Table of Contents
FINDINGS, PURPOSES, AND POLICY ^
SEC. 2.
(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 aesthetic, 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 Act are to provide a means whereby the
ecosystems upon which endangered species and threatened species depend may be
conserved, to provide a program for the conservation of such endangered species
and threatened species, and to take such steps as may be appropriate to achieve
the purposes of the treaties and conventions set forth in subsection (a) of this
section.
(c) POLICY.-
(1) It Is further declared to be the policy of Congress that all Federal
departments and agencies shall seek to conserve endangered species and
threatened species and shall utilize their authorities in furtherance of the
purposes of this Act.
(2) It is further declared to be the policy of Congress that Federal agencies
shall cooperate with State and local agencies to resolve water resource issues
in concert with conservation of endangered species.
DEFINITIONS ^
SEC. 3. For the purposes of this Act-
(1) The term "alternative courses of action" means all
alternatives and thus is not limited to original project
objectives and agency jurisdiction.
(2) The term "commercial activity" means all activities
of industry and trade, including, but not limited to, the buying
or selling of commodities and activities conducted for the
purpose of facilitating such buying and selling: Provided,
however, that it does not include exhibitions of commodities by
museums or similar cultural or historical organizations.
(3) The terms "conserve," "conserving," and
"conservation" mean to use and the use of all methods
and procedures which are necessary to bring any endangered
species or threatened species to the point at which the measures
provided pursuant to this Act are 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 trans- plantation,
and, in the extraordinary case where population pressures within
a given ecosystem cannot be otherwise relieved, may include
regulated taking.
(4) The term "Convention" means the Convention on
International Trade in Endangered Species of Wild Fauna and
Flora, signed on March 3, 1973, and the appendices thereto.
(5)(A) The term "critical habitat" for a threatened or
endangered species means-
(i) the specific areas within the geographical area occupied by
the species, at the time it is listed in accordance with the
provisions of section 4 of this Act, on which are found those
physical or biological features (I) essential to the conservation
of the species and (II) which may require special management
considerations or protection; and
(ii) specific areas outside the geographical area occupied by the
species at the time it is listed in accordance with the
provisions of section 4 of this Act, upon a determination by the
Secretary that such areas are essential for the conservation of
the species.
(B) Critical habitat may be established for those species now
listed as threatened or endangered species for which no critical
habitat has heretofore been established as set forth in
subparagraph (A) of this paragraph.
(C) Except in those circumstances determined by the Secretary,
critical habitat shall not include the entire geographical area
which can be occupied by the threatened or endangered species.
(6) The term "endangered species" means any species
which is in danger of extinction throughout all or a significant
portion of its range other than a species of the Class Insecta
determined by the Secretary to constitute a pest whose protection
under the provisions of this Act would present an overwhelming
and overriding risk to man.
(7) The term "Federal agency" means any department,
agency, or instrumentality of the United States.
(8) The term "fish or wildlife" means any member of the
animal kingdom, including without limitation any mammal, fish,
bird (including any migratory, nonmigratory, or endangered bird
for which protection is also afforded by treaty or other
international agreement), amphibian, reptile, mollusk,
crustacean, arthropod or other invertebrate, and includes any
part, product, egg, or offspring thereof, or the dead body or
parts thereof.
(9) The term "foreign commerce" includes, among other
things, any transaction-
(A) between persons within one foreign country;
(B) between persons in two or more foreign countries;
(C) between a person within the United States and a person in a
foreign country; or
(D) between persons within the United States, where the fish and
wildlife in question are moving in any country or countries
outside the United States.
(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) The term "permit or license applicant" means, when
used with respect to an action of a Federal agency for which
exemption is sought under section 7, any person whose application
to such agency for a permit or license has been denied primarily
because of the application of section 7(a) to such agency action.
(12) "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."
(13) The term "plant" means any member of the plant
kingdom, including seeds, roots and other parts thereof.
(14) The term "Secretary" means, except as otherwise
herein provided, the Secretary of the Interior or the Secretary
of Commerce as program responsibilities are vested pursuant to
the provisions of Reorganization Plan Numbered 4 of 1970; except
that with respect to the enforcement of the provisions of this
Act and the Convention which pertain to the importation or
exportation of terrestrial plants, the term also means the
Secretary of Agriculture.
(15) The term "species" includes any subspecies of fish
or wildlife or plants, and any distinct population segment of any
species or vertebrate fish or wildlife which interbreeds when
mature.
(16) 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.
(17) 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.
(18) 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.
(19) 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.
(20) The term "United States," when used in a
geographical context, includes all States.
DETERMINATION OF ENDANGERED SPECIES AND THREATENED SPECIES ^
Sec. 4.
(a) GENERAL.-
(1) The Secretary shall by regulation promulgated in accordance
with subsection (b) determine whether any species is an
endangered species or a threatened species because of any of the
following factors:
(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;
(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) 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) solely on the basis of the best scientific and
commercial data available to him after conducting a review of the
status of the species and after taking into account those
efforts, if any, being made by any State or foreign nation, or
any political subdivision of a State or foreign nation, to
protect such species, whether by predator control, protection of
habitat and food supply, or other conservation practices, within
any area under its jurisdiction, or on the high seas.
(B) In carrying out this section, the Secretary shall give
consideration to species which have been-
(i) designated as requiring protection from unrestricted commerce
by any foreign nation, or pursuant to any international
agreement; or
(ii) identified as in danger of extinction, or likely to become
so within the foreseeable future, by any State agency or by any
agency of a foreign nation that is responsible for the
conservation of fish or wildlife or plants.
(2) The Secretary shall designate critical habitat, and make
revisions thereto, under subsection (a)(3) on the basis of the
best scientific data available and after taking into
consideration the economic impact, and any other relevant impact,
of specifying any particular area as critical habitat. The
Secretary may exclude any area from critical habitat if he
determines that the benefits of such exclusion outweigh the
benefits of specifying such area as part of the critical habitat,
unless he determines, based on the best scientific and commercial
data available, that the failure to designate such area as
critical habitat will result in the extinction of the species
concerned.
(3)(A) To the maximum extent practicable, within 90 days after
receiving the petition of an interested person under section
553(e) of title 5, United States Code, to add a species to, or to
remove a species from, either of the lists published under
subsection (c), the Secretary shall make a finding as to whether
the petition presents substantial scientific or commercial
information indicating that the petitioned action may be
warranted. If such a petition is found to present such
information, the Secretary shall promptly commence a review of
the status of the species concerned. The Secretary shall promptly
publish each finding made under this subparagraph in the Federal
Register.
(B) Within 12 months after receiving a petition that is found
under subparagraph (A) to present substantial information
indicating that the petitioned action may be warranted, the
Secretary shall make one of the following findings:
(i) The petitioned action is not warranted, in which case the
Secretary shall promptly publish such finding in the Federal
Register.
(ii) The petitioned action is warranted in which case the
Secretary shall promptly publish in the Federal Register a
general notice and the complete text of a proposed regulation to
implement such action in accordance with paragraph (5).
(iii) The petitioned action is warranted but that-
(I) the immediate proposal and timely promulgation of a final
regulation implementing the petitioned action in accordance with
paragraphs (5) and (6) is precluded by pending proposals to
determine whether any species is an endangered species or a
threatened species, and
(II) expeditious progress is being made to add qualified species
to either of the lists published under subsection (c) and to
remove from such lists species for which the protec- tions of the
Act are no longer necessary, in which case the Secretary shall
promptly publish such finding in the Federal Register, together
with a description and evaluation of the reasons and data on
which the finding is based.
(C)(i) A petition with respect to which a finding is made under
subparagraph (B)(iii) shall be treated as a petition that is
resubmitted to the Secretary under subparagraph (A) on the date
of such finding and that presents substantial scientific or
commercial information that the petitioned action may be
warranted.
(ii) Any negative finding described in subparagraph (A) and any
finding described in subparagraph (B) (i) or (iii) shall be
subject to judicial review.
(iii) The Secretary shall implement a system to monitor
effectively the status of all species with respect to which a
finding is made under subparagraph (B)(iii) and shall make prompt
use of the authority under paragraph 7 to prevent a significant
risk to the well being of any such species.
(D)(i) To the maximum extent practicable, within 90 days after
receiving the petition of an interested person under section
553(e) of title 5, United States Code, to revise a critical
habitat designation, the Secretary shall make a finding as to
whether the petition presents substantial scientific information
indicating that the revision may be warranted. The Secretary
shall promptly publish such finding in the Federal Register.
(ii) Within 12 months after receiving a petition that is found
under clause (i) to present substantial information indicating
that the requested revision may be warranted, the Secretary shall
determine how he intends to proceed with the requested revision,
and shall promptly publish notice of such intention in the
Federal Register.
(4) Except as provided in paragraphs (5) and (6) of this
subsection, the provisions of section 553 of title 5, United
States Code (relating to rulemaking procedures), shall apply to
any regulation promulgated to carry out the purposes of this Act.
(5) With respect to any regulation proposed by the Secretary to
implement a determination, designation, or revision referred to
in subsection (a) (1) or (3), the Secretary shall-
(A) not less than 90 days before the effective date of the
regulation-
(i) publish a general notice and the complete text of the
proposed regulation in the Federal Register, and
(ii) give actual notice of the proposed regulation (including the
complete text of the regulation) to the State 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, United States Code, shall apply to any
regulation issued by the Secretary in regard to any emergency
posing a significant risk to the well-being of any species of
fish and wildlife or plants, but only if-
(A) at the time of publication of the regulation in the Federal
Register the Secretary publishes therein detailed reasons why
such regulation is necessary; and
(B) in the case such regulation applies to resident species of
fish or wildlife, or plants, the Secretary gives actual notice of
such regulation to the State agency in each State in which such
species is believed to occur.
Such regulation shall, at the discretion of the Secretary, take
effect immediately upon the publication of the regulation in the
Federal Register. Any regulation promulgated under the authority
of this paragraph shall cease to have force and effect at the
close of the 240-day period following the date of publication
unless, during such 240-day period, the rulemaking procedures
which would apply to such regulation without regard to this
paragraph are complied with. If at any time after issuing an
emergency regulation the Secretary determines, on the basis of
the best appropriate data available to him, that substantial
evidence does not exist to warrant such regulation, he shall
withdraw it.
(8) The publication in the Federal Register of any proposed or
final regulation which is necessary or appropriate to carry out
the purposes of this Act shall include a summary by the Secretary
of the data on which such regulation is based and shall show the
relationship of such data to such regulation; and if such
regulation designates or revises critical habitat, such summary
shall, to the maximum extent practicable, also include a brief
description and 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 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).
(2) The Secretary shall-
(A) conduct, at least once every five years, a review of all
species included in a list which is published pursuant to
paragraph (1) and which is in effect at the time of such review;
and
(B) determine on the basis of such review whether any such
species should-
(i) be removed from such list;
(ii) be changed in status from an endangered species to a
threatened species; or
(iii) be changed in status from a threatened species to an
endangered species. Each determination under subparagraph (B)
shall be made in accordance with the provisions of subsection (a)
and (b).
(d) PROTECTIVE REGULATIONS.-Whenever any species is listed as a
threatened species pursuant to subsection (c) of this section,
the Secretary shall issue such regulations as he deems necessary
and advisable to provide for the conservation of such species.
The Secretary may by regulation prohibit with respect to any
threatened species any act prohibited under section 9(a)(1), in
the case of fish or wildlife, or section 9(a)(2), in the case of
plants, with respect to endangered species; except that with
respect to the taking of resident species of fish or wildlife,
such regulations shall apply in any State which has entered into
a cooperative agreement pursuant to section 6(c) of this Act only
to the extent that such regulations have also been adopted by
such State.
(e) SIMILARITY OF APPEARANCE CASES.-The Secretary may, by
regulation of commerce or taking, and to the extent he deems
advisable, treat any species as an endangered species or
threatened species even though it is not listed pursuant to
section 4 of this Act if he finds that-
(A) such species so closely resembles in appearance, at the point
in question, a species which has been listed pursuant to such
section that enforcement personnel would have substantial
difficulty in attempting to differentiate between the listed and
unlisted species;
(B) the effect of this substantial difficulty is an additional
threat to an endangered or threatened species; and
(C) such treatment of an unlisted species will substantially
facilitate the enforcement and further the policy of this Act.
(f)(1) RECOVERY PLANS.-The Secretary shall develop and implement
plans (hereinafter in this subsection referred to as
"recovery plans") for the conservation and survival of
endangered species and threatened species listed pursuant to this
section, unless he finds that such a plan will not promote the
conservation of the species. The Secretary, in development 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 Act are no longer
necessary and which, in accordance with the provisions of this
section, have been removed from either of the lists published
under subsection (c).
(2) The Secretary shall make prompt use of the authority under
paragraph 7 of subsection (b) of this section to prevent a
significant risk to the well being of any such recovered species.
(h) AGENCY GUIDELINES.-The Secretary shall establish, and publish
in the Federal Register, agency guidelines to insure that the
purposes of this section are achieved efficiently and
effectively. Such guidelines shall include, but are not limited
to-
(1) procedures for recording the receipt and the disposition of
petitions submitted under subsection (b)(3) of this section;
(2) criteria for making the findings required under such
subsection with respect to petitions;
(3) a ranking system to assist in the identification of species
that should receive priority review under subsection (a)(1) of
the section; and
(4) a system for developing and implementing, on a priority
basis, recovery plans under subsection (f) of this section. The
Secretary shall provide to the public notice of, and opportunity
to submit written comments on, any guideline (including any
amendment thereto) proposed to be established under this
subsection.
(i) If, in the case of any regulation proposed by the Secretary
under the authority of this section, a State agency to which
notice thereof was given in accordance with subsection
(b)(5)(A)(ii) files comments disagreeing with all or part of the
proposed regulation, and the Secretary issues a final regulation
which is in conflict with such comments, or if the Secretary
fails to adopt a regulation pursuant to an action petitioned by a
State agency under subsection (b)(3), the Secretary shall submit
to the State agency a written justification for his failure to
adopt regulations consistent with the agency's comments or
petition.
LAND ACQUISITION ^
SEC. 5.
(a) PROGRAM.-The Secretary, and the Secretary of Agriculture with
respect to the National Forest System, shall establish and
implement a program to conserve fish, wildlife, and plants,
including those which are listed as endangered species or
threatened species pursuant to section 4 of this Act. To carry
out such a program, the appropriate Secretary-
(1) shall utilize the land acquisition and other authority under
the Fish and Wildlife Act of 1956, as amended, the Fish and
Wildlife Coordination Act, as amended, and the Migratory Bird
Conservation Act, as appropriate; and
(2) is authorized to acquire by purchase, donation, or otherwise,
lands, waters, or interest therein, and such authority shall be
in addition to any other land acquisition vested in him.
(b) ACQUISITIONS.-Funds made available pursuant to the Land and
Water Conservation Fund Act of 1965, as amended, may be used for
the purpose of acquiring lands, waters, or interests therein
under subsection (a) of this section.
COOPERATION WITH THE STATES ^
SEC. 6.
(a) GENERAL.-In carrying out the program authorized by this Act,
the Secretary shall cooperate to the maximum extent practicable
with the States. Such cooperation shall include consultation with
the States concerned before acquiring any land or water, or
interest therein, for the purpose of conserving any endangered
species or threatened species.
(b) MANAGEMENT AGREEMENTS.-The Secretary may enter into
agreements with any State for the administration and management
of any area established for the conservation of endangered
species or threatened species. Any revenues derived from the
administration of such areas under these agreements shall be
subject to the provisions of section 401 of the Act of June 15,
1935 (49 Stat. 383; 16 U.S.C. 715s).
(c)(1) COOPERATIVE AGREEMENTS.-In furtherance of the purposes of
this Act, the Secretary is authorized to enter into a cooperative
agreement in accordance with this section with any State which
establishes and maintains an adequate and active program for the
conservation of endangered species and threatened species. Within
one hundred and twenty days after the Secretary receives a
certified copy of such a proposed State program, he shall make a
determination whether such program is in accordance with this
Act. Unless he determines, pursuant to this paragraph, that the
State program is not in accordance with this Act, he shall enter
into a cooperative agreement with the State for the purpose of
assisting in implementation of the State program. In order for a
State program to be deemed an adequate and active program for the
conservation of endangered species and threatened species, the
Secretary must find, and annually thereafter reconfirm such
finding, that under the State program-
(A) authority resides in the State agency to conserve resident
species of fish or wildlife determined by the State agency or the
Secretary to be endangered or threatened;
(B) the State agency has established acceptable conservation
programs, consistent with the purposes and policies of this Act,
for all resident species of fish or wildlife in the State which
are deemed by the Secretary to be endangered or threatened, and
has furnished a copy of such plan and program together with all
pertinent details, information, and data requested to the
Secretary;
(C) the State agency is authorized to conduct investigations to
determine the status and requirements for survival of resident
species of fish and wildlife;
(D) the State agency is authorized to establish programs,
including the acquisition of land or aquatic habitat or interests
therein, for the conservation of resident endangered or threat-
ened 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 paragraphs (3), (4), and (5) of
this subsection 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
and this subparagraph shall not affect the applicability of
prohibitions set forth in or authorized pursuant to section 4(d)
or section 9(a)(1) with respect to the taking of any resident
endangered or threatened species.
(2) In furtherance of the purposes of this Act, the Secretary is
authorized to enter into a cooperative agreement in accordance
with this section with any State which establishes and maintains
an adequate and active program for the conservation of endangered
species and threatened species of plants. Within one hundred and
twenty days after the Secretary receives a certified copy of such
a proposed State program, he shall make a determination whether
such program is in accordance with this Act. Unless he
determines, pursuant to this paragraph, that the State program is
not in accordance with this Act, he shall enter into a
cooperative agreement with the State for the purpose of assisting
in implementation of the State program. In order for a State
program to be deemed an adequate and active program for the
conservation of endangered species of plants and threatened
species of plants, the Secretary must find, and annually
thereafter reconfirm such 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 Act,
for all resident species of plants in the State which are deemed
by the Secretary to be endangered or threatened, and has
furnished a copy of such plan and program together with all
pertinent details, information, and data requested to the
Secretary;
(C) the State agency is authorized to conduct investigations to
determine the status and requirements for survival of resident
species of plants; and
(D) provision is made for public participation in designating
resident species of plants as endangered or threatened; or that
under the State program-
(i) the requirements set forth in subparagraphs (C) and (D) of
this paragraph are complied with, and
(ii) plans are included under which immediate attention will be
given to those resident species of plants which are determined by
the Secretary or the State agency to be endangered or threatened
and which the Secretary and the State agency agree are most
urgently in need of conservation programs; except that a
cooperative agreement entered into with a State whose program is
deemed adequate and active pursuant to clause (i) and this clause
shall not affect the applicability of prohibitions set forth in
or authorized pursuant to section 4(d) or section 9(a)(1) with
respect to the taking of any resident endangered or threatened
species.
(d) ALLOCATION OF FUNDS.-
(1) The Secretary is authorized to provide financial assistance
to any State, through its respective State agency, which has
entered into a cooperative agreement pursuant to subsection (c)
of this section to assist in development of programs for the
conservation of endangered and threatened species or to assist in
monitoring the status of candidate species pursuant to
subparagraph (C) of section 4(b)(3) and recovered species
pursuant to section 4(g). The Secretary shall allocate each
annual appropriation made in accordance with the provisions of
subsection (i) of this section to such States based on
consideration of-
(A) the international commitments of the United States to protect
endangered species or threatened species;
(B) the readiness of a State to proceed with a conservation
program consistent with the objectives and purposes of this Act;
(C) the number of endangered species and threatened species
within a State;
(D) the potential for restoring endangered species and threatened
species within a State;
(E) the relative urgency to initiate a program to restore and
protect an endangered species or threatened species in terms of
survival of the species;
(F) the importance of monitoring the status of candidate species
within a State to prevent a significant risk to the well being of
any such species; and
(G) the importance of monitoring the status of recovered species
within a State to assure that such species do not return to the
point at which the measures provided pursuant to this Act are
again necessary.
So much of the annual appropriation made in accordance with
provisions of subsection (i) of this section allocated for
obligation to any State for any fiscal year as remains
unobligated at the close thereof is authorized to fie 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
agreement with the Secretary.
The Secretary may, in his discretion, and under such rules and
regulations as he may prescribe, advance funds to the State for
financing the United States pro rata share agreed upon in the
cooperative agreement. For the purposes of this section, the
non-Federal share may, in the discretion of the Secretary, be in
the form of money or real property, the value of which will be
determined by the Secretary whose decision shall be final.
(e) REVIEW OF STATE PROGRAMS.-Any action taken by the Secretary
under this section shall be subject to his periodic review at no
greater than annual intervals.
(f) CONFLICTS BETWEEN FEDERAL AND STATE LAWS.-Any State law or
regulation which applies with respect to the importation or
exportation of, or interstate or foreign commerce in, endangered
species or threatened species is void to the extent that it may
effectively
(1) permit what is prohibited by this Act of by any regulation
which implements this Act, or
(2) prohibit what is authorized pursuant to an exemption or
permit provided for in this Act or in any regulation which
implements this Act. This Act shall not otherwise be construed to
void any State law or regulation which is intended to conserve
migratory, resident, or introduced fish or wildlife, or to permit
or prohibit sale of such fish or wildlife. Any State law or
regulation respecting the taking of an endangered species or
threatened species may be more restrictive than the exemptions or
permits provided for in this Act or in any regulation which
implements this Act but not less restrictive than the
prohibitions so defined.
(g) TRANSITION.-
(1) For purposes of this subsection, the term "establishment
period" means, with respect to any State, the period
beginning on the date of enactment of this Act and ending on
whichever of the following dates first occurs:
(A) the date of the close of the 120-day period following the
adjournment of the first regular session of the legislature of
such State which commences after such date of enactment, or
(B) the date of the close of the 15 month period following such
date of enactment.
(2) The prohibitions set forth in or authorized pursuant to
sections 4(d) and 9(a)(1)(B) of this Act shall not apply with
respect to the taking of any resident endangered species or
threatened species (other than species listed in Appendix I to
the Convention or otherwise specifically covered by any other
treaty or Federal law) within any State-
(A) which is then a party to a cooperative agreement with the
Secretary pursuant to section 6(c) of this Act (except to the
extent that the taking of any such species is contrary to the law
of such State); or
(B) except for any time within the establishment period when-
(i) the Secretary applies such prohibition to such species at the
request of the State, or
(ii) the Secretary applies such prohibition after he finds, and
publishes his finding, that an emergency exists posing a
significant risk to the well-being of such species and that the
prohibition must be applied to protect such species. The
Secretary's finding and publication may be made without regard to
the public hearing or comment provisions of section 553 of title
5, United States Code, or any other provision of this Act; but
such prohibition shall expire 90 days after the date of its
imposition unless the Secretary further extends such prohibition
by publishing notice and a statement of justification of such
extension.
(h) REGULATIONS.-The Secretary is authorized to promulgate such
regulations as may be appropriate to carry out the provisions of
this section relating to financial assistance to States.
(i) APPROPRIATIONS.-
(1) To carry out the provisions of this section for fiscal years
after September 30, 1988, there shall be deposited into a special
fund known as the cooperative endangered species conservation
fund, to be administered by the Secretary, an amount equal to
five percent of the combined amounts covered each fiscal year
into the Federal aid to wildlife restoration fund under section 3
of the Act of September 2, 1937, and paid, transferred, or
otherwise credited each fiscal year to the Sport Fishing
Restoration Account established under 1016 of the Act of July 18,
1984.
(2) Amounts deposited into the special fund are authorized to be
appropriated annually and allocated in accordance with subsection
(d) of this section.
INTERAGENCY COOPERATION ^
SEC. 7.
(a) FEDERAL AGENCY ACTIONS AND CONSULTATIONS.-
(1) The Secretary shall review other programs administered by him
and utilize such programs in furtherance of the purposes of this
Act. All other Federal agencies shall, in consultation with and
with the assistance of the Secretary, utilize their authorities
in furtherance of the purposes of this Act by carrying out
programs for the conservation of endangered species and
threatened species listed pursuant to section 4 of this Act.
(2) Each Federal agency shall, in consultation with and with the
assistance of the Secretary, insure that any action authorized,
funded, or carried out by such agency (hereinafter in this
section referred to as an "agency action") is not
likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or
adverse modification of habitat of such species which is
determined by the Secretary, after consultation as appropriate
with affected States, to be critical, unless such agency has been
granted an exemption for such action by the Committee pursuant to
subsection (h) of this section. In fulfilling the requirements of
this paragraph each agency shall use the best scientific and
commercial data available.
(3) Subject to such guidelines as the Secretary may establish, a
Federal agency shall consult with the Secretary on any
prospective agency action at the request of, and in cooperation
with, the prospective permit or license applicant if the
applicant has reason to believe that an endangered species or a
threatened species may be present in the area affected by his
project and that implementation of such action will likely affect
such species.
(4) Each Federal agency shall confer with the Secretary on any
agency action which is likely to jeopardize the continued
existence of any species proposed to be listed under section 4 or
result in the destruction or adverse modification of critical
habitat proposed to be designated for such species. This
paragraph does not require a limitation on the commitment of
resources as described in subsection (d).
(b) OPINION OF SECRETARY.-
(1)(A) Consultation under subsection (a)(2) with respect to any
agency action shall be concluded within the 90-day period
beginning on the date on which initiated or, subject to
subparagraph (B), within such other period of time as is mutually
agreeable to the Secretary and the Federal agency;
(B) in the case of an agency action involving a permit or license
applicant, the Secretary and the Federal agency may not mutually
agree to conclude consultation within a period exceeding 90 days
unless the Secretary, before the close of the 90th day referred
to in subparagraph (A)-
(i) if the consultation period proposed to be agreed to will end
before the 150th day after the date on which consultation was
initiated, submits to the applicant a written statement setting
forth-
(I) the reasons why a longer period is required;
(II) the information that is required to complete the
consultation; and
(III) the estimated date on which consultation will be completed;
or
(ii) if the consultation period proposed to be agreed to will end
150 or more days after the date on which consultation was
initiated, obtains the consent of the applicant to such period.
The Secretary and the Federal agency may mutually agree to extend
a consultation period established under the preceding sentence if
the Secretary, before the close of such period, obtains the
consent of the applicant to the extension.
(2) Consultation under subsection (a)(3) shall be concluded
within such period as is agreeable to the Secretary, the Federal
agency, and the applicant concerned.
(3)(A) Promptly after conclusion of consultation under paragraph
(2) or (3) of subsection (a), the Secretary shall provide to the
Federal agency and the applicant, if any, a written statement
setting forth the Secretary's opinion, and a summary of the
information on which the opinion is based, detailing how the
agency action affects the species or its critical habitat. If
jeopardy or adverse modification is found, the Secretary shall
suggest those reasonable and prudent alternatives which he
believes would not violate subsection (a)(2) and can be taken by
the Federal agency or applicant in implementing the agency
action.
(B) Consultation under subsection (a)(3), and an opinion based by
the Secretary incident to such consultation, regarding an agency
action shall be treated respectively as a consultation under
subsection (a)(2), and as an opinion issued after consultation
under such subsection, regarding that action if the Secretary
reviews the action before it is commenced by the Federal agency
and finds, and notifies such agency, that no significant changes
have been made with respect to the action and that no significant
change has 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) each Federal agency shall, with respect to any agency
action of such agency for which no contract for construction has
been entered into and for which no construction has begun on the
date of enactment of the Endangered Species Act Amendments of
1978, request of the Secretary information whether any species
which is listed or proposed to be listed may be present in the
area of such proposed action. If the Secretary advises, based on
the best scientific and commercial data available, that such
species may be present, such agency shall conduct a biological
assessment for the purpose of identifying any endangered species
or threatened species which is likely to be affected by such
action. Such assessment shall be completed within 180 days after
the date on which initiated (or within such other period as 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 esti- mated 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 bio- logical assessment must, however, be conducted in
cooperation with the Secretary and under the supervision of the
appropriate Federal agency.
(d) LIMITATION ON COMMITMENT OF RESOURCES.-After initiation of
consultation required under subsection (a)(2), the Federal agency
and the permit or license applicant shall not make any
irreversible or irretrievable commitment of resources with
respect to the agency action which has the effect of foreclosing
the formulation or implementation of any reasonable and prudent
alternative measures which would not violate subsection (a)(2).
(e)(1) ESTABLISHMENT OF COMMITTEE.-There is established a
committee to be known as the Endangered Species Committee
(hereinafter in this section referred to as the
"Committee").
(2) The Committee shall review any application submitted to it
pursuant to this section and determine in accordance with
subsection (h) of this section whether or not to grant an
exemption from the requirements of subsection (a)(2) of this
action for the action set forth in such application.
(3) The Committee shall be composed of seven members as follows:
(A) The Secretary of Agriculture.
(B) The Secretary of the Army.
(C) The Chairman of the Council of Economic Advisors.
(D) The Administrator of the Environmental Protection Agency.
Agency.
(E) The Secretary of the Interior.
(F) The Administrator of the National Oceanic and Atmospheric
Administration.
(G) The President, after consideration of any recommendations
received pursuant to subsection (g)(2)(B) shall appoint one
individual from each affected State, as determined by the
Secretary, to be a member of the Committee for the consideration
of the application for exemption for an agency action with
respect to which such recommendations are made, not later than 30
days after an application is submitted pursuant to this section.
(4)(A) Members of the Committee shall receive no additional pay
on account of their service on the Committee.
(B) While away from their homes or regular places of business in
the performance of services for the Committee, members of the
Committee shall be allowed travel expenses, including per diem in
lieu of subsistence, in the same manner as persons employed
inter- mittently in the Government service are allowed expenses
under section 5703 of title 5 of the United States Code.
(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, the Committee may secure directly
from any Federal agency information necessary to enable it to
carry out its duties under this section. Upon request of the
Chairman of the Committee, the head of such Federal agency shall
furnish such information to the Committee.
(D) The Committee may use the United States mails in the same
manner and upon the same conditions as a Federal agency.
(E) The Administrator of General Services shall provide to the
Committee on a reimbursable basis such administrative support
services as the Committee may request.
(8) In carrying out its duties under this section, the Committee
may promulgate and amend such rules, regulations, and procedures,
and issue and amend such orders as it deems necessary.
(9) For the purpose of obtaining information necessary for the
consideration of an application for an exemption under this
section the Committee may issue subpoenas for the attendance and
testimony of witnesses and the production of relevant papers,
books, and documents.
(10) In no case shall any representative, including a
representative of a member designated pursuant to paragraph
(3)(G) of this subsection, be eligible to cast a vote on behalf
of any member.
(f) REGULATIONS.-Not later than 90 days after the date of
enactment of the Endangered Species Act Amendments of 1978, the
Secretary shall promulgate regulations which set forth the form
and manner in which applications for exemption shall be submitted
to the Secretary and the information to be contained in such
applications. Such regulations shall require that information
submitted in an application by the head of any Federal agency
with respect to any agency action include but not be limited to-
(1) a description of the consultation process carried out
pursuant to subsection (a)(2) of this section between the head of
the Federal agency and the Secretary; and
(2) a statement describing why such action cannot be altered or
modified to conform with the requirements of subsection (a)(2) of
this section.
(g) APPLICATION FOR EXEMPTION AND REPORT TO THE 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), the Secretary's opinion under subsection (b)
indicates that the agency action would violate subsection (a)(2).
An application for an exemption shall be considered initially by
the Secretary in the manner provided for in this subsection, and
shall be considered by the Committee for a final determination
under subsection (h) after a report is made pursuant to paragraph
(5). The applicant for an exemption shall be referred to as the
"exemption applicant" in this section.
(2)(A) An exemption applicant shall submit a written application
to the Secretary, in a form prescribed under subsection (f), not
later than 90 days after the completion of the consultation
process; except that, in the case of any agency action involving
a permit or license applicant, such application shall be
submitted not later than 90 days after the date on which the
Federal agency concerned takes final agency action with respect
to the issuance of the permit or license. For purposes of the
preceding sentence, the term "final agency action"
means (i) a disposition by an agency with respect to the issuance
of a permit or license that is subject to administrative review,
whether or not such disposition is subject to judicial review; or
(ii) if administrative review is sought with respect to such
disposition, the decision resulting after such review. Such
application shall set forth the reasons why the exemption
applicant considers that the agency action meets the requirements
for an exemption under this subsection.
(B) Upon receipt of an application for exemption for an agency
action under paragraph (1), the Secretary shall promptly
(i) notify the Governor of each affected State, if any, as
determined by the Secretary, and request the Governors so
notified to recommend individuals to be appointed to the
Endangered Species Committee for consideration of such
application; and
(ii) publish notice of receipt of the application in the Federal
Register, including a summary of the information contained in the
application and a description of the agency action with respect
to which the application for exemption has been filed.
(3) The Secretary shall within 20 days after the receipt of an
application for exemption, or within such other period of time as
is mutually agreeable to the exemption applicant and the
Secretary
(A) determine that the Federal agency concerned and the exemption
applicant have-
(i) carried out the consultation responsibilities described in
subsection (a) in good faith and made a reasonable and
responsible effort to develop and fairly consider modifications
or reasonable and prudent alternatives to the proposed agency
action which would not violate subsection (a)(2);
(ii) conducted any biological assessment required by subsection
(c); and
(iii) to the extent determinable within the time provided herein,
refrained from making any irreversible or irretrievable
commitment of resources prohibited by subsection (d); or
(B) deny the application for exemption because the Federal agency
concerned or the exemption applicant have not met the
requirements set forth in subparagraph (A) (i), (ii), and (iii).
The denial of an application under subparagraph (B) shall be
considered final agency action for purposes of chapter 7 of title
5, United States Code.
(4) If the Secretary determines that the Federal agency concerned
and the exemption applicant have met the requirements set forth
in paragraph (3)(A) (i), (ii) and (iii) he shall, in consultation
with the Members of the Committee, hold a hearing on the
application for exemption in accordance with sections 554, 555,
and 556 (other than subsection (b) (1) and (2) thereof) of title
5, United States Code, and prepare the report to be submitted
pursuant to paragraph (5).
(5) Within 140 days after making the determinations under
paragraph (3) or within such other period of time as is mutually
agreeable to the exemption applicant and the Secretary, the
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 of the critical habitat;
(B) a summary of the evidence concerning whether or not the
agency action is in the public interest and is of national or
regional significance;
(C) appropriate reasonable mitigation and enhancement measures
which should be considered by the Committee; and
(D) whether the Federal agency concerned and the exemption
applicant refrained from making any irreversible or irretrievable
commitment of resources prohibited by subsection (d).
(6) To the extent practicable within the time required for action
under subsection (g) of this section, and except to the extent
inconsistent with the requirements of this section, the
consideration of any application for an exemption under this
section and the conduct of any hearing under this subsection
shall be in accordance with sections 554, 555, and 556 (other
than subsection (b)(3) of section 556) of title 5, United States
Code.
(7) Upon request of the Secretary, the head of any Federal agency
is authorized to detail, on a nonreimbursable basis, any of the
personnel of such agency to the Secretary to assist him in
carrying out his duties under this section.
(8) All meetings and records resulting from activities pursuant
to this subsection shall be open to the public.
(h) EXEMPTION.-
(1) The Committee shall make a final determination whether or not
to grant an exemption within 30 days after receiving the report
of the Secretary pursuant to subsection (g)(5). The Committee
shall grant an exemption from the requirements of subsection
(a)(2) for an agency action if, by a vote of not less than five
of its members voting in person-
(A) it determines on the record, based on the report of the
Secretary, the record of the hearing held under subsection
(g)(4), and on such other testimony or evidence as it may
receive, that-
(i) there are no reasonable and prudent alternatives to the
agency action;
(ii) the benefits of such action clearly outweigh the benefits of
alternative courses of action consistent with conserving the
species or its critical habitat, and such action is in the public
interest;
(iii) the action is of regional or national significance; and
(iv) neither the Federal agency concerned nor the exemption
applicant made any irreversible or irretrievable commitment of
resources prohibited by subsection (d); and
(B) it establishes such reasonable mitigation and enhancement
measures, including, but not limited to, live propagation,
transplantation, and habitat acquisition and improvement, as are
necessary and appropriate to minimize the adverse effects of the
agency action upon the endangered species, threatened species, or
critical habitat concerned.
Any final determination by Committee under this subsection shall
be considered final agency action for purposes of chapter 7 of
title 5 of the United States Code.
(2)(A) Except as provided in subparagraph (B), an exemption for
an agency action granted under paragraph (1) shall constitute a
permanent exemption with respect to all endangered or threatened
species for the purposes of completing such agency action-
(i) regardless whether the species was identified in the
biological assessment; and
(ii) only if a biological assessment has been conducted under
subsection (c) with respect to such agency action.
(B) An exemption shall be permanent under subparagraph (A)
unless-
(i) the Secretary finds, based on the best scientific and
commercial data available, that such exemption would result in
the extinction of a species that was not the subject of
consultation under subsection (a)(2) or was not identified in any
biological assessment conducted under subsection (c), and
(ii) the Committee determines within 60 days after the date of
the Secretary's finding that the exemption should not be
permanent.
If the Secretary makes a finding described in clause (i), the
Committee shall meet with respect to the matter within 30 days
after the date of the finding.
(i) REVIEW BY SECRETARY OF STATE.-Notwithstanding any other
provision of this Act, the Committee shall be prohibited from
considering for exemption any application made to it, if the
Secretary of State, after a review of the proposed agency action
and its potential implications, and after hearing, certifies, in
writing, to the Committee within 60 days of any application made
under this section that the granting of any such exemption and
the carrying out of such action would be in violation of an
international treaty obli- gation 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) Notwithstanding any other provision of this Act, the
Committee shall grant an exemption for any agency action if the
Secretary of Defense finds that such exemption is necessary for
reasons of national security.
(k) SPECIAL PROVISIONS.-An exemption decision by the Committee
under this section shall not be a major Federal action for
purposes of the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.): Provided, That an environmental impact
statement which discusses the impacts upon endangered species or
threatened species or their critical habitats shall have been
previously prepared with respect to any agency action exempted by
such order.
(l) COMMITTEE ORDERS.-
(1) If the Committee determines under subsection (h) that an
exemption should be granted with respect to any agency action,
the Committee shall issue an order granting the exemption and
specifying the mitigation and enhancement measures established
pursuant to subsection (h) which shall be carried out and paid
for by the exemption applicant in implementing the agency action.
All necessary mitigation and 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 en- hancement measures
prescribed by this section. Such report shall be submitted
annually until all such mitigation and enhancement measures have
been completed. Notice of the public availability of such reports
shall be published in the Federal Register by the Council on
Environmental Quality.
(m) NOTICE.-The 60-day notice requirement of section 11(g) of
this Act shall not apply with respect to review of any final
determination of the Committee under subsection (h) of this
section granting an exemption from the requirements of subsection
(a)(2) of this section.
(n) JUDICIAL REVIEW.-Any person, as defined by section 3(13) of
this Act, may obtain judicial review, under chapter 7 of title 5
of the United States Code, of any decision of the Endangered
Species Committee under subsection (h) in the United States Court
of Appeals for
(1) any circuit wherein the agency action concerned will be, or
is being, carried out, or
(2) in any case in which the agency action will be, or is being,
carried out outside of any circuit, the District of Columbia, by
filing in such court within 90 days after the date of issuance of
the decision, a written petition for review. A copy of such
petition shall be transmitted by the clerk of the court to the
Committee and the Committee shall file in the court the record in
the proceeding, as provided in section 2112, of title 28, United
States Code. Attorneys designated by the Endangered Species
Committee may appear for, and represent the Committee in any
action for review under this subsection.
(o) EXEMPTION AS PROVIDING EXCEPTION ON TAKING OF ENDANGERED
SPECIES.-Notwithstanding sections 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 Act of 1974, 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 401 or 402 of the
Disaster Relief Act of 1974, and which the President determines
(1) is necessary to prevent the recurrence of such a natural
disaster and to reduce the potential loss of human life, and
(2) to involve an emergency situation which does not allow the
ordinary procedures of this section to be followed.
Notwithstanding any other provision of this section, the
Committee shall accept the determinations of the President under
this subsection.
INTERNATIONAL COOPERATION ^
SEC. 8.
(a) FINANCIAL ASSISTANCE.-As a demonstration of the commitment of
the United States to the worldwide protection of endangered
species and threatened species, the President may, subject to the
provisions of section 1415 of the Supplemental Appropriation Act,
1953 (31 U.S.C. 724), use foreign currencies accruing to the
United States Government under the Agricultural Trade Development
and Assistance Act of 1954 or any other law to provide to any
foreign 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 4 of this Act. The President shall provide
assistance (which includes, but is not limited to, the
acquisition, by lease or otherwise, of lands, waters, or
interests therein) to foreign countries under this section under
such terms and conditions as he deems appropriate. Whenever
foreign currencies are available for the provision of assistance
under this section, such currencies shall be used in preference
to funds appropriated under the authority of section 15 of this
Act.
(b) ENCOURAGEMENT OF FOREIGN PROGRAMS.-In order to carry out
further the provisions of this Act, the Secretary, through the
Secretary of State shall encourage-
(1) foreign countries to provide for the conservation of fish or
wildlife and plants including endangered species and threatened
species listed pursuant to section 4 of this Act;
(2) the entering into of bilateral or multilateral agreements
with foreign countries to provide for such conservation; and
(3) foreign persons who directly or indirectly take fish or
wildlife or plants in foreign countries or on the high seas for
importation into the United States for commercial or other
purposes to develop and carry out with such assistance as he may
provide, conservation practices designed to enhance such fish or
wildlife or plants and their habitat.
(c) PERSONNEL.-After consultation with the Secretary of State,
the Secretary may-
(1) assign or otherwise make available any officer or employee of
his department for the purpose of cooperating with foreign
countries and international organizations in developing personnel
resources and programs which promote the conservation of fish or
wildlife or plants, and
(2) conduct or provide financial assistance for the educational
training of foreign personnel, in this country or abroad, in
fish, wildlife, or plant management, research and law enforcement
and to render professional assistance abroad in such matters.
(d) INVESTIGATIONS.-After consultation with the Secretary of
State and the Secretary of the Treasury, as appropriate, the
Secretary may conduct or cause to be conducted such law
enforcement investigations and research abroad as he deems
necessary to carry out the purposes of this Act.
CONVENTION IMPLEMENTATION
SEC. 8A.
(a) MANAGEMENT AUTHORITY AND SCIENTIFIC AUTHORITY.-The Secretary
of the Interior (hereinafter in this section referred to as the
"Secretary") is designated as the Management Authority
and the Scientific Authority for purposes of the Convention and
the respective functions of each such Authority shall be carried
out through the United States Fish and Wildlife Service.
(b) MANAGEMENT AUTHORITY FUNCTIONS.-The Secretary shall do all
things necessary and appropriate to carry out the functions of
the Management Authority under the Convention.
(c) SCIENTIFIC AUTHORITY FUNCTIONS.-
(1) The Secretary shall do all things necessary and appropriate
to carry out the functions of the Scientific Authority under the
Convention.
(2) The Secretary shall base the determinations and advice given
by him under Article IV of the Convention with respect to
wildlife upon the best available biological information derived
from professionally accepted wildlife management practices; but
is not required to make, or require any State to make, estimates
of population size in making such determinations or giving such
advice.
(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.
PROHIBITED ACTS ^
SEC. 9.
(a) GENERAL.-
(1) Except as provided in sections 6(g)(2) and 10 of this Act,
with respect to any endangered species of fish or wildlife listed
pursuant to section 4 of this Act it is unlawful for any person
subject to the jurisdiction of the United States to-
(A) import any such species into, or export any such species from
the United States;
(B) take any such species within the United States or the
territorial sea of the United States;
(C) take any such species upon the high seas;
(D) possess, sell, deliver, carry, transport, or ship, by any
means whatsoever, any such species taken in violation of
subparagraphs (B) and (C);
(E) deliver, receive, carry, transport, or ship in interstate or
foreign commerce, by any means whatsoever and in the course of a
commercial activity, any such species;
(F) sell or offer for sale in interstate or foreign commerce any
such species; or
(G) violate any regulation pertaining to such species or to any
threatened species of fish or wildlife listed pursuant to section
4 of this Act and promulgated by the Secretary pursuant to
authority provided by this Act.
(2) Except as provided in sections 6(g)(2) and 10 of this Act,
with respect to any endangered species of plants listed pursuant
to section 4 of this Act, it is unlawful for any person subject
to the jurisdiction of the United States to-
(A) import any such species into, or export any such species
from, the United States;
(B) remove and reduce to possession any such species from areas
under Federal jurisdiction; maliciously damage or destroy any
such species on any such area; or remove, cut, dig up, or damage
or destroy any such species on any other area in knowing
violation of any law or regulation of any state or in the course
of any violation of a state criminal trespass law;
(C) deliver, receive, carry, transport, or ship in interstate or
foreign commerce, by any means whatsoever and in the course of a
commercial activity, any such species;
(D) sell or offer for sale in interstate or foreign commerce any
such species; or
(E) violate any regulation pertaining to such species or to any
threatened species of plants listed pursuant to section 4 of this
Act and promulgated by the Secretary pursuant to authority
provided by this Act.
(b)(1) SPECIES HELD IN CAPTIVITY OR CONTROLLED ENVIRONMENT. The
provisions of subsections (a)(1)(A) and (a)(1)(G) of this section
shall not apply to any fish or wildlife which was held in
captivity or in a controlled environment on
(A) December 28, 1973, or
(B) the date of the publication in the Federal Register of a
final regulation adding such fish or wildlife species to any list
published pursuant to subsection (c) of section 4 of this Act:
Provided, That such holding and any subsequent holding or use of
the fish or wildlife was not in the course of a commercial
activity. With respect to any act prohibited by subsections
(a)(1)(A) and (a)(1)(G) of this section which occurs after a
period of 180 days from
(i) December 28, 1973, or
(ii) the date of publication in the Federal Register of a final
regulation adding such fish or wildlife species to any list
published pursuant to subsection (c) of section 4 of this Act,
there shall be a rebuttable presumption that the fish or wildlife
involved in such act is not entitled to the exemption contained
in this subsection.
(2)(A) The provisions of subsections (a)(1) shall not apply to-
(i) any raptor legally held in captivity or in a controlled
environment on the effective date of the Endangered Species Act
Amendments of 1978; or
(ii) any progeny of any raptor described in clause (i); until
such time as any such raptor or progeny is intentionally returned
to a wild state.
(B) Any person holding any raptor or progeny described in
subparagraph (A) must be able to demonstrate that the raptor or
progeny does, in fact, qualify under the provisions of this
paragraph, and shall maintain and submit to the Secretary, on
request, such inventories, documentation, and records as the
Secretary may by regulation require as being reasonably
appropriate to carry out the purposes of this paragraph. Such
requirements shall not unnecessarily duplicate the requirements
of other rules and regulations promulgated by the Secretary.
(c) VIOLATION OF CONVENTION.-
(1) It is unlawful for any person subject to the jurisdiction of
the United States to engage in any trade in any specimens
contrary to the provisions of the Convention, or to possess any
specimens traded contrary to the provisions of the Convention,
including the definitions of terms in article I thereof
(2) Any importation into the United States of fish or wildlife
shall, if-
(A) such fish or wildlife is not an endangered species listed
pursuant to section 4 of this Act but is listed in Appendix II of
the Convention;
(B) the taking and exportation of such fish or wildlife is not
contrary to the provisions of the Convention and all other
applicable requirements of the Convention have been satisfied;
(C) the applicable requirements of 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 Act or any regulation issued pursuant to
this Act.
(d) IMPORTS AND EXPORTS.-
(1) IN GENERAL.-It is unlawful for any person, without first
having obtained permission from the Secretary, to engage in
business-
(A) as an importer or exporter of fish or wildlife (other than
shellfish and fishery products which
(i) are not listed pursuant to section 4 of this Act as
endangered species or threatened species, and
(ii) are imported for purposes of human or animal consumption or
taken in waters under 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 ex- amine 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 4 of this Act as
endangered or threatened species, and
(2) are imported for purposes of human or animal consumption or
taken in waters under the jurisdiction of the United States or on
the high seas for recreational purposes) or plants to fail to
file any declaration or report as the Secretary deems necessary
to facilitate enforcement of this Act or to meet the obligations
of the Convention.
(f) DESIGNATION OF PORTS.-
(1) It is unlawful for any person subject to the jurisdiction of
the United States to import into or export from the United States
any fish or wildlife (other than shellfish and fishery products
which
(A) are not listed pursuant to section 4 of this Act as
endangered species or threatened species, and
(B) are imported for purposes of human or animal consumption or
taken in waters under the jurisdiction of the United States or on
the high seas for recreational purposes) or plants, except at a
port or ports designated by the Secretary of the Interior. For
the purposes of facilitating enforcement of this Act and reducing
the costs thereof, the Secretary of the Interior, with approval
of the Secretary of the Treasury and after notice and opportunity
for public hearing, may, by regulation, designate ports and
change such designations. The Secretary of the Interior, under
such terms and conditions as he may prescribe, may permit the
importation or exportation at nondesignated ports in the interest
of the health or safety of the fish or wildlife or plants, or for
other reasons if, in his discretion, he deems it appropriate and
consistent with the purpose of this subsection.
(2) Any port designated by the Secretary of the Interior under
the authority of section 4(d) of the Act of December 5, 1969 (16
U.S.C. 666cc 4(d), shall, if such designation is in effect on the
day before the date of the enactment of this Act, be deemed to be
a port designated by the Secretary under paragraph (1) of this
subsection until such time as the Secretary otherwise provides.
(g) VIOLATIONS.-It is Unlawful for any person subject to the
jurisdiction of the United States to attempt to commit, solicit
another to commit, or cause to be committed, any offense defined
in this section.
EXCEPTIONS ^
SEC. 10.
(a) PERMITS.-
(1) The Secretary may permit, under such terms and conditions as
he shall prescribe-
(A) any act otherwise prohibited by section 9 for scientific
purposes or to enhance the propagation or survival of the
affected species, including, but not limited to, acts necessary
for the establishment and maintenance of experimental populations
pursuant subsection (j); or
(B) any taking otherwise prohibited by section 9(a)(1)(B) if such
taking is incidental to, and not the purpose of, the carrying out
of an otherwise lawful activity.
(2)(A) No permit may be issued by the Secretary authorizing any
taking referred to in paragraph (1)(B) unless the applicant
therefor submits to the Secretary a conservation plan that
specifies-
(i) the impact which will likely result from such taking;
(ii) what steps the applicant will take to minimize and mitigate
such impacts, and the funding that will be available to implement
such steps;
(iii) what alternative actions to such taking the applicant
considered and the reasons why such alternatives are not being
utilized; and
(iv) such other measures that the Secretary may require as being
necessary or appropriate for purposes of the plan.
(B) If the Secretary finds, after opportunity for public comment,
with respect to a permit application and the related conservation
plan that-
(i) the taking will be incidental;
(ii) the applicant will, to the maximum extent practicable,
minimize and mitigate the impacts of such taking;
(iii) the applicant will ensure that adequate funding for the
plan will be provided;
(iv) the taking will not appreciably reduce the likelihood of the
survival and recovery of the species in the wild; and
(v) the measures, if any, required under subparagraph (A)(iv)
will be met; and he has received such other assurances as he may
require that the plan will be implemented, the Secretary shall
issue the permit. The permit shall contain such terms and
conditions as the Secretary deems necessary or appropriate to
carry out the purposes of this paragraph, including, but not
limited to, such reporting requirements as the Secretary deems
necessary for determining whether such terms and conditions are
being complied with.
(C) The Secretary shall revoke a permit issued under this
paragraph if he finds that the permittee is not complying with
the terms and conditions of the permit.
(b) HARDSHIP EXEMPTIONS.-
(1) If any person enters into a contract with respect to a
species of fish or wildlife or plant before the date of the
publication in the Federal Register of notice of consideration of
that species as an endangered species and the subsequent listing
of that species as an endangered species pursuant to section 4 of
this Act will cause undue hardship to such person under the
contract, the Secretary, in order to minimize such hardship, may
exempt such person from the application of section 9(a) of this
Act to the extent the Secretary deems appropriate if such person
applies to him for such exemption and includes with such
application such information as the Secretary may require to
prove such hardship; except that (A) no such exemption shall be
for a duration of more than one year from the date of publication
in the Federal Register of notice of consideration of the species
concerned, or shall apply to a quantity of fish or wildlife or
plants in excess of that specified by the Secretary; (B) the
one-year period for those species of fish or wildlife listed by
the Secretary as endangered prior to the effective date of this
Act shall expire in accordance with the terms of section 3 of the
Act of December 5, 1969 (83 Stat. 275); and (C) no such exemption
may be granted for the importation or exportation of a specimen
listed in Appendix I of the Convention which is to be used in a
commercial activity.
(2) As used in this subsection, the term "undue economic
hardship" shall include, but not be limited to:
(A) substantial economic loss resulting from inability caused by
this Act to perform contracts with respect to species of fish and
wildlife entered into prior to the date of publication in the
Federal Register of a notice of consideration of such species as
an endangered species;
(B) substantial economic loss to persons who, for the year prior
to the notice of consideration of such species as an endangered
species, derived a substantial portion of their income from the
lawful taking of any listed species, which taking would be made
unlawful under this Act; or
(C) curtailment of subsistence taking made unlawful under this
Act by persons
(i) not reasonably able to secure other sources of subsistence;
and
(ii) dependent to a substantial extent upon hunting and fishing
for subsistence; and
(iii) who must engage in such curtailed taking for subsistence
purposes.
(3) The Secretary may make further requirements for a showing of
undue economic hardship as he deems fit. Exceptions granted under
this section may be limited by the Secretary in his discretion as
to time, area, or other factor of applicability.
(c) NOTICE AND REVIEW.-The Secretary shall publish notice in the
Federal Register of each application for an exemption or permit
which is made under this section. Each notice shall invite the
submission from interested parties, within thirty days after the
date of the notice, of written data, views, or arguments with
respect to the application; except that such thirty-day period
may be waived by the Secretary in an emergency situation where
the health or life of an endangered animal is threatened and no
reasonable alternative is available to the applicant, but notice
of any such waiver shall be published by the Secretary in the
Federal Register within ten days following the issuance of the
exemption or permit. Information received by the Secretary as
part of any application shall be available to the public as a
matter of public record at every stage of the proceeding.
(d) PERMIT AND EXEMPTION POLICY.-The Secretary may grant
exceptions under subsections (a)(1)(A) and (b) of this section
only if he finds and publishes his finding in the Federal
Register that
(1) such exceptions were applied for in good faith,
(2) if granted and exercised will not operate to the disadvantage
of such endangered spe- cies, and
(3) will be consistent with the purposes and policy set forth in
section 2 of this Act.
(e) ALASKA NATIVES.-
(1) Except as provided in paragraph (4) of this subsection the
provisions of this Act shall not apply with respect to the taking
of any endangered species or threatened species, or the
importation of any such species taken pursuant to this section,
by-
(A) any Indian, Aleut, or Eskimo who is an Alaskan Native who
resides in Alaska; or
(B) any non-native permanent resident of an 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 to natural materials, and which are produced, decorated
or fashioned in the exercise of traditional native handicrafts
without the use of pantographs, multiple carvers, or other mass
copying devices. Traditional native handicrafts include, but are
not limited to, 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 Act. Such regulations shall be prescribed
after a notice and hearings in the affected judicial districts of
Alaska and as otherwise required by section 103 of the Marine
Mammal Protection Act of 1972, and shall be removed as soon as
the Secretary determines that the need for their impositions has
disappeared.
(f)(1) As used in this subsection-
(A) The term "Pre-Act endangered species part" means-
(i) any sperm whale oil, including derivatives thereof, which was
lawfully held within the United States on December 28, 1973, in
the course of a commercial activity; or
(ii) any finished scrimshaw product, if such product or the raw
material for such product was lawfully held within the United
States on December 28, 1973, in the course of a commercial
activity.
(B) The term "scrimshaw product" means any art form
which involves the substantial etching or engraving of designs
upon, or the substantial carving of figures, patterns, or designs
from, any bone or tooth of any marine mammal of the order
Cetacea. For purposes of this subsection, polishing or the adding
of minor superficial markings does not constitute substantial
etching, engraving, or carving.
(2) The Secretary, pursuant to the provisions of this subsection,
may exempt, if such exemption is not in violation of the
Convention, any pre-Act endangered species part from one or more
of the following prohibitions:
(A) The prohibition on exportation from the United States set
forth in section 9(a)(1)(A) of this Act.
(B) Any prohibition set forth in section 9(a)(1) (E) or (F) of
this Act.
(3) Any person seeking an exemption described in paragraph (2) of
this subsection shall make application therefor to the Secretary
in such form and manner as he shall prescribe, but no such
application may be considered by the Secretary unless the
application-
(A) is received by the Secretary before the close of the 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 9(a) of this Act which is
exempted;
(B) the pre-Act endangered species parts to which the exemption
applies;
(C) the period of time during which the exemption is in effect,
but no exemption made under this subsection shall have force and
effect after the close of the three-year period beginning on the
date of issuance of the certificate unless such exemption is
renewed under paragraph (8); and
(D) any term or condition prescribed pursuant to paragraph (5)(A)
or (B), or both, which the Secretary deems necessary or
appropriate.
(5) The Secretary shall prescribe such regulations as he deems
necessary and appropriate to carry out the purposes of this
subsection. Such regulations may set forth-
(A) terms and conditions which may be imposed on applicants for
exemptions under this subsection (including, but not limited to,
requirements that applicants register inventories, keep complete
sales records, permit duly authorized agents of the Secretary to
inspect such inventories and records, and periodically file
appropriate reports with the Secretary); and
(B) terms and conditions which may be imposed on any subsequent
purchaser of any pre-Act endangered species part covered by an
exemption granted under this subsection; to insure that any such
part so exempted is adequately accounted for and not disposed of
contrary to the provisions of this Act. No regulation prescribed
by the Secretary to carry out the purposes of this subsection
shall be subject to section 4(f)(2)(A)(i) of this Act.
(6)(A) Any contract for the sale of pre-Act endangered species
parts which is entered into by the Administrator of General
Services prior to the effective date of this subsection and
pursuant to the notice published in the Federal Register on
January 9, 1973, shall not be rendered invalid by virtue of the
fact that fulfillment of such contract may be prohibited under
section 9(a)(1)(F).
(B) In the event that this paragraph is held invalid, the
validity of the remainder of the Act, including the remainder of
this subsection, shall not be affected.
(7) Nothing in this subsection shall be construed to-
(A) exonerate any person from any act committed in violation of
paragraphs (1)(A),
(1)(E), or (1)(F) of section 9(a) prior to the date of enactment
of this subsection; or
(B) immunize any person from prosecution for any such act.
(8)(A)(i) Any valid certificate of exemption which was renewed
after October 13, 1982, and was in effect on March 31, 1988,
shall be deemed to be renewed for a 6-month period beginning on
the date of enactment of the Endangered Species Act Amendments of
1988. Any person holding such a certificate may apply to the
Secretary for one additional renewal of such certificate for a
period not to exceed 5 years beginning on the date of such
enactment.
(B) If the Secretary approves any application for renewal of an
exemption under this paragraph, he shall issue to the applicant a
certificate of renewal of such exemption which shall provide that
all terms, conditions, prohibitions, and other regulations made
applicable by the previous certificate shall remain in effect
during the period of the renewal.
(C) No exemption or renewal of such exemption made under this
subsection shall have force and effect after the expiration date
of the certificate of renewal of such exemption issued under this
paragraph.
(D) No person may, after January 31, 1984, sell or offer for sale
in interstate or foreign commerce, any pre-Act finished scrimshaw
product unless such person holds a valid certificate of exemption
issued by the Secretary under this subsection, and unless such
product or the raw material for such product was held by such
person on October 13, 1982.
(g) In connection with any action alleging a violation of section
9, any person claiming the benefit of any exemption or permit
under this Act shall have the burden of proving that the
exemption or permit is applicable, has been granted, and was
valid and in force at the time of the alleged violation.
(h) CERTAIN ANTIQUE ARTICLES.-
(1) Sections 4(d), 9(a), and 9(c) do not apply to any article
which-
(A) is not less than 100 years of age;
(B) is composed in whole or in part of any endangered species or
threatened species listed under section 4;
(C) has not been repaired or modified with any Dart of any such
species on or after the date of the enactment of this Act; and
(D) is entered at a port designated under paragraph (3).
(2) Any person who wishes to import an article under the
exception provided by this subsection shall submit to the customs
officer concerned at the time of entry of the article such
documentation as the Secretary of the Treasury, after
consultation with the Secretary of the Interior, shall by
regulation require as being necessary to establish that the
article meets the requirements set forth in paragraph (1) (A),
(B), and (C).
(3) The Secretary of the Treasury, after consultation with the
Secretary of the Interior, shall designate one port within each
customs region at which articles described in paragraph
(1) (A), (B), and (C) must be entered into the customs territory
of the United States.
(4) Any person who imported, after December 27, 1973, and on or
before the date of the enactment of the Endangered Species Act
Amendments of 1978, any article described in paragraph (1) which-
(A) was not repaired or modified after the date of importation
with any part of any endangered species or threatened species
listed under section 4;
(B) was forfeited to the United States before such date of the
enactment, or is subject to forfeiture to the United States on
such date of enactment, pursuant to the assessment of a civil
penalty under section 11; and
(C) is in the custody of the United States on such date of
enactment; may, before the close of the one-year period beginning
on such date of enactment make application to the Secretary for
return of the article. Application shall be made in such form and
manner, and contain such documentation, as the Secretary
prescribes. If on the basis of any such application which is
timely filed, the Secretary is satisfied that the requirements of
this paragraph are met with respect to the article concerned, the
Secretary shall return the arti- cle to the applicant and the
importation of such article shall, on and after the date of
return, be deemed to be a lawful importation under this Act.
(i) NONCOMMERCIAL TRANSSHIPMENTS.-Any importation into the United
States of fish or wildlife shall, if-
(1) such fish or wildlife was lawfully taken and exported from
the country of origin and country of reexport, if any;
(2) such fish or wildlife is in transit or transshipment through
any place subject to the jurisdiction of the United States
enroute to a country where such fish or wildlife may be lawfully
imported and received;
(3) the exporter or owner of such fish or wildlife gave explicit
instructions not to ship such fish or wildlife through any place
subject to the jurisdiction of the United States, or did all that
could have reasonably been done to prevent transshipment, and the
circumstances leading to the transshipment were beyond the
exporter's or owner's control;
(4) the applicable requirements of the Convention have been
satisfied; and
(5) such importation is not made in the course of a commercial
activity, be an importation not in violation of any provision of
this Act or any regulation issued pursuant to this Act while such
fish or wildlife remains in the control of the United States
Customs Service.
(j) EXPERIMENTAL POPULATIONS.-
(1) For purposes of this subsection, the term "experimental
population" means any population (including any offspring
arising solely therefrom) authorized by the Secretary for release
under paragraph (2), but only when, and at such times as, the
population is wholly separate geographically from nonexperimental
populations of the same species.
(2)(A) The Secretary may authorize the release (and the related
transportation) of any population (including eggs, propagules, or
individuals) of an endangered species or a threatened species
outside the current range of such species if the Secretary
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 Act, each member of an experimental
population shall be treated as a threatened species; except that-
(i) solely for purposes of section 7 (other than subsection
(a)(1) thereof), an experimental population determined under
subparagraph (B) to be not essential to the continued existence
of a species shall be treated, except when it occurs in an area
within the National Wildlife Refuge System or the National Park
System, as a species proposed to be listed under section 4; and
(ii) critical habitat shall not be designated under this Act for
any experimental population determined under subparagraph (B) to
be not essential to the continued existence of a species.
(3) The Secretary, with respect to populations of endangered
species or threatened species that the Secretary authorized,
before the date of the enactment of this subsection, for release
in geographical areas separate from the other populations of such
species, shall de- termine by regulation which of such
populations are an experimental population for the purposes of
this subsection and whether or not each is essential to the
continued existence of an endangered species or a threatened
species.
PENALTIES AND ENFORCEMENT ^
SEC. 11.
(a) CIVIL PENALTIES.-
(1) Any person who knowingly violates, and any person engaged in
business as an importer or exporter of fish, wildlife, or plants
who violates, any provision of this Act, or any provision of any
permit or certificate issued hereunder, or of any regulation
issued in order to implement subsection (a)(1)(A), (B), (C), (D),
(E), or (F), (a)(2)(A), (B), (C), or (D), (c), (d) (other than
regulation relating to recordkeeping or filing of reports), (f),
or (g) of section 9 of this Act, may be assessed a civil penalty
by the Secretary of not more than $25,000 for each violation. Any
person who knowingly violates, and any person engaged in business
as an importer or exporter of fish, wildlife, or plants who
violates, any pro- vision of any other regulation issued under
this Act may be assessed a civil penalty by the Secretary of not
more than $12,000 for each such violation. Any person who
otherwise violates any provision of this Act, or any regulation,
permit, or certificate issued hereunder, may be assessed a civil
penalty by the Secretary of not more than $500 for each such
violation. No penalty may be assessed under this subsection
unless such person is given notice and opportunity for a hearing
with respect to such violation. Each violation shall be a
separate offense. Any such civil penalty may be remitted or
mitigated by the Secretary. Upon any failure to pay a penalty
assessed under this subsection, the Secretary may request the
Attorney General to institute a civil action in a district court
of the United States for any district in which such person is
found, resides, or transacts business to collect the penalty and
such court shall have jurisdiction to hear and decide any such
action. The court shall hear such action on the record made
before the Secretary and shall sustain his action if it is
supported by substantial evidence on the record considered as a
whole.
(2) Hearings held during proceedings for the assessment of civil
penalties by paragraph (1) of this subsection shall be conducted
in accordance with section 554 of title 5, United States Code.
The Secretary may issue subpoenas for the attendance and
testimony of witnesses and the production of relevant papers,
books, and documents, and administer oaths. Witnesses summoned
shall be paid the same fees and mileage that are paid to
witnesses in the courts of the United States. In case of
contumacy or refusal to obey a sub- poena served upon any person
pursuant to this paragraph, the district court of the United
States for any district in which such person is found or resides
or transacts business, upon application by the United States and
after notice to such person, shall have jurisdiction to issue an
order requiring such person to appear and give testimony before
the Secretary or to appear and produce documents before the
Secretary, or both, and any failure to obey such order of the
court may be punished by such court as a contempt thereof.
(3) Notwithstanding any other provision of this Act, no civil
penalty shall be imposed if it can be shown by a preponderance of
the evidence that the defendant committed an act based on a good
faith belief that he was acting to protect himself or herself, a
member of his or her family, or any other individual from bodily
harm, from any endangered or threatened species.
(b) CRIMINAL VIOLATIONS.-
(1) Any person who knowingly violates any provision of this Act,
of any permit or certificate issued hereunder, or of any
regulation issued in order to implement subsection (a)(1)(A),
(B), (C), (D), (E), or (F); (a)(2)(A), (B), (C), or (D), (c), (d)
(other than a regulation relating to recordkeeping, or filing of
reports), (f), or (g) of section 9 of this Act shall, upon
conviction, be fined not more than $50,000 or imprisoned for not
more than one year, or both. Any person who knowingly violates
any provision of any other regulation issued under this Act
shall, upon conviction, be fined not more than $25,000 or
imprisoned for not more than six months, or both.
(2) The head of any Federal agency which has issued a lease,
license, permit, or other agreement authorizing a person to
import or export fish, wildlife, or plants, or to operate a
quarantine station for imported wildlife, or authorizing the use
of Federal lands, including grazing of domestic livestock, to any
person who is convicted of a criminal violation of this Act or
any regulation, permit, or certificate issued hereunder may
immediately modify, suspend, or revoke each lease, license,
permit, or other agreement. The Secretary shall also suspend for
a period of up to one year, or cancel, any Federal hunting or
fishing permits or stamps issued to any person who is convicted
of a criminal violation of any provision of this Act or any
regulation, permit, or certificate issued hereunder. The Un
