16 U.S.C. § 1539 : US Code - Section 1539: Exceptions

Search 16 U.S.C. § 1539 : US Code - Section 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 affected species, including, but not limited to, acts
      necessary for the establishment and maintenance of experimental
      populations pursuant to subsection (j) of this section; or
        (B) any taking otherwise prohibited by section 1538(a)(1)(B) of
      this title if such taking is incidental to, and not the purpose
      of, the carrying out of an otherwise lawful activity.

      (2)(A) No permit may be issued by the Secretary 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 application and the related conservation
    plan that - 
        (i) the taking will be incidental;
        (ii) the applicant will, to the maximum extent 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 subparagraph (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, including, but not limited to, such reporting
    requirements as the Secretary deems necessary for determining
    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 permittee is not complying with the
    terms and conditions 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 species as an endangered species and the subsequent 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 person from the application of section 1538(a) of
    this title to the extent the Secretary deems appropriate 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 quantity of fish or wildlife or
    plants in excess of that specified by the Secretary; (B) the one-
    year period 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 importation or
    exportation of a specimen listed in Appendix 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 publication
      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 consideration of such species as an
      endangered species, derived a substantial portion of their income
      from the lawful taking of any listed species, 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 subsistence; and (ii) dependent to a substantial
      extent upon hunting and fishing for subsistence; and (iii) who
      must engage in such curtailed taking for subsistence purposes.

      (3) The Secretary may make further requirements 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 applicability.
    (c) Notice and review
      The Secretary shall publish notice in the Federal Register of
    each application for an exemption or permit which is made under
    this section. Each notice shall invite the submission from
    interested parties, within thirty days after the date of the
    notice, of written data, views, or arguments with respect to the
    application; except that such thirty-day period may be waived by
    the Secretary in an emergency situation where the health or life of
    an endangered animal is threatened and no reasonable alternative is
    available to the applicant, but notice of any such waiver shall be
    published by the Secretary in the Federal Register within ten days
    following the issuance of the exemption or permit. Information
    received by the Secretary as a part of any application shall be
    available to the public as a matter of public record at every stage
    of the proceeding.
    (d) Permit and exemption policy
      The Secretary may grant exceptions under subsections (a)(1)(A)
    and (b) of this section only if he finds and publishes his finding
    in the Federal Register that (1) such exceptions were applied for
    in good faith, (2) if granted and exercised will not operate to the
    disadvantage of such endangered species, and (3) will be consistent
    with the purposes and policy set forth in section 1531 of this
    title.
    (e) Alaska natives
      (1) Except as provided in paragraph (4) of this subsection the
    provisions of this chapter shall not apply with respect to the
    taking of any endangered species or threatened species, or the
    importation of any such species taken pursuant to this section, by -
     
        (A) any Indian, Aleut, or Eskimo who is an Alaskan Native who
      resides in Alaska; or
        (B) any non-native permanent resident of an Alaskan native
      village;

    if such taking is primarily for subsistence purposes. Non-edible
    byproducts of species taken pursuant to this section may be sold in
    interstate commerce when made into authentic native articles of
    handicrafts and clothing; except that the provisions of this
    subsection shall not apply to any non-native resident of an Alaskan
    native village found by the Secretary to be not primarily dependent
    upon the taking of fish and wildlife for consumption or for the
    creation and sale of authentic native articles of handicrafts and
    clothing.
      (2) Any taking under this subsection may not be accomplished in a
    wasteful manner.
      (3) As used in this subsection - 
        (i) The term "subsistence" includes selling any edible portion
      of fish or wildlife in native villages and towns in Alaska for
      native consumption within native villages or towns; and
        (ii) The term "authentic native articles of handicrafts and
      clothing" means items composed wholly or in some significant
      respect of natural materials, and which are produced, decorated,
      or fashioned in the exercise of traditional native handicrafts
      without the use of pantographs, multiple carvers, or other mass
      copying devices. Traditional native handicrafts include, but are
      not limited to, weaving, carving, stitching, sewing, lacing,
      beading, drawing, and painting.

      (4) Notwithstanding the provisions of paragraph (1) of this
    subsection, whenever the Secretary determines that any species of
    fish or wildlife which is subject to taking under the provisions of
    this subsection is an endangered species or threatened species, and
    that such taking materially and negatively affects the threatened
    or endangered species, he may prescribe regulations upon the taking
    of such species by any such Indian, Aleut, Eskimo, or non-Native
    Alaskan resident of an Alaskan native village. Such regulations may
    be established with reference to species, geographical description
    of the area included, the season for taking, or any other factors
    related to the reason for establishing such regulations and
    consistent with the policy of this chapter. Such regulations shall
    be prescribed after a notice and hearings in the affected judicial
    districts of Alaska and as otherwise required by section 1373 of
    this title, and shall be removed as soon as the Secretary
    determines that the need for their impositions has disappeared.
    (f) Pre-Act endangered species parts exemption; application and
      certification; regulation; validity of sales contract;
      separability; renewal of exemption; expiration of renewal
      certification
      (1) As used in this subsection - 
        (A) The term "pre-Act endangered species part" means - 
          (i) any sperm whale oil, including derivatives thereof, which
        was lawfully held within the United States on December 28,
        1973, in the course of a commercial activity; or
          (ii) any finished scrimshaw product, if such product or the
        raw material for such product was lawfully held within the
        United States on December 28, 1973, in the course of a
        commercial activity.

        (B) The term "scrimshaw product" means any art form which
      involves the substantial etching or engraving of designs upon, or
      the substantial carving of figures, patterns, or designs from,
      any bone or tooth of any marine mammal of the order Cetacea. For
      purposes of this subsection, polishing or the adding of minor
      superficial markings does not constitute substantial etching,
      engraving, or carving.

      (2) The Secretary, pursuant to the provisions of this subsection,
    may exempt, if such exemption is not in violation of the
    Convention, any pre-Act endangered species part from one or more of
    the following prohibitions:
        (A) The prohibition on exportation from the United States set
      forth in section 1538(a)(1)(A) of this title.
        (B) Any prohibition set forth in section 1538(a)(1)(E) or (F)
      of this title.

      (3) Any person seeking an exemption described in paragraph (2) of
    this subsection shall make application therefor to the Secretary in
    such form and manner as he shall prescribe, but no such application
    may be considered by the Secretary unless the application - 
        (A) is received by the Secretary before the close of the one-
      year period beginning on the date on which regulations
      promulgated by the Secretary to carry out this subsection first
      take effect;
        (B) contains a complete and detailed inventory of all pre-Act
      endangered species parts for which the applicant seeks exemption;
        (C) is accompanied by such documentation as the Secretary may
      require to prove that any endangered species part or product
      claimed by the applicant to be a pre-Act endangered species part
      is in fact such a part; and
        (D) contains such other information as the Secretary deems
      necessary and appropriate to carry out the purposes of this
      subsection.

      (4) If the Secretary approves any application for exemption made
    under this subsection, he shall issue to the applicant a
    certificate of exemption which shall specify - 
        (A) any prohibition in section 1538(a) of this title which is
      exempted;
        (B) the pre-Act endangered species parts to which the exemption
      applies;
        (C) the period of time during which the exemption is in effect,
      but no exemption made under this subsection shall have force and
      effect after the close of the three-year period beginning on the
      date of issuance of the certificate unless such exemption is
      renewed under paragraph (8); and
        (D) any term or condition prescribed pursuant to paragraph
      (5)(A) or (B), or both, which the Secretary deems necessary or
      appropriate.

      (5) The Secretary shall prescribe such regulations as he deems
    necessary and appropriate to carry out the purposes of this
    subsection. Such regulations may set forth - 
        (A) terms and conditions which may be imposed on applicants for
      exemptions under this subsection (including, but not limited to,
      requirements that applicants register inventories, keep complete
      sales records, permit duly authorized agents of the Secretary to
      inspect such inventories and records, and periodically file
      appropriate reports with the Secretary); and
        (B) terms and conditions which may be imposed on any subsequent
      purchaser of any pre-Act endangered species part covered by an
      exemption granted under this subsection;

    to insure that any such part so exempted is adequately accounted
    for and not disposed of contrary to the provisions of this chapter.
    No regulation prescribed by the Secretary to carry out the purposes
    of this subsection shall be subject to section 1533(f)(2)(A)(i) of
    this title.
      (6)(A) Any contract for the sale of pre-Act endangered species
    parts which is entered into by the Administrator of General
    Services prior to the effective date of this subsection and
    pursuant to the notice published in the Federal Register on January
    9, 1973, shall not be rendered invalid by virtue of the fact that
    fulfillment of such contract may be prohibited under section
    1538(a)(1)(F) of this title.
      (B) In the event that this paragraph is held invalid, the
    validity of the remainder of this chapter, including the remainder
    of this subsection, shall not be affected.
      (7) Nothing in this subsection shall be construed to - 
        (A) exonerate any person from any act committed in violation of
      paragraphs (1)(A), (1)(E), or (1)(F) of section 1538(a) of this
      title prior to July 12, 1976; or
        (B) immunize any person from prosecution for any such act.

      (8)(A)(i) (!2) Any valid certificate of exemption which was
    renewed after October 13, 1982, and was in effect on March 31,
    1988, shall be deemed to be renewed for a six-month period
    beginning on October 7, 1988. Any person holding such a certificate
    may apply to the Secretary for one additional renewal of such
    certificate for a period not to exceed 5 years beginning on October
    7, 1988.

      (B) If the Secretary approves any application for renewal of an
    exemption under this paragraph, he shall issue to the applicant a
    certificate of renewal of such exemption which shall provide that
    all terms, conditions, prohibitions, and other regulations made
    applicable by the previous certificate shall remain in effect
    during the period of the renewal.
      (C) No exemption or renewal of such exemption made under this
    subsection shall have force and effect after the expiration date of
    the certificate of renewal of such exemption issued under this
    paragraph.
      (D) No person may, after January 31, 1984, sell or offer for sale
    in interstate or foreign commerce, any pre-Act finished scrimshaw
    product unless such person holds a valid certificate of exemption
    issued by the Secretary under this subsection, and unless such
    product or the raw material for such product was held by such
    person on October 13, 1982.
    (g) Burden of proof
      In connection with any action alleging a violation of section
    1538 of this title, any person claiming the benefit of any
    exemption or permit under this chapter shall have the burden of
    proving that the exemption or permit is applicable, has been
    granted, and was valid and in force at the time of the alleged
    violation.
    (h) Certain antique articles; importation; port designation;
      application for return of articles
      (1) Sections 1533(d) and 1538(a) and (c) of this title do not
    apply to any article which - 
        (A) is not less than 100 years of age;
        (B) is composed in whole or in part of any endangered species
      or threatened species listed under section 1533 of this title;
        (C) has not been repaired or modified with any part of any such
      species on or after December 28, 1973; and
        (D) is entered at a port designated under paragraph (3).

      (2) Any person who wishes to import an article under the
    exception provided by this subsection shall submit to the customs
    officer concerned at the time of entry of the article such
    documentation as the Secretary of the Treasury, after consultation
    with the Secretary of the Interior, shall by regulation require as
    being necessary to establish that the article meets the
    requirements set forth in paragraph (1)(A), (B), and (C).
      (3) The Secretary of the Treasury, after consultation with the
    Secretary of the Interior, shall designate one port within each
    customs region at which articles described in paragraph (1)(A),
    (B), and (C) must be entered into the customs territory of the
    United States.
      (4) Any person who imported, after December 27, 1973, and on or
    before November 10, 1978, any article described in paragraph (1)
    which - 
        (A) was not repaired or modified after the date of importation
      with any part of any endangered species or threatened species
      listed under section 1533 of this title;
        (B) was forfeited to the United States before November 10,
      1978, or is subject to forfeiture to the United States on such
      date of enactment, pursuant to the assessment of a civil penalty
      under section 1540 of this title; and
        (C) is in the custody of the United States on November 10,
      1978;

    may, before the close of the one-year period beginning on November
    10, 1978, make application to the Secretary for return of the
    article. Application shall be made in such form and manner, and
    contain such documentation, as the Secretary prescribes. If on the
    basis of any such application which is timely filed, the Secretary
    is satisfied that the requirements of this paragraph are met with
    respect to the article concerned, the Secretary shall return the
    article to the applicant and the importation of such article shall,
    on and after the date of return, be deemed to be a lawful
    importation under this chapter.
    (i) Noncommercial transshipments
      Any importation into the United States of fish or wildlife shall,
    if - 
        (1) such fish or wildlife was lawfully taken and exported from
      the country of origin and country of reexport, if any;
        (2) such fish or wildlife is in transit or transshipment
      through any place subject to the jurisdiction of the United
      States en route to a country where such fish or wildlife may be
      lawfully imported and received;
        (3) the exporter or owner of such fish or wildlife gave
      explicit instructions not to ship such fish or wildlife through
      any place subject to the jurisdiction of the United States, or
      did all that could have reasonably been done to prevent
      transshipment, and the circumstances leading to the transshipment
      were beyond the exporter's or owner's control;
        (4) the applicable requirements of the Convention have been
      satisfied; and
        (5) such importation is not made in the course of a commercial
      activity,

    be an importation not in violation of any provision of this chapter
    or any regulation issued pursuant to this chapter while such fish
    or wildlife remains in the control of the United States Customs
    Service.
    (j) Experimental populations
      (1) For purposes of this subsection, the term "experimental
    population" means any population (including any offspring arising
    solely therefrom) authorized by the Secretary for release under
    paragraph (2), but only when, and at such times as, the population
    is wholly separate geographically from nonexperimental populations
    of the same species.
      (2)(A) The Secretary may authorize the release (and the related
    transportation) of any population (including eggs, propagules, or
    individuals) of an endangered species or a threatened species
    outside the current range of such species if the Secretary
    determines that such release will further the conservation of such
    species.
      (B) Before authorizing the release of any population under
    subparagraph (A), the Secretary shall by regulation identify the
    population and determine, on the basis of the best available
    information, whether or not such population is essential to the
    continued existence of an endangered species or a threatened
    species.
      (C) For the purposes of this chapter, each member of an
    experimental population shall be treated as a threatened species;
    except that - 
        (i) solely for purposes of section 1536 of this title (other
      than subsection (a)(1) thereof), an experimental population
      determined under subparagraph (B) to be not essential to the
      continued existence of a species shall be treated, except when it
      occurs in an area within the National Wildlife Refuge System or
      the National Park System, as a species proposed to be listed
      under section 1533 of this title; and
        (ii) critical habitat shall not be designated under this
      chapter for any experimental population determined under
      subparagraph (B) to be not essential to the continued existence
      of a species.

      (3) The Secretary, with respect to populations of endangered
    species or threatened species that the Secretary authorized, before
    October 13, 1982, for release in geographical areas separate from
    the other populations of such species, shall determine by
    regulation which of such populations are an experimental population
    for the purposes of this subsection and whether or not each is
    essential to the continued existence of an endangered species or a
    threatened species.