§ 1538. — Prohibited acts.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 16USC1538]
TITLE 16--CONSERVATION
CHAPTER 35--ENDANGERED SPECIES
Sec. 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
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) of this section 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.
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\1\ See References in Text note below.
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(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 his section.
(Pub. L. 93-205, Sec. 9, Dec. 28, 1973, 87 Stat. 893; Pub. L. 95-632,
Sec. 4, Nov. 10, 1978, 92 Stat. 3760; Pub. L. 97-304, Sec. 9(b), Oct.
13, 1982, 96 Stat. 1426; Pub. L. 100-478, title I, Sec. 1006, title II,
Sec. 2301, Oct. 7, 1988, 102 Stat. 2308, 2321; Pub. L. 100-653, title
IX, Sec. 905, Nov. 14, 1988, 102 Stat. 3835.)
References in Text
Section 668cc-4 of this title, referred to in subsec. (f)(2), was
repealed by Pub. L. 93-205, Sec. 14, Dec. 28, 1973, 87 Stat. 903.
Amendments
1988--Subsec. (a)(2)(B). Pub. L. 100-478, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 9(b)(3), substituted ``The
provisions of subsection (a)(1) of this section 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).
Human Activities Within Proximity of Whales
Pub. L. 103-238, Sec. 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.''
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.
Section Referred to in Other Sections
This section is referred to in sections 1533, 1535, 1536, 1539, 1540
of this title.
