[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:
                              ----------                              


               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.

           *       *       *       *       *       *       *


                                 
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