-CITE- 16 USC CHAPTER 35 - ENDANGERED SPECIES 01/02/2006 -EXPCITE- TITLE 16 - CONSERVATION CHAPTER 35 - ENDANGERED SPECIES -HEAD- CHAPTER 35 - ENDANGERED SPECIES -MISC1- Sec. 1531. Congressional findings and declaration of purposes and policy. (a) Findings. (b) Purposes. (c) Policy. 1532. Definitions. 1533. Determination of endangered species and threatened species. (a) Generally. (b) Basis for determinations. (c) Lists. (d) Protective regulations. (e) Similarity of appearance cases. (f) Recovery plans. (g) Monitoring. (h) Agency guidelines; publication in Federal Register; scope; proposals and amendments: notice and opportunity for comments. (i) Submission to State agency of justification for regulations inconsistent with State agency's comments or petition. 1534. Land acquisition. (a) Implementation of conservation program; authorization of Secretary and Secretary of Agriculture. (b) Availability of funds for acquisition of lands, waters, etc. 1535. Cooperation with States. (a) Generally. (b) Management agreements. (c) Cooperative agreements. (d) Allocation of funds. (e) Review of State programs. (f) Conflicts between Federal and State laws. (g) Transition. (h) Regulations. (i) Appropriations. 1536. Interagency cooperation. (a) Federal agency actions and consultations. (b) Opinion of Secretary. (c) Biological assessment. (d) Limitation on commitment of resources. (e) Endangered Species Committee. (f) Promulgation of regulations; form and contents of exemption application. (g) Application for exemption; report to Committee. (h) Grant of exemption. (i) Review by Secretary of State; violation of international treaty or other international obligation of United States. (j) Exemption for national security reasons. (k) Exemption decision not considered major Federal action; environmental impact statement. (l) Committee order granting exemption; cost of mitigation and enhancement measures; report by applicant to Council on Environmental Quality. (m) Notice requirement for citizen suits not applicable. (n) Judicial review. (o) Exemption as providing exception on taking of endangered species. (p) Exemptions in Presidentially declared disaster areas. 1537. International cooperation. (a) Financial assistance. (b) Encouragement of foreign programs. (c) Personnel. (d) Investigations. 1537a. Convention implementation. (a) Management Authority and Scientific Authority. (b) Management Authority functions. (c) Scientific Authority functions; determinations. (d) Reservations by the United States under Convention. (e) Wildlife preservation in Western Hemisphere. 1538. Prohibited acts. (a) Generally. (b) Species held in captivity or controlled environment. (c) Violation of Convention. (d) Imports and exports. (e) Reports. (f) Designation of ports. (g) Violations. 1539. Exceptions. (a) Permits. (b) Hardship exemptions. (c) Notice and review. (d) Permit and exemption policy. (e) Alaska natives. (f) Pre-Act endangered species parts exemption; application and certification; regulation; validity of sales contract; separability; renewal of exemption; expiration of renewal certification. (g) Burden of proof. (h) Certain antique articles; importation; port designation; application for return of articles. (i) Noncommercial transshipments. (j) Experimental populations. 1540. Penalties and enforcement. (a) Civil penalties. (b) Criminal violations. (c) District court jurisdiction. (d) Rewards and incidental expenses. (e) Enforcement. (f) Regulations. (g) Citizen suits. (h) Coordination with other laws. 1541. Endangered plants. 1542. Authorization of appropriations. (a) In general. (b) Exemptions. (c) Convention implementation. 1543. Construction with Marine Mammal Protection Act of 1972. 1544. Annual cost analysis by Fish and Wildlife Service. -End- -CITE- 16 USC Sec. 1531 01/02/2006 -EXPCITE- TITLE 16 - CONSERVATION CHAPTER 35 - ENDANGERED SPECIES -HEAD- Sec. 1531. Congressional findings and declaration of purposes and policy -STATUTE- (a) Findings The Congress finds and declares that - (1) various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation; (2) other species of fish, wildlife, and plants have been so depleted in numbers that they are in danger of or threatened with extinction; (3) these species of fish, wildlife, and plants are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people; (4) the United States has pledged itself as a sovereign state in the international community to conserve to the extent practicable the various species of fish or wildlife and plants facing extinction, pursuant to - (A) migratory bird treaties with Canada and Mexico; (B) the Migratory and Endangered Bird Treaty with Japan; (C) the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere; (D) the International Convention for the Northwest Atlantic Fisheries; (E) the International Convention for the High Seas Fisheries of the North Pacific Ocean; (F) the Convention on International Trade in Endangered Species of Wild Fauna and Flora; and (G) other international agreements; and (5) encouraging the States and other interested parties, through Federal financial assistance and a system of incentives, to develop and maintain conservation programs which meet national and international standards is a key to meeting the Nation's international commitments and to better safeguarding, for the benefit of all citizens, the Nation's heritage in fish, wildlife, and plants. (b) Purposes The purposes of this chapter are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth in subsection (a) of this section. (c) Policy (1) It is further declared to be the policy of Congress that all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this chapter. (2) It is further declared to be the policy of Congress that Federal agencies shall cooperate with State and local agencies to resolve water resource issues in concert with conservation of endangered species. -SOURCE- (Pub. L. 93-205, Sec. 2, Dec. 28, 1973, 87 Stat. 884; Pub. L. 96- 159, Sec. 1, Dec. 28, 1979, 93 Stat. 1225; Pub. L. 97-304, Sec. 9(a), Oct. 13, 1982, 96 Stat. 1426; Pub. L. 100-478, title I, Sec. 1013(a), Oct. 7, 1988, 102 Stat. 2315.) -REFTEXT- REFERENCES IN TEXT This chapter, referred to in subsecs. (b) and (c)(1), was in the original "this Act", meaning Pub. L. 93-205, Dec. 28, 1973, 81 Stat. 884, as amended, known as the "Endangered Species Act of 1973", which is classified generally to this chapter. For complete classification of this Act to the Code, see Short Title note set out below and Tables. -MISC1- AMENDMENTS 1988 - Subsec. (a)(4)(G). Pub. L. 100-478 substituted "; and" for period at end. 1982 - Subsec. (c). Pub. L. 97-304 designated existing provisions as par. (1) and added par. (2). 1979 - Subsec. (a)(5). Pub. L. 96-159 substituted "wildlife, and plants" for "wildlife". EFFECTIVE DATE Section 16 of Pub. L. 93-205 provided that: "This Act [enacting this chapter, amending sections 460k-1, 460l-9, 668dd, 715i, 715s, 1362, 1371, 1372, and 1402 of this title and section 136 of Title 7, Agriculture, repealing sections 668aa to 668cc-6 of this title, and enacting provisions set out as notes under this section] shall take effect on the date of its enactment [Dec. 28, 1973]." SHORT TITLE OF 1982 AMENDMENT Section 1 of Pub. L. 97-304 provided: "That this Act [amending this section and sections 1532, 1533, 1535, 1536, 1537a, 1538, 1539, 1540, and 1542 of this title and enacting provisions set out as notes under sections 1533, 1537a, and 1539 of this title] may be cited as the 'Endangered Species Act Amendments of 1982'." SHORT TITLE OF 1978 AMENDMENT Pub. L. 95-632, Sec. 1, Nov. 10, 1978, 92 Stat. 3751, provided: "That this Act [amending sections 1532 to 1536, 1538 to 1540, and 1542 of this title] may be cited as the 'Endangered Species Act Amendments of 1978'." SHORT TITLE Section 1 of Pub. L. 93-205 provided: "That this Act [enacting this chapter, amending sections 460k-1, 460l-9, 668dd, 715i, 715s, 1362, 1371, 1372, and 1402 of this title and section 136 of Title 7, Agriculture, repealing sections 668aa to 668cc-6 of this title, and enacting provisions set out as notes under this section] may be cited as the 'Endangered Species Act of 1973'." RELATIONSHIP TO ENDANGERED SPECIES ACT OF 1973 Pub. L. 102-251, title III, Sec. 305, Mar. 9, 1992, 106 Stat. 66, as amended by Pub. L. 104-208, div. A, title I, Sec. 101(a) [title II, Sec. 211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009-41, provided that: "The special areas defined in section 3(24) of the Magnuson- Stevens Fishery Conservation and Management Act (16 U.S.C. 1802(24)) shall be considered places that are subject to the jurisdiction of the United States for the purposes of the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.)." -EXEC- MINIMIZATION OF CONFLICTS WITH RECREATIONAL FISHERIES For provision that all Federal agencies minimize conflicts between recreational fisheries and administration of this chapter, see Ex. Ord. No. 12962, Sec. 4, June 7, 1995, 60 F.R. 30770, set out as a note under section 1801 of this title. -End- -CITE- 16 USC Sec. 1532 01/02/2006 -EXPCITE- TITLE 16 - CONSERVATION CHAPTER 35 - ENDANGERED SPECIES -HEAD- Sec. 1532. Definitions -STATUTE- For the purpose of this chapter - (1) The term "alternative courses of action" means all alternatives and thus is not limited to original project objectives and agency jurisdiction. (2) The term "commercial activity" means all activities of industry and trade, including, but not limited to, the buying or selling of commodities and activities conducted for the purpose of facilitating such buying and selling: Provided, however, That it does not include exhibition of commodities by museums or similar cultural or historical organizations. (3) The terms "conserve", "conserving", and "conservation" mean to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking. (4) The term "Convention" means the Convention on International Trade in Endangered Species of Wild Fauna and Flora, signed on March 3, 1973, and the appendices thereto. (5)(A) The term "critical habitat" for a threatened or endangered species means - (i) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 1533 of this title, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 1533 of this title, upon a determination by the Secretary that such areas are essential for the conservation of the species. (B) Critical habitat may be established for those species now listed as threatened or endangered species for which no critical habitat has heretofore been established as set forth in subparagraph (A) of this paragraph. (C) Except in those circumstances determined by the Secretary, critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species. (6) The term "endangered species" means any species which is in danger of extinction throughout all or a significant portion of its range other than a species of the Class Insecta determined by the Secretary to constitute a pest whose protection under the provisions of this chapter would present an overwhelming and overriding risk to man. (7) The term "Federal agency" means any department, agency, or instrumentality of the United States. (8) The term "fish or wildlife" means any member of the animal kingdom, including without limitation any mammal, fish, bird (including any migratory, nonmigratory, or endangered bird for which protection is also afforded by treaty or other international agreement), amphibian, reptile, mollusk, crustacean, arthropod or other invertebrate, and includes any part, product, egg, or offspring thereof, or the dead body or parts thereof. (9) The term "foreign commerce" includes, among other things, any transaction - (A) between persons within one foreign country; (B) between persons in two or more foreign countries; (C) between a person within the United States and a person in a foreign country; or (D) between persons within the United States, where the fish and wildlife in question are moving in any country or countries outside the United States. (10) The term "import" means to land on, bring into, or introduce into, or attempt to land on, bring into, or introduce into, any place subject to the jurisdiction of the United States, whether or not such landing, bringing, or introduction constitutes an importation within the meaning of the customs laws of the United States. (11) Repealed. Pub. L. 97-304, Sec. 4(b), Oct. 13, 1982, 96 Stat. 1420. (12) The term "permit or license applicant" means, when used with respect to an action of a Federal agency for which exemption is sought under section 1536 of this title, any person whose application to such agency for a permit or license has been denied primarily because of the application of section 1536(a) of this title to such agency action. (13) The term "person" means an individual, corporation, partnership, trust, association, or any other private entity; or any officer, employee, agent, department, or instrumentality of the Federal Government, of any State, municipality, or political subdivision of a State, or of any foreign government; any State, municipality, or political subdivision of a State; or any other entity subject to the jurisdiction of the United States. (14) The term "plant" means any member of the plant kingdom, including seeds, roots and other parts thereof. (15) The term "Secretary" means, except as otherwise herein provided, the Secretary of the Interior or the Secretary of Commerce as program responsibilities are vested pursuant to the provisions of Reorganization Plan Numbered 4 of 1970; except that with respect to the enforcement of the provisions of this chapter and the Convention which pertain to the importation or exportation of terrestrial plants, the term also means the Secretary of Agriculture. (16) The term "species" includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature. (17) The term "State" means any of the several States, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin Islands, Guam, and the Trust Territory of the Pacific Islands. (18) The term "State agency" means any State agency, department, board, commission, or other governmental entity which is responsible for the management and conservation of fish, plant, or wildlife resources within a State. (19) The term "take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. (20) The term "threatened species" means any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. (21) The term "United States", when used in a geographical context, includes all States. -SOURCE- (Pub. L. 93-205, Sec. 3, Dec. 28, 1973, 87 Stat. 885; Pub. L. 94- 359, Sec. 5, July 12, 1976, 90 Stat. 913; Pub. L. 95-632, Sec. 2, Nov. 10, 1978, 92 Stat. 3751; Pub. L. 96-159, Sec. 2, Dec. 28, 1979, 93 Stat. 1225; Pub. L. 97-304, Sec. 4(b), Oct. 13, 1982, 96 Stat. 1420; Pub. L. 100-478, title I, Sec. 1001, Oct. 7, 1988, 102 Stat. 2306.) -REFTEXT- REFERENCES IN TEXT The customs laws of the United States, referred to in par. (10), are classified generally to Title 19, Customs Duties. Reorganization Plan Numbered 4 of 1970, referred to in par. (15), is Reorg. Plan No. 4 of 1970, eff. Oct. 3, 1970, 35 F.R. 15627, 84 Stat. 2090, which is set out in the Appendix to Title 5, Government Organization and Employees. -MISC1- AMENDMENTS 1988 - Par. (13). Pub. L. 100-478, Sec. 1001(a), amended par. (13) generally. Prior to amendment, par. (13) read as follows: "The term 'person' means an individual, corporation, partnership, trust, association, or any other private entity, or any officer, employee, agent, department, or instrumentality of the Federal Government, of any State or political subdivision thereof, or of any foreign government." Par. (15). Pub. L. 100-478, Sec. 1001(b), inserted "also" before "means the Secretary of Agriculture". 1982 - Par. (11). Pub. L. 97-304 struck out par. (11) which defined "irresolvable conflict" as, with respect to any action authorized, funded, or carried out by a Federal agency, a set of circumstances under which, after consultation as required in section 1536(a) of this title, completion of such action would violate section 1536(a)(2) of this title. 1979 - Par. (11). Pub. L. 96-159 substituted "action would violate section 1536(a)(2) of this title" for "action would (A) jeopardize the continued existence of an endangered or threatened species, or (B) result in the adverse modification or destruction of a critical habitat". 1978 - Pars. (1) to (4). Pub. L. 95-632, Sec. 2(1), (7), added par. (1) and redesignated former pars. (1) to (3) as (2) to (4), respectively. Former par. (4) redesignated (6). Par. (5). Pub. L. 95-632, Sec. 2(2), (7), added par. (5). Former par. (5) redesignated (8). Par. (6). Pub. L. 95-632, Sec. 2(7), redesignated former par. (4) as (6). Former par. (6) redesignated (9). Par. (7). Pub. L. 95-632, Sec. 2(3), (7), added par. (7). Former par. (7) redesignated (10). Pars. (8) to (10). Pub. L. 95-632, Sec. 2(7), redesignated former pars. (5) to (7) as (8) to (10), respectively. Former pars. (8) to (10) redesignated (13) to (15), respectively. Pars. (11), (12). Pub. L. 95-632, Sec. 2(4), (7), added pars. (11) and (12). Former pars. (11) and (12) redesignated (16) and (17), respectively. Pars. (13) to (15). Pub. L. 95-632, Sec. 2(7), redesignated former pars. (8) to (10) as (13) to (15), respectively. Former pars. (13) to (15) redesignated as (18) to (20), respectively. Par. (16). Pub. L. 95-632, Sec. 2(5), (7), redesignated former par. (11) as (16) and substituted "and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature" for "and any other group of fish or wildlife of the same species or smaller taxa in common spatial arrangement that interbreed when mature". Former par. (16) redesignated (21). Par. (17). Pub. L. 95-632, Sec. 2(7), redesignated former par. (12) as (17). Par. (18). Pub. L. 95-632, Sec. 2(6), (7), redesignated former par. (13) as (18) and substituted "fish, plant, or wildlife" for "fish or wildlife". Pars. (19) to (21). Pub. L. 95-632, Sec. 2(7), redesignated pars. (14) to (16) as (19) to (21), respectively. 1976 - Par. (1). Pub. L. 94-359 inserted ": Provided, however, That it does not include exhibition of commodities by museums or similar cultural or historical organizations." after "facilitating such buying and selling". -TRANS- TERMINATION OF TRUST TERRITORY OF THE PACIFIC ISLANDS For termination of Trust Territory of the Pacific Islands, see note set out preceding section 1681 of Title 48, Territories and Insular Possessions. -End- -CITE- 16 USC Sec. 1533 01/02/2006 -EXPCITE- TITLE 16 - CONSERVATION CHAPTER 35 - ENDANGERED SPECIES -HEAD- Sec. 1533. Determination of endangered species and threatened species -STATUTE- (a) Generally (1) The Secretary shall by regulation promulgated in accordance with subsection (b) of this section determine whether any species is an endangered species or a threatened species because of any of the following factors: (A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. (2) With respect to any species over which program responsibilities have been vested in the Secretary of Commerce pursuant to Reorganization Plan Numbered 4 of 1970 - (A) in any case in which the Secretary of Commerce determines that such species should - (i) be listed as an endangered species or a threatened species, or (ii) be changed in status from a threatened species to an endangered species, he shall so inform the Secretary of the Interior; who shall list such species in accordance with this section; (B) in any case in which the Secretary of Commerce determines that such species should - (i) be removed from any list published pursuant to subsection (c) of this section, or (ii) be changed in status from an endangered species to a threatened species, he shall recommend such action to the Secretary of the Interior, and the Secretary of the Interior, if he concurs in the recommendation, shall implement such action; and (C) the Secretary of the Interior may not list or remove from any list any such species, and may not change the status of any such species which are listed, without a prior favorable determination made pursuant to this section by the Secretary of Commerce. (3)(A) The Secretary, by regulation promulgated in accordance with subsection (b) of this section and to the maximum extent prudent and determinable - (i) shall, concurrently with making a determination under paragraph (1) that a species is an endangered species or a threatened species, designate any habitat of such species which is then considered to be critical habitat; and (ii) may, from time-to-time thereafter as appropriate, revise such designation. (B)(i) The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan prepared under section 670a of this title, if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation. (ii) Nothing in this paragraph affects the requirement to consult under section 1536(a)(2) of this title with respect to an agency action (as that term is defined in that section). (iii) Nothing in this paragraph affects the obligation of the Department of Defense to comply with section 1538 of this title, including the prohibition preventing extinction and taking of endangered species and threatened species. (b) Basis for determinations (1)(A) The Secretary shall make determinations required by subsection (a)(1) of this section solely on the basis of the best scientific and commercial data available to him after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices, within any area under its jurisdiction; or on the high seas. (B) In carrying out this section, the Secretary shall give consideration to species which have been - (i) designated as requiring protection from unrestricted commerce by any foreign nation, or pursuant to any international agreement; or (ii) identified as in danger of extinction, or likely to become so within the foreseeable future, by any State agency or by any agency of a foreign nation that is responsible for the conservation of fish or wildlife or plants. (2) The Secretary shall designate critical habitat, and make revisions thereto, under subsection (a)(3) of this section on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned. (3)(A) To the maximum extent practicable, within 90 days after receiving the petition of an interested person under section 553(e) of title 5, to add a species to, or to remove a species from, either of the lists published under subsection (c) of this section, the Secretary shall make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted. If such a petition is found to present such information, the Secretary shall promptly commence a review of the status of the species concerned. The Secretary shall promptly publish each finding made under this subparagraph in the Federal Register. (B) Within 12 months after receiving a petition that is found under subparagraph (A) to present substantial information indicating that the petitioned action may be warranted, the Secretary shall make one of the following findings: (i) The petitioned action is not warranted, in which case the Secretary shall promptly publish such finding in the Federal Register. (ii) The petitioned action is warranted, in which case the Secretary shall promptly publish in the Federal Register a general notice and the complete text of a proposed regulation to implement such action in accordance with paragraph (5). (iii) The petitioned action is warranted, but that - (I) the immediate proposal and timely promulgation of a final regulation implementing the petitioned action in accordance with paragraphs (5) and (6) is precluded by pending proposals to determine whether any species is an endangered species or a threatened species, and (II) expeditious progress is being made to add qualified species to either of the lists published under subsection (c) of this section and to remove from such lists species for which the protections of this chapter are no longer necessary, in which case the Secretary shall promptly publish such finding in the Federal Register, together with a description and evaluation of the reasons and data on which the finding is based. (C)(i) A petition with respect to which a finding is made under subparagraph (B)(iii) shall be treated as a petition that is resubmitted to the Secretary under subparagraph (A) on the date of such finding and that presents substantial scientific or commercial information that the petitioned action may be warranted. (ii) Any negative finding described in subparagraph (A) and any finding described in subparagraph (B)(i) or (iii) shall be subject to judicial review. (iii) The Secretary shall implement a system to monitor effectively the status of all species with respect to which a finding is made under subparagraph (B)(iii) and shall make prompt use of the authority under paragraph 7 (!1) to prevent a significant risk to the well being of any such species. (D)(i) To the maximum extent practicable, within 90 days after receiving the petition of an interested person under section 553(e) of title 5, to revise a critical habitat designation, the Secretary shall make a finding as to whether the petition presents substantial scientific information indicating that the revision may be warranted. The Secretary shall promptly publish such finding in the Federal Register. (ii) Within 12 months after receiving a petition that is found under clause (i) to present substantial information indicating that the requested revision may be warranted, the Secretary shall determine how he intends to proceed with the requested revision, and shall promptly publish notice of such intention in the Federal Register. (4) Except as provided in paragraphs (5) and (6) of this subsection, the provisions of section 553 of title 5 (relating to rulemaking procedures), shall apply to any regulation promulgated to carry out the purposes of this chapter. (5) With respect to any regulation proposed by the Secretary to implement a determination, designation, or revision referred to in subsection (a)(1) or (3) of this section, the Secretary shall - (A) not less than 90 days before the effective date of the regulation - (i) publish a general notice and the complete text of the proposed regulation in the Federal Register, and (ii) give actual notice of the proposed regulation (including the complete text of the regulation) to the State agency in each State in which the species is believed to occur, and to each county, or equivalent jurisdiction in which the species is believed to occur, and invite the comment of such agency, and each such jurisdiction, thereon; (B) insofar as practical, and in cooperation with the Secretary of State, give notice of the proposed regulation to each foreign nation in which the species is believed to occur or whose citizens harvest the species on the high seas, and invite the comment of such nation thereon; (C) give notice of the proposed regulation to such professional scientific organizations as he deems appropriate; (D) publish a summary of the proposed regulation in a newspaper of general circulation in each area of the United States in which the species is believed to occur; and (E) promptly hold one public hearing on the proposed regulation if any person files a request for such a hearing within 45 days after the date of publication of general notice. (6)(A) Within the one-year period beginning on the date on which general notice is published in accordance with paragraph (5)(A)(i) regarding a proposed regulation, the Secretary shall publish in the Federal Register - (i) if a determination as to whether a species is an endangered species or a threatened species, or a revision of critical habitat, is involved, either - (I) a final regulation to implement such determination, (II) a final regulation to implement such revision or a finding that such revision should not be made, (III) notice that such one-year period is being extended under subparagraph (B)(i), or (IV) notice that the proposed regulation is being withdrawn under subparagraph (B)(ii), together with the finding on which such withdrawal is based; or (ii) subject to subparagraph (C), if a designation of critical habitat is involved, either - (I) a final regulation to implement such designation, or (II) notice that such one-year period is being extended under such subparagraph. (B)(i) If the Secretary finds with respect to a proposed regulation referred to in subparagraph (A)(i) that there is substantial disagreement regarding the sufficiency or accuracy of the available data relevant to the determination or revision concerned, the Secretary may extend the one-year period specified in subparagraph (A) for not more than six months for purposes of soliciting additional data. (ii) If a proposed regulation referred to in subparagraph (A)(i) is not promulgated as a final regulation within such one-year period (or longer period if extension under clause (i) applies) because the Secretary finds that there is not sufficient evidence to justify the action proposed by the regulation, the Secretary shall immediately withdraw the regulation. The finding on which a withdrawal is based shall be subject to judicial review. The Secretary may not propose a regulation that has previously been withdrawn under this clause unless he determines that sufficient new information is available to warrant such proposal. (iii) If the one-year period specified in subparagraph (A) is extended under clause (i) with respect to a proposed regulation, then before the close of such extended period the Secretary shall publish in the Federal Register either a final regulation to implement the determination or revision concerned, a finding that the revision should not be made, or a notice of withdrawal of the regulation under clause (ii), together with the finding on which the withdrawal is based. (C) A final regulation designating critical habitat of an endangered species or a threatened species shall be published concurrently with the final regulation implementing the determination that such species is endangered or threatened, unless the Secretary deems that - (i) it is essential to the conservation of such species that the regulation implementing such determination be promptly published; or (ii) critical habitat of such species is not then determinable, in which case the Secretary, with respect to the proposed regulation to designate such habitat, may extend the one-year period specified in subparagraph (A) by not more than one additional year, but not later than the close of such additional year the Secretary must publish a final regulation, based on such data as may be available at that time, designating, to the maximum extent prudent, such habitat. (7) Neither paragraph (4), (5), or (6) of this subsection nor section 553 of title 5 shall apply to any regulation issued by the Secretary in regard to any emergency posing a significant risk to the well-being of any species of fish or wildlife or plants, but only if - (A) at the time of publication of the regulation in the Federal Register the Secretary publishes therein detailed reasons why such regulation is necessary; and (B) in the case such regulation applies to resident species of fish or wildlife, or plants, the Secretary gives actual notice of such regulation to the State agency in each State in which such species is believed to occur. Such regulation shall, at the discretion of the Secretary, take effect immediately upon the publication of the regulation in the Federal Register. Any regulation promulgated under the authority of this paragraph shall cease to have force and effect at the close of the 240-day period following the date of publication unless, during such 240-day period, the rulemaking procedures which would apply to such regulation without regard to this paragraph are complied with. If at any time after issuing an emergency regulation the Secretary determines, on the basis of the best appropriate data available to him, that substantial evidence does not exist to warrant such regulation, he shall withdraw it. (8) The publication in the Federal Register of any proposed or final regulation which is necessary or appropriate to carry out the purposes of this chapter shall include a summary by the Secretary of the data on which such regulation is based and shall show the relationship of such data to such regulation; and if such regulation designates or revises critical habitat, such summary shall, to the maximum extent practicable, also include a brief description and evaluation of those activities (whether public or private) which, in the opinion of the Secretary, if undertaken may adversely modify such habitat, or may be affected by such designation. (c) Lists (1) The Secretary of the Interior shall publish in the Federal Register a list of all species determined by him or the Secretary of Commerce to be endangered species and a list of all species determined by him or the Secretary of Commerce to be threatened species. Each list shall refer to the species contained therein by scientific and common name or names, if any, specify with respect to each such species over what portion of its range it is endangered or threatened, and specify any critical habitat within such range. The Secretary shall from time to time revise each list published under the authority of this subsection to reflect recent determinations, designations, and revisions made in accordance with subsections (a) and (b) of this section. (2) The Secretary shall - (A) conduct, at least once every five years, a review of all species included in a list which is published pursuant to paragraph (1) and which is in effect at the time of such review; and (B) determine on the basis of such review whether any such species should - (i) be removed from such list; (ii) be changed in status from an endangered species to a threatened species; or (iii) be changed in status from a threatened species to an endangered species. Each determination under subparagraph (B) shall be made in accordance with the provisions of subsections (a) and (b) of this section. (d) Protective regulations Whenever any species is listed as a threatened species pursuant to subsection (c) of this section, the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species. The Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 1538(a)(1) of this title, in the case of fish or wildlife, or section 1538(a)(2) of this title, in the case of plants, with respect to endangered species; except that with respect to the taking of resident species of fish or wildlife, such regulations shall apply in any State which has entered into a cooperative agreement pursuant to section 1535(c) of this title only to the extent that such regulations have also been adopted by such State. (e) Similarity of appearance cases The Secretary may, by regulation of commerce or taking, and to the extent he deems advisable, treat any species as an endangered species or threatened species even though it is not listed pursuant to this section if he finds that - (A) such species so closely resembles in appearance, at the point in question, a species which has been listed pursuant to such section that enforcement personnel would have substantial difficulty in attempting to differentiate between the listed and unlisted species; (B) the effect of this substantial difficulty is an additional threat to an endangered or threatened species; and (C) such treatment of an unlisted species will substantially facilitate the enforcement and further the policy of this chapter. (f) Recovery plans (1) The Secretary shall develop and implement plans (hereinafter in this subsection referred to as "recovery plans") for the conservation and survival of endangered species and threatened species listed pursuant to this section, unless he finds that such a plan will not promote the conservation of the species. The Secretary, in developing and implementing recovery plans, shall, to the maximum extent practicable - (A) give priority to those endangered species or threatened species, without regard to taxonomic classification, that are most likely to benefit from such plans, particularly those species that are, or may be, in conflict with construction or other development projects or other forms of economic activity; (B) incorporate in each plan - (i) a description of such site-specific management actions as may be necessary to achieve the plan's goal for the conservation and survival of the species; (ii) objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of this section, that the species be removed from the list; and (iii) estimates of the time required and the cost to carry out those measures needed to achieve the plan's goal and to achieve intermediate steps toward that goal. (2) The Secretary, in developing and implementing recovery plans, may procure the services of appropriate public and private agencies and institutions, and other qualified persons. Recovery teams appointed pursuant to this subsection shall not be subject to the Federal Advisory Committee Act. (3) The Secretary shall report every two years to the Committee on Environment and Public Works of the Senate and the Committee on Merchant Marine and Fisheries of the House of Representatives on the status of efforts to develop and implement recovery plans for all species listed pursuant to this section and on the status of all species for which such plans have been developed. (4) The Secretary shall, prior to final approval of a new or revised recovery plan, provide public notice and an opportunity for public review and comment on such plan. The Secretary shall consider all information presented during the public comment period prior to approval of the plan. (5) Each Federal agency shall, prior to implementation of a new or revised recovery plan, consider all information presented during the public comment period under paragraph (4). (g) Monitoring (1) The Secretary shall implement a system in cooperation with the States to monitor effectively for not less than five years the status of all species which have recovered to the point at which the measures provided pursuant to this chapter are no longer necessary and which, in accordance with the provisions of this section, have been removed from either of the lists published under subsection (c) of this section. (2) The Secretary shall make prompt use of the authority under paragraph 7 (!2) of subsection (b) of this section to prevent a significant risk to the well being of any such recovered species. (h) Agency guidelines; publication in Federal Register; scope; proposals and amendments: notice and opportunity for comments The Secretary shall establish, and publish in the Federal Register, agency guidelines to insure that the purposes of this section are achieved efficiently and effectively. Such guidelines shall include, but are not limited to - (1) procedures for recording the receipt and the disposition of petitions submitted under subsection (b)(3) of this section; (2) criteria for making the findings required under such subsection with respect to petitions; (3) a ranking system to assist in the identification of species that should receive priority review under subsection (a)(1) of this section; and (4) a system for developing and implementing, on a priority basis, recovery plans under subsection (f) of this section. The Secretary shall provide to the public notice of, and opportunity to submit written comments on, any guideline (including any amendment thereto) proposed to be established under this subsection. (i) Submission to State agency of justification for regulations inconsistent with State agency's comments or petition If, in the case of any regulation proposed by the Secretary under the authority of this section, a State agency to which notice thereof was given in accordance with subsection (b)(5)(A)(ii) of this section files comments disagreeing with all or part of the proposed regulation, and the Secretary issues a final regulation which is in conflict with such comments, or if the Secretary fails to adopt a regulation pursuant to an action petitioned by a State agency under subsection (b)(3) of this section, the Secretary shall submit to the State agency a written justification for his failure to adopt regulations consistent with the agency's comments or petition. -SOURCE- (Pub. L. 93-205, Sec. 4, Dec. 28, 1973, 87 Stat. 886; Pub. L. 94- 359, Sec. 1, July 12, 1976, 90 Stat. 911; Pub. L. 95-632, Secs. 11, 13, Nov. 10, 1978, 92 Stat. 3764, 3766; Pub. L. 96-159, Sec. 3, Dec. 28, 1979, 93 Stat. 1225; Pub. L. 97-304, Sec. 2(a), Oct. 13, 1982, 96 Stat. 1411; Pub. L. 100-478, title I, Secs. 1002-1004, Oct. 7, 1988, 102 Stat. 2306, 2307; Pub. L. 108-136, div. A, title III, Sec. 318, Nov. 24, 2003, 117 Stat. 1433.) -REFTEXT- REFERENCES IN TEXT Reorganization Plan Numbered 4 of 1970, referred to in subsec. (a)(2), is Reorg. Plan No. 4 of 1970, eff. Oct. 3, 1970, 35 F.R. 15627, 84 Stat. 2090, which is set out in the Appendix to Title 5, Government Organization and Employees. The Federal Advisory Committee Act, referred to in subsec. (f)(2), is Pub. L. 92-463, Oct. 6, 1972, 86 Stat. 770, as amended, which is set out in the Appendix to Title 5. -MISC1- AMENDMENTS 2003 - Subsec. (a)(3). Pub. L. 108-136, Sec. 318(a), designated existing provisions as subpar. (A), redesignated former subpars. (A) and (B) as cls. (i) and (ii), respectively, and added subpar. (B). Subsec. (b)(2). Pub. L. 108-136, Sec. 318(b), inserted "the impact on national security," after "the economic impact,". 1988 - Subsec. (b)(3)(C)(iii). Pub. L. 100-478, Sec. 1002(a), added subcl. (iii). Subsec. (e). Pub. L. 100-478, Sec. 1002(b), substituted "regulation of commerce or taking," for "regulation," in introductory provisions. Subsec. (f). Pub. L. 100-478, Sec. 1003, amended subsec. (f) generally. Prior to amendment, subsec. (f) read as follows: "The Secretary shall develop and implement plans (hereinafter in this subsection referred to as 'recovery plans') for the conservation and survival of endangered species and threatened species listed pursuant to this section, unless he finds that such a plan will not promote the conservation of the species. The Secretary, in developing and implementing recovery plans (1) shall, to the maximum extent practicable, give priority to those endangered species or threatened species most likely to benefit from such plans, particularly those species that are, or may be, in conflict with construction or other developmental projects or other forms of economic activity, and (2) may procure the services of appropriate public and private agencies and institutions, and other qualified persons. Recovery teams appointed pursuant to this subsection shall not be subject to the Federal Advisory Committee Act." Subsecs. (g) to (i). Pub. L. 100-478, Sec. 1004, added subsec. (g) and redesignated former subsecs. (g) and (h) as (h) and (i), respectively. 1982 - Subsec. (a)(1). Pub. L. 97-304, Sec. 2(a)(1)(B), (D), inserted "promulgated in accordance with subsection (b) of this section" after "shall by regulation" in introductory provisions preceding subpar. (A), and struck out provision following subpar. (E), which directed the Secretary, at the time regulations were proposed, to specify any habitat of a species considered to be a critical habitat but that such specification of critical habitats not apply to species listed prior to Nov. 10, 1978. Subsec. (a)(1)(A). Pub. L. 97-304, Sec. 2(a)(1)(A), redesignated subpar. (1) as (A). Subsec. (a)(1)(B). Pub. L. 97-304, Sec. 2(a)(1)(A), (C), redesignated subpar. (2) as (B) and substituted "recreational," for "sporting,". Subsec. (a)(1)(C) to (E). Pub. L. 97-304, Sec. 2(a)(1)(A), redesignated subpars. (3), (4), and (5) as (C), (D), and (E), respectively. Subsec. (a)(3). Pub. L. 97-304, Sec. 2(a)(1)(E), added par. (3). Subsec. (b). Pub. L. 97-304, Sec. 2(a)(2), completely revised subsec. (b) by, among other changes, requiring the Secretary to base determinations regarding the listing or delisting of species "solely" on the basis of the best scientific and commercial data available, streamlining the listing process by reducing the time periods for rulemaking, consolidating public meetings and hearing requirements, and establishing virtually identical procedures for the listing and delisting of species and for the designation of critical habitat, and altering the evidentiary standard which petitioners must satisfy to warrant a status review of the species proposed for listing or delisting. Subsec. (c)(1). Pub. L. 97-304, Sec. 2(a)(3)(A), struck out ", and from time to time he may by regulation revise," after "Federal Register" and inserted provision directing the Secretary to revise from time to time each list published under the authority of this subsection to reflect recent determinations, designations, and revisions made in accordance with subsections (a) and (b) of this section. Subsec. (c)(2). Pub. L. 97-304, Sec. 2(a)(3)(B), (C), redesignated par. (4) as (2). Former par. (2), directing the Secretary, within 90 days of the receipt of the petition of an interested person under section 553(e) of title 5, to conduct and publish in the Federal Register a review of the status of any listed or unlisted species proposed to be removed from or added to either of the lists published pursuant to paragraph (1) of this subsection, but only if he made and published a finding that such person had presented substantial evidence which in his judgment warranted such a review, was struck out. Subsec. (c)(3). Pub. L. 97-304, Sec. 2(a)(3)(B), struck out par. (3) which had provided that any list in effect on Dec. 27, 1973, of species of fish or wildlife determined by the Secretary of the Interior, pursuant to the Endangered Species Conservation Act of 1969, to be threatened with extinction be republished to conform to the classification for endangered species or threatened species, as the case might be, provided for in this chapter, but until such republication, any such species so listed was to be deemed an endangered species within the meaning of this chapter, and that the republication of any species pursuant to this paragraph did not require public hearing or comment under section 553 of title 5. Subsec. (c)(4). Pub. L. 97-304, Sec. 2(a)(3)(C), redesignated par. (4) as (2). Subsec. (d). Pub. L. 97-304, Sec. 2(a)(4)(A), substituted "section 1535(c) of this title" for "section 1535(a) of this title". Subsec. (f). Pub. L. 97-304, Sec. 2(a)(4)(B), (C), (D), redesignated subsec. (g) as (f) and substituted "recovery plans (1) shall, to the maximum extent practicable, give priority to those endangered species or threatened species most likely to benefit from such plans, particularly those species that are, or may be, in conflict with construction or other developmental projects or other forms of economic activity, and (2)" for "recovery plans,". Former subsec. (f), relating to the promulgation of regulations, was struck out. Subsec. (g). Pub. L. 97-304, Sec. 2(a)(4)(C), (E), redesignated subsec. (h) as (g), substituted reference to subsection (b)(3) of this section for reference to subsection (c)(2) of this section in par. (1), substituted "under subsection (a)(1) of this section" for "for listing" in par. (3), and substituted "subsection (f) of this section" for "subsection (g) of this section" in par. (4). Former subsec. (g) redesignated (f). Subsec. (h). Pub. L. 97-304, Sec. 2(a)(4)(C), (F), added subsec. (h) and redesignated former subsec. (h) as (g). 1979 - Subsec. (b)(1). Pub. L. 96-159, Sec. 3(1), required the Secretary's determinations to be preceded with a review of the status of the species. Subsec. (f)(2)(B)(i). Pub. L. 96-159, Sec. 3(2), required publication of summary of text rather than of the complete text of proposed regulation specifying any critical habitat and inclusion of a map of the proposed critical habitat. Subsec. (f)(2)(B)(iv)(II). Pub. L. 96-159, Sec. 3(3), substituted "if requested within 15 days after the date on which the public meeting is conducted," for "if requested,". Subsec. (f)(2)(C). Pub. L. 96-159, Sec. 3(4), (5), inserted in introductory text ", subsection (b)(4) of this section,"; and in cl. (ii), included reference to significant risk to wellbeing of any species of plants, inserted in item (II) reference to regulation applicable to resident species of plants, extended the statutory period to a "240-day period" from a "120-day period", and provided for withdrawal of an emergency regulation without substantial evidence to warrant it, respectively. Subsec. (h). Pub. L. 96-159, Sec. 3(6), added subsec. (h). 1978 - Subsec. (a)(1). Pub. L. 95-632, Sec. 11(1), inserted provision requiring the Secretary, at the time a regulation is proposed, to specify by regulation any habitat of the species involved which is considered a critical habitat providing the species was listed subsequent to Nov. 10, 1978. Subsec. (b)(4). Pub. L. 95-632, Sec. 11(7), added par. (4). Subsec. (c)(1). Pub. L. 95-632, Sec. 11(2), struck out "and shall" after "if any" and inserted ", and specify any critical habitat within such range" after "endangered or threatened". Subsec. (c)(2). Pub. L. 95-632, Sec. 11(6), substituted "within 90 days of the receipt of" for "upon" and "conduct and publish in the Federal Register a review of the status of" for "conduct a review of" and inserted a provision requiring that the review and findings be made and published prior to initiation of any procedures under subsec. (b)(1) of this section. Subsec. (c)(4). Pub. L. 95-632, Sec. 11(3), added par. (4). Subsec. (f)(2)(A). Pub. L. 95-632, Sec. 11(4)(A), substituted "Except as provided in subparagraph (B), in" for "In". Subsec. (f)(2)(B), (C). Pub. L. 95-632, Sec. 11(4)(B), (C), added subpar. (B), redesignated former subpar. (B) as (C), and as so redesignated, substituted "Neither subparagraph (A) or (B)" for "Neither subparagraph (A)". Subsec. (f)(3). Pub. L. 95-632, Sec. 13, substituted "a summary by the Secretary of the data on which such regulation is based and shall show the relationship of such data to such regulations" for "a statement by the Secretary of the facts on which such regulation is based and the relationship of such facts to such regulation". Subsec. (f)(4), (5). Pub. L. 95-632, Sec. 11(4)(D), added pars. (4) and (5). Subsec. (g). Pub. L. 95-632, Sec. 11(5), added subsec. (g). 1976 - Subsec. (f)(2)(B)(ii). Pub. L. 94-359 substituted "subsection (b)(1)(A)" for "subsection (b)(A), (B), and (C)". EFFECTIVE DATE OF 1982 AMENDMENT Section 2(b) of Pub. L. 97-304 provided that: "(1) Any petition filed under section 4(c)(2) of the Endangered Species Act of 1973 [subsec. (c)(2) of this section] (as in effect on the day before the date of the enactment of this Act [Oct. 13, 1982]) and any regulation proposed under section 4(f) of such Act of 1973 [subsec. (f) of this section] (as in effect on such day) that is pending on such date of enactment [Oct. 13, 1982] shall be treated as having been filed or proposed on such date of enactment under section 4(b) of such Act of 1973 [subsec. (b) of this section] (as amended by subsection (a)); and the procedural requirements specified in such section 4(b) [subsec. (b) of this section] (as so amended) regarding such petition or proposed regulation shall be deemed to be complied with to the extent that like requirements under such section 4 [this section] (as in effect before the date of the enactment of this Act) were complied with before such date of enactment. "(2) Any regulation proposed after, or pending on, the date of the enactment of this Act [Oct. 13, 1982] to designate critical habitat for a species that was determined before such date of enactment to be endangered or threatened shall be subject to the procedures set forth in section 4 of such Act of 1973 [this section] (as amended by subsection (a)) for regulations proposing revisions to critical habitat instead of those for regulations proposing the designation of critical habitat. "(3) Any list of endangered species or threatened species (as in effect under section 4(c) of such Act of 1973 [subsec. (c) of this section] on the day before the date of the enactment of this Act [Oct. 13, 1982]) shall remain in effect unless and until determinations regarding species and designations and revisions of critical habitats that require changes to such list are made in accordance with subsection (b)(5) of such Act of 1973 [subsec. (b)(5) of this section] (as added by subsection (a)). "(4) Section 4(a)(3)(A) of such Act of 1973 [subsec. (a)(3)(A) of this section] (as added by subsection (a)) shall not apply with respect to any species which was listed as an endangered species or a threatened species before November 10, 1978." -TRANS- ABOLITION OF HOUSE COMMITTEE ON MERCHANT MARINE AND FISHERIES Committee on Merchant Marine and Fisheries of House of Representatives abolished and its jurisdiction transferred by House Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. Committee on Merchant Marine and Fisheries of House of Representatives treated as referring to Committee on Resources of House of Representatives in case of provisions relating to fisheries, wildlife, international fishing agreements, marine affairs (including coastal zone management) except for measures relating to oil and other pollution of navigable waters, or oceanography by section 1(b)(3) of Pub. L. 104-14, set out as a note preceding section 21 of Title 2, The Congress. -FOOTNOTE- (!1) So in original. Probably should be paragraph "(7)". (!2) So in original. Probably should be paragraph "(7)". -End- -CITE- 16 USC Sec. 1534 01/02/2006 -EXPCITE- TITLE 16 - CONSERVATION CHAPTER 35 - ENDANGERED SPECIES -HEAD- Sec. 1534. Land acquisition -STATUTE- (a) Implementation of conservation program; authorization of Secretary and Secretary of Agriculture The Secretary, and the Secretary of Agriculture with respect to the National Forest System, shall establish and implement a program to conserve fish, wildlife, and plants, including those which are listed as endangered species or threatened species pursuant to section 1533 of this title. To carry out such a program, the appropriate Secretary - (1) shall utilize the land acquisition and other authority under the Fish and Wildlife Act of 1956, as amended [16 U.S.C. 742a et seq.], the Fish and Wildlife Coordination Act, as amended [16 U.S.C. 661 et seq.], and the Migratory Bird Conservation Act [16 U.S.C. 715 et seq.], as appropriate; and (2) is authorized to acquire by purchase, donation, or otherwise, lands, waters, or interest therein, and such authority shall be in addition to any other land acquisition authority vested in him. (b) Availability of funds for acquisition of lands, waters, etc. Funds made available pursuant to the Land and Water Conservation Fund Act of 1965, as amended [16 U.S.C. 460l-4 et seq.], may be used for the purpose of acquiring lands, waters, or interests therein under subsection (a) of this section. -SOURCE- (Pub. L. 93-205, Sec. 5, Dec. 28, 1973, 87 Stat. 889; Pub. L. 95- 632, Sec. 12, Nov. 10, 1978, 92 Stat. 3766.) -REFTEXT- REFERENCES IN TEXT The Fish and Wildlife Act of 1956, as amended, referred to in subsec. (a)(1), is act Aug. 8, 1956, ch. 1036, 70 Stat. 119, as amended, which is classified generally to sections 742a to 742d and 742e to 742j-2 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 742a of this title and Tables. The Fish and Wildlife Coordination Act, as amended, referred to in subsec. (a)(1), is act Mar. 10, 1934, ch. 55, 48 Stat. 401, as amended, which is classified generally to sections 661 to 666c of this title. For complete classification of this Act to the Code, see Short Title note set out under section 661 of this title and Tables. The Migratory Bird Conservation Act, referred to in subsec. (a)(1), is act Feb. 18, 1929, ch. 257, 45 Stat. 1222, as amended, which is classified generally to subchapter III (Sec. 715 et seq.) of chapter 7 of this title. For complete classification of this Act to the Code, see section 715 of this title and Tables. The Land and Water Conservation Fund Act of 1965, as amended, referred to in subsec. (b), is Pub. L. 88-578, Sept. 3, 1964, 78 Stat. 897, as amended, which is classified generally to part B (Sec. 460l-4 et seq.) of subchapter LXIX of chapter 1 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 460l-4 of this title and Tables. -MISC1- AMENDMENTS 1978 - Subsec. (a). Pub. L. 95-632, among other changes in text preceding par. (1), inserted reference to the Secretary of Agriculture with respect to the National Forest System and substituted the establishment and implementation of a plan to conserve plants for the establishment and implementation of a plan to conserve plants which were concluded in Appendices to the Convention. -End- -CITE- 16 USC Sec. 1535 01/02/2006 -EXPCITE- TITLE 16 - CONSERVATION CHAPTER 35 - ENDANGERED SPECIES -HEAD- Sec. 1535. Cooperation with States -STATUTE- (a) Generally In carrying out the program authorized by this chapter, the Secretary shall cooperate to the maximum extent practicable with the States. Such cooperation shall include consultation with the States concerned before acquiring any land or water, or interest therein, for the purpose of conserving any endangered species or threatened species. (b) Management agreements The Secretary may enter into agreements with any State for the administration and management of any area established for the conservation of endangered species or threatened species. Any revenues derived from the administration of such areas under these agreements shall be subject to the provisions of section 715s of this title. (c) Cooperative agreements (1) In furtherance of the purposes of this chapter, the Secretary is authorized to enter into a cooperative agreement in accordance with this section with any State which establishes and maintains an adequate and active program for the conservation of endangered species and threatened species. Within one hundred and twenty days after the Secretary receives a certified copy of such a proposed State program, he shall make a determination whether such program is in accordance with this chapter. Unless he determines, pursuant to this paragraph, that the State program is not in accordance with this chapter, he shall enter into a cooperative agreement with the State for the purpose of assisting in implementation of the State program. In order for a State program to be deemed an adequate and active program for the conservation of endangered species and threatened species, the Secretary must find, and annually thereafter reconfirm such finding, that under the State program - (A) authority resides in the State agency to conserve resident species of fish or wildlife determined by the State agency or the Secretary to be endangered or threatened; (B) the State agency has established acceptable conservation programs, consistent with the purposes and policies of this chapter, for all resident species of fish or wildlife in the State which are deemed by the Secretary to be endangered or threatened, and has furnished a copy of such plan and program together with all pertinent details, information, and data requested to the Secretary; (C) the State agency is authorized to conduct investigations to determine the status and requirements for survival of resident species of fish and wildlife; (D) the State agency is authorized to establish programs, including the acquisition of land or aquatic habitat or interests therein, for the conservation of resident endangered or threatened species of fish or wildlife; and (E) provision is made for public participation in designating resident species of fish or wildlife as endangered or threatened; or that under the State program - (i) the requirements set forth in subparagraphs (C), (D), and (E) of this paragraph are complied with, and (ii) plans are included under which immediate attention will be given to those resident species of fish and wildlife which are determined by the Secretary or the State agency to be endangered or threatened and which the Secretary and the State agency agree are most urgently in need of conservation programs; except that a cooperative agreement entered into with a State whose program is deemed adequate and active pursuant to clause (i) and this clause shall not affect the applicability of prohibitions set forth in or authorized pursuant to section 1533(d) of this title or section 1538(a)(1) of this title with respect to the taking of any resident endangered or threatened species. (2) In furtherance of the purposes of this chapter the Secretary is authorized to enter into a cooperative agreement in accordance with this section with any State which establishes and maintains an adequate and active program for the conservation of endangered species and threatened species of plants. Within one hundred and twenty days after the Secretary receives a certified copy of such a proposed State program, he shall make a determination whether such program is in accordance with this chapter. Unless he determines, pursuant to this paragraph, that the State program is not in accordance with this chapter, he shall enter into a cooperative agreement with the State for the purpose of assisting in implementation of the State program. In order for a State program to be deemed an adequate and active program for the conservation of endangered species of plants and threatened species of plants, the Secretary must find, and annually thereafter reconfirm such finding, that under the State program - (A) authority resides in the State agency to conserve resident species of plants determined by the State agency or the Secretary to be endangered or threatened; (B) the State agency has established acceptable conservation programs, consistent with the purposes and policies of this chapter, for all resident species of plants in the State which are deemed by the Secretary to be endangered or threatened, and has furnished a copy of such plan and program together with all pertinent details, information, and data requested to the Secretary; (C) the State agency is authorized to conduct investigations to determine the status and requirements for survival of resident species of plants; and (D) provision is made for public participation in designating resident species of plants as endangered or threatened; or that under the State program - (i) the requirements set forth in subparagraphs (C) and (D) of this paragraph are complied with, and (ii) plans are included under which immediate attention will be given to those resident species of plants which are determined by the Secretary or the State agency to be endangered or threatened and which the Secretary and the State agency agree are most urgently in need of conservation programs; except that a cooperative agreement entered into with a State whose program is deemed adequate and active pursuant to clause (i) and this clause shall not affect the applicability of prohibitions set forth in or authorized pursuant to section 1533(d) or section 1538(a)(1) of this title with respect to the taking of any resident endangered or threatened species. (d) Allocation of funds (1) The Secretary is authorized to provide financial assistance to any State, through its respective State agency, which has entered into a cooperative agreement pursuant to subsection (c) of this section to assist in development of programs for the conservation of endangered and threatened species or to assist in monitoring the status of candidate species pursuant to subparagraph (C) of section 1533(b)(3) of this title and recovered species pursuant to section 1533(g) of this title. The Secretary shall allocate each annual appropriation made in accordance with the provisions of subsection (i) of this section to such States based on consideration of - (A) the international commitments of the United States to protect endangered species or threatened species; (B) the readiness of a State to proceed with a conservation program consistent with the objectives and purposes of this chapter; (C) the number of endangered species and threatened species within a State; (D) the potential for restoring endangered species and threatened species within a State; (E) the relative urgency to initiate a program to restore and protect an endangered species or threatened species in terms of survival of the species; (F) the importance of monitoring the status of candidate species within a State to prevent a significant risk to the well being of any such species; and (G) the importance of monitoring the status of recovered species within a State to assure that such species do not return to the point at which the measures provided pursuant to this chapter are again necessary. So much of the annual appropriation made in accordance with provisions of subsection (i) of this section allocated for obligation to any State for any fiscal year as remains unobligated at the close thereof is authorized to be made available to that State until the close of the succeeding fiscal year. Any amount allocated to any State which is unobligated at the end of the period during which it is available for expenditure is authorized to be made available for expenditure by the Secretary in conducting programs under this section. (2) Such cooperative agreements shall provide for (A) the actions to be taken by the Secretary and the States; (B) the benefits that are expected to be derived in connection with the conservation of endangered or threatened species; (C) the estimated cost of these actions; and (D) the share of such costs to be borne by the Federal Government and by the States; except that - (i) the Federal share of such program costs shall not exceed 75 percent of the estimated program cost stated in the agreement; and (ii) the Federal share may be increased to 90 percent whenever two or more States having a common interest in one or more endangered or threatened species, the conservation of which may be enhanced by cooperation of such States, enter jointly into an agreement with the Secretary. The Secretary may, in his discretion, and under such rules and regulations as he may prescribe, advance funds to the State for financing the United States pro rata share agreed upon in the cooperative agreement. For the purposes of this section, the non- Federal share may, in the discretion of the Secretary, be in the form of money or real property, the value of which will be determined by the Secretary, whose decision shall be final. (e) Review of State programs Any action taken by the Secretary under this section shall be subject to his periodic review at no greater than annual intervals. (f) Conflicts between Federal and State laws Any State law or regulation which applies with respect to the importation or exportation of, or interstate or foreign commerce in, endangered species or threatened species is void to the extent that it may effectively (1) permit what is prohibited by this chapter or by any regulation which implements this chapter, or (2) prohibit what is authorized pursuant to an exemption or permit provided for in this chapter or in any regulation which implements this chapter. This chapter shall not otherwise be construed to void any State law or regulation which is intended to conserve migratory, resident, or introduced fish or wildlife, or to permit or prohibit sale of such fish or wildlife. Any State law or regulation respecting the taking of an endangered species or threatened species may be more restrictive than the exemptions or permits provided for in this chapter or in any regulation which implements this chapter but not less restrictive than the prohibitions so defined. (g) Transition (1) For purposes of this subsection, the term "establishment period" means, with respect to any State, the period beginning on December 28, 1973, and ending on whichever of the following dates first occurs: (A) the date of the close of the 120-day period following the adjournment of the first regular session of the legislature of such State which commences after December 28, 1973, or (B) the date of the close of the 15-month period following December 28, 1973. (2) The prohibitions set forth in or authorized pursuant to sections 1533(d) and 1538(a)(1)(B) of this title shall not apply with respect to the taking of any resident endangered species or threatened species (other than species listed in Appendix I to the Convention or otherwise specifically covered by any other treaty or Federal law) within any State - (A) which is then a party to a cooperative agreement with the Secretary pursuant to subsection (c) of this section (except to the extent that the taking of any such species is contrary to the law of such State); or (B) except for any time within the establishment period when - (i) the Secretary applies such prohibition to such species at the request of the State, or (ii) the Secretary applies such prohibition after he finds, and publishes his finding, that an emergency exists posing a significant risk to the well-being of such species and that the prohibition must be applied to protect such species. The Secretary's finding and publication may be made without regard to the public hearing or comment provisions of section 553 of title 5 or any other provision of this chapter; but such prohibition shall expire 90 days after the date of its imposition unless the Secretary further extends such prohibition by publishing notice and a statement of justification of such extension. (h) Regulations The Secretary is authorized to promulgate such regulations as may be appropriate to carry out the provisions of this section relating to financial assistance to States. (i) Appropriations (1) To carry out the provisions of this section for fiscal years after September 30, 1988, there shall be deposited into a special fund known as the cooperative endangered species conservation fund, to be administered by the Secretary, an amount equal to 5 percent of the combined amounts covered each fiscal year into the Federal aid to wildlife restoration fund under section 669b of this title, and paid, transferred, or otherwise credited each fiscal year to the Sport Fishing Restoration Account established under 1016 of the Act of July 18, 1984. (2) Amounts deposited into the special fund are authorized to be appropriated annually and allocated in accordance with subsection (d) of this section. -SOURCE- (Pub. L. 93-205, Sec. 6, Dec. 28, 1973, 87 Stat. 889; Pub. L. 95- 212, Dec. 19, 1977, 91 Stat. 1493; Pub. L. 95-632, Sec. 10, Nov. 10, 1978, 92 Stat. 3762; Pub. L. 96-246, May 23, 1980, 94 Stat. 348; Pub. L. 97-304, Secs. 3, 8(b), Oct. 13, 1982, 96 Stat. 1416, 1426; Pub. L. 100-478, title I, Sec. 1005, Oct. 7, 1988, 102 Stat. 2307.) -REFTEXT- REFERENCES IN TEXT The Sport Fishing Restoration Account established under section 1016 of the Act of July 18, 1984, referred to in subsec. (i)(1), probably means the Sport Fish Restoration Account established by section 9504(a)(2)(A) of Title 26, Internal Revenue Code, which section was enacted by section 1016(a) of Pub. L. 98-369, div. A, title X, July 18, 1984, 98 Stat. 1019. -MISC1- AMENDMENTS 1988 - Subsec. (d)(1). Pub. L. 100-478, Sec. 1005(a), amended par. (1) generally. Prior to amendment, par. (1) read as follows: "The Secretary is authorized to provide financial assistance to any State, through its respective State agency, which has entered into a cooperative agreement pursuant to subsection (c) of this section to assist in development of programs for the conservation of endangered and threatened species. The Secretary shall make an allocation of appropriated funds to such States based on consideration of - "(A) the international commitments of the United States to protect endangered species or threatened species; "(B) the readiness of a State to proceed with a conservation program consistent with the objectives and purposes of this chapter; "(C) the number of endangered species and threatened species within a State; "(D) the potential for restoring endangered species and threatened species within a State; and "(E) the relative urgency to initiate a program to restore and protect an endangered species or threatened species in terms of survival of the species. So much of any appropriated funds allocated for obligation to any State for any fiscal year as remains unobligated at the close thereof is authorized to be made available to that State until the close of the succeeding fiscal year. Any amount allocated to any State which is unobligated at the end of the period during which it is available for expenditure is authorized to be made available for expenditure by the Secretary in conducting programs under this section." Subsec. (i). Pub. L. 100-478, Sec. 1005(b), added subsec. (i). 1982 - Subsec. (d)(2)(i). Pub. L. 97-304, Sec. 3(1), substituted "75 percent" for "66 2/3 per centum". Subsec. (d)(2)(ii). Pub. L. 97-304, Sec. 3(2), substituted "90 percent" for "75 per centum". Subsec. (i). Pub. L. 97-304, Sec. 8(b), struck out subsec. (i) which authorized appropriations to carry out this section of $10,000,000 through the period ending Sept. 30, 1977, $12,000,000 for the period Oct. 1, 1977, through Sept. 30, 1980, and $12,000,000 for the period Oct. 1, 1980, through Sept. 30, 1982. See section 1542(b) of this title. 1980 - Subsec. (i). Pub. L. 96-246 in par. (2) substituted "$12,000,000" for "$16,000,000" and "1980" for "1981", and added par. (3). 1978 - Subsec. (c). Pub. L. 95-632 designated existing provision as par. (1), and in par. (1) as so designated, redesignated pars. (1) to (5) as subpars. (A) to (E), respectively, and subpars. (A) and (B) of subpar. (E), as so redesignated, as cls. (i) and (ii), respectively, substituted "paragraph" for "subsection" in provision preceding subpar. (A), as so redesignated, "endangered or threatened species of fish or wildlife" for "endangered species or threatened species" in subpar. (D), as so redesignated, "subparagraphs (C), (D), and (E) of this paragraph" for "paragraphs (3), (4), and (5) of this subsection" in cl. (i) of subpar. (E), as so redesignated, "clause (i) and this clause" for "subparagraph (A) and this subparagraph" in cl. (ii) of subpar. (E), as so redesignated, and added par. (2). 1977 - Subsec. (c). Pub. L. 95-212, Sec. 1(1), inserted provisions that States in which the State fish and wildlife agencies do not possess the broad authority to conserve all resident species of fish and wildlife which the Secretary determines to be threatened or endangered may nevertheless qualify for cooperative agreement funds if they satisfy all other requirements and have plans to devote immediate attention to those species most urgently in need of conservation programs. Subsec. (i). Pub. L. 95-212, Sec. 1(2), substituted provisions authorizing appropriations of $10,000,000 to cover the period ending Sept. 30, 1977, and $16,000,000 to cover the period beginning Oct. 1, 1977, and ending Sept. 30, 1981, for provisions authorizing appropriations of not to exceed $10,000,000 through the fiscal year ending June 30, 1977. COOPERATIVE AGREEMENTS WITH STATES UNAFFECTED BY 1981 AMENDMENT OF MARINE MAMMAL PROTECTION ACT Nothing in the amendment of section 1379 of this title by section 4(a) of Pub. L. 97-58 to be construed as affecting in any manner any cooperative agreement entered into by a State under subsec. (c) of this section before, on, or after Oct. 9, 1981, see section 4(b) of Pub. L. 97-58, set out as a note under section 1379 of this title. -End- -CITE- 16 USC Sec. 1536 01/02/2006 -EXPCITE- TITLE 16 - CONSERVATION CHAPTER 35 - ENDANGERED SPECIES -HEAD- Sec. 1536. Interagency cooperation -STATUTE- (a) Federal agency actions and consultations (1) The Secretary shall review other programs administered by him and utilize such programs in furtherance of the purposes of this chapter. All other Federal agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this chapter by carrying out programs for the conservation of endangered species and threatened species listed pursuant to section 1533 of this title. (2) Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an "agency action") is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical, unless such agency has been granted an exemption for such action by the Committee pursuant to subsection (h) of this section. In fulfilling the requirements of this paragraph each agency shall use the best scientific and commercial data available. (3) Subject to such guidelines as the Secretary may establish, a Federal agency shall consult with the Secretary on any prospective agency action at the request of, and in cooperation with, the prospective permit or license applicant if the applicant has reason to believe that an endangered species or a threatened species may be present in the area affected by his project and that implementation of such action will likely affect such species. (4) Each Federal agency shall confer with the Secretary on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under section 1533 of this title or result in the destruction or adverse modification of critical habitat proposed to be designated for such species. This paragraph does not require a limitation on the commitment of resources as described in subsection (d) of this section. (b) Opinion of Secretary (1)(A) Consultation under subsection (a)(2) of this section with respect to any agency action shall be concluded within the 90-day period beginning on the date on which initiated or, subject to subparagraph (B), within such other period of time as is mutually agreeable to the Secretary and the Federal agency. (B) In the case of an agency action involving a permit or license applicant, the Secretary and the Federal agency may not mutually agree to conclude consultation within a period exceeding 90 days unless the Secretary, before the close of the 90th day referred to in subparagraph (A) - (i) if the consultation period proposed to be agreed to will end before the 150th day after the date on which consultation was initiated, submits to the applicant a written statement setting forth - (I) the reasons why a longer period is required, (II) the information that is required to complete the consultation, and (III) the estimated date on which consultation will be completed; or (ii) if the consultation period proposed to be agreed to will end 150 or more days after the date on which consultation was initiated, obtains the consent of the applicant to such period. The Secretary and the Federal agency may mutually agree to extend a consultation period established under the preceding sentence if the Secretary, before the close of such period, obtains the consent of the applicant to the extension. (2) Consultation under subsection (a)(3) of this section shall be concluded within such period as is agreeable to the Secretary, the Federal agency, and the applicant concerned. (3)(A) Promptly after conclusion of consultation under paragraph (2) or (3) of subsection (a) of this section, the Secretary shall provide to the Federal agency and the applicant, if any, a written statement setting forth the Secretary's opinion, and a summary of the information on which the opinion is based, detailing how the agency action affects the species or its critical habitat. If jeopardy or adverse modification is found, the Secretary shall suggest those reasonable and prudent alternatives which he believes would not violate subsection (a)(2) of this section and can be taken by the Federal agency or applicant in implementing the agency action. (B) Consultation under subsection (a)(3) of this section, and an opinion issued by the Secretary incident to such consultation, regarding an agency action shall be treated respectively as a consultation under subsection (a)(2) of this section, and as an opinion issued after consultation under such subsection, regarding that action if the Secretary reviews the action before it is commenced by the Federal agency and finds, and notifies such agency, that no significant changes have been made with respect to the action and that no significant change has occurred regarding the information used during the initial consultation. (4) If after consultation under subsection (a)(2) of this section, the Secretary concludes that - (A) the agency action will not violate such subsection, or offers reasonable and prudent alternatives which the Secretary believes would not violate such subsection; (B) the taking of an endangered species or a threatened species incidental to the agency action will not violate such subsection; and (C) if an endangered species or threatened species of a marine mammal is involved, the taking is authorized pursuant to section 1371(a)(5) of this title; the Secretary shall provide the Federal agency and the applicant concerned, if any, with a written statement that - (i) specifies the impact of such incidental taking on the species, (ii) specifies those reasonable and prudent measures that the Secretary considers necessary or appropriate to minimize such impact, (iii) in the case of marine mammals, specifies those measures that are necessary to comply with section 1371(a)(5) of this title with regard to such taking, and (iv) sets forth the terms and conditions (including, but not limited to, reporting requirements) that must be complied with by the Federal agency or applicant (if any), or both, to implement the measures specified under clauses (ii) and (iii). (c) Biological assessment (1) To facilitate compliance with the requirements of subsection (a)(2) of this section, each Federal agency shall, with respect to any agency action of such agency for which no contract for construction has been entered into and for which no construction has begun on November 10, 1978, request of the Secretary information whether any species which is listed or proposed to be listed may be present in the area of such proposed action. If the Secretary advises, based on the best scientific and commercial data available, that such species may be present, such agency shall conduct a biological assessment for the purpose of identifying any endangered species or threatened species which is likely to be affected by such action. Such assessment shall be completed within 180 days after the date on which initiated (or within such other period as is mutually agreed to by the Secretary and such agency, except that if a permit or license applicant is involved, the 180- day period may not be extended unless such agency provides the applicant, before the close of such period, with a written statement setting forth the estimated length of the proposed extension and the reasons therefor) and, before any contract for construction is entered into and before construction is begun with respect to such action. Such assessment may be undertaken as part of a Federal agency's compliance with the requirements of section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. 4332). (2) Any person who may wish to apply for an exemption under subsection (g) of this section for that action may conduct a biological assessment to identify any endangered species or threatened species which is likely to be affected by such action. Any such biological assessment must, however, be conducted in cooperation with the Secretary and under the supervision of the appropriate Federal agency. (d) Limitation on commitment of resources After initiation of consultation required under subsection (a)(2) of this section, the Federal agency and the permit or license applicant shall not make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate subsection (a)(2) of this section. (e) Endangered Species Committee (1) There is established a committee to be known as the Endangered Species Committee (hereinafter in this section referred to as the "Committee"). (2) The Committee shall review any application submitted to it pursuant to this section and determine in accordance with subsection (h) of this section whether or not to grant an exemption from the requirements of subsection (a)(2) of this section for the action set forth in such application. (3) The Committee shall be composed of seven members as follows: (A) The Secretary of Agriculture. (B) The Secretary of the Army. (C) The Chairman of the Council of Economic Advisors. (D) The Administrator of the Environmental Protection Agency. (E) The Secretary of the Interior. (F) The Administrator of the National Oceanic and Atmospheric Administration. (G) The President, after consideration of any recommendations received pursuant to subsection (g)(2)(B) of this section shall appoint one individual from each affected State, as determined by the Secretary, to be a member of the Committee for the consideration of the application for exemption for an agency action with respect to which such recommendations are made, not later than 30 days after an application is submitted pursuant to this section. (4)(A) Members of the Committee shall receive no additional pay on account of their service on the Committee. (B) While away from their homes or regular places of business in the performance of services for the Committee, members of the Committee shall be allowed travel expenses, including per diem in lieu of subsistence, in the same manner as persons employed intermittently in the Government service are allowed expenses under section 5703 of title 5. (5)(A) Five members of the Committee or their representatives shall constitute a quorum for the transaction of any function of the Committee, except that, in no case shall any representative be considered in determining the existence of a quorum for the transaction of any function of the Committee if that function involves a vote by the Committee on any matter before the Committee. (B) The Secretary of the Interior shall be the Chairman of the Committee. (C) The Committee shall meet at the call of the Chairman or five of its members. (D) All meetings and records of the Committee shall be open to the public. (6) Upon request of the Committee, the head of any Federal agency is authorized to detail, on a nonreimbursable basis, any of the personnel of such agency to the Committee to assist it in carrying out its duties under this section. (7)(A) The Committee may for the purpose of carrying out its duties under this section hold such hearings, sit and act at such times and places, take such testimony, and receive such evidence, as the Committee deems advisable. (B) When so authorized by the Committee, any member or agent of the Committee may take any action which the Committee is authorized to take by this paragraph. (C) Subject to the Privacy Act [5 U.S.C. 552a], the Committee may secure directly from any Federal agency information necessary to enable it to carry out its duties under this section. Upon request of the Chairman of the Committee, the head of such Federal agency shall furnish such information to the Committee. (D) The Committee may use the United States mails in the same manner and upon the same conditions as a Federal agency. (E) The Administrator of General Services shall provide to the Committee on a reimbursable basis such administrative support services as the Committee may request. (8) In carrying out its duties under this section, the Committee may promulgate and amend such rules, regulations, and procedures, and issue and amend such orders as it deems necessary. (9) For the purpose of obtaining information necessary for the consideration of an application for an exemption under this section the Committee may issue subpenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents. (10) In no case shall any representative, including a representative of a member designated pursuant to paragraph (3)(G) of this subsection, be eligible to cast a vote on behalf of any member. (f) Promulgation of regulations; form and contents of exemption application Not later than 90 days after November 10, 1978, the Secretary shall promulgate regulations which set forth the form and manner in which applications for exemption shall be submitted to the Secretary and the information to be contained in such applications. Such regulations shall require that information submitted in an application by the head of any Federal agency with respect to any agency action include, but not be limited to - (1) a description of the consultation process carried out pursuant to subsection (a)(2) of this section between the head of the Federal agency and the Secretary; and (2) a statement describing why such action cannot be altered or modified to conform with the requirements of subsection (a)(2) of this section. (g) Application for exemption; report to Committee (1) A Federal agency, the Governor of the State in which an agency action will occur, if any, or a permit or license applicant may apply to the Secretary for an exemption for an agency action of such agency if, after consultation under subsection (a)(2) of this section, the Secretary's opinion under subsection (b) of this section indicates that the agency action would violate subsection (a)(2) of this section. An application for an exemption shall be considered initially by the Secretary in the manner provided for in this subsection, and shall be considered by the Committee for a final determination under subsection (h) of this section after a report is made pursuant to paragraph (5). The applicant for an exemption shall be referred to as the "exemption applicant" in this section. (2)(A) An exemption applicant shall submit a written application to the Secretary, in a form prescribed under subsection (f) of this section, not later than 90 days after the completion of the consultation process; except that, in the case of any agency action involving a permit or license applicant, such application shall be submitted not later than 90 days after the date on which the Federal agency concerned takes final agency action with respect to the issuance of the permit or license. For purposes of the preceding sentence, the term "final agency action" means (i) a disposition by an agency with respect to the issuance of a permit or license that is subject to administrative review, whether or not such disposition is subject to judicial review; or (ii) if administrative review is sought with respect to such disposition, the decision resulting after such review. Such application shall set forth the reasons why the exemption applicant considers that the agency action meets the requirements for an exemption under this subsection. (B) Upon receipt of an application for exemption for an agency action under paragraph (1), the Secretary shall promptly (i) notify the Governor of each affected State, if any, as determined by the Secretary, and request the Governors so notified to recommend individuals to be appointed to the Endangered Species Committee for consideration of such application; and (ii) publish notice of receipt of the application in the Federal Register, including a summary of the information contained in the application and a description of the agency action with respect to which the application for exemption has been filed. (3) The Secretary shall within 20 days after the receipt of an application for exemption, or within such other period of time as is mutually agreeable to the exemption applicant and the Secretary - (A) determine that the Federal agency concerned and the exemption applicant have - (i) carried out the consultation responsibilities described in subsection (a) of this section in good faith and made a reasonable and responsible effort to develop and fairly consider modifications or reasonable and prudent alternatives to the proposed agency action which would not violate subsection (a)(2) of this section; (ii) conducted any biological assessment required by subsection (c) of this section; and (iii) to the extent determinable within the time provided herein, refrained from making any irreversible or irretrievable commitment of resources prohibited by subsection (d) of this section; or (B) deny the application for exemption because the Federal agency concerned or the exemption applicant have not met the requirements set forth in subparagraph (A)(i), (ii), and (iii). The denial of an application under subparagraph (B) shall be considered final agency action for purposes of chapter 7 of title 5. (4) If the Secretary determines that the Federal agency concerned and the exemption applicant have met the requirements set forth in paragraph (3)(A)(i), (ii), and (iii) he shall, in consultation with the Members of the Committee, hold a hearing on the application for exemption in accordance with sections 554, 555, and 556 (other than subsection (b)(1) and (2) thereof) of title 5 and prepare the report to be submitted pursuant to paragraph (5). (5) Within 140 days after making the determinations under paragraph (3) or within such other period of time as is mutually agreeable to the exemption applicant and the Secretary, the Secretary shall submit to the Committee a report discussing - (A) the availability of reasonable and prudent alternatives to the agency action, and the nature and extent of the benefits of the agency action and of alternative courses of action consistent with conserving the species or the critical habitat; (B) a summary of the evidence concerning whether or not the agency action is in the public interest and is of national or regional significance; (C) appropriate reasonable mitigation and enhancement measures which should be considered by the Committee; and (D) whether the Federal agency concerned and the exemption applicant refrained from making any irreversible or irretrievable commitment of resources prohibited by subsection (d) of this section. (6) To the extent practicable within the time required for action under subsection (g) of this section, and except to the extent inconsistent with the requirements of this section, the consideration of any application for an exemption under this section and the conduct of any hearing under this subsection shall be in accordance with sections 554, 555, and 556 (other than subsection (b)(3) of section 556) of title 5. (7) Upon request of the Secretary, the head of any Federal agency is authorized to detail, on a nonreimbursable basis, any of the personnel of such agency to the Secretary to assist him in carrying out his duties under this section. (8) All meetings and records resulting from activities pursuant to this subsection shall be open to the public. (h) Grant of exemption (1) The Committee shall make a final determination whether or not to grant an exemption within 30 days after receiving the report of the Secretary pursuant to subsection (g)(5) of this section. The Committee shall grant an exemption from the requirements of subsection (a)(2) of this section for an agency action if, by a vote of not less than five of its members voting in person - (A) it determines on the record, based on the report of the Secretary, the record of the hearing held under subsection (g)(4) of this section and on such other testimony or evidence as it may receive, that - (i) there are no reasonable and prudent alternatives to the agency action; (ii) the benefits of such action clearly outweigh the benefits of alternative courses of action consistent with conserving the species or its critical habitat, and such action is in the public interest; (iii) the action is of regional or national significance; and (iv) neither the Federal agency concerned nor the exemption applicant made any irreversible or irretrievable commitment of resources prohibited by subsection (d) of this section; and (B) it establishes such reasonable mitigation and enhancement measures, including, but not limited to, live propagation, transplantation, and habitat acquisition and improvement, as are necessary and appropriate to minimize the adverse effects of the agency action upon the endangered species, threatened species, or critical habitat concerned. Any final determination by the Committee under this subsection shall be considered final agency action for purposes of chapter 7 of title 5. (2)(A) Except as provided in subparagraph (B), an exemption for an agency action granted under paragraph (1) shall constitute a permanent exemption with respect to all endangered or threatened species for the purposes of completing such agency action - (i) regardless whether the species was identified in the biological assessment; and (ii) only if a biological assessment has been conducted under subsection (c) of this section with respect to such agency action. (B) An exemption shall be permanent under subparagraph (A) unless - (i) the Secretary finds, based on the best scientific and commercial data available, that such exemption would result in the extinction of a species that was not the subject of consultation under subsection (a)(2) of this section or was not identified in any biological assessment conducted under subsection (c) of this section, and (ii) the Committee determines within 60 days after the date of the Secretary's finding that the exemption should not be permanent. If the Secretary makes a finding described in clause (i), the Committee shall meet with respect to the matter within 30 days after the date of the finding. (i) Review by Secretary of State; violation of international treaty or other international obligation of United States Notwithstanding any other provision of this chapter, the Committee shall be prohibited from considering for exemption any application made to it, if the Secretary of State, after a review of the proposed agency action and its potential implications, and after hearing, certifies, in writing, to the Committee within 60 days of any application made under this section that the granting of any such exemption and the carrying out of such action would be in violation of an international treaty obligation or other international obligation of the United States. The Secretary of State shall, at the time of such certification, publish a copy thereof in the Federal Register. (j) Exemption for national security reasons Notwithstanding any other provision of this chapter, the Committee shall grant an exemption for any agency action if the Secretary of Defense finds that such exemption is necessary for reasons of national security. (k) Exemption decision not considered major Federal action; environmental impact statement An exemption decision by the Committee under this section shall not be a major Federal action for purposes of the National Environmental Policy Act of 1969 [42 U.S.C. 4321 et seq.]: Provided, That an environmental impact statement which discusses the impacts upon endangered species or threatened species or their critical habitats shall have been previously prepared with respect to any agency action exempted by such order. (l) Committee order granting exemption; cost of mitigation and enhancement measures; report by applicant to Council on Environmental Quality (1) If the Committee determines under subsection (h) of this section that an exemption should be granted with respect to any agency action, the Committee shall issue an order granting the exemption and specifying the mitigation and enhancement measures established pursuant to subsection (h) of this section which shall be carried out and paid for by the exemption applicant in implementing the agency action. All necessary mitigation and enhancement measures shall be authorized prior to the implementing of the agency action and funded concurrently with all other project features. (2) The applicant receiving such exemption shall include the costs of such mitigation and enhancement measures within the overall costs of continuing the proposed action. Notwithstanding the preceding sentence the costs of such measures shall not be treated as project costs for the purpose of computing benefit-cost or other ratios for the proposed action. Any applicant may request the Secretary to carry out such mitigation and enhancement measures. The costs incurred by the Secretary in carrying out any such measures shall be paid by the applicant receiving the exemption. No later than one year after the granting of an exemption, the exemption applicant shall submit to the Council on Environmental Quality a report describing its compliance with the mitigation and enhancement measures prescribed by this section. Such a report shall be submitted annually until all such mitigation and enhancement measures have been completed. Notice of the public availability of such reports shall be published in the Federal Register by the Council on Environmental Quality. (m) Notice requirement for citizen suits not applicable The 60-day notice requirement of section 1540(g) of this title shall not apply with respect to review of any final determination of the Committee under subsection (h) of this section granting an exemption from the requirements of subsection (a)(2) of this section. (n) Judicial review Any person, as defined by section 1532(13) of this title, may obtain judicial review, under chapter 7 of title 5, of any decision of the Endangered Species Committee under subsection (h) of this section in the United States Court of Appeals for (1) any circuit wherein the agency action concerned will be, or is being, carried out, or (2) in any case in which the agency action will be, or is being, carried out outside of any circuit, the District of Columbia, by filing in such court within 90 days after the date of issuance of the decision, a written petition for review. A copy of such petition shall be transmitted by the clerk of the court to the Committee and the Committee shall file in the court the record in the proceeding, as provided in section 2112 of title 28. Attorneys designated by the Endangered Species Committee may appear for, and represent the Committee in any action for review under this subsection. (o) Exemption as providing exception on taking of endangered species Notwithstanding sections 1533(d) and 1538(a)(1)(B) and (C) of this title, sections 1371 and 1372 of this title, or any regulation promulgated to implement any such section - (1) any action for which an exemption is granted under subsection (h) of this section shall not be considered to be a taking of any endangered species or threatened species with respect to any activity which is necessary to carry out such action; and (2) any taking that is in compliance with the terms and conditions specified in a written statement provided under subsection (b)(4)(iv) of this section shall not be considered to be a prohibited taking of the species concerned. (p) Exemptions in Presidentially declared disaster areas In any area which has been declared by the President to be a major disaster area under the Disaster Relief and Emergency Assistance Act [42 U.S.C. 5121 et seq.], the President is authorized to make the determinations required by subsections (g) and (h) of this section for any project for the repair or replacement of a public facility substantially as it existed prior to the disaster under section 405 or 406 of the Disaster Relief and Emergency Assistance Act [42 U.S.C. 5171 or 5172], and which the President determines (1) is necessary to prevent the recurrence of such a natural disaster and to reduce the potential loss of human life, and (2) to involve an emergency situation which does not allow the ordinary procedures of this section to be followed. Notwithstanding any other provision of this section, the Committee shall accept the determinations of the President under this subsection. -SOURCE- (Pub. L. 93-205, Sec. 7, Dec. 28, 1973, 87 Stat. 892; Pub. L. 95- 632, Sec. 3, Nov. 10, 1978, 92 Stat. 3752; Pub. L. 96-159, Sec. 4, Dec. 28, 1979, 93 Stat. 1226; Pub. L. 97-304, Secs. 4(a), 8(b), Oct. 13, 1982, 96 Stat. 1417, 1426; Pub. L. 99-659, title IV, Sec. 411(b), (c), Nov. 14, 1986, 100 Stat. 3741, 3742; Pub. L. 100-707, title I, Sec. 109(g), Nov. 23, 1988, 102 Stat. 4709.) -REFTEXT- REFERENCES IN TEXT The Privacy Act, referred to in subsec. (e)(7)(C), is probably a reference to section 552a of Title 5, Government Organization and Employees. See Short Title note set out under section 552a of Title 5. The National Environmental Policy Act of 1969, referred to in subsec. (k), is Pub. L. 91-190, Jan. 1, 1970, 83 Stat. 852, as amended, which is classified generally to chapter 55 (Sec. 4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables. The Disaster Relief and Emergency Assistance Act, referred to in subsec. (p), is Pub. L. 93-288, May 22, 1974, 88 Stat. 143, as amended, known as the Robert T. Stafford Disaster Relief and Emergency Assistance Act, which is classified principally to chapter 68 (Sec. 5121 et seq.) of Title 42. For complete classification of this Act to the Code, see Short Title note set out under section 5121 of Title 42 and Tables. -MISC1- AMENDMENTS 1988 - Subsec. (p). Pub. L. 100-707 substituted "the Disaster Relief and Emergency Assistance Act" for "the Disaster Relief Act of 1974" and "section 405 or 406 of the Disaster Relief and Emergency Assistance Act" for "section 401 or 402 of the Disaster Relief Act of 1974". 1986 - Subsec. (b)(4)(C). Pub. L. 99-659, Sec. 411(b)(1)-(3), added subpar. (C). Subsec. (b)(4)(iii), (iv). Pub. L. 99-659, Sec. 411(b)(4)-(6), added cl. (iii), redesignated former cl. (iii) as (iv), and in cl. (iv), as so redesignated, inserted reference to cl. (iii). Subsec. (o). Pub. L. 99-659, Sec. 411(c)(1), in introductory provisions, inserted ", sections 1371 and 1372 of this title,", and substituted "any" for "either" after "implement". Subsec. (o)(2). Pub. L. 99-659, Sec. 411(c)(2), substituted "subsection (b)(4)(iv)" for "subsection (b)(4)(iii)" and inserted "prohibited" before "taking of the species". 1982 - Subsec. (a)(3), (4). Pub. L. 97-304, Sec. 4(a)(1), added par. (3) and redesignated former par. (3) as (4). Subsec. (b). Pub. L. 97-304, Sec. 4(a)(2), incorporated existing provisions into pars. (1)(A) and (3)(A) and added pars. (1)(B), (2), (3)(B), and (4). Subsec. (c)(1). Pub. L. 97-304, Sec. 4(a)(3), inserted ", except that if a permit or license applicant is involved, the 180-day period may not be extended unless such agency provides the applicant, before the close of such period, with a written statement setting forth the estimated length of the proposed extension and the reasons therefor" after "agency" in parenthetical provision. Subsec. (e)(10). Pub. L. 97-304, Sec. 4(a)(4), struck out provision that, except in the case of a member designated pursuant to paragraph (3)(G) of this subsection, no member could designate any person to serve as his or her representative unless that person was, at the time of such designation, holding a Federal office the appointment to which was subject to the advice and consent of the United States Senate. Subsec. (g)(1). Pub. L. 97-304, Sec. 4(a)(5)(B), substituted "An application for an exemption shall be considered initially by the Secretary in the manner provided for in this subsection, and shall be considered by the Committee for a final determination under subsection (h) of this section after a report is made pursuant to paragraph (5)" for "An application for an exemption shall be considered initially by a review board in the manner provided in this subsection, and shall be considered by the Endangered Species Committee for a final determination under subsection (h) of this section after a report is made by the review board". Subsec. (g)(2)(A). Pub. L. 97-304, Sec. 4(a)(5)(C)(i), substituted "An exemption applicant shall submit a written application to the Secretary, in a form p