16 U.S.C. § 1538 — Prohibited acts

Page 1934 TITLE 16—CONSERVATION § 1538 Title 2, The Congress. Committee on Resources of House of Representatives changed to Committee on Natural Resources of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. ENDANGERED SPECIES SCIENTIFIC AUTHORITY; INTERIM PERFORMANCE OF FUNCTIONS OF COMMISSION Pub. L. 96–159, § 6(b), Dec. 28, 1979, 93 Stat. 1230, pro- vided that until such time as the Chairman, Members, and Executive Secretary of the International Conven- tion Advisory Commission are appointed, but not later than 90 days after Dec. 28, 1979, the functions of the Commission be carried out by the Endangered Species Scientific Authority as established by Ex. Ord. No. 11911, formerly set out as a note under section 1537 of this title, with staff and administrative support being provided by the Secretary of the Interior as set forth in that Executive Order. § 1538. Prohibited acts (a) Generally (1) Except as provided in sections 1535(g)(2) and 1539 of this title, with respect to any endangered species of fish or wildlife listed pursuant to sec- tion 1533 of this title it is unlawful for any per- son subject to the jurisdiction of the United States to— (A) import any such species into, or export any such species from the United States; (B) take any such species within the United States or the territorial sea of the United States; (C) take any such species upon the high seas; (D) possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any such spe- cies taken in violation of subparagraphs (B) and (C); (E) deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of a com- mercial activity, any such species; (F) sell or offer for sale in interstate or for- eign commerce any such species; or (G) violate any regulation pertaining to such species or to any threatened species of fish or wildlife listed pursuant to section 1533 of this title and promulgated by the Secretary pursu- ant to authority provided by this chapter. (2) Except as provided in sections 1535(g)(2) and 1539 of this title, with respect to any endangered species of plants listed pursuant to section 1533 of this title, it is unlawful for any person subject to the jurisdiction of the United States to— (A) import any such species into, or export any such species from, the United States; (B) remove and reduce to possession any such species from areas under Federal jurisdic- tion; maliciously damage or destroy any such species on any such area; or remove, cut, dig up, or damage or destroy any such species on any other area in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law; (C) deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of a com- mercial activity, any such species; (D) sell or offer for sale in interstate or for- eign commerce any such species; or (E) violate any regulation pertaining to such species or to any threatened species of plants listed pursuant to section 1533 of this title and promulgated by the Secretary pursuant to au- thority provided by this chapter. (b) Species held in captivity or controlled envi- ronment (1) The provisions of subsections (a)(1)(A) and (a)(1)(G) of this section shall not apply to any fish or wildlife which was held in captivity or in a controlled environment on (A) December 28, 1973, or (B) the date of the publication in the Federal Register of a final regulation adding such fish or wildlife species to any list published pursuant to subsection (c) of section 1533 of this title: Provided, That such holding and any subse- quent holding or use of the fish or wildlife was not in the course of a commercial activity. With respect to any act prohibited by subsections (a)(1)(A) and (a)(1)(G) of this section which oc- curs after a period of 180 days from (i) December 28, 1973, or (ii) the date of publication in the Federal Register of a final regulation adding such fish or wildlife species to any list published pursuant to subsection (c) of section 1533 of this title, there shall be a rebuttable presumption that the fish or wildlife involved in such act is not entitled to the exemption contained in this subsection. (2)(A) The provisions of subsection (a)(1) shall not apply to— (i) any raptor legally held in captivity or in a controlled environment on November 10, 1978; or (ii) any progeny of any raptor described in clause (i); until such time as any such raptor or progeny is intentionally returned to a wild state. (B) Any person holding any raptor or progeny described in subparagraph (A) must be able to demonstrate that the raptor or progeny does, in fact, qualify under the provisions of this para- graph, and shall maintain and submit to the Secretary, on request, such inventories, docu- mentation, and records as the Secretary may by regulation require as being reasonably appro- priate to carry out the purposes of this para- graph. Such requirements shall not unneces- sarily duplicate the requirements of other rules and regulations promulgated by the Secretary. (c) Violation of Convention (1) It is unlawful for any person subject to the jurisdiction of the United States to engage in any trade in any specimens contrary to the pro- visions of the Convention, or to possess any specimens traded contrary to the provisions of the Convention, including the definitions of terms in article I thereof. (2) Any importation into the United States of fish or wildlife shall, if— (A) such fish or wildlife is not an endangered species listed pursuant to section 1533 of this title but is listed in Appendix II to the Con- vention, (B) the taking and exportation of such fish or wildlife is not contrary to the provisions of the Convention and all other applicable re- quirements of the Convention have been satis- fied, (C) the applicable requirements of sub- sections (d), (e), and (f) of this section have been satisfied, and Page 1935 TITLE 16—CONSERVATION § 1538 1 See References in Text note below. (D) such importation is not made in the course of a commercial activity, be presumed to be an importation not in viola- tion of any provision of this chapter or any reg- ulation issued pursuant to this chapter. (d) Imports and exports (1) In general It is unlawful for any person, without first having obtained permission from the Sec- retary, to engage in business— (A) as an importer or exporter of fish or wildlife (other than shellfish and fishery products which (i) are not listed pursuant to section 1533 of this title as endangered spe- cies or threatened species, and (ii) are im- ported for purposes of human or animal con- sumption or taken in waters under the juris- diction of the United States or on the high seas for recreational purposes) or plants; or (B) as an importer or exporter of any amount of raw or worked African elephant ivory. (2) Requirements Any person required to obtain permission under paragraph (1) of this subsection shall— (A) keep such records as will fully and cor- rectly disclose each importation or expor- tation of fish, wildlife, plants, or African ele- phant ivory made by him and the subsequent disposition made by him with respect to such fish, wildlife, plants, or ivory; (B) at all reasonable times upon notice by a duly authorized representative of the Sec- retary, afford such representative access to his place of business, an opportunity to ex- amine his inventory of imported fish, wild- life, plants, or African elephant ivory and the records required to be kept under sub- paragraph (A) of this paragraph, and to copy such records; and (C) file such reports as the Secretary may require. (3) Regulations The Secretary shall prescribe such regula- tions as are necessary and appropriate to carry out the purposes of this subsection. (4) Restriction on consideration of value or amount of African elephant ivory imported or exported In granting permission under this subsection for importation or exportation of African ele- phant ivory, the Secretary shall not vary the requirements for obtaining such permission on the basis of the value or amount of ivory im- ported or exported under such permission. (e) Reports It is unlawful for any person importing or ex- porting fish or wildlife (other than shellfish and fishery products which (1) are not listed pursu- ant to section 1533 of this title as endangered or threatened species, and (2) are imported for pur- poses of human or animal consumption or taken in waters under the jurisdiction of the United States or on the high seas for recreational pur- poses) or plants to fail to file any declaration or report as the Secretary deems necessary to fa- cilitate enforcement of this chapter or to meet the obligations of the Convention. (f) Designation of ports (1) It is unlawful for any person subject to the jurisdiction of the United States to import into or export from the United States any fish or wildlife (other than shellfish and fishery prod- ucts which (A) are not listed pursuant to section 1533 of this title as endangered species or threat- ened species, and (B) are imported for purposes of human or animal consumption or taken in waters under the jurisdiction of the United States or on the high seas for recreational pur- poses) or plants, except at a port or ports des- ignated by the Secretary of the Interior. For the purpose of facilitating enforcement of this chap- ter and reducing the costs thereof, the Secretary of the Interior, with approval of the Secretary of the Treasury and after notice and opportunity for public hearing, may, by regulation, des- ignate ports and change such designations. The Secretary of the Interior, under such terms and conditions as he may prescribe, may permit the importation or exportation at nondesignated ports in the interest of the health or safety of the fish or wildlife or plants, or for other rea- sons, if, in his discretion, he deems it appro- priate and consistent with the purpose of this subsection. (2) Any port designated by the Secretary of the Interior under the authority of section 668cc–4(d) 1 of this title, shall, if such designa- tion is in effect on December 27, 1973, be deemed to be a port designated by the Secretary under paragraph (1) of this subsection until such time as the Secretary otherwise provides. (g) Violations It is unlawful for any person subject to the ju- risdiction of the United States to attempt to commit, solicit another to commit, or cause to be committed, any offense defined in this sec- tion. (Pub. L. 93–205, § 9, Dec. 28, 1973, 87 Stat. 893; Pub. L. 95–632, § 4, Nov. 10, 1978, 92 Stat. 3760; Pub. L. 97–304, § 9(b), Oct. 13, 1982, 96 Stat. 1426; Pub. L. 100–478, title I, § 1006, title II, § 2301, Oct. 7, 1988, 102 Stat. 2308, 2321; Pub. L. 100–653, title IX, § 905, Nov. 14, 1988, 102 Stat. 3835.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a)(1)(G), (2)(E), (c)(2), (e), and (f)(1), was in the original ‘‘this Act’’, meaning Pub. L. 93–205, Dec. 28, 1973, 81 Stat. 884, known as the Endangered Species Act of 1973, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1531 of this title and Tables. Section 668cc–4 of this title, referred to in subsec. (f)(2), was repealed by Pub. L. 93–205, § 14, Dec. 28, 1973, 87 Stat. 903. AMENDMENTS 1988—Subsec. (a)(2)(B). Pub. L. 100–478, § 1006, amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: ‘‘remove and reduce to possession any such species from areas under Federal jurisdiction;’’. Subsec. (d). Pub. L. 100–478, § 2301, amended subsec. (d) generally, revising and restating as pars. (1) to (4) pro- visions of former pars. (1) to (3). Page 1936 TITLE 16—CONSERVATION § 1538 Subsec. (d)(1)(A). Pub. L. 100–653 inserted ‘‘or plants’’ after ‘‘purposes)’’. 1982—Subsec. (a)(2)(B) to (E). Pub. L. 97–304, § 9(b)(1), added subpar. (B) and redesignated former subpars. (B), (C), and (D) as (C), (D), and (E), respectively. Subsec. (b)(1). Pub. L. 97–304, § 9(b)(2), substituted ‘‘The provisions of subsections (a)(1)(A) and (a)(1)(G) of this section shall not apply to any fish or wildlife which was held in captivity or in a controlled environ- ment on (A) December 28, 1973, or (B) the date of the publication in the Federal Register of a final regula- tion adding such fish or wildlife species to any list pub- lished pursuant to subsection (c) of section 1533 of this title: Provided, That such holding and any subsequent holding or use of the fish or wildlife was not in the course of a commercial activity. With respect to any act prohibited by subsections (a)(1)(A) and (a)(1)(G) of this section which occurs after a period of 180 days from (i) December 28, 1973, or (ii) the date of publica- tion in the Federal Register of a final regulation adding such fish or wildlife species to any list published pursu- ant to subsection (c) of section 1533 of this title, there shall be a rebuttable presumption that the fish or wild- life involved in such act is not entitled to the exemp- tion contained in this subsection’’ for ‘‘The provisions of this section shall not apply to any fish or wildlife held in captivity or in a controlled environment on De- cember 28, 1973, if the purposes of such holding are not contrary to the purposes of this chapter; except that this subsection shall not apply in the case of any fish or wildlife held in the course of a commercial activity. With respect to any act prohibited by this section which occurs after a period of 180 days from December 28, 1973, there shall be a rebuttable presumption that the fish or wildlife involved in such act was not held in captivity or in a controlled environment on December 28, 1973’’. Subsec. (b)(2)(A). Pub. L. 97–304, § 9(b)(3), substituted ‘‘The provisions of subsection (a)(1) shall not apply to’’ for ‘‘This section shall not apply to’’ in provisions pre- ceding cl. (i). 1978—Subsec. (b). Pub. L. 95–632 designated existing provision as par. (1) and added par. (2). Statutory Notes and Related Subsidiaries EXEMPTION OF EXPORTATION OF CERTAIN ECHINODERMS FROM PERMISSION AND LICENSING REQUIREMENTS Pub. L. 115–334, title XII, § 12617, Dec. 20, 2018, 132 Stat. 5016, provided that: ‘‘(a) DEFINITIONS.—In this section: ‘‘(1) CONSERVATION AND MANAGEMENT.—The term ‘conservation and management’ has the meaning given the term in section 3 of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1802). ‘‘(2) MARINE FISHERIES COMMISSION.—The term ‘Ma- rine Fisheries Commission’ means an interstate com- mission (as that term is used in the Interjurisdic- tional Fisheries Act of 1986 (16 USC [U.S.C.] 4101 et seq.)). ‘‘(3) STATE JURISDICTION.—The term ‘State jurisdic- tion’ means areas under the jurisdiction and author- ity of a State as described in section 306(a)(2) of the Magnuson-Stevens Fishery Conservation and Man- agement Act (16 U.S.C. 1856(a)(2)). ‘‘(b) EXEMPTION.—Not later than 90 days after the date of enactment of this Act [Dec. 20, 2018], the Direc- tor of the United States Fish and Wildlife Service shall amend section 14.92 of title 50, Code of Federal Regula- tions, to clarify that— ‘‘(1) except as provided in paragraph (2) and sub- section (d)(2)— ‘‘(A) fish and wildlife described in subsection (c) are fishery products exempt from the export per- mission requirements of section 9(d)(1) of the En- dangered Species Act of 1973 (16 U.S.C. 1538(d)(1)); and ‘‘(B) any person may engage in business as an ex- porter of fish or wildlife described in subsection (c) without procuring— ‘‘(i) permission under section 9(d)(1) of the En- dangered Species Act of 1973 (16 U.S.C. 1538(d)(1)); or ‘‘(ii) an export license under subpart I of part 14 of title 50, Code of Federal Regulations (or suc- cessor regulations); and ‘‘(2) notwithstanding paragraph (1), unless the per- son has qualified for and obtained an export license described in paragraph (1)(B)(ii), any person that has been convicted of 1 or more violations of a Federal law relating to the importation, transportation, or exportation of wildlife shall not be permitted, during the 5-year period beginning on the date of the most recent conviction, to engage in business as an ex- porter of fish or wildlife described in subsection (c). ‘‘(c) COVERED FISH OR WILDLIFE.—The fish or wildlife referred to in subsection (b) are members of the species Strongylocentrotus droebachiensis (commonly known as the ‘green sea urchin’), including any products of that species, that— ‘‘(1) do not require a permit under part 16, 17, or 23 of title 50, Code of Federal Regulations (or successor regulations); ‘‘(2)(A) are harvested in waters under State juris- diction; or ‘‘(B) are imported for processing in the United States pursuant to an import license as required under section 14.91 of title 50, Code of Federal Regula- tions (or a successor regulation), and not exempt from import license requirements under section 14.92 of that title (as in effect on the day before the date of enactment of this Act); and ‘‘(3) are exported for purposes of human or animal consumption. ‘‘(d) INFORMATION COLLECTION ON EXPORTS.— ‘‘(1) IN GENERAL.—The State agency that regulates or otherwise oversees a State fishery in which the fish and wildlife described in subsection (c) are har- vested shall annually transmit the conservation and management data (as defined in subsection (a)) to the Interstate Fisheries Management Program Policy Board of the applicable Marine Fisheries Commis- sion. ‘‘(2) PRIVACY.—Such data thereafter shall not be re- leased and shall be maintained as confidential by such applicable Marine Fisheries Commission, includ- ing data requested under the [sic] section 552 of title 5, United States Code, unless disclosure is required under court order or unless the data is essential for an enforcement action under Federal wildlife man- agement laws. ‘‘(3) EXCLUSION.—The exemption under subsection (b)(1) shall not apply in a State if— ‘‘(A) the State fails to transmit the data required under paragraph (1); or ‘‘(B) the applicable Marine Fisheries Commission determines, in consultation with the primary re- search agency of such Commission, after notice and an opportunity to comment, that the data required under paragraph (1) fails to prove that the State agency or official is engaged in conservation and management of the fish or wildlife described in sub- section (c).’’ HUMAN ACTIVITIES WITHIN PROXIMITY OF WHALES Pub. L. 103–238, § 17, Apr. 30, 1994, 108 Stat. 559, pro- vided that: ‘‘(a) LAWFUL APPROACHES.—In waters of the United States surrounding the State of Hawaii, it is lawful for a person subject to the jurisdiction of the United States to approach, by any means other than an air- craft, no closer than 100 yards to a humpback whale, re- gardless of whether the approach is made in waters des- ignated under section 222.31 of title 50, Code of Federal Regulations, as cow/calf waters. ‘‘(b) TERMINATION OF LEGAL EFFECT OF CERTAIN REGU- LATIONS.—Subsection (b) of section 222.31 of title 50, Code of Federal Regulations, shall cease to be in force and effect.’’ Page 1937 TITLE 16—CONSERVATION § 1539 1 See References in Text note below. Executive Documents TERRITORIAL SEA OF UNITED STATES For extension of territorial sea of United States, see Proc. No. 5928, set out as a note under section 1331 of Title 43, Public Lands. § 1539. Exceptions (a) Permits (1) The Secretary may permit, under such terms and conditions as he shall prescribe— (A) any act otherwise prohibited by section 1538 of this title for scientific purposes or to enhance the propagation or survival of the af- fected species, including, but not limited to, acts necessary for the establishment and maintenance of experimental populations pur- suant to subsection (j); or (B) any taking otherwise prohibited by sec- tion 1538(a)(1)(B) of this title if such taking is incidental to, and not the purpose of, the car- rying out of an otherwise lawful activity. (2)(A) No permit may be issued by the Sec- retary authorizing any taking referred to in paragraph (1)(B) unless the applicant therefor submits to the Secretary a conservation plan that specifies— (i) the impact which will likely result from such taking; (ii) what steps the applicant will take to minimize and mitigate such impacts, and the funding that will be available to implement such steps; (iii) what alternative actions to such taking the applicant considered and the reasons why such alternatives are not being utilized; and (iv) such other measures that the Secretary may require as being necessary or appropriate for purposes of the plan. (B) If the Secretary finds, after opportunity for public comment, with respect to a permit ap- plication and the related conservation plan that— (i) the taking will be incidental; (ii) the applicant will, to the maximum ex- tent practicable, minimize and mitigate the impacts of such taking; (iii) the applicant will ensure that adequate funding for the plan will be provided; (iv) the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild; and (v) the measures, if any, required under sub- paragraph (A)(iv) will be met; and he has received such other assurances as he may require that the plan will be implemented, the Secretary shall issue the permit. The permit shall contain such terms and conditions as the Secretary deems necessary or appropriate to carry out the purposes of this paragraph, includ- ing, but not limited to, such reporting require- ments as the Secretary deems necessary for de- termining whether such terms and conditions are being complied with. (C) The Secretary shall revoke a permit issued under this paragraph if he finds that the per- mittee is not complying with the terms and con- ditions of the permit. (b) Hardship exemptions (1) If any person enters into a contract with respect to a species of fish or wildlife or plant before the date of the publication in the Federal Register of notice of consideration of that spe- cies as an endangered species and the subse- quent listing of that species as an endangered species pursuant to section 1533 of this title will cause undue economic hardship to such person under the contract, the Secretary, in order to minimize such hardship, may exempt such per- son from the application of section 1538(a) of this title to the extent the Secretary deems ap- propriate if such person applies to him for such exemption and includes with such application such information as the Secretary may require to prove such hardship; except that (A) no such exemption shall be for a duration of more than one year from the date of publication in the Federal Register of notice of consideration of the species concerned, or shall apply to a quan- tity of fish or wildlife or plants in excess of that specified by the Secretary; (B) the one-year pe- riod for those species of fish or wildlife listed by the Secretary as endangered prior to December 28, 1973, shall expire in accordance with the terms of section 668cc–3 1 of this title; and (C) no such exemption may be granted for the importa- tion or exportation of a specimen listed in Ap- pendix I of the Convention which is to be used in a commercial activity. (2) As used in this subsection, the term ‘‘undue economic hardship’’ shall include, but not be limited to: (A) substantial economic loss resulting from inability caused by this chapter to perform contracts with respect to species of fish and wildlife entered into prior to the date of publi- cation in the Federal Register of a notice of consideration of such species as an endangered species; (B) substantial economic loss to persons who, for the year prior to the notice of consid- eration of such species as an endangered spe- cies, derived a substantial portion of their in- come from the lawful taking of any listed spe- cies, which taking would be made unlawful under this chapter; or (C) curtailment of subsistence taking made unlawful under this chapter by persons (i) not reasonably able to secure other sources of sub- sistence; and (ii) dependent to a substantial extent upon hunting and fishing for subsist- ence; and (iii) who must engage in such cur- tailed taking for subsistence purposes. (3) The Secretary may make further require- ments for a showing of undue economic hardship as he deems fit. Exceptions granted under this section may be limited by the Secretary in his discretion as to time, area, or other factor of ap- plicability. (c) Notice and review The Secretary shall publish notice in the Fed- eral Register of each application for an exemp- tion or permit which is made under this section. Each notice shall invite the submission from in- terested parties, within thirty days after the date of the notice, of written data, views, or ar- guments with respect to the application; except that such thirty-day period may be waived by the Secretary in an emergency situation where