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116th Congress    }                                 {    Rept. 116-249
                        HOUSE OF REPRESENTATIVES
 1st Session      }                                 {           Part 1




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 

                              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\
    \1\Orea R.J. Anderson et al., Global Seabird Bycatch in Longline 
Fisheries, 14 Endangered Species Res. 91, 91 (2011),
    \2\Id. at 99, 100, 102.
    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.
    \3\See, e.g., Danielle Hall, Saving Albatross Lives with Bird 
Scaring Lines, Smithsonian: Ocean (Aug. 2017),
    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.
    \4\Agreement on the Conservation of Albatrosses and Petrels, opened 
for signature June 19, 2001, [2004] A.T.S. 5,
    \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,
conservation-tools/iucn-red-list-threatened-species (last visited Oct. 
4, 2019).
    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.
    \7\S. Treaty Doc. No. 110-22 (2008),
    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\
    \8\See, e.g., Edward F. Melvin et al., Lessons from Seabird 
Conservation in Alaskan Longline Fisheries, 33 Conservation Biology 842 
    \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),
    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:



    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 

             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 
                                         Phillip L. Swagel,


    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 

                  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):


           *       *       *       *       *       *       *

           *       *       *       *       *       *       *


  (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 
                          (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 
                  (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 
  (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; 
                  (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 
          (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 
          (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 
          (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.

           *       *       *       *       *       *       *


                            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\
    \2\Argentina, Australia, Brazil, Chile, Ecuador, France, New 
Zealand, Norway, Peru, South Africa, Spain, United Kingdom, Uruguay:
    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\
    \4\H.R. 1305 (116th Cong.), H.R. 5763 (115th Cong.), and H.R. 4480 
(114th Cong.).
    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\
    \5\https://www.audubon. org/magazine/may-june-2016/how-congress-
    \6\H.R. 1305, Title V--International Cooperation and Assistance, 
Sec. 501 (b). 116th Congress.
    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 
    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.