Migratory Bird Treaty Act

§ 703

TITLE 16—CONSERVATION
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, 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.
(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.
(July 3, 1918, ch. 128, § 2, 40 Stat. 755; June 20,
1936, ch. 634, § 3, 49 Stat. 1556; Pub. L. 93–300, § 1,

Page 1154

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.)
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
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’’ 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 shipment, ship, cause to be shipped, deliver for transportation, 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 sixteen, or any part, nest, or egg of any such bird.’’
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 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
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 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 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 Interior 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.—

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TITLE 16—CONSERVATION

‘‘(A) NOTIFICATION BEFORE TAKING.—Prior to the
taking of nesting swallows authorized under paragraph (1), any person taking that action shall submit to the Secretary of the Interior a document
that contains—
‘‘(i) the name of the person acting under the authority 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 species, to be taken in the proposed action.
‘‘(B) NOTIFICATION AFTER TAKING.—Not later than
60 days after the taking of nesting swallows authorized under paragraph (1), any person taking that action 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 facilitate 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 Secretary of the Interior, subsection (a) shall have no
force or effect.
‘‘(c) SUSPENSION OR WITHDRAWAL OF TAKE AUTHORIZATION.—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 significant 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 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, § 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, § 315, Dec. 2, 2002, 116
Stat. 2509, provided that:

§ 703

‘‘(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’.

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‘‘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 midcontinent 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;

Page 1156

‘‘(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 midcontinent 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 midcontinent 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 ‘midcontinent 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.’’

§ 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

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TITLE 16—CONSERVATION

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.
(July 3, 1918, ch. 128, § 3, 40 Stat. 755; June 20,
1936, ch. 634, § 2, 49 Stat. 1556; 1939 Reorg. Plan
No. II, § 4(f), eff. July 1, 1939, 4 F.R. 2731, 53 Stat.
1433; Pub. L. 105–312, title I, § 102, Oct. 30, 1998,
112 Stat. 2956.)
AMENDMENTS
1998—Pub. L. 105–312 designated existing provisions as
subsec. (a) and added subsec. (b).
1936—Act June 20, 1936, substituted ‘‘conventions’’ for
‘‘convention’’ in two places.
EFFECTIVE DATE OF 1936 AMENDMENT
Act June 20, 1936, ch. 634, § 2, 49 Stat. 1556, provided in
part that the amendment by section 2 is effective as of
the day aforesaid (June 30, 1937). See note under section
703 of this title.
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.
DELEGATION OF FUNCTIONS
For delegation to Secretary of the Interior of authority vested in President, see Ex. Ord. No. 10752, Feb. 12,
1958, 23 F.R. 973, set out as a note under section 715j of
Title 15, Commerce and Trade.
Secretary of the Interior empowered to promulgate
regulations under this section without approval, ratification, or other action of President, see section 2(b) of
Ex. Ord. No. 10250, June 5, 1951, 16 F.R. 5385, set out as
a note under section 301 of Title 3, The President.
BAITING OF MIGRATORY GAME BIRDS
Pub. L. 115–334, title XII, § 12601, Dec. 20, 2018, 132
Stat. 5003, provided that:
‘‘(a) DEFINITIONS.—In this section:
‘‘(1) NORMAL AGRICULTURAL OPERATION.—The term
‘normal agricultural operation’ has the meaning
given the term in section 20.11 of title 50, Code of Federal Regulations (as in effect on the date of enactment of this Act [Dec. 20, 2018]).
‘‘(2) POST-DISASTER FLOODING.—The term ‘post-disaster flooding’ means the destruction of a crop
through flooding in accordance with practices required by the Federal Crop Insurance Corporation for
agricultural producers to obtain crop insurance under
the Federal Crop Insurance Act (7 U.S.C. 1501 et seq.)
on land on which a crop was not harvestable due to
a natural disaster (including any hurricane, storm,
tornado, flood, high water, wind-driven water, tidal
wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, drought, fire, snowstorm, or other catastrophe that is declared a major disaster by the
President in accordance with section 401 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170)) in the crop year—
‘‘(A) in which the natural disaster occurred; or
‘‘(B) immediately preceding the crop year in
which the natural disaster occurred.

§ 705

‘‘(3) RICE RATOONING.—The term ‘rice ratooning’
means the agricultural practice of harvesting rice by
cutting the majority of the aboveground portion of
the rice plant but leaving the roots and growing
shoot apices intact to allow the plant to recover and
produce a second crop yield.
‘‘(b) REGULATIONS TO EXCLUDE RICE RATOONING AND
POST-DISASTER FLOODING.—Not later than 30 days after
the date of enactment of this Act, the Secretary of the
Interior, in consultation with the Secretary of Agriculture, shall revise part 20 of title 50, Code of Federal
Regulations, to clarify that rice ratooning and post-disaster flooding, when carried out as part of a normal agricultural operation, do not constitute baiting.
‘‘(c) REPORTS.—Not less frequently than once each
year—
‘‘(1) the Secretary of Agriculture shall submit to
the Secretary of the Interior a report that describes
any changes to normal agricultural operations across
the range of crops grown by agricultural producers in
each region of the United States in which the official
recommendations described in section 20.11(h) of title
50, Code of Federal Regulations (as in effect on the
date of enactment of this Act), are provided to agricultural producers; and
‘‘(2) the Secretary of the Interior, in consultation
with the Secretary of Agriculture and after seeking
input from the heads of State departments of fish and
wildlife or the Regional Migratory Bird Flyway Councils of the United States Fish and Wildlife Service,
shall publicly post a report on the impact that rice
ratooning and post-disaster flooding have on the behavior of migratory game birds that are hunted in
the area in which rice ratooning and post-disaster
flooding, respectively, have occurred.’’
REPORT ON EFFECTS OF 1998 AMENDMENTS
Pub. L. 105–312, title I, § 104, Oct. 30, 1998, 112 Stat.
2956, provided that: ‘‘Not later than 5 years after the
date of enactment of this Act [Oct. 30, 1998], the Secretary of the Interior shall submit to the Committee on
Environment and Public Works of the Senate and the
Committee on Resources [now Committee on Natural
Resources] of the House of Representatives a report
analyzing the effect of the amendments made by section 2 [probably should be section 102, which amended
this section], and the general practice of baiting, on
migratory bird conservation and law enforcement efforts under the Migratory Bird Treaty Act (16 U.S.C.
701 et seq.) [16 U.S.C. 703 et seq.].’’

§ 705. Transportation or importation of migratory birds; when unlawful
It shall be unlawful to ship, transport, or
carry, by any means whatever, from one State,
Territory, or district to or through another
State, Territory, or district, or to or through a
foreign country, any bird, or any part, nest, or
egg thereof, captured, killed, taken, shipped,
transported, or carried at any time contrary to
the laws of the State, Territory, or district in
which it was captured, killed, or taken, or from
which it was shipped, transported, or carried. It
shall be unlawful to import any bird, or any
part, nest, or egg thereof, captured, killed,
taken, shipped, transported, or carried contrary
to the laws of any Province of the Dominion of
Canada in which the same was captured, killed,
or taken, or from which it was shipped, transported, or carried.
(July 3, 1918, ch. 128, § 4, 40 Stat. 755; June 20,
1936, ch. 634, § 4, 49 Stat. 1556; 1939 Reorg. Plan
No. II, § 4(f), eff. July 1, 1939, 4 F.R. 2731, 53 Stat.
1433; Pub. L. 91–135, § 10, Dec. 5, 1969, 83 Stat. 282.)

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Page 1158

AMENDMENTS

AMENDMENTS

1969—Pub. L. 91–135 repealed second par., which prohibited shipment of wild game mammals or parts thereof by any person of the United States to and from Mexico, except by permit from the Secretary of the Interior.
1936—Act June 20, 1936, inserted last sentence.

1978—Pub. L. 95–616 made provisions respecting seizures and judgment of court applicable to birds, or
parts, nests, or eggs sold or offered for sale, bartered or
offered for barter, purchased, imported and exported
and substituted ‘‘any regulation prescribed thereunder’’ in two places for ‘‘any regulations made pursuant thereto’’ and ‘‘any regulation made pursuant thereto’’ and provision for disposition of the birds, etc., by
Secretary of the Interior in such manner as he deems
appropriate for prior provision for such disposition as
directed by court having jurisdiction.

EFFECTIVE DATE OF 1969 AMENDMENT
Pub. L. 91–135, § 11, Dec. 5, 1969, 83 Stat. 282, provided
that: ‘‘The provisions of sections 1 through 10 of this
Act [enacting sections 668cc–1 to 668cc–6 of this title
and amending this section, sections 851, 852, 852a, and
852d of this title, and sections 43, 44, 3054, and 3112 of
Title 18, Crimes and Criminal Procedure] shall be effective one hundred and eighty days after the date of enactment of this Act [Dec. 5, 1969].’’
EFFECTIVE DATE OF 1936 AMENDMENT
Act June 20, 1936, ch. 634, § 4, 49 Stat. 1556, provided in
part that the amendment by section 4 is effective as of
the day aforesaid (June 30, 1937). See note under section
703 of this title.
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.

§ 706. Arrests; search warrants
Any employee of the Department of the Interior authorized by the Secretary of the Interior
to enforce the provisions of this subchapter
shall have power, without warrant, to arrest any
person committing a violation of this subchapter in his presence or view and to take such
person immediately for examination or trial before an officer or court of competent jurisdiction; shall have power to execute any warrant or
other process issued by an officer or court of
competent jurisdiction for the enforcement of
the provisions of this subchapter; and shall have
authority, with a search warrant, to search any
place. The several judges of the courts established under the laws of the United States, and
United States magistrate judges may, within
their respective jurisdictions, upon proper oath
or affirmation showing probable cause, issue
warrants in all such cases. All birds, or parts,
nests, or eggs thereof, captured, killed, taken,
sold or offered for sale, bartered or offered for
barter, purchased, shipped, transported, carried,
imported, exported, or possessed contrary to the
provisions of this subchapter or of any regulation prescribed thereunder shall, when found, be
seized and, upon conviction of the offender or
upon judgment of a court of the United States
that the same were captured, killed, taken, sold
or offered for sale, bartered or offered for barter,
purchased, shipped, transported, carried, imported, exported, or possessed contrary to the
provisions of this subchapter or of any regulation prescribed thereunder, shall be forfeited to
the United States and disposed of by the Secretary of the Interior in such manner as he
deems appropriate.
(July 3, 1918, ch. 128, § 5, 40 Stat. 756; 1939 Reorg.
Plan No. II, § 4(f), eff. July 1, 1939, 4 F.R. 2731, 53
Stat. 1433; Pub. L. 90–578, title IV, § 402(b)(2), Oct.
17, 1968, 82 Stat. 1118; Pub. L. 95–616, § 3(h)(1),
Nov. 8, 1978, 92 Stat. 3111; Pub. L. 101–650, title
III, § 321, Dec. 1, 1990, 104 Stat. 5117.)

CHANGE OF NAME
‘‘United States magistrate judges’’ substituted for
‘‘United States magistrates’’ in text pursuant to section 321 of Pub. L. 101–650, set out as a note under section 631 of Title 28, Judiciary and Judicial Procedure.
Previously, ‘‘United States magistrates’’ substituted in
text for ‘‘United States commissioners’’ pursuant to
Pub. L. 90–578. See chapter 43 (§ 631 et seq.) of Title 28.
TRANSFER OF FUNCTIONS
Enforcement functions of Secretary or other official
in Department of the Interior related to compliance
with protection of certain birds under this subchapter
with respect to pre-construction, construction, and initial operation of transportation system for Canadian
and Alaskan natural gas transferred to Federal Inspector, Office of Federal Inspector for Alaska Natural Gas
Transportation System, until first anniversary of date
of initial operation of Alaska Natural Gas Transportation System, see Reorg. Plan No. 1 of 1979, §§ 102(e),
203(a), 44 F.R. 33663, 33666, 93 Stat. 1373, 1376, effective
July 1, 1979, set out in the Appendix to Title 5, Government Organization and Employees. Office of Federal Inspector for the Alaska Natural Gas Transportation System abolished and functions and authority vested in Inspector transferred to Secretary of Energy by section
3012(b) of Pub. L. 102–486, set out as an Abolition of Office of Federal Inspector note under section 719e of
Title 15, Commerce and Trade. Functions and authority
vested in Secretary of Energy subsequently transferred
to Federal Coordinator for Alaska Natural Gas Transportation Projects by section 720d(f) of Title 15.
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.

§ 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
$15,000 or be imprisoned not more than six
months, 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) Whoever violates section 704(b)(2) of this
title shall be fined under title 18, imprisoned not
more than 1 year, or both.
(d) All guns, traps, nets and other equipment,
vessels, vehicles, and other means of transpor-

Page 1159

§ 710

TITLE 16—CONSERVATION

tation 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.
(July 3, 1918, ch. 128, § 6, 40 Stat. 756; June 20,
1936, ch. 634, § 2, 49 Stat. 1556; Pub. L. 86–732,
Sept. 8, 1960, 74 Stat. 866; Pub. L. 99–645, title V,
§ 501, Nov. 10, 1986, 100 Stat. 3590; Pub. L. 105–312,
title I, § 103, Oct. 30, 1998, 112 Stat. 2956.)
AMENDMENTS
1998—Subsec. (a). Pub. L. 105–312, § 103(1), substituted
‘‘$15,000’’ for ‘‘$500’’.
Subsecs. (c), (d). Pub. L. 105–312, § 103(2), (3), added
subsec. (c) and redesignated former subsec. (c) as (d).
1986—Subsec. (b). Pub. L. 99–645 substituted ‘‘shall
knowingly’’ for ‘‘shall’’ in introductory provisions.
1960—Pub. L. 86–732 designated existing provisions as
subsec. (a), inserted ‘‘Except as otherwise provided in
this section’’, and added subsecs. (b) and (c).
1936—Act June 20, 1936, substituted ‘‘conventions’’ for
‘‘convention’’.
EFFECTIVE DATE OF 1936 AMENDMENT
Act June 20, 1936, ch. 634, § 2, 49 Stat. 1556, provided in
part that the amendment by section 2 is effective as of
the day aforesaid (June 30, 1937). See note under section
703 of this title.
TRANSFER OF FUNCTIONS
For transfer of certain enforcement functions of Secretary or other official in Department of the Interior
under this subchapter to Federal Inspector, Office of
Federal Inspector for the Alaska Natural Gas Transportation System, and subsequent transfer to Secretary of
Energy, then to Federal Coordinator for Alaska Natural Gas Transportation Projects, see Transfer of Functions note set out under section 706 of this title.

§ 708. State or Territorial laws or regulations
Nothing in this subchapter shall be construed
to prevent the several States and Territories
from making or enforcing laws or regulations
not inconsistent with the provisions of said conventions or of this subchapter, or from making
or enforcing laws or regulations which shall give
further protection to migratory birds, their
nests, and eggs, if such laws or regulations do
not extend the open seasons for such birds beyond the dates approved by the President in accordance with section 704 of this title.
(July 3, 1918, ch. 128, § 7, 40 Stat. 756; June 20,
1936, ch. 634, § 2, 49 Stat. 1556.)
AMENDMENTS
1936—Act June 20, 1936, substituted ‘‘conventions’’ for
‘‘convention’’.
EFFECTIVE DATE OF 1936 AMENDMENT
Act June 20, 1936, ch. 634, § 2, 49 Stat. 1556, provided in
part that the amendment by section 2 is effective as of

the day aforesaid (June 30, 1937). See note under section
703 of this title.

§ 709. Omitted
CODIFICATION
Section, act July 3, 1918, ch. 128, § 8, 40 Stat. 756, authorized taking and use of migratory birds, nests, or
eggs for scientific or propagating purposes until adoption and approval, pursuant to section 704 of this title,
of regulations dealing therewith. Regulations were promulgated by Proc. July 31, 1918, 40 Stat. 1812.

§ 709a. Authorization of appropriations
There is hereby authorized to be appropriated,
from time to time, out of any money in the
Treasury not otherwise appropriated, such
amounts as may be necessary to carry out the
provisions and to accomplish the purposes of
said conventions and of this subchapter and regulations made pursuant thereto, and the Secretary of the Interior is authorized out of such
moneys to employ in the city of Washington and
elsewhere such persons and means as he may
deem necessary for such purpose and may cooperate with local authorities in the protection
of migratory birds and make the necessary investigations connected therewith.
(July 3, 1918, ch. 128, § 9, as added June 20, 1936,
ch. 634, § 5, 49 Stat. 1556; amended 1939 Reorg.
Plan No. II, § 4(f), eff. July 1, 1939, 4 F.R. 2731, 53
Stat. 1433.)
EFFECTIVE DATE
Act June 20, 1936, ch. 634, § 5, 49 Stat. 1556, provided in
part that this section is effective as of the day aforesaid (June 30, 1937). See Effective Date of 1936 Amendment note set out under section 703 of this title.
TRANSFER OF FUNCTIONS
For transfer of certain enforcement functions of Secretary or other official in Department of the Interior
under this subchapter to Federal Inspector, Office of
Federal Inspector for Alaska Natural Gas Transportation System, and subsequent transfer to Secretary of
Energy, then to Federal Coordinator for Alaska Natural Gas Transportation Projects, see Transfer of Functions note set out under section 706 of this title.
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.
AVAILABILITY OF FUNDS
Act June 20, 1936, ch. 634, § 6, 49 Stat. 1557, provided:
‘‘That all moneys now or hereafter available for administration and enforcement of said Act approved July 3,
1918 [this subchapter], shall be equally available for the
administration and enforcement of said Act as hereby
amended.’’

§ 710. Partial invalidity; short title
If any clause, sentence, paragraph, or part of
this subchapter, which shall be known by the
short title of the ‘‘Migratory Bird Treaty Act’’,
shall, for any reason, be adjudged by any court
of competent jurisdiction to be invalid, such
judgment shall not affect, impair, or invalidate
the remainder thereof, but shall be confined in
its operation to the clause, sentence, paragraph,
or part thereof directly involved in the controversy in which such judgment shall have been
rendered.

§ 711

TITLE 16—CONSERVATION

Page 1160

CODIFICATION

Section was enacted as part of the Fish and Wildlife
Improvement Act of 1978, and not as part of the Migratory Bird Treaty Act which comprises this subchapter.

The provisions of this section relating to short title
are from section 1 of act July 3, 1918, and the provisions
relating to severability are from section 10 of that act.

SUBCHAPTER III—MIGRATORY BIRD
CONSERVATION

(July 3, 1918, ch. 128, §§ 1, 10, 40 Stat. 755, 757.)

SHORT TITLE OF 2004 AMENDMENT

§ 715. Short title

Pub. L. 108–447, div. E, title I, § 143(a), Dec. 8, 2004, 118
Stat. 3071, provided that: ‘‘This section [amending section 703 of this title and enacting provisions set out as
notes under section 703 of this title] may be cited as the
‘Migratory Bird Treaty Reform Act of 2004’.’’

This subchapter shall be known by the short
title of ‘‘Migratory Bird Conservation Act.’’

SHORT TITLE OF 1998 AMENDMENT

Pub. L. 94–215, § 1, Feb 17, 1976, 90 Stat. 189, provided:
‘‘That this Act [amending sections 668dd, 715a, 715k–3,
715k–5, 718a, 718b, and 718d of this title] may be cited as
the ‘Wetlands Loan Extension Act of 1976’.’’

Pub. L. 105–312, title I, § 101, Oct. 30, 1998, 112 Stat.
2956, provided that: ‘‘This title [amending sections 704
and 707 of this title and enacting provisions set out as
a note under section 704 of this title] may be cited as
the ‘Migratory Bird Treaty Reform Act of 1998’.’’

§ 711. Breeding and sale for food supply
Nothing in this subchapter shall be construed
to prevent the breeding of migratory game birds
on farms and preserves and the sale of birds so
bred under proper regulation for the purpose of
increasing the food supply.
(July 3, 1918, ch. 128, § 12, 40 Stat. 757.)
§ 712. Treaty and convention implementing regulations; seasonal taking of migratory birds
for essential needs of indigenous Alaskans to
preserve and maintain stocks of the birds;
protection and conservation of the birds
(1) In accordance with the various migratory
bird treaties and conventions with Canada,
Japan, Mexico, and the Union of Soviet Socialist
Republics, the Secretary of the Interior is authorized to issue such regulations as may be
necessary to assure that the taking of migratory
birds and the collection of their eggs, by the indigenous inhabitants of the State of Alaska,
shall be permitted for their own nutritional and
other essential needs, as determined by the Secretary of the Interior, during seasons established so as to provide for the preservation and
maintenance of stocks of migratory birds.
(2) The Secretary of the Interior is authorized
to issue such regulations as may be necessary to
implement the provisions of the convention between the United States and Great Britain for
the protection of migratory birds concluded August 16, 1916, the convention between the United
States and the United Mexican States for the
protection of migratory birds and game mammals concluded February 7, 1936, the convention
between the United States and the Government
of Japan for the protection of migratory 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 environment concluded
November 19, 1976.
(Pub. L. 95–616, § 3(h)(2), (3), Nov. 8, 1978, 92 Stat.
3112.)
CODIFICATION
Par. (1) of section 3(h) of Pub. L. 95–616 amended section 706 of this title. Pars. (2) and (3) of such section
3(h) were redesignated (1) and (2) for codification purposes.

(Feb. 18, 1929, ch. 257, § 1, 45 Stat. 1222.)
SHORT TITLE OF 1976 AMENDMENT

§ 715a. Migratory Bird Conservation Commission;
creation; composition; duties; approval of
areas of land and water recommended for
purchase or rental
A commission to be known as the Migratory
Bird Conservation Commission, consisting of the
Secretary of the Interior, as chairman, the Administrator of the Environmental Protection
Agency, the Secretary of Agriculture and two
Members of the Senate, to be selected by the
President of the Senate, and two Members of the
House of Representatives to be selected by the
Speaker, is created and authorized to consider
and pass upon any area of land, water, or land
and water that may be recommended by the Secretary of the Interior for purchase or rental
under this subchapter, and to fix the price or
prices at which such area may be purchased or
rented; and no purchase or rental shall be made
of any such area until it has been duly approved
for purchase or rental by said commission. Any
Member of the House of Representatives who is
a member of the commission, if reelected to the
succeeding Congress, may serve on the commission notwithstanding the expiration of a Congress. Any vacancy on the commission shall be
filled in the same manner as the original appointment. The ranking officer of the branch or
department of a State to which is committed
the administration of its game laws, or his authorized representative, and in a State having
no such branch or department, the governor
thereof, or his authorized representative, shall
be a member ex officio of said commission for
the purpose of considering and voting on all
questions relating to the acquisition, under this
subchapter, of areas in his State. For purposes
of this subchapter, the purchase or rental of any
area of land, water, or land and water includes
the purchase or rental of any interest in any
such area of land, water, or land and water.
(Feb. 18, 1929, ch. 257, § 2, 45 Stat. 1222; 1939
Reorg. Plan No. II, § 4(f), (h), eff. July 1, 1939, 4
F.R. 2731, 53 Stat. 1433; Pub. L. 90–261, Mar. 2,
1968, 82 Stat. 39; Pub. L. 94–215, § 4, Feb. 17, 1976,
90 Stat. 190; Pub. L. 101–233, § 13, Dec. 13, 1989, 103
Stat. 1977.)
AMENDMENTS
1989—Pub. L. 101–233 substituted ‘‘Administrator of
the Environmental Protection Agency’’ for ‘‘Secretary
of Transportation’’.
1976—Pub. L. 94–215 inserted provision including in
the purchase or rental of any area of land, water, or