```

[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]
```