§ 1539. — Exceptions.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 16USC1539]
TITLE 16--CONSERVATION
CHAPTER 35--ENDANGERED SPECIES
Sec. 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.
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\1\ See References in Text note below.
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(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
subsection. 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.
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\2\ So in original. No cl. (ii) has been enacted.
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(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.
(Pub. L. 93-205, Sec. 10, Dec. 28, 1973, 87 Stat. 896; Pub. L. 94-359,
Secs. 2, 3, July 12, 1976, 90 Stat. 911, 912; Pub. L. 95-632, Sec. 5,
Nov. 10, 1978, 92 Stat. 3760; Pub. L. 96-159, Sec. 7, Dec. 28, 1979, 93
Stat. 1230; Pub. L. 97-304, Sec. 6(1)-(4)(A), (5), (6), Oct. 13, 1982,
96 Stat. 1422-1424; Pub. L. 100-478, title I, Secs. 1011, 1013(b), (c),
Oct. 7, 1988, 102 Stat. 2314, 2315.)
References in Text
Section 668cc-3 of this title, referred to in subsec. (b), was
repealed by Pub. L. 93-205, Sec. 14, Dec. 28, 1973, 87 Stat. 903.
Subsec. (f) of section 1533 of this title, referred to in subsec.
(f)(5), which related to promulgation of regulations by the Secretary
was struck out, and subsec. (g) of section 1533 of this title, was
redesignated as subsec. (f), by Pub. L. 97-304, Sec. 2(a)(4)(B), (C),
Oct. 13, 1982, 96 Stat. 1415. For provisions relating to promulgation of
regulations, see subsecs. (b) and (h) of section 1533 of this title.
Effective date of this subsection, referred to in subsec. (f)(6)(A),
probably means the date of enactment of subsec. (f) by section 2 of Pub.
L. 94-359, July 12, 1976.
October 7, 1988, referred to in subsec. (f)(8)(A), was in the
original ``the date of enactment of the Endangered Species Act
Amendments of 1988'' and ``the date of such enactment'' which were
translated as meaning the date of enactment of title I of Pub. L. 100-
478 which is entitled ``Endangered Species Act Amendments of 1988'' and
which was approved Oct. 7, 1988.
Amendments
1988--Subsec. (c). Pub. L. 100-478, Sec. 1013(b), substituted
``notice, of'' for ``notice,'' in second sentence.
Subsec. (e)(3)(ii). Pub. L. 100-478, Sec. 1013(c), substituted
``lacing,'' for ``lacking,''.
Subsec. (f)(8)(A). Pub. L. 100-478, Sec. 1011(a), amended subpar.
(A) generally. Prior to amendment, subpar. (A) read as follows: ``Any
person to whom a certificate of exemption has been issued under
paragraph (4) of this subsection may apply to the Secretary for a
renewal of such exemption for a period not to exceed three years
beginning on the expiration date of such certificate. Such application
shall be made in the same manner as the application for exemption was
made under paragraph (3), but without regard to subparagraph (A) of such
paragraph.''
Subsec. (f)(8)(B). Pub. L. 100-478, Sec. 1011(b), substituted
``previous'' for ``original''.
Subsec. (f)(8)(D). Pub. L. 100-478, Sec. 1011(c), added subpar. (D).
Subsec. (f)(9). Pub. L. 100-478, Sec. 1011(d), struck out par. (9)
which provided for comprehensive review by Secretary of effectiveness of
regulations prescribed pursuant to subsec. (f)(5) of this section.
1982--Subsec. (a). Pub. L. 97-304, Sec. 6(1), designated as par. (1)
and the beginning phrase of subpar. (A) thereof the existing provisions
consisting of language authorizing the Secretary to permit, under such
terms and conditions as he may prescribe, any act otherwise prohibited
by section 1538 of this title for scientific purposes or to enhance the
propagation or survival of the affected species, and inserted remainder
of par. (1)(A) and pars. (1)(B) and (2).
Subsec. (d). Pub. L. 97-304, Sec. 6(2), substituted ``subsections
(a)(1)(A) and (b) of this section'' for ``subsections (a) and (b) of
this section''.
Subsec. (f)(1)(B). Pub. L. 97-304, Sec. 6(3)(A), substituted
``involves the substantial etching or engraving of designs upon, or the
substantial carving of figures'' for ``involves the etching or engraving
of designs upon, or the carving of figures'' and inserted provision
that, for purposes of this subsection, polishing or the adding of minor
superficial markings does not constitute substantial etching, engraving,
or carving.
Subsec. (f)(9). Pub. L. 97-304, Sec. 6(3)(B), added par. (9).
Subsec. (h)(1). Pub. L. 97-304, Sec. 6(4)(A), struck out ``(other
than scrimshaw)'' after ``do not apply to any article'' in provisions
preceding subpar. (A) and in subpar. (A) substituted ``is not less than
100 years of age'' for ``was made before 1830''.
Subsec. (i). Pub. L. 97-304, Sec. 6(5), substituted provisions
covering noncommercial transshipments of fish or wildlife for provisions
that had related to exemptions from the provisions of this title of the
Tellico Dam and Reservoir Project and the Grayrocks Dam and Reservoir
Project and to the operation of the Missouri Basin Power Project.
Subsec. (j). Pub. L. 97-304, Sec. 6(6), added subsec. (j).
1979--Subsec. (f)(4)(C). Pub. L. 96-159, Sec. 7(1), inserted
``unless such exemption is renewed under paragraph (8)'' after
``issuance of the certificate''.
Subsec. (f)(8). Pub. L. 96-159, Sec. 7(2), added par. (8).
1978--Subsecs. (h), (i). Pub. L. 95-632 added subsecs. (h) and (i).
1976--Subsec. (c). Pub. L. 94-359, Sec. 3, substituted ``section''
for ``subsection'' and inserted ``; 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.'' after ``every
stage of the proceeding''.
Subsecs. (f), (g). Pub. L. 94-359, Sec. 2, added subsecs. (f) and
(g).
Effective Date of 1982 Amendment
Section 6(4)(B) of Pub. L. 97-304 provided that: ``The amendment
made by subparagraph (A) [amending this section] shall take effect
January 1, 1981.''
Transfer of Functions
For transfer of functions, personnel, assets, and liabilities of the
United States Customs Service of the Department of the Treasury,
including functions of the Secretary of the Treasury relating thereto,
to the Secretary of Homeland Security, and for treatment of related
references, see sections 203(1), 551(d), 552(d), and 557 of Title 6,
Domestic Security, and the Department of Homeland Security
Reorganization Plan of November 25, 2002, as modified, set out as a note
under section 542 of Title 6.
Scrimshaw Exemptions
Pub. L. 103-238, Sec. 18, Apr. 30, 1994, 108 Stat. 559, provided
that: ``Notwithstanding any other provision of law, any valid
certificate of exemption renewed by the Secretary (or deemed to be
renewed) under section 10(f)(8) of the Endangered Species Act of 1973
(16 U.S.C. 1539(f)(8)) for any person holding such a certificate with
respect to the possession of pre-Act finished scrimshaw products or raw
material for such products shall remain valid for a period not to exceed
5 years beginning on the date of enactment of this Act [Apr. 30,
1994].''
Section Referred to in Other Sections
This section is referred to in sections 471j, 1538 of this title.
