The Endangered Species Act(ESA)(1973)
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 7, 2003]
[Document not affected by Public Laws enacted between
January 7, 2003 and February 12, 2003]
TITLE 16--CONSERVATION
CHAPTER 35--ENDANGERED SPECIES
Sec. 1531. Congressional findings and declaration of purposes
and policy
(a) Findings
The Congress finds and declares that--
(1) various species of fish, wildlife, and plants in the United
States have been rendered extinct as a consequence of economic
growth and development untempered by adequate concern and
conservation;
(2) other species of fish, wildlife, and plants have been so
depleted in numbers that they are in danger of or threatened with
extinction;
(3) these species of fish, wildlife, and plants are of esthetic,
ecological, educational, historical, recreational, and scientific
value to the Nation and its people;
(4) the United States has pledged itself as a sovereign state in
the international community to conserve to the extent practicable
the various species of fish or wildlife and plants facing
extinction, pursuant to--
(A) migratory bird treaties with Canada and Mexico;
(B) the Migratory and Endangered Bird Treaty with Japan;
(C) the Convention on Nature Protection and Wildlife
Preservation in the Western Hemisphere;
(D) the International Convention for the Northwest Atlantic
Fisheries;
(E) the International Convention for the High Seas Fisheries
of the North Pacific Ocean;
(F) the Convention on International Trade in Endangered
Species of Wild Fauna and Flora; and
(G) other international agreements; and
(5) encouraging the States and other interested parties, through
Federal financial assistance and a system of incentives, to develop
and maintain conservation programs which meet national and
international standards is a key to meeting the Nations
international commitments and to better safeguarding, for the
benefit of all citizens, the Nations heritage in fish, wildlife,
and plants.
(b) Purposes
The purposes of this chapter are to provide a means whereby the
ecosystems upon which endangered species and threatened species depend
may be conserved, to provide a program for the conservation of such
endangered species and threatened species, and to take such steps as may
be appropriate to achieve the purposes of the treaties and conventions
set forth in subsection (a) of this section.
(c) Policy
(1) It is further declared to be the policy of Congress that all
Federal departments and agencies shall seek to conserve endangered
species and threatened species and shall utilize their authorities in
furtherance of the purposes of this chapter.
(2) It is further declared to be the policy of Congress that Federal
agencies shall cooperate with State and local agencies to resolve water
resource issues in concert with conservation of endangered species.
(Pub. L. 93-205, Sec. 2, Dec. 28, 1973, 87 Stat. 884; Pub. L. 96-159,
Sec. 1, Dec. 28, 1979, 93 Stat. 1225; Pub. L. 97-304, Sec. 9(a), Oct.
13, 1982, 96 Stat. 1426; Pub. L. 100-478, title I, Sec. 1013(a), Oct. 7,
1988, 102 Stat. 2315.)
References in Text
This chapter, referred to in subsecs. (b) and (c)(1), was in the
original ``this Act, meaning Pub. L. 93-205, Dec. 28, 1973, 81 Stat.
884, as amended, known as the ``Endangered Species Act of 1973, which
is classified generally to this chapter. For complete classification of
this Act to the Code, see Short Title note set out below and Tables.
Amendments
1988--Subsec. (a)(4)(G). Pub. L. 100-478 substituted ``; and for
period at end.
1982--Subsec. (c). Pub. L. 97-304 designated existing provisions as
par. (1) and added par. (2).
1979--Subsec. (a)(5). Pub. L. 96-159 substituted ``wildlife, and
plants for ``wildlife.
Effective Date
Section 16 of Pub. L. 93-205 provided that: ``This Act [enacting
this chapter, amending sections 460k-1, 460l-9, 668dd, 715i, 715s, 1362,
1371, 1372, and 1402 of this title and section 136 of Title 7,
Agriculture, repealing sections 668aa to 668cc-6 of this title, and
enacting provisions set out as notes under this section] shall take
effect on the date of its enactment [Dec. 28, 1973].
Short Title of 1982 Amendment
Section 1 of Pub. L. 97-304 provided: ``That this Act [amending this
section and sections 1532, 1533, 1535, 1536, 1537a, 1538, 1539, 1540,
and 1542 of this title and enacting provisions set out as notes under
sections 1533, 1537a, and 1539 of this title] may be cited as the
`Endangered Species Act Amendments of 1982.
Short Title of 1978 Amendment
Pub. L. 95-632, Sec. 1, Nov. 10, 1978, 92 Stat. 3751, provided:
``That this Act [amending sections 1532 to 1536, 1538 to 1540, and 1542
of this title] may be cited as the `Endangered Species Act Amendments of
1978.
Short Title
Section 1 of Pub. L. 93-205 provided: ``That this Act [enacting this
chapter, amending sections 460k-1, 460l-9, 668dd, 715i, 715s, 1362,
1371, 1372, and 1402 of this title and section 136 of Title 7,
Agriculture, repealing sections 668aa to 668cc-6 of this title, and
enacting provisions set out as notes under this section] may be cited as
the `Endangered Species Act of 1973.
Relationship to Endangered Species Act of 1973
Pub. L. 102-251, title III, Sec. 305, Mar. 9, 1992, 106 Stat. 66, as
amended by Pub. L. 104-208, div. A, title I, Sec. 101(a) [title II,
Sec. 211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009-41, provided that:
``The special areas defined in section 3(24) of the Magnuson-Stevens
Fishery Conservation and Management Act (16 U.S.C. 1802(24)) shall be
considered places that are subject to the jurisdiction of the United
States for the purposes of the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.).
Minimization of Conflicts With Recreational Fisheries
For provision that all Federal agencies minimize conflicts between
recreational fisheries and administration of this chapter, see Ex. Ord.
No. 12962, Sec. 4, June 7, 1995, 60 F.R. 30770, set out as a note under
section 1801 of this title.
Section Referred to in Other Sections
This section is referred to in section 1539 of this title.
Sec. 1532. Definitions
For the purpose of this chapter--
(1) The term ``alternative courses of action means all
alternatives and thus is not limited to original project objectives
and agency jurisdiction.
(2) The term ``commercial activity means all activities of
industry and trade, including, but not limited to, the buying or
selling of commodities and activities conducted for the purpose of
facilitating such buying and selling: Provided, however, That it
does not include exhibition of commodities by museums or similar
cultural or historical organizations.
(3) The terms ``conserve, ``conserving, and ``conservation
mean to use and the use of all methods and procedures which are
necessary to bring any endangered species or threatened species to
the point at which the measures provided pursuant to this chapter
are no longer necessary. Such methods and procedures include, but
are not limited to, all activities associated with scientific
resources management such as research, census, law enforcement,
habitat acquisition and maintenance, propagation, live trapping, and
transplantation, and, in the extraordinary case where population
pressures within a given ecosystem cannot be otherwise relieved, may
include regulated taking.
(4) The term ``Convention means the Convention on
International Trade in Endangered Species of Wild Fauna and Flora,
signed on March 3, 1973, and the appendices thereto.
(5)(A) The term ``critical habitat for a threatened or
endangered species means--
(i) the specific areas within the geographical area occupied
by the species, at the time it is listed in accordance with the
provisions of section 1533 of this title, on which are found
those physical or biological features (I) essential to the
conservation of the species and (II) which may require special
management considerations or protection; and
(ii) specific areas outside the geographical area occupied
by the species at the time it is listed in accordance with the
provisions of section 1533 of this title, upon a determination
by the Secretary that such areas are essential for the
conservation of the species.
(B) Critical habitat may be established for those species now
listed as threatened or endangered species for which no critical
habitat has heretofore been established as set forth in subparagraph
(A) of this paragraph.
(C) Except in those circumstances determined by the Secretary,
critical habitat shall not include the entire geographical area
which can be occupied by the threatened or endangered species.
(6) The term ``endangered species means any species which is
in danger of extinction throughout all or a significant portion of
its range other than a species of the Class Insecta determined by
the Secretary to constitute a pest whose protection under the
provisions of this chapter would present an overwhelming and
overriding risk to man.
(7) The term ``Federal agency means any department, agency, or
instrumentality of the United States.
(8) The term ``fish or wildlife means any member of the animal
kingdom, including without limitation any mammal, fish, bird
(including any migratory, nonmigratory, or endangered bird for which
protection is also afforded by treaty or other international
agreement), amphibian, reptile, mollusk, crustacean, arthropod or
other invertebrate, and includes any part, product, egg, or
offspring thereof, or the dead body or parts thereof.
(9) The term ``foreign commerce includes, among other things,
any transaction--
(A) between persons within one foreign country;
(B) between persons in two or more foreign countries;
(C) between a person within the United States and a person
in a foreign country; or
(D) between persons within the United States, where the fish
and wildlife in question are moving in any country or countries
outside the United States.
(10) The term ``import means to land on, bring into, or
introduce into, or attempt to land on, bring into, or introduce
into, any place subject to the jurisdiction of the United States,
whether or not such landing, bringing, or introduction constitutes
an importation within the meaning of the customs laws of the United
States.
(11) Repealed. Pub. L. 97-304, Sec. 4(b), Oct. 13, 1982, 96
Stat. 1420.
(12) The term ``permit or license applicant means, when used
with respect to an action of a Federal agency for which exemption is
sought under section 1536 of this title, any person whose
application to such agency for a permit or license has been denied
primarily because of the application of section 1536(a) of this
title to such agency action.
(13) The term ``person means an individual, corporation,
partnership, trust, association, or any other private entity; or any
officer, employee, agent, department, or instrumentality of the
Federal Government, of any State, municipality, or political
subdivision of a State, or of any foreign government; any State,
municipality, or political subdivision of a State; or any other
entity subject to the jurisdiction of the United States.
(14) The term ``plant means any member of the plant kingdom,
including seeds, roots and other parts thereof.
(15) The term ``Secretary means, except as otherwise herein
provided, the Secretary of the Interior or the Secretary of Commerce
as program responsibilities are vested pursuant to the provisions of
Reorganization Plan Numbered 4 of 1970; except that with respect to
the enforcement of the provisions of this chapter and the Convention
which pertain to the importation or exportation of terrestrial
plants, the term also means the Secretary of Agriculture.
(16) The term ``species includes any subspecies of fish or
wildlife or plants, and any distinct population segment of any
species of vertebrate fish or wildlife which interbreeds when
mature.
(17) The term ``State means any of the several States, the
District of Columbia, the Commonwealth of Puerto Rico, American
Samoa, the Virgin Islands, Guam, and the Trust Territory of the
Pacific Islands.
(18) The term ``State agency means any State agency,
department, board, commission, or other governmental entity which is
responsible for the management and conservation of fish, plant, or
wildlife resources within a State.
(19) The term ``take means to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or to attempt to
engage in any such conduct.
(20) The term ``threatened species means any species which is
likely to become an endangered species within the foreseeable future
throughout all or a significant portion of its range.
(21) The term ``United States, when used in a geographical
context, includes all States.
(Pub. L. 93-205, Sec. 3, Dec. 28, 1973, 87 Stat. 885; Pub. L. 94-359,
Sec. 5, July 12, 1976, 90 Stat. 913; Pub. L. 95-632, Sec. 2, Nov. 10,
1978, 92 Stat. 3751; Pub. L. 96-159, Sec. 2, Dec. 28, 1979, 93 Stat.
1225; Pub. L. 97-304, Sec. 4(b), Oct. 13, 1982, 96 Stat. 1420; Pub. L.
100-478, title I, Sec. 1001, Oct. 7, 1988, 102 Stat. 2306.)
References in Text
The customs laws of the United States, referred to in par. (10), are
classified generally to Title 19, Customs Duties.
Reorganization Plan Numbered 4 of 1970, referred to in par. (15), is
Reorg. Plan No. 4 of 1970, eff. Oct. 3, 1970, 35 F.R. 15627, 84 Stat.
2090, which is set out in the Appendix to Title 5, Government
Organization and Employees.
Amendments
1988--Par. (13). Pub. L. 100-478, Sec. 1001(a), amended par. (13)
generally. Prior to amendment, par. (13) read as follows: ``The term
`person means an individual, corporation, partnership, trust,
association, or any other private entity, or any officer, employee,
agent, department, or instrumentality of the Federal Government, of any
State or political subdivision thereof, or of any foreign government.
Par. (15). Pub. L. 100-478, Sec. 1001(b), inserted ``also before
``means the Secretary of Agriculture.
1982--Par. (11). Pub. L. 97-304 struck out par. (11) which defined
``irresolvable conflict as, with respect to any action authorized,
funded, or carried out by a Federal agency, a set of circumstances under
which, after consultation as required in section 1536(a) of this title,
completion of such action would violate section 1536(a)(2) of this
title.
1979--Par. (11). Pub. L. 96-159 substituted ``action would violate
section 1536(a)(2) of this title for ``action would (A) jeopardize the
continued existence of an endangered or threatened species, or (B)
result in the adverse modification or destruction of a critical
habitat.
1978--Pars. (1) to (4). Pub. L. 95-632, Sec. 2(1), (7), added par.
(1) and redesignated former pars. (1) to (3) as (2) to (4),
respectively. Former par. (4) redesignated (6).
Par. (5). Pub. L. 95-632, Sec. 2(2), (7), added par. (5). Former
par. (5) redesignated (8).
Par. (6). Pub. L. 95-632, Sec. 2(7), redesignated former par. (4) as
(6). Former par. (6) redesignated (9).
Par. (7). Pub. L. 95-632, Sec. 2(3), (7), added par. (7). Former
par. (7) redesignated (10).
Pars. (8) to (10). Pub. L. 95-632, Sec. 2(7), redesignated former
pars. (5) to (7) as (8) to (10), respectively. Former pars. (8) to (10)
redesignated (13) to (15), respectively.
Pars. (11), (12). Pub. L. 95-632, Sec. 2(4), (7), added pars. (11)
and (12). Former pars. (11) and (12) redesignated (16) and (17),
respectively.
Pars. (13) to (15). Pub. L. 95-632, Sec. 2(7), redesignated former
pars. (8) to (10) as (13) to (15), respectively. Former pars. (13) to
(15) redesignated as (18) to (20), respectively.
Par. (16). Pub. L. 95-632, Sec. 2(5), (7), redesignated former par.
(11) as (16) and substituted ``and any distinct population segment of
any species of vertebrate fish or wildlife which interbreeds when
mature for ``and any other group of fish or wildlife of the same
species or smaller taxa in common spatial arrangement that interbreed
when mature. Former par. (16) redesignated (21).
Par. (17). Pub. L. 95-632, Sec. 2(7), redesignated former par. (12)
as (17).
Par. (18). Pub. L. 95-632, Sec. 2(6), (7), redesignated former par.
(13) as (18) and substituted ``fish, plant, or wildlife for ``fish or
wildlife.
Pars. (19) to (21). Pub. L. 95-632, Sec. 2(7), redesignated pars.
(14) to (16) as (19) to (21), respectively.
1976--Par. (1). Pub. L. 94-359 inserted ``: Provided, however, That
it does not include exhibition of commodities by museums or similar
cultural or historical organizations. after ``facilitating such buying
and selling.
Termination of Trust Territory of the Pacific Islands
For termination of Trust Territory of the Pacific Islands, see note
set out preceding section 1681 of Title 48, Territories and Insular
Possessions.
Section Referred to in Other Sections
This section is referred to in section 1536 of this title.
Sec. 1533. Determination of endangered species and threatened
species
(a) Generally
(1) The Secretary shall by regulation promulgated in accordance with
subsection (b) of this section determine whether any species is an
endangered species or a threatened species because of any of the
following factors:
(A) the present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) overutilization for commercial, recreational, scientific, or
educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms; or
(E) other natural or manmade factors affecting its continued
existence.
(2) With respect to any species over which program responsibilities
have been vested in the Secretary of Commerce pursuant to Reorganization
Plan Numbered 4 of 1970--
(A) in any case in which the Secretary of Commerce determines
that such species should--
(i) be listed as an endangered species or a threatened
species, or
(ii) be changed in status from a threatened species to an
endangered species,
he shall so inform the Secretary of the Interior; who shall list
such species in accordance with this section;
(B) in any case in which the Secretary of Commerce determines
that such species should--
(i) be removed from any list published pursuant to
subsection (c) of this section, or
(ii) be changed in status from an endangered species to a
threatened species,
he shall recommend such action to the Secretary of the Interior, and
the Secretary of the Interior, if he concurs in the recommendation,
shall implement such action; and
(C) the Secretary of the Interior may not list or remove from
any list any such species, and may not change the status of any such
species which are listed, without a prior favorable determination
made pursuant to this section by the Secretary of Commerce.
(3) The Secretary, by regulation promulgated in accordance with
subsection (b) of this section and to the maximum extent prudent and
determinable--
(A) shall, concurrently with making a determination under
paragraph (1) that a species is an endangered species or a
threatened species, designate any habitat of such species which is
then considered to be critical habitat; and
(B) may, from time-to-time thereafter as appropriate, revise
such designation.
(b) Basis for determinations
(1)(A) The Secretary shall make determinations required by
subsection (a)(1) of this section solely on the basis of the best
scientific and commercial data available to him after conducting a
review of the status of the species and after taking into account those
efforts, if any, being made by any State or foreign nation, or any
political subdivision of a State or foreign nation, to protect such
species, whether by predator control, protection of habitat and food
supply, or other conservation practices, within any area under its
jurisdiction; or on the high seas.
(B) In carrying out this section, the Secretary shall give
consideration to species which have been--
(i) designated as requiring protection from unrestricted
commerce by any foreign nation, or pursuant to any international
agreement; or
(ii) identified as in danger of extinction, or likely to become
so within the foreseeable future, by any State agency or by any
agency of a foreign nation that is responsible for the conservation
of fish or wildlife or plants.
(2) The Secretary shall designate critical habitat, and make
revisions thereto, under subsection (a)(3) of this section on the basis
of the best scientific data available and after taking into
consideration the economic impact, and any other relevant impact, of
specifying any particular area as critical habitat. The Secretary may
exclude any area from critical habitat if he determines that the
benefits of such exclusion outweigh the benefits of specifying such area
as part of the critical habitat, unless he determines, based on the best
scientific and commercial data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species concerned.
(3)(A) To the maximum extent practicable, within 90 days after
receiving the petition of an interested person under section 553(e) of
title 5, to add a species to, or to remove a species from, either of the
lists published under subsection (c) of this section, the Secretary
shall make a finding as to whether the petition presents substantial
scientific or commercial information indicating that the petitioned
action may be warranted. If such a petition is found to present such
information, the Secretary shall promptly commence a review of the
status of the species concerned. The Secretary shall promptly publish
each finding made under this subparagraph in the Federal Register.
(B) Within 12 months after receiving a petition that is found under
subparagraph (A) to present substantial information indicating that the
petitioned action may be warranted, the Secretary shall make one of the
following findings:
(i) The petitioned action is not warranted, in which case the
Secretary shall promptly publish such finding in the Federal
Register.
(ii) The petitioned action is warranted, in which case the
Secretary shall promptly publish in the Federal Register a general
notice and the complete text of a proposed regulation to implement
such action in accordance with paragraph (5).
(iii) The petitioned action is warranted, but that--
(I) the immediate proposal and timely promulgation of a
final regulation implementing the petitioned action in
accordance with paragraphs (5) and (6) is precluded by pending
proposals to determine whether any species is an endangered
species or a threatened species, and
(II) expeditious progress is being made to add qualified
species to either of the lists published under subsection (c) of
this section and to remove from such lists species for which the
protections of this chapter are no longer necessary,
in which case the Secretary shall promptly publish such finding in
the Federal Register, together with a description and evaluation of
the reasons and data on which the finding is based.
(C)(i) A petition with respect to which a finding is made under
subparagraph (B)(iii) shall be treated as a petition that is resubmitted
to the Secretary under subparagraph (A) on the date of such finding and
that presents substantial scientific or commercial information that the
petitioned action may be warranted.
(ii) Any negative finding described in subparagraph (A) and any
finding described in subparagraph (B)(i) or (iii) shall be subject to
judicial review.
(iii) The Secretary shall implement a system to monitor effectively
the status of all species with respect to which a finding is made under
subparagraph (B)(iii) and shall make prompt use of the authority under
paragraph 7 \1\ to prevent a significant risk to the well being of any
such species.
---------------------------------------------------------------------------
\1\ So in original. Probably should be paragraph ``(7).
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(D)(i) To the maximum extent practicable, within 90 days after
receiving the petition of an interested person under section 553(e) of
title 5, to revise a critical habitat designation, the Secretary shall
make a finding as to whether the petition presents substantial
scientific information indicating that the revision may be warranted.
The Secretary shall promptly publish such finding in the Federal
Register.
(ii) Within 12 months after receiving a petition that is found under
clause (i) to present substantial information indicating that the
requested revision may be warranted, the Secretary shall determine how
he intends to proceed with the requested revision, and shall promptly
publish notice of such intention in the Federal Register.
(4) Except as provided in paragraphs (5) and (6) of this subsection,
the provisions of section 553 of title 5 (relating to rulemaking
procedures), shall apply to any regulation promulgated to carry out the
purposes of this chapter.
(5) With respect to any regulation proposed by the Secretary to
implement a determination, designation, or revision referred to in
subsection (a)(1) or (3) of this section, the Secretary shall--
(A) not less than 90 days before the effective date of the
regulation--
(i) publish a general notice and the complete text of the
proposed regulation in the Federal Register, and
(ii) give actual notice of the proposed regulation
(including the complete text of the regulation) to the State
agency in each State in which the species is believed to occur,
and to each county, or equivalent jurisdiction in which the
species is believed to occur, and invite the comment of such
agency, and each such jurisdiction, thereon;
(B) insofar as practical, and in cooperation with the Secretary
of State, give notice of the proposed regulation to each foreign
nation in which the species is believed to occur or whose citizens
harvest the species on the high seas, and invite the comment of such
nation thereon;
(C) give notice of the proposed regulation to such professional
scientific organizations as he deems appropriate;
(D) publish a summary of the proposed regulation in a newspaper
of general circulation in each area of the United States in which
the species is believed to occur; and
(E) promptly hold one public hearing on the proposed regulation
if any person files a request for such a hearing within 45 days
after the date of publication of general notice.
(6)(A) Within the one-year period beginning on the date on which
general notice is published in accordance with paragraph (5)(A)(i)
regarding a proposed regulation, the Secretary shall publish in the
Federal Register--
(i) if a determination as to whether a species is an endangered
species or a threatened species, or a revision of critical habitat,
is involved, either--
(I) a final regulation to implement such determination,
(II) a final regulation to implement such revision or a
finding that such revision should not be made,
(III) notice that such one-year period is being extended
under subparagraph (B)(i), or
(IV) notice that the proposed regulation is being withdrawn
under subparagraph (B)(ii), together with the finding on which
such withdrawal is based; or
(ii) subject to subparagraph (C), if a designation of critical
habitat is involved, either--
(I) a final regulation to implement such designation, or
(II) notice that such one-year period is being extended
under such subparagraph.
(B)(i) If the Secretary finds with respect to a proposed regulation
referred to in subparagraph (A)(i) that there is substantial
disagreement regarding the sufficiency or accuracy of the available data
relevant to the determination or revision concerned, the Secretary may
extend the one-year period specified in subparagraph (A) for not more
than six months for purposes of soliciting additional data.
(ii) If a proposed regulation referred to in subparagraph (A)(i) is
not promulgated as a final regulation within such one-year period (or
longer period if extension under clause (i) applies) because the
Secretary finds that there is not sufficient evidence to justify the
action proposed by the regulation, the Secretary shall immediately
withdraw the regulation. The finding on which a withdrawal is based
shall be subject to judicial review. The Secretary may not propose a
regulation that has previously been withdrawn under this clause unless
he determines that sufficient new information is available to warrant
such proposal.
(iii) If the one-year period specified in subparagraph (A) is
extended under clause (i) with respect to a proposed regulation, then
before the close of such extended period the Secretary shall publish in
the Federal Register either a final regulation to implement the
determination or revision concerned, a finding that the revision should
not be made, or a notice of withdrawal of the regulation under clause
(ii), together with the finding on which the withdrawal is based.
(C) A final regulation designating critical habitat of an endangered
species or a threatened species shall be published concurrently with the
final regulation implementing the determination that such species is
endangered or threatened, unless the Secretary deems that--
(i) it is essential to the conservation of such species that the
regulation implementing such determination be promptly published; or
(ii) critical habitat of such species is not then determinable,
in which case the Secretary, with respect to the proposed regulation
to designate such habitat, may extend the one-year period specified
in subparagraph (A) by not more than one additional year, but not
later than the close of such additional year the Secretary must
publish a final regulation, based on such data as may be available
at that time, designating, to the maximum extent prudent, such
habitat.
(7) Neither paragraph (4), (5), or (6) of this subsection nor
section 553 of title 5 shall apply to any regulation issued by the
Secretary in regard to any emergency posing a significant risk to the
well-being of any species of fish or wildlife or plants, but only if--
(A) at the time of publication of the regulation in the Federal
Register the Secretary publishes therein detailed reasons why such
regulation is necessary; and
(B) in the case such regulation applies to resident species of
fish or wildlife, or plants, the Secretary gives actual notice of
such regulation to the State agency in each State in which such
species is believed to occur.
Such regulation shall, at the discretion of the Secretary, take effect
immediately upon the publication of the regulation in the Federal
Register. Any regulation promulgated under the authority of this
paragraph shall cease to have force and effect at the close of the 240-
day period following the date of publication unless, during such 240-day
period, the rulemaking procedures which would apply to such regulation
without regard to this paragraph are complied with. If at any time after
issuing an emergency regulation the Secretary determines, on the basis
of the best appropriate data available to him, that substantial evidence
does not exist to warrant such regulation, he shall withdraw it.
(8) The publication in the Federal Register of any proposed or final
regulation which is necessary or appropriate to carry out the purposes
of this chapter shall include a summary by the Secretary of the data on
which such regulation is based and shall show the relationship of such
data to such regulation; and if such regulation designates or revises
critical habitat, such summary shall, to the maximum extent practicable,
also include a brief description and evaluation of those activities
(whether public or private) which, in the opinion of the Secretary, if
undertaken may adversely modify such habitat, or may be affected by such
designation.
(c) Lists
(1) The Secretary of the Interior shall publish in the Federal
Register a list of all species determined by him or the Secretary of
Commerce to be endangered species and a list of all species determined
by him or the Secretary of Commerce to be threatened species. Each list
shall refer to the species contained therein by scientific and common
name or names, if any, specify with respect to each such species over
what portion of its range it is endangered or threatened, and specify
any critical habitat within such range. The Secretary shall from time to
time revise each list published under the authority of this subsection
to reflect recent determinations, designations, and revisions made in
accordance with subsections (a) and (b) of this section.
(2) The Secretary shall--
(A) conduct, at least once every five years, a review of all
species included in a list which is published pursuant to paragraph
(1) and which is in effect at the time of such review; and
(B) determine on the basis of such review whether any such
species should--
(i) be removed from such list;
(ii) be changed in status from an endangered species to a
threatened species; or
(iii) be changed in status from a threatened species to an
endangered species.
Each determination under subparagraph (B) shall be made in accordance
with the provisions of subsections (a) and (b) of this section.
(d) Protective regulations
Whenever any species is listed as a threatened species pursuant to
subsection (c) of this section, the Secretary shall issue such
regulations as he deems necessary and advisable to provide for the
conservation of such species. The Secretary may by regulation prohibit
with respect to any threatened species any act prohibited under section
1538(a)(1) of this title, in the case of fish or wildlife, or section
1538(a)(2) of this title, in the case of plants, with respect to
endangered species; except that with respect to the taking of resident
species of fish or wildlife, such regulations shall apply in any State
which has entered into a cooperative agreement pursuant to section
1535(c) of this title only to the extent that such regulations have also
been adopted by such State.
(e) Similarity of appearance cases
The Secretary may, by regulation of commerce or taking, and to the
extent he deems advisable, treat any species as an endangered species or
threatened species even though it is not listed pursuant to this section
if he finds that--
(A) such species so closely resembles in appearance, at the
point in question, a species which has been listed pursuant to such
section that enforcement personnel would have substantial difficulty
in attempting to differentiate between the listed and unlisted
species;
(B) the effect of this substantial difficulty is an additional
threat to an endangered or threatened species; and
(C) such treatment of an unlisted species will substantially
facilitate the enforcement and further the policy of this chapter.
(f) Recovery plans
(1) The Secretary shall develop and implement plans (hereinafter in
this subsection referred to as ``recovery plans) for the conservation
and survival of endangered species and threatened species listed
pursuant to this section, unless he finds that such a plan will not
promote the conservation of the species. The Secretary, in developing
and implementing recovery plans, shall, to the maximum extent
practicable--
(A) give priority to those endangered species or threatened
species, without regard to taxonomic classification, that are most
likely to benefit from such plans, particularly those species that
are, or may be, in conflict with construction or other development
projects or other forms of economic activity;
(B) incorporate in each plan--
(i) a description of such site-specific management actions
as may be necessary to achieve the plans goal for the
conservation and survival of the species;
(ii) objective, measurable criteria which, when met, would
result in a determination, in accordance with the provisions of
this section, that the species be removed from the list; and
(iii) estimates of the time required and the cost to carry
out those measures needed to achieve the plans goal and to
achieve intermediate steps toward that goal.
(2) The Secretary, in developing and implementing recovery plans,
may procure the services of appropriate public and private agencies and
institutions, and other qualified persons. Recovery teams appointed
pursuant to this subsection shall not be subject to the Federal Advisory
Committee Act.
(3) The Secretary shall report every two years to the Committee on
Environment and Public Works of the Senate and the Committee on Merchant
Marine and Fisheries of the House of Representatives on the status of
efforts to develop and implement recovery plans for all species listed
pursuant to this section and on the status of all species for which such
plans have been developed.
(4) The Secretary shall, prior to final approval of a new or revised
recovery plan, provide public notice and an opportunity for public
review and comment on such plan. The Secretary shall consider all
information presented during the public comment period prior to approval
of the plan.
(5) Each Federal agency shall, prior to implementation of a new or
revised recovery plan, consider all information presented during the
public comment period under paragraph (4).
(g) Monitoring
(1) The Secretary shall implement a system in cooperation with the
States to monitor effectively for not less than five years the status of
all species which have recovered to the point at which the measures
provided pursuant to this chapter are no longer necessary and which, in
accordance with the provisions of this section, have been removed from
either of the lists published under subsection (c) of this section.
(2) The Secretary shall make prompt use of the authority under
paragraph 7 \2\ of subsection (b) of this section to prevent a
significant risk to the well being of any such recovered species.
---------------------------------------------------------------------------
\2\ So in original. Probably should be paragraph ``(7).
---------------------------------------------------------------------------
(h) Agency guidelines; publication in Federal Register; scope; proposals
and amendments: notice and opportunity for comments
The Secretary shall establish, and publish in the Federal Register,
agency guidelines to insure that the purposes of this section are
achieved efficiently and effectively. Such guidelines shall include, but
are not limited to--
(1) procedures for recording the receipt and the disposition of
petitions submitted under subsection (b)(3) of this section;
(2) criteria for making the findings required under such
subsection with respect to petitions;
(3) a ranking system to assist in the identification of species
that should receive priority review under subsection (a)(1) of this
section; and
(4) a system for developing and implementing, on a priority
basis, recovery plans under subsection (f) of this section.
The Secretary shall provide to the public notice of, and opportunity to
submit written comments on, any guideline (including any amendment
thereto) proposed to be established under this subsection.
(i) Submission to State agency of justification for regulations
inconsistent with State agencys comments or petition
If, in the case of any regulation proposed by the Secretary under
the authority of this section, a State agency to which notice thereof
was given in accordance with subsection (b)(5)(A)(ii) of this section
files comments disagreeing with all or part of the proposed regulation,
and the Secretary issues a final regulation which is in conflict with
such comments, or if the Secretary fails to adopt a regulation pursuant
to an action petitioned by a State agency under subsection (b)(3) of
this section, the Secretary shall submit to the State agency a written
justification for his failure to adopt regulations consistent with the
agencys comments or petition.
(Pub. L. 93-205, Sec. 4, Dec. 28, 1973, 87 Stat. 886; Pub. L. 94-359,
Sec. 1, July 12, 1976, 90 Stat. 911; Pub. L. 95-632, Secs. 11, 13, Nov.
10, 1978, 92 Stat. 3764, 3766; Pub. L. 96-159, Sec. 3, Dec. 28, 1979, 93
Stat. 1225; Pub. L. 97-304, Sec. 2(a), Oct. 13, 1982, 96 Stat. 1411;
Pub. L. 100-478, title I, Secs. 1002-1004, Oct. 7, 1988, 102 Stat. 2306,
2307.)
References in Text
Reorganization Plan Numbered 4 of 1970, referred to in subsec.
(a)(2), is Reorg. Plan No. 4 of 1970, eff. Oct. 3, 1970, 35 F.R. 15627,
84 Stat. 2090, which is set out in the Appendix to Title 5, Government
Organization and Employees.
The Federal Advisory Committee Act, referred to in subsec. (f)(2),
is Pub. L. 92-463, Oct. 6, 1972, 86 Stat. 770, as amended, which is set
out in the Appendix to Title 5.
Amendments
1988--Subsec. (b)(3)(C)(iii). Pub. L. 100-478, Sec. 1002(a), added
subcl. (iii).
Subsec. (e). Pub. L. 100-478, Sec. 1002(b), substituted ``regulation
of commerce or taking, for ``regulation, in introductory provisions.
Subsec. (f). Pub. L. 100-478, Sec. 1003, amended subsec. (f)
generally. Prior to amendment, subsec. (f) read as follows: ``The
Secretary shall develop and implement plans (hereinafter in this
subsection referred to as `recovery plans) for the conservation and
survival of endangered species and threatened species listed pursuant to
this section, unless he finds that such a plan will not promote the
conservation of the species. The Secretary, in developing and
implementing recovery plans (1) shall, to the maximum extent
practicable, give priority to those endangered species or threatened
species most likely to benefit from such plans, particularly those
species that are, or may be, in conflict with construction or other
developmental projects or other forms of economic activity, and (2) may
procure the services of appropriate public and private agencies and
institutions, and other qualified persons. Recovery teams appointed
pursuant to this subsection shall not be subject to the Federal Advisory
Committee Act.
Subsecs. (g) to (i). Pub. L. 100-478, Sec. 1004, added subsec. (g)
and redesignated former subsecs. (g) and (h) as (h) and (i),
respectively.
1982--Subsec. (a)(1). Pub. L. 97-304, Sec. 2(a)(1)(B), (D), inserted
``promulgated in accordance with subsection (b) of this section after
``shall by regulation in introductory provisions preceding subpar.
(A), and struck out provision following subpar. (E), which directed the
Secretary, at the time regulations were proposed, to specify any habitat
of a species considered to be a critical habitat but that such
specification of critical habitats not apply to species listed prior to
Nov. 10, 1978.
Subsec. (a)(1)(A). Pub. L. 97-304, Sec. 2(a)(1)(A), redesignated
subpar. (1) as (A).
Subsec. (a)(1)(B). Pub. L. 97-304, Sec. 2(a)(1)(A), (C),
redesignated subpar. (2) as (B) and substituted ``recreational, for
``sporting,.
Subsec. (a)(1)(C) to (E). Pub. L. 97-304, Sec. 2(a)(1)(A),
redesignated subpars. (3), (4), and (5) as (C), (D), and (E),
respectively.
Subsec. (a)(3). Pub. L. 97-304, Sec. 2(a)(1)(E), added par. (3).
Subsec. (b). Pub. L. 97-304, Sec. 2(a)(2), completely revised
subsec. (b) by, among other changes, requiring the Secretary to base
determinations regarding the listing or delisting of species ``solely
on the basis of the best scientific and commercial data available,
streamlining the listing process by reducing the time periods for
rulemaking, consolidating public meetings and hearing requirements, and
establishing virtually identical procedures for the listing and
delisting of species and for the designation of critical habitat, and
altering the evidentiary standard which petitioners must satisfy to
warrant a status review of the species proposed for listing or
delisting.
Subsec. (c)(1). Pub. L. 97-304, Sec. 2(a)(3)(A), struck out ``, and
from time to time he may by regulation revise, after ``Federal
Register and inserted provision directing the Secretary to revise from
time to time each list published under the authority of this subsection
to reflect recent determinations, designations, and revisions made in
accordance with subsections (a) and (b) of this section.
Subsec. (c)(2). Pub. L. 97-304, Sec. 2(a)(3)(B), (C), redesignated
par. (4) as (2). Former par. (2), directing the Secretary, within 90
days of the receipt of the petition of an interested person under
section 553(e) of title 5, to conduct and publish in the Federal
Register a review of the status of any listed or unlisted species
proposed to be removed from or added to either of the lists published
pursuant to paragraph (1) of this subsection, but only if he made and
published a finding that such person had presented substantial evidence
which in his judgment warranted such a review, was struck out.
Subsec. (c)(3). Pub. L. 97-304, Sec. 2(a)(3)(B), struck out par. (3)
which had provided that any list in effect on Dec. 27, 1973, of species
of fish or wildlife determined by the Secretary of the Interior,
pursuant to the Endangered Species Conservation Act of 1969, to be
threatened with extinction be republished to conform to the
classification for endangered species or threatened species, as the case
might be, provided for in this chapter, but until such republication,
any such species so listed was to be deemed an endangered species within
the meaning of this chapter, and that the republication of any species
pursuant to this paragraph did not require public hearing or comment
under section 553 of title 5.
Subsec. (c)(4). Pub. L. 97-304, Sec. 2(a)(3)(C), redesignated par.
(4) as (2).
Subsec. (d). Pub. L. 97-304, Sec. 2(a)(4)(A), substituted ``section
1535(c) of this title for ``section 1535(a) of this title.
Subsec. (f). Pub. L. 97-304, Sec. 2(a)(4)(B), (C), (D), redesignated
subsec. (g) as (f) and substituted ``recovery plans (1) shall, to the
maximum extent practicable, give priority to those endangered species or
threatened species most likely to benefit from such plans, particularly
those species that are, or may be, in conflict with construction or
other developmental projects or other forms of economic activity, and
(2) for ``recovery plans,. Former subsec. (f), relating to the
promulgation of regulations, was struck out.
Subsec. (g). Pub. L. 97-304, Sec. 2(a)(4)(C), (E), redesignated
subsec. (h) as (g), substituted reference to subsection (b)(3) of this
section for reference to subsection (c)(2) of this section in par. (1),
substituted ``under subsection (a)(1) of this section for ``for
listing in par. (3), and substituted ``subsection (f) of this
section for ``subsection (g) of this section in par. (4). Former
subsec. (g) redesignated (f).
Subsec. (h). Pub. L. 97-304, Sec. 2(a)(4)(C), (F), added subsec. (h)
and redesignated former subsec. (h) as (g).
1979--Subsec. (b)(1). Pub. L. 96-159, Sec. 3(1), required the
Secretarys determinations to be preceded with a review of the status of
the species.
Subsec. (f)(2)(B)(i). Pub. L. 96-159, Sec. 3(2), required
publication of summary of text rather than of the complete text of
proposed regulation specifying any critical habitat and inclusion of a
map of the proposed critical habitat.
Subsec. (f)(2)(B)(iv)(II). Pub. L. 96-159, Sec. 3(3), substituted
``if requested within 15 days after the date on which the public meeting
is conducted, for ``if requested,.
Subsec. (f)(2)(C). Pub. L. 96-159, Sec. 3(4), (5), inserted in
introductory text ``, subsection (b)(4) of this section,; and in cl.
(ii), included reference to significant risk to wellbeing of any species
of plants, inserted in item (II) reference to regulation applicable to
resident species of plants, extended the statutory period to a ``240-day
period from a ``120-day period, and provided for withdrawal of an
emergency regulation without substantial evidence to warrant it,
respectively.
Subsec. (h). Pub. L. 96-159, Sec. 3(6), added subsec. (h).
1978--Subsec. (a)(1). Pub. L. 95-632, Sec. 11(1), inserted provision
requiring the Secretary, at the time a regulation is proposed, to
specify by regulation any habitat of the species involved which is
considered a critical habitat providing the species was listed
subsequent to Nov. 10, 1978.
Subsec. (b)(4). Pub. L. 95-632, Sec. 11(7), added par. (4).
Subsec. (c)(1). Pub. L. 95-632, Sec. 11(2), struck out ``and shall
after ``if any and inserted ``, and specify any critical habitat
within such range after ``endangered or threatened.
Subsec. (c)(2). Pub. L. 95-632, Sec. 11(6), substituted ``within 90
days of the receipt of for ``upon and ``conduct and publish in the
Federal Register a review of the status of for ``conduct a review of
and inserted a provision requiring that the review and findings be made
and published prior to initiation of any procedures under subsec. (b)(1)
of this section.
Subsec. (c)(4). Pub. L. 95-632, Sec. 11(3), added par. (4).
Subsec. (f)(2)(A). Pub. L. 95-632, Sec. 11(4)(A), substituted
``Except as provided in subparagraph (B), in for ``In.
Subsec. (f)(2)(B), (C). Pub. L. 95-632, Sec. 11(4)(B), (C), added
subpar. (B), redesignated former subpar. (B) as (C), and as so
redesignated, substituted ``Neither subparagraph (A) or (B) for
``Neither subparagraph (A).
Subsec. (f)(3). Pub. L. 95-632, Sec. 13, substituted ``a summary by
the Secretary of the data on which such regulation is based and shall
show the relationship of such data to such regulations for ``a
statement by the Secretary of the facts on which such regulation is
based and the relationship of such facts to such regulation.
Subsec. (f)(4), (5). Pub. L. 95-632, Sec. 11(4)(D), added pars. (4)
and (5).
Subsec. (g). Pub. L. 95-632, Sec. 11(5), added subsec. (g).
1976--Subsec. (f)(2)(B)(ii). Pub. L. 94-359 substituted ``subsection
(b)(1)(A) for ``subsection (b)(A), (B), and (C).
Effective Date of 1982 Amendment
Section 2(b) of Pub. L. 97-304 provided that:
``(1) Any petition filed under section 4(c)(2) of the Endangered
Species Act of 1973 [subsec. (c)(2) of this section] (as in effect on
the day before the date of the enactment of this Act [Oct. 13, 1982])
and any regulation proposed under section 4(f) of such Act of 1973
[subsec. (f) of this section] (as in effect on such day) that is pending
on such date of enactment [Oct. 13, 1982] shall be treated as having
been filed or proposed on such date of enactment under section 4(b) of
such Act of 1973 [subsec. (b) of this section] (as amended by subsection
(a)); and the procedural requirements specified in such section 4(b)
[subsec. (b) of this section] (as so amended) regarding such petition or
proposed regulation shall be deemed to be complied with to the extent
that like requirements under such section 4 [this section] (as in effect
before the date of the enactment of this Act) were complied with before
such date of enactment.
``(2) Any regulation proposed after, or pending on, the date of the
enactment of this Act [Oct. 13, 1982] to designate critical habitat for
a species that was determined before such date of enactment to be
endangered or threatened shall be subject to the procedures set forth in
section 4 of such Act of 1973 [this section] (as amended by subsection
(a)) for regulations proposing revisions to critical habitat instead of
those for regulations proposing the designation of critical habitat.
``(3) Any list of endangered species or threatened species (as in
effect under section 4(c) of such Act of 1973 [subsec. (c) of this
section] on the day before the date of the enactment of this Act [Oct.
13, 1982]) shall remain in effect unless and until determinations
regarding species and designations and revisions of critical habitats
that require changes to such list are made in accordance with subsection
(b)(5) of such Act of 1973 [subsec. (b)(5) of this section] (as added by
subsection (a)).
``(4) Section 4(a)(3)(A) of such Act of 1973 [subsec. (a)(3)(A) of
this section] (as added by subsection (a)) shall not apply with respect
to any species which was listed as an endangered species or a threatened
species before November 10, 1978.
Abolition of House Committee on Merchant Marine and Fisheries
Committee on Merchant Marine and Fisheries of House of
Representatives abolished and its jurisdiction transferred by House
Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. Committee
on Merchant Marine and Fisheries of House of Representatives treated as
referring to Committee on Resources of House of Representatives in case
of provisions relating to fisheries, wildlife, international fishing
agreements, marine affairs (including coastal zone management) except
for measures relating to oil and other pollution of navigable waters, or
oceanography by section 1(b)(3) of Pub. L. 104-14, set out as a note
preceding section 21 of Title 2, The Congress.
Section Referred to in Other Sections
This section is referred to in sections 460k-1, 668dd, 670h, 715i,
715s, 1374, 1383b, 1387, 1402, 1532, 1534, 1535, 1536, 1537, 1538, 1540,
4202, 4261, 6301 of this title; title 10 section 7524.
Sec. 1534. Land acquisition
(a) Implementation of conservation program; authorization of Secretary
and Secretary of Agriculture
The Secretary, and the Secretary of Agriculture with respect to the
National Forest System, shall establish and implement a program to
conserve fish, wildlife, and plants, including those which are listed as
endangered species or threatened species pursuant to section 1533 of
this title. To carry out such a program, the appropriate Secretary--
(1) shall utilize the land acquisition and other authority under
the Fish and Wildlife Act of 1956, as amended [16 U.S.C. 742a et
seq.], the Fish and Wildlife Coordination Act, as amended [16 U.S.C.
661 et seq.], and the Migratory Bird Conservation Act [16 U.S.C. 715
et seq.], as appropriate; and
(2) is authorized to acquire by purchase, donation, or
otherwise, lands, waters, or interest therein, and such authority
shall be in addition to any other land acquisition authority vested
in him.
(b) Availability of funds for acquisition of lands, waters, etc.
Funds made available pursuant to the Land and Water Conservation
Fund Act of 1965, as amended [16 U.S.C. 460l-4 et seq.], may be used for
the purpose of acquiring lands, waters, or interests therein under
subsection (a) of this section.
(Pub. L. 93-205, Sec. 5, Dec. 28, 1973, 87 Stat. 889; Pub. L. 95-632,
Sec. 12, Nov. 10, 1978, 92 Stat. 3766.)
References in Text
The Fish and Wildlife Act of 1956, as amended, referred to in
subsec. (a)(1), is act Aug. 8, 1956, ch. 1036, 70 Stat. 119, as amended,
which is classified generally to sections 742a to 742d and 742e to 742j-
2 of this title. For complete classification of this Act to the Code,
see Short Title note set out under section 742a of this title and
Tables.
The Fish and Wildlife Coordination Act, as amended, referred to in
subsec. (a)(1), is act Mar. 10, 1934, ch. 55, 48 Stat. 401, as amended,
which is classified generally to sections 661 to 666c of this title. For
complete classification of this Act to the Code, see Short Title note
set out under section 661 of this title and Tables.
The Migratory Bird Conservation Act, referred to in subsec. (a)(1),
is act Feb. 18, 1929, ch. 257, 45 Stat. 1222, as amended, which is
classified generally to subchapter III (Sec. 715 et seq.) of chapter 7
of this title. For complete classification of this Act to the Code, see
section 715 of this title and Tables.
The Land and Water Conservation Fund Act of 1965, as amended,
referred to in subsec. (b), is Pub. L. 88-578, Sept. 3, 1964, 78 Stat.
897, as amended, which is classified generally to part B (Sec. 460l-4 et
seq.) of subchapter LXIX of chapter 1 of this title. For complete
classification of this Act to the Code, see Short Title note set out
under section 460l-4 of this title and Tables.
Amendments
1978--Subsec. (a). Pub. L. 95-632, among other changes in text
preceding par. (1), inserted reference to the Secretary of Agriculture
with respect to the National Forest System and substituted the
establishment and implementation of a plan to conserve plants for the
establishment and implementation of a plan to conserve plants which were
concluded in Appendices to the Convention.
Section Referred to in Other Sections
This section is referred to in sections 460l-9, 460iii-4 of this
title.
Sec. 1535. Cooperation with States
(a) Generally
In carrying out the program authorized by this chapter, the
Secretary shall cooperate to the maximum extent practicable with the
States. Such cooperation shall include consultation with the States
concerned before acquiring any land or water, or interest therein, for
the purpose of conserving any endangered species or threatened species.
(b) Management agreements
The Secretary may enter into agreements with any State for the
administration and management of any area established for the
conservation of endangered species or threatened species. Any revenues
derived from the administration of such areas under these agreements
shall be subject to the provisions of section 715s of this title.
(c) Cooperative agreements
(1) In furtherance of the purposes of this chapter, the Secretary is
authorized to enter into a cooperative agreement in accordance with this
section with any State which establishes and maintains an adequate and
active program for the conservation of endangered species and threatened
species. Within one hundred and twenty days after the Secretary receives
a certified copy of such a proposed State program, he shall make a
determination whether such program is in accordance with this chapter.
Unless he determines, pursuant to this paragraph, that the State program
is not in accordance with this chapter, he shall enter into a
cooperative agreement with the State for the purpose of assisting in
implementation of the State program. In order for a State program to be
deemed an adequate and active program for the conservation of endangered
species and threatened species, the Secretary must find, and annually
thereafter reconfirm such finding, that under the State program--
(A) authority resides in the State agency to conserve resident
species of fish or wildlife determined by the State agency or the
Secretary to be endangered or threatened;
(B) the State agency has established acceptable conservation
programs, consistent with the purposes and policies of this chapter,
for all resident species of fish or wildlife in the State which are
deemed by the Secretary to be endangered or threatened, and has
furnished a copy of such plan and program together with all
pertinent details, information, and data requested to the Secretary;
(C) the State agency is authorized to conduct investigations to
determine the status and requirements for survival of resident
species of fish and wildlife;
(D) the State agency is authorized to establish programs,
including the acquisition of land or aquatic habitat or interests
therein, for the conservation of resident endangered or threatened
species of fish or wildlife; and
(E) provision is made for public participation in designating
resident species of fish or wildlife as endangered or threatened; or
that under the State program--
(i) the requirements set forth in subparagraphs (C), (D), and
(E) of this paragraph are complied with, and
(ii) plans are included under which immediate attention will be
given to those resident species of fish and wildlife which are
determined by the Secretary or the State agency to be endangered or
threatened and which the Secretary and the State agency agree are
most urgently in need of conservation programs; except that a
cooperative agreement entered into with a State whose program is
deemed adequate and active pursuant to clause (i) and this clause
shall not affect the applicability of prohibitions set forth in or
authorized pursuant to section 1533(d) of this title or section
1538(a)(1) of this title with respect to the taking of any resident
endangered or threatened species.
(2) In furtherance of the purposes of this chapter the Secretary is
authorized to enter into a cooperative agreement in accordance with this
section with any State which establishes and maintains an adequate and
active program for the conservation of endangered species and threatened
species of plants. Within one hundred and twenty days after the
Secretary receives a certified copy of such a proposed State program, he
shall make a determination whether such program is in accordance with
this chapter. Unless he determines, pursuant to this paragraph, that the
State program is not in accordance with this chapter, he shall enter
into a cooperative agreement with the State for the purpose of assisting
in implementation of the State program. In order for a State program to
be deemed an adequate and active program for the conservation of
endangered species of plants and threatened species of plants, the
Secretary must find, and annually thereafter reconfirm such finding,
that under the State program--
(A) authority resides in the State agency to conserve resident
species of plants determined by the State agency or the Secretary to
be endangered or threatened;
(B) the State agency has established acceptable conservation
programs, consistent with the purposes and policies of this chapter,
for all resident species of plants in the State which are deemed by
the Secretary to be endangered or threatened, and has furnished a
copy of such plan and program together with all pertinent details,
information, and data requested to the Secretary;
(C) the State agency is authorized to conduct investigations to
determine the status and requirements for survival of resident
species of plants; and
(D) provision is made for public participation in designating
resident species of plants as endangered or threatened; or
that under the State program--
(i) the requirements set forth in subparagraphs (C) and (D) of
this paragraph are complied with, and
(ii) plans are included under which immediate attention will be
given to those resident species of plants which are determined by
the Secretary or the State agency to be endangered or threatened and
which the Secretary and the State agency agree are most urgently in
need of conservation programs; except that a cooperative agreement
entered into with a State whose program is deemed adequate and
active pursuant to clause (i) and this clause shall not affect the
applicability of prohibitions set forth in or authorized pursuant to
section 1533(d) or section 1538(a)(1) of this title with respect to
the taking of any resident endangered or threatened species.
(d) Allocation of funds
(1) The Secretary is authorized to provide financial assistance to
any State, through its respective State agency, which has entered into a
cooperative agreement pursuant to subsection (c) of this section to
assist in development of programs for the conservation of endangered and
threatened species or to assist in monitoring the status of candidate
species pursuant to subparagraph (C) of section 1533(b)(3) of this title
and recovered species pursuant to section 1533(g) of this title. The
Secretary shall allocate each annual appropriation made in accordance
with the provisions of subsection (i) of this section to such States
based on consideration of--
(A) the international commitments of the United States to
protect endangered species or threatened species;
(B) the readiness of a State to proceed with a conservation
program consistent with the objectives and purposes of this chapter;
(C) the number of endangered species and threatened species
within a State;
(D) the potential for restoring endangered species and
threatened species within a State;
(E) the relative urgency to initiate a program to restore and
protect an endangered species or threatened species in terms of
survival of the species;
(F) the importance of monitoring the status of candidate species
within a State to prevent a significant risk to the well being of
any such species; and
(G) the importance of monitoring the status of recovered species
within a State to assure that such species do not return to the
point at which the measures provided pursuant to this chapter are
again necessary.
So much of the annual appropriation made in accordance with provisions
of subsection (i) of this section allocated for obligation to any State
for any fiscal year as remains unobligated at the close thereof is
authorized to be made available to that State until the close of the
succeeding fiscal year. Any amount allocated to any State which is
unobligated at the end of the period during which it is available for
expenditure is authorized to be made available for expenditure by the
Secretary in conducting programs under this section.
(2) Such cooperative agreements shall provide for (A) the actions to
be taken by the Secretary and the States; (B) the benefits that are
expected to be derived in connection with the conservation of endangered
or threatened species; (C) the estimated cost of these actions; and (D)
the share of such costs to be borne by the Federal Government and by the
States; except that--
(i) the Federal share of such program costs shall not exceed 75
percent of the estimated program cost stated in the agreement; and
(ii) the Federal share may be increased to 90 percent whenever
two or more States having a common interest in one or more
endangered or threatened species, the conservation of which may be
enhanced by cooperation of such States, enter jointly into an
agreement with the Secretary.
The Secretary may, in his discretion, and under such rules and
regulations as he may prescribe, advance funds to the State for
financing the United States pro rata share agreed upon in the
cooperative agreement. For the purposes of this section, the non-Federal
share may, in the discretion of the Secretary, be in the form of money
or real property, the value of which will be determined by the
Secretary, whose decision shall be final.
(e) Review of State programs
Any action taken by the Secretary under this section shall be
subject to his periodic review at no greater than annual intervals.
(f) Conflicts between Federal and State laws
Any State law or regulation which applies with respect to the
importation or exportation of, or interstate or foreign commerce in,
endangered species or threatened species is void to the extent that it
may effectively (1) permit what is prohibited by this chapter or by any
regulation which implements this chapter, or (2) prohibit what is
authorized pursuant to an exemption or permit provided for in this
chapter or in any regulation which implements this chapter. This chapter
shall not otherwise be construed to void any State law or regulation
which is intended to conserve migratory, resident, or introduced fish or
wildlife, or to permit or prohibit sale of such fish or wildlife. Any
State law or regulation respecting the taking of an endangered species
or threatened species may be more restrictive than the exemptions or
permits provided for in this chapter or in any regulation which
implements this chapter but not less restrictive than the prohibitions
so defined.
(g) Transition
(1) For purposes of this subsection, the term ``establishment
period means, with respect to any State, the period beginning on
December 28, 1973, and ending on whichever of the following dates first
occurs: (A) the date of the close of the 120-day period following the
adjournment of the first regular session of the legislature of such
State which commences after December 28, 1973, or (B) the date of the
close of the 15-month period following December 28, 1973.
(2) The prohibitions set forth in or authorized pursuant to sections
1533(d) and 1538(a)(1)(B) of this title shall not apply with respect to
the taking of any resident endangered species or threatened species
(other than species listed in Appendix I to the Convention or otherwise
specifically covered by any other treaty or Federal law) within any
State--
(A) which is then a party to a cooperative agreement with the
Secretary pursuant to subsection (c) of this section (except to the
extent that the taking of any such species is contrary to the law of
such State); or
(B) except for any time within the establishment period when--
(i) the Secretary applies such prohibition to such species
at the request of the State, or
(ii) the Secretary applies such prohibition after he finds,
and publishes his finding, that an emergency exists posing a
significant risk to the well-being of such species and that the
prohibition must be applied to protect such species. The
Secretarys finding and publication may be made without regard
to the public hearing or comment provisions of section 553 of
title 5 or any other provision of this chapter; but such
prohibition shall expire 90 days after the date of its
imposition unless the Secretary further extends such prohibition
by publishing notice and a statement of justification of such
extension.
(h) Regulations
The Secretary is authorized to promulgate such regulations as may be
appropriate to carry out the provisions of this section relating to
financial assistance to States.
(i) Appropriations
(1) To carry out the provisions of this section for fiscal years
after September 30, 1988, there shall be deposited into a special fund
known as the cooperative endangered species conservation fund, to be
administered by the Secretary, an amount equal to 5 percent of the
combined amounts covered each fiscal year into the Federal aid to
wildlife restoration fund under section 669b of this title, and paid,
transferred, or otherwise credited each fiscal year to the Sport Fishing
Restoration Account established under 1016 of the Act of July 18, 1984.
(2) Amounts deposited into the special fund are authorized to be
appropriated annually and allocated in accordance with subsection (d) of
this section.
(Pub. L. 93-205, Sec. 6, Dec. 28, 1973, 87 Stat. 889; Pub. L. 95-212,
Dec. 19, 1977, 91 Stat. 1493; Pub. L. 95-632, Sec. 10, Nov. 10, 1978, 92
Stat. 3762; Pub. L. 96-246, May 23, 1980, 94 Stat. 348; Pub. L. 97-304,
Secs. 3, 8(b), Oct. 13, 1982, 96 Stat. 1416, 1426; Pub. L. 100-478,
title I, Sec. 1005, Oct. 7, 1988, 102 Stat. 2307.)
References in Text
The Sport Fishing Restoration Account established under section 1016
of the Act of July 18, 1984, referred to in subsec. (i)(1), probably
means the Sport Fish Restoration Account established by section
9504(a)(2)(A) of Title 26, Internal Revenue Code, which section was
enacted by section 1016(a) of Pub. L. 98-369, div. A, title X, July 18,
1984, 98 Stat. 1019.
Amendments
1988--Subsec. (d)(1). Pub. L. 100-478, Sec. 1005(a), amended par.
(1) generally. Prior to amendment, par. (1) read as follows: ``The
Secretary is authorized to provide financial assistance to any State,
through its respective State agency, which has entered into a
cooperative agreement pursuant to subsection (c) of this section to
assist in development of programs for the conservation of endangered and
threatened species. The Secretary shall make an allocation of
appropriated funds to such States based on consideration of--
``(A) the international commitments of the United States to
protect endangered species or threatened species;
``(B) the readiness of a State to proceed with a conservation
program consistent with the objectives and purposes of this chapter;
``(C) the number of endangered species and threatened species
within a State;
``(D) the potential for restoring endangered species and
threatened species within a State; and
``(E) the relative urgency to initiate a program to restore and
protect an endangered species or threatened species in terms of
survival of the species.
So much of any appropriated funds allocated for obligation to any State
for any fiscal year as remains unobligated at the close thereof is
authorized to be made available to that State until the close of the
succeeding fiscal year. Any amount allocated to any State which is
unobligated at the end of the period during which it is available for
expenditure is authorized to be made available for expenditure by the
Secretary in conducting programs under this section.
Subsec. (i). Pub. L. 100-478, Sec. 1005(b), added subsec. (i).
1982--Subsec. (d)(2)(i). Pub. L. 97-304, Sec. 3(1), substituted ``75
percent for ``66\2/3\ per centum.
Subsec. (d)(2)(ii). Pub. L. 97-304, Sec. 3(2), substituted ``90
percent for ``75 per centum.
Subsec. (i). Pub. L. 97-304, Sec. 8(b), struck out subsec. (i) which
authorized appropriations to carry out this section of $10,000,000
through the period ending Sept. 30, 1977, $12,000,000 for the period
Oct. 1, 1977, through Sept. 30, 1980, and $12,000,000 for the period
Oct. 1, 1980, through Sept. 30, 1982. See section 1542(b) of this title.
1980--Subsec. (i). Pub. L. 96-246 in par. (2) substituted
``$12,000,000 for ``$16,000,000 and ``1980 for ``1981, and added
par. (3).
1978--Subsec. (c). Pub. L. 95-632 designated existing provision as
par. (1), and in par. (1) as so designated, redesignated pars. (1) to
(5) as subpars. (A) to (E), respectively, and subpars. (A) and (B) of
subpar. (E), as so redesignated, as cls. (i) and (ii), respectively,
substituted ``paragraph for ``subsection in provision preceding
subpar. (A), as so redesignated, ``endangered or threatened species of
fish or wildlife for ``endangered species or threatened species in
subpar. (D), as so redesignated, ``subparagraphs (C), (D), and (E) of
this paragraph for ``paragraphs (3), (4), and (5) of this subsection
in cl. (i) of subpar. (E), as so redesignated, ``clause (i) and this
clause for ``subparagraph (A) and this subparagraph in cl. (ii) of
subpar. (E), as so redesignated, and added par. (2).
1977--Subsec. (c). Pub. L. 95-212, Sec. 1(1), inserted provisions
that States in which the State fish and wildlife agencies do not possess
the broad authority to conserve all resident species of fish and
wildlife which the Secretary determines to be threatened or endangered
may nevertheless qualify for cooperative agreement funds if they satisfy
all other requirements and have plans to devote immediate attention to
those species most urgently in need of conservation programs.
Subsec. (i). Pub. L. 95-212, Sec. 1(2), substituted provisions
authorizing appropriations of $10,000,000 to cover the period ending
Sept. 30, 1977, and $16,000,000 to cover the period beginning Oct. 1,
1977, and ending Sept. 30, 1981, for provisions authorizing
appropriations of not to exceed $10,000,000 through the fiscal year
ending June 30, 1977.
Cooperative Agreements With States Unaffected by 1981 Amendment of
Marine Mammal Protection Act
Nothing in the amendment of section 1379 of this title by section
4(a) of Pub. L. 97-58 to be construed as affecting in any manner any
cooperative agreement entered into by a State under subsec. (c) of this
section before, on, or after Oct. 9, 1981, see section 4(b) of Pub. L.
97-58, set out as a note under section 1379 of this title.
Section Referred to in Other Sections
This section is referred to in sections 668dd, 1533, 1538, 1540,
1542, 1544 of this title.
Sec. 1536. Interagency cooperation
(a) Federal agency actions and consultations
(1) The Secretary shall review other programs administered by him
and utilize such programs in furtherance of the purposes of this
chapter. All other Federal agencies shall, in consultation with and with
the assistance of the Secretary, utilize their authorities in
furtherance of the purposes of this chapter by carrying out programs for
the conservation of endangered species and threatened species listed
pursuant to section 1533 of this title.
(2) Each Federal agency shall, in consultation with and with the
assistance of the Secretary, insure that any action authorized, funded,
or carried out by such agency (hereinafter in this section referred to
as an ``agency action) is not likely to jeopardize the continued
existence of any endangered species or threatened species or result in
the destruction or adverse modification of habitat of such species which
is determined by the Secretary, after consultation as appropriate with
affected States, to be critical, unless such agency has been granted an
exemption for such action by the Committee pursuant to subsection (h) of
this section. In fulfilling the requirements of this paragraph each
agency shall use the best scientific and commercial data available.
(3) Subject to such guidelines as the Secretary may establish, a
Federal agency shall consult with the Secretary on any prospective
agency action at the request of, and in cooperation with, the
prospective permit or license applicant if the applicant has reason to
believe that an endangered species or a threatened species may be
present in the area affected by his project and that implementation of
such action will likely affect such species.
(4) Each Federal agency shall confer with the Secretary on any
agency action which is likely to jeopardize the continued existence of
any species proposed to be listed under section 1533 of this title or
result in the destruction or adverse modification of critical habitat
proposed to be designated for such species. This paragraph does not
require a limitation on the commitment of resources as described in
subsection (d) of this section.
(b) Opinion of Secretary
(1)(A) Consultation under subsection (a)(2) of this section with
respect to any agency action shall be concluded within the 90-day period
beginning on the date on which initiated or, subject to subparagraph
(B), within such other period of time as is mutually agreeable to the
Secretary and the Federal agency.
(B) In the case of an agency action involving a permit or license
applicant, the Secretary and the Federal agency may not mutually agree
to conclude consultation within a period exceeding 90 days unless the
Secretary, before the close of the 90th day referred to in subparagraph
(A)--
(i) if the consultation period proposed to be agreed to will end
before the 150th day after the date on which consultation was
initiated, submits to the applicant a written statement setting
forth--
(I) the reasons why a longer period is required,
(II) the information that is required to complete the
consultation, and
(III) the estimated date on which consultation will be
completed; or
(ii) if the consultation period proposed to be agreed to will
end 150 or more days after the date on which consultation was
initiated, obtains the consent of the applicant to such period.
The Secretary and the Federal agency may mutually agree to extend a
consultation period established under the preceding sentence if the
Secretary, before the close of such period, obtains the consent of the
applicant to the extension.
(2) Consultation under subsection (a)(3) of this section shall be
concluded within such period as is agreeable to the Secretary, the
Federal agency, and the applicant concerned.
(3)(A) Promptly after conclusion of consultation under paragraph (2)
or (3) of subsection (a) of this section, the Secretary shall provide to
the Federal agency and the applicant, if any, a written statement
setting forth the Secretarys opinion, and a summary of the information
on which the opinion is based, detailing how the agency action affects
the species or its critical habitat. If jeopardy or adverse modification
is found, the Secretary shall suggest those reasonable and prudent
alternatives which he believes would not violate subsection (a)(2) of
this section and can be taken by the Federal agency or applicant in
implementing the agency action.
(B) Consultation under subsection (a)(3) of this section, and an
opinion issued by the Secretary incident to such consultation, regarding
an agency action shall be treated respectively as a consultation under
subsection (a)(2) of this section, and as an opinion issued after
consultation under such subsection, regarding that action if the
Secretary reviews the action before it is commenced by the Federal
agency and finds, and notifies such agency, that no significant changes
have been made with respect to the action and that no significant change
has occurred regarding the information used during the initial
consultation.
(4) If after consultation under subsection (a)(2) of this section,
the Secretary concludes that--
(A) the agency action will not violate such subsection, or
offers reasonable and prudent alternatives which the Secretary
believes would not violate such subsection;
(B) the taking of an endangered species or a threatened species
incidental to the agency action will not violate such subsection;
and
(C) if an endangered species or threatened species of a marine
mammal is involved, the taking is authorized pursuant to section
1371(a)(5) of this title;
the Secretary shall provide the Federal agency and the applicant
concerned, if any, with a written statement that--
(i) specifies the impact of such incidental taking on the
species,
(ii) specifies those reasonable and prudent measures that the
Secretary considers necessary or appropriate to minimize such
impact,
(iii) in the case of marine mammals, specifies those measures
that are necessary to comply with section 1371(a)(5) of this title
with regard to such taking, and
(iv) sets forth the terms and conditions (including, but not
limited to, reporting requirements) that must be complied with by
the Federal agency or applicant (if any), or both, to implement the
measures specified under clauses (ii) and (iii).
(c) Biological assessment
(1) To facilitate compliance with the requirements of subsection
(a)(2) of this section, each Federal agency shall, with respect to any
agency action of such agency for which no contract for construction has
been entered into and for which no construction has begun on November
10, 1978, request of the Secretary information whether any species which
is listed or proposed to be listed may be present in the area of such
proposed action. If the Secretary advises, based on the best scientific
and commercial data available, that such species may be present, such
agency shall conduct a biological assessment for the purpose of
identifying any endangered species or threatened species which is likely
to be affected by such action. Such assessment shall be completed within
180 days after the date on which initiated (or within such other period
as is mutually agreed to by the Secretary and such agency, except that
if a permit or license applicant is involved, the 180-day period may not
be extended unless such agency provides the applicant, before the close
of such period, with a written statement setting forth the estimated
length of the proposed extension and the reasons therefor) and, before
any contract for construction is entered into and before construction is
begun with respect to such action. Such assessment may be undertaken as
part of a Federal agencys compliance with the requirements of section
102 of the National Environmental Policy Act of 1969 (42 U.S.C. 4332).
(2) Any person who may wish to apply for an exemption under
subsection (g) of this section for that action may conduct a biological
assessment to identify any endangered species or threatened species
which is likely to be affected by such action. Any such biological
assessment must, however, be conducted in cooperation with the Secretary
and under the supervision of the appropriate Federal agency.
(d) Limitation on commitment of resources
After initiation of consultation required under subsection (a)(2) of
this section, the Federal agency and the permit or license applicant
shall not make any irreversible or irretrievable commitment of resources
with respect to the agency action which has the effect of foreclosing
the formulation or implementation of any reasonable and prudent
alternative measures which would not violate subsection (a)(2) of this
section.
(e) Endangered Species Committee
(1) There is established a committee to be known as the Endangered
Species Committee (hereinafter in this section referred to as the
``Committee).
(2) The Committee shall review any application submitted to it
pursuant to this section and determine in accordance with subsection (h)
of this section whether or not to grant an exemption from the
requirements of subsection (a)(2) of this section for the action set
forth in such application.
(3) The Committee shall be composed of seven members as follows:
(A) The Secretary of Agriculture.
(B) The Secretary of the Army.
(C) The Chairman of the Council of Economic Advisors.
(D) The Administrator of the Environmental Protection Agency.
(E) The Secretary of the Interior.
(F) The Administrator of the National Oceanic and Atmospheric
Administration.
(G) The President, after consideration of any recommendations
received pursuant to subsection (g)(2)(B) of this section shall
appoint one individual from each affected State, as determined by
the Secretary, to be a member of the Committee for the consideration
of the application for exemption for an agency action with respect
to which such recommendations are made, not later than 30 days after
an application is submitted pursuant to this section.
(4)(A) Members of the Committee shall receive no additional pay on
account of their service on the Committee.
(B) While away from their homes or regular places of business in the
performance of services for the Committee, members of the Committee
shall be allowed travel expenses, including per diem in lieu of
subsistence, in the same manner as persons employed intermittently in
the Government service are allowed expenses under section 5703 of title
5.
(5)(A) Five members of the Committee or their representatives shall
constitute a quorum for the transaction of any function of the
Committee, except that, in no case shall any representative be
considered in determining the existence of a quorum for the transaction
of any function of the Committee if that function involves a vote by the
Committee on any matter before the Committee.
(B) The Secretary of the Interior shall be the Chairman of the
Committee.
(C) The Committee shall meet at the call of the Chairman or five of
its members.
(D) All meetings and records of the Committee shall be open to the
public.
(6) Upon request of the Committee, the head of any Federal agency is
authorized to detail, on a nonreimbursable basis, any of the personnel
of such agency to the Committee to assist it in carrying out its duties
under this section.
(7)(A) The Committee may for the purpose of carrying out its duties
under this section hold such hearings, sit and act at such times and
places, take such testimony, and receive such evidence, as the Committee
deems advisable.
(B) When so authorized by the Committee, any member or agent of the
Committee may take any action which the Committee is authorized to take
by this paragraph.
(C) Subject to the Privacy Act [5 U.S.C. 552a], the Committee may
secure directly from any Federal agency information necessary to enable
it to carry out its duties under this section. Upon request of the
Chairman of the Committee, the head of such Federal agency shall furnish
such information to the Committee.
(D) The Committee may use the United States mails in the same manner
and upon the same conditions as a Federal agency.
(E) The Administrator of General Services shall provide to the
Committee on a reimbursable basis such administrative support services
as the Committee may request.
(8) In carrying out its duties under this section, the Committee may
promulgate and amend such rules, regulations, and procedures, and issue
and amend such orders as it deems necessary.
(9) For the purpose of obtaining information necessary for the
consideration of an application for an exemption under this section the
Committee may issue subpenas for the attendance and testimony of
witnesses and the production of relevant papers, books, and documents.
(10) In no case shall any representative, including a representative
of a member designated pursuant to paragraph (3)(G) of this subsection,
be eligible to cast a vote on behalf of any member.
(f) Promulgation of regulations; form and contents of exemption
application
Not later than 90 days after November 10, 1978, the Secretary shall
promulgate regulations which set forth the form and manner in which
applications for exemption shall be submitted to the Secretary and the
information to be contained in such applications. Such regulations shall
require that information submitted in an application by the head of any
Federal agency with respect to any agency action include, but not be
limited to--
(1) a description of the consultation process carried out
pursuant to subsection (a)(2) of this section between the head of
the Federal agency and the Secretary; and
(2) a statement describing why such action cannot be altered or
modified to conform with the requirements of subsection (a)(2) of
this section.
(g) Application for exemption; report to Committee
(1) A Federal agency, the Governor of the State in which an agency
action will occur, if any, or a permit or license applicant may apply to
the Secretary for an exemption for an agency action of such agency if,
after consultation under subsection (a)(2) of this section, the
Secretarys opinion under subsection (b) of this section indicates that
the agency action would violate subsection (a)(2) of this section. An
application for an exemption shall be considered initially by the
Secretary in the manner provided for in this subsection, and shall be
considered by the Committee for a final determination under subsection
(h) of this section after a report is made pursuant to paragraph (5).
The applicant for an exemption shall be referred to as the ``exemption
applicant in this section.
(2)(A) An exemption applicant shall submit a written application to
the Secretary, in a form prescribed under subsection (f) of this
section, not later than 90 days after the completion of the consultation
process; except that, in the case of any agency action involving a
permit or license applicant, such application shall be submitted not
later than 90 days after the date on which the Federal agency concerned
takes final agency action with respect to the issuance of the permit or
license. For purposes of the preceding sentence, the term ``final agency
action means (i) a disposition by an agency with respect to the
issuance of a permit or license that is subject to administrative
review, whether or not such disposition is subject to judicial review;
or (ii) if administrative review is sought with respect to such
disposition, the decision resulting after such review. Such application
shall set forth the reasons why the exemption applicant considers that
the agency action meets the requirements for an exemption under this
subsection.
(B) Upon receipt of an application for exemption for an agency
action under paragraph (1), the Secretary shall promptly (i) notify the
Governor of each affected State, if any, as determined by the Secretary,
and request the Governors so notified to recommend individuals to be
appointed to the Endangered Species Committee for consideration of such
application; and (ii) publish notice of receipt of the application in
the Federal Register, including a summary of the information contained
in the application and a description of the agency action with respect
to which the application for exemption has been filed.
(3) The Secretary shall within 20 days after the receipt of an
application for exemption, or within such other period of time as is
mutually agreeable to the exemption applicant and the Secretary--
(A) determine that the Federal agency concerned and the
exemption applicant have--
(i) carried out the consultation responsibilities described
in subsection (a) of this section in good faith and made a
reasonable and responsible effort to develop and fairly consider
modifications or reasonable and prudent alternatives to the
proposed agency action which would not violate subsection (a)(2)
of this section;
(ii) conducted any biological assessment required by
subsection (c) of this section; and
(iii) to the extent determinable within the time provided
herein, refrained from making any irreversible or irretrievable
commitment of resources prohibited by subsection (d) of this
section; or
(B) deny the application for exemption because the Federal
agency concerned or the exemption applicant have not met the
requirements set forth in subparagraph (A)(i), (ii), and (iii).
The denial of an application under subparagraph (B) shall be considered
final agency action for purposes of chapter 7 of title 5.
(4) If the Secretary determines that the Federal agency concerned
and the exemption applicant have met the requirements set forth in
paragraph (3)(A)(i), (ii), and (iii) he shall, in consultation with the
Members of the Committee, hold a hearing on the application for
exemption in accordance with sections 554, 555, and 556 (other than
subsection (b)(1) and (2) thereof) of title 5 and prepare the report to
be submitted pursuant to paragraph (5).
(5) Within 140 days after making the determinations under paragraph
(3) or within such other period of time as is mutually agreeable to the
exemption applicant and the Secretary, the Secretary shall submit to the
Committee a report discussing--
(A) the availability of reasonable and prudent alternatives to
the agency action, and the nature and extent of the benefits of the
agency action and of alternative courses of action consistent with
conserving the species or the critical habitat;
(B) a summary of the evidence concerning whether or not the
agency action is in the public interest and is of national or
regional significance;
(C) appropriate reasonable mitigation and enhancement measures
which should be considered by the Committee; and
(D) whether the Federal agency concerned and the exemption
applicant refrained from making any irreversible or irretrievable
commitment of resources prohibited by subsection (d) of this
section.
(6) To the extent practicable within the time required for action
under subsection (g) of this section, and except to the extent
inconsistent with the requirements of this section, the consideration of
any application for an exemption under this section and the conduct of
any hearing under this subsection shall be in accordance with sections
554, 555, and 556 (other than subsection (b)(3) of section 556) of title
5.
(7) Upon request of the Secretary, the head of any Federal agency is
authorized to detail, on a nonreimbursable basis, any of the personnel
of such agency to the Secretary to assist him in carrying out his duties
under this section.
(8) All meetings and records resulting from activities pursuant to
this subsection shall be open to the public.
(h) Grant of exemption
(1) The Committee shall make a final determination whether or not to
grant an exemption within 30 days after receiving the report of the
Secretary pursuant to subsection (g)(5) of this section. The Committee
shall grant an exemption from the requirements of subsection (a)(2) of
this section for an agency action if, by a vote of not less than five of
its members voting in person--
(A) it determines on the record, based on the report of the
Secretary, the record of the hearing held under subsection (g)(4) of
this section and on such other testimony or evidence as it may
receive, that--
(i) there are no reasonable and prudent alternatives to the
agency action;
(ii) the benefits of such action clearly outweigh the
benefits of alternative courses of action consistent with
conserving the species or its critical habitat, and such action
is in the public interest;
(iii) the action is of regional or national significance;
and
(iv) neither the Federal agency concerned nor the exemption
applicant made any irreversible or irretrievable commitment of
resources prohibited by subsection (d) of this section; and
(B) it establishes such reasonable mitigation and enhancement
measures, including, but not limited to, live propagation,
transplantation, and habitat acquisition and improvement, as are
necessary and appropriate to minimize the adverse effects of the
agency action upon the endangered species, threatened species, or
critical habitat concerned.
Any final determination by the Committee under this subsection shall be
considered final agency action for purposes of chapter 7 of title 5.
(2)(A) Except as provided in subparagraph (B), an exemption for an
agency action granted under paragraph (1) shall constitute a permanent
exemption with respect to all endangered or threatened species for the
purposes of completing such agency action--
(i) regardless whether the species was identified in the
biological assessment; and
(ii) only if a biological assessment has been conducted under
subsection (c) of this section with respect to such agency action.
(B) An exemption shall be permanent under subparagraph (A) unless--
(i) the Secretary finds, based on the best scientific and
commercial data available, that such exemption would result in the
extinction of a species that was not the subject of consultation
under subsection (a)(2) of this section or was not identified in any
biological assessment conducted under subsection (c) of this
section, and
(ii) the Committee determines within 60 days after the date of
the Secretarys finding that the exemption should not be permanent.
If the Secretary makes a finding described in clause (i), the Committee
shall meet with respect to the matter within 30 days after the date of
the finding.
(i) Review by Secretary of State; violation of international treaty or
other international obligation of United States
Notwithstanding any other provision of this chapter, the Committee
shall be prohibited from considering for exemption any application made
to it, if the Secretary of State, after a review of the proposed agency
action and its potential implications, and after hearing, certifies, in
writing, to the Committee within 60 days of any application made under
this section that the granting of any such exemption and the carrying
out of such action would be in violation of an international treaty
obligation or other international obligation of the United States. The
Secretary of State shall, at the time of such certification, publish a
copy thereof in the Federal Register.
(j) Exemption for national security reasons
Notwithstanding any other provision of this chapter, the Committee
shall grant an exemption for any agency action if the Secretary of
Defense finds that such exemption is necessary for reasons of national
security.
(k) Exemption decision not considered major Federal action;
environmental impact statement
An exemption decision by the Committee under this section shall not
be a major Federal action for purposes of the National Environmental
Policy Act of 1969 [42 U.S.C. 4321 et seq.]: Provided, That an
environmental impact statement which discusses the impacts upon
endangered species or threatened species or their critical habitats
shall have been previously prepared with respect to any agency action
exempted by such order.
(l) Committee order granting exemption; cost of mitigation and
enhancement measures; report by applicant to Council on
Environmental Quality
(1) If the Committee determines under subsection (h) of this section
that an exemption should be granted with respect to any agency action,
the Committee shall issue an order granting the exemption and specifying
the mitigation and enhancement measures established pursuant to
subsection (h) of this section which shall be carried out and paid for
by the exemption applicant in implementing the agency action. All
necessary mitigation and enhancement measures shall be authorized prior
to the implementing of the agency action and funded concurrently with
all other project features.
(2) The applicant receiving such exemption shall include the costs
of such mitigation and enhancement measures within the overall costs of
continuing the proposed action. Notwithstanding the preceding sentence
the costs of such measures shall not be treated as project costs for the
purpose of computing benefit-cost or other ratios for the proposed
action. Any applicant may request the Secretary to carry out such
mitigation and enhancement measures. The costs incurred by the Secretary
in carrying out any such measures shall be paid by the applicant
receiving the exemption. No later than one year after the granting of an
exemption, the exemption applicant shall submit to the Council on
Environmental Quality a report describing its compliance with the
mitigation and enhancement measures prescribed by this section. Such a
report shall be submitted annually until all such mitigation and
enhancement measures have been completed. Notice of the public
availability of such reports shall be published in the Federal Register
by the Council on Environmental Quality.
(m) Notice requirement for citizen suits not applicable
The 60-day notice requirement of section 1540(g) of this title shall
not apply with respect to review of any final determination of the
Committee under subsection (h) of this section granting an exemption
from the requirements of subsection (a)(2) of this section.
(n) Judicial review
Any person, as defined by section 1532(13) of this title, may obtain
judicial review, under chapter 7 of title 5, of any decision of the
Endangered Species Committee under subsection (h) of this section in the
United States Court of Appeals for (1) any circuit wherein the agency
action concerned will be, or is being, carried out, or (2) in any case
in which the agency action will be, or is being, carried out outside of
any circuit, the District of Columbia, by filing in such court within 90
days after the date of issuance of the decision, a written petition for
review. A copy of such petition shall be transmitted by the clerk of the
court to the Committee and the Committee shall file in the court the
record in the proceeding, as provided in section 2112 of title 28.
Attorneys designated by the Endangered Species Committee may appear for,
and represent the Committee in any action for review under this
subsection.
(o) Exemption as providing exception on taking of endangered species
Notwithstanding sections 1533(d) and 1538(a)(1)(B) and (C) of this
title, sections 1371 and 1372 of this title, or any regulation
promulgated to implement any such section--
(1) any action for which an exemption is granted under
subsection (h) of this section shall not be considered to be a
taking of any endangered species or threatened species with respect
to any activity which is necessary to carry out such action; and
(2) any taking that is in compliance with the terms and
conditions specified in a written statement provided under
subsection (b)(4)(iv) of this section shall not be considered to be
a prohibited taking of the species concerned.
(p) Exemptions in Presidentially declared disaster areas
In any area which has been declared by the President to be a major
disaster area under the Disaster Relief and Emergency Assistance Act [42
U.S.C. 5121 et seq.], the President is authorized to make the
determinations required by subsections (g) and (h) of this section for
any project for the repair or replacement of a public facility
substantially as it existed prior to the disaster under section 405 or
406 of the Disaster Relief and Emergency Assistance Act [42 U.S.C. 5171
or 5172], and which the President determines (1) is necessary to prevent
the recurrence of such a natural disaster and to reduce the potential
loss of human life, and (2) to involve an emergency situation which does
not allow the ordinary procedures of this section to be followed.
Notwithstanding any other provision of this section, the Committee shall
accept the determinations of the President under this subsection.
(Pub. L. 93-205, Sec. 7, Dec. 28, 1973, 87 Stat. 892; Pub. L. 95-632,
Sec. 3, Nov. 10, 1978, 92 Stat. 3752; Pub. L. 96-159, Sec. 4, Dec. 28,
1979, 93 Stat. 1226; Pub. L. 97-304, Secs. 4(a), 8(b), Oct. 13, 1982, 96
Stat. 1417, 1426; Pub. L. 99-659, title IV, Sec. 411(b), (c), Nov. 14,
1986, 100 Stat. 3741, 3742; Pub. L. 100-707, title I, Sec. 109(g), Nov.
23, 1988, 102 Stat. 4709.)
References in Text
The Privacy Act, referred to in subsec. (e)(7)(C), is Pub. L. 93-
579, Dec. 31, 1974, 88 Stat. 1896, as amended, which enacted section
552a of Title 5, Government Organization and Employees, and provisions
set out as notes under section 552a of Title 5. For complete
classification of this Act to the Code, see Short Title note set out
under section 552a of Title 5 and Tables.
The National Environmental Policy Act of 1969, referred to in
subsec. (k), is Pub. L. 91-190, Jan. 1, 1970, 83 Stat. 852, as amended,
which is classified generally to chapter 55 (Sec. 4321 et seq.) of Title
42, The Public Health and Welfare. For complete classification of this
Act to the Code, see Short Title note set out under section 4321 of
Title 42 and Tables.
The Disaster Relief and Emergency Assistance Act, referred to in
subsec. (p), is Pub. L. 93-288, May 22, 1974, 88 Stat. 143, as amended,
known as the Robert T. Stafford Disaster Relief and Emergency Assistance
Act, which is classified principally to chapter 68 (Sec. 5121 et seq.)
of Title 42. For complete classification of this Act to the Code, see
Short Title note set out under section 5121 of Title 42 and Tables.
Amendments
1988--Subsec. (p). Pub. L. 100-707 substituted ``the Disaster Relief
and Emergency Assistance Act for ``the Disaster Relief Act of 1974
and ``section 405 or 406 of the Disaster Relief and Emergency Assistance
Act for ``section 401 or 402 of the Disaster Relief Act of 1974.
1986--Subsec. (b)(4)(C). Pub. L. 99-659, Sec. 411(b)(1)-(3), added
subpar. (C).
Subsec. (b)(4)(iii), (iv). Pub. L. 99-659, Sec. 411(b)(4)-(6), added
cl. (iii), redesignated former cl. (iii) as (iv), and in cl. (iv), as so
redesignated, inserted reference to cl. (iii).
Subsec. (o). Pub. L. 99-659, Sec. 411(c)(1), in introductory
provisions, inserted ``, sections 1371 and 1372 of this title,, and
substituted ``any for ``either after ``implement.
Subsec. (o)(2). Pub. L. 99-659, Sec. 411(c)(2), substituted
``subsection (b)(4)(iv) for ``subsection (b)(4)(iii) and inserted
``prohibited before ``taking of the species.
1982--Subsec. (a)(3), (4). Pub. L. 97-304, Sec. 4(a)(1), added par.
(3) and redesignated former par. (3) as (4).
Subsec. (b). Pub. L. 97-304, Sec. 4(a)(2), incorporated existing
provisions into pars. (1)(A) and (3)(A) and added pars. (1)(B), (2),
(3)(B), and (4).
Subsec. (c)(1). Pub. L. 97-304, Sec. 4(a)(3), inserted ``, except
that if a permit or license applicant is involved, the 180-day period
may not be extended unless such agency provides the applicant, before
the close of such period, with a written statement setting forth the
estimated length of the proposed extension and the reasons therefor
after ``agency in parenthetical provision.
Subsec. (e)(10). Pub. L. 97-304, Sec. 4(a)(4), struck out provision
that, except in the case of a member designated pursuant to paragraph
(3)(G) of this subsection, no member could designate any person to serve
as his or her representative unless that person was, at the time of such
designation, holding a Federal office the appointment to which was
subject to the advice and consent of the United States Senate.
Subsec. (g)(1). Pub. L. 97-304, Sec. 4(a)(5)(B), substituted ``An
application for an exemption shall be considered initially by the
Secretary in the manner provided for in this subsection, and shall be
considered by the Committee for a final determination under subsection
(h) of this section after a report is made pursuant to paragraph (5)
for ``An application for an exemption shall be considered initially by a
review board in the manner provided in this subsection, and shall be
considered by the Endangered Species Committee for a final determination
under subsection (h) of this section after a report is made by the
review board.
Subsec. (g)(2)(A). Pub. L. 97-304, Sec. 4(a)(5)(C)(i), substituted
``An exemption applicant shall submit a written application to the
Secretary, in a form prescribed under subsection (f) of this section,
not later than 90 days after the completion of the consultation process;
except that, in the case of any agency action involving a permit or
license applicant, such application shall be submitted not later than 90
days after the date on which the Federal agency concerned takes final
agency action with respect to the issuance of the permit or license
for ``An exemption applicant shall submit a written application to the
Secretary, in a form prescribed under subsection (f) of this section,
not later than 90 days after the completion of the consultation process;
or, in the case of any agency action involving a permit or license
applicant, not later than 90 days after the date on which the Federal
agency concerned takes final agency action, for purposes of chapter 7 of
title 5, with respect to the issuance of the permit or license and
inserted provision that, ``For purposes of the preceding sentence, the
term `final agency action means (i) a disposition by an agency with
respect to the issuance of a permit or license that is subject to
administrative review, whether or not such disposition is subject to
judicial review; or (ii) if administrative review is sought with respect
to such disposition, the decision resulting after such review.
Subsec. (g)(2)(B). Pub. L. 97-304, Sec. 4(a)(5)(C)(ii), inserted
``(i) after ``the Secretary shall promptly, struck out ``to the
review board to be established under paragraph (3) and after
``individuals to be appointed in cl. (i) as so designated, and added
cl. (ii).
Subsec. (g)(3). Pub. L. 97-304, Sec. 4(a)(5)(D), (E), redesignated
par. (5) as (3) and substituted provisions directing the Secretary,
within 20 days after the receipt of an application for exemption, or
within such other period of time as is mutually agreeable to the
exemption applicant and the Secretary, to (A) determine that the Federal
agency concerned and the exemption applicant have (i) carried out the
consultation responsibilities described in subsection (a) of this
section in good faith and made a reasonable and responsible effort to
develop and fairly consider modifications or reasonable and prudent
alternatives to the proposed agency action which would not violate
subsection (a)(2) of this section, (ii) conducted any biological
assessment required by subsection (c) of this section, and (iii) to the
extent determinable within the time provided herein, refrained from
making any irreversible or irretrievable commitment of resources
prohibited by subsection (d) of this section, or (B) deny the
application for exemption because the Federal agency concerned or the
exemption applicant have not met the requirements set forth in
subparagraph (A)(i), (ii), and (iii), and providing that the denial of
an application under subparagraph (B) shall be considered final agency
action for purposes of chapter 7 of title 5, for provisions placing upon
the review board appointed under former par. (3) the duty to make a full
review of the consultation carried out under subsection (a)(2) of this
section, and within 60 days after its appointment or within such longer
time as was mutually agreed upon between the exemption applicant and the
Secretary, to make a determination, by a majority vote, (A) whether an
irresolvable conflict existed and (B) whether the Federal agency
concerned and such exemption applicant had (i) carried out its
consultation responsibilities as described in subsection (a) of this
section in good faith and made a reasonable and responsible effort to
develop and fairly consider modifications or reasonable and prudent
alternatives to the proposed agency action which would not violate
subsection (a)(2) of this section, (ii) conducted any biological
assessment required of it by subsection (c) of this section, and (iii)
refrained from making any irreversible or irretrievable commitment of
resources prohibited by subsection (d) of this section, and providing
that any determination by the review board that an irresolvable conflict
did not exist or that the Federal agency concerned or the exemption
applicant had not met its respective requirements under subclause (i),
(ii), or (iii) was to be considered final agency action for purposes of
chapter 7 of title 5. Former par. (3), providing for the establishment
and functions of a review board to consider applications for exemptions
and to submit reports to the Endangered Species Committee, was struck
out.
Subsec. (g)(4). Pub. L. 97-304, Sec. 4(a)(5)(D), (F), redesignated
par. (6) as (4) and substituted ``If the Secretary determines that the
Federal agency concerned and the exemption applicant have met the
requirements set forth in paragraph (3)(A)(i), (ii), and (iii) he shall,
in consultation with the Members of the Committee, hold a hearing on the
application for exemption in accordance with sections 554, 555, and 556
(other than subsection (b)(1) and (2) thereof) of title 5 and prepare
the report to be submitted pursuant to paragraph (5) for ``If the
review board determines that an irresolvable conflict exists and makes
positive determinations under subclauses (i), (ii), and (iii) of
paragraph (5), it shall proceed to prepare the report to be submitted
under paragraph (7). Former par. (4), directing the Secretary to
submit the application to the review board immediately after its
appointment under paragraph (3), and to submit to the review board, in
writing, his views and recommendations with respect to the application
within 60 days after receiving a copy of any application under paragraph
(2), was struck out.
Subsec. (g)(5). Pub. L. 97-304, Sec. 4(a)(5)(G), redesignated par.
(7) as (5) and substituted ``Within 140 days after making the
determinations under paragraph (3) or within such other period of time
as is mutually agreeable to the exemption applicant and the Secretary,
the Secretary shall submit for ``Within 180 days after making the
determinations under paragraph (6), the review board shall submit in
the provisions preceding subpar. (A), and added subpar. (D). Former par.
(5) redesignated (3) and amended.
Subsec. (g)(6). Pub. L. 97-304, Sec. 4(a)(5)(H), redesignated par.
(8) as (6). Former par. (6) redesignated (4) and amended.
Subsec. (g)(7). Pub. L. 97-304, Sec. 4(a)(5)(I), redesignated par.
(10) as (7) and substituted ``Upon request of the Secretary, the head of
any Federal agency is authorized to detail, on a nonreimbursable basis,
any of the personnel of such agency to the Secretary to assist him in
carrying out his duties under this section for ``Upon request of a
review board, the head of any Federal agency is authorized to detail, on
a nonreimbursable basis, any of the personnel of such agency to the
review board to assist it in carry out its duties under this section.
Former par. (7) redesignated (5) and amended.
Subsec. (g)(8). Pub. L. 97-304, Sec. 4(a)(5)(J), redesignated par.
(12) as (8) and substituted ``records resulting from activities pursuant
to this subsection for ``records of review boards. Former par. (8)
redesignated (6).
Subsec. (g)(9). Pub. L. 97-304, Sec. 4(a)(5)(D), struck out par. (9)
which had provided that the review board, in carrying out its duties,
could (A) sit and act at such times and places, take such testimony, and
receive such evidence, as the review board deemed advisable, (B) subject
to the Privacy Act of 1974 [5 U.S.C. 552a], request of any Federal
agency or applicant information necessary to enable it to carry out such
duties, and upon such request the head of such Federal agency would
furnish such information to the review board, and (C) use the United
States mails in the same manner and upon the same conditions as a
Federal agency.
Subsec. (g)(10). Pub. L. 97-304, Sec. 4(a)(5)(I), redesignated par.
(10) as (7).
Subsec. (g)(11). Pub. L. 97-304, Sec. 4(a)(5)(D), struck out par.
(11) which had provided that the Administrator of the General Services
Administration provide to a review board, on a reimbursable basis, such
administrative support services as the review board requested.
Subsec. (g)(12). Pub. L. 97-304, Sec. 4(a)(5)(J), redesignated par.
(12) as (8).
Subsec. (h)(1). Pub. L. 97-304, Sec. 4(a)(6), substituted ``within
30 days after receiving the report of the Secretary pursuant to
subsection (g)(5) of this section for ``within 90 days of receiving
the report of the review board under subsection (g)(7) of this section
in provisions preceding subpar. (A), substituted ``report of the
Secretary, the record of the hearing held under subsection (g)(4) of
this section and on such other testimony for ``report of the review
board and on such other testimony in subpar. (A) preceding cl. (i),
and added cl. (iv).
Subsec. (o). Pub. L. 97-304, Sec. 4(a)(7), substituted
``Notwithstanding sections 1533(d) and 1538(a)(1)(B) and (C) of this
title or any regulation promulgated to implement either such section (1)
any action for which an exemption is granted under subsection (h) of
this section shall not be considered to be a taking of any endangered
species or threatened species with respect to any activity which is
necessary to carry out such action; and (2) any taking that is in
compliance with the terms and conditions specified in a written
statement provided under subsection (b)(4)(iii) of this section shall
not be considered to be a taking of the species concerned for
``Notwithstanding sections 1533(d) and 1538(a) of this title or any
regulations promulgated pursuant to such sections, any action for which
an exemption is granted under subsection (h) of this section shall not
be considered a taking of any endangered or threatened species with
respect to any activity which is necessary to carry out such action.
Subsec. (q). Pub. L. 97-304, Sec. 8(b), struck out subsec. (q) which
authorized appropriations of $600,000 for each of fiscal years 1979,
1980, 1981, and 1982 in carrying out functions under subsecs. (e), (f),
(g), and (h) of this section. See section 1542(c) of this title.
1979--Subsec. (a). Pub. L. 96-159, Sec. 4(1), designated existing
provisions as par. (1); struck out third sentence requirement that each
Federal agency, in consultation with and with the assistance of the
Secretary, insure that any action authorized, funded, or carried out by
such agency (referred to as ``agency action) did not jeopardize the
continued existence of any endangered species or threatened species or
result in the destruction or adverse modification of habitat of such
species which was determined by the Secretary, after consultation as
appropriate with the affected States, to be critical, unless the agency
was granted an exemption for such action by the Committee pursuant to
subsec. (h) of this section; and added pars. (2) and (3), incorporating
former third sentence provisions.
Subsec. (b). Pub. L. 96-159, Sec. 4(2), (3), substituted ``he
believes would not violate subsection (a)(2) of this section and for
``he believes would avoid jeopardizing the continued existence of any
endangered or threatened species or adversely modifying the critical
habitat of such species, and which before ``can be taken and
introductory ``subsection (a)(2) of this section for ``subsection (a)
of this section.
Subsec. (c). Pub. L. 96-159, Sec. 4(3), (4), substituted
``subsection (a)(2) for ``subsec. (a) of this section, designated
existing provisions as so amended par. (1), and added par. (2).
Subsec. (d). Pub. L. 96-159, Sec. 4(3), (5), substituted
introductory words ``subsection (a)(2) for ``subsection (a) of this
section and ``alternative measures which would not violate subsection
(a)(2) of this section for ``alternative measures which would avoid
jeopardizing the continued existence of any endangered or threatened
species or adversely modifying or destroying the critical habitat of any
such species.
Subsecs. (e)(2), (f). Pub. L. 96-159, Sec. 4(3), substituted
``subsection (a)(2) for ``subsection (a).
Subsec. (g)(1). Pub. L. 96-159, Sec. 4(3), (6), substituted in first
sentence ``subsection (a)(2) for ``subsection (a) of this section
and ``agency action would violate subsection (a)(2) of this section
for ``agency action may jeopardize the continued existence of any
endangered or threatened species or destroy or adversely modify the
critical habitat of such species.
Subsec. (g)(2)(A). Pub. L. 96-159, Sec. 4(7), required exemption
applicant, to submit a written application, in the case of any agency
action involving a permit or license applicant, not later than 90 days
after the date on which the Federal agency concerned takes final agency
action, for purposes of chapter 7 of Title 5, with respect to the
issuance of the permit or license.
Subsec. (g)(3). Pub. L. 96-159, Sec. 4(8), added subpar. (B), and
redesignated former subpar. (B) as (C).
Subsec. (g)(5). Pub. L. 96-159, Sec. 4(3), (9), substituted in
introductory text and cl. (i) ``subsection (a)(2) for ``subsection
(a) of this section; redesignated as cls. (A) and (B) former cls. (i)
and (ii); inserted in cl. (B) ``the Federal agency concerned and
before ``such exemption applicant; redesignated as subcls. (i) to
(iii) former subcls. (A) to (C); substituted in subcl. (i) ``agency
action which would not violate subsection (a)(2) of this section for
``agency action which will avoid jeopardizing the continued existence of
an endangered or threatened species or result in the adverse
modification or destruction of a critical habitat; and substituted in
last sentence ``the Federal agency concerned or the exemption applicant
has not met its respective requirements under subclause (i), (ii), or
(iii) for ``the exemption applicant has not met the requirements of
subparagraph (A), (B), or (C) preceding ``shall be considered final
agency action.
Subsec. (g)(6). Pub. L. 96-159, Sec. 4(10), substituted ``subclauses
(i), (ii), and (iii) for ``subparagraphs (A), (B), and (C) of
paragraph (5).
Subsec. (h)(1). Pub. L. 96-159, Sec. 4(3), substituted ``subsection
(a)(2) for ``subsection (a) of this section.
Subsec. (h)(2). Pub. L. 96-159, Sec. 4(11), in subpar. (A),
substituted ``paragraph (1) for ``subsection (h) of this section,
inserted cl. (i), incorporated existing provisions in text designated
cl. (ii), inserting thereto ``with respect to such agency action; in
subpar. (B), incorporated existing provision in cl. (i), inserted
findings provision respecting the extinction of a species that was not:
the subject of consultation or identified in any biological assessment
under subsec. (a)(2) or (c) of this section, added cl. (ii), deleted
prior requirement for a Committee determination within 30 days of the
Secretarys finding that an exemption would result in extinction of the
species whether to grant an exemption for the agency notwithstanding
such finding, and superseded the same with requirement that the
Committee meet with respect to the matter within 30 days after the date
of such a finding.
Subsec. (m). Pub. L. 96-159, Sec. 4(3), substituted ``subsection
(a)(2) for ``subsection (a) of this section.
Subsec. (q). Pub. L. 96-159, Sec. 4(12), authorized appropriations
of $600,000 for fiscal years 1980 through 1982, and deleted
appropriations authorization of $300,000 for period beginning Oct. 1,
1979, and ending Mar. 3, 1980, and requirement that the Chairman of the
Committee report to the Congress before end of fiscal year 1979 with
respect to adequacy of the budget authority.
1978--Subsec. (a). Pub. L. 95-632 designated existing provision as
subsec. (a), inserted reference to agency action, substituted ``adverse
modification for ``modification, and provided for the grant of an
exemption for agency action by the Endangered Species Committee pursuant
to subsec. (h) of this section.
Subsecs. (b) to (q). Pub. L. 95-632 added subsecs. (b) to (q).
Deferral of Agency Action
Pub. L. 105-18, title II, Sec. 3003, June 12, 1997, 111 Stat. 176,
provided that:
``(a) Consultation and Conferencing.--As provided by regulations
issued under the Endangered Species Act (16 U.S.C. 1531 et seq.) for
emergency situations, formal consultation or conferencing under section
7(a)(2) or section 7(a)(4) of the Act [16 U.S.C. 1536(a)(2), (4)] for
any action authorized, funded or carried out by any Federal agency to
repair a Federal or non-Federal flood control project, facility or
structure may be deferred by the Federal agency authorizing, funding or
carrying out the action, if the agency determines that the repair is
needed to respond to an emergency causing an imminent threat to human
lives and property in 1996 or 1997. Formal consultation or conferencing
shall be deferred until the imminent threat to human lives and property
has been abated. For purposes of this section, the term repair shall
include preventive and remedial measures to restore the project,
facility or structure to remove an imminent threat to human lives and
property.
``(b) Reasonable and Prudent Measures.--Any reasonable and prudent
measures specified under section 7 of the Endangered Species Act (16
U.S.C. 1536) to minimize the impact of an action taken under this
section shall be related both in nature and extent to the effect of the
action taken to repair the flood control project, facility or
structure.
Translocation of California Sea Otters
Pub. L. 99-625, Sec. 1, Nov. 7, 1986, 100 Stat. 3500, provided that:
``(a) Definitions.--For purposes of this section--
``(1) The term `Act means the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.).
``(2) The term `agency action has the meaning given that term
in section 7(a)(2) of the Act [16 U.S.C. 1536(a)(2)].
``(3) The term `experimental population means the population of
sea otters provided for under a plan developed under subsection (b).
``(4) The phrase `parent population means the population of sea
otters existing in California on the date on which proposed
regulations setting forth a proposed plan under subsection (b) are
issued.
``(5) The phrase `prospective action refers to any prospective
agency action that--
``(A) may affect either the experimental population or the
parent population; and
``(B) has evolved to the point where meaningful consultation
under section 7(a)(2) or (3) of the Act [16 U.S.C. 1536(a)(2),
(3)] can take place.
``(6) The term `Secretary means the Secretary of the Interior.
``(7) The term `Service means the United States Fish and
Wildlife Service.
``(b) Plan Specifications.--The Secretary may develop and implement,
in accordance with this section, a plan for the relocation and
management of a population of California sea otters from the existing
range of the parent population to another location. The plan, which must
be developed by regulation and administered by the Service in
cooperation with the appropriate State agency, shall include the
following:
``(1) The number, age, and sex of sea otters proposed to be
relocated.
``(2) The manner in which the sea otters will be captured,
translocated, released, monitored, and protected.
``(3) The specification of a zone (hereinafter referred to as
the `translocation zone) to which the experimental population will
be relocated. The zone must have appropriate characteristics for
furthering the conservation of the species.
``(4) The specification of a zone (hereinafter referred to as
the `management zone) that--
``(A) surrounds the translocation zone; and
``(B) does not include the existing range of the parent
population or adjacent range where expansion is necessary for
the recovery of the species.
The purpose of the management zone is to (i) facilitate the
management of sea otters and the containment of the experimental
population within the translocation zone, and (ii) to prevent, to
the maximum extent feasible, conflict with other fishery resources
within the management zone by the experimental population. Any sea
otter found within the management zone shall be treated as a member
of the experimental population. The Service shall use all feasible
non-lethal means and measures to capture any sea otter found within
the management zone and return it to either the translocation zone
or to the range of the parent population.
``(5) Measures, including an adequate funding mechanism, to
isolate and contain the experimental population.
``(6) A description of the relationship of the implementation of
the plan to the status of the species under the Act and to
determinations of the Secretary under section 7 of the Act [16
U.S.C. 1536].
``(c) Status of Members of the Experimental Population.--(1) Any
member of the experimental population shall be treated while within the
translocation zone as a threatened species for purposes of the Act,
except that--
``(A) section 7 of the Act [16 U.S.C. 1536] shall only apply to
agency actions that--
``(i) are undertaken within the translocation zone,
``(ii) are not defense-related agency actions, and
``(iii) are initiated after the date of the enactment of
this section [Nov. 7, 1986]; and
``(B) with respect to defense-related actions within the
translocation zone, members of the experimental population shall be
treated as members of a species that is proposed to be listed under
section 4 of the Act [16 U.S.C. 1533].
For purposes of this paragraph, the term `defense-related agency action
means an agency action proposed to be carried out directly by a military
department.
``(2) For purposes of section 7 of the Act [16 U.S.C. 1536], any
member of the experimental population shall be treated while within the
management zone as a member of a species that is proposed to be listed
under section 4 of the Act [16 U.S.C. 1533]. Section 9 of the Act [16
U.S.C. 1538] applies to members of the experimental population; except
that any incidental taking of such a member during the course of an
otherwise lawful activity within the management zone, may not be treated
as a violation of the Act or the Marine Mammal Protection Act of 1972
[16 U.S.C. 1361 et seq.].
``(d) Implementation of Plan.--The Secretary shall implement the
plan developed under subsection (b)--
``(1) after the Secretary provides an opinion under section 7(b)
of the Act [16 U.S.C. 1536(b)] regarding each prospective action for
which consultation was initiated by a Federal agency or requested by
a prospective permit or license applicant before April 1, 1986; or
``(2) if no consultation under section 7(a)(2) or (3) regarding
any prospective action is initiated or requested by April 1, 1986,
at any time after that date.
``(e) Consultation and Effect of Opinion.--A Federal agency shall
promptly consult with the Secretary, under section 7(a)(3) of the Act
[16 U.S.C. 1536(a)(3)], at the request of, and in cooperation with, any
permit or license applicant regarding any prospective action. The time
limitations applicable to consultations under section 7(a)(2) of the Act
apply to consultations under the preceding sentence. In applying section
7(b)(3)(B) with respect to an opinion on a prospective action that is
provided after consultation under section 7(a)(3), that opinion shall be
treated as the opinion issued after consultation under section 7(a)(2)
unless the Secretary finds, after notice and opportunity for comment in
accordance with section 553 of title 5, United States Code, that a
significant change has been made with respect to the action or that a
significant change has occurred regarding the information used during
the initial consultation. The interested party may petition the
Secretary to make a finding under the preceding sentence. The Secretary
may implement any reasonable and prudent alternatives specified in any
opinion referred to in this subsection through appropriate agreements
with any such Federal agency, prospective permit or license applicant,
or other interested party.
``(f) Construction.--For purposes of implementing the plan, no act
by the Service, an authorized State agency, or an authorized agent of
the Service or such an agency with respect to a sea otter that is
necessary to effect the relocation or management of any sea otter under
the plan may be treated as a violation of any provision of the Act or
the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 et seq.).
Section Referred to in Other Sections
This section is referred to in sections 1532, 1539, 1542, 3645 of
this title; title 23 section 108.
Sec. 1537. International cooperation
(a) Financial assistance
As a demonstration of the commitment of the United States to the
worldwide protection of endangered species and threatened species, the
President may, subject to the provisions of section 1306 of title 31,
use foreign currencies accruing to the United States Government under
the Agricultural Trade Development and Assistance Act of 1954 [7 U.S.C.
1691 et seq.] or any other law to provide to any foreign country (with
its consent) assistance in the development and management of programs in
that country which the Secretary determines to be necessary or useful
for the conservation of any endangered species or threatened species
listed by the Secretary pursuant to section 1533 of this title. The
President shall provide assistance (which includes, but is not limited
to, the acquisition, by lease or otherwise, of lands, waters, or
interests therein) to foreign countries under this section under such
terms and conditions as he deems appropriate. Whenever foreign
currencies are available for the provision of assistance under this
section, such currencies shall be used in preference to funds
appropriated under the authority of section 1542 of this title.
(b) Encouragement of foreign programs
In order to carry out further the provisions of this chapter, the
Secretary, through the Secretary of State, shall encourage--
(1) foreign countries to provide for the conservation of fish or
wildlife and plants including endangered species and threatened
species listed pursuant to section 1533 of this title;
(2) the entering into of bilateral or multilateral agreements
with foreign countries to provide for such conservation; and
(3) foreign persons who directly or indirectly take fish or
wildlife or plants in foreign countries or on the high seas for
importation into the United States for commercial or other purposes
to develop and carry out with such assistance as he may provide,
conservation practices designed to enhance such fish or wildlife or
plants and their habitat.
(c) Personnel
After consultation with the Secretary of State, the Secretary may--
(1) assign or otherwise make available any officer or employee
of his department for the purpose of cooperating with foreign
countries and international organizations in developing personnel
resources and programs which promote the conservation of fish or
wildlife or plants; and
(2) conduct or provide financial assistance for the educational
training of foreign personnel, in this country or abroad, in fish,
wildlife, or plant management, research and law enforcement and to
render professional assistance abroad in such matters.
(d) Investigations
After consultation with the Secretary of State and the Secretary of
the Treasury, as appropriate, the Secretary may conduct or cause to be
conducted such law enforcement investigations and research abroad as he
deems necessary to carry out the purposes of this chapter.
(Pub. L. 93-205, Sec. 8, Dec. 28, 1973, 87 Stat. 892; Pub. L. 96-159,
Sec. 5, Dec. 28, 1979, 93 Stat. 1228.)
References in Text
The Agricultural Trade Development and Assistance Act of 1954,
referred to in subsec. (a), is act July 10, 1954, ch. 469, 68 Stat. 454,
as amended, which is classified generally to chapter 41 (Sec. 1691 et
seq.) of Title 7, Agriculture. For complete classification of this Act
to the Code, see Short Title note set out under section 1691 of Title 7
and Tables.
Codification
In subsec. (a), ``section 1306 of title 31 substituted for
``section 1415 of the Supplemental Appropriation Act, 1953 (31 U.S.C.
724) on authority of Pub. L. 97-258, Sec. 4(b), Sept. 13, 1982, 96
Stat. 1067, the first section of which enacted Title 31, Money and
Finance.
Amendments
1979--Subsec. (b)(1). Pub. L. 96-159, Sec. 5(1), encouraged
conservation of plants.
Subsec. (b)(3). Pub. L. 96-159, Sec. 5(2), encouraged conservation
practices for enhancement of plants taken for importation into the
United States.
Subsec. (c)(1). Pub. L. 96-159, Sec. 5(3), made personnel available
for plant conservation.
Subsec. (e). Pub. L. 96-159, Sec. 5(4), struck out subsec. (e)
relating to Convention implementation.
Conservation of Sea Turtles; Importation of Shrimp
Pub. L. 101-162, title VI, Sec. 609, Nov. 21, 1989, 103 Stat. 1037,
provided that:
``(a) The Secretary of State, in consultation with the Secretary of
Commerce, shall, with respect to those species of sea turtles the
conservation of which is the subject of regulations promulgated by the
Secretary of Commerce on June 29, 1987--
``(1) initiate negotiations as soon as possible for the
development of bilateral or multilateral agreements with other
nations for the protection and conservation of such species of sea
turtles;
``(2) initiate negotiations as soon as possible with all foreign
governments which are engaged in, or which have persons or companies
engaged in, commercial fishing operations which, as determined by
the Secretary of Commerce, may affect adversely such species of sea
turtles, for the purpose of entering into bilateral and multilateral
treaties with such countries to protect such species of sea turtles;
``(3) encourage such other agreements to promote the purposes of
this section with other nations for the protection of specific ocean
and land regions which are of special significance to the health and
stability of such species of sea turtles;
``(4) initiate the amendment of any existing international
treaty for the protection and conservation of such species of sea
turtles to which the United States is a party in order to make such
treaty consistent with the purposes and policies of this section;
and
``(5) provide to the Congress by not later than one year after
the date of enactment of this section [Nov. 21, 1989]--
``(A) a list of each nation which conducts commercial shrimp
fishing operations within the geographic range of distribution
of such sea turtles;
``(B) a list of each nation which conducts commercial shrimp
fishing operations which may affect adversely such species of
sea turtles; and
``(C) a full report on--
``(i) the results of his efforts under this section; and
``(ii) the status of measures taken by each nation
listed pursuant to paragraph (A) or (B) to protect and
conserve such sea turtles.
``(b)(1) In General.--The importation of shrimp or products from
shrimp which have been harvested with commercial fishing technology
which may affect adversely such species of sea turtles shall be
prohibited not later than May 1, 1991, except as provided in paragraph
(2).
``(2) Certification Procedure.--The ban on importation of shrimp or
products from shrimp pursuant to paragraph (1) shall not apply if the
President shall determine and certify to the Congress not later than May
1, 1991, and annually thereafter that--
``(A) the government of the harvesting nation has provided
documentary evidence of the adoption of a regulatory program
governing the incidental taking of such sea turtles in the course of
such harvesting that is comparable to that of the United States; and
``(B) the average rate of that incidental taking by the vessels
of the harvesting nation is comparable to the average rate of
incidental taking of sea turtles by United States vessels in the
course of such harvesting; or
``(C) the particular fishing environment of the harvesting
nation does not pose a threat of the incidental taking of such sea
turtles in the course of such harvesting.
Executive Order No. 11911
Ex. Ord. No. 11911, Apr. 13, 1976, 41 F.R. 15683, which provided
that for purposes of the Convention on International Trade in Endangered
Species of Wild Fauna and Flora the Secretary of the Interior be
designated as the Management Authority and established the Endangered
Species Scientific Authority as the Scientific Authority, with the
Secretary of the Interior designated to act on behalf of the United
States in all regards as required by the Convention on Nature Protection
and Wildlife Preservation in the Western Hemisphere, was revoked by Ex.
Ord. No. 12608, Sept. 9, 1987, 52 F.R. 34617.
Delegation of Authority Regarding Certification of Countries Exporting
Shrimp to United States
Memorandum of the President of the United States, Dec. 19, 1990, 56
F.R. 357, provided:
Memorandum for the Secretary of State
By virtue of the authority vested in me by the Constitution and laws
of the United States of America, including section 609 of the
Departments of Commerce, Justice, and State, the Judiciary, and Related
Agencies Appropriations Act, 1990 (Public Law 101-162) [set out above],
and section 301 of title 3 of the United States Code, I hereby delegate
to the Secretary of State the functions vested in me by section 609(b)
of that Act. The authority delegated by this memorandum may be further
redelegated within the Department of State.
The Secretary of State is authorized and directed to publish this
memorandum in the Federal Register.
George Bush.
Sec. 1537a. Convention implementation
(a) Management Authority and Scientific Authority
The Secretary of the Interior (hereinafter in this section referred to as the ``Secretary) is designated as the Management Authority and
the Scientific Authority for purposes of the Convention and the
respective functions of each such Authority shall be carried out through
the United States Fish and Wildlife Service.
(b) Management Authority functions
The Secretary shall do all things necessary and appropriate to carry out the functions of the Management Authority under the Convention.
(c) Scientific Authority functions; determinations
(1) The Secretary shall do all things necessary and appropriate to carry out the functions of the Scientific Authority under the
Convention.
(2) The Secretary shall base the determinations and advice given by him under Article IV of the Convention with respect to wildlife upon the
best available biological information derived from professionally
accepted wildlife management practices; but is not required to make, or
require any State to make, estimates of population size in making such
determinations or giving such advice.
(d) Reservations by the United States under Convention
If the United States votes against including any species in Appendix I or II of the Convention and does not enter a reservation pursuant to
paragraph (3) of Article XV of the Convention with respect to that
species, the Secretary of State, before the 90th day after the last day
on which such a reservation could be entered, shall submit to the
Committee on Merchant Marine and Fisheries of the House of
Representatives, and to the Committee on the Environment and Public
Works of the Senate, a written report setting forth the reasons why such
a reservation was not entered.
(e) Wildlife preservation in Western Hemisphere
(1) The Secretary of the Interior (hereinafter in this subsection referred to as the ``Secretary), in cooperation with the Secretary of
State, shall act on behalf of, and represent, the United States in all
regards as required by the Convention on Nature Protection and Wildlife
Preservation in the Western Hemisphere (56 Stat. 1354, T.S. 982,
hereinafter in this subsection referred to as the ``Western
Convention). In the discharge of these responsibilities, the Secretary
and the Secretary of State shall consult with the Secretary of
Agriculture, the Secretary of Commerce, and the heads of other agencies
with respect to matters relating to or affecting their areas of
responsibility.
(2) The Secretary and the Secretary of State shall, in cooperation with the contracting parties to the Western Convention and, to the
extent feasible and appropriate, with the participation of State
agencies, take such steps as are necessary to implement the Western
Convention. Such steps shall include, but not be limited to--
(A) cooperation with contracting parties and international organizations for the purpose of developing personnel resources and programs that will facilitate implementation of the Western Convention; (B) identification of those species of birds that migrate between the United States and other contracting parties, and the habitats upon which those species depend, and the implementation of cooperative measures to ensure that such species will not become endangered or threatened; and (C) identification of measures that are necessary and appropriate to implement those provisions of the Western Convention which address the protection of wild plants. (3) No later than September 30, 1985, the Secretary and the Secretary of State shall submit a report to Congress describing those
steps taken in accordance with the requirements of this subsection and
identifying the principal remaining actions yet necessary for
comprehensive and effective implementation of the Western Convention.
(4) The provisions of this subsection shall not be construed as affecting the authority, jurisdiction, or responsibility of the several
States to manage, control, or regulate resident fish or wildlife under
State law or regulations.
(Pub. L. 93-205, Sec. 8A, as added Pub. L. 96-159, Sec. 6(a)(1), Dec.
28, 1979, 93 Stat. 1228; amended Pub. L. 97-304, Sec. 5[(a)], Oct. 13,
1983, 96 Stat. 1421.)
Amendments 1982--Subsec. (c). Pub. L. 97-304, Sec. 5[(a)](1), designated existing provisions as par. (1) and added par. (2).
Subsec. (d). Pub. L. 97-304, Sec. 5[(a)](2), substituted provisions relating to reservations by the United States under the Convention for
provisions which had established an International Convention Advisory
Commission and had provided for its membership, staffing, and operation.
Subsec. (e). Pub. L. 97-304, Sec. 5[(a)](3), substituted provisions implementing the Convention on Nature Protection and Wildlife
Preservation in the Western Hemisphere for provisions which had provided
that the President shall designate those agencies of the Federal
Government that shall act on behalf of, and represent, the United States
in all regards as required by the Convention on Nature Protection and
Wildlife Preservation in the Western Hemisphere.
Effective Date of 1982 Amendment Section 5(b) of Pub. L. 97-304 provided that: ``The amendment made by paragraph (1) of subsection (a) [amending this section] shall take
effect January 1, 1981.
Abolition of House Committee on Merchant Marine and Fisheries Committee on Merchant Marine and Fisheries of House of Representatives abolished and its jurisdiction transferred by House
Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. Committee
on Merchant Marine and Fisheries of House of Representatives treated as
referring to Committee on Resources of House of Representatives in case
of provisions relating to fisheries, wildlife, international fishing
agreements, marine affairs (including coastal zone management) except
for measures relating to oil and other pollution of navigable waters, or
oceanography by section 1(b)(3) of Pub. L. 104-14, set out as a note
preceding section 21 of Title 2, The Congress.
Endangered Species Scientific Authority; Interim Performance of Functions of Commission Section 6(b) of Pub. L. 96-159 provided that until such time as the Chairman, Members, and Executive Secretary of the International
Convention Advisory Commission are appointed, but not later than 90 days
after Dec. 28, 1979, the functions of the Commission be carried out by
the Endangered Species Scientific Authority as established by Ex. Ord.
No. 11911, formerly set out as a note under section 1537 of this title,
with staff and administrative support being provided by the Secretary of
the Interior as set forth in that Executive Order.
Section Referred to in Other Sections This section is referred to in sections 1542, 2912 of this title.
Sec. 1538. Prohibited acts
(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.
---------------------------------------------------------------------------
\1\ See References in Text note below.
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(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.
(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.
Section Referred to in Other Sections
This section is referred to in sections 1533, 1535, 1536, 1539, 1540
of this title.
Sec. 1539. Exceptions
(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 \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.
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\1\ See References in Text note below.
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(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) \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.
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\2\ So in original. No cl. (ii) has been enacted.
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(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
exporters or owners 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.
(Pub. L. 93-205, Sec. 10, Dec. 28, 1973, 87 Stat. 896; Pub. L. 94-359,
Secs. 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, Secs. 1011, 1013(b), (c),
Oct. 7, 1988, 102 Stat. 2314, 2315.)
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.
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].
Section Referred to in Other Sections
This section is referred to in sections 471j, 1538 of this title.
Sec. 1540. Penalties and enforcement
(a) Civil penalties
(1) Any person who knowingly violates, and any person engaged in
business as an importer or exporter of fish, wildlife, or plants who
violates, any provision of this chapter, or any provision of any permit
or certificate issued hereunder, or of any regulation issued in order to
implement subsection (a)(1)(A), (B), (C), (D), (E), or (F), (a)(2)(A),
(B), (C), or (D), (c), (d) (other than regulation relating to
recordkeeping or filing of reports), (f) or (g) of section 1538 of this
title, may be assessed a civil penalty by the Secretary of not more than
$25,000 for each violation. Any person who knowingly violates, and any
person engaged in business as an importer or exporter of fish, wildlife,
or plants who violates, any provision of any other regulation issued
under this chapter may be assessed a civil penalty by the Secretary of
not more than $12,000 for each such violation. Any person who otherwise
violates any provision of this chapter, or any regulation, permit, or
certificate issued hereunder, may be assessed a civil penalty by the
Secretary of not more than $500 for each such violation. No penalty may
be assessed under this subsection unless such person is given notice and
opportunity for a hearing with respect to such violation. Each violation
shall be a separate offense. Any such civil penalty may be remitted or
mitigated by the Secretary. Upon any failure to pay a penalty assessed
under this subsection, the Secretary may request the Attorney General to
institute a civil action in a district court of the United States for
any district in which such person is found, resides, or transacts
business to collect the penalty and such court shall have jurisdiction
to hear and decide any such action. The court shall hear such action on
the record made before the Secretary and shall sustain his action if it
is supported by substantial evidence on the record considered as a
whole.
(2) Hearings held during proceedings for the assessment of civil
penalties authorized by paragraph (1) of this subsection shall be
conducted in accordance with section 554 of title 5. The Secretary may
issue subpenas for the attendance and testimony of witnesses and the
production of relevant papers, books, and documents, and administer
oaths. Witnesses summoned shall be paid the same fees and mileage that
are paid to witnesses in the courts of the United States. In case of
contumacy or refusal to obey a subpena served upon any person pursuant
to this paragraph, the district court of the United States for any
district in which such person is found or resides or transacts business,
upon application by the United States and after notice to such person,
shall have jurisdiction to issue an order requiring such person to
appear and give testimony before the Secretary or to appear and produce
documents before the Secretary, or both, and any failure to obey such
order of the court may be punished by such court as a contempt thereof.
(3) Notwithstanding any other provision of this chapter, no civil
penalty shall be imposed if it can be shown by a preponderance of the
evidence that the defendant committed an act based on a good faith
belief that he was acting to protect himself or herself, a member of his
or her family, or any other individual from bodily harm, from any
endangered or threatened species.
(b) Criminal violations
(1) Any person who knowingly violates any provision of this chapter,
of any permit or certificate issued hereunder, or of any regulation
issued in order to implement subsection (a)(1)(A), (B), (C), (D), (E),
or (F), (a)(2)(A), (B), (C), or (D), (c), (d) (other than a regulation
relating to recordkeeping, or filing of reports), (f), or (g) of section
1538 of this title shall, upon conviction, be fined not more than
$50,000 or imprisoned for not more than one year, or both. Any person
who knowingly violates any provision of any other regulation issued
under this chapter shall, upon conviction, be fined not more than
$25,000 or imprisoned for not more than six months, or both.
(2) The head of any Federal agency which has issued a lease,
license, permit, or other agreement authorizing a person to import or
export fish, wildlife, or plants, or to operate a quarantine station for
imported wildlife, or authorizing the use of Federal lands, including
grazing of domestic livestock, to any person who is convicted of a
criminal violation of this chapter or any regulation, permit, or
certificate issued hereunder may immediately modify, suspend, or revoke
each lease, license, permit, or other agreement. The Secretary shall
also suspend for a period of up to one year, or cancel, any Federal
hunting or fishing permits or stamps issued to any person who is
convicted of a criminal violation of any provision of this chapter or
any regulation, permit, or certificate issued hereunder. The United
States shall not be liable for the payments of any compensation,
reimbursement, or damages in connection with the modification,
suspension, or revocation of any leases, licenses, permits, stamps, or
other agreements pursuant to this section.
(3) Notwithstanding any other provision of this chapter, it shall be
a defense to prosecution under this subsection if the defendant
committed the offense based on a good faith belief that he was acting to
protect himself or herself, a member of his or her family, or any other
individual, from bodily harm from any endangered or threatened species.
(c) District court jurisdiction
The several district courts of the United States, including the
courts enumerated in section 460 of title 28, shall have jurisdiction
over any actions arising under this chapter. For the purpose of this
chapter, American Samoa shall be included within the judicial district
of the District Court of the United States for the District of Hawaii.
(d) Rewards and incidental expenses
The Secretary or the Secretary of the Treasury shall pay, from sums
received as penalties, fines, or forfeitures of property for any
violation of this chapter or any regulation issued hereunder (1) a
reward to any person who furnishes information which leads to an arrest,
a criminal conviction, civil penalty assessment, or forfeiture of
property for any violation of this chapter or any regulation issued
hereunder. The amount of the reward, if any, is to be designated by the
Secretary or the Secretary of the Treasury, as appropriate. Any officer
or employee of the United States or any State or local government who
furnishes information or renders service in the performance of his
official duties is ineligible for payment under this subsection, and (2)
the reasonable and necessary costs incurred by any person in providing
temporary care for any fish, wildlife, or plant pending the disposition
of any civil or criminal proceeding alleging a violation of this chapter
with respect to that fish, wildlife, or plant. Whenever the balance of
sums received under this section and section 3375(d) of this title, as
penalties or fines, or from forfeitures of property, exceed $500,000,
the Secretary of the Treasury shall deposit an amount equal to such
excess balance in the cooperative endangered species conservation fund
established under section 1535(i) of this title.
(e) Enforcement
(1) The provisions of this chapter and any regulations or permits
issued pursuant thereto shall be enforced by the Secretary, the
Secretary of the Treasury, or the Secretary of the Department in which
the Coast Guard is operating, or all such Secretaries. Each such
Secretary may utilize by agreement, with or without reimbursement, the
personnel, services, and facilities of any other Federal agency or any
State agency for purposes of enforcing this chapter.
(2) The judges of the district courts of the United States and the
United States magistrate judges may, within their respective
jurisdictions, upon proper oath or affirmation showing probable cause,
issue such warrants or other process as may be required for enforcement
of this chapter and any regulation issued thereunder.
(3) Any person authorized by the Secretary, the Secretary of the
Treasury, or the Secretary of the Department in which the Coast Guard is
operating, to enforce this chapter may detain for inspection and inspect
any package, crate, or other container, including its contents, and all
accompanying documents, upon importation or exportation. Such person may
make arrests without a warrant for any violation of this chapter if he
has reasonable grounds to believe that the person to be arrested is
committing the violation in his presence or view, and may execute and
serve any arrest warrant, search warrant, or other warrant or civil or
criminal process issued by any officer or court of competent
jurisdiction for enforcement of this chapter. Such person so authorized
may search and seize, with or without a warrant, as authorized by law.
Any fish, wildlife, property, or item so seized shall be held by any
person authorized by the Secretary, the Secretary of the Treasury, or
the Secretary of the Department in which the Coast Guard is operating
pending disposition of civil or criminal proceedings, or the institution
of an action in rem for forfeiture of such fish, wildlife, property, or
item pursuant to paragraph (4) of this subsection; except that the
Secretary may, in lieu of holding such fish, wildlife, property, or
item, permit the owner or consignee to post a bond or other surety
satisfactory to the Secretary, but upon forfeiture of any such property
to the United States, or the abandonment or waiver of any claim to any
such property, it shall be disposed of (other than by sale to the
general public) by the Secretary in such a manner, consistent with the
purposes of this chapter, as the Secretary shall by regulation
prescribe.
(4)(A) All fish or wildlife or plants taken, possessed, sold,
purchased, offered for sale or purchase, transported, delivered,
received, carried, shipped, exported, or imported contrary to the
provisions of this chapter, any regulation made pursuant thereto, or any
permit or certificate issued hereunder shall be subject to forfeiture to
the United States.
(B) All guns, traps, nets, and other equipment, vessels, vehicles,
aircraft, and other means of transportation used to aid the taking,
possessing, selling, purchasing, offering for sale or purchase,
transporting, delivering, receiving, carrying, shipping, exporting, or
importing of any fish or wildlife or plants in violation of this
chapter, any regulation made pursuant thereto, or any permit or
certificate issued thereunder shall be subject to forfeiture to the
United States upon conviction of a criminal violation pursuant to
subsection (b)(1) of this section.
(5) All provisions of law relating to the seizure, forfeiture, and
condemnation of a vessel for violation of the customs laws, the
disposition of such vessel or the proceeds from the sale thereof, and
the remission or mitigation of such forfeiture, shall apply to the
seizures and forfeitures incurred, or alleged to have been incurred,
under the provisions of this chapter, insofar as such provisions of law
are applicable and not inconsistent with the provisions of this chapter;
except that all powers, rights, and duties conferred or imposed by the
customs laws upon any officer or employee of the Treasury Department
shall, for the purposes of this chapter, be exercised or performed by
the Secretary or by such persons as he may designate.
(6) The Attorney General of the United States may seek to enjoin any
person who is alleged to be in violation of any provision of this
chapter or regulation issued under authority thereof.
(f) Regulations
The Secretary, the Secretary of the Treasury, and the Secretary of
the Department in which the Coast Guard is operating, are authorized to
promulgate such regulations as may be appropriate to enforce this
chapter, and charge reasonable fees for expenses to the Government
connected with permits or certificates authorized by this chapter
including processing applications and reasonable inspections, and with
the transfer, board, handling, or storage of fish or wildlife or plants
and evidentiary items seized and forfeited under this chapter. All such
fees collected pursuant to this subsection shall be deposited in the
Treasury to the credit of the appropriation which is current and
chargeable for the cost of furnishing the services. Appropriated funds
may be expended pending reimbursement from parties in interest.
(g) Citizen suits
(1) Except as provided in paragraph (2) of this subsection any
person may commence a civil suit on his own behalf--
(A) to enjoin any person, including the United States and any
other governmental instrumentality or agency (to the extent
permitted by the eleventh amendment to the Constitution), who is
alleged to be in violation of any provision of this chapter or
regulation issued under the authority thereof; or
(B) to compel the Secretary to apply, pursuant to section
1535(g)(2)(B)(ii) of this title, the prohibitions set forth in or
authorized pursuant to section 1533(d) or 1538(a)(1)(B) of this
title with respect to the taking of any resident endangered species
or threatened species within any State; or
(C) against the Secretary where there is alleged a failure of
the Secretary to perform any act or duty under section 1533 of this
title which is not discretionary with the Secretary.
The district courts shall have jurisdiction, without regard to the
amount in controversy or the citizenship of the parties, to enforce any
such provision or regulation, or to order the Secretary to perform such
act or duty, as the case may be. In any civil suit commenced under
subparagraph (B) the district court shall compel the Secretary to apply
the prohibition sought if the court finds that the allegation that an
emergency exists is supported by substantial evidence.
(2)(A) No action may be commenced under subparagraph (1)(A) of this
section--
(i) prior to sixty days after written notice of the violation
has been given to the Secretary, and to any alleged violator of any
such provision or regulation;
(ii) if the Secretary has commenced action to impose a penalty
pursuant to subsection (a) of this section; or
(iii) if the United States has commenced and is diligently
prosecuting a criminal action in a court of the United States or a
State to redress a violation of any such provision or regulation.
(B) No action may be commenced under subparagraph (1)(B) of this
section--
(i) prior to sixty days after written notice has been given to
the Secretary setting forth the reasons why an emergency is thought
to exist with respect to an endangered species or a threatened
species in the State concerned; or
(ii) if the Secretary has commenced and is diligently
prosecuting action under section 1535(g)(2)(B)(ii) of this title to
determine whether any such emergency exists.
(C) No action may be commenced under subparagraph (1)(C) of this
section prior to sixty days after written notice has been given to the
Secretary; except that such action may be brought immediately after such
notification in the case of an action under this section respecting an
emergency posing a significant risk to the well-being of any species of
fish or wildlife or plants.
(3)(A) Any suit under this subsection may be brought in the judicial
district in which the violation occurs.
(B) In any such suit under this subsection in which the United
States is not a party, the Attorney General, at the request of the
Secretary, may intervene on behalf of the United States as a matter of
right.
(4) The court, in issuing any final order in any suit brought
pursuant to paragraph (1) of this subsection, may award costs of
litigation (including reasonable attorney and expert witness fees) to
any party, whenever the court determines such award is appropriate.
(5) The injunctive relief provided by this subsection shall not
restrict any right which any person (or class of persons) may have under
any statute or common law to seek enforcement of any standard or
limitation or to seek any other relief (including relief against the
Secretary or a State agency).
(h) Coordination with other laws
The Secretary of Agriculture and the Secretary shall provide for
appropriate coordination of the administration of this chapter with the
administration of the animal quarantine laws (21 U.S.C. 101-105, 111-
135b, and 612-614) and section 306 of the Tariff Act of 1930 (19 U.S.C.
1306). Nothing in this chapter or any amendment made by this chapter
shall be construed as superseding or limiting in any manner the
functions of the Secretary of Agriculture under any other law relating
to prohibited or restricted importations or possession of animals and
other articles and no proceeding or determination under this chapter
shall preclude any proceeding or be considered determinative of any
issue of fact or law in any proceeding under any Act administered by the
Secretary of Agriculture. Nothing in this chapter shall be construed as
superseding or limiting in any manner the functions and responsibilities
of the Secretary of the Treasury under the Tariff Act of 1930 [19 U.S.C.
1202 et seq.], including, without limitation, section 527 of that Act
(19 U.S.C. 1527), relating to the importation of wildlife taken, killed,
possessed, or exported to the United States in violation of the laws or
regulations of a foreign country.
(Pub. L. 93-205, Sec. 11, Dec. 28, 1973, 87 Stat. 897; Pub. L. 94-359,
Sec. 4, July 12, 1976, 90 Stat. 913; Pub. L. 95-632, Secs. 6-8, Nov. 10,
1978, 92 Stat. 3761, 3762; Pub. L. 97-79, Sec. 9(e), Nov. 16, 1981, 95
Stat. 1079; Pub. L. 97-304, Secs. 7, 9(c), Oct. 13, 1982, 96 Stat. 1425,
1427; Pub. L. 98-327, Sec. 4, June 25, 1984, 98 Stat. 271; Pub. L. 100-
478, title I, Sec. 1007, Oct. 7, 1988, 102 Stat. 2309; Pub. L. 101-650,
title III, Sec. 321, Dec. 1, 1990, 104 Stat. 5117.)
References in Text
This chapter, referred to in subsecs. (a)(1), (3), (b)-(f),
(g)(1)(A), and (h), was in the original ``this Act, meaning Pub. L.
93-205, Dec. 28, 1973, 81 Stat. 884, as amended, known as the
``Endangered Species Act of 1973, which is classified principally to
this chapter. For complete classification of this Act to the Code, see
Short Title note set out under section 1531 of this title and Tables.
The customs laws, referred to in subsec. (e)(5), are classified
generally to Title 19, Customs Duties.
The amendments made by this chapter, referred to in subsec. (h),
refer to the amendments made by Pub. L. 93-205, which amended sections
460k-1, 460l-9, 668dd, 715i, 715s, 1362, 1371, 1372, and 1402 of this
title and section 136 of Title 7, Agriculture, and repealed sections
668aa to 668cc-6 of this title.
The Tariff Act of 1930, referred to in subsec. (h), is act June 17,
1930, ch. 497, 46 Stat. 590, as amended, which is classified generally
to chapter 4 (Sec. 1202 et seq.) of Title 19, Customs Duties. For
complete classification of this Act to the Code, see section 1654 of
Title 19 and Tables.
Amendments
1988--Subsec. (a)(1). Pub. L. 100-478, Sec. 1007(a), substituted
``$25,000 for ``$10,000 and ``$12,000 for ``$5,000.
Subsec. (b)(1). Pub. L. 100-478, Sec. 1007(b), substituted
``$50,000 for ``$20,000 and ``$25,000 for ``$10,000.
Subsec. (d). Pub. L. 100-478, Sec. 1007(c), inserted at end
``Whenever the balance of sums received under this section and section
3375(d) of this title, as penalties or fines, or from forfeitures of
property, exceed $500,000, the Secretary of the Treasury shall deposit
an amount equal to such excess balance in the cooperative endangered
species conservation fund established under section 1535(i) of this
title.
1984--Subsec. (d). Pub. L. 98-327 substituted a comma for ``a
reward after ``shall pay in first sentence, inserted ``(1) a
reward before ``to any person, and added cl. (2).
1982--Subsecs. (a)(1), (b)(1). Pub. L. 97-304, Sec. 9(c),
substituted ``(a)(2)(A), (B), (C), or (D) for ``(a)(2)(A), (B), or
(C).
Subsec. (e)(6). Pub. L. 97-304, Sec. 7(1), added par. (6).
Subsec. (g)(1)(B). Pub. L. 97-304, Sec. 7(2)(A)(i), substituted
``any State; or for ``any State..
Subsec. (g)(1)(C). Pub. L. 97-304, Sec. 7(2)(A)(ii), added subpar.
(C).
Subsec. (g)(1). Pub. L. 97-304, Sec. 7(2)(A)(iii), inserted ``or to
order the Secretary to perform such act or duty, after ``any such
provision or regulation, in provisions following subpar. (C).
Subsec. (g)(2)(C). Pub. L. 97-304, Sec. 7(2)(B), added subpar. (C).
1981--Pub. L. 97-79 substituted ``The Secretary or the Secretary of
the Treasury shall pay a reward from sums received as penalties, fines,
or forfeitures of property for any violation of this chapter or any
regulation issued hereunder to any person who furnishes information
which leads to an arrest, a criminal conviction, civil penalty
assessment, or forfeiture of property for any violation of this chapter
or any regulation issued hereunder for ``Upon the recommendation of
the Secretary, the Secretary of the Treasury is authorized to pay an
amount equal to one-half of the civil penalty or fine paid, but not to
exceed $2,500, to any person who furnishes information which leads to a
finding of civil violation or a conviction of a criminal violation of
any provision of this chapter or any regulation or permit issued
thereunder and inserted provision that the amount of the reward, if
any, be designated by the Secretary or the Secretary of the Treasury, as
appropriate.
1978--Subsec. (a)(1). Pub. L. 95-632, Sec. 6(1), (2), substituted
``and any person engaged in business as an importer or exporter of fish,
wildlife, or plants who violates for ``or who knowingly commits an act
in the course of a commercial activity which violates in two places
and ``$500 for ``$1,000.
Subsec. (a)(3). Pub. L. 95-632, Sec. 7, added par. (3).
Subsec. (b)(1). Pub. L. 95-632, Sec. 6(3), substituted ``knowingly
for ``willfully commits an act which in two places.
Subsec. (b)(2). Pub. L. 95-632, Sec. 6(4), inserted ``a person to
import or export fish, wildlife, or plants, or to operate a quarantine
station for imported wildlife, or authorizing after ``authorizing.
Subsec. (b)(3). Pub. L. 95-632, Sec. 8, added par. (3).
1976--Subsec. (e)(3). Pub. L. 94-359 inserted ``make arrests without
a warrant for any violation of this chapter if he has reasonable grounds
to believe that the person to be arrested is committing the violation in
his presence or view, and may after ``Such person may and ``, but
upon forfeiture of any such property to the United States, or the
abandonment or waiver of any claim to any such property, it shall be
disposed of (other than by sale to the general public) by the Secretary
in such a manner, consistent with the purposes of this chapter, as the
Secretary shall by regulation prescribe, after ``other surety
satisfactory to the Secretary.
Change of Name
``United States magistrate judges substituted for ``United States
magistrates in subsec. (e)(2) pursuant to section 321 of Pub. L. 101-
650, set out as a note under section 631 of Title 28, Judiciary and
Judicial Procedure.
Effective Date of 1981 Amendment
Section 9(f) of Pub. L. 97-79 provided that: ``The amendment
specified in subsection 9(e) of this Act [amending this section] shall
take effect beginning in fiscal year 1983.
Section Referred to in Other Sections
This section is referred to in sections 742l, 1536, 1539, 4224,
4912, 5305a of this title; title 28 section 524; title 42 section 10601.
Sec. 1541. Endangered plants
The Secretary of the Smithsonian Institution, in conjunction with
other affected agencies, is authorized and directed to review (1)
species of plants which are now or may become endangered or threatened
and (2) methods of adequately conserving such species, and to report to
Congress, within one year after December 28, 1973, the results of such
review including recommendations for new legislation or the amendment of
existing legislation.
(Pub. L. 93-205, Sec. 12, Dec. 28, 1973, 87 Stat. 901.)
Sec. 1542. Authorization of appropriations
(a) In general
Except as provided in subsections (b), (c), and (d) of this section,
there are authorized to be appropriated--
(1) not to exceed $35,000,000 for fiscal year 1988, $36,500,000
for fiscal year 1989, $38,000,000 for fiscal year 1990, $39,500,000
for fiscal year 1991, and $41,500,000 for fiscal year 1992 to enable
the Department of the Interior to carry out such functions and
responsibilities as it may have been given under this chapter;
(2) not to exceed $5,750,000 for fiscal year 1988, $6,250,000
for each of fiscal years 1989 and 1990, and $6,750,000 for each of
fiscal years 1991 and 1992 to enable the Department of Commerce to
carry out such functions and responsibilities as it may have been
given under this chapter; and
(3) not to exceed $2,200,000 for fiscal year 1988, $2,400,000
for each of fiscal years 1989 and 1990, and $2,600,000 for each of
fiscal years 1991 and 1992, to enable the Department of Agriculture
to carry out its functions and responsibilities with respect to the
enforcement of this chapter and the Convention which pertain to the
importation or exportation of plants.
(b) Exemptions
There are authorized to be appropriated to the Secretary to assist
him and the Endangered Species Committee in carrying out their functions
under sections \1\ 1536(e), (g), and (h) of this title not to exceed
$600,000 for each of fiscal years 1988, 1989, 1990, 1991, and 1992.
---------------------------------------------------------------------------
\1\ So in original. Probably should be ``section.
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(c) Convention implementation
There are authorized to be appropriated to the Department of the
Interior for purposes of carrying out section 1537a(e) of this title not
to exceed $400,000 for each of fiscal years 1988, 1989, and 1990, and
$500,000 for each of fiscal years 1991 and 1992, and such sums shall
remain available until expended.
(Pub. L. 93-205, Sec. 15, Dec. 28, 1973, 87 Stat. 903; Pub. L. 94-325,
June 30, 1976, 90 Stat. 724; Pub. L. 95-632, Sec. 9, Nov. 10, 1978, 92
Stat. 3762; Pub. L. 96-159, Sec. 8, Dec. 28, 1979, 93 Stat. 1230; Pub.
L. 97-304, Sec. 8[(a)], Oct. 13, 1982, 96 Stat. 1425; Pub. L. 100-478,
title I, Sec. 1009, Oct. 7, 1988, 102 Stat. 2312.)
Amendments
1988--Pub. L. 100-478 amended section generally, substituting
provisions authorizing appropriations for fiscal years 1988 through 1992
for provisions authorizing appropriations for fiscal years 1983 through
1985.
1982--Subsec. (a). Pub. L. 97-304 designated existing provisions as
subsec. (a), and substituted provisions authorizing, except as provided
in subsecs. (b), (c), and (d), appropriations of $27,000,000 for each of
fiscal years 1983, 1984, and 1985 for the Department of the Interior,
$3,500,000 for each of fiscal years 1983, 1984, and 1985 for the
Department of Commerce, and $1,850,000 for each of fiscal years 1983,
1984, and 1985 for the Department of Agriculture, for provisions that,
except as authorized in sections 1535 and 1536 of this title, had
authorized appropriations of (1) not to exceed $23,000,000 for each of
fiscal years 1979 and 1980, not to exceed $25,000,000 for fiscal year
1981, and not to exceed $27,000,000 for fiscal year 1982 to the
Department of the Interior, (2) not to exceed $2,500,000 for each of
fiscal years 1979 and 1980, not to exceed $3,000,000 for fiscal year
1981, and not to exceed $3,500,000 for fiscal year 1982 to the
Department of Commerce, and (3) not to exceed $1,500,000 for fiscal year
1980, not to exceed $1,750,000 for fiscal year 1981, and not to exceed
$1,850,000 for fiscal year 1982 to the Department of Agriculture.
Subsecs. (b) to (d). Pub. L. 97-304 added subsecs. (b) to (d).
1979--Par. (1). Pub. L. 96-159 struck out appropriations
authorization of $25,000,000 for fiscal years ending Sept. 30, 1977, and
1978, substituted appropriations authorization of $23,000,000;
$23,000,000; $25,000,000; and $27,000,000 for fiscal years 1979 through
1982 for prior authorization of $23,000,000 for fiscal year ending Sept.
30, 1979, and $12,500,000 for period beginning Oct. 1, 1979, and ending
Mar. 31, 1980, and restored intent of appropriations to enable the
Interior Department to carry out its functions and responsibilities.
Par. (2). Pub. L. 96-159 deleted appropriations authorization of
$5,000,000 for fiscal years ending Sept. 30, 1977, and 1978, and
substituted appropriations authorization of $2,500,000; $2,500,000;
$3,000,000; and $3,500,000 for fiscal years 1979 through 1982 for prior
authorization of $2,500,000 for fiscal year ending Sept. 30, 1979, and
$12,500,000 for period beginning Oct. 1, 1979, and ending Mar. 31, 1980.
1978--Pub. L. 95-632, in provision preceding par. (1), substituted
``sections 1535 and 1536 of this title for ``section 1535 of this
title.
Par. (1). Pub. L. 95-632 substituted provision authorizing
appropriations of not to exceed $25,000,000 for the fiscal year ending
Sept. 30, 1977 and the fiscal year ending Sept. 30, 1978, of not to
exceed $23,000,000 for the fiscal year ending Sept. 30, 1979, and of not
to exceed $12,500,000 for the period beginning Oct. 1, 1979 and ending
Mar. 31, 1980 for provision authorizing appropriations of not to exceed
$10,000,000 for the fiscal year ending June 30, 1976, of not to exceed
$1,800,000 for the fiscal transitional period ending Sept. 30, 1976, and
of not to exceed a total of $25,000,000 for the fiscal year ending Sept.
30, 1977 and the fiscal year ending Sept. 30, 1978, to enable the
Department of the Interior to carry out its functions under this
chapter.
Par. (2). Pub. L. 95-632 substituted provision authorizing
appropriations of not to exceed $5,000,000 for the fiscal year ending
Sept. 30, 1977 and the fiscal year ending Sept. 30, 1978, of not to
exceed $2,500,000 for the fiscal year ending Sept. 30, 1979, and of not
to exceed $12,500,000 for the period beginning Oct. 1, 1979 and ending
Mar. 31, 1980 for provision authorizing appropriations of not to exceed
$2,000,000 for the fiscal year ending June 30, 1976, of not to exceed
$500,000 for the fiscal transitional period ending Sept. 30, 1976 and of
not to exceed a total of $5,000,000 for the fiscal year Sept. 30, 1977
and the fiscal year ending Sept. 30, 1978.
1976--Par. (1). Pub. L. 94-325, Sec. 1(1), redesignated par. (A) as
(1), inserted provisions authorizing appropriations for the fiscal year
transitional period ending Sept. 30, 1976, fiscal year ending Sept. 30,
1977, and fiscal year ending Sept. 30, 1978, and struck out provisions
authorizing appropriations of not to exceed $4,000,000 for fiscal year
1974, and not to exceed $8,000,000 for fiscal year 1975.
Par. (2). Pub. L. 94-325, Sec. 1(2), redesignated par. (B) as (2),
inserted provisions authorizing appropriation for the fiscal year
transitional period ending Sept. 30, 1976, fiscal year ending Sept. 30,
1977, and fiscal year ending Sept. 30, 1978, and struck out provisions
authorizing appropriations of not to exceed $2,000,000 for fiscal year
1974, and not to exceed $1,500,000 for fiscal year 1975.
Section Referred to in Other Sections
This section is referred to in section 1537 of this title.
Sec. 1543. Construction with Marine Mammal Protection Act of
1972
Except as otherwise provided in this chapter, no provision of this
chapter shall take precedence over any more restrictive conflicting
provision of the Marine Mammal Protection Act of 1972 [16 U.S.C. 1361 et
seq.].
(Pub. L. 93-205, Sec. 17, Dec. 28, 1973, 87 Stat. 903.)
References in Text
This chapter, referred to in text, was in the original ``this Act,
meaning Pub. L. 93-205, Dec. 28, 1973, 81 Stat. 884, as amended, known
as the ``Endangered Species Act of 1973, which is classified
principally to this chapter. For complete classification of this Act to
the Code, see Short Title note set out under section 1531 of this title
and Tables.
The Marine Mammal Protection Act of 1972, referred to in text, is
Pub. L. 92-522, Oct. 21, 1972, 86 Stat. 1027, as amended, which is
classified generally to chapter 31 (Sec. 1361 et seq.) of this title.
For complete classification of this Act to the Code, see Short Title
note set out under section 1361 of this title and Tables.
Sec. 1544. Annual cost analysis by Fish and Wildlife Service
Notwithstanding section 3003 of Public Law 104-66 (31 U.S.C. 1113
note; 109 Stat. 734), on or before January 15, 1990, and each January 15
thereafter, the Secretary of the Interior, acting through the Fish and
Wildlife Service, shall submit to the Congress an annual report covering
the preceding fiscal year which shall contain--
(1) an accounting on a species by species basis of all
reasonably identifiable Federal expenditures made primarily for the
conservation of endangered or threatened species pursuant to this
chapter; and
(2) an accounting on a species by species basis of all
reasonably identifiable expenditures made primarily for the
conservation of endangered or threatened species pursuant to this
chapter by States receiving grants under section 1535 of this title.
(Pub. L. 93-205, Sec. 18, as added Pub. L. 100-478, title I, Sec. 1012,
Oct. 7, 1988, 102 Stat. 2314; amended Pub. L. 106-201, Sec. 1(a), May
18, 2000, 114 Stat. 307.)
Amendments
2000--Pub. L. 106-201, in introductory provisions, substituted
``Notwithstanding section 3003 of Public Law 104-66 (31 U.S.C. 1113
note; 109 Stat. 734), on for ``On.
Effective Date of 2000 Amendment
Pub. L. 106-201, Sec. 1(b), May 18, 2000, 114 Stat. 307, provided
that: ``The amendment made by this section [amending this section] takes
effect on the earlier of--
``(1) the date of enactment of this Act [May 18, 2000]; or
``(2) December 19, 1999.
