director shall consider, in

addition to the general criteria in Part 13 of this subchapter, the

following factors:

(1) The specimen has not been imported into the United States;

(2) The specimen to be imported meets the definition of a sport-

hunted trophy in paragraph (b) of this section;

(3) The polar bear was legally harvested in Canada by the applicant

(or by a decedent from whom the applicant inherited the trophy);

(4) Canada has a monitored and enforced sport-hunting program

consistent with the purposes of the 1973 International Agreement on the

Conservation of Polar Bears;

men to be imported meets the definition of a sport-

hunted trophy in paragraph (b) of this section;

(3) The polar bear was legally harvested in Canada by the applicant

(or by a decedent from whom the applicant inherited the trophy);

(4) Canada has a monitored and enforced sport-hunting program

consistent with the purposes of the 1973 International Agreement on the

Conservation of Polar Bears;

(5) Canada has a sport-hunting program based on scientifically

sound quotas ensuring the maintenance of the affected population stock

at a sustainable level; and

(6) The export and subsequent import:

(i) Are consistent with the provisions of the Convention on

International Trade in Endangered Species of Wild Fauna and Flora and

other international agreements and conventions; and

(ii) Are not likely to contribute to illegal trade in bear parts.

(f) Additional permit conditions. Permits to import a sport-hunted

trophy are subject to the conditions outlined in Sec. 18.31(d).

(g) Duration of permits. The duration of permits issued under this

section shall be designated on the face of the permit, but in no case

will the permit be valid for more than one year from the date of

issuance.

(h) Fees. (1) The applicant must pay the required standard permit

processing fee at the time of application as given in 50 CFR 13.11(4).

(2) The Service will promptly notify an applicant of its decision

on the import permit application. If the decision is to approve the

application, the applicant must remit the issuance fee of $1,000 before

receiving an import permit. The issuance fee will be used in developing

and implementing cooperative research and management programs for the

conservation of polar bears in Alaska and Russia pursuant to section

113(d) of the Marine Mammal Protection Act.

(i) Scientific review. (1) The Director shall undertake a

scientific review of the impact of permits issued under this section on

the polar bear population stocks in Canada by April 30, 1996.

used in developing

and implementing cooperative research and management programs for the

conservation of polar bears in Alaska and Russia pursuant to section

113(d) of the Marine Mammal Protection Act.

(i) Scientific review. (1) The Director shall undertake a

scientific review of the impact of permits issued under this section on

the polar bear population stocks in Canada by April 30, 1996.

(i) The review shall provide an opportunity for public comment, and

shall include a response to such public comment in the final report.

(ii) The Director shall not issue permits under this section after

September 30, 1996, if it is determined that the issuance of permits

under this section is having a significant adverse impact on the polar

bear population stocks in Canada.

(2) After the initial review, the Director may review whether the

issuance of permits under this section is having a significant adverse

impact on the polar bear population stocks in Canada annually in light

of the best scientific information available. The review must be

completed no later than January 31 in any year a review is undertaken.

* * * * *

Dated: December 15, 1994.

George T. Frampton, Jr.,

Assistant Secretary for Fish, and Wildlife and Parks.

[FR Doc. 94-32281 Filed 12-30-94; 8:45 am]

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