[Senate Report 105-285]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 522
105th Congress                                                   Report
                                 SENATE

 2d Session                                                     105-285
_______________________________________________________________________


 
           FISH AND WILDLIFE REVENUE ENHANCEMENT ACT OF 1998

                                _______
                                

                 July 31, 1998.--Ordered to be printed

_______________________________________________________________________


    Mr. Chafee, from the Committee on Environment and Public Works, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 2094]

    The Committee on Environment and Public Works, to which was 
referred the bill (S. 2094), to amend the Fish and Wildlife 
Improvement Act of 1978 to enable the Secretary of the Interior 
to more effectively use the proceeds of sales of certain items, 
having considered the same, reports favorably with amendments 
and recommends that the bill, as amended, do pass.

                    General Statement and Background

    The U.S. Fish and Wildlife Service (the Service), in 
conjunction with other Federal and State agencies, implements 
and enforces the Federal laws relating to fish, wildlife and 
plants in the United States. In enforcing these laws, the 
Service may obtain forfeited or abandoned items derived from 
fish, wildlife and plants. These items include, for example, 
boots, belts, wallets, and jackets, made from skins and furs. 
The large majority of items are derived from python, monitor 
lizard and caiman. After being acquired by the Service, almost 
all of these items are shipped to the National Wildlife 
Property Repository in Commerce City, Colorado. The Repository 
serves as a central location for storage and disposal of 
wildlife and related property items, and currently houses 
approximately 450,000 items, with another 50,000 items in 
possession by the Service but stored elsewhere.
    The Fish and Wildlife Improvement Act (16 U.S.C. 742l et 
seq.) gives the Secretary of the Interior and the Secretary of 
Commerce broad authority to dispose of the forfeited or 
abandoned property in any manner that the Secretary deems 
appropriate, including donation, loan, sale, or destruction. 
Other laws, such as the Endangered Species Act (ESA) (16 U.S.C. 
1531 et seq.), the Marine Mammal Protection Act (MMPA) (16 
U.S.C. 1361 et seq.), and the Migratory Bird Treaty Act (MBTA) 
(16 U.S.C. 701 et seq.), prohibit the sale of items derived 
from endangered or threatened species, marine mammals, and 
migratory birds.
    With respect to the sale of property, forfeited and 
abandoned property receive disparate treatment under existing 
law. While both forfeited and abandoned items may be sold, only 
revenues generated from the sale of forfeited items go the 
Service. Revenues generated from the sale of abandoned items go 
to the General Treasury. This difference arises from provisions 
in the Lacey Act Amendments of 1981 (16 U.S.C. 3375(d) )and the 
ESA (16 U.S.C. 1540(d)), which provide that sums received from 
penalties, fines, or forfeiture of property may be used to pay 
rewards and costs for temporary care of fish, wildlife, or 
plants pending disposition of civil or criminal proceedings.
    One manner in which the Service disposes of items derived 
from fish, wildlife or plants is to loan them to scientific and 
educational institutions, such as schools, universities, 
museums and zoos, as well as other conservation agencies, for 
educational and research purposes. The Service currently runs 
two programs for this purpose: Cargo for Conservation, for 
schools, and Suitcase for Survival, for scientific and higher 
educational institutions. The Service pays all shipping and 
handling costs, approximately $50 per education kit. The 
programs are relatively small: of the almost 150,000 items 
received by the Repository between July 1, 1995 and December 
31, 1997, the Service distributed only 7,200 items in 383 
education kits to various organizations.
    Under the Bald and Golden Eagle Protection Act (16 U.S.C. 
668a et seq.), the Service also loans eagle carcasses and their 
parts to Native Americans for religious and ceremonial 
purposes. The Service has established the National Eagle 
Repository, also located at Commerce City, Colorado, to 
receive, process, and distribute these items. In 1997, the 
National Eagle Repository filled 1,459 requests from Native 
Americans for eagles (984 requests), eagle feathers (229 
requests) and other raptors (246 requests). The Service covers 
all expenses associated with shipping and processing the 
eagles.
    Apart from these programs, the items remain in storage at 
the National Wildlife Property Repository. The volume of items 
received at the Repository far exceeds the amount of material 
needed for scientific, educational, and related programs. The 
Repository currently has more than 200,000 forfeited and 
abandoned wildlife items that are surplus to the needs for 
educational or scientific use and that can legally be sold. 
This excludes wildlife or related property for which the sale 
is prohibited by any other Federal law, such as threatened or 
endangered species, marine mammals, and migratory birds.
    However, abandoned items constitute approximately 90 
percent of the inventory of the Repository, so that any revenue 
generated from a sale of these items would go to the General 
Treasury, rather than to the Service. Consequently, the Service 
has no funds to sell the items, which slowly deteriorate in 
storage. In fiscal year 1997, the Service received $310,000 in 
appropriated funds to operate and maintain the National 
Wildlife Property Repository and the National Eagle Repository. 
After salaries and benefits, $61,000 remained for operations, 
and of this, only $30,000 was available for the Cargo for 
Conservation and Suitcase for Survival programs and loans to 
Native Americans.
    If the Service were to hold a sale through a public 
auction, it would expect to sell the 200,000 items currently 
available for sale. This represents a ten year backlog of 
items, and the Service has estimated that proceeds of a sale of 
these items through an auction would exceed $1 million. 
Proceeds and frequency of subsequent sales will depend on 
future inventories and market prices of items.

                     Objectives of the Legislation

    S. 2094 would amend the Fish and Wildlife Improvement Act 
of 1978 to make proceeds from the disposal of abandoned fish, 
wildlife, plants, and other property available to the 
Secretaries of the Interior and Commerce. In addition, it would 
expand the use of funds received pursuant to the Lacey Act, the 
ESA, and the Fish and Wildlife Improvement Act to pay costs 
associated with appraisal, sale, storing, and shipping of 
forfeited and abandoned items, as well as for rewards under the 
Lacey Act and the ESA.
    The purpose of this bill is only to redirect proceeds from 
actions already authorized under existing law, in order to make 
it financially viable for the Service to sell items derived 
from fish, wildlife and plants. In deciding which of these 
items should be sold, the Secretary should remain cognizant of 
the purposes of fish and wildlife conservation laws. For 
example, a majority of the items in the Repository that can be 
sold legally are derived from species that are listed on 
Appendix II of the Convention on International Trade of 
Endangered Species of Wild Fauna and Flora (CITES). These 
species, while not necessarily threatened with extinction, may 
become so in the future unless trade is subject to strict 
regulation. Other species may be legally sold even though they 
may be rare or declining species, or species that are likely to 
become endangered or threatened in the future, such as 
candidates for listing as endangered or threatened.
    The Secretary should develop guidance for determining what 
items should be sold. The guidance should ensure that no items 
are sold that may undermine species conservation efforts 
domestically or overseas. It is likely that these 
determinations will most appropriately be made by relevant 
biologists within the Service, such as the CITES scientific 
authority. In addition, the list of items to be sold should be 
made available to the public prior to the date of sale.

                      Section-by-Section analysis

Section 1. Short Title
    This section provides that the Act may be cited as the 
``Fish and Wildlife Revenue Enhancement Act of 1998.''
Section 2. Findings and purposes
    This section contains the findings and purposes of the 
bill. Congress finds that the Service is responsible for 
storage and disposal of items derived from fish, wildlife, and 
plants that have become the property of the United States, and 
distributes many of these items for educational and scientific 
uses, and for religious purposes of Native Americans. Unless 
otherwise prohibited by law, the Service may dispose of some of 
those items by sale. Congress also finds that the revenue from 
the sale of abandoned items is not available to the Service, 
and in making such revenue available, the Service will be able 
to cover costs incurred in shipping, storing, and disposing of 
these items, and to make more extensive distributions of these 
items for educational, scientific, and Native American 
religious purposes. The purposes of the bill are to make 
proceeds from sales of abandoned items derived from fish, 
wildlife, and plants available to the Service and to authorize 
the use of those proceeds to cover costs incurred in shipping, 
storing, and disposing of them.
Section 3. Use of proceeds of certain sales
    This section amends section 3(c) of the Fish and Wildlife 
Improvement Act of 1978 by providing that the Secretary of the 
Interior and the Secretary of Commerce may each expend any 
revenues received from the disposal of fish, wildlife, plants 
or other items abandoned or forfeited to the United States 
under any laws administered by either Secretary relating to 
fish, wildlife, or plants, as well as all sums referred to in 
the first sentence of section 11(d) of the Endangered Species 
Act and the first sentence of section 6(d) of the Lacey Act 
Amendments of 1981 for certain uses. These uses are: (1) to 
make payments in accordance with those sections; and (2) to pay 
costs associated with: shipping those items to and from the 
place of storage, sale, or temporary or final disposal; storage 
of those items; appraisal of those items; sale or other 
disposal of those items in accordance with applicable law; 
payment of any valid liens or other encumbrances on those 
items; and, in the case of the Secretary of the Interior, 
processing and shipping of eagles and other migratory birds for 
Native American religious purposes.
    The bill provides six broad categories for which funds may 
be utilized. Shipping includes the cost of shipping, packaging 
material, and related supplies. Storage includes species 
identification, property appraisals, inventories and security. 
Presently, items are manually shelved and stored on open 
warehouse shelving, making them susceptible to rapid 
deterioration, rodents and insects. It is expected that 
proceeds would be used to improve current storage facilities 
and operations. Appraisal includes costs associated with 
appraisals, either by the Service or a contractor, in 
preparation for a sale. Sale or disposal includes costs 
associated with various means of disposing of the items, such 
as auctioneer commissions or landfill fees. Payment of valid 
liens and other encumbrances includes Federal payment of any 
outstanding balance of a lien, in order to declare the item 
property of the United States and avoid returning it to either 
the lien holder or the defendant.
    This section also amends section 3(c) of the Fish and 
Wildlife Improvement Act of 1978 to explicitly prohibit the 
sale of any species of fish, wildlife, or plant, or derivative 
thereof, if the sale is prohibited by another law. As 
previously noted, the ESA, the MMPA, and the MBTA prohibit the 
sale of endangered and threatened species, marine mammals, and 
migratory birds, respectively. However, the Fish and Wildlife 
Improvement Act does not explicitly refer to these laws, and 
indeed, provides that all fish, wildlife, and plants or other 
items abandoned or forfeited shall be disposed of by the 
Secretary in such a manner as he deems appropriate, 
notwithstanding any other provision of law. This new paragraph 
is intended to ensure that this broad authority does not 
supersede other Federal laws protecting fish, wildlife, and 
plants.
    The bill does not delete the phrase ``notwithstanding any 
other provision of law.'' The committee refrained from deleting 
this phrase because there are other Federal laws that might 
inappropriately interfere with the implementation of the Fish 
and Wildlife Improvement Act of 1978. Significant examples are 
laws relating to Government properties generally codified in 
title 40 of the United States Code, and laws relating to 
customs laws generally codified in title 19 of the United 
States Code.

                                Hearings

    The committee held a hearing on S. 2094 on July 7, 1998. 
Testimony was received from Mr. John Rogers, Deputy Director of 
the U.S. Fish and Wildlife Service; Ms. Ginette Hemley, Vice 
President for Species Conservation, World Wildlife Fund; Mr. 
Wayne Pacelle, Senior Vice President, The Humane Society of the 
United States, and Ms. Kristin Vehrs, Deputy Director, American 
Zoo and Aquarium Association.

                          Legislative History

    S. 2094 was introduced by Senator Allard on May 20, 1998, 
cosponsored by Senator Chafee, and was referred to the 
Committee on Environment and Public Works. On July 22, 1998, 
the committee held a business meeting to consider this bill. 
Senator Allard offered an amendment to prohibit the sale of 
items derived from any species of fish, wildlife or plants, or 
derivative thereof, whose sale is prohibited by another Federal 
law. The amendment was adopted by voice vote, and the bill, as 
amended, was favorably reported by voice vote.

                      Regulatory Impact Statement

    In compliance with section 11(b) of rule XXVI of the 
Standing Rules of the Senate, the committee makes the following 
evaluation of the regulatory impact of the bill. The bill does 
not create any additional regulatory burdens, and will not have 
any effect on the personal privacy of individuals.

                          Mandates Assessment

    In compliance with the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4), the Committee finds that this bill would 
impose no Federal intergovernmental unfunded mandates on State, 
local, or tribal governments. All of its governmental 
directives are imposed on Federal agencies. The bill does not 
directly impose any private sector mandates.

                          Cost of Legislation

    Section 403 of the Congressional Budget and Impoundment 
Control Act requires that a statement of the cost of the 
reported bill, prepared by the Congressional Budget Office, be 
included in the report. That statement follows:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 24, 1998.

Hon. John H. Chafee, Chairman,
Committee on Environment and Public Works,
U.S. Senate, Washington, DC.

    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 2094, the Fish and 
Wildlife Revenue Enhancement Act of 1998.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Deborah Reis 
(for Federal costs), who can be reached at 226-2860.

            Sincerely,
                                           June E. O'Neill,
                                                          Director.
                                ------                                


               Congressional Budget Office Cost Estimate

S. 2094, Fish and Wildlife Revenue Enhancement Act of 1998, as 
ordered reported by the Senate Committee on Environment and 
Public Works on July 22, 1998

    CBO estimates that enacting S. 2094 would increase 
offsetting receipts and direct spending (of such receipts) by 
about $1 million in fiscal year 1999 and less than $100,000 
annually thereafter. Because the bill would affect direct 
spending, pay-as-you-go procedures would apply, but the net 
impact on the federal budget would be minimal because both 
offsetting receipts and spending from such collections would 
increase by similar amounts each year. S. 2094 contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act and would not affect the budgets 
of state, local, or tribal governments.
    S. 2094 would allow the Secretaries of Commerce and the 
Interior to spend, without further appropriation, any 
offsetting receipts earned from the sale of certain items 
forfeited or abandoned to the United States under laws such as 
the Endangered Species Act and the Lacey Act. The agencies that 
administer these laws--the U.S. Fish and Wildlife Service 
(USFWS) and the National Marine Fisheries Service (NMFS) could 
use the new receipts to pay for costs of storing forfeited and 
abandoned goods, shipping them to and from storage facilities, 
appraising their value, selling or otherwise disposing of them, 
and other related activities.
    Under current law, the USFWS and the NMFS may already sell 
both forfeited and abandoned items. The agencies may only 
retain and spend the receipts from forfeited goods, however; 
receipts derived from abandoned goods are deposited into the 
general fund of the Treasury from which they must be 
appropriated to be spent. As a consequence, the agencies rarely 
sell abandoned items. By allowing the agencies to retain and 
spend the proceeds from sales of both types of items, S. 2094 
would provide the incentive and means to auction off both the 
existing inventory of goods and those collected in the future. 
Based on information provided by the USFWS, CBO estimates that 
that agency would raise additional offsetting receipts of about 
$1 million in 1999 from selling the existing inventory of 
abandoned goods. We estimate that future sales (once the 
existing backlog has been disposed of) would bring in about 
one-tenth of this amount annually. Information provided by the 
NMFS indicates that the effect on its receipts and spending 
would be much smaller because that agency does not generally 
seize or keep the types of abandoned goods that could be sold 
under the bill's authority.
    The CBO staff contact is Deborah Reis, who can be reached 
at 226-2860. This estimate was approved by Robert A. Sunshine, 
Deputy Assistant Director for Budget Analysis.

                        Changes in Existing Law

    In compliance with section 12 of rule XXVI of the Standing 
Rules of the Senate, changes in existing law made by the bill 
as reported are shown as follows: Existing law proposed to be 
omitted is enclosed in [black brackets], new matter is printed 
in italic, existing law in which no change is proposed is shown 
in roman:

                           United States Code

                         Title 16--Conservation

Chapter 9--Fish and Wildlife Service

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    Sec. 742l. Enforcement authority for the protection of fish 
and wildlife resources.--
    (a) Law enforcement training programs.--(1) In order to 
provide for and encourage training, research, and development 
for the purpose of improving fish and wildlife law enforcement 
and developing new methods for the prevention, detection, and 
reduction of violation of fish and wildlife laws, and the 
apprehension of violators of such laws, the Secretary of the 
Interior and the Secretary of Commerce may each--
                    (A) establish and conduct national training 
                programs to provide, at the request of any 
                State, training for State fish and wildlife law 
                enforcement personnel;
                    (B) develop new or improved approaches, 
                techniques, systems, equipment, and service to 
                improve and strengthen fish and wildlife law 
                enforcement; and
                    (C) assist in conducting, at the request of 
                any appropriate State official, local or 
                regional training programs for the training of 
                State fish and wildlife law enforcement 
                personnel. Such training programs shall be 
                conducted to the maximum extent practicable 
                through established programs.
            (2) There are authorized to be appropriated 
        beginning with fiscal year 1980 such funds as may be 
        necessary to carry out the purposes of subsection (b) 
        of this section, and the Secretary of the Interior and 
        the Secretary of Commerce may each require 
        reimbursement from the States for expenditures made 
        pursuant to subsections (b)(1)(A) and (C) of this 
        section.
    (b) Law enforcement cooperative agreement.--Notwithstanding 
any other provision of law, the Secretary of the Interior and 
the Secretary of Commerce may each utilize by agreement, with 
or without reimbursement, the personnel, services and 
facilities of any other Federal or State agency to the extent 
he deems it necessary and appropriate for effective enforcement 
of any Federal or State laws on lands, waters, or interests 
therein under his jurisdiction which are administered or 
managed for fish and wildlife purposes and for enforcement of 
any laws administered by him relating to fish and wildlife. 
Persons so designated by either Secretary, who are not 
employees of another Federal agency--
            (1) shall not be deemed a Federal employee and 
        shall not be subject to the provisions of law relating 
        to Federal employment, including those relating to 
        hours of work, competitive examination, rates of 
        compensation, and Federal employee benefits, but may be 
        considered eligible for compensation for work injuries 
        under subchapter III of chapter 81 of title 5;
            (2) shall be considered to be investigative or law 
        enforcement officers of the United States for the 
        purposes of the tort claim provisions of title 28;
            (3) may, to the extent specified by either 
        Secretary, search, seize, arrest, and exercise any 
        other law enforcement functions or authorities under 
        Federal laws relating to fish and wildlife, where such 
        authorities are made applicable by this or any other 
        law to employees, officers, or other persons designated 
        or employed by either Secretary; and
            (4) shall be considered to be officers or employees 
        of the Department of the Interior or the Department of 
        Commerce, as the case may be, within the meaning of 
        sections 111 and 1114 of title 18.
    (c) Disposal of abandoned or forfeited property.--
[Notwithstanding] (1) In general._Subject to paragraph (2), 
notwithstanding any other provision of law, all fish, wildlife, 
plants, or any other items abandoned or forfeited to the United 
States under any laws administered by the Secretary of the 
Interior or the Secretary of Commerce relating to fish, 
wildlife, or plants, shall be disposed of by either Secretary 
in such a manner as he deems appropriate (including, but not 
limited to, loan, gift, sale, or destruction).
            (2) Prohibition on sale of certain items._In 
        carrying out paragraph (1), the Secretary of the 
        Interior and the Secretary of Commerce may not sell any 
        species of fish, wildlife, or plant, or derivative 
        thereof, for which the sale is prohibited by another 
        Federal law.
            (3) Use of revenues._The Secretary of the Interior 
        and the Secretary of Commerce may each expend any 
        revenues received from the disposal of items under 
        paragraph (1), and all sums referred to in the first 
        sentence of section 11(d) of the Endangered Species Act 
        of 1973 (16 U.S.C. 1540(d)) and the first sentence of 
        section 6(d) of the Lacey Act Amendments of 1981 (16 
        U.S.C. 3375(d))--
                    (A) to make payments in accordance with 
                those sections; and
                    (B) to pay costs associated with--
                            (i) shipping items referred to in 
                        paragraph (1) to and from the place of 
                        storage, sale, or temporary or final 
                        disposal, including temporary or 
                        permanent loan;
                            (ii) storage of the items, 
                        including inventory of, and security 
                        for, the items;
                            (iii) appraisal of the items;
                            (iv) sale or other disposal of the 
                        items in accordance with applicable 
                        law, including auctioneer commissions 
                        and related expenses;
                            (v) payment of any valid liens or 
                        other encumbrances on the items and 
                        payment for other measures required to 
                        clear title to the items; and
                            (vi) in the case of the Secretary 
                        of the Interior only, processing and 
                        shipping of eagles and other migratory 
                        birds, and parts of migratory birds, 
                        for Native American religious purposes.

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