[Senate Report 106-484]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 933
106th Congress                                                   Report
                                 SENATE
 2d Session                                                     106-484

======================================================================



 
                          BEAR PROTECTION ACT

                                _______
                                

October 4 (legislative day, September 22), 2000.--Ordered to be printed

                                _______
                                

   Mr. Smith of New Hampshire, from the Committee on Environment and 
                 Public Works, submitted the following

                              R E P O R T

                         [To accompany S. 1109]

                             together with

                             minority views

    The Committee on Environment and Public Works, to which was 
referred a bill (S. 1109) to conserve global bear populations 
by prohibiting the importation, exportation, and interstate 
trade of bear viscera and items, products, or substances 
containing, or labeled or advertised as containing, bear 
viscera, and for other purposes, having considered the same, 
reports favorably thereon and recommends that the bill do pass.

                    General Statement and Background

    Eight species of bears the Asian black bear, American black 
bear, brown bear, polar bear, spectacled bear, sun bear, sloth 
bear, and giant panda are found on four continents. Two species 
are found in Europe, three in North America, six in Asia, and 
one in South America. Many populations of the species have 
experienced significant declines in this century. Asian bears, 
in particular, have suffered the greatest losses. In contrast, 
populations of the American black bear are increasing in many 
States. Of the eight species of bears, six are Appendix I of 
the Convention on International Trade of Endangered Species of 
Wild Fauna and Flora (CITES). Only the American black bear and 
the polar bear are listed on Appendix II, with the American 
black bear listed based on its similarity of appearance with 
other species on Appendix I.
    The population of the brown bear, the most widespread 
species, is estimated at 180,000 to 200,000. The population of 
polar bear is estimated to be between 20,000 and 30,000, and 
the population of the sloth bear is estimated to be 
approximately 20,000. Fewer than 50,000 Asian black bears are 
believed to exist. The spectacled bear and sun bear are the 
most endangered species, with populations believed to be less 
than 4,000 and 10,000 respectively. In comparison, according to 
Traffic North America, part of Traffic Network, a joint program 
of the World Wildlife Foundation and the International Union 
for the Conservation of Nature (IUCN), in 1997, the North 
American population of black bears was estimated at 600,000 to 
800,000, of which approximately 325,000 to 448,000 reside in 
the United States.
    Habitat loss has been a major cause of the general decline 
of bear populations, but over-harvest is responsible for the 
precipitous decline of some populations in Asia. Over-harvest, 
including poaching, has been associated with the commercial 
trade in bear parts. Bear gallbladders and bile, in particular, 
are popular for their use in traditional Asian medicine. Bear 
gall has been used in Asian Medicine since the seventh century 
to treat high fever and convulsions, inflammation, burns, 
hemorrhoids, swelling and pain. Only the giant panda and the 
polar bear are not harvested for their gallbladders. 
Gallbladders of pigs, which are similar in appearance to those 
of bears, are sometimes sold as bear gallbladders. Therefore, 
buyers frequently request verification to ensure that they are 
obtaining bear gallbladders. Bears are also taken for their 
paws and meat, which are considered delicacies in some 
societies.
    While there is evidence of commercial trade in bear 
viscera, there is little information regarding the extent of 
this trade. With respect to imports, there is evidence that 
bear parts, in the form of traditional Asian medicine, are 
imported into the United States. A Study published by Traffic 
North America in January 1998 surveyed 110 shops in the 
Chinatowns of seven cities across North America (Atlanta, Los 
Angeles, New York, San Francisco, Seattle, Toronto and 
Vancouver). Eight percent were found to sell medicine 
containing or claiming to contain bear parts. In New York City 
and Seattle, the figure was as high as 17 percent. Enforcement 
statistics from the Fish and Wildlife Service also indicate 
significant illegal activity at the border. In 1997, for 
example, 95 shipments containing bears or bear parts were 
denied entry or exit. With respect to exports, reports prepared 
by Traffic North America and the Humane Society of the United 
States indicate that the commercial value of bear parts on the 
international market remains high, suggesting that these parts, 
particularly viscera, are still prized, with the potential for 
demand to rise.
    Enforcement statistics from the Federal Government also 
indicate that some poaching and illegal trading is occurring 
within the States. According to the U.S. Fish and Wildlife 
Service, in 2000, the Service brought 4 civil or criminal cases 
with a total of $4,606 in penalties; in 1999, the service 
resolved 11 civil or criminal cases and collected $900 in 
penalties. In 1998, there were 17 cases with $18,995 in 
penalties. Although information from the States and the Fish 
and Wildlife Service also suggests that bear populations in the 
United States are increasing, there is a possibility that these 
populations could be at risk in the future if bear populations 
in Asia were to continue to decline. Bears already endangered 
worldwide would face immediate risks if demand rose. These 
risks warrant continued vigilance in the protection of bears.
    Bears are protected in the United States under both Federal 
and State laws. In general, States are responsible for managing 
black bear populations, and the regulation of trade in bear 
parts. At present, 14 States explicitly allow the sale of bear 
parts; 35 States prohibit the sale of bear parts; and 2 States 
are silent on the issue. Of the 14 States that allow the sale 
of bear parts, 6 allow the sale from bears taken legally in 
that State, and 8 allow the sale of bears parts from bears 
taken legally in another State. The two States without 
regulations do not have bear populations. Violations of State 
laws may be enforced by the States or by the Federal Government 
under the Lacey Act. In addition to State laws, the Federal 
Endangered Species Act (ESA) also protects certain species of 
bears. The brown bear, or grizzly, is listed as a threatened 
species under the ESA in the lower 48 States, but not in 
Alaska. The polar bear, found in Alaska and Canada, is 
protected under the Marine Mammal Protection Act. The American 
black bear population is considered to be healthy, with the 
exception of the Louisiana black bear, which is listed as 
threatened under the ESA. CITES imposes restrictions on the 
international transportation and sale of bears and bear parts.
    In June 1997, the Parties to CITES adopted a resolution 
urging all Parties to take immediate action in order to 
demonstrably reduce the illegal trade in bear parts and 
derivatives. The resolution first noted that the continued 
trade in bear parts undermines the effectiveness of CITES, and 
that if actions are not taken to eliminate this trade, poaching 
may cause declines of wild bears that could lead to the 
extirpation of certain populations or species. The resolution 
specifically urged Parties to confirm, adopt, or improve their 
national legislation to strengthen measures to control illegal 
exports and imports of bear parts and derivatives, ensuring 
that the penalties for violations are sufficient to deter 
illegal trade. The resolution further recommended that Parties 
and non-Party States encourage a dialog between government 
agencies, industry, consumer groups and conservation 
organizations to ensure that legal trade does not provide a 
conduit for illegal trade in parts and derivatives of bears 
listed in Appendix I.
    In order to address concerns about the potential threats to 
bear populations in the United States due to the trade of bear 
parts, and to carry out the CITES resolution, this bill adopts 
a two-part strategy to reduce and eliminate the trade in bear 
viscera. First, the bill prohibits the import into, or export 
from, the United States of all bear viscera or products 
containing, or labeled as containing, bear viscera. Second, the 
bill prohibits the sale or transport in interstate commerce of 
any bear viscera or products containing, or labeled as 
containing, bear viscera.

                      Section-By-Section Analysis

Section 1. Short Title
    Section 1 sets forth the short title of this bill as the 
``Bear Protection Act of 1999.''
Sec. 2. Findings
    Section 2 contains the findings of Congress. They include 
the following: all eight extant species of bears are listed on 
either Appendix I or II of CITES; Parties to CITES may adopt 
stricter domestic measures regarding trade of bear parts; Asian 
bear populations have declined; undercover enforcement actions 
have revealed that bears have been poached in the United States 
for their viscera; commercial trade in bear viscera could 
encourage poaching; and prohibitions on international and 
domestic trade in bear viscera will assist in ensuring that the 
United States does not contribute to the decline of any bear 
population.
Sec. 3. Purposes
    Section 3 states that the purpose of the bill is to ensure 
the long-term viability of the world's eight bear species.
Sec. 4. Definitions
    Section 4 sets forth definitions of key terms in the bill. 
The term ``bear viscera'' is defined as the body fluids or 
internal organs of the bear, including its gallbladder and its 
contents, but not its blood or brains. The terms ``import,'' 
``person,'' ``State,'' and ``transport'' are also defined.
Sec. 5. Prohibited Acts
    Section 5 enumerates the actions prohibited by the bill. A 
person may not import into the United State, or export from the 
United States, bear viscera or any product, item, or substance 
containing, or labeled or advertised as containing, bear 
viscera. This section also makes it illegal to sell or barter, 
or offer to sell or barter, purchase, possess, transport, 
deliver or receive, in interstate or foreign commerce, bear 
viscera or any product, item or substance containing, or 
labeled or advertised as containing, bear viscera.
    The prohibition on imports is intended to reinforce 
existing laws with similar prohibitions. This is expected to 
reduce the demand for these items in the United States, and 
relieve pressures for poaching in Asia and elsewhere, where 
bear populations are most endangered. The prohibition on 
exports would eliminate a path from the United States to 
foreign markets that are known to trade in bear viscera and 
products containing bear viscera, thereby reducing incentives 
to illegal hunting in the United States to supply those 
markets. The prohibition on interstate commerce is intended to 
ensure that there is consistency among the States with respect 
to the laws governing the trade of bear viscera. Currently, 
bear parts taken illegally in one State may be transported to 
another State, where hunting and trade may be legal, and sold 
for commercial use. This provision would prohibit such 
activities.
Sec. 6. Penalties and Enforcement
    Section 6 provides for fines, penalties and enforcement. A 
person that knowingly violates Section 5 shall be fined under 
title 18 of the United States Code, imprisoned not more than 1 
year, or both. A person that knowingly violates Section 5 may 
be assessed a civil penalty by the Secretary of not more than 
$25,000 for each violation. A civil penalty under this section 
must be assessed, and may be collected, in the manner in which 
a civil penalty is assessed or collected under section 11(a) of 
the Endangered Species Act (16 U.S.C. 1540(a)). Any bear 
viscera, or any product, item, or substance sold, imported, or 
exported, or attempted to be sold, imported, or exported, in 
violation of this section shall be seized and forfeited to the 
United States. Amounts received as penalties or fines under 
this section must be used in accordance with section 6(d) of 
the Lacey Act.
Sec. 7. Discussions Concerning Trade Practices
    Section 7 provides that the Secretary of Interior and the 
Secretary of State shall discuss issues involving trade in bear 
viscera with the appropriate representatives of countries 
trading with the United States that are determined by the 
Secretary and the United States Trade Representative to be the 
leading importers, exporters, or consumers of bear viscera, and 
attempt to establish coordinated efforts with the countries to 
protect bears.
Sec. 8. Report
    Section 8 provides that, not later than 1 year after 
enactment, the Secretary of Interior, in cooperation with 
appropriate State agencies, must submit a report to the 
Committee on Environment and Public Works of the Senate and the 
Committee on Resources of the House of Representatives 
detailing the progress of efforts to end the illegal trade in 
bear viscera.

                                Hearings

    No hearings were held on this bill in the Committee on 
Environment and Public Works.

                      Regulatory Impact Statement

    In compliance with section 11(b) of rule XXVI of the 
Standing Rules of the Senate, the committee makes evaluation of 
the regulatory impact of the reported bill. The reported bill 
will have no regulatory impact. This bill will not have any 
adverse impact 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 S. 1109 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.

                          Legislative History

    S. 1109 was introduced on May 24, 1999, by Senator 
McConnell. No hearings were held on this bill. On Wednesday, 
July 26, 2000, the Committee on Environment and Public Works 
held a business meeting to consider this bill. No amendments 
were offered. The bill was adopted by voice vote with Senators 
Thomas, Crapo and Baucus recorded in opposition.

                          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, September 29, 2000.

Hon. Robert C. Smith, Chairman,
Committee on Environment and Public Works,
U.S. Senate, Washington, DC.

    The Congressional Budget Office has prepared the enclosed 
cost estimate for S. 1109, the Bear Protection Act of 1999.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Deborah 
Reis (for Federal costs), who can be reached at 226-2860, 
Marjorie Miller (for the State and local impact), who can be 
reached at 225-3220, and Lauren Marks (for the private-sector 
impact), who can be reached at 226-2940.
            Sincerely,
                                            Dan L. Crippen.
                              ----------                              


               Congressional Budget Office Cost Estimate

S. 1109 Bear Protection Act of 1999, as ordered reported by the Senate 
        Committee on Environment and Public Works on July 26, 2000
Summary
    Assuming appropriation of the necessary amount, CBO 
estimates that implementing S. 1109 would cost the Federal 
Government about $200,000 in fiscal year 2001 to prepare a 
required report to the Congress. Carrying out other provisions, 
most of which are related to enforcement activities, would have 
no significant impact on the Federal budget. S. 1109 could 
affect both direct spending and receipts; therefore, pay-as-
you-go procedures would apply. The effect of any such changes, 
however, would be minimal and largely offsetting.
    S. 1109 contains an intergovernmental mandate as defined in 
the Unfunded Mandates Reform Act (UMRA), but this mandate would 
impose no significant costs on State, local, or tribal 
governments. Therefore, the threshold established in UMRA ($55 
million per year in 2000, adjusted annually for inflation) 
would not be exceeded. The bill would have no other significant 
impact on the budgets of those governments.
    S. 1109 also would impose private-sector mandates as 
defined by UMRA, but CBO estimates that the direct costs of 
those mandates would not exceed the annual threshold 
established in UMRA ($109 million in 2000, adjusted annually 
for inflation).
Major Provisions
    S. 1109 would prohibit any person from selling, importing, 
exporting, possessing, or transporting products containing (or 
labeled as containing) any substance derived from bear parts. 
The bill would establish both criminal fines and civil 
penalties to be imposed on anyone who violates the prohibition. 
In addition, it would require that products found in the 
possession of violators be seized and forfeited to the United 
States. The bill's fines and product forfeiture provisions are 
similar to those imposed under the Lacey Act, which prohibits 
sales, imports, and other transactions involving endangered 
species. S. 1109 would direct the Secretaries of the Interior, 
the Treasury, and Transportation to enforce the legislation in 
the same manner as they enforce the Endangered Species Act 
(ESA) of 1973. Section 8 would require the U.S. Fish and 
Wildlife Service (USFWS) to submit a report, within 1 year of 
enactment, on the effort to end the illegal trade in bear 
parts.
Estimated Cost to the Federal Government
    Assuming appropriation of the necessary amount, CBO 
estimates that the USFWS would incur costs of about $200,000 to 
prepare the report required by section 8.
    CBO expects that implementing S. 1109 would not increase 
the enforcement responsibilities of Federal agencies because 
they would carry out the legislation in conjunction with a 
number of other very similar laws, such as the ESA. No 
additional enforcement efforts would be necessary except for 
the initial promulgation of regulations by the USFWS in 
consultation with other agencies, such as the Department of 
Health and Human Services.
    S. 1109 could affect revenues from civil and criminal 
fines. CBO estimates, however, that any increase in revenues 
would be less than $500,000 annually. Moreover, such changes 
would be offset by increases in direct spending from the crime 
victims fund (where criminal fines are deposited) or the 
resource management account of the USFWS (where civil fines are 
deposited and used for rewards to informers and other program 
costs).
Pay-As-You-Go Considerations
    The Balanced Budget and Emergency Deficit Control Act sets 
up pay-as-you-go procedures for legislation affecting direct 
spending or receipts. Because S. 1109 could affect both direct 
spending and receipts, pay-as-you-go procedures would apply, 
but CBO estimates that any such effects would not be 
significant.
Estimated Impact on State, Local, and Tribal Governments
    S. 1109 contains an intergovernmental mandate as defined in 
UMRA, because the bill's prohibitions on trade in bear parts 
apply to State and local governments. This mandate would impose 
no significant costs on these governments, however, because 
they do not usually engage in the prohibited activities. The 
bill would have no other significant impact on the budgets of 
State, local, or tribal governments.
Estimated Impact on the Private Sector
    S. 1109 would impose new private-sector mandates as defined 
in UMRA, but CBO estimates that the direct costs of those 
mandates would not exceed the annual threshold established in 
UMRA ($109 million in 2000, adjusted annually for inflation). 
The bill would prohibit the importation, exportation, and 
interstate trade of bear viscera or any product containing such 
bear parts. Under current law, anyone that wishes to import or 
export bear viscera or products containing bear viscera must 
obtain a permit under the Convention on International Trade in 
Endangered Species of Wild Fauna and Flora (CITES). Under S. 
1109, CITES permits would no longer be allowed for the United 
States. Few of the CITES permits granted for the United States 
in the last several years have been for commercial trade. Based 
on information provided by wildlife preservation groups, the 
value of interstate trade in bear parts is small. CBO therefore 
concludes that the direct costs of mandates included within 
this bill would fall well below the threshold established in 
UMRA.

Estimate prepared By: Federal Costs: Deborah Reis (226-2860) 
Impact on State, Local, and Tribal Governments: Marjorie Miller 
(225-3220) Impact on the Private Sector: Lauren Marks (226-
2940).

Estimate approved by: Peter H. Fontaine Deputy Assistant 
Director for Budget Analysis.
              Minority Views of Senators Crapo and Thomas

    The general intent of this legislation is to prevent 
declines in world bear populations, particularly in the United 
States and Asia, by prohibiting the trade of certain bear 
products because it is perceived to encourage the illegal 
taking of bears. The foreign trade of bear viscera, as a result 
of poaching, has clearly had a negative effect on Asian bear 
populations. Reductions in habitat have exacerbated the 
declining viability of bears in Asia. Although the trade of 
bear parts is regulated under CITES (Convention on 
International Trade of Endangered Species of Wild Fauna and 
Flora) by requiring permits for commercial exports, CITES has 
not proved adequate in curbing poaching outside of the United 
States. There is an obvious need to prohibit international 
trade of bear viscera.
    At this time, there is no substantiated need for the 
domestic application of this Act. The U.S. Fish and Wildlife 
Service's Division of Law Enforcement has determined that the 
poaching of American black bears for their gallbladders and 
other parts to supply the demands of the Asian medicinal market 
for these products is not a significant problem and does not 
occur on any large scale. Furthermore, while there is some 
evidence of poaching and commercial trade in bear parts in the 
U.S., American bear populations are generally stable or 
increasing, with the exception of the grizzly bear, which is 
protected by the Endangered Species Act.
    What this Act will do is supercede State law and will 
result in further incremental Federalization of wildlife 
conservation efforts, which are within the primary authority of 
the States. Most States have already addressed this issue by 
explicitly allowing or prohibiting the sale of bear parts. 
Additionally, the Lacey Act allows the Federal Government to 
enforce violations of State laws, thereby ensuring that 
wildlife taken illegally in one State may not be transported 
across State lines to another.
    In 1998, the Environment and Public Works Committee held a 
hearing on the Bear Protection Act and subsequently reported 
out a bill with an amendment that removed the domestic 
prohibition of trade in bear parts. During consideration of the 
bill, the committee agreed that there was a problem with 
international trade in bear parts, and that there was not 
enough information to apply prohibitions to domestic trade. As 
a result, the bill prohibited import and export of bear parts 
and required a study or illegal trade in the United States. 
There is no more evidence today than there was in 1998 that 
suggests the need to ban domestic trade of bear parts.
    The inclusion of the domestic trade provision is the reason 
we oppose this bill. While the prohibition on international 
trade of bear parts is justifiable, the facts simply do not 
support the need to override State laws by banning domestic 
trade of bear viscera.
                        Changes in Existing Law

    Section 12 of rule XXVI of the Standing Rules of the 
Senate, provides that reports to the Senate should show changes 
in existing law made by the bill as reported. Passage of this 
bill will make no changes to existing law.

                                  
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