[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.