[House Report 115-675]
[From the U.S. Government Publishing Office]
115th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 115-675
======================================================================
TO AMEND THE MIGRATORY BIRD TREATY ACT TO CLARIFY THE TREATMENT OF
AUTHENTIC ALASKA NATIVE ARTICLES OF HANDICRAFT CONTAINING NONEDIBLE
MIGRATORY BIRD PARTS, AND FOR OTHER PURPOSES
_______
May 15, 2018.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Bishop of Utah, from the Committee on Natural Resources, submitted
the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 4069]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 4069) to amend the Migratory Bird Treaty Act to
clarify the treatment of authentic Alaska Native articles of
handicraft containing nonedible migratory bird parts, and for
other purposes, having considered the same, report favorably
thereon without amendment and recommend that the bill do pass.
Purpose of the Bill
The purpose of H.R. 4069 is to amend the Migratory Bird
Treaty Act to clarify the treatment of authentic Alaska Native
articles of handicraft containing nonedible migratory bird
parts.
Background and Need for Legislation
In 1916, the United States and Great Britain (for Canada)
signed the Convention for the Protection of Migratory Birds.\1\
The goal of this agreement was to establish an international
framework for the protection and conservation of migratory
birds.
---------------------------------------------------------------------------
\1\Protection of Migratory Birds Treaty, Library of Congress
https://www.loc.gov/law/help/us-treaties/bevans/b-gb-ust000012-
0375.pdf.
---------------------------------------------------------------------------
The agreement also established the federal government's
authority to manage migratory birds. Under the Migratory Bird
Treaty, unless permitted by regulation, it is unlawful at any
time to pursue, hunt, take, capture, kill, possess, offer for
sale, sell, offer to purchase, purchase, deliver for shipment,
export, or import any migratory bird, any part, nest, or egg of
such bird protected under the Convention. Migratory bird
treaties were also implemented with Mexico in 1936,\2\ Japan in
1972,\3\ and Russia in 1976.\4\ Congress implemented the
provisions of the original treaty with the enactment of the
Migratory Bird Treaty Act of 1918.\5\
---------------------------------------------------------------------------
\2\U.S. Fish and Wildlife Service, Mexico-United States Convention
for the Protection of Migratory Birds and Game Mammals https://
www.fws.gov/migratorybirds/pdf/Treaties-Legislation/Treaty-Mexico.pdf.
\3\U.S. Fish and Wildlife Service, Convention Between the
Government of the United States of America and the Government of Japan
for the Protection of Migratory Birds and Birds in Danger of
Extinction, and their Environment https://www.fws.gov/le/pdf/
MigBirdTreatyJapan.pdf.
\4\U.S. Fish and Wildlife Service, Convention of Migratory Birds
and their Environment, Between the United States of American and the
Union of Soviet Socialist Republics Concerning the Conservation of
Migratory Birds https://www.fws.gov/le/pdf/MigBirdTreatyRussia.pdf.
\5\16 U.S.C. Sec. Sec. 703-712.
---------------------------------------------------------------------------
There are over 900 avian species protected by the Migratory
Bird Treaty Act.\6\ Under the treaty, the term migratory bird
includes all wild species of crows, ducks, falcons, geese,
hawks, snipes, woodcocks, mourning doves, and white-winged
doves. The Fish and Wildlife Service (FWS) regulates most
aspects of the taking, possession, transportation, sale,
purchase, barter, export, and import of migratory birds. The
FWS has promulgated regulations containing restrictions on the
taking of migratory birds, including what species can be
hunted, the length of hunting seasons, bag limits, and the use
of live decoys or other techniques to hunt migratory birds.
---------------------------------------------------------------------------
\6\U.S. Fish and Wildlife Service, Migratory Bird Treaty Act
Protect Species https://www.fws.gov/birds/management/managed-species/
migratory-bird-treaty-act-protected-species.php.
---------------------------------------------------------------------------
While the bilateral treaties with Japan\7\ and Russia\8\
recognized the legitimate subsistence needs of indigenous
people, the 1916 and 1936 treaties with Canada\9\ and
Mexico\10\ did not. As a result, federal courts have prevented
the implementation of any subsistence rights, holding that the
Migratory Bird Treaty Act requires the federal government to
follow the most restrictive provisions of any of the four
international agreements.
---------------------------------------------------------------------------
\7\Ibid 3.
\8\Ibid 4.
\9\U.S. Fish and Wildlife Service, Protocol Amending the 1916
Convention for the Protection of Migratory Birds, Canada https://
www.fws.gov/le/pdf/MigBirdTreatyCanada.pdf.
\10\Ibid 2.
---------------------------------------------------------------------------
Under the 1916 Convention with Canada there is a closed
season from March 10 to September 1 during which no hunting is
permitted except in extremely limited circumstances.\11\ The
1936 Convention with Mexico established a similar closed season
for ducks. In Alaska, migratory birds have left large areas of
northern, western and interior regions of the State by mid-
September and in these areas, they generally do not return
before March 10. Consequently, much of the traditional harvest
of migratory birds, which has occurred for thousands of years
in rural Alaska, has occurred during the closed portion of the
year.
---------------------------------------------------------------------------
\11\Ibid 9.
---------------------------------------------------------------------------
An effort to update the international treaties was
initiated in the 1970s and culminated with the signing of the
Protocol between the United States and Canada on December 14,
1995,\12\ and the Protocol between the United States and Mexico
signed on May 5, 1997. The fundamental goal of these Protocols
was to allow aboriginal and indigenous peoples to legally hunt
protected migratory birds for subsistence and traditional uses
in Alaska and Canada. On October 23, 1997, the United States
Senate approved the Protocols amending the Migratory Bird
treaties with Canada\13\ and Mexico.\14\
---------------------------------------------------------------------------
\12\Ibid 7.
\13\Ibid 7.
\14\14 U.S. Fish and Wildlife Service, Protocol Amending the 1916
Convention for the Protection of Migratory Birds, Mexico https://
www.congress.gov/105/cdoc/tdoc26/CDOC-105tdoc26.pdf.
---------------------------------------------------------------------------
Regrettably, when implementing the treaty language,
Congress failed to clarify that non-edible parts of the harvest
migratory bird could be sold in commercial products. FWS
followed by promulgating regulations prohibiting the sale or
purchase of migratory bird parts, including feathers and parts
of birds taken for subsistence.\15\ As a result, in 2012, a
native Alaskan carver was fined $2,000 for violating the
Migratory Bird Treaty Act for using feathers in his handicraft
products.\16\
---------------------------------------------------------------------------
\15\50 CFR 92.6
\16\Anchorage Daily News, Alaska Native artist told selling
feathered art violates law, Mike Duncan, September 29, 2012 https://
www.adn.com/our-alaska/article/alaska-native-artist-told-selling-
feathered-art-violates-laws/2012/10/16/.
---------------------------------------------------------------------------
In 2012, the Alaska Federation of Natives adopted a
resolution urging the State of Alaska and FWS to revise its
existing regulations to allow Alaskan natives to sell
traditional handicrafts containing feathers or parts of
migratory birds.\17\ The Alaskan Federation of Natives,
Sealaska Heritage Institute, and the Alaska Migratory Bird Co-
Management Council all support this legislative fix.
---------------------------------------------------------------------------
\17\Alaska Federation of Natives, 2012 Annual Convention
Resolutions http://www.nativefederation.org/wp-content/uploads/2012/10/
2012-afn-convention-resolutions.pdf.
---------------------------------------------------------------------------
On August 23, 2017, a FWS final rule went into effect which
amended the permanent migratory bird subsistence-harvest
regulations in Alaska.\18\ This rule enabled Alaska Natives to
sell authentic Native articles of handicraft or clothing that
contain inedible byproducts from migratory birds that were
taken for food during the Alaska migratory bird subsistence-
harvest season.
---------------------------------------------------------------------------
\18\Federal Register, Migratory Bird Subsistence Harvest in Alaska;
Use of Inedible Bird Parts in Authentic Alaska Native Handicrafts for
Sale, A rule by the U.S. Fish and Wildlife Service, August 24, 2017.
https://www.federalregister.gov/documents/2017/07/24/2017-15465/
migratory-bird-subsistence-harvest-in-alaska-use-of-inedible-bird-
parts-in-authentic-alaska-native.
---------------------------------------------------------------------------
H.R. 4069 would amend the Migratory Bird Treaty Act to
exempt certain Alaskan Native articles from the prohibitions on
the sale of items containing nonedible migratory bird parts.
The bill defines the term Alaskan Native to include a member of
any Indian tribe that is based in the State of Alaska. It
stipulates that authentic Alaskan native articles of
handicrafts include beading, carving, drawing, lacing,
painting, sewing, stitching and weaving or any combination
thereof. Finally, the exemption will not apply to any
handicraft containing any part of a migratory bird that was
taken in a wasteful manner.
Committee Action
H.R. 4069 was introduced on October 12, 2017, by
Congressman Don Young (R-AK). The bill was referred to the
Committee on Natural Resources, and within the Committee to the
Subcommittee on Federal Lands. On April 18, 2018, the Natural
Resources Committee met to consider the bill. The Subcommittee
was discharged by unanimous consent. No amendments were offered
and the bill was ordered favorably reported to the House of
Representatives by unanimous consent.
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, May 9, 2018.
Hon. Rob Bishop,
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. 4069, a bill to
amend the Migratory Bird Treaty Act to clarify the treatment of
authentic Alaska Native articles of handicraft containing
nonedible migratory bird parts, and for other purposes.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Jeff LaFave.
Sincerely,
Keith Hall,
Director.
Enclosure.
H.R. 4069--A bill to amend the Migratory Bird Treaty Act to clarify the
treatment of authentic Alaska Native articles of handicraft
containing nonedible migratory bird parts, and for other
purposes
H.R. 4069 would amend the Migratory Bird Treaty Act to
allow Alaska Natives to make and sell traditional handicrafts
such as masks, jewelry, clothing, and hunting equipment that
are made from parts of migratory birds, particularly feathers.
CBO estimates that implementing the bill would have no
significant effect on the federal budget.
Enacting H.R. 4069 could reduce revenues and associated
direct spending from civil and criminal penalties; therefore,
pay-as-you-go procedures apply. However, CBO estimates that any
such effects would be negligible.
CBO estimates that enacting H.R. 4069 would not increase
net direct spending or significantly increase on-budget
deficits in any of the four consecutive 10-year periods
beginning in 2029.
H.R. 4069 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
The CBO staff contact for this estimate is Jeff LaFave. 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 goal or
objective of this bill is to amend the Migratory Bird Treaty
Act to clarify the treatment of authentic Alaska Native
articles of handicraft containing nonedible migratory bird
parts.
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.
Compliance With Public Law 104-4
This bill contains no unfunded mandates.
Compliance With H. Res. 5
Directed Rule Making. This bill does not contain any
directed rule makings.
Duplication of Existing Programs. This bill does not
establish or reauthorize a program of the federal government
known to be duplicative of another program. Such program was
not included in any report from the Government Accountability
Office to Congress pursuant to section 21 of Public Law 111-139
or identified in the most recent Catalog of Federal Domestic
Assistance published pursuant to the Federal Program
Information Act (Public Law 95-220, as amended by Public Law
98-169) as relating to other programs.
Preemption of State, Local or Tribal Law
This bill is not intended to preempt any State, local or
tribal law.
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 (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
MIGRATORY BIRD TREATY ACT
* * * * * * *
Sec. 2. (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 Act applies only to migratory
bird species that are native to the United States or
its territories.
(2) Native to the united states defined.--
(A) In general.--Subject to subparagraph (B),
in this subsection the term ``native to the
United States or its territories'' means
occurring in the United States or its
territories as the result of natural biological
or ecological processes.
(B) Treatment of introduced species.--For
purposes of paragraph (1), a migratory bird
species that occurs in the United States or its
territories solely as a result of intentional
or unintentional human-assisted introduction
shall not be considered native to the United
States or its territories unless--
(i) it was native to the United
States or its territories and extant in
1918;
(ii) it was extirpated after 1918
throughout its range in the United
States and its territories; and
(iii) after such extirpation, it was
reintroduced in the United States or
its territories as a part of a program
carried out by a Federal agency.
(c) Clarification for Authentic Alaska Native Articles of
Handicraft.--
(1) Definitions.--In this subsection:
(A) Alaska native.--The term ``Alaska
Native'' means a member of any Indian tribe (as
defined in section 4 of the Indian Self-
Determination and Education Assistance Act (25
U.S.C. 5304)) that is based in the State of
Alaska.
(B) Authentic alaska native article of
handicraft.--
(i) In general.--The term ``authentic
Alaska Native article of handicraft''
means any item that is--
(I) composed, wholly or in a
significant respect, of natural
materials; and
(II) produced, decorated, or
fashioned by hand in
significant part--
(aa) by an Alaska
Native;
(bb) in the exercise
of traditional Alaska
Native handicrafts; and
(cc) without the use
of any mass copying
device.
(ii) Inclusions.--The term
``authentic Alaska Native article of
handicraft'' includes--
(I) any weaving, carving,
stitching, sewing, lacing,
beading, drawing, or painting
that meets the criteria
described in clause (i); and
(II) any item, including
clothing, described in
subclause (I) that combines the
techniques described in that
subclause.
(2) Clarification for certain authentic alaska native
articles of handicraft.--Subject to paragraph (3) and
notwithstanding any other provision of this Act,
nothing in this Act prohibits the possession, offering
for sale, sale, offering to barter, barter, offering to
purchase, purchase, delivery for shipment, shipment,
causing to be shipped or delivered for transportation,
transport, causing to be transported, carrying, causing
to be carried, or receiving for shipment,
transportation, or carriage of any authentic Alaska
Native article of handicraft on the basis that the
authentic Alaska Native article of handicraft contains
a nonedible migratory bird part.
(3) Limitation.--This subsection does not apply to an
authentic Alaska Native article of handicraft
containing a part of a migratory bird that was taken in
a wasteful manner.
* * * * * * *
ADDITIONAL VIEWS
H.R. 4069 would amend the Migratory Bird Treaty Act (MBTA)
and change the treatment of authentic Alaska Native articles of
handicraft under several treaties pertaining to migratory
birds. The MBTA implements treaties between the United States
and Canada, Mexico, Japan, and Russia for the protection of
migratory birds. These treaties prohibit the taking,
possession, import, export, transportation, sale, or trade of
any migratory bird, or its parts, nests or eggs. H.R. 4069
would exempt any authentic Alaskan Native article of handicraft
or clothing that contains a nonedible migratory bird part from
this provision if the bird was taken in a wasteful manner.
In July 2017, the United States Fish and Wildlife Service
(FWS) released a final rule to allow Alaska Natives to sell
authentic handicrafts that contain inedible byproducts from 27
species of migratory birds taken during the spring and summer
Alaska migratory bird subsistence-harvest season. The rule does
not allow for additional hunting and gives the FWS the
authority to remove a species from the list if its population
begins to decline. The rule was developed under an intense and
thorough co-management process with the Alaska Department of
Fish and Game and Alaska Native representatives to ensure that
the United States remained in compliance with the treaties.
Unlike the FWS final rule, H.R. 4069 circumvents treaty
obligations of the United States to include all species. It
also does not include seasonal hunting restrictions or provide
the backstop that allows the FWS to remove a species if its
population declines. At markup, Representative Don Young
offered to work with Ranking Member Raul M. Grijalva to address
some of these concerns. We hope to work with our colleagues to
ensure that this bill codifies the existing FWS rule while
addressing the concerns of Alaska Natives.
Raul M. Grijalva,
Ranking Member, House
Committee on Natural
Resources.
Jared Huffman.
[all]