16 U.S.C. § 701 — Game and wild birds; preservation

Page 1260 TITLE 16—CONSERVATION § 701 Sec. 715k–2. Omitted. 715k–3. Authorization of appropriations for the pres- ervation of wetlands and other waterfowl habitat. 715k–4. Accounting and use of appropriations. 715k–5. Acquisition of lands. 715l, 715m. Repealed. 715n. ‘‘Take’’ defined. 715o. National forest and power sites; use for mi- gratory bird reservations. 715p. Cooperation of State in enforcement of provi- sions. 715q. Expenses of commission; authorization of ap- propriations. 715r. Partial invalidity; validity of remainder. 715s. Participation of local governments in revenue from areas administered by the United States Fish and Wildlife Service. SUBCHAPTER IV—HUNTING AND CONSERVATION STAMP TAX 718. Repealed. 718a. Prohibition on taking. 718b. Sales; fund disposition; unsold stamps. 718b–1. Disposition of unsold stamps. 718c. Authorization and exemption. 718d. Expenditure of funds. 718e. Loans and transfers, alteration, and reproduc- tion of stamps. 718f. Enforcement. 718g. Violations. 718h. Cooperation. 718i. Use of contest fees. 718j. Definitions. 718k. Use of fees collected for Federal migratory bird permits. SUBCHAPTER IV–A—PERMANENT ELECTRONIC DUCK STAMP 718o. Definitions. 718p. Authority to issue electronic duck stamps. 718q. State application. 718r. State obligations and authorities. 718s. Electronic stamp requirements; recognition of electronic stamp. 718t. Termination of State participation. SUBCHAPTER V—JUNIOR DUCK STAMP CONSERVATION AND DESIGN PROGRAM 719. Establishment of Program. 719a. Junior Duck Stamp. 719b. Acceptance of gifts, devises, and bequests. 719b–1. Definition of State. 719c. Authorization of appropriations. SUBCHAPTER I—GENERALLY § 701. Game and wild birds; preservation The duties and powers of the Department of the Interior include the preservation, distribu- tion, introduction, and restoration of game birds and other wild birds. The Secretary of the Inte- rior is authorized to adopt such measures as may be necessary to carry out the purposes of this Act, and to purchase such game birds and other wild birds as may be required therefor, subject, however, to the laws of the various States and Territories. The object and purpose of this Act is to aid in the restoration of such birds in those parts of the United States adapted thereto where the same have become scarce or extinct, and also to regulate the introduction of American or foreign birds or animals in local- ities where they have not heretofore existed. The Secretary of the Interior shall from time to time collect and publish useful information as to the propagation, uses, and preservation of such birds. And the Secretary of the Interior shall make and publish all needful rules and regulations for carrying out the purposes of this Act, and shall expend for said purposes such sums as Congress may appropriate therefor. (May 25, 1900, ch. 553, § 1, 31 Stat. 187; 1939 Reorg. Plan No. II, § 4(f), eff. July 1, 1939, 4 F.R. 2731, 53 Stat. 1433.) Editorial Notes REFERENCES IN TEXT This Act, referred to in text, is act May 25, 1900, sec- tion 1 of which is classified to this section. Sections 2 to 4 of the Act were repealed and restated by sections 241 to 244 of the Criminal Code of 1909 (approved Mar. 4, 1909, ch. 321) which were classified to sections 391 to 394 of former Title 18. Such sections were subsequently repealed and reenacted as sections 42 to 44 of Title 18, Crimes and Criminal Procedure. Section 5 of the Act which was classified to section 667e of this title was re- pealed by Pub. L. 97–79, § 9(b)(2), Nov. 16, 1981, 95 Stat. 1079. Executive Documents TRANSFER OF FUNCTIONS Reorg. Plan No. II of 1939, set out in the Appendix to Title 5, Government Organization and Employees, transferred functions of Secretary of Agriculture relat- ing to conservation of wildlife, game, and migratory birds to Secretary of the Interior. EX. ORD. NO. 13186. RESPONSIBILITIES OF FEDERAL AGENCIES TO PROTECT MIGRATORY BIRDS Ex. Ord. No. 13186, Jan. 10, 2001, 66 F.R. 3853, provided: By the authority vested in me as President by the Constitution and the laws of the United States of America, and in furtherance of the purposes of the mi- gratory bird conventions, the Migratory Bird Treaty Act (16 U.S.C. 703–711), the Bald and Golden Eagle Pro- tection Acts (16 U.S.C. 668–668d), the Fish and Wildlife Coordination Act (16 U.S.C. 661–666c [666c–1]), the En- dangered Species Act of 1973 (16 U.S.C. 1531–1544), the National Environmental Policy Act of 1969 (42 U.S.C. 4321–4347), and other pertinent statutes, it is hereby or- dered as follows: SECTION 1. Policy. Migratory birds are of great eco- logical and economic value to this country and to other countries. They contribute to biological diversity and bring tremendous enjoyment to millions of Americans who study, watch, feed, or hunt these birds throughout the United States and other countries. The United States has recognized the critical importance of this shared resource by ratifying international, bilateral conventions for the conservation of migratory birds. Such conventions include the Convention for the Pro- tection of Migratory Birds with Great Britain on behalf of Canada 1916, the Convention for the Protection of Migratory Birds and Game Mammals-Mexico 1936, the Convention for the Protection of Birds and Their Envi- ronment-Japan 1972, and the Convention for the Con- servation of Migratory Birds and Their Environment- Union of Soviet Socialist Republics 1978. These migratory bird conventions impose substantive obligations on the United States for the conservation of migratory birds and their habitats, and through the Migratory Bird Treaty Act (Act), the United States has implemented these migratory bird conventions with re- spect to the United States. This Executive Order di- rects executive departments and agencies to take cer- tain actions to further implement the Act. SEC. 2. Definitions. For purposes of this order: (a) ‘‘Take’’ means take as defined in 50 C.F.R. 10.12, and includes both ‘‘intentional’’ and ‘‘unintentional’’ take. Page 1261 TITLE 16—CONSERVATION § 701 (b) ‘‘Intentional take’’ means take that is the purpose of the activity in question. (c) ‘‘Unintentional take’’ means take that results from, but is not the purpose of, the activity in ques- tion. (d) ‘‘Migratory bird’’ means any bird listed in 50 C.F.R. 10.13. (e) ‘‘Migratory bird resources’’ means migratory birds and the habitats upon which they depend. (f) ‘‘Migratory bird convention’’ means, collectively, the bilateral conventions (with Great Britain/Canada, Mexico, Japan, and Russia) for the conservation of mi- gratory bird resources. (g) ‘‘Federal agency’’ means an executive department or agency, but does not include independent establish- ments as defined by 5 U.S.C. 104. (h) ‘‘Action’’ means a program, activity, project, offi- cial policy (such as a rule or regulation), or formal plan directly carried out by a Federal agency. Each Federal agency will further define what the term ‘‘action’’ means with respect to its own authorities and what programs should be included in the agency-specific Memoranda of Understanding required by this order. Actions delegated to or assumed by nonfederal entities, or carried out by nonfederal entities with Federal as- sistance, are not subject to this order. Such actions, however, continue to be subject to the Migratory Bird Treaty Act. (i) ‘‘Species of concern’’ refers to those species listed in the periodic report ‘‘Migratory Nongame Birds of Management Concern in the United States,’’ priority migratory bird species as documented by established plans (such as Bird Conservation Regions in the North American Bird Conservation Initiative or Partners in Flight physiographic areas), and those species listed in 50 C.F.R. 17.11. SEC. 3. Federal Agency Responsibilities. (a) Each Fed- eral agency taking actions that have, or are likely to have, a measurable negative effect on migratory bird populations is directed to develop and implement, with- in 2 years, a Memorandum of Understanding (MOU) with the Fish and Wildlife Service (Service) that shall promote the conservation of migratory bird popu- lations. (b) In coordination with affected Federal agencies, the Service shall develop a schedule for completion of the MOUs within 180 days of the date of this order. The schedule shall give priority to completing the MOUs with agencies having the most substantive impacts on migratory birds. (c) Each MOU shall establish protocols for implemen- tation of the MOU and for reporting accomplishments. These protocols may be incorporated into existing ac- tions; however, the MOU shall recognize that the agen- cy may not be able to implement some elements of the MOU until such time as the agency has successfully in- cluded them in each agency’s formal planning processes (such as revision of agency land management plans, land use compatibility guidelines, integrated resource management plans, and fishery management plans), in- cluding public participation and NEPA analysis, as ap- propriate. This order and the MOUs to be developed by the agencies are intended to be implemented when new actions or renewal of contracts, permits, delegations, or other third party agreements are initiated as well as during the initiation of new, or revisions to, land man- agement plans. (d) Each MOU shall include an elevation process to resolve any dispute between the signatory agencies re- garding a particular practice or activity. (e) Pursuant to its MOU, each agency shall, to the ex- tent permitted by law and subject to the availability of appropriations and within Administration budgetary limits, and in harmony with agency missions: (1) support the conservation intent of the migratory bird conventions by integrating bird conservation prin- ciples, measures, and practices into agency activities and by avoiding or minimizing, to the extent prac- ticable, adverse impacts on migratory bird resources when conducting agency actions; (2) restore and enhance the habitat of migratory birds, as practicable; (3) prevent or abate the pollution or detrimental al- teration of the environment for the benefit of migra- tory birds, as practicable; (4) design migratory bird habitat and population con- servation principles, measures, and practices, into agency plans and planning processes (natural resource, land management, and environmental quality plan- ning, including, but not limited to, forest and range- land planning, coastal management planning, water- shed planning, etc.) as practicable, and coordinate with other agencies and nonfederal partners in planning ef- forts; (5) within established authorities and in conjunction with the adoption, amendment, or revision of agency management plans and guidance, ensure that agency plans and actions promote programs and recommenda- tions of comprehensive migratory bird planning efforts such as Partners-in-Flight, U.S. National Shorebird Plan, North American Waterfowl Management Plan, North American Colonial Waterbird Plan, and other planning efforts, as well as guidance from other sources, including the Food and Agricultural Organiza- tion’s International Plan of Action for Reducing Inci- dental Catch of Seabirds in Longline Fisheries; (6) ensure that environmental analyses of Federal ac- tions required by the NEPA or other established envi- ronmental review processes evaluate the effects of ac- tions and agency plans on migratory birds, with em- phasis on species of concern; (7) provide notice to the Service in advance of con- ducting an action that is intended to take migratory birds, or annually report to the Service on the number of individuals of each species of migratory birds inten- tionally taken during the conduct of any agency ac- tion, including but not limited to banding or marking, scientific collecting, taxidermy, and depredation con- trol; (8) minimize the intentional take of species of con- cern by: (i) delineating standards and procedures for such take; and (ii) developing procedures for the review and evaluation of take actions. With respect to inten- tional take, the MOU shall be consistent with the ap- propriate sections of 50 C.F.R. parts 10, 21, and 22; (9) identify where unintentional take reasonably at- tributable to agency actions is having, or is likely to have, a measurable negative effect on migratory bird populations, focusing first on species of concern, pri- ority habitats, and key risk factors. With respect to those actions so identified, the agency shall develop and use principles, standards, and practices that will lessen the amount of unintentional take, developing any such conservation efforts in cooperation with the Service. These principles, standards, and practices shall be regularly evaluated and revised to ensure that they are effective in lessening the detrimental effect of agency actions on migratory bird populations. The agency also shall inventory and monitor bird habitat and populations within the agency’s capabilities and authorities to the extent feasible to facilitate decisions about the need for, and effectiveness of, conservation efforts; (10) within the scope of its statutorily-designated au- thorities, control the import, export, and establish- ment in the wild of live exotic animals and plants that may be harmful to migratory bird resources; (11) promote research and information exchange re- lated to the conservation of migratory bird resources, including coordinated inventorying and monitoring and the collection and assessment of information on envi- ronmental contaminants and other physical or biologi- cal stressors having potential relevance to migratory bird conservation. Where such information is collected in the course of agency actions or supported through Federal financial assistance, reasonable efforts shall be made to share such information with the Service, the Biological Resources Division of the U.S. Geological Survey, and other appropriate repositories of such data (e.g, the Cornell Laboratory of Ornithology); 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,