[House Report 116-249]
[From the U.S. Government Publishing Office]
116th Congress } { Rept. 116-249
HOUSE OF REPRESENTATIVES
1st Session } { Part 1
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ALBATROSS AND PETREL CONSERVATION ACT
_______
October 22, 2019.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Grijalva, from the Committee on Natural Resources, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 1305]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 1305) to implement the Agreement on the
Conservation of Albatrosses and Petrels, and for other
purposes, having considered the same, reports favorably thereon
without amendment and recommends that the bill do pass.
Purpose of the Bill
The purpose of H.R. 1305 is to implement the Agreement on
the Conservation of Albatrosses and Petrels.
Background and Need for Legislation
Albatrosses and petrels are among the most endangered
species of migratory seabirds in the world. Their long
migratory ranges, spanning most of the globe, and their
dependence on coastal and marine habitat, have resulted in
numerous threats to their populations from interactions with
fishing gear, introduced predators and invasive species,
disease, land use changes, and disturbance of nesting sites.
Longline and trawl fishing pose grave threats to many
species of albatrosses and petrels. According to a 2011
literature review, potentially more than 320,000 seabirds per
year are caught as bycatch by commercial longline-fishing.\1\
Foreign longline fleets such as the Japanese tuna fleet (20,000
birds per year, mostly albatross) and Spanish longline fishing
fleets (56,000 birds per year, mostly shearwaters) are some of
the worst offenders, although Japan has improved its bycatch
avoidance measures in recent years.\2\
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\1\Orea R.J. Anderson et al., Global Seabird Bycatch in Longline
Fisheries, 14 Endangered Species Res. 91, 91 (2011), https://www.int-
res.com/articles/esr_oa/n014p091.pdf.
\2\Id. at 99, 100, 102.
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Countries throughout the migratory range of albatrosses and
petrels have taken steps to protect these species,\3\ but given
the broad migratory ranges and patchwork of protective
measures, there is a need for international cooperation in the
conservation of these migratory birds.
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\3\See, e.g., Danielle Hall, Saving Albatross Lives with Bird
Scaring Lines, Smithsonian: Ocean (Aug. 2017), https://ocean.si.edu/
ocean-life/seabirds/saving-albatross-lives-bird-scaring-lines.
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The Agreement on the Conservation of Albatrosses and
Petrels\4\ (ACAP) is a multilateral treaty that coordinates
conservation efforts for threatened and endangered albatross
and petrel species. The treaty applies to 31 species of
seabirds: 22 species of albatrosses, seven petrel species, and
two species of shearwaters:\5\ three of these species are
Critically Endangered, eight are Endangered, ten are
Vulnerable, seven are Near Threatened, and only three are Least
Concern according to the IUCN Red List.\6\ ACAP was opened for
signature in 2001 and entered into force in 2004. Thirteen
countries are parties to the agreement.
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\4\Agreement on the Conservation of Albatrosses and Petrels, opened
for signature June 19, 2001, [2004] A.T.S. 5, https://www.acap.aq/en/
acap-agreement/206-agreement-on-the-conservation-of-albatrosses-and-
petrels/file.
\5\Id. annex I. (The treaty categorizes the two shearwaters
(Ardenna creatopus and Puffinus mauretanicus) as petrels.)
\6\See Int'l Union for Conservation of Nature & Nat. Res., The IUCN
Red List of Threatened Species, https://www.iucn.org/resources/
conservation-tools/iucn-red-list-threatened-species (last visited Oct.
4, 2019).
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The United States has not ratified ACAP; therefore, the
United States sends an observer to ACAP meetings who cannot
vote on amendments to the agreement. Ratification of ACAP has
enjoyed support from both Republican and Democratic
administrations: the State Department under George W. Bush
transmitted ACAP to the U.S. Senate on September 26, 2008,\7\
and the treaty remained a priority of the Obama administration.
However, the Senate has yet to vote to ratify the agreement.
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\7\S. Treaty Doc. No. 110-22 (2008), https://www.congress.gov/110/
cdoc/tdoc22/CDOC-110tdoc22.pdf.
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Although most species of albatrosses and petrels do not
appear in U.S. waters, the Endangered Species Act listed short-
tailed albatross (Phoebastria albatrus) is found in the North
Pacific. U.S. fisheries have made great progress in
implementing seabird bycatch avoidance measures and reducing
the number of albatrosses caught in longline fishing
operations.\8\ In 2013, the Pacific Fisheries Management
Council adopted seabird bycatch mitigation recommendations that
have resulted in those fishing operations rarely catching
short-tailed albatross.\9\
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\8\See, e.g., Edward F. Melvin et al., Lessons from Seabird
Conservation in Alaskan Longline Fisheries, 33 Conservation Biology 842
(2019).
\9\Thomas P. Good et al., Nat'l Marine Fisheries Serv., Observed
and Estimated Bycatch of Short-Tailed Albatross in U.S. West Coast
Groundfish Fisheries 2014-2015 (2017), https://www.pcouncil.org/wp-
content/uploads/2017/03/F5a_NMFS_Rpt6_ElectricOnly
_STAL_bycatch_report_2017_Apr2017BB.pdf.
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The Albatross and Petrel Conservation Act would serve as
the implementing legislation for ACAP by authorizing the
Secretary of the Interior and the Secretary of Commerce to
promulgate regulations that would promote the reestablishment
of albatross and petrel populations, control the threats to the
birds and their breeding sites, promote scientific research,
develop and promote bycatch avoidance measures, and encourage
data sharing and cooperation with other countries for the
conservation of the protected birds. It would also protect the
listed bird species from fishing on the high seas.
Committee Action
H.R. 1305 was introduced on February 15, 2019, by
Representative Alan S. Lowenthal (D-CA). The bill was referred
to the Committee on Natural Resources and, in addition, to the
Committee on Foreign Affairs. The former Committee referred the
bill to the Subcommittee on Water, Oceans, and Wildlife. On
March 26, 2019, the Subcommittee met to consider the bill. On
June 19, 2019, the Natural Resources Committee met to consider
the bill. The Subcommittee was discharged by unanimous consent.
No amendments were offered. The bill was ordered favorably
reported to the House of Representatives by a roll call vote of
21 yeas and 12 nays, as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Hearings
For the purposes of section 103(i) of H.Res. 6 of the 116th
Congress--the following hearing was used to develop or consider
H.R. 1305: legislative hearing by the Subcommittee on Water,
Oceans, and Wildlife held on March 26, 2019.
Section-by-Section Analysis
Title I--Conservation Measures
Section 101: Reestablishment of species. This section
authorizes the Department of the Interior (DOI), including the
U.S. Fish and Wildlife Service (FWS), in consultation with the
Secretary of Commerce, to carry out activities that reestablish
albatrosses and petrels within their range.
Section 102: Management of nonnative species. This section
authorizes DOI and the Department of Commerce (Commerce),
including the National Marine Fisheries Service (NMFS), to
prevent, eradicate, and control invasive and nonnative species
that have a detrimental effect on albatrosses and petrels.
These activities may include efforts regarding management
plans, research and development of management techniques,
regional assessments, decision-support tools, rapid response,
mapping, and education.
Section 103: Habitat conservation and restoration. This
section utilizes authorities under other laws such as the
Migratory Bird Conservation Act to authorize DOI to conserve,
protect, and restore breeding sites. Similarly, Commerce would
be authorized to conserve and protect marine habitat important
to albatrosses and petrels under the National Marine
Sanctuaries Act and the Magnuson-Stevens Act.
Section 104: Management of human activities. This section
authorizes research on the impacts of marine debris and
pollutants on albatrosses and petrels. It also authorizes DOI
and Commerce to develop methods and regulations in coordination
with the U.S. Coast Guard to prevent, minimize, or mitigate the
taking and disturbance of albatrosses and petrels by fishing
operations both in U.S. waters and on the high seas. Commerce
would be authorized to develop and undertake measures to
minimize bycatch of albatrosses and petrels.
Section 105: Education and public awareness. This section
authorizes transparent data sharing of the status of and
threats to albatrosses and petrels and any actions taken under
ACAP, working with other countries to develop training programs
and materials, and training personnel tasked with implementing
this Act.
Title II--Prohibited Acts, Permits, and Exemptions
Section 201: Prohibited Acts. This section prohibits the
take or attempted take of albatrosses and petrels, as defined
under the Migratory Bird Treaty Act.
Section 202: Authorization of take. This section allows DOI
to authorize the direct or incidental take of albatrosses and
petrels through a permit or regulation. These authorizations
would be limited in area and duration, may not negatively
impact the conservation status of the birds, and may not
authorize activities otherwise prohibited by other statutes or
regulations. Access to breeding sites permitted under the bill
must minimize disturbance to the albatrosses and petrels and
their habitats.
Section 203: Exemption. This section exempts military
activities from the take provisions of the bill. DOI, in
consultation with Commerce and the Department of Defense, may
issue guidance for minimizing take incidental to military
activities. If bycatch avoidance measures developed under
Section 104 are carried out, any bycatch of albatrosses and
petrels incidental to otherwise lawful fishing activities would
be exempt from penalties.
Title III--Penalties and Enforcement
Section 301: Enforcement. This section authorizes the
enforcement of the bill subject to the same enforcement and
penalties provisions of the Magnuson-Stevens Act and the
Migratory Bird Treaty Act.
Title IV--Agreement Authority
Section 401: Agreement Authority. This section designates
FWS and NMFS as the authority to undertake, monitor, and
control activities carried out under the bill and ACAP, and to
designate a representative to ACAP.
Section 402: Reporting. This section requires a report to
Congress every four years from DOI on the status of the covered
albatross and petrel species and any actions and measures taken
to conserve them.
Section 403: General Coordination. This section directs DOI
and Commerce to work together and with other agencies, as
appropriate, to carry out this Act.
Title V--International Cooperation and Assistance
Section 501: Cooperation among nations. This section
authorizes DOI, Commerce, and the State Department to cooperate
with other countries for the conservation of albatrosses and
petrels, including by developing data sharing systems,
exchanging strategies for enforcement and management practices,
implementing educational programs, developing public
information programs, developing conservation techniques,
exchanging best practices, and entering into cooperative
agreements. DOI and Commerce may also provide training,
technical, and financial support to assist in implementing
ACAP.
Title VI--Bycatch and Equivalent Conservation
Section 601: Protected living marine resources. This
section amends the High Seas Driftnet Fishing Moratorium
Protection Act to include the species protected by the bill.
Title VII--Miscellaneous Provisions
Section 701: Regulatory authority. This section gives
authority to the Secretary of the Interior and the Secretary of
Commerce to issue regulations to carry out the bill.
Section 702: Administration. This section clarifies that
nothing in the bill repeals, supersedes, overrides, or modifies
any other federal law. It also clarifies that the Secretary of
Commerce and the Secretary of Interior cannot carry out
activities in the land or waters subject to the jurisdiction of
the other unless the one with jurisdiction agrees. In areas
without a clear jurisdiction, the two departments shall carry
out the Act in consultation with one another.
Section 703: Effective date. The bill would take effect 180
days after it is enacted into law.
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources oversight findings and
recommendations are reflected in the body of this report.
Compliance With House Rule XIII and
Congressional Budget Act
1. Cost of Legislation and the Congressional Budget Act.
With respect to the requirements of clause 3(c)(2) and (3) of
rule XIII of the Rules of the House of Representatives and
sections 308(a) and 402 of the Congressional Budget Act of
1974, the Committee has received the following estimate for the
bill from the Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 20, 2019.
Hon. Raul M. Grijalva,
Chairman, Committee on Natural Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1305, the
Albatross and Petrel Conservation Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Janani
Shankaran.
Sincerely,
Phillip L. Swagel,
Director.
Enclosure.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
H.R. 1305 would authorize the U.S. Fish and Wildlife
Service (USFWS) and the National Oceanic and Atmospheric
Administration (NOAA) to carry out activities--like controlling
invasive species and researching pollutants--intended to
conserve and protect albatrosses and petrels. The bill also
would direct USFWS and NOAA to designate officials to attend
meetings of the international Agreement on the Conservation of
Albatrosses and Petrels.
Using existing authority, USFWS and NOAA are already
carrying out several activities authorized and required under
H.R. 1305. However, CBO expects that implementing the bill
could increase the number of albatross and petrel species under
federal protection. On that basis, CBO estimates that any costs
to implement H.R. 1305 would be insignificant over the 2019-
2024 period; any spending would be subject to the availability
of appropriated funds.
Enacting H.R. 1305 could increase revenues and associated
direct spending from civil and criminal penalties collected
under the Migratory Bird Treaty Act and the Magnuson-Stevens
Fishery Conservation and Management Act. CBO expects that
additional violations of those acts would occur infrequently
and we estimate that the net effect on the deficit would be
negligible over the 2019-2029 period.
The CBO staff contact for this estimate is Janani
Shankaran. The estimate was reviewed by H. Samuel Papenfuss,
Deputy Assistant Director for Budget Analysis.
2. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goals and
objectives of this bill is to implement the Agreement on the
Conservation of Albatrosses and Petrels.
Earmark Statement
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
Unfunded Mandates Reform Act Statement
This bill contains no unfunded mandates.
Existing Programs
This bill does not establish or reauthorize a program of
the federal government known to be duplicative of another
program.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Preemption of State, Local, or Tribal Law
Any preemptive effect of this bill over state, local, or
tribal law is intended to be consistent with the bill's
purposes and text and the Supremacy Clause of Article VI of the
U.S. Constitution.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
HIGH SEAS DRIFTNET FISHING MORATORIUM PROTECTION ACT
* * * * * * *
TITLE VI--DRIFTNET MORATORIUM
* * * * * * *
SEC. 610. EQUIVALENT CONSERVATION MEASURES.
(a) Identification.--The Secretary shall identify, and list
in the report under section 607--
(1) a nation if--
(A) fishing vessels of that nation are
engaged, or have been engaged during the
preceding 3 years in fishing activities or
practices--
(i) in waters beyond any national
jurisdiction that result in bycatch of
a protected living marine resource; or
(ii) beyond the exclusive economic
zone of the United States that result
in by catch of a protected living
marine resource shared by the United
States;
(B) the relevant international organization
for the conservation and protection of such
resources or the relevant international or
regional fishery organization has failed to
implement effective measures to end or reduce
such bycatch, or the nation is not a party to,
or does not maintain cooperating status with,
such organization; and
(C) the nation has not adopted a regulatory
program governing such fishing practices
designed to end or reduce such bycatch that is
comparable to that of the United States, taking
into account different conditions.
(2) a nation if--
(A) fishing vessels of that nation are
engaged, or have been engaged during the
preceding 3 years, in fishing activities or
practices in waters beyond any national
jurisdiction that target or incidentally catch
sharks; and
(B) the nation has not adopted a regulatory
program to provide for the conservation of
sharks, including measures to prohibit removal
of any of the fins of a shark (including the
tail) and discarding the carcass of the shark
at sea, that is comparable to that of the
United States, taking into account different
conditions.
(b) Consultation and Negotiation.--The Secretary, acting
through the Secretary of State, shall--
(1) notify, as soon as possible, the President and
nations that have been identified under subsection (a),
and also notify other nations whose vessels engage in
fishing activities or practices described in subsection
(a), about the provisions of this section and this Act;
(2) initiate discussions as soon as possible with all
foreign governments which are engaged in, or which have
persons or companies engaged in, fishing activities or
practices described in subsection (a), for the purpose
of entering into bilateral and multilateral treaties
with such countries to protect such species;
(3) seek agreements calling for international
restrictions on fishing activities or practices
described in subsection (a) through the United Nations,
the Food and Agriculture Organization's Committee on
Fisheries, and appropriate international fishery
management bodies; and
(4) initiate the amendment of any existing
international treaty for the protection and
conservation of such species to which the United States
is a party in order to make such treaty consistent with
the purposes and policies of this section.
(c) Conservation Certification Procedure.--
(1) Determination.--The Secretary shall establish a
procedure consistent with the provisions of subchapter
II of chapter 5 of title 5, United States Code, for
determining whether the government of a harvesting
nation identified under subsection (a) and listed in
the report under section 607--
(A) has provided documentary evidence of the
adoption of a regulatory program governing the
conservation of the protected living marine
resource that is comparable to that of the
United States, taking into account different
conditions, and which, in the case of pelagic
longline fishing, includes mandatory use of
circle hooks, careful handling and release
equipment, and training and observer programs;
and
(B) has established a management plan
containing requirements that will assist in
gathering species-specific data to support
international stock assessments and
conservation enforcement efforts for protected
living marine resources.
(2) Procedural requirement.--The procedure
established by the Secretary under paragraph (1) shall
include notice and opportunity for comment by any such
nation.
(3) Certification.--The Secretary shall certify to
the Congress by January 31, 2007, and biennially
thereafter whether each such nation has provided the
documentary evidence described in paragraph (1)(A) and
established a management plan described in paragraph
(1)(B).
(4) Alternative procedure.--The Secretary may
establish a procedure to authorize, on a shipment-by-
shipment, shipper-by-shipper, or other basis the
importation of fish or fish products from a vessel of a
nation issued a negative certification under paragraph
(1) if the Secretary determines that such imports were
harvested by practices that do not result in bycatch of
a protected marine species, or were harvested by
practices that--
(A) are comparable to those of the United
States, taking into account different
conditions; and
(B) include the gathering of species specific
data that can be used to support international
and regional stock assessments and conservation
efforts for protected living marine resources.
(5) Effect of certification.--The provisions of
section101(a) and section 101(b)(3) and (4) of this Act
(16 U.S.C. 1826a(a), (b)(3), and (b)(4)) (except to the
extent that such provisions apply to sport fishing
equipment or fish or fish products not caught by the
vessels engaged in illegal, unreported, or unregulated
fishing) shall apply to any nation identified under
subsection (a) for which the Secretary has issued a
negative certification under this subsection, but shall
not apply to any nation identified under subsection (a)
for which the Secretary has issued a positive
certification under this subsection.
(d) International Cooperation and Assistance.--To the
greatest extent possible consistent with existing authority and
the availability of funds, the Secretary shall--
(1) provide appropriate assistance to nations
identified by the Secretary under subsection (a) and
international organizations of which those nations are
members to assist those nations in qualifying for
certification under subsection (c);
(2) undertake, where appropriate, cooperative
research activities on species statistics and improved
harvesting techniques, with those nations or
organizations;
(3) encourage and facilitate the transfer of
appropriate technology to those nations or
organizations to assist those nations in qualifying for
certification under subsection (c); and
(4) provide assistance to those nations or
organizations in designing and implementing appropriate
fish harvesting plans.
(e) Protected Living Marine Resource Defined.--In this
section the term ``protected living marine resource''--
[(1) means non-target fish, sea turtles, or marine
mammals that are protected under United States law or
international agreement, including the Marine Mammal
Protection Act, the Endangered Species Act, the Shark
Finning Prohibition Act, and the Convention on
International Trade in Endangered Species of Wild Flora
and Fauna; but]
(1) except as provided in paragraph (2), means
nontarget fish, sea turtles, seabirds, or marine
mammals that are protected under United States law or
international agreement, including--
(A) the Marine Mammal Protection Act of 1972
(16 U.S.C. 1361 et seq.);
(B) the Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.);
(C) the Shark Finning Prohibition Act (16
U.S.C. 1822 note; Public Law 106-557),
including amendments made by that Act;
(D) the Convention on International Trade in
Endangered Species of Wild Fauna and Flora,
done at Washington March 3, 1973 (27 UST 1087,
TIAS 8249); and
(E) the Albatross and Petrel Conservation
Act; but
(2) does not include species, except sharks, managed
under the Magnuson-Stevens Fishery Conservation and
Management Act, the Atlantic Tunas Convention Act, or
any international fishery management agreement.
(f) Authorization of Appropriations.--There are authorized to
be appropriated to the Secretary for fiscal years 2007 through
2013 such sums as are necessary to carry out this section.
* * * * * * *
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
DISSENTING VIEWS
H.R. 1305 aims to implement an international agreement on
the conservation of albatross and petrels which entered into
force in 2004.\1\ Therein lies the issue and irony of this
legislation: it grants federal agencies the authority to
implement an international agreement to which the United States
is not a signatory.\2\
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\1\https://www.acap.ag/index.php/resources/education/1078-about-
acap?lang=en.
\2\Argentina, Australia, Brazil, Chile, Ecuador, France, New
Zealand, Norway, Peru, South Africa, Spain, United Kingdom, Uruguay:
https://www.acap.ag/en/resources/parties-to-acap.
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As this is a multilateral agreement, U.S. participation can
be granted by the Senate accession to the agreement
demonstrated by passing enabling legislation. On September 26,
2008, the Bush Administration transmitted the agreement to the
Senate for consideration.\3\ The Senate has not passed an
enabling law to date, although bills have been introduced in
the House the last three Congresses.\4\
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\3\https://www.state.gov/e/oes/ocns/opalbiodiversity/seabirds/.
\4\H.R. 1305 (116th Cong.), H.R. 5763 (115th Cong.), and H.R. 4480
(114th Cong.).
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Proponents of this legislation have stated that joining the
international agreement would require ``no expenditure and no
new regulations''.\5\ However the legislation clearly lays out
a path to additional regulation under section 701 of the bill,
titled ``regulatory authority.'' In addition, section 501 of
this legislation authorizes the Secretary to ``provide
training, technical, and financial support to the Secretariat,
other international and intergovernmental organizations, and
other countries . . .''\6\
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\5\https://www.audubon. org/magazine/may-june-2016/how-congress-
can-protect-seabirds-one-simple.
\6\H.R. 1305, Title V--International Cooperation and Assistance,
Sec. 501 (b). 116th Congress.
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Most concerning is that the Democrat Majority failed to
solicit testimony from the departments of State, Commerce, or
Interior on this legislation--even though they would be charged
with carrying out any international obligations that would
accompany the United States being a formal party to this
agreement.
Ultimately, this legislation is putting the cart before the
horse by implementing an agreement to which this Nation has not
yet agreed. Even if we were to agree, this legislation would be
unnecessary. Should the Senate choose to make the United States
a signatory to this agreement, the federal agencies that tasked
with implementing this agreement have existing authority under
the Migratory Bird Treaty Act and the Magnuson-Stevens Fishery
Conservation and Management Act.
Tom McClintock.
[all]