S. Rept. 105-281 - 105th Congress (1997-1998)
July 31, 1998, As Reported by the Environment and Public Works Committee

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Senate Report 105-281 - BEAR PROTECTION ACT OF 1998




[Senate Report 105-281]
[From the U.S. Government Printing Office]



                                                       Calendar No. 518
105th Congress                                                   Report
                                 SENATE

 2d Session                                                     105-281
_______________________________________________________________________


 
                      BEAR PROTECTION ACT OF 1998

                                _______
                                

                 July 31, 1998.--Ordered to be printed

_______________________________________________________________________


    Mr. Chafee, from the Committee on Environment and Public Works, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 263]

    The Committee on Environment and Public Works, to which was 
referred the bill (S. 263) to prohibit the import, export, 
sale, purchase, possession, transportation, acquisition, and 
receipt of bear viscera or products that contain or claim to 
contain bear viscera, and for other purposes, having considered 
the same, reports favorably thereon, with an amendment and an 
amendment to the title, and recommends that the bill, as 
amended, 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 
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 recent 
years. Of the eight species of bear, six are on Appendix I of 
the Convention on International Trade of Endangered Species of 
Wild Fauna and Flora (CITES). Only the polar bear and the 
American black 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 
the polar bear is estimated to be between 20,000 and 30,000, 
and the population of the sloth bear is estimated to be 20,000. 
Less 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 Fund 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 reason for these general 
declines, but overharvest is responsible for the precipitous 
drop of some populations in Asia. Overharvest, including 
poaching, has been associated with the commercial trade in bear 
parts, particularly gallbladders and bile used for traditional 
Asian medicine. This use of bear gallbladder dates as far back 
as the seventh century, to treat high fever and convulsions, 
inflammation, burns, hemorrhoids, swelling and pain. Only the 
giant panda, a near relative of both bears and raccoons, and 
the polar bear, are not sought for their gallbladders. 
Gallbladders of pigs, which are similar in appearance to those 
of bears, are sometimes proffered as bear gallbladders, and 
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. Indeed, one recent analysis by Traffic North 
America indicates that the consumer market for bear parts may 
have declined in the last several years. In addition, bear 
``farms'' in China and South Korea support the market for bear 
bile, which has alleviated some of the pressure for overhunting 
of wild bears, although these ``farms'' can have a detrimental 
impact on bear populations if they acquire bears from the wild. 
Even with the reported decline in demand, the commercial value 
on the international market of bear parts, particularly 
viscera, remain high, indicating that these parts are still 
prized, with the potential for demand to rise. Bears already 
endangered would face immediate risks if demand rose, and if 
bear populations in Asia continued to decline, there is a 
possibility that bears elsewhere, such as in the United States, 
would face future risks. These risks warrant continued 
vigilance in the protection of bears, through monitoring and 
precautionary actions.
    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 
illegal 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 control the import and 
export of bear parts and derivatives, ensuring that the 
penalties for violations are sufficient to deter illegal trade, 
and to strengthen measures to control illegal export as well as 
import of bear parts and derivatives. The resolution further 
recommended that Parties and non-party states strengthen the 
dialogue 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 on Appendix I.
    The protection of bears in the United States takes the form 
of both Federal and State legislation. The brown bear, or 
grizzly, is listed as threatened under the Endangered Species 
Act (ESA) in the lower 48 states, but not in Alaska or Canada. 
The polar bear, found in Alaska and Canada, is protected under 
the Marine Mammal Protection Act. The status of the American 
black bear is considered healthy, save for the Louisiana black 
bear, which is listed as threatened under the ESA. In general, 
States are responsible for the management of black bear 
populations, and the regulation of trade in bear parts. 
According to Traffic USA, at present, 16 States explicitly 
allow the sale of bear parts; 29 States prohibit the sale; and 
5 States are silent on the issue. Of the 16 States allowing 
sale, 6 States allow the sale from bears legally taken in that 
State, and 11 States allow the sale from bears legally taken in 
other States. Two of the five States without regulations do not 
have bear populations. Violations of State laws may be enforced 
by the Federal Government pursuant to the Lacey Act.
    While there is anecdotal evidence that poaching and 
commercial trade in bear parts occur in the United States, 
there is little, if any, formal or comprehensive analysis on 
this issue. Nor is there any indication that the poaching or 
commercial trade in the United States is having a detrimental 
effect on U.S. black bear populations. These populations are 
generally stable or increasing. Prosecutions by the Federal 
Government for illegal poaching or trading in bears or bear 
parts indicate two facts: first, some poaching and illegal 
trade do occur; and second, the U.S. Fish and Wildlife Service 
(the Service) maintains a regular enforcement presence with 
respect to illegal shipments of bears and bear parts. According 
to the Service, statistics for recent years are as follows: in 
1997, there were 19 criminal cases, and $9,998 in fines; in 
1996, they were 21 criminal cases, a total of $12,534 in fines, 
and 1,696 days of jail time imposed; in 1995, there were 23 
criminal cases, a total of $21,547 in fines, and 495 days of 
jail time imposed; in 1994, there were 46 criminal cases, a 
total of $25,485 in fines, and 169 days of jail time imposed.
    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 
different 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 Service also indicate significant illegal activity at 
the border: in 1993, 65 shipments containing bears or bear 
parts were denied entry or exit; in 1996, this number increased 
to 77; and in 1997, it increased to 95. These statistics, 
coupled with the study, indicate that despite existing 
enforcement efforts, illegal products are still reaching 
markets within the United States. In contrast, only 19 export 
permits under CITES were issued by the Service between 1991 and 
1998, and all but two permits were for forensic evidence or 
research.
    In light of the CITES resolution adopted by the Parties in 
June 1997, the status of bear populations in Asia and the 
United States, and the current level of information relating to 
domestic and international trade, the bill adopts a two-part 
strategy for the protection of bears. First, the bill provides 
for immediate prohibitions on imports into the United States, 
exports from the United States, and foreign trade, of bear 
viscera and products containing bear viscera, and provides for 
multilateral discussions to address this trade. Second, a study 
is required to gather and assess additional information on the 
illegal trade of bear viscera and products containing bear 
viscera, and to recommend legislation and other actions based 
on this information.

                     Objectives of the Legislation

    The purpose of the bill is to ensure the long-term 
viability of the world's eight bear species by: (1) prohibiting 
international trade in bear viscera and products containing 
bear viscera; (2) promoting bilateral and multilateral efforts 
to eliminate trade in such items; and (3) ensuring that 
adequate Federal legislation exists with respect to domestic 
trade in such items.

                      Section-By-Section Analysis

Section 1. Title
    This section cites the title of this bill as the ``Bear 
Protection Act of 1998''.
Section 2. Findings
    This section contains the findings of Congress. All eight 
extant species of bear--Asian black bear, brown bear, polar 
bear, American black bear, spectacled bear, giant panda, sun 
bear, and sloth bear--are listed on Appendix I or II of the 
CITES. Article XIV of CITES provides that Parties to CITES may 
adopt stricter domestic measures regarding the conditions for 
trade, taking, possession, or transport of species on Appendix 
I or II, and the Parties to CITES adopted a resolution (Conf. 
10.8) urging Parties to take immediate action to demonstrably 
reduce the illegal trade in bear parts and derivatives.
    The Asian bear populations have declined significantly in 
recent years, as a result of habitat loss and poaching due to a 
strong demand for bear viscera used in traditional medicines 
and cosmetics. While most American black bear populations are 
generally stable or increasing, commercial trade could 
stimulate poaching and threaten certain populations if the 
demand for bear viscera increases. Prohibitions against the 
importation into the United States and exportation from the 
United States of bear viscera and products containing bear 
viscera will assist in ensuring that the United States does not 
contribute to the commercial trade in bear viscera.
Section 3. Purposes
    This section states that the purpose of the bill is to 
ensure the long-term viability of the world's eight bear 
species by: prohibiting international trade in bear viscera and 
products containing bear viscera; encouraging bilateral and 
multilateral efforts to eliminate such trade; and ensuring that 
adequate Federal legislation exists with respect to domestic 
trade in bear viscera and products containing bear viscera.
Section 4. Definitions
    This section sets forth definitions of terms in the bill. 
The term ``bear viscera'' is defined as the body fluids or 
internal organs, including the gallbladder and its contents but 
not including blood, of a species of bear. In addition to the 
gallbladder, internal organs or fluids comprising ``viscera'' 
are those found in the abdominal cavity, such as the entrails, 
guts or intestines. The terms ``import,'' ``person,'' 
``Secretary,'' ``State,'' and ``transport'' are also defined.
Section 5. Prohibited Acts
    This section enumerates actions prohibited by the bill. A 
person shall not import into the United States, or export from 
the United States, bear viscera or any product, item, or 
substance derived from bear viscera. It is also prohibited, in 
foreign commerce, to sell or barter, offer to sell or barter, 
purchase, possess, transport, deliver, or receive, bear viscera 
or any product, item, or substance derived from bear viscera. 
This prohibition does not apply to interstate or intrastate 
commerce.
    The prohibition on imports is intended to reinforce 
existing laws with similar prohibitions, in an effort to reduce 
the demand for these items in the United States, and reduce 
pressures for poaching in Asia and elsewhere, where the 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, which is intended to avoid pressures 
for poaching in the United States to supply those markets.
Section 6. Penalties and Enforcement
    This section 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 
one 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 
subsection shall be also assessed, and may be collected, in the 
manner in which a civil penalty under the ESA may be assessed 
and collected under section 11(a) of the ESA (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 (including any 
regulation issued under this section) shall be seized and 
forfeited to the United States.
    After consultation with the Secretary of the Treasury, the 
Secretary of Health and Human Services, and the United States 
Trade Representative, the Secretary shall issue such 
regulations as are necessary to carry out this section. The 
Secretary, the Secretary of the Treasury, and the Secretary of 
the department in which the Coast Guard is operating shall 
enforce this section in the manner in which the Secretaries 
carry out enforcement activities under section 11(e) of the ESA 
(16 U.S.C. 1540(e)).
    Amounts received as penalties, fines, or forfeiture of 
property under this section shall be used in accordance with 
section 6(d) of the Lacey Act Amendments of 1981 (16 U.S.C. 
3375(d)).
Section 7. Discussions Concerning Trade Practices
    This section provides that the Secretary 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.
Section 8. Report
    This section requires that, not later than one year after 
the date of enactment of this bill, the Secretary, in 
cooperation with appropriate State agencies, shall submit a 
report to the Senate Committee on Environment and Public Works 
and the House Committee on Resources. The report shall provide 
the following: information relating to illegal trade in bear 
viscera and products containing bear viscera within the United 
States, and between the United States and foreign countries; an 
assessment of whether any such trade is affecting, or may 
affect, any bear populations in the United States or in foreign 
countries; an assessment of State and Federal law enforcement 
efforts regarding any such trade; recommendations on additional 
legislation to address interstate trade in illegally taken bear 
viscera; and recommendations of additional actions to protect 
native bears in foreign countries. The bill authorizes $400,000 
to be appropriated in fiscal year 1999 to carry out this 
section.

                                Hearings

    The Committee on Environment and Public Works held a 
hearing on S. 263 on July 7, 1998. Testimony was received from 
Mr. John Rogers, Deputy Director, U.S. Fish and Wildlife 
Service; Mr. Gary J. Taylor, Legislative Director, 
International Association of Fish and Wildlife Agencies; Ms. 
Ginette Hemley, Vice President for Species Conservation, World 
Wildlife Fund; Mr. Wayne Pacelle, Senior Vice President, The 
Humane Society of the United States, and Ms. Kristin Vehrs, 
Deputy Director, American Zoo and Aquarium Association. Written 
testimony was submitted by Senator McConnell.

                          Legislative History

    On February 5, 1997, Senator McConnell introduced S. 263, 
which was referred to the Committee on Environment and Public 
Works. On Wednesday, July 22, 1998, the committee held a 
business meeting to consider this bill. Senator Chafee offered 
an amendment during the full committee business meeting in the 
form of a substitute, which was adopted by voice vote. S. 263, 
as amended, was favorably reported by the committee by voice 
vote.

                      Regulatory Impact Statement

    In compliance with section 11(b) of rule XXVI of the 
Standing Rules of the Senate, the committee makes the following 
evaluation of the regulatory impact of the bill. The bill will 
have a minor regulatory impact as a result of prohibitions 
against imports, exports, and foreign commerce in, bear viscera 
and products containing bear viscera. Under current law, all 
imports and exports of bear viscera and products containing 
bear viscera require permits under CITES: for species on 
Appendix I, commercial trade is prohibited; for species on 
Appendix II, commercial trade is allowed, but only 19 permits 
between 1991 and 1998 have been issued by the U.S. Fish and 
Wildlife Service for exports, all but two for non-commercial 
purposes. Consequently, the regulatory impact of this bill is 
expected to be minor. 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 this bill would 
impose a Federal intergovernmental unfunded mandate on State, 
local, and tribal governments. Specifically, the prohibition on 
imports, exports and foreign trade in bear viscera applies to 
these governments. However, the mandate would impose no 
significant costs, because these governments do not engage in 
the actions that would be prohibited by this bill. Additional 
requirements to conduct a study and engage in multilateral 
discussions are imposed on Federal agencies. The bill would 
also impose a new mandate on the private sector, although the 
direct cost of this mandate would not exceed the annual 
threshold established under the Unfunded Mandates Reform Act of 
1995.

                          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, July 24, 1998.

Hon. John H. Chafee, Chairman,
Committee on Environment and Public Works,
U.S. Senate, Washington, DC.

    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 263, the Bear 
Protection Act of 1998.
    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, and 
Marjorie Miller (for the State and local impact), who can be 
reached at 225-3220, and Patrice Gordon (for private-sector 
impact), who can be reached at 226-2940.

            Sincerely,
                                           June E. O'Neill,
                                                          Director.
                                ------                                


               Congressional Budget Office Cost Estimate

S. 263, Bear Protection Act of 1998, as ordered reported by the 
Senate Committee on Environment and Public Works on July 22, 
1998
Summary
    Assuming appropriation of the authorized amount, CBO 
estimates that implementing S. 263 would cost the Federal 
government $400,000 in fiscal year 1999 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. 263 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. 263 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 ($50 
million per year in 1996, adjusted annually for inflation) 
would not be exceeded. The bill would have no other significant 
impact on the budgets of those governments.
    S. 263 also would impose private-sector mandates as defined 
by UMRA, but CBO estimates that the direct costs of those 
mandates would not exceed the annual threshold established in 
UREA ($ 100 million in 1996, adjusted annually for inflation).
Description of the bill's major provisions
    S. 263 would prohibit any person from selling, importing, 
exporting, possessing, or transporting products 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. 263 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 of 1973 (ESA). Section 
8 would require the U.S. Fish and Wildlife Service (USFWS) to 
submit a report, within one year of enactment, assessing the 
effects of illegal trade in bear parts. The bill would 
authorize the appropriation of $400,000 to prepare the report.
Estimated cost to the Federal Government
    Assuming appropriation of the authorized amount, the USFWS 
would incur costs of $400,000 to prepare the report required by 
section 8.
    CBO expects that implementing S. 263 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. 263 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 procedures
    The Balanced Budget and Emergency Deficit Control Act sets 
up pay-as-you-go procedures for legislation offsetting direct 
spending or receipts. Because S. 263 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. 263 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. 263 would impose new 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. 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. 
263, CITES permits would no longer be allowed for the United 
States. Because most of the CITES permits granted for the 
United States in the last several years have not been for 
commercial trade, CBO concludes that the amount of trade 
affected by S. 263 would be small. Thus, the mandates in this 
bill would not impose significant costs on the private sector.
    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: Patrice Gordon 
(226-2940).
    Estimate approved by: Robert A. Sunshine, Deputy Assistant 
Director for Budget Analysis.

                        Changes in Existing Law

    In compliance with section 12 of rule XXVI of the Standing 
Rules of the Senate, changes in existing law made by the bill 
as reported are to be shown. This bill does not change existing 
law.