U.S. GOVERNMENT PRINTING OFFICE

98–115 WASHINGTON : 

" COMMITTEE PRINT ! 109TH CONGRESS

1st Session

SERIAL NO.

2005

109–A

ENDANGERED SPECIES ACT OF 1973

(AS AMENDED THROUGH DECEMBER 2004)

PREPARED FOR THE USE OF THE

COMMITTEE ON RESOURCES

OF THE

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

February 2005

Available via the World Wide Web: http://www.access.gpo.gov/congress/house

or

Committee address: http://resourcescommittee.house.gov

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: http://bookstore.gpo.gov Phone: Toll Free (866) 512–1800;

D.C. area (202) 512–1800 Fax: (202) 512–2250

Mail: Stop SSOP, Washington, DC 20402–0001
COMMITTEE ON RESOURCES

RICHARD W. POMBO, California, Chairman

NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska

Jim Saxton, New Jersey

Elton Gallegly, California

John J. Duncan, Jr., Tennessee

Wayne T. Gilchrest, Maryland

Ken Calvert, California

Barbara Cubin, Wyoming

Vice Chair

George P. Radanovich, California

Walter B. Jones, Jr., North Carolina

Chris Cannon, Utah

John E. Peterson, Pennsylvania

Jim Gibbons, Nevada

Greg Walden, Oregon

Thomas G. Tancredo, Colorado

J.D. Hayworth, Arizona

Jeff Flake, Arizona

Rick Renzi, Arizona

Stevan Pearce, New Mexico

Devin Nunes, California

Henry Brown, Jr., South Carolina

Thelma Drake, Virginia

Luis G. Fortun ̃ o, Puerto Rico

Cathy McMorris, Washington

Bobby Jindal, Louisiana

Louie Gohmert, Texas

Vacancy

Dale E. Kildee, Michigan

Eni F.H. Faleomavaega, American Samoa

Neil Abercrombie, Hawaii

Solomon P. Ortiz, Texas

Frank Pallone, Jr., New Jersey

Donna M. Christensen, Virgin Islands

Ron Kind, Wisconsin

Grace F. Napolitano, California

Tom Udall, New Mexico

Rau ́l M. Grijalva, Arizona

Madeleine Z. Bordallo, Guam

Jim Costa, California

Charlie Melancon, Louisiana

Dan Boren, Oklahoma

George Miller, California

Edward J. Markey, Massachusetts

Peter A. DeFazio, Oregon

Jay Inslee, Washington

Mark Udall, Colorado

Dennis Cardoza, California

Stephanie Herseth, South Dakota

Steven J. Ding, Chief of Staff

Lisa Pittman, Chief Counsel

James H. Zoia, Democrat Staff Director

Jeffrey P. Petrich, Democrat Chief Counsel

Prepared by

HARRY A. (HANK) SAVAGE, Assistant Counsel

CRAIG A. STERKX, Publications Coordinator

OFFICE OF THE LEGISLATIVE COUNSEL, HOUSE OF REPRESENTATIVES

(II)
C O N T E N T S

Page

Sec. 2. Findings, purposes, and policy ................................................................ 1

Sec. 3. Definitions ................................................................................................ 2

Sec. 4. Determination of endangered species and threatened species ............ 4

Sec. 5. Land acquisition ....................................................................................... 12

Sec. 6. Cooperation with the States .................................................................... 13

Sec. 7. Interagency cooperation ........................................................................... 17

Sec. 8. International cooperation ........................................................................ 26

Sec. 8A. Convention implementation ..................................................................... 27

Sec. 9. Prohibited acts ......................................................................................... 29

Sec. 10. Exceptions ................................................................................................. 32

Sec. 11. Penalties and enforcement ...................................................................... 39

Sec. 12. Endangered plants ................................................................................... 44

Sec. 13. Conforming amendments ........................................................................ 45

Sec. 14. Repealer .................................................................................................... 45

Sec. 15. Authorization of appropriations .............................................................. 45

Sec. 16. Effective date ............................................................................................ 45

Sec. 17. Marine Mammal Protection Act of 1972 ................................................ 45

Sec. 18. Annual cost analysis by the Fish and Wildlife Service ......................... 46

(III)

ENDANGERED SPECIES ACT OF 1973

(As amended through December 31, 2004)

1

1 Bracketed material does not appear in Act. Sec. 1012 of P.L. 100–478, 102 Stat. 2314, October 7, 1988, added sec. 18 of the Act but did not conform the table of contents of the Act.

ENDANGERED SPECIES ACT OF 1973

[Public Law 93–205, Approved Dec. 28, 1973, 87 Stat. 884]

[Amended through Public Law 108–136, Nov. 24, 2003]

AN ACT To provide for the conservation of endangered and threatened species of

fish, wildlife, and plants, and for other purposes.

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, ø16 U.S.C. 1531

note¿ That this Act may be cited as the ‘‘Endangered Species Act

of 1973’’.

TABLE OF CONTENTS

Sec. 2. Findings, purposes, and policy.

Sec. 3. Definitions.

Sec. 4. Determination of endangered species and threatened species.

Sec. 5. Land acquisition.

Sec. 6. Cooperation with the States.

Sec. 7. Interagency cooperation.

Sec. 8. International cooperation.

Sec. 8A. Convention implementation.

Sec. 9. Prohibited acts.

Sec. 10. Exceptions.

Sec. 11. Penalties and enforcement.

Sec. 12. Endangered plants.

Sec. 13. Conforming amendments.

Sec. 14. Repealer.

Sec. 15. Authorization of appropriations.

Sec. 16. Effective date.

Sec. 17. Marine Mammal Protection Act of 1972.

[Sec. 18. Annual cost analysis by the Fish and Wildlife Service.1]

FINDINGS, PURPOSES, AND POLICY

SEC. 2. ø16 U.S.C. 1531¿ (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;
Sec. 3 ENDANGERED SPECIES ACT OF 1973 2

(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 Nation’s international commitments and to better safeguarding, for the benefit of all citizens, the Nation’s heritage

in fish, wildlife, and plants.

(b) PURPOSES.—The purposes of this Act 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 Act.

(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.

DEFINITIONS

SEC. 3. ø16 U.S.C. 1532¿ For the purposes of this Act—

(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 exhibitions 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 Act are
3 ENDANGERED SPECIES ACT OF 1973 Sec. 3

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 4 of this Act, 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 4 of this Act, 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 Act 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.
Sec. 4 ENDANGERED SPECIES ACT OF 1973 4

(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.

ø(11) Repealed by section 4(b) of P.L. 97–304, 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 7, any person whose application to such

agency for a permit or license has been denied primarily because

of the application of section 7(a) 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 Act 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.

DETERMINATION OF ENDANGERED SPECIES AND THREATENED SPECIES

SEC. 4. ø16 U.S.C. 1533¿ (a) GENERAL.—(1) The Secretary shall

by regulation promulgated in accordance with subsection (b) determine whether any species is an endangered species or a threatened

species because of any of the following factors:
5 ENDANGERED SPECIES ACT OF 1973 Sec. 4

(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)(A) The Secretary, by regulation promulgated in accordance

with subsection (b) and to the maximum extent prudent and

determinable—

(i) 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

(ii) may, from time-to-time thereafter as appropriate, revise such designation.

(B)(i) The Secretary shall not designate as critical habitat any

lands or other geographical areas owned or controlled by the

Department of Defense, or designated for its use, that are subject

to an integrated natural resources management plan prepared

under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to

the species for which critical habitat is proposed for designation.

(ii) Nothing in this paragraph affects the requirement to consult under section 7(a)(2) with respect to an agency action (as that

term is defined in that section).

(iii) Nothing in this paragraph affects the obligation of the

Department of Defense to comply with section 9, including the pro-
Sec. 4 ENDANGERED SPECIES ACT OF 1973 6

hibition preventing extinction and taking of endangered species

and threatened species.

(b) BASIS FOR DETERMINATIONS.—(1)(A) The Secretary shall

make determinations required by subsection (a)(1) 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) on the basis of the best

scientific data available and after taking into consideration the economic impact, the impact on national security, 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, United States Code, to add a species to, or to remove a

species from, either of the lists published under subsection (c), 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—
7 ENDANGERED SPECIES ACT OF 1973 Sec. 4

2So in law. Probably should be paragraph ‘‘(7)’’.

(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) and to remove from such lists species for which

the protections of the Act 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 2 to prevent a significant risk to

the well being of any such species.

(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, United States Code, 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, United States Code

(relating to rulemaking procedures), shall apply to any regulation

promulgated to carry out the purposes of this Act.

(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), 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
Sec. 4 ENDANGERED SPECIES ACT OF 1973 8

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 with- drawal 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.
9 ENDANGERED SPECIES ACT OF 1973 Sec. 4

(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 with- drawal 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, United States Code, 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 and 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 Act 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 eval-
Sec. 4 ENDANGERED SPECIES ACT OF 1973 10

uation 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 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 sub- sections (a) and (b).

(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 subsection (a) and (b).

(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 9(a)(1), in the case

of fish or wildlife, or section 9(a)(2) 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 6(c) of this Act 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 through it is not listed pursuant to section 4 of this

Act 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 Act.
11 ENDANGERED SPECIES ACT OF 1973 Sec. 4

3So in law. Probably should be ‘‘; and’’. 4The reference to ‘‘the Committee on Merchant Marine and Fisheries’’ probably should refer

to ‘‘the Committee on Resources’’.

(f)(1) RECOVERY PLANS.—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; 3

(B) incorporate in each plan—

(i) a description of such site-specific management actions as may be necessary to achieve the plan’s 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 plan’s 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 4 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 Act 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).
Sec. 5 ENDANGERED SPECIES ACT OF 1973 12

5So in law. Probably should be paragraph ‘‘(7)’’.

(2) The Secretary shall make prompt use of the authority

under paragraph 7 5 of subsection (b) of this section to prevent a

significant risk to the well being of any such recovered species.

(h) AGENCY GUIDELINES.—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 the 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) 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) 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), the Secretary shall submit to the State agency a written justification for his failure to adopt regulations consistent with the

agency’s comments or petition.

LAND ACQUISITION

SEC. 5. (a) ø16 U.S.C. 1534¿ PROGRAM.—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 4 of this Act. 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, the Fish

and Wildlife Coordination Act, as amended, and the Migratory

Bird Conservation Act, 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 vested in

him.

(b) ACQUISITIONS.—Funds made available pursuant to the

Land and Water Conservation Fund Act of 1965, as amended, may

be used for the purpose of acquiring lands, waters, or interests

therein under subsection (a) of this section.
13 ENDANGERED SPECIES ACT OF 1973 Sec. 6

COOPERATION WITH THE STATES

SEC. 6. ø16 U.S.C. 1535¿ (a) GENERAL.—In carrying out the

program authorized by this Act, 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 401 of the Act of June 15, 1935 (49 Stat. 383;

16 U.S.C. 715s).

(c)(1) COOPERATIVE AGREEMENTS.—In furtherance of the purposes of this Act, 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

Act. Unless he determines, pursuant to this paragraph, that the

State program is not in accordance with this Act, 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

Act, 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
Sec. 6 ENDANGERED SPECIES ACT OF 1973 14

(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 4(d) or section 9(a)(1) with respect to the taking of any

resident endangered or threatened species.

(2) In furtherance of the purposes of this Act, 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 Act. Unless he determines,

pursuant to this paragraph, that the State program is not in

accordance with this Act, 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 findings, 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

Act, 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
15 ENDANGERED SPECIES ACT OF 1973 Sec. 6

authorized pursuant to section 4(d) or section 9(a)(1) 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 4(b)(3) and recovered species

pursuant to section 4(g). 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

Act;

(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

Act 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 bore 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
Sec. 6 ENDANGERED SPECIES ACT OF 1973 16

which may be enhanced by cooperation of such States, enter

jointly into 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 Act or by any regulation

which implements this Act, or (2) prohibit what is authorized pursuant to an exemption or permit provided for in this Act or in any

regulation which implements this Act. This Act 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 Act or in any regulation which implements this Act 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 the date of enactment of this Act 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 such date of enactment, or (B) the date of the close of the 15-

month period following such date of enactment.

(2) The prohibitions set forth in or authorized pursuant to sections 4(d) and 9(a)(1)(B) of this Act 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 section 6(c) of this Act (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
17 ENDANGERED SPECIES ACT OF 1973 Sec. 7

6So in law. Probably should refer to the Sport Fish Restoration Account provided for in section 9504(a)(2) of the Internal Revenue Code of 1986 (26 U.S.C. 9504(a)(2)).

species. The Secretary’s finding and publication may be

made without regard to the public hearing or comment

provisions of section 553 of title 5, United States Code, or

any other provision of this Act; 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 five percent of the combined amounts covered each

fiscal year into the Federal aid to wildlife restoration fund under

section 3 of the Act of September 2, 1937, 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 6.

(2) Amounts deposited into the special fund are authorized to

be appropriated annually and allocated in accordance with subsection (d) of this section.

INTERAGENCY COOPERATION

SEC. 7. ø16 U.S.C. 1536¿ (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 Act. 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 Act by carrying out programs for the conservation of endangered species and

threatened species listed pursuant to section 4 of this Act.

(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.
Sec. 7 ENDANGERED SPECIES ACT OF 1973 18

(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 4 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 sub- section (d).

(b) OPINION OF SECRETARY.—(1)(A) Consultation under subsection (a)(2) 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) 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), the Secretary shall provide to the

Federal agency and the applicant, if any, a written statement setting forth the Secretary’s 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) and can be taken by the Federal agency or applicant

in implementing the agency action.

(B) Consultation under subsection (a)(3), and an opinion based

by the Secretary incident to such consultation, regarding an agency

action shall be treated respectively as a consultation under subsection (a)(2), 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 oc-
19 ENDANGERED SPECIES ACT OF 1973 Sec. 7

curred 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 101(a)(5) of the Marine Mammal Protection Act of 1972;

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 101(a)(5) of the

Marine Mammal Protection Act of 1972 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) 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 the date of enactment of the Endangered

Species Act Amendments of 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 in 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

agency’s 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 biologi-
Sec. 7 ENDANGERED SPECIES ACT OF 1973 20

7So in law. At the end of section 7(e)(3)(D) of the Endangered Species Act of 1973, the second

‘‘Agency.’’ should had been stricken. 8So in law. At the end of section 7(e)(4)(B) of the Endangered Species Act of 1973, the period

at end of the paragraph was omitted.

cal 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), 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).

(e)(1) ESTABLISHMENT OF COMMITTEE.—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 action 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. Agency. 7

(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) 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 of the United States Code 8

(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 trans-
21 ENDANGERED SPECIES ACT OF 1973 Sec. 7

action 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, 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 subpoenas 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) REGULATIONS.—Not later than 90 days after the date of

enactment of the Endangered Species Act Amendments of 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.
Sec. 7 ENDANGERED SPECIES ACT OF 1973 22

(g) APPLICATION FOR EXEMPTION AND REPORT TO THE COM- MITTEE.—(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), the

Secretary’s opinion under subsection (b) indicates that the agency

action would violate subsection (a)(2). 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) 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), 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) 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);

(ii) conducted any biological assessment required by

subsection (c); and

(iii) to the extent determinable within the time provided herein, refrained from making any irreversible or
23 ENDANGERED SPECIES ACT OF 1973 Sec. 7

irretrievable commitment of resources prohibited by subsection (d); 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,

United States Code.

(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, United

States Code, 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 Sec- retary shall submit to the Committee a report discussing—

(A) the availability and 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).

(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, United States Code.

(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) 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). The Committee shall grant an exemption from the requirements of subsection (a)(2) 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
Sec. 7 ENDANGERED SPECIES ACT OF 1973 24

(g)(4), 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); 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 Committee under this subsection shall

be considered final agency action for purposes of chapter 7 of title

5 of the United States Code.

(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) 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) or was not identified in any

biological assessment conducted under subsection (c), and

(ii) the Committee determines within 60 days after the

date of the Secretary’s 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.—Notwithstanding any

other provision of this Act, 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.
25 ENDANGERED SPECIES ACT OF 1973 Sec. 7

(j) Notwithstanding any other provision of this Act, 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) SPECIAL PROVISIONS.—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 ORDERS.—(1) If the Committee determines

under subsection (h) 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 enhance- ment measures established pursuant to subsection (h) which shall

be carried out and paid for by the exemption applicant in implementing the agency action. All necessary mitigation and enhance- ment 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 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.—The 60-day notice requirement of section 11(g) of

this Act 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 3(13)

of this Act, may obtain judicial review, under chapter 7 of title 5

of the United States Code, of any decision of the Endangered Species Committee under subsection (h) 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
Sec. 8 ENDANGERED SPECIES ACT OF 1973 26

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, United States Code. 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 4(d) and 9(a)(1)(B) and

(C) of this Act, sections 101 and 102 of the Marine Mammal Protection Act of 1972, 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, 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, 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.

INTERNATIONAL COOPERATION

SEC. 8. ø16 U.S.C. 1537¿ (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 1415 of the

Supplemental Appropriation Act, 1953 (31 U.S.C. 724), use foreign

currencies accruing to the United States Government under the

Agricultural Trade Development and Assistance Act of 1954 or any

other law to provide to any foreign county (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 4 of this Act. 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
27 ENDANGERED SPECIES ACT OF 1973 Sec. 8A

section, such currencies shall be used in preference to funds appropriated under the authority of section 15 of this Act.

(b) ENCOURAGEMENT OF FOREIGN PROGRAMS.—In order to

carry out further the provisions of this Act, 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 4 of this Act;

(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 Act.

CONVENTION IMPLEMENTATION

SEC. 8A. ø16 U.S.C. 1537a¿ (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.—(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.
Sec. 8A ENDANGERED SPECIES ACT OF 1973 28

9The reference to ‘‘the Committee on Merchant Marine and Fisheries’’ in subsection (f)(3)

probably should refer to ‘‘the Committee on Resources’’.

(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 9

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.
29 ENDANGERED SPECIES ACT OF 1973 Sec. 9

PROHIBITED ACTS

SEC. 9. ø16 U.S.C. 1538¿ (a) GENERAL.—(1) Except as provided

in sections 6(g)(2) and 10 of this Act, with respect to any endangered species of fish or wildlife listed pursuant to section 4 of this

Act 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 a 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 4 of this Act and promulgated by the Secretary pursuant

to authority provided by this Act.

(2) Except as provided in sections 6(g)(2) and 10 of this Act,

with respect to any endangered species of plants listed pursuant to

section 4 of this Act, 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 4 of

this Act and promulgated by the Secretary pursuant to authority provided by this Act.

(b)(1) SPECIES HELD IN CAPTIVITY OR CONTROLLED ENVIRON- MENT.—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 4 of this Act: 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
Sec. 9 ENDANGERED SPECIES ACT OF 1973 30

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 4 of this Act, 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 subsections (a)(1) shall not apply to—

(i) any raptor legally held in captivity or in a controlled

environment on the effective date of the Endangered Species

Act Amendments of 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 4 of this Act but is listed in Appendix II

of 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 subsection (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 Act or any regulation issued pursuant to this Act.

(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 4 of this Act as endangered species or

threatened species, and (ii) are imported for purposes of

human or animal consumption or taken in waters under
31 ENDANGERED SPECIES ACT OF 1973 Sec. 9

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 OF 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 4 of this Act 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 Act 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 4 of this Act 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 purposes of facilitating enforcement of this Act 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
Sec. 10 ENDANGERED SPECIES ACT OF 1973 32

10Section 4(d) of such Act was repealed by section 14 of Public Law 93–205 (87 Stat. 903).

Also, there should be a closing parenthesis.

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 4(d) of the Act of December 5, 1969 (16

U.S.C. 666cc–4(d) 10, shall, if such designation is in effect on the

day before the date of the enactment of this Act, be deemed to be

a port designated by the Secretary under paragraph (1) of this subsection until such time as the Secretary otherwise provides.

(g) VIOLATIONS.—It is unlawful for any person subject to the

jurisdiction of the United States to attempt to commit, solicit another to commit, or cause to be committed, any offense defined in

this section.

EXCEPTIONS

SEC. 10. ø16 U.S.C. 1539¿ (a) PERMITS.—(1) The Secretary may

permit, under such terms and conditions as he shall prescribe—

(A) any act otherwise prohibited by section 9 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); or

(B) any taking otherwise prohibited by section 9(a)(1)(B) 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;
33 ENDANGERED SPECIES ACT OF 1973 Sec. 10

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 4 of this Act will cause undue hardship to such person

under the contract, the Secretary, in order to minimize such hardship, may exempt such person from the application of section 9(a)

of this Act 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 the effective date of this Act shall expire in accordance

with the terms of section 3 of the Act of December 5, 1969 (83 Stat.

275); 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.

(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 Act 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 Act; or

(C) curtailment of subsistence taking made unlawful under

this Act 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.
Sec. 10 ENDANGERED SPECIES ACT OF 1973 34

11So in law. Indentation of clause (ii) should be same as clause (i).

(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 section. 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 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 2 of this Act.

(e) ALASKA NATIVES.—(1) Except as provided in paragraph (4)

of this subsection the provisions of this Act 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 Alaska 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

11 (ii) The term ‘‘authentic native articles of handicrafts and

clothing’’ means items composed wholly or in some significant respect to 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,
35 ENDANGERED SPECIES ACT OF 1973 Sec. 10

weaving, carving, stitching, sewing, lacing, beading, drawing, and

painting.

(4) Notwithstanding the provisions of paragraph (l) 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 Act. Such regulations shall be prescribed after a notice and hearings in the affected judicial districts

of Alaska and as otherwise required by section 103 of the Marine

Mammal Protection Act of 1972, and shall be removed as soon as

the Secretary determines that the need for their impositions has

disappeared.

(f)(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 9(a)(1)(A) of this Act.

(B) Any prohibition set forth in section 9(a)(1) (E) or (F) of

this Act.

(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 oneyear period beginning on the date on which regulations promulgated by the Secretary to carry out this subsection first

take effect;
Sec. 10 ENDANGERED SPECIES ACT OF 1973 36

(B) contains a complete and detailed inventory of all preAct 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 9(a) of this Act 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 Act. No

regulation prescribed by the Secretary to carry out the purposes of

this subsection shall be subject to section 4(f)(2)(A)(i) of this Act.

(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 9(a)(1)(F).

(B) In the event that this paragraph is held invalid, the validity of the remainder of the Act, 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 9(a) prior

to the date of enactment of this subsection; or
37 ENDANGERED SPECIES ACT OF 1973 Sec. 10

12So in law. There is no clause (ii).

(B) immunize any person from prosecution for any such

act.

(8)(A)(i) 12 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 6-month period beginning on

the date of enactment of the Endangered Species Act Amendments

of 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 the date of such enactment.

(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) In connection with any action alleging a violation of section

9, any person claiming the benefit of any exemption or permit

under this Act 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.—(1) Sections 4(d), 9(a), and

9(c) 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 4;

(C) has not been repaired or modified with any part of any

such species on or after the date of the enactment of this Act;

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.
Sec. 10 ENDANGERED SPECIES ACT OF 1973 38

(4) Any person who imported, after December 27, 1973, and on

or before the date of the enactment of the Endangered Species Act

Amendments of 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 4;

(B) was forfeited to the United States before such date of

the enactment, or is subject to forfeiture to the United States

on such date of enactment, pursuant to the assessment of a

civil penalty under section 11; and

(C) is in the custody of the United States on such date of

enactment;

may, before the close of the one-year period beginning on such date

of enactment 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 Act.

(i) NONCOMMERCIAL TRANSSHIPMENTS.—Any importation into

the United States of fish or wildlife shall, if—

(1) such fish or wildlife was lawfully taken and exported

from the country of origin and country of reexport, if any;

(2) such fish or wildlife is in transit or transshipment

through any place subject to the jurisdiction of the United

States en route to a country where such fish or wildlife may

be lawfully imported and received;

(3) the exporter or owner of such fish or wildlife gave explicit instructions not to ship such fish or wildlife through any

place subject to the jurisdiction of the United States, or did all

that could have reasonably been done to prevent transshipment, and the circumstances leading to the transshipment

were beyond the exporter’s or owner’s control;

(4) the applicable requirements of the Convention have

been satisfied; and

(5) such importation is not made in the course of a commercial activity,

be an importation not in violation of any provision of this Act or

any regulation issued pursuant to this Act 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 deter-
39 ENDANGERED SPECIES ACT OF 1973 Sec. 11

mines 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 Act, each member of an experimental population shall be treated as a threatened species; except

that—

(i) solely for purposes of section 7 (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

4; and

(ii) critical habitat shall not be designated under this Act

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

the date of the enactment of this subsection, 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.

PENALTIES AND ENFORCEMENT

SEC. 11. ø16 U.S.C. 1540¿ (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 Act, 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 9 of this Act, 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 Act 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 Act, 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
Sec. 11 ENDANGERED SPECIES ACT OF 1973 40

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 by paragraph (1) of this subsection shall be conducted in accordance with section 554 of title 5, United States

Code. The Secretary may issue subpoenas 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 subpoena 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 Act, 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 Act, 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 9 of this Act 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 Act 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 Act 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 Act 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
41 ENDANGERED SPECIES ACT OF 1973 Sec. 11

13So in law. Probably should read ‘‘exceeds’’.

modification, suspension, or revocation of any leases, licenses, permits, stamps, or other agreements pursuant to this section.

(3) Notwithstanding any other provision of this Act, 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, United States Code, shall have jurisdiction over any

actions arising under this Act. For the purpose of this Act, 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 CERTAIN INCIDENTAL EXPENSES.—The Secretary or the Secretary of the Treasury shall pay, from sums received as penalties, fines, or forfeitures of property for any violations 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, 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. 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. Whenever the balance of sums received

under this section and section 6(d) of the Act of November 16, 1981

(16 U.S.C. 3375(d)) as penalties or fines, or from forfeitures of property, exceed 13 $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 6(i) of

this Act.

(e) ENFORCEMENT.—(1) The provisions of this Act 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 Act.

(2) The judges of the district courts of the United States and

the United States magistrates 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 Act 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
Sec. 11 ENDANGERED SPECIES ACT OF 1973 42

Coast Guard is operating, to enforce this Act may detain for inspection and inspect any package, crate, or other container, including

its contents, and all accompanying documents, upon importation or

exportation. Such persons may make arrests without a warrant for

any violation of this Act 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 Act. 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 the 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 Act, 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 Act, 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 Act, 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

section 11(b)(1) of this Act.

(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 Act, insofar as such provisions of law

are applicable and not inconsistent with the provisions of this Act;

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 Act, 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 Act or regulation issued under authority thereof.
43 ENDANGERED SPECIES ACT OF 1973 Sec. 11

(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 Act, and charge reasonable

fees for expenses to the Government connected with permits or certificates authorized by this Act 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 Act. 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

Act or regulation issued under the authority thereof; or

(B) to compel the Secretary to apply, pursuant to section

6(g)(2)(B)(ii) of this Act, the prohibitions set forth in or authorized pursuant to section 4(d) or section 9(a)(1)(B) of this Act

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 4

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
Sec. 12 ENDANGERED SPECIES ACT OF 1973 44

(ii) if the Secretary has commenced and is diligently prosecuting action under section 6(g)(2)(B)(ii) of this Act 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 Act with the administration of the

animal quarantine laws (as defined in section 2509(f) of the Food,

Agriculture, Conservation, and Trade Act of 1990 (21 U.S.C.

136a(f)) and section 306 of the Tariff Act of 1930 (19 U.S.C. 1306).

Nothing in this Act or any amendment made by this Act 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 Act

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 Act 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, 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.

ENDANGERED PLANTS

SEC. 12. ø16 U.S.C. 1541¿ 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 the date of the enactment of this Act, the results of
45 ENDANGERED SPECIES ACT OF 1973 Sec. 17

14So in law. Probably should be ‘‘section’’.

such review including recommendations for new legislation or the

amendment of existing legislation.

CONFORMING AMENDMENTS

SEC. 13. øSection 13 consists of amendments to other Acts.¿

REPEALER

SEC. 14. øSection 14 consists of repeals of provisions of law.¿

AUTHORIZATION OF APPROPRIATIONS

SEC. 15. ø16 U.S.C. 1542¿ (a) IN GENERAL.—Except as provided in subsection (b), (c), and (d), 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 Act;

(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 Act; 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 Act and

the Convention which pertain to the importation or exportation

of plants.

(b) EXEMPTIONS FROM ACT.—There are authorized to be appropriated to the Secretary to assist him and the Endangered Species

Committee in carrying out their functions under sections 14 7 (e),

(g), and (h) not to exceed $600,000 for each of fiscal years 1988,

1989, 1990, 1991, and 1992.

(c) CONVENTION IMPLEMENTATION.—There are authorized to be

appropriated to the Department of the Interior for purposes of carrying out section 8A(e) 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.

EFFECTIVE DATE

SEC. 16. ø16 U.S.C. 1531 note¿ This Act shall take effect on

the date of its enactment.

MARINE MAMMAL PROTECTION ACT OF 1972

SEC. 17. ø16 U.S.C. 1543¿ Except as otherwise provided in this

Act, no provision of this Act shall take precedence over any more
Sec. 18 ENDANGERED SPECIES ACT OF 1973 46

restrictive conflicting provision of the Marine Mammal Protection

Act of 1972.

ANNUAL COST ANALYSIS BY THE FISH AND WILDLIFE SERVICE

SEC. 18. ø16 U.S.C. 1544¿ 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 unidentifiable Federal expenditures made primarily for

the conservation of endangered or threatened species pursuant

to this Act; and

(2) an accounting on a species by species basis for all reasonably identifiable expenditures made primarily for the conservation of endangered or threatened species pursuant to this

Act by States receiving grants under section 6.