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CITE

    16 USC Sec. 1538                                            01/05/2009

EXPCITE

    TITLE 16 - CONSERVATION
    CHAPTER 35 - ENDANGERED SPECIES

HEAD

    Sec. 1538. Prohibited acts

STATUTE

    (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.
    (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.

SOURCE

    (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.

FOOTNOTE

    (!1) See References in Text note below.
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