Grijalva Bill to End the Black Market Trade in Bear Parts Moves to Committee
Tuesday March 11, 2008
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NEW LEGISLATION OF BLACK BEAR PROTECTION IN THE U.S.
What is this bear protection act all about? It is not about hunting bears, it is about poaching bears for the black market trade in bear body parts. Bear bile farming is an international shame that is practiced in some parts of Asia. Asian black bears are put into tiny cages, with tubes inserted into their stomachs, so that the bile in their gallbladders can leak out into containers. These bears live tortured lives for this product that is made into traditional Asian medicines. These medicines can now be made without the bile, but the bile is still harvested from live bears. As wild Asian Black Bears' numbers dwindle, the black market looks to North and Central America for their black bears. Bile is also obtained from dead bears' gallbladders, in particular American Black Bears in America. The bear is illegally killed, then the gallbladder is taken and sold on the black market. Other bear body parts make their way into the illegal market, such as hides, teeth, paws, and claws. In some states in the U.S. is it not illegal to possess bear body parts; in others it is illegal. Some people think that it would be a good thing to make the rule or law a federal law, and in that way, all states could be like-thinkers on this subject. They feel that if all states prohibited the sale and purchase, or traffic, of bear body parts, and if poaching were a federal offense in every state, poaching would decrease drastically. Also, if there were no place for the poacher to sell his products, he would be out of business. The Lacey Act, outlined below, has been in effect for decades. It has been amended several time, to add wording when necessary. The Bear Protection Act of 2008 is really another amendment to that Act, that would specifically link bears to the original Lacey Act.
Below we offer: A description of The Bear Protection Act of 2008 Testimony of The Human Society of the U.S. Description of The Lacey Act Testimony of U.S. Fish & Wildlife Service, Dept. of the Interior Article Posted to the Congressional Website for U.S. Rep. Raul M Grijalva
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THE BEAR PROTECTION ACT OF 2008 To prohibit the import, export, and interstate commerce of bear viscera such as gallbladder and bile. Introduced by U.S. Representatives Raul M. Grijalva (D-AZ) and John Campbell (R-CA). THE BEAR PROTECTION ACT OF 2008 - H.R. 5534 110th Congress, Second Session To amend the Lacey Act Amendments of 1981 to extend it protection to bears illegally harvested for their viscera in the same manner as with respect to prohibited wildlife species, and for other purposes. In The House Of Representatives, March 5, 2008 Mr. Grijalva introduced the following bill which was referred to the Committee on Natural Resources. A BILL To amend the Lacey Act Amendments of 1981 to extend it protection to bears illegally harvested for their viscera in the same manner as with respect to prohibited wildlife species, and for other purposes. Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled, SECTION ONE, SHORT TITLE This Act may be cited as the "Bear Protection Act of 2008." SECTION TWO, PURPOSE The purpose of this Act is to ensure the long-term viability of the world's 8 bear species by reinforcing State conservation and management of bear populations. SECTION THREE, BEAR VISCERA DEFINED . . . (a) bear viscera- The term 'bear viscera' - (1) subject to subparagraphs (2) and (3), means the bodily fluids or internal organs of a species of bear, - (2) except as provided in subparagraph (3), includes the gallbladder of such a species and its contents, - (3) does not include blood or brains of such a species SECTION FOUR, DISCOURAGING THE ILLEGAL HARVEST OF BEARS FOR THEIR VISCERA Section Three of the Lacey Act Amendments of 1981 (16 U.S.C. 3372) is amended in subsections (a)(2)(C) and (e)(1) by inserting "bear viscera" after "prohibited wildlife species" where it appears. SECTION FIVE: STATE MANAGEMENT AUTHORITY None of the amendments made by this Act shall be construed to affect the regulation by any state of its bear populations or to affect the hunting of bears that is unlawful under applicable State laws and regulations.
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TESTIMONY SUPPORTING THE BEAR CONSERVATION ACT OF 2008, AMENDING THE LACEY ACT Testimony of Wayne Pacelle, President and Chief Executive Officer The Humane Society of the United States Before the Subcommittee on Fisheries, Wildlife and Oceans March 11, 2008 Thank you Chairwoman Bordallo and members of the Subcommittee for the opportunity to testify in support of both bills being considered today - H.R. 5534, the Bear Protection Act of 2008, introduced by Representatives Raul Grijalva and John Campbell, and H.R. 2964, the Captive Primate Safety Act, introduce by Representatives Eddie Bernice Johnson and Mark Kirk. I am Wayne Pacelle, President and CEO of The Humane Society of the United States (HSUS), the nation’s largest animal protection organization, backed by 10 million Americans - one out of every 30. This bear protection testimony is also offered on behalf of the Bear Working Group of the Species Survival Network and Animals Asia, while the full testimony supporting both bills is also offered on behalf of Born Free USA. BEAR PROTECTION ACT OF 2008 OVERVIEW For more than a decade, HSUS has investigated the national and international trade in bear parts, specifically the gallbladders and bile. The demand for bear viscera across America and in other countries drives bear poaching and the illegal trade in bear parts, and ultimately puts endangered bear species at great risk. Bear parts and derivatives are used in traditional medicines and, increasingly, luxury cosmetic items. The United States has an especially important role to play in bear conservation since it is both a bear range state and a nation with residents who consume bear parts. Congressmen Grijalva and Campbell have crafted a bill that focuses narrowly on a specific problem in global bear conservation: the highly lucrative trade in bear viscera such as the gallbladders and bile that is principally in demand in the enormously large Asian communities at home and abroad. The legislation does nothing to limit states from managing their resident bear populations, establishing bear hunting seasons, or allowing any method of hunting. This is not the first time the Congress has considered this legislation. The Senate passed very similar legislation on two occasions, and in the 107th Congress, the House version of the bill, then authored by Representative Elton Gallegly, attracted nearly 200 cosponsors. LEGAL LOOPHOLES IN THE U.S. The Bear Protection Act creates sound national policy against the trade in bear gallbladders and bile. The absence of federal legislation prohibiting trade in bear parts allows an interstate and international illegal trade to flourish. We should not allow poachers and smugglers to exploit the current inconsistencies in state laws and profit from the sale of bear parts. Currently, individual states have laws to restrict illegal trade. There are 34 states that prohibit the trade in bear gallbladders, while only five states allow commercialization and the remainder either have no regulations or allow sale if the bear was killed outside the state. This legal discrepancy from state to state creates legal ambiguities that complicate enforcement, and these are the openings that poachers and other bear parts sellers exploit. The Bear Protection Act would close loopholes and establish a national policy discouraging bear poaching and curbing the bear parts trade. A number of states represented by members of this committee have strong laws concerning commercialization of bear parts. For example: • Alaska’s Administrative Code notes that a “person may not purchase, sell, barter, advertise, or otherwise offer for sale or barter: (1) any part of a bear, except an article of handicraft made from the fur of a bear.” • California’s Fish and Game Code includes a provision stating that “it is unlawful to sell or purchase, or possess for sale, the meat, skin, hide, teeth, claws, or other parts of any bear in this state” and that “the possession of more than one bear gall bladder is prima facie evidence that the bear gall bladders are possessed for sale.” • In Virginia it is unlawful to “offer for sale, sell, offer to purchase, or purchase, at any time or in any manner, any wild bird or wild animal or the carcass or any part thereof, except as specifically permitted by law.” Despite these strong state laws, poaching of bears and illegal commercialization of bear gallbladders persists, though its precise scale is unknown because of the secretive nature of the trade and of poaching in general. In one case that illustrates the value of the Bear Protection Act, an individual in Alaska was offered bear parts by a man in Idaho where commerce is legal. She agreed to buy them, sent payment, and was arrested when she went to the airport to collect her purchase. Although all of the Alaska resident's actions related to this unlawful purchase were committed within the state, the case was ultimately dismissed because the "legal site" of the purchase was not clearly defined. The Alaska Attorney General's office concluded that this decision “will lead to the inevitable result of encouraging individuals to unlawfully take bears in Alaska, take them outside to places like Idaho where the sale of bear parts is still legal, and sell them to purchasers in Alaska through out-of-state strawmen. This is the very kind of conduct the legislature and Board of Game intended to prevent....This does not further the administration of justice.” As recently as December 2007, a San Diego man was arrested for commercializing bear gallbladders. California Department of Fish and Game Chief of Enforcement Nancy Foley said in an official statement, “The lucrative profits derived from the illegal trade of bear products, most notably bear gall bladders, entice poachers who risk felony convictions.” Members of the Subcommittee may also be familiar with Operation SOUP and Operation VIPER in the Shenandoah Mountains and the large number of people involved in a sophisticated multi-state bear gallbladder smuggling operation. These operations uncovered the movement of bear galls from Virginia to the District of Columbia, Maryland, New York, West Virginia, and South Korea. At the time, Virginia prohibited trade, while West Virginia allowed the trade (as did the District and New York). After these cases made national headlines, West Virginia prohibited commercialization of bear gallbladders. Similar cases of bears being poached for their gallbladders have been uncovered throughout the nation, but we believe enforcement personnel have been able to interdict just a small portion of the trade. The bear parts trade in the United States does not just involve the poaching of American black bears, a species that is clearly not endangered. It may also involve the illegal importation of bear gallbladders or bile from highly endangered bears in Asia. A 2006 investigation by our colleagues at the World Society for the Protection of Animals found that illegal bear products were on sale in Boston, Chicago, Los Angeles, New York, San Francisco, and Seattle. Some of these states ban the commercialization; some allow it; and Illinois has no regulation. The WSPA investigation found that intact bear gallbladders accounted for 63 percent of the bear products for sale in the U.S. and that one of the gallbladders, allegedly from a wild American black bear, sold for $2,800. One out of every six shops visited during the survey sold bear products, and 75% of them claimed to have products from China. While the North American black bear population is healthy, and in most places stable to increasing, there is also clear evidence that bears are poached for their gallbladders and bear parts are being illegally smuggled from state to state and sold for profit. There is incentive to kill bears illegally in one state because individuals can then sell the parts legally in another state - circumventing prohibitions on sale that exist in a large majority of states and undermining the effectiveness of state laws. State wildlife agencies and district attorneys’ offices are hindered in investigating and prosecuting bear poaching and gallbladder trade cases by this patchwork of state laws. Passage of the Bear Protection Act will create a consistent legal framework that will help reduce the number of bears poached globally to supply the trade. MEETING OUR INTERNATIONAL RESPONSIBILITIES All eight extant bear species are listed under the Appendices to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). The spectacled bear (Tremarctos ornatus), Asiatic black bear (Ursus thibetanus), sun bear (Helarctos malayanus), sloth bear (Melursus ursinus), giant panda (Ailuripoda melanoleuca) and some subspecies of brown bear (Ursus arctos) are listed on CITES Appendix I, thus prohibiting international commercial trade in their parts and products. Other species, including the polar bear (Ursus maritimus), some brown bear populations, and the American black bear (Ursus americanus), are listed on Appendix II which means some international trade in their parts and derivatives can occur, under very specific regulations. At the 10th meeting of the Conference of the Parties to CITES in Zimbabwe, the United States co-authored a Resolution on “Conservation of and Trade in Bears.” The Resolution, passed unanimously, begins by: “NOTING that the continued illegal trade in parts and derivatives of bear species undermines the effectiveness of the Convention and that if CITES Parties and States not-party do not take action to eliminate such trade, poaching may cause declines of wild bears that could lead to the extirpation of certain populations or even species.” The resolution then: “URGES all Parties, particularly bear range and consuming countries, to take immediate action in order to demonstrably reduce the illegal trade in bear parts and derivatives by the 11th Meeting of the Conference of the Parties, by: a) confirming, adopting or improving their national legislatio to control the import and export of bear parts and derivatives, ensuring that the penalties for violations are sufficient to deter illegal trade.” The Bear Protection Act is national legislation that meets this international goal. CONCLUSION The passage of this legislation is not a burden upon the Fish and Wildlife Service and its Division of Law Enforcement, but another tool that special agents can use as they see fit. They have discretion in the cases they choose to pursue, and the enactment of that measure does not change the equation for them. The states have major responsibilities here, and the enactment of the Bear Protection Act will serve as a complement to their own enforcement efforts. It is a similar in concept to the enactment by Congress of a federal law years ago to restrict the interstate trade in fighting dogs and birds, even though at the time that the Congress passed that original measure, some states still allowed animal fighting. The world sadly watched for decades as the trade in elephant ivory, rhino horn, and tiger bone contributed to the precipitous decline of these species throughout their range. Now, bears are also targeted, and the threat is tangible, especially given the size of the national and global markets for bear parts. Trading in bear parts is not part of the hunting industry, and frankly it’s not a legitimate industry. The Congress should give it no leniency. - Testimony by Wayne Pacelle, The Human Society of the United States
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THE LACEY ACT (18 U.S.C. 42; 16 U.S.C. 3371-3378) This Act provides authority to the Secretary of the Interior to designate injurious wildlife and ensure the humane treatment of wildlife shipped to the United States. Further, it prohibits the importation, exportation, transportation, sale, or purchase of fish and wildlife taken or possessed in violation of State, Federal, Indian tribal, and foreign laws. The Amendments strengthen and improve the enforcement of Federal wildlife laws and improve Federal assistance to the States and foreign governments in the enforcement of their wildlife laws. Also, the Act provides an important tool in the effort to gain control of smuggling and trade in illegally taken fish and wildlife.
The Lacey Act was originally passed in 1900 to outlaw interstate traffic in birds and other animals illegally killed in their state of origin. It was aimed at the so-called "pot hunter" who killed large amounts of wildlife for sale. Similarly, the Black Bass Act was passed in 1926 to outlaw the interstate transport of illegally taken black bass. Today, the Lacey Act has been amended several times and now combines the Lacey and Black Bass Acts into a single comprehensive statute to provide more effective enforcement of State, Federal, Indian tribal, and foreign conservation laws protecting fish, wildlife, and rare plants. It is a vital tool where the Federal government can aid other governments in enforcing their own conservation laws.
With the exception of the marking offenses, none of the offenses under the Act stand on their own. There must first be a violation of an underlying Federal, State, foreign, or Indian Tribal law, treaty, or regulation relating to fish, wildlife, or rare plants.
> It is unlawful for any person to import, export, transport, sell, receive, acquire, possess, or purchase any fish, wildlife, or plant taken, possessed, transported, or sold in violation of any Federal, State, foreign, or Indian tribal law, treaty, or regulation.
Both criminal and civil penalties can be assessed, depending upon the nature and type of the violation. A civil penalty can be as much as $10,000 if there is evidence that the violator should have known that the fish, wildlife, or plants were taken, possessed, transported, or sold in violation of any underlying law.
> Rewards can be paid to any person who furnishes information leading to an arrest, criminal conviction, civil penalty assessment, or forfeiture of property.
> The maximum civil and criminal penalties have been increased and now include a felony punishment scheme which targets commercial violators and international traffickers.
> When the Lacey Act was amended in 1988 it was determined that the sale and purchase of guiding and outfitting services and invalid licenses and permits constitutes a sale and/or purchase of wildlife.
> Violations involving fish, wildlife, and plants are all subject to the same penalties.
> Restrictions have been relaxed on the marking of packages and containers of fish or wildlife shipped in interstate or foreign commerce to accommodate current industry practices.
> There is a strict liability forfeiture provision for all fish, wildlife, plants, vessels, vehicles, aircraft, or other equipment used in a violation of the Act, except marking violations.
- The Department of the Interior
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TESTIMONY OF BENITO A.
PEREZ, CHIEF, LAW ENFORCEMENT
March 11, 2008 Madam Chairwoman and Members of the Subcommittee, I am Benito Perez, Chief of the U.S. Fish and Wildlife Service’s (Service) Office of Law Enforcement. I am pleased to be here today to discuss H.R. 5534, the “Bear Protection Act of 2008” and H.R. 2964, the “Captive Primate Safety Act.” The Service is the lead Federal agency for wildlife law enforcement, including the enforcement of U.S. laws and treaties that regulate domestic and international wildlife trade. As such, the Service works to curb illegal wildlife trade through inspection activities, investigations, and international liaison and capacity building. The strategic goals and objectives of our Law Enforcement Program include “preventing the unlawful import/export and interstate commerce of foreign fish, wildlife and plants” and “protecting the Nation’s fish, wildlife and plants from unlawful exploitation.” H.R. 5534, the Bear Protection Act of 2008 The Administration has reviewed H.R.5534, the “Bear Protection Act of 2008,” which would amend the Lacey Act Amendments of 1981 to prohibit the trade of bear viscera and bear viscera products in both interstate and international trade. The Administration appreciates the Subcommittee’s interest in ensuring the protection of these important animals. The Administration does not support passage of the legislation as it is largely duplicative of already existing legal authority. Under existing laws and treaties, illegal international trade in bear parts and products is prohibited by both the Endangered Species Act (ESA) and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), which regulates commerce in species listed in its appendices and is implemented through the ESA. In the United States, the Lacey Act prohibits the interstate transport of bear parts and products when taken in violation of state, tribal, and foreign laws. State laws and regulations currently prohibit the sale of black bear viscera throughout nearly the entire range of the species, making the Lacey Act in its current form an effective tool for dealing with illegal trade in bear parts. The Administration has worked consistently under these authorities to ensure that activities in the United States are not contributing to the decline of bear populations nationwide or on a global scale. While American black bear populations are generally stable or increasing throughout most of the natural range of the species, there is one subspecies with small population numbers, the Louisiana Black Bear, that is listed as a threatened species under the Endangered Species Act. Additionally, four states (LA, FL, MS, and TX) have listed the species as rare, threatened, or endangered under state law. The primary threat to these species has been habitat destruction, not poaching for bear viscera. State programs have generally maintained healthy bear populations here in the United States for some time and for this reason, the Administration has long deferred to state management programs, and agrees with the states that no further measures are needed at this time. . . . The Service will continue working with other nations, international groups, states and Federal enforcement counterparts in this country to combat illegal wildlife trade. We welcome the Subcommittee’s interest in strengthening domestic efforts to accomplish this, and appreciate the opportunity to participate in this hearing. Madam Chairwoman, this concludes my prepared remarks. I would be happy to respond to any questions that you may have.
The following appears on the Congressional website for Raul Grijalva at http://grijalva.house.gov/?sectionid=1§iontree=1
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