[Senate Report 108-313]
[From the U.S. Government Publishing Office]
Calendar No. 671
108th Congress Report
SENATE
2d Session 108-313
======================================================================
MIGRATORY BIRD TREATY REFORM ACT OF 2004
_______
August 25, 2004.--Ordered to be printed
Filed, under authority of the order of the Senate of July 22, 2004
_______
Mr. Inhofe, from the Committee on Environment and Public Works,
submitted the following
R E P O R T
[To accompany S. 2547]
[Including cost estimate of the Congressional Budget Office]
The Committee on Environment and Public Works, to which was
referred a bill (S. 2547) to amend the Migratory Bird Treaty
Act to exclude non-native migratory bird species from the
application of that Act, and for other purposes, having
considered the same, reports favorably thereon without
amendment and recommends that the bill do pass.
General Statement and Background
In 1916, the United States and Great Britain (for Canada)
signed a treaty known as the Convention for the Protection of
Migratory Birds. The fundamental goal of this agreement was to
establish a framework for the protection and conservation of
migratory birds, or birds that seasonally migrate between the
member nations. Under the treaty, unless and except as
permitted by regulations, it is unlawful at any time to
``pursue, hunt, take, capture, kill, possess, offer for sale,
sell, offer to barter, barter, offer to purchase, purchase,
deliver for shipment, export, import any migratory bird, any
part, nest, or egg of such bird . . . included in the terms of
the Convention between the United States and Great Britain for
the protection of migratory birds''. Since the original
convention with Great Britain, the United States has signed
similar conventions with Japan, Mexico and the Russian
Federation.
In 1918, Congress passed the Migratory Bird Treaty Act (16
U.S.C. 703 et seq.) to implement the first Convention for the
Protection of Migratory Birds. This Act became the domestic law
implementing all of the International Migratory Bird
Conventions and it committed the United States to the
protection and management of migratory birds. In addition, the
Act gave the U.S. Fish and Wildlife Service the authority to
develop regulations on the harvest or taking of migratory game
birds.
The conventions with Japan and Russia clearly list
individual species of birds that are protected. By contrast,
the conventions with Canada and Mexico introduce some confusion
by merely listing protected families of birds: the conventions
do not expressly state whether they apply to all species within
the designated families or just to those species that are
native to the territory of the parties. Under the Convention
for the Protection of Migratory Birds, the term ``migratory
bird'' includes a number of families of birds such as Anatidae,
Gruidae, Rallidae, Limicolae, and Columbidae. Specifically,
covered native species include brants, coots, cormorants,
crows, gallinules, geese, gulls, mourning doves, rails, robins,
snipes, swans, white-winged doves, whooping cranes, wild
pigeons, wild species of ducks, and woodcocks. This is,
however, not a complete list of protected bird species.
The Migratory Bird Treaty Act does not define ``migratory''
and includes as specifically protected, on the one hand, many
native species that are not migratory (e.g., blue jays and
crows) while, on the other hand, it leaves unprotected certain
nongame species, such as quail, grouse, and turkey, that do not
migrate. Also, the Migratory Bird Treaty Act does not
specifically make a distinction between native and exotic
species, although the U.S. Fish and Wildlife Service has always
interpreted the Act as applying to native species only. Species
considered ``exotic'' have been intentionally introduced or
have voluntarily moved into North America from other
continents. Examples of exotic bird management challenges
include the mute swan, house sparrow, European starling, rock
dove (pigeon), and the Muscovy duck. It is unclear how the Act
should be interpreted to treat these species.
In the last 30 years, more than 360 non-native bird species
have been recorded in an unrestrained wild state in the United
States due to human intervention. Of this total, 94 are species
that belong to families listed in conventions with Canada or
Mexico. Although most introduced species never become
established in the wild, 16 of the species that belong to
listed families are known to have established self-sustaining
populations. While most of these species have rather restricted
ranges, the mute swan, rock pigeon, English starlings, and
Eurasian collared-dove are more broadly distributed across the
continental United States. These non-native birds, like other
alien species, compete with native birds, damage other natural
resources, and impose economic costs. The introduction of non-
native birds is a growing problem, with additional species
being detected annually.
In a case involving the application of the Migratory Bird
Treaty Act to mute swans (Hill v. Norton), the D.C. Circuit
Court decided that the convention with Canada did not make a
distinction between native and non-native members of the listed
families. According to the court, the reference in the
convention to the swan family meant that the convention applied
to mute swans. This line of reasoning could ultimately result
in the Federal government being required to afford protection
to other non-native species, such as the rock pigeon, Eurasian
collared-dove, and other established species that belong to
treaty families. Like the mute swan, many of these invasive
species are causing harm to the natural and economic resources
of the United States. To the extent that such species are
afforded protection under the Act (and the treaties that it
implements), State and Federal authorities would face
considerable obstacles in their efforts to reduce or eradicate
the populations of such species currently in the United States.
In 2000, the Congress passed the Neotropical Migratory Bird
Conservation Act. The Act provides grants to countries in Latin
America and the Caribbean, and the United States for the
conservation of birds that winter south of the border and
summer in North America. The law creates a competitive grants
program to be administered by the Secretary of the Interior,
through the Director of the U.S. Fish and Wildlife Service. The
law encourages habitat protection, education, researching,
monitoring, and capacity building to provide for the long-term
protection of neotropical migratory birds.
Objectives of the Legislation
Title I of S. 2547 clarifies that the Migratory Bird Treaty
Act's prohibition on taking, killing, or possessing migratory
birds applies only to native migratory bird species whose
occurrence in the United States results from natural biological
or ecological conditions. The legislation also excludes from
coverage under the Migratory Bird Treaty Act bird species
occurring as the result of human-assisted introduction unless
the species: (1) was native to the United States and extant in
1918; (2) became extinct throughout its range thereafter; and
(3) was reintroduced as part of a Federal program. The proposed
change is also consistent with Executive Order 13112 (Invasive
Species), which directs the Federal government to ``prevent the
introduction of invasive species and provide for their control
and to minimize the economic, ecological, and human health
impacts that invasive species cause.''
Title II of S. 2547 authorizes a total of $35 million for
the Neotropical Migratory Bird Conservation Fund for fiscal
years 2005 through 2008. The Fund supports a matching grants
program under the U.S. Fish and Wildlife Service to fund
projects that promote the conservation of birds that migrate
beyond the borders of the United States. At least 75 percent of
the funds must be spent for projects outside of the United
States and the non-Federal match is lowered from 3:1 to 1:1 to
allow greater participation. Projects in the United States and
Caribbean have traditionally been eligible for these grants.
The Migratory Bird Treaty Reform Act would extend the program
to projects in Canada as well any fiscal year where amounts
appropriated for the program exceed $10 million. There is also
an increase from $80,000 to $150,000 for administrative
expenses.
Title II will assist in addressing persistent threats to
neotropical migratory birds during their breeding and migration
in North America as well as their migration and over-wintering
in Latin America and the Caribbean.
Section-by-Section Analysis
TITLE I - EXCLUSION OF NON-NATIVE SPECIES FROM MIGRATORY BIRD TREATY
ACT
Sec. 101. Short Title
This section provides that this Act may be cited as the
``Migratory Bird Treaty Reform Act of 2004.''
Sec. 102. Exclusion of Non-Native Species from Application of Certain
Prohibitions Under Migratory Bird Treaty Act.
This section amends section 2 of the Migratory Bird Treaty
Act clarifying that the Migratory Bird Treaty Act's prohibition
on taking, killing, or possessing migratory birds applies only
to native migratory bird species whose occurrence in the United
States results from natural biological or ecological
conditions. This section also excludes from coverage under the
Migratory Bird Treaty Act bird species occurring as the result
of human-assisted introduction unless the species: (1) was
native to the United States and extant in 1918; (2) became
extinct throughout its range thereafter; and (3) was
reintroduced as part of a Federal program.
Sec. 103. Publication of List.
This section asks the Secretary of Interior to publish in
the Federal Register no later than 90 days after enactment a
list of all non-native, human-introduced bird species to which
the Migratory Bird Treaty Act does not apply. This section asks
the Secretary to provide adequate time for public comment
before the list is published.
TITLE II - CONSERVATION OF NEOTROPICAL MIGRATORY BIRDS
Sec. 201. Short Title
This section provides that this Act may also be cited as
the ``Neotropical Migratory Bird Conservation Improvement Act
of 2004.''
Sec. 202. Amendments to Neotropical Migratory Bird Conservation Act.
This section authorizes $5 million each for fiscal years
2005 and 2006; $10 million for fiscal year 2007; and $15
million for fiscal year 2008 for the Neotropical Migratory Bird
Conservation Fund. The Fund supports a matching grants program
under the U.S. Fish and Wildlife Service to fund projects that
promote the conservation of birds that migrate beyond the
borders of the United States. At least 75 percent of the funds
must be spent outside of the United States and the non-Federal
match is 1 to 1. Projects in the United States and Caribbean
have traditionally been eligible for these grants. This section
would extend the program to projects in Canada as well in any
fiscal year where amounts appropriated for the program exceed
$10 million. There is a slight increase to $150,000 for
administrative expenses.
Legislative History
On June 18, 2004, Senator George Voinovich introduced S.
2547, which was cosponsored by Senator Michael Crapo. The bill
was referred to the Senate Committee on Environment and Public
Works. A full committee business meeting was held on June 23,
2004, and the committee ordered S. 2547 to be reported to the
full Senate.
Hearings
There were no hearings held on S. 2547 during the 108th
Congress.
Rollcall Votes
The Committee on Environment and Public Works met to
consider S. 2547 on June 23, 2004. The committee voted
favorably to report S. 2547 by voice vote without amendments.
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 bill does not create any additional regulatory burdens,
nor will it cause 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. 2547 would not
impose Federal intergovernmental unfunded mandates on State,
local, or tribal governments.
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:
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CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
S. 2547 Migratory Bird Treaty Reform Act of 2004, as ordered reported
by the Senate Committee on Environment and Public Works on June
23, 2004.
Summary
S. 2547 would amend the Migratory Bird Treaty Act to
clarify that only species that are native to the United States
are protected under that act, which governs the conservation of
migratory birds. Title II of the bill would reauthorize funding
for projects carried out under the Neotropical Migratory Bird
Conservation Act through fiscal year 2008. (The current
authorization to fund this program expires after fiscal year
2005.) The Secretary of the Interior uses this funding
primarily to help finance research and conservation programs in
North and South America.
Assuming appropriation of the authorized amounts, CBO
estimates that implementing title II would cost $30 million
over the 2006-2009 period. We estimate that enacting title I
would have no significant effect on the Federal budget.
Enacting the legislation would not affect direct spending or
revenues. S. 2547 contains no intergovernmental or private-
sector mandates as defined in the Unfunded Mandates Reform Act
(UMRA) and would impose no costs on State, local, or tribal
governments.
Estimated Cost to the Federal Government
The estimated budgetary impact of S. 2547 is shown in the
following table. For this estimate, CBO assumes that the entire
amounts authorized by the bill will be appropriated for each
fiscal year. Outlay estimates are based on recent spending
patterns for conservation programs. The cost of this
legislation falls within budget function 300 (natural resources
and environment).
By Fiscal Year, in Millions of Dollars
----------------------------------------------------------------------------------------------------------------
2004 2005 2006 2007 2008 2009
----------------------------------------------------------------------------------------------------------------
SPENDING SUBJECT TO APPROPRIATION
Spending Under Current Law for Neotropical Bird Conservation
Programs:......................................................
Authorization Level\1\...................................... 4 5 0 0 0 0
Estimated Outlays........................................... 4 5 1 0 0 0
Proposed Changes:...............................................
Authorization Level......................................... 0 0 5 10 15 0
Estimated Outlays........................................... 0 0 4 7 10 9
Spending Under S. 2547 for Neotropical Bird Conservation
Programs:......................................................
Authorization Level\1\...................................... 4 5 5 10 15 0
Estimated Outlays........................................... 4 5 5 7 10 9
----------------------------------------------------------------------------------------------------------------
\1\The 2004 level is the amount appropriated for that year for neotropical migratory bird conservation. The 2005
level is the amount authorized under current law.
Intergovernmental and Private-Sector Impact
S. 2547 contains no intergovernmental or private-sector
mandates as defined in UMRA and would impose no costs on State,
local, or tribal governments.
Previous CBO Estimate
On May 27, 2004, CBO transmitted a cost estimate for H.R.
4114, the Migratory Bird Treaty Reform Act of 2004, as ordered
reported by the House Committee on Resources on May 5, 2004.
H.R. 4114 and S. 2547 are very similar, and the estimated costs
of the two pieces of legislation are identical.
Estimate Prepared By: Federal Costs: Deborah Reis; Impact on
State, Local, and Tribal Governments: Marjorie Miller; Impact
on the Private Sector: Karen Raupp.
Estimate Approved By: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
[Chapter 128, Approved July 3, 1918, 40 Stat. 703]
MIGRATORY BIRD TREATY ACT
CHAP. 128.--An Act to give effect to the conventions between the United
States and other nations for the protection of migratory birds, birds
in danger of extinction, game mammals, and their environment.
* * * * * * *
Sec. 2. [That unless and except as permitted](a) In
General.--Unless and except as permitted by regulations made as
hereinafter provided, it shall be unlawful at any time, by any
means or in any manner, to pursue, hunt, take, capture, kill,
attempt to take, capture, or kill, possess, offer for sale,
sell, offer to barter, barter, offer to purchase, purchase,
deliver for shipment, ship, export, import, cause to be
shipped, exported, or imported, deliver for transportation,
transport or cause to be transported, carry or cause to be
carried, or receive for shipment, transportation, carriage, or
export, any migratory bird, any part, nest, or egg of any such
bird, or any product, whether or not manufactured, which
consists, or is composed in whole or part, of any such bird or
any part, nest, or egg thereof, included in the terms of the
conventions between the United States and Great Britain for the
protection of migratory birds concluded August 16, 1916, the
United States and the United Mexican States for the protection
of migratory birds and game mammals concluded February 7, 1936,
the United States and the Government of Japan for the
protection of migratory birds and birds in danger of
extinction, and their environment concluded March 4, 1972 and
the convention between the United States and the Union of
Soviet Socialist Republics for the conservation of migratory
birds and their environments concluded November 19, 1976.
(b) Limitation on Application to Introduced Species.--
(1) In general.--This section applies only to
migratory bird species that are native to the United
States the occurrence of which in the United States is
entirely the result of natural biological or ecological
conditions.
(2) Treatment of introduced species.--For purposes
of paragraph (1)--
(A) a bird species shall not be treated as
native to the United States if the species
occurs in the United States solely as a result
of intentional or unintentional human-assisted
introduction; and
(B) a migratory bird species shall be
treated as native to the United States if--
(i) the species was native to the
United States and extant in 1918;
(ii) the species was extirpated
after 1918 throughout its range in the
United States; and
(iii) after such extirpation, the
species was reintroduced in the United
States as a part of a program carried
out by a Federal agency.
* * * * * * *
----------
[Public Law 106-247]
NEOTROPICAL MIGRATORY BIRD CONSERVATION ACT
An Act to require the Secretary of the Interior to establish a program
to provide assistance in the conservation of neotropical migratory
birds
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Neotropical Migratory Bird
Conservation Act''.
SEC. 2. FINDINGS.
Congress finds that--
(1) of the nearly 800 bird species known to occur
in the United States, approximately 500 migrate among
countries, and the large majority of those species, the
neotropical migrants, winter in Latin America and the
Caribbean, but breed in Canada and the United States;
* * * * * * *
SEC. 4. DEFINITIONS.
In this Act:
[(1) Account.--The term ``Account'' means the
Neotropical Migratory Bird Conservation Account
established by section 9(a).]
(1) Caribbean.--The term ``Caribbean'' includes
Puerto Rico and the United States Virgin Islands.
(2) Conservation.--The term ``conservation'' means
the use of methods and procedures necessary to bring a
species of neotropical migratory bird to the point at
which there are sufficient populations in the wild to
ensure the long-term viability of the species,
including--
(A) protection and management of
neotropical migratory bird populations;
(B) maintenance, management, protection,
and restoration of neotropical migratory bird
habitat;
(C) research and monitoring;
(D) law enforcement; and
(E) community outreach and education.
(3) Fund.--The term ``Fund'' means the Neotropical
Migratory Bird Conservation Fund established by section
9(a).
[(3)](4) Secretary.--The term ``Secretary'' means
the Secretary of the Interior.
* * * * * * *
SEC. 5. FINANCIAL ASSISTANCE.
(a) * * *
* * * * * * *
(e) Cost Sharing.--
(1) Federal share.--The Federal share of the cost
of each project shall be not greater than [25
percent]50 percent.
(2) Non-federal share.--
(A) Source.--The non-Federal share required
to be paid for a project shall not be derived
from any Federal grant program.
[(B) Form of payment.--
[(i) Projects in the united
states.--The non- Federal share
required to be paid for a project
carried out in the United States shall
be paid in cash.
[(ii) Projects in foreign
countries.--The non- Federal share
required to be paid for a project
carried out in a foreign country may be
paid in cash or in kind.]
(B) Form of payment.--
(i) Projects in the united states
and canada.--The non-Federal share
required to be paid for a project
carried out in the United States or
Canada shall be paid in cash.
(ii) Projects in latin america and
the caribbean.--The non-Federal share
required to be paid for a project
carried out in Latin America or the
Caribbean may be paid in cash or in
kind.
* * * * * * *
SEC. 8. REPORT TO CONGRESS.
Not later than [October 1, 2002]1 year after the date of
enactment of the Neotropical Migratory Bird Conservation
Improvement Act of 2004,the Secretary shall submit to Congress
a report on the results and effectiveness of the program
carried out under [this Act, including recommendations]this Act
that includes--
(1) recommendations concerning how the Act might be
improved and whether the program should be
continued[.]; and
(2) a description of the activities of the advisory
group convened under section 7(b).
[SEC. 9. NEOTROPICAL MIGRATORY BIRD CONSERVATION ACCOUNT.
[(a) Establishment.--There is established in the
Multinational Species Conservation Fund of the Treasury a
separate account to be known as the ``Neotropical Migratory
Bird Conservation Account'', which shall consist of amounts
deposited into the Account by the Secretary of the Treasury
under subsection (b).
[(b) Deposits Into the Account.--The Secretary of the
Treasury shall deposit into the Account--
[(1) all amounts received by the Secretary in the
form of donations under subsection (d); and
[(2) other amounts appropriated to the Account.]
SEC. 9. NEOTROPICAL MIGRATORY BIRD CONSERVATION FUND.
(a) Establishment.--There is established in the Treasury a
separate account to be known as the `Neotropical Migratory Bird
Conservation Fund', which shall consist of amounts deposited in
the Fund by the Secretary of the Treasury under subsection (b).
(b) Deposits in the Fund.--The Secretary of the Treasury
shall deposit into the Fund--
(1) all amounts received by the Secretary in the
form of donations under subsection (d); and
(2) other amounts appropriated to the Fund.
(c) Use.--
(1) In general.--Subject to paragraph (2), the
Secretary may use amounts in the Account, without
further Act of appropriation, to carry out this Act.
(2) Administrative expenses.--Of amounts in the
Account available for each fiscal year, the Secretary
may expend not more than 3 percent or up to
[$80,000]$150,000, whichever is greater, to pay the
administrative expenses necessary to carry out this
Act.
(d) Acceptance and Use of Donations.--The Secretary may
accept and use donations to carry out this Act. Amounts
received by the Secretary in the form of donations shall be
transferred to the Secretary of the Treasury for deposit into
the [Account]Fund.
SEC. 10. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--There are authorized to be appropriated to
the Fund to carry out this Act--
(1) $5,000,000 for each of fiscal years 2005 and
2006;
(2) $10,000,000 for fiscal year 2007; and
(3) $15,000,000 for fiscal year 2008.
(b) Availability.--Amounts made available under this
section shall remain available until expended.
(c) Allocation.--Of amounts made available under this
section for a fiscal year, not less than 75 percent shall be
expended for projects carried out outside the United States.
(d) Limitation on Expenditures for Projects in Canada.--
Amounts made available under this section for a fiscal year
shall not be used for any project in Canada unless the amount
available to carry out this Act for that fiscal year is greater
than $10,000,000.
* * * * * * *