[Senate Report 105-366]
[From the U.S. Government Publishing Office]
Calendar No. 699
105th Congress Report
SENATE
2d Session 105-366
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MIGRATORY BIRD TREATY REFORM ACT OF 1998
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October 5 (legislative day, October 2), 1998.--Ordered to be printed
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Mr. Chafee, from the Committee on Environment and Public Works,
submitted the following
R E P O R T
[to accompany H.R. 2863]
The Committee on Environment and Public Works, to which was
referred a bill (H.R. 2863) to amend the Migratory Bird Treaty
Act to clarify restrictions under that Act on baiting, to
facilitate acquisition of migratory bird habitat, and for other
purposes, having considered the same, reports favorably thereon
with an amendment, and recommends that the bill, as amended, do
pass.
General Statement and Background
Congress enacted the Migratory Bird Treaty Act (MBTA) in
1918 to implement the 1916 Convention for the Protection of
Migratory Birds between Great Britain (then having treaty-
making power for Canada) and the United States. The United
States entered into subsequent treaties with Mexico, Japan and
the former Soviet Union to protect migratory birds, and these
treaties are also implemented through the MBTA. Except as
permitted by regulation adopted by the Secretary of the
Interior, the MBTA makes it illegal ``to pursue, hunt, take,
capture, kill, attempt to take, capture, or kill, possess,
offer for sale'' migratory birds. In accordance with the
treaties, the Secretary issues regulations establishing open
seasons to hunt certain migratory birds, referred to as
migratory game birds, including wild species of ducks, geese,
brants, coots, gallinules, rails, snipes, woodcocks, and
mourning and white-wing doves.
In 1935, the Secretary issued regulations for migratory
game bird hunting, including the practice of baiting, which is
the placement of corn, wheat or other grain, salt or feed to
attract or lure birds for hunting. Currently, regulations at 50
CFR 20.21(i) prohibit persons from taking a migratory game bird
``by the aid of baiting, or on or over any baited area.'' A
baited area is defined as the ``area where shelled, shucked or
unshucked corn, wheat or other grain, salt, or other feed
whatsoever capable of luring, attracting, or enticing such
birds is directly or indirectly placed, exposed, deposited,
distributed, or scattered.'' The regulations further provide
that the bait must have been removed for ten days before the
area would no longer be deemed ``a baited area''. The
regulations provide exceptions for areas of standing crops, and
areas where grains were scattered as a result of normal
agricultural planting or harvesting, bona fide agricultural
practices, or manipulation of a crop grown for wildlife
management purposes.
Although the regulations relating to baiting have been
modified a number of times, they have never required any
knowledge or intent by the hunter in taking a migratory game
bird with the aid of bait or over a baited field. The crime--a
class B misdemeanor--was one of strict liability. Indeed, until
recently, all the offenses under the MBTA were strict
liability, a hallmark of the law. In 1978, the Fifth Circuit,
in United States v. Delahoussaye, 573 F.2d 910, broke with this
longstanding interpretation and became the first appellate
court to hold that before a person can be prosecuted for taking
a bird over a baited field, the prosecution must show that the
person ``should have known'' that the area was baited.
In 1985, the Sixth Circuit held, in United States v. Wulff,
758 F.2d 1121, that strict liability felony crimes under the
MBTA (relating to the sale of migratory bird parts) violated
the due process rights of the defendant. In response, Congress
added a scienter requirement for felony offenses under the
MBTA, and expressly reinforced the strict liability standard
for misdemeanors, which included baiting-related offenses.
In 1991, amid much criticism that the migratory bird
hunting regulations were outdated and difficult to understand,
the U.S. Fish and Wildlife Service (the Service) published a
notice stating its intent to revise the regulations. In 1997,
the International Association of Fish and Wildlife Agencies
formed a committee to study the regulations. This committee
made several recommendations to the Service, including a change
in the standard from strict liability to knowledge for baiting
offenses. In March 1998, the Service published a proposed rule
making numerous changes to the regulations, relating to
agricultural practices and moist-soil management, to clarify
and simplify the baiting regulations. The Service did not
propose to change the strict liability standard.
Summary and Objectives of the Legislation
This legislation modifies the standard of liability
applicable to hunting with bait or over baited areas.
Specifically, the standard is changed from one of strict
liability to one requiring a degree of knowledge. It also makes
baiting a separate offense, increases the penalties for
baiting-related offenses, and requires a study of the impacts
of this legislation.
The primary purpose of this legislation is to address the
questions of fairness raised by the strict liability standard
as it applies to baiting. Of all the offenses under the MBTA,
baiting-related offenses present unique problems for the
hunter, who might not be able to know, no matter how diligent
the hunter might be, whether a neighboring field is baited. The
elimination of strict liability will allow hunters to present
evidence that they took necessary precautions, and made
necessary efforts, to ensure that the areas in which they were
hunting were not baited.
The elimination of strict liability, however, applies only
to hunting with bait or over baited areas, and is not intended
in any way to reflect upon the general application of strict
liability under the MBTA. Since the MBTA was enacted in 1918,
offenses under the statute have been strict liability crimes.
The only deviation from this standard was in 1986, when
Congress required scienter for felonies under the Act.
Section-By-Section Analysis
Section 1. Short Title
This section designates the bill as the Migratory Bird
Treaty Reform Act of 1998.
Section 2. Eliminating Strict Liability for Baiting
This section makes two changes to the MBTA. First, it
prohibits any person from taking a migratory bird by the aid of
baiting, or on or over a baited area, if the person knows or
reasonably should know that the area is baited. Second, it
prohibits any person from placing or directing the placement of
bait on or adjacent to an area for the purpose of causing,
inducing, or allowing any person to take or attempt to take any
migratory game bird by the aid of baiting on or over the baited
area. The new scienter requirement established by this section
applies to knowledge of fact, not knowledge of the law. The
purpose of this section is to address instances of unfairness
to hunters who have been prosecuted for hunting over baited
areas when that they could not reasonably have known that the
area had been baited.
Section 3. Criminal Penalties
This section increases the penalty under section 6(a) of
the MBTA from $500 to $10,000. Although the MBTA itself
provides fines of $500, title 18 of the United States Code
allows for a maximum penalty of $5,000. These offenses would
remain class B misdemeanors, considered petty offenses.
The bill also creates a new, higher penalty for persons who
violate section 3(b) of the MBTA in connection with guiding,
outfitting, or providing any other service offered, provided,
or obtained in exchange for money or other consideration.
Specifically, such persons shall be fined under title 18 of the
United States Code or imprisoned not more than one year, or
both. This would make the offense a class A misdemeanor. This
higher penalty is intended to discourage commercial operations
from engaging in baiting.
Section 4. Report
This section mandates that the Secretary submit to Congress
a report analyzing the effect of this legislation, and the
general practice of baiting, in migratory bird conservation and
law enforcement efforts under the MBTA. The report is due no
later than five years after the date of enactment of this bill.
The purpose of this report is to provide Congress with
additional information with which to consider this issue in the
future. The committee held a hearing on this legislation on
September 24, 1998, during which it was clear that, other than
anecdotal information, relatively little evidence exists to
definitively support either side of the debate on the merits of
this legislation. Three general issues of debate were raised,
and each should be addressed in the report. The first is
whether baiting itself has a significant impact on conservation
of migratory birds, and specifically whether this impact can be
compensated by adjusting the bag limits and seasons. The second
is whether the addition of a scienter requirement for baiting-
related offenses will affect migratory bird conservation by
increasing the practice of baiting among hunters. The third,
and most important, is whether the addition of a scienter
requirement will affect law enforcement efforts. In particular,
the report should consider whether the new standard has
hindered enforcement efforts because of difficulties in
demonstrating that a hunter knew or should have known that an
area was baited. The committee intends to reexamine this issue
in five years, after this study is completed.
Regulatory Impact Statement
In compliance with section 11(b) of rule XXVI of the
Standing Rules of the Senate, the committee makes evaluation of
the regulatory impact of the reported bill. The reported bill
will have no regulatory impact. This bill will not have any
adverse impact on the personal privacy of individuals.
Mandates Assessment
In compliance with the Unfunded Mandates Reform Act of 1995
(Public Law 104-4), the committee finds that H.R. 2863 would
impose no Federal intergovernmental unfunded mandates on State,
local, or tribal governments. All of its governmental
directives are imposed on Federal agencies. The bill does not
directly impose any private sector mandates.
Hearings
On September 29, 1998, the committee held a hearing on H.R.
2863. Testimony was given by Senator Thad Cochran of
Mississippi; Senator John Breaux of Louisiana; Mr. Kevin Adams,
U.S. Fish and Wildlife Service; Dr. Doug Inkley, National
Wildlife Federation; Ms. Tanya Metaksa, National Rifle
Association; Ms. Laura Hood, Defenders of Wildlife; and Mr.
Brent Manning, Illinois Department of Environmental Resources.
Legislative History
On November 6, 1997, Representative Young introduced H.R.
2863, a bill to amend the Migratory Bird Treaty Reform Act to
clarify restrictions under that Act on baiting, to facilitate
acquisition of migratory bird habitat, and for other purposes.
On November 13, 1997, Senator Breaux introduced S. 1533, a
nearly identical bill. On April 29, 1998, the House Committee
on Resources reported H.R. 2863 with a substitute amendment,
which was passed by the House of Representatives on September
10, 1998. On September 14, 1998, the bill was received in the
Senate and referred to the Senate Committee on Environment and
Public Works. On October 2, 1998, the committee held a business
meeting to consider H.R. 2863. Senator Chafee offered two
amendments, which were adopted by voice vote. H.R. 2863, as
amended, was favorably reported out of the committee by voice
vote. No rollcall votes occurred on this bill.
Cost of Legislation
Section 403 of the Congressional Budget and Impoundment
Control Act requires that a statement of the cost of the
reported bill, prepared by the Congressional Budget Office, be
included in the report. That statement has been requested.
However, it is the opinion of the committee that the business
of the Senate should proceed without delay, and that the CBO
statement will be printed in the Congressional Record when it
is available.
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:
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UNITED STATES CODE--TITLE 16--CONSERVATION
CHAPTER 7--PROTECTION OF MIGRATORY GAME AND INSECTIVOROUS BIRDS
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SUBCHAPTER II--MIGRATORY BIRD TREATY
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Sec. 704. Determination as to when and how migratory birds may be
taken, killed, or possessed
(a) Subject to the provisions and in order to carry out the
purposes of the conventions, referred to in section 703 of this
title, the Secretary of the Interior is authorized and
directed, from time to time, having due regard to the zones of
temperature and to the distribution, abundance, economic value,
breeding habits, and times and lines of migratory flight of
such birds, to determine when, to what extent, if at all, and
by what means, it is compatible with the terms of the
conventions to allow hunting, taking, capture, killing,
possession, sale, purchase, shipment, transportation, carriage,
or export of any such bird, or any part, nest, or egg thereof,
and to adopt suitable regulations permitting and governing the
same, in accordance with such determinations, which regulations
shall become effective when approved by the President.
(b) It shall be unlawful for any person to--
(1) take any migratory game bird by the aid of
baiting, or on or over any baited area, if the person
knows or reasonably should know that the area is a
baited area; or
(2) place or direct the placement of bait on or
adjacent to an area for the purpose of causing,
inducing, or allowing any person to take or attempt to
take any migratory game bird by the aid of baiting on
or over the baited area.
* * * * * * *
Sec. 707. Violations and penalties; forfeitures
(a) Except as otherwise provided in this section, any
person, association, partnership, or corporation who shall
violate any provisions of said conventions or of this
subchapter, or who shall violate or fail to comply with any
regulation made pursuant to this subchapter shall be deemed
guilty of a misdemeanor and upon conviction [thereof shall be
fined not more than $500]--
(1) shall be fined not more than $10,000 or be imprisoned
not more than six months, or both[.];
(2) in the case of a violation of paragraph (1) or
(2) of section 3(b) that is committed in connection
with guiding, outfitting, or providing any other
service offered, provided, or obtained in exchange for
money or other consideration, shall be fined under
title 18, United States Code, imprisoned not more than
1 year, or both.
(b) Whoever, in violation of this subchapter, shall
knowingly--
(1) take by any manner whatsoever any migratory
bird with intent to sell, offer to sell, barter or
offer to barter such bird, or
(2) sell, offer for sale, barter or offer to
barter, any migratory bird shall be guilty of a felony
and shall be fined not more than $2,000 or imprisoned
not more than two years, or both.
(c) 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 subchapter with the intent
to offer for sale, or sell, or offer for barter, or barter such
bird in violation of this subchapter shall be forfeited to the
United States and may be seized and held pending the
prosecution of any person arrested for violating this
subchapter and upon conviction for such violation, such
forfeiture shall be adjudicated as a penalty in addition to any
other provided for violation of this subchapter. Such forfeited
property shall be disposed of and accounted for by, and under
the authority of, the Secretary of the Interior.
* * * * * * *