16 U.S.C. § 2404 — Permits

Page 2181 TITLE 16—CONSERVATION § 2404 1 See References in Text note below. ism, for which the United States is required to give advance notice under paragraph 5 of Arti- cle VII of the Treaty; and (B) coordination of the review of informa- tion regarding environmental impact assess- ment received from other Parties under the Protocol. (2) Such regulations shall be consistent with Annex I to the Protocol. (d) Decision to proceed (1) No decision shall be taken to proceed with an activity for which a comprehensive environ- mental evaluation is prepared under this section unless there has been an opportunity for consid- eration of the draft comprehensive environ- mental evaluation at an Antarctic Treaty Con- sultative Meeting, except that no decision to proceed with a proposed activity shall be de- layed through the operation of this paragraph for more than 15 months from the date of cir- culation of the draft comprehensive environ- mental evaluation pursuant to Article 3(3) of Annex I to the Protocol. (2) The Secretary of State shall circulate the final comprehensive environmental evaluation, in accordance with Article 3(6) of Annex I to the Protocol, at least 60 days before the commence- ment of the activity in Antarctica. (e) Cases of emergency The requirements of this section, and of regu- lations promulgated under this section, shall not apply in cases of emergency relating to the safety of human life or of ships, aircraft, or equipment and facilities of high value, or the protection of the environment, which require an activity to be undertaken without fulfilling those requirements. (f) Exclusive mechanism Notwithstanding any other provision of law, the requirements of this section shall constitute the sole and exclusive statutory obligations of the Federal agencies with regard to assessing the environmental impacts of proposed Federal activities occurring in Antarctica. (g) Decisions on permit applications The provisions of this section requiring envi- ronmental impact assessments (including initial environmental evaluations and comprehensive environmental evaluations) shall not apply to Federal actions with respect to issuing permits under section 2404 of this title. (h) Publication of notices Whenever the Secretary of State makes a de- termination under paragraph (2) of subsection (b) of this section, or receives a draft com- prehensive environmental evaluation in accord- ance with Annex I, Article 3(3) to the Protocol, the Secretary of State shall cause timely notice thereof to be published in the Federal Register. (Pub. L. 95–541, § 4A, as added Pub. L. 104–227, title I, § 104, Oct. 2, 1996, 110 Stat. 3038.) Editorial Notes REFERENCES IN TEXT The National Environmental Policy Act of 1969, re- ferred to in subsec. (a)(1)(A), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chap- ter 55 (§ 4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables. § 2404. Permits (a) In general The Director may issue permits which author- ize acts otherwise prohibited by section 2403(b) of this title. (b) Applications for permits (1) Applications for permits under this section shall be made in such manner and form, and shall contain such information, as the Director shall by regulation prescribe. (2) The Director shall publish notice in the Federal Register of each application which is made for a permit under this section. The notice shall invite the submission by interested par- ties, within 30 days after the date of publication of the notice, of written data, comments, or views with respect to the application. Informa- tion received by the Director as a part of any application shall be available to the public as a matter of public record. (c) Action by appropriate Secretaries on certain permit applications (1) If the Director receives an application for a permit under this section requesting authority to undertake any action with respect to— (A) any native mammal which is a marine mammal within the meaning of section 1362(5) 1 of this title; (B) any native mammal, native bird, or na- tive plant which is an endangered species or threatened species under the Endangered Spe- cies Act of 1973 (16 U.S.C. 1531 et seq.); or (C) any native bird which is protected under the Migratory Bird Treaty Act (16 U.S.C. 701 et seq.); the Director shall submit a copy of the applica- tion to the Secretary of Commerce or to the Secretary of the Interior, as appropriate (herein- after in this subsection referred to respectively as the ‘‘appropriate Secretary’’). (2) After receiving a copy of any application from the Director under paragraph (1) the appro- priate Secretary shall promptly determine, and notify the Director, whether or not any action proposed in the application also requires a per- mit or other authorization under any law ad- ministered by the appropriate Secretary. (3) If the appropriate Secretary notifies the Director that any action proposed in the appli- cation requires a permit or other authorization under any law administered by the appropriate Secretary, the Director may not issue a permit under this section with respect to such action unless such other required permit or authoriza- tion is issued by the appropriate Secretary and a copy thereof is submitted to the Director. The issuance of any permit or other authorization by the appropriate Secretary for the carrying out of any action with respect to any native mam- mal, native bird, or native plant shall not be deemed to entitle the applicant concerned to the Page 2182 TITLE 16—CONSERVATION § 2404 2 So in original. Two subsecs. (e) have been enacted. issuance by the Director of a permit under this section. (d) Issuance of permits As soon as practicable after receiving any ap- plication for a permit under this section, or, in the case of any application to which subsection (c) applies, as soon as practicable after the ap- plicable requirements of such subsection are complied with, the Director shall issue, or deny the issuance of, the permit. Within 10 days after the date of the issuance or denial of a permit under this subsection, the Director shall publish notice of the issuance or denial in the Federal Register. (e) 2 Terms and conditions of permits (1) Each permit issued under this section shall— (A) if applicable, specify— (i) the number and species of native mam- mals, native birds, native plants, or native invertebrates to which the permit applies, and (ii) the manner in which the taking or harmful interference shall be conducted (which manner shall be determined by the Director to be humane) and the area in which it will be conducted; (B) the period during which the permit is valid; and (C) such other terms and conditions as the Director deems necessary and appropriate to ensure that any act authorized under the per- mit is carried out in a manner consistent with the purpose of this chapter, the criteria set forth in paragraph (2), if applicable, and the regulations prescribed under this chapter. (2) The terms and conditions imposed by the Director in any permit issued under this section that authorizes any of the following acts shall be consistent with the following criteria: (A) Permits authorizing the taking or harm- ful interference within Antarctica of any na- tive mammal or native bird (other than a Spe- cially Protected Species of any such mammal or bird)— (i) may be issued only for the purpose of providing— (I) specimens for scientific study or sci- entific information, or (II) specimens for museums, zoological gardens, or other educational or cultural institutions or uses, or (III) for unavoidable consequences of sci- entific activities or the construction and operation of scientific support facilities; and (ii) shall ensure, as far as possible, that— (I) no more native mammals and native birds are taken in any year than can nor- mally be replaced by net natural reproduc- tion in the following breeding season, and (II) the variety of species and the bal- ance of the natural ecological systems within Antarctica are maintained. (B) Permits authorizing the taking of Spe- cially Protected Species may be issued only if— (i) there is a compelling scientific purpose for such taking; and (ii) the actions allowed under any such permit will not jeopardize any existing nat- ural ecological system, or the survival, of such species. (C) A permit authorizing the entry into an Antarctic Specially Protected Area shall be issued only— (i) if the entry is consistent with an ap- proved management plan, or (ii) if a management plan relating to the area has not been approved but— (I) there is a compelling purpose for such entry which cannot be served elsewhere, and (II) the actions allowed under the permit will not jeopardize the natural ecological system existing in such area. (e) 2 Judicial review Any applicant for a permit may obtain judi- cial review of the terms and conditions of any permit issued by the Director under this section or of the refusal of the Director to issue such a permit. Such review, which shall be pursuant to chapter 7 of title 5, may be initiated by filing a petition for review in the United States district court for the district wherein the applicant for a permit resides, or has his principal place of business, or in the United States District Court for the District of Columbia, within 60 days after the date on which such permit is issued or de- nied. (f) Modification, suspension, and revocation (1) The Director may modify, suspend, or re- voke, in whole or part, any permit issued under this section— (A) in order to make the permit consistent with any change made after the date of issuance of the permit, to any regulation pre- scribed under section 2405 of this title; (B) if there is any change in conditions which makes the permit inconsistent with the purpose of this chapter; or (C) in any case in which there has been any violation of any term or condition of the per- mit, any regulation prescribed under this chapter, or any provision of this chapter. (2) Whenever the Director proposes any modi- fication, suspension, or revocation of a permit under this subsection, the permittee shall be af- forded opportunity, after due notice, for a hear- ing by the Director with respect to such pro- posed modification, suspension, or revocation. If a hearing is requested, the action proposed by the Director shall not take effect before a deci- sion is issued by him after the hearing, unless the proposed action is taken by the Director to meet an emergency situation. Any action taken by the Director after such a hearing is subject to judicial review on the same basis as is provided for with respect to permit applications under subsection (e). (3) Notice of the modification, suspension, or revocation of any permit by the Director shall be published in the Federal Register within 10 days from the date of the Director’s decision. (g) Permit fees The Director may establish and charge fees for processing applications for permits under this Page 2183 TITLE 16—CONSERVATION § 2405 section. The amount of such fees shall be com- mensurate with the administrative costs in- curred by the Director in undertaking such proc- essing. (Pub. L. 95–541, § 5, Oct. 28, 1978, 92 Stat. 2050; Pub. L. 104–227, title I, § 105, Oct. 2, 1996, 110 Stat. 3040.) Editorial Notes REFERENCES IN TEXT Section 1362(5) of this title, referred to in subsec. (c)(1)(A), was redesignated section 1362(6) by Pub. L. 102–582, title IV, § 401(a), Nov. 2, 1992, 106 Stat. 4909. The Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), referred to in subsec. (c)(1)(B), is Pub. L. 93–205, Dec. 28, 1973, 87 Stat. 884, which is classified generally to chapter 35 (§ 1531 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 1531 of this title and Tables. The Migratory Bird Treaty Act (16 U.S.C. 701 et seq.), referred to in subsec. (c)(1)(C), is act July 3, 1918, ch. 128, 40 Stat. 755, which is classified generally to sub- chapter II (§ 703 et seq.) of chapter 7 of this title. For complete classification of this Act to the Code, see sec- tion 710 of this title and Tables. AMENDMENTS 1996—Subsec. (a). Pub. L. 104–227, § 105(1), substituted ‘‘section 2403(b)’’ for ‘‘section 2403(a)’’. Subsec. (c)(1)(B). Pub. L. 104–227, § 105(2), substituted ‘‘Species’’ for ‘‘Special’’. Subsec. (e)(1)(A). Pub. L. 104–227, § 105(3)(A), (B), in subsec. (e) relating to terms and conditions of permits substituted ‘‘native plants, or native invertebrates to which the permit applies, and’’ for ‘‘or native plants to which the permit applies,’’ in cl. (i), added cl. (ii), and struck out former cls. (ii) and (iii) which read as fol- lows: ‘‘(ii) if any such mammal or bird is authorized to be taken, transported, carried, or shipped, the manner (which manner must be determined by the Director to be humane) in which such action must be accomplished and the area in which such taking must occur, and ‘‘(iii) if any such plant is authorized to be collected, the location and manner in which it must be col- lected;’’. Subsec. (e)(2)(A). Pub. L. 104–227, § 105(3)(C)–(G), in subsec. (e) relating to terms and conditions of permits substituted ‘‘or harmful interference within Antarc- tica’’ for ‘‘within Antarctica (other than within any specially protected area)’’ and ‘‘Specially Protected Species’’ for ‘‘specially protected species’’ in introduc- tory provisions, substituted ‘‘, or’’ for ‘‘; and’’ in cl. (i)(II), added subcl. (III) in cl. (i), and substituted ‘‘within Antarctica are’’ for ‘‘with Antarctica and’’ in cl. (ii)(II). Subsec. (e)(2)(B). Pub. L. 104–227, § 105(3)(D), in subsec. (e) relating to terms and conditions of permits sub- stituted ‘‘Specially Protected Species’’ for ‘‘specially protected species’’ in introductory provisions. Subsec. (e)(2)(C), (D). Pub. L. 104–227, § 105(3)(H), in subsec. (e) relating to terms and conditions of permits added subpar. (C) and struck out former subpars. (C) and (D) which read as follows: ‘‘(C) Permits authorizing the entry into any specially protected area— ‘‘(i) may be issued only if— ‘‘(I) there is a compelling scientific purpose for such entry which cannot be served elsewhere, and ‘‘(II) the actions allowed under any such permit will not jeopardize the natural ecological system existing in such area; and ‘‘(ii) shall not allow the operation of any surface ve- hicle within such area. ‘‘(D) Permits authorizing the entry into any site of special scientific interest shall be consistent with the management plan prescribed under section 2405(b)(3) of this title for such site.’’ § 2405. Regulations (a) Regulations to be issued by Director (1) The Director shall issue such regulations as are necessary and appropriate to implement Annex II and Annex V to the Protocol and the provisions of this chapter which implement those annexes, including section 2403(b)(2), (3), (4), and (5) of this title. The Director shall des- ignate as native species— (A) each species of the class Aves; (B) each species of the class Mammalia; and (C) each species of plant, which is indigenous to Antarctica or which oc- curs there seasonally through natural migra- tions. (2) The Director, with the concurrence of the Administrator, shall issue such regulations as are necessary and appropriate to implement Annex III to the Protocol and the provisions of this chapter which implement that Annex, in- cluding section 2403(a)(1), (2), (3), and (4) of this title, and section 2403(b)(1) of this title. (3) The Director shall issue such regulations as are necessary and appropriate to implement Ar- ticle 15 of the Protocol with respect to land areas and ice shelves in Antarctica. (4) The Director shall issue such additional regulations as are necessary and appropriate to implement the Protocol and this chapter, except as provided in subsection (b). (b) Regulations to be issued by Secretary of De- partment in which Coast Guard is operating The Secretary of the Department in which the Coast Guard is operating shall issue such regula- tions as are necessary and appropriate, in addi- tion to regulations issued under the Act to Pre- vent Pollution from Ships (33 U.S.C. 1901 et seq.), to implement Annex IV to the Protocol and the provisions of this chapter which imple- ment that Annex, and, with the concurrence of the Director, such regulations as are necessary and appropriate to implement Article 15 of the Protocol with respect to vessels. (c) Time period for regulations The regulations to be issued under subsection (a)(1) and (2) of this section shall be issued with- in 2 years after October 2, 1996. The regulations to be issued under subsection (a)(3) of this sec- tion shall be issued within 3 years after October 2, 1996. (Pub. L. 95–541, § 6, Oct. 28, 1978, 92 Stat. 2053; Pub. L. 104–227, title I, § 106, Oct. 2, 1996, 110 Stat. 3041.) Editorial Notes REFERENCES IN TEXT The Act to Prevent Pollution from Ships, referred to in subsec. (b), is Pub. L. 96–478, Oct. 21, 1980, 94 Stat. 2297, which is classified principally to chapter 33 (§ 1901 et seq.) of Title 33, Navigation and Navigable Waters. For complete classification of this Act to the Code, see Short Title note set out under section 1901 of Title 33 and Tables. AMENDMENTS 1996—Pub. L. 104–227 reenacted section catchline without change and amended text generally. Prior to amendment, text consisted of subsec. (a) ‘‘In General’’