16 U.S.C. § 703 — Taking, killing, or possessing migratory

Page 1262 TITLE 16—CONSERVATION § 702 (12) provide training and information to appropriate employees on methods and means of avoiding or mini- mizing the take of migratory birds and conserving and restoring migratory bird habitat; (13) promote migratory bird conservation in inter- national activities and with other countries and inter- national partners, in consultation with the Department of State, as appropriate or relevant to the agency’s au- thorities; (14) recognize and promote economic and recreational values of birds, as appropriate; and (15) develop partnerships with non-Federal entities to further bird conservation. (f) Notwithstanding the requirement to finalize an MOU within 2 years, each agency is encouraged to im- mediately begin implementing the conservation meas- ures set forth above in subparagraphs (1) through (15) of this section, as appropriate and practicable. (g) Each agency shall advise the public of the avail- ability of its MOU through a notice published in the Federal Register. SEC. 4. Council for the Conservation of Migratory Birds. (a) The Secretary of Interior shall establish an inter- agency Council for the Conservation of Migratory Birds (Council) to oversee the implementation of this order. The Council’s duties shall include the following: (1) sharing the latest resource information to assist in the conservation and management of migratory birds; (2) developing an annual report of accomplishments and recommendations related to this order; (3) fostering partnerships to further the goals of this order; and (4) selecting an annual recipient of a Presidential Migra- tory Bird Federal Stewardship Award for contributions to the protection of migratory birds. (b) The Council shall include representation, at the bureau director/administrator level, from the Depart- ments of the Interior, State, Commerce, Agriculture, Transportation, Energy, Defense, and the Environ- mental Protection Agency and from such other agen- cies as appropriate. SEC. 5. Application and Judicial Review. (a) This order and the MOU to be developed by the agencies do not re- quire changes to current contracts, permits, or other third party agreements. (b) This order is intended only to improve the inter- nal management of the executive branch and does not create any right or benefit, substantive or procedural, separately enforceable at law or equity by a party against the United States, its agencies or instrumen- talities, its officers or employees, or any other person. WILLIAM J. CLINTON. § 702. Importation of eggs of game birds for prop- agation The Secretary of the Interior shall have the power to authorize the importation of eggs of game birds for purposes of propagation, and he shall prescribe all necessary rules and regula- tions governing the importation of eggs of said birds for such purposes. (June 3, 1902, ch. 983, 32 Stat. 285; 1939 Reorg. Plan No. II, § 4(f), eff. July 1, 1939, 4 F.R. 2731, 53 Stat. 1433.) Executive Documents TRANSFER OF FUNCTIONS Transfer of functions of Secretary of Agriculture to Secretary of the Interior by Reorg. Plan No. II of 1939, see Transfer of Functions note set out under section 701 of this title. SUBCHAPTER II—MIGRATORY BIRD TREATY § 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, cap- ture, kill, attempt to take, capture, or kill, pos- sess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for ship- ment, ship, export, import, cause to be shipped, exported, or imported, deliver for transpor- tation, transport or cause to be transported, carry or cause to be carried, or receive for ship- ment, transportation, carriage, or export, any migratory bird, any part, nest, or egg of any such bird, or any product, whether or not manu- factured, 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 con- ventions 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 pro- tection 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 Novem- ber 19, 1976. (b) Limitation on application to introduced spe- cies (1) In general This subchapter applies only to migratory bird species that are native to the United States or its territories. (2) Native to the United States defined (A) In general Subject to subparagraph (B), in this sub- section the term ‘‘native to the United States or its territories’’ means occurring in the United States or its territories as the re- sult of natural biological or ecological proc- esses. (B) Treatment of introduced species For purposes of paragraph (1), a migratory bird species that occurs in the United States or its territories solely as a result of inten- tional or unintentional human-assisted in- troduction shall not be considered native to the United States or its territories unless— (i) it was native to the United States or its territories and extant in 1918; (ii) it was extirpated after 1918 through- out its range in the United States and its territories; and (iii) after such extirpation, it was re- introduced in the United States or its ter- ritories as a part of a program carried out by a Federal agency. (July 3, 1918, ch. 128, § 2, 40 Stat. 755; June 20, 1936, ch. 634, § 3, 49 Stat. 1556; Pub. L. 93–300, § 1, Page 1263 TITLE 16—CONSERVATION § 703 June 1, 1974, 88 Stat. 190; Pub. L. 101–233, § 15, Dec. 13, 1989, 103 Stat. 1977; Pub. L. 108–447, div. E, title I, § 143(b), Dec. 8, 2004, 118 Stat. 3071.) Editorial Notes AMENDMENTS 2004—Pub. L. 108–447 designated existing provisions as subsec. (a), inserted heading, and added subsec. (b). 1989—Pub. L. 101–233 struck out ‘‘and’’ after ‘‘1936,’’ and inserted before period at end ‘‘and the convention between the United States and the Union of Soviet So- cialist Republics for the conservation of migratory birds and their environments concluded November 19, 1976’’. 1974—Pub. L. 93–300 substituted ‘‘, 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 there- of’’ for ‘‘, or any part, nest, or egg of any such birds’’, and ‘‘, and 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.’’ for period at end. 1936—Act June 20, 1936, amended section generally. Prior to amendment, text read as follows: ‘‘Unless and except as permitted by regulations made as hereinafter provided, it shall be unlawful to hunt, take, capture, kill, attempt to take, capture or kill, possess, offer for sale, sell, offer to purchase, purchase, deliver for ship- ment, ship, cause to be shipped, deliver for transpor- tation, transport, cause to be transported, carry or cause to be carried by any means whatever, receive for shipment, transportation or carriage, or export, at any time or in any manner, any migratory bird, included in the terms of the convention between the United States and Great Britain for the protection of migratory birds concluded August sixteenth, nineteen hundred and six- teen, or any part, nest, or egg of any such bird.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1974 AMENDMENT Pub. L. 93–300, § 3, June 1, 1974, 88 Stat. 190, provided that: ‘‘The amendments made by this Act [amending this section] shall take effect on the date on which the President proclaims the exchange of ratifications of the convention between the United States and the Gov- ernment of Japan for the protection of migratory birds and birds in danger of extinction, and their environ- ment, concluded March 4, 1972, or on the date of the en- actment of this Act [June 1, 1974], whichever date is later.’’ EFFECTIVE DATE OF 1936 AMENDMENT Act June 20, 1936, ch. 634, § 3, 49 Stat. 1556, provided in part that the amendment by section 3 is effective as of the day aforesaid, meaning the day on which the Presi- dent shall proclaim the exchange of ratifications of the convention between the United States and the United Mexican States for the protection of migratory birds and game mammals concluded Feb. 7, 1936, or on June 20, 1936, whichever date is later. Such proclamation was made on June 30, 1937. See section 1 of act June 20, 1936, ch. 634, 49 Stat. 1555. ELIMINATION OF BARRIERS TO IMPROVE AT-RISK BRIDGES Pub. L. 114–94, div. A, title I, § 1439, Dec. 4, 2015, 129 Stat. 1433, provided that: ‘‘(a) TEMPORARY AUTHORIZATION.— ‘‘(1) IN GENERAL.—Until the Secretary of the Inte- rior takes the action described in subsection (b), the take of nesting swallows to facilitate a construction project on a bridge eligible for funding under title 23, United States Code, with any component condition rating of 3 or less (as defined by the National Bridge Inventory General Condition Guidance issued by the Federal Highway Administration) is authorized under the Migratory Bird Treaty Act (16 U.S.C. 703 et seq.) between April 1 and August 31. ‘‘(2) MEASURES TO MINIMIZE IMPACTS.— ‘‘(A) NOTIFICATION BEFORE TAKING.—Prior to the taking of nesting swallows authorized under para- graph (1), any person taking that action shall sub- mit to the Secretary of the Interior a document that contains— ‘‘(i) the name of the person acting under the au- thority of paragraph (1) to take nesting swallows; ‘‘(ii) a list of practicable measures that will be undertaken to minimize or mitigate significant adverse impacts on the population of that species; ‘‘(iii) the time period during which activities will be carried out that will result in the taking of that species; and ‘‘(iv) an estimate of the number of birds, by spe- cies, to be taken in the proposed action. ‘‘(B) NOTIFICATION AFTER TAKING.—Not later than 60 days after the taking of nesting swallows author- ized under paragraph (1), any person taking that ac- tion shall submit to the Secretary of the Interior a document that contains the number of birds, by species, taken in the action. ‘‘(b) AUTHORIZATION OF TAKE.— ‘‘(1) IN GENERAL.—The Secretary of the Interior, in consultation with the Secretary [of Transportation], shall promulgate a regulation under the authority of section 3 of the Migratory Bird Treaty Act (16 U.S.C. 704) authorizing the take of nesting swallows to fa- cilitate bridge repair, maintenance, or construction— ‘‘(A) without individual permit requirements; and ‘‘(B) under terms and conditions determined to be consistent with treaties relating to migratory birds that protect swallow species occurring in the United States. ‘‘(2) TERMINATION.—On the effective date of a final rule [promulgated] under this subsection by the Sec- retary of the Interior, subsection (a) shall have no force or effect. ‘‘(c) SUSPENSION OR WITHDRAWAL OF TAKE AUTHORIZA- TION.—If the Secretary of the Interior, in consultation with the Secretary [of Transportation], determines that taking of nesting swallows carried out under the authority provided in subsection (a)(1) is having a sig- nificant adverse impact on swallow populations, the Secretary of the Interior may suspend that authority through publication in the Federal Register.’’ PUBLICATION OF LIST Pub. L. 108–447, div. E, title I, § 143(c), Dec. 8, 2004, 118 Stat. 3072, provided that: ‘‘(1) IN GENERAL.—Not later than 90 days after the date of enactment of this section [Dec. 8, 2004], the Sec- retary of the Interior shall publish in the Federal Reg- ister a list of all nonnative, human-introduced bird spe- cies to which the Migratory Bird Treaty Act (16 U.S.C. 703 et seq.) does not apply. As necessary, the Secretary may update and publish the list of species exempted from protection of the Migratory Bird Treaty Act. ‘‘(2) PUBLIC COMMENT.—Before publishing the list under paragraph (1), the Secretary shall provide ade- quate time for public comment. ‘‘(3) EFFECT OF SECTION.—Nothing in this subsection shall delay implementation of other provisions of this section [amending this section and enacting provisions set out as notes under this section and section 710 of this title] or amendments made by this section that ex- clude nonnative, human-introduced bird species from the application of the Migratory Bird Treaty Act (16 U.S.C. 703 et seq.).’’ RELATIONSHIP OF PUB. L. 108–447 TO TREATIES Pub. L. 108–447, div. E, title I, § 143(d), Dec. 8, 2004, 118 Stat. 3072, provided that: ‘‘It is the sense of Congress that the language of this section [amending this sec- tion and enacting provisions set out as notes under this section and section 710 of this title] is consistent with Page 1264 TITLE 16—CONSERVATION § 703 the intent and language of the 4 bilateral treaties im- plemented by this section.’’ INCIDENTAL TAKING OF MIGRATORY BIRDS DURING MILITARY READINESS ACTIVITIES Pub. L. 107–314, div. A, title III, § 315, Dec. 2, 2002, 116 Stat. 2509, provided that: ‘‘(a) INTERIM AUTHORITY FOR INCIDENTAL TAKINGS.— During the period described in subsection (c), section 2 of the Migratory Bird Treaty Act (16 U.S.C. 703) shall not apply to the incidental taking of a migratory bird by a member of the Armed Forces during a military readiness activity authorized by the Secretary of De- fense or the Secretary of the military department con- cerned. ‘‘(b) IDENTIFICATION OF MEASURES TO MINIMIZE IMPACT OF ACTIVITIES.—During the periods described in sub- sections (c) and (d), the Secretary of Defense shall, in consultation with the Secretary of the Interior, iden- tify measures— ‘‘(1) to minimize and mitigate, to the extent prac- ticable, any adverse impacts of authorized military readiness activities on affected species of migratory birds; and ‘‘(2) to monitor the impacts of such military readi- ness activities on affected species of migratory birds. ‘‘(c) PERIOD OF APPLICATION FOR INTERIM AUTHOR- ITY.—The period described in this subsection is the pe- riod beginning on the date of the enactment of this Act [Dec. 2, 2002] and ending on the date on which the Sec- retary of the Interior publishes in the Federal Register a notice that— ‘‘(1) regulations authorizing the incidental taking of migratory birds by members of the Armed Forces have been prescribed in accordance with the require- ments of subsection (d); ‘‘(2) all legal challenges to the regulations and to the manner of their promulgation (if any) have been exhausted as provided in subsection (e); and ‘‘(3) the regulations have taken effect. ‘‘(d) INCIDENTAL TAKINGS AFTER INTERIM PERIOD.—(1) Not later than the expiration of the one-year period be- ginning on the date of the enactment of this Act, the Secretary of the Interior shall exercise the authority of that Secretary under section 3(a) of the Migratory Bird Treaty Act (16 U.S.C. 704(a)) to prescribe regulations to exempt the Armed Forces for the incidental taking of migratory birds during military readiness activities authorized by the Secretary of Defense or the Sec- retary of the military department concerned. ‘‘(2) The Secretary of the Interior shall exercise au- thority under paragraph (1) with the concurrence of the Secretary of Defense. ‘‘(e) LIMITATION ON JUDICIAL REVIEW.—An action seeking judicial review of regulations prescribed pursu- ant to this section or of the manner of their promulga- tion must be filed in the appropriate Federal court by not later than the expiration of the 120-day period be- ginning on the date on which such regulations are pub- lished in the Federal Register. Upon the expiration of such period and the exhaustion of any legal challenges to the regulations pursuant to any action filed in such period, there shall be no further judicial review of such regulations or of the manner of their promulgation. ‘‘(f) MILITARY READINESS ACTIVITY.—(1) In this sec- tion the term ‘military readiness activity’ includes— ‘‘(A) all training and operations of the Armed Forces that relate to combat; and ‘‘(B) the adequate and realistic testing of military equipment, vehicles, weapons, and sensors for proper operation and suitability for combat use. ‘‘(2) The term does not include— ‘‘(A) the routine operation of installation operating support functions, such as administrative offices, military exchanges, commissaries, water treatment facilities, storage facilities, schools, housing, motor pools, laundries, morale, welfare, and recreation ac- tivities, shops, and mess halls; ‘‘(B) the operation of industrial activities; or ‘‘(C) the construction or demolition of facilities used for a purpose described in subparagraph (A) or (B).’’ ARCTIC TUNDRA HABITAT EMERGENCY CONSERVATION Pub. L. 106–108, Nov. 24, 1999, 113 Stat. 1491, provided that: ‘‘SECTION 1. SHORT TITLE. ‘‘This Act may be cited as the ‘Arctic Tundra Habitat Emergency Conservation Act’. ‘‘SEC. 2. FINDINGS AND PURPOSES. ‘‘(a) FINDINGS.—The Congress finds the following: ‘‘(1) The winter index population of mid-continent light geese was 800,000 birds in 1969, while the total population of such geese is more than 5,200,000 birds today. ‘‘(2) The population of mid-continent light geese is expanding by over 5 percent each year, and in the ab- sence of new wildlife management actions it could grow to more than 6,800,000 breeding light geese in 3 years. ‘‘(3) The primary reasons for this unprecedented population growth are— ‘‘(A) the expansion of agricultural areas and the resulting abundance of cereal grain crops in the United States; ‘‘(B) the establishment of sanctuaries along the United States flyways of migrating light geese; and ‘‘(C) a decline in light geese harvest rates. ‘‘(4) As a direct result of this population explosion, the Hudson Bay Lowlands Salt-Marsh ecosystem in Canada is being systematically destroyed. This eco- system contains approximately 135,000 acres of essen- tial habitat for migrating light geese and many other avian species. Biologists have testified that one-third of this habitat has been destroyed, one-third is on the brink of devastation, and the remaining one-third is overgrazed. ‘‘(5) The destruction of the Arctic tundra is having a severe negative impact on many avian species that breed or migrate through this habitat, including the following: ‘‘(A) Canada Goose. ‘‘(B) American Wigeon. ‘‘(C) Dowitcher. ‘‘(D) Hudsonian Godwit. ‘‘(E) Stilt Sandpiper. ‘‘(F) Northern Shoveler. ‘‘(G) Red-Breasted Merganser. ‘‘(H) Oldsquaw. ‘‘(I) Parasitic Jaeger. ‘‘(J) Whimbrel. ‘‘(K) Yellow Rail. ‘‘(6) It is essential that the current population of mid-continent light geese be reduced by 50 percent by the year 2005 to ensure that the fragile Arctic tundra is not irreversibly damaged. ‘‘(b) PURPOSES.—The purposes of this Act are the fol- lowing: ‘‘(1) To reduce the population of mid-continent light geese. ‘‘(2) To assure the long-term conservation of mid- continent light geese and the biological diversity of the ecosystem upon which many North American mi- gratory birds depend. ‘‘SEC. 3. FORCE AND EFFECT OF RULES TO CON- TROL OVERABUNDANT MID-CONTINENT LIGHT GEESE POPULATIONS. ‘‘(a) FORCE AND EFFECT.— ‘‘(1) IN GENERAL.—The rules published by the Serv- ice on February 16, 1999, relating to use of additional hunting methods to increase the harvest of mid-con- tinent light geese (64 Fed. Reg. 7507–7517) and the es- tablishment of a conservation order for the reduction of mid-continent light goose populations (64 Fed. Reg. 7517–7528), shall have the force and effect of law. ‘‘(2) PUBLIC NOTICE.—The Secretary, acting through the Director of the Service, shall take such action as is necessary to appropriately notify the public of the force and effect of the rules referred to in paragraph (1). Page 1265 TITLE 16—CONSERVATION § 704 ‘‘(b) APPLICATION.—Subsection (a) shall apply only during the period that— ‘‘(1) begins on the date of the enactment of this Act [Nov. 24, 1999]; and ‘‘(2) ends on the latest of— ‘‘(A) the effective date of rules issued by the Serv- ice after such date of the enactment to control overabundant mid-continent light geese popu- lations; ‘‘(B) the date of the publication of a final environ- mental impact statement for such rules under sec- tion 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)); and ‘‘(C) May 15, 2001. ‘‘(c) RULE OF CONSTRUCTION.—This section shall not be construed to limit the authority of the Secretary or the Service to issue rules, under another law, to regu- late the taking of mid-continent light geese. ‘‘SEC. 4. COMPREHENSIVE MANAGEMENT PLAN. ‘‘(a) IN GENERAL.—Not later than the end of the pe- riod described in section 103(b) [probably means section 3(b)], the Secretary shall prepare, and as appropriate implement, a comprehensive, long-term plan for the management of mid-continent light geese and the con- servation of their habitat. ‘‘(b) REQUIRED ELEMENTS.—The plan shall apply prin- ciples of adaptive resource management and shall in- clude— ‘‘(1) a description of methods for monitoring the levels of populations and the levels of harvest of mid- continent light geese, and recommendations con- cerning long-term harvest levels; ‘‘(2) recommendations concerning other means for the management of mid-continent light goose popu- lations, taking into account the reasons for the popu- lation growth specified in section 102(a)(3) [probably means section 2(a)(3)]; ‘‘(3) an assessment of, and recommendations relat- ing to, conservation of the breeding habitat of mid- continent light geese; ‘‘(4) an assessment of, and recommendations relat- ing to, conservation of native species of wildlife ad- versely affected by the overabundance of mid-con- tinent light geese, including the species specified in section 102(a)(5) [probably means section 2(a)(5)]; and ‘‘(5) an identification of methods for promoting col- laboration with the Government of Canada, States, and other interested persons. ‘‘(c) AUTHORIZATION OF APPROPRIATIONS.—There is au- thorized to be appropriated to carry out this section $1,000,000 for each of fiscal years 2000 through 2002. ‘‘SEC. 5. DEFINITIONS. ‘‘In this Act: ‘‘(1) MID-CONTINENT LIGHT GEESE.—The term ‘mid- continent light geese’ means Lesser snow geese (Anser caerulescens caerulescens) and Ross’ geese (Anser rossii) that primarily migrate between Canada and the States of Alabama, Arkansas, Colorado, Illi- nois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Mexico, North Dakota, Ohio, Okla- homa, South Dakota, Tennessee, Texas, Wisconsin, and Wyoming. ‘‘(2) SECRETARY.—The term ‘Secretary’ means the Secretary of the Interior. ‘‘(3) SERVICE.—The term ‘Service’ means the United States Fish and Wildlife Service.’’ § 704. Determination as to when and how migra- tory birds may be taken, killed, or possessed (a) Subject to the provisions and in order to carry out the purposes of the conventions, re- ferred to in section 703 of this title, the Sec- retary 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, ship- ment, 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 de- terminations, 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 caus- ing, 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. (c) FEDERAL FRAMEWORK CLOSING DATE FOR HUNTING OF DUCKS, MERGANSERS, AND COOTS.— (1) REGULATIONS RELATING TO FRAMEWORK CLOSING DATE.— (A) IN GENERAL.—In promulgating regula- tions under subsection (a) relating to the Federal framework for the closing date up to which the States may select seasons for mi- gratory bird hunting, except as provided in paragraph (2), the Secretary shall, with re- spect to the hunting season for ducks, mer- gansers, and coots— (i) subject to subparagraph (B), adopt the recommendation of each respective flyway council (as defined in section 20.152 of title 50, Code of Federal Regulations) for the Federal framework if the Secretary deter- mines that the recommendation is con- sistent with science-based and sustainable harvest management; and (ii) allow the States to establish the closing date for the hunting season in ac- cordance with the Federal framework. (B) REQUIREMENT.—The framework closing date promulgated by the Secretary under subparagraph (A) shall not be later than January 31 of each year. (2) SPECIAL HUNTING DAYS FOR YOUTHS, VET- ERANS, AND ACTIVE MILITARY PERSONNEL.— (A) IN GENERAL.—Notwithstanding the Federal framework closing date under para- graph (1) and subject to subparagraphs (B) and (C), the Secretary shall allow States to select 2 days for youths and 2 days for vet- erans (as defined in section 101 of title 38) and members of the Armed Forces on active duty, including members of the National Guard and Reserves on active duty (other than for training), to hunt eligible ducks, geese, swans, mergansers, coots, moorhens, and gallinules, if the Secretary determines that the addition of those days is consistent with science-based and sustainable harvest management. Such days shall be treated as separate from, and in addition to, the annual Federal framework hunting season lengths. (B) REQUIREMENTS.—In selecting days under subparagraph (A), a State shall ensure that—