16 U.S.C. § 704

Determination as to when and how migratory birds may be taken, killed, or possessed

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(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 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.(c)Federal Framework Closing Date for Hunting of Ducks, Mergansers, and Coots.—(1)Regulations relating to framework closing date.—(A)In general.—In promulgating regulations under subsection (a) relating to the Federal framework for the closing date up to which the States may select seasons for migratory bird hunting, except as provided in paragraph (2), the Secretary shall, with respect to the hunting season for ducks, mergansers, 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 determines that the recommendation is consistent with science-based and sustainable harvest management; and(ii) allow the States to establish the closing date for the hunting season in accordance 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, veterans, and active military personnel.—(A)In general.—Notwithstanding the Federal framework closing date under paragraph (1) and subject to subparagraphs (B) and (C), the Secretary shall allow States to select 2 days for youths and 2 days for veterans (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—(i) the days selected—(I) may only include the hunting of duck, geese, swan, merganser, coot, moorhen, and gallinule species that are eligible for hunting under the applicable annual Federal framework;(II) are not more than 14 days before or after the Federal framework hunting season for ducks, mergansers, and coots; and(III) are otherwise consistent with the Federal framework; and(ii) the total number of days in a hunting season for any migratory bird species, including any days selected under subparagraph (A), is not more than 107 days.(C)Limitation.—A State may combine the 2 days allowed for youths with the 2 days allowed for veterans and members of the Armed Forces on active duty under subparagraph (A), but in no circumstance may a State have more than a total of 4 additional days added to its regular hunting season for any purpose.(3)Regulations.—The Secretary shall promulgate regulations in accordance with this subsection for the Federal framework for migratory bird hunting for the 2019–2020 hunting season and each hunting season thereafter.(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; Pub. L. 116–9, title IV, § 4301, Mar. 12, 2019, 133 Stat. 764.)Editorial NotesAmendments

2019—Subsec. (c). Pub. L. 116–9 added subsec. (c).

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.

Statutory Notes and Related SubsidiariesEffective 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.

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.“(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, directed that no later than 5 years after Oct. 30, 1998, the Secretary of the Interior submit to the appropriate Senate and House committees a report analyzing the effect of certain amendments made by Pub. L. 105–312, and the general practice of baiting, on migratory bird conservation and law enforcement efforts under the Migratory Bird Treaty Act (16 U.S.C. 703 et seq.).

Executive DocumentsTransfer 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.

Notes of Decisions

Cited in 70 cases (3 in the last 5 years), 1935–2024 · leading case: Turtle Island Restoration Network v. United States Department of Commerce

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Turtle Island Restoration Network v. United States Department of Commerce (2017) 9th Cir. · cites it 6× “See 16 U.S.C. § 704 (a). TURTLE ISLAND RESTORATION NETWORK V.”

Fund for Animals v. Kempthorne (2008) 2d Cir. · cites it 5× “16 U.S.C. § 704 . This authority has been subdelegated by the Secretary to the FWS.”

United States v. Gregory Obendorf (2018) 9th Cir. · cites it 7× “The second count charged Obendorf with baiting the duck field in November of 2013 to facilitate hunting in the same fashion, in violation of 16 U.S.C. § 704 (b)(2), the anti-baiting provision of the MBTA.”

Fund for Animals v. Norton (2005) S.D.N.Y. · cites it 5× “” 16 U.S.C. § 704 (a). The PRDO does precisely that.”

Andrus v. Allard (1979) SCOTUS “See also 16 U. S. C. § 704 . 13 “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.”

United States v. Gerald L. Richards (1978) 10th Cir. · cites it 2× “The permission granted by § 8 applies until the adoption and approval of regulations pursuant to § 3, which is now 16 U.S.C. § 704 . That section authorizes regulations to determine to what extent, if at all, sale may be permitted.”

Fund for Animals v. Norton (2003) D.D.C. “16 U.S.C. § 704 ; 712(2). The regulations prohibit the taking, possessing, importation, exportation, transportation, selling, or purchasing of any migratory birds except as allowed by a valid permit.”

Peter Stavrianoudakis v. Usfws (2024) 9th Cir. “16 U.S.C. § 704 (a); 50 C.F.R § 10.13 (listing regulated species); 50 C.”

Cerritos Gun Club v. Hall (1938) 9th Cir. · cites it 4× “" Section 3 of the act, as amended, 16 U.S.C.A. § 704 and note, makes provision to "carry out" the "purposes" of the convention of the saving the birds from slaughter by authorizing regulations of other matters than the specific treaty provision for the time or season for…”

Fund for Animals v. Williams (2003) D.D.C. · cites it 2× “16 U.S.C. § 704 . Under the terms of the conventions, the parties generally may allow migratory game bird hunting as long as such hunting is barred during nesting seasons and is limited in duration.”

Friends of Animals v. United States Fish & Wildlife Service (2018) 9th Cir. “” 16 U.S.C. § 704 (a). There are four conventions referenced in the Act for the protection of migratory birds, one each with Canada, Mexico, Japan, and Russia (the “Conventions”).”

United States v. Dion (1985) 8th Cir. · cites it 4× “, next contends that the district court erred in refusing to dismiss his six counts of selling migratory birds in violation of the MBTA because section 3 of the MBTA, 16 U.S.C. § 704 (1982), which authorizes the Secretary of Interior to promulgate regulations establishing who…”

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