§ 2404. — Permits.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 16USC2404]
TITLE 16--CONSERVATION
CHAPTER 44--ANTARCTIC CONSERVATION
Sec. 2404. Permits
(a) In general
The Director may issue permits which authorize 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 parties, within 30 days
after the date of publication of the notice, of written data, comments,
or views with respect to the application. Information 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;
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\1\ See References in Text note below.
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(B) any native mammal, native bird, or native plant which is an
endangered species or threatened species under the Endangered
Species 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 application to the Secretary of
Commerce or to the Secretary of the Interior, as appropriate
(hereinafter 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 appropriate Secretary shall promptly determine,
and notify the Director, whether or not any action proposed in the
application also requires a permit or other authorization under any law
administered by the appropriate Secretary.
(3) If the appropriate Secretary notifies the Director that any
action proposed in the application 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 authorization 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 mammal, native bird, or native plant shall not be deemed to
entitle the applicant concerned to the issuance by the Director of a
permit under this section.
(d) Issuance of permits
As soon as practicable after receiving any application for a permit
under this section, or, in the case of any application to which
subsection (c) of this section applies, as soon as practicable after the
applicable 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
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\2\ So in original. Two subsecs. (e) have been enacted.
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(1) Each permit issued under this section shall--
(A) if applicable, specify--
(i) the number and species of native mammals, 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 permit 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 harmful interference
within Antarctica of any native mammal or native bird (other than a
Specially Protected Species of any such mammal or bird)--
(i) may be issued only for the purpose of providing--
(I) specimens for scientific study or scientific
information, or
(II) specimens for museums, zoological gardens, or other
educational or cultural institutions or uses, or
(III) for unavoidable consequences of scientific
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 normally be replaced by net natural
reproduction in the following breeding season, and
(II) the variety of species and the balance of the
natural ecological systems within Antarctica are maintained.
(B) Permits authorizing the taking of Specially 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 natural 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 approved 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) \3\ Judicial review
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\3\ So in original. Two subsecs. (e) have been enacted.
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Any applicant for a permit may obtain judicial 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 denied.
(f) Modification, suspension, and revocation
(1) The Director may modify, suspend, or revoke, 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
prescribed 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 permit, any regulation prescribed under
this chapter, or any provision of this chapter.
(2) Whenever the Director proposes any modification, suspension, or
revocation of a permit under this subsection, the permittee shall be
afforded opportunity, after due notice, for a hearing by the Director
with respect to such proposed modification, suspension, or revocation.
If a hearing is requested, the action proposed by the Director shall not
take effect before a decision 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) of this section.
(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 section. The amount of such fees
shall be commensurate with the administrative costs incurred by the
Director in undertaking such processing.
(Pub. L. 95-541, Sec. 5, Oct. 28, 1978, 92 Stat. 2050; Pub. L. 104-227,
title I, Sec. 105, Oct. 2, 1996, 110 Stat. 3040.)
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, Sec. 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, as amended, which is classified generally to chapter 35
(Sec. 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, as
amended, which is classified generally to subchapter II (Sec. 703 et
seq.) of chapter 7 of this title. For complete classification of this
Act to the Code, see section 710 of this title and Tables.
Amendments
1996--Subsec. (a). Pub. L. 104-227, Sec. 105(1), substituted
``section 2403(b)'' for ``section 2403(a)''.
Subsec. (c)(1)(B). Pub. L. 104-227, Sec. 105(2), substituted
``Species'' for ``Special''.
Subsec. (e)(1)(A). Pub. L. 104-227, Sec. 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 follows:
``(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 collected;''.
Subsec. (e)(2)(A). Pub. L. 104-227, Sec. 105(3)(C)-(G), in subsec.
(e) relating to terms and conditions of permits substituted ``or harmful
interference within Antarctica'' for ``within Antarctica (other than
within any specially protected area)'' and ``Specially Protected
Species'' for ``specially protected species'' in introductory
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, Sec. 105(3)(D), in subsec. (e)
relating to terms and conditions of permits substituted ``Specially
Protected Species'' for ``specially protected species'' in introductory
provisions.
Subsec. (e)(2)(C), (D). Pub. L. 104-227, Sec. 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 vehicle
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.''
Section Referred to in Other Sections
This section is referred to in section 2403a of this title.
