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Update 25 June: As feared, Duncan won't give up. He has now proposed an amendment to H.R.2822: ‘‘:Provided further, That none of such funds and appropriations may be used to enforce any prohibition under the Migratory Bird Treaty Act (16 U.S.C. 703 et seq.) or the Act of June 8, 1940 (chapter 278; 16 U.S.C. 668 et seq.; popularly known as the Bald Eagle Protection Act) on the accidental [sic; he is actually alluding to incidental take, not accidental take] taking of birds, before the date of the issuance of a rule that exempts such takings from such prohibitions’’.
Although Duncan purports to be concerned about the unfairness of the prosecution for incidental take (which has been very, very rare and only after industries have had ample warning that they need to take measures to prevent such take), this provision bars any enforcement under the MBTA, even for deliberate or intentional take. Someone could go out and kill hundreds or thousands of birds and the USFWS and the Justice Department would be powerless to do anything.
If you are concerned about this measure, write your members of Congress! Use the webform for your representative on House.gov, be sure to include your full address and zip code, keep it short and to the point. Make clear what you are asking (i.e., please vote against [bill number] and give your reason.
Update 15 June: The Senate version of the CJS appropriations bill that came out of the full appropriations committee on 6/11 does not contain any provisions pertinent to the MBTA or MBTA enforcement but Rep. Duncan (the sponsor of the amendment in the House bill) is pushing for the provision to be included in a manager's amendment. A manager's amendment is usually a package of smaller amendments so if any one is important, they usually all go through. They usually negotiate the manager's amendment in advance so it is almost certain to go through. Therefore, there is still a very real chance that this bill could become law.
Since this is an election year, there is a big push to get appropriations done before the August recess so this could move extremely fast. It is therefore very important, if this bill is of concern to you, that you voice your concern to your Senators ASAP.
Hard to believe, but true. Congressman Jeff Duncan (R., S.C.) offered an amendment to the House appropriations bill for Commerce, Justice, and Related Agencies (H.R.2578) that reads,
"None of the funds made available by this Act may be used to prosecute or hold liable any person or corporation for a violation of section 2(a) of the Migratory Bird Treaty Act (16 U.S.C. 703(a)."
Which, of course, is the heart of the MBTA:
§703. Taking, killing, or possessing migratory birds unlawful (a) In general
Unless and except as permitted by regulations made as hereinafter provided in this subchapter, it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or egg of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or part, of any such bird or any part, nest, or egg thereof, included in the terms of the conventions between the United States and Great Britain for the protection of migratory birds concluded August 16, 1916 (39 Stat. 1702), the United States and the United Mexican States for the protection of migratory birds and game mammals concluded February 7, 1936, the United States and the Government of Japan for the protection of migratory birds and birds in danger of extinction, and their environment concluded March 4, 1972, and the convention between the United States and the Union of Soviet Socialist Republics for the conservation of migratory birds and their environments concluded November 19, 1976.
And even harder to believe, but true, but it sailed through. Unless stopped by the Senate or removed in conference committee, it will become law because, of course, the President does not have a line-item veto.
Why did this happen? Hard to imagine that it wasn't a response to the USFWS announcing that it plans to issue a programmatic impact statement and a regulation to control the incidental take of birds. Of course, the USFWS has been, for some years, enforcing the MBTA against power line companies and companies that maintain oil or chemical waste pits. It has been pushing other industries such as the telecommunications industry and the wind power industry to mitigate the impacts of their activities via "voluntary guidelines." The wind industry has already pushed back by persuading Mr. Duncan to sponsor H.R. 493 which would expressly exempt incidental take.
If this provision becomes law, its duration is limited to one year, as it is part of an annual appropriations bill. For that one year, it will be open season on all birds, as no one need fear prosecution.