§ 460k. Public recreation use of fish and wildlife conservation areas; compatibility with conservation purposes; appropriate incidental or secondary use; consistency with other Federal operations and primary objectives of particular areas; curtailment; forms of recreation not directly related to primary purposes of individual areas; repeal or amendment of provisions for particular areas.

In recognition of mounting public demands for recreational opportunities on areas within the National Wildlife Refuge System, national fish hatcheries, and other conservation areas administered by the Secretary of the Interior for fish and wildlife purposes; and in recognition also of the resulting imperative need, if such recreational opportunities are provided, to assure that any present or future recreational use will be compatible with, and will not prevent accomplishment of, the primary purposes for which the said conservation areas were acquired or established, the Secretary of the Interior is authorized, as an appropriate incidental or secondary use, to administer such areas or parts thereof for public recreation when in his judgment public recreation can be an appropriate incidental or secondary use: Provided, That such public recreation use shall be permitted only to the extent that is practicable and not inconsistent with other previously authorized Federal operations or with the primary objectives for which each particular area is established: Provided further, That in order to insure accomplishment of such primary objectives, the Secretary, after consideration of all authorized uses, purposes, and other pertinent factors relating to individual areas, shall curtail public recreation use generally or certain types of public recreation use within individual areas or in portions thereof whenever he considers such action to be necessary: And provided further, That none of the aforesaid refuges, hatcheries, game ranges, and other conservation areas shall be used during any fiscal year for those forms of recreation that are not directly related to the primary purposes and functions of the individual areas until the Secretary shall have determined

(a) that such recreational use will not interfere with the primary purposes for which the areas were established, and

(b) that funds are available for the development, operation, and maintenance of these permitted forms of recreation. This section shall not be construed to repeal or amend previous enactments relating to particular areas.

(Pub. L. 87-714, § 1, Sept. 28, 1962, 76 Stat. 653; Pub. L. 89-669, § 9, Oct. 15, 1966, 80 Stat. 930.)

AMENDMENTS

1966-Pub. L. 89-669 substituted "areas within the National Wildlife Refuge System" for "national wildlife refuges, game ranges," in the introductory text.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 4591-5 460k-2, 460k-3, 460k-4, 668dd of this title.

§ 460k-1. Acquisition of lands for recreational development; funds.

In order to avoid adverse effects upon fish and wildlife populations and management operations of the said areas that might otherwise result from public recreation or visitation to such areas, the Secretary is authorized to acquire limited areas of land for recreational development adjacent to the said conservation areas in existence or approved by the Migratory Bird Conservation Commission as of September 28, 1962: Provided, That the acquisition of any land or interest therein pursuant to this section shall be accomplished only with such funds as may be appropriated therefor by the Congress or donated for such purposes, but such property shall not be acquired with funds obtained from the sale of Federal migratory bird hunting stamps. Lands acquired pursuant to this section shall become a part of the particular conservation area to which they are adjacent. (Pub. L. 87-714, § 2, Sept. 28, 1962, 76 Stat. 653.)

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 459f-5, 460k-2, 460k-3, 460k-4, 4607-9, 668dd of this title.

§ 460k-2. Cooperation with agencies, organizations and individuals; acceptance of donations; restrictive covenants.

In furtherance of the purposes of sections 460k to 460k-4 of this title, the Secretary is authorized to cooperate with public and private agencies, organizations, and individuals, and he may accept and use, without further authorization, donations of funds and real and personal property. Such acceptance may be accomplished under the terms and conditions of restrictive covenants imposed by donors when such covenants are deemed by the Secretary to be compatible with the purposes of the wildlife refuges, games ranges, fish hatcheries, and other fish and wildlife conservation areas. (Pub. L. 87714, § 3, Sept. 28, 1962, 76 Stat. 653.)

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 459f-5, 460k-3, 460k-4, 668dd of this title.

§ 460k-3. Charges and fees; permits; regulations; penalties.

The Secretary may establish reasonable charges and fees and issue permits for public use of national wildlife refuges, game ranges, national fish hatcheries, and other conservation areas administered by the Department of the Interior for fish and wildlife purposes. The Secretary may issue regulations to carry out the purposes of sections 460k to 460k-4 of this title. A violation of such regulations shall be a petty offense (section 1 of Title 18) with maximum penalties of imprisonment for not more than six months, or a fine of not more than $500, or both. (Pub. L. 87-714, § 4, Sept. 28, 1962, 76 Stat. 654.)

the offspring or eggs of any of the foregoing which the Secretary of the Interior may prescribe by regulation to be injurious to human beings, to the interests of agriculture, horticulture, forestry, or to wildlife or the wildlife resources of the United States, is hereby prohibited. All such prohibited mammals, birds, fish (including mollusks and crustacea) amphibians, and reptiles, and the eggs or offspring therefrom, shall be promptly exported or destroyed at the expense of the importer or consignee. Nothing in this section shall be construed to repeal or modify any provision of the Public Health Service Act or Federal Food, Drug, and Cosmetic Act. Also, this section shall not authorize any action with respect to the importation of any plant pest as defined in the Federal Plant Pest Act, insofar as such importation is subject to regulation under that Act.

(2) As used in this subsection, the term "wild" relates to any creatures that, whether or not raised in captivity, normally are found in a wild state; and the terms "wildlife" and "wildlife resources" include those resources that comprise wild mammals, wild birds, fish (including mollusks and crustacea), and all other classes of wild creatures whatsoever, and all types of aquatic and land vegetation upon which such wildlife resources dependent.

are

(3) Notwithstanding the foregoing, the Secretary of the Interior, when he finds that there has been a proper showing of responsibility and continued protection of the public interest and health, shall permit the importation for zoological, educational, medical, and scientific purposes of any mammals, birds, fish (including mollusks and crustacea), amphibia, and reptiles, or the offspring or eggs thereof, where such importation would be prohibited otherwise by or pursuant to this Act, and this Act shall not restrict importations by Federal agencies for their own use.

(4) Nothing in this subsection shall restrict the importation of dead natural-history specimens for museums or for scientific collections, or the importation of domesticated canaries, parrots (including all other species of psittacine birds), or such other cage birds as the Secretary of the Interior may designate.

(5) The Secretary of the Treasury and the Secretary of the Interior shall enforce the provisions of this subsection, including any regulations issued hereunder, and, if requested by the Secretary of the Interior, the Secretary of the Treasury may require the furnishing of an appropriate bond when desirable to insure compliance with such provisions.

(b) Whoever violates this section, or any regulation issued pursuant thereto, shall be fined not more than $500 or imprisoned not more than six months, or both.

(c) The Secretary of the Treasury shall prescribe such requirements and issue such permits as he may deem necessary for the transportation of wild animals and birds under humane and healthful conditions, and it shall be unlawful for any person, including any importer, knowingly to cause or permit any wild animal or bird to be transported to the United States, or any Territory or district thereof,

under inhumane or unhealthful conditions or in violation of such requirements. In any criminal prosecution for violation of this subsection and in any administrative proceeding for the suspension of the issuance of further permits

(1) the condition of any vessel or conveyance, or the enclosures in which wild animals or birds are confined therein, upon its arrival in the United States, or any Territory or district thereof, shall constitute relevant evidence in determining whether the provisions of this subsection have been violated; and

(2) the presence in such vessel or conveyance at such time of a substantial ratio of dead, crippled, diseased, or starving wild animals or birds shall be deemed prima facie evidence of the violation of the provisions of this subsection. (June 25, 1948, ch. 645, 62 Stat. 687; May 24, 1949, ch. 139, § 2, 63 Stat. 89; Sept. 2, 1960, Pub. L. 86702, § 1, 74 Stat. 753.)

LEGISLATIVE HISTORY

Reviser's Note.-Based on title 18, U. 8. C., 1940 ed., § 391, 394 (Mar. 4, 1909, ch. 321, §§ 241, 244, 35 Stat. 1137, 1138; June 15, 1935, ch. 261, title II, 201, 49 Stat. 381; Reorg. Plan No. II, § 4 (1), 4 F. R. 2731, 53 Stat. 1438). This section consolidates the provisions of sections 391 and 394 of title 18, U. S. C., 1940 ed., as subsections (a) and (b), respectively.

In subsection (a) the words "Territory or District thereof" were omitted as unnecessary in view of the definition of the United States in section 5 of this title.

In subsection (b) the words "upon conviction thereof", were omitted as surplusage because punishment can only be imposed after conviction.

The amount of the fine was reduced from $1,000 to $500, thus making the violation a petty offense as defined in section 1 of this title. (See also section 41 of this title which provides a similar punishment.) Minor verbal changes were also made.

REFERENCES IN TEXT

Public Health Service Act, referred to in subsection (a) (1), is classified to chapter 6A of Title 42, The Public Health and Welfare.

Federal Food, Drug, and Cosmetic Act, referred to in subsection (a)(1), is classified to chapter 9 of Title 21, Food and Drugs.

Federal Plant Pest Act, referred to in subsection (a) (1), is classified to chapter 7B of Title 7, Agriculture.

The Act, referred to in subsection (a) (3), probably refers to Pub. L. 86-702, which amended this section and section 43 of this title.

AMENDMENTS

1960-Pub. L. 86-702 substituted "Importation or shipment of injurious mammals, birds, fish (including mollusks and crustacea), amphibia and reptiles; permits, specimens for museums; regulations" for "Importation of injurious animals and birds; permits; specimens for museums" in the catchline.

Subsec. (a) (1). Pub. L. 86-702 designated first sentence of former subsec. (a) as subsec. (a) (1), prohibited importation into the Commonwealth of Puerto Rico or any possession of the United States and shipments between the continental United States, the District of Columbia, Hawaii, the Commonwealth of Puerto Rico, or any possession of the United States, described the mongoose and flying foxes by their scientific names, extended the provisions prohibiting importation or shipment to include wild mammals, wild birds, fish (including mollusks and crustacea), amphibians, reptiles, or their eggs or offspring, empowered the Secretary to prohibit importation or shipment if injurious to human beings, forestry, or to wildlife or wildlife resources, required prompt exportation or destruction at the expense of the importer or consignee, provided that this section

shall not be construed to repeal or modify any provision of the Public Health Service Act or Federal Food, Drug, and Cosmetic Act and that it shall not authorize any action with respect to the importation of plant pests, and deleted provisions which required destruction of prohibited birds and animals or their return at the expense of the owner, and which prohibited the importation of the English sparrow and the starling.

Subsecs. (a) (2), (3). Pub. L. 86-702 added subsecs. (a) (2) and (a) (3).

Subsec. (a) (4). Pub. L. 86-702 designated second sentence of former subsec. (a) as subsec. (a) (4), limited importation of natural-history specimens to dead ones, and included all species of psittacine birds.

Subsec. (a) (5). Pub. L. 86-702 designated third sentence of former subsec. (a) as subsec. (a) (5), authorized enforcement by the Secretary of the Interior, and permitted the Secretary of the Treasury, if requested by the Secretary of the Interior, to require the furnishing of a bond.

Subsec. (b). Pub. L. 86-702 included violations of regulations.

1949 Subsec. (a). Act May 24, 1949, made section applicable to any Territory or district thereof as well as to the United States, and changed the phraseology.

Subsec. (b). Act May 24, 1949, reenacted subsec. (b) without change.

Subsec. (c). Act May 24, 1949, added subsec. (c).

CROSS REFERENCES

Preservation of game and wild birds; duties and powers of Secretary of the Interior; regulations as to hunting, see section 701 et seq. of Title 16, Conservation.

Unlawful transportation or importation of migratory birds, see sections 705 and 707 of Title 16, Conservation. SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 3054, 3112 of this title; title 15 section 1399.

§ 43. Transportation of wildlife taken in violation of State, National, or foreign laws; receipt; making false records.

(a) Any person who

(1) delivers, carries, transports, or ships, by any means whatever, or causes to be delivered, carried. transported, or shipped for commercial or noncommercial purposes or sells or causes to be sold any wildlife taken, transported, or sold in any manner in violation of any Act of Congress or regulation issued thereunder, or

(2) delivers, carries, transports, or ships, by any means whatever, or causes to be delivered, carried, transported, or shipped for commercial or noncommercial purposes or sells or causes to be sold in interstate or foreign commerce any wildlife taken, transported, or sold in any manner in violation of any law or regulation of any State or foreign country; or

(b) Any person who

(1) sells or causes to be sold any products manufactured, made, or processed from any wildlife taken, transported, or sold in any manner in violation of any Act of Congress or regulation issued thereunder, or

(2) sells or causes to be sold in interstate or foreign commerce any products manufactured, made, or processed from any wildlife taken, transported, or sold in any manner in violation of any law or regulation of a State or a foreign country, or

(3) having purchased or received wildlife imported from any foreign country or shipped, transported, or carried in interstate commerce, makes or causes to be made any false record, account, label, or identification thereof, or

(4) receives, acquires, or purchases for commercial or noncommercial purposes any wildlife

(A) taken, transported, or sold in violation of any law or regulation of any State or foreign country and delivered, carried, transported, or shipped by any means or method in interstate or foreign commerce, or

(B) taken, transported, or sold in violation of any Act of Congress or regulation issued thereunder, or

(5) imports from Mexico to any State, or exports from any State to Mexico, any game mammal, dead or alive, or part or product thereof, except under permit or other authorization of the Secretary or, in accordance with any regulations prescribed by him, having due regard to the requirements of the Migratory Birds and Game Mammals Treaty with Mexico and the laws of the United States forbidding importation of certain live mammals injurious to agriculture and horticulture;

shall be subject to the penalties prescribed in subsections (c) and (d) of this section.

(c) (1) Any person who knowingly violates, or who, in the exercise of due care, should know that he is violating, any provision of subsection (a) or (b) of this section may be assessed a civil penalty by the Secretary of not more than $5,000 for each such violation. Each violation shall be a separate offense. No penalty shall be assessed unless such person is given notice and opportunity for a hearing with respect to such violation. Any such civil penalty may be compromised by the Secretary. Upon any failure to pay the penalty assessed under this paragraph, the Secretary may request the Attorney General to institute a civil action in a district court of the United States for any district in which such person is found or resides or transacts business to collect the penalty and such court shall have jurisdiction to hear and decide any such action. In hearing such action, the court shall have authority to review the violation and the assessment of the civil penalty de novo.

(2) Any employee authorized by the Secretary to enforce the provisions of this section, or any officer of the customs, shall have authority to execute any warrant to search for and seize any wildlife, product, property, or item used or possessed in violation of this section with respect to which a civil penalty may be assessed pursuant to paragraph (1) of this subsection. Such wildlife, product, property, or item so seized shall be held by such employee pending disposition of proceedings by the Secretary involving the assessment of a civil penalty pursuant to paragraph (1) of this subsection; except that the Secretary may, in lieu of holding such wildlife, product, property, or item, permit such person to post a bond or other surety satisfactory to the Secretary. Upon the assessment of a civil penalty pursuant to paragraph (1) of this subsection for any nonwillful violation of this section, such wildlife, product, property, or item so seized may be proceeded against in any court of competent jurisdiction and forfeited to the Secretary for disposition by him in such manner as he deems appropriate. The owner or consignee of any such wildlife, product, property, or item so seized shall, as soon as practicable following such seizure,

be notified of that fact in accordance with regulations established by the Secretary or the Secretary of the Treasury. Whenever any wildlife, product, property, or item is seized pursuant to this subsection, the Secretary shall move to dispose of the civil penalty proceedings pursuant to paragraph (1) of this subsection as expeditiously as possible. If, with respect to any such wildlife, product, property, or item so seized, no action is commenced in any court of competent jurisdiction to obtain the forfeiture of such wildlife, product, property, or item within thirty days following the disposition of proceedings involving the assessment of a civil penalty, such wildlife, product, property, or item shall be immediately returned to the owner or the consignee in accordance with =regulations promulgated by the Secretary.

(d) Any person who knowingly and willfully violates any provision of subsection (a) or (b) of this section shall, upon conviction, be fined not more than = $10,000 or imprisoned for not more than one year, or both.

(e) Any wildlife or products thereof seized in connection with any knowing and willful violation of this section with respect to which a penalty may be imposed pursuant to subsection (d) shall, upon conviction of such violation, be forfeited to the Secretary to be disposed of by him in such manner as he deems appropriate. Any other property or item so seized may upon conviction, in the discretion of the court, be forfeited to the United States or otherwise disposed of. The owner or consignee of any such wildlife, product, property, or item so seized shall, as soon as practicable following such seizure, be notified of that fact in accordance with regulations established by the Secretary or the Secretary of the Treasury. If no conviction results from any such alleged violation, such wildlife, product, property or item so seized in connection therewith shall be immediately returned to the owner or consignee in accordance with regulations promulgated by the Secretary, unless the Secretary, within thirty days following the final disposition of the case involving such violation, commences proceedings under subsection (c) of this section.

(f) For the purpose of this section, the term-
(1) "Secretary" means the Secretary of the
Interior;

(2) "person" means any individual, firm, corporation, association, or partnership;

(3) "wildlife" means any wild mammal, wild bird, amphibian, reptile, mollusk, or crustacean, or any part, egg, or offspring thereof, or the dead body or parts thereof, but does not include migratory birds for which protection is afforded under the Migratory Bird Treaty Act, as amended;

(4) "State" means the several States, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin Islands, and Guam; and

(5) "taken" means captured, killed, collected, or otherwise possessed.

(June 25, 1948, ch. 645, 62 Stat. 687; Sept. 2, 1960, Pub. L. 86-702, § 2, 74 Stat. 754; Dec. 5, 1969, Pub. L. 91-135, § 7(a), 83 Stat. 279.)

LEGISLATIVE HISTORY

Reviser's Note.-Based on sections 704-707 of title 16 and sections 392, 393a, and 394 of title 18, U. S. C., 1940 ed. (Mar. 4, 1909, ch. 321, §§ 242, 244, 35 Stat. 1137, 1138; July 3, 1918, ch. 128, §§ 3-6, 40 Stat. 755, 756; June 15, 1935, ch. 261, title II, §§ 201, 202, 49 Stat. 380, 381; June 20, 1936, ch. 634, §§ 2, 4, 49 Stat. 1556; Reorg. Plan No. II, § 4 (f), 4 F. R. 2731, 53 Stat. 1433).

This section consolidates sections 392, 393a part, and 394 of said title 18 with parts of sections 704-707 of said title 16.

Other provisions of said section 393a of title 18, U. S. C., 1940 ed., are incorporated in sections 44, 3055 and 3112 of this title. Provisions of said section 706 of title 18, U. S. C., 1940 ed., not incorporated here, are covered either by section 3055 of this title, relating to arrests and warrants, or by the Federal Rules of Criminal Procedure, relating to warrants, searches and seizures, arraignment, etc.

The words "interstate or foreign commerce" were substituted for the enumeration of geographical subdivisions of the United States and foreign countries, in view of the definition of interstate or foreign commerce in section 10 of this title. The word "Possession" was inserted following the words "State, Territory" to clarify scope of section and avoid ambiguity as to the meaning of the term "United States."

The punishment provision of section 707 of title 16, U. S. C., 1940 ed., Conservation, was adopted instead of the phrase "not more than $1,000" contained in section 394 of title 18, U. S. C., 1940 ed., thus making the violation a petty offense of the same grade as violations of sections 41 and 42 of this title.

The words "upon conviction thereof" were omitted as surplusage because punishment can be imposed only after conviction.

Other changes were made in phraseology to effect the consolidation.

REFERENCES IN TEXT

The Migratory Bird Treaty Act, as amended, referred to in subsec. (f) (3), is classified to sections 703 to 708 and 709a to 711 of Title 16, Conservation.

AMENDMENTS

1969-Pub. L. 91-135, in rewriting existing provisions to clarify the nature of the violations, to refer to commercial and noncommercial purposes and interstate or foreign commerce, and to adopt the form descriptive of violations of acts of Congress and of laws of States or foreign countries, substituted subsecs. (a)-(f) for five prior pars.: Subsec. (a) incorporating provisions of former first par., amended to include commission of offense as a principal; Subsec. (b) (1) and (2) constituting new provisions based on provisions of former first par., drafted in language of subsec. (a);

Subsec, (b) (3) incorporating provisions of former third par., substituting "purchased or received" for “acquired"; Subsec. (b) (4) (A) and (B) incorporating provisions of former first and second pars.;

Subsec. (b) (5) incorporating provisions of former fourth par., amended to have due regard for requirements of the Migratory Birds and Game Mammals Treaty with Mexico and Federal laws forbidding importation of certain live mammals injurious to agriculture and horticulture, and to omit need for approval of regulations by the President;

Subsec. (c) constituting new provisions for administrative assessment of a maximum civil penalty of $5,000 for each violation, where the person knowingly violates or should know that he is committing a violation: separate offenses, notice and hearing, compromises; civil actions: Jurisdiction and venue, trial de novo; execution of search and seizure warrants; custody of articles pending disposition of proceedings; posting bond or other surety; forfeitures: notification of seizure, expeditious disposition of civil penalty proceedings, and return of property to owners; former provisions of fifth par. providing in part only for a criminal penalty by way of $500 fine or six months imprisonment or both;

Subsec. (d) substituting criminal penalty of $10,000 fine or one year imprisonment or both for prior provisions

69-254 O-72-4