```

[Senate Report 111-375]
[From the U.S. Government Publishing Office]

                                                       Calendar No. 714
111th Congress                                                   Report
                                 SENATE
 2d Session                                                     111-375

======================================================================

 
     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.

                                  

```