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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