-CITE-

16 USC CHAPTER 35 - ENDANGERED SPECIES 01/06/03

-EXPCITE-

TITLE 16 - CONSERVATION

CHAPTER 35 - ENDANGERED SPECIES

.

-HEAD-

CHAPTER 35 - ENDANGERED SPECIES

-MISC1-

Sec.

1531. Congressional findings and declaration of purposes and

policy.

(a) Findings.

(b) Purposes.

(c) Policy.

1532. Definitions.

1533. Determination of endangered species and threatened species.

(a) Generally.

(b) Basis for determinations.

(c) Lists.

(d) Protective regulations.

(e) Similarity of appearance cases.

(f) Recovery plans.

(g) Monitoring.

(h) Agency guidelines; publication in Federal

Register; scope; proposals and amendments:

notice and opportunity for comments.

(i) Submission to State agency of justification for

regulations inconsistent with State agency's

comments or petition.

1534. Land acquisition.

(a) Implementation of conservation program;

authorization of Secretary and Secretary of

Agriculture.

(b) Availability of funds for acquisition of lands,

waters, etc.

1535. Cooperation with States.

(a) Generally.

(b) Management agreements.

(c) Cooperative agreements.

(d) Allocation of funds.

(e) Review of State programs.

(f) Conflicts between Federal and State laws.

(g) Transition.

(h) Regulations.

(i) Appropriations.

1536. Interagency cooperation.

(a) Federal agency actions and consultations.

(b) Opinion of Secretary.

(c) Biological assessment.

(d) Limitation on commitment of resources.

(e) Endangered Species Committee.

(f) Promulgation of regulations; form and contents of

exemption application.

(g) Application for exemption; report to Committee.

(h) Grant of exemption.

(i) Review by Secretary of State; violation of

international treaty or other international

obligation of United States.

(j) Exemption for national security reasons.

(k) Exemption decision not considered major Federal

action; environmental impact statement.

(l) Committee order granting exemption; cost of

mitigation and enhancement measures; report by

applicant to Council on Environmental Quality.

(m) Notice requirement for citizen suits not

applicable.

(n) Judicial review.

(o) Exemption as providing exception on taking of

endangered species.

(p) Exemptions in Presidentially declared disaster

areas.

1537. International cooperation.

(a) Financial assistance.

(b) Encouragement of foreign programs.

(c) Personnel.

(d) Investigations.

1537a. Convention implementation.

(a) Management Authority and Scientific Authority.

(b) Management Authority functions.

(c) Scientific Authority functions; determinations.

(d) Reservations by the United States under

Convention.

(e) Wildlife preservation in Western Hemisphere.

1538. Prohibited acts.

(a) Generally.

(b) Species held in captivity or controlled

environment.

(c) Violation of Convention.

(d) Imports and exports.

(e) Reports.

(f) Designation of ports.

(g) Violations.

1539. Exceptions.

(a) Permits.

(b) Hardship exemptions.

(c) Notice and review.

(d) Permit and exemption policy.

(e) Alaska natives.

(f) Pre-Act endangered species parts exemption;

application and certification; regulation;

validity of sales contract; separability;

renewal of exemption; expiration of renewal

certification.

(g) Burden of proof.

(h) Certain antique articles; importation; port

designation; application for return of

articles.

(i) Noncommercial transshipments.

(j) Experimental populations.

1540. Penalties and enforcement.

(a) Civil penalties.

(b) Criminal violations.

(c) District court jurisdiction.

(d) Rewards and incidental expenses.

(e) Enforcement.

(f) Regulations.

(g) Citizen suits.

(h) Coordination with other laws.

1541. Endangered plants.

1542. Authorization of appropriations.

(a) In general.

(b) Exemptions.

(c) Convention implementation.

1543. Construction with Marine Mammal Protection Act of 1972.

1544. Annual cost analysis by Fish and Wildlife Service.

-SECREF-

CHAPTER REFERRED TO IN OTHER SECTIONS

This chapter is referred to in sections 410aaa-80, 460iii-5,

460jjj-1, 460lll, 471j, 545b, 620, 823c, 1362, 1371, 1387, 1389,

1413, 1881a, 2404, 2407, 2408, 2705, 2902, 2912, 3125, 3645, 3741,

3743, 4202, 4241, 4244, 4401, 4402, 4404, 4912, 5301, 5305a, 6406

of this title; title 7 sections 136, 2814; title 25 section 715c;

title 33 sections 2283, 2333.

-CITE-

16 USC Sec. 1531 01/06/03

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TITLE 16 - CONSERVATION

CHAPTER 35 - ENDANGERED SPECIES

-HEAD-

Sec. 1531. Congressional findings and declaration of purposes and

policy

-STATUTE-

(a) Findings

The Congress finds and declares that -

(1) various species of fish, wildlife, and plants in the United

States have been rendered extinct as a consequence of economic

growth and development untempered by adequate concern and

conservation;

(2) other species of fish, wildlife, and plants have been so

depleted in numbers that they are in danger of or threatened with

extinction;

(3) these species of fish, wildlife, and plants are of

esthetic, ecological, educational, historical, recreational, and

scientific value to the Nation and its people;

(4) the United States has pledged itself as a sovereign state

in the international community to conserve to the extent

practicable the various species of fish or wildlife and plants

facing extinction, pursuant to -

(A) migratory bird treaties with Canada and Mexico;

(B) the Migratory and Endangered Bird Treaty with Japan;

(C) the Convention on Nature Protection and Wildlife

Preservation in the Western Hemisphere;

(D) the International Convention for the Northwest Atlantic

Fisheries;

(E) the International Convention for the High Seas Fisheries

of the North Pacific Ocean;

(F) the Convention on International Trade in Endangered

Species of Wild Fauna and Flora; and

(G) other international agreements; and

(5) encouraging the States and other interested parties,

through Federal financial assistance and a system of incentives,

to develop and maintain conservation programs which meet national

and international standards is a key to meeting the 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 chapter are to provide a means whereby the

ecosystems upon which endangered species and threatened species

depend may be conserved, to provide a program for the conservation

of such endangered species and threatened species, and to take such

steps as may be appropriate to achieve the purposes of the treaties

and conventions set forth in subsection (a) of this section.

(c) Policy

(1) It is further declared to be the policy of Congress that all

Federal departments and agencies shall seek to conserve endangered

species and threatened species and shall utilize their authorities

in furtherance of the purposes of this chapter.

(2) It is further declared to be the policy of Congress that

Federal agencies shall cooperate with State and local agencies to

resolve water resource issues in concert with conservation of

endangered species.

-SOURCE-

(Pub. L. 93-205, Sec. 2, Dec. 28, 1973, 87 Stat. 884; Pub. L.

96-159, Sec. 1, Dec. 28, 1979, 93 Stat. 1225; Pub. L. 97-304, Sec.

9(a), Oct. 13, 1982, 96 Stat. 1426; Pub. L. 100-478, title I, Sec.

1013(a), Oct. 7, 1988, 102 Stat. 2315.)

-REFTEXT-

REFERENCES IN TEXT

This chapter, referred to in subsecs. (b) and (c)(1), was in the

original ''this Act'', meaning Pub. L. 93-205, Dec. 28, 1973, 81

Stat. 884, as amended, known as the ''Endangered Species Act of

1973'', which is classified generally to this chapter. For

complete classification of this Act to the Code, see Short Title

note set out below and Tables.

-MISC2-

AMENDMENTS

1988 - Subsec. (a)(4)(G). Pub. L. 100-478 substituted ''; and''

for period at end.

1982 - Subsec. (c). Pub. L. 97-304 designated existing provisions

as par. (1) and added par. (2).

1979 - Subsec. (a)(5). Pub. L. 96-159 substituted ''wildlife, and

plants'' for ''wildlife''.

EFFECTIVE DATE

Section 16 of Pub. L. 93-205 provided that: ''This Act (enacting

this chapter, amending sections 460k-1, 460l-9, 668dd, 715i, 715s,

1362, 1371, 1372, and 1402 of this title and section 136 of Title

7, Agriculture, repealing sections 668aa to 668cc-6 of this title,

and enacting provisions set out as notes under this section) shall

take effect on the date of its enactment (Dec. 28, 1973).''

SHORT TITLE OF 1982 AMENDMENT

Section 1 of Pub. L. 97-304 provided: ''That this Act (amending

this section and sections 1532, 1533, 1535, 1536, 1537a, 1538,

1539, 1540, and 1542 of this title and enacting provisions set out

as notes under sections 1533, 1537a, and 1539 of this title) may be

cited as the 'Endangered Species Act Amendments of 1982'.''

SHORT TITLE OF 1978 AMENDMENT

Pub. L. 95-632, Sec. 1, Nov. 10, 1978, 92 Stat. 3751, provided:

''That this Act (amending sections 1532 to 1536, 1538 to 1540, and

1542 of this title) may be cited as the 'Endangered Species Act

Amendments of 1978'.''

SHORT TITLE

Section 1 of Pub. L. 93-205 provided: ''That this Act (enacting

this chapter, amending sections 460k-1, 460l-9, 668dd, 715i, 715s,

1362, 1371, 1372, and 1402 of this title and section 136 of Title

7, Agriculture, repealing sections 668aa to 668cc-6 of this title,

and enacting provisions set out as notes under this section) may be

cited as the 'Endangered Species Act of 1973'.''

RELATIONSHIP TO ENDANGERED SPECIES ACT OF 1973

Pub. L. 102-251, title III, Sec. 305, Mar. 9, 1992, 106 Stat. 66,

as amended by Pub. L. 104-208, div. A, title I, Sec. 101(a) (title

II, Sec. 211(b)), Sept. 30, 1996, 110 Stat. 3009, 3009-41, provided

that: ''The special areas defined in section 3(24) of the

Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C.

1802(24)) shall be considered places that are subject to the

jurisdiction of the United States for the purposes of the

Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).''

-EXEC-

MINIMIZATION OF CONFLICTS WITH RECREATIONAL FISHERIES

For provision that all Federal agencies minimize conflicts

between recreational fisheries and administration of this chapter,

see Ex. Ord. No. 12962, Sec. 4, June 7, 1995, 60 F.R. 30770, set

out as a note under section 1801 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 1539 of this title.

-CITE-

16 USC Sec. 1532 01/06/03

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TITLE 16 - CONSERVATION

CHAPTER 35 - ENDANGERED SPECIES

-HEAD-

Sec. 1532. Definitions

-STATUTE-

For the purpose of this chapter -

(1) The term ''alternative courses of action'' means all

alternatives and thus is not limited to original project

objectives and agency jurisdiction.

(2) The term ''commercial activity'' means all activities of

industry and trade, including, but not limited to, the buying or

selling of commodities and activities conducted for the purpose

of facilitating such buying and selling: Provided, however, That

it does not include exhibition of commodities by museums or

similar cultural or historical organizations.

(3) The terms ''conserve'', ''conserving'', and

''conservation'' mean to use and the use of all methods and

procedures which are necessary to bring any endangered species or

threatened species to the point at which the measures provided

pursuant to this chapter are no longer necessary. Such methods

and procedures include, but are not limited to, all activities

associated with scientific resources management such as research,

census, law enforcement, habitat acquisition and maintenance,

propagation, live trapping, and transplantation, and, in the

extraordinary case where population pressures within a given

ecosystem cannot be otherwise relieved, may include regulated

taking.

(4) The term ''Convention'' means the Convention on

International Trade in Endangered Species of Wild Fauna and

Flora, signed on March 3, 1973, and the appendices thereto.

(5)(A) The term ''critical habitat'' for a threatened or

endangered species means -

(i) the specific areas within the geographical area occupied

by the species, at the time it is listed in accordance with the

provisions of section 1533 of this title, on which are found

those physical or biological features (I) essential to the

conservation of the species and (II) which may require special

management considerations or protection; and

(ii) specific areas outside the geographical area occupied by

the species at the time it is listed in accordance with the

provisions of section 1533 of this title, upon a determination

by the Secretary that such areas are essential for the

conservation of the species.

(B) Critical habitat may be established for those species now

listed as threatened or endangered species for which no critical

habitat has heretofore been established as set forth in

subparagraph (A) of this paragraph.

(C) Except in those circumstances determined by the Secretary,

critical habitat shall not include the entire geographical area

which can be occupied by the threatened or endangered species.

(6) The term ''endangered species'' means any species which is

in danger of extinction throughout all or a significant portion

of its range other than a species of the Class Insecta determined

by the Secretary to constitute a pest whose protection under the

provisions of this chapter would present an overwhelming and

overriding risk to man.

(7) The term ''Federal agency'' means any department, agency,

or instrumentality of the United States.

(8) The term ''fish or wildlife'' means any member of the

animal kingdom, including without limitation any mammal, fish,

bird (including any migratory, nonmigratory, or endangered bird

for which protection is also afforded by treaty or other

international agreement), amphibian, reptile, mollusk,

crustacean, arthropod or other invertebrate, and includes any

part, product, egg, or offspring thereof, or the dead body or

parts thereof.

(9) The term ''foreign commerce'' includes, among other things,

any transaction -

(A) between persons within one foreign country;

(B) between persons in two or more foreign countries;

(C) between a person within the United States and a person in

a foreign country; or

(D) between persons within the United States, where the fish

and wildlife in question are moving in any country or countries

outside the United States.

(10) The term ''import'' means to land on, bring into, or

introduce into, or attempt to land on, bring into, or introduce

into, any place subject to the jurisdiction of the United States,

whether or not such landing, bringing, or introduction

constitutes an importation within the meaning of the customs laws

of the United States.

(11) Repealed. Pub. L. 97-304, Sec. 4(b), Oct. 13, 1982, 96

Stat. 1420.

(12) The term ''permit or license applicant'' means, when used

with respect to an action of a Federal agency for which exemption

is sought under section 1536 of this title, any person whose

application to such agency for a permit or license has been

denied primarily because of the application of section 1536(a) of

this title to such agency action.

(13) The term ''person'' means an individual, corporation,

partnership, trust, association, or any other private entity; or

any officer, employee, agent, department, or instrumentality of

the Federal Government, of any State, municipality, or political

subdivision of a State, or of any foreign government; any State,

municipality, or political subdivision of a State; or any other

entity subject to the jurisdiction of the United States.

(14) The term ''plant'' means any member of the plant kingdom,

including seeds, roots and other parts thereof.

(15) The term ''Secretary'' means, except as otherwise herein

provided, the Secretary of the Interior or the Secretary of

Commerce as program responsibilities are vested pursuant to the

provisions of Reorganization Plan Numbered 4 of 1970; except that

with respect to the enforcement of the provisions of this chapter

and the Convention which pertain to the importation or

exportation of terrestrial plants, the term also means the

Secretary of Agriculture.

(16) The term ''species'' includes any subspecies of fish or

wildlife or plants, and any distinct population segment of any

species of vertebrate fish or wildlife which interbreeds when

mature.

(17) The term ''State'' means any of the several States, the

District of Columbia, the Commonwealth of Puerto Rico, American

Samoa, the Virgin Islands, Guam, and the Trust Territory of the

Pacific Islands.

(18) The term ''State agency'' means any State agency,

department, board, commission, or other governmental entity which

is responsible for the management and conservation of fish,

plant, or wildlife resources within a State.

(19) The term ''take'' means to harass, harm, pursue, hunt,

shoot, wound, kill, trap, capture, or collect, or to attempt to

engage in any such conduct.

(20) The term ''threatened species'' means any species which is

likely to become an endangered species within the foreseeable

future throughout all or a significant portion of its range.

(21) The term ''United States'', when used in a geographical

context, includes all States.

-SOURCE-

(Pub. L. 93-205, Sec. 3, Dec. 28, 1973, 87 Stat. 885; Pub. L.

94-359, Sec. 5, July 12, 1976, 90 Stat. 913; Pub. L. 95-632, Sec.

2, Nov. 10, 1978, 92 Stat. 3751; Pub. L. 96-159, Sec. 2, Dec. 28,

1979, 93 Stat. 1225; Pub. L. 97-304, Sec. 4(b), Oct. 13, 1982, 96

Stat. 1420; Pub. L. 100-478, title I, Sec. 1001, Oct. 7, 1988, 102

Stat. 2306.)

-REFTEXT-

REFERENCES IN TEXT

The customs laws of the United States, referred to in par. (10),

are classified generally to Title 19, Customs Duties.

Reorganization Plan Numbered 4 of 1970, referred to in par. (15),

is Reorg. Plan No. 4 of 1970, eff. Oct. 3, 1970, 35 F.R. 15627, 84

Stat. 2090, which is set out in the Appendix to Title 5, Government

Organization and Employees.

-MISC2-

AMENDMENTS

1988 - Par. (13). Pub. L. 100-478, Sec. 1001(a), amended par.

(13) generally. Prior to amendment, par. (13) read as follows:

''The term 'person' means an individual, corporation, partnership,

trust, association, or any other private entity, or any officer,

employee, agent, department, or instrumentality of the Federal

Government, of any State or political subdivision thereof, or of

any foreign government.''

Par. (15). Pub. L. 100-478, Sec. 1001(b), inserted ''also''

before ''means the Secretary of Agriculture''.

1982 - Par. (11). Pub. L. 97-304 struck out par. (11) which

defined ''irresolvable conflict'' as, with respect to any action

authorized, funded, or carried out by a Federal agency, a set of

circumstances under which, after consultation as required in

section 1536(a) of this title, completion of such action would

violate section 1536(a)(2) of this title.

1979 - Par. (11). Pub. L. 96-159 substituted ''action would

violate section 1536(a)(2) of this title'' for ''action would (A)

jeopardize the continued existence of an endangered or threatened

species, or (B) result in the adverse modification or destruction

of a critical habitat''.

1978 - Pars. (1) to (4). Pub. L. 95-632, Sec. 2(1), (7), added

par. (1) and redesignated former pars. (1) to (3) as (2) to (4),

respectively. Former par. (4) redesignated (6).

Par. (5). Pub. L. 95-632, Sec. 2(2), (7), added par. (5). Former

par. (5) redesignated (8).

Par. (6). Pub. L. 95-632, Sec. 2(7), redesignated former par. (4)

as (6). Former par. (6) redesignated (9).

Par. (7). Pub. L. 95-632, Sec. 2(3), (7), added par. (7). Former

par. (7) redesignated (10).

Pars. (8) to (10). Pub. L. 95-632, Sec. 2(7), redesignated former

pars. (5) to (7) as (8) to (10), respectively. Former pars. (8) to

(10) redesignated (13) to (15), respectively.

Pars. (11), (12). Pub. L. 95-632, Sec. 2(4), (7), added pars.

(11) and (12). Former pars. (11) and (12) redesignated (16) and

(17), respectively.

Pars. (13) to (15). Pub. L. 95-632, Sec. 2(7), redesignated

former pars. (8) to (10) as (13) to (15), respectively. Former

pars. (13) to (15) redesignated as (18) to (20), respectively.

Par. (16). Pub. L. 95-632, Sec. 2(5), (7), redesignated former

par. (11) as (16) and substituted ''and any distinct population

segment of any species of vertebrate fish or wildlife which

interbreeds when mature'' for ''and any other group of fish or

wildlife of the same species or smaller taxa in common spatial

arrangement that interbreed when mature''. Former par. (16)

redesignated (21).

Par. (17). Pub. L. 95-632, Sec. 2(7), redesignated former par.

(12) as (17).

Par. (18). Pub. L. 95-632, Sec. 2(6), (7), redesignated former

par. (13) as (18) and substituted ''fish, plant, or wildlife'' for

''fish or wildlife''.

Pars. (19) to (21). Pub. L. 95-632, Sec. 2(7), redesignated pars.

(14) to (16) as (19) to (21), respectively.

1976 - Par. (1). Pub. L. 94-359 inserted '': Provided, however,

That it does not include exhibition of commodities by museums or

similar cultural or historical organizations.'' after

''facilitating such buying and selling''.

-TRANS-

TERMINATION OF TRUST TERRITORY OF THE PACIFIC ISLANDS

For termination of Trust Territory of the Pacific Islands, see

note set out preceding section 1681 of Title 48, Territories and

Insular Possessions.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 1536 of this title.

-CITE-

16 USC Sec. 1533 01/06/03

-EXPCITE-

TITLE 16 - CONSERVATION

CHAPTER 35 - ENDANGERED SPECIES

-HEAD-

Sec. 1533. Determination of endangered species and threatened

species

-STATUTE-

(a) Generally

(1) The Secretary shall by regulation promulgated in accordance

with subsection (b) of this section determine whether any species

is an endangered species or a threatened species because of any of

the following factors:

(A) the present or threatened destruction, modification, or

curtailment of its habitat or range;

(B) overutilization for commercial, recreational, scientific,

or educational purposes;

(C) disease or predation;

(D) the inadequacy of existing regulatory mechanisms; or

(E) other natural or manmade factors affecting its continued

existence.

(2) With respect to any species over which program

responsibilities have been vested in the Secretary of Commerce

pursuant to Reorganization Plan Numbered 4 of 1970 -

(A) in any case in which the Secretary of Commerce determines

that such species should -

(i) be listed as an endangered species or a threatened

species, or

(ii) be changed in status from a threatened species to an

endangered species,

he shall so inform the Secretary of the Interior; who shall list

such species in accordance with this section;

(B) in any case in which the Secretary of Commerce determines

that such species should -

(i) be removed from any list published pursuant to subsection

(c) of this section, or

(ii) be changed in status from an endangered species to a

threatened species,

he shall recommend such action to the Secretary of the Interior,

and the Secretary of the Interior, if he concurs in the

recommendation, shall implement such action; and

(C) the Secretary of the Interior may not list or remove from

any list any such species, and may not change the status of any

such species which are listed, without a prior favorable

determination made pursuant to this section by the Secretary of

Commerce.

(3) The Secretary, by regulation promulgated in accordance with

subsection (b) of this section and to the maximum extent prudent

and determinable -

(A) shall, concurrently with making a determination under

paragraph (1) that a species is an endangered species or a

threatened species, designate any habitat of such species which

is then considered to be critical habitat; and

(B) may, from time-to-time thereafter as appropriate, revise

such designation.

(b) Basis for determinations

(1)(A) The Secretary shall make determinations required by

subsection (a)(1) of this section solely on the basis of the best

scientific and commercial data available to him after conducting a

review of the status of the species and after taking into account

those efforts, if any, being made by any State or foreign nation,

or any political subdivision of a State or foreign nation, to

protect such species, whether by predator control, protection of

habitat and food supply, or other conservation practices, within

any area under its jurisdiction; or on the high seas.

(B) In carrying out this section, the Secretary shall give

consideration to species which have been -

(i) designated as requiring protection from unrestricted

commerce by any foreign nation, or pursuant to any international

agreement; or

(ii) identified as in danger of extinction, or likely to become

so within the foreseeable future, by any State agency or by any

agency of a foreign nation that is responsible for the

conservation of fish or wildlife or plants.

(2) The Secretary shall designate critical habitat, and make

revisions thereto, under subsection (a)(3) of this section on the

basis of the best scientific data available and after taking into

consideration the economic impact, and any other relevant impact,

of specifying any particular area as critical habitat. The

Secretary may exclude any area from critical habitat if he

determines that the benefits of such exclusion outweigh the

benefits of specifying such area as part of the critical habitat,

unless he determines, based on the best scientific and commercial

data available, that the failure to designate such area as critical

habitat will result in the extinction of the species concerned.

(3)(A) To the maximum extent practicable, within 90 days after

receiving the petition of an interested person under section 553(e)

of title 5, to add a species to, or to remove a species from,

either of the lists published under subsection (c) of this section,

the Secretary shall make a finding as to whether the petition

presents substantial scientific or commercial information

indicating that the petitioned action may be warranted. If such a

petition is found to present such information, the Secretary shall

promptly commence a review of the status of the species concerned.

The Secretary shall promptly publish each finding made under this

subparagraph in the Federal Register.

(B) Within 12 months after receiving a petition that is found

under subparagraph (A) to present substantial information

indicating that the petitioned action may be warranted, the

Secretary shall make one of the following findings:

(i) The petitioned action is not warranted, in which case the

Secretary shall promptly publish such finding in the Federal

Register.

(ii) The petitioned action is warranted, in which case the

Secretary shall promptly publish in the Federal Register a

general notice and the complete text of a proposed regulation to

implement such action in accordance with paragraph (5).

(iii) The petitioned action is warranted, but that -

(I) the immediate proposal and timely promulgation of a final

regulation implementing the petitioned action in accordance

with paragraphs (5) and (6) is precluded by pending proposals

to determine whether any species is an endangered species or a

threatened species, and

(II) expeditious progress is being made to add qualified

species to either of the lists published under subsection (c)

of this section and to remove from such lists species for which

the protections of this chapter are no longer necessary,

in which case the Secretary shall promptly publish such finding

in the Federal Register, together with a description and

evaluation of the reasons and data on which the finding is based.

(C)(i) A petition with respect to which a finding is made under

subparagraph (B)(iii) shall be treated as a petition that is

resubmitted to the Secretary under subparagraph (A) on the date of

such finding and that presents substantial scientific or commercial

information that the petitioned action may be warranted.

(ii) Any negative finding described in subparagraph (A) and any

finding described in subparagraph (B)(i) or (iii) shall be subject

to judicial review.

(iii) The Secretary shall implement a system to monitor

effectively the status of all species with respect to which a

finding is made under subparagraph (B)(iii) and shall make prompt

use of the authority under paragraph 7 (FOOTNOTE 1) to prevent a

significant risk to the well being of any such species.

(FOOTNOTE 1) So in original. Probably should be paragraph

''(7)''.

(D)(i) To the maximum extent practicable, within 90 days after

receiving the petition of an interested person under section 553(e)

of title 5, to revise a critical habitat designation, the Secretary

shall make a finding as to whether the petition presents

substantial scientific information indicating that the revision may

be warranted. The Secretary shall promptly publish such finding in

the Federal Register.

(ii) Within 12 months after receiving a petition that is found

under clause (i) to present substantial information indicating that

the requested revision may be warranted, the Secretary shall

determine how he intends to proceed with the requested revision,

and shall promptly publish notice of such intention in the Federal

Register.

(4) Except as provided in paragraphs (5) and (6) of this

subsection, the provisions of section 553 of title 5 (relating to

rulemaking procedures), shall apply to any regulation promulgated

to carry out the purposes of this chapter.

(5) With respect to any regulation proposed by the Secretary to

implement a determination, designation, or revision referred to in

subsection (a)(1) or (3) of this section, the Secretary shall -

(A) not less than 90 days before the effective date of the

regulation -

(i) publish a general notice and the complete text of the

proposed regulation in the Federal Register, and

(ii) give actual notice of the proposed regulation (including

the complete text of the regulation) to the State agency in

each State in which the species is believed to occur, and to

each county, or equivalent jurisdiction in which the species is

believed to occur, and invite the comment of such agency, and

each such jurisdiction, thereon;

(B) insofar as practical, and in cooperation with the Secretary

of State, give notice of the proposed regulation to each foreign

nation in which the species is believed to occur or whose

citizens harvest the species on the high seas, and invite the

comment of such nation thereon;

(C) give notice of the proposed regulation to such professional

scientific organizations as he deems appropriate;

(D) publish a summary of the proposed regulation in a newspaper

of general circulation in each area of the United States in which

the species is believed to occur; and

(E) promptly hold one public hearing on the proposed regulation

if any person files a request for such a hearing within 45 days

after the date of publication of general notice.

(6)(A) Within the one-year period beginning on the date on which

general notice is published in accordance with paragraph (5)(A)(i)

regarding a proposed regulation, the Secretary shall publish in the

Federal Register -

(i) if a determination as to whether a species is an endangered

species or a threatened species, or a revision of critical

habitat, is involved, either -

(I) a final regulation to implement such determination,

(II) a final regulation to implement such revision or a

finding that such revision should not be made,

(III) notice that such one-year period is being extended

under subparagraph (B)(i), or

(IV) notice that the proposed regulation is being withdrawn

under subparagraph (B)(ii), together with the finding on which

such withdrawal is based; or

(ii) subject to subparagraph (C), if a designation of critical

habitat is involved, either -

(I) a final regulation to implement such designation, or

(II) notice that such one-year period is being extended under

such subparagraph.

(B)(i) If the Secretary finds with respect to a proposed

regulation referred to in subparagraph (A)(i) that there is

substantial disagreement regarding the sufficiency or accuracy of

the available data relevant to the determination or revision

concerned, the Secretary may extend the one-year period specified

in subparagraph (A) for not more than six months for purposes of

soliciting additional data.

(ii) If a proposed regulation referred to in subparagraph (A)(i)

is not promulgated as a final regulation within such one-year

period (or longer period if extension under clause (i) applies)

because the Secretary finds that there is not sufficient evidence

to justify the action proposed by the regulation, the Secretary

shall immediately withdraw the regulation. The finding on which a

withdrawal is based shall be subject to judicial review. The

Secretary may not propose a regulation that has previously been

withdrawn under this clause unless he determines that sufficient

new information is available to warrant such proposal.

(iii) If the one-year period specified in subparagraph (A) is

extended under clause (i) with respect to a proposed regulation,

then before the close of such extended period the Secretary shall

publish in the Federal Register either a final regulation to

implement the determination or revision concerned, a finding that

the revision should not be made, or a notice of withdrawal of the

regulation under clause (ii), together with the finding on which

the withdrawal is based.

(C) A final regulation designating critical habitat of an

endangered species or a threatened species shall be published

concurrently with the final regulation implementing the

determination that such species is endangered or threatened, unless

the Secretary deems that -

(i) it is essential to the conservation of such species that

the regulation implementing such determination be promptly

published; or

(ii) critical habitat of such species is not then determinable,

in which case the Secretary, with respect to the proposed

regulation to designate such habitat, may extend the one-year

period specified in subparagraph (A) by not more than one

additional year, but not later than the close of such additional

year the Secretary must publish a final regulation, based on such

data as may be available at that time, designating, to the

maximum extent prudent, such habitat.

(7) Neither paragraph (4), (5), or (6) of this subsection nor

section 553 of title 5 shall apply to any regulation issued by the

Secretary in regard to any emergency posing a significant risk to

the well-being of any species of fish or wildlife or plants, but

only if -

(A) at the time of publication of the regulation in the Federal

Register the Secretary publishes therein detailed reasons why

such regulation is necessary; and

(B) in the case such regulation applies to resident species of

fish or wildlife, or plants, the Secretary gives actual notice of

such regulation to the State agency in each State in which such

species is believed to occur.

Such regulation shall, at the discretion of the Secretary, take

effect immediately upon the publication of the regulation in the

Federal Register. Any regulation promulgated under the authority of

this paragraph shall cease to have force and effect at the close of

the 240-day period following the date of publication unless, during

such 240-day period, the rulemaking procedures which would apply to

such regulation without regard to this paragraph are complied

with. If at any time after issuing an emergency regulation the

Secretary determines, on the basis of the best appropriate data

available to him, that substantial evidence does not exist to

warrant such regulation, he shall withdraw it.

(8) The publication in the Federal Register of any proposed or

final regulation which is necessary or appropriate to carry out the

purposes of this chapter shall include a summary by the Secretary

of the data on which such regulation is based and shall show the

relationship of such data to such regulation; and if such

regulation designates or revises critical habitat, such summary

shall, to the maximum extent practicable, also include a brief

description and evaluation of those activities (whether public or

private) which, in the opinion of the Secretary, if undertaken may

adversely modify such habitat, or may be affected by such

designation.

(c) Lists

(1) The Secretary of the Interior shall publish in the Federal

Register a list of all species determined by him or the Secretary

of Commerce to be endangered species and a list of all species

determined by him or the Secretary of Commerce to be threatened

species. Each list shall refer to the species contained therein by

scientific and common name or names, if any, specify with respect

to each such species over what portion of its range it is

endangered or threatened, and specify any critical habitat within

such range. The Secretary shall from time to time revise each list

published under the authority of this subsection to reflect recent

determinations, designations, and revisions made in accordance with

subsections (a) and (b) of this section.

(2) The Secretary shall -

(A) conduct, at least once every five years, a review of all

species included in a list which is published pursuant to

paragraph (1) and which is in effect at the time of such review;

and

(B) determine on the basis of such review whether any such

species should -

(i) be removed from such list;

(ii) be changed in status from an endangered species to a

threatened species; or

(iii) be changed in status from a threatened species to an

endangered species.

Each determination under subparagraph (B) shall be made in

accordance with the provisions of subsections (a) and (b) of this

section.

(d) Protective regulations

Whenever any species is listed as a threatened species pursuant

to subsection (c) of this section, the Secretary shall issue such

regulations as he deems necessary and advisable to provide for the

conservation of such species. The Secretary may by regulation

prohibit with respect to any threatened species any act prohibited

under section 1538(a)(1) of this title, in the case of fish or

wildlife, or section 1538(a)(2) of this title, in the case of

plants, with respect to endangered species; except that with

respect to the taking of resident species of fish or wildlife, such

regulations shall apply in any State which has entered into a

cooperative agreement pursuant to section 1535(c) of this title

only to the extent that such regulations have also been adopted by

such State.

(e) Similarity of appearance cases

The Secretary may, by regulation of commerce or taking, and to

the extent he deems advisable, treat any species as an endangered

species or threatened species even though it is not listed pursuant

to this section if he finds that -

(A) such species so closely resembles in appearance, at the

point in question, a species which has been listed pursuant to

such section that enforcement personnel would have substantial

difficulty in attempting to differentiate between the listed and

unlisted species;

(B) the effect of this substantial difficulty is an additional

threat to an endangered or threatened species; and

(C) such treatment of an unlisted species will substantially

facilitate the enforcement and further the policy of this

chapter.

(f) Recovery plans

(1) The Secretary shall develop and implement plans (hereinafter

in this subsection referred to as ''recovery plans'') for the

conservation and survival of endangered species and threatened

species listed pursuant to this section, unless he finds that such

a plan will not promote the conservation of the species. The

Secretary, in developing and implementing recovery plans, shall, to

the maximum extent practicable -

(A) give priority to those endangered species or threatened

species, without regard to taxonomic classification, that are

most likely to benefit from such plans, particularly those

species that are, or may be, in conflict with construction or

other development projects or other forms of economic activity;

(B) incorporate in each plan -

(i) a description of such site-specific management actions as

may be necessary to achieve the 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 of the House of Representatives on

the status of efforts to develop and implement recovery plans for

all species listed pursuant to this section and on the status of

all species for which such plans have been developed.

(4) The Secretary shall, prior to final approval of a new or

revised recovery plan, provide public notice and an opportunity for

public review and comment on such plan. The Secretary shall

consider all information presented during the public comment period

prior to approval of the plan.

(5) Each Federal agency shall, prior to implementation of a new

or revised recovery plan, consider all information presented during

the public comment period under paragraph (4).

(g) Monitoring

(1) The Secretary shall implement a system in cooperation with

the States to monitor effectively for not less than five years the

status of all species which have recovered to the point at which

the measures provided pursuant to this chapter are no longer

necessary and which, in accordance with the provisions of this

section, have been removed from either of the lists published under

subsection (c) of this section.

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

paragraph 7 (FOOTNOTE 2) of subsection (b) of this section to

prevent a significant risk to the well being of any such recovered

species.

(FOOTNOTE 2) So in original. Probably should be paragraph

''(7)''.

(h) Agency guidelines; publication in Federal Register; scope;

proposals and amendments: notice and opportunity for comments

The Secretary shall establish, and publish in the Federal

Register, agency guidelines to insure that the purposes of this

section are achieved efficiently and effectively. Such guidelines

shall include, but are not limited to -

(1) procedures for recording the receipt and the disposition of

petitions submitted under subsection (b)(3) of this section;

(2) criteria for making the findings required under such

subsection with respect to petitions;

(3) a ranking system to assist in the identification of species

that should receive priority review under subsection (a)(1) of

this section; and

(4) a system for developing and implementing, on a priority

basis, recovery plans under subsection (f) of this section.

The Secretary shall provide to the public notice of, and

opportunity to submit written comments on, any guideline (including

any amendment thereto) proposed to be established under this

subsection.

(i) Submission to State agency of justification for regulations

inconsistent with State agency's comments or petition

If, in the case of any regulation proposed by the Secretary under

the authority of this section, a State agency to which notice

thereof was given in accordance with subsection (b)(5)(A)(ii) of

this section files comments disagreeing with all or part of the

proposed regulation, and the Secretary issues a final regulation

which is in conflict with such comments, or if the Secretary fails

to adopt a regulation pursuant to an action petitioned by a State

agency under subsection (b)(3) of this section, the Secretary shall

submit to the State agency a written justification for his failure

to adopt regulations consistent with the agency's comments or

petition.

-SOURCE-

(Pub. L. 93-205, Sec. 4, Dec. 28, 1973, 87 Stat. 886; Pub. L.

94-359, Sec. 1, July 12, 1976, 90 Stat. 911; Pub. L. 95-632, Sec.

11, 13, Nov. 10, 1978, 92 Stat. 3764, 3766; Pub. L. 96-159, Sec. 3,

Dec. 28, 1979, 93 Stat. 1225; Pub. L. 97-304, Sec. 2(a), Oct. 13,

1982, 96 Stat. 1411; Pub. L. 100-478, title I, Sec. 1002-1004, Oct.

7, 1988, 102 Stat. 2306, 2307.)

-REFTEXT-

REFERENCES IN TEXT

Reorganization Plan Numbered 4 of 1970, referred to in subsec.

(a)(2), is Reorg. Plan No. 4 of 1970, eff. Oct. 3, 1970, 35 F.R.

15627, 84 Stat. 2090, which is set out in the Appendix to Title 5,

Government Organization and Employees.

The Federal Advisory Committee Act, referred to in subsec.

(f)(2), is Pub. L. 92-463, Oct. 6, 1972, 86 Stat. 770, as amended,

which is set out in the Appendix to Title 5.

-MISC2-

AMENDMENTS

1988 - Subsec. (b)(3)(C)(iii). Pub. L. 100-478, Sec. 1002(a),

added subcl. (iii).

Subsec. (e). Pub. L. 100-478, Sec. 1002(b), substituted

''regulation of commerce or taking,'' for ''regulation,'' in

introductory provisions.

Subsec. (f). Pub. L. 100-478, Sec. 1003, amended subsec. (f)

generally. Prior to amendment, subsec. (f) read as follows: ''The

Secretary shall develop and implement plans (hereinafter in this

subsection referred to as 'recovery plans') for the conservation

and survival of endangered species and threatened species listed

pursuant to this section, unless he finds that such a plan will not

promote the conservation of the species. The Secretary, in

developing and implementing recovery plans (1) shall, to the

maximum extent practicable, give priority to those endangered

species or threatened species most likely to benefit from such

plans, particularly those species that are, or may be, in conflict

with construction or other developmental projects or other forms of

economic activity, and (2) may procure the services of appropriate

public and private agencies and institutions, and other qualified

persons. Recovery teams appointed pursuant to this subsection

shall not be subject to the Federal Advisory Committee Act.''

Subsecs. (g) to (i). Pub. L. 100-478, Sec. 1004, added subsec.

(g) and redesignated former subsecs. (g) and (h) as (h) and (i),

respectively.

1982 - Subsec. (a)(1). Pub. L. 97-304, Sec. 2(a)(1)(B), (D),

inserted ''promulgated in accordance with subsection (b) of this

section'' after ''shall by regulation'' in introductory provisions

preceding subpar. (A), and struck out provision following subpar.

(E), which directed the Secretary, at the time regulations were

proposed, to specify any habitat of a species considered to be a

critical habitat but that such specification of critical habitats

not apply to species listed prior to Nov. 10, 1978.

Subsec. (a)(1)(A). Pub. L. 97-304, Sec. 2(a)(1)(A), redesignated

subpar. (1) as (A).

Subsec. (a)(1)(B). Pub. L. 97-304, Sec. 2(a)(1)(A), (C),

redesignated subpar. (2) as (B) and substituted ''recreational,''

for ''sporting,''.

Subsec. (a)(1)(C) to (E). Pub. L. 97-304, Sec. 2(a)(1)(A),

redesignated subpars. (3), (4), and (5) as (C), (D), and (E),

respectively.

Subsec. (a)(3). Pub. L. 97-304, Sec. 2(a)(1)(E), added par. (3).

Subsec. (b). Pub. L. 97-304, Sec. 2(a)(2), completely revised

subsec. (b) by, among other changes, requiring the Secretary to

base determinations regarding the listing or delisting of species

''solely'' on the basis of the best scientific and commercial data

available, streamlining the listing process by reducing the time

periods for rulemaking, consolidating public meetings and hearing

requirements, and establishing virtually identical procedures for

the listing and delisting of species and for the designation of

critical habitat, and altering the evidentiary standard which

petitioners must satisfy to warrant a status review of the species

proposed for listing or delisting.

Subsec. (c)(1). Pub. L. 97-304, Sec. 2(a)(3)(A), struck out '',

and from time to time he may by regulation revise,'' after

''Federal Register'' and inserted provision directing the Secretary

to revise from time to time each list published under the authority

of this subsection to reflect recent determinations, designations,

and revisions made in accordance with subsections (a) and (b) of

this section.

Subsec. (c)(2). Pub. L. 97-304, Sec. 2(a)(3)(B), (C),

redesignated par. (4) as (2). Former par. (2), directing the

Secretary, within 90 days of the receipt of the petition of an

interested person under section 553(e) of title 5, to conduct and

publish in the Federal Register a review of the status of any

listed or unlisted species proposed to be removed from or added to

either of the lists published pursuant to paragraph (1) of this

subsection, but only if he made and published a finding that such

person had presented substantial evidence which in his judgment

warranted such a review, was struck out.

Subsec. (c)(3). Pub. L. 97-304, Sec. 2(a)(3)(B), struck out par.

(3) which had provided that any list in effect on Dec. 27, 1973, of

species of fish or wildlife determined by the Secretary of the

Interior, pursuant to the Endangered Species Conservation Act of

1969, to be threatened with extinction be republished to conform to

the classification for endangered species or threatened species, as

the case might be, provided for in this chapter, but until such

republication, any such species so listed was to be deemed an

endangered species within the meaning of this chapter, and that the

republication of any species pursuant to this paragraph did not

require public hearing or comment under section 553 of title 5.

Subsec. (c)(4). Pub. L. 97-304, Sec. 2(a)(3)(C), redesignated

par. (4) as (2).

Subsec. (d). Pub. L. 97-304, Sec. 2(a)(4)(A), substituted

''section 1535(c) of this title'' for ''section 1535(a) of this

title''.

Subsec. (f). Pub. L. 97-304, Sec. 2(a)(4)(B), (C), (D),

redesignated subsec. (g) as (f) and substituted ''recovery plans

(1) shall, to the maximum extent practicable, give priority to

those endangered species or threatened species most likely to

benefit from such plans, particularly those species that are, or

may be, in conflict with construction or other developmental

projects or other forms of economic activity, and (2)'' for

''recovery plans,''. Former subsec. (f), relating to the

promulgation of regulations, was struck out.

Subsec. (g). Pub. L. 97-304, Sec. 2(a)(4)(C), (E), redesignated

subsec. (h) as (g), substituted reference to subsection (b)(3) of

this section for reference to subsection (c)(2) of this section in

par. (1), substituted ''under subsection (a)(1) of this section''

for ''for listing'' in par. (3), and substituted ''subsection (f)

of this section'' for ''subsection (g) of this section'' in par.

(4). Former subsec. (g) redesignated (f).

Subsec. (h). Pub. L. 97-304, Sec. 2(a)(4)(C), (F), added subsec.

(h) and redesignated former subsec. (h) as (g).

1979 - Subsec. (b)(1). Pub. L. 96-159, Sec. 3(1), required the

Secretary's determinations to be preceded with a review of the

status of the species.

Subsec. (f)(2)(B)(i). Pub. L. 96-159, Sec. 3(2), required

publication of summary of text rather than of the complete text of

proposed regulation specifying any critical habitat and inclusion

of a map of the proposed critical habitat.

Subsec. (f)(2)(B)(iv)(II). Pub. L. 96-159, Sec. 3(3), substituted

''if requested within 15 days after the date on which the public

meeting is conducted,'' for ''if requested,''.

Subsec. (f)(2)(C). Pub. L. 96-159, Sec. 3(4), (5), inserted in

introductory text '', subsection (b)(4) of this section,''; and in

cl. (ii), included reference to significant risk to wellbeing of

any species of plants, inserted in item (II) reference to

regulation applicable to resident species of plants, extended the

statutory period to a ''240-day period'' from a ''120-day period'',

and provided for withdrawal of an emergency regulation without

substantial evidence to warrant it, respectively.

Subsec. (h). Pub. L. 96-159, Sec. 3(6), added subsec. (h).

1978 - Subsec. (a)(1). Pub. L. 95-632, Sec. 11(1), inserted

provision requiring the Secretary, at the time a regulation is

proposed, to specify by regulation any habitat of the species

involved which is considered a critical habitat providing the

species was listed subsequent to Nov. 10, 1978.

Subsec. (b)(4). Pub. L. 95-632, Sec. 11(7), added par. (4).

Subsec. (c)(1). Pub. L. 95-632, Sec. 11(2), struck out ''and

shall'' after ''if any'' and inserted '', and specify any critical

habitat within such range'' after ''endangered or threatened''.

Subsec. (c)(2). Pub. L. 95-632, Sec. 11(6), substituted ''within

90 days of the receipt of'' for ''upon'' and ''conduct and publish

in the Federal Register a review of the status of'' for ''conduct a

review of'' and inserted a provision requiring that the review and

findings be made and published prior to initiation of any

procedures under subsec. (b)(1) of this section.

Subsec. (c)(4). Pub. L. 95-632, Sec. 11(3), added par. (4).

Subsec. (f)(2)(A). Pub. L. 95-632, Sec. 11(4)(A), substituted

''Except as provided in subparagraph (B), in'' for ''In''.

Subsec. (f)(2)(B), (C). Pub. L. 95-632, Sec. 11(4)(B), (C), added

subpar. (B), redesignated former subpar. (B) as (C), and as so

redesignated, substituted ''Neither subparagraph (A) or (B)'' for

''Neither subparagraph (A)''.

Subsec. (f)(3). Pub. L. 95-632, Sec. 13, substituted ''a summary

by the Secretary of the data on which such regulation is based and

shall show the relationship of such data to such regulations'' for

''a statement by the Secretary of the facts on which such

regulation is based and the relationship of such facts to such

regulation''.

Subsec. (f)(4), (5). Pub. L. 95-632, Sec. 11(4)(D), added pars.

(4) and (5).

Subsec. (g). Pub. L. 95-632, Sec. 11(5), added subsec. (g).

1976 - Subsec. (f)(2)(B)(ii). Pub. L. 94-359 substituted

''subsection (b)(1)(A)'' for ''subsection (b)(A), (B), and (C)''.

EFFECTIVE DATE OF 1982 AMENDMENT

Section 2(b) of Pub. L. 97-304 provided that:

''(1) Any petition filed under section 4(c)(2) of the Endangered

Species Act of 1973 (subsec. (c)(2) of this section) (as in effect

on the day before the date of the enactment of this Act (Oct. 13,

1982)) and any regulation proposed under section 4(f) of such Act

of 1973 (subsec. (f) of this section) (as in effect on such day)

that is pending on such date of enactment (Oct. 13, 1982) shall be

treated as having been filed or proposed on such date of enactment

under section 4(b) of such Act of 1973 (subsec. (b) of this

section) (as amended by subsection (a)); and the procedural

requirements specified in such section 4(b) (subsec. (b) of this

section) (as so amended) regarding such petition or proposed

regulation shall be deemed to be complied with to the extent that

like requirements under such section 4 (this section) (as in effect

before the date of the enactment of this Act) were complied with

before such date of enactment.

''(2) Any regulation proposed after, or pending on, the date of

the enactment of this Act (Oct. 13, 1982) to designate critical

habitat for a species that was determined before such date of

enactment to be endangered or threatened shall be subject to the

procedures set forth in section 4 of such Act of 1973 (this

section) (as amended by subsection (a)) for regulations proposing

revisions to critical habitat instead of those for regulations

proposing the designation of critical habitat.

''(3) Any list of endangered species or threatened species (as in

effect under section 4(c) of such Act of 1973 (subsec. (c) of this

section) on the day before the date of the enactment of this Act

(Oct. 13, 1982)) shall remain in effect unless and until

determinations regarding species and designations and revisions of

critical habitats that require changes to such list are made in

accordance with subsection (b)(5) of such Act of 1973 (subsec.

(b)(5) of this section) (as added by subsection (a)).

''(4) Section 4(a)(3)(A) of such Act of 1973 (subsec. (a)(3)(A)

of this section) (as added by subsection (a)) shall not apply with

respect to any species which was listed as an endangered species or

a threatened species before November 10, 1978.''

-TRANS-

ABOLITION OF HOUSE COMMITTEE ON MERCHANT MARINE AND FISHERIES

Committee on Merchant Marine and Fisheries of House of

Representatives abolished and its jurisdiction transferred by House

Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995.

Committee on Merchant Marine and Fisheries of House of

Representatives treated as referring to Committee on Resources of

House of Representatives in case of provisions relating to

fisheries, wildlife, international fishing agreements, marine

affairs (including coastal zone management) except for measures

relating to oil and other pollution of navigable waters, or

oceanography by section 1(b)(3) of Pub. L. 104-14, set out as a

note preceding section 21 of Title 2, The Congress.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 460k-1, 668dd, 670h,

715i, 715s, 1374, 1383b, 1387, 1402, 1532, 1534, 1535, 1536, 1537,

1538, 1540, 4202, 4261, 6301 of this title; title 10 section 7524.

-CITE-

16 USC Sec. 1534 01/06/03

-EXPCITE-

TITLE 16 - CONSERVATION

CHAPTER 35 - ENDANGERED SPECIES

-HEAD-

Sec. 1534. Land acquisition

-STATUTE-

(a) Implementation of conservation program; authorization of

Secretary and Secretary of Agriculture

The Secretary, and the Secretary of Agriculture with respect to

the National Forest System, shall establish and implement a program

to conserve fish, wildlife, and plants, including those which are

listed as endangered species or threatened species pursuant to

section 1533 of this title. To carry out such a program, the

appropriate Secretary -

(1) shall utilize the land acquisition and other authority

under the Fish and Wildlife Act of 1956, as amended (16 U.S.C.

742a et seq.), the Fish and Wildlife Coordination Act, as amended

(16 U.S.C. 661 et seq.), and the Migratory Bird Conservation Act

(16 U.S.C. 715 et seq.), as appropriate; and

(2) is authorized to acquire by purchase, donation, or

otherwise, lands, waters, or interest therein, and such authority

shall be in addition to any other land acquisition authority

vested in him.

(b) Availability of funds for acquisition of lands, waters, etc.

Funds made available pursuant to the Land and Water Conservation

Fund Act of 1965, as amended (16 U.S.C. 460l-4 et seq.), may be

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

therein under subsection (a) of this section.

-SOURCE-

(Pub. L. 93-205, Sec. 5, Dec. 28, 1973, 87 Stat. 889; Pub. L.

95-632, Sec. 12, Nov. 10, 1978, 92 Stat. 3766.)

-REFTEXT-

REFERENCES IN TEXT

The Fish and Wildlife Act of 1956, as amended, referred to in

subsec. (a)(1), is act Aug. 8, 1956, ch. 1036, 70 Stat. 119, as

amended, which is classified generally to sections 742a to 742d and

742e to 742j-2 of this title. For complete classification of this

Act to the Code, see Short Title note set out under section 742a of

this title and Tables.

The Fish and Wildlife Coordination Act, as amended, referred to

in subsec. (a)(1), is act Mar. 10, 1934, ch. 55, 48 Stat. 401, as

amended, which is classified generally to sections 661 to 666c of

this title. For complete classification of this Act to the Code,

see Short Title note set out under section 661 of this title and

Tables.

The Migratory Bird Conservation Act, referred to in subsec.

(a)(1), is act Feb. 18, 1929, ch. 257, 45 Stat. 1222, as amended,

which is classified generally to subchapter III (Sec. 715 et seq.)

of chapter 7 of this title. For complete classification of this

Act to the Code, see section 715 of this title and Tables.

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

referred to in subsec. (b), is Pub. L. 88-578, Sept. 3, 1964, 78

Stat. 897, as amended, which is classified generally to part B

(Sec. 460l-4 et seq.) of subchapter LXIX of chapter 1 of this

title. For complete classification of this Act to the Code, see

Short Title note set out under section 460l-4 of this title and

Tables.

-MISC2-

AMENDMENTS

1978 - Subsec. (a). Pub. L. 95-632, among other changes in text

preceding par. (1), inserted reference to the Secretary of

Agriculture with respect to the National Forest System and

substituted the establishment and implementation of a plan to

conserve plants for the establishment and implementation of a plan

to conserve plants which were concluded in Appendices to the

Convention.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 460l-9, 460iii-4 of this

title.

-CITE-

16 USC Sec. 1535 01/06/03

-EXPCITE-

TITLE 16 - CONSERVATION

CHAPTER 35 - ENDANGERED SPECIES

-HEAD-

Sec. 1535. Cooperation with States

-STATUTE-

(a) Generally

In carrying out the program authorized by this chapter, the

Secretary shall cooperate to the maximum extent practicable with

the States. Such cooperation shall include consultation with the

States concerned before acquiring any land or water, or interest

therein, for the purpose of conserving any endangered species or

threatened species.

(b) Management agreements

The Secretary may enter into agreements with any State for the

administration and management of any area established for the

conservation of endangered species or threatened species. Any

revenues derived from the administration of such areas under these

agreements shall be subject to the provisions of section 715s of

this title.

(c) Cooperative agreements

(1) In furtherance of the purposes of this chapter, the Secretary

is authorized to enter into a cooperative agreement in accordance

with this section with any State which establishes and maintains an

adequate and active program for the conservation of endangered

species and threatened species. Within one hundred and twenty days

after the Secretary receives a certified copy of such a proposed

State program, he shall make a determination whether such program

is in accordance with this chapter. Unless he determines, pursuant

to this paragraph, that the State program is not in accordance with

this chapter, he shall enter into a cooperative agreement with the

State for the purpose of assisting in implementation of the State

program. In order for a State program to be deemed an adequate and

active program for the conservation of endangered species and

threatened species, the Secretary must find, and annually

thereafter reconfirm such finding, that under the State program -

(A) authority resides in the State agency to conserve resident

species of fish or wildlife determined by the State agency or the

Secretary to be endangered or threatened;

(B) the State agency has established acceptable conservation

programs, consistent with the purposes and policies of this

chapter, for all resident species of fish or wildlife in the

State which are deemed by the Secretary to be endangered or

threatened, and has furnished a copy of such plan and program

together with all pertinent details, information, and data

requested to the Secretary;

(C) the State agency is authorized to conduct investigations to

determine the status and requirements for survival of resident

species of fish and wildlife;

(D) the State agency is authorized to establish programs,

including the acquisition of land or aquatic habitat or interests

therein, for the conservation of resident endangered or

threatened species of fish or wildlife; and

(E) provision is made for public participation in designating

resident species of fish or wildlife as endangered or threatened;

or

that under the State program -

(i) the requirements set forth in subparagraphs (C), (D), and

(E) of this paragraph are complied with, and

(ii) plans are included under which immediate attention will be

given to those resident species of fish and wildlife which are

determined by the Secretary or the State agency to be endangered

or threatened and which the Secretary and the State agency agree

are most urgently in need of conservation programs; except that a

cooperative agreement entered into with a State whose program is

deemed adequate and active pursuant to clause (i) and this clause

shall not affect the applicability of prohibitions set forth in

or authorized pursuant to section 1533(d) of this title or

section 1538(a)(1) of this title with respect to the taking of

any resident endangered or threatened species.

(2) In furtherance of the purposes of this chapter the Secretary

is authorized to enter into a cooperative agreement in accordance

with this section with any State which establishes and maintains an

adequate and active program for the conservation of endangered

species and threatened species of plants. Within one hundred and

twenty days after the Secretary receives a certified copy of such a

proposed State program, he shall make a determination whether such

program is in accordance with this chapter. Unless he determines,

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

accordance with this chapter, he shall enter into a cooperative

agreement with the State for the purpose of assisting in

implementation of the State program. In order for a State program

to be deemed an adequate and active program for the conservation of

endangered species of plants and threatened species of plants, the

Secretary must find, and annually thereafter reconfirm such

finding, that under the State program -

(A) authority resides in the State agency to conserve resident

species of plants determined by the State agency or the Secretary

to be endangered or threatened;

(B) the State agency has established acceptable conservation

programs, consistent with the purposes and policies of this

chapter, for all resident species of plants in the State which

are deemed by the Secretary to be endangered or threatened, and

has furnished a copy of such plan and program together with all

pertinent details, information, and data requested to the

Secretary;

(C) the State agency is authorized to conduct investigations to

determine the status and requirements for survival of resident

species of plants; and

(D) provision is made for public participation in designating

resident species of plants as endangered or threatened; or

that under the State program -

(i) the requirements set forth in subparagraphs (C) and (D) of

this paragraph are complied with, and

(ii) plans are included under which immediate attention will be

given to those resident species of plants which are determined by

the Secretary or the State agency to be endangered or threatened

and which the Secretary and the State agency agree are most

urgently in need of conservation programs; except that a

cooperative agreement entered into with a State whose program is

deemed adequate and active pursuant to clause (i) and this clause

shall not affect the applicability of prohibitions set forth in

or authorized pursuant to section 1533(d) or section 1538(a)(1)

of this title with respect to the taking of any resident

endangered or threatened species.

(d) Allocation of funds

(1) The Secretary is authorized to provide financial assistance

to any State, through its respective State agency, which has

entered into a cooperative agreement pursuant to subsection (c) of

this section to assist in development of programs for the

conservation of endangered and threatened species or to assist in

monitoring the status of candidate species pursuant to subparagraph

(C) of section 1533(b)(3) of this title and recovered species

pursuant to section 1533(g) of this title. The Secretary shall

allocate each annual appropriation made in accordance with the

provisions of subsection (i) of this section to such States based

on consideration of -

(A) the international commitments of the United States to

protect endangered species or threatened species;

(B) the readiness of a State to proceed with a conservation

program consistent with the objectives and purposes of this

chapter;

(C) the number of endangered species and threatened species

within a State;

(D) the potential for restoring endangered species and

threatened species within a State;

(E) the relative urgency to initiate a program to restore and

protect an endangered species or threatened species in terms of

survival of the species;

(F) the importance of monitoring the status of candidate

species within a State to prevent a significant risk to the well

being of any such species; and

(G) the importance of monitoring the status of recovered

species within a State to assure that such species do not return

to the point at which the measures provided pursuant to this

chapter are again necessary.

So much of the annual appropriation made in accordance with

provisions of subsection (i) of this section allocated for

obligation to any State for any fiscal year as remains unobligated

at the close thereof is authorized to be made available to that

State until the close of the succeeding fiscal year. Any amount

allocated to any State which is unobligated at the end of the

period during which it is available for expenditure is authorized

to be made available for expenditure by the Secretary in conducting

programs under this section.

(2) Such cooperative agreements shall provide for (A) the actions

to be taken by the Secretary and the States; (B) the benefits that

are expected to be derived in connection with the conservation of

endangered or threatened species; (C) the estimated cost of these

actions; and (D) the share of such costs to be borne by the Federal

Government and by the States; except that -

(i) the Federal share of such program costs shall not exceed 75

percent of the estimated program cost stated in the agreement;

and

(ii) the Federal share may be increased to 90 percent whenever

two or more States having a common interest in one or more

endangered or threatened species, the conservation of which may

be enhanced by cooperation of such States, enter jointly into an

agreement with the Secretary.

The Secretary may, in his discretion, and under such rules and

regulations as he may prescribe, advance funds to the State for

financing the United States pro rata share agreed upon in the

cooperative agreement. For the purposes of this section, the

non-Federal share may, in the discretion of the Secretary, be in

the form of money or real property, the value of which will be

determined by the Secretary, whose decision shall be final.

(e) Review of State programs

Any action taken by the Secretary under this section shall be

subject to his periodic review at no greater than annual intervals.

(f) Conflicts between Federal and State laws

Any State law or regulation which applies with respect to the

importation or exportation of, or interstate or foreign commerce

in, endangered species or threatened species is void to the extent

that it may effectively (1) permit what is prohibited by this

chapter or by any regulation which implements this chapter, or (2)

prohibit what is authorized pursuant to an exemption or permit

provided for in this chapter or in any regulation which implements

this chapter. This chapter shall not otherwise be construed to

void any State law or regulation which is intended to conserve

migratory, resident, or introduced fish or wildlife, or to permit

or prohibit sale of such fish or wildlife. Any State law or

regulation respecting the taking of an endangered species or

threatened species may be more restrictive than the exemptions or

permits provided for in this chapter or in any regulation which

implements this chapter but not less restrictive than the

prohibitions so defined.

(g) Transition

(1) For purposes of this subsection, the term ''establishment

period'' means, with respect to any State, the period beginning on

December 28, 1973, and ending on whichever of the following dates

first occurs: (A) the date of the close of the 120-day period

following the adjournment of the first regular session of the

legislature of such State which commences after December 28, 1973,

or (B) the date of the close of the 15-month period following

December 28, 1973.

(2) The prohibitions set forth in or authorized pursuant to

sections 1533(d) and 1538(a)(1)(B) of this title shall not apply

with respect to the taking of any resident endangered species or

threatened species (other than species listed in Appendix I to the

Convention or otherwise specifically covered by any other treaty or

Federal law) within any State -

(A) which is then a party to a cooperative agreement with the

Secretary pursuant to subsection (c) of this section (except to

the extent that the taking of any such species is contrary to the

law of such State); or

(B) except for any time within the establishment period when -

(i) the Secretary applies such prohibition to such species at

the request of the State, or

(ii) the Secretary applies such prohibition after he finds,

and publishes his finding, that an emergency exists posing a

significant risk to the well-being of such species and that the

prohibition must be applied to protect such species. The

Secretary's finding and publication may be made without regard

to the public hearing or comment provisions of section 553 of

title 5 or any other provision of this chapter; but such

prohibition shall expire 90 days after the date of its

imposition unless the Secretary further extends such

prohibition by publishing notice and a statement of

justification of such extension.

(h) Regulations

The Secretary is authorized to promulgate such regulations as may

be appropriate to carry out the provisions of this section relating

to financial assistance to States.

(i) Appropriations

(1) To carry out the provisions of this section for fiscal years

after September 30, 1988, there shall be deposited into a special

fund known as the cooperative endangered species conservation fund,

to be administered by the Secretary, an amount equal to 5 percent

of the combined amounts covered each fiscal year into the Federal

aid to wildlife restoration fund under section 669b of this title,

and paid, transferred, or otherwise credited each fiscal year to

the Sport Fishing Restoration Account established under 1016 of the

Act of July 18, 1984.

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

appropriated annually and allocated in accordance with subsection

(d) of this section.

-SOURCE-

(Pub. L. 93-205, Sec. 6, Dec. 28, 1973, 87 Stat. 889; Pub. L.

95-212, Dec. 19, 1977, 91 Stat. 1493; Pub. L. 95-632, Sec. 10, Nov.

10, 1978, 92 Stat. 3762; Pub. L. 96-246, May 23, 1980, 94 Stat.

348; Pub. L. 97-304, Sec. 3, 8(b), Oct. 13, 1982, 96 Stat. 1416,

1426; Pub. L. 100-478, title I, Sec. 1005, Oct. 7, 1988, 102 Stat.

2307.)

-REFTEXT-

REFERENCES IN TEXT

The Sport Fishing Restoration Account established under section

1016 of the Act of July 18, 1984, referred to in subsec. (i)(1),

probably means the Sport Fish Restoration Account established by

section 9504(a)(2)(A) of Title 26, Internal Revenue Code, which

section was enacted by section 1016(a) of Pub. L. 98-369, div. A,

title X, July 18, 1984, 98 Stat. 1019.

-MISC2-

AMENDMENTS

1988 - Subsec. (d)(1). Pub. L. 100-478, Sec. 1005(a), amended

par. (1) generally. Prior to amendment, par. (1) read as follows:

''The Secretary is authorized to provide financial assistance to

any State, through its respective State agency, which has entered

into a cooperative agreement pursuant to subsection (c) of this

section to assist in development of programs for the conservation

of endangered and threatened species. The Secretary shall make an

allocation of appropriated funds to such States based on

consideration of -

''(A) the international commitments of the United States to

protect endangered species or threatened species;

''(B) the readiness of a State to proceed with a conservation

program consistent with the objectives and purposes of this

chapter;

''(C) the number of endangered species and threatened species

within a State;

''(D) the potential for restoring endangered species and

threatened species within a State; and

''(E) the relative urgency to initiate a program to restore and

protect an endangered species or threatened species in terms of

survival of the species.

So much of any appropriated funds allocated for obligation to any

State for any fiscal year as remains unobligated at the close

thereof is authorized to be made available to that State until the

close of the succeeding fiscal year. Any amount allocated to any

State which is unobligated at the end of the period during which it

is available for expenditure is authorized to be made available for

expenditure by the Secretary in conducting programs under this

section.''

Subsec. (i). Pub. L. 100-478, Sec. 1005(b), added subsec. (i).

1982 - Subsec. (d)(2)(i). Pub. L. 97-304, Sec. 3(1), substituted

''75 percent'' for ''66 2/3 per centum''.

Subsec. (d)(2)(ii). Pub. L. 97-304, Sec. 3(2), substituted ''90

percent'' for ''75 per centum''.

Subsec. (i). Pub. L. 97-304, Sec. 8(b), struck out subsec. (i)

which authorized appropriations to carry out this section of

$10,000,000 through the period ending Sept. 30, 1977, $12,000,000

for the period Oct. 1, 1977, through Sept. 30, 1980, and

$12,000,000 for the period Oct. 1, 1980, through Sept. 30, 1982.

See section 1542(b) of this title.

1980 - Subsec. (i). Pub. L. 96-246 in par. (2) substituted

''$12,000,000'' for ''$16,000,000'' and ''1980'' for ''1981'', and

added par. (3).

1978 - Subsec. (c). Pub. L. 95-632 designated existing provision

as par. (1), and in par. (1) as so designated, redesignated pars.

(1) to (5) as subpars. (A) to (E), respectively, and subpars. (A)

and (B) of subpar. (E), as so redesignated, as cls. (i) and (ii),

respectively, substituted ''paragraph'' for ''subsection'' in

provision preceding subpar. (A), as so redesignated, ''endangered

or threatened species of fish or wildlife'' for ''endangered

species or threatened species'' in subpar. (D), as so redesignated,

''subparagraphs (C), (D), and (E) of this paragraph'' for

''paragraphs (3), (4), and (5) of this subsection'' in cl. (i) of

subpar. (E), as so redesignated, ''clause (i) and this clause'' for

''subparagraph (A) and this subparagraph'' in cl. (ii) of subpar.

(E), as so redesignated, and added par. (2).

1977 - Subsec. (c). Pub. L. 95-212, Sec. 1(1), inserted

provisions that States in which the State fish and wildlife

agencies do not possess the broad authority to conserve all

resident species of fish and wildlife which the Secretary

determines to be threatened or endangered may nevertheless qualify

for cooperative agreement funds if they satisfy all other

requirements and have plans to devote immediate attention to those

species most urgently in need of conservation programs.

Subsec. (i). Pub. L. 95-212, Sec. 1(2), substituted provisions

authorizing appropriations of $10,000,000 to cover the period

ending Sept. 30, 1977, and $16,000,000 to cover the period

beginning Oct. 1, 1977, and ending Sept. 30, 1981, for provisions

authorizing appropriations of not to exceed $10,000,000 through the

fiscal year ending June 30, 1977.

COOPERATIVE AGREEMENTS WITH STATES UNAFFECTED BY 1981 AMENDMENT OF

MARINE MAMMAL PROTECTION ACT

Nothing in the amendment of section 1379 of this title by section

4(a) of Pub. L. 97-58 to be construed as affecting in any manner

any cooperative agreement entered into by a State under subsec. (c)

of this section before, on, or after Oct. 9, 1981, see section 4(b)

of Pub. L. 97-58, set out as a note under section 1379 of this

title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 668dd, 1533, 1538, 1540,

1542, 1544 of this title.

-CITE-

16 USC Sec. 1536 01/06/03

-EXPCITE-

TITLE 16 - CONSERVATION

CHAPTER 35 - ENDANGERED SPECIES

-HEAD-

Sec. 1536. Interagency cooperation

-STATUTE-

(a) Federal agency actions and consultations

(1) The Secretary shall review other programs administered by him

and utilize such programs in furtherance of the purposes of this

chapter. All other Federal agencies shall, in consultation with

and with the assistance of the Secretary, utilize their authorities

in furtherance of the purposes of this chapter by carrying out

programs for the conservation of endangered species and threatened

species listed pursuant to section 1533 of this title.

(2) Each Federal agency shall, in consultation with and with the

assistance of the Secretary, insure that any action authorized,

funded, or carried out by such agency (hereinafter in this section

referred to as an ''agency action'') is not likely to jeopardize

the continued existence of any endangered species or threatened

species or result in the destruction or adverse modification of

habitat of such species which is determined by the Secretary, after

consultation as appropriate with affected States, to be critical,

unless such agency has been granted an exemption for such action by

the Committee pursuant to subsection (h) of this section. In

fulfilling the requirements of this paragraph each agency shall use

the best scientific and commercial data available.

(3) Subject to such guidelines as the Secretary may establish, a

Federal agency shall consult with the Secretary on any prospective

agency action at the request of, and in cooperation with, the

prospective permit or license applicant if the applicant has reason

to believe that an endangered species or a threatened species may

be present in the area affected by his project and that

implementation of such action will likely affect such species.

(4) Each Federal agency shall confer with the Secretary on any

agency action which is likely to jeopardize the continued existence

of any species proposed to be listed under section 1533 of this

title or result in the destruction or adverse modification of

critical habitat proposed to be designated for such species. This

paragraph does not require a limitation on the commitment of

resources as described in subsection (d) of this section.

(b) Opinion of Secretary

(1)(A) Consultation under subsection (a)(2) of this section with

respect to any agency action shall be concluded within the 90-day

period beginning on the date on which initiated or, subject to

subparagraph (B), within such other period of time as is mutually

agreeable to the Secretary and the Federal agency.

(B) In the case of an agency action involving a permit or license

applicant, the Secretary and the Federal agency may not mutually

agree to conclude consultation within a period exceeding 90 days

unless the Secretary, before the close of the 90th day referred to

in subparagraph (A) -

(i) if the consultation period proposed to be agreed to will

end before the 150th day after the date on which consultation was

initiated, submits to the applicant a written statement setting

forth -

(I) the reasons why a longer period is required,

(II) the information that is required to complete the

consultation, and

(III) the estimated date on which consultation will be

completed; or

(ii) if the consultation period proposed to be agreed to will

end 150 or more days after the date on which consultation was

initiated, obtains the consent of the applicant to such period.

The Secretary and the Federal agency may mutually agree to extend a

consultation period established under the preceding sentence if the

Secretary, before the close of such period, obtains the consent of

the applicant to the extension.

(2) Consultation under subsection (a)(3) of this section shall be

concluded within such period as is agreeable to the Secretary, the

Federal agency, and the applicant concerned.

(3)(A) Promptly after conclusion of consultation under paragraph

(2) or (3) of subsection (a) of this section, the Secretary shall

provide to the Federal agency and the applicant, if any, a written

statement setting forth the 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) of this section and can be

taken by the Federal agency or applicant in implementing the agency

action.

(B) Consultation under subsection (a)(3) of this section, and an

opinion issued by the Secretary incident to such consultation,

regarding an agency action shall be treated respectively as a

consultation under subsection (a)(2) of this section, and as an

opinion issued after consultation under such subsection, regarding

that action if the Secretary reviews the action before it is

commenced by the Federal agency and finds, and notifies such

agency, that no significant changes have been made with respect to

the action and that no significant change has occurred regarding

the information used during the initial consultation.

(4) If after consultation under subsection (a)(2) of this

section, the Secretary concludes that -

(A) the agency action will not violate such subsection, or

offers reasonable and prudent alternatives which the Secretary

believes would not violate such subsection;

(B) the taking of an endangered species or a threatened species

incidental to the agency action will not violate such subsection;

and

(C) if an endangered species or threatened species of a marine

mammal is involved, the taking is authorized pursuant to section

1371(a)(5) of this title;

the Secretary shall provide the Federal agency and the applicant

concerned, if any, with a written statement that -

(i) specifies the impact of such incidental taking on the

species,

(ii) specifies those reasonable and prudent measures that the

Secretary considers necessary or appropriate to minimize such

impact,

(iii) in the case of marine mammals, specifies those measures

that are necessary to comply with section 1371(a)(5) of this

title with regard to such taking, and

(iv) sets forth the terms and conditions (including, but not

limited to, reporting requirements) that must be complied with by

the Federal agency or applicant (if any), or both, to implement

the measures specified under clauses (ii) and (iii).

(c) Biological assessment

(1) To facilitate compliance with the requirements of subsection

(a)(2) of this section, each Federal agency shall, with respect to

any agency action of such agency for which no contract for

construction has been entered into and for which no construction

has begun on November 10, 1978, request of the Secretary

information whether any species which is listed or proposed to be

listed may be present in the area of such proposed action. If the

Secretary advises, based on the best scientific and commercial data

available, that such species may be present, such agency shall

conduct a biological assessment for the purpose of identifying any

endangered species or threatened species which is likely to be

affected by such action. Such assessment shall be completed within

180 days after the date on which initiated (or within such other

period as is mutually agreed to by the Secretary and such agency,

except that if a permit or license applicant is involved, the

180-day period may not be extended unless such agency provides the

applicant, before the close of such period, with a written

statement setting forth the estimated length of the proposed

extension and the reasons therefor) and, before any contract for

construction is entered into and before construction is begun with

respect to such action. Such assessment may be undertaken as part

of a Federal 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

biological assessment to identify any endangered species or

threatened species which is likely to be affected by such action.

Any such biological assessment must, however, be conducted in

cooperation with the Secretary and under the supervision of the

appropriate Federal agency.

(d) Limitation on commitment of resources

After initiation of consultation required under subsection (a)(2)

of this section, the Federal agency and the permit or license

applicant shall not make any irreversible or irretrievable

commitment of resources with respect to the agency action which has

the effect of foreclosing the formulation or implementation of any

reasonable and prudent alternative measures which would not violate

subsection (a)(2) of this section.

(e) Endangered Species Committee

(1) There is established a committee to be known as the

Endangered Species Committee (hereinafter in this section referred

to as the ''Committee'').

(2) The Committee shall review any application submitted to it

pursuant to this section and determine in accordance with

subsection (h) of this section whether or not to grant an exemption

from the requirements of subsection (a)(2) of this section for the

action set forth in such application.

(3) The Committee shall be composed of seven members as follows:

(A) The Secretary of Agriculture.

(B) The Secretary of the Army.

(C) The Chairman of the Council of Economic Advisors.

(D) The Administrator of the Environmental Protection Agency.

(E) The Secretary of the Interior.

(F) The Administrator of the National Oceanic and Atmospheric

Administration.

(G) The President, after consideration of any recommendations

received pursuant to subsection (g)(2)(B) of this section shall

appoint one individual from each affected State, as determined by

the Secretary, to be a member of the Committee for the

consideration of the application for exemption for an agency

action with respect to which such recommendations are made, not

later than 30 days after an application is submitted pursuant to

this section.

(4)(A) Members of the Committee shall receive no additional pay

on account of their service on the Committee.

(B) While away from their homes or regular places of business in

the performance of services for the Committee, members of the

Committee shall be allowed travel expenses, including per diem in

lieu of subsistence, in the same manner as persons employed

intermittently in the Government service are allowed expenses under

section 5703 of title 5.

(5)(A) Five members of the Committee or their representatives

shall constitute a quorum for the transaction of any function of

the Committee, except that, in no case shall any representative be

considered in determining the existence of a quorum for the

transaction of any function of the Committee if that function

involves a vote by the Committee on any matter before the

Committee.

(B) The Secretary of the Interior shall be the Chairman of the

Committee.

(C) The Committee shall meet at the call of the Chairman or five

of its members.

(D) All meetings and records of the Committee shall be open to

the public.

(6) Upon request of the Committee, the head of any Federal agency

is authorized to detail, on a nonreimbursable basis, any of the

personnel of such agency to the Committee to assist it in carrying

out its duties under this section.

(7)(A) The Committee may for the purpose of carrying out its

duties under this section hold such hearings, sit and act at such

times and places, take such testimony, and receive such evidence,

as the Committee deems advisable.

(B) When so authorized by the Committee, any member or agent of

the Committee may take any action which the Committee is authorized

to take by this paragraph.

(C) Subject to the Privacy Act (5 U.S.C. 552a), the Committee may

secure directly from any Federal agency information necessary to

enable it to carry out its duties under this section. Upon request

of the Chairman of the Committee, the head of such Federal agency

shall furnish such information to the Committee.

(D) The Committee may use the United States mails in the same

manner and upon the same conditions as a Federal agency.

(E) The Administrator of General Services shall provide to the

Committee on a reimbursable basis such administrative support

services as the Committee may request.

(8) In carrying out its duties under this section, the Committee

may promulgate and amend such rules, regulations, and procedures,

and issue and amend such orders as it deems necessary.

(9) For the purpose of obtaining information necessary for the

consideration of an application for an exemption under this section

the Committee may issue subpenas for the attendance and testimony

of witnesses and the production of relevant papers, books, and

documents.

(10) In no case shall any representative, including a

representative of a member designated pursuant to paragraph (3)(G)

of this subsection, be eligible to cast a vote on behalf of any

member.

(f) Promulgation of regulations; form and contents of exemption

application

Not later than 90 days after November 10, 1978, the Secretary

shall promulgate regulations which set forth the form and manner in

which applications for exemption shall be submitted to the

Secretary and the information to be contained in such

applications. Such regulations shall require that information

submitted in an application by the head of any Federal agency with

respect to any agency action include, but not be limited to -

(1) a description of the consultation process carried out

pursuant to subsection (a)(2) of this section between the head of

the Federal agency and the Secretary; and

(2) a statement describing why such action cannot be altered or

modified to conform with the requirements of subsection (a)(2) of

this section.

(g) Application for exemption; report to Committee

(1) A Federal agency, the Governor of the State in which an

agency action will occur, if any, or a permit or license applicant

may apply to the Secretary for an exemption for an agency action of

such agency if, after consultation under subsection (a)(2) of this

section, the Secretary's opinion under subsection (b) of this

section indicates that the agency action would violate subsection

(a)(2) of this section. An application for an exemption shall be

considered initially by the Secretary in the manner provided for in

this subsection, and shall be considered by the Committee for a

final determination under subsection (h) of this section after a

report is made pursuant to paragraph (5). The applicant for an

exemption shall be referred to as the ''exemption applicant'' in

this section.

(2)(A) An exemption applicant shall submit a written application

to the Secretary, in a form prescribed under subsection (f) of this

section, not later than 90 days after the completion of the

consultation process; except that, in the case of any agency action

involving a permit or license applicant, such application shall be

submitted not later than 90 days after the date on which the

Federal agency concerned takes final agency action with respect to

the issuance of the permit or license. For purposes of the

preceding sentence, the term ''final agency action'' means (i) a

disposition by an agency with respect to the issuance of a permit

or license that is subject to administrative review, whether or not

such disposition is subject to judicial review; or (ii) if

administrative review is sought with respect to such disposition,

the decision resulting after such review. Such application shall

set forth the reasons why the exemption applicant considers that

the agency action meets the requirements for an exemption under

this subsection.

(B) Upon receipt of an application for exemption for an agency

action under paragraph (1), the Secretary shall promptly (i) notify

the Governor of each affected State, if any, as determined by the

Secretary, and request the Governors so notified to recommend

individuals to be appointed to the Endangered Species Committee for

consideration of such application; and (ii) publish notice of

receipt of the application in the Federal Register, including a

summary of the information contained in the application and a

description of the agency action with respect to which the

application for exemption has been filed.

(3) The Secretary shall within 20 days after the receipt of an

application for exemption, or within such other period of time as

is mutually agreeable to the exemption applicant and the Secretary

-

(A) determine that the Federal agency concerned and the

exemption applicant have -

(i) carried out the consultation responsibilities described

in subsection (a) of this section in good faith and made a

reasonable and responsible effort to develop and fairly

consider modifications or reasonable and prudent alternatives

to the proposed agency action which would not violate

subsection (a)(2) of this section;

(ii) conducted any biological assessment required by

subsection (c) of this section; and

(iii) to the extent determinable within the time provided

herein, refrained from making any irreversible or irretrievable

commitment of resources prohibited by subsection (d) of this

section; or

(B) deny the application for exemption because the Federal

agency concerned or the exemption applicant have not met the

requirements set forth in subparagraph (A)(i), (ii), and (iii).

The denial of an application under subparagraph (B) shall be

considered final agency action for purposes of chapter 7 of title

5.

(4) If the Secretary determines that the Federal agency concerned

and the exemption applicant have met the requirements set forth in

paragraph (3)(A)(i), (ii), and (iii) he shall, in consultation with

the Members of the Committee, hold a hearing on the application for

exemption in accordance with sections 554, 555, and 556 (other than

subsection (b)(1) and (2) thereof) of title 5 and prepare the

report to be submitted pursuant to paragraph (5).

(5) Within 140 days after making the determinations under

paragraph (3) or within such other period of time as is mutually

agreeable to the exemption applicant and the Secretary, the

Secretary shall submit to the Committee a report discussing -

(A) the availability of reasonable and prudent alternatives to

the agency action, and the nature and extent of the benefits of

the agency action and of alternative courses of action consistent

with conserving the species or the critical habitat;

(B) a summary of the evidence concerning whether or not the

agency action is in the public interest and is of national or

regional significance;

(C) appropriate reasonable mitigation and enhancement measures

which should be considered by the Committee; and

(D) whether the Federal agency concerned and the exemption

applicant refrained from making any irreversible or irretrievable

commitment of resources prohibited by subsection (d) of this

section.

(6) To the extent practicable within the time required for action

under subsection (g) of this section, and except to the extent

inconsistent with the requirements of this section, the

consideration of any application for an exemption under this

section and the conduct of any hearing under this subsection shall

be in accordance with sections 554, 555, and 556 (other than

subsection (b)(3) of section 556) of title 5.

(7) Upon request of the Secretary, the head of any Federal agency

is authorized to detail, on a nonreimbursable basis, any of the

personnel of such agency to the Secretary to assist him in carrying

out his duties under this section.

(8) All meetings and records resulting from activities pursuant

to this subsection shall be open to the public.

(h) Grant of exemption

(1) The Committee shall make a final determination whether or not

to grant an exemption within 30 days after receiving the report of

the Secretary pursuant to subsection (g)(5) of this section. The

Committee shall grant an exemption from the requirements of

subsection (a)(2) of this section for an agency action if, by a

vote of not less than five of its members voting in person -

(A) it determines on the record, based on the report of the

Secretary, the record of the hearing held under subsection (g)(4)

of this section and on such other testimony or evidence as it may

receive, that -

(i) there are no reasonable and prudent alternatives to the

agency action;

(ii) the benefits of such action clearly outweigh the

benefits of alternative courses of action consistent with

conserving the species or its critical habitat, and such action

is in the public interest;

(iii) the action is of regional or national significance; and

(iv) neither the Federal agency concerned nor the exemption

applicant made any irreversible or irretrievable commitment of

resources prohibited by subsection (d) of this section; and

(B) it establishes such reasonable mitigation and enhancement

measures, including, but not limited to, live propagation,

transplantation, and habitat acquisition and improvement, as are

necessary and appropriate to minimize the adverse effects of the

agency action upon the endangered species, threatened species, or

critical habitat concerned.

Any final determination by the Committee under this subsection

shall be considered final agency action for purposes of chapter 7

of title 5.

(2)(A) Except as provided in subparagraph (B), an exemption for

an agency action granted under paragraph (1) shall constitute a

permanent exemption with respect to all endangered or threatened

species for the purposes of completing such agency action -

(i) regardless whether the species was identified in the

biological assessment; and

(ii) only if a biological assessment has been conducted under

subsection (c) of this section with respect to such agency

action.

(B) An exemption shall be permanent under subparagraph (A) unless

-

(i) the Secretary finds, based on the best scientific and

commercial data available, that such exemption would result in

the extinction of a species that was not the subject of

consultation under subsection (a)(2) of this section or was not

identified in any biological assessment conducted under

subsection (c) of this section, and

(ii) the Committee determines within 60 days after the date of

the 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; violation of international treaty

or other international obligation of United States

Notwithstanding any other provision of this chapter, the

Committee shall be prohibited from considering for exemption any

application made to it, if the Secretary of State, after a review

of the proposed agency action and its potential implications, and

after hearing, certifies, in writing, to the Committee within 60

days of any application made under this section that the granting

of any such exemption and the carrying out of such action would be

in violation of an international treaty obligation or other

international obligation of the United States. The Secretary of

State shall, at the time of such certification, publish a copy

thereof in the Federal Register.

(j) Exemption for national security reasons

Notwithstanding any other provision of this chapter, the

Committee shall grant an exemption for any agency action if the

Secretary of Defense finds that such exemption is necessary for

reasons of national security.

(k) Exemption decision not considered major Federal action;

environmental impact statement

An exemption decision by the Committee under this section shall

not be a major Federal action for purposes of the National

Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.):

Provided, That an environmental impact statement which discusses

the impacts upon endangered species or threatened species or their

critical habitats shall have been previously prepared with respect

to any agency action exempted by such order.

(l) Committee order granting exemption; cost of mitigation and

enhancement measures; report by applicant to Council on

Environmental Quality

(1) If the Committee determines under subsection (h) of this

section that an exemption should be granted with respect to any

agency action, the Committee shall issue an order granting the

exemption and specifying the mitigation and enhancement measures

established pursuant to subsection (h) of this section which shall

be carried out and paid for by the exemption applicant in

implementing the agency action. All necessary mitigation and

enhancement measures shall be authorized prior to the implementing

of the agency action and funded concurrently with all other project

features.

(2) The applicant receiving such exemption shall include the

costs of such mitigation and enhancement measures within the

overall costs of continuing the proposed action. Notwithstanding

the preceding sentence the costs of such measures shall not be

treated as project costs for the purpose of computing benefit-cost

or other ratios for the proposed action. Any applicant may request

the Secretary to carry out such mitigation and enhancement

measures. The costs incurred by the Secretary in carrying out any

such measures shall be paid by the applicant receiving the

exemption. No later than one year after the granting of an

exemption, the exemption applicant shall submit to the Council on

Environmental Quality a report describing its compliance with the

mitigation and enhancement measures prescribed by this section.

Such a report shall be submitted annually until all such mitigation

and enhancement measures have been completed. Notice of the public

availability of such reports shall be published in the Federal

Register by the Council on Environmental Quality.

(m) Notice requirement for citizen suits not applicable

The 60-day notice requirement of section 1540(g) of this title

shall not apply with respect to review of any final determination

of the Committee under subsection (h) of this section granting an

exemption from the requirements of subsection (a)(2) of this

section.

(n) Judicial review

Any person, as defined by section 1532(13) of this title, may

obtain judicial review, under chapter 7 of title 5, of any decision

of the Endangered Species Committee under subsection (h) of this

section in the United States Court of Appeals for (1) any circuit

wherein the agency action concerned will be, or is being, carried

out, or (2) in any case in which the agency action will be, or is

being, carried out outside of any circuit, the District of

Columbia, by filing in such court within 90 days after the date of

issuance of the decision, a written petition for review. A copy of

such petition shall be transmitted by the clerk of the court to the

Committee and the Committee shall file in the court the record in

the proceeding, as provided in section 2112 of title 28. Attorneys

designated by the Endangered Species Committee may appear for, and

represent the Committee in any action for review under this

subsection.

(o) Exemption as providing exception on taking of endangered

species

Notwithstanding sections 1533(d) and 1538(a)(1)(B) and (C) of

this title, sections 1371 and 1372 of this title, or any regulation

promulgated to implement any such section -

(1) any action for which an exemption is granted under

subsection (h) of this section shall not be considered to be a

taking of any endangered species or threatened species with

respect to any activity which is necessary to carry out such

action; and

(2) any taking that is in compliance with the terms and

conditions specified in a written statement provided under

subsection (b)(4)(iv) of this section shall not be considered to

be a prohibited taking of the species concerned.

(p) Exemptions in Presidentially declared disaster areas

In any area which has been declared by the President to be a

major disaster area under the Disaster Relief and Emergency

Assistance Act (42 U.S.C. 5121 et seq.), the President is

authorized to make the determinations required by subsections (g)

and (h) of this section for any project for the repair or

replacement of a public facility substantially as it existed prior

to the disaster under section 405 or 406 of the Disaster Relief and

Emergency Assistance Act (42 U.S.C. 5171 or 5172), and which the

President determines (1) is necessary to prevent the recurrence of

such a natural disaster and to reduce the potential loss of human

life, and (2) to involve an emergency situation which does not

allow the ordinary procedures of this section to be followed.

Notwithstanding any other provision of this section, the Committee

shall accept the determinations of the President under this

subsection.

-SOURCE-

(Pub. L. 93-205, Sec. 7, Dec. 28, 1973, 87 Stat. 892; Pub. L.

95-632, Sec. 3, Nov. 10, 1978, 92 Stat. 3752; Pub. L. 96-159, Sec.

4, Dec. 28, 1979, 93 Stat. 1226; Pub. L. 97-304, Sec. 4(a), 8(b),

Oct. 13, 1982, 96 Stat. 1417, 1426; Pub. L. 99-659, title IV, Sec.

411(b), (c), Nov. 14, 1986, 100 Stat. 3741, 3742; Pub. L. 100-707,

title I, Sec. 109(g), Nov. 23, 1988, 102 Stat. 4709.)

-REFTEXT-

REFERENCES IN TEXT

The Privacy Act, referred to in subsec. (e)(7)(C), is probably a

reference to section 552a of Title 5, Government Organization and

Employees. See Short Title note set out under section 552a of Title

5.

The National Environmental Policy Act of 1969, referred to in

subsec. (k), is Pub. L. 91-190, Jan. 1, 1970, 83 Stat. 852, as

amended, which is classified generally to chapter 55 (Sec. 4321 et

seq.) of Title 42, The Public Health and Welfare. For complete

classification of this Act to the Code, see Short Title note set

out under section 4321 of Title 42 and Tables.

The Disaster Relief and Emergency Assistance Act, referred to in

subsec. (p), is Pub. L. 93-288, May 22, 1974, 88 Stat. 143, as

amended, known as the Robert T. Stafford Disaster Relief and

Emergency Assistance Act, which is classified principally to

chapter 68 (Sec. 5121 et seq.) of Title 42. For complete

classification of this Act to the Code, see Short Title note set

out under section 5121 of Title 42 and Tables.

-MISC2-

AMENDMENTS

1988 - Subsec. (p). Pub. L. 100-707 substituted ''the Disaster

Relief and Emergency Assistance Act'' for ''the Disaster Relief Act

of 1974'' and ''section 405 or 406 of the Disaster Relief and

Emergency Assistance Act'' for ''section 401 or 402 of the Disaster

Relief Act of 1974''.

1986 - Subsec. (b)(4)(C). Pub. L. 99-659, Sec. 411(b)(1)-(3),

added subpar. (C).

Subsec. (b)(4)(iii), (iv). Pub. L. 99-659, Sec. 411(b)(4)-(6),

added cl. (iii), redesignated former cl. (iii) as (iv), and in cl.

(iv), as so redesignated, inserted reference to cl. (iii).

Subsec. (o). Pub. L. 99-659, Sec. 411(c)(1), in introductory

provisions, inserted '', sections 1371 and 1372 of this title,'',

and substituted ''any'' for ''either'' after ''implement''.

Subsec. (o)(2). Pub. L. 99-659, Sec. 411(c)(2), substituted

''subsection (b)(4)(iv)'' for ''subsection (b)(4)(iii)'' and

inserted ''prohibited'' before ''taking of the species''.

1982 - Subsec. (a)(3), (4). Pub. L. 97-304, Sec. 4(a)(1), added

par. (3) and redesignated former par. (3) as (4).

Subsec. (b). Pub. L. 97-304, Sec. 4(a)(2), incorporated existing

provisions into pars. (1)(A) and (3)(A) and added pars. (1)(B),

(2), (3)(B), and (4).

Subsec. (c)(1). Pub. L. 97-304, Sec. 4(a)(3), inserted '', except

that if a permit or license applicant is involved, the 180-day

period may not be extended unless such agency provides the

applicant, before the close of such period, with a written

statement setting forth the estimated length of the proposed

extension and the reasons therefor'' after ''agency'' in

parenthetical provision.

Subsec. (e)(10). Pub. L. 97-304, Sec. 4(a)(4), struck out

provision that, except in the case of a member designated pursuant

to paragraph (3)(G) of this subsection, no member could designate

any person to serve as his or her representative unless that person

was, at the time of such designation, holding a Federal office the

appointment to which was subject to the advice and consent of the

United States Senate.

Subsec. (g)(1). Pub. L. 97-304, Sec. 4(a)(5)(B), substituted ''An

application for an exemption shall be considered initially by the

Secretary in the manner provided for in this subsection, and shall

be considered by the Committee for a final determination under

subsection (h) of this section after a report is made pursuant to

paragraph (5)'' for ''An application for an exemption shall be

considered initially by a review board in the manner provided in

this subsection, and shall be considered by the Endangered Species

Committee for a final determination under subsection (h) of this

section after a report is made by the review board''.

Subsec. (g)(2)(A). Pub. L. 97-304, Sec. 4(a)(5)(C)(i),

substituted ''An exemption applicant shall submit a written

application to the Secretary, in a form prescribed under subsection

(f) of this section, not later than 90 days after the completion of

the consultation process; except that, in the case of any agency

action involving a permit or license applicant, such application

shall be submitted not later than 90 days after the date on which

the Federal agency concerned takes final agency action with respect

to the issuance of the permit or license'' for ''An exemption

applicant shall submit a written application to the Secretary, in a

form prescribed under subsection (f) of this section, not later

than 90 days after the completion of the consultation process; or,

in the case of any agency action involving a permit or license

applicant, not later than 90 days after the date on which the

Federal agency concerned takes final agency action, for purposes of

chapter 7 of title 5, with respect to the issuance of the permit or

license'' and inserted provision that, ''For purposes of the

preceding sentence, the term 'final agency action' means (i) a

disposition by an agency with respect to the issuance of a permit

or license that is subject to administrative review, whether or not

such disposition is subject to judicial review; or (ii) if

administrative review is sought with respect to such disposition,

the decision resulting after such review.''

Subsec. (g)(2)(B). Pub. L. 97-304, Sec. 4(a)(5)(C)(ii), inserted

''(i)'' after ''the Secretary shall promptly'', struck out ''to the

review board to be established under paragraph (3) and'' after

''individuals to be appointed'' in cl. (i) as so designated, and

added cl. (ii).

Subsec. (g)(3). Pub. L. 97-304, Sec. 4(a)(5)(D), (E),

redesignated par. (5) as (3) and substituted provisions directing

the Secretary, within 20 days after the receipt of an application

for exemption, or within such other period of time as is mutually

agreeable to the exemption applicant and the Secretary, to (A)

determine that the Federal agency concerned and the exemption

applicant have (i) carried out the consultation responsibilities

described in subsection (a) of this section in good faith and made

a reasonable and responsible effort to develop and fairly consider

modifications or reasonable and prudent alternatives to the

proposed agency action which would not violate subsection (a)(2) of

this section, (ii) conducted any biological assessment required by

subsection (c) of this section, and (iii) to the extent

determinable within the time provided herein, refrained from making

any irreversible or irretrievable commitment of resources

prohibited by subsection (d) of this section, or (B) deny the

application for exemption because the Federal agency concerned or

the exemption applicant have not met the requirements set forth in

subparagraph (A)(i), (ii), and (iii), and providing that the denial

of an application under subparagraph (B) shall be considered final

agency action for purposes of chapter 7 of title 5, for provisions

placing upon the review board appointed under former par. (3) the

duty to make a full review of the consultation carried out under

subsection (a)(2) of this section, and within 60 days after its

appointment or within such longer time as was mutually agreed upon

between the exemption applicant and the Secretary, to make a

determination, by a majority vote, (A) whether an irresolvable

conflict existed and (B) whether the Federal agency concerned and

such exemption applicant had (i) carried out its consultation

responsibilities as described in subsection (a) of this section in

good faith and made a reasonable and responsible effort to develop

and fairly consider modifications or reasonable and prudent

alternatives to the proposed agency action which would not violate

subsection (a)(2) of this section, (ii) conducted any biological

assessment required of it by subsection (c) of this section, and

(iii) refrained from making any irreversible or irretrievable

commitment of resources prohibited by subsection (d) of this

section, and providing that any determination by the review board

that an irresolvable conflict did not exist or that the Federal

agency concerned or the exemption applicant had not met its

respective requirements under subclause (i), (ii), or (iii) was to

be considered final agency action for purposes of chapter 7 of

title 5. Former par. (3), providing for the establishment and

functions of a review board to consider applications for exemptions

and to submit reports to the Endangered Species Committee, was

struck out.

Subsec. (g)(4). Pub. L. 97-304, Sec. 4(a)(5)(D), (F),

redesignated par. (6) as (4) and substituted ''If the Secretary

determines that the Federal agency concerned and the exemption

applicant have met the requirements set forth in paragraph

(3)(A)(i), (ii), and (iii) he shall, in consultation with the

Members of the Committee, hold a hearing on the application for

exemption in accordance with sections 554, 555, and 556 (other than

subsection (b)(1) and (2) thereof) of title 5 and prepare the

report to be submitted pursuant to paragraph (5)'' for ''If the

review board determines that an irresolvable conflict exists and

makes positive determinations under subclauses (i), (ii), and (iii)

of paragraph (5), it shall proceed to prepare the report to be

submitted under paragraph (7)''. Former par. (4), directing the

Secretary to submit the application to the review board immediately

after its appointment under paragraph (3), and to submit to the

review board, in writing, his views and recommendations with

respect to the application within 60 days after receiving a copy of

any application under paragraph (2), was struck out.

Subsec. (g)(5). Pub. L. 97-304, Sec. 4(a)(5)(G), redesignated

par. (7) as (5) and substituted ''Within 140 days after making the

determinations under paragraph (3) or within such other period of

time as is mutually agreeable to the exemption applicant and the

Secretary, the Secretary shall submit'' for ''Within 180 days after

making the determinations under paragraph (6), the review board

shall submit'' in the provisions preceding subpar. (A), and added

subpar. (D). Former par. (5) redesignated (3) and amended.

Subsec. (g)(6). Pub. L. 97-304, Sec. 4(a)(5)(H), redesignated

par. (8) as (6). Former par. (6) redesignated (4) and amended.

Subsec. (g)(7). Pub. L. 97-304, Sec. 4(a)(5)(I), redesignated

par. (10) as (7) and substituted ''Upon request of the Secretary,

the head of any Federal agency is authorized to detail, on a

nonreimbursable basis, any of the personnel of such agency to the

Secretary to assist him in carrying out his duties under this

section'' for ''Upon request of a review board, the head of any

Federal agency is authorized to detail, on a nonreimbursable basis,

any of the personnel of such agency to the review board to assist

it in carry out its duties under this section''. Former par. (7)

redesignated (5) and amended.

Subsec. (g)(8). Pub. L. 97-304, Sec. 4(a)(5)(J), redesignated

par. (12) as (8) and substituted ''records resulting from

activities pursuant to this subsection'' for ''records of review

boards''. Former par. (8) redesignated (6).

Subsec. (g)(9). Pub. L. 97-304, Sec. 4(a)(5)(D), struck out par.

(9) which had provided that the review board, in carrying out its

duties, could (A) sit and act at such times and places, take such

testimony, and receive such evidence, as the review board deemed

advisable, (B) subject to the Privacy Act of 1974 (5 U.S.C. 552a),

request of any Federal agency or applicant information necessary to

enable it to carry out such duties, and upon such request the head

of such Federal agency would furnish such information to the review

board, and (C) use the United States mails in the same manner and

upon the same conditions as a Federal agency.

Subsec. (g)(10). Pub. L. 97-304, Sec. 4(a)(5)(I), redesignated

par. (10) as (7).

Subsec. (g)(11). Pub. L. 97-304, Sec. 4(a)(5)(D), struck out par.

(11) which had provided that the Administrator of the General

Services Administration provide to a review board, on a

reimbursable basis, such administrative support services as the

review board requested.

Subsec. (g)(12). Pub. L. 97-304, Sec. 4(a)(5)(J), redesignated

par. (12) as (8).

Subsec. (h)(1). Pub. L. 97-304, Sec. 4(a)(6), substituted

''within 30 days after receiving the report of the Secretary

pursuant to subsection (g)(5) of this section'' for ''within 90

days of receiving the report of the review board under subsection

(g)(7) of this section'' in provisions preceding subpar. (A),

substituted ''report of the Secretary, the record of the hearing

held under subsection (g)(4) of this section and on such other

testimony'' for ''report of the review board and on such other

testimony'' in subpar. (A) preceding cl. (i), and added cl. (iv).

Subsec. (o). Pub. L. 97-304, Sec. 4(a)(7), substituted

''Notwithstanding sections 1533(d) and 1538(a)(1)(B) and (C) of

this title or any regulation promulgated to implement either such

section (1) any action for which an exemption is granted under

subsection (h) of this section shall not be considered to be a

taking of any endangered species or threatened species with respect

to any activity which is necessary to carry out such action; and

(2) any taking that is in compliance with the terms and conditions

specified in a written statement provided under subsection

(b)(4)(iii) of this section shall not be considered to be a taking

of the species concerned'' for ''Notwithstanding sections 1533(d)

and 1538(a) of this title or any regulations promulgated pursuant

to such sections, any action for which an exemption is granted

under subsection (h) of this section shall not be considered a

taking of any endangered or threatened species with respect to any

activity which is necessary to carry out such action''.

Subsec. (q). Pub. L. 97-304, Sec. 8(b), struck out subsec. (q)

which authorized appropriations of $600,000 for each of fiscal

years 1979, 1980, 1981, and 1982 in carrying out functions under

subsecs. (e), (f), (g), and (h) of this section. See section

1542(c) of this title.

1979 - Subsec. (a). Pub. L. 96-159, Sec. 4(1), designated

existing provisions as par. (1); struck out third sentence

requirement that each Federal agency, in consultation with and with

the assistance of the Secretary, insure that any action authorized,

funded, or carried out by such agency (referred to as ''agency

action'') did not jeopardize the continued existence of any

endangered species or threatened species or result in the

destruction or adverse modification of habitat of such species

which was determined by the Secretary, after consultation as

appropriate with the affected States, to be critical, unless the

agency was granted an exemption for such action by the Committee

pursuant to subsec. (h) of this section; and added pars. (2) and

(3), incorporating former third sentence provisions.

Subsec. (b). Pub. L. 96-159, Sec. 4(2), (3), substituted ''he

believes would not violate subsection (a)(2) of this section and''

for ''he believes would avoid jeopardizing the continued existence

of any endangered or threatened species or adversely modifying the

critical habitat of such species, and which'' before ''can be

taken'' and introductory ''subsection (a)(2) of this section'' for

''subsection (a) of this section''.

Subsec. (c). Pub. L. 96-159, Sec. 4(3), (4), substituted

''subsection (a)(2)'' for ''subsec. (a)'' of this section,

designated existing provisions as so amended par. (1), and added

par. (2).

Subsec. (d). Pub. L. 96-159, Sec. 4(3), (5), substituted

introductory words ''subsection (a)(2)'' for ''subsection (a)'' of

this section and ''alternative measures which would not violate

subsection (a)(2) of this section'' for ''alternative measures

which would avoid jeopardizing the continued existence of any

endangered or threatened species or adversely modifying or

destroying the critical habitat of any such species''.

Subsecs. (e)(2), (f). Pub. L. 96-159, Sec. 4(3), substituted

''subsection (a)(2)'' for ''subsection (a)''.

Subsec. (g)(1). Pub. L. 96-159, Sec. 4(3), (6), substituted in

first sentence ''subsection (a)(2)'' for ''subsection (a)'' of this

section and ''agency action would violate subsection (a)(2) of this

section'' for ''agency action may jeopardize the continued

existence of any endangered or threatened species or destroy or

adversely modify the critical habitat of such species''.

Subsec. (g)(2)(A). Pub. L. 96-159, Sec. 4(7), required exemption

applicant, to submit a written application, in the case of any

agency action involving a permit or license applicant, not later

than 90 days after the date on which the Federal agency concerned

takes final agency action, for purposes of chapter 7 of Title 5,

with respect to the issuance of the permit or license.

Subsec. (g)(3). Pub. L. 96-159, Sec. 4(8), added subpar. (B), and

redesignated former subpar. (B) as (C).

Subsec. (g)(5). Pub. L. 96-159, Sec. 4(3), (9), substituted in

introductory text and cl. (i) ''subsection (a)(2)'' for

''subsection (a)'' of this section; redesignated as cls. (A) and

(B) former cls. (i) and (ii); inserted in cl. (B) ''the Federal

agency concerned and'' before ''such exemption applicant'';

redesignated as subcls. (i) to (iii) former subcls. (A) to (C);

substituted in subcl. (i) ''agency action which would not violate

subsection (a)(2) of this section'' for ''agency action which will

avoid jeopardizing the continued existence of an endangered or

threatened species or result in the adverse modification or

destruction of a critical habitat''; and substituted in last

sentence ''the Federal agency concerned or the exemption applicant

has not met its respective requirements under subclause (i), (ii),

or (iii)'' for ''the exemption applicant has not met the

requirements of subparagraph (A), (B), or (C)'' preceding ''shall

be considered final agency action''.

Subsec. (g)(6). Pub. L. 96-159, Sec. 4(10), substituted

''subclauses (i), (ii), and (iii)'' for ''subparagraphs (A), (B),

and (C)'' of paragraph (5).

Subsec. (h)(1). Pub. L. 96-159, Sec. 4(3), substituted

''subsection (a)(2)'' for ''subsection (a)'' of this section.

Subsec. (h)(2). Pub. L. 96-159, Sec. 4(11), in subpar. (A),

substituted ''paragraph (1)'' for ''subsection (h) of this

section'', inserted cl. (i), incorporated existing provisions in

text designated cl. (ii), inserting thereto ''with respect to such

agency action''; in subpar. (B), incorporated existing provision in

cl. (i), inserted findings provision respecting the extinction of a

species that was not: the subject of consultation or identified in

any biological assessment under subsec. (a)(2) or (c) of this

section, added cl. (ii), deleted prior requirement for a Committee

determination within 30 days of the Secretary's finding that an

exemption would result in extinction of the species whether to

grant an exemption for the agency notwithstanding such finding, and

superseded the same with requirement that the Committee meet with

respect to the matter within 30 days after the date of such a

finding.

Subsec. (m). Pub. L. 96-159, Sec. 4(3), substituted ''subsection

(a)(2)'' for ''subsection (a)'' of this section.

Subsec. (q). Pub. L. 96-159, Sec. 4(12), authorized

appropriations of $600,000 for fiscal years 1980 through 1982, and

deleted appropriations authorization of $300,000 for period

beginning Oct. 1, 1979, and ending Mar. 3, 1980, and requirement

that the Chairman of the Committee report to the Congress before

end of fiscal year 1979 with respect to adequacy of the budget

authority.

1978 - Subsec. (a). Pub. L. 95-632 designated existing provision

as subsec. (a), inserted reference to agency action, substituted

''adverse modification'' for ''modification'', and provided for the

grant of an exemption for agency action by the Endangered Species

Committee pursuant to subsec. (h) of this section.

Subsecs. (b) to (q). Pub. L. 95-632 added subsecs. (b) to (q).

DEFERRAL OF AGENCY ACTION

Pub. L. 105-18, title II, Sec. 3003, June 12, 1997, 111 Stat.

176, provided that:

''(a) Consultation and Conferencing. - As provided by regulations

issued under the Endangered Species Act (16 U.S.C. 1531 et seq.)

for emergency situations, formal consultation or conferencing under

section 7(a)(2) or section 7(a)(4) of the Act (16 U.S.C.

1536(a)(2), (4)) for any action authorized, funded or carried out

by any Federal agency to repair a Federal or non-Federal flood

control project, facility or structure may be deferred by the

Federal agency authorizing, funding or carrying out the action, if

the agency determines that the repair is needed to respond to an

emergency causing an imminent threat to human lives and property in

1996 or 1997. Formal consultation or conferencing shall be deferred

until the imminent threat to human lives and property has been

abated. For purposes of this section, the term repair shall

include preventive and remedial measures to restore the project,

facility or structure to remove an imminent threat to human lives

and property.

''(b) Reasonable and Prudent Measures. - Any reasonable and

prudent measures specified under section 7 of the Endangered

Species Act (16 U.S.C. 1536) to minimize the impact of an action

taken under this section shall be related both in nature and extent

to the effect of the action taken to repair the flood control

project, facility or structure.''

TRANSLOCATION OF CALIFORNIA SEA OTTERS

Pub. L. 99-625, Sec. 1, Nov. 7, 1986, 100 Stat. 3500, provided

that:

''(a) Definitions. - For purposes of this section -

''(1) The term 'Act' means the Endangered Species Act of 1973

(16 U.S.C. 1531 et seq.).

''(2) The term 'agency action' has the meaning given that term

in section 7(a)(2) of the Act (16 U.S.C. 1536(a)(2)).

''(3) The term 'experimental population' means the population

of sea otters provided for under a plan developed under

subsection (b).

''(4) The phrase 'parent population' means the population of

sea otters existing in California on the date on which proposed

regulations setting forth a proposed plan under subsection (b)

are issued.

''(5) The phrase 'prospective action' refers to any prospective

agency action that -

''(A) may affect either the experimental population or the

parent population; and

''(B) has evolved to the point where meaningful consultation

under section 7(a)(2) or (3) of the Act (16 U.S.C. 1536(a)(2),

(3)) can take place.

''(6) The term 'Secretary' means the Secretary of the Interior.

''(7) The term 'Service' means the United States Fish and

Wildlife Service.

''(b) Plan Specifications. - The Secretary may develop and

implement, in accordance with this section, a plan for the

relocation and management of a population of California sea otters

from the existing range of the parent population to another

location. The plan, which must be developed by regulation and

administered by the Service in cooperation with the appropriate

State agency, shall include the following:

''(1) The number, age, and sex of sea otters proposed to be

relocated.

''(2) The manner in which the sea otters will be captured,

translocated, released, monitored, and protected.

''(3) The specification of a zone (hereinafter referred to as

the 'translocation zone') to which the experimental population

will be relocated. The zone must have appropriate

characteristics for furthering the conservation of the species.

''(4) The specification of a zone (hereinafter referred to as

the 'management zone') that -

''(A) surrounds the translocation zone; and

''(B) does not include the existing range of the parent

population or adjacent range where expansion is necessary for

the recovery of the species.

The purpose of the management zone is to (i) facilitate the

management of sea otters and the containment of the experimental

population within the translocation zone, and (ii) to prevent, to

the maximum extent feasible, conflict with other fishery

resources within the management zone by the experimental

population. Any sea otter found within the management zone shall

be treated as a member of the experimental population. The

Service shall use all feasible non-lethal means and measures to

capture any sea otter found within the management zone and return

it to either the translocation zone or to the range of the parent

population.

''(5) Measures, including an adequate funding mechanism, to

isolate and contain the experimental population.

''(6) A description of the relationship of the implementation

of the plan to the status of the species under the Act and to

determinations of the Secretary under section 7 of the Act (16

U.S.C. 1536).

''(c) Status of Members of the Experimental Population. - (1) Any

member of the experimental population shall be treated while within

the translocation zone as a threatened species for purposes of the

Act, except that -

''(A) section 7 of the Act (16 U.S.C. 1536) shall only apply to

agency actions that -

''(i) are undertaken within the translocation zone,

''(ii) are not defense-related agency actions, and

''(iii) are initiated after the date of the enactment of this

section (Nov. 7, 1986); and

''(B) with respect to defense-related actions within the

translocation zone, members of the experimental population shall

be treated as members of a species that is proposed to be listed

under section 4 of the Act (16 U.S.C. 1533).

For purposes of this paragraph, the term 'defense-related agency

action' means an agency action proposed to be carried out directly

by a military department.

''(2) For purposes of section 7 of the Act (16 U.S.C. 1536), any

member of the experimental population shall be treated while within

the management zone as a member of a species that is proposed to be

listed under section 4 of the Act (16 U.S.C. 1533). Section 9 of

the Act (16 U.S.C. 1538) applies to members of the experimental

population; except that any incidental taking of such a member

during the course of an otherwise lawful activity within the

management zone, may not be treated as a violation of the Act or

the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 et seq.).

''(d) Implementation of Plan. - The Secretary shall implement the

plan developed under subsection (b) -

''(1) after the Secretary provides an opinion under section

7(b) of the Act (16 U.S.C. 1536(b)) regarding each prospective

action for which consultation was initiated by a Federal agency

or requested by a prospective permit or license applicant before

April 1, 1986; or

''(2) if no consultation under section 7(a)(2) or (3) regarding

any prospective action is initiated or requested by April 1,

1986, at any time after that date.

''(e) Consultation and Effect of Opinion. - A Federal agency

shall promptly consult with the Secretary, under section 7(a)(3) of

the Act (16 U.S.C. 1536(a)(3)), at the request of, and in

cooperation with, any permit or license applicant regarding any

prospective action. The time limitations applicable to

consultations under section 7(a)(2) of the Act apply to

consultations under the preceding sentence. In applying section

7(b)(3)(B) with respect to an opinion on a prospective action that

is provided after consultation under section 7(a)(3), that opinion

shall be treated as the opinion issued after consultation under

section 7(a)(2) unless the Secretary finds, after notice and

opportunity for comment in accordance with section 553 of title 5,

United States Code, that a significant change has been made with

respect to the action or that a significant change has occurred

regarding the information used during the initial consultation.

The interested party may petition the Secretary to make a finding

under the preceding sentence. The Secretary may implement any

reasonable and prudent alternatives specified in any opinion

referred to in this subsection through appropriate agreements with

any such Federal agency, prospective permit or license applicant,

or other interested party.

''(f) Construction. - For purposes of implementing the plan, no

act by the Service, an authorized State agency, or an authorized

agent of the Service or such an agency with respect to a sea otter

that is necessary to effect the relocation or management of any sea

otter under the plan may be treated as a violation of any provision

of the Act or the Marine Mammal Protection Act of 1972 (16 U.S.C.

1361 et seq.).''

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1532, 1539, 1542, 3645 of

this title; title 23 section 108.

-CITE-

16 USC Sec. 1537 01/06/03

-EXPCITE-

TITLE 16 - CONSERVATION

CHAPTER 35 - ENDANGERED SPECIES

-HEAD-

Sec. 1537. International cooperation

-STATUTE-

(a) Financial assistance

As a demonstration of the commitment of the United States to the

worldwide protection of endangered species and threatened species,

the President may, subject to the provisions of section 1306 of

title 31, use foreign currencies accruing to the United States

Government under the Agricultural Trade Development and Assistance

Act of 1954 (7 U.S.C. 1691 et seq.) or any other law to provide to

any foreign country (with its consent) assistance in the

development and management of programs in that country which the

Secretary determines to be necessary or useful for the conservation

of any endangered species or threatened species listed by the

Secretary pursuant to section 1533 of this title. The President

shall provide assistance (which includes, but is not limited to,

the acquisition, by lease or otherwise, of lands, waters, or

interests therein) to foreign countries under this section under

such terms and conditions as he deems appropriate. Whenever

foreign currencies are available for the provision of assistance

under this section, such currencies shall be used in preference to

funds appropriated under the authority of section 1542 of this

title.

(b) Encouragement of foreign programs

In order to carry out further the provisions of this chapter, the

Secretary, through the Secretary of State, shall encourage -

(1) foreign countries to provide for the conservation of fish

or wildlife and plants including endangered species and

threatened species listed pursuant to section 1533 of this title;

(2) the entering into of bilateral or multilateral agreements

with foreign countries to provide for such conservation; and

(3) foreign persons who directly or indirectly take fish or

wildlife or plants in foreign countries or on the high seas for

importation into the United States for commercial or other

purposes to develop and carry out with such assistance as he may

provide, conservation practices designed to enhance such fish or

wildlife or plants and their habitat.

(c) Personnel

After consultation with the Secretary of State, the Secretary may

-

(1) assign or otherwise make available any officer or employee

of his department for the purpose of cooperating with foreign

countries and international organizations in developing personnel

resources and programs which promote the conservation of fish or

wildlife or plants; and

(2) conduct or provide financial assistance for the educational

training of foreign personnel, in this country or abroad, in

fish, wildlife, or plant management, research and law enforcement

and to render professional assistance abroad in such matters.

(d) Investigations

After consultation with the Secretary of State and the Secretary

of the Treasury, as appropriate, the Secretary may conduct or cause

to be conducted such law enforcement investigations and research

abroad as he deems necessary to carry out the purposes of this

chapter.

-SOURCE-

(Pub. L. 93-205, Sec. 8, Dec. 28, 1973, 87 Stat. 892; Pub. L.

96-159, Sec. 5, Dec. 28, 1979, 93 Stat. 1228.)

-REFTEXT-

REFERENCES IN TEXT

The Agricultural Trade Development and Assistance Act of 1954,

referred to in subsec. (a), is act July 10, 1954, ch. 469, 68 Stat.

454, as amended, which is classified generally to chapter 41 (Sec.

1691 et seq.) of Title 7, Agriculture. For complete classification

of this Act to the Code, see Short Title note set out under section

1691 of Title 7 and Tables.

-COD-

CODIFICATION

In subsec. (a), ''section 1306 of title 31'' substituted for

''section 1415 of the Supplemental Appropriation Act, 1953 (31

U.S.C. 724)'' on authority of Pub. L. 97-258, Sec. 4(b), Sept. 13,

1982, 96 Stat. 1067, the first section of which enacted Title 31,

Money and Finance.

-MISC3-

AMENDMENTS

1979 - Subsec. (b)(1). Pub. L. 96-159, Sec. 5(1), encouraged

conservation of plants.

Subsec. (b)(3). Pub. L. 96-159, Sec. 5(2), encouraged

conservation practices for enhancement of plants taken for

importation into the United States.

Subsec. (c)(1). Pub. L. 96-159, Sec. 5(3), made personnel

available for plant conservation.

Subsec. (e). Pub. L. 96-159, Sec. 5(4), struck out subsec. (e)

relating to Convention implementation.

CONSERVATION OF SEA TURTLES; IMPORTATION OF SHRIMP

Pub. L. 101-162, title VI, Sec. 609, Nov. 21, 1989, 103 Stat.

1037, provided that:

''(a) The Secretary of State, in consultation with the Secretary

of Commerce, shall, with respect to those species of sea turtles

the conservation of which is the subject of regulations promulgated

by the Secretary of Commerce on June 29, 1987 -

''(1) initiate negotiations as soon as possible for the

development of bilateral or multilateral agreements with other

nations for the protection and conservation of such species of

sea turtles;

''(2) initiate negotiations as soon as possible with all

foreign governments which are engaged in, or which have persons

or companies engaged in, commercial fishing operations which, as

determined by the Secretary of Commerce, may affect adversely

such species of sea turtles, for the purpose of entering into

bilateral and multilateral treaties with such countries to

protect such species of sea turtles;

''(3) encourage such other agreements to promote the purposes

of this section with other nations for the protection of specific

ocean and land regions which are of special significance to the

health and stability of such species of sea turtles;

''(4) initiate the amendment of any existing international

treaty for the protection and conservation of such species of sea

turtles to which the United States is a party in order to make

such treaty consistent with the purposes and policies of this

section; and

''(5) provide to the Congress by not later than one year after

the date of enactment of this section (Nov. 21, 1989) -

''(A) a list of each nation which conducts commercial shrimp

fishing operations within the geographic range of distribution

of such sea turtles;

''(B) a list of each nation which conducts commercial shrimp

fishing operations which may affect adversely such species of

sea turtles; and

''(C) a full report on -

''(i) the results of his efforts under this section; and

''(ii) the status of measures taken by each nation listed

pursuant to paragraph (A) or (B) to protect and conserve such

sea turtles.

''(b)(1) In General. - The importation of shrimp or products from

shrimp which have been harvested with commercial fishing technology

which may affect adversely such species of sea turtles shall be

prohibited not later than May 1, 1991, except as provided in

paragraph (2).

''(2) Certification Procedure. - The ban on importation of shrimp

or products from shrimp pursuant to paragraph (1) shall not apply

if the President shall determine and certify to the Congress not

later than May 1, 1991, and annually thereafter that -

''(A) the government of the harvesting nation has provided

documentary evidence of the adoption of a regulatory program

governing the incidental taking of such sea turtles in the course

of such harvesting that is comparable to that of the United

States; and

''(B) the average rate of that incidental taking by the vessels

of the harvesting nation is comparable to the average rate of

incidental taking of sea turtles by United States vessels in the

course of such harvesting; or

''(C) the particular fishing environment of the harvesting

nation does not pose a threat of the incidental taking of such

sea turtles in the course of such harvesting.''

-EXEC-

EXECUTIVE ORDER NO. 11911

Ex. Ord. No. 11911, Apr. 13, 1976, 41 F.R. 15683, which provided

that for purposes of the Convention on International Trade in

Endangered Species of Wild Fauna and Flora the Secretary of the

Interior be designated as the Management Authority and established

the Endangered Species Scientific Authority as the Scientific

Authority, with the Secretary of the Interior designated to act on

behalf of the United States in all regards as required by the

Convention on Nature Protection and Wildlife Preservation in the

Western Hemisphere, was revoked by Ex. Ord. No. 12608, Sept. 9,

1987, 52 F.R. 34617.

DELEGATION OF AUTHORITY REGARDING CERTIFICATION OF COUNTRIES

EXPORTING SHRIMP TO UNITED STATES

Memorandum of the President of the United States, Dec. 19, 1990,

56 F.R. 357, provided:

Memorandum for the Secretary of State

By virtue of the authority vested in me by the Constitution and

laws of the United States of America, including section 609 of the

Departments of Commerce, Justice, and State, the Judiciary, and

Related Agencies Appropriations Act, 1990 (Public Law 101-162) (set

out above), and section 301 of title 3 of the United States Code, I

hereby delegate to the Secretary of State the functions vested in

me by section 609(b) of that Act. The authority delegated by this

memorandum may be further redelegated within the Department of

State.

The Secretary of State is authorized and directed to publish this

memorandum in the Federal Register. George Bush.

-CITE-

16 USC Sec. 1537a 01/06/03

-EXPCITE-

TITLE 16 - CONSERVATION

CHAPTER 35 - ENDANGERED SPECIES

-HEAD-

Sec. 1537a. Convention implementation

-STATUTE-

(a) Management Authority and Scientific Authority

The Secretary of the Interior (hereinafter in this section

referred to as the ''Secretary'') is designated as the Management

Authority and the Scientific Authority for purposes of the

Convention and the respective functions of each such Authority

shall be carried out through the United States Fish and Wildlife

Service.

(b) Management Authority functions

The Secretary shall do all things necessary and appropriate to

carry out the functions of the Management Authority under the

Convention.

(c) Scientific Authority functions; determinations

(1) The Secretary shall do all things necessary and appropriate

to carry out the functions of the Scientific Authority under the

Convention.

(2) The Secretary shall base the determinations and advice given

by him under Article IV of the Convention with respect to wildlife

upon the best available biological information derived from

professionally accepted wildlife management practices; but is not

required to make, or require any State to make, estimates of

population size in making such determinations or giving such

advice.

(d) Reservations by the United States under Convention

If the United States votes against including any species in

Appendix I or II of the Convention and does not enter a reservation

pursuant to paragraph (3) of Article XV of the Convention with

respect to that species, the Secretary of State, before the 90th

day after the last day on which such a reservation could be

entered, shall submit to the Committee on Merchant Marine and

Fisheries of the House of Representatives, and to the Committee on

the Environment and Public Works of the Senate, a written report

setting forth the reasons why such a reservation was not entered.

(e) Wildlife preservation in Western Hemisphere

(1) The Secretary of the Interior (hereinafter in this subsection

referred to as the ''Secretary''), in cooperation with the

Secretary of State, shall act on behalf of, and represent, the

United States in all regards as required by the Convention on

Nature Protection and Wildlife Preservation in the Western

Hemisphere (56 Stat. 1354, T.S. 982, hereinafter in this subsection

referred to as the ''Western Convention''). In the discharge of

these responsibilities, the Secretary and the Secretary of State

shall consult with the Secretary of Agriculture, the Secretary of

Commerce, and the heads of other agencies with respect to matters

relating to or affecting their areas of responsibility.

(2) The Secretary and the Secretary of State shall, in

cooperation with the contracting parties to the Western Convention

and, to the extent feasible and appropriate, with the participation

of State agencies, take such steps as are necessary to implement

the Western Convention. Such steps shall include, but not be

limited to -

(A) cooperation with contracting parties and international

organizations for the purpose of developing personnel resources

and programs that will facilitate implementation of the Western

Convention;

(B) identification of those species of birds that migrate

between the United States and other contracting parties, and the

habitats upon which those species depend, and the implementation

of cooperative measures to ensure that such species will not

become endangered or threatened; and

(C) identification of measures that are necessary and

appropriate to implement those provisions of the Western

Convention which address the protection of wild plants.

(3) No later than September 30, 1985, the Secretary and the

Secretary of State shall submit a report to Congress describing

those steps taken in accordance with the requirements of this

subsection and identifying the principal remaining actions yet

necessary for comprehensive and effective implementation of the

Western Convention.

(4) The provisions of this subsection shall not be construed as

affecting the authority, jurisdiction, or responsibility of the

several States to manage, control, or regulate resident fish or

wildlife under State law or regulations.

-SOURCE-

(Pub. L. 93-205, Sec. 8A, as added Pub. L. 96-159, Sec. 6(a)(1),

Dec. 28, 1979, 93 Stat. 1228; amended Pub. L. 97-304, Sec. 5((a)),

Oct. 13, 1983, 96 Stat. 1421.)

-MISC1-

AMENDMENTS

1982 - Subsec. (c). Pub. L. 97-304, Sec. 5((a))(1), designated

existing provisions as par. (1) and added par. (2).

Subsec. (d). Pub. L. 97-304, Sec. 5((a))(2), substituted

provisions relating to reservations by the United States under the

Convention for provisions which had established an International

Convention Advisory Commission and had provided for its membership,

staffing, and operation.

Subsec. (e). Pub. L. 97-304, Sec. 5((a))(3), substituted

provisions implementing the Convention on Nature Protection and

Wildlife Preservation in the Western Hemisphere for provisions

which had provided that the President shall designate those

agencies of the Federal Government that shall act on behalf of, and

represent, the United States in all regards as required by the

Convention on Nature Protection and Wildlife Preservation in the

Western Hemisphere.

EFFECTIVE DATE OF 1982 AMENDMENT

Section 5(b) of Pub. L. 97-304 provided that: ''The amendment

made by paragraph (1) of subsection (a) (amending this section)

shall take effect January 1, 1981.''

-TRANS-

ABOLITION OF HOUSE COMMITTEE ON MERCHANT MARINE AND FISHERIES

Committee on Merchant Marine and Fisheries of House of

Representatives abolished and its jurisdiction transferred by House

Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995.

Committee on Merchant Marine and Fisheries of House of

Representatives treated as referring to Committee on Resources of

House of Representatives in case of provisions relating to

fisheries, wildlife, international fishing agreements, marine

affairs (including coastal zone management) except for measures

relating to oil and other pollution of navigable waters, or

oceanography by section 1(b)(3) of Pub. L. 104-14, set out as a

note preceding section 21 of Title 2, The Congress.

-MISC5-

ENDANGERED SPECIES SCIENTIFIC AUTHORITY; INTERIM PERFORMANCE OF

FUNCTIONS OF COMMISSION

Section 6(b) of Pub. L. 96-159 provided that until such time as

the Chairman, Members, and Executive Secretary of the International

Convention Advisory Commission are appointed, but not later than 90

days after Dec. 28, 1979, the functions of the Commission be

carried out by the Endangered Species Scientific Authority as

established by Ex. Ord. No. 11911, formerly set out as a note under

section 1537 of this title, with staff and administrative support

being provided by the Secretary of the Interior as set forth in

that Executive Order.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1542, 2912 of this title.

-CITE-

16 USC Sec. 1538 01/06/03

-EXPCITE-

TITLE 16 - CONSERVATION

CHAPTER 35 - ENDANGERED SPECIES

-HEAD-

Sec. 1538. Prohibited acts

-STATUTE-

(a) Generally

(1) Except as provided in sections 1535(g)(2) and 1539 of this

title, with respect to any endangered species of fish or wildlife

listed pursuant to section 1533 of this title it is unlawful for

any person subject to the jurisdiction of the United States to -

(A) import any such species into, or export any such species

from the United States;

(B) take any such species within the United States or the

territorial sea of the United States;

(C) take any such species upon the high seas;

(D) possess, sell, deliver, carry, transport, or ship, by any

means whatsoever, any such species taken in violation of

subparagraphs (B) and (C);

(E) deliver, receive, carry, transport, or ship in interstate

or foreign commerce, by any means whatsoever and in the course of

commercial activity, any such species;

(F) sell or offer for sale in interstate or foreign commerce

any such species; or

(G) violate any regulation pertaining to such species or to any

threatened species of fish or wildlife listed pursuant to section

1533 of this title and promulgated by the Secretary pursuant to

authority provided by this chapter.

(2) Except as provided in sections 1535(g)(2) and 1539 of this

title, with respect to any endangered species of plants listed

pursuant to section 1533 of this title, it is unlawful for any

person subject to the jurisdiction of the United States to -

(A) import any such species into, or export any such species

from, the United States;

(B) remove and reduce to possession any such species from areas

under Federal jurisdiction; maliciously damage or destroy any

such species on any such area; or remove, cut, dig up, or damage

or destroy any such species on any other area in knowing

violation of any law or regulation of any State or in the course

of any violation of a State criminal trespass law;

(C) deliver, receive, carry, transport, or ship in interstate

or foreign commerce, by any means whatsoever and in the course of

a commercial activity, any such species;

(D) sell or offer for sale in interstate or foreign commerce

any such species; or

(E) violate any regulation pertaining to such species or to any

threatened species of plants listed pursuant to section 1533 of

this title and promulgated by the Secretary pursuant to authority

provided by this chapter.

(b) Species held in captivity or controlled environment

(1) The provisions of subsections (a)(1)(A) and (a)(1)(G) of this

section shall not apply to any fish or wildlife which was held in

captivity or in a controlled environment on (A) December 28, 1973,

or (B) the date of the publication in the Federal Register of a

final regulation adding such fish or wildlife species to any list

published pursuant to subsection (c) of section 1533 of this title:

Provided, That such holding and any subsequent holding or use of

the fish or wildlife was not in the course of a commercial

activity. With respect to any act prohibited by subsections

(a)(1)(A) and (a)(1)(G) of this section which occurs after a period

of 180 days from (i) December 28, 1973, or (ii) the date of

publication in the Federal Register of a final regulation adding

such fish or wildlife species to any list published pursuant to

subsection (c) of section 1533 of this title, there shall be a

rebuttable presumption that the fish or wildlife involved in such

act is not entitled to the exemption contained in this subsection.

(2)(A) The provisions of subsection (a)(1) of this section shall

not apply to -

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

environment on November 10, 1978; or

(ii) any progeny of any raptor described in clause (i);

until such time as any such raptor or progeny is intentionally

returned to a wild state.

(B) Any person holding any raptor or progeny described in

subparagraph (A) must be able to demonstrate that the raptor or

progeny does, in fact, qualify under the provisions of this

paragraph, and shall maintain and submit to the Secretary, on

request, such inventories, documentation, and records as the

Secretary may by regulation require as being reasonably appropriate

to carry out the purposes of this paragraph. Such requirements

shall not unnecessarily duplicate the requirements of other rules

and regulations promulgated by the Secretary.

(c) Violation of Convention

(1) It is unlawful for any person subject to the jurisdiction of

the United States to engage in any trade in any specimens contrary

to the provisions of the Convention, or to possess any specimens

traded contrary to the provisions of the Convention, including the

definitions of terms in article I thereof.

(2) Any importation into the United States of fish or wildlife

shall, if -

(A) such fish or wildlife is not an endangered species listed

pursuant to section 1533 of this title but is listed in Appendix

II to the Convention,

(B) the taking and exportation of such fish or wildlife is not

contrary to the provisions of the Convention and all other

applicable requirements of the Convention have been satisfied,

(C) the applicable requirements of subsections (d), (e), and

(f) of this section have been satisfied, and

(D) such importation is not made in the course of a commercial

activity,

be presumed to be an importation not in violation of any provision

of this chapter or any regulation issued pursuant to this chapter.

(d) Imports and exports

(1) In general

It is unlawful for any person, without first having obtained

permission from the Secretary, to engage in business -

(A) as an importer or exporter of fish or wildlife (other

than shellfish and fishery products which (i) are not listed

pursuant to section 1533 of this title as endangered species or

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

or animal consumption or taken in waters under the jurisdiction

of the United States or on the high seas for recreational

purposes) or plants; or

(B) as an importer or exporter of any amount of raw or worked

African elephant ivory.

(2) Requirements

Any person required to obtain permission under paragraph (1) of

this subsection shall -

(A) keep such records as will fully and correctly disclose

each importation or exportation of fish, wildlife, plants, or

African elephant ivory made by him and the subsequent

disposition made by him with respect to such fish, wildlife,

plants, or ivory;

(B) at all reasonable times upon notice by a duly authorized

representative of the Secretary, afford such representative

access to his place of business, an opportunity to examine his

inventory of imported fish, wildlife, plants, or African

elephant ivory and the records required to be kept under

subparagraph (A) of this paragraph, and to copy such records;

and

(C) file such reports as the Secretary may require.

(3) Regulations

The Secretary shall prescribe such regulations as are necessary

and appropriate to carry out the purposes of this subsection.

(4) Restriction on consideration of value or amount of African

elephant ivory imported or exported

In granting permission under this subsection for importation or

exportation of African elephant ivory, the Secretary shall not

vary the requirements for obtaining such permission on the basis

of the value or amount of ivory imported or exported under such

permission.

(e) Reports

It is unlawful for any person importing or exporting fish or

wildlife (other than shellfish and fishery products which (1) are

not listed pursuant to section 1533 of this title as endangered or

threatened species, and (2) are imported for purposes of human or

animal consumption or taken in waters under the jurisdiction of the

United States or on the high seas for recreational purposes) or

plants to fail to file any declaration or report as the Secretary

deems necessary to facilitate enforcement of this chapter or to

meet the obligations of the Convention.

(f) Designation of ports

(1) It is unlawful for any person subject to the jurisdiction of

the United States to import into or export from the United States

any fish or wildlife (other than shellfish and fishery products

which (A) are not listed pursuant to section 1533 of this title as

endangered species or threatened species, and (B) are imported for

purposes of human or animal consumption or taken in waters under

the jurisdiction of the United States or on the high seas for

recreational purposes) or plants, except at a port or ports

designated by the Secretary of the Interior. For the purpose of

facilitating enforcement of this chapter and reducing the costs

thereof, the Secretary of the Interior, with approval of the

Secretary of the Treasury and after notice and opportunity for

public hearing, may, by regulation, designate ports and change such

designations. The Secretary of the Interior, under such terms and

conditions as he may prescribe, may permit the importation or

exportation at nondesignated ports in the interest of the health or

safety of the fish or wildlife or plants, or for other reasons, if,

in his discretion, he deems it appropriate and consistent with the

purpose of this subsection.

(2) Any port designated by the Secretary of the Interior under

the authority of section 668cc-4(d) (FOOTNOTE 1) of this title,

shall, if such designation is in effect on December 27, 1973, be

deemed to be a port designated by the Secretary under paragraph (1)

of this subsection until such time as the Secretary otherwise

provides.

(FOOTNOTE 1) See References in Text note below.

(g) Violations

It is unlawful for any person subject to the jurisdiction of the

United States to attempt to commit, solicit another to commit, or

cause to be committed, any offense defined in his section.

-SOURCE-

(Pub. L. 93-205, Sec. 9, Dec. 28, 1973, 87 Stat. 893; Pub. L.

95-632, Sec. 4, Nov. 10, 1978, 92 Stat. 3760; Pub. L. 97-304, Sec.

9(b), Oct. 13, 1982, 96 Stat. 1426; Pub. L. 100-478, title I, Sec.

1006, title II, Sec. 2301, Oct. 7, 1988, 102 Stat. 2308, 2321; Pub.

L. 100-653, title IX, Sec. 905, Nov. 14, 1988, 102 Stat. 3835.)

-REFTEXT-

REFERENCES IN TEXT

Section 668cc-4 of this title, referred to in subsec. (f)(2), was

repealed by Pub. L. 93-205, Sec. 14, Dec. 28, 1973, 87 Stat. 903.

-MISC2-

AMENDMENTS

1988 - Subsec. (a)(2)(B). Pub. L. 100-478, Sec. 1006, amended

subpar. (B) generally. Prior to amendment, subpar. (B) read as

follows: ''remove and reduce to possession any such species from

areas under Federal jurisdiction;''.

Subsec. (d). Pub. L. 100-478, Sec. 2301, amended subsec. (d)

generally, revising and restating as pars. (1) to (4) provisions of

former pars. (1) to (3).

Subsec. (d)(1)(A). Pub. L. 100-653 inserted ''or plants'' after

''purposes)''.

1982 - Subsec. (a)(2)(B) to (E). Pub. L. 97-304, Sec. 9(b)(1),

added subpar. (B) and redesignated former subpars. (B), (C), and

(D) as (C), (D), and (E), respectively.

Subsec. (b)(1). Pub. L. 97-304, Sec. 9(b)(2), substituted ''The

provisions of subsections (a)(1)(A) and (a)(1)(G) of this section

shall not apply to any fish or wildlife which was held in captivity

or in a controlled environment on (A) December 28, 1973, or (B) the

date of the publication in the Federal Register of a final

regulation adding such fish or wildlife species to any list

published pursuant to subsection (c) of section 1533 of this title:

Provided, That such holding and any subsequent holding or use of

the fish or wildlife was not in the course of a commercial

activity. With respect to any act prohibited by subsections

(a)(1)(A) and (a)(1)(G) of this section which occurs after a period

of 180 days from (i) December 28, 1973, or (ii) the date of

publication in the Federal Register of a final regulation adding

such fish or wildlife species to any list published pursuant to

subsection (c) of section 1533 of this title, there shall be a

rebuttable presumption that the fish or wildlife involved in such

act is not entitled to the exemption contained in this subsection''

for ''The provisions of this section shall not apply to any fish or

wildlife held in captivity or in a controlled environment on

December 28, 1973, if the purposes of such holding are not contrary

to the purposes of this chapter; except that this subsection shall

not apply in the case of any fish or wildlife held in the course of

a commercial activity. With respect to any act prohibited by this

section which occurs after a period of 180 days from December 28,

1973, there shall be a rebuttable presumption that the fish or

wildlife involved in such act was not held in captivity or in a

controlled environment on December 28, 1973''.

Subsec. (b)(2)(A). Pub. L. 97-304, Sec. 9(b)(3), substituted

''The provisions of subsection (a)(1) of this section shall not

apply to'' for ''This section shall not apply to'' in provisions

preceding cl. (i).

1978 - Subsec. (b). Pub. L. 95-632 designated existing provision

as par. (1) and added par. (2).

HUMAN ACTIVITIES WITHIN PROXIMITY OF WHALES

Pub. L. 103-238, Sec. 17, Apr. 30, 1994, 108 Stat. 559, provided

that:

''(a) Lawful Approaches. - In waters of the United States

surrounding the State of Hawaii, it is lawful for a person subject

to the jurisdiction of the United States to approach, by any means

other than an aircraft, no closer than 100 yards to a humpback

whale, regardless of whether the approach is made in waters

designated under section 222.31 of title 50, Code of Federal

Regulations, as cow/calf waters.

''(b) Termination of Legal Effect of Certain Regulations. -

Subsection (b) of section 222.31 of title 50, Code of Federal

Regulations, shall cease to be in force and effect.''

-EXEC-

TERRITORIAL SEA OF UNITED STATES

For extension of territorial sea of United States, see Proc. No.

5928, set out as a note under section 1331 of Title 43, Public

Lands.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1533, 1535, 1536, 1539,

1540 of this title.

-CITE-

16 USC Sec. 1539 01/06/03

-EXPCITE-

TITLE 16 - CONSERVATION

CHAPTER 35 - ENDANGERED SPECIES

-HEAD-

Sec. 1539. Exceptions

-STATUTE-

(a) Permits

(1) The Secretary may permit, under such terms and conditions as

he shall prescribe -

(A) any act otherwise prohibited by section 1538 of this title

for scientific purposes or to enhance the propagation or survival

of the affected species, including, but not limited to, acts

necessary for the establishment and maintenance of experimental

populations pursuant to subsection (j) of this section; or

(B) any taking otherwise prohibited by section 1538(a)(1)(B) of

this title if such taking is incidental to, and not the purpose

of, the carrying out of an otherwise lawful activity.

(2)(A) No permit may be issued by the Secretary authorizing any

taking referred to in paragraph (1)(B) unless the applicant

therefor submits to the Secretary a conservation plan that

specifies -

(i) the impact which will likely result from such taking;

(ii) what steps the applicant will take to minimize and

mitigate such impacts, and the funding that will be available to

implement such steps;

(iii) what alternative actions to such taking the applicant

considered and the reasons why such alternatives are not being

utilized; and

(iv) such other measures that the Secretary may require as

being necessary or appropriate for purposes of the plan.

(B) If the Secretary finds, after opportunity for public comment,

with respect to a permit application and the related conservation

plan that -

(i) the taking will be incidental;

(ii) the applicant will, to the maximum extent practicable,

minimize and mitigate the impacts of such taking;

(iii) the applicant will ensure that adequate funding for the

plan will be provided;

(iv) the taking will not appreciably reduce the likelihood of

the survival and recovery of the species in the wild; and

(v) the measures, if any, required under subparagraph (A)(iv)

will be met;

and he has received such other assurances as he may require that

the plan will be implemented, the Secretary shall issue the

permit. The permit shall contain such terms and conditions as the

Secretary deems necessary or appropriate to carry out the purposes

of this paragraph, including, but not limited to, such reporting

requirements as the Secretary deems necessary for determining

whether such terms and conditions are being complied with.

(C) The Secretary shall revoke a permit issued under this

paragraph if he finds that the permittee is not complying with the

terms and conditions of the permit.

(b) Hardship exemptions

(1) If any person enters into a contract with respect to a

species of fish or wildlife or plant before the date of the

publication in the Federal Register of notice of consideration of

that species as an endangered species and the subsequent listing of

that species as an endangered species pursuant to section 1533 of

this title will cause undue economic hardship to such person under

the contract, the Secretary, in order to minimize such hardship,

may exempt such person from the application of section 1538(a) of

this title to the extent the Secretary deems appropriate if such

person applies to him for such exemption and includes with such

application such information as the Secretary may require to prove

such hardship; except that (A) no such exemption shall be for a

duration of more than one year from the date of publication in the

Federal Register of notice of consideration of the species

concerned, or shall apply to a quantity of fish or wildlife or

plants in excess of that specified by the Secretary; (B) the

one-year period for those species of fish or wildlife listed by the

Secretary as endangered prior to December 28, 1973, shall expire in

accordance with the terms of section 668cc-3 (FOOTNOTE 1) of this

title; and (C) no such exemption may be granted for the importation

or exportation of a specimen listed in Appendix I of the Convention

which is to be used in a commercial activity.

(FOOTNOTE 1) See References in Text note below.

(2) As used in this subsection, the term ''undue economic

hardship'' shall include, but not be limited to:

(A) substantial economic loss resulting from inability caused

by this chapter to perform contracts with respect to species of

fish and wildlife entered into prior to the date of publication

in the Federal Register of a notice of consideration of such

species as an endangered species;

(B) substantial economic loss to persons who, for the year

prior to the notice of consideration of such species as an

endangered species, derived a substantial portion of their income

from the lawful taking of any listed species, which taking would

be made unlawful under this chapter; or

(C) curtailment of subsistence taking made unlawful under this

chapter by persons (i) not reasonably able to secure other

sources of subsistence; and (ii) dependent to a substantial

extent upon hunting and fishing for subsistence; and (iii) who

must engage in such curtailed taking for subsistence purposes.

(3) The Secretary may make further requirements for a showing of

undue economic hardship as he deems fit. Exceptions granted under

this section may be limited by the Secretary in his discretion as

to time, area, or other factor of applicability.

(c) Notice and review

The Secretary shall publish notice in the Federal Register of

each application for an exemption or permit which is made under

this subsection. Each notice shall invite the submission from

interested parties, within thirty days after the date of the

notice, of written data, views, or arguments with respect to the

application; except that such thirty-day period may be waived by

the Secretary in an emergency situation where the health or life of

an endangered animal is threatened and no reasonable alternative is

available to the applicant, but notice of any such waiver shall be

published by the Secretary in the Federal Register within ten days

following the issuance of the exemption or permit. Information

received by the Secretary as a part of any application shall be

available to the public as a matter of public record at every stage

of the proceeding.

(d) Permit and exemption policy

The Secretary may grant exceptions under subsections (a)(1)(A)

and (b) of this section only if he finds and publishes his finding

in the Federal Register that (1) such exceptions were applied for

in good faith, (2) if granted and exercised will not operate to the

disadvantage of such endangered species, and (3) will be consistent

with the purposes and policy set forth in section 1531 of this

title.

(e) Alaska natives

(1) Except as provided in paragraph (4) of this subsection the

provisions of this chapter shall not apply with respect to the

taking of any endangered species or threatened species, or the

importation of any such species taken pursuant to this section, by

-

(A) any Indian, Aleut, or Eskimo who is an Alaskan Native who

resides in Alaska; or

(B) any non-native permanent resident of an Alaskan native

village;

if such taking is primarily for subsistence purposes. Non-edible

byproducts of species taken pursuant to this section may be sold in

interstate commerce when made into authentic native articles of

handicrafts and clothing; except that the provisions of this

subsection shall not apply to any non-native resident of an Alaskan

native village found by the Secretary to be not primarily dependent

upon the taking of fish and wildlife for consumption or for the

creation and sale of authentic native articles of handicrafts and

clothing.

(2) Any taking under this subsection may not be accomplished in a

wasteful manner.

(3) As used in this subsection -

(i) The term ''subsistence'' includes selling any edible

portion of fish or wildlife in native villages and towns in

Alaska for native consumption within native villages or towns;

and

(ii) The term ''authentic native articles of handicrafts and

clothing'' means items composed wholly or in some significant

respect of natural materials, and which are produced, decorated,

or fashioned in the exercise of traditional native handicrafts

without the use of pantographs, multiple carvers, or other mass

copying devices. Traditional native handicrafts include, but are

not limited to, weaving, carving, stitching, sewing, lacing,

beading, drawing, and painting.

(4) Notwithstanding the provisions of paragraph (1) of this

subsection, whenever the Secretary determines that any species of

fish or wildlife which is subject to taking under the provisions of

this subsection is an endangered species or threatened species, and

that such taking materially and negatively affects the threatened

or endangered species, he may prescribe regulations upon the taking

of such species by any such Indian, Aleut, Eskimo, or non-Native

Alaskan resident of an Alaskan native village. Such regulations

may be established with reference to species, geographical

description of the area included, the season for taking, or any

other factors related to the reason for establishing such

regulations and consistent with the policy of this chapter. Such

regulations shall be prescribed after a notice and hearings in the

affected judicial districts of Alaska and as otherwise required by

section 1373 of this title, and shall be removed as soon as the

Secretary determines that the need for their impositions has

disappeared.

(f) Pre-Act endangered species parts exemption; application and

certification; regulation; validity of sales contract;

separability; renewal of exemption; expiration of renewal

certification

(1) As used in this subsection -

(A) The term ''pre-Act endangered species part'' means -

(i) any sperm whale oil, including derivatives thereof, which

was lawfully held within the United States on December 28,

1973, in the course of a commercial activity; or

(ii) any finished scrimshaw product, if such product or the

raw material for such product was lawfully held within the

United States on December 28, 1973, in the course of a

commercial activity.

(B) The term ''scrimshaw product'' means any art form which

involves the substantial etching or engraving of designs upon, or

the substantial carving of figures, patterns, or designs from,

any bone or tooth of any marine mammal of the order Cetacea. For

purposes of this subsection, polishing or the adding of minor

superficial markings does not constitute substantial etching,

engraving, or carving.

(2) The Secretary, pursuant to the provisions of this subsection,

may exempt, if such exemption is not in violation of the

Convention, any pre-Act endangered species part from one or more of

the following prohibitions:

(A) The prohibition on exportation from the United States set

forth in section 1538(a)(1)(A) of this title.

(B) Any prohibition set forth in section 1538(a)(1)(E) or (F)

of this title.

(3) Any person seeking an exemption described in paragraph (2) of

this subsection shall make application therefor to the Secretary in

such form and manner as he shall prescribe, but no such application

may be considered by the Secretary unless the application -

(A) is received by the Secretary before the close of the

one-year period beginning on the date on which regulations

promulgated by the Secretary to carry out this subsection first

take effect;

(B) contains a complete and detailed inventory of all pre-Act

endangered species parts for which the applicant seeks exemption;

(C) is accompanied by such documentation as the Secretary may

require to prove that any endangered species part or product

claimed by the applicant to be a pre-Act endangered species part

is in fact such a part; and

(D) contains such other information as the Secretary deems

necessary and appropriate to carry out the purposes of this

subsection.

(4) If the Secretary approves any application for exemption made

under this subsection, he shall issue to the applicant a

certificate of exemption which shall specify -

(A) any prohibition in section 1538(a) of this title which is

exempted;

(B) the pre-Act endangered species parts to which the exemption

applies;

(C) the period of time during which the exemption is in effect,

but no exemption made under this subsection shall have force and

effect after the close of the three-year period beginning on the

date of issuance of the certificate unless such exemption is

renewed under paragraph (8); and

(D) any term or condition prescribed pursuant to paragraph

(5)(A) or (B), or both, which the Secretary deems necessary or

appropriate.

(5) The Secretary shall prescribe such regulations as he deems

necessary and appropriate to carry out the purposes of this

subsection. Such regulations may set forth -

(A) terms and conditions which may be imposed on applicants for

exemptions under this subsection (including, but not limited to,

requirements that applicants register inventories, keep complete

sales records, permit duly authorized agents of the Secretary to

inspect such inventories and records, and periodically file

appropriate reports with the Secretary); and

(B) terms and conditions which may be imposed on any subsequent

purchaser of any pre-Act endangered species part covered by an

exemption granted under this subsection;

to insure that any such part so exempted is adequately accounted

for and not disposed of contrary to the provisions of this

chapter. No regulation prescribed by the Secretary to carry out

the purposes of this subsection shall be subject to section

1533(f)(2)(A)(i) of this title.

(6)(A) Any contract for the sale of pre-Act endangered species

parts which is entered into by the Administrator of General

Services prior to the effective date of this subsection and

pursuant to the notice published in the Federal Register on January

9, 1973, shall not be rendered invalid by virtue of the fact that

fulfillment of such contract may be prohibited under section

1538(a)(1)(F) of this title.

(B) In the event that this paragraph is held invalid, the

validity of the remainder of this chapter, including the remainder

of this subsection, shall not be affected.

(7) Nothing in this subsection shall be construed to -

(A) exonerate any person from any act committed in violation of

paragraphs (1)(A), (1)(E), or (1)(F) of section 1538(a) of this

title prior to July 12, 1976; or

(B) immunize any person from prosecution for any such act.

(8)(A)(i) (FOOTNOTE 2) Any valid certificate of exemption which

was renewed after October 13, 1982, and was in effect on March 31,

1988, shall be deemed to be renewed for a six-month period

beginning on October 7, 1988. Any person holding such a certificate

may apply to the Secretary for one additional renewal of such

certificate for a period not to exceed 5 years beginning on October

7, 1988.

(FOOTNOTE 2) So in original. No cl. (ii) has been enacted.

(B) If the Secretary approves any application for renewal of an

exemption under this paragraph, he shall issue to the applicant a

certificate of renewal of such exemption which shall provide that

all terms, conditions, prohibitions, and other regulations made

applicable by the previous certificate shall remain in effect

during the period of the renewal.

(C) No exemption or renewal of such exemption made under this

subsection shall have force and effect after the expiration date of

the certificate of renewal of such exemption issued under this

paragraph.

(D) No person may, after January 31, 1984, sell or offer for sale

in interstate or foreign commerce, any pre-Act finished scrimshaw

product unless such person holds a valid certificate of exemption

issued by the Secretary under this subsection, and unless such

product or the raw material for such product was held by such

person on October 13, 1982.

(g) Burden of proof

In connection with any action alleging a violation of section

1538 of this title, any person claiming the benefit of any

exemption or permit under this chapter shall have the burden of

proving that the exemption or permit is applicable, has been

granted, and was valid and in force at the time of the alleged

violation.

(h) Certain antique articles; importation; port designation;

application for return of articles

(1) Sections 1533(d) and 1538(a) and (c) of this title do not

apply to any article which -

(A) is not less than 100 years of age;

(B) is composed in whole or in part of any endangered species

or threatened species listed under section 1533 of this title;

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

species on or after December 28, 1973; and

(D) is entered at a port designated under paragraph (3).

(2) Any person who wishes to import an article under the

exception provided by this subsection shall submit to the customs

officer concerned at the time of entry of the article such

documentation as the Secretary of the Treasury, after consultation

with the Secretary of the Interior, shall by regulation require as

being necessary to establish that the article meets the

requirements set forth in paragraph (1)(A), (B), and (C).

(3) The Secretary of the Treasury, after consultation with the

Secretary of the Interior, shall designate one port within each

customs region at which articles described in paragraph (1)(A),

(B), and (C) must be entered into the customs territory of the

United States.

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

before November 10, 1978, any article described in paragraph (1)

which -

(A) was not repaired or modified after the date of importation

with any part of any endangered species or threatened species

listed under section 1533 of this title;

(B) was forfeited to the United States before November 10,

1978, or is subject to forfeiture to the United States on such

date of enactment, pursuant to the assessment of a civil penalty

under section 1540 of this title; and

(C) is in the custody of the United States on November 10,

1978;

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

10, 1978, make application to the Secretary for return of the

article. Application shall be made in such form and manner, and

contain such documentation, as the Secretary prescribes. If on the

basis of any such application which is timely filed, the Secretary

is satisfied that the requirements of this paragraph are met with

respect to the article concerned, the Secretary shall return the

article to the applicant and the importation of such article shall,

on and after the date of return, be deemed to be a lawful

importation under this chapter.

(i) Noncommercial transshipments

Any importation into the United States of fish or wildlife shall,

if -

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

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

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

through any place subject to the jurisdiction of the United

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

lawfully imported and received;

(3) the exporter or owner of such fish or wildlife gave

explicit instructions not to ship such fish or wildlife through

any place subject to the jurisdiction of the United States, or

did all that could have reasonably been done to prevent

transshipment, and the circumstances leading to the transshipment

were beyond the 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 chapter

or any regulation issued pursuant to this chapter while such fish

or wildlife remains in the control of the United States Customs

Service.

(j) Experimental populations

(1) For purposes of this subsection, the term ''experimental

population'' means any population (including any offspring arising

solely therefrom) authorized by the Secretary for release under

paragraph (2), but only when, and at such times as, the population

is wholly separate geographically from nonexperimental populations

of the same species.

(2)(A) The Secretary may authorize the release (and the related

transportation) of any population (including eggs, propagules, or

individuals) of an endangered species or a threatened species

outside the current range of such species if the Secretary

determines that such release will further the conservation of such

species.

(B) Before authorizing the release of any population under

subparagraph (A), the Secretary shall by regulation identify the

population and determine, on the basis of the best available

information, whether or not such population is essential to the

continued existence of an endangered species or a threatened

species.

(C) For the purposes of this chapter, each member of an

experimental population shall be treated as a threatened species;

except that -

(i) solely for purposes of section 1536 of this title (other

than subsection (a)(1) thereof), an experimental population

determined under subparagraph (B) to be not essential to the

continued existence of a species shall be treated, except when it

occurs in an area within the National Wildlife Refuge System or

the National Park System, as a species proposed to be listed

under section 1533 of this title; and

(ii) critical habitat shall not be designated under this

chapter for any experimental population determined under

subparagraph (B) to be not essential to the continued existence

of a species.

(3) The Secretary, with respect to populations of endangered

species or threatened species that the Secretary authorized, before

October 13, 1982, for release in geographical areas separate from

the other populations of such species, shall determine by

regulation which of such populations are an experimental population

for the purposes of this subsection and whether or not each is

essential to the continued existence of an endangered species or a

threatened species.

-SOURCE-

(Pub. L. 93-205, Sec. 10, Dec. 28, 1973, 87 Stat. 896; Pub. L.

94-359, Sec. 2, 3, July 12, 1976, 90 Stat. 911, 912; Pub. L.

95-632, Sec. 5, Nov. 10, 1978, 92 Stat. 3760; Pub. L. 96-159, Sec.

7, Dec. 28, 1979, 93 Stat. 1230; Pub. L. 97-304, Sec. 6(1)-(4)(A),

(5), (6), Oct. 13, 1982, 96 Stat. 1422-1424; Pub. L. 100-478, title

I, Sec. 1011, 1013(b), (c), Oct. 7, 1988, 102 Stat. 2314, 2315.)

-REFTEXT-

REFERENCES IN TEXT

Section 668cc-3 of this title, referred to in subsec. (b), was

repealed by Pub. L. 93-205, Sec. 14, Dec. 28, 1973, 87 Stat. 903.

Subsec. (f) of section 1533 of this title, referred to in subsec.

(f)(5), which related to promulgation of regulations by the

Secretary was struck out, and subsec. (g) of section 1533 of this

title, was redesignated as subsec. (f), by Pub. L. 97-304, Sec.

2(a)(4)(B), (C), Oct. 13, 1982, 96 Stat. 1415. For provisions

relating to promulgation of regulations, see subsecs. (b) and (h)

of section 1533 of this title.

Effective date of this subsection, referred to in subsec.

(f)(6)(A), probably means the date of enactment of subsec. (f) by

section 2 of Pub. L. 94-359, July 12, 1976.

October 7, 1988, referred to in subsec. (f)(8)(A), was in the

original ''the date of enactment of the Endangered Species Act

Amendments of 1988'' and ''the date of such enactment'' which were

translated as meaning the date of enactment of title I of Pub. L.

100-478 which is entitled ''Endangered Species Act Amendments of

1988'' and which was approved Oct. 7, 1988.

-MISC2-

AMENDMENTS

1988 - Subsec. (c). Pub. L. 100-478, Sec. 1013(b), substituted

''notice, of'' for ''notice,'' in second sentence.

Subsec. (e)(3)(ii). Pub. L. 100-478, Sec. 1013(c), substituted

''lacing,'' for ''lacking,''.

Subsec. (f)(8)(A). Pub. L. 100-478, Sec. 1011(a), amended subpar.

(A) generally. Prior to amendment, subpar. (A) read as follows:

''Any person to whom a certificate of exemption has been issued

under paragraph (4) of this subsection may apply to the Secretary

for a renewal of such exemption for a period not to exceed three

years beginning on the expiration date of such certificate. Such

application shall be made in the same manner as the application for

exemption was made under paragraph (3), but without regard to

subparagraph (A) of such paragraph.''

Subsec. (f)(8)(B). Pub. L. 100-478, Sec. 1011(b), substituted

''previous'' for ''original''.

Subsec. (f)(8)(D). Pub. L. 100-478, Sec. 1011(c), added subpar.

(D).

Subsec. (f)(9). Pub. L. 100-478, Sec. 1011(d), struck out par.

(9) which provided for comprehensive review by Secretary of

effectiveness of regulations prescribed pursuant to subsec. (f)(5)

of this section.

1982 - Subsec. (a). Pub. L. 97-304, Sec. 6(1), designated as par.

(1) and the beginning phrase of subpar. (A) thereof the existing

provisions consisting of language authorizing the Secretary to

permit, under such terms and conditions as he may prescribe, any

act otherwise prohibited by section 1538 of this title for

scientific purposes or to enhance the propagation or survival of

the affected species, and inserted remainder of par. (1)(A) and

pars. (1)(B) and (2).

Subsec. (d). Pub. L. 97-304, Sec. 6(2), substituted ''subsections

(a)(1)(A) and (b) of this section'' for ''subsections (a) and (b)

of this section''.

Subsec. (f)(1)(B). Pub. L. 97-304, Sec. 6(3)(A), substituted

''involves the substantial etching or engraving of designs upon, or

the substantial carving of figures'' for ''involves the etching or

engraving of designs upon, or the carving of figures'' and inserted

provision that, for purposes of this subsection, polishing or the

adding of minor superficial markings does not constitute

substantial etching, engraving, or carving.

Subsec. (f)(9). Pub. L. 97-304, Sec. 6(3)(B), added par. (9).

Subsec. (h)(1). Pub. L. 97-304, Sec. 6(4)(A), struck out ''(other

than scrimshaw)'' after ''do not apply to any article'' in

provisions preceding subpar. (A) and in subpar. (A) substituted

''is not less than 100 years of age'' for ''was made before 1830''.

Subsec. (i). Pub. L. 97-304, Sec. 6(5), substituted provisions

covering noncommercial transshipments of fish or wildlife for

provisions that had related to exemptions from the provisions of

this title of the Tellico Dam and Reservoir Project and the

Grayrocks Dam and Reservoir Project and to the operation of the

Missouri Basin Power Project.

Subsec. (j). Pub. L. 97-304, Sec. 6(6), added subsec. (j).

1979 - Subsec. (f)(4)(C). Pub. L. 96-159, Sec. 7(1), inserted

''unless such exemption is renewed under paragraph (8)'' after

''issuance of the certificate''.

Subsec. (f)(8). Pub. L. 96-159, Sec. 7(2), added par. (8).

1978 - Subsecs. (h), (i). Pub. L. 95-632 added subsecs. (h) and

(i).

1976 - Subsec. (c). Pub. L. 94-359, Sec. 3, substituted

''section'' for ''subsection'' and inserted ''; except that such

thirty-day period may be waived by the Secretary in an emergency

situation where the health or life of an endangered animal is

threatened and no reasonable alternative is available to the

applicant, but notice of any such waiver shall be published by the

Secretary in the Federal Register within ten days following the

issuance of the exemption or permit.'' after ''every stage of the

proceeding''.

Subsecs. (f), (g). Pub. L. 94-359, Sec. 2, added subsecs. (f) and

(g).

EFFECTIVE DATE OF 1982 AMENDMENT

Section 6(4)(B) of Pub. L. 97-304 provided that: ''The amendment

made by subparagraph (A) (amending this section) shall take effect

January 1, 1981.''

-TRANS-

TRANSFER OF FUNCTIONS

For transfer of functions, personnel, assets, and liabilities of

the United States Customs Service of the Department of the

Treasury, including functions of the Secretary of the Treasury

relating thereto, to the Secretary of Homeland Security, and for

treatment of related references, see sections 203(1), 551(d),

552(d), and 557 of Title 6, Domestic Security, and the Department

of Homeland Security Reorganization Plan of November 25, 2002, as

modified, set out as a note under section 542 of Title 6.

-MISC5-

SCRIMSHAW EXEMPTIONS

Pub. L. 103-238, Sec. 18, Apr. 30, 1994, 108 Stat. 559, provided

that: ''Notwithstanding any other provision of law, any valid

certificate of exemption renewed by the Secretary (or deemed to be

renewed) under section 10(f)(8) of the Endangered Species Act of

1973 (16 U.S.C. 1539(f)(8)) for any person holding such a

certificate with respect to the possession of pre-Act finished

scrimshaw products or raw material for such products shall remain

valid for a period not to exceed 5 years beginning on the date of

enactment of this Act (Apr. 30, 1994).''

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 471j, 1538 of this title.

-CITE-

16 USC Sec. 1540 01/06/03

-EXPCITE-

TITLE 16 - CONSERVATION

CHAPTER 35 - ENDANGERED SPECIES

-HEAD-

Sec. 1540. Penalties and enforcement

-STATUTE-

(a) Civil penalties

(1) Any person who knowingly violates, and any person engaged in

business as an importer or exporter of fish, wildlife, or plants

who violates, any provision of this chapter, or any provision of

any permit or certificate issued hereunder, or of any regulation

issued in order to implement subsection (a)(1)(A), (B), (C), (D),

(E), or (F), (a)(2)(A), (B), (C), or (D), (c), (d) (other than

regulation relating to recordkeeping or filing of reports), (f) or

(g) of section 1538 of this title, may be assessed a civil penalty

by the Secretary of not more than $25,000 for each violation. Any

person who knowingly violates, and any person engaged in business

as an importer or exporter of fish, wildlife, or plants who

violates, any provision of any other regulation issued under this

chapter may be assessed a civil penalty by the Secretary of not

more than $12,000 for each such violation. Any person who

otherwise violates any provision of this chapter, or any

regulation, permit, or certificate issued hereunder, may be

assessed a civil penalty by the Secretary of not more than $500 for

each such violation. No penalty may be assessed under this

subsection unless such person is given notice and opportunity for a

hearing with respect to such violation. Each violation shall be a

separate offense. Any such civil penalty may be remitted or

mitigated by the Secretary. Upon any failure to pay a penalty

assessed under this subsection, the Secretary may request the

Attorney General to institute a civil action in a district court of

the United States for any district in which such person is found,

resides, or transacts business to collect the penalty and such

court shall have jurisdiction to hear and decide any such action.

The court shall hear such action on the record made before the

Secretary and shall sustain his action if it is supported by

substantial evidence on the record considered as a whole.

(2) Hearings held during proceedings for the assessment of civil

penalties authorized by paragraph (1) of this subsection shall be

conducted in accordance with section 554 of title 5. The Secretary

may issue subpenas for the attendance and testimony of witnesses

and the production of relevant papers, books, and documents, and

administer oaths. Witnesses summoned shall be paid the same fees

and mileage that are paid to witnesses in the courts of the United

States. In case of contumacy or refusal to obey a subpena served

upon any person pursuant to this paragraph, the district court of

the United States for any district in which such person is found or

resides or transacts business, upon application by the United

States and after notice to such person, shall have jurisdiction to

issue an order requiring such person to appear and give testimony

before the Secretary or to appear and produce documents before the

Secretary, or both, and any failure to obey such order of the court

may be punished by such court as a contempt thereof.

(3) Notwithstanding any other provision of this chapter, no civil

penalty shall be imposed if it can be shown by a preponderance of

the evidence that the defendant committed an act based on a good

faith belief that he was acting to protect himself or herself, a

member of his or her family, or any other individual from bodily

harm, from any endangered or threatened species.

(b) Criminal violations

(1) Any person who knowingly violates any provision of this

chapter, of any permit or certificate issued hereunder, or of any

regulation issued in order to implement subsection (a)(1)(A), (B),

(C), (D), (E), or (F), (a)(2)(A), (B), (C), or (D), (c), (d) (other

than a regulation relating to recordkeeping, or filing of reports),

(f), or (g) of section 1538 of this title shall, upon conviction,

be fined not more than $50,000 or imprisoned for not more than one

year, or both. Any person who knowingly violates any provision of

any other regulation issued under this chapter shall, upon

conviction, be fined not more than $25,000 or imprisoned for not

more than six months, or both.

(2) The head of any Federal agency which has issued a lease,

license, permit, or other agreement authorizing a person to import

or export fish, wildlife, or plants, or to operate a quarantine

station for imported wildlife, or authorizing the use of Federal

lands, including grazing of domestic livestock, to any person who

is convicted of a criminal violation of this chapter or any

regulation, permit, or certificate issued hereunder may immediately

modify, suspend, or revoke each lease, license, permit, or other

agreement. The Secretary shall also suspend for a period of up to

one year, or cancel, any Federal hunting or fishing permits or

stamps issued to any person who is convicted of a criminal

violation of any provision of this chapter or any regulation,

permit, or certificate issued hereunder. The United States shall

not be liable for the payments of any compensation, reimbursement,

or damages in connection with the modification, suspension, or

revocation of any leases, licenses, permits, stamps, or other

agreements pursuant to this section.

(3) Notwithstanding any other provision of this chapter, it shall

be a defense to prosecution under this subsection if the defendant

committed the offense based on a good faith belief that he was

acting to protect himself or herself, a member of his or her

family, or any other individual, from bodily harm from any

endangered or threatened species.

(c) District court jurisdiction

The several district courts of the United States, including the

courts enumerated in section 460 of title 28, shall have

jurisdiction over any actions arising under this chapter. For the

purpose of this chapter, American Samoa shall be included within

the judicial district of the District Court of the United States

for the District of Hawaii.

(d) Rewards and incidental expenses

The Secretary or the Secretary of the Treasury shall pay, from

sums received as penalties, fines, or forfeitures of property for

any violation of this chapter or any regulation issued hereunder

(1) a reward to any person who furnishes information which leads to

an arrest, a criminal conviction, civil penalty assessment, or

forfeiture of property for any violation of this chapter or any

regulation issued hereunder. The amount of the reward, if any, is

to be designated by the Secretary or the Secretary of the Treasury,

as appropriate. Any officer or employee of the United States or

any State or local government who furnishes information or renders

service in the performance of his official duties is ineligible for

payment under this subsection, and (2) the reasonable and necessary

costs incurred by any person in providing temporary care for any

fish, wildlife, or plant pending the disposition of any civil or

criminal proceeding alleging a violation of this chapter with

respect to that fish, wildlife, or plant. Whenever the balance of

sums received under this section and section 3375(d) of this title,

as penalties or fines, or from forfeitures of property, exceed

$500,000, the Secretary of the Treasury shall deposit an amount

equal to such excess balance in the cooperative endangered species

conservation fund established under section 1535(i) of this title.

(e) Enforcement

(1) The provisions of this chapter and any regulations or permits

issued pursuant thereto shall be enforced by the Secretary, the

Secretary of the Treasury, or the Secretary of the Department in

which the Coast Guard is operating, or all such Secretaries. Each

such Secretary may utilize by agreement, with or without

reimbursement, the personnel, services, and facilities of any other

Federal agency or any State agency for purposes of enforcing this

chapter.

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

the United States magistrate judges may, within their respective

jurisdictions, upon proper oath or affirmation showing probable

cause, issue such warrants or other process as may be required for

enforcement of this chapter and any regulation issued thereunder.

(3) Any person authorized by the Secretary, the Secretary of the

Treasury, or the Secretary of the Department in which the Coast

Guard is operating, to enforce this chapter may detain for

inspection and inspect any package, crate, or other container,

including its contents, and all accompanying documents, upon

importation or exportation. Such person may make arrests without a

warrant for any violation of this chapter if he has reasonable

grounds to believe that the person to be arrested is committing the

violation in his presence or view, and may execute and serve any

arrest warrant, search warrant, or other warrant or civil or

criminal process issued by any officer or court of competent

jurisdiction for enforcement of this chapter. Such person so

authorized may search and seize, with or without a warrant, as

authorized by law. Any fish, wildlife, property, or item so seized

shall be held by any person authorized by the Secretary, the

Secretary of the Treasury, or the Secretary of the Department in

which the Coast Guard is operating pending disposition of civil or

criminal proceedings, or the institution of an action in rem for

forfeiture of such fish, wildlife, property, or item pursuant to

paragraph (4) of this subsection; except that the Secretary may, in

lieu of holding such fish, wildlife, property, or item, permit the

owner or consignee to post a bond or other surety satisfactory to

the Secretary, but upon forfeiture of any such property to the

United States, or the abandonment or waiver of any claim to any

such property, it shall be disposed of (other than by sale to the

general public) by the Secretary in such a manner, consistent with

the purposes of this chapter, as the Secretary shall by regulation

prescribe.

(4)(A) All fish or wildlife or plants taken, possessed, sold,

purchased, offered for sale or purchase, transported, delivered,

received, carried, shipped, exported, or imported contrary to the

provisions of this chapter, any regulation made pursuant thereto,

or any permit or certificate issued hereunder shall be subject to

forfeiture to the United States.

(B) All guns, traps, nets, and other equipment, vessels,

vehicles, aircraft, and other means of transportation used to aid

the taking, possessing, selling, purchasing, offering for sale or

purchase, transporting, delivering, receiving, carrying, shipping,

exporting, or importing of any fish or wildlife or plants in

violation of this chapter, any regulation made pursuant thereto, or

any permit or certificate issued thereunder shall be subject to

forfeiture to the United States upon conviction of a criminal

violation pursuant to subsection (b)(1) of this section.

(5) All provisions of law relating to the seizure, forfeiture,

and condemnation of a vessel for violation of the customs laws, the

disposition of such vessel or the proceeds from the sale thereof,

and the remission or mitigation of such forfeiture, shall apply to

the seizures and forfeitures incurred, or alleged to have been

incurred, under the provisions of this chapter, insofar as such

provisions of law are applicable and not inconsistent with the

provisions of this chapter; except that all powers, rights, and

duties conferred or imposed by the customs laws upon any officer or

employee of the Treasury Department shall, for the purposes of this

chapter, be exercised or performed by the Secretary or by such

persons as he may designate.

(6) The Attorney General of the United States may seek to enjoin

any person who is alleged to be in violation of any provision of

this chapter or regulation issued under authority thereof.

(f) Regulations

The Secretary, the Secretary of the Treasury, and the Secretary

of the Department in which the Coast Guard is operating, are

authorized to promulgate such regulations as may be appropriate to

enforce this chapter, and charge reasonable fees for expenses to

the Government connected with permits or certificates authorized by

this chapter including processing applications and reasonable

inspections, and with the transfer, board, handling, or storage of

fish or wildlife or plants and evidentiary items seized and

forfeited under this chapter. All such fees collected pursuant to

this subsection shall be deposited in the Treasury to the credit of

the appropriation which is current and chargeable for the cost of

furnishing the services. Appropriated funds may be expended

pending reimbursement from parties in interest.

(g) Citizen suits

(1) Except as provided in paragraph (2) of this subsection any

person may commence a civil suit on his own behalf -

(A) to enjoin any person, including the United States and any

other governmental instrumentality or agency (to the extent

permitted by the eleventh amendment to the Constitution), who is

alleged to be in violation of any provision of this chapter or

regulation issued under the authority thereof; or

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

1535(g)(2)(B)(ii) of this title, the prohibitions set forth in or

authorized pursuant to section 1533(d) or 1538(a)(1)(B) of this

title with respect to the taking of any resident endangered

species or threatened species within any State; or

(C) against the Secretary where there is alleged a failure of

the Secretary to perform any act or duty under section 1533 of

this title which is not discretionary with the Secretary.

The district courts shall have jurisdiction, without regard to the

amount in controversy or the citizenship of the parties, to enforce

any such provision or regulation, or to order the Secretary to

perform such act or duty, as the case may be. In any civil suit

commenced under subparagraph (B) the district court shall compel

the Secretary to apply the prohibition sought if the court finds

that the allegation that an emergency exists is supported by

substantial evidence.

(2)(A) No action may be commenced under subparagraph (1)(A) of

this section -

(i) prior to sixty days after written notice of the violation

has been given to the Secretary, and to any alleged violator of

any such provision or regulation;

(ii) if the Secretary has commenced action to impose a penalty

pursuant to subsection (a) of this section; or

(iii) if the United States has commenced and is diligently

prosecuting a criminal action in a court of the United States or

a State to redress a violation of any such provision or

regulation.

(B) No action may be commenced under subparagraph (1)(B) of this

section -

(i) prior to sixty days after written notice has been given to

the Secretary setting forth the reasons why an emergency is

thought to exist with respect to an endangered species or a

threatened species in the State concerned; or

(ii) if the Secretary has commenced and is diligently

prosecuting action under section 1535(g)(2)(B)(ii) of this title

to determine whether any such emergency exists.

(C) No action may be commenced under subparagraph (1)(C) of this

section prior to sixty days after written notice has been given to

the Secretary; except that such action may be brought immediately

after such notification in the case of an action under this section

respecting an emergency posing a significant risk to the well-being

of any species of fish or wildlife or plants.

(3)(A) Any suit under this subsection may be brought in the

judicial district in which the violation occurs.

(B) In any such suit under this subsection in which the United

States is not a party, the Attorney General, at the request of the

Secretary, may intervene on behalf of the United States as a matter

of right.

(4) The court, in issuing any final order in any suit brought

pursuant to paragraph (1) of this subsection, may award costs of

litigation (including reasonable attorney and expert witness fees)

to any party, whenever the court determines such award is

appropriate.

(5) The injunctive relief provided by this subsection shall not

restrict any right which any person (or class of persons) may have

under any statute or common law to seek enforcement of any standard

or limitation or to seek any other relief (including relief against

the Secretary or a State agency).

(h) Coordination with other laws

The Secretary of Agriculture and the Secretary shall provide for

appropriate coordination of the administration of this chapter with

the administration of the animal quarantine laws (as defined in

section 136a(f) of title 21) and section 306 (FOOTNOTE 1) of the

Tariff Act of 1930 (19 U.S.C. 1306). Nothing in this chapter or any

amendment made by this chapter shall be construed as superseding or

limiting in any manner the functions of the Secretary of

Agriculture under any other law relating to prohibited or

restricted importations or possession of animals and other articles

and no proceeding or determination under this chapter shall

preclude any proceeding or be considered determinative of any issue

of fact or law in any proceeding under any Act administered by the

Secretary of Agriculture. Nothing in this chapter shall be

construed as superseding or limiting in any manner the functions

and responsibilities of the Secretary of the Treasury under the

Tariff Act of 1930 (19 U.S.C. 1202 et seq.), including, without

limitation, section 527 of that Act (19 U.S.C. 1527), relating to

the importation of wildlife taken, killed, possessed, or exported

to the United States in violation of the laws or regulations of a

foreign country.

(FOOTNOTE 1) See References in Text note below.

-SOURCE-

(Pub. L. 93-205, Sec. 11, Dec. 28, 1973, 87 Stat. 897; Pub. L.

94-359, Sec. 4, July 12, 1976, 90 Stat. 913; Pub. L. 95-632, Sec.

6-8, Nov. 10, 1978, 92 Stat. 3761, 3762; Pub. L. 97-79, Sec. 9(e),

Nov. 16, 1981, 95 Stat. 1079; Pub. L. 97-304, Sec. 7, 9(c), Oct.

13, 1982, 96 Stat. 1425, 1427; Pub. L. 98-327, Sec. 4, June 25,

1984, 98 Stat. 271; Pub. L. 100-478, title I, Sec. 1007, Oct. 7,

1988, 102 Stat. 2309; Pub. L. 101-650, title III, Sec. 321, Dec. 1,

1990, 104 Stat. 5117; Pub. L. 107-171, title X, Sec. 10418(b)(3),

May 13, 2002, 116 Stat. 508.)

-REFTEXT-

REFERENCES IN TEXT

This chapter, referred to in subsecs. (a)(1), (3), (b)-(f),

(g)(1)(A), and (h), was in the original ''this Act'', meaning Pub.

L. 93-205, Dec. 28, 1973, 81 Stat. 884, as amended, known as the

''Endangered Species Act of 1973'', which is classified principally

to this chapter. For complete classification of this Act to the

Code, see Short Title note set out under section 1531 of this title

and Tables.

The customs laws, referred to in subsec. (e)(5), are classified

generally to Title 19, Customs Duties.

The amendments made by this chapter, referred to in subsec. (h),

refer to the amendments made by Pub. L. 93-205, which amended

sections 460k-1, 460l-9, 668dd, 715i, 715s, 1362, 1371, 1372, and

1402 of this title and section 136 of Title 7, Agriculture, and

repealed sections 668aa to 668cc-6 of this title.

The Tariff Act of 1930, referred to in subsec. (h), is act June

17, 1930, ch. 497, 46 Stat. 590, as amended, which is classified

generally to chapter 4 (Sec. 1202 et seq.) of Title 19, Customs

Duties. Section 306 of the Act was repealed by Pub. L. 107-171,

title X, Sec. 10418(a)(5), May 13, 2002, 116 Stat. 507. For

complete classification of this Act to the Code, see section 1654

of Title 19 and Tables.

-MISC2-

AMENDMENTS

2002 - Subsec. (h). Pub. L. 107-171 substituted ''animal

quarantine laws (as defined in section 136a(f) of title 21)'' for

''animal quarantine laws (21 U.S.C. 101-105, 111-135b, and

612-614)''.

1988 - Subsec. (a)(1). Pub. L. 100-478, Sec. 1007(a), substituted

''$25,000'' for ''$10,000'' and ''$12,000'' for ''$5,000''.

Subsec. (b)(1). Pub. L. 100-478, Sec. 1007(b), substituted

''$50,000'' for ''$20,000'' and ''$25,000'' for ''$10,000''.

Subsec. (d). Pub. L. 100-478, Sec. 1007(c), inserted at end

''Whenever the balance of sums received under this section and

section 3375(d) of this title, as penalties or fines, or from

forfeitures of property, exceed $500,000, the Secretary of the

Treasury shall deposit an amount equal to such excess balance in

the cooperative endangered species conservation fund established

under section 1535(i) of this title.''

1984 - Subsec. (d). Pub. L. 98-327 substituted a comma for ''a

reward'' after ''shall pay'' in first sentence, inserted ''(1) a

reward'' before ''to any person'', and added cl. (2).

1982 - Subsecs. (a)(1), (b)(1). Pub. L. 97-304, Sec. 9(c),

substituted ''(a)(2)(A), (B), (C), or (D)'' for ''(a)(2)(A), (B),

or (C)''.

Subsec. (e)(6). Pub. L. 97-304, Sec. 7(1), added par. (6).

Subsec. (g)(1)(B). Pub. L. 97-304, Sec. 7(2)(A)(i), substituted

''any State; or'' for ''any State.''.

Subsec. (g)(1)(C). Pub. L. 97-304, Sec. 7(2)(A)(ii), added

subpar. (C).

Subsec. (g)(1). Pub. L. 97-304, Sec. 7(2)(A)(iii), inserted ''or

to order the Secretary to perform such act or duty,'' after ''any

such provision or regulation,'' in provisions following subpar.

(C).

Subsec. (g)(2)(C). Pub. L. 97-304, Sec. 7(2)(B), added subpar.

(C).

1981 - Pub. L. 97-79 substituted ''The Secretary or the Secretary

of the Treasury shall pay a reward from sums received as penalties,

fines, or forfeitures of property for any violation of this chapter

or any regulation issued hereunder to any person who furnishes

information which leads to an arrest, a criminal conviction, civil

penalty assessment, or forfeiture of property for any violation of

this chapter or any regulation issued hereunder'' for ''Upon the

recommendation of the Secretary, the Secretary of the Treasury is

authorized to pay an amount equal to one-half of the civil penalty

or fine paid, but not to exceed $2,500, to any person who furnishes

information which leads to a finding of civil violation or a

conviction of a criminal violation of any provision of this chapter

or any regulation or permit issued thereunder'' and inserted

provision that the amount of the reward, if any, be designated by

the Secretary or the Secretary of the Treasury, as appropriate.

1978 - Subsec. (a)(1). Pub. L. 95-632, Sec. 6(1), (2),

substituted ''and any person engaged in business as an importer or

exporter of fish, wildlife, or plants who violates'' for ''or who

knowingly commits an act in the course of a commercial activity

which violates'' in two places and ''$500'' for ''$1,000''.

Subsec. (a)(3). Pub. L. 95-632, Sec. 7, added par. (3).

Subsec. (b)(1). Pub. L. 95-632, Sec. 6(3), substituted

''knowingly'' for ''willfully commits an act which'' in two places.

Subsec. (b)(2). Pub. L. 95-632, Sec. 6(4), inserted ''a person to

import or export fish, wildlife, or plants, or to operate a

quarantine station for imported wildlife, or authorizing'' after

''authorizing''.

Subsec. (b)(3). Pub. L. 95-632, Sec. 8, added par. (3).

1976 - Subsec. (e)(3). Pub. L. 94-359 inserted ''make arrests

without a warrant for any violation of this chapter if he has

reasonable grounds to believe that the person to be arrested is

committing the violation in his presence or view, and may'' after

''Such person may'' and '', but upon forfeiture of any such

property to the United States, or the abandonment or waiver of any

claim to any such property, it shall be disposed of (other than by

sale to the general public) by the Secretary in such a manner,

consistent with the purposes of this chapter, as the Secretary

shall by regulation prescribe,'' after ''other surety satisfactory

to the Secretary''.

-CHANGE-

CHANGE OF NAME

''United States magistrate judges'' substituted for ''United

States magistrates'' in subsec. (e)(2) pursuant to section 321 of

Pub. L. 101-650, set out as a note under section 631 of Title 28,

Judiciary and Judicial Procedure.

-MISC4-

EFFECTIVE DATE OF 1981 AMENDMENT

Section 9(f) of Pub. L. 97-79 provided that: ''The amendment

specified in subsection 9(e) of this Act (amending this section)

shall take effect beginning in fiscal year 1983.''

-TRANS-

TRANSFER OF FUNCTIONS

For transfer of authorities, functions, personnel, and assets of

the Coast Guard, including the authorities and functions of the

Secretary of Transportation relating thereto, to the Department of

Homeland Security, and for treatment of related references, see

sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic

Security, and the Department of Homeland Security Reorganization

Plan of November 25, 2002, as modified, set out as a note under

section 542 of Title 6.

For transfer of functions of the Secretary of Agriculture

relating to agricultural import and entry inspection activities

under this section to the Secretary of Homeland Security, and for

treatment of related references, see sections 231, 551(d), 552(d),

and 557 of Title 6, Domestic Security, and the Department of

Homeland Security Reorganization Plan of November 25, 2002, as

modified, set out as a note under section 542 of Title 6.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 742l, 1536, 1539, 4224,

4912, 5305a of this title; title 6 section 231; title 28 section

524; title 42 section 10601.

-CITE-

16 USC Sec. 1541 01/06/03

-EXPCITE-

TITLE 16 - CONSERVATION

CHAPTER 35 - ENDANGERED SPECIES

-HEAD-

Sec. 1541. Endangered plants

-STATUTE-

The Secretary of the Smithsonian Institution, in conjunction with

other affected agencies, is authorized and directed to review (1)

species of plants which are now or may become endangered or

threatened and (2) methods of adequately conserving such species,

and to report to Congress, within one year after December 28, 1973,

the results of such review including recommendations for new

legislation or the amendment of existing legislation.

-SOURCE-

(Pub. L. 93-205, Sec. 12, Dec. 28, 1973, 87 Stat. 901.)

-CITE-

16 USC Sec. 1542 01/06/03

-EXPCITE-

TITLE 16 - CONSERVATION

CHAPTER 35 - ENDANGERED SPECIES

-HEAD-

Sec. 1542. Authorization of appropriations

-STATUTE-

(a) In general

Except as provided in subsections (b), (c), and (d) of this

section, there are authorized to be appropriated -

(1) not to exceed $35,000,000 for fiscal year 1988, $36,500,000

for fiscal year 1989, $38,000,000 for fiscal year 1990,

$39,500,000 for fiscal year 1991, and $41,500,000 for fiscal year

1992 to enable the Department of the Interior to carry out such

functions and responsibilities as it may have been given under

this chapter;

(2) not to exceed $5,750,000 for fiscal year 1988, $6,250,000

for each of fiscal years 1989 and 1990, and $6,750,000 for each

of fiscal years 1991 and 1992 to enable the Department of

Commerce to carry out such functions and responsibilities as it

may have been given under this chapter; and

(3) not to exceed $2,200,000 for fiscal year 1988, $2,400,000

for each of fiscal years 1989 and 1990, and $2,600,000 for each

of fiscal years 1991 and 1992, to enable the Department of

Agriculture to carry out its functions and responsibilities with

respect to the enforcement of this chapter and the Convention

which pertain to the importation or exportation of plants.

(b) Exemptions

There are authorized to be appropriated to the Secretary to

assist him and the Endangered Species Committee in carrying out

their functions under sections (FOOTNOTE 1) 1536(e), (g), and (h)

of this title not to exceed $600,000 for each of fiscal years 1988,

1989, 1990, 1991, and 1992.

(FOOTNOTE 1) So in original. Probably should be ''section''.

(c) Convention implementation

There are authorized to be appropriated to the Department of the

Interior for purposes of carrying out section 1537a(e) of this

title not to exceed $400,000 for each of fiscal years 1988, 1989,

and 1990, and $500,000 for each of fiscal years 1991 and 1992, and

such sums shall remain available until expended.

-SOURCE-

(Pub. L. 93-205, Sec. 15, Dec. 28, 1973, 87 Stat. 903; Pub. L.

94-325, June 30, 1976, 90 Stat. 724; Pub. L. 95-632, Sec. 9, Nov.

10, 1978, 92 Stat. 3762; Pub. L. 96-159, Sec. 8, Dec. 28, 1979, 93

Stat. 1230; Pub. L. 97-304, Sec. 8((a)), Oct. 13, 1982, 96 Stat.

1425; Pub. L. 100-478, title I, Sec. 1009, Oct. 7, 1988, 102 Stat.

2312.)

-MISC1-

AMENDMENTS

1988 - Pub. L. 100-478 amended section generally, substituting

provisions authorizing appropriations for fiscal years 1988 through

1992 for provisions authorizing appropriations for fiscal years

1983 through 1985.

1982 - Subsec. (a). Pub. L. 97-304 designated existing provisions

as subsec. (a), and substituted provisions authorizing, except as

provided in subsecs. (b), (c), and (d), appropriations of

$27,000,000 for each of fiscal years 1983, 1984, and 1985 for the

Department of the Interior, $3,500,000 for each of fiscal years

1983, 1984, and 1985 for the Department of Commerce, and $1,850,000

for each of fiscal years 1983, 1984, and 1985 for the Department of

Agriculture, for provisions that, except as authorized in sections

1535 and 1536 of this title, had authorized appropriations of (1)

not to exceed $23,000,000 for each of fiscal years 1979 and 1980,

not to exceed $25,000,000 for fiscal year 1981, and not to exceed

$27,000,000 for fiscal year 1982 to the Department of the Interior,

(2) not to exceed $2,500,000 for each of fiscal years 1979 and

1980, not to exceed $3,000,000 for fiscal year 1981, and not to

exceed $3,500,000 for fiscal year 1982 to the Department of

Commerce, and (3) not to exceed $1,500,000 for fiscal year 1980,

not to exceed $1,750,000 for fiscal year 1981, and not to exceed

$1,850,000 for fiscal year 1982 to the Department of Agriculture.

Subsecs. (b) to (d). Pub. L. 97-304 added subsecs. (b) to (d).

1979 - Par. (1). Pub. L. 96-159 struck out appropriations

authorization of $25,000,000 for fiscal years ending Sept. 30,

1977, and 1978, substituted appropriations authorization of

$23,000,000; $23,000,000; $25,000,000; and $27,000,000 for fiscal

years 1979 through 1982 for prior authorization of $23,000,000 for

fiscal year ending Sept. 30, 1979, and $12,500,000 for period

beginning Oct. 1, 1979, and ending Mar. 31, 1980, and restored

intent of appropriations to enable the Interior Department to carry

out its functions and responsibilities.

Par. (2). Pub. L. 96-159 deleted appropriations authorization of

$5,000,000 for fiscal years ending Sept. 30, 1977, and 1978, and

substituted appropriations authorization of $2,500,000; $2,500,000;

$3,000,000; and $3,500,000 for fiscal years 1979 through 1982 for

prior authorization of $2,500,000 for fiscal year ending Sept. 30,

1979, and $12,500,000 for period beginning Oct. 1, 1979, and ending

Mar. 31, 1980.

1978 - Pub. L. 95-632, in provision preceding par. (1),

substituted ''sections 1535 and 1536 of this title'' for ''section

1535 of this title''.

Par. (1). Pub. L. 95-632 substituted provision authorizing

appropriations of not to exceed $25,000,000 for the fiscal year

ending Sept. 30, 1977 and the fiscal year ending Sept. 30, 1978, of

not to exceed $23,000,000 for the fiscal year ending Sept. 30,

1979, and of not to exceed $12,500,000 for the period beginning

Oct. 1, 1979 and ending Mar. 31, 1980 for provision authorizing

appropriations of not to exceed $10,000,000 for the fiscal year

ending June 30, 1976, of not to exceed $1,800,000 for the fiscal

transitional period ending Sept. 30, 1976, and of not to exceed a

total of $25,000,000 for the fiscal year ending Sept. 30, 1977 and

the fiscal year ending Sept. 30, 1978, to enable the Department of

the Interior to carry out its functions under this chapter.

Par. (2). Pub. L. 95-632 substituted provision authorizing

appropriations of not to exceed $5,000,000 for the fiscal year

ending Sept. 30, 1977 and the fiscal year ending Sept. 30, 1978, of

not to exceed $2,500,000 for the fiscal year ending Sept. 30, 1979,

and of not to exceed $12,500,000 for the period beginning Oct. 1,

1979 and ending Mar. 31, 1980 for provision authorizing

appropriations of not to exceed $2,000,000 for the fiscal year

ending June 30, 1976, of not to exceed $500,000 for the fiscal

transitional period ending Sept. 30, 1976 and of not to exceed a

total of $5,000,000 for the fiscal year Sept. 30, 1977 and the

fiscal year ending Sept. 30, 1978.

1976 - Par. (1). Pub. L. 94-325, Sec. 1(1), redesignated par. (A)

as (1), inserted provisions authorizing appropriations for the

fiscal year transitional period ending Sept. 30, 1976, fiscal year

ending Sept. 30, 1977, and fiscal year ending Sept. 30, 1978, and

struck out provisions authorizing appropriations of not to exceed

$4,000,000 for fiscal year 1974, and not to exceed $8,000,000 for

fiscal year 1975.

Par. (2). Pub. L. 94-325, Sec. 1(2), redesignated par. (B) as

(2), inserted provisions authorizing appropriation for the fiscal

year transitional period ending Sept. 30, 1976, fiscal year ending

Sept. 30, 1977, and fiscal year ending Sept. 30, 1978, and struck

out provisions authorizing appropriations of not to exceed

$2,000,000 for fiscal year 1974, and not to exceed $1,500,000 for

fiscal year 1975.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 1537 of this title.

-CITE-

16 USC Sec. 1543 01/06/03

-EXPCITE-

TITLE 16 - CONSERVATION

CHAPTER 35 - ENDANGERED SPECIES

-HEAD-

Sec. 1543. Construction with Marine Mammal Protection Act of 1972

-STATUTE-

Except as otherwise provided in this chapter, no provision of

this chapter shall take precedence over any more restrictive

conflicting provision of the Marine Mammal Protection Act of 1972

(16 U.S.C. 1361 et seq.).

-SOURCE-

(Pub. L. 93-205, Sec. 17, Dec. 28, 1973, 87 Stat. 903.)

-REFTEXT-

REFERENCES IN TEXT

This chapter, referred to in text, was in the original ''this

Act'', meaning Pub. L. 93-205, Dec. 28, 1973, 81 Stat. 884, as

amended, known as the ''Endangered Species Act of 1973'', which is

classified principally to this chapter. For complete

classification of this Act to the Code, see Short Title note set

out under section 1531 of this title and Tables.

The Marine Mammal Protection Act of 1972, referred to in text, is

Pub. L. 92-522, Oct. 21, 1972, 86 Stat. 1027, as amended, which is

classified generally to chapter 31 (Sec. 1361 et seq.) of this

title. For complete classification of this Act to the Code, see

Short Title note set out under section 1361 of this title and

Tables.

-CITE-

16 USC Sec. 1544 01/06/03

-EXPCITE-

TITLE 16 - CONSERVATION

CHAPTER 35 - ENDANGERED SPECIES

-HEAD-

Sec. 1544. Annual cost analysis by Fish and Wildlife Service

-STATUTE-

Notwithstanding section 3003 of Public Law 104-66 (31 U.S.C. 1113

note; 109 Stat. 734), on or before January 15, 1990, and each

January 15 thereafter, the Secretary of the Interior, acting

through the Fish and Wildlife Service, shall submit to the Congress

an annual report covering the preceding fiscal year which shall

contain -

(1) an accounting on a species by species basis of all

reasonably identifiable Federal expenditures made primarily for

the conservation of endangered or threatened species pursuant to

this chapter; and

(2) an accounting on a species by species basis of all

reasonably identifiable expenditures made primarily for the

conservation of endangered or threatened species pursuant to this

chapter by States receiving grants under section 1535 of this

title.

-SOURCE-

(Pub. L. 93-205, Sec. 18, as added Pub. L. 100-478, title I, Sec.

1012, Oct. 7, 1988, 102 Stat. 2314; amended Pub. L. 106-201, Sec.

1(a), May 18, 2000, 114 Stat. 307.)

-MISC1-

AMENDMENTS

2000 - Pub. L. 106-201, in introductory provisions, substituted

''Notwithstanding section 3003 of Public Law 104-66 (31 U.S.C. 1113

note; 109 Stat. 734), on'' for ''On''.

EFFECTIVE DATE OF 2000 AMENDMENT

Pub. L. 106-201, Sec. 1(b), May 18, 2000, 114 Stat. 307, provided

that: ''The amendment made by this section (amending this section)

takes effect on the earlier of -

''(1) the date of enactment of this Act (May 18, 2000); or

''(2) December 19, 1999.''

-CITE-