---
kind: "range"
citation: "16 U.S.C. §§ 1531–1543"
title: "16"
from: "1531"
to: "1543"
count: 14
release: "119-102"
url: "https://uscodex.org/usc/16/1531..1543"
---

# §1531. Congressional findings and declaration of purposes and policy

- (a) **Findings—** The Congress finds and declares that—
  - (1) various [species](/usc/16/1532.md?p=16) of fish, wildlife, and [plants](/usc/16/1532.md?p=14) in the [United States](/usc/16/1532.md?p=21) have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and [conservation](/usc/16/1532.md?p=3);
  - (2) other [species](/usc/16/1532.md?p=16) of fish, wildlife, and [plants](/usc/16/1532.md?p=14) have been so depleted in numbers that they are in danger of or threatened with extinction;
  - (3) these [species](/usc/16/1532.md?p=16) of fish, wildlife, and [plants](/usc/16/1532.md?p=14) are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people;
  - (4) the [United States](/usc/16/1532.md?p=21) has pledged itself as a sovereign [state](/usc/16/1532.md?p=17) in the international community to [conserve](/usc/16/1532.md?p=3) to the extent practicable the various [species](/usc/16/1532.md?p=16) of [fish or wildlife](/usc/16/1532.md?p=8) and [plants](/usc/16/1532.md?p=14) facing extinction, pursuant to—
    - (A) migratory bird treaties with Canada and Mexico;
    - (B) the Migratory and Endangered Bird Treaty with Japan;
    - (C) the [Convention](/usc/16/1532.md?p=4) on Nature Protection and Wildlife Preservation in the Western Hemisphere;
    - (D) the International [Convention](/usc/16/1532.md?p=4) for the Northwest Atlantic [Fisheries](/usc/16/1383a.md?p=o-1);
    - (E) the International [Convention](/usc/16/1532.md?p=4) for the High Seas [Fisheries](/usc/16/1383a.md?p=o-1) of the North Pacific Ocean;
    - (F) the [Convention](/usc/16/1532.md?p=4) on International Trade in [Endangered Species](/usc/16/1532.md?p=6) of Wild Fauna and Flora; and
    - (G) other international agreements; and
  - (5) encouraging the [States](/usc/16/544.md?p=r) and other interested parties, through Federal financial assistance and a [system](/usc/16/668ee.md?p=14) of incentives, to develop and maintain [conservation](/usc/16/1532.md?p=3) [programs](/usc/16/460ss–6.md?p=1) 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](/usc/16/1532.md?p=14).
- (b) **Purposes—** The purposes of this chapter are to provide a means whereby the ecosystems upon which [endangered species](/usc/16/1532.md?p=6) and [threatened species](/usc/16/1532.md?p=20) depend may be conserved, to provide a [program](/usc/16/460ss–6.md?p=1) for the [conservation](/usc/16/1532.md?p=3) of such [endangered species](/usc/16/1532.md?p=6) and [threatened species](/usc/16/1532.md?p=20), and to [take](/usc/16/1532.md?p=19) such steps as may be appropriate to achieve the purposes of the treaties and [conventions](/usc/16/1532.md?p=4) set forth in [subsection (a)](#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](/usc/16/1532.md?p=3) [endangered species](/usc/16/1532.md?p=6) and [threatened species](/usc/16/1532.md?p=20) and shall utilize their authorities in furtherance of the purposes of this chapter.
  - (2) It is further declared to be the policy of Congress that [Federal agencies](/usc/16/1532.md?p=7) shall cooperate with [State](/usc/16/1532.md?p=17) and local agencies to resolve water resource issues in concert with [conservation](/usc/16/1532.md?p=3) of [endangered species](/usc/16/1532.md?p=6).

# §1532. Definitions


For the purposes of this chapter—

- (1) The term “alternative courses of action” means all alternatives and thus is not limited to original [project](/usc/16/410r–5.md?p=c-4) objectives and agency jurisdiction.
- (2) The term “commercial activity” means all activities of industry and trade, including, but not limited to, the buying or selling of commodities and activities conducted for the purpose of facilitating such buying and selling: Provided, however, That it does not include exhibition of commodities by museums or similar cultural or historical organizations.
- (3) The terms “conserve”, “conserving”, and “conservation” mean to use and the use of all methods and procedures which are necessary to bring any [endangered species](#6) or [threatened species](#20) to the point at which the measures provided pursuant to this chapter are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific [resources](/usc/16/410hhh–1.md?p=8) management such as research, census, law enforcement, habitat [acquisition](/usc/16/620e.md?p=1) and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
- (4) The term “Convention” means the Convention on International Trade in [Endangered Species](#6) 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](#6) means—
    - (i) the specific [areas](/usc/16/539m–1.md?p=1-A) within the geographical [area](/usc/16/539m–1.md?p=1-A) occupied by the [species](#16), at the time it is listed in accordance with the provisions of [section 1533 of this title](/usc/16/1533.md), on which are found those physical or biological features (I) essential to the [conservation](#3) of the [species](#16) and (II) which may require special management considerations or protection; and
    - (ii) specific [areas](/usc/16/539m–1.md?p=1-A) outside the geographical [area](/usc/16/539m–1.md?p=1-A) occupied by the [species](#16) at the time it is listed in accordance with the provisions of [section 1533 of this title](/usc/16/1533.md), upon a determination by the [Secretary](#15) that such [areas](/usc/16/539m–1.md?p=1-A) are essential for the [conservation](#3) of the [species](#16).
  - (B) [Critical habitat](#5-A) may be established for those [species](#16) now listed as threatened or [endangered species](#6) for which no [critical habitat](#5-A) has heretofore been established as set forth in subparagraph (A) of this paragraph.
  - (C) Except in those circumstances determined by the [Secretary](#15), [critical habitat](#5-A) shall not include the entire geographical [area](/usc/16/539m–1.md?p=1-A) which can be occupied by the threatened or [endangered species](#6).
- (6) The term “endangered species” means any [species](#16) which is in danger of extinction throughout all or a significant portion of its range other than a [species](#16) of the Class Insecta determined by the [Secretary](#15) to constitute a pest whose protection under the provisions of this chapter would present an overwhelming and overriding risk to man.
- (7) The term “Federal agency” means any department, agency, or instrumentality of the [United States](#21).
- (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](#13) within one foreign country;
  - (B) between [persons](#13) in two or more foreign countries;
  - (C) between a [person](#13) within the [United States](#21) and a [person](#13) in a foreign country; or
  - (D) between [persons](#13) within the [United States](#21), where the fish and wildlife in question are moving in any country or countries outside the [United States](#21).
- (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](#21), whether or not such landing, bringing, or introduction constitutes an importation within the meaning of the customs laws of the [United States](#21).
- (11) Repealed. Pub. L. 97–304, § 4(b), Oct. 13, 1982, 96 Stat. 1420.
- (12) The term “permit or license applicant” means, when used with respect to an action of a [Federal agency](#7) for which exemption is sought under [section 1536 of this title](/usc/16/1536.md), any [person](#13) whose application to such agency for a permit or license has been denied primarily because of the application of [section 1536(a) of this title](/usc/16/1536.md?p=a) to such agency action.
- (13) The term “person” means an individual, corporation, [partnership](/usc/16/8202.md?p=7), [trust](/usc/16/450ss–1.md?p=4), association, or any other private entity; or any officer, employee, agent, department, or instrumentality of the Federal Government, of any [State](#17), [municipality](/usc/16/2708.md?p=a-7), or political [subdivision](/usc/16/539m–1.md?p=15) of a [State](#17), or of any foreign government; any [State](#17), [municipality](/usc/16/2708.md?p=a-7), or political [subdivision](/usc/16/539m–1.md?p=15) of a [State](#17); or any other entity subject to the jurisdiction of the [United States](#21).
- (14) The term “plant” means any member of the plant kingdom, including seeds, roots and other parts thereof.
- (15) The term “Secretary” means, except as otherwise herein provided, the Secretary of the Interior or the Secretary of Commerce as [program](/usc/16/460ss–6.md?p=1) responsibilities are vested pursuant to the provisions of Reorganization Plan Numbered 4 of 1970; except that with respect to the enforcement of the provisions of this chapter and the [Convention](#4) which pertain to the importation or exportation of terrestrial [plants](#14), the term also means the Secretary of Agriculture.
- (16) The term “species” includes any subspecies of [fish or wildlife](#8) or [plants](#14), and any distinct population segment of any species of vertebrate [fish or wildlife](#8) which interbreeds when mature.
- (17) The term “State” means any of the several [States](/usc/16/544.md?p=r), the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin Islands, Guam, and the [Trust](/usc/16/450ss–1.md?p=4) Territory of the Pacific Islands.
- (18) The term “State agency” means any State agency, department, [board](/usc/16/1447a.md?p=1), [commission](/usc/16/410cc–1.md?p=3), or other governmental entity which is responsible for the management and [conservation](#3) of fish, [plant](#14), or wildlife [resources](/usc/16/410hhh–1.md?p=8) within a [State](#17).
- (19) The term “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.
- (20) The term “threatened species” means any [species](#16) which is likely to become an [endangered species](#6) within the foreseeable future throughout all or a significant portion of its range.
- (21) The term “United States”, when used in a geographical context, includes all [States](/usc/16/544.md?p=r).

# §1533. Determination of endangered species and threatened species

- (a) **Generally—**
  - (1) The [Secretary](/usc/16/1532.md?p=15) shall by regulation promulgated in accordance with [subsection (b)](#b) determine whether any [species](/usc/16/1532.md?p=16) is an [endangered species](/usc/16/1532.md?p=6) or a [threatened species](/usc/16/1532.md?p=20) because of any of the following factors:
    - (A) the present or threatened destruction, modification, or curtailment of its habitat or range;
    - (B) overutilization for commercial, recreational, scientific, or educational purposes;
    - (C) disease or predation;
    - (D) the inadequacy of existing regulatory mechanisms; or
    - (E) other natural or manmade factors affecting its continued existence.
  - (2) With respect to any [species](/usc/16/1532.md?p=16) over which [program](/usc/16/460ss–6.md?p=1) responsibilities have been vested in the [Secretary](/usc/16/1532.md?p=15) of Commerce pursuant to Reorganization Plan Numbered 4 of 1970—
    - (A) in any case in which the [Secretary](/usc/16/1532.md?p=15) of Commerce determines that such [species](/usc/16/1532.md?p=16) should—
      - (i) be listed as an [endangered species](/usc/16/1532.md?p=6) or a [threatened species](/usc/16/1532.md?p=20), or
      - (ii) be changed in status from a [threatened species](/usc/16/1532.md?p=20) to an [endangered species](/usc/16/1532.md?p=6),

      he shall so inform the [Secretary](/usc/16/1532.md?p=15) of the Interior; who shall list such [species](/usc/16/1532.md?p=16) in accordance with this section;

    - (B) in any case in which the [Secretary](/usc/16/1532.md?p=15) of Commerce determines that such [species](/usc/16/1532.md?p=16) should—
      - (i) be removed from any list published pursuant to [subsection (c)](#c) of this section, or
      - (ii) be changed in status from an [endangered species](/usc/16/1532.md?p=6) to a [threatened species](/usc/16/1532.md?p=20),

      he shall recommend such action to the [Secretary](/usc/16/1532.md?p=15) of the Interior, and the [Secretary](/usc/16/1532.md?p=15) of the Interior, if he concurs in the recommendation, shall implement such action; and

    - (C) the [Secretary](/usc/16/1532.md?p=15) of the Interior may not list or remove from any list any such [species](/usc/16/1532.md?p=16), and may not change the status of any such [species](/usc/16/1532.md?p=16) which are listed, without a prior favorable determination made pursuant to this section by the [Secretary](/usc/16/1532.md?p=15) of Commerce.
  - (3)
    - (A) The [Secretary](/usc/16/1532.md?p=15), by regulation promulgated in accordance with [subsection (b)](#b) and to the maximum extent prudent and determinable—
      - (i) shall, concurrently with making a determination under [paragraph (1)](#a-1) that a [species](/usc/16/1532.md?p=16) is an [endangered species](/usc/16/1532.md?p=6) or a [threatened species](/usc/16/1532.md?p=20), designate any habitat of such [species](/usc/16/1532.md?p=16) which is then considered to be [critical habitat](/usc/16/1532.md?p=5-A); and
      - (ii) may, from time-to-time thereafter as appropriate, revise such designation.
    - (B)
      - (i) The [Secretary](/usc/16/1532.md?p=15) shall not designate as [critical habitat](/usc/16/1532.md?p=5-A) any lands or other geographical [areas](/usc/16/539m–1.md?p=1-A) owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural [resources](/usc/16/410hhh–1.md?p=8) [management plan](/usc/16/460mmm–1.md?p=3) prepared under [section 670a of this title](/usc/16/670a.md), if the [Secretary](/usc/16/1532.md?p=15) determines in writing that such plan provides a benefit to the [species](/usc/16/1532.md?p=16) for which [critical habitat](/usc/16/1532.md?p=5-A) is proposed for designation.
      - (ii) Nothing in this paragraph affects the requirement to consult under [section 1536(a)(2) of this title](/usc/16/1536.md?p=a-2) with respect to an agency action (as that term is defined in that section).
      - (iii) Nothing in this paragraph affects the obligation of the Department of Defense to comply with [section 1538 of this title](/usc/16/1538.md), including the prohibition preventing extinction and taking of [endangered species](/usc/16/1532.md?p=6) and [threatened species](/usc/16/1532.md?p=20).
- (b) **Basis for determinations—**
  - (1)
    - (A) The [Secretary](/usc/16/1532.md?p=15) shall make determinations required by [subsection (a)(1)](#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](/usc/16/1532.md?p=16) and after taking into account those efforts, if any, being made by any [State](/usc/16/1532.md?p=17) or foreign nation, or any political [subdivision](/usc/16/539m–1.md?p=15) of a [State](/usc/16/1532.md?p=17) or foreign nation, to protect such [species](/usc/16/1532.md?p=16), whether by predator control, protection of habitat and food supply, or other [conservation](/usc/16/1532.md?p=3) practices, within any [area](/usc/16/539m–1.md?p=1-A) under its jurisdiction; or on the high seas.
    - (B) In carrying out this section, the [Secretary](/usc/16/1532.md?p=15) shall give consideration to [species](/usc/16/1532.md?p=16) 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](/usc/16/1532.md?p=18) or by any agency of a foreign nation that is responsible for the [conservation](/usc/16/1532.md?p=3) of [fish or wildlife](/usc/16/1532.md?p=8) or [plants](/usc/16/1532.md?p=14).
  - (2) The [Secretary](/usc/16/1532.md?p=15) shall designate [critical habitat](/usc/16/1532.md?p=5-A), and make revisions thereto, under [subsection (a)(3)](#a-3) on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular [area](/usc/16/539m–1.md?p=1-A) as [critical habitat](/usc/16/1532.md?p=5-A). The [Secretary](/usc/16/1532.md?p=15) may exclude any [area](/usc/16/539m–1.md?p=1-A) from [critical habitat](/usc/16/1532.md?p=5-A) if he determines that the benefits of such exclusion outweigh the benefits of specifying such [area](/usc/16/539m–1.md?p=1-A) as part of the [critical habitat](/usc/16/1532.md?p=5-A), unless he determines, based on the best scientific and commercial data available, that the failure to designate such [area](/usc/16/539m–1.md?p=1-A) as [critical habitat](/usc/16/1532.md?p=5-A) will result in the extinction of the [species](/usc/16/1532.md?p=16) concerned.
  - (3)
    - (A) To the maximum extent practicable, within 90 days after receiving the petition of an interested [person](/usc/16/1532.md?p=13) under [section 553(e) of title 5](/usc/5/553.md?p=e), to add a [species](/usc/16/1532.md?p=16) to, or to remove a [species](/usc/16/1532.md?p=16) from, either of the lists published under [subsection (c)](#c), the [Secretary](/usc/16/1532.md?p=15) 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](/usc/16/1532.md?p=15) shall promptly commence a review of the status of the [species](/usc/16/1532.md?p=16) concerned. The [Secretary](/usc/16/1532.md?p=15) 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)](#b-3-A) to present substantial information indicating that the petitioned action may be warranted, the [Secretary](/usc/16/1532.md?p=15) shall make one of the following findings:
      - (i) The petitioned action is not warranted, in which case the [Secretary](/usc/16/1532.md?p=15) shall promptly publish such finding in the Federal Register.
      - (ii) The petitioned action is warranted, in which case the [Secretary](/usc/16/1532.md?p=15) 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)](#b-5).
      - (iii) The petitioned action is warranted, but that—
        - (I) the immediate [proposal](/usc/16/7302.md?p=3) and timely promulgation of a final regulation implementing the petitioned action in accordance with paragraphs [(5)](#b-5) and [(6)](#b-6) is precluded by pending [proposals](/usc/16/7302.md?p=3) to determine whether any [species](/usc/16/1532.md?p=16) is an [endangered species](/usc/16/1532.md?p=6) or a [threatened species](/usc/16/1532.md?p=20), and
        - (II) expeditious progress is being made to add qualified [species](/usc/16/1532.md?p=16) to either of the lists published under [subsection (c)](#c) and to remove from such lists [species](/usc/16/1532.md?p=16) for which the protections of this chapter are no longer necessary,

        in which case the [Secretary](/usc/16/1532.md?p=15) 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)](#b-3-B-iii) shall be treated as a petition that is resubmitted to the [Secretary](/usc/16/1532.md?p=15) under [subparagraph (A)](#b-3-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)](#b-3-A) and any finding described in subparagraph [(B)(i)](#b-3-B-i) or [(iii)](#b-3-B-iii) shall be subject to judicial review.
      - (iii) The [Secretary](/usc/16/1532.md?p=15) shall implement a [system](/usc/16/668ee.md?p=14) to monitor effectively the status of all [species](/usc/16/1532.md?p=16) with respect to which a finding is made under [subparagraph (B)(iii)](#b-3-B-iii) and shall make prompt use of the authority under paragraph 7[^1] to prevent a significant risk to the well being of any such [species](/usc/16/1532.md?p=16).
    - (D)
      - (i) To the maximum extent practicable, within 90 days after receiving the petition of an interested [person](/usc/16/1532.md?p=13) under [section 553(e) of title 5](/usc/5/553.md?p=e), to revise a [critical habitat](/usc/16/1532.md?p=5-A) designation, the [Secretary](/usc/16/1532.md?p=15) shall make a finding as to whether the petition presents substantial scientific information indicating that the revision may be warranted. The [Secretary](/usc/16/1532.md?p=15) shall promptly publish such finding in the Federal Register.
      - (ii) Within 12 months after receiving a petition that is found under [clause (i)](#b-3-D-i) to present substantial information indicating that the requested revision may be warranted, the [Secretary](/usc/16/1532.md?p=15) 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](/usc/5/553.md) (relating to rulemaking procedures), shall apply to any regulation promulgated to carry out the purposes of this chapter.
  - (5) With respect to any regulation proposed by the [Secretary](/usc/16/1532.md?p=15) to implement a determination, designation, or revision referred to in subsection [(a)(1)](#a-1) or [(3)](#a-3), the [Secretary](/usc/16/1532.md?p=15) 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](/usc/16/1532.md?p=18) in each [State](/usc/16/1532.md?p=17) in which the [species](/usc/16/1532.md?p=16) is believed to occur, and to each county, or equivalent jurisdiction in which the [species](/usc/16/1532.md?p=16) 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](/usc/16/1532.md?p=16) is believed to occur or whose citizens harvest the [species](/usc/16/1532.md?p=16) 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](/usc/16/539m–1.md?p=1-A) of the [United States](/usc/16/1532.md?p=21) in which the [species](/usc/16/1532.md?p=16) is believed to occur; and
    - (E) promptly hold one public hearing on the proposed regulation if any [person](/usc/16/1532.md?p=13) 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)](#b-5-A-i) regarding a proposed regulation, the [Secretary](/usc/16/1532.md?p=15) shall publish in the Federal Register—
      - (i) if a determination as to whether a [species](/usc/16/1532.md?p=16) is an [endangered species](/usc/16/1532.md?p=6) or a [threatened species](/usc/16/1532.md?p=20), or a revision of [critical habitat](/usc/16/1532.md?p=5-A), 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)](#b-6-B-i), or
        - (IV) notice that the proposed regulation is being withdrawn under [subparagraph (B)(ii)](#b-6-B-ii), together with the finding on which such withdrawal is based; or
      - (ii) subject to [subparagraph (C)](#b-6-C), if a designation of [critical habitat](/usc/16/1532.md?p=5-A) 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](/usc/16/1532.md?p=15) finds with respect to a proposed regulation referred to in [subparagraph (A)(i)](#b-6-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](/usc/16/1532.md?p=15) may extend the one-year period specified in [subparagraph (A)](#b-6-A) for not more than six months for purposes of soliciting additional data.
      - (ii) If a proposed regulation referred to in [subparagraph (A)(i)](#b-6-A-i) is not promulgated as a final regulation within such one-year period (or longer period if extension under [clause (i)](#b-6-B-i) applies) because the [Secretary](/usc/16/1532.md?p=15) finds that there is not sufficient evidence to justify the action proposed by the regulation, the [Secretary](/usc/16/1532.md?p=15) shall immediately withdraw the regulation. The finding on which a withdrawal is based shall be subject to judicial review. The [Secretary](/usc/16/1532.md?p=15) 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](/usc/16/7302.md?p=3).
      - (iii) If the one-year period specified in [subparagraph (A)](#b-6-A) is extended under [clause (i)](#b-6-B-i) with respect to a proposed regulation, then before the close of such extended period the [Secretary](/usc/16/1532.md?p=15) 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)](#b-6-B-ii), together with the finding on which the withdrawal is based.
    - (C) A final regulation designating [critical habitat](/usc/16/1532.md?p=5-A) of an [endangered species](/usc/16/1532.md?p=6) or a [threatened species](/usc/16/1532.md?p=20) shall be published concurrently with the final regulation implementing the determination that such [species](/usc/16/1532.md?p=16) is endangered or threatened, unless the [Secretary](/usc/16/1532.md?p=15) deems that—
      - (i) it is essential to the [conservation](/usc/16/1532.md?p=3) of such [species](/usc/16/1532.md?p=16) that the regulation implementing such determination be promptly published; or
      - (ii) [critical habitat](/usc/16/1532.md?p=5-A) of such [species](/usc/16/1532.md?p=16) is not then determinable, in which case the [Secretary](/usc/16/1532.md?p=15), with respect to the proposed regulation to designate such habitat, may extend the one-year period specified in [subparagraph (A)](#b-6-A) by not more than one additional year, but not later than the close of such additional year the [Secretary](/usc/16/1532.md?p=15) 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](/usc/5/553.md) shall apply to any regulation issued by the [Secretary](/usc/16/1532.md?p=15) in regard to any emergency posing a significant risk to the well-being of any [species](/usc/16/1532.md?p=16) of [fish or wildlife](/usc/16/1532.md?p=8) or [plants](/usc/16/1532.md?p=14), but only if—
    - (A) at the time of publication of the regulation in the Federal Register the [Secretary](/usc/16/1532.md?p=15) publishes therein detailed reasons why such regulation is necessary; and
    - (B) in the case such regulation applies to resident [species](/usc/16/1532.md?p=16) of [fish or wildlife](/usc/16/1532.md?p=8), or [plants](/usc/16/1532.md?p=14), the [Secretary](/usc/16/1532.md?p=15) gives actual notice of such regulation to the [State agency](/usc/16/1532.md?p=18) in each [State](/usc/16/1532.md?p=17) in which such [species](/usc/16/1532.md?p=16) is believed to occur.

    Such regulation shall, at the discretion of the [Secretary](/usc/16/1532.md?p=15), [take](/usc/16/1532.md?p=19) 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](/usc/16/1532.md?p=15) determines, on the basis of the best appropriate data available to him, that substantial evidence does not exist to warrant such regulation, he shall withdraw it.

  - (8) The publication in the Federal Register of any proposed or final regulation which is necessary or appropriate to carry out the purposes of this chapter shall include a summary by the [Secretary](/usc/16/1532.md?p=15) 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](/usc/16/1532.md?p=5-A), 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](/usc/16/1532.md?p=15), if undertaken may adversely modify such habitat, or may be affected by such designation.
- (c) **Lists—**
  - (1) The [Secretary](/usc/16/1532.md?p=15) of the Interior shall publish in the Federal Register a list of all [species](/usc/16/1532.md?p=16) determined by him or the [Secretary](/usc/16/1532.md?p=15) of Commerce to be [endangered species](/usc/16/1532.md?p=6) and a list of all [species](/usc/16/1532.md?p=16) determined by him or the [Secretary](/usc/16/1532.md?p=15) of Commerce to be [threatened species](/usc/16/1532.md?p=20). Each list shall refer to the [species](/usc/16/1532.md?p=16) contained therein by scientific and common name or names, if any, specify with respect to each such [species](/usc/16/1532.md?p=16) over what portion of its range it is endangered or threatened, and specify any [critical habitat](/usc/16/1532.md?p=5-A) within such range. The [Secretary](/usc/16/1532.md?p=15) 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)](#a) and [(b)](#b).
  - (2) The [Secretary](/usc/16/1532.md?p=15) shall—
    - (A) conduct, at least once every five years, a review of all [species](/usc/16/1532.md?p=16) included in a list which is published pursuant to [paragraph (1)](#c-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](/usc/16/1532.md?p=16) should—
      - (i) be removed from such list;
      - (ii) be changed in status from an [endangered species](/usc/16/1532.md?p=6) to a [threatened species](/usc/16/1532.md?p=20); or
      - (iii) be changed in status from a [threatened species](/usc/16/1532.md?p=20) to an [endangered species](/usc/16/1532.md?p=6).

    Each determination under [subparagraph (B)](#c-2-B) shall be made in accordance with the provisions of subsections [(a)](#a) and [(b)](#b).

- (d) **Protective regulations—** Whenever any [species](/usc/16/1532.md?p=16) is listed as a [threatened species](/usc/16/1532.md?p=20) pursuant to [subsection (c)](#c) of this section, the [Secretary](/usc/16/1532.md?p=15) shall issue such regulations as he deems necessary and advisable to provide for the [conservation](/usc/16/1532.md?p=3) of such [species](/usc/16/1532.md?p=16). The [Secretary](/usc/16/1532.md?p=15) may by regulation prohibit with respect to any [threatened species](/usc/16/1532.md?p=20) any act prohibited under [section 1538(a)(1) of this title](/usc/16/1538.md?p=a-1), in the case of [fish or wildlife](/usc/16/1532.md?p=8), or [section 1538(a)(2) of this title](/usc/16/1538.md?p=a-2), in the case of [plants](/usc/16/1532.md?p=14), with respect to [endangered species](/usc/16/1532.md?p=6); except that with respect to the taking of resident [species](/usc/16/1532.md?p=16) of [fish or wildlife](/usc/16/1532.md?p=8), such regulations shall apply in any [State](/usc/16/1532.md?p=17) which has entered into a cooperative agreement pursuant to [section 1535(c) of this title](/usc/16/1535.md?p=c) only to the extent that such regulations have also been adopted by such [State](/usc/16/1532.md?p=17).
- (e) **Similarity of appearance cases—** The [Secretary](/usc/16/1532.md?p=15) may, by regulation of commerce or taking, and to the extent he deems advisable, treat any [species](/usc/16/1532.md?p=16) as an [endangered species](/usc/16/1532.md?p=6) or [threatened species](/usc/16/1532.md?p=20) even though it is not listed pursuant to this section if he finds that—
  - (A) such [species](/usc/16/1532.md?p=16) so closely resembles in appearance, at the point in question, a [species](/usc/16/1532.md?p=16) 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](/usc/16/1532.md?p=16);
  - (B) the effect of this substantial difficulty is an additional threat to an endangered or [threatened species](/usc/16/1532.md?p=20); and
  - (C) such treatment of an unlisted [species](/usc/16/1532.md?p=16) will substantially facilitate the enforcement and further the policy of this chapter.
- (f) **Recovery plans—**
  - (1) The [Secretary](/usc/16/1532.md?p=15) shall develop and implement plans (hereinafter in this subsection referred to as “recovery plans”) for the [conservation](/usc/16/1532.md?p=3) and survival of [endangered species](/usc/16/1532.md?p=6) and [threatened species](/usc/16/1532.md?p=20) listed pursuant to this section, unless he finds that such a plan will not promote the [conservation](/usc/16/1532.md?p=3) of the [species](/usc/16/1532.md?p=16). The [Secretary](/usc/16/1532.md?p=15), in developing and implementing recovery plans, shall, to the maximum extent practicable—
    - (A) give priority to those [endangered species](/usc/16/1532.md?p=6) or [threatened species](/usc/16/1532.md?p=20), without regard to taxonomic classification, that are most likely to benefit from such plans, particularly those [species](/usc/16/1532.md?p=16) that are, or may be, in conflict with construction or other development [projects](/usc/16/410r–5.md?p=c-4) 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](/usc/16/1532.md?p=3) and survival of the [species](/usc/16/1532.md?p=16);
      - (ii) objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of this section, that the [species](/usc/16/1532.md?p=16) 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](/usc/16/1532.md?p=15), in developing and implementing recovery plans, may procure the services of appropriate public and private agencies and institutions, and other qualified [persons](/usc/16/1532.md?p=13). Recovery teams appointed pursuant to this subsection shall not be subject to [chapter 10](/usc/5/chptI-ch10.md) of title 5.
  - (3) The [Secretary](/usc/16/1532.md?p=15) shall report every two years to the [Committee](/usc/16/941b.md?p=1) on Environment and Public Works of the Senate and the [Committee](/usc/16/941b.md?p=1) on Merchant Marine and [Fisheries](/usc/16/1383a.md?p=o-1) of the House of [Representatives](/usc/16/5609.md?p=13) on the status of efforts to develop and implement recovery plans for all [species](/usc/16/1532.md?p=16) listed pursuant to this section and on the status of all [species](/usc/16/1532.md?p=16) for which such plans have been developed.
  - (4) The [Secretary](/usc/16/1532.md?p=15) 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](/usc/16/1532.md?p=15) shall consider all information presented during the public comment period prior to approval of the plan.
  - (5) Each [Federal agency](/usc/16/1532.md?p=7) shall, prior to implementation of a new or revised recovery plan, consider all information presented during the public comment period under [paragraph (4)](#f-4).
- (g) **Monitoring—**
  - (1) The [Secretary](/usc/16/1532.md?p=15) shall implement a [system](/usc/16/668ee.md?p=14) in cooperation with the [States](/usc/16/544.md?p=r) to monitor effectively for not less than five years the status of all [species](/usc/16/1532.md?p=16) which have recovered to the point at which the measures provided pursuant to this chapter are no longer necessary and which, in accordance with the provisions of this section, have been removed from either of the lists published under [subsection (c)](#c).
  - (2) The [Secretary](/usc/16/1532.md?p=15) shall make prompt use of the authority under paragraph 7[^1] of [subsection (b)](#b) of this section to prevent a significant risk to the well being of any such recovered [species](/usc/16/1532.md?p=16).
- (h) **Agency guidelines; publication in Federal Register; scope; proposals and amendments: notice and opportunity for comments—** The [Secretary](/usc/16/1532.md?p=15) 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)](#b-3) of this section;
  - (2) criteria for making the findings required under such subsection with respect to petitions;
  - (3) a ranking [system](/usc/16/668ee.md?p=14) to assist in the identification of [species](/usc/16/1532.md?p=16) that should receive priority review under [subsection (a)(1)](#a-1) of this section; and
  - (4) a [system](/usc/16/668ee.md?p=14) for developing and implementing, on a priority basis, recovery plans under [subsection (f)](#f) of this section.

  The [Secretary](/usc/16/1532.md?p=15) shall provide to the public notice of, and opportunity to submit written comments on, any guideline (including any amendment thereto) proposed to be established under this subsection.

- (i) **Submission to State agency of justification for regulations inconsistent with State agency’s comments or petition—** If, in the case of any regulation proposed by the [Secretary](/usc/16/1532.md?p=15) under the authority of this section, a [State agency](/usc/16/1532.md?p=18) to which notice thereof was given in accordance with [subsection (b)(5)(A)(ii)](#b-5-A-ii) files comments disagreeing with all or part of the proposed regulation, and the [Secretary](/usc/16/1532.md?p=15) issues a final regulation which is in conflict with such comments, or if the [Secretary](/usc/16/1532.md?p=15) fails to adopt a regulation pursuant to an action petitioned by a [State agency](/usc/16/1532.md?p=18) under [subsection (b)(3)](#b-3), the [Secretary](/usc/16/1532.md?p=15) shall submit to the [State agency](/usc/16/1532.md?p=18) a written justification for his failure to adopt regulations consistent with the agency’s comments or petition.

# §1534. Land acquisition

- (a) **Implementation of conservation program; authorization of Secretary and Secretary of Agriculture—** The [Secretary](/usc/16/1532.md?p=15), and the [Secretary](/usc/16/1532.md?p=15) of Agriculture with respect to the [National Forest](/usc/16/5207.md?p=3) [System](/usc/16/668ee.md?p=14), shall establish and implement a [program](/usc/16/460ss–6.md?p=1) to [conserve](/usc/16/1532.md?p=3) fish, wildlife, and [plants](/usc/16/1532.md?p=14), including those which are listed as [endangered species](/usc/16/1532.md?p=6) or [threatened species](/usc/16/1532.md?p=20) pursuant to [section 1533 of this title](/usc/16/1533.md). To carry out such a [program](/usc/16/460ss–6.md?p=1), the appropriate [Secretary](/usc/16/1532.md?p=15)—
  - (1) shall utilize the land [acquisition](/usc/16/620e.md?p=1) and other authority under the Fish and Wildlife Act of 1956, as amended [[16 U.S.C. 742a](/usc/16/742a.md) et seq.], the Fish and Wildlife Coordination Act, as amended [[16 U.S.C. 661](/usc/16/661.md) et seq.], and the Migratory Bird Conservation Act [[16 U.S.C. 715](/usc/16/715.md) et seq.], as appropriate; and
  - (2) is authorized to [acquire](/usc/16/620e.md?p=1) by purchase, donation, or otherwise, lands, waters, or interest therein, and such authority shall be in [addition](/usc/16/410r–5.md?p=c-2) to any other land [acquisition](/usc/16/620e.md?p=1) authority vested in him.
- (b) **Availability of funds for acquisition of lands, waters, etc.** [Funds](/usc/16/1421h.md?p=2) made available pursuant to [chapter 2003](/usc/54/chstII-ch2003.md) of title 54 may be used for the purpose of acquiring lands, waters, or interests therein under [subsection (a)](#a) of this section.

# §1535. Cooperation with States

- (a) **Generally—** In carrying out the [program](/usc/16/460ss–6.md?p=1) authorized by this chapter, the [Secretary](/usc/16/1532.md?p=15) shall cooperate to the maximum extent practicable with the [States](/usc/16/544.md?p=r). Such cooperation shall include consultation with the [States](/usc/16/544.md?p=r) concerned before acquiring any land or water, or interest therein, for the purpose of [conserving](/usc/16/1532.md?p=3) any [endangered species](/usc/16/1532.md?p=6) or [threatened species](/usc/16/1532.md?p=20).
- (b) **Management agreements—** The [Secretary](/usc/16/1532.md?p=15) may enter into agreements with any [State](/usc/16/1532.md?p=17) for the administration and management of any [area](/usc/16/539m–1.md?p=1-A) established for the [conservation](/usc/16/1532.md?p=3) of [endangered species](/usc/16/1532.md?p=6) or [threatened species](/usc/16/1532.md?p=20). Any revenues derived from the administration of such [areas](/usc/16/539m–1.md?p=1-A) under these agreements shall be subject to the provisions of [section 715s of this title](/usc/16/715s.md).
- (c) **Cooperative agreements—**
  - (1) In furtherance of the purposes of this chapter, the [Secretary](/usc/16/1532.md?p=15) is authorized to enter into a cooperative agreement in accordance with this section with any [State](/usc/16/1532.md?p=17) which establishes and maintains an adequate and active [program](/usc/16/460ss–6.md?p=1) for the [conservation](/usc/16/1532.md?p=3) of [endangered species](/usc/16/1532.md?p=6) and [threatened species](/usc/16/1532.md?p=20). Within one hundred and twenty days after the [Secretary](/usc/16/1532.md?p=15) receives a certified copy of such a proposed [State](/usc/16/1532.md?p=17) [program](/usc/16/460ss–6.md?p=1), he shall make a determination whether such [program](/usc/16/460ss–6.md?p=1) is in accordance with this chapter. Unless he determines, pursuant to this paragraph, that the [State](/usc/16/1532.md?p=17) [program](/usc/16/460ss–6.md?p=1) is not in accordance with this chapter, he shall enter into a cooperative agreement with the [State](/usc/16/1532.md?p=17) for the purpose of assisting in implementation of the [State](/usc/16/1532.md?p=17) [program](/usc/16/460ss–6.md?p=1). In order for a [State](/usc/16/1532.md?p=17) [program](/usc/16/460ss–6.md?p=1) to be deemed an adequate and active [program](/usc/16/460ss–6.md?p=1) for the [conservation](/usc/16/1532.md?p=3) of [endangered species](/usc/16/1532.md?p=6) and [threatened species](/usc/16/1532.md?p=20), the [Secretary](/usc/16/1532.md?p=15) must find, and annually thereafter reconfirm such finding, that under the [State](/usc/16/1532.md?p=17) [program](/usc/16/460ss–6.md?p=1)—
    - (A) authority resides in the [State agency](/usc/16/1532.md?p=18) to [conserve](/usc/16/1532.md?p=3) resident [species](/usc/16/1532.md?p=16) of [fish or wildlife](/usc/16/1532.md?p=8) determined by the [State agency](/usc/16/1532.md?p=18) or the [Secretary](/usc/16/1532.md?p=15) to be endangered or threatened;
    - (B) the [State agency](/usc/16/1532.md?p=18) has established acceptable [conservation](/usc/16/1532.md?p=3) [programs](/usc/16/460ss–6.md?p=1), consistent with the purposes and policies of this chapter, for all resident [species](/usc/16/1532.md?p=16) of [fish or wildlife](/usc/16/1532.md?p=8) in the [State](/usc/16/1532.md?p=17) which are deemed by the [Secretary](/usc/16/1532.md?p=15) to be endangered or threatened, and has furnished a copy of such plan and [program](/usc/16/460ss–6.md?p=1) together with all pertinent details, information, and data requested to the [Secretary](/usc/16/1532.md?p=15);
    - (C) the [State agency](/usc/16/1532.md?p=18) is authorized to conduct investigations to determine the status and requirements for survival of resident [species](/usc/16/1532.md?p=16) of fish and wildlife;
    - (D) the [State agency](/usc/16/1532.md?p=18) is authorized to establish [programs](/usc/16/460ss–6.md?p=1), including the [acquisition](/usc/16/620e.md?p=1) of land or aquatic habitat or interests therein, for the [conservation](/usc/16/1532.md?p=3) of resident endangered or [threatened species](/usc/16/1532.md?p=20) of [fish or wildlife](/usc/16/1532.md?p=8); and
    - (E) provision is made for public participation in designating resident [species](/usc/16/1532.md?p=16) of [fish or wildlife](/usc/16/1532.md?p=8) as endangered or threatened; or

    that under the [State](/usc/16/1532.md?p=17) [program](/usc/16/460ss–6.md?p=1)—

    - (i) the requirements set forth in subparagraphs (C), (D), and (E) of this paragraph are complied with, and
    - (ii) plans are included under which immediate attention will be given to those resident [species](/usc/16/1532.md?p=16) of fish and wildlife which are determined by the [Secretary](/usc/16/1532.md?p=15) or the [State agency](/usc/16/1532.md?p=18) to be endangered or threatened and which the [Secretary](/usc/16/1532.md?p=15) and the [State agency](/usc/16/1532.md?p=18) agree are most urgently in need of [conservation](/usc/16/1532.md?p=3) [programs](/usc/16/460ss–6.md?p=1); except that a cooperative agreement entered into with a [State](/usc/16/1532.md?p=17) whose [program](/usc/16/460ss–6.md?p=1) is deemed adequate and active pursuant to [clause (i)](#c-1-i) and this clause shall not affect the applicability of prohibitions set forth in or authorized pursuant to [section 1533(d) of this title](/usc/16/1533.md?p=d) or [section 1538(a)(1) of this title](/usc/16/1538.md?p=a-1) with respect to the taking of any resident endangered or [threatened species](/usc/16/1532.md?p=20).
  - (2) In furtherance of the purposes of this chapter the [Secretary](/usc/16/1532.md?p=15) is authorized to enter into a cooperative agreement in accordance with this section with any [State](/usc/16/1532.md?p=17) which establishes and maintains an adequate and active [program](/usc/16/460ss–6.md?p=1) for the [conservation](/usc/16/1532.md?p=3) of [endangered species](/usc/16/1532.md?p=6) and [threatened species](/usc/16/1532.md?p=20) of [plants](/usc/16/1532.md?p=14). Within one hundred and twenty days after the [Secretary](/usc/16/1532.md?p=15) receives a certified copy of such a proposed [State](/usc/16/1532.md?p=17) [program](/usc/16/460ss–6.md?p=1), he shall make a determination whether such [program](/usc/16/460ss–6.md?p=1) is in accordance with this chapter. Unless he determines, pursuant to this paragraph, that the [State](/usc/16/1532.md?p=17) [program](/usc/16/460ss–6.md?p=1) is not in accordance with this chapter, he shall enter into a cooperative agreement with the [State](/usc/16/1532.md?p=17) for the purpose of assisting in implementation of the [State](/usc/16/1532.md?p=17) [program](/usc/16/460ss–6.md?p=1). In order for a [State](/usc/16/1532.md?p=17) [program](/usc/16/460ss–6.md?p=1) to be deemed an adequate and active [program](/usc/16/460ss–6.md?p=1) for the [conservation](/usc/16/1532.md?p=3) of [endangered species](/usc/16/1532.md?p=6) of [plants](/usc/16/1532.md?p=14) and [threatened species](/usc/16/1532.md?p=20) of [plants](/usc/16/1532.md?p=14), the [Secretary](/usc/16/1532.md?p=15) must find, and annually thereafter reconfirm such finding, that under the [State](/usc/16/1532.md?p=17) [program](/usc/16/460ss–6.md?p=1)—
    - (A) authority resides in the [State agency](/usc/16/1532.md?p=18) to [conserve](/usc/16/1532.md?p=3) resident [species](/usc/16/1532.md?p=16) of [plants](/usc/16/1532.md?p=14) determined by the [State agency](/usc/16/1532.md?p=18) or the [Secretary](/usc/16/1532.md?p=15) to be endangered or threatened;
    - (B) the [State agency](/usc/16/1532.md?p=18) has established acceptable [conservation](/usc/16/1532.md?p=3) [programs](/usc/16/460ss–6.md?p=1), consistent with the purposes and policies of this chapter, for all resident [species](/usc/16/1532.md?p=16) of [plants](/usc/16/1532.md?p=14) in the [State](/usc/16/1532.md?p=17) which are deemed by the [Secretary](/usc/16/1532.md?p=15) to be endangered or threatened, and has furnished a copy of such plan and [program](/usc/16/460ss–6.md?p=1) together with all pertinent details, information, and data requested to the [Secretary](/usc/16/1532.md?p=15);
    - (C) the [State agency](/usc/16/1532.md?p=18) is authorized to conduct investigations to determine the status and requirements for survival of resident [species](/usc/16/1532.md?p=16) of [plants](/usc/16/1532.md?p=14); and
    - (D) provision is made for public participation in designating resident [species](/usc/16/1532.md?p=16) of [plants](/usc/16/1532.md?p=14) as endangered or threatened; or

    that under the [State](/usc/16/1532.md?p=17) [program](/usc/16/460ss–6.md?p=1)—

    - (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](/usc/16/1532.md?p=16) of [plants](/usc/16/1532.md?p=14) which are determined by the [Secretary](/usc/16/1532.md?p=15) or the [State agency](/usc/16/1532.md?p=18) to be endangered or threatened and which the [Secretary](/usc/16/1532.md?p=15) and the [State agency](/usc/16/1532.md?p=18) agree are most urgently in need of [conservation](/usc/16/1532.md?p=3) [programs](/usc/16/460ss–6.md?p=1); except that a cooperative agreement entered into with a [State](/usc/16/1532.md?p=17) whose [program](/usc/16/460ss–6.md?p=1) is deemed adequate and active pursuant to [clause (i)](#c-2-i) and this clause shall not affect the applicability of prohibitions set forth in or authorized pursuant to [section 1533(d)](/usc/16/1533.md?p=d) or [section 1538(a)(1) of this title](/usc/16/1538.md?p=a-1) with respect to the taking of any resident endangered or [threatened species](/usc/16/1532.md?p=20).
- (d) **Allocation of funds—**
  - (1) The [Secretary](/usc/16/1532.md?p=15) is authorized to provide financial assistance to any [State](/usc/16/1532.md?p=17), through its respective [State agency](/usc/16/1532.md?p=18), which has entered into a cooperative agreement pursuant to [subsection (c)](#c) of this section to assist in development of [programs](/usc/16/460ss–6.md?p=1) for the [conservation](/usc/16/1532.md?p=3) of endangered and [threatened species](/usc/16/1532.md?p=20) or to assist in monitoring the status of candidate [species](/usc/16/1532.md?p=16) pursuant to subparagraph (C) of [section 1533(b)(3) of this title](/usc/16/1533.md?p=b-3) and recovered [species](/usc/16/1532.md?p=16) pursuant to [section 1533(g) of this title](/usc/16/1533.md?p=g). The [Secretary](/usc/16/1532.md?p=15) shall allocate each annual appropriation made in accordance with the provisions of [subsection (i)](#i) of this section to such [States](/usc/16/544.md?p=r) based on consideration of—
    - (A) the international commitments of the [United States](/usc/16/1532.md?p=21) to protect [endangered species](/usc/16/1532.md?p=6) or [threatened species](/usc/16/1532.md?p=20);
    - (B) the readiness of a [State](/usc/16/1532.md?p=17) to proceed with a [conservation](/usc/16/1532.md?p=3) [program](/usc/16/460ss–6.md?p=1) consistent with the objectives and purposes of this chapter;
    - (C) the number of [endangered species](/usc/16/1532.md?p=6) and [threatened species](/usc/16/1532.md?p=20) within a [State](/usc/16/1532.md?p=17);
    - (D) the potential for restoring [endangered species](/usc/16/1532.md?p=6) and [threatened species](/usc/16/1532.md?p=20) within a [State](/usc/16/1532.md?p=17);
    - (E) the relative urgency to initiate a [program](/usc/16/460ss–6.md?p=1) to restore and protect an [endangered species](/usc/16/1532.md?p=6) or [threatened species](/usc/16/1532.md?p=20) in terms of survival of the [species](/usc/16/1532.md?p=16);
    - (F) the importance of monitoring the status of candidate [species](/usc/16/1532.md?p=16) within a [State](/usc/16/1532.md?p=17) to prevent a significant risk to the well being of any such [species](/usc/16/1532.md?p=16); and
    - (G) the importance of monitoring the status of recovered [species](/usc/16/1532.md?p=16) within a [State](/usc/16/1532.md?p=17) to assure that such [species](/usc/16/1532.md?p=16) do not return to the point at which the measures provided pursuant to this chapter are again necessary.

    So much of the annual appropriation made in accordance with provisions of [subsection (i)](#i) of this section allocated for obligation to any [State](/usc/16/1532.md?p=17) for any fiscal year as remains unobligated at the close thereof is authorized to be made available to that [State](/usc/16/1532.md?p=17) until the close of the succeeding fiscal year. Any amount allocated to any [State](/usc/16/1532.md?p=17) 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](/usc/16/1532.md?p=15) in conducting [programs](/usc/16/460ss–6.md?p=1) under this section.

  - (2) Such cooperative agreements shall provide for (A) the actions to be taken by the [Secretary](/usc/16/1532.md?p=15) and the [States](/usc/16/544.md?p=r); (B) the benefits that are expected to be derived in connection with the [conservation](/usc/16/1532.md?p=3) of endangered or [threatened species](/usc/16/1532.md?p=20); (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](/usc/16/544.md?p=r); except that—
    - (i) the Federal share of such [program](/usc/16/460ss–6.md?p=1) costs shall not exceed 75 percent of the estimated [program](/usc/16/460ss–6.md?p=1) cost stated in the agreement; and
    - (ii) the Federal share may be increased to 90 percent whenever two or more [States](/usc/16/544.md?p=r) having a common interest in one or more endangered or [threatened species](/usc/16/1532.md?p=20), the [conservation](/usc/16/1532.md?p=3) of which may be enhanced by cooperation of such [States](/usc/16/544.md?p=r), enter jointly into an agreement with the [Secretary](/usc/16/1532.md?p=15).

    The [Secretary](/usc/16/1532.md?p=15) may, in his discretion, and under such rules and regulations as he may prescribe, advance [funds](/usc/16/1421h.md?p=2) to the [State](/usc/16/1532.md?p=17) for financing the [United States](/usc/16/1532.md?p=21) 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](/usc/16/1532.md?p=15), be in the form of money or real property, the value of which will be determined by the [Secretary](/usc/16/1532.md?p=15), whose decision shall be final.

- (e) **Review of State programs—** Any action taken by the [Secretary](/usc/16/1532.md?p=15) 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](/usc/16/1532.md?p=17) law or regulation which applies with respect to the importation or exportation of, or interstate or [foreign commerce](/usc/16/1532.md?p=9) in, [endangered species](/usc/16/1532.md?p=6) or [threatened species](/usc/16/1532.md?p=20) is void to the extent that it may effectively (1) permit what is prohibited by this chapter or by any regulation which implements this chapter, or (2) prohibit what is authorized pursuant to an exemption or permit provided for in this chapter or in any regulation which implements this chapter. This chapter shall not otherwise be construed to void any [State](/usc/16/1532.md?p=17) law or regulation which is intended to [conserve](/usc/16/1532.md?p=3) migratory, resident, or introduced [fish or wildlife](/usc/16/1532.md?p=8), or to permit or prohibit sale of such [fish or wildlife](/usc/16/1532.md?p=8). Any [State](/usc/16/1532.md?p=17) law or regulation respecting the taking of an [endangered species](/usc/16/1532.md?p=6) or [threatened species](/usc/16/1532.md?p=20) may be more restrictive than the exemptions or permits provided for in this chapter or in any regulation which implements this chapter but not less restrictive than the prohibitions so defined.
- (g) **Transition—**
  - (1) For purposes of this subsection, the term “establishment period” means, with respect to any [State](/usc/16/1532.md?p=17), the period beginning on December 28, 1973, and ending on whichever of the following dates first occurs: (A) the date of the close of the 120-day period following the adjournment of the first regular session of the legislature of such [State](/usc/16/1532.md?p=17) which commences after December 28, 1973, or (B) the date of the close of the 15-month period following December 28, 1973.
  - (2) The prohibitions set forth in or authorized pursuant to sections [1533(d)](/usc/16/1533.md?p=d) and [1538(a)(1)(B)](/usc/16/1538.md?p=a-1-B) of this title shall not apply with respect to the taking of any resident [endangered species](/usc/16/1532.md?p=6) or [threatened species](/usc/16/1532.md?p=20) (other than [species](/usc/16/1532.md?p=16) listed in Appendix I to the [Convention](/usc/16/1532.md?p=4) or otherwise specifically covered by any other treaty or Federal law) within any [State](/usc/16/1532.md?p=17)—
    - (A) which is then a party to a cooperative agreement with the [Secretary](/usc/16/1532.md?p=15) pursuant to [subsection (c)](#c) of this section (except to the extent that the taking of any such [species](/usc/16/1532.md?p=16) is contrary to the law of such [State](/usc/16/1532.md?p=17)); or
    - (B) except for any time within the [establishment period](#g-1) when—
      - (i) the [Secretary](/usc/16/1532.md?p=15) applies such prohibition to such [species](/usc/16/1532.md?p=16) at the request of the [State](/usc/16/1532.md?p=17), or
      - (ii) the [Secretary](/usc/16/1532.md?p=15) 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](/usc/16/1532.md?p=16) and that the prohibition must be applied to protect such [species](/usc/16/1532.md?p=16). The [Secretary](/usc/16/1532.md?p=15)’s finding and publication may be made without regard to the public hearing or comment provisions of [section 553 of title 5](/usc/5/553.md) or any other provision of this chapter; but such prohibition shall expire 90 days after the date of its imposition unless the [Secretary](/usc/16/1532.md?p=15) further extends such prohibition by publishing notice and a statement of justification of such extension.
- (h) **Regulations—** The [Secretary](/usc/16/1532.md?p=15) is authorized to promulgate such regulations as may be appropriate to carry out the provisions of this section relating to financial assistance to [States](/usc/16/544.md?p=r).
- (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](/usc/16/1421h.md?p=2) known as the cooperative [endangered species](/usc/16/1532.md?p=6) [conservation](/usc/16/1532.md?p=3) [fund](/usc/16/1421h.md?p=2), to be administered by the [Secretary](/usc/16/1532.md?p=15), an amount equal to 5 percent of the combined amounts covered each fiscal year into the Federal aid to wildlife [restoration](/usc/16/6456.md?p=2) [fund](/usc/16/1421h.md?p=2) under [section 669b of this title](/usc/16/669b.md), and paid, transferred, or otherwise credited each fiscal year to the Sport [Fishing](/usc/16/7901.md?p=b) [Restoration](/usc/16/6456.md?p=2) Account established under 1016 of the Act of July 18, 1984.
  - (2) Amounts deposited into the special [fund](/usc/16/1421h.md?p=2) are authorized to be appropriated annually and allocated in accordance with [subsection (d)](#d) of this section.

# §1536. Interagency cooperation

- (a) **Federal agency actions and consultations—**
  - (1) The [Secretary](/usc/16/1532.md?p=15) shall review other [programs](/usc/16/460ss–6.md?p=1) administered by him and utilize such [programs](/usc/16/460ss–6.md?p=1) in furtherance of the purposes of this chapter. All other [Federal agencies](/usc/16/1532.md?p=7) shall, in consultation with and with the assistance of the [Secretary](/usc/16/1532.md?p=15), utilize their authorities in furtherance of the purposes of this chapter by carrying out [programs](/usc/16/460ss–6.md?p=1) for the [conservation](/usc/16/1532.md?p=3) of [endangered species](/usc/16/1532.md?p=6) and [threatened species](/usc/16/1532.md?p=20) listed pursuant to [section 1533 of this title](/usc/16/1533.md).
  - (2) Each [Federal agency](/usc/16/1532.md?p=7) shall, in consultation with and with the assistance of the [Secretary](/usc/16/1532.md?p=15), 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](/usc/16/1532.md?p=6) or [threatened species](/usc/16/1532.md?p=20) or result in the destruction or adverse modification of habitat of such [species](/usc/16/1532.md?p=16) which is determined by the [Secretary](/usc/16/1532.md?p=15), after consultation as appropriate with affected [States](/usc/16/544.md?p=r), to be critical, unless such agency has been granted an exemption for such action by the [Committee](/usc/16/941b.md?p=1) pursuant to [subsection (h)](#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](/usc/16/1532.md?p=15) may establish, a [Federal agency](/usc/16/1532.md?p=7) shall consult with the [Secretary](/usc/16/1532.md?p=15) on any prospective agency action at the request of, and in cooperation with, the prospective [permit or license applicant](/usc/16/1532.md?p=12) if the applicant has reason to believe that an [endangered species](/usc/16/1532.md?p=6) or a [threatened species](/usc/16/1532.md?p=20) may be present in the [area](/usc/16/539m–1.md?p=1-A) affected by his [project](/usc/16/410r–5.md?p=c-4) and that implementation of such action will likely affect such [species](/usc/16/1532.md?p=16).
  - (4) Each [Federal agency](/usc/16/1532.md?p=7) shall confer with the [Secretary](/usc/16/1532.md?p=15) on any agency action which is likely to jeopardize the continued existence of any [species](/usc/16/1532.md?p=16) proposed to be listed under [section 1533 of this title](/usc/16/1533.md) or result in the destruction or adverse modification of [critical habitat](/usc/16/1532.md?p=5-A) proposed to be designated for such [species](/usc/16/1532.md?p=16). This paragraph does not require a limitation on the commitment of [resources](/usc/16/410hhh–1.md?p=8) as described in [subsection (d)](#d).
- (b) **Opinion of Secretary—**
  - (1)
    - (A) Consultation under [subsection (a)(2)](#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)](#b-1-B), within such other period of time as is mutually agreeable to the [Secretary](/usc/16/1532.md?p=15) and the [Federal agency](/usc/16/1532.md?p=7).
    - (B) In the case of an agency action involving a [permit or license applicant](/usc/16/1532.md?p=12), the [Secretary](/usc/16/1532.md?p=15) and the [Federal agency](/usc/16/1532.md?p=7) may not mutually agree to conclude consultation within a period exceeding 90 days unless the [Secretary](/usc/16/1532.md?p=15), before the close of the 90th day referred to in [subparagraph (A)](#b-1-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](/usc/16/1532.md?p=15) and the [Federal agency](/usc/16/1532.md?p=7) may mutually agree to extend a consultation period established under the preceding sentence if the [Secretary](/usc/16/1532.md?p=15), before the close of such period, obtains the consent of the applicant to the extension.

  - (2) Consultation under [subsection (a)(3)](#a-3) shall be concluded within such period as is agreeable to the [Secretary](/usc/16/1532.md?p=15), the [Federal agency](/usc/16/1532.md?p=7), and the applicant concerned.
  - (3)
    - (A) Promptly after conclusion of consultation under paragraph [(2)](#a-2) or [(3)](#a-3) of subsection (a), the [Secretary](/usc/16/1532.md?p=15) shall provide to the [Federal agency](/usc/16/1532.md?p=7) and the applicant, if any, a written statement setting forth the [Secretary](/usc/16/1532.md?p=15)’s opinion, and a summary of the information on which the opinion is based, detailing how the agency action affects the [species](/usc/16/1532.md?p=16) or its [critical habitat](/usc/16/1532.md?p=5-A). If jeopardy or adverse modification is found, the [Secretary](/usc/16/1532.md?p=15) shall suggest those reasonable and prudent alternatives which he believes would not violate [subsection (a)(2)](#a-2) and can be taken by the [Federal agency](/usc/16/1532.md?p=7) or applicant in implementing the agency action.
    - (B) Consultation under [subsection (a)(3)](#a-3), and an opinion issued by the [Secretary](/usc/16/1532.md?p=15) incident to such consultation, regarding an agency action shall be treated respectively as a consultation under [subsection (a)(2)](#a-2), and as an opinion issued after consultation under such subsection, regarding that action if the [Secretary](/usc/16/1532.md?p=15) reviews the action before it is commenced by the [Federal agency](/usc/16/1532.md?p=7) 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)](#a-2), the [Secretary](/usc/16/1532.md?p=15) concludes that—
    - (A) the agency action will not violate such subsection, or offers reasonable and prudent alternatives which the [Secretary](/usc/16/1532.md?p=15) believes would not violate such subsection;
    - (B) the taking of an [endangered species](/usc/16/1532.md?p=6) or a [threatened species](/usc/16/1532.md?p=20) incidental to the agency action will not violate such subsection; and
    - (C) if an [endangered species](/usc/16/1532.md?p=6) or [threatened species](/usc/16/1532.md?p=20) of a marine mammal is involved, the taking is authorized pursuant to [section 1371(a)(5) of this title](/usc/16/1371.md?p=a-5);

    the [Secretary](/usc/16/1532.md?p=15) shall provide the [Federal agency](/usc/16/1532.md?p=7) and the applicant concerned, if any, with a written statement that—

    - (i) specifies the impact of such incidental taking on the [species](/usc/16/1532.md?p=16),
    - (ii) specifies those reasonable and prudent measures that the [Secretary](/usc/16/1532.md?p=15) 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](/usc/16/1371.md?p=a-5) 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](/usc/16/1532.md?p=7) or applicant (if any), or both, to implement the measures specified under clauses [(ii)](#b-4-ii) and [(iii)](#b-4-iii).
- (c) **Biological assessment—**
  - (1) To facilitate compliance with the requirements of [subsection (a)(2)](#a-2), each [Federal agency](/usc/16/1532.md?p=7) shall, with respect to any agency action of such agency for which no contract for construction has been entered into and for which no construction has begun on November 10, 1978, request of the [Secretary](/usc/16/1532.md?p=15) information whether any [species](/usc/16/1532.md?p=16) which is listed or proposed to be listed may be present in the [area](/usc/16/539m–1.md?p=1-A) of such proposed action. If the [Secretary](/usc/16/1532.md?p=15) advises, based on the best scientific and commercial data available, that such [species](/usc/16/1532.md?p=16) may be present, such agency shall conduct a biological assessment for the purpose of identifying any [endangered species](/usc/16/1532.md?p=6) or [threatened species](/usc/16/1532.md?p=20) 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](/usc/16/1532.md?p=15) and such agency, except that if a [permit or license applicant](/usc/16/1532.md?p=12) is involved, the 180-day period may not be extended unless such agency provides the applicant, before the close of such period, with a written statement setting forth the estimated length of the proposed extension and the reasons therefor) and, before any contract for construction is entered into and before construction is begun with respect to such action. Such assessment may be undertaken as part of a [Federal agency](/usc/16/1532.md?p=7)’s compliance with the requirements of section 102 of the National Environmental Policy Act of 1969 ([42 U.S.C. 4332](/usc/42/4332.md)).
  - (2) Any [person](/usc/16/1532.md?p=13) who may wish to apply for an exemption under [subsection (g)](#g) of this section for that action may conduct a biological assessment to identify any [endangered species](/usc/16/1532.md?p=6) or [threatened species](/usc/16/1532.md?p=20) which is likely to be affected by such action. Any such biological assessment must, however, be conducted in cooperation with the [Secretary](/usc/16/1532.md?p=15) and under the supervision of the appropriate [Federal agency](/usc/16/1532.md?p=7).
- (d) **Limitation on commitment of resources—** After initiation of consultation required under [subsection (a)(2)](#a-2), the [Federal agency](/usc/16/1532.md?p=7) and the [permit or license applicant](/usc/16/1532.md?p=12) shall not make any irreversible or irretrievable commitment of [resources](/usc/16/410hhh–1.md?p=8) 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)](#a-2) of this section.
- (e) **Endangered Species Committee—**
  - (1) There is established a [committee](/usc/16/941b.md?p=1) to be known as the [Endangered Species](/usc/16/1532.md?p=6) [Committee](/usc/16/941b.md?p=1) (hereinafter in this section referred to as the “[Committee](/usc/16/941b.md?p=1)”).
  - (2) The [Committee](/usc/16/941b.md?p=1) shall review any application submitted to it pursuant to this section and determine in accordance with [subsection (h)](#h) of this section whether or not to grant an exemption from the requirements of [subsection (a)(2)](#a-2) of this section for the action set forth in such application.
  - (3) The [Committee](/usc/16/941b.md?p=1) shall be composed of seven members as follows:
    - (A) The [Secretary](/usc/16/1532.md?p=15) of Agriculture.
    - (B) The [Secretary](/usc/16/1532.md?p=15) of the Army.
    - (C) The Chairman of the [Council](/usc/16/460mmm–1.md?p=2) of Economic Advisors.
    - (D) The [Administrator](/usc/16/450rr–1.md?p=a) of the Environmental Protection Agency.
    - (E) The [Secretary](/usc/16/1532.md?p=15) of the Interior.
    - (F) The [Administrator](/usc/16/450rr–1.md?p=a) of the National Oceanic and Atmospheric Administration.
    - (G) The President, after consideration of any recommendations received pursuant to [subsection (g)(2)(B)](#g-2-B) shall appoint one individual from each affected [State](/usc/16/1532.md?p=17), as determined by the [Secretary](/usc/16/1532.md?p=15), to be a member of the [Committee](/usc/16/941b.md?p=1) 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](/usc/16/941b.md?p=1) shall receive no additional pay on account of their service on the [Committee](/usc/16/941b.md?p=1).
    - (B) While away from their homes or regular places of business in the performance of services for the [Committee](/usc/16/941b.md?p=1), members of the [Committee](/usc/16/941b.md?p=1) shall be allowed travel expenses, including per diem in lieu of subsistence, in the same manner as [persons](/usc/16/1532.md?p=13) employed intermittently in the Government service are allowed expenses under [section 5703 of title 5](/usc/5/5703.md).
  - (5)
    - (A) Five members of the [Committee](/usc/16/941b.md?p=1) or their [representatives](/usc/16/5609.md?p=13) shall constitute a quorum for the transaction of any function of the [Committee](/usc/16/941b.md?p=1), except that, in no case shall any [representative](/usc/16/5609.md?p=13) be considered in determining the existence of a quorum for the transaction of any function of the [Committee](/usc/16/941b.md?p=1) if that function involves a vote by the [Committee](/usc/16/941b.md?p=1) on any matter before the [Committee](/usc/16/941b.md?p=1).
    - (B) The [Secretary](/usc/16/1532.md?p=15) of the Interior shall be the Chairman of the [Committee](/usc/16/941b.md?p=1).
    - (C) The [Committee](/usc/16/941b.md?p=1) shall meet at the call of the Chairman or five of its members.
    - (D) All meetings and records of the [Committee](/usc/16/941b.md?p=1) shall be open to the public.
  - (6) Upon request of the [Committee](/usc/16/941b.md?p=1), the head of any [Federal agency](/usc/16/1532.md?p=7) is authorized to detail, on a nonreimbursable basis, any of the personnel of such agency to the [Committee](/usc/16/941b.md?p=1) to assist it in carrying out its duties under this section.
  - (7)
    - (A) The [Committee](/usc/16/941b.md?p=1) may for the purpose of carrying out its duties under this section hold such hearings, sit and act at such times and places, [take](/usc/16/1532.md?p=19) such testimony, and receive such evidence, as the [Committee](/usc/16/941b.md?p=1) deems advisable.
    - (B) When so authorized by the [Committee](/usc/16/941b.md?p=1), any member or agent of the [Committee](/usc/16/941b.md?p=1) may [take](/usc/16/1532.md?p=19) any action which the [Committee](/usc/16/941b.md?p=1) is authorized to [take](/usc/16/1532.md?p=19) by this paragraph.
    - (C) Subject to the Privacy Act [[5 U.S.C. 552a](/usc/5/552a.md)], the [Committee](/usc/16/941b.md?p=1) may secure directly from any [Federal agency](/usc/16/1532.md?p=7) information necessary to enable it to carry out its duties under this section. Upon request of the Chairman of the [Committee](/usc/16/941b.md?p=1), the head of such [Federal agency](/usc/16/1532.md?p=7) shall furnish such information to the [Committee](/usc/16/941b.md?p=1).
    - (D) The [Committee](/usc/16/941b.md?p=1) may use the [United States](/usc/16/1532.md?p=21) mails in the same manner and upon the same conditions as a [Federal agency](/usc/16/1532.md?p=7).
    - (E) The [Administrator](/usc/16/450rr–1.md?p=a) of General Services shall provide to the [Committee](/usc/16/941b.md?p=1) on a reimbursable basis such administrative support services as the [Committee](/usc/16/941b.md?p=1) may request.
  - (8) In carrying out its duties under this section, the [Committee](/usc/16/941b.md?p=1) 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](/usc/16/941b.md?p=1) may issue subpenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents.
  - (10) In no case shall any [representative](/usc/16/5609.md?p=13), including a [representative](/usc/16/5609.md?p=13) of a member designated pursuant to paragraph (3)(G) of this subsection, be eligible to cast a vote on behalf of any member.
- (f) **Promulgation of regulations; form and contents of exemption application—** Not later than 90 days after November 10, 1978, the [Secretary](/usc/16/1532.md?p=15) shall promulgate regulations which set forth the form and manner in which applications for exemption shall be submitted to the [Secretary](/usc/16/1532.md?p=15) 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](/usc/16/1532.md?p=7) 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)](#a-2) of this section between the head of the [Federal agency](/usc/16/1532.md?p=7) and the [Secretary](/usc/16/1532.md?p=15); and
  - (2) a statement describing why such action cannot be altered or modified to conform with the requirements of [subsection (a)(2)](#a-2) of this section.
- (g) **Application for exemption; report to Committee—**
  - (1) A [Federal agency](/usc/16/1532.md?p=7), the Governor of the [State](/usc/16/1532.md?p=17) in which an agency action will occur, if any, or a [permit or license applicant](/usc/16/1532.md?p=12) may apply to the [Secretary](/usc/16/1532.md?p=15) for an exemption for an agency action of such agency if, after consultation under [subsection (a)(2)](#a-2), the [Secretary](/usc/16/1532.md?p=15)’s opinion under [subsection (b)](#b) indicates that the agency action would violate [subsection (a)(2)](#a-2). An application for an exemption shall be considered initially by the [Secretary](/usc/16/1532.md?p=15) in the manner provided for in this subsection, and shall be considered by the [Committee](/usc/16/941b.md?p=1) for a final determination under [subsection (h)](#h) after a report is made pursuant to [paragraph (5)](#g-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](/usc/16/1532.md?p=15), in a form prescribed under [subsection (f)](#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](/usc/16/1532.md?p=12), such application shall be submitted not later than 90 days after the date on which the [Federal agency](/usc/16/1532.md?p=7) concerned [takes](/usc/16/1532.md?p=19) 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)](#g-1), the [Secretary](/usc/16/1532.md?p=15) shall promptly (i) notify the Governor of each affected [State](/usc/16/1532.md?p=17), if any, as determined by the [Secretary](/usc/16/1532.md?p=15), and request the Governors so notified to recommend individuals to be appointed to the [Endangered Species](/usc/16/1532.md?p=6) [Committee](/usc/16/941b.md?p=1) 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](/usc/16/1532.md?p=15) 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](/usc/16/1532.md?p=15)—
    - (A) determine that the [Federal agency](/usc/16/1532.md?p=7) concerned and the exemption applicant have—
      - (i) carried out the consultation responsibilities described in [subsection (a)](#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)](#a-2);
      - (ii) conducted any biological assessment required by [subsection (c)](#c); and
      - (iii) to the extent determinable within the time provided herein, refrained from making any irreversible or irretrievable commitment of [resources](/usc/16/410hhh–1.md?p=8) prohibited by [subsection (d)](#d); or
    - (B) deny the application for exemption because the [Federal agency](/usc/16/1532.md?p=7) concerned or the exemption applicant have not met the requirements set forth in subparagraph [(A)(i)](#g-3-A-i), [(ii)](#g-3-A-ii), and [(iii)](#g-3-A-iii).

    The denial of an application under [subparagraph (B)](#g-3-B) shall be considered [final agency action](#g-2-A) for purposes of [chapter 7](/usc/5/chptI-ch7.md) of title 5.

  - (4) If the [Secretary](/usc/16/1532.md?p=15) determines that the [Federal agency](/usc/16/1532.md?p=7) concerned and the exemption applicant have met the requirements set forth in paragraph [(3)(A)(i)](#g-3-A-i), [(ii)](#g-3-A-ii), and [(iii)](#g-3-A-iii) he shall, in consultation with the Members of the [Committee](/usc/16/941b.md?p=1), hold a hearing on the application for exemption in accordance with sections [554](/usc/16/554.md), [555](/usc/16/555.md), and [556](/usc/16/556.md) (other than subsection [(b)(1)](#b-1) and [(2)](#b-2) thereof) of [title 5](/usc/5.md) and prepare the report to be submitted pursuant to [paragraph (5)](#g-5).
  - (5) Within 140 days after making the determinations under [paragraph (3)](#g-3) or within such other period of time as is mutually agreeable to the exemption applicant and the [Secretary](/usc/16/1532.md?p=15), the [Secretary](/usc/16/1532.md?p=15) shall submit to the [Committee](/usc/16/941b.md?p=1) 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](/usc/16/1532.md?p=1) consistent with [conserving](/usc/16/1532.md?p=3) the [species](/usc/16/1532.md?p=16) or the [critical habitat](/usc/16/1532.md?p=5-A);
    - (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](/usc/16/941b.md?p=1); and
    - (D) whether the [Federal agency](/usc/16/1532.md?p=7) concerned and the exemption applicant refrained from making any irreversible or irretrievable commitment of [resources](/usc/16/410hhh–1.md?p=8) prohibited by [subsection (d)](#d).
  - (6) To the extent practicable within the time required for action under [subsection (g)](#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](/usc/16/554.md), [555](/usc/16/555.md), and [556](/usc/16/556.md) (other than [subsection (b)(3)](/usc/16/556.md) of section 556) of [title 5](/usc/5.md).
  - (7) Upon request of the [Secretary](/usc/16/1532.md?p=15), the head of any [Federal agency](/usc/16/1532.md?p=7) is authorized to detail, on a nonreimbursable basis, any of the personnel of such agency to the [Secretary](/usc/16/1532.md?p=15) to assist him in carrying out his duties under this section.
  - (8) All meetings and records resulting from activities pursuant to this subsection shall be open to the public.
- (h) **Grant of exemption—**
  - (1) The [Committee](/usc/16/941b.md?p=1) shall make a final determination whether or not to grant an exemption within 30 days after receiving the report of the [Secretary](/usc/16/1532.md?p=15) pursuant to [subsection (g)(5)](#g-5). The [Committee](/usc/16/941b.md?p=1) shall grant an exemption from the requirements of [subsection (a)(2)](#a-2) for an agency action if, by a vote of not less than five of its members voting in [person](/usc/16/1532.md?p=13)—
    - (A) it determines on the record, based on the report of the [Secretary](/usc/16/1532.md?p=15), the record of the hearing held under [subsection (g)(4)](#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](/usc/16/1532.md?p=1) consistent with [conserving](/usc/16/1532.md?p=3) the [species](/usc/16/1532.md?p=16) or its [critical habitat](/usc/16/1532.md?p=5-A), and such action is in the public interest;
      - (iii) the action is of regional or national significance; and
      - (iv) neither the [Federal agency](/usc/16/1532.md?p=7) concerned nor the exemption applicant made any irreversible or irretrievable commitment of [resources](/usc/16/410hhh–1.md?p=8) prohibited by [subsection (d)](#d); and
    - (B) it establishes such reasonable mitigation and enhancement measures, including, but not limited to, live propagation, transplantation, and habitat [acquisition](/usc/16/620e.md?p=1) and improvement, as are necessary and appropriate to minimize the adverse effects of the agency action upon the [endangered species](/usc/16/1532.md?p=6), [threatened species](/usc/16/1532.md?p=20), or [critical habitat](/usc/16/1532.md?p=5-A) concerned.

    Any final determination by the [Committee](/usc/16/941b.md?p=1) under this subsection shall be considered final agency action for purposes of [chapter 7](/usc/5/chptI-ch7.md) of title 5.

  - (2)
    - (A) Except as provided in [subparagraph (B)](#h-2-B), an exemption for an agency action granted under [paragraph (1)](#h-1) shall constitute a permanent exemption with respect to all endangered or [threatened species](/usc/16/1532.md?p=20) for the purposes of completing such agency action—
      - (i) regardless whether the [species](/usc/16/1532.md?p=16) was identified in the biological assessment; and
      - (ii) only if a biological assessment has been conducted under [subsection (c)](#c) with respect to such agency action.
    - (B) An exemption shall be permanent under [subparagraph (A)](#h-2-A) unless—
      - (i) the [Secretary](/usc/16/1532.md?p=15) finds, based on the best scientific and commercial data available, that such exemption would result in the extinction of a [species](/usc/16/1532.md?p=16) that was not the subject of consultation under [subsection (a)(2)](#a-2) or was not identified in any biological assessment conducted under [subsection (c)](#c), and
      - (ii) the [Committee](/usc/16/941b.md?p=1) determines within 60 days after the date of the [Secretary](/usc/16/1532.md?p=15)’s finding that the exemption should not be permanent.

      If the [Secretary](/usc/16/1532.md?p=15) makes a finding described in [clause (i)](#h-2-B-i), the [Committee](/usc/16/941b.md?p=1) shall meet with respect to the matter within 30 days after the date of the finding.

- (i) **Review by Secretary of State; violation of international treaty or other international obligation of United States—** Notwithstanding any other provision of this chapter, the [Committee](/usc/16/941b.md?p=1) 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](/usc/16/941b.md?p=1) 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](/usc/16/620e.md?p=11) of an international treaty obligation or other international obligation of the [United States](/usc/16/1532.md?p=21). The Secretary of State shall, at the time of such certification, publish a copy thereof in the Federal Register.
- (j) **Exemption for national security reasons—** Notwithstanding any other provision of this chapter, the [Committee](/usc/16/941b.md?p=1) shall grant an exemption for any agency action if the [Secretary](/usc/16/1532.md?p=15) of Defense finds that such exemption is necessary for reasons of national security.
- (k) **Exemption decision not considered major Federal action; environmental impact statement—** An exemption decision by the [Committee](/usc/16/941b.md?p=1) 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](/usc/42/4321.md) et seq.]: Provided, That an environmental impact statement which discusses the impacts upon [endangered species](/usc/16/1532.md?p=6) or [threatened species](/usc/16/1532.md?p=20) or their [critical habitats](/usc/16/1532.md?p=5-A) shall have been previously prepared with respect to any agency action exempted by such order.
- (l) **Committee order granting exemption; cost of mitigation and enhancement measures; report by applicant to Council on Environmental Quality—**
  - (1) If the [Committee](/usc/16/941b.md?p=1) determines under [subsection (h)](#h) that an exemption should be granted with respect to any agency action, the [Committee](/usc/16/941b.md?p=1) shall issue an order granting the exemption and specifying the mitigation and enhancement measures established pursuant to [subsection (h)](#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](/usc/16/410r–5.md?p=c-4) 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](/usc/16/410r–5.md?p=c-4) costs for the purpose of computing benefit-cost or other ratios for the proposed action. Any applicant may request the [Secretary](/usc/16/1532.md?p=15) to carry out such mitigation and enhancement measures. The costs incurred by the [Secretary](/usc/16/1532.md?p=15) 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](/usc/16/460mmm–1.md?p=2) on Environmental Quality a report describing its compliance with the mitigation and enhancement measures prescribed by this section. Such a report shall be submitted annually until all such mitigation and enhancement measures have been completed. Notice of the public availability of such reports shall be published in the Federal Register by the [Council](/usc/16/460mmm–1.md?p=2) on Environmental Quality.
- (m) **Notice requirement for citizen suits not applicable—** The 60-day notice requirement of [section 1540(g) of this title](/usc/16/1540.md?p=g) shall not apply with respect to review of any final determination of the [Committee](/usc/16/941b.md?p=1) under [subsection (h)](#h) of this section granting an exemption from the requirements of [subsection (a)(2)](#a-2) of this section.
- (n) **Judicial review—** Any [person](/usc/16/1532.md?p=13), as defined by [section 1532(13) of this title](/usc/16/1532.md?p=13), may obtain judicial review, under [chapter 7](/usc/5/chptI-ch7.md) of title 5, of any decision of the [Endangered Species](/usc/16/1532.md?p=6) [Committee](/usc/16/941b.md?p=1) under [subsection (h)](#h) in the [United States](/usc/16/1532.md?p=21) 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](/usc/16/941b.md?p=1) and the [Committee](/usc/16/941b.md?p=1) shall file in the court the record in the proceeding, as provided in [section 2112 of title 28](/usc/28/2112.md). Attorneys designated by the [Endangered Species](/usc/16/1532.md?p=6) [Committee](/usc/16/941b.md?p=1) may appear for, and represent the [Committee](/usc/16/941b.md?p=1) in any action for review under this subsection.
- (o) **Exemption as providing exception on taking of endangered species—** Notwithstanding sections [1533(d)](/usc/16/1533.md?p=d) and [1538(a)(1)(B)](/usc/16/1538.md?p=a-1-B) and [(C)](/usc/16/1538.md?p=a-1-C) of this title, sections [1371](/usc/16/1371.md) and [1372](/usc/16/1372.md) of this title, or any regulation promulgated to implement any such section—
  - (1) any action for which an exemption is granted under [subsection (h)](#h) shall not be considered to be a taking of any [endangered species](/usc/16/1532.md?p=6) or [threatened species](/usc/16/1532.md?p=20) 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)](#b-4-iv) shall not be considered to be a prohibited taking of the [species](/usc/16/1532.md?p=16) concerned.
- (p) **Exemptions in Presidentially declared disaster areas—** In any [area](/usc/16/539m–1.md?p=1-A) which has been declared by the President to be a major disaster [area](/usc/16/539m–1.md?p=1-A) under the Disaster Relief and Emergency Assistance Act [[42 U.S.C. 5121](/usc/42/5121.md) et seq.], the President is authorized to make the determinations required by subsections [(g)](#g) and [(h)](#h) of this section for any [project](/usc/16/410r–5.md?p=c-4) for the repair or replacement of a public facility substantially as it existed prior to the disaster under section [405](/usc/16/405.md) or [406](/usc/42/406.md) of the Disaster Relief and Emergency Assistance Act [[42 U.S.C. 5171](/usc/42/5171.md) or 5172], and which the President determines (1) is necessary to prevent the recurrence of such a natural disaster and to reduce the potential loss of human life, and (2) to involve an emergency situation which does not allow the ordinary procedures of this section to be followed. Notwithstanding any other provision of this section, the [Committee](/usc/16/941b.md?p=1) shall accept the determinations of the President under this subsection.

# §1537. International cooperation

- (a) **Financial assistance—** As a demonstration of the commitment of the [United States](/usc/16/1532.md?p=21) to the worldwide protection of [endangered species](/usc/16/1532.md?p=6) and [threatened species](/usc/16/1532.md?p=20), the President may, subject to the provisions of [section 1306 of title 31](/usc/31/1306.md), use foreign currencies accruing to the [United States](/usc/16/1532.md?p=21) Government under the Food for Peace Act [[7 U.S.C. 1691](/usc/7/1691.md) et seq.] or any other law to provide to any foreign country (with its consent) assistance in the development and management of [programs](/usc/16/460ss–6.md?p=1) in that country which the [Secretary](/usc/16/1532.md?p=15) determines to be necessary or useful for the [conservation](/usc/16/1532.md?p=3) of any [endangered species](/usc/16/1532.md?p=6) or [threatened species](/usc/16/1532.md?p=20) listed by the [Secretary](/usc/16/1532.md?p=15) pursuant to [section 1533 of this title](/usc/16/1533.md). The President shall provide assistance (which includes, but is not limited to, the [acquisition](/usc/16/620e.md?p=1), 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](/usc/16/1421h.md?p=2) appropriated under the authority of [section 1542 of this title](/usc/16/1542.md).
- (b) **Encouragement of foreign programs—** In order to carry out further the provisions of this chapter, the [Secretary](/usc/16/1532.md?p=15), through the Secretary of State, shall encourage—
  - (1) foreign countries to provide for the [conservation](/usc/16/1532.md?p=3) of [fish or wildlife](/usc/16/1532.md?p=8) and [plants](/usc/16/1532.md?p=14) including [endangered species](/usc/16/1532.md?p=6) and [threatened species](/usc/16/1532.md?p=20) listed pursuant to [section 1533 of this title](/usc/16/1533.md);
  - (2) the entering into of bilateral or multilateral agreements with foreign countries to provide for such [conservation](/usc/16/1532.md?p=3); and
  - (3) foreign [persons](/usc/16/1532.md?p=13) who directly or indirectly [take](/usc/16/1532.md?p=19) [fish or wildlife](/usc/16/1532.md?p=8) or [plants](/usc/16/1532.md?p=14) in foreign countries or on the high seas for importation into the [United States](/usc/16/1532.md?p=21) for commercial or other purposes to develop and carry out with such assistance as he may provide, [conservation](/usc/16/1532.md?p=3) practices designed to enhance such [fish or wildlife](/usc/16/1532.md?p=8) or [plants](/usc/16/1532.md?p=14) and their habitat.
- (c) **Personnel—** After consultation with the Secretary of State, the [Secretary](/usc/16/1532.md?p=15) 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](/usc/16/410hhh–1.md?p=8) and [programs](/usc/16/460ss–6.md?p=1) which promote the [conservation](/usc/16/1532.md?p=3) of [fish or wildlife](/usc/16/1532.md?p=8) or [plants](/usc/16/1532.md?p=14); and
  - (2) conduct or provide financial assistance for the educational training of foreign personnel, in this country or abroad, in fish, wildlife, or [plant](/usc/16/1532.md?p=14) 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](/usc/16/1532.md?p=15) of the Treasury, as appropriate, the [Secretary](/usc/16/1532.md?p=15) may conduct or cause to be conducted such law enforcement investigations and research abroad as he deems necessary to carry out the purposes of this chapter.

# §1537a. Convention implementation

- (a) **Management Authority and Scientific Authority—** The [Secretary](/usc/16/1532.md?p=15) of the Interior (hereinafter in this section referred to as the “[Secretary](/usc/16/1532.md?p=15)”) is designated as the Management Authority and the Scientific Authority for purposes of the [Convention](/usc/16/1532.md?p=4) and the respective functions of each such Authority shall be carried out through the [United States](/usc/16/1532.md?p=21) Fish and Wildlife Service.
- (b) **Management Authority functions—** The [Secretary](/usc/16/1532.md?p=15) shall do all things necessary and appropriate to carry out the functions of the Management Authority under the [Convention](/usc/16/1532.md?p=4).
- (c) **Scientific Authority functions; determinations—**
  - (1) The [Secretary](/usc/16/1532.md?p=15) shall do all things necessary and appropriate to carry out the functions of the Scientific Authority under the [Convention](/usc/16/1532.md?p=4).
  - (2) The [Secretary](/usc/16/1532.md?p=15) shall base the determinations and advice given by him under Article IV of the [Convention](/usc/16/1532.md?p=4) 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](/usc/16/1532.md?p=17) 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](/usc/16/1532.md?p=21) votes against including any [species](/usc/16/1532.md?p=16) in Appendix I or II of the [Convention](/usc/16/1532.md?p=4) and does not enter a reservation pursuant to paragraph (3) of Article XV of the [Convention](/usc/16/1532.md?p=4) with respect to that [species](/usc/16/1532.md?p=16), 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](/usc/16/941b.md?p=1) on Merchant Marine and [Fisheries](/usc/16/1383a.md?p=o-1) of the House of [Representatives](/usc/16/5609.md?p=13), and to the [Committee](/usc/16/941b.md?p=1) 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](/usc/16/1532.md?p=15) of the Interior (hereinafter in this subsection referred to as the “[Secretary](/usc/16/1532.md?p=15)”), in cooperation with the Secretary of State, shall act on behalf of, and represent, the [United States](/usc/16/1532.md?p=21) in all regards as required by the [Convention](/usc/16/1532.md?p=4) 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](/usc/16/1532.md?p=4)”). In the discharge of these responsibilities, the [Secretary](/usc/16/1532.md?p=15) and the Secretary of State shall consult with the [Secretary](/usc/16/1532.md?p=15) of Agriculture, the [Secretary](/usc/16/1532.md?p=15) of Commerce, and the heads of other agencies with respect to matters relating to or affecting their [areas](/usc/16/539m–1.md?p=1-A) of responsibility.
  - (2) The [Secretary](/usc/16/1532.md?p=15) and the Secretary of State shall, in cooperation with the contracting parties to the Western [Convention](/usc/16/1532.md?p=4) and, to the extent feasible and appropriate, with the participation of [State agencies](/usc/16/1532.md?p=18), [take](/usc/16/1532.md?p=19) such steps as are necessary to implement the Western [Convention](/usc/16/1532.md?p=4). Such steps shall include, but not be limited to—
    - (A) cooperation with contracting parties and international organizations for the purpose of developing personnel [resources](/usc/16/410hhh–1.md?p=8) and [programs](/usc/16/460ss–6.md?p=1) that will facilitate implementation of the Western [Convention](/usc/16/1532.md?p=4);
    - (B) identification of those [species](/usc/16/1532.md?p=16) of birds that migrate between the [United States](/usc/16/1532.md?p=21) and other contracting parties, and the habitats upon which those [species](/usc/16/1532.md?p=16) depend, and the implementation of cooperative measures to ensure that such [species](/usc/16/1532.md?p=16) will not become endangered or threatened; and
    - (C) identification of measures that are necessary and appropriate to implement those provisions of the Western [Convention](/usc/16/1532.md?p=4) which address the protection of wild [plants](/usc/16/1532.md?p=14).
  - (3) No later than September 30, 1985, the [Secretary](/usc/16/1532.md?p=15) 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](/usc/16/1532.md?p=4).
  - (4) The provisions of this subsection shall not be construed as affecting the authority, jurisdiction, or responsibility of the several [States](/usc/16/544.md?p=r) to manage, control, or regulate resident [fish or wildlife](/usc/16/1532.md?p=8) under [State](/usc/16/1532.md?p=17) law or regulations.

# §1538. Prohibited acts

- (a) **Generally—**
  - (1) Except as provided in sections [1535(g)(2)](/usc/16/1535.md?p=g-2) and [1539](/usc/16/1539.md) of this title, with respect to any [endangered species](/usc/16/1532.md?p=6) of [fish or wildlife](/usc/16/1532.md?p=8) listed pursuant to [section 1533 of this title](/usc/16/1533.md) it is unlawful for any [person](/usc/16/1532.md?p=13) subject to the jurisdiction of the [United States](/usc/16/1532.md?p=21) to—
    - (A) [import](/usc/16/1532.md?p=10) any such [species](/usc/16/1532.md?p=16) into, or export any such [species](/usc/16/1532.md?p=16) from the [United States](/usc/16/1532.md?p=21);
    - (B) [take](/usc/16/1532.md?p=19) any such [species](/usc/16/1532.md?p=16) within the [United States](/usc/16/1532.md?p=21) or the territorial sea of the [United States](/usc/16/1532.md?p=21);
    - (C) [take](/usc/16/1532.md?p=19) any such [species](/usc/16/1532.md?p=16) upon the high seas;
    - (D) possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any such [species](/usc/16/1532.md?p=16) taken in [violation](/usc/16/620e.md?p=11) of subparagraphs [(B)](#a-1-B) and [(C)](#a-1-C);
    - (E) deliver, receive, carry, transport, or ship in interstate or [foreign commerce](/usc/16/1532.md?p=9), by any means whatsoever and in the course of a [commercial activity](/usc/16/1532.md?p=2), any such [species](/usc/16/1532.md?p=16);
    - (F) sell or offer for sale in interstate or [foreign commerce](/usc/16/1532.md?p=9) any such [species](/usc/16/1532.md?p=16); or
    - (G) violate any regulation pertaining to such [species](/usc/16/1532.md?p=16) or to any [threatened species](/usc/16/1532.md?p=20) of [fish or wildlife](/usc/16/1532.md?p=8) listed pursuant to [section 1533 of this title](/usc/16/1533.md) and promulgated by the [Secretary](/usc/16/1532.md?p=15) pursuant to authority provided by this chapter.
  - (2) Except as provided in sections [1535(g)(2)](/usc/16/1535.md?p=g-2) and [1539](/usc/16/1539.md) of this title, with respect to any [endangered species](/usc/16/1532.md?p=6) of [plants](/usc/16/1532.md?p=14) listed pursuant to [section 1533 of this title](/usc/16/1533.md), it is unlawful for any [person](/usc/16/1532.md?p=13) subject to the jurisdiction of the [United States](/usc/16/1532.md?p=21) to—
    - (A) [import](/usc/16/1532.md?p=10) any such [species](/usc/16/1532.md?p=16) into, or export any such [species](/usc/16/1532.md?p=16) from, the [United States](/usc/16/1532.md?p=21);
    - (B) remove and reduce to possession any such [species](/usc/16/1532.md?p=16) from [areas](/usc/16/539m–1.md?p=1-A) under Federal jurisdiction; maliciously damage or destroy any such [species](/usc/16/1532.md?p=16) on any such [area](/usc/16/539m–1.md?p=1-A); or remove, cut, dig up, or damage or destroy any such [species](/usc/16/1532.md?p=16) on any other [area](/usc/16/539m–1.md?p=1-A) in knowing [violation](/usc/16/620e.md?p=11) of any law or regulation of any [State](/usc/16/1532.md?p=17) or in the course of any [violation](/usc/16/620e.md?p=11) of a [State](/usc/16/1532.md?p=17) criminal trespass law;
    - (C) deliver, receive, carry, transport, or ship in interstate or [foreign commerce](/usc/16/1532.md?p=9), by any means whatsoever and in the course of a [commercial activity](/usc/16/1532.md?p=2), any such [species](/usc/16/1532.md?p=16);
    - (D) sell or offer for sale in interstate or [foreign commerce](/usc/16/1532.md?p=9) any such [species](/usc/16/1532.md?p=16); or
    - (E) violate any regulation pertaining to such [species](/usc/16/1532.md?p=16) or to any [threatened species](/usc/16/1532.md?p=20) of [plants](/usc/16/1532.md?p=14) listed pursuant to [section 1533 of this title](/usc/16/1533.md) and promulgated by the [Secretary](/usc/16/1532.md?p=15) pursuant to authority provided by this chapter.
- (b) **Species held in captivity or controlled environment—**
  - (1) The provisions of subsections [(a)(1)(A)](#a-1-A) and [(a)(1)(G)](#a-1-G) of this section shall not apply to any [fish or wildlife](/usc/16/1532.md?p=8) 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](/usc/16/1532.md?p=8) [species](/usc/16/1532.md?p=16) to any list published pursuant to subsection (c) of [section 1533 of this title](/usc/16/1533.md): Provided, That such holding and any subsequent holding or use of the [fish or wildlife](/usc/16/1532.md?p=8) was not in the course of a [commercial activity](/usc/16/1532.md?p=2). With respect to any act prohibited by subsections [(a)(1)(A)](#a-1-A) and [(a)(1)(G)](#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](/usc/16/1532.md?p=8) [species](/usc/16/1532.md?p=16) to any list published pursuant to subsection (c) of [section 1533 of this title](/usc/16/1533.md), there shall be a rebuttable presumption that the [fish or wildlife](/usc/16/1532.md?p=8) involved in such act is not entitled to the exemption contained in this subsection.
  - (2)
    - (A) The provisions of [subsection (a)(1)](#a-1) shall not apply to—
      - (i) any raptor legally held in captivity or in a controlled environment on November 10, 1978; or
      - (ii) any progeny of any raptor described in [clause (i)](#b-2-A-i);

      until such time as any such raptor or progeny is intentionally returned to a wild [state](/usc/16/1532.md?p=17).

    - (B) Any [person](/usc/16/1532.md?p=13) holding any raptor or progeny described in [subparagraph (A)](#b-2-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](/usc/16/1532.md?p=15), on request, such inventories, documentation, and records as the [Secretary](/usc/16/1532.md?p=15) 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](/usc/16/1532.md?p=15).
- (c) **Violation of Convention—**
  - (1) It is unlawful for any [person](/usc/16/1532.md?p=13) subject to the jurisdiction of the [United States](/usc/16/1532.md?p=21) to engage in any trade in any specimens contrary to the provisions of the [Convention](/usc/16/1532.md?p=4), or to possess any specimens traded contrary to the provisions of the [Convention](/usc/16/1532.md?p=4), including the definitions of terms in article I thereof.
  - (2) Any importation into the [United States](/usc/16/1532.md?p=21) of [fish or wildlife](/usc/16/1532.md?p=8) shall, if—
    - (A) such [fish or wildlife](/usc/16/1532.md?p=8) is not an [endangered species](/usc/16/1532.md?p=6) listed pursuant to [section 1533 of this title](/usc/16/1533.md) but is listed in Appendix II to the [Convention](/usc/16/1532.md?p=4),
    - (B) the taking and exportation of such [fish or wildlife](/usc/16/1532.md?p=8) is not contrary to the provisions of the [Convention](/usc/16/1532.md?p=4) and all other applicable requirements of the [Convention](/usc/16/1532.md?p=4) have been satisfied,
    - (C) the applicable requirements of subsections [(d)](#d), [(e)](#e), and [(f)](#f) of this section have been satisfied, and
    - (D) such importation is not made in the course of a [commercial activity](/usc/16/1532.md?p=2),

    be presumed to be an importation not in [violation](/usc/16/620e.md?p=11) of any provision of this chapter or any regulation issued pursuant to this chapter.

- (d) **Imports and exports—**
  - (1) **In general—** It is unlawful for any [person](/usc/16/1532.md?p=13), without first having obtained permission from the [Secretary](/usc/16/1532.md?p=15), to engage in business—
    - (A) as an importer or exporter of [fish or wildlife](/usc/16/1532.md?p=8) (other than shellfish and [fishery](/usc/16/1383a.md?p=o-1) products which (i) are not listed pursuant to [section 1533 of this title](/usc/16/1533.md) as [endangered species](/usc/16/1532.md?p=6) or [threatened species](/usc/16/1532.md?p=20), and (ii) are imported for purposes of human or animal consumption or taken in waters under the jurisdiction of the [United States](/usc/16/1532.md?p=21) or on the high seas for recreational purposes) or [plants](/usc/16/1532.md?p=14); or
    - (B) as an importer or exporter of any amount of raw or worked African elephant ivory.
  - (2) **Requirements—** Any [person](/usc/16/1532.md?p=13) 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](/usc/16/1532.md?p=14), or African elephant ivory made by him and the subsequent disposition made by him with respect to such fish, wildlife, [plants](/usc/16/1532.md?p=14), or ivory;
    - (B) at all reasonable times upon notice by a duly authorized [representative](/usc/16/5609.md?p=13) of the [Secretary](/usc/16/1532.md?p=15), afford such [representative](/usc/16/5609.md?p=13) access to his place of business, an opportunity to examine his inventory of imported fish, wildlife, [plants](/usc/16/1532.md?p=14), 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](/usc/16/1532.md?p=15) may require.
  - (3) **Regulations—** The [Secretary](/usc/16/1532.md?p=15) 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](/usc/16/1532.md?p=15) 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](/usc/16/1532.md?p=13) importing or exporting [fish or wildlife](/usc/16/1532.md?p=8) (other than shellfish and [fishery](/usc/16/1383a.md?p=o-1) products which (1) are not listed pursuant to [section 1533 of this title](/usc/16/1533.md) as endangered or [threatened species](/usc/16/1532.md?p=20), and (2) are imported for purposes of human or animal consumption or taken in waters under the jurisdiction of the [United States](/usc/16/1532.md?p=21) or on the high seas for recreational purposes) or [plants](/usc/16/1532.md?p=14) to fail to file any declaration or report as the [Secretary](/usc/16/1532.md?p=15) deems necessary to facilitate enforcement of this chapter or to meet the obligations of the [Convention](/usc/16/1532.md?p=4).
- (f) **Designation of ports—**
  - (1) It is unlawful for any [person](/usc/16/1532.md?p=13) subject to the jurisdiction of the [United States](/usc/16/1532.md?p=21) to [import](/usc/16/1532.md?p=10) into or export from the [United States](/usc/16/1532.md?p=21) any [fish or wildlife](/usc/16/1532.md?p=8) (other than shellfish and [fishery](/usc/16/1383a.md?p=o-1) products which (A) are not listed pursuant to [section 1533 of this title](/usc/16/1533.md) as [endangered species](/usc/16/1532.md?p=6) or [threatened species](/usc/16/1532.md?p=20), and (B) are imported for purposes of human or animal consumption or taken in waters under the jurisdiction of the [United States](/usc/16/1532.md?p=21) or on the high seas for recreational purposes) or [plants](/usc/16/1532.md?p=14), except at a port or ports designated by the [Secretary](/usc/16/1532.md?p=15) of the Interior. For the purpose of facilitating enforcement of this chapter and reducing the costs thereof, the [Secretary](/usc/16/1532.md?p=15) of the Interior, with approval of the [Secretary](/usc/16/1532.md?p=15) of the Treasury and after notice and opportunity for public hearing, may, by regulation, designate ports and change such designations. The [Secretary](/usc/16/1532.md?p=15) 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](/usc/16/1532.md?p=8) or [plants](/usc/16/1532.md?p=14), 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](/usc/16/1532.md?p=15) of the Interior under the authority of section 668cc–4(d)[^1] of this title, shall, if such designation is in effect on December 27, 1973, be deemed to be a port designated by the [Secretary](/usc/16/1532.md?p=15) under paragraph (1) of this subsection until such time as the [Secretary](/usc/16/1532.md?p=15) otherwise provides.
- (g) **Violations—** It is unlawful for any [person](/usc/16/1532.md?p=13) subject to the jurisdiction of the [United States](/usc/16/1532.md?p=21) to attempt to commit, solicit another to commit, or cause to be committed, any offense defined in this section.

# §1539. Exceptions

- (a) **Permits—**
  - (1) The [Secretary](/usc/16/1532.md?p=15) may permit, under such terms and conditions as he shall prescribe—
    - (A) any act otherwise prohibited by [section 1538 of this title](/usc/16/1538.md) for scientific purposes or to enhance the propagation or survival of the affected [species](/usc/16/1532.md?p=16), including, but not limited to, acts necessary for the establishment and maintenance of experimental populations pursuant to [subsection (j)](#j); or
    - (B) any taking otherwise prohibited by [section 1538(a)(1)(B) of this title](/usc/16/1538.md?p=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](/usc/16/1532.md?p=15) authorizing any taking referred to in [paragraph (1)(B)](#a-1-B) unless the applicant therefor submits to the [Secretary](/usc/16/1532.md?p=15) a [conservation plan](/usc/16/2902.md?p=2) that specifies—
      - (i) the impact which will likely result from such taking;
      - (ii) what steps the applicant will [take](/usc/16/1532.md?p=19) 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](/usc/16/1532.md?p=15) may require as being necessary or appropriate for purposes of the plan.
    - (B) If the [Secretary](/usc/16/1532.md?p=15) finds, after opportunity for public comment, with respect to a permit application and the related [conservation plan](/usc/16/2902.md?p=2) 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](/usc/16/1532.md?p=16) in the wild; and
      - (v) the measures, if any, required under [subparagraph (A)(iv)](#a-2-A-iv) will be met;

      and he has received such other assurances as he may require that the plan will be implemented, the [Secretary](/usc/16/1532.md?p=15) shall issue the permit. The permit shall contain such terms and conditions as the [Secretary](/usc/16/1532.md?p=15) deems necessary or appropriate to carry out the purposes of this paragraph, including, but not limited to, such reporting requirements as the [Secretary](/usc/16/1532.md?p=15) deems necessary for determining whether such terms and conditions are being complied with.

    - (C) The [Secretary](/usc/16/1532.md?p=15) 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](/usc/16/1532.md?p=13) enters into a contract with respect to a [species](/usc/16/1532.md?p=16) of [fish or wildlife](/usc/16/1532.md?p=8) or [plant](/usc/16/1532.md?p=14) before the date of the publication in the Federal Register of notice of consideration of that [species](/usc/16/1532.md?p=16) as an [endangered species](/usc/16/1532.md?p=6) and the subsequent listing of that [species](/usc/16/1532.md?p=16) as an [endangered species](/usc/16/1532.md?p=6) pursuant to [section 1533 of this title](/usc/16/1533.md) will cause [undue economic hardship](#b-2) to such [person](/usc/16/1532.md?p=13) under the contract, the [Secretary](/usc/16/1532.md?p=15), in order to minimize such hardship, may exempt such [person](/usc/16/1532.md?p=13) from the application of [section 1538(a) of this title](/usc/16/1538.md?p=a) to the extent the [Secretary](/usc/16/1532.md?p=15) deems appropriate if such [person](/usc/16/1532.md?p=13) applies to him for such exemption and includes with such application such information as the [Secretary](/usc/16/1532.md?p=15) 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](/usc/16/1532.md?p=16) concerned, or shall apply to a quantity of [fish or wildlife](/usc/16/1532.md?p=8) or [plants](/usc/16/1532.md?p=14) in excess of that specified by the [Secretary](/usc/16/1532.md?p=15); (B) the one-year period for those [species](/usc/16/1532.md?p=16) of [fish or wildlife](/usc/16/1532.md?p=8) listed by the [Secretary](/usc/16/1532.md?p=15) as endangered prior to December 28, 1973, shall expire in accordance with the terms of section 668cc–3[^1] of this title; and (C) no such exemption may be granted for the importation or exportation of a specimen listed in Appendix I of the [Convention](/usc/16/1532.md?p=4) which is to be used in a [commercial activity](/usc/16/1532.md?p=2).
  - (2) As used in this subsection, the term “undue economic hardship” shall include, but not be limited to:
    - (A) substantial economic loss resulting from inability caused by this chapter to perform contracts with respect to [species](/usc/16/1532.md?p=16) of fish and wildlife entered into prior to the date of publication in the Federal Register of a notice of consideration of such [species](/usc/16/1532.md?p=16) as an [endangered species](/usc/16/1532.md?p=6);
    - (B) substantial economic loss to [persons](/usc/16/1532.md?p=13) who, for the year prior to the notice of consideration of such [species](/usc/16/1532.md?p=16) as an [endangered species](/usc/16/1532.md?p=6), derived a substantial portion of their income from the lawful taking of any listed [species](/usc/16/1532.md?p=16), which taking would be made unlawful under this chapter; or
    - (C) curtailment of subsistence taking made unlawful under this chapter by [persons](/usc/16/1532.md?p=13) (i) not reasonably able to secure other sources of subsistence; and (ii) dependent to a substantial extent upon hunting and [fishing](/usc/16/7901.md?p=b) for subsistence; and (iii) who must engage in such curtailed taking for subsistence purposes.
  - (3) The [Secretary](/usc/16/1532.md?p=15) may make further requirements for a showing of [undue economic hardship](#b-2) as he deems fit. Exceptions granted under this section may be limited by the [Secretary](/usc/16/1532.md?p=15) in his discretion as to time, [area](/usc/16/539m–1.md?p=1-A), or other factor of applicability.
- (c) **Notice and review—** The [Secretary](/usc/16/1532.md?p=15) 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](/usc/16/1532.md?p=15) 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](/usc/16/1532.md?p=15) in the Federal Register within ten days following the issuance of the exemption or permit. Information received by the [Secretary](/usc/16/1532.md?p=15) as a part of any application shall be available to the public as a matter of public record at every stage of the proceeding.
- (d) **Permit and exemption policy—** The [Secretary](/usc/16/1532.md?p=15) may grant exceptions under subsections [(a)(1)(A)](#a-1-A) and [(b)](#b) of this section only if he finds and publishes his finding in the Federal Register that (1) such exceptions were applied for in good faith, (2) if granted and exercised will not operate to the disadvantage of such [endangered species](/usc/16/1532.md?p=6), and (3) will be consistent with the purposes and policy set forth in [section 1531 of this title](/usc/16/1531.md).
- (e) **Alaska natives—**
  - (1) Except as provided in paragraph (4) of this subsection the provisions of this chapter shall not apply with respect to the taking of any [endangered species](/usc/16/1532.md?p=6) or [threatened species](/usc/16/1532.md?p=20), or the importation of any such [species](/usc/16/1532.md?p=16) 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](#e-3-i) purposes. Non-edible byproducts of [species](/usc/16/1532.md?p=16) taken pursuant to this section may be sold in interstate commerce when made into [authentic native articles of handicrafts and clothing](#e-3-ii); except that the provisions of this subsection shall not apply to any non-native resident of an Alaskan native village found by the [Secretary](/usc/16/1532.md?p=15) 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](#e-3-ii).

  - (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](/usc/16/1532.md?p=8) in native villages and towns in Alaska for native consumption within native villages or towns; and
    - (ii) The term “authentic native articles of handicrafts and clothing” means items composed wholly or in some significant respect of natural materials, and which are produced, decorated, or fashioned in the exercise of traditional native handicrafts without the use of pantographs, multiple carvers, or other mass copying devices. Traditional native handicrafts include, but are not limited to, weaving, carving, stitching, sewing, lacing, beading, drawing, and painting.
  - (4) Notwithstanding the provisions of paragraph (1) of this subsection, whenever the [Secretary](/usc/16/1532.md?p=15) determines that any [species](/usc/16/1532.md?p=16) of [fish or wildlife](/usc/16/1532.md?p=8) which is subject to taking under the provisions of this subsection is an [endangered species](/usc/16/1532.md?p=6) or [threatened species](/usc/16/1532.md?p=20), and that such taking materially and negatively affects the threatened or [endangered species](/usc/16/1532.md?p=6), he may prescribe regulations upon the taking of such [species](/usc/16/1532.md?p=16) 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](/usc/16/1532.md?p=16), geographical description of the [area](/usc/16/539m–1.md?p=1-A) included, the season for taking, or any other factors related to the reason for establishing such regulations and consistent with the policy of this chapter. Such regulations shall be prescribed after a notice and hearings in the affected judicial districts of Alaska and as otherwise required by [section 1373 of this title](/usc/16/1373.md), and shall be removed as soon as the [Secretary](/usc/16/1532.md?p=15) determines that the need for their impositions has disappeared.
- (f) **Pre-Act endangered species parts exemption; application and certification; regulation; validity of sales contract; separability; renewal of exemption; expiration of renewal certification—**
  - (1) As used in this subsection—
    - (A) The term “pre-Act endangered species part” means—
      - (i) any sperm whale oil, including derivatives thereof, which was lawfully held within the [United States](/usc/16/1532.md?p=21) on December 28, 1973, in the course of a [commercial activity](/usc/16/1532.md?p=2); or
      - (ii) any finished [scrimshaw product](#f-1-B), if such product or the raw material for such product was lawfully held within the [United States](/usc/16/1532.md?p=21) on December 28, 1973, in the course of a [commercial activity](/usc/16/1532.md?p=2).
    - (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](/usc/16/1532.md?p=15), pursuant to the provisions of this subsection, may exempt, if such exemption is not in [violation](/usc/16/620e.md?p=11) of the [Convention](/usc/16/1532.md?p=4), any [pre-Act endangered species part](#f-1-A) from one or more of the following prohibitions:
    - (A) The prohibition on exportation from the [United States](/usc/16/1532.md?p=21) set forth in [section 1538(a)(1)(A) of this title](/usc/16/1538.md?p=a-1-A).
    - (B) Any prohibition set forth in section [1538(a)(1)(E)](/usc/16/1538.md?p=a-1-E) or [(F)](/usc/16/1538.md?p=a-1-F) of this title.
  - (3) Any [person](/usc/16/1532.md?p=13) seeking an exemption described in paragraph (2) of this subsection shall make application therefor to the [Secretary](/usc/16/1532.md?p=15) in such form and manner as he shall prescribe, but no such application may be considered by the [Secretary](/usc/16/1532.md?p=15) unless the application—
    - (A) is received by the [Secretary](/usc/16/1532.md?p=15) before the close of the one-year period beginning on the date on which regulations promulgated by the [Secretary](/usc/16/1532.md?p=15) to carry out this subsection first [take](/usc/16/1532.md?p=19) effect;
    - (B) contains a complete and detailed inventory of all [pre-Act endangered species parts](#f-1-A) for which the applicant seeks exemption;
    - (C) is accompanied by such documentation as the [Secretary](/usc/16/1532.md?p=15) may require to prove that any [endangered species](/usc/16/1532.md?p=6) part or product claimed by the applicant to be a [pre-Act endangered species part](#f-1-A) is in fact such a part; and
    - (D) contains such other information as the [Secretary](/usc/16/1532.md?p=15) deems necessary and appropriate to carry out the purposes of this subsection.
  - (4) If the [Secretary](/usc/16/1532.md?p=15) approves any application for exemption made under this subsection, he shall issue to the applicant a certificate of exemption which shall specify—
    - (A) any prohibition in [section 1538(a) of this title](/usc/16/1538.md?p=a) which is exempted;
    - (B) the [pre-Act endangered species parts](#f-1-A) 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)](#f-8); and
    - (D) any term or condition prescribed pursuant to paragraph [(5)(A)](#f-5-A) or [(B)](#f-5-B), or both, which the [Secretary](/usc/16/1532.md?p=15) deems necessary or appropriate.
  - (5) The [Secretary](/usc/16/1532.md?p=15) 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](/usc/16/1532.md?p=15) to inspect such inventories and records, and periodically file appropriate reports with the [Secretary](/usc/16/1532.md?p=15)); and
    - (B) terms and conditions which may be imposed on any subsequent purchaser of any [pre-Act endangered species part](#f-1-A) covered by an exemption granted under this subsection;

    to insure that any such part so exempted is adequately accounted for and not disposed of contrary to the provisions of this chapter. No regulation prescribed by the [Secretary](/usc/16/1532.md?p=15) to carry out the purposes of this subsection shall be subject to [section 1533(f)(2)(A)(i) of this title](/usc/16/1533.md).

  - (6)
    - (A) Any contract for the sale of [pre-Act endangered species parts](#f-1-A) which is entered into by the [Administrator](/usc/16/450rr–1.md?p=a) of General Services prior to the effective date of this subsection and pursuant to the notice published in the Federal Register on January 9, 1973, shall not be rendered invalid by virtue of the fact that fulfillment of such contract may be prohibited under [section 1538(a)(1)(F) of this title](/usc/16/1538.md?p=a-1-F).
    - (B) In the event that this paragraph is held invalid, the validity of the remainder of this chapter, including the remainder of this subsection, shall not be affected.
  - (7) Nothing in this subsection shall be construed to—
    - (A) exonerate any [person](/usc/16/1532.md?p=13) from any act committed in [violation](/usc/16/620e.md?p=11) of paragraphs (1)(A), (1)(E), or (1)(F) of [section 1538(a) of this title](/usc/16/1538.md?p=a) prior to July 12, 1976; or
    - (B) immunize any [person](/usc/16/1532.md?p=13) from prosecution for any such act.
  - (8)
    - (A)
      - (i) [^2] Any valid certificate of exemption which was renewed after October 13, 1982, and was in effect on March 31, 1988, shall be deemed to be renewed for a six-month period beginning on October 7, 1988. Any [person](/usc/16/1532.md?p=13) holding such a certificate may apply to the [Secretary](/usc/16/1532.md?p=15) for one additional renewal of such certificate for a period not to exceed 5 years beginning on October 7, 1988.
    - (B) If the [Secretary](/usc/16/1532.md?p=15) 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](/usc/16/1532.md?p=13) may, after January 31, 1984, sell or offer for sale in interstate or [foreign commerce](/usc/16/1532.md?p=9), any pre-Act finished [scrimshaw product](#f-1-B) unless such [person](/usc/16/1532.md?p=13) holds a valid certificate of exemption issued by the [Secretary](/usc/16/1532.md?p=15) under this subsection, and unless such product or the raw material for such product was held by such [person](/usc/16/1532.md?p=13) on October 13, 1982.
- (g) **Burden of proof—** In connection with any action alleging a [violation](/usc/16/620e.md?p=11) of [section 1538 of this title](/usc/16/1538.md), any [person](/usc/16/1532.md?p=13) claiming the benefit of any exemption or permit under this chapter shall have the burden of proving that the exemption or permit is applicable, has been granted, and was valid and in force at the time of the alleged [violation](/usc/16/620e.md?p=11).
- (h) **Certain antique articles; importation; port designation; application for return of articles—**
  - (1) Sections [1533(d)](/usc/16/1533.md?p=d) and [1538(a)](/usc/16/1538.md?p=a) and [(c)](/usc/16/1538.md?p=c) of this title do not apply to any article which—
    - (A) is not less than 100 years of age;
    - (B) is composed in whole or in part of any [endangered species](/usc/16/1532.md?p=6) or [threatened species](/usc/16/1532.md?p=20) listed under [section 1533 of this title](/usc/16/1533.md);
    - (C) has not been repaired or modified with any part of any such [species](/usc/16/1532.md?p=16) on or after December 28, 1973; and
    - (D) is entered at a port designated under [paragraph (3)](#h-3).
  - (2) Any [person](/usc/16/1532.md?p=13) who wishes to [import](/usc/16/1532.md?p=10) 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](/usc/16/1532.md?p=15) of the Treasury, after consultation with the [Secretary](/usc/16/1532.md?p=15) of the Interior, shall by regulation require as being necessary to establish that the article meets the requirements set forth in paragraph [(1)(A)](#h-1-A), [(B)](#h-1-B), and [(C)](#h-1-C).
  - (3) The [Secretary](/usc/16/1532.md?p=15) of the Treasury, after consultation with the [Secretary](/usc/16/1532.md?p=15) of the Interior, shall designate one port within each customs [region](/usc/16/1447a.md?p=6) at which articles described in paragraph [(1)(A)](#h-1-A), [(B)](#h-1-B), and [(C)](#h-1-C) must be entered into the customs territory of the [United States](/usc/16/1532.md?p=21).
  - (4) Any [person](/usc/16/1532.md?p=13) who imported, after December 27, 1973, and on or before November 10, 1978, any article described in [paragraph (1)](#h-1) which—
    - (A) was not repaired or modified after the date of importation with any part of any [endangered species](/usc/16/1532.md?p=6) or [threatened species](/usc/16/1532.md?p=20) listed under [section 1533 of this title](/usc/16/1533.md);
    - (B) was forfeited to the [United States](/usc/16/1532.md?p=21) before November 10, 1978, or is subject to forfeiture to the [United States](/usc/16/1532.md?p=21) on such date of enactment, pursuant to the assessment of a civil penalty under [section 1540 of this title](/usc/16/1540.md); and
    - (C) is in the custody of the [United States](/usc/16/1532.md?p=21) on November 10, 1978;

    may, before the close of the one-year period beginning on November 10, 1978, make application to the [Secretary](/usc/16/1532.md?p=15) for return of the article. Application shall be made in such form and manner, and contain such documentation, as the [Secretary](/usc/16/1532.md?p=15) prescribes. If on the basis of any such application which is timely filed, the [Secretary](/usc/16/1532.md?p=15) is satisfied that the requirements of this paragraph are met with respect to the article concerned, the [Secretary](/usc/16/1532.md?p=15) shall return the article to the applicant and the importation of such article shall, on and after the date of return, be deemed to be a lawful importation under this chapter.

- (i) **Noncommercial transshipments—** Any importation into the [United States](/usc/16/1532.md?p=21) of [fish or wildlife](/usc/16/1532.md?p=8) shall, if—
  - (1) such [fish or wildlife](/usc/16/1532.md?p=8) was lawfully taken and exported from the country of origin and country of reexport, if any;
  - (2) such [fish or wildlife](/usc/16/1532.md?p=8) is in transit or transshipment through any place subject to the jurisdiction of the [United States](/usc/16/1532.md?p=21) en route to a country where such [fish or wildlife](/usc/16/1532.md?p=8) may be lawfully imported and received;
  - (3) the exporter or [owner](/usc/16/429b–3.md?p=4) of such [fish or wildlife](/usc/16/1532.md?p=8) gave explicit instructions not to ship such [fish or wildlife](/usc/16/1532.md?p=8) through any place subject to the jurisdiction of the [United States](/usc/16/1532.md?p=21), 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](/usc/16/429b–3.md?p=4)’s control;
  - (4) the applicable requirements of the [Convention](/usc/16/1532.md?p=4) have been satisfied; and
  - (5) such importation is not made in the course of a [commercial activity](/usc/16/1532.md?p=2),

  be an importation not in [violation](/usc/16/620e.md?p=11) of any provision of this chapter or any regulation issued pursuant to this chapter while such [fish or wildlife](/usc/16/1532.md?p=8) remains in the control of the [United States](/usc/16/1532.md?p=21) 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](/usc/16/1532.md?p=15) for release under [paragraph (2)](#j-2), but only when, and at such times as, the population is wholly separate geographically from nonexperimental populations of the same [species](/usc/16/1532.md?p=16).
  - (2)
    - (A) The [Secretary](/usc/16/1532.md?p=15) may authorize the release (and the related transportation) of any population (including eggs, propagules, or individuals) of an [endangered species](/usc/16/1532.md?p=6) or a [threatened species](/usc/16/1532.md?p=20) outside the current range of such [species](/usc/16/1532.md?p=16) if the [Secretary](/usc/16/1532.md?p=15) determines that such release will further the [conservation](/usc/16/1532.md?p=3) of such [species](/usc/16/1532.md?p=16).
    - (B) Before authorizing the release of any population under [subparagraph (A)](#j-2-A), the [Secretary](/usc/16/1532.md?p=15) 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](/usc/16/1532.md?p=6) or a [threatened species](/usc/16/1532.md?p=20).
    - (C) For the purposes of this chapter, each member of an [experimental population](#j-1) shall be treated as a [threatened species](/usc/16/1532.md?p=20); except that—
      - (i) solely for purposes of [section 1536 of this title](/usc/16/1536.md) (other than [subsection (a)(1)](#a-1) thereof), an [experimental population](#j-1) determined under [subparagraph (B)](#j-2-B) to be not essential to the continued existence of a [species](/usc/16/1532.md?p=16) shall be treated, except when it occurs in an [area](/usc/16/539m–1.md?p=1-A) within the National [Wildlife Refuge](/usc/16/410hhh–1.md?p=6) [System](/usc/16/668ee.md?p=14) or the [National Park](/usc/16/410hhh–1.md?p=5) [System](/usc/16/668ee.md?p=14), as a [species](/usc/16/1532.md?p=16) proposed to be listed under [section 1533 of this title](/usc/16/1533.md); and
      - (ii) [critical habitat](/usc/16/1532.md?p=5-A) shall not be designated under this chapter for any [experimental population](#j-1) determined under [subparagraph (B)](#j-2-B) to be not essential to the continued existence of a [species](/usc/16/1532.md?p=16).
  - (3) The [Secretary](/usc/16/1532.md?p=15), with respect to populations of [endangered species](/usc/16/1532.md?p=6) or [threatened species](/usc/16/1532.md?p=20) that the [Secretary](/usc/16/1532.md?p=15) authorized, before October 13, 1982, for release in geographical [areas](/usc/16/539m–1.md?p=1-A) separate from the other populations of such [species](/usc/16/1532.md?p=16), shall determine by regulation which of such populations are an [experimental population](#j-1) for the purposes of this subsection and whether or not each is essential to the continued existence of an [endangered species](/usc/16/1532.md?p=6) or a [threatened species](/usc/16/1532.md?p=20).

# §1540. Penalties and enforcement

- (a) **Civil penalties—**
  - (1) Any [person](/usc/16/1532.md?p=13) who knowingly violates, and any [person](/usc/16/1532.md?p=13) engaged in business as an importer or exporter of fish, wildlife, or [plants](/usc/16/1532.md?p=14) who violates, any provision of this chapter, or any provision of any permit or certificate issued hereunder, or of any regulation issued in order to implement subsection (a)(1)(A), (B), (C), (D), (E), or (F), (a)(2)(A), (B), (C), or (D), (c), (d) (other than regulation relating to recordkeeping or filing of reports), (f) or (g) of [section 1538 of this title](/usc/16/1538.md), may be assessed a civil penalty by the [Secretary](/usc/16/1532.md?p=15) of not more than $25,000 for each [violation](/usc/16/620e.md?p=11). Any [person](/usc/16/1532.md?p=13) who knowingly violates, and any [person](/usc/16/1532.md?p=13) engaged in business as an importer or exporter of fish, wildlife, or [plants](/usc/16/1532.md?p=14) who violates, any provision of any other regulation issued under this chapter may be assessed a civil penalty by the [Secretary](/usc/16/1532.md?p=15) of not more than $12,000 for each such [violation](/usc/16/620e.md?p=11). Any [person](/usc/16/1532.md?p=13) who otherwise violates any provision of this chapter, or any regulation, permit, or certificate issued hereunder, may be assessed a civil penalty by the [Secretary](/usc/16/1532.md?p=15) of not more than $500 for each such [violation](/usc/16/620e.md?p=11). No penalty may be assessed under this subsection unless such [person](/usc/16/1532.md?p=13) is given notice and opportunity for a hearing with respect to such [violation](/usc/16/620e.md?p=11). Each [violation](/usc/16/620e.md?p=11) shall be a separate offense. Any such civil penalty may be remitted or mitigated by the [Secretary](/usc/16/1532.md?p=15). Upon any failure to pay a penalty assessed under this subsection, the [Secretary](/usc/16/1532.md?p=15) may request the Attorney General to [institute](/usc/16/6703.md?p=4) a civil action in a district court of the [United States](/usc/16/1532.md?p=21) for any district in which such [person](/usc/16/1532.md?p=13) 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](/usc/16/1532.md?p=15) and shall sustain his action if it is supported by substantial evidence on the record considered as a whole.
  - (2) Hearings held during proceedings for the assessment of civil penalties authorized by paragraph (1) of this subsection shall be conducted in accordance with [section 554 of title 5](/usc/5/554.md). The [Secretary](/usc/16/1532.md?p=15) may issue subpenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents, and administer oaths. Witnesses summoned shall be paid the same fees and mileage that are paid to witnesses in the courts of the [United States](/usc/16/1532.md?p=21). In case of contumacy or refusal to obey a subpena served upon any [person](/usc/16/1532.md?p=13) pursuant to this paragraph, the district court of the [United States](/usc/16/1532.md?p=21) for any district in which such [person](/usc/16/1532.md?p=13) is found or resides or transacts business, upon application by the [United States](/usc/16/1532.md?p=21) and after notice to such [person](/usc/16/1532.md?p=13), shall have jurisdiction to issue an order requiring such [person](/usc/16/1532.md?p=13) to appear and give testimony before the [Secretary](/usc/16/1532.md?p=15) or to appear and produce documents before the [Secretary](/usc/16/1532.md?p=15), or both, and any failure to obey such order of the court may be punished by such court as a contempt thereof.
  - (3) Notwithstanding any other provision of this chapter, no civil penalty shall be imposed if it can be shown by a preponderance of the evidence that the defendant committed an act based on a good faith belief that he was acting to protect himself or herself, a member of his or her family, or any other individual from bodily harm, from any endangered or [threatened species](/usc/16/1532.md?p=20).
- (b) **Criminal violations—**
  - (1) Any [person](/usc/16/1532.md?p=13) who knowingly violates any provision of this chapter, of any permit or certificate issued hereunder, or of any regulation issued in order to implement subsection (a)(1)(A), (B), (C), (D), (E), or (F), (a)(2)(A), (B), (C), or (D), (c), (d) (other than a regulation relating to recordkeeping, or filing of reports), (f), or (g) of [section 1538 of this title](/usc/16/1538.md) shall, upon conviction, be fined not more than $50,000 or imprisoned for not more than one year, or both. Any [person](/usc/16/1532.md?p=13) who knowingly violates any provision of any other regulation issued under this chapter shall, upon conviction, be fined not more than $25,000 or imprisoned for not more than six months, or both.
  - (2) The head of any [Federal agency](/usc/16/1532.md?p=7) which has issued a lease, license, permit, or other agreement authorizing a [person](/usc/16/1532.md?p=13) to [import](/usc/16/1532.md?p=10) or export fish, wildlife, or [plants](/usc/16/1532.md?p=14), or to operate a quarantine station for imported wildlife, or authorizing the use of [Federal lands](/usc/16/620e.md?p=2), including grazing of domestic livestock, to any [person](/usc/16/1532.md?p=13) who is convicted of a criminal [violation](/usc/16/620e.md?p=11) of this chapter or any regulation, permit, or certificate issued hereunder may immediately modify, suspend, or revoke each lease, license, permit, or other agreement. The [Secretary](/usc/16/1532.md?p=15) shall also suspend for a period of up to one year, or cancel, any Federal hunting or [fishing](/usc/16/7901.md?p=b) permits or stamps issued to any [person](/usc/16/1532.md?p=13) who is convicted of a criminal [violation](/usc/16/620e.md?p=11) of any provision of this chapter or any regulation, permit, or certificate issued hereunder. The [United States](/usc/16/1532.md?p=21) shall not be liable for the payments of any compensation, reimbursement, or damages in connection with the modification, suspension, or revocation of any leases, licenses, permits, stamps, or other agreements pursuant to this section.
  - (3) Notwithstanding any other provision of this chapter, it shall be a defense to prosecution under this subsection if the defendant committed the offense based on a good faith belief that he was acting to protect himself or herself, a member of his or her family, or any other individual, from bodily harm from any endangered or [threatened species](/usc/16/1532.md?p=20).
- (c) **District court jurisdiction—** The several district courts of the [United States](/usc/16/1532.md?p=21), including the courts enumerated in [section 460 of title 28](/usc/28/460.md), shall have jurisdiction over any actions arising under this chapter. For the purpose of this chapter, American Samoa shall be included within the judicial district of the District Court of the [United States](/usc/16/1532.md?p=21) for the District of Hawaii.
- (d) **Rewards and certain incidental expenses—** The [Secretary](/usc/16/1532.md?p=15) or the [Secretary](/usc/16/1532.md?p=15) of the Treasury shall pay, from sums received as penalties, fines, or forfeitures of property for any [violation](/usc/16/620e.md?p=11) of this chapter or any regulation issued hereunder (1) a reward to any [person](/usc/16/1532.md?p=13) who furnishes information which leads to an arrest, a criminal conviction, civil penalty assessment, or forfeiture of property for any [violation](/usc/16/620e.md?p=11) of this chapter or any regulation issued hereunder, and (2) the reasonable and necessary costs incurred by any [person](/usc/16/1532.md?p=13) in providing temporary care for any fish, wildlife, or [plant](/usc/16/1532.md?p=14) pending the disposition of any civil or criminal proceeding alleging a [violation](/usc/16/620e.md?p=11) of this chapter with respect to that fish, wildlife, or [plant](/usc/16/1532.md?p=14). The amount of the reward, if any, is to be designated by the [Secretary](/usc/16/1532.md?p=15) or the [Secretary](/usc/16/1532.md?p=15) of the Treasury, as appropriate. Any officer or employee of the [United States](/usc/16/1532.md?p=21) or any [State](/usc/16/1532.md?p=17) 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 3375(d) of this title](/usc/16/3375.md?p=d), as penalties or fines, or from forfeitures of property, exceed $500,000, the [Secretary](/usc/16/1532.md?p=15) of the Treasury shall deposit an amount equal to such excess balance in the cooperative [endangered species](/usc/16/1532.md?p=6) [conservation](/usc/16/1532.md?p=3) [fund](/usc/16/1421h.md?p=2) established under [section 1535(i) of this title](/usc/16/1535.md?p=i).
- (e) **Enforcement—**
  - (1) The provisions of this chapter and any regulations or permits issued pursuant thereto shall be enforced by the [Secretary](/usc/16/1532.md?p=15), the [Secretary](/usc/16/1532.md?p=15) of the Treasury, or the [Secretary](/usc/16/1532.md?p=15) of the Department in which the Coast Guard is operating, or all such [Secretaries](/usc/16/1532.md?p=15). Each such [Secretary](/usc/16/1532.md?p=15) may utilize by agreement, with or without reimbursement, the personnel, services, and facilities of any other [Federal agency](/usc/16/1532.md?p=7) or any [State agency](/usc/16/1532.md?p=18) for purposes of enforcing this chapter.
  - (2) The judges of the district courts of the [United States](/usc/16/1532.md?p=21) and the [United States](/usc/16/1532.md?p=21) magistrate judges may, within their respective jurisdictions, upon proper oath or affirmation showing probable cause, issue such warrants or other process as may be required for enforcement of this chapter and any regulation issued thereunder.
  - (3) Any [person](/usc/16/1532.md?p=13) authorized by the [Secretary](/usc/16/1532.md?p=15), the [Secretary](/usc/16/1532.md?p=15) of the Treasury, or the [Secretary](/usc/16/1532.md?p=15) of the Department in which the Coast Guard is operating, to enforce this chapter may detain for inspection and inspect any package, crate, or other container, including its contents, and all accompanying documents, upon importation or exportation. Such [person](/usc/16/1532.md?p=13) may make arrests without a warrant for any [violation](/usc/16/620e.md?p=11) of this chapter if he has reasonable grounds to believe that the [person](/usc/16/1532.md?p=13) to be arrested is committing the [violation](/usc/16/620e.md?p=11) in his presence or view, and may execute and serve any arrest warrant, search warrant, or other warrant or civil or criminal process issued by any officer or court of competent jurisdiction for enforcement of this chapter. Such [person](/usc/16/1532.md?p=13) 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](/usc/16/1532.md?p=13) authorized by the [Secretary](/usc/16/1532.md?p=15), the [Secretary](/usc/16/1532.md?p=15) of the Treasury, or the [Secretary](/usc/16/1532.md?p=15) of the Department in which the Coast Guard is operating pending disposition of civil or criminal proceedings, or the institution of an action in rem for forfeiture of such fish, wildlife, property, or item pursuant to paragraph (4) of this subsection; except that the [Secretary](/usc/16/1532.md?p=15) may, in lieu of holding such fish, wildlife, property, or item, permit the [owner](/usc/16/429b–3.md?p=4) or consignee to post a bond or other surety satisfactory to the [Secretary](/usc/16/1532.md?p=15), but upon forfeiture of any such property to the [United States](/usc/16/1532.md?p=21), 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](/usc/16/1532.md?p=15) in such a manner, consistent with the purposes of this chapter, as the [Secretary](/usc/16/1532.md?p=15) shall by regulation prescribe.
  - (4)
    - (A) All [fish or wildlife](/usc/16/1532.md?p=8) or [plants](/usc/16/1532.md?p=14) taken, possessed, sold, purchased, offered for sale or purchase, transported, delivered, received, carried, shipped, exported, or imported contrary to the provisions of this chapter, any regulation made pursuant thereto, or any permit or certificate issued hereunder shall be subject to forfeiture to the [United States](/usc/16/1532.md?p=21).
    - (B) All guns, traps, nets, and other equipment, vessels, vehicles, aircraft, and other means of transportation used to aid the taking, possessing, selling, purchasing, offering for sale or purchase, transporting, delivering, receiving, carrying, shipping, exporting, or importing of any [fish or wildlife](/usc/16/1532.md?p=8) or [plants](/usc/16/1532.md?p=14) in [violation](/usc/16/620e.md?p=11) of this chapter, any regulation made pursuant thereto, or any permit or certificate issued thereunder shall be subject to forfeiture to the [United States](/usc/16/1532.md?p=21) upon conviction of a criminal [violation](/usc/16/620e.md?p=11) pursuant to [subsection (b)(1)](#b-1) of this section.
  - (5) All provisions of law relating to the seizure, forfeiture, and condemnation of a vessel for [violation](/usc/16/620e.md?p=11) of the customs laws, the disposition of such vessel or the proceeds from the sale thereof, and the remission or mitigation of such forfeiture, shall apply to the seizures and forfeitures incurred, or alleged to have been incurred, under the provisions of this chapter, insofar as such provisions of law are applicable and not inconsistent with the provisions of this chapter; except that all powers, rights, and duties conferred or imposed by the customs laws upon any officer or employee of the Treasury Department shall, for the purposes of this chapter, be exercised or performed by the [Secretary](/usc/16/1532.md?p=15) or by such [persons](/usc/16/1532.md?p=13) as he may designate.
  - (6) The Attorney General of the [United States](/usc/16/1532.md?p=21) may seek to enjoin any [person](/usc/16/1532.md?p=13) who is alleged to be in [violation](/usc/16/620e.md?p=11) of any provision of this chapter or regulation issued under authority thereof.
- (f) **Regulations—** The [Secretary](/usc/16/1532.md?p=15), the [Secretary](/usc/16/1532.md?p=15) of the Treasury, and the [Secretary](/usc/16/1532.md?p=15) of the Department in which the Coast Guard is operating, are authorized to promulgate such regulations as may be appropriate to enforce this chapter, and charge reasonable fees for expenses to the Government connected with permits or certificates authorized by this chapter including processing applications and reasonable inspections, and with the transfer, [board](/usc/16/1447a.md?p=1), handling, or storage of [fish or wildlife](/usc/16/1532.md?p=8) or [plants](/usc/16/1532.md?p=14) and evidentiary items seized and forfeited under this chapter. All such fees collected pursuant to this subsection shall be deposited in the Treasury to the credit of the appropriation which is current and chargeable for the cost of furnishing the services. Appropriated [funds](/usc/16/1421h.md?p=2) may be expended pending reimbursement from parties in interest.
- (g) **Citizen suits—**
  - (1) Except as provided in paragraph (2) of this subsection any [person](/usc/16/1532.md?p=13) may commence a civil suit on his own behalf—
    - (A) to enjoin any [person](/usc/16/1532.md?p=13), including the [United States](/usc/16/1532.md?p=21) 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](/usc/16/620e.md?p=11) of any provision of this chapter or regulation issued under the authority thereof; or
    - (B) to compel the [Secretary](/usc/16/1532.md?p=15) to apply, pursuant to [section 1535(g)(2)(B)(ii) of this title](/usc/16/1535.md?p=g-2-B-ii), the prohibitions set forth in or authorized pursuant to section [1533(d)](/usc/16/1533.md?p=d) or [1538(a)(1)(B)](/usc/16/1538.md?p=a-1-B) of this title with respect to the taking of any resident [endangered species](/usc/16/1532.md?p=6) or [threatened species](/usc/16/1532.md?p=20) within any [State](/usc/16/1532.md?p=17); or
    - (C) against the [Secretary](/usc/16/1532.md?p=15) where there is alleged a failure of the [Secretary](/usc/16/1532.md?p=15) to perform any act or duty under [section 1533 of this title](/usc/16/1533.md) which is not discretionary with the [Secretary](/usc/16/1532.md?p=15).

    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](/usc/16/1532.md?p=15) to perform such act or duty, as the case may be. In any civil suit commenced under [subparagraph (B)](#g-1-B) the district court shall compel the [Secretary](/usc/16/1532.md?p=15) 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)](#g-1-A) of this section—
      - (i) prior to sixty days after written notice of the [violation](/usc/16/620e.md?p=11) has been given to the [Secretary](/usc/16/1532.md?p=15), and to any alleged violator of any such provision or regulation;
      - (ii) if the [Secretary](/usc/16/1532.md?p=15) has commenced action to impose a penalty pursuant to [subsection (a)](#a) of this section; or
      - (iii) if the [United States](/usc/16/1532.md?p=21) has commenced and is diligently prosecuting a criminal action in a court of the [United States](/usc/16/1532.md?p=21) or a [State](/usc/16/1532.md?p=17) to redress a [violation](/usc/16/620e.md?p=11) of any such provision or regulation.
    - (B) No action may be commenced under [subparagraph (1)(B)](#g-1-B) of this section—
      - (i) prior to sixty days after written notice has been given to the [Secretary](/usc/16/1532.md?p=15) setting forth the reasons why an emergency is thought to exist with respect to an [endangered species](/usc/16/1532.md?p=6) or a [threatened species](/usc/16/1532.md?p=20) in the [State](/usc/16/1532.md?p=17) concerned; or
      - (ii) if the [Secretary](/usc/16/1532.md?p=15) has commenced and is diligently prosecuting action under [section 1535(g)(2)(B)(ii) of this title](/usc/16/1535.md?p=g-2-B-ii) to determine whether any such emergency exists.
    - (C) No action may be commenced under [subparagraph (1)(C)](#g-1-C) of this section prior to sixty days after written notice has been given to the [Secretary](/usc/16/1532.md?p=15); except that such action may be brought immediately after such notification in the case of an action under this section respecting an emergency posing a significant risk to the well-being of any [species](/usc/16/1532.md?p=16) of [fish or wildlife](/usc/16/1532.md?p=8) or [plants](/usc/16/1532.md?p=14).
  - (3)
    - (A) Any suit under this subsection may be brought in the judicial district in which the [violation](/usc/16/620e.md?p=11) occurs.
    - (B) In any such suit under this subsection in which the [United States](/usc/16/1532.md?p=21) is not a party, the Attorney General, at the request of the [Secretary](/usc/16/1532.md?p=15), may intervene on behalf of the [United States](/usc/16/1532.md?p=21) 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](/usc/16/1532.md?p=13) (or class of [persons](/usc/16/1532.md?p=13)) 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](/usc/16/1532.md?p=15) or a [State agency](/usc/16/1532.md?p=18)).
- (h) **Coordination with other laws—** The [Secretary](/usc/16/1532.md?p=15) of Agriculture and the [Secretary](/usc/16/1532.md?p=15) shall provide for appropriate coordination of the administration of this chapter with the administration of the animal quarantine laws (as defined in [section 136a(f) of title 21](/usc/21/136a.md?p=f)) and section 306[^1] of the Tariff Act of 1930 ([19 U.S.C. 1306](/usc/19/1306.md)). Nothing in this chapter or any amendment made by this chapter shall be construed as superseding or limiting in any manner the functions of the [Secretary](/usc/16/1532.md?p=15) of Agriculture under any other law relating to prohibited or restricted importations or possession of animals and other articles and no proceeding or determination under this chapter shall preclude any proceeding or be considered determinative of any issue of fact or law in any proceeding under any Act administered by the [Secretary](/usc/16/1532.md?p=15) of Agriculture. Nothing in this chapter shall be construed as superseding or limiting in any manner the functions and responsibilities of the [Secretary](/usc/16/1532.md?p=15) of the Treasury under the Tariff Act of 1930 [[19 U.S.C. 1202](/usc/19/1202.md) et seq.], including, without limitation, [section 527](/usc/16/527.md) of that Act ([19 U.S.C. 1527](/usc/19/1527.md)), relating to the importation of wildlife taken, killed, possessed, or exported to the [United States](/usc/16/1532.md?p=21) in [violation](/usc/16/620e.md?p=11) of the laws or regulations of a foreign country.

# §1541. Endangered plants


The [Secretary](/usc/16/1532.md?p=15) of the Smithsonian Institution, in conjunction with other affected agencies, is authorized and directed to review (1) [species](/usc/16/1532.md?p=16) of [plants](/usc/16/1532.md?p=14) which are now or may become endangered or threatened and (2) methods of adequately [conserving](/usc/16/1532.md?p=3) such [species](/usc/16/1532.md?p=16), and to report to Congress, within one year after December 28, 1973, the results of such review including recommendations for new legislation or the amendment of existing legislation.


# §1542. Authorization of appropriations

- (a) **In general—** Except as provided in subsections [(b)](#b), [(c)](#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 chapter;
  - (2) not to exceed $5,750,000 for fiscal year 1988, $6,250,000 for each of fiscal years 1989 and 1990, and $6,750,000 for each of fiscal years 1991 and 1992 to enable the Department of Commerce to carry out such functions and responsibilities as it may have been given under this chapter; and
  - (3) not to exceed $2,200,000 for fiscal year 1988, $2,400,000 for each of fiscal years 1989 and 1990, and $2,600,000 for each of fiscal years 1991 and 1992, to enable the Department of Agriculture to carry out its functions and responsibilities with respect to the enforcement of this chapter and the [Convention](/usc/16/1532.md?p=4) which pertain to the importation or exportation of [plants](/usc/16/1532.md?p=14).
- (b) **Exemptions—** There are authorized to be appropriated to the [Secretary](/usc/16/1532.md?p=15) to assist him and the [Endangered Species](/usc/16/1532.md?p=6) [Committee](/usc/16/941b.md?p=1) in carrying out their functions under sections[^1] 1536(e), (g), and (h) of this title not to exceed $600,000 for each of fiscal years 1988, 1989, 1990, 1991, and 1992.
- (c) **Convention implementation—** There are authorized to be appropriated to the Department of the Interior for purposes of carrying out [section 1537a(e) of this title](/usc/16/1537a.md?p=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.

# §1543. Construction with Marine Mammal Protection Act of 1972


Except as otherwise provided in this chapter, no provision of this chapter shall [take](/usc/16/1532.md?p=19) precedence over any more restrictive conflicting provision of the Marine Mammal Protection Act of 1972 [[16 U.S.C. 1361](/usc/16/1361.md) et seq.].