16 U.S.C. § 1538

Current through P.L. 118-106 (published on www.congress.gov on 10/04/2024)

Section 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 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) 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 species 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 commercial activity, any such species;

(F) sell or offer for sale in interstate or foreign 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 pursuant 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 jurisdiction; 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 commercial activity, any such species;

(D) sell or offer for sale in interstate or foreign 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 authority provided by this chapter.

(b) Species held in captivity or controlled environment

(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 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 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 paragraph, and shall maintain and submit to the Secretary, on request, such inventories, documentation, and records as the Secretary may by regulation require as being reasonably appropriate to carry out the purposes of this paragraph. Such requirements shall not unnecessarily 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 provisions 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 Convention,

(B) the taking and exportation of such fish or wildlife is not contrary to the provisions of the Convention and all other applicable requirements of the Convention have been satisfied,

(C) the applicable requirements of subsections (d), (e), and (f) of this section have been satisfied, and

(D) such importation is not made in the course of a commercial activity,

be presumed to be an importation not in violation of any provision of this chapter or any regulation 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 Secretary, 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 species or threatened species, and (ii) 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 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 correctly disclose each importation or exportation of fish, wildlife, plants, or African elephant 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 Secretary, afford such representative access to his place of business, an opportunity to examine his inventory of imported fish, wildlife, plants, or African elephant ivory and the records required to be kept under subparagraph (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 regulations 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 elephant ivory, the Secretary shall not vary the requirements for obtaining such permission on the basis of the value or amount of ivory imported or exported under such permission.

(e) Reports

It is unlawful for any person importing or exporting fish or wildlife (other than shellfish and fishery products which (1) are not listed pursuant to section 1533 of this title as endangered or threatened species, and (2) 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 purposes) or plants to fail to file any declaration or report as the Secretary deems necessary to facilitate 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 products which (A) are not listed pursuant to section 1533 of this title as endangered species or threatened 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 purposes) or plants, except at a port or ports designated by the Secretary of the Interior. For the purpose of facilitating enforcement of this chapter 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, designate 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 reasons, if, in his discretion, he deems it appropriate 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 designation 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 jurisdiction of the United States to attempt to commit, solicit another to commit, or cause to be committed, any offense defined in this section.

¹See References in Text note below.

16 U.S.C. § 1538

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 TEXTThis 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.

AMENDMENTS1988-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) provisions of former pars. (1) to (3). 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 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 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 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" for "The provisions of this section shall not apply to any fish or wildlife held in captivity or in a controlled environment on December 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 preceding 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, §126172617,, 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 'Marine Fisheries Commission' means an interstate commission (as that term is used in the Interjurisdictional Fisheries Act of 1986 (16 USC [U.S.C.] 4101 et seq.))."(3) STATE JURISDICTION.-The term 'State jurisdiction' means areas under the jurisdiction and authority of a State as described in section 306(a)(2) of the Magnuson-Stevens Fishery Conservation and Management 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 Director of the United States Fish and Wildlife Service shall amend section 14.92 of title 50, Code of Federal Regulations, to clarify that- "(1) except as provided in paragraph (2) and subsection (d)(2)-"(A) fish and wildlife described in subsection (c) are fishery products exempt from the export permission requirements of section 9(d)(1) of the Endangered Species Act of 1973 (16 U.S.C. 1538(d)(1)); and"(B) any person may engage in business as an exporter of fish or wildlife described in subsection (c) without procuring- "(i) permission under section 9(d)(1) of the Endangered 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 successor regulations); and"(2) notwithstanding paragraph (1), unless the person 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 exporter 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 jurisdiction; 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 Regulations (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 harvested 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 Commission."(2) PRIVACY.-Such data thereafter shall not be released and shall be maintained as confidential by such applicable Marine Fisheries Commission, including 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 management 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 research 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 subsection (c)."

HUMAN ACTIVITIES WITHIN PROXIMITY OF WHALES Pub. L. 103-238, §17, Apr. 30, 1994, 108 Stat. 559, provided 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 aircraft, no closer than 100 yards to a humpback whale, regardless of whether the approach is made in waters designated under section 222.31 of title 50, Code of Federal Regulations, as cow/calf waters. "(b) TERMINATION OF LEGAL EFFECT OF CERTAIN REGULATIONS.-Subsection (b) of section 222.31 of title 50, Code of Federal Regulations, shall cease to be in force and effect."

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.