Secretariat seeks information for Migratory Birds factual record

The alleged failure to effectively enforce the MBTA was asserted in the Migratory Birds submission (SEM-99-002), filed on 19 November 1999, by the Alliance for the Wild Rockies, Center for International Environmental Law, Centro de Derecho Ambiental del Noreste de Mexico, Centro Mexicano de Derecho Ambiental, Friends of the Earth, Instituto de Derecho Ambiental, Pacific Environment and Resources Center, Sierra Club of Canada and West Coast Environmental Law Association. The Submitters contend that the United States is failing to effectively enforce section 703 of the MBTA, which prohibits the "taking" of birds and their nests and eggs, against logging operations throughout the United States. The Submitters cited two California cases as specific examples of the alleged failure to effectively enforce the MBTA. In its response, the United States admitted that it has never enforced section 703 against a logging operation, and claimed that non-enforcement of the Act against logging operations is a reasonable exercise of enforcement discretion and results from a bona fide allocation of enforcement resources to higher enforcement priorities.

On 15 December 2000, in light of the submission and the United States' response, the Secretariat recommended that a factual record be prepared for the submission. On 16 November 2001, the Council instructed the Secretariat to prepare a factual record, but only with regard to the two California cases identified in the submission.

Under Article 14 of the North American Agreement on Environmental Cooperation (NAAEC), the Secretariat may consider a submission from any person or nongovernmental organization asserting that a Party to NAAEC is failing to effectively enforce its environmental law. Where the Secretariat determines that the NAAEC Article 14(1) criteria are met, it may then proceed with a process that can lead to the development of a factual record on the matter. A factual record provides detailed factual information to allow interested persons to assess whether a Party has effectively enforced its environmental law with respect to the matter raised in the submission.

Under Article 15(4) and 21(1)(a) of the NAAEC, in developing a factual record, the Secretariat shall consider any information furnished by a Party and may ask a Party to provide information. The Secretariat also may consider any relevant technical, scientific or other information that is publicly available, submitted by the Joint Public Advisory Committee (JPAC) or by interested nongovernmental organizations or persons, or developed by the Secretariat or independent experts. In accordance with Article 15(7) of NAAEC, the Council may, by a two-thirds vote, make the final factual record publicly available.

The CEC was established under NAAEC to address environmental issues in North America from a continental perspective, with a particular focus on those arising in the context of liberalized trade. The CEC Council, the organization's governing body, is composed of the environment ministers (or equivalent) of Canada, Mexico and the United States.