Full Text of Congressional Bill HR 4958

Description of your first forum.

Full Text of Congressional Bill HR 4958

Post by Thuan Nguy » Wed, 08 Jul 1992 03:19:22



Enclosed is the full text of Congressional Bill HR 4958.   The current
version of this bill is called HR 5013 (which is posted separately).
I am posting the old version of HR 4958 so that you can see for yourself
what is right/wrong about this bill and what the fuss is all about.

In particular, note SECTION 9.  Although this bill is masked as a
bird conservation bill, Section 9 effectively targets all plants and
animals (except for domesticated ones).

Also note the provisions for search and seizure, and who is authorized
to carry out these searches and seizures.  If you don't like what you
read, let your Congressional Representative know.  

Please direct all relevant follow-ups to rec.pets.birds, because this
bill is primarily about pet birds.

-----------------------------------------------------------------------
H.R. 4958

A BILL

To promote the conservation of *** wild birds.

Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the "Wild Bird Conservation Act of 1992"

SECTION 2. STATEMENT OF PURPOSE.

The purpose of this Act is to promote the conservation of *** birds by
encouraging wild bird conservation and management programs in countries of
origin; by ensuring that all trade in such species involving the United
States is biologically sustainable and to the benefit of the species; and
by limiting or prohibiting imports of *** birds when necessary to ensure
that *** wild bird populations are not harmed by removal for the trade.

SECTION 3. FINDINGS.

The Congress finds that--

(1) the international pet trade in wild-caught birds is contributing to the
decline of many species in the wild, and that mortality remains
unacceptably high for many species;

(2) the United States, as the world's largest importer of *** wild
birds, should play a substantial role in finding solutions to these
problems, including in assisting countries of origin in implementing
programs of wild bird conservation, and in ensuring that their actions are
not detrimental to the survival of species in the wild;

(3) although sustainable utilization of *** birds has the potential to
create values in them and their habitats that can help conserve them, and
promote the maintenance of biological diversity, utilization that is not
sustainable should not be allowed;

(4) many countries have chosen not to export their wild birds for the pet
trade, and their efforts should be supported;

(5) those countries that choose to export their wild birds often lack the
means to effectively implement scientifically based management plans, and
should be assisted to bring their wild bird trade down to sustainable
levels;

(6) international concern has been focused on serious conservation problems
which currently exist in the trade in wild-caught animals, including birds;

(7) article XVI of the Convention permits any Party to adopt stricter
domestic measures for the regulation of trade in all species, whether or
not listed in the appendices;

(8) the necessary population assessments, monitoring programs, and
appropriate remedial measures for Appendix II species are not always being
undertaken in order to maintain species at levels above which they might
become eligible for inclusion in Appendix I; and

(9) the Parties to the Convention have recommended that Parties take
appropriate measures, including suspension of trade for commercial purposes
between Parties when appropriate, regarding trade in species of birds that
have significantly high mortality rates in transport.

SECTION 4. DEFINITIONS.

For the purposes of this Act:

(1) The term "Convention" means the Convention on International Trade in
Endangered Species of Wild Fauna and Flora, signed on March 3, 1973, and
the Appendices thereto.

(2) The term "*** bird means any live or dead member of the class Aves
that is not indigenous to the United States, and includes any egg, or
offspring thereof, or the dead body or parts thereof, excluding domestic
poultry, dead sport-hunted birds, dead museum specimens, dead scientific
specimens, and products manufactured from such birds, and birds in the
following families: Phasianidae, Numididae, Cracidae, Meleagrididae,
Megapodiidae, Anatidae, Struthionidae, Rheidae, Dromaiinae, and Gruidae.

(3) The term "import" means to land on, bring into, or introduce into, or
attempt to land on, bring into, or introduce into, any place subject to
the jurisdiction of the United States, whether or not such landing,
bringing, or introduction constitutes an importation within the meaning of
the customs laws of the United States.

(4) The term "person" means an individual, corporation, partnership, trust,
association, or any other private entity; or any officer, employee, agent,
department, or instrumentality of the Federal Government, of any State,
municipality, or political subdivision of a State, or of any foreign
government; any State, municipality, or political subdivision of a State;
or any other entity subject to the jurisdiction of the United States.

(5) The term "Secretary" means the Secretary of the Interior or the
Secretary of the Interior's designee.

(6) The term "species" means any species, subspecies or any distinct
population segment of such species or subspecies and includes hybrids of
any of the above.

(7) The term "State" means any of the several states, the District of
Columbia, the Commonwealth of Puerto Rico, American Samoa, the ***
Islands, Guam, and the Trust Territory of the Pacific Islands.

(8) The term "sustainable use" means any use of an *** bird that
ensures that the bird is removed from the wild in a manner designed to
conserve its species and its habitat.  Such use involves, among other
things: the scientific determination of the productive capacities of
the species and its associated ecosystems, and the implementation of a
management program of use designed to maintain the species throughout
its range at a level consistent with its role in the ecosystem and
well above the level at which it may become threatened.

(9) The term "trade" means import.

(10) The term "United States" when used in a geographical context
includes all States as defined in this Act.

SECTION 5. RESTRICTION OF IMPORTS.

(a) PROHIBITION. -- Four years after the date of enactment of this Act
and thereafter, the importation of any species of *** bird into the
United States is prohibited unless such species is included as an
approved species on the list to be established and maintained by the
Secretary under section 5(b) or otherwise permitted under section 7 of
this Act.

(b) IMPORT QUOTAS.--

 (1)  PRESCRIBED QUOTAS.--At any time within four years after the date
 of enactment of this Act, the Secretary may prescribe in the Federal
 Regiser specific annual quotas or moratoria with respect to imports of
 any species of *** birds.  Notice of such quotas shall be provided
 to affected exporting countries in sufficient time to provide for
 their comments and consultations.  Such quotas shall be allocated on
 a country by country basis, where appropriate.  In making these
 determinations, the Secretary shall, utilizing the best available
 scientific and management information, consider the following
 criteria:

    (A) the population status of the species in the wild, throughout
    its range;

    (B) actions recommended by the Conference of the Parties of the
    Convention, Convention Committees, or the Convention Secretariat
    to regulate trade in *** birds;

    (C) the levels of mortality associated with trade in the species;

    (D) use for commercial, recreational, scientific, educational, or
    subsistence purposes of the species;

    (E) disease, predation, or other natural or human induced factors
    detrimental to the survival of the species;

    (F) the adequacy of regulatory and enforcement mechanisms in all
    countries of origin of the species, including control of illegal
    trade;

    (G) the present or threated destruction or curtailment of the
    habitat or range of the species;

    (H) the country of origin's management plan for the species; and

    (I) the ability of the country of origin to implement the
    Convention, particularly as regards the establishment of a
    Scientific Authority and the implementation of Article IV of the
    Convention.

  (2) ANNUAL QUOTAS.-- Unless the Secretary has prescribed specific
  quotas on imports of *** birds pursuant to paragraph (1) by the
  date one hundred and eighty days after the date of enactment of this
  Act, the Secretary shall prescribe quotas pursuant to the following:

    (A) Determine the average annual imports of each species for the
    most recent five calendar years prior to the date of enactment of
    this Act, hereafter called the "base period".

    (B) For the year beginning on the date of enactment of this Act,
    limit imports of each species to 75 per centum of the average
    annual imports during the base period.

    (C) For each successive year thereafter, until the fourth
    anniversary of the date of enactment of this Act or until
    superseded by specific import quotas or restrictions prescribed in
    accordance with paragraph (1), reduce the annual limits on imports
    of *** birds by 25 per centum of the average annual imports of
    each species during the base period.

  (3) LIST OF APPROVED SPECIES.--The Secretary shall establish and
  periodically modify an approved list of species, on a
  country-by-country basis when appropriate, that may be imported
  without an import permit under this Act.  Species shall only be
  included on the approved list if--

     (A) after public notice and comment, the Secretary determines,
     based on the best available scientific and management information
     that--

        (i) a scientifically based and strictly controlled management
        plan for the species is in place and is implemented and
        enforced;

        (ii) the management plan for the species provides incentives
        for the conservation of the species and its habitat;

        (iii) the use of the species, on the basis of the management
        plan, is biologically sustainable, for both the species and
        its ecosystem; and

        (iv) the methods of capture, transport, and maintenance of the
        species minimize the risk of injury, damage to health, or
        cruel treatment; or

     (B) the species is not listed in the Appendices to the
     Convention.  The Secretary may however, impose a moratorium or
     quota at any time for these species, after considering the
     criteria in subsection (b)(1) of this section and determining
     that such moratorium or quota is consistent with the purposes of
     this Act.

(c) PETITION.--

   (1) IN GENERAL.-- Any person may at any time submit a petition in
   writing requesting that the Secretary establish or remove a
   restriction, quota, or moratorium under this section.  Such a
   petition shall include such information as may be necessary to
   demonstrate the need for the action requested by the petition.

   (2) CONSIDERATION and RULING.-- The Secretary shall publish a
   notice of receipt of a petition under this subsection in the
   Federal Register and shall provide an opportunity for the public to
   comment on petitions which the Secretary has determined contained
   the necessary information.  The Secretary shall rule on such
   petition not later than ninety days after the close of the comment
   period.

SECTION 6. PROHIBITED ACTS.

(a) IN GENERAL.-- Except as provided in section 7 of this Act, with
respect to any species of *** bird subject to a moratorium or in
excess of a quota or annual limit established pursuant to section 5 of
this Act it is unlawful for any person who is subject to the
jurisdiction of the United States to--

  (1) import any species of *** bird into the United States;

  (2) violate any regulation pertaining to a prohibition, moratorium,
  quota, or annual limit for any *** bird pursuant to section 5 of
  this Act and promulgated by the Secretary pursuant to authority
  provided by this Act.

(b) VIOLATIONS.--It is unlawful for any person subject to the
jurisdiction of the United States to attempt to commit, solicit
another to commit, or cause to be committed, any offense defined in
this section.

(c) EXEMPTIONS.--In connection with any violation of this section any
person claiming the benefit of any exemption or permit under this Act
shall have the burden of proving that the exemption or permit is
applicable or has been granted, and was valid and in force at the time
of the alleged violation.

SECTION 7. EXEMPTIONS.

   (a) IN GENERAL. -- Notwithstanding the provisions of section 6 of
this Act, the Secretary may, through the issuance of import permits,
allow the importation of any *** bird in to the United States if
the Secretary determines that such importation is nondetrimental to
the survival of that species and the bird is being imported for any of
the following purposes--
        (1) scientific research,
        (2) as personally owned pet birds,
        (3) zoological display,
        (4) religious purposes, or
        (5) cooperative breeding program designed to promote the
            conservation of the species in the wild by enhancing
            the propagation and survival of the affected species.

   (b) PRE-ACT EXEMPTIONS.--Notwithstanding the provisions of section 6
of this Act, the Secretary may permit the importation into the United
States of any *** bird subjet to a restriction or prohibition on
importation under the provisions of this Act if the Secretary finds
that such bird was removed from the wild and in trade prior to the
effective date of any regulation issued under this Act imposing such
restriction or prohibition.

SECTION 8.  PENALTIES AND ENFORCEMENTS.

   (a) CIVIL PENALTIES.-- (1) Any person who knowingly violates, and
any person engaged in business as an importer of *** birds who
violates, any provision of this Act, or any provision of any permit or
certificate issued hereunder, or of any regulation issued in order to
implement suction (a) (1), (2), (3), (4), or (c) of section 6 of this
Act, may be assessed a civil penalty by the Secretary of not more than
$25,000 for each violation.  Any person who knowingly violates, and
any person engaged in business as an importer of *** birds who
violates, any provision of any other regulation issued under this Act
may be assessed a civil penalty by the Secretary of not more than
$12,000 for each violation.  Any person who otherwise violates any
provision of this Act, or any regulation, permit, or certificate
issued hereunder, may be assessed a civil penalty by the Secretary of
not more than $500 for each such violation.  No penalty may be
assessed under this subsection unless such person is given notice and
opportunity for a hearing with respect to such violation.  Each
violation shall be a separate offense.  Any such civil penalty may be
remitted or mitigated by the Secretary.  Upon any failure to pay a
penalty assessed under this subsection, the Secretary may request the
Attorney General to institute a civil action in a district court of
the United States for any district in which such person is found,
resides, or transacts business to collect the penalty and such court
shall have jurisdiction to hear and decide any such action.  The court
shall hear such action on the record made before the Secretary and
shall sustain his action if it is supported by substantial evidence on
the record considered as a whole.

   (2) Hearings held during proceedings for the assessment of civil
penalties by paragraph (1) of this subsection shall be conducted in
accordance with section 554 of title 5, United States Code.  The
Secretary may issue subpoenas for the attendance and testimony of
witnesses and the production of relevant papers, books, and documents,
and administer oaths and may by regulation permit discovery and
summary disposition as authorized under the Federal Rules of Civil
Procedure.  Witnesses summoned shall be paid the same fees and mileage
that are paid to witnesses in the courts of the United States. In case
of contumacy or refusal to obey a subpoena served upon any person
pursuant to this paragraph, the district Court of the United States
for any district in which  such person is found or resides or
transacts business, upon application by the United States and after
notice to such person, shall have jurisdiction to issue an order
requiring such person to appear and give testimony before the
Secretary or to appear and produce documents before the Secretary, or
both, and any failure to obey such order of the court may be punished
by such courts as a contempt thereof.

  (b) CRIMINAL VIOLATIONS.-- Any person who knowingly violates any
provision of this Act, of any permit or certificate issued hereunder,
or of any regulation issued in order to implement subsection (a) (1),
(2), (3), (4), (b),  or (c) of section 6 of this Act, shall upon
conviction , be fined in accordance with section 3571 of title 18,
United States Code, or imprisoned for not more than one year, or both.
Any person who knowingly violates any provision of any other
regulation issued under this Act shall, upon conviction, be fined in
accordance with section 3571 of title 18, United States Code, or
imprisoned for not more than six months, or both.

  (c) DISTRICT COURT JURISDICTION. --  The several district courts of
the United States, including the courts enumerated in section 460 of
title 28, United States Code, shall have jurisdiction over any action
arising under this chapter.  The venue provisions of title 18 and
title 28, United States Code, shall apply to any actions arising under
this Act.  For the purpose of this Act, American Samoa shall be
included within the Judicial District of the District Court of the
United States for the District for Hawaii and the Trust Territory of
Palau shall be included within the Judicial District of the District
Court of the United States for the District of Guam.

   (d) REWARDS AND CERTAIN INCIDENTAL EXPENSES. -- The Secretary or
the Secretary of the Treasury shall pay, from sums received as
penalties, fines, or forfeitures of property for any violation of this
Act, or any regulation issued hereunder, (1) a reward to any person
who furnishes information which leads to an arrest, a criminal
conviction, civil penalty assessment, or forfeiture of property for
any violation of this Act or any regulation issued hereunder, and (2)
the reasonable and necessary costs incurred by any person in providing
temporary care of any *** bird, pending the disposition of any
civil or criminal proceeding alleging a violation of this Act with
respect to that bird.  The amount of the reward, if any, is to be
designated by the Secretary or the Secretary of the Treasury, as
appropriate.  Any officer or employee of the United States or any
State or local government who furnishes information or renders service
in the performance of his or her official duties is ineligible for
payment under this subsection.

    (e) ENFORCEMENT. -- (1) The provisions of this Act and any
regulations or permits issued pursuant thereto shall be enforced by
the Secretary, the Secretary of the Treasury, or the Secretary of the
Department in which the Coast Guard is operating, or all such
Secretaries.  Each such Secretary may use by agreement, with or
without reimbur***t, the personnel, services, and facilities of any
other Federal agency or any State agency for purposes of enforcing
this Act.

   (2) The judges of the district courts of the United States and the
United States magistrates may within their respective jurisdictions,
upon proper oath or affirmation showing probable cause, issue such
warrants or other process as may be required for enforcement of this
Act and any regulation issued thereunder.

   (3) Any person authorized by the Secretary, the Secretary of the
Treasury, or the Secretary of the Department in which the Coast Guard
is operating, to enforce this Act may detain for inspection and
inspect any package, crate, or other container, including its
contents, and all accompanying documents, on importation.  Such person
may make arrests without a warrant for any violation of this Act if
that person has reasonable grounds to believe that the person to be
arrested is committing the violation in his presence of view and  may
execute and serve any arrest warrant, search warrant, or other warrant
or civil or criminal process issued by any officer or court of
competent jurisdiction for enforcement of this Act.  Such person so
authorized may search and seize, with or without a warrant, as
authorized by law.  Any *** bird, property, or item so seized shall
be held by any person authorized by the Secretary, the Secretary of
the Treasury, or the Secretary of the Department in which the Coast
Guard is operating pending disposition of civil or criminal
proceedings, or the institution for an action in rem of forfeiture of
such *** bird, property, or item pursuant to paragraph (4) of this
subsection; except that the Secretary may, in lieu of holding such
*** bird, property, or item, permit the owner or consignee to post
a bond or other surety satisfactory to the Secretary, but upon
forfeiture of any such property to the United States, or the
abandonment or waiver of any claim to any such property, it shall be
disposed of by the Secretary in such a manner, consistent with the
purposes of this Act, as the Secretary shall by regulation prescribe.

    (4) (A) Notwithstanding any culpability requirements for civil
penalty assessment or criminal prosecution, any *** bird, taken
contrary to the provisions of this Act, or born during captivity to
birds seized and forfeited under this Act, any regulation made
pursuant thereto, or any permit or certificate issued hereunder shall
be subject to forfeiture to the United States.

        (B)  All guns, traps, nets and other equipment, vessels,
vehicles, aircraft, and other means of transportation used to aid the
importing of any *** bird in violation of this Act, any regulation
made pursuant thereto, or any permit of certificate issued thereunder
shall be subject to forfeiture to the United States upon conviction of
a criminal violation pursuant to section 8(b) of this Act.

   (5) All provisions of law relating to the seizure, forfeiture, and
condemnation of a vessel for violation of the customs laws, the
disposition of such vessel or the proceeds from the sale thereof, and
the remission or mitigation of such forfeiture, shall apply to the
seizures and forfeitures incurred, of alleged to have been incurred,
under the provision of this Act, insofar as such provisions of law are
applicable and not inconsistent with the provisions of this Act;
except that all powers, rights, and duties conferred or imposed by the
customs laws upon any officer or employee of the Treasury Department
shall, for the purposes of this Act, be exercised or performed by the
Secretary or by the Secretary's designee.

    (6) The Attorney General of the United States may seek to enjoin
any person who is alleged to be in violation of any provision of this
Act or regulation issued under authority thereof.

    (f) REGULATIONS.--The Secretary shall prescribe regulations as are
necessary and appropriate to carry out the purposes of this Act.

    (g) SAVINGS PROVISIONS.-- The authority of the Secretary under
this Act is in addition to and shall not affect the authority of the
Secretary under the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.), or diminish the Secretary's authority under the Lacey Act (16
U.S.C. 3371 et seq.).

    (h) Nothing in this Act shall be construed to be less restrictive
than any other Act of Congress.

SECTION 9. OTHER FAUNA AND FLORA.

    The Secretary is authorized to promulgate such regulations as the
Secretary may deem appropriate to implement the decisions and
recommendations of the Conference of the Parties to the Convention
relating to all wildlife and plants and to take stricter domestic
measures that pertain to the conditions for such trade.  Particular
attention should be paid to those decisions and recommendations
designed to enhance the conservation of species in the wild or that
pertain to the conditions for international trade or transport of
species included in the Appendices to the Convention.

SECTION 10.  EFFECTIVE DATE.

    The Act shall take effect on the date of its enactment.

SECTION 11.  *** BIRD CONSERVATION FUND.

    (a) All amounts received by the United States in the form of
penalties, fines or forfeiture of property collected under this Act in
excess of the cost of carrying out the provisions of section 8(d) of
this Act, donations, received by the Secretary, and any additional
amounts appropriated, shall be deposited in a separate account known
as the *** Bird Conservation Fund to be used for the conservation
of *** birds in their countries of origin.  Particular attention
shall be given to the provisions of both funds and technical
assistance to countries of origin containing birds subject to trade
restrictions pursuant to this Act in order to assist them in the
development and implementation of conservation management programs.
These moneys shall remain available until expended.

    (b) In cooperation with appropriate representatives of industry,
the conservation community, the CITES Secretariat, and other national
and international bodies, the Secretary shall review opportunities for
a voluntary program of labeling of birds, certification of breeding
facilities and retail outlets, and provision of privately organized or
funded technical assistance to other nations, and shall report back to
Congress with the results of this review within two years after the
date of enactment of this Act.

SECTION 12. AUTHORIZATION OF APPROPRIATIONS.

     These are authorized to be appropriated to the Secretary and the
*** Bird Conservation Fund, a total of not to exceed $5,000,000 for
each of the first three fiscal years from the date of enactment to
carry out the purposes of this Act, to remain available until
expended.