II 118th CONGRESS 1st Session S. 1149 IN THE SENATE OF THE UNITED STATES March 30, 2023 Mr. Heinrich (for himself and Mr. Tillis ) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works A BILL To amend the Pittman-Robertson Wildlife Restoration Act to make supplemental funds available for management of fish and wildlife species of greatest conservation need as determined by State fish and wildlife agencies, and for other purposes.

1. Short title This Act may be cited as the Recovering America’s Wildlife Act of 2023 . 2. Statement of purpose The purpose of this Act is to extend financial and technical assistance to States, territories, the District of Columbia, and Indian Tribes, including under the Pittman-Robertson Wildlife Restoration Act ( 16 U.S.C. 669 et seq. ), for the purpose of avoiding the need to list species, or recovering species currently listed as a threatened species or an endangered species, under the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq. ) or under State law. 3. Sense of Congress relating to offsets It is the sense of Congress that the costs of carrying out this Act, and the amendments made by this Act, shall be offset. I Wildlife Conservation and Restoration 101. Wildlife conservation and restoration subaccount (a) In general Section 3 of the Pittman-Robertson Wildlife Restoration Act ( 16 U.S.C. 669b ) is amended in subsection (c)— (1) by redesignating paragraphs (2) and (3) as paragraphs (9) and (10); and (2) by striking paragraph (1) and inserting the following: (1) Establishment of subaccount (A) In general There is established in the fund a subaccount to be known as the Wildlife Conservation and Restoration Subaccount (referred to in this section as the Subaccount ). (B) Availability Amounts in the Subaccount shall be available without further appropriation, for each fiscal year, for apportionment in accordance with this Act. (C) Deposits into Subaccount The Secretary of the Treasury shall transfer from the general fund of the Treasury to the Subaccount— (i) for fiscal year 2024, $850,000,000; (ii) for fiscal year 2025, $1,100,000,000; (iii) for fiscal year 2026, $1,200,000,000; and (iv) for fiscal year 2027, and each fiscal year thereafter, $1,300,000,000. (2) Supplement not supplant Amounts transferred to the Subaccount shall supplement, but not replace, existing funds available to the States from— (A) the funds distributed pursuant to the Dingell-Johnson Sport Fish Restoration Act ( 16 U.S.C. 777 et seq. ); and (B) the fund. (3) Innovation grants (A) In general The Secretary shall distribute 10 percent of funds apportioned from the Subaccount through a competitive grant program to State fish and wildlife departments, the District of Columbia fish and wildlife department, fish and wildlife departments of territories, or to regional associations of fish and wildlife departments (or any group composed of more than 1 such entity). (B) Purpose Such grants shall be provided for the purpose of catalyzing innovation of techniques, tools, strategies, or collaborative partnerships that accelerate, expand, or replicate effective and measurable recovery efforts for species of greatest conservation need and species listed under the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq. ) and the habitats of such species. (C) Review committee The Secretary shall appoint a review committee comprised of— (i) a State Director from each regional association of State fish and wildlife departments; (ii) the head of a department responsible for fish and wildlife management in a territory; (iii) one delegate from the United States Fish and Wildlife Service, for the purpose of providing technical assistance; and (iv) beginning in fiscal year 2024, four individuals representing four different nonprofit organizations each of which is actively participating in carrying out wildlife conservation restoration activities using funds apportioned from the Subaccount. (D) Support from united states fish and wildlife service Using not more than 3 percent of the amounts apportioned under subparagraph (A) to carry out a competitive grant program, the United States Fish and Wildlife Service shall provide any personnel or administrative support services necessary for such committee to carry out its responsibilities under this Act. (E) Evaluation Such committee shall evaluate each proposal submitted under this paragraph and recommend projects for funding, giving preference to solutions that accelerate the recovery of species identified as priorities through regional scientific assessments of species of greatest conservation need. (4) Use of funds Funds apportioned from the Subaccount shall be used for purposes consistent with section 2 of the Recovering America’s Wildlife Act of 2023 and— (A) shall be used to implement the Wildlife Conservation Strategy of a State, territory, or the District of Columbia, as required under section 4(e), by carrying out, revising, or enhancing existing wildlife and habitat conservation and restoration programs and developing and implementing new wildlife conservation and restoration programs to recover and manage species of greatest conservation need and the key habitats and plant community types essential to the conservation of those species, as determined by the appropriate State fish and wildlife department; (B) shall be used to develop, revise, and enhance the Wildlife Conservation Strategy of a State, territory, or the District of Columbia, as may be required by this Act; (C) shall be used to assist in the recovery of species found in the State, territory, or the District of Columbia that are listed as endangered species, threatened species, candidate species or species proposed for listing, or species petitioned for listing under the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq. ) or under State law; (D) may be used for wildlife conservation education and wildlife-associated recreation projects, especially in historically underserved communities; (E) may be used to manage a species of greatest conservation need whose range is shared with another State, territory, Indian Tribe, or foreign government and for the conservation of the habitat of such species; (F) may be used to manage, control, and prevent invasive species, disease, and other risks to species of greatest conservation need; and (G) may be used for law enforcement activities that are directly related to the protection and conservation of a species of greatest conservation need and the habitat of such species. (5) Minimum required spending for endangered species recovery Not less than an average of 15 percent over a 5-year period of amounts apportioned to a State, territory, or the District of Columbia from the Subaccount shall be used for purposes described in paragraph (4)(C). The Secretary may reduce the minimum requirement of a State, territory, or the District of Columbia on an annual basis if the Secretary determines that the State, territory, or the District of Columbia is meeting the conservation and recovery needs of all species described in paragraph (4)(C). (6) Public access to private lands not required Funds apportioned from the Subaccount shall not be conditioned upon the provision of public access to private lands, waters, or holdings. (7) Requirements for matching funds (A) For the purposes of the non-Federal fund matching requirement for a wildlife conservation or restoration program or project funded by the Subaccount, a State, territory, or the District of Columbia may use as matching non-Federal funds— (i) funds from Federal agencies other than the Department of the Interior and the Department of Agriculture; (ii) donated private lands and waters, including privately owned easements; (iii) in circumstances described in subparagraph (B), revenue generated through the sale of State hunting and fishing licenses; and (iv) other sources consistent with part 80 of title 50, Code of Federal Regulations, in effect on the date of enactment of the Recovering America’s Wildlife Act of 2023 . (B) Revenue described in subparagraph (A)(iii) may only be used to fulfill the requirements of such non-Federal fund matching requirement if— (i) no Federal funds apportioned to the State fish and wildlife department of such State from the Wildlife Restoration Program or the Sport Fish Restoration Program have been reverted because of a failure to fulfill such non-Federal fund matching requirement by such State during the previous 2 years; and (ii) the project or program being funded benefits the habitat of a hunted or fished species and a species of greatest conservation need. (8) Definitions In this subsection, the following definitions apply: (A) Partnerships The term partnerships may include collaborative efforts with Federal agencies, State agencies, local agencies, Indian Tribes, nonprofit organizations, academic institutions, industry groups, and private individuals to implement a State’s Wildlife Conservation Strategy. (B) Species of greatest conservation need The term species of greatest conservation need may be fauna or flora, and may include terrestrial, aquatic, marine, and invertebrate species that are of low population, declining, rare, or facing threats and in need of conservation attention, as determined by each State fish and wildlife department, with respect to funds apportioned to such State. (C) Territory and territories The terms territory and territories mean the Commonwealth of Puerto Rico, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and the United States Virgin Islands. (D) Wildlife The term wildlife means any species of wild, freeranging fauna, including fish, and also fauna in captive breeding programs the object of which is to reintroduce individuals of a depleted indigenous species into previously occupied range. . (b) Allocation and Apportionment of available amounts Section 4 of the Pittman-Robertson Wildlife Restoration Act ( 16 U.S.C. 669c ) is amended— (1) in subsection (d)— (A) in paragraph (1)— (i) in subparagraph (A), by striking to the District of Columbia and to the Commonwealth of Puerto Rico, each and inserting To the District of Columbia ; (ii) in subparagraph (B)— (I) by striking to Guam and inserting To Guam ; and (II) by striking not more than one-fourth of one percent and inserting not less than one-third of one percent ; and (iii) by adding at the end the following: (C) To the Commonwealth of Puerto Rico, a sum equal to not less than 1 percent thereof. ; (B) in paragraph (2)(A)— (i) by amending clause (i) to read as follows: (i) one-half of which is based on the ratio to which the land and water area of such State bears to the total land and water area of all such States; ; (ii) in clause (ii)— (I) by striking two-thirds and inserting one-quarter ; and (II) by striking the period and inserting ; and ; and (iii) by adding at the end the following: (iii) one-quarter of which is based upon the ratio to which the number of species listed as endangered or threatened under the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq. ) in such State bears to the total number of such species listed in all such States. ; (C) by amending paragraph (2)(B) to read as follows: (B) The amounts apportioned under this paragraph shall be adjusted equitably so that no such State, unless otherwise designated, shall be apportioned a sum which is less than 1 percent or more than 5 percent of the amount available for apportionment under— (i) subparagraph (A)(i); (ii) subparagraph (A)(ii); and (iii) the overall amount available for subparagraph (A). ; and (D) in paragraph (3), by striking 3 percent and inserting 1.85 percent ; (2) in subsection (e)(4)— (A) by amending subparagraph (B) to read as follows: (B) Not more than an average of 15 percent over a 5-year period of amounts apportioned to each State, territory, or the District of Columbia under this section for a wildlife conservation and restoration program may be used for wildlife conservation education and wildlife-associated recreation. ; and (B) by inserting after subparagraph (B), as so amended, the following: (C) 5 percent of amounts apportioned to each State, each territory, or the District of Columbia under this section for a wildlife conservation and restoration program shall be reserved for States and territories that include plants among their species of greatest conservation need and in the conservation planning and habitat prioritization efforts of their Wildlife Conservation Strategy. Each eligible State, territory, or the District of Columbia shall receive an additional 5 percent of their apportioned amount. Any unallocated resources shall be allocated proportionally among all States and territories under the formulas of this section. ; and (3) by adding at the end following: (f) Minimization of planning and reporting Nothing in this Act shall be interpreted to require a State to create a comprehensive strategy related to conservation education or outdoor recreation. (g) Accountability (1) In general Not more than one year after the date of enactment of the Recovering America’s Wildlife Act of 2023 and every 3 years thereafter, each State fish and wildlife department shall submit a 3-year work plan and budget for implementing its Wildlife Conservation Strategy and a report describing the results derived from activities accomplished under subsection (e) during the previous 3 years to the United States Fish and Wildlife Service for review, which shall summarize such findings and submit a report to— (A) the Committee on Environment and Public Works of the Senate; and (B) the Committee on Natural Resources of the House of Representatives. (2) Requirements The format of the 3-year work plans, budgets, and reports required under paragraph (1) shall be established by the United States Fish and Wildlife Service, in consultation with the Association of Fish and Wildlife Agencies. (3) GAO study Not later than 7 years after the date of enactment of the Recovering America’s Wildlife Act of 2023 , the Comptroller General of the United States shall conduct a study to examine the progress of States, territories, the District of Columbia, and Indian Tribes towards achieving the purpose described in section 2 of that Act. . 102. Technical amendments (a) Definitions Section 2 of the Pittman-Robertson Wildlife Restoration Act ( 16 U.S.C. 669a ) is amended— (1) in paragraph (7), by striking including fish, ; and (2) in paragraph (9), by inserting Indian Tribes, academic institutions, before wildlife conservation organizations . (b) Conforming amendments The Pittman-Robertson Wildlife Restoration Act ( 16 U.S.C. 669 et seq. ) is amended— (1) in section 3— (A) in subsection (a)— (i) by striking (1) An amount equal to and inserting An amount equal to ; and (ii) by striking paragraph (2); (B) in subsection (c)— (i) in paragraph (9), as redesignated by section 101(a)(1), by striking or an Indian tribe ; and (ii) in paragraph (10), as redesignated by section 101(a)(1), by striking Wildlife Conservation and Restoration Account and inserting Subaccount ; and (C) in subsection (d), by striking Wildlife Conservation and Restoration Account and inserting Subaccount ; (2) in section 4 ( 16 U.S.C. 669c )— (A) in subsection (d)— (i) in the heading, by striking account and inserting subaccount ; and (ii) by striking Account each place it appears and inserting Subaccount ; and (B) in subsection (e)(1), by striking Account and inserting Subaccount ; and (3) in section 8 ( 16 U.S.C. 669g ), in subsection (a), by striking Account and inserting Subaccount . 103. Savings clause The Pittman-Robertson Wildlife Restoration Act ( 16 U.S.C. 669 et seq. ) is amended— (1) by redesignating section 14 as section 16; and (2) by inserting after section 13 the following: 14. Savings clause Nothing in this Act shall be construed to enlarge or diminish the authority, jurisdiction, or responsibility of a State to manage, control, or regulate fish and wildlife under the law and regulations of the State on lands and waters within the State, including on Federal lands and waters. 15. Statutory construction with respect to Alaska If any conflict arises between any provision of this Act and any provision of the Alaska National Interest Lands Conservation Act ( 16 U.S.C. 3101 et seq. ) or the Alaska Native Claims Settlement Act ( 43 U.S.C. 1601 et seq. ), then the provision in the Alaska National Interest Lands Conservation Act or the Alaska Native Claims Settlement Act shall prevail. . II Tribal Wildlife Conservation and Restoration 201. Indian Tribes (a) Definitions In this section: (1) Account The term Account means the Tribal Wildlife Conservation and Restoration Account established by subsection (b)(1). (2) Indian tribe The term Indian Tribe has the meaning given such term in section 4 of the Indian Self-Determination and Education Assistance Act ( 25 U.S.C. 5304 ). (3) Secretary The term Secretary means the Secretary of the Interior. (4) Tribal species of greatest conservation need The term Tribal species of greatest conservation need means any species identified by an Indian Tribe as requiring conservation management because of declining population, habitat loss, or other threats, or because of their biological or cultural importance to such Tribe. (5) Wildlife The term wildlife means— (A) any species of wild flora or fauna including fish and marine mammals; (B) flora or fauna in a captive breeding, rehabilitation, and holding or quarantine program, the object of which is to reintroduce individuals of a depleted indigenous species into previously occupied range or to maintain a species for conservation purposes; and (C) does not include game farm animals. (b) Tribal wildlife conservation and restoration account (1) In general There is established in the Treasury an account to be known as the Tribal Wildlife Conservation and Restoration Account . (2) Availability Amounts in the Account shall be available for each fiscal year without further appropriation for apportionment in accordance with this title. (3) Deposits into Account Beginning in fiscal year 2024, and for each fiscal year thereafter, the Secretary of the Treasury shall transfer $97,500,000 from the general fund of the Treasury to the Account. (c) Distribution of funds to Indian tribes Each fiscal year, the Secretary of the Treasury shall deposit funds into the Account and distribute such funds through a noncompetitive application process according to guidelines and criteria, and reporting requirements determined by the Secretary of the Interior, acting through the Director of the Bureau of Indian Affairs, in consultation with Indian Tribes. Such funds shall remain available until expended. (d) Wildlife management responsibilities The distribution guidelines and criteria described in subsection (c) shall be based, in part, upon an Indian Tribe's wildlife management responsibilities. Any funding allocated to an Indian Tribe in Alaska may only be used in a manner consistent with the Alaska Native Claims Settlement Act ( 43 U.S.C. 1601 et seq. ), the Alaska National Interest Lands Conservation Act ( 16 U.S.C. 3101 et seq. ), and Public Law 85–508 (commonly known as the Alaska Statehood Act ) (48 U.S.C. note prec. 21). Alaska Native Corporations or Tribes may enter into cooperative agreements with the State of Alaska on conservation projects of mutual concern. (e) Use of funds (1) In general Except as provided in paragraph (2), the Secretary may distribute funds from the Account to an Indian Tribe for any of the following purposes: (A) To develop, carry out, revise, or enhance wildlife conservation and restoration programs to manage Tribal species of greatest conservation need and the habitats of such species, as determined by the Indian Tribe. (B) To assist in the recovery of species listed as an endangered or threatened species under the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq. ). (C) For wildlife conservation education and wildlife-associated recreation projects. (D) To manage a Tribal species of greatest conservation need and the habitat of such species, the range of which may be shared with a foreign country, State, or other Indian Tribe. (E) To manage, control, and prevent invasive species as well as diseases and other risks to wildlife. (F) For law enforcement activities that are directly related to the protection and conservation of wildlife. (G) To develop, revise, and implement comprehensive wildlife conservation strategies and plans for such Tribe. (H) For the hiring and training of wildlife conservation and restoration program staff. (2) Conditions on the use of funds (A) Required use of funds In order to be eligible to receive funds under subsection (c), a Tribe’s application must include a proposal to use funds for at least one of the purposes described in subparagraphs (A) and (B) of paragraph (1). (B) Imperiled species recovery In distributing funds under this section, the Secretary shall distribute not less than 15 percent of the total funds distributed to proposals to fund the recovery of a species, subspecies, or distinct population segment listed as a threatened species, endangered species, or candidate species under the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq. ) or Tribal law. (C) Limitation In distributing funds under this section, the Secretary shall distribute not more than 15 percent of all funds distributed under this section for the purpose described in paragraph (1)(C). (f) No matching funds required No Indian Tribe shall be required to provide matching funds to be eligible to receive funds under this section. (g) Public access not required Funds apportioned from the Tribal Wildlife Conservation and Restoration Account shall not be conditioned upon the provision of public or non-Tribal access to Tribal or private lands, waters, or holdings. (h) Administrative costs Of the funds deposited under subsection (b)(3) for each fiscal year, not more than 3 percent shall be used by the Secretary for administrative costs. (i) Savings clause Nothing in this section shall be construed as modifying or abrogating a treaty with any Indian Tribe, or as enlarging or diminishing the authority, jurisdiction, or responsibility of an Indian Tribe to manage, control, or regulate wildlife. (j) Statutory construction with respect to Alaska If any conflict arises between any provision of this section and any provision of the Alaska National Interest Lands Conservation Act ( 16 U.S.C. 3101 et seq. ) or the Alaska Native Claims Settlement Act ( 43 U.S.C. 1601 et seq. ), then the provision in the Alaska National Interest Lands Conservation Act or the Alaska Native Claims Settlement Act shall prevail. III Endangered Species Recovery and Habitat Conservation Legacy Fund 301. Endangered Species Recovery and Habitat Conservation Legacy Fund (a) Establishment There is established in the Treasury of the United States a fund, to be known as the Endangered Species Recovery and Habitat Conservation Legacy Fund (referred to in this section as the Fund ). (b) Funding For each of fiscal years 2024 through 2027, the Secretary of the Treasury shall transfer from the general fund of the Treasury to the Fund $187,500,000. (c) Availability of funds Amounts in the Fund shall be available to the Secretary of the Interior, acting through the Director of the United States Fish and Wildlife Service (referred to in this section as the Secretary ), as provided in subsection (e), without further appropriation or fiscal year limitation. (d) Investment of amounts (1) In general The Secretary may request the Secretary of the Treasury to invest any portion of the Fund that is not, as determined by the Secretary, required to meet the current needs of the Fund. (2) Requirement An investment requested under paragraph (1) shall be made by the Secretary of the Treasury in a public debt security— (A) with a maturity suitable to the needs of the Fund, as determined by the Secretary; and (B) bearing interest at a rate determined by the Secretary of the Treasury, taking into consideration current market yields on outstanding marketable obligations of the United States of comparable maturity. (3) Credits to Fund The income on investments of the Fund under this subsection shall be credited to, and form a part of, the Fund. (e) Use of funds Amounts in the Fund shall be used for recovering the species managed under the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq. ), in addition to amounts otherwise available for such purposes, as follows: (1) Endangered Species Recovery Grant Program $75,000,000 for each of fiscal years 2024 through 2027, to remain available until expended, shall be used to establish and implement a grant and technical assistance program, to be known as the Endangered Species Recovery Grant Program , to provide competitive matching grants for the purpose of recovering species listed as a threatened species or an endangered species under section 4 of the Endangered Species Act of 1973 ( 16 U.S.C. 1533 ) by addressing the backlog in the development of recovery plans, and implementing the backlog of activities identified in existing recovery plans, under subsection (f) of that section ( 16 U.S.C. 1533(f) ). The Secretary shall enter into an agreement with the National Fish and Wildlife Foundation to establish and cooperatively manage the Endangered Species Recovery Grant Program in accordance with the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq. ) and the National Fish and Wildlife Foundation Establishment Act ( 16 U.S.C. 3701 et seq. ). (2) Interagency consultation responsibilities $75,000,000 for each of fiscal years 2024 through 2027, to remain available until expended, shall be used for the United States Fish and Wildlife Service to address interagency consultation responsibilities under section 7 of the Endangered Species Act of 1973 ( 16 U.S.C. 1536 ). (3) Conservation activities $28,125,000 for each of fiscal years 2024 through 2027, to remain available until expended, shall be used for the United States Fish and Wildlife Service to work with non-Federal entities, including through, but not limited to, the Partners for Fish and Wildlife Program, the Coastal Program, and the North American Wetlands Conservation Act ( 16 U.S.C. 4401 et seq. )— (A) to conserve at risk species, species that are candidates or proposed for listing, and species that are listed as threatened or endangered species under section 4 of the Endangered Species Act of 1973 ( 16 U.S.C. 1533 ), including through rescue and rehabilitation efforts; and (B) to conserve wildlife habitat. (4) Voluntary conservation agreements $9,375,000 for each of fiscal years 2024 through 2027, to remain available until expended, shall be used for the United States Fish and Wildlife Service to address the development and permitting of voluntary conservation agreements under section 10 of the Endangered Species Act of 1973 ( 16 U.S.C. 1539 ). (f) Supplement, not supplant Amounts made available under this section shall supplement and not supplant any other Federal amounts made available to carry out activities described in this section in an annual appropriations Act of Congress. (g) Submission of species lists to Congress (1) Priority list of species Not later than 90 days after the date of enactment of this Act, the Secretary, shall submit to the Committees on Environment and Public Works and Appropriations of the Senate and the Committees on Natural Resources and Appropriations of the House of Representatives a list of threatened species and endangered species for which recovery plans described in subsection (e)(1) will be developed or implemented for fiscal year 2024. (2) Annual list of species Until the date on which all of the amounts in the Fund are expended, the President shall annually submit to Congress, together with the annual budget of the United States, a list of threatened species and endangered species for which recovery plans described in subsection (e)(1) will be developed or implemented with amounts from the Fund. (h) Public donations (1) In general The Secretary may accept public cash donations that advance efforts— (A) to address the backlog in the development and implementation of recovery plans; and (B) to encourage relevant public-private partnerships. (2) Credits to fund Any cash donations accepted under paragraph (1) shall be credited to, and form a part of, the Fund. (3) Rejection of donations The Secretary may reject a donation under this section when the rejection is in the interest of the Federal Government, as determined by the Secretary. (i) Allocation authority (1) Submission of cost estimates The President shall submit to Congress detailed allocations by program element of the amount recommended for allocation in a fiscal year from amounts made available under subsection (c), consistent with the use of funds under subsection (e), as follows: (A) For fiscal year 2024, not later than 90 days after the date of enactment of this Act. (B) For each fiscal year thereafter, until the date on which all of the amounts in the Fund are allocated, as part of the annual budget submission of the President under section 1105(a) of title 31, United States Code. (2) Alternate allocation (A) In general The Committees on Appropriations of the Senate and House of Representatives may provide for alternate allocation of amounts recommended for allocation in a given fiscal year from amounts made available under subsection (c), consistent with the use of funds under subsection (e), including allocations by program element. (B) Allocation by President (i) No alternate allocations If Congress has not enacted legislation establishing alternate allocations, including by program, by the date on which the Act making full-year appropriations for the Department of the Interior, Environment, and Related Agencies for the applicable fiscal year is enacted into law, only then shall amounts recommended for allocation for that fiscal year from amounts made available under subsection (c), consistent with the use of funds under subsection (e), be allocated by the President or apportioned or allotted by program pursuant to title 31, United States Code. (ii) Insufficient alternate allocation If Congress enacts legislation establishing alternate allocations, including by program, for amounts recommended for allocation in a given fiscal year from amounts made available under subsection (c), consistent with the use of funds under subsection (e), that are less than the full amount recommended for allocation for that fiscal year, the difference between the amount recommended for allocation and the alternate allocation shall be allocated by the President and apportioned and allotted by program pursuant to title 31, United States Code. (j) Prohibitions No amounts from the Fund shall be used— (1) to make any listing determination relating to the endangered or threatened status of any species pursuant to section 4(a) of the Endangered Species Act of 1973 ( 16 U.S.C. 1533(a) ); (2) on any experimental population (as defined in paragraph (1) of section 10(j) of the Endangered Species Act of 1973 ( 16 U.S.C. 1539(j) )) of a threatened or endangered species that is determined to be nonessential under that section; (3) outside of the United States (as defined in section 3 of the Endangered Species Act of 1973 ( 16 U.S.C. 1532 )); and (4) to acquire any Federal land.