16 U.S.C. § 1539 — Exceptions

(a) Permits. (1) The Secretary may permit otherwise prohibited acts involving endangered fish, wildlife, or plants for scientific purposes or to enhance propagation or survival. (2) The Secretary may permit taking of endangered or threatened species incidental to an otherwise lawful activity if the applicant submits a conservation plan describing the impact, steps to minimize and mitigate it, funding, alternatives, and other measures the Secretary requires. (3) The Secretary must publish notice of each application and may require public comment. (4) The Secretary may issue a permit only after finding that the permitted activity will not appreciably reduce the species’ survival or recovery in the wild and that required measures will be met; the permit must contain needed terms, conditions, and reports. (5) The Secretary must revoke a permit if its holder does not comply with its terms. (b) Hardship exemptions. (1) If a person made a contract about fish, wildlife, or plants before notice that the species was being considered for endangered listing, and the later listing would cause undue economic hardship, the Secretary may exempt the person from section 1538(a) as appropriate upon application and proof. The exemption may last no more than one year from the notice, may cover no more quantity than the Secretary specifies, follows section 668cc-3 for species listed before December 28, 1973, and cannot cover commercial import or export of an Appendix I specimen. (2) “Undue economic hardship” includes (A) substantial loss from being unable to perform an earlier contract; (B) substantial loss to someone who got a substantial part of income from lawful taking during the prior year when that taking becomes unlawful; or (C) reduced subsistence taking by people who cannot reasonably obtain another source, substantially depend on hunting or fishing, and must take the species for subsistence. (3) The Secretary may require more proof and may limit an exception by time, area, or another applicability factor. (c) Notice and review. The Secretary must publish notice of every application for an exemption or permit and invite written data, views, or arguments within 30 days. In an emergency threatening an endangered animal’s health or life when no reasonable alternative exists, the Secretary may waive that period but must publish notice of the waiver within 10 days after issuing the exemption or permit. Application information is public at every stage. (d) Policy. The Secretary may grant exceptions under (a)(1)(A) and (b) only after finding and publishing that the application was made in good faith, the exception will not disadvantage the endangered species, and it is consistent with section 1531. (e) Alaska Natives. (1) Except paragraph (4), this chapter does not apply to subsistence taking, or importing species taken under this section, by (A) an Alaska-residing Indian, Aleut, or Eskimo who is an Alaska Native, or (B) a non-Native permanent resident of an Alaska Native village. Non-edible byproducts may be sold in interstate commerce when made into authentic Native handicrafts or clothing, but this does not apply to a non-Native village resident whom the Secretary finds is not mainly dependent on taking fish and wildlife for food or making and selling such articles. (2) Taking may not be wasteful. (3) “Subsistence” includes selling edible fish or wildlife portions in Alaska Native villages and towns for Native consumption there. “Authentic native articles of handicrafts and clothing” means items made wholly or partly in a significant way from natural materials and produced, decorated, or fashioned through traditional Native handicrafts without pantographs, multiple carvers, or other mass-copying devices. Traditional handicrafts include weaving, carving, stitching, sewing, lacing, beading, drawing, and painting. (4) If the Secretary finds that covered taking of a fish or wildlife species that is endangered or threatened materially and negatively affects it, the Secretary may regulate that taking by the listed Alaska Native or village resident. Regulations may address species, geographic area, season, or other relevant factors and must be consistent with this chapter. They require notice and hearings in affected Alaska judicial districts and the process required by section 1373, and must be removed when the need ends. (f) Pre-Act parts. (1) A “pre-Act endangered species part” is (A)(i) lawfully held United States sperm-whale oil, including derivatives, on December 28, 1973, in commercial activity, or (ii) a finished scrimshaw product whose product or raw material was so held; and (B) a “scrimshaw product” is art made by substantial etching or engraving on, or substantial carving of figures, patterns, or designs from, a Cetacean marine mammal bone or tooth. Polishing and minor superficial marks are not substantial work. (2) If consistent with the Convention, the Secretary may exempt such parts from (A) the section 1538(a)(1)(A) export ban and (B) section 1538(a)(1)(E) or (F) prohibitions. (3) An applicant must apply as prescribed, within one year after the implementing regulations first take effect, with a complete inventory, required proof that each claimed item qualifies, and other needed information. (4) An approved certificate must identify the exempted prohibition, covered parts, period, and required terms or conditions. It expires after three years unless renewed under paragraph (8). (5) The Secretary must issue needed regulations. They may impose on applicants inventory registration, complete sales records, inspections, and reports, and may impose conditions on later purchasers so exempted parts are accounted for and not disposed of contrary to this chapter. These regulations are not subject to section 1533(f)(2)(A)(i). (6) A specified pre-effective-date General Services Administration sales contract is not invalid merely because fulfillment may violate section 1538(a)(1)(F). If this paragraph is invalid, the rest of the chapter and subsection remain unaffected. (7) This subsection does not excuse or immunize prosecution for violations of section 1538(a)(1)(A), (E), or (F) committed before July 12, 1976. (8) A valid certificate renewed after October 13, 1982, and effective March 31, 1988, is deemed renewed for six months beginning October 7, 1988. Its holder may seek one additional renewal of up to five years from that date. An approved renewal keeps the earlier terms, conditions, prohibitions, and regulations. No exemption lasts beyond the renewal certificate’s expiration. After January 31, 1984, no one may sell or offer a pre-Act finished scrimshaw product in interstate or foreign commerce without a valid certificate and unless the product or raw material was held by that person on October 13, 1982. (g) Burden of proof. In an action alleging a section 1538 violation, anyone claiming an exemption or permit must prove that it applies, was granted, and was valid and in force when the alleged violation occurred. (h) Certain antiques. (1) Sections 1533(d) and 1538(a) and (c) do not apply to an article that is at least 100 years old, is wholly or partly made from a listed endangered or threatened species, has not been repaired or modified with such a species part on or after December 28, 1973, and enters through a paragraph (3) port. (2) The importer must give the customs officer the Treasury-required documents, set by regulation after consultation with Interior, proving the first three conditions. (3) Treasury, after consulting Interior, must designate one port in each customs region for entry of such articles. (4) A person who imported such an article after December 27, 1973, and by November 10, 1978, may apply within one year after November 10, 1978, for return if it was not later repaired or modified with a listed species part, was forfeited or subject to forfeiture through a section 1540 civil penalty, and was in United States custody on November 10, 1978. The Secretary must return it if a timely application proves these conditions, and the import is then treated as lawful from return. (i) Noncommercial transshipments. Importing fish or wildlife is not a violation while it remains in Customs custody if (1) it was lawfully taken and exported from its origin and any reexport country; (2) it is transiting the United States toward a country where it may lawfully be imported and received; (3) the owner or exporter instructed that it not be shipped through United States jurisdiction or reasonably tried to prevent that, and the transshipment was beyond their control; (4) Convention requirements are met; and (5) the import is not commercial. (j) Experimental populations. (1) “Experimental population” means a population, including offspring arising only from it, authorized for release under paragraph (2), but only while geographically wholly separate from nonexperimental populations of the same species. (2)(A) The Secretary may authorize release and related transportation of an endangered or threatened species population, including eggs, propagules, or individuals, outside its current range when release furthers conservation. (B) Before release, the Secretary must by regulation identify the population and decide from the best available information whether it is essential to the species’ continued existence. (C) Each member is treated as threatened, except that (i) for section 1536 other than (a)(1), a nonessential population is treated as a proposed listed species unless it occurs in the National Wildlife Refuge or National Park System, and (ii) no critical habitat is designated for a nonessential experimental population. (3) For populations authorized before October 13, 1982, for release separate from other populations, the Secretary must by regulation decide which are experimental and whether each is essential.