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U.S. FISH AND WILDLIFE SERVICE
DIVISION OF ENDANGERED SPECIES
ENDANGERED
SPECIES ACT
OF 1973
FINDINGS, PURPOSES, AND POLICY ^^^
SEC. 2.
(a) FINDINGS.-The Congress finds and declares that-
(1) various species of fish, wildlife, and plants in the United
States have been rendered extinct as a consequence of economic growth
and development untempered by adequate concern and conservation;
(2) other species of fish, wildlife, and plants have been so depleted
in numbers that they are in danger of or threatened with extinction;
(3) these species of fish, wildlife, and plants are of aesthetic,
ecological, educational, historical, recreational, and scientific
value to the Nation and its people;
(4) the United States has pledged itself as a sovereign state in
the international community to conserve to the extent practicable
the various species of fish or wildlife and plants facing extinction,
pursuant to-
(A) migratory bird treaties with Canada and Mexico;
(B) the Migratory and Endangered Bird Treaty with Japan;
(C) the Convention on Nature Protection and Wildlife Preservation
in the Western Hemisphere;
(D) the International Convention for the Northwest Atlantic Fisheries;
(E) the International Convention for the High Seas Fisheries of
the North Pacific Ocean;
(F) the Convention on International Trade in Endangered Species
of Wild Fauna and Flora; and
(G) other international agreements; and
(5) encouraging the States and other interested parties, through
Federal financial assistance and a system of incentives, to develop
and maintain conservation programs which meet national and international
standards is a key to meeting the Nation's international commitments
and to better safeguarding, for the benefit of all citizens, the
Nation's heritage in fish, wildlife, and plants.
(b) PURPOSES.-The purposes of this Act are to provide a means whereby
the ecosystems upon which endangered species and threatened species
depend may be conserved, to provide a program for the conservation
of such endangered species and threatened species, and to take such
steps as may be appropriate to achieve the purposes of the treaties
and conventions set forth in subsection (a) of this section.
(c) POLICY.-
(1) It Is further declared to be the policy of Congress that all
Federal departments and agencies shall seek to conserve endangered
species and threatened species and shall utilize their authorities
in furtherance of the purposes of this Act.
(2) It is further declared to be the policy of Congress that Federal
agencies shall cooperate with State and local agencies to resolve
water resource issues in concert with conservation of endangered
species.
DEFINITIONS ^^^
SEC. 3. For the purposes of this Act-
(1) The term "alternative courses of action" means all
alternatives and thus is not limited to original project objectives
and agency jurisdiction.
(2) The term "commercial activity" means all activities
of industry and trade, including, but not limited to, the buying
or selling of commodities and activities conducted for the purpose
of facilitating such buying and selling: Provided, however, that
it does not include exhibitions of commodities by museums or similar
cultural or historical organizations.
(3) The terms "conserve," "conserving," and
"conservation" mean to use and the use of all methods
and procedures which are necessary to bring any endangered species
or threatened species to the point at which the measures provided
pursuant to this Act are no longer necessary. Such methods and procedures
include, but are not limited to, all activities associated with
scientific resources management such as research, census, law enforcement,
habitat acquisition and maintenance, propagation, live trapping,
and trans- plantation, and, in the extraordinary case where population
pressures within a given ecosystem cannot be otherwise relieved,
may include regulated taking.
(4) The term "Convention" means the Convention on International
Trade in Endangered Species of Wild Fauna and Flora, signed on March
3, 1973, and the appendices thereto.
(5)(A) The term "critical habitat" for a threatened or
endangered species means-
(i) the specific areas within the geographical area occupied by
the species, at the time it is listed in accordance with the provisions
of section 4 of this Act, on which are found those physical or biological
features (I) essential to the conservation of the species and (II)
which may require special management considerations or protection;
and
(ii) specific areas outside the geographical area occupied by the
species at the time it is listed in accordance with the provisions
of section 4 of this Act, upon a determination by the Secretary
that such areas are essential for the conservation of the species.
(B) Critical habitat may be established for those species now listed
as threatened or endangered species for which no critical habitat
has heretofore been established as set forth in subparagraph (A)
of this paragraph.
(C) Except in those circumstances determined by the Secretary, critical
habitat shall not include the entire geographical area which can
be occupied by the threatened or endangered species.
(6) The term "endangered species" means any species which
is in danger of extinction throughout all or a significant portion
of its range other than a species of the Class Insecta determined
by the Secretary to constitute a pest whose protection under the
provisions of this Act would present an overwhelming and overriding
risk to man.
(7) The term "Federal agency" means any department, agency,
or instrumentality of the United States.
(8) The term "fish or wildlife" means any member of the
animal kingdom, including without limitation any mammal, fish, bird
(including any migratory, nonmigratory, or endangered bird for which
protection is also afforded by treaty or other international agreement),
amphibian, reptile, mollusk, crustacean, arthropod or other invertebrate,
and includes any part, product, egg, or offspring thereof, or the
dead body or parts thereof.
(9) The term "foreign commerce" includes, among other
things, any transaction-
(A) between persons within one foreign country;
(B) between persons in two or more foreign countries;
(C) between a person within the United States and a person in a
foreign country; or
(D) between persons within the United States, where the fish and
wildlife in question are moving in any country or countries outside
the United States.
(10) The term "import" means to land on, bring into, or
introduce into, or attempt to land on, bring into, or introduce
into, any place subject to the jurisdiction of the United States,
whether or not such landing, bringing, or introduction constitutes
an importation within the meaning of the customs laws of the United
States.
(11) The term "permit or license applicant" means, when
used with respect to an action of a Federal agency for which exemption
is sought under section 7, any person whose application to such
agency for a permit or license has been denied primarily because
of the application of section 7(a) to such agency action.
(12) "The term person means an individual, corporation, partnership,
trust, association, or any other private entity; or any officer,
employee, agent, department, or instrumentality of the Federal Government,
of any State, municipality, or political subdivision of a State,
or of any foreign government; any State, municipality, or political
subdivision of a State; or any other entity subject to the jurisdiction
of the United States."
(13) The term "plant" means any member of the plant kingdom,
including seeds, roots and other parts thereof.
(14) The term "Secretary" means, except as otherwise herein
provided, the Secretary of the Interior or the Secretary of Commerce
as program responsibilities are vested pursuant to the provisions
of Reorganization Plan Numbered 4 of 1970; except that with respect
to the enforcement of the provisions of this Act and the Convention
which pertain to the importation or exportation of terrestrial plants,
the term also means the Secretary of Agriculture.
(15) The term "species" includes any subspecies of fish
or wildlife or plants, and any distinct population segment of any
species or vertebrate fish or wildlife which interbreeds when mature.
(16) The term "State" means any of the several States,
the District of Columbia, the Commonwealth of Puerto Rico, American
Samoa, the Virgin Islands, Guam, and the Trust Territory of the
Pacific Islands.
(17) The term "State agency" means any State agency, department,
board, commission, or other governmental entity which is responsible
for the management and conservation of fish, plant, or wildlife
resources within a State.
(18) The term "take" means to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or to attempt to
engage in any such conduct.
(19) The term "threatened species" means any species which
is likely to become an endangered species within the foreseeable
future throughout all or a significant portion of its range.
(20) The term "United States," when used in a geographical
context, includes all States.
DETERMINATION OF ENDANGERED SPECIES AND THREATENED SPECIES ^^^
Sec. 4.
(a) GENERAL.-
(1) The Secretary shall by regulation promulgated in accordance
with subsection (b) determine whether any species is an endangered
species or a threatened species because of any of the following
factors:
(A) the present or threatened destruction, modification, or curtailment
of its habitat or range;
(B) overutilization for commercial, recreational, scientific, or
educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms;
(E) other natural or manmade factors affecting its continued existence.
(2) With respect to any species over which program responsibilities
have been vested in the Secretary of Commerce pursuant to Reorganization
Plan Numbered 4 of 1970-
(A) in any case in which the Secretary of Commerce determines that
such species should-
(i) be listed as an endangered species or a threatened species,
or
(ii) be changed in status from a threatened species to an endangered
species, he shall so inform the Secretary of the Interior, who shall
list such species in accordance with this section;
(B) in any case in which the Secretary of Commerce determines that
such species should-
(i) be removed from any list published pursuant to subsection (c)
of this section, or
(ii) be changed in status from an endangered species to a threatened
species, he shall recommend such action to the Secretary of the
Interior, and the Secretary of the Interior, if he concurs in the
recommendation, shall implement such action; and
(C) the Secretary of the Interior may not list or remove from any
list any such species, and may not change the status of any such
species which are listed, without a prior favorable determination
made pursuant to this section by the Secretary of Commerce.
(3) The Secretary, by regulation promulgated in accordance with
subsection (b) and to the maximum extent prudent and determinable-
(A) shall, concurrently with making a determination under paragraph
(1) that a species is an endangered species or a threatened species,
designate any habitat of such species which is then considered to
be critical habitat; and
(B) may, from time-to-time thereafter as appropriate, revise such
designation.
(b) BASIS FOR DETERMINATIONS.-
(1)(A) The Secretary shall make determinations required by subsection
(a)(1) solely on the basis of the best scientific and commercial
data available to him after conducting a review of the status of
the species and after taking into account those efforts, if any,
being made by any State or foreign nation, or any political subdivision
of a State or foreign nation, to protect such species, whether by
predator control, protection of habitat and food supply, or other
conservation practices, within any area under its jurisdiction,
or on the high seas.
(B) In carrying out this section, the Secretary shall give consideration
to species which have been-
(i) designated as requiring protection from unrestricted commerce
by any foreign nation, or pursuant to any international agreement;
or
(ii) identified as in danger of extinction, or likely to become
so within the foreseeable future, by any State agency or by any
agency of a foreign nation that is responsible for the conservation
of fish or wildlife or plants.
(2) The Secretary shall designate critical habitat, and make revisions
thereto, under subsection (a)(3) on the basis of the best scientific
data available and after taking into consideration the economic
impact, and any other relevant impact, of specifying any particular
area as critical habitat. The Secretary may exclude any area from
critical habitat if he determines that the benefits of such exclusion
outweigh the benefits of specifying such area as part of the critical
habitat, unless he determines, based on the best scientific and
commercial data available, that the failure to designate such area
as critical habitat will result in the extinction of the species
concerned.
(3)(A) To the maximum extent practicable, within 90 days after receiving
the petition of an interested person under section 553(e) of title
5, United States Code, to add a species to, or to remove a species
from, either of the lists published under subsection (c), the Secretary
shall make a finding as to whether the petition presents substantial
scientific or commercial information indicating that the petitioned
action may be warranted. If such a petition is found to present
such information, the Secretary shall promptly commence a review
of the status of the species concerned. The Secretary shall promptly
publish each finding made under this subparagraph in the Federal
Register.
(B) Within 12 months after receiving a petition that is found under
subparagraph (A) to present substantial information indicating that
the petitioned action may be warranted, the Secretary shall make
one of the following findings:
(i) The petitioned action is not warranted, in which case the Secretary
shall promptly publish such finding in the Federal Register.
(ii) The petitioned action is warranted in which case the Secretary
shall promptly publish in the Federal Register a general notice
and the complete text of a proposed regulation to implement such
action in accordance with paragraph (5).
(iii) The petitioned action is warranted but that-
(I) the immediate proposal and timely promulgation of a final regulation
implementing the petitioned action in accordance with paragraphs
(5) and (6) is precluded by pending proposals to determine whether
any species is an endangered species or a threatened species, and
(II) expeditious progress is being made to add qualified species
to either of the lists published under subsection (c) and to remove
from such lists species for which the protec- tions of the Act are
no longer necessary, in which case the Secretary shall promptly
publish such finding in the Federal Register, together with a description
and evaluation of the reasons and data on which the finding is based.
(C)(i) A petition with respect to which a finding is made under
subparagraph (B)(iii) shall be treated as a petition that is resubmitted
to the Secretary under subparagraph (A) on the date of such finding
and that presents substantial scientific or commercial information
that the petitioned action may be warranted.
(ii) Any negative finding described in subparagraph (A) and any
finding described in subparagraph (B) (i) or (iii) shall be subject
to judicial review.
(iii) The Secretary shall implement a system to monitor effectively
the status of all species with respect to which a finding is made
under subparagraph (B)(iii) and shall make prompt use of the authority
under paragraph 7 to prevent a significant risk to the well being
of any such species.
(D)(i) To the maximum extent practicable, within 90 days after receiving
the petition of an interested person under section 553(e) of title
5, United States Code, to revise a critical habitat designation,
the Secretary shall make a finding as to whether the petition presents
substantial scientific information indicating that the revision
may be warranted. The Secretary shall promptly publish such finding
in the Federal Register.
(ii) Within 12 months after receiving a petition that is found under
clause (i) to present substantial information indicating that the
requested revision may be warranted, the Secretary shall determine
how he intends to proceed with the requested revision, and shall
promptly publish notice of such intention in the Federal Register.
(4) Except as provided in paragraphs (5) and (6) of this subsection,
the provisions of section 553 of title 5, United States Code (relating
to rulemaking procedures), shall apply to any regulation promulgated
to carry out the purposes of this Act.
(5) With respect to any regulation proposed by the Secretary to
implement a determination, designation, or revision referred to
in subsection (a) (1) or (3), the Secretary shall-
(A) not less than 90 days before the effective date of the regulation-
(i) publish a general notice and the complete text of the proposed
regulation in the Federal Register, and
(ii) give actual notice of the proposed regulation (including the
complete text of the regulation) to the State agency in each State
in which the species is believed to occur, and to each county or
equivalent jurisdiction in which the species is believed to occur,
and invite the comment of such agency, and each such jurisdiction,
thereon;
(B) insofar as practical, and in cooperation with the Secretary
of State, give notice of the proposed regulation to each foreign
nation in which the species is believed to occur or whose citizens
harvest the species on the high seas, and invite the comment of
such nation thereon;
(C) give notice of the proposed regulation to such professional
scientific organizations as he deems appropriate;
(D) publish a summary of the proposed regulation in a newspaper
of general circulation in each area of the United States in which
the species is believed to occur; and
(E) promptly hold one public hearing on the proposed regulation
if any person files a request for such a hearing within 45 days
after the date of publication of general notice.
(6)(A) Within the one-year period beginning on the date on which
general notice is published in accordance with paragraph (5)(A)(i)
regarding a proposed regulation, the Secretary shall publish in
the Federal Register-
(i) if a determination as to whether a species is an endangered
species or a threatened species, or a revision of critical habitat,
is involved, either-
(I) a final regulation to implement such determination,
(II) a final regulation to implement such revision or a finding
that such revision should not be made,
(III) notice that such one-year period is being extended under subparagraph
(B)(i), or
(IV) notice that the proposed regulation is being withdrawn under
subparagraph
(B)(ii), together with the finding on which such withdrawal is based;
or
(ii) subject to subparagraph (C), if a designation of critical habitat
is involved, either-
(I) a final regulation to implement such designation, or
(II) notice that such one-year period is being extended under such
subparagraph.
(B)(i) If the Secretary finds with respect to a proposed regulation
referred to in subparagraph (A)(i) that there is substantial disagreement
regarding the sufficiency or accuracy of the available data relevant
to the determination or revision concerned the Secretary may extend
the one-year period specified in subparagraph (A) for not more than
six months for purposes of soliciting additional data.
(ii) If a proposed regulation referred to in subparagraph (a)(i)
is not promulgated as a final regulation within such one-year period
(or longer period if extension under clause (i) applies) because
the Secretary finds that there is not sufficient evidence to justify
the action proposed by the regulation the Secretary shall immediately
withdraw the regulation. The finding on which a withdrawal is based
shall be subject to judicial review. The Secretary may not propose
a regulation that has previously been withdrawn under this clause
unless he determines that sufficient new information is available
to warrant such proposal.
(iii) If the one-year period specified in subparagraph (A) is extended
under clause (i) with respect to a proposed regulation, then before
the close of such extended period the Secretary shall publish in
the Federal Register either a final regulation to implement the
determination or revision concerned, a finding that the revision
should not be made, or a notice of withdrawal of the regulation
under clause (ii), together with the finding on which the withdrawal
is based.
(C) A final regulation designating critical habitat of an endangered
species or a threatened species shall be published concurrently
with the final regulation implementing the determination that such
species is endangered or threatened, unless the Secretary deems
that-
(i) it is essential to the conservation of such species that the
regulation implementing such determination be promptly published;
or
(ii) critical habitat of such species is not then determinable,
in which case the Secretary, with respect to the proposed regulation
to designate such habitat, may extend the one-year period specified
in subparagraph (A) by not more than one additional year, but not
later than the close of such additional year the Secretary must
publish a final regulation, based on such data as may be available
at that time, designating, to the maximum extent prudent, such habitat.
(7) Neither paragraph (4), (5), or (6) of this subsection nor section
553 of title 5, United States Code, shall apply to any regulation
issued by the Secretary in regard to any emergency posing a significant
risk to the well-being of any species of fish and wildlife or plants,
but only if-
(A) at the time of publication of the regulation in the Federal
Register the Secretary publishes therein detailed reasons why such
regulation is necessary; and
(B) in the case such regulation applies to resident species of fish
or wildlife, or plants, the Secretary gives actual notice of such
regulation to the State agency in each State in which such species
is believed to occur.
Such regulation shall, at the discretion of the Secretary, take
effect immediately upon the publication of the regulation in the
Federal Register. Any regulation promulgated under the authority
of this paragraph shall cease to have force and effect at the close
of the 240-day period following the date of publication unless,
during such 240-day period, the rulemaking procedures which would
apply to such regulation without regard to this paragraph are complied
with. If at any time after issuing an emergency regulation the Secretary
determines, on the basis of the best appropriate data available
to him, that substantial evidence does not exist to warrant such
regulation, he shall withdraw it.
(8) The publication in the Federal Register of any proposed or final
regulation which is necessary or appropriate to carry out the purposes
of this Act shall include a summary by the Secretary of the data
on which such regulation is based and shall show the relationship
of such data to such regulation; and if such regulation designates
or revises critical habitat, such summary shall, to the maximum
extent practicable, also include a brief description and evaluation
of those activities (whether public or private) which, in the opinion
of the Secretary, if undertaken may adversely modify such habitat,
or may be affected by such designation.
(c) LISTS.-
(1) The Secretary of the Interior shall publish in the Federal Register
a list of all species determined by him or the Secretary of Commerce
to be endangered species and a list of all species determined by
him or the Secretary of Commerce to be threatened species. Each
list shall refer to the species contained therein by scientific
and common name or names, if any, specify with respect to such species
over what portion of its range it is endangered or threatened, and
specify any critical habitat within such range. The Secretary shall
from time to time revise each list published under the authority
of this subsection to reflect recent determinations, designations,
and revisions made in accordance with subsections (a) and (b).
(2) The Secretary shall-
(A) conduct, at least once every five years, a review of all species
included in a list which is published pursuant to paragraph (1)
and which is in effect at the time of such review; and
(B) determine on the basis of such review whether any such species
should-
(i) be removed from such list;
(ii) be changed in status from an endangered species to a threatened
species; or
(iii) be changed in status from a threatened species to an endangered
species. Each determination under subparagraph (B) shall be made
in accordance with the provisions of subsection (a) and (b).
(d) PROTECTIVE REGULATIONS.-Whenever any species is listed as a
threatened species pursuant to subsection (c) of this section, the
Secretary shall issue such regulations as he deems necessary and
advisable to provide for the conservation of such species. The Secretary
may by regulation prohibit with respect to any threatened species
any act prohibited under section 9(a)(1), in the case of fish or
wildlife, or section 9(a)(2), in the case of plants, with respect
to endangered species; except that with respect to the taking of
resident species of fish or wildlife, such regulations shall apply
in any State which has entered into a cooperative agreement pursuant
to section 6(c) of this Act only to the extent that such regulations
have also been adopted by such State.
(e) SIMILARITY OF APPEARANCE CASES.-The Secretary may, by regulation
of commerce or taking, and to the extent he deems advisable, treat
any species as an endangered species or threatened species even
though it is not listed pursuant to section 4 of this Act if he
finds that-
(A) such species so closely resembles in appearance, at the point
in question, a species which has been listed pursuant to such section
that enforcement personnel would have substantial difficulty in
attempting to differentiate between the listed and unlisted species;
(B) the effect of this substantial difficulty is an additional threat
to an endangered or threatened species; and
(C) such treatment of an unlisted species will substantially facilitate
the enforcement and further the policy of this Act.
(f)(1) RECOVERY PLANS.-The Secretary shall develop and implement
plans (hereinafter in this subsection referred to as "recovery
plans") for the conservation and survival of endangered species
and threatened species listed pursuant to this section, unless he
finds that such a plan will not promote the conservation of the
species. The Secretary, in development and implementing recovery
plans, shall, to the maximum extent practicable-
(A) give priority to those endangered species or threatened species,
without regard to taxonomic classification, that are most likely
to benefit from such plans, particularly those species that are,
or may be, in conflict with construction or other development projects
or other forms of economic activity;
(B) incorporate in each plan-
(i) a description of such site-specific management actions as may
be necessary to achieve the plan's goal for the conservation and
survival of the species;
(ii) objective, measurable criteria which, when met, would result
in a determination, in accordance with the provisions of this section,
that the species be removed from the list; and
(iii) estimates of the time required and the cost to carry out those
measures needed to achieve the plan's goal and to achieve intermediate
steps toward that goal.
(2) The Secretary, in developing and implementing recovery plans,
may procure the services of appropriate public and private agencies
and institutions, and other qualified persons. Recovery teams appointed
pursuant to this subsection shall not be subject to the Federal
Advisory Committee Act.
(3) The Secretary shall report every two years to the Committee
on Environment and Public Works of the Senate and the Committee
on Merchant Marine and Fisheries of the House of Representatives
on the status of efforts to develop and implement recovery plans
for all species listed pursuant to this section and on the status
of all species for which such plans have been developed.
(4) The Secretary shall, prior to final approval of a new or revised
recovery plan, provide public notice and an opportunity for public
review and comment on such plan. The Secretary shall consider all
information presented during the public comment period prior to
approval of the plan.
(5) Each Federal agency shall, prior to implementation of a new
or revised recovery plan, consider all information presented during
the public comment period under paragraph (4).
(g) MONITORING.-
(1) The Secretary shall implement a system in cooperation with the
States to monitor effectively for not less than five years the status
of all species which have recovered to the point at which the measures
provided pursuant to this Act are no longer necessary and which,
in accordance with the provisions of this section, have been removed
from either of the lists published under subsection (c).
(2) The Secretary shall make prompt use of the authority under paragraph
7 of subsection (b) of this section to prevent a significant risk
to the well being of any such recovered species.
(h) AGENCY GUIDELINES.-The Secretary shall establish, and publish
in the Federal Register, agency guidelines to insure that the purposes
of this section are achieved efficiently and effectively. Such guidelines
shall include, but are not limited to-
(1) procedures for recording the receipt and the disposition of
petitions submitted under subsection (b)(3) of this section;
(2) criteria for making the findings required under such subsection
with respect to petitions;
(3) a ranking system to assist in the identification of species
that should receive priority review under subsection (a)(1) of the
section; and
(4) a system for developing and implementing, on a priority basis,
recovery plans under subsection (f) of this section. The Secretary
shall provide to the public notice of, and opportunity to submit
written comments on, any guideline (including any amendment thereto)
proposed to be established under this subsection.
(i) If, in the case of any regulation proposed by the Secretary
under the authority of this section, a State agency to which notice
thereof was given in accordance with subsection
(b)(5)(A)(ii) files comments disagreeing with all or part of the
proposed regulation, and the Secretary issues a final regulation
which is in conflict with such comments, or if the Secretary fails
to adopt a regulation pursuant to an action petitioned by a State
agency under subsection (b)(3), the Secretary shall submit to the
State agency a written justification for his failure to adopt regulations
consistent with the agency's comments or petition.
LAND ACQUISITION ^^^
SEC. 5.
(a) PROGRAM.-The Secretary, and the Secretary of Agriculture with
respect to the National Forest System, shall establish and implement
a program to conserve fish, wildlife, and plants, including those
which are listed as endangered species or threatened species pursuant
to section 4 of this Act. To carry out such a program, the appropriate
Secretary-
(1) shall utilize the land acquisition and other authority under
the Fish and Wildlife Act of 1956, as amended, the Fish and Wildlife
Coordination Act, as amended, and the Migratory Bird Conservation
Act, as appropriate; and
(2) is authorized to acquire by purchase, donation, or otherwise,
lands, waters, or interest therein, and such authority shall be
in addition to any other land acquisition vested in him.
(b) ACQUISITIONS.-Funds made available pursuant to the Land and
Water Conservation Fund Act of 1965, as amended, may be used for
the purpose of acquiring lands, waters, or interests therein under
subsection (a) of this section.
COOPERATION WITH THE STATES ^^^
SEC. 6.
(a) GENERAL.-In carrying out the program authorized by this Act,
the Secretary shall cooperate to the maximum extent practicable
with the States. Such cooperation shall include consultation with
the States concerned before acquiring any land or water, or interest
therein, for the purpose of conserving any endangered species or
threatened species.
(b) MANAGEMENT AGREEMENTS.-The Secretary may enter into agreements
with any State for the administration and management of any area
established for the conservation of endangered species or threatened
species. Any revenues derived from the administration of such areas
under these agreements shall be subject to the provisions of section
401 of the Act of June 15, 1935 (49 Stat. 383; 16 U.S.C. 715s).
(c)(1) COOPERATIVE AGREEMENTS.-In furtherance of the purposes of
this Act, the Secretary is authorized to enter into a cooperative
agreement in accordance with this section with any State which establishes
and maintains an adequate and active program for the conservation
of endangered species and threatened species. Within one hundred
and twenty days after the Secretary receives a certified copy of
such a proposed State program, he shall make a determination whether
such program is in accordance with this Act. Unless he determines,
pursuant to this paragraph, that the State program is not in accordance
with this Act, he shall enter into a cooperative agreement with
the State for the purpose of assisting in implementation of the
State program. In order for a State program to be deemed an adequate
and active program for the conservation of endangered species and
threatened species, the Secretary must find, and annually thereafter
reconfirm such finding, that under the State program-
(A) authority resides in the State agency to conserve resident species
of fish or wildlife determined by the State agency or the Secretary
to be endangered or threatened;
(B) the State agency has established acceptable conservation programs,
consistent with the purposes and policies of this Act, for all resident
species of fish or wildlife in the State which are deemed by the
Secretary to be endangered or threatened, and has furnished a copy
of such plan and program together with all pertinent details, information,
and data requested to the Secretary;
(C) the State agency is authorized to conduct investigations to
determine the status and requirements for survival of resident species
of fish and wildlife;
(D) the State agency is authorized to establish programs, including
the acquisition of land or aquatic habitat or interests therein,
for the conservation of resident endangered or threat- ened species
of fish or wildlife; and
(E) provision is made for public participation in designating resident
species of fish or wildlife as endangered or threatened, or that
under the State program-
(i) the requirements set forth in paragraphs (3), (4), and (5) of
this subsection are complied with, and
(ii) plans are included under which immediate attention will be
given to those resident species of fish and wildlife which are determined
by the Secretary or the State agency to be endangered or threatened
and which the Secretary and the State agency agree are most urgently
in need of conservation programs; except that a cooperative agreement
entered into with a State whose program is deemed adequate and active
pursuant to clause (i) and this clause and this subparagraph shall
not affect the applicability of prohibitions set forth in or authorized
pursuant to section 4(d) or section 9(a)(1) with respect to the
taking of any resident endangered or threatened species.
(2) In furtherance of the purposes of this Act, the Secretary is
authorized to enter into a cooperative agreement in accordance with
this section with any State which establishes and maintains an adequate
and active program for the conservation of endangered species and
threatened species of plants. Within one hundred and twenty days
after the Secretary receives a certified copy of such a proposed
State program, he shall make a determination whether such program
is in accordance with this Act. Unless he determines, pursuant to
this paragraph, that the State program is not in accordance with
this Act, he shall enter into a cooperative agreement with the State
for the purpose of assisting in implementation of the State program.
In order for a State program to be deemed an adequate and active
program for the conservation of endangered species of plants and
threatened species of plants, the Secretary must find, and annually
thereafter reconfirm such finding, that under the State program-
(A) authority resides in the State agency to conserve resident species
of plants determined by the State agency or the Secretary to be
endangered or threatened;
(B) the State agency has established acceptable conservation programs,
consistent with the purposes and policies of this Act, for all resident
species of plants in the State which are deemed by the Secretary
to be endangered or threatened, and has furnished a copy of such
plan and program together with all pertinent details, information,
and data requested to the Secretary;
(C) the State agency is authorized to conduct investigations to
determine the status and requirements for survival of resident species
of plants; and
(D) provision is made for public participation in designating resident
species of plants as endangered or threatened; or that under the
State program-
(i) the requirements set forth in subparagraphs (C) and (D) of this
paragraph are complied with, and
(ii) plans are included under which immediate attention will be
given to those resident species of plants which are determined by
the Secretary or the State agency to be endangered or threatened
and which the Secretary and the State agency agree are most urgently
in need of conservation programs; except that a cooperative agreement
entered into with a State whose program is deemed adequate and active
pursuant to clause (i) and this clause shall not affect the applicability
of prohibitions set forth in or authorized pursuant to section 4(d)
or section 9(a)(1) with respect to the taking of any resident endangered
or threatened species.
(d) ALLOCATION OF FUNDS.-
(1) The Secretary is authorized to provide financial assistance
to any State, through its respective State agency, which has entered
into a cooperative agreement pursuant to subsection (c) of this
section to assist in development of programs for the conservation
of endangered and threatened species or to assist in monitoring
the status of candidate species pursuant to subparagraph (C) of
section 4(b)(3) and recovered species pursuant to section 4(g).
The Secretary shall allocate each annual appropriation made in accordance
with the provisions of subsection (i) of this section to such States
based on consideration of-
(A) the international commitments of the United States to protect
endangered species or threatened species;
(B) the readiness of a State to proceed with a conservation program
consistent with the objectives and purposes of this Act;
(C) the number of endangered species and threatened species within
a State;
(D) the potential for restoring endangered species and threatened
species within a State;
(E) the relative urgency to initiate a program to restore and protect
an endangered species or threatened species in terms of survival
of the species;
(F) the importance of monitoring the status of candidate species
within a State to prevent a significant risk to the well being of
any such species; and
(G) the importance of monitoring the status of recovered species
within a State to assure that such species do not return to the
point at which the measures provided pursuant to this Act are again
necessary.
So much of the annual appropriation made in accordance with provisions
of subsection (i) of this section allocated for obligation to any
State for any fiscal year as remains unobligated at the close thereof
is authorized to fie made available to that State until the close
of the succeeding fiscal year. Any amount allocated to any State
which is unobligated at the end of the period during which it is
available for expenditure is authorized to be made available for
expenditure by the Secretary in conducting programs under this section.
(2) Such cooperative agreements shall provide for-
(A) the actions to be taken by the Secretary and the States;
(B) the benefits that are expected to be derived in connection with
the conservation of endangered or threatened species;
(C) the estimated cost of these actions; and
(D) the share of such costs to be borne by the Federal Government
and by the States; except that-
(i) the Federal share of such program costs shall not exceed 75
percent of the estimated program cost stated in the agreement; and
(ii) the Federal share may be increased to 90 percent whenever two
or more States having a common interest in one or more endangered
or threatened species, the conservation of which may be enhanced
by cooperation of such States, enter jointly into agreement with
the Secretary.
The Secretary may, in his discretion, and under such rules and regulations
as he may prescribe, advance funds to the State for financing the
United States pro rata share agreed upon in the cooperative agreement.
For the purposes of this section, the non-Federal share may, in
the discretion of the Secretary, be in the form of money or real
property, the value of which will be determined by the Secretary
whose decision shall be final.
(e) REVIEW OF STATE PROGRAMS.-Any action taken by the Secretary
under this section shall be subject to his periodic review at no
greater than annual intervals.
(f) CONFLICTS BETWEEN FEDERAL AND STATE LAWS.-Any State law or regulation
which applies with respect to the importation or exportation of,
or interstate or foreign commerce in, endangered species or threatened
species is void to the extent that it may effectively
(1) permit what is prohibited by this Act of by any regulation which
implements this Act, or
(2) prohibit what is authorized pursuant to an exemption or permit
provided for in this Act or in any regulation which implements this
Act. This Act shall not otherwise be construed to void any State
law or regulation which is intended to conserve migratory, resident,
or introduced fish or wildlife, or to permit or prohibit sale of
such fish or wildlife. Any State law or regulation respecting the
taking of an endangered species or threatened species may be more
restrictive than the exemptions or permits provided for in this
Act or in any regulation which implements this Act but not less
restrictive than the prohibitions so defined.
(g) TRANSITION.-
(1) For purposes of this subsection, the term "establishment
period" means, with respect to any State, the period beginning
on the date of enactment of this Act and ending on whichever of
the following dates first occurs:
(A) the date of the close of the 120-day period following the adjournment
of the first regular session of the legislature of such State which
commences after such date of enactment, or
(B) the date of the close of the 15 month period following such
date of enactment.
(2) The prohibitions set forth in or authorized pursuant to sections
4(d) and 9(a)(1)(B) of this Act shall not apply with respect to
the taking of any resident endangered species or threatened species
(other than species listed in Appendix I to the Convention or otherwise
specifically covered by any other treaty or Federal law) within
any State-
(A) which is then a party to a cooperative agreement with the Secretary
pursuant to section 6(c) of this Act (except to the extent that
the taking of any such species is contrary to the law of such State);
or
(B) except for any time within the establishment period when-
(i) the Secretary applies such prohibition to such species at the
request of the State, or
(ii) the Secretary applies such prohibition after he finds, and
publishes his finding, that an emergency exists posing a significant
risk to the well-being of such species and that the prohibition
must be applied to protect such species. The Secretary's finding
and publication may be made without regard to the public hearing
or comment provisions of section 553 of title 5, United States Code,
or any other provision of this Act; but such prohibition shall expire
90 days after the date of its imposition unless the Secretary further
extends such prohibition by publishing notice and a statement of
justification of such extension.
(h) REGULATIONS.-The Secretary is authorized to promulgate such
regulations as may be appropriate to carry out the provisions of
this section relating to financial assistance to States.
(i) APPROPRIATIONS.-
(1) To carry out the provisions of this section for fiscal years
after September 30, 1988, there shall be deposited into a special
fund known as the cooperative endangered species conservation fund,
to be administered by the Secretary, an amount equal to five percent
of the combined amounts covered each fiscal year into the Federal
aid to wildlife restoration fund under section 3 of the Act of September
2, 1937, and paid, transferred, or otherwise credited each fiscal
year to the Sport Fishing Restoration Account established under
1016 of the Act of July 18, 1984.
(2) Amounts deposited into the special fund are authorized to be
appropriated annually and allocated in accordance with subsection
(d) of this section.
INTERAGENCY COOPERATION ^^^
SEC. 7.
(a) FEDERAL AGENCY ACTIONS AND CONSULTATIONS.-
(1) The Secretary shall review other programs administered by him
and utilize such programs in furtherance of the purposes of this
Act. All other Federal agencies shall, in consultation with and
with the assistance of the Secretary, utilize their authorities
in furtherance of the purposes of this Act by carrying out programs
for the conservation of endangered species and threatened species
listed pursuant to section 4 of this Act.
(2) Each Federal agency shall, in consultation with and with the
assistance of the Secretary, insure that any action authorized,
funded, or carried out by such agency (hereinafter in this section
referred to as an "agency action") is not likely to jeopardize
the continued existence of any endangered species or threatened
species or result in the destruction or adverse modification of
habitat of such species which is determined by the Secretary, after
consultation as appropriate with affected States, to be critical,
unless such agency has been granted an exemption for such action
by the Committee pursuant to subsection (h) of this section. In
fulfilling the requirements of this paragraph each agency shall
use the best scientific and commercial data available.
(3) Subject to such guidelines as the Secretary may establish, a
Federal agency shall consult with the Secretary on any prospective
agency action at the request of, and in cooperation with, the prospective
permit or license applicant if the applicant has reason to believe
that an endangered species or a threatened species may be present
in the area affected by his project and that implementation of such
action will likely affect such species.
(4) Each Federal agency shall confer with the Secretary on any agency
action which is likely to jeopardize the continued existence of
any species proposed to be listed under section 4 or result in the
destruction or adverse modification of critical habitat proposed
to be designated for such species. This paragraph does not require
a limitation on the commitment of resources as described in subsection
(d).
(b) OPINION OF SECRETARY.-
(1)(A) Consultation under subsection (a)(2) with respect to any
agency action shall be concluded within the 90-day period beginning
on the date on which initiated or, subject to subparagraph (B),
within such other period of time as is mutually agreeable to the
Secretary and the Federal agency;
(B) in the case of an agency action involving a permit or license
applicant, the Secretary and the Federal agency may not mutually
agree to conclude consultation within a period exceeding 90 days
unless the Secretary, before the close of the 90th day referred
to in subparagraph (A)-
(i) if the consultation period proposed to be agreed to will end
before the 150th day after the date on which consultation was initiated,
submits to the applicant a written statement setting forth-
(I) the reasons why a longer period is required;
(II) the information that is required to complete the consultation;
and
(III) the estimated date on which consultation will be completed;
or
(ii) if the consultation period proposed to be agreed to will end
150 or more days after the date on which consultation was initiated,
obtains the consent of the applicant to such period. The Secretary
and the Federal agency may mutually agree to extend a consultation
period established under the preceding sentence if the Secretary,
before the close of such period, obtains the consent of the applicant
to the extension.
(2) Consultation under subsection (a)(3) shall be concluded within
such period as is agreeable to the Secretary, the Federal agency,
and the applicant concerned.
(3)(A) Promptly after conclusion of consultation under paragraph
(2) or (3) of subsection (a), the Secretary shall provide to the
Federal agency and the applicant, if any, a written statement setting
forth the Secretary's opinion, and a summary of the information
on which the opinion is based, detailing how the agency action affects
the species or its critical habitat. If jeopardy or adverse modification
is found, the Secretary shall suggest those reasonable and prudent
alternatives which he believes would not violate subsection (a)(2)
and can be taken by the Federal agency or applicant in implementing
the agency action.
(B) Consultation under subsection (a)(3), and an opinion based by
the Secretary incident to such consultation, regarding an agency
action shall be treated respectively as a consultation under subsection
(a)(2), and as an opinion issued after consultation under such subsection,
regarding that action if the Secretary reviews the action before
it is commenced by the Federal agency and finds, and notifies such
agency, that no significant changes have been made with respect
to the action and that no significant change has occurred regarding
the information used during the initial consultation.
(4) If after consultation under subsection (a)(2) of this section,
the Secretary concludes that-
(A) the agency action will not violate such subsection, or offers
reasonable and prudent alternatives which the Secretary believes
would not violate such subsection;
(B) the taking of an endangered species or a threatened species
incidental to the agency action will not violate such subsection;
and
(C) if an endangered species or threatened species of a marine mammal
is involved, the taking is authorized pursuant to section 1371(a)(5)
of this title; the Secretary shall provide the Federal agency and
the applicant concerned, if any, with a written statement that-
(i) specifies the impact of such incidental taking on the species,
(ii) specifies those reasonable and prudent measures that the Secretary
considers necessary or appropriate to minimize such impact,
(iii) in the case of marine mammals, specifies those measures that
are necessary to comply with section 1371(a)(5) of this title with
regard to such taking, and
(iv) sets forth the terms and conditions (including, but not limited
to, reporting requirements) that must be complied with by the Federal
agency or applicant (if any), or both, to implement the measures
specified under clauses (ii) and (iii).
(c) BIOLOGICAL ASSESSMENT.-
(1) To facilitate compliance with the requirements of subsection
(a)(2) each Federal agency shall, with respect to any agency action
of such agency for which no contract for construction has been entered
into and for which no construction has begun on the date of enactment
of the Endangered Species Act Amendments of 1978, request of the
Secretary information whether any species which is listed or proposed
to be listed may be present in the area of such proposed action.
If the Secretary advises, based on the best scientific and commercial
data available, that such species may be present, such agency shall
conduct a biological assessment for the purpose of identifying any
endangered species or threatened species which is likely to be affected
by such action. Such assessment shall be completed within 180 days
after the date on which initiated (or within such other period as
is mutually agreed to by the Secretary and such agency, except that
if a permit or license applicant is involved, the 180-day period
may not be extended unless such agency provides the applicant, before
the close of such period, with a written statement setting forth
the esti- mated length of the proposed extension and the reasons
therefor) and, before any contract for construction is entered into
and before construction is begun with respect to such action. Such
assessment may be undertaken as part of a Federal agency's compliance
with the requirements of section 102 of the National Environmental
Policy Act of 1969 (42 U.S.C. 4332).
(2) Any person who may wish to apply for an exemption under subsection
(g) of this section for that action may conduct a biological assessment
to identify any endangered species or threatened species which is
likely to be affected by such action. Any such bio- logical assessment
must, however, be conducted in cooperation with the Secretary and
under the supervision of the appropriate Federal agency.
(d) LIMITATION ON COMMITMENT OF RESOURCES.-After initiation of consultation
required under subsection (a)(2), the Federal agency and the permit
or license applicant shall not make any irreversible or irretrievable
commitment of resources with respect to the agency action which
has the effect of foreclosing the formulation or implementation
of any reasonable and prudent alternative measures which would not
violate subsection (a)(2).
(e)(1) ESTABLISHMENT OF COMMITTEE.-There is established a committee
to be known as the Endangered Species Committee (hereinafter in
this section referred to as the "Committee").
(2) The Committee shall review any application submitted to it pursuant
to this section and determine in accordance with subsection (h)
of this section whether or not to grant an exemption from the requirements
of subsection (a)(2) of this action for the action set forth in
such application.
(3) The Committee shall be composed of seven members as follows:
(A) The Secretary of Agriculture.
(B) The Secretary of the Army.
(C) The Chairman of the Council of Economic Advisors.
(D) The Administrator of the Environmental Protection Agency. Agency.
(E) The Secretary of the Interior.
(F) The Administrator of the National Oceanic and Atmospheric Administration.
(G) The President, after consideration of any recommendations received
pursuant to subsection (g)(2)(B) shall appoint one individual from
each affected State, as determined by the Secretary, to be a member
of the Committee for the consideration of the application for exemption
for an agency action with respect to which such recommendations
are made, not later than 30 days after an application is submitted
pursuant to this section.
(4)(A) Members of the Committee shall receive no additional pay
on account of their service on the Committee.
(B) While away from their homes or regular places of business in
the performance of services for the Committee, members of the Committee
shall be allowed travel expenses, including per diem in lieu of
subsistence, in the same manner as persons employed inter- mittently
in the Government service are allowed expenses under section 5703
of title 5 of the United States Code.
(5)(A) Five members of the Committee or their representatives shall
constitute a quorum for the transaction of any function of the Committee,
except that, in no case shall any representative be considered in
determining the existence of a quorum for the transaction of any
function of the Committee if that function involves a vote by the
Committee on any matter before the Committee.
(B) The Secretary of the Interior shall be the Chairman of the Committee.
(C) The Committee shall meet at the call of the Chairman or five
of its members.
(D) All meetings and records of the Committee shall be open to the
public.
(6) Upon request of the Committee, the head of any Federal agency
is authorized to detail, on a nonreimbursable basis, any of the
personnel of such agency to the Committee to assist it in carrying
out its duties under this section.
(7)(A) The Committee may for the purpose of carrying out its duties
under this section hold such hearings, sit and act at such times
and places, take such testimony, and receive such evidence, as the
Committee deems advisable.
(B) When so authorized by the Committee, any member or agent of
the Committee may take any action which the Committee is authorized
to take by this paragraph.
(C) Subject to the Privacy Act, the Committee may secure directly
from any Federal agency information necessary to enable it to carry
out its duties under this section. Upon request of the Chairman
of the Committee, the head of such Federal agency shall furnish
such information to the Committee.
(D) The Committee may use the United States mails in the same manner
and upon the same conditions as a Federal agency.
(E) The Administrator of General Services shall provide to the Committee
on a reimbursable basis such administrative support services as
the Committee may request.
(8) In carrying out its duties under this section, the Committee
may promulgate and amend such rules, regulations, and procedures,
and issue and amend such orders as it deems necessary.
(9) For the purpose of obtaining information necessary for the consideration
of an application for an exemption under this section the Committee
may issue subpoenas for the attendance and testimony of witnesses
and the production of relevant papers, books, and documents.
(10) In no case shall any representative, including a representative
of a member designated pursuant to paragraph (3)(G) of this subsection,
be eligible to cast a vote on behalf of any member.
(f) REGULATIONS.-Not later than 90 days after the date of enactment
of the Endangered Species Act Amendments of 1978, the Secretary
shall promulgate regulations which set forth the form and manner
in which applications for exemption shall be submitted to the Secretary
and the information to be contained in such applications. Such regulations
shall require that information submitted in an application by the
head of any Federal agency with respect to any agency action include
but not be limited to-
(1) a description of the consultation process carried out pursuant
to subsection (a)(2) of this section between the head of the Federal
agency and the Secretary; and
(2) a statement describing why such action cannot be altered or
modified to conform with the requirements of subsection (a)(2) of
this section.
(g) APPLICATION FOR EXEMPTION AND REPORT TO THE COMMITTEE.-
(1) A Federal agency, the Governor of the State in which an agency
action will occur, if any, or a permit or license applicant may
apply to the Secretary for an exemption for an agency action of
such agency if, after consultation under subsection (a)(2), the
Secretary's opinion under subsection (b) indicates that the agency
action would violate subsection (a)(2). An application for an exemption
shall be considered initially by the Secretary in the manner provided
for in this subsection, and shall be considered by the Committee
for a final determination under subsection (h) after a report is
made pursuant to paragraph (5). The applicant for an exemption shall
be referred to as the "exemption applicant" in this section.
(2)(A) An exemption applicant shall submit a written application
to the Secretary, in a form prescribed under subsection (f), not
later than 90 days after the completion of the consultation process;
except that, in the case of any agency action involving a permit
or license applicant, such application shall be submitted not later
than 90 days after the date on which the Federal agency concerned
takes final agency action with respect to the issuance of the permit
or license. For purposes of the preceding sentence, the term "final
agency action" means (i) a disposition by an agency with respect
to the issuance of a permit or license that is subject to administrative
review, whether or not such disposition is subject to judicial review;
or (ii) if administrative review is sought with respect to such
disposition, the decision resulting after such review. Such application
shall set forth the reasons why the exemption applicant considers
that the agency action meets the requirements for an exemption under
this subsection.
(B) Upon receipt of an application for exemption for an agency action
under paragraph (1), the Secretary shall promptly
(i) notify the Governor of each affected State, if any, as determined
by the Secretary, and request the Governors so notified to recommend
individuals to be appointed to the Endangered Species Committee
for consideration of such application; and
(ii) publish notice of receipt of the application in the Federal
Register, including a summary of the information contained in the
application and a description of the agency action with respect
to which the application for exemption has been filed.
(3) The Secretary shall within 20 days after the receipt of an application
for exemption, or within such other period of time as is mutually
agreeable to the exemption applicant and the Secretary
(A) determine that the Federal agency concerned and the exemption
applicant have-
(i) carried out the consultation responsibilities described in subsection
(a) in good faith and made a reasonable and responsible effort to
develop and fairly consider modifications or reasonable and prudent
alternatives to the proposed agency action which would not violate
subsection (a)(2);
(ii) conducted any biological assessment required by subsection
(c); and
(iii) to the extent determinable within the time provided herein,
refrained from making any irreversible or irretrievable commitment
of resources prohibited by subsection (d); or
(B) deny the application for exemption because the Federal agency
concerned or the exemption applicant have not met the requirements
set forth in subparagraph (A) (i), (ii), and (iii). The denial of
an application under subparagraph (B) shall be considered final
agency action for purposes of chapter 7 of title 5, United States
Code.
(4) If the Secretary determines that the Federal agency concerned
and the exemption applicant have met the requirements set forth
in paragraph (3)(A) (i), (ii) and (iii) he shall, in consultation
with the Members of the Committee, hold a hearing on the application
for exemption in accordance with sections 554, 555, and 556 (other
than subsection (b) (1) and (2) thereof) of title 5, United States
Code, and prepare the report to be submitted pursuant to paragraph
(5).
(5) Within 140 days after making the determinations under paragraph
(3) or within such other period of time as is mutually agreeable
to the exemption applicant and the Secretary, the Secretary shall
submit to the Committee a report discussing-
(A) the availability of reasonable and prudent alternatives to the
agency action, and the nature and extent of the benefits of the
agency action and of alternative courses of action consistent with
conserving the species of the critical habitat;
(B) a summary of the evidence concerning whether or not the agency
action is in the public interest and is of national or regional
significance;
(C) appropriate reasonable mitigation and enhancement measures which
should be considered by the Committee; and
(D) whether the Federal agency concerned and the exemption applicant
refrained from making any irreversible or irretrievable commitment
of resources prohibited by subsection (d).
(6) To the extent practicable within the time required for action
under subsection (g) of this section, and except to the extent inconsistent
with the requirements of this section, the consideration of any
application for an exemption under this section and the conduct
of any hearing under this subsection shall be in accordance with
sections 554, 555, and 556 (other than subsection (b)(3) of section
556) of title 5, United States Code.
(7) Upon request of the Secretary, the head of any Federal agency
is authorized to detail, on a nonreimbursable basis, any of the
personnel of such agency to the Secretary to assist him in carrying
out his duties under this section.
(8) All meetings and records resulting from activities pursuant
to this subsection shall be open to the public.
(h) EXEMPTION.-
(1) The Committee shall make a final determination whether or not
to grant an exemption within 30 days after receiving the report
of the Secretary pursuant to subsection (g)(5). The Committee shall
grant an exemption from the requirements of subsection (a)(2) for
an agency action if, by a vote of not less than five of its members
voting in person-
(A) it determines on the record, based on the report of the Secretary,
the record of the hearing held under subsection (g)(4), and on such
other testimony or evidence as it may receive, that-
(i) there are no reasonable and prudent alternatives to the agency
action;
(ii) the benefits of such action clearly outweigh the benefits of
alternative courses of action consistent with conserving the species
or its critical habitat, and such action is in the public interest;
(iii) the action is of regional or national significance; and
(iv) neither the Federal agency concerned nor the exemption applicant
made any irreversible or irretrievable commitment of resources prohibited
by subsection (d); and
(B) it establishes such reasonable mitigation and enhancement measures,
including, but not limited to, live propagation, transplantation,
and habitat acquisition and improvement, as are necessary and appropriate
to minimize the adverse effects of the agency action upon the endangered
species, threatened species, or critical habitat concerned.
Any final determination by Committee under this subsection shall
be considered final agency action for purposes of chapter 7 of title
5 of the United States Code.
(2)(A) Except as provided in subparagraph (B), an exemption for
an agency action granted under paragraph (1) shall constitute a
permanent exemption with respect to all endangered or threatened
species for the purposes of completing such agency action-
(i) regardless whether the species was identified in the biological
assessment; and
(ii) only if a biological assessment has been conducted under subsection
(c) with respect to such agency action.
(B) An exemption shall be permanent under subparagraph (A) unless-
(i) the Secretary finds, based on the best scientific and commercial
data available, that such exemption would result in the extinction
of a species that was not the subject of consultation under subsection
(a)(2) or was not identified in any biological assessment conducted
under subsection (c), and
(ii) the Committee determines within 60 days after the date of the
Secretary's finding that the exemption should not be permanent.
If the Secretary makes a finding described in clause (i), the Committee
shall meet with respect to the matter within 30 days after the date
of the finding.
(i) REVIEW BY SECRETARY OF STATE.-Notwithstanding any other provision
of this Act, the Committee shall be prohibited from considering
for exemption any application made to it, if the Secretary of State,
after a review of the proposed agency action and its potential implications,
and after hearing, certifies, in writing, to the Committee within
60 days of any application made under this section that the granting
of any such exemption and the carrying out of such action would
be in violation of an international treaty obli- gation or other
international obligation of the United States. The Secretary of
State shall, at the time of such certification, publish a copy thereof
in the Federal Register.
(j) Notwithstanding any other provision of this Act, the Committee
shall grant an exemption for any agency action if the Secretary
of Defense finds that such exemption is necessary for reasons of
national security.
(k) SPECIAL PROVISIONS.-An exemption decision by the Committee under
this section shall not be a major Federal action for purposes of
the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.): Provided, That an environmental impact statement which discusses
the impacts upon endangered species or threatened species or their
critical habitats shall have been previously prepared with respect
to any agency action exempted by such order.
(l) COMMITTEE ORDERS.-
(1) If the Committee determines under subsection (h) that an exemption
should be granted with respect to any agency action, the Committee
shall issue an order granting the exemption and specifying the mitigation
and enhancement measures established pursuant to subsection (h)
which shall be carried out and paid for by the exemption applicant
in implementing the agency action. All necessary mitigation and
enhancement measures shall be authorized prior to the implementing
of the agency action and funded concurrently with all other project
features.
(2) The applicant receiving such exemption shall include the costs
of such mitigation and enhancement measures within the overall costs
of continuing the proposed action. Notwithstanding the preceding
sentence the costs of such measures shall not be treated as project
costs for the purpose of computing benefit-cost or other ratios
for the proposed action. Any applicant may request the Secretary
to carry out such mitigation and enhancement measures. The costs
incurred by the Secretary in carrying out any such measures shall
be paid by the applicant receiving the exemption. No later than
one year after the granting of an exemption, the exemption applicant
shall submit to the Council on Environmental Quality a report describing
its compliance with the mitigation and en- hancement measures prescribed
by this section. Such report shall be submitted annually until all
such mitigation and enhancement measures have been completed. Notice
of the public availability of such reports shall be published in
the Federal Register by the Council on Environmental Quality.
(m) NOTICE.-The 60-day notice requirement of section 11(g) of this
Act shall not apply with respect to review of any final determination
of the Committee under subsection (h) of this section granting an
exemption from the requirements of subsection (a)(2) of this section.
(n) JUDICIAL REVIEW.-Any person, as defined by section 3(13) of
this Act, may obtain judicial review, under chapter 7 of title 5
of the United States Code, of any decision of the Endangered Species
Committee under subsection (h) in the United States Court of Appeals
for
(1) any circuit wherein the agency action concerned will be, or
is being, carried out, or
(2) in any case in which the agency action will be, or is being,
carried out outside of any circuit, the District of Columbia, by
filing in such court within 90 days after the date of issuance of
the decision, a written petition for review. A copy of such petition
shall be transmitted by the clerk of the court to the Committee
and the Committee shall file in the court the record in the proceeding,
as provided in section 2112, of title 28, United States Code. Attorneys
designated by the Endangered Species Committee may appear for, and
represent the Committee in any action for review under this subsection.
(o) EXEMPTION AS PROVIDING EXCEPTION ON TAKING OF ENDANGERED SPECIES.-Notwithstanding
sections 1533(d) and 1538(a)(1)(B) and (C) of this title, sections
1371 and 1372 of this title, or any regulation promulgated to implement
any such section-
(1) any action for which an exemption is granted under subsection
(h) of this section shall not be considered to be a taking of any
endangered species or threatened species with respect to any activity
which is necessary to carry out such action; and
(2) any taking that is in compliance with the terms and conditions
specified in a written statement provided under subsection (b)(4)(iv)
of this section shall not be considered to be a prohibited taking
of the species concerned.
(p) EXEMPTIONS IN PRESIDENTIALLY DECLARED DISASTER AREAS. In any
area which has been declared by the President to be a major disaster
area under the Disaster Relief Act of 1974, the President is authorized
to make the determinations required by subsections (g) and (h) of
this section for any project for the repair or replacement of a
public facility substantially as it existed prior to the disaster
under section 401 or 402 of the Disaster Relief Act of 1974, and
which the President determines
(1) is necessary to prevent the recurrence of such a natural disaster
and to reduce the potential loss of human life, and
(2) to involve an emergency situation which does not allow the ordinary
procedures of this section to be followed. Notwithstanding any other
provision of this section, the Committee shall accept the determinations
of the President under this subsection.
INTERNATIONAL COOPERATION ^^^
SEC. 8.
(a) FINANCIAL ASSISTANCE.-As a demonstration of the commitment of
the United States to the worldwide protection of endangered species
and threatened species, the President may, subject to the provisions
of section 1415 of the Supplemental Appropriation Act, 1953 (31
U.S.C. 724), use foreign currencies accruing to the United States
Government under the Agricultural Trade Development and Assistance
Act of 1954 or any other law to provide to any foreign country (with
its consent) assistance in the development and management of programs
in that country which the Secretary determines to be necessary or
useful for the conservation of any endangered species or threatened
species listed by the Secretary pursuant to section 4 of this Act.
The President shall provide assistance (which includes, but is not
limited to, the acquisition, by lease or otherwise, of lands, waters,
or interests therein) to foreign countries under this section under
such terms and conditions as he deems appropriate. Whenever foreign
currencies are available for the provision of assistance under this
section, such currencies shall be used in preference to funds appropriated
under the authority of section 15 of this Act.
(b) ENCOURAGEMENT OF FOREIGN PROGRAMS.-In order to carry out further
the provisions of this Act, the Secretary, through the Secretary
of State shall encourage-
(1) foreign countries to provide for the conservation of fish or
wildlife and plants including endangered species and threatened
species listed pursuant to section 4 of this Act;
(2) the entering into of bilateral or multilateral agreements with
foreign countries to provide for such conservation; and
(3) foreign persons who directly or indirectly take fish or wildlife
or plants in foreign countries or on the high seas for importation
into the United States for commercial or other purposes to develop
and carry out with such assistance as he may provide, conservation
practices designed to enhance such fish or wildlife or plants and
their habitat.
(c) PERSONNEL.-After consultation with the Secretary of State, the
Secretary may-
(1) assign or otherwise make available any officer or employee of
his department for the purpose of cooperating with foreign countries
and international organizations in developing personnel resources
and programs which promote the conservation of fish or wildlife
or plants, and
(2) conduct or provide financial assistance for the educational
training of foreign personnel, in this country or abroad, in fish,
wildlife, or plant management, research and law enforcement and
to render professional assistance abroad in such matters.
(d) INVESTIGATIONS.-After consultation with the Secretary of State
and the Secretary of the Treasury, as appropriate, the Secretary
may conduct or cause to be conducted such law enforcement investigations
and research abroad as he deems necessary to carry out the purposes
of this Act.
CONVENTION IMPLEMENTATION
SEC. 8A.
(a) MANAGEMENT AUTHORITY AND SCIENTIFIC AUTHORITY.-The Secretary
of the Interior (hereinafter in this section referred to as the
"Secretary") is designated as the Management Authority
and the Scientific Authority for purposes of the Convention and
the respective functions of each such Authority shall be carried
out through the United States Fish and Wildlife Service.
(b) MANAGEMENT AUTHORITY FUNCTIONS.-The Secretary shall do all things
necessary and appropriate to carry out the functions of the Management
Authority under the Convention.
(c) SCIENTIFIC AUTHORITY FUNCTIONS.-
(1) The Secretary shall do all things necessary and appropriate
to carry out the functions of the Scientific Authority under the
Convention.
(2) The Secretary shall base the determinations and advice given
by him under Article IV of the Convention with respect to wildlife
upon the best available biological information derived from professionally
accepted wildlife management practices; but is not required to make,
or require any State to make, estimates of population size in making
such determinations or giving such advice.
(d) RESERVATIONS BY THE UNITED STATES UNDER CONVENTION.-If the United
States votes against including any species in Appendix I or II of
the Convention and does not enter a reservation pursuant to paragraph
(3) of Article XV of the Convention with respect to that species,
the Secretary of State, before the 90th day after the last day on
which such a reservation could be entered, shall submit to the Committee
on Merchant Marine and Fisheries of the House of Representatives,
and to the Committee on the Environment and Public Works of the
Senate, a written report setting forth the reasons why such a reservation
was not entered.
(e) WILDLIFE PRESERVATION IN WESTERN HEMISPHERE.-
(1) The Secretary of the Interior (hereinafter in this subsection
referred to as the "Secretary"), in cooperation with the
Secretary of State, shall act on behalf of, and represent, the United
States in all regards as required by the Convention on Nature Protection
and Wildlife Preservation in the Western Hemisphere (56 Stat. 1354,
T.S. 982, hereinafter in this subsection referred to as the "Western
Convention"). In the discharge of these responsibilities, the
Secretary and the Secretary of State shall consult with the Secretary
of Agriculture, the Secretary of Commerce, and the heads of other
agencies with respect to matters relating to or affecting their
areas of responsibility.
(2) The Secretary and the Secretary of State shall, in cooperation
with the contracting parties to the Western Convention and, to the
extent feasible and appropriate, with the participation of State
agencies, take such steps as are necessary to implement the Western
Convention. Such steps shall include, but not be limited to
(A) cooperation with contracting parties and international organizations
for the purpose of developing personnel resources and programs that
will facilitate implementation of the Western Convention;
(B) identification of those species of birds that migrate between
the United States and other contracting parties, and the habitats
upon which those species depend, and the implementation of cooperative
measures to ensure that such species will not become endangered
or threatened; and
(C) identification of measures that are necessary and appropriate
to implement those provisions of the Western Convention which address
the protection of wild plants.
(3) No later than September 30, 1985, the Secretary and the Secretary
of State shall submit a report to Congress describing those steps
taken in accordance with the requirements of this subsection and
identifying the principal remaining actions yet necessary for comprehensive
and effective implementation of the Western Convention.
(4) The provisions of this subsection shall not be construed as
affecting the authority, jurisdiction, or responsibility of the
several States to manage, control, or regulate resident fish or
wildlife under State law or regulations.
PROHIBITED ACTS ^^^
SEC. 9.
(a) GENERAL.-
(1) Except as provided in sections 6(g)(2) and 10 of this Act, with
respect to any endangered species of fish or wildlife listed pursuant
to section 4 of this Act it is unlawful for any person subject to
the jurisdiction of the United States to-
(A) import any such species into, or export any such species from
the United States;
(B) take any such species within the United States or the territorial
sea of the United States;
(C) take any such species upon the high seas;
(D) possess, sell, deliver, carry, transport, or ship, by any means
whatsoever, any such species taken in violation of subparagraphs
(B) and (C);
(E) deliver, receive, carry, transport, or ship in interstate or
foreign commerce, by any means whatsoever and in the course of a
commercial activity, any such species;
(F) sell or offer for sale in interstate or foreign commerce any
such species; or
(G) violate any regulation pertaining to such species or to any
threatened species of fish or wildlife listed pursuant to section
4 of this Act and promulgated by the Secretary pursuant to authority
provided by this Act.
(2) Except as provided in sections 6(g)(2) and 10 of this Act, with
respect to any endangered species of plants listed pursuant to section
4 of this Act, it is unlawful for any person subject to the jurisdiction
of the United States to-
(A) import any such species into, or export any such species from,
the United States;
(B) remove and reduce to possession any such species from areas
under Federal jurisdiction; maliciously damage or destroy any such
species on any such area; or remove, cut, dig up, or damage or destroy
any such species on any other area in knowing violation of any law
or regulation of any state or in the course of any violation of
a state criminal trespass law;
(C) deliver, receive, carry, transport, or ship in interstate or
foreign commerce, by any means whatsoever and in the course of a
commercial activity, any such species;
(D) sell or offer for sale in interstate or foreign commerce any
such species; or
(E) violate any regulation pertaining to such species or to any
threatened species of plants listed pursuant to section 4 of this
Act and promulgated by the Secretary pursuant to authority provided
by this Act.
(b)(1) SPECIES HELD IN CAPTIVITY OR CONTROLLED ENVIRONMENT. The
provisions of subsections (a)(1)(A) and (a)(1)(G) of this section
shall not apply to any fish or wildlife which was held in captivity
or in a controlled environment on
(A) December 28, 1973, or
(B) the date of the publication in the Federal Register of a final
regulation adding such fish or wildlife species to any list published
pursuant to subsection (c) of section 4 of this Act: Provided, That
such holding and any subsequent holding or use of the fish or wildlife
was not in the course of a commercial activity. With respect to
any act prohibited by subsections (a)(1)(A) and (a)(1)(G) of this
section which occurs after a period of 180 days from
(i) December 28, 1973, or
(ii) the date of publication in the Federal Register of a final
regulation adding such fish or wildlife species to any list published
pursuant to subsection (c) of section 4 of this Act, there shall
be a rebuttable presumption that the fish or wildlife involved in
such act is not entitled to the exemption contained in this subsection.
(2)(A) The provisions of subsections (a)(1) shall not apply to-
(i) any raptor legally held in captivity or in a controlled environment
on the effective date of the Endangered Species Act Amendments of
1978; or
(ii) any progeny of any raptor described in clause (i); until such
time as any such raptor or progeny is intentionally returned to
a wild state.
(B) Any person holding any raptor or progeny described in subparagraph
(A) must be able to demonstrate that the raptor or progeny does,
in fact, qualify under the provisions of this paragraph, and shall
maintain and submit to the Secretary, on request, such inventories,
documentation, and records as the Secretary may by regulation require
as being reasonably appropriate to carry out the purposes of this
paragraph. Such requirements shall not unnecessarily duplicate the
requirements of other rules and regulations promulgated by the Secretary.
(c) VIOLATION OF CONVENTION.-
(1) It is unlawful for any person subject to the jurisdiction of
the United States to engage in any trade in any specimens contrary
to the provisions of the Convention, or to possess any specimens
traded contrary to the provisions of the Convention, including the
definitions of terms in article I thereof
(2) Any importation into the United States of fish or wildlife shall,
if-
(A) such fish or wildlife is not an endangered species listed pursuant
to section 4 of this Act but is listed in Appendix II of the Convention;
(B) the taking and exportation of such fish or wildlife is not contrary
to the provisions of the Convention and all other applicable requirements
of the Convention have been satisfied;
(C) the applicable requirements of subsections (d), (e), and (f)
of this section have been satisfied; and
(D) such importation is not made in the course of a commercial activity;
be presumed to be an importation not in violation of any provision
of this Act or any regulation issued pursuant to this Act.
(d) IMPORTS AND EXPORTS.-
(1) IN GENERAL.-It is unlawful for any person, without first having
obtained permission from the Secretary, to engage in business-
(A) as an importer or exporter of fish or wildlife (other than shellfish
and fishery products which
(i) are not listed pursuant to section 4 of this Act as endangered
species or threatened species, and
(ii) are imported for purposes of human or animal consumption or
taken in waters under the jurisdiction of the United States or on
the high seas for recreational purposes) or plants; or
(B) as an importer or exporter of any amount of raw or worked African
elephant ivory.
(2) REQUIREMENTS.-Any person required to obtain permission under
paragraph (1) of this subsection shall-
(A) keep such records as will fully and correctly disclose each
importation or exportation of fish, wildlife, plants, or African
elephant ivory made by him and the subsequent disposition made by
him with respect to such fish, wildlife, plants, or ivory;
(B) at all reasonable times upon notice by a duly authorized representative
of the Secretary, afford such representative access to his place
of business, an opportunity to ex- amine his inventory of imported
fish, wildlife, plants, or African elephant ivory and the records
required to be kept under subparagraph (A) of this paragraph, and
to copy such records; and
(C) file such reports as the Secretary may require.
(3) REGULATIONS.-The Secretary shall prescribe such regulations
as are necessary and appropriate to carry out the purposes of this
subsection.
(4) RESTRICTION ON CONSIDERATION OF VALUE OR AMOUNT OF AFRICAN
ELEPHANT IVORY IMPORTED OR EXPORTED.-In granting permission under
this subsection for importation or exportation of African elephant
ivory, the Secretary shall not vary the requirements for obtaining
such permission on the basis of the value or amount of ivory imported
or exported under such permission.
(e) REPORTS.-It is unlawful for any person importing or exporting
fish or wildlife (other than shellfish and fishery products) which
(1) are not listed pursuant to section 4 of this Act as endangered
or threatened species, and
(2) are imported for purposes of human or animal consumption or
taken in waters under the jurisdiction of the United States or on
the high seas for recreational purposes) or plants to fail to file
any declaration or report as the Secretary deems necessary to facilitate
enforcement of this Act or to meet the obligations of the Convention.
(f) DESIGNATION OF PORTS.-
(1) It is unlawful for any person subject to the jurisdiction of
the United States to import into or export from the United States
any fish or wildlife (other than shellfish and fishery products
which
(A) are not listed pursuant to section 4 of this Act as endangered
species or threatened species, and
(B) are imported for purposes of human or animal consumption or
taken in waters under the jurisdiction of the United States or on
the high seas for recreational purposes) or plants, except at a
port or ports designated by the Secretary of the Interior. For the
purposes of facilitating enforcement of this Act and reducing the
costs thereof, the Secretary of the Interior, with approval of the
Secretary of the Treasury and after notice and opportunity for public
hearing, may, by regulation, designate ports and change such designations.
The Secretary of the Interior, under such terms and conditions as
he may prescribe, may permit the importation or exportation at nondesignated
ports in the interest of the health or safety of the fish or wildlife
or plants, or for other reasons if, in his discretion, he deems
it appropriate and consistent with the purpose of this subsection.
(2) Any port designated by the Secretary of the Interior under the
authority of section 4(d) of the Act of December 5, 1969 (16 U.S.C.
666cc 4(d), shall, if such designation is in effect on the day before
the date of the enactment of this Act, be deemed to be a port designated
by the Secretary under paragraph (1) of this subsection until such
time as the Secretary otherwise provides.
(g) VIOLATIONS.-It is Unlawful for any person subject to the jurisdiction
of the United States to attempt to commit, solicit another to commit,
or cause to be committed, any offense defined in this section.
EXCEPTIONS ^^^
SEC. 10.
(a) PERMITS.-
(1) The Secretary may permit, under such terms and conditions as
he shall prescribe-
(A) any act otherwise prohibited by section 9 for scientific purposes
or to enhance the propagation or survival of the affected species,
including, but not limited to, acts necessary for the establishment
and maintenance of experimental populations pursuant subsection
(j); or
(B) any taking otherwise prohibited by section 9(a)(1)(B) if such
taking is incidental to, and not the purpose of, the carrying out
of an otherwise lawful activity.
(2)(A) No permit may be issued by the Secretary authorizing any
taking referred to in paragraph (1)(B) unless the applicant therefor
submits to the Secretary a conservation plan that specifies-
(i) the impact which will likely result from such taking;
(ii) what steps the applicant will take to minimize and mitigate
such impacts, and the funding that will be available to implement
such steps;
(iii) what alternative actions to such taking the applicant considered
and the reasons why such alternatives are not being utilized; and
(iv) such other measures that the Secretary may require as being
necessary or appropriate for purposes of the plan.
(B) If the Secretary finds, after opportunity for public comment,
with respect to a permit application and the related conservation
plan that-
(i) the taking will be incidental;
(ii) the applicant will, to the maximum extent practicable, minimize
and mitigate the impacts of such taking;
(iii) the applicant will ensure that adequate funding for the plan
will be provided;
(iv) the taking will not appreciably reduce the likelihood of the
survival and recovery of the species in the wild; and
(v) the measures, if any, required under subparagraph (A)(iv) will
be met; and he has received such other assurances as he may require
that the plan will be implemented, the Secretary shall issue the
permit. The permit shall contain such terms and conditions as the
Secretary deems necessary or appropriate to carry out the purposes
of this paragraph, including, but not limited to, such reporting
requirements as the Secretary deems necessary for determining whether
such terms and conditions are being complied with.
(C) The Secretary shall revoke a permit issued under this paragraph
if he finds that the permittee is not complying with the terms and
conditions of the permit.
(b) HARDSHIP EXEMPTIONS.-
(1) If any person enters into a contract with respect to a species
of fish or wildlife or plant before the date of the publication
in the Federal Register of notice of consideration of that species
as an endangered species and the subsequent listing of that species
as an endangered species pursuant to section 4 of this Act will
cause undue hardship to such person under the contract, the Secretary,
in order to minimize such hardship, may exempt such person from
the application of section 9(a) of this Act to the extent the Secretary
deems appropriate if such person applies to him for such exemption
and includes with such application such information as the Secretary
may require to prove such hardship; except that (A) no such exemption
shall be for a duration of more than one year from the date of publication
in the Federal Register of notice of consideration of the species
concerned, or shall apply to a quantity of fish or wildlife or plants
in excess of that specified by the Secretary; (B) the one-year period
for those species of fish or wildlife listed by the Secretary as
endangered prior to the effective date of this Act shall expire
in accordance with the terms of section 3 of the Act of December
5, 1969 (83 Stat. 275); and (C) no such exemption may be granted
for the importation or exportation of a specimen listed in Appendix
I of the Convention which is to be used in a commercial activity.
(2) As used in this subsection, the term "undue economic hardship"
shall include, but not be limited to:
(A) substantial economic loss resulting from inability caused by
this Act to perform contracts with respect to species of fish and
wildlife entered into prior to the date of publication in the Federal
Register of a notice of consideration of such species as an endangered
species;
(B) substantial economic loss to persons who, for the year prior
to the notice of consideration of such species as an endangered
species, derived a substantial portion of their income from the
lawful taking of any listed species, which taking would be made
unlawful under this Act; or
(C) curtailment of subsistence taking made unlawful under this Act
by persons
(i) not reasonably able to secure other sources of subsistence;
and
(ii) dependent to a substantial extent upon hunting and fishing
for subsistence; and
(iii) who must engage in such curtailed taking for subsistence purposes.
(3) The Secretary may make further requirements for a showing of
undue economic hardship as he deems fit. Exceptions granted under
this section may be limited by the Secretary in his discretion as
to time, area, or other factor of applicability.
(c) NOTICE AND REVIEW.-The Secretary shall publish notice in the
Federal Register of each application for an exemption or permit
which is made under this section. Each notice shall invite the submission
from interested parties, within thirty days after the date of the
notice, of written data, views, or arguments with respect to the
application; except that such thirty-day period may be waived by
the Secretary in an emergency situation where the health or life
of an endangered animal is threatened and no reasonable alternative
is available to the applicant, but notice of any such waiver shall
be published by the Secretary in the Federal Register within ten
days following the issuance of the exemption or permit. Information
received by the Secretary as part of any application shall be available
to the public as a matter of public record at every stage of the
proceeding.
(d) PERMIT AND EXEMPTION POLICY.-The Secretary may grant exceptions
under subsections (a)(1)(A) and (b) of this section only if he finds
and publishes his finding in the Federal Register that
(1) such exceptions were applied for in good faith,
(2) if granted and exercised will not operate to the disadvantage
of such endangered spe- cies, and
(3) will be consistent with the purposes and policy set forth in
section 2 of this Act.
(e) ALASKA NATIVES.-
(1) Except as provided in paragraph (4) of this subsection the provisions
of this Act shall not apply with respect to the taking of any endangered
species or threatened species, or the importation of any such species
taken pursuant to this section, by-
(A) any Indian, Aleut, or Eskimo who is an Alaskan Native who resides
in Alaska; or
(B) any non-native permanent resident of an Alaskan native village;
if such taking is primarily for subsistence purposes. Non-edible
byproducts of species taken pursuant to this section may be sold
in interstate commerce when made into authentic native articles
of handicrafts and clothing; except that the provisions of this
subsection shall not apply to any non-native resident of an Alaskan
native village found by the Secretary to be not primarily dependent
upon the taking of fish and wildlife for consumption or for the
creation and sale of authentic native articles of handicrafts and
clothing.
(2) Any taking under this subsection may not be accomplished in
a wasteful manner.
(3) As used in this subsection-
(i) The term "subsistence" includes selling any edible
portion of fish or wildlife in native villages and towns in Alaska
for native consumption within native villages or towns; and
(ii) The term "authentic native articles of handicrafts and
clothing" means items composed wholly or in some significant
respect to natural materials, and which are produced, decorated
or fashioned in the exercise of traditional native handicrafts without
the use of pantographs, multiple carvers, or other mass copying
devices. Traditional native handicrafts include, but are not limited
to, weaving, carving, stitching, sewing, lacing, beading, drawing,
and painting.
(4) Notwithstanding the provisions of paragraph (1) of this subsection,
whenever the Secretary determines that any species of fish or wildlife
which is subject to taking under the provisions of this subsection
is an endangered species or threatened species, and that such taking
materially and negatively affects the threatened or endangered species,
he may prescribe regulations upon the taking of such species by
any such Indian, Aleut, Eskimo, or non-native Alaskan resident of
an Alaskan native village. Such regulations may be established with
reference to species, geographical description of the area included,
the season for taking, or any other factors related to the reason
for establishing such regulations and consistent with the policy
of this Act. Such regulations shall be prescribed after a notice
and hearings in the affected judicial districts of Alaska and as
otherwise required by section 103 of the Marine Mammal Protection
Act of 1972, and shall be removed as soon as the Secretary determines
that the need for their impositions has disappeared.
(f)(1) As used in this subsection-
(A) The term "Pre-Act endangered species part" means-
(i) any sperm whale oil, including derivatives thereof, which was
lawfully held within the United States on December 28, 1973, in
the course of a commercial activity; or
(ii) any finished scrimshaw product, if such product or the raw
material for such product was lawfully held within the United States
on December 28, 1973, in the course of a commercial activity.
(B) The term "scrimshaw product" means any art form which
involves the substantial etching or engraving of designs upon, or
the substantial carving of figures, patterns, or designs from, any
bone or tooth of any marine mammal of the order Cetacea. For purposes
of this subsection, polishing or the adding of minor superficial
markings does not constitute substantial etching, engraving, or
carving.
(2) The Secretary, pursuant to the provisions of this subsection,
may exempt, if such exemption is not in violation of the Convention,
any pre-Act endangered species part from one or more of the following
prohibitions:
(A) The prohibition on exportation from the United States set forth
in section 9(a)(1)(A) of this Act.
(B) Any prohibition set forth in section 9(a)(1) (E) or (F) of this
Act.
(3) Any person seeking an exemption described in paragraph (2) of
this subsection shall make application therefor to the Secretary
in such form and manner as he shall prescribe, but no such application
may be considered by the Secretary unless the application-
(A) is received by the Secretary before the close of the one year
period beginning on the date on which regulations promulgated by
the Secretary to carry out this subsection first take effect;
(B) contains a complete and detailed inventory of all pre-Act endangered
species parts for which the applicant seeks exemption;
(C) is accompanied by such documentation as the Secretary may require
to prove that any endangered species part or product claimed by
the applicant to be a pre-Act endangered species part is in fact
such a part; and
(D) contains such other information as the Secretary deems necessary
and appropriate to carry out the purposes of this subsection.
(4) If the Secretary approves any application for exemption made
under this subsection, he shall issue to the applicant a certificate
of exemption which shall specify-
(A) any prohibition in section 9(a) of this Act which is exempted;
(B) the pre-Act endangered species parts to which the exemption
applies;
(C) the period of time during which the exemption is in effect,
but no exemption made under this subsection shall have force and
effect after the close of the three-year period beginning on the
date of issuance of the certificate unless such exemption is renewed
under paragraph (8); and
(D) any term or condition prescribed pursuant to paragraph (5)(A)
or (B), or both, which the Secretary deems necessary or appropriate.
(5) The Secretary shall prescribe such regulations as he deems necessary
and appropriate to carry out the purposes of this subsection. Such
regulations may set forth-
(A) terms and conditions which may be imposed on applicants for
exemptions under this subsection (including, but not limited to,
requirements that applicants register inventories, keep complete
sales records, permit duly authorized agents of the Secretary to
inspect such inventories and records, and periodically file appropriate
reports with the Secretary); and
(B) terms and conditions which may be imposed on any subsequent
purchaser of any pre-Act endangered species part covered by an exemption
granted under this subsection; to insure that any such part so exempted
is adequately accounted for and not disposed of contrary to the
provisions of this Act. No regulation prescribed by the Secretary
to carry out the purposes of this subsection shall be subject to
section 4(f)(2)(A)(i) of this Act.
(6)(A) Any contract for the sale of pre-Act endangered species parts
which is entered into by the Administrator of General Services prior
to the effective date of this subsection and pursuant to the notice
published in the Federal Register on January 9, 1973, shall not
be rendered invalid by virtue of the fact that fulfillment of such
contract may be prohibited under section 9(a)(1)(F).
(B) In the event that this paragraph is held invalid, the validity
of the remainder of the Act, including the remainder of this subsection,
shall not be affected.
(7) Nothing in this subsection shall be construed to-
(A) exonerate any person from any act committed in violation of
paragraphs (1)(A),
(1)(E), or (1)(F) of section 9(a) prior to the date of enactment
of this subsection; or
(B) immunize any person from prosecution for any such act.
(8)(A)(i) Any valid certificate of exemption which was renewed after
October 13, 1982, and was in effect on March 31, 1988, shall be
deemed to be renewed for a 6-month period beginning on the date
of enactment of the Endangered Species Act Amendments of 1988. Any
person holding such a certificate may apply to the Secretary for
one additional renewal of such certificate for a period not to exceed
5 years beginning on the date of such enactment.
(B) If the Secretary approves any application for renewal of an
exemption under this paragraph, he shall issue to the applicant
a certificate of renewal of such exemption which shall provide that
all terms, conditions, prohibitions, and other regulations made
applicable by the previous certificate shall remain in effect during
the period of the renewal.
(C) No exemption or renewal of such exemption made under this subsection
shall have force and effect after the expiration date of the certificate
of renewal of such exemption issued under this paragraph.
(D) No person may, after January 31, 1984, sell or offer for sale
in interstate or foreign commerce, any pre-Act finished scrimshaw
product unless such person holds a valid certificate of exemption
issued by the Secretary under this subsection, and unless such product
or the raw material for such product was held by such person on
October 13, 1982.
(g) In connection with any action alleging a violation of section
9, any person claiming the benefit of any exemption or permit under
this Act shall have the burden of proving that the exemption or
permit is applicable, has been granted, and was valid and in force
at the time of the alleged violation.
(h) CERTAIN ANTIQUE ARTICLES.-
(1) Sections 4(d), 9(a), and 9(c) do not apply to any article which-
(A) is not less than 100 years of age;
(B) is composed in whole or in part of any endangered species or
threatened species listed under section 4;
(C) has not been repaired or modified with any Dart of any such
species on or after the date of the enactment of this Act; and
(D) is entered at a port designated under paragraph (3).
(2) Any person who wishes to import an article under the exception
provided by this subsection shall submit to the customs officer
concerned at the time of entry of the article such documentation
as the Secretary of the Treasury, after consultation with the Secretary
of the Interior, shall by regulation require as being necessary
to establish that the article meets the requirements set forth in
paragraph (1) (A), (B), and (C).
(3) The Secretary of the Treasury, after consultation with the Secretary
of the Interior, shall designate one port within each customs region
at which articles described in paragraph
(1) (A), (B), and (C) must be entered into the customs territory
of the United States.
(4) Any person who imported, after December 27, 1973, and on or
before the date of the enactment of the Endangered Species Act Amendments
of 1978, any article described in paragraph (1) which-
(A) was not repaired or modified after the date of importation with
any part of any endangered species or threatened species listed
under section 4;
(B) was forfeited to the United States before such date of the enactment,
or is subject to forfeiture to the United States on such date of
enactment, pursuant to the assessment of a civil penalty under section
11; and
(C) is in the custody of the United States on such date of enactment;
may, before the close of the one-year period beginning on such date
of enactment make application to the Secretary for return of the
article. Application shall be made in such form and manner, and
contain such documentation, as the Secretary prescribes. If on the
basis of any such application which is timely filed, the Secretary
is satisfied that the requirements of this paragraph are met with
respect to the article concerned, the Secretary shall return the
arti- cle to the applicant and the importation of such article shall,
on and after the date of return, be deemed to be a lawful importation
under this Act.
(i) NONCOMMERCIAL TRANSSHIPMENTS.-Any importation into the United
States of fish or wildlife shall, if-
(1) such fish or wildlife was lawfully taken and exported from the
country of origin and country of reexport, if any;
(2) such fish or wildlife is in transit or transshipment through
any place subject to the jurisdiction of the United States enroute
to a country where such fish or wildlife may be lawfully imported
and received;
(3) the exporter or owner of such fish or wildlife gave explicit
instructions not to ship such fish or wildlife through any place
subject to the jurisdiction of the United States, or did all that
could have reasonably been done to prevent transshipment, and the
circumstances leading to the transshipment were beyond the exporter's
or owner's control;
(4) the applicable requirements of the Convention have been satisfied;
and
(5) such importation is not made in the course of a commercial activity,
be an importation not in violation of any provision of this Act
or any regulation issued pursuant to this Act while such fish or
wildlife remains in the control of the United States Customs Service.
(j) EXPERIMENTAL POPULATIONS.-
(1) For purposes of this subsection, the term "experimental
population" means any population (including any offspring arising
solely therefrom) authorized by the Secretary for release under
paragraph (2), but only when, and at such times as, the population
is wholly separate geographically from nonexperimental populations
of the same species.
(2)(A) The Secretary may authorize the release (and the related
transportation) of any population (including eggs, propagules, or
individuals) of an endangered species or a threatened species outside
the current range of such species if the Secretary determines that
such release will further the conservation of such species.
(B) Before authorizing the release of any population under subparagraph
(A), the Secretary shall by regulation identify the population and
determine, on the basis of the best available information, whether
or not such population is essential to the continued existence of
an endangered species or a threatened species.
(C) For the purposes of this Act, each member of an experimental
population shall be treated as a threatened species; except that-
(i) solely for purposes of section 7 (other than subsection (a)(1)
thereof), an experimental population determined under subparagraph
(B) to be not essential to the continued existence of a species
shall be treated, except when it occurs in an area within the National
Wildlife Refuge System or the National Park System, as a species
proposed to be listed under section 4; and
(ii) critical habitat shall not be designated under this Act for
any experimental population determined under subparagraph (B) to
be not essential to the continued existence of a species.
(3) The Secretary, with respect to populations of endangered species
or threatened species that the Secretary authorized, before the
date of the enactment of this subsection, for release in geographical
areas separate from the other populations of such species, shall
de- termine by regulation which of such populations are an experimental
population for the purposes of this subsection and whether or not
each is essential to the continued existence of an endangered species
or a threatened species.
PENALTIES AND ENFORCEMENT ^^^
SEC. 11.
(a) CIVIL PENALTIES.-
(1) Any person who knowingly violates, and any person engaged in
business as an importer or exporter of fish, wildlife, or plants
who violates, any provision of this Act, or any provision of any
permit or certificate issued hereunder, or of any regulation issued
in order to implement subsection (a)(1)(A), (B), (C), (D), (E),
or (F), (a)(2)(A), (B), (C), or (D), (c), (d) (other than regulation
relating to recordkeeping or filing of reports), (f), or (g) of
section 9 of this Act, may be assessed a civil penalty by the Secretary
of not more than $25,000 for each violation. Any person who knowingly
violates, and any person engaged in business as an importer or exporter
of fish, wildlife, or plants who violates, any pro- vision of any
other regulation issued under this Act may be assessed a civil penalty
by the Secretary of not more than $12,000 for each such violation.
Any person who otherwise violates any provision of this Act, or
any regulation, permit, or certificate issued hereunder, may be
assessed a civil penalty by the Secretary of not more than $500
for each such violation. No penalty may be assessed under this subsection
unless such person is given notice and opportunity for a hearing
with respect to such violation. Each violation shall be a separate
offense. Any such civil penalty may be remitted or mitigated by
the Secretary. Upon any failure to pay a penalty assessed under
this subsection, the Secretary may request the Attorney General
to institute a civil action in a district court of the United States
for any district in which such person is found, resides, or transacts
business to collect the penalty and such court shall have jurisdiction
to hear and decide any such action. The court shall hear such action
on the record made before the Secretary and shall sustain his action
if it is supported by substantial evidence on the record considered
as a whole.
(2) Hearings held during proceedings for the assessment of civil
penalties by paragraph (1) of this subsection shall be conducted
in accordance with section 554 of title 5, United States Code. The
Secretary may issue subpoenas for the attendance and testimony of
witnesses and the production of relevant papers, books, and documents,
and administer oaths. Witnesses summoned shall be paid the same
fees and mileage that are paid to witnesses in the courts of the
United States. In case of contumacy or refusal to obey a sub- poena
served upon any person pursuant to this paragraph, the district
court of the United States for any district in which such person
is found or resides or transacts business, upon application by the
United States and after notice to such person, shall have jurisdiction
to issue an order requiring such person to appear and give testimony
before the Secretary or to appear and produce documents before the
Secretary, or both, and any failure to obey such order of the court
may be punished by such court as a contempt thereof.
(3) Notwithstanding any other provision of this Act, no civil penalty
shall be imposed if it can be shown by a preponderance of the evidence
that the defendant committed an act based on a good faith belief
that he was acting to protect himself or herself, a member of his
or her family, or any other individual from bodily harm, from any
endangered or threatened species.
(b) CRIMINAL VIOLATIONS.-
(1) Any person who knowingly violates any provision of this Act,
of any permit or certificate issued hereunder, or of any regulation
issued in order to implement subsection (a)(1)(A), (B), (C), (D),
(E), or (F); (a)(2)(A), (B), (C), or (D), (c), (d) (other than a
regulation relating to recordkeeping, or filing of reports), (f),
or (g) of section 9 of this Act shall, upon conviction, be fined
not more than $50,000 or imprisoned for not more than one year,
or both. Any person who knowingly violates any provision of any
other regulation issued under this Act shall, upon conviction, be
fined not more than $25,000 or imprisoned for not more than six
months, or both.
(2) The head of any Federal agency which has issued a lease, license,
permit, or other agreement authorizing a person to import or export
fish, wildlife, or plants, or to operate a quarantine station for
imported wildlife, or authorizing the use of Federal lands, including
grazing of domestic livestock, to any person who is convicted of
a criminal violation of this Act or any regulation, permit, or certificate
issued hereunder may immediately modify, suspend, or revoke each
lease, license, permit, or other agreement. The Secretary shall
also suspend for a period of up to one year, or cancel, any Federal
hunting or fishing permits or stamps issued to any person who is
convicted of a criminal violation of any provision of this Act or
any regulation, permit, or certificate issued hereunder. The United
States shall not be liable for the payments of any compensation,
reimbursement, or damages in connection with the modification, suspension,
or revocation of any leases, licenses permits stamps, or other agreements
pursuant to this section.
(3) Notwithstanding any other provision of this Act, it shall be
a defense to prosecution under this subsection if the defendant
committed the offense based on a good faith belief that he was acting
to protect himself or herself, a member of his or her family, or
any other individual, from bodily harm from any endangered or threatened
species.
(c) DISTRICT COURT JURISDICTION.-The several district courts of
the United States; including the courts enumerated in section 460
of title 28, United States Code, shall have jurisdiction over any
actions arising under this Act. For the purpose of this Act, American
Samoa shall be included within the judicial district of the District
Court of the United States for the District of Hawaii.
(d) REWARDS AND CERTAIN INCIDENTAL EXPENSES.-The Secretary or the
Secretary of the Treasury shall pay, from sums received as penalties,
fines, or forfeitures of property for any violation of this chapter
or any regulation issued hereunder
(1) a reward to any person who furnishes information which leads
to an arrest, a criminal conviction, civil penalty assessment, or
forfeiture of property for any violation of this chapter or any
regulation issued hereunder, and
(2) the reasonable and necessary costs incurred by any person in
providing temporary care for any fish, wildlife, or plant pending
the disposition of any civil or criminal proceeding alleging a violation
of this chapter with respect to that fish, wildlife, or plant. The
amount of the reward, if any, is to be designated by the Secretary
or the Secretary of the Treasury, as appropriate. Any officer or
employee of the United States or any State or local government who
furnishes information or renders service in the performance of his
official duties is ineligible for payment under this subsection.
Whenever the balance of sums received under this section and section
6(d) of the Act of November 16, 1981 (16 U.S.C. 3375(d)) as penalties
or fines, or from forfeitures of property, exceed $500,000, the
Secretary of the Treasury shall deposit an amount equal to such
excess balance in the cooperative endangered species conservation
fund established under section 6(i) of this Act.
(e) ENFORCEMENT.-
(1) The provisions of this Act and any regulations or permits issued
pursuant thereto shall be enforced by the Secretary, the Secretary
of the Treasury, or the Secretary of the Department in which the
Coast Guard is operating, or all such Secretaries. Each such Secretary
may utilize by agreement, with or without reimbursement, the personnel,
services, and facilities of any other Federal agency or any State
agency for purposes of en- forcing this Act.
(2) The judges of the district courts of the United States and the
United States magistrates may within their respective jurisdictions,
upon proper oath or affirmation showing probable cause, issue such
warrants or other process as may be required for enforcement of
this Act and any regulation issued thereunder.
(3) Any person authorized by the Secretary, the Secretary of the
Treasury, or the Secretary of the Department in which the Coast
Guard is operating, to enforce this Act may detain for inspection
and inspect any package, crate, or other container, including its
contents, and all accompanying documents, upon importation or exportation.
Such persons may make arrests without a warrant for any violation
of this Act if he has reasonable grounds to believe that the person
to be arrested is committing the violation in his presence or view
and may execute and serve any arrest warrant, search warrant, or
other warrant or civil or criminal process issued by any officer
or court of competent jurisdiction for enforcement of this Act.
Such person so authorized may search and seize, with or without
a warrant, as authorized by law. Any fish, wildlife, property, or
item so seized shall be held by any person authorized by the Secretary,
the Secretary of the Treasury, or the Secretary of the Department
in which the Coast Guard is operating pending disposition of civil
or criminal proceedings, or the institution of an action in rem
for forfeiture of such fish, wildlife, property, or item pursuant
to paragraph (4) of the subsection; except that the Secretary may,
in lieu of holding such fish, wildlife, property, or item, permit
the owner or consignee to post a bond or other surety satisfactory
to the Secretary, but upon forfeiture of any such property to the
United States, or the abandonment or waiver of any claim to any
such property, it shall be disposed of (other than by sale to the
general public) by the Secretary in such a manner, consistent with
the purposes of this Act, as the Secretary shall by regulation prescribe.
(4)(A) All fish or wildlife or plants taken, possessed, sold, purchased,
offered for sale or purchase, transported, delivered, received,
carried, shipped, exported, or imported contrary to the provisions
of this Act, any regulation made pursuant thereto, or any permit
or certificate issued hereunder shall be subject to forfeiture to
the United States.
(B) All guns, traps, nets, and other equipment, vessels, vehicles,
aircraft, and other means of transportation used to aid the taking,
possessing, selling, purchasing, offering for sale or purchase,
transporting, delivering, receiving, carrying, shipping, exporting,
or im- porting of any fish or wildlife or plants in violation of
this Act, any regulation made pursuant thereto, or any permit or
certificate issued thereunder shall be subject to forfeiture to
the United States upon conviction of a criminal violation pursuant
to section 11(b)(1) of this Act.
(5) All provisions of law relating to the seizure, forfeiture, and
condemnation of a vessel for violation of the customs laws, the
disposition of such vessel or the proceeds from the sale thereof,
and the remission or mitigation of such forfeiture, shall apply
to the seizures and forfeitures incurred, or alleged to have been
incurred, under the provisions of this Act, insofar as such provisions
of law are applicable and not inconsistent with the provisions of
this Act; except that all powers, rights, and duties conferred or
imposed by the customs laws upon any officer or employee of the
Treasury Department shall, for the purposes of this Act, be exercised
or performed by the Secretary or by such persons as he may designate.
(6) The Attorney General of the United States may seek to enjoin
any person who is alleged to be in violation of any provision of
this Act or regulation issued under authority thereof.
(f) REGULATIONS.-The Secretary, the Secretary of the Treasury, and
the Secretary of the Department in which the Coast Guard is operating,
are authorized to promulgate such regulations as may be appropriate
to enforce this Act, and charge reasonable fees for ex- penses to
the Government connected with permits or certificates authorized
by this Act including processing applications and reasonable inspections,
and with the transfer, board, handling, or storage of fish or wildlife
or plants and evidentiary items seized and forfeited under this
Act. All such fees collected pursuant to this subsection shall be
deposited in the Treasury to the credit of the appropriation which
is current and chargeable for the cost of furnishing the services.
Appropriated funds may be expended pending reimbursement from parties
in interest.
(g) CITIZEN SUITS.-
(1) Except as provided in paragraph (2) of this subsection any person
may commence a civil suit on his own behalf-
(A) to enjoin any person, including the United States and any other
governmental instrumentality or agency (to the extent permitted
by the eleventh amendment to the Constitution), who is alleged to
be in violation of any provision of this Act or regulation issued
under the authority thereof; or
(B) to compel the Secretary to apply, pursuant to section 6(g)(2)(B)(ii)
of this Act, the prohibitions set forth in or authorized pursuant
to section 4(d) or section 9(a)(1)(B) of this Act with respect to
the taking of any resident endangered species or threatened species
within any State; or
(C) against the Secretary where there is alleged a failure of the
Secretary to perform any act or duty under section 4 which is not
discretionary with the Secretary.
The district courts shall have jurisdiction, without regard to the
amount in controversy or the citizenship of the parties, to enforce
any such provision or regulation or to order the Secretary to perform
such act or duty, as the case may be. In any civil suit commenced
under subparagraph (B) the district court shall compel the Secretary
to apply the prohibition sought if the court finds that the allegation
that an emergency exists is supported by substantial evidence.
(2)(A) No action may be commenced under subparagraph (1)(A) of this
section-
(i) prior to sixty days after written notice of the violation has
been given to the Secretary, and to any alleged violator of any
such provision or regulation;
(ii) if the Secretary has commenced action to impose a penalty pursuant
to subsection (a) of this section; or
(iii) if the United States has commenced and is diligently prosecuting
a criminal action in a court of the United States or a State to
redress a violation of any such provision or regulation.
(B) No action may be commenced under subparagraph (1)(B) of this
section-
(i) prior to sixty days after written notice has been given to the
Secretary setting forth the reasons why an emergency is thought
to exist with respect to an endangered species or a threatened species
in the State concerned; or
(ii) if the Secretary has commenced and is diligently prosecuting
action under section 6(g)(2)(B)(ii) of this Act to determine whether
any such emergency exists.
(C) No action may be commenced under subparagraph (1)(C) of this
section prior to sixty days after written notice has been given
to the Secretary; except that such action may be brought immediately
after such notification in the case of an action under this section
respecting an emergency posing a significant risk to the wellbeing
of any species of fish or wildlife or plants.
(3)(A) Any suit under this subsection may be brought in the judicial
district in which the violation occurs.
(B) In any such suit under this subsection in which the United States
is not a party, the Attorney General, at the request of the Secretary,
may intervene on behalf of the United States as a matter of right.
(4) The court, in issuing any final order in any suit brought pursuant
to paragraph (1) of this subsection, may award costs of litigation
(including reasonable attorney and expert witness fees) to any party,
whenever the court determines such award is appropriate.
(5) The injunctive relief provided by this subsection shall not
restrict any right which any person (or class of persons) may have
under any statute or common law to seek enforcement of any standard
or limitation or to seek any other relief (including relief against
the Secretary or a State agency).
(h) COORDINATION WITH OTHER LAWS.-The Secretary of Agriculture and
the Secretary shall provide for appropriate coordination of the
administration of this Act with the administration of the animal
quarantine laws (21 U.S.C. 101-105, 111-135b, and 612-614) and section
306 of the Tariff Act of 1930 (19 U.S.C. 1306). Nothing in this
Act or any amendment made by this Act shall be construed as superseding
or limiting in any manner the functions of the Secretary of Agriculture
under any other law relating to prohibited or restricted importations
or possession of animals and other articles and no proceeding or
determination under this Act shall preclude any proceeding or be
considered determinative of any issue of fact or law in any proceeding
under any Act administered by the Secretary of Agriculture. Nothing
in this Act shall be construed as superseding or limiting in any
manner the functions and responsibilities of the Secretary of the
Treasury under the Tariff Act of 1930, including, without limitation,
section 527 of that Act (19 U.S.C. 1527), relating to the importation
of wildlife taken, killed, possessed, or exported to the United
States in violation of the laws or regulations of a foreign country.
ENDANGERED PLANTS ^^^
SEC. 12. The Secretary of the Smithsonian Institution, in conjunction
with other affected agencies, is authorized and directed to review
(1) species of plants which are now or may become endangered, or
threatened and (2) methods of adequately conserving such species,
and to report to Congress, within one year after the date of the
enactment of this Act, the results of such review including recommendations
for new legislation or the amendment of existing legislation.
CONFORMING AMENDMENTS ^^^
SEC. 13.
(a) Subsection 4(c) of the Act of October 15, 1966 (80 Stat. 928,
16 U.S.C. 668dd(c)), is further amended by revising the second sentence
thereof to read as follows: "With the exception of endangered
species and threatened species listed by the Secretary pursuant
to section 4 of the Endangered Species Act of 1973 in States wherein
a cooperative agreement does not exist pursuant to section 6(c)
of that Act, nothing in this Act shall be construed to authorize
the Secretary to control or regulate hunting or fishing of resident
fish and wildlife on lands not within the system."
(b) Subsection 10(a) of the Migratory Bird Conservation Act (45
Stat. 1224, 16 U.S.C. 715i(a)) and subsection 401(a) of the Act
of June 15, 1935 (49 Stat. 383, 16 U.S.C. 715s(a)) are each amended
by striking out "threatened with extinction," and inserting
in lieu thereof the following: "listed pursuant to section
4 of the Endangered Species Act of 1973 as endangered species or
threatened species."
(c) Section 7(a)(1) of the Land and Water Conservation Fund Act
of 1965 (16 U.S.C. 4601-9(a)(1)) is amended by striking out:
"THREATENED SPECIES.-For any national area which may be authorized
for the preservation of species of fish or wildlife that are threatened
with extinction." and inserting in lieu thereof the following:
"ENDANGERED SPECIES AND THREATENED SPECIES.-For lands, waters,
or interests therein, the acquisition of which is authorized under
section 5(a) of the Endangered Species Act of 1973, needed for the
purpose of conserving endangered or threatened species of fish or
wildlife or plants."
(d) The first sentence of section 2 of the Act of September 28,
1962, as amended (76 Stat. 653, 16 U.S.C. 460k-1), is amended to
read as follows:
"The Secretary is authorized to acquire areas of land, or interests
therein, which are suitable for-
"(1) incidental fish and wildlife-oriented recreational development;
"(2) the protection of natural resources;
"(3) the conservation of endangered species or threatened species
listed by the Secretary pursuant to section 4 of the Endangered
Species Act of 1973; or
"(4) carrying out two or more of the purposes set forth in
paragraphs (1) through (3) of this section, and are adjacent to,
or within, the said conservation areas, except that the acquisition
of any land or interest therein pursuant to this section shall be
accomplished only with such funds as may be appropriated therefor
by the Congress or donated for such purposes, but such property
shall not be acquired with funds obtained from the sale of Federal
migratory bird hunting stamps."
(e) The Marine Mammal Protection Act of 1972 (16 U.S.C. 13611407)
is amended-
(1) by striking out "Endangered Species Conservation Act of
1969" in section 3(l)(B) thereof and inserting in lieu thereof
the following: "Endangered Species Act of 1973";
(2) by striking out "pursuant to the Endangered Species Conservation
Act of 1969" in section 101(a)(3)(B) thereof and inserting
in lieu thereof the following: "or threatened species pursuant
to the Endangered Species Act of 1973";
(3) by striking out "endangered under the Endangered Species
Conservation Act of 1969" in section 102(b)(3) thereof and
inserting in lieu thereof the following: "an endangered species
or threatened species pursuant to the Endangered Species Act of
1973"; and
(4) by striking out "of the interior and revisions of the Endangered
Species List, authorized by the Endangered Species Conservation
Act of 1969," in section 202(a)(6) thereof and inserting in
lieu thereof the following: "such revisions of the endangered
species list and threatened species list published pursuant to section
4(c)(1) of the Endangered Species Act of 1973".-
(f) Section 2(1) of the Federal Environmental Pesticide Control
Act of 1972 (Public Law 92-516) is amended by striking out the words
"by the Secretary of the Interior under Public Law 91-135"
and inserting in lieu thereof the words "or threatened by the
Secretary pursuant to the Endangered Species Act of 1973".
REPEALER ^^^
SEC. 14. The Endangered Species Conservation Act of 1969 (sections
1 through 3 of the Act of October 15, 1966, and sections 1 through
6 of the Act of December 5, 1969; 16 U.S.C. 668aa-668cc-6), is repealed.
AUTHORIZATION OF APPROPRIATIONS ^^^
SEC. 15.
(a) IN GENERAL.-Except as provided in subsections (b), (c), and
(d), there are authorized to be appropriated-
(1) not to exceed $35,000,000 for fiscal year 1988, $36,500,000
for fiscal year 1989, $38,000,000 for fiscal year 1990, $39,500,000
for fiscal year 1991, and $41,500,000 for fiscal year 1992 to enable
the Department of the Interior to carry out such functions and responsibilities
as it may have been given under this Act;
(2) not to exceed $5,750,000 for fiscal year 1988, $6,250,000 for
each of fiscal years 1989 and 1990, and $6,750,000 for each of fiscal
years 1991 and 1992 to enable the Department of Commerce to carry
out such functions and responsibilities as it may have been given
under this Act; and
(3) not to exceed $2,200,000 for fiscal year 1988, $2,400,000 for
each of fiscal years 1989 and 1990, and $2,600,000 for each of fiscal
years 1991 and 1992, to enable the Department of Agriculture to
carry out its functions and responsibilities with respect to the
enforcement of this Act and the Convention which pertain to the
importation or exportation of plants.
(b) EXEMPTIONS FROM ACT.-There are authorized to be appropriated
to the Secretary to assist him and the Endangered Species Committee
in carrying out their functions under section 7 (e), (g) and (h)
not to exceed $600,000 for each for fiscal years 1988, 1989, 1990,
1991, and 1992.
(c) CONVENTION IMPLEMENTATION.-There are authorized to be appropriated
to the Department of the Interior for purposes of carrying out section
8A(e) not to exceed $400,000 for each of fiscal years 1988, 1989,
and 1990, and $500,000 for each of fiscal years 1991 and 1992, and
such sums shall remain available until expended.
EFFECTIVE DATE ^^^
SEC. 16. This Act shall take effect on the date of its enactment.
MARINE MAMMAL PROTECTION ACT OF 1972 ^^^
SEC. 17. Except as otherwise provided in this Act, no provision
of this Act shall take precedence over any more restrictive conflicting
provision of the Marine Mammal Protection Act of 1972.
ANNUAL COST ANALYSIS BY THE FISH AND WILDLIFE SERVICE
SEC. 18. On or before January 15, 1990, and each January 15 thereafter,
the Secretary of the Interior, acting through the Fish and Wildlife
Service, shall submit to the Congress an annual report covering
the preceding fiscal year which shall contain-
(1) an accounting on a species by species basis of all reasonably
identifiable Federal expenditures made primarily for the conservation
of endangered or threatened species pursuant to this Act; and
(2) an accounting on a species by species basis for all reasonably
identifiable expenditures made primarily for the conservation of
endangered or threatened species pursuant to this Act by states
receiving grants under section 6.
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