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111th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    111-355

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



 
     MIGRATORY BIRD TREATY ACT PENALTY AND ENFORCEMENT ACT OF 2009

                                _______
                                

December 7, 2009.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

  Mr. Rahall, from the Committee on Natural Resources, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 2062]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Natural Resources, to whom was referred the 
bill (H.R. 2062) to amend the Migratory Bird Treaty Act to 
provide for penalties and enforcement for intentionally taking 
protected avian species, and for other purposes, having 
considered the same, report favorably thereon with an amendment 
and recommend that the bill as amended do pass.

  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Migratory Bird Treaty Act Penalty and 
Enforcement Act of 2009''.

SEC. 2. AMENDMENT OF MIGRATORY BIRD TREATY ACT.

  Section 6 of the Migratory Bird Treaty Act (16 U.S.C. 707) is amended 
by redesignating subsection (d) as subsection (e), and by inserting 
after subsection (c) the following new subsection:
  ``(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.''.

                          Purpose of the Bill

    The purpose of H.R. 2062 is to amend the Migratory Bird 
Treaty Act to provide for increased penalties and fines for the 
intentional and malicious taking of protected bird species.

                  Background and Need for Legislation

    The Migratory Bird Treaty Act (MBTA), which was enacted in 
1918, implements four treaties and conventions between the U.S. 
and Canada, Japan, Mexico and the former Soviet Union for the 
protection of migratory birds. Unless permitted by regulations, 
the strict liability standards of the Act provide that it is 
unlawful to pursue, hunt, take, capture or kill; attempt to 
take, capture or kill; possess, offer to or sell, barter, 
purchase, deliver or cause to be shipped, exported, imported, 
transported, carried or received any migratory bird, part, 
nest, egg or product, manufactured or not. The MBTA also makes 
it unlawful to ship, transport or carry from one state, 
territory or district to another, or through a foreign country, 
any bird, part, nest or egg that was captured, killed, taken, 
shipped, transported or carried contrary to the laws from where 
it was obtained. Subject to limitations in the Act, the 
Secretary of the Interior, through the U.S. Fish and Wildlife 
Service (hereafter, the Service) may 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 will be allowed, having regard for temperature zones, 
distribution, abundance, economic value, breeding habits and 
migratory flight patterns.
    To enforce the MBTA, the Service may arrest a person for 
violating the Act and may execute warrants or other processes 
issued by an officer or court to enforce the Act and search any 
place to pursue a violation. All birds, parts, nests or eggs 
that are illegally taken may be seized and, upon conviction or 
court judgment, be forfeited to the United States and disposed 
of by the Service. The last time Congress amended the Act was 
in 1998 to increase penalties (Public Law 105-312, at Title I). 
At present, a 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, jail up to six months, or both. Anyone 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 Service pending prosecution of 
the violator.
    In May and July of 2007, the Service arrested several 
individuals as part of a 14-month long nationwide undercover 
investigation known as ``Operation High Roller.'' This 
investigation revealed that thousands of federally-protected 
birds of prey, specifically raptor species, including peregrine 
falcons, Cooper's hawks and red-tailed hawks, were being 
illegally killed in Texas, New Mexico, Oregon, Washington and 
California by members of Roller Pigeon Clubs. The Service 
arrested a total of 12 individuals. Affidavits revealed that 
these perpetrators repeatedly and deliberately killed protected 
raptors using methods that included shooting, trapping, 
poisoning, suffocating, clubbing, baiting birds into glass 
panels, and baiting birds with pigeons rigged with fishing 
hooks. Affidavits also revealed that certain perpetrators 
utilized particularly cruel methods, such as spraying a mixture 
of bleach and ammonia directly into the eyes and mouths of 
trapped birds. Despite the horrific nature of these crimes, 
defendants who pleaded guilty to the Class B misdemeanor 
escaped with fines far smaller than the maximum allowed and 
were granted probation, directed to complete community service, 
or restricted from participating in their sport. This case has 
been used by bird conservation organizations and other 
interested stakeholders to argue that current federal law does 
not take these crimes seriously, and that existing MBTA 
penalties and fines are insufficient to function as a deterrent 
to prevent or dissuade illegal activity from happening.

                            Committee Action

    H.R. 2062 was introduced on April 23, 2009 by 
Representative Peter DeFazio (D-OR). The bill was referred to 
the Committee on Natural Resources, and within the Committee to 
the Subcommittee on Insular Affairs, Oceans and Wildlife. On 
May 13, 2009, the Subcommittee held a hearing on the bill. 
Witnesses representing state fish and wildlife agencies and 
bird conservation organizations testified in support of the 
bill. The Administration also testified in support of the 
purpose of the bill but expressed interest in working with the 
Committee to clarify the scope and intent of the new penalties 
and fines to improve their use in prosecution and to enhance 
their effectiveness as a deterrent to illegal actions.
    On November 18, 2009, the Subcommittee was discharged from 
the further consideration of H.R. 2062 and the full Natural 
Resources Committee met to consider the bill. Representative 
DeFazio offered an amendment in the nature of a substitute to 
narrow and clarify the scope and intent of the bill in response 
to the suggestions made by the Administration and other 
stakeholders. The amendment struck the existing bill language 
and adopted new language authorizing a two-step penalty 
approach adapted from existing penalties authorized under the 
Bald and Golden Eagle Protection Act (16 U.S.C. 668-668c). The 
amendment in the nature of a substitute was adopted by 
unanimous consent. The bill, as amended, was then ordered 
favorably reported to the House of Representatives by unanimous 
consent.

                      Section-by-Section Analysis


Section 1. Short title

    Section 1 provides that this Act 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.'' In accordance with 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 are increased 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. This 
definition, which was developed during five months of 
discussions with the bill's sponsor and the Committee Minority, 
the Service, the Solicitor's Office at the Department of the 
Interior and other interested stakeholders, is intended to 
ensure that the provisions of the legislation are utilized to 
address deliberate kills and wounding of a bird or birds that 
are undertaken in a manner involving one or more of the 
following elements: (1) acts that are depraved in nature, 
including, but not limited to acts involving mutilation or 
prolonged suffering of migratory birds; (2) acts that 
demonstrate wanton disregard for the lives of migratory birds; 
or (3) acts that involve solicitation of other parties to 
participate in the unlawful killing or wounding of migratory 
birds. The Committee does not intend for these new sanctions to 
target activities undertaken for other purposes through which 
birds are incidentally killed or wounded in violation of the 
MBTA, nor are these violations intended to apply to the legal 
take of migratory birds through regulated hunting or other 
permitted take. These amendments have no effect on the strict 
liability provisions of the MBTA.

            Committee Oversight Findings and Recommendations

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Natural Resources' oversight findings and 
recommendations are reflected in the body of this report.

                   Constitutional Authority Statement

    Article I, section 8 of the Constitution of the United 
States grants Congress the authority to enact this bill.

                    Compliance With House Rule XIII

    1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the 
Rules of the House of Representatives requires an estimate and 
a comparison by the Committee of the costs which would be 
incurred in carrying out this bill. However, clause 3(d)(3)(B) 
of that rule provides that this requirement does not apply when 
the Committee has included in its report a timely submitted 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974.
    2. Congressional Budget Act. As required by clause 3(c)(2) 
of rule XIII of the Rules of the House of Representatives and 
section 308(a) of the Congressional Budget Act of 1974, this 
bill does not contain any new budget authority, spending 
authority, credit authority, or an increase or decrease in 
revenues or tax expenditures.
    3. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goal or 
objective of this bill is to amend the Migratory Bird Treaty 
Act to provide for increased penalties and fines for the 
intentional and malicious taking of protected bird species.
    4. Congressional Budget Office Cost Estimate. Under clause 
3(c)(3) of rule XIII of the Rules of the House of 
Representatives and section 403 of the Congressional Budget Act 
of 1974, the Committee has received the following cost estimate 
for this bill from the Director of the Congressional Budget 
Office:

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 bill 
could affect direct spending and revenues, but 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.
    The CBO staff contact for this estimate is Mark Grabowicz. 
The estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                    Compliance With Public Law 104-4

    This bill contains no unfunded mandates.

                           Earmark Statement

    H.R. 2062 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of rule XXI.

                Preemption of State, Local or Tribal Law

    This bill is not intended to preempt any State, local or 
tribal law.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, 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. 6. (a) * * *

           *       *       *       *       *       *       *

  (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.

           *       *       *       *       *       *       *