-CITE-
16 USC Sec. 1539 01/05/99

-EXPCITE-
TITLE 16 - CONSERVATION
CHAPTER 35 - ENDANGERED SPECIES

-HEAD-
Sec. 1539. Exceptions

-STATUTE-
(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 (FOOTNOTE 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.
(FOOTNOTE 1) See References in Text note below.
(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) (FOOTNOTE 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.
(FOOTNOTE 2) So in original. No cl. (ii) has been enacted.
(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.

-SOURCE-
(Pub. L. 93-205, Sec. 10, Dec. 28, 1973, 87 Stat. 896; Pub. L.
94-359, Sec. 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, Sec. 1011, 1013(b), (c), Oct. 7, 1988, 102 Stat. 2314, 2315.)

-REFTEXT-
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.

-MISC2-
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.''
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).''

-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 471j, 1538 of this title.