[Senate Report 111-375]
[From the U.S. Government Publishing Office]
Calendar No. 714
111th Congress Report
SENATE
2d Session 111-375
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MIGRATORY BIRD TREATY ACT PENALTY AND ENFORCEMENT ACT OF 2009
_______
December 17, 2010.--Ordered to be printed
_______
Mrs. Boxer, from the Committee on Environment and Public Works,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 2062]
[Including cost estimate of the Congressional Budget Office]
The Committee on Environment and Public Works, to which was
referred a bill (H.R. 2062) to amend the Migratory Bird Treaty
Act (MBTA) to provide for penalties and enforcement for
intentionally taking protected avian species, and for other
purposes, having considered the same, reports favorably thereon
and recommends that the bill do pass.
Background and Need for the Legislation
The MBTA implements treaties and conventions for the
protection of migratory birds among the U.S., Canada, Japan,
Mexico and the former Soviet Union. Among other things, the Act
provides that, except as expressly permitted by regulation, it
is unlawful to pursue, hunt, take, capture or kill, or attempt
to take, capture or kill, any migratory bird. The Act provides
that the Secretary of the Interior, through the U.S. Fish and
Wildlife Service (FWS) shall adopt regulations determining the
extent to which, if at all, hunting, taking, capturing,
killing, possessing, selling, purchasing, shipping,
transporting or exporting of any migratory bird, part, nest or
egg are permitted.
The requirements of the Act are enforced by the FWS,
including through assertion of criminal penalties. Such
penalties include:
Any person, association, partnership or
corporation which violates the MBTA or its regulations may be
found guilty of a Class B misdemeanor and subject to a fine of
up to $15,000, jailed for up to six months, or both.
Any person who knowingly takes a migratory bird
with commercial intent may be found guilty of a felony with a
maximum fine of $2,000, no more than two years' imprisonment,
or both.
All guns, traps, nets, vessels, vehicles and other
equipment used in pursuing, hunting, taking, trapping,
ensnaring, capturing, killing, or any attempt on a migratory
bird in violation of the Act with the intent to sell or barter,
must be forfeited to the U.S. and may be seized and held by the
FWS pending prosecution of the violator.
In 2006 and 2007 a FWS investigation determined that
thousands of legally protected birds of prey, including
peregrine falcons, Cooper's hawks and red-tailed hawks, had
been illegally killed often using intentionally cruel methods.
There is concern that the current MBTA does not provide
sufficient sanctions to act as a deterrent to this kind of
illegal conduct.
The purpose of H.R. 2062 is to provide for increased
penalties for intentional and malicious taking of protected
bird species.
H.R. 2062 amends the MBTA to provide additional new
penalties for killing or wounding migratory birds protected by
the Act in an aggravated manner. For the first violation, a
person would be subject to a fine of up to $100,000 under Title
18 of the U.S. Code and/or imprisonment for up to one year. For
the second violation, a person would be subject to a fine of up
to $250,000 and/or imprisonment for up to two years.
H.R. 2062 also allows the use of law enforcement authority
under section 3(k) of the Fish and Wildlife Improvement Act of
1978. This provision authorizes payment for information,
rewards, or evidence concerning violations, with respect to the
killing or wounding of a migratory bird in an aggravated
manner.
Section-by-Section Analysis
Section 1. Short title
Section 1 provides that the bill may be cited as the
Migratory Bird Treaty Act Penalty and Enforcement Act of 2009.
Section 2. Amendment of Migratory Bird Treaty Act
Section 2 of the bill would amend section 707 of the
Migratory Bird Treaty Act to insert a new subsection (d) to
establish additional misdemeanor and felony penalties and fines
for actions that either kill or wound a protected bird species
in an ``aggravated manner.'' Pursuant to federal sentencing
guidelines (see 18 U.S.C. 3559 and 18 U.S.C. 3571), for such a
violation a person could be charged: (1) With a Class A
misdemeanor for a first offense and subject to a fine of up to
$100,000, or in cases resulting in a death, $250,000, and/or
imprisonment of no less than six months and no more than one
year; or (2) with a Class E felony for a second or subsequent
offense and subject to a fine of up to $250,000 and/or
imprisonment for no less than one year and no more than two
years. Federal guidelines also provide that fines for
organizations areincreased to no more than $200,000 for a Class
A misdemeanor, or in cases resulting in a death, $500,000, and to no
more than $500,000 for a Class E felony.
Paragraph (2) of the new subsection (d) makes applicable
existing authority under the Fish and Wildlife Improvement Act
of 1978 (16 U.S.C. 7421(k)) to allow the Secretary of the
Interior to offer reward payments for information leading to an
arrest or conviction for these new violations.
Paragraph (3) of the new subsection (d) defines the term
``aggravated manner'' to mean the deliberate killing or
wounding of a migratory bird in a manner that demonstrates
indifference to the pain and suffering of the bird, or that
involves actions that would shock a reasonable person. The
Committee does not intend for these new sanctions to apply to
activities undertaken for other purposes through which birds
are incidentally killed or wounded in violation of the MBTA
(such as bird strikes against fixed facilities), nor are these
violations intended to apply to the legal take of migratory
birds through regulated hunting or other permitted take.
Legislative History
On April 23, 2009, H.R. 2062 was introduced in the House by
Representative Peter DeFazio. It was referred to the House
Committee on Natural Resources, Subcommittee on Insular
Affairs, Oceans and Wildlife where it was reported (as amended)
by unanimous consent on November 18, 2009. The full House
passed the bill by voice vote on December 7, 2009. It was
referred to the EPW Committee on December 8, 2009.
On November 20, 2009, Senator Merkley had introduced
companion legislation, S. 2811, which was referred to the EPW
Committee.
On April 21, 2010, the EPW Committee held a business
meeting at which H.R. 2062 was considered and approved.
Rollcall Vote
At the business meeting held on April 21, 2010, the
Committee voted to approve H.R. 2062 and to report the bill to
the full Senate by a voice vote, with Senators Inhofe, Crapo,
and Voinovich recorded as voting ``nay,'' and Senators Merkley,
Specter, and Vitter recorded as voting ``yea.''
Regulatory Impact Statement
In compliance with section 11(b)(2) of rule XXVI of the
Standing Rules of the Senate, the Committee estimates that no
regulatory impact is expected by the passage of the bill. The
bill will not affect the personal privacy of individuals.
Mandates Assessment
In compliance with the Unfunded Mandates Reform Act of 1995
(Public Law 104-4), the Committee notes that the Congressional
Budget Office has concluded that ``H.R. 2062 contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act and would not affect the budgets
of state, local, or tribal governments.''
Congressional Budget Office Cost Estimate
In compliance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office.
As ordered reported by the Senate Committee on Environment
and Public Works on April 21, 2010:
April 28, 2010.
Hon. Barbara Boxer,
Chairman, Committee on Environment and Public Works,
U.S. Senate, Washington, DC.
Dear Madam Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2062, the
Migratory Bird Treaty Act Penalty and Enforcement Act of 2009.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
Douglas W. Elmendorf.
Enclosure
H.R. 2062--Migratory Bird Treaty Act Penalty and Enforcement Act of
2009
CBO estimates that implementing H.R. 2062 would have no
significant cost to the federal government. Enacting the
legislation could affect direct spending and revenues;
therefore, pay-as-you go procedures would apply, but CBO
estimates that any such effects would not be significant.
H.R. 2062 would expand the current federal laws and
penalties that protect migratory birds. Thus, the government
might be able to pursue cases that it otherwise would not be
able to prosecute. CBO expects that H.R. 2062 would apply to a
relatively small number of offenders, however, so any increase
in costs for law enforcement, court proceedings, or prison
operations would not be significant. Any such costs would be
subject to the availability of appropriated funds.
Because those prosecuted and convicted under H.R. 2062
could be subject to criminal fines, the federal government
might collect additional amounts if the legislation is enacted.
Criminal fines are recorded as revenues, deposited in the Crime
Victims Fund, and later spent. CBO estimates that any
additional revenues and direct spending would not be
significant because of the small number of cases likely to be
affected.
H.R. 2062 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
On November 20, 2009, CBO transmitted a cost estimate for
H.R. 2062 as ordered reported by the House Committee on Natural
Resources on November 18, 2009. The two versions of the
legislation are the same, as are the CBO cost estimates.
The CBO staff contact for this estimate is Mark Grabowicz.
The estimate was approved by Peter H. Fontaine, Assistant
Director for Budget Analysis.
MINORITY VIEWS OF SENATOR INHOFE
There is no disagreement that protection of migratory birds
is desirable, in fact, it is already against the law to kill a
migratory bird. What is problematic is the use of the overly
harsh penalties and vague language contained in this bill.
These points need to be addressed before the bill moves
forward.
Under the proposed bill, the penalties imposed upon those
who violate the law regarding the killing of migratory birds do
not fit the crime. The proposed fines and sentences placed on
those convicted are unprecedented in their severity. The bill
references a FWS investigation of illegally killed protected
birds, some of which were killed using ``intentionally cruel
methods''. This investigation culminated in a Federal Court
case in 2008. Federal Judge J. Kelly Arnold ruled against
imposing the maximum sentence for a man who pleaded guilty to
killing a Peregrine Falcon. This was classified as a Class B
misdemeanor, which carried a fine of up to $15,000, jail for
six months, or both. Judge Arnold sentenced the man 120 hours
of community service, stating that a stricter sentence would
just be ``overkill'' and would cause irreparable financial
damage to him and his family. As currently drafted, this bill
ignores the Judge's decision in the 2008 case, and in fact
moves in the opposite direction and imposes an even harsher
penalty. In order to achieve the desired result, it is crucial
to insure the proportionality of the punishment to the offense,
as demonstrated by the Judge's decision in this case.
Therefore, the unreasonably high penalties need to be further
reviewed before continuing with this bill.
A second cause for concern is the vague language used to
describe the nature of the offense. Language such as
``intentionally cruel'', ``malicious'', and ``aggravated'' fail
to effectively define the offense itself and leave much up to
personal interpretation. Furthermore, the bill defines the term
``aggravated manner'' as ``the deliberate killing or wounding
of a migratory bird in a manner that demonstrates indifference
to the pain and suffering of the bird, or that involves actions
that would shock a reasonable person''. Again, this description
is completely subjective and biased. If we are to achieve the
desired result, which is to appropriately penalize those who
kill migratory birds, then we must be specific on what is the
threshold of behavior that triggers the penalty. Aggravated
activity should be more specifically defined demonstrating
severe recklessness or severely depraved actions. Convictions
under that charge should be reserved for particularly heinous
behavior. As currently drafted, the bill fails to do that.
James M. Inhofe.
Changes in Existing Law
In compliance with section 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill
as reported are shown as follows: Existing law proposed to be
omitted is enclosed in [black brackets], new matter is printed
in italic, existing law in which no change is proposed is shown
in roman:
* * * * * * *
MIGRATORY BIRD TREATY ACT
* * * * * * *
Sec. 2. (a) In General.--* * *
* * * * * * *
Sec. 6.
(c) Whoever violates section 3(b)(2) shall be fined under
title 18, United States Code, imprisoned not more than 1 year,
or both.
(d)(1) Except in the case of hunting and other activity
allowed under section 3, whoever in violation of this Act kills
or wounds a migratory bird in an aggravated manner shall, in
lieu of any penalty for such violation--
(A) for the first violation, be fined under title 18,
United States Code, imprisoned for not more than one
year, or both; and
(B) for the second and any subsequent violation, be
fined under title 18 of the United States Code,
imprisoned for not more than 2 years, or both.
(2) The authority under section 3(k) of the Fish and
Wildlife Improvement Act of 1978 (16 U.S.C. 742l(k)) applies
with respect to a violation described in paragraph (1).
(3) For the purposes of this subsection the term
`aggravated manner' means deliberately and in a manner that--
(A) demonstrates indifference to the pain and
suffering of the bird; or
(B) involves actions that would shock a reasonable
person.
[(d)] (e) All guns, traps, nets and other equipment,
vessels, vehicles, and other means of transportation used by
any person when engaged in pursuing, hunting, taking, trapping,
ensnaring, capturing, killing, or attempting to take, capture,
or kill any migratory bird in violation of this Act with the
intent to offer for sale, or sell, or offer for barter, or
barter such bird in violation of this Act shall be forfeited to
the United States and may be seized and held pending the
prosecution of any person arrested for violating this Act and
upon conviction for such violation, such forfeiture shall be
adjudicated as a penalty in addition to any other provided for
violation of this Act. Such forfeited property shall be
disposed of and accounted for by, and under the authority of,
the Secretary of the Interior.