[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4077 Introduced in House (IH)]







104th CONGRESS
  2d Session
                                H. R. 4077

To clarify hunting prohibitions and provide for wildlife habitat under 
                     the Migratory Bird Treaty Act.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           September 12, 1996

   Mr. Young of Alaska (for himself and Mr. Brewster) introduced the 
    following bill; which was referred to the Committee on Resources

_______________________________________________________________________

                                 A BILL


 
To clarify hunting prohibitions and provide for wildlife habitat under 
                     the Migratory Bird Treaty Act.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Migratory Bird Treaty Reform Act of 
1996''.

SEC. 2. FINDINGS.

    The Congress makes the following findings:
            (1) The Migratory Bird Treaty Act was enacted in 1918 to 
        implement the 1916 Convention for the Protection of Migratory 
        Birds between the United States and Great Britain (for Canada). 
        The Act was later amended to reflect similar agreements with 
        Mexico, Japan, and the former Soviet Union.
            (2) Pursuant to the Migratory Bird Treaty Act, as amended, 
        the Secretary of the Interior is authorized to promulgate 
        regulations specifying when, how, and whether migratory birds 
        may be hunted.
            (3) Contained within these regulations are prohibitions on 
        certain methods of hunting migratory birds to prevent an 
        excessive harvest of the resource. These prohibitions, many of 
        which were recommended by sportsmen, have been in place for 
        over 60 years and have received broad acceptance among the 
        hunting community with one principal exception relating to the 
        application and interpretation of the prohibitions on the 
        hunting of migratory birds by the aid of baiting, or on or over 
        any baited area.
            (4) The prohibitions regarding the hunting of migratory 
        birds by the aid of bait, or on or over bait, have been fraught 
        with interpretive difficulties on the part of law enforcement, 
        the hunting community, and courts of law. Hunters who desire to 
        comply with applicable regulations have been subject to 
        citation for violations of the regulations due to the lack of 
        clarity, inconsistent interpretations, and enforcement. The 
        baiting regulations have been the subject of multiple 
        congressional hearings and a law enforcement advisory 
        commission.
            (5) Restrictions on the hunting of migratory birds by the 
        aid of baiting, or on or over any baited area, must be 
        clarified in a manner that recognizes the national and 
        international importance of protecting the migratory bird 
        resource while ensuring consistency and appropriate enforcement 
        including the principles of ``fair chase''. No baiting 
        restrictions should act as a detriment to the benefits of 
        habitat management including wildlife food crops.

SEC. 3. CLARIFYING HUNTING PROHIBITIONS.

    Section 3 of the Migratory Bird Treaty Act (16 U.S.C. 704) is 
amended as follows:
            (1) By inserting ``(a)'' after ``Sec. 3.''.
            (2) By adding at the end the following:
    ``(b) No person shall take migratory game birds--
            ``(1) with a trap, snare, net, rifle, pistol, swivel gun, 
        shotgun larger than 10 gauge, punt gun, battery gun, machine 
        gun, fish hook, poison, drug, explosive, or stupefying 
        substance;
            ``(2) with a shotgun of any description capable of holding 
        more than 3 shells, unless it is plugged with a one-piece 
        filler, incapable of removal without disassembling the gun, so 
        that its total capacity does not exceed 3 shells;
            ``(3) from or by means, aid, or use of a sinkbox or any 
        other type of low floating device, having a depression 
        affording a hunter a means of concealment beneath the surface 
        of the water;
            ``(4) from or by means, aid or use of any motor vehicle, 
        motor-driven land conveyance, or aircraft of any kind, except 
        that paraplegics and persons missing 1 or both legs may take 
        from any stationary motor vehicle or stationary motor-driven 
        land conveyance;
            ``(5)(A) except as provided in subparagraph (B), from or by 
        means of any motorboat or other craft having a motor attached, 
        or any sailboat, unless the motor has been completely shut off 
        and/or the sails furled, and its progress therefrom has ceased;
            ``(B) a craft under power may be used to retrieve dead or 
        crippled birds (except that crippled birds may not be shot from 
        such craft under power except in the seaduck area, as provided 
        by regulations issued by the Secretary of the Interior);
            ``(6) by means or aid of any motor-driven land, water, or 
        air conveyance, or any sailboat used for the purpose of or 
        resulting in the concentrating, driving, rallying or stirring 
        up of any migratory bird;
            ``(7) by the use or aid of live birds as decoys, including 
        on any area where tame or captive live ducks or geese are 
        present, unless such birds are and have been for a period of 10 
        consecutive days prior to such taking, confined within an 
        enclosure which substantially reduces the audibility of their 
        calls and totally conceals such birds from the sight of wild 
        migratory waterfowl;
            ``(8) by the use or aid of recorded or electrically 
        amplified bird calls or sounds, or recorded or electrically 
        amplified imitations of bird calls or sounds; and
            ``(9) while possessing shot (either in shotshells or loose 
        shot for muzzle-loading) other than steel shot, bismuth-tin 
        shot, or such other shot as may be approved as nontoxic by the 
        Secretary of the Interior; this paragraph applies only to the 
        taking of Anatidae (ducks, geese, including brant, and swans), 
        coots (Fulica americana) and any species that make up aggregate 
        bag limits during concurrent seasons with the former in areas 
        designated as nontoxic shot zones by the Secretary of the 
        Interior.
    ``(c)(1) No person shall take any migratory bird by the aid of 
baiting, or on or over any baited area, where that person knows or 
should have known through the exercise of reasonable diligence that 
bait was present.
    ``(2) Nothing in this subsection shall prohibit--
            ``(A) the taking of all migratory game birds, including 
        waterfowl, on or over standing crops, flooded standing crops 
        (including aquatics), flooded harvested croplands, grain crops 
        properly shocked on the field where grown, or grains found 
        scattered solely as the result of normal agricultural planting 
        or harvesting;
            ``(B) the taking of all migratory game birds, except 
        waterfowl, on or over any lands where shelled, shucked, or 
        unshucked corn, wheat or other grain, salt, or other feed has 
        been distributed or scattered as a result of normal 
        agricultural operations or procedures or as a result of 
        manipulation of a crop or other feed on the land where grown 
        for wildlife management purposes; or
            ``(C) the taking of any migratory game birds, including 
        waterfowl, on or over moist soil on emergent marsh plants--
                    ``(i) that are on the land where the plants were 
                grown;
                    ``(ii) that have been mowed, chopped, disced, or 
                otherwise manipulated; and
                    ``(iii) the presence of which is the result of 
                normal wetland habitat practices performed by the owner 
                of record or any agent of the owner.
    ``(3) For purposes of paragraph (2)(C), the term `moist soil on 
emergent marsh plants'--
            ``(A) means those species of wetland plants which occur 
        naturally in unmanaged wetlands; and
            ``(B) includes, but is not limited to, watergrass/wild 
        millet (Eschinochloa spp.), smartweed (Polygonum spp.), bulrush 
        (Scirpus spp.), swamp timothy (Heleochloa schoenoides), spike 
        rush (Eleocharis spp.), wild rice (Zizania spp.), sedge 
        (Cyperus spp.), cocklebur (Xanthum spp.), sprangle top 
        (Leptochloa spp.), curly dock (Rumex spp.), Pigweed (Amaranthus 
        spp.), cattail (Typha spp.), beggarticks (Bidens spp.), giant 
        reed grass (Phragmites spp.), joint grass (Paspalum spp.), 
        johnson grass (Sorghum spp.), and goosefoot (Chenopodium spp.).
    ``(4) As used in this subsection:
            ``(A) The term `baiting' means the intentional placing, 
        exposing, depositing, distributing, or scattering of shelled, 
        shucked, or unshucked corn, wheat or other grain, salt, or 
        other feed that constitutes for such birds an attraction, on or 
        over any areas where hunters are attempting to take migratory 
        game birds.
            ``(B) The term `baited area' means any area where shelled, 
        shucked, or unshucked corn, wheat or other grain, salt, or 
        other feed whatsoever capable of attracting migratory game 
        birds is intentionally placed, exposed, deposited, distributed, 
        or scattered; such an area shall remain a baited area for 10 
        days following complete removal of all such corn, wheat or 
        other grain, salt, or other feed.
            ``(C)(i) The term `normal agricultural operations' includes 
        the growing of crops where harvesting does not take place, 
        planting for erosion control, top sowing of crops, and 
        distribution or scattering of grains if such operations are 
        normal in a region, except that the term shall not include the 
        distributing or scattering of grain or other feed once it has 
        been removed from or stored on a field where grown unless it is 
        for a normal agricultural operation for feed for farm animals 
        in the region.
            ``(ii) Any other activity may be considered to be a normal 
        agricultural operation only if the Secretary of the Interior, 
        after meaningful consultation with the director of appropriate 
        cooperative State research, education, and extension services, 
        State fish and wildlife agencies, and State extension 
        agricultural offices--
                    ``(I) determines that the activity is normal within 
                the specific regional area in which it occurs; and
                    ``(II) publishes the determination annually in the 
                Federal Register in conjunction with other migratory 
                bird hunting regulations, after public review and 
                comment.
            ``(D) The terms `attraction' and `attracting' mean that the 
        bait was a major contributing factor in luring the migratory 
        birds to within a reasonable shotgun range given other such 
        factors as the geographic location of the hunting venue, the 
        physical characteristics of the hunting area, and the hunting 
        methods used by the hunters.''.

SEC. 4. ACQUISITION OF MIGRATORY BIRD REFUGES.

    Section 6 of the Migratory Bird Treaty Act (16 U.S.C. 707) is 
amended as follows:
            (1) By redesignating subsection ``(c)'' as subsection 
        ``(d)''.
            (2) By inserting after subsection (b), the following:
    ``(c) All fines and penalties assessed and recovered under this 
provision shall be deposited into the migratory bird conservation fund 
established under section 4 of the Act of March 16, 1934 (16 U.S.C. 
718d) to be used only for the location, ascertainment, and acquisition 
of suitable areas for migratory bird refuges under this Act.''.

SEC. 5. PENALTIES.

    Section 6(c) of the Migratory Bird Treaty Act (16 U.S.C. 707(c)) is 
amended as follows:
            (1) By striking ``All guns,'' and inserting ``(1) Except as 
        provided in paragraph (2), all guns''.
            (2) By adding the following at the end:
    ``(2) In lieu of seizing any personal property, the Secretary of 
the Interior shall permit the owner or operator of the personal 
property to post bond or other surety pending the disposition of any 
proceeding under this Act.''.
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