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CITE

    16 USC Sec. 703                                             01/05/2009

EXPCITE

    TITLE 16 - CONSERVATION
    CHAPTER 7 - PROTECTION OF MIGRATORY GAME AND INSECTIVOROUS BIRDS
    SUBCHAPTER II - MIGRATORY BIRD TREATY

HEAD

    Sec. 703. Taking, killing, or possessing migratory birds unlawful

STATUTE

    (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 eggs 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 (!1) 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.
    (b) Limitation on application to introduced species
      (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 subsection the term
        "native to the United States or its territories" means
        occurring in the United States or its territories as the result
        of natural biological or ecological processes.
        (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 intentional or unintentional human-assisted
        introduction 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 throughout its range in
          the United States and its territories; and
            (iii) after such extirpation, it was reintroduced in the
          United States or its territories as a part of a program
          carried out by a Federal agency.

SOURCE

    (July 3, 1918, ch. 128, Sec. 2, 40 Stat. 755; June 20, 1936, ch.
    634, Sec. 3, 49 Stat. 1556; Pub. L. 93-300, Sec. 1, June 1, 1974,
    88 Stat. 190; Pub. L. 101-233, Sec. 15, Dec. 13, 1989, 103 Stat.
    1977; Pub. L. 108-447, div. E, title I, Sec. 143(b), Dec. 8, 2004,
    118 Stat. 3071.)

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 Socialist Republics for the
    conservation of migratory birds and their environments concluded
    November 19, 1976".
      1974 - Pub. L. 93-300 substituted "any part, nest, or eggs 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" for "any part, nest, or egg of any such
    birds", and included the convention between the United States and
    the Government of Japan concluded March 4, 1972.
      1936 - Act June 20, 1936, made changes in phraseology.
                     EFFECTIVE DATE OF 1974 AMENDMENT
      Section 3 of Pub. L. 93-300 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 Government of
    Japan for the protection of migratory birds and birds in danger of
    extinction, and their environment, concluded March 4, 1972, or on
    the date of the enactment of this Act [June 1, 1974], whichever
    date is later."
                     EFFECTIVE DATE OF 1936 AMENDMENT
      Section 1 of act June 20, 1936, in conjunction with sections 2 to
    5 of that act, provided that the amendment of this section and
    sections 704, 705, 707, 708 and the enactment of section 709a of
    this title by that act, are effective as of the day on which the
    President 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
    February 7, 1936, or on June 20, 1936, whichever date is later.
    Such proclamation was made on June 30, 1937.
                            PUBLICATION OF LIST
      Pub. L. 108-447, div. E, title I, Sec. 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 Secretary of the
    Interior shall publish in the Federal Register a list of all
    nonnative, human-introduced bird species 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 adequate 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 exclude 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, Sec. 143(d), Dec. 8, 2004, 118
    Stat. 3072, provided that: "It is the sense of Congress that the
    language of this section [amending this section and enacting
    provisions set out as notes under this section and section 710 of
    this title] is consistent with the intent and language of the 4
    bilateral treaties implemented by this section."
      INCIDENTAL TAKING OF MIGRATORY BIRDS DURING MILITARY READINESS
                                ACTIVITIES
      Pub. L. 107-314, div. A, title III, Sec. 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 Defense
    or the Secretary of the military department concerned.
      "(b) Identification of Measures to Minimize Impact of Activities.
    - During the periods described in subsections (c) and (d), the
    Secretary of Defense shall, in consultation with the Secretary of
    the Interior, identify measures -
        "(1) to minimize and mitigate, to the extent practicable, any
      adverse impacts of authorized military readiness activities on
      affected species of migratory birds; and
        "(2) to monitor the impacts of such military readiness
      activities on affected species of migratory birds.
      "(c) Period of Application for Interim Authority. - The period
    described in this subsection is the period beginning on the date of
    the enactment of this Act [Dec. 2, 2002] and ending on the date on
    which the Secretary 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 requirements 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 beginning 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 Secretary of the military
    department concerned.
      "(2) The Secretary of the Interior shall exercise authority under
    paragraph (1) with the concurrence of the Secretary of Defense.
      "(e) Limitation on Judicial Review. - An action seeking judicial
    review of regulations prescribed pursuant to this section or of the
    manner of their promulgation must be filed in the appropriate
    Federal court by not later than the expiration of the 120-day
    period beginning on the date on which such regulations are
    published 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 section 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 activities, 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 absence 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 ecosystem contains approximately
      135,000 acres of essential 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 following:
        "(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 migratory birds depend.
      "SEC. 3. FORCE AND EFFECT OF RULES TO CONTROL OVERABUNDANT MID-
        CONTINENT LIGHT GEESE POPULATIONS.
      "(a) Force and Effect. -
        "(1) In general. - The rules published by the Service on
      February 16, 1999, relating to use of additional hunting methods
      to increase the harvest of mid-continent light geese (64 Fed.
      Reg. 7507-7517) and the establishment 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).
      "(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 Service after
        such date of the enactment to control overabundant mid-
        continent light geese populations;
          "(B) the date of the publication of a final environmental
        impact statement for such rules under section 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 regulate the taking of mid-continent
    light geese.
      "SEC. 4. COMPREHENSIVE MANAGEMENT PLAN.
      "(a) In General. - Not later than the end of the period 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
    conservation of their habitat.
      "(b) Required Elements. - The plan shall apply principles of
    adaptive resource management and shall include -
        "(1) a description of methods for monitoring the levels of
      populations and the levels of harvest of mid-continent light
      geese, and recommendations concerning long-term harvest levels;
        "(2) recommendations concerning other means for the management
      of mid-continent light goose populations, taking into account the
      reasons for the population growth specified in section 102(a)(3)
      [probably means section 2(a)(3)];
        "(3) an assessment of, and recommendations relating to,
      conservation of the breeding habitat of mid-continent light
      geese;
        "(4) an assessment of, and recommendations relating to,
      conservation of native species of wildlife adversely affected by
      the overabundance of mid-continent 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 collaboration
      with the Government of Canada, States, and other interested
      persons.
      "(c) Authorization of Appropriations. - There is authorized 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, Illinois,
      Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota,
      Mississippi, Missouri, Montana, Nebraska, New Mexico, North
      Dakota, Ohio, Oklahoma, 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."

FOOTNOTE

    (!1) So in original. Probably should be followed by a comma.
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