What activities are prohibited for endangered species?
An endangered species is in danger of extinction throughout all or a significant portion of its range. Section 9(a)(1) of the Endangered Species Act (ESA) provides a specific list of prohibitions for endangered animals. It is illegal (without permit or authorization), for any person subject to the jurisdiction of the United States to commit, to attempt to commit, to solicit another to commit, or to cause to be committed, any of the following acts with regard to any endangered wildlife:
- Import any such species into, or export any such species from, the United States;
- Take (harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct – ESA section 3(19)) any such species within the United States or the territorial sea of the United States;
- Take any such species on the high seas;
- Possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any such species taken in violation of the ESA;
- 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;
- Sell or offer for sale in interstate or foreign commerce any such species.
- Violate any regulation pertaining to such species or to any threatened species of fish or wildlife promulgated under the ESA
Section 9(a)(2) of the ESA provides a specific list of prohibitions for endangered plants. It is illegal (without permit or authorization), for any person subject to the jurisdiction of the United States to commit, to attempt to commit, to solicit another to commit, or to cause to be committed, any of the following acts with regard to any endangered plant:
- Import any such species into, or export any such species from, the United States;
- 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;
- 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;
- Sell or offer for sale in interstate or foreign commerce any such species.
- Violate any regulation pertaining to such species or to any threatened species of plants promulgated under the ESA
Note:
- Possession of a specimen is not itself a violation as long as there is not an unauthorized otherwise-prohibited activity, such as take.
- The definition of “harass” in 50 CFR 17.3, when applied to captive wildlife, does not include the following practices, procedures, and provisions if they are “generally accepted” and “not likely to result in injury to the wildlife” at issue: animal husbandry practices that meet or exceed the minimum standards for facilities and care under the Animal Welfare Act; breeding procedures; or provisions of veterinary care for confining, tranquilizing, or anesthetizing.
- The prohibition against harm and kill, on the other hand, applies equally to captive wildlife as non-captive wildlife, except for qualifying acts with pre-ESA wildlife of threatened species.
Certain exceptions to these prohibitions apply to employees or agents of the U.S. Fish and Wildlife Service (Service), the National Marine Fisheries Service (NMFS), other Federal land management agencies, and State conservation agencies. For example, 50 CFR 17.21(c)(3) provides that any employee or agent of the Service, any other Federal land management agency, the NMFS, or a State conservation agency, who is designated by their agency for such purposes, may, when acting in the course of their official duties, take endangered wildlife without a permit if such action is necessary to: (i) Aid a sick, injured, or orphaned specimen; or (ii) Dispose of a dead specimen; or (iii) Salvage a dead specimen that may be useful for scientific study; or (iv) Remove specimens that constitute a demonstrable but nonimmediate threat to human safety, provided that the taking is done in a humane manner; the taking may involve killing or injuring only if it has not been reasonably possible to eliminate such threat by live-capturing and releasing the specimen unharmed in an appropriate area.
In addition, we may issue permits to carry out otherwise prohibited activities involving endangered wildlife and plants under certain circumstances. SeeWhat kind of activities can permits authorize.
The statute also contains certain exemptions from the prohibitions, which are found in sections 9 and 10 of the ESA. SeeWhat situations are exempt from the prohibitions of the ESA.
List of endangered and threatened wildlife under Service jurisdiction
List of endangered and threatened plants under Service jurisdiction
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What activities are prohibited for threatened species?
A threatened species is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. While section 9 of the ESA provides the above prohibitions for endangered species, it does not automatically provide these same prohibitions for threatened species. Instead, the Secretary of the Interior (delegated to the Service) shall issue protective regulations for threatened species under section 4(d) of the ESA that are “necessary and advisable to provide for the conservation of such species” and also may prohibit with respect to any threatened species any act prohibited under section 9 for an endangered species (these are referred to as “4(d) rules”). 4(d) rules explain what is unlawful for a threatened species in the absence of a permit or authorization under the ESA. Section 4(d) rules are therefore directly related to what actions may require permits for threatened species.
Our regulations regarding threatened wildlife can be found at 50 CFR 17.31 and 50 CFR 17.41-17.48
Our regulations regarding threatened plants can be found at 50 CFR 17.61 and 50 CFR 17.73-17.78
Note: Unlisted species treated as endangered or threatened species under ESA section 4(e) based on their similarity of appearance to listed species, as well as experimental populations treated as threatened species under ESA section 10(j), also have regulations outlining prohibitions and exceptions for the 4(e) or 10(j) species.
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What kinds of activities can permits authorize?
The activities authorized by permits differ depending on whether the species is listed as an endangered species or a threatened species under the ESA. Regulations governing permits for endangered wildlife are codified at 50 CFR 17.22, for endangered plants are codified at 50 CFR 17.62, and general Service permitting regulations are codified at 50 CFR part 13. With regard to endangered species, a permit may be issued: for scientific purposes, for enhancing the propagation or survival of the species, or for take of endangered wildlife incidental to otherwise lawful activities.
Regulations governing permits for threatened wildlife are codified at 50 CFR 17.32 and for threatened plants at 50 CFR 17.72. For threatened species, permits may be issued for the same purposes as for endangered species, and also may be issued for zoological, horticultural, or botanical exhibition; educational use; and special purposes consistent with the ESA.
The Service may also register persons through its captive-bred wildlife (CBW) program if certain established requirements are met under the CBW regulations (see 50 CFR 17.21(g)). Through a CBW registration, the Service may allow a registrant to conduct certain otherwise prohibited activities associated with conservation breeding under certain circumstances to enhance the propagation or survival of the affected species, including take; export or re-import; delivery, receipt, carriage, transport, or shipment in interstate or foreign commerce during a commercial activity; or sale or offer for sale in interstate or foreign commerce. A CBW registration may authorize interstate purchase and sale only between entities that both hold a registration for the species concerned. The CBW program is available for species having a natural geographic distribution not including any part of the United States and other species that the Service Director has determined to be eligible by regulation. The individual specimens must have been bred in captivity in the United States. A separate ESA permit is needed to import such species taken from the wild or captive-bred outside the United States. Captive-bred wildlife permits are not issued to keep or breed endangered or threatened animals as pets. Keeping protected species as pets is not consistent with the purposes of the ESA, which is aimed at conservation of the species and recovery of wild populations.
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What situations are exempt from the prohibitions of the ESA?
Certain Activities with Qualifying Pre-ESA Wildlife
Section 9(b)(1) of the ESA provides that specimens of ESA-listed wildlife species held in captivity or in a controlled environment on (a) December 28, 1973, or (b) the Federal Register publication date of the species’ final listing rule, whichever is later, are exempt from the ESA prohibitions against import into or export from the United States or violation of any ESA endangered or threatened wildlife regulation (see 50 CFR part 17 for FWS-administered wildlife species), provided such holding and any subsequent holding or use of the specimen was not in the course of a commercial activity.
Therefore, for pre-Act wildlife, there is a limited exemption from the prohibitions associated with: (1) import into, or export from the United States of any endangered wildlife, or (2) violation of regulations pertaining to threatened or endangered wildlife. Other prohibitions of section 9—including those at section 9(a)(1)(B)-(F), regarding take of endangered wildlife, possession and other acts with unlawfully taken wildlife, interstate or foreign commerce in endangered wildlife, and sale or offer for sale of endangered wildlife—continue to apply to activities with qualifying endangered pre-Act wildlife specimens. For threatened species, prohibitions are promulgated by regulation under section 4(d) of the Act, and a specimen may qualify for the exemption in 9(a)(1)(G) with regard to regulatory violations. For those specimens that continue to qualify under the “pre-Act” exemption, 4(d) rule protections do not apply. Key Points:
- The section 9(b)(1) exemption does not apply to:
- Any wildlife held or used in the course of a commercial activity on or after the pre-Act date for the species;
- Progeny (offspring) born after the pre-ESA date; or
- Specimens taken from the wild after the pre-ESA date.
- Prohibitions related to interstate or foreign commerce in the course of a commercial activity, sale, or offer for sale are all necessarily in the course of a commercial activity, so those activities would never qualify for the 9(b)(1) exemption and the specimen would cease to qualify.
- The ESA and our regulations provide that "commercial activity" is all activities of actual or intended transfer of fish or wildlife from one person to another person in the pursuit of gain or profit, including, but not limited to, the buying or selling of commodities and activities conducted for the purpose of facilitating such buying and selling. The ESA also provides, however, that its definition of “commercial activity” does not include the exhibition of commodities by museums or similar cultural or historical organizations
An affidavit and supporting material documenting pre-ESA status must accompany the shipment of listed species. The pre-ESA exemption does not apply to wildlife, including parts and products, offered for sale, or held or used in the course of any other commercial activity on or after the pre-Act date for the species. In addition, any endangered or threatened specimens born in captivity from pre-ESA parents are fully protected and are not considered pre-ESA.
Antiques
To qualify for the ESA antiques exemption, items must meet all of the following criteria [seller/importer/exporter must demonstrate]:
A. It is 100 years or older
B. It is composed in whole or in part of an ESA-listed species
C. It has not been repaired or modified with any such species after December 27, 1973
D. It is being or was imported through an endangered species “antique port” (see information below about U.S. Customs and Border Protection designated ports)
Items imported prior to September 22, 1982, and items created in the United States and never imported must comply with elements A, B, and C above, but not element D.
Forensic testing is not necessarily required to demonstrate an item is an antique. Provenance and age may be determined through a detailed history of the item, including but not limited to, family photos, ethnographic fieldwork, art history publications, or other information that authenticates the article and assigns the work to a known period of time or, where possible, to a known artist or craftsman. A qualified appraisal or another method, including using information in catalogs, price lists, and other similar materials that document the age by establishing the origin of the item, can also be used. View Director’s Order No. 210 for guidance on demonstrating an item qualifies as an ESA antique and for more information on documentation requirements.
ESA antiques may be sold in interstate and foreign commerce and may be imported or exported without the need for an ESA permit; however, CITES and other import/export permit requirements must still be met. Submit form 3-200-23 to apply for a CITES permit to export or re-export an ESA antique.
U.S. Customs and Border Protection designated ports for the entry of antiques made of ESA-listed species include: Boston, Massachusetts; New York, New York; Baltimore, Maryland; Philadelphia, Pennsylvania; Miami, Florida; San Juan, Puerto Rico; New Orleans, Louisiana; Houston, Texas; Los Angeles, California; San Francisco, California; Anchorage, Alaska; Honolulu, Hawaii; and Chicago, Illinois.
Intrastate Commerce
Commercial activities that take place entirely in one state and involve legally acquired endangered or threatened species are not prohibited by ESA Section 9(a). As noted above, any commercial activity with pre-Act wildlife on or after the pre-Act date for the species results in the wildlife ceasing to qualify for the limited exemption under Section 9(b)(1). However, many states have their own laws that regulate activities involving protected species. Contact the appropriate state agency before undertaking activities involving endangered or threatened wildlife and plants.
Interstate Offer for Sale
Endangered and threatened species may be advertised for sale in interstate or foreign commerce provided the advertisement states that no sale may be consummated until an interstate or foreign commerce permit has been obtained from the Service. Similarly, endangered and threatened species may not be moved in interstate or foreign commerce with intent to sell or offer for sale (e.g., sales demonstration, try-before-you-buy loan) until an interstate or foreign commerce permit has been obtained from the Service.
Raptors
Pursuant to the exemption provided under ESA section 9(b)(2), prohibitions under ESA section 9(a)(1) do not apply to any endangered or threatened raptor legally held in captivity since November 10, 1978, or to any of its progeny, provided that recordkeeping requirements of section 9(b)(2)(B) are met in accordance with 50 CFR 17.7, including that they are possessed and banded under the terms of a Migratory Bird Treaty Act (MBTA) permit and are identified in the earliest annual report required by permit. The bald and golden eagle are protected by the MBTA and the Bald and Golden Eagle Protection Act (BGEPA).
Seeds from Artificially Propagated Threatened Plants
No permits are required for otherwise prohibited activities involving seeds from artificially propagated specimens of threatened plants. However, qualifying seeds must be accompanied by a label stating that they are of cultivated origin (50 CFR 17.71(a)). Note: permits (50 CFR 17.62) are required for the same activities for endangered plants.
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What other offices issue permits for endangered or threatened species?
The Service's International Affairs Program issues permits for foreign endangered and threatened species, and for import/export of native and foreign species. It is also responsible for issuing captive-bred wildlife registrations.
The NMFS has jurisdiction for whales, seals, and sea lions. NMFS also has jurisdiction for sea turtles in the water; the Service has jurisdiction on land. Jurisdiction varies between NMFS and the Service for anadromous fish such as salmon, trout, steelhead, and sturgeon. The Service has jurisdiction for listed marine mammals such as the West Indian manatee and southern sea otter, as well as all sea birds. View the list of endangered and threatened marine species under the jurisdiction of NMFS.
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What other laws apply?
Depending on the species involved, other requirements may need to be met under CITES, the MBTA, the BGEPA, the Wild Bird Conservation Act, the Marine Mammal Protection Act, the Lacey Act, other Federal law, and foreign, Tribal, State or local laws.
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