[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.

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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.

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