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U.S.C. Title 16 - CONSERVATION
16 U.S.C.
United States Code, 2017 Edition
Title 16 - CONSERVATION
CHAPTER 35 - ENDANGERED SPECIES
From the U.S. Government Publishing Office, www.gpo.gov
CHAPTER 35—ENDANGERED SPECIES
Sec.
1531.
1532.
1533.
1534.
1535.
1536.
1537.
1537a.
1538.
1539.
1540.
1541.
1542.
1543.
1544.
Congressional findings and declaration of purposes and policy.
Definitions.
Determination of endangered species and threatened species.
Land acquisition.
Cooperation with States.
Interagency cooperation.
International cooperation.
Convention implementation.
Prohibited acts.
Exceptions.
Penalties and enforcement.
Endangered plants.
Authorization of appropriations.
Construction with Marine Mammal Protection Act of 1972.
Annual cost analysis by Fish and Wildlife Service.
§1531. Congressional findings and declaration of purposes and policy
(a) Findings
The Congress finds and declares that—
(1) various species of fish, wildlife, and plants in the United States have been rendered extinct
as a consequence of economic growth and development untempered by adequate concern and
conservation;
(2) other species of fish, wildlife, and plants have been so depleted in numbers that they are in
danger of or threatened with extinction;
(3) these species of fish, wildlife, and plants are of esthetic, ecological, educational, historical,
recreational, and scientific value to the Nation and its people;
(4) the United States has pledged itself as a sovereign state in the international community to
conserve to the extent practicable the various species of fish or wildlife and plants facing
extinction, pursuant to—
(A) migratory bird treaties with Canada and Mexico;
(B) the Migratory and Endangered Bird Treaty with Japan;
(C) the Convention on Nature Protection and Wildlife Preservation in the Western
Hemisphere;
(D) the International Convention for the Northwest Atlantic Fisheries;
(E) the International Convention for the High Seas Fisheries of the North Pacific Ocean;
(F) the Convention on International Trade in Endangered Species of Wild Fauna and Flora;
and
(G) other international agreements; and
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(5) encouraging the States and other interested parties, through Federal financial assistance and
a system of incentives, to develop and maintain conservation programs which meet national and
international standards is a key to meeting the Nation's international commitments and to better
safeguarding, for the benefit of all citizens, the Nation's heritage in fish, wildlife, and plants.
(b) Purposes
The purposes of this chapter are to provide a means whereby the ecosystems upon which
endangered species and threatened species depend may be conserved, to provide a program for the
conservation of such endangered species and threatened species, and to take such steps as may be
appropriate to achieve the purposes of the treaties and conventions set forth in subsection (a) of this
section.
(c) Policy
(1) It is further declared to be the policy of Congress that all Federal departments and agencies
shall seek to conserve endangered species and threatened species and shall utilize their authorities in
furtherance of the purposes of this chapter.
(2) It is further declared to be the policy of Congress that Federal agencies shall cooperate with
State and local agencies to resolve water resource issues in concert with conservation of endangered
species.
(Pub. L. 93–205, §2, Dec. 28, 1973, 87 Stat. 884; Pub. L. 96–159, §1, Dec. 28, 1979, 93 Stat. 1225;
Pub. L. 97–304, §9(a), Oct. 13, 1982, 96 Stat. 1426; Pub. L. 100–478, title I, §1013(a), Oct. 7, 1988,
102 Stat. 2315.)
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This chapter, referred to in subsecs. (b) and (c)(1), was in the original "this Act", meaning Pub. L. 93–205,
Dec. 28, 1973, 81 Stat. 884, known as the Endangered Species Act of 1973, which is classified principally to
this chapter. For complete classification of this Act to the Code, see Short Title note set out below and Tables.
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1988—Subsec. (a)(4)(G). Pub. L. 100–478 substituted "; and" for period at end.
1982—Subsec. (c). Pub. L. 97–304 designated existing provisions as par. (1) and added par. (2).
1979—Subsec. (a)(5). Pub. L. 96–159 substituted "wildlife, and plants" for "wildlife".
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Pub. L. 93–205, §16, Dec. 28, 1973, 87 Stat. 903, provided that: "This Act [enacting this chapter, amending
sections 460k–1, 460l–9, 668dd, 715i, 715s, 1362, 1371, 1372, and 1402 of this title and section 136 of Title
7, Agriculture, repealing sections 668aa to 668cc–6 of this title, and enacting provisions set out as notes under
this section] shall take effect on the date of its enactment [Dec. 28, 1973]."
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1982 A
Pub. L. 97–304, §1, Oct. 13, 1982, 96 Stat. 1411, provided: "That this Act [amending this section and
sections 1532, 1533, 1535, 1536, 1537a, 1538, 1539, 1540, and 1542 of this title and enacting provisions set
out as notes under sections 1533, 1537a, and 1539 of this title] may be cited as the 'Endangered Species Act
Amendments of 1982'."
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1978 A
Pub. L. 95–632, §1, Nov. 10, 1978, 92 Stat. 3751, provided: "That this Act [amending sections 1532 to
1536, 1538 to 1540, and 1542 of this title] may be cited as the 'Endangered Species Act Amendments of
1978'."
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Pub. L. 93–205, §1, Dec. 28, 1973, 87 Stat. 884, provided: "That this Act [enacting this chapter, amending
sections 460k–1, 460l–9, 668dd, 715i, 715s, 1362, 1371, 1372, and 1402 of this title and section 136 of Title
7, Agriculture, repealing sections 668aa to 668cc–6 of this title, and enacting provisions set out as notes under
this section] may be cited as the 'Endangered Species Act of 1973'."
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1973
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Pub. L. 102–251, title III, §305, Mar. 9, 1992, 106 Stat. 66, as amended by Pub. L. 104–208, div. A, title I,
§101(a) [title II, §211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, provided that: "The special areas defined
in section 3(24) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1802(24))
shall be considered places that are subject to the jurisdiction of the United States for the purposes of the
Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.)."
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For provision that all Federal agencies minimize conflicts between recreational fisheries and administration
of this chapter, see Ex. Ord. No. 12962, §4, June 7, 1995, 60 F.R. 30770, set out as a note under section 1801
of this title.
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Ex. Ord. No. 13648, July 1, 2013, 78 F.R. 40621, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America,
and in order to address the significant effects of wildlife trafficking on the national interests of the United
States, I hereby order as follows:
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1. Policy. The poaching of protected species and the illegal trade in wildlife and their derivative
parts and products (together known as "wildlife trafficking") represent an international crisis that continues to
escalate. Poaching operations have expanded beyond small-scale, opportunistic actions to coordinated
slaughter commissioned by armed and organized criminal syndicates. The survival of protected wildlife
species such as elephants, rhinos, great apes, tigers, sharks, tuna, and turtles has beneficial economic, social,
and environmental impacts that are important to all nations. Wildlife trafficking reduces those benefits while
generating billions of dollars in illicit revenues each year, contributing to the illegal economy, fueling
instability, and undermining security. Also, the prevention of trafficking of live animals helps us control the
spread of emerging infectious diseases. For these reasons, it is in the national interest of the United States to
combat wildlife trafficking.
In order to enhance domestic efforts to combat wildlife trafficking, to assist foreign nations in building
capacity to combat wildlife trafficking, and to assist in combating transnational organized crime, executive
departments and agencies (agencies) shall take all appropriate actions within their authority, including the
promulgation of rules and regulations and the provision of technical and financial assistance, to combat
wildlife trafficking in accordance with the following objectives:
(a) in appropriate cases, the United States shall seek to assist those governments in anti-wildlife trafficking
activities when requested by foreign nations experiencing trafficking of protected wildlife;
(b) the United States shall promote and encourage the development and enforcement by foreign nations of
effective laws to prohibit the illegal taking of, and trade in, these species and to prosecute those who engage in
wildlife trafficking, including by building capacity;
(c) in concert with the international community and partner organizations, the United States shall seek to
combat wildlife trafficking; and
(d) the United States shall seek to reduce the demand for illegally traded wildlife, both at home and abroad,
while allowing legal and legitimate commerce involving wildlife.
S . 2. Establishment. There is established a Presidential Task Force on Wildlife Trafficking (Task Force),
to be co-chaired by the Secretary of State, Secretary of the Interior, and the Attorney General (Co-Chairs), or
their designees, who shall report to the President through the National Security Advisor. The Task Force shall
develop and implement a National Strategy for Combating Wildlife Trafficking in accordance with the
objectives outlined in section 1 of this order, consistent with section 4 of this order.
S . 3. Membership. (a) In addition to the Co-Chairs, the Task Force shall include designated senior-level
representatives from:
(i) the Department of the Treasury;
(ii) the Department of Defense;
(iii) the Department of Agriculture;
(iv) the Department of Commerce;
(v) the Department of Transportation;
(vi) the Department of Homeland Security;
(vii) the United States Agency for International Development;
(viii) the Office of the Director of National Intelligence;
(ix) the National Security Staff;
(x) the Domestic Policy Council;
(xi) the Council on Environmental Quality;
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(xii) the Office of Science and Technology Policy;
(xiii) the Office of Management and Budget;
(xiv) the Office of the United States Trade Representative; and
(xv) such agencies and offices as the Co-Chairs may, from time to time, designate.
(b) The Task Force shall meet not later than 60 days from the date of this order and periodically thereafter.
S . 4. Functions. Consistent with the authorities and responsibilities of member agencies, the Task Force
shall perform the following functions:
(a) not later than 180 days after the date of this order, produce a National Strategy for Combating Wildlife
Trafficking that shall include consideration of issues relating to combating trafficking and curbing consumer
demand, including:
(i) effective support for anti-poaching activities;
(ii) coordinating regional law enforcement efforts;
(iii)developing and supporting effective legal enforcement mechanisms; and
(iv) developing strategies to reduce illicit trade and reduce consumer demand for trade in protected species;
(b) not later than 90 days from the date of this order, review the Strategy to Combat Transnational
Organized Crime of July 19, 2011, and, if appropriate, make recommendations regarding the inclusion of
crime related to wildlife trafficking as an implementation element for the Federal Government's transnational
organized crime strategy;
(c) coordinate efforts among and consult with agencies, as appropriate and consistent with the Department
of State's foreign affairs role, regarding work with foreign nations and international bodies that monitor and
aid in enforcement against crime related to wildlife trafficking; and
(d) carry out other functions necessary to implement this order.
S . 5. Advisory Council on Wildlife Trafficking. Not later than 180 days from the date of this order, the
Secretary of the Interior (Secretary), in consultation with the other Co-Chairs of the Task Force, shall establish
an Advisory Council on Wildlife Trafficking (Advisory Council) that shall make recommendations to the Task
Force and provide it with ongoing advice and assistance. The Advisory Council shall have eight members, one
of whom shall be designated by the Secretary as the Chair. Members shall not be employees of the Federal
Government and shall include knowledgeable individuals from the private sector, former governmental
officials, representatives of nongovernmental organizations, and others who are in a position to provide
expertise and support to the Task Force.
S . 6. General Provisions. (a) This order shall be implemented consistent with applicable domestic and
international law, and subject to the availability of appropriations.
(b) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department, agency, or the head thereof, or the status of that
department or agency within the Federal Government; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary,
administrative, or legislative proposals.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural,
enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its
officers, employees, or agents, or any other person.
(d) Insofar as the Federal Advisory Committee Act, as amended (5 U.S.C. App.) (the "Act"), may apply to
the Advisory Council, any functions of the President under the Act, except for that of reporting to the
Congress, shall be performed by the Secretary in accordance with the guidelines issued by the Administrator
of General Services.
(e) The Department of the Interior shall provide funding and administrative support for the Task Force and
Advisory Council to the extent permitted by law and consistent with existing appropriations.
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[Reference to the National Security Staff to be understood to refer to the staff of the National Security
Council, see Ex. Ord. No. 13657, set out as a note under section 3021 of Title 50, War and National Defense.]
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Term of Advisory Council on Wildlife Trafficking extended until Sept. 30, 2017, by Ex. Ord. No. 13708,
Sept. 30, 2015, 80 F.R. 60271, set out as a note under section 14 of the Federal Advisory Committee Act in the
Appendix to Title 5, Government Organization and Employees.
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§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 objectives and agency jurisdiction.
(2) The term "commercial activity" means all activities of industry and trade, including, but not
limited to, the buying or selling of commodities and activities conducted for the purpose of
facilitating such buying and selling: Provided, however, That it does not include exhibition of
commodities by museums or similar cultural or historical organizations.
(3) The terms "conserve", "conserving", and "conservation" mean to use and the use of all
methods and procedures which are necessary to bring any endangered species or threatened
species to the point at which the measures provided pursuant to this chapter are no longer
necessary. Such methods and procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law enforcement, habitat
acquisition and maintenance, propagation, live trapping, and transplantation, and, in the
extraordinary case where population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
(4) The term "Convention" means the Convention on International Trade in Endangered Species
of Wild Fauna and Flora, signed on March 3, 1973, and the appendices thereto.
(5)(A) The term "critical habitat" for a threatened or endangered species means—
(i) the specific areas within the geographical area occupied by the species, at the time it is
listed in accordance with the provisions of section 1533 of this title, on which are found those
physical or biological features (I) essential to the conservation of the species and (II) which may
require special management considerations or protection; and
(ii) specific areas outside the geographical area occupied by the species at the time it is listed
in accordance with the provisions of section 1533 of this title, upon a determination by the
Secretary that such areas are essential for the conservation of the species.
(B) Critical habitat may be established for those species now listed as threatened or endangered
species for which no critical habitat has heretofore been established as set forth in subparagraph
(A) of this paragraph.
(C) Except in those circumstances determined by the Secretary, critical habitat shall not include
the entire geographical area which can be occupied by the threatened or endangered species.
(6) The term "endangered species" means any species which is in danger of extinction
throughout all or a significant portion of its range other than a species of the Class Insecta
determined by the Secretary to constitute a pest whose protection under the provisions of this
chapter would present an overwhelming and overriding risk to man.
(7) The term "Federal agency" means any department, agency, or instrumentality of the United
States.
(8) The term "fish or wildlife" means any member of the animal kingdom, including without
limitation any mammal, fish, bird (including any migratory, nonmigratory, or endangered bird for
which protection is also afforded by treaty or other international agreement), amphibian, reptile,
mollusk, crustacean, arthropod or other invertebrate, and includes any part, product, egg, or
offspring thereof, or the dead body or parts thereof.
(9) The term "foreign commerce" includes, among other things, any transaction—
(A) between persons within one foreign country;
(B) between persons in two or more foreign countries;
(C) between a person within the United States and a person in a foreign country; or
(D) between persons within the United States, where the fish and wildlife in question are
moving in any country or countries outside the United States.
(10) The term "import" means to land on, bring into, or introduce into, or attempt to land on,
bring into, or introduce into, any place subject to the jurisdiction of the United States, whether or
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not such landing, bringing, or introduction constitutes an importation within the meaning of the
customs laws of the United States.
(11) Repealed. Pub. L. 97–304, §4(b), Oct. 13, 1982, 96 Stat. 1420.
(12) The term "permit or license applicant" means, when used with respect to an action of a
Federal agency for which exemption is sought under section 1536 of this title, any person whose
application to such agency for a permit or license has been denied primarily because of the
application of section 1536(a) of this title to such agency action.
(13) The term "person" means an individual, corporation, partnership, trust, association, or any
other private entity; or any officer, employee, agent, department, or instrumentality of the Federal
Government, of any State, municipality, or political subdivision of a State, or of any foreign
government; any State, municipality, or political subdivision of a State; or any other entity subject
to the jurisdiction of the United States.
(14) The term "plant" means any member of the plant kingdom, including seeds, roots and other
parts thereof.
(15) The term "Secretary" means, except as otherwise herein provided, the Secretary of the
Interior or the Secretary of Commerce as program responsibilities are vested pursuant to the
provisions of Reorganization Plan Numbered 4 of 1970; except that with respect to the
enforcement of the provisions of this chapter and the Convention which pertain to the importation
or exportation of terrestrial plants, the term also means the Secretary of Agriculture.
(16) The term "species" includes any subspecies of fish or wildlife or plants, and any distinct
population segment of any species of vertebrate fish or wildlife which interbreeds when mature.
(17) The term "State" means any of the several States, the District of Columbia, the
Commonwealth of Puerto Rico, American Samoa, the Virgin Islands, Guam, and the Trust
Territory of the Pacific Islands.
(18) The term "State agency" means any State agency, department, board, commission, or other
governmental entity which is responsible for the management and conservation of fish, plant, or
wildlife resources within a State.
(19) The term "take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect, or to attempt to engage in any such conduct.
(20) The term "threatened species" means any species which is likely to become an endangered
species within the foreseeable future throughout all or a significant portion of its range.
(21) The term "United States", when used in a geographical context, includes all States.
(Pub. L. 93–205, §3, Dec. 28, 1973, 87 Stat. 885; Pub. L. 94–359, §5, July 12, 1976, 90 Stat. 913;
Pub. L. 95–632, §2, Nov. 10, 1978, 92 Stat. 3751; Pub. L. 96–159, §2, Dec. 28, 1979, 93 Stat. 1225;
Pub. L. 97–304, §4(b), Oct. 13, 1982, 96 Stat. 1420; Pub. L. 100–478, title I, §1001, Oct. 7, 1988,
102 Stat. 2306.)
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This chapter, referred to in text, was in the original "this Act", meaning Pub. L. 93–205, Dec. 28, 1973, 81
Stat. 884, known as the Endangered Species Act of 1973, which is classified principally to this chapter. For
complete classification of this Act to the Code, see Short Title note set out under section 1531 of this title and
Tables.
Reorganization Plan Numbered 4 of 1970, referred to in par. (15), is Reorg. Plan No. 4 of 1970, eff. Oct. 3,
1970, 35 F.R. 15627, 84 Stat. 2090, which is set out in the Appendix to Title 5, Government Organization and
Employees.
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1988—Par. (13). Pub. L. 100–478, §1001(a), amended par. (13) generally. Prior to amendment, par. (13)
read as follows: "The term 'person' means an individual, corporation, partnership, trust, association, or any
other private entity, or any officer, employee, agent, department, or instrumentality of the Federal
Government, of any State or political subdivision thereof, or of any foreign government."
Par. (15). Pub. L. 100–478, §1001(b), inserted "also" before "means the Secretary of Agriculture".
1982—Par. (11). Pub. L. 97–304 struck out par. (11) which defined "irresolvable conflict" as, with respect
to any action authorized, funded, or carried out by a Federal agency, a set of circumstances under which, after
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consultation as required in section 1536(a) of this title, completion of such action would violate section
1536(a)(2) of this title.
1979—Par. (11). Pub. L. 96–159 substituted "action would violate section 1536(a)(2) of this title" for
"action would (A) jeopardize the continued existence of an endangered or threatened species, or (B) result in
the adverse modification or destruction of a critical habitat".
1978—Pars. (1) to (4). Pub. L. 95–632, §2(1), (7), added par. (1) and redesignated former pars. (1) to (3) as
(2) to (4), respectively. Former par. (4) redesignated (6).
Par. (5). Pub. L. 95–632, §2(2), (7), added par. (5). Former par. (5) redesignated (8).
Par. (6). Pub. L. 95–632, §2(7), redesignated former par. (4) as (6). Former par. (6) redesignated (9).
Par. (7). Pub. L. 95–632, §2(3), (7), added par. (7). Former par. (7) redesignated (10).
Pars. (8) to (10). Pub. L. 95–632, §2(7), redesignated former pars. (5) to (7) as (8) to (10), respectively.
Former pars. (8) to (10) redesignated (13) to (15), respectively.
Pars. (11), (12). Pub. L. 95–632, §2(4), (7), added pars. (11) and (12). Former pars. (11) and (12)
redesignated (16) and (17), respectively.
Pars. (13) to (15). Pub. L. 95–632, §2(7), redesignated former pars. (8) to (10) as (13) to (15), respectively.
Former pars. (13) to (15) redesignated as (18) to (20), respectively.
Par. (16). Pub. L. 95–632, §2(5), (7), redesignated former par. (11) as (16) and substituted "and any distinct
population segment of any species of vertebrate fish or wildlife which interbreeds when mature" for "and any
other group of fish or wildlife of the same species or smaller taxa in common spatial arrangement that
interbreed when mature". Former par. (16) redesignated (21).
Par. (17). Pub. L. 95–632, §2(7), redesignated former par. (12) as (17).
Par. (18). Pub. L. 95–632, §2(6), (7), redesignated former par. (13) as (18) and substituted "fish, plant, or
wildlife" for "fish or wildlife".
Pars. (19) to (21). Pub. L. 95–632, §2(7), redesignated pars. (14) to (16) as (19) to (21), respectively.
1976—Par. (1). Pub. L. 94–359 inserted ": Provided, however, That it does not include exhibition of
commodities by museums or similar cultural or historical organizations." after "facilitating such buying and
selling".
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For termination of Trust Territory of the Pacific Islands, see note set out preceding section 1681 of Title 48,
Territories and Insular Possessions.
§1533. Determination of endangered species and threatened species
(a) Generally
(1) The Secretary shall by regulation promulgated in accordance with subsection (b) determine
whether any species is an endangered species or a threatened species because of any of the following
factors:
(A) the present or threatened destruction, modification, or curtailment of its habitat or range;
(B) overutilization for commercial, recreational, scientific, or educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms; or
(E) other natural or manmade factors affecting its continued existence.
(2) With respect to any species over which program responsibilities have been vested in the
Secretary of Commerce pursuant to Reorganization Plan Numbered 4 of 1970—
(A) in any case in which the Secretary of Commerce determines that such species should—
(i) be listed as an endangered species or a threatened species, or
(ii) be changed in status from a threatened species to an endangered species,
he shall so inform the Secretary of the Interior; who shall list such species in accordance with this
section;
(B) in any case in which the Secretary of Commerce determines that such species should—
(i) be removed from any list published pursuant to subsection (c) of this section, or
(ii) be changed in status from an endangered species to a threatened species,
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he shall recommend such action to the Secretary of the Interior, and the Secretary of the Interior, if
he concurs in the recommendation, shall implement such action; and
(C) the Secretary of the Interior may not list or remove from any list any such species, and may
not change the status of any such species which are listed, without a prior favorable determination
made pursuant to this section by the Secretary of Commerce.
(3)(A) The Secretary, by regulation promulgated in accordance with subsection (b) and to the
maximum extent prudent and determinable—
(i) shall, concurrently with making a determination under paragraph (1) that a species is an
endangered species or a threatened species, designate any habitat of such species which is then
considered to be critical habitat; and
(ii) may, from time-to-time thereafter as appropriate, revise such designation.
(B)(i) The Secretary shall not designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its use, that are subject to an
integrated natural resources management plan prepared under section 670a of this title, if the
Secretary determines in writing that such plan provides a benefit to the species for which critical
habitat is proposed for designation.
(ii) Nothing in this paragraph affects the requirement to consult under section 1536(a)(2) of this
title with respect to an agency action (as that term is defined in that section).
(iii) Nothing in this paragraph affects the obligation of the Department of Defense to comply with
section 1538 of this title, including the prohibition preventing extinction and taking of endangered
species and threatened species.
(b) Basis for determinations
(1)(A) The Secretary shall make determinations required by subsection (a)(1) solely on the basis
of the best scientific and commercial data available to him after conducting a review of the status of
the species and after taking into account those efforts, if any, being made by any State or foreign
nation, or any political subdivision of a State or foreign nation, to protect such species, whether by
predator control, protection of habitat and food supply, or other conservation practices, within any
area under its jurisdiction; or on the high seas.
(B) In carrying out this section, the Secretary shall give consideration to species which have been
—
(i) designated as requiring protection from unrestricted commerce by any foreign nation, or
pursuant to any international agreement; or
(ii) identified as in danger of extinction, or likely to become so within the foreseeable future, by
any State agency or by any agency of a foreign nation that is responsible for the conservation of
fish or wildlife or plants.
(2) The Secretary shall designate critical habitat, and make revisions thereto, under subsection (a)
(3) on the basis of the best scientific data available and after taking into consideration the economic
impact, the impact on national security, and any other relevant impact, of specifying any particular
area as critical habitat. The Secretary may exclude any area from critical habitat if he determines that
the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical
habitat, unless he determines, based on the best scientific and commercial data available, that the
failure to designate such area as critical habitat will result in the extinction of the species concerned.
(3)(A) To the maximum extent practicable, within 90 days after receiving the petition of an
interested person under section 553(e) of title 5, to add a species to, or to remove a species from,
either of the lists published under subsection (c), the Secretary shall make a finding as to whether the
petition presents substantial scientific or commercial information indicating that the petitioned action
may be warranted. If such a petition is found to present such information, the Secretary shall
promptly commence a review of the status of the species concerned. The Secretary shall promptly
publish each finding made under this subparagraph in the Federal Register.
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(B) Within 12 months after receiving a petition that is found under subparagraph (A) to present
substantial information indicating that the petitioned action may be warranted, the Secretary shall
make one of the following findings:
(i) The petitioned action is not warranted, in which case the Secretary shall promptly publish
such finding in the Federal Register.
(ii) The petitioned action is warranted, in which case the Secretary shall promptly publish in the
Federal Register a general notice and the complete text of a proposed regulation to implement such
action in accordance with paragraph (5).
(iii) The petitioned action is warranted, but that—
(I) the immediate proposal and timely promulgation of a final regulation implementing the
petitioned action in accordance with paragraphs (5) and (6) is precluded by pending proposals to
determine whether any species is an endangered species or a threatened species, and
(II) expeditious progress is being made to add qualified species to either of the lists published
under subsection (c) and to remove from such lists species for which the protections of this
chapter are no longer necessary,
in which case the Secretary shall promptly publish such finding in the Federal Register, together
with a description and evaluation of the reasons and data on which the finding is based.
(C)(i) A petition with respect to which a finding is made under subparagraph (B)(iii) shall be
treated as a petition that is resubmitted to the Secretary under subparagraph (A) on the date of such
finding and that presents substantial scientific or commercial information that the petitioned action
may be warranted.
(ii) Any negative finding described in subparagraph (A) and any finding described in subparagraph
(B)(i) or (iii) shall be subject to judicial review.
(iii) The Secretary shall implement a system to monitor effectively the status of all species with
respect to which a finding is made under subparagraph (B)(iii) and shall make prompt use of the
authority under paragraph 7 1 to prevent a significant risk to the well being of any such species.
(D)(i) To the maximum extent practicable, within 90 days after receiving the petition of an
interested person under section 553(e) of title 5, to revise a critical habitat designation, the Secretary
shall make a finding as to whether the petition presents substantial scientific information indicating
that the revision may be warranted. The Secretary shall promptly publish such finding in the Federal
Register.
(ii) Within 12 months after receiving a petition that is found under clause (i) to present substantial
information indicating that the requested revision may be warranted, the Secretary shall determine
how he intends to proceed with the requested revision, and shall promptly publish notice of such
intention in the Federal Register.
(4) Except as provided in paragraphs (5) and (6) of this subsection, the provisions of section 553
of title 5 (relating to rulemaking procedures), shall apply to any regulation promulgated to carry out
the purposes of this chapter.
(5) With respect to any regulation proposed by the Secretary to implement a determination,
designation, or revision referred to in subsection (a)(1) or (3), the Secretary shall—
(A) not less than 90 days before the effective date of the regulation—
(i) publish a general notice and the complete text of the proposed regulation in the Federal
Register, and
(ii) give actual notice of the proposed regulation (including the complete text of the
regulation) to the State agency in each State in which the species is believed to occur, and to
each county, or equivalent jurisdiction in which the species is believed to occur, and invite the
comment of such agency, and each such jurisdiction, thereon;
(B) insofar as practical, and in cooperation with the Secretary of State, give notice of the
proposed regulation to each foreign nation in which the species is believed to occur or whose
citizens harvest the species on the high seas, and invite the comment of such nation thereon;
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(C) give notice of the proposed regulation to such professional scientific organizations as he
deems appropriate;
(D) publish a summary of the proposed regulation in a newspaper of general circulation in each
area of the United States in which the species is believed to occur; and
(E) promptly hold one public hearing on the proposed regulation if any person files a request for
such a hearing within 45 days after the date of publication of general notice.
(6)(A) Within the one-year period beginning on the date on which general notice is published in
accordance with paragraph (5)(A)(i) regarding a proposed regulation, the Secretary shall publish in
the Federal Register—
(i) if a determination as to whether a species is an endangered species or a threatened species, or
a revision of critical habitat, is involved, either—
(I) a final regulation to implement such determination,
(II) a final regulation to implement such revision or a finding that such revision should not be
made,
(III) notice that such one-year period is being extended under subparagraph (B)(i), or
(IV) notice that the proposed regulation is being withdrawn under subparagraph (B)(ii),
together with the finding on which such withdrawal is based; or
(ii) subject to subparagraph (C), if a designation of critical habitat is involved, either—
(I) a final regulation to implement such designation, or
(II) notice that such one-year period is being extended under such subparagraph.
(B)(i) If the Secretary finds with respect to a proposed regulation referred to in subparagraph (A)
(i) that there is substantial disagreement regarding the sufficiency or accuracy of the available data
relevant to the determination or revision concerned, the Secretary may extend the one-year period
specified in subparagraph (A) for not more than six months for purposes of soliciting additional data.
(ii) If a proposed regulation referred to in subparagraph (A)(i) is not promulgated as a final
regulation within such one-year period (or longer period if extension under clause (i) applies)
because the Secretary finds that there is not sufficient evidence to justify the action proposed by the
regulation, the Secretary shall immediately withdraw the regulation. The finding on which a
withdrawal is based shall be subject to judicial review. The Secretary may not propose a regulation
that has previously been withdrawn under this clause unless he determines that sufficient new
information is available to warrant such proposal.
(iii) If the one-year period specified in subparagraph (A) is extended under clause (i) with respect
to a proposed regulation, then before the close of such extended period the Secretary shall publish in
the Federal Register either a final regulation to implement the determination or revision concerned, a
finding that the revision should not be made, or a notice of withdrawal of the regulation under clause
(ii), together with the finding on which the withdrawal is based.
(C) A final regulation designating critical habitat of an endangered species or a threatened species
shall be published concurrently with the final regulation implementing the determination that such
species is endangered or threatened, unless the Secretary deems that—
(i) it is essential to the conservation of such species that the regulation implementing such
determination be promptly published; or
(ii) critical habitat of such species is not then determinable, in which case the Secretary, with
respect to the proposed regulation to designate such habitat, may extend the one-year period
specified in subparagraph (A) by not more than one additional year, but not later than the close of
such additional year the Secretary must publish a final regulation, based on such data as may be
available at that time, designating, to the maximum extent prudent, such habitat.
(7) Neither paragraph (4), (5), or (6) of this subsection nor section 553 of title 5 shall apply to any
regulation issued by the Secretary in regard to any emergency posing a significant risk to the wellbeing of any species of fish or wildlife or plants, but only if—
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(A) at the time of publication of the regulation in the Federal Register the Secretary publishes
therein detailed reasons why such regulation is necessary; and
(B) in the case such regulation applies to resident species of fish or wildlife, or plants, the
Secretary gives actual notice of such regulation to the State agency in each State in which such
species is believed to occur.
Such regulation shall, at the discretion of the Secretary, take effect immediately upon the
publication of the regulation in the Federal Register. Any regulation promulgated under the authority
of this paragraph shall cease to have force and effect at the close of the 240-day period following the
date of publication unless, during such 240-day period, the rulemaking procedures which would
apply to such regulation without regard to this paragraph are complied with. If at any time after
issuing an emergency regulation the Secretary determines, on the basis of the best appropriate data
available to him, that substantial evidence does not exist to warrant such regulation, he shall
withdraw it.
(8) The publication in the Federal Register of any proposed or final regulation which is necessary
or appropriate to carry out the purposes of this chapter shall include a summary by the Secretary of
the data on which such regulation is based and shall show the relationship of such data to such
regulation; and if such regulation designates or revises critical habitat, such summary shall, to the
maximum extent practicable, also include a brief description and evaluation of those activities
(whether public or private) which, in the opinion of the Secretary, if undertaken may adversely
modify such habitat, or may be affected by such designation.
(c) Lists
(1) The Secretary of the Interior shall publish in the Federal Register a list of all species
determined by him or the Secretary of Commerce to be endangered species and a list of all species
determined by him or the Secretary of Commerce to be threatened species. Each list shall refer to the
species contained therein by scientific and common name or names, if any, specify with respect to
each such species over what portion of its range it is endangered or threatened, and specify any
critical habitat within such range. The Secretary shall from time to time revise each list published
under the authority of this subsection to reflect recent determinations, designations, and revisions
made in accordance with subsections (a) and (b).
(2) The Secretary shall—
(A) conduct, at least once every five years, a review of all species included in a list which is
published pursuant to paragraph (1) and which is in effect at the time of such review; and
(B) determine on the basis of such review whether any such species should—
(i) be removed from such list;
(ii) be changed in status from an endangered species to a threatened species; or
(iii) be changed in status from a threatened species to an endangered species.
Each determination under subparagraph (B) shall be made in accordance with the provisions of
subsections (a) and (b).
(d) Protective regulations
Whenever any species is listed as a threatened species pursuant to subsection (c) of this section,
the Secretary shall issue such regulations as he deems necessary and advisable to provide for the
conservation of such species. The Secretary may by regulation prohibit with respect to any
threatened species any act prohibited under section 1538(a)(1) of this title, in the case of fish or
wildlife, or section 1538(a)(2) of this title, in the case of plants, with respect to endangered species;
except that with respect to the taking of resident species of fish or wildlife, such regulations shall
apply in any State which has entered into a cooperative agreement pursuant to section 1535(c) of this
title only to the extent that such regulations have also been adopted by such State.
(e) Similarity of appearance cases
The Secretary may, by regulation of commerce or taking, and to the extent he deems advisable,
treat any species as an endangered species or threatened species even though it is not listed pursuant
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to this section if he finds that—
(A) such species so closely resembles in appearance, at the point in question, a species which
has been listed pursuant to such section that enforcement personnel would have substantial
difficulty in attempting to differentiate between the listed and unlisted species;
(B) the effect of this substantial difficulty is an additional threat to an endangered or threatened
species; and
(C) such treatment of an unlisted species will substantially facilitate the enforcement and further
the policy of this chapter.
(f) Recovery plans
(1) The Secretary shall develop and implement plans (hereinafter in this subsection referred to as
"recovery plans") for the conservation and survival of endangered species and threatened species
listed pursuant to this section, unless he finds that such a plan will not promote the conservation of
the species. The Secretary, in developing and implementing recovery plans, shall, to the maximum
extent practicable—
(A) give priority to those endangered species or threatened species, without regard to taxonomic
classification, that are most likely to benefit from such plans, particularly those species that are, or
may be, in conflict with construction or other development projects or other forms of economic
activity;
(B) incorporate in each plan—
(i) a description of such site-specific management actions as may be necessary to achieve the
plan's goal for the conservation and survival of the species;
(ii) objective, measurable criteria which, when met, would result in a determination, in
accordance with the provisions of this section, that the species be removed from the list; and
(iii) estimates of the time required and the cost to carry out those measures needed to achieve
the plan's goal and to achieve intermediate steps toward that goal.
(2) The Secretary, in developing and implementing recovery plans, may procure the services of
appropriate public and private agencies and institutions, and other qualified persons. Recovery teams
appointed pursuant to this subsection shall not be subject to the Federal Advisory Committee Act.
(3) The Secretary shall report every two years to the Committee on Environment and Public Works
of the Senate and the Committee on Merchant Marine and Fisheries of the House of Representatives
on the status of efforts to develop and implement recovery plans for all species listed pursuant to this
section and on the status of all species for which such plans have been developed.
(4) The Secretary shall, prior to final approval of a new or revised recovery plan, provide public
notice and an opportunity for public review and comment on such plan. The Secretary shall consider
all information presented during the public comment period prior to approval of the plan.
(5) Each Federal agency shall, prior to implementation of a new or revised recovery plan, consider
all information presented during the public comment period under paragraph (4).
(g) Monitoring
(1) The Secretary shall implement a system in cooperation with the States to monitor effectively
for not less than five years the status of all species which have recovered to the point at which the
measures provided pursuant to this chapter are no longer necessary and which, in accordance with
the provisions of this section, have been removed from either of the lists published under subsection
(c).
(2) The Secretary shall make prompt use of the authority under paragraph 7 2 of subsection (b) of
this section to prevent a significant risk to the well being of any such recovered species.
(h) Agency guidelines; publication in Federal Register; scope; proposals and amendments:
notice and opportunity for comments
The Secretary shall establish, and publish in the Federal Register, agency guidelines to insure that
the purposes of this section are achieved efficiently and effectively. Such guidelines shall include, but
are not limited to—
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(1) procedures for recording the receipt and the disposition of petitions submitted under
subsection (b)(3) of this section;
(2) criteria for making the findings required under such subsection with respect to petitions;
(3) a ranking system to assist in the identification of species that should receive priority review
under subsection (a)(1) of this section; and
(4) a system for developing and implementing, on a priority basis, recovery plans under
subsection (f) of this section.
The Secretary shall provide to the public notice of, and opportunity to submit written comments
on, any guideline (including any amendment thereto) proposed to be established under this
subsection.
(i) Submission to State agency of justification for regulations inconsistent with State agency's
comments or petition
If, in the case of any regulation proposed by the Secretary under the authority of this section, a
State agency to which notice thereof was given in accordance with subsection (b)(5)(A)(ii) files
comments disagreeing with all or part of the proposed regulation, and the Secretary issues a final
regulation which is in conflict with such comments, or if the Secretary fails to adopt a regulation
pursuant to an action petitioned by a State agency under subsection (b)(3), the Secretary shall submit
to the State agency a written justification for his failure to adopt regulations consistent with the
agency's comments or petition.
(Pub. L. 93–205, §4, Dec. 28, 1973, 87 Stat. 886; Pub. L. 94–359, §1, July 12, 1976, 90 Stat. 911;
Pub. L. 95–632, §§11, 13, Nov. 10, 1978, 92 Stat. 3764, 3766; Pub. L. 96–159, §3, Dec. 28, 1979, 93
Stat. 1225; Pub. L. 97–304, §2(a), Oct. 13, 1982, 96 Stat. 1411; Pub. L. 100–478, title I, §§1002–
1004, Oct. 7, 1988, 102 Stat. 2306, 2307; Pub. L. 108–136, div. A, title III, §318, Nov. 24, 2003, 117
Stat. 1433.)
R
T
Reorganization Plan Numbered 4 of 1970, referred to in subsec. (a)(2), is Reorg. Plan No. 4 of 1970, eff.
Oct. 3, 1970, 35 F.R. 15627, 84 Stat. 2090, which is set out in the Appendix to Title 5, Government
Organization and Employees.
This chapter, referred to in subsecs. (b)(4), (8), (e)(C), and (g)(1), was in the original "this Act", meaning
Pub. L. 93–205, Dec. 28, 1973, 81 Stat. 884, known as the Endangered Species Act of 1973, which is
classified principally to this chapter. This chapter, referred to in subsec. (b)(3)(B)(iii)(II), was in the original
"the Act" and was translated as if it read "this Act", to reflect the probable intent of Congress. For complete
classification of this Act to the Code, see Short Title note set out under section 1531 of this title and Tables.
The Federal Advisory Committee Act, referred to in subsec. (f)(2), is Pub. L. 92–463, Oct. 6, 1972, 86 Stat.
770, as amended, which is set out in the Appendix to Title 5.
A
2003—Subsec. (a)(3). Pub. L. 108–136, §318(a), designated existing provisions as subpar. (A),
redesignated former subpars. (A) and (B) as cls. (i) and (ii), respectively, and added subpar. (B).
Subsec. (b)(2). Pub. L. 108–136, §318(b), inserted "the impact on national security," after "the economic
impact,".
1988—Subsec. (b)(3)(C)(iii). Pub. L. 100–478, §1002(a), added subcl. (iii).
Subsec. (e). Pub. L. 100–478, §1002(b), substituted "regulation of commerce or taking," for "regulation," in
introductory provisions.
Subsec. (f). Pub. L. 100–478, §1003, amended subsec. (f) generally. Prior to amendment, subsec. (f) read as
follows: "The Secretary shall develop and implement plans (hereinafter in this subsection referred to as
'recovery plans') for the conservation and survival of endangered species and threatened species listed
pursuant to this section, unless he finds that such a plan will not promote the conservation of the species. The
Secretary, in developing and implementing recovery plans (1) shall, to the maximum extent practicable, give
priority to those endangered species or threatened species most likely to benefit from such plans, particularly
those species that are, or may be, in conflict with construction or other developmental projects or other forms
of economic activity, and (2) may procure the services of appropriate public and private agencies and
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institutions, and other qualified persons. Recovery teams appointed pursuant to this subsection shall not be
subject to the Federal Advisory Committee Act."
Subsecs. (g) to (i). Pub. L. 100–478, §1004, added subsec. (g) and redesignated former subsecs. (g) and (h)
as (h) and (i), respectively.
1982—Subsec. (a)(1). Pub. L. 97–304, §2(a)(1)(B), (D), inserted "promulgated in accordance with
subsection (b)" after "shall by regulation" in introductory provisions preceding subpar. (A), and struck out
provision following subpar. (E), which directed the Secretary, at the time regulations were proposed, to specify
any habitat of a species considered to be a critical habitat but that such specification of critical habitats not
apply to species listed prior to Nov. 10, 1978.
Subsec. (a)(1)(A). Pub. L. 97–304, §2(a)(1)(A), redesignated subpar. (1) as (A).
Subsec. (a)(1)(B). Pub. L. 97–304, §2(a)(1)(A), (C), redesignated subpar. (2) as (B) and substituted
"recreational," for "sporting,".
Subsec. (a)(1)(C) to (E). Pub. L. 97–304, §2(a)(1)(A), redesignated subpars. (3), (4), and (5) as (C), (D),
and (E), respectively.
Subsec. (a)(3). Pub. L. 97–304, §2(a)(1)(E), added par. (3).
Subsec. (b). Pub. L. 97–304, §2(a)(2), completely revised subsec. (b) by, among other changes, requiring
the Secretary to base determinations regarding the listing or delisting of species "solely" on the basis of the
best scientific and commercial data available, streamlining the listing process by reducing the time periods for
rulemaking, consolidating public meetings and hearing requirements, and establishing virtually identical
procedures for the listing and delisting of species and for the designation of critical habitat, and altering the
evidentiary standard which petitioners must satisfy to warrant a status review of the species proposed for
listing or delisting.
Subsec. (c)(1). Pub. L. 97–304, §2(a)(3)(A), struck out ", and from time to time he may by regulation
revise," after "Federal Register" and inserted at end "The Secretary shall from time to time revise each list
published under the authority of this subsection to reflect recent determinations, designations, and revisions
made in accordance with subsections (a) and (b)."
Subsec. (c)(2). Pub. L. 97–304, §2(a)(3)(B), (C), redesignated par. (4) as (2). Former par. (2), directing the
Secretary, within 90 days of the receipt of the petition of an interested person under section 553(e) of title 5, to
conduct and publish in the Federal Register a review of the status of any listed or unlisted species proposed to
be removed from or added to either of the lists published pursuant to paragraph (1) of this subsection, but only
if he made and published a finding that such person had presented substantial evidence which in his judgment
warranted such a review, was struck out.
Subsec. (c)(3). Pub. L. 97–304, §2(a)(3)(B), struck out par. (3) which had provided that any list in effect on
Dec. 27, 1973, of species of fish or wildlife determined by the Secretary of the Interior, pursuant to the
Endangered Species Conservation Act of 1969, to be threatened with extinction be republished to conform to
the classification for endangered species or threatened species, as the case might be, provided for in this
chapter, but until such republication, any such species so listed was to be deemed an endangered species
within the meaning of this chapter, and that the republication of any species pursuant to this paragraph did not
require public hearing or comment under section 553 of title 5.
Subsec. (c)(4). Pub. L. 97–304, §2(a)(3)(C), redesignated par. (4) as (2).
Subsec. (d). Pub. L. 97–304, §2(a)(4)(A), substituted "section 1535(c) of this title" for "section 1535(a) of
this title".
Subsec. (f). Pub. L. 97–304, §2(a)(4)(B), (C), (D), redesignated subsec. (g) as (f) and substituted "recovery
plans (1) shall, to the maximum extent practicable, give priority to those endangered species or threatened
species most likely to benefit from such plans, particularly those species that are, or may be, in conflict with
construction or other developmental projects or other forms of economic activity, and (2)" for "recovery
plans,". Former subsec. (f), relating to the promulgation of regulations, was struck out.
Subsec. (g). Pub. L. 97–304, §2(a)(4)(C), (E), redesignated subsec. (h) as (g), substituted reference to
subsection (b)(3) of this section for reference to subsection (c)(2) of this section in par. (1), substituted "under
subsection (a)(1) of this section" for "for listing" in par. (3), and substituted "subsection (f) of this section" for
"subsection (g) of this section" in par. (4). Former subsec. (g) redesignated (f).
Subsec. (h). Pub. L. 97–304, §2(a)(4)(C), (F), added subsec. (h) and redesignated former subsec. (h) as (g).
1979—Subsec. (b)(1). Pub. L. 96–159, §3(1), required the Secretary's determinations to be preceded with a
review of the status of the species.
Subsec. (f)(2)(B)(i). Pub. L. 96–159, §3(2), required publication of summary of text rather than of the
complete text of proposed regulation specifying any critical habitat and inclusion of a map of the proposed
critical habitat.
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Subsec. (f)(2)(B)(iv)(II). Pub. L. 96–159, §3(3), substituted "if requested within 15 days after the date on
which the public meeting is conducted," for "if requested,".
Subsec. (f)(2)(C). Pub. L. 96–159, §3(4), (5), inserted in introductory text ", subsection (b)(4) of this
section,"; and in cl. (ii), included reference to significant risk to wellbeing of any species of plants, inserted in
item (II) reference to regulation applicable to resident species of plants, extended the statutory period to a
"240-day period" from a "120-day period", and provided for withdrawal of an emergency regulation without
substantial evidence to warrant it, respectively.
Subsec. (h). Pub. L. 96–159, §3(6), added subsec. (h).
1978—Subsec. (a)(1). Pub. L. 95–632, §11(1), inserted provision requiring the Secretary, at the time a
regulation is proposed, to specify by regulation any habitat of the species involved which is considered a
critical habitat providing the species was listed subsequent to Nov. 10, 1978.
Subsec. (b)(4). Pub. L. 95–632, §11(7), added par. (4).
Subsec. (c)(1). Pub. L. 95–632, §11(2), struck out "and shall" after "if any" and inserted ", and specify any
critical habitat within such range" after "endangered or threatened".
Subsec. (c)(2). Pub. L. 95–632, §11(6), substituted "within 90 days of the receipt of" for "upon" and
"conduct and publish in the Federal Register a review of the status of" for "conduct a review of" and inserted a
provision requiring that the review and findings be made and published prior to initiation of any procedures
under subsec. (b)(1) of this section.
Subsec. (c)(4). Pub. L. 95–632, §11(3), added par. (4).
Subsec. (f)(2)(A). Pub. L. 95–632, §11(4)(A), substituted "Except as provided in subparagraph (B), in" for
"In".
Subsec. (f)(2)(B), (C). Pub. L. 95–632, §11(4)(B), (C), added subpar. (B), redesignated former subpar. (B)
as (C), and as so redesignated, substituted "Neither subparagraph (A) or (B)" for "Neither subparagraph (A)".
Subsec. (f)(3). Pub. L. 95–632, §13, substituted "a summary by the Secretary of the data on which such
regulation is based and shall show the relationship of such data to such regulations" for "a statement by the
Secretary of the facts on which such regulation is based and the relationship of such facts to such regulation".
Subsec. (f)(4), (5). Pub. L. 95–632, §11(4)(D), added pars. (4) and (5).
Subsec. (g). Pub. L. 95–632, §11(5), added subsec. (g).
1976—Subsec. (f)(2)(B)(ii). Pub. L. 94–359 substituted "subsection (b)(1)(A)" for "subsection (b)(A), (B),
and (C)".
E
D
1982 A
Pub. L. 97–304, §2(b), Oct. 13, 1982, 96 Stat. 1416, provided that:
"(1) Any petition filed under section 4(c)(2) of the Endangered Species Act of 1973 [subsec. (c)(2) of this
section] (as in effect on the day before the date of the enactment of this Act [Oct. 13, 1982]) and any
regulation proposed under section 4(f) of such Act of 1973 [subsec. (f) of this section] (as in effect on such
day) that is pending on such date of enactment [Oct. 13, 1982] shall be treated as having been filed or
proposed on such date of enactment under section 4(b) of such Act of 1973 [subsec. (b) of this section] (as
amended by subsection (a)); and the procedural requirements specified in such section 4(b) [subsec. (b) of this
section] (as so amended) regarding such petition or proposed regulation shall be deemed to be complied with
to the extent that like requirements under such section 4 [this section] (as in effect before the date of the
enactment of this Act) were complied with before such date of enactment.
"(2) Any regulation proposed after, or pending on, the date of the enactment of this Act [Oct. 13, 1982] to
designate critical habitat for a species that was determined before such date of enactment to be endangered or
threatened shall be subject to the procedures set forth in section 4 of such Act of 1973 [this section] (as
amended by subsection (a)) for regulations proposing revisions to critical habitat instead of those for
regulations proposing the designation of critical habitat.
"(3) Any list of endangered species or threatened species (as in effect under section 4(c) of such Act of
1973 [subsec. (c) of this section] on the day before the date of the enactment of this Act [Oct. 13, 1982]) shall
remain in effect unless and until determinations regarding species and designations and revisions of critical
habitats that require changes to such list are made in accordance with subsection (b)(5) of such Act of 1973
[subsec. (b)(5) of this section] (as added by subsection (a)).
"(4) Section 4(a)(3)(A) of such Act of 1973 [subsec. (a)(3)(A) of this section] (as added by subsection (a))
shall not apply with respect to any species which was listed as an endangered species or a threatened species
before November 10, 1978."
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Committee on Merchant Marine and Fisheries of House of Representatives abolished and its jurisdiction
transferred by House Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. Committee on Merchant
Marine and Fisheries of House of Representatives treated as referring to Committee on Resources of House of
Representatives in case of provisions relating to fisheries, wildlife, international fishing agreements, marine
affairs (including coastal zone management) except for measures relating to oil and other pollution of
navigable waters, or oceanography by section 1(b)(3) of Pub. L. 104–14, set out as a note preceding section 21
of Title 2, The Congress. Committee on Resources of House of Representatives changed to Committee on
Natural Resources of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress,
Jan. 5, 2007.
1 So
in original. Probably should be paragraph "(7)".
2 So
in original. Probably should be paragraph "(7)".
§1534. Land acquisition
(a) Implementation of conservation program; authorization of Secretary and Secretary of
Agriculture
The Secretary, and the Secretary of Agriculture with respect to the National Forest System, shall
establish and implement a program to conserve fish, wildlife, and plants, including those which are
listed as endangered species or threatened species pursuant to section 1533 of this title. To carry out
such a program, the appropriate Secretary—
(1) shall utilize the land acquisition and other authority under the Fish and Wildlife Act of 1956,
as amended [16 U.S.C. 742a et seq.], the Fish and Wildlife Coordination Act, as amended [16
U.S.C. 661 et seq.], and the Migratory Bird Conservation Act [16 U.S.C. 715 et seq.], as
appropriate; and
(2) is authorized to acquire by purchase, donation, or otherwise, lands, waters, or interest
therein, and such authority shall be in addition to any other land acquisition authority vested in
him.
(b) Availability of funds for acquisition of lands, waters, etc.
Funds made available pursuant to chapter 2003 of title 54 may be used for the purpose of
acquiring lands, waters, or interests therein under subsection (a) of this section.
(Pub. L. 93–205, §5, Dec. 28, 1973, 87 Stat. 889; Pub. L. 95–632, §12, Nov. 10, 1978, 92 Stat. 3766;
Pub. L. 113–287, §5(d)(32), Dec. 19, 2014, 128 Stat. 3267.)
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The Fish and Wildlife Act of 1956, as amended, referred to in subsec. (a)(1), is act Aug. 8, 1956, ch. 1036,
70 Stat. 119, as amended, which is classified generally to sections 742a to 742d and 742e to 742j–2 of this
title. For complete classification of this Act to the Code, see Short Title note set out under section 742a of this
title and Tables.
The Fish and Wildlife Coordination Act, as amended, referred to in subsec. (a)(1), is act Mar. 10, 1934, ch.
55, 48 Stat. 401, as amended, which is classified generally to sections 661 to 666c of this title. For complete
classification of this Act to the Code, see Short Title note set out under section 661 of this title and Tables.
The Migratory Bird Conservation Act, referred to in subsec. (a)(1), is act Feb. 18, 1929, ch. 257, 45 Stat.
1222, as amended, which is classified generally to subchapter III (§715 et seq.) of chapter 7 of this title. For
complete classification of this Act to the Code, see section 715 of this title and Tables.
A
2014—Subsec. (b). Pub. L. 113–287 substituted "chapter 2003 of title 54" for "the Land and Water
Conservation Fund Act of 1965, as amended,".
1978—Subsec. (a). Pub. L. 95–632, among other changes in text preceding par. (1), inserted reference to
the Secretary of Agriculture with respect to the National Forest System and substituted the establishment and
implementation of a plan to conserve plants for the establishment and implementation of a plan to conserve
plants which were concluded in Appendices to the Convention.
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§1535. Cooperation with States
(a) Generally
In carrying out the program authorized by this chapter, the Secretary shall cooperate to the
maximum extent practicable with the States. Such cooperation shall include consultation with the
States concerned before acquiring any land or water, or interest therein, for the purpose of conserving
any endangered species or threatened species.
(b) Management agreements
The Secretary may enter into agreements with any State for the administration and management of
any area established for the conservation of endangered species or threatened species. Any revenues
derived from the administration of such areas under these agreements shall be subject to the
provisions of section 715s of this title.
(c) Cooperative agreements
(1) In furtherance of the purposes of this chapter, the Secretary is authorized to enter into a
cooperative agreement in accordance with this section with any State which establishes and
maintains an adequate and active program for the conservation of endangered species and threatened
species. Within one hundred and twenty days after the Secretary receives a certified copy of such a
proposed State program, he shall make a determination whether such program is in accordance with
this chapter. Unless he determines, pursuant to this paragraph, that the State program is not in
accordance with this chapter, he shall enter into a cooperative agreement with the State for the
purpose of assisting in implementation of the State program. In order for a State program to be
deemed an adequate and active program for the conservation of endangered species and threatened
species, the Secretary must find, and annually thereafter reconfirm such finding, that under the State
program—
(A) authority resides in the State agency to conserve resident species of fish or wildlife
determined by the State agency or the Secretary to be endangered or threatened;
(B) the State agency has established acceptable conservation programs, consistent with the
purposes and policies of this chapter, for all resident species of fish or wildlife in the State which
are deemed by the Secretary to be endangered or threatened, and has furnished a copy of such plan
and program together with all pertinent details, information, and data requested to the Secretary;
(C) the State agency is authorized to conduct investigations to determine the status and
requirements for survival of resident species of fish and wildlife;
(D) the State agency is authorized to establish programs, including the acquisition of land or
aquatic habitat or interests therein, for the conservation of resident endangered or threatened
species of fish or wildlife; and
(E) provision is made for public participation in designating resident species of fish or wildlife
as endangered or threatened; or
that under the State program—
(i) the requirements set forth in subparagraphs (C), (D), and (E) of this paragraph are complied
with, and
(ii) plans are included under which immediate attention will be given to those resident species
of fish and wildlife which are determined by the Secretary or the State agency to be endangered or
threatened and which the Secretary and the State agency agree are most urgently in need of
conservation programs; except that a cooperative agreement entered into with a State whose
program is deemed adequate and active pursuant to clause (i) and this clause shall not affect the
applicability of prohibitions set forth in or authorized pursuant to section 1533(d) of this title or
section 1538(a)(1) of this title with respect to the taking of any resident endangered or threatened
species.
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(2) In furtherance of the purposes of this chapter the Secretary is authorized to enter into a
cooperative agreement in accordance with this section with any State which establishes and
maintains an adequate and active program for the conservation of endangered species and threatened
species of plants. Within one hundred and twenty days after the Secretary receives a certified copy of
such a proposed State program, he shall make a determination whether such program is in
accordance with this chapter. Unless he determines, pursuant to this paragraph, that the State
program is not in accordance with this chapter, he shall enter into a cooperative agreement with the
State for the purpose of assisting in implementation of the State program. In order for a State
program to be deemed an adequate and active program for the conservation of endangered species of
plants and threatened species of plants, the Secretary must find, and annually thereafter reconfirm
such finding, that under the State program—
(A) authority resides in the State agency to conserve resident species of plants determined by
the State agency or the Secretary to be endangered or threatened;
(B) the State agency has established acceptable conservation programs, consistent with the
purposes and policies of this chapter, for all resident species of plants in the State which are
deemed by the Secretary to be endangered or threatened, and has furnished a copy of such plan
and program together with all pertinent details, information, and data requested to the Secretary;
(C) the State agency is authorized to conduct investigations to determine the status and
requirements for survival of resident species of plants; and
(D) provision is made for public participation in designating resident species of plants as
endangered or threatened; or
that under the State program—
(i) the requirements set forth in subparagraphs (C) and (D) of this paragraph are complied with,
and
(ii) plans are included under which immediate attention will be given to those resident species
of plants which are determined by the Secretary or the State agency to be endangered or threatened
and which the Secretary and the State agency agree are most urgently in need of conservation
programs; except that a cooperative agreement entered into with a State whose program is deemed
adequate and active pursuant to clause (i) and this clause shall not affect the applicability of
prohibitions set forth in or authorized pursuant to section 1533(d) or section 1538(a)(1) of this title
with respect to the taking of any resident endangered or threatened species.
(d) Allocation of funds
(1) The Secretary is authorized to provide financial assistance to any State, through its respective
State agency, which has entered into a cooperative agreement pursuant to subsection (c) of this
section to assist in development of programs for the conservation of endangered and threatened
species or to assist in monitoring the status of candidate species pursuant to subparagraph (C) of
section 1533(b)(3) of this title and recovered species pursuant to section 1533(g) of this title. The
Secretary shall allocate each annual appropriation made in accordance with the provisions of
subsection (i) of this section to such States based on consideration of—
(A) the international commitments of the United States to protect endangered species or
threatened species;
(B) the readiness of a State to proceed with a conservation program consistent with the
objectives and purposes of this chapter;
(C) the number of endangered species and threatened species within a State;
(D) the potential for restoring endangered species and threatened species within a State;
(E) the relative urgency to initiate a program to restore and protect an endangered species or
threatened species in terms of survival of the species;
(F) the importance of monitoring the status of candidate species within a State to prevent a
significant risk to the well being of any such species; and
(G) the importance of monitoring the status of recovered species within a State to assure that
such species do not return to the point at which the measures provided pursuant to this chapter are
again necessary.
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So much of the annual appropriation made in accordance with provisions of subsection (i) of this
section allocated for obligation to any State for any fiscal year as remains unobligated at the close
thereof is authorized to be made available to that State until the close of the succeeding fiscal year.
Any amount allocated to any State which is unobligated at the end of the period during which it is
available for expenditure is authorized to be made available for expenditure by the Secretary in
conducting programs under this section.
(2) Such cooperative agreements shall provide for (A) the actions to be taken by the Secretary and
the States; (B) the benefits that are expected to be derived in connection with the conservation of
endangered or threatened species; (C) the estimated cost of these actions; and (D) the share of such
costs to be borne by the Federal Government and by the States; except that—
(i) the Federal share of such program costs shall not exceed 75 percent of the estimated program
cost stated in the agreement; and
(ii) the Federal share may be increased to 90 percent whenever two or more States having a
common interest in one or more endangered or threatened species, the conservation of which may
be enhanced by cooperation of such States, enter jointly into an agreement with the Secretary.
The Secretary may, in his discretion, and under such rules and regulations as he may prescribe,
advance funds to the State for financing the United States pro rata share agreed upon in the
cooperative agreement. For the purposes of this section, the non-Federal share may, in the discretion
of the Secretary, be in the form of money or real property, the value of which will be determined by
the Secretary, whose decision shall be final.
(e) Review of State programs
Any action taken by the Secretary under this section shall be subject to his periodic review at no
greater than annual intervals.
(f) Conflicts between Federal and State laws
Any State law or regulation which applies with respect to the importation or exportation of, or
interstate or foreign commerce in, endangered species or threatened species is void to the extent that
it may effectively (1) permit what is prohibited by this chapter or by any regulation which
implements this chapter, or (2) prohibit what is authorized pursuant to an exemption or permit
provided for in this chapter or in any regulation which implements this chapter. This chapter shall not
otherwise be construed to void any State law or regulation which is intended to conserve migratory,
resident, or introduced fish or wildlife, or to permit or prohibit sale of such fish or wildlife. Any State
law or regulation respecting the taking of an endangered species or threatened species may be more
restrictive than the exemptions or permits provided for in this chapter or in any regulation which
implements this chapter but not less restrictive than the prohibitions so defined.
(g) Transition
(1) For purposes of this subsection, the term "establishment period" means, with respect to any
State, the period beginning on December 28, 1973, and ending on whichever of the following dates
first occurs: (A) the date of the close of the 120-day period following the adjournment of the first
regular session of the legislature of such State which commences after December 28, 1973, or (B) the
date of the close of the 15-month period following December 28, 1973.
(2) The prohibitions set forth in or authorized pursuant to sections 1533(d) and 1538(a)(1)(B) of
this title shall not apply with respect to the taking of any resident endangered species or threatened
species (other than species listed in Appendix I to the Convention or otherwise specifically covered
by any other treaty or Federal law) within any State—
(A) which is then a party to a cooperative agreement with the Secretary pursuant to subsection
(c) of this section (except to the extent that the taking of any such species is contrary to the law of
such State); or
(B) except for any time within the establishment period when—
(i) the Secretary applies such prohibition to such species at the request of the State, or
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(ii) the Secretary applies such prohibition after he finds, and publishes his finding, that an
emergency exists posing a significant risk to the well-being of such species and that the
prohibition must be applied to protect such species. The Secretary's finding and publication may
be made without regard to the public hearing or comment provisions of section 553 of title 5 or
any other provision of this chapter; but such prohibition shall expire 90 days after the date of its
imposition unless the Secretary further extends such prohibition by publishing notice and a
statement of justification of such extension.
(h) Regulations
The Secretary is authorized to promulgate such regulations as may be appropriate to carry out the
provisions of this section relating to financial assistance to States.
(i) Appropriations
(1) To carry out the provisions of this section for fiscal years after September 30, 1988, there shall
be deposited into a special fund known as the cooperative endangered species conservation fund, to
be administered by the Secretary, an amount equal to 5 percent of the combined amounts covered
each fiscal year into the Federal aid to wildlife restoration fund under section 669b of this title, and
paid, transferred, or otherwise credited each fiscal year to the Sport Fishing Restoration Account
established under 1016 of the Act of July 18, 1984.
(2) Amounts deposited into the special fund are authorized to be appropriated annually and
allocated in accordance with subsection (d) of this section.
(Pub. L. 93–205, §6, Dec. 28, 1973, 87 Stat. 889; Pub. L. 95–212, Dec. 19, 1977, 91 Stat. 1493; Pub.
L. 95–632, §10, Nov. 10, 1978, 92 Stat. 3762; Pub. L. 96–246, May 23, 1980, 94 Stat. 348; Pub. L.
97–304, §§3, 8(b), Oct. 13, 1982, 96 Stat. 1416, 1426; Pub. L. 100–478, title I, §1005, Oct. 7, 1988,
102 Stat. 2307.)
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This chapter, referred to in text, was in the original "this Act" or "This Act", meaning Pub. L. 93–205, Dec.
28, 1973, 81 Stat. 884, known as the Endangered Species Act of 1973, which is classified principally to this
chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1531 of
this title and Tables.
The Sport Fishing Restoration Account established under section 1016 of the Act of July 18, 1984, referred
to in subsec. (i)(1), probably means the Sport Fish Restoration Account established by section 9504(a)(2)(A)
of Title 26, Internal Revenue Code, which section was enacted by section 1016(a) of Pub. L. 98–369, div. A,
title X, July 18, 1984, 98 Stat. 1019.
A
1988—Subsec. (d)(1). Pub. L. 100–478, §1005(a), amended par. (1) generally. Prior to amendment, par. (1)
read as follows: "The Secretary is authorized to provide financial assistance to any State, through its
respective State agency, which has entered into a cooperative agreement pursuant to subsection (c) of this
section to assist in development of programs for the conservation of endangered and threatened species. The
Secretary shall make an allocation of appropriated funds to such States based on consideration of—
"(A) the international commitments of the United States to protect endangered species or threatened
species;
"(B) the readiness of a State to proceed with a conservation program consistent with the objectives and
purposes of this chapter;
"(C) the number of endangered species and threatened species within a State;
"(D) the potential for restoring endangered species and threatened species within a State; and
"(E) the relative urgency to initiate a program to restore and protect an endangered species or
threatened species in terms of survival of the species.
So much of any appropriated funds allocated for obligation to any State for any fiscal year as remains
unobligated at the close thereof is authorized to be made available to that State until the close of the
succeeding fiscal year. Any amount allocated to any State which is unobligated at the end of the period during
which it is available for expenditure is authorized to be made available for expenditure by the Secretary in
conducting programs under this section."
Subsec. (i). Pub. L. 100–478, §1005(b), added subsec. (i).
1982—Subsec. (d)(2)(i). Pub. L. 97–304, §3(1), substituted "75 percent" for "662/3 per centum".
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Subsec. (d)(2)(ii). Pub. L. 97–304, §3(2), substituted "90 percent" for "75 per centum".
Subsec. (i). Pub. L. 97–304, §8(b), struck out subsec. (i) which authorized appropriations to carry out this
section of $10,000,000 through the period ending Sept. 30, 1977, $12,000,000 for the period Oct. 1, 1977,
through Sept. 30, 1980, and $12,000,000 for the period Oct. 1, 1980, through Sept. 30, 1982. See section
1542(b) of this title.
1980—Subsec. (i). Pub. L. 96–246 in par. (2) substituted "$12,000,000" for "$16,000,000" and "1980" for
"1981", and added par. (3).
1978—Subsec. (c). Pub. L. 95–632 designated existing provision as par. (1), and in par. (1) as so
designated, redesignated pars. (1) to (5) as subpars. (A) to (E), respectively, and subpars. (A) and (B) of
subpar. (E), as so redesignated, as cls. (i) and (ii), respectively, substituted "paragraph" for "subsection" in
provision preceding subpar. (A), as so redesignated, "endangered or threatened species of fish or wildlife" for
"endangered species or threatened species" in subpar. (D), as so redesignated, "subparagraphs (C), (D), and
(E) of this paragraph" for "paragraphs (3), (4), and (5) of this subsection" in cl. (i) of subpar. (E), as so
redesignated, "clause (i) and this clause" for "subparagraph (A) and this subparagraph" in cl. (ii) of subpar.
(E), as so redesignated, and added par. (2).
1977—Subsec. (c). Pub. L. 95–212, §1(1), inserted provisions that States in which the State fish and
wildlife agencies do not possess the broad authority to conserve all resident species of fish and wildlife which
the Secretary determines to be threatened or endangered may nevertheless qualify for cooperative agreement
funds if they satisfy all other requirements and have plans to devote immediate attention to those species most
urgently in need of conservation programs.
Subsec. (i). Pub. L. 95–212, §1(2), substituted provisions authorizing appropriations of $10,000,000 to
cover the period ending Sept. 30, 1977, and $16,000,000 to cover the period beginning Oct. 1, 1977, and
ending Sept. 30, 1981, for provisions authorizing appropriations of not to exceed $10,000,000 through the
fiscal year ending June 30, 1977.
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1981 A
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Nothing in the amendment of section 1379 of this title by section 4(a) of Pub. L. 97–58 to be construed as
affecting in any manner any cooperative agreement entered into by a State under subsec. (c) of this section
before, on, or after Oct. 9, 1981, see section 4(b) of Pub. L. 97–58, set out as a note under section 1379 of this
title.
§1536. Interagency cooperation
(a) Federal agency actions and consultations
(1) The Secretary shall review other programs administered by him and utilize such programs in
furtherance of the purposes of this chapter. All other Federal agencies shall, in consultation with and
with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this
chapter by carrying out programs for the conservation of endangered species and threatened species
listed pursuant to section 1533 of this title.
(2) Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure
that any action authorized, funded, or carried out by such agency (hereinafter in this section referred
to as an "agency action") is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse modification of habitat of such
species which is determined by the Secretary, after consultation as appropriate with affected States,
to be critical, unless such agency has been granted an exemption for such action by the Committee
pursuant to subsection (h) of this section. In fulfilling the requirements of this paragraph each agency
shall use the best scientific and commercial data available.
(3) Subject to such guidelines as the Secretary may establish, a Federal agency shall consult with
the Secretary on any prospective agency action at the request of, and in cooperation with, the
prospective permit or license applicant if the applicant has reason to believe that an endangered
species or a threatened species may be present in the area affected by his project and that
implementation of such action will likely affect such species.
(4) Each Federal agency shall confer with the Secretary on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed under section 1533 of this
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title or result in the destruction or adverse modification of critical habitat proposed to be designated
for such species. This paragraph does not require a limitation on the commitment of resources as
described in subsection (d).
(b) Opinion of Secretary
(1)(A) Consultation under subsection (a)(2) with respect to any agency action shall be concluded
within the 90-day period beginning on the date on which initiated or, subject to subparagraph (B),
within such other period of time as is mutually agreeable to the Secretary and the Federal agency.
(B) In the case of an agency action involving a permit or license applicant, the Secretary and the
Federal agency may not mutually agree to conclude consultation within a period exceeding 90 days
unless the Secretary, before the close of the 90th day referred to in subparagraph (A)—
(i) if the consultation period proposed to be agreed to will end before the 150th day after the
date on which consultation was initiated, submits to the applicant a written statement setting forth
—
(I) the reasons why a longer period is required,
(II) the information that is required to complete the consultation, and
(III) the estimated date on which consultation will be completed; or
(ii) if the consultation period proposed to be agreed to will end 150 or more days after the date
on which consultation was initiated, obtains the consent of the applicant to such period.
The Secretary and the Federal agency may mutually agree to extend a consultation period
established under the preceding sentence if the Secretary, before the close of such period, obtains the
consent of the applicant to the extension.
(2) Consultation under subsection (a)(3) shall be concluded within such period as is agreeable to
the Secretary, the Federal agency, and the applicant concerned.
(3)(A) Promptly after conclusion of consultation under paragraph (2) or (3) of subsection (a), the
Secretary shall provide to the Federal agency and the applicant, if any, a written statement setting
forth the Secretary's opinion, and a summary of the information on which the opinion is based,
detailing how the agency action affects the species or its critical habitat. If jeopardy or adverse
modification is found, the Secretary shall suggest those reasonable and prudent alternatives which he
believes would not violate subsection (a)(2) and can be taken by the Federal agency or applicant in
implementing the agency action.
(B) Consultation under subsection (a)(3), and an opinion issued by the Secretary incident to such
consultation, regarding an agency action shall be treated respectively as a consultation under
subsection (a)(2), and as an opinion issued after consultation under such subsection, regarding that
action if the Secretary reviews the action before it is commenced by the Federal agency and finds,
and notifies such agency, that no significant changes have been made with respect to the action and
that no significant change has occurred regarding the information used during the initial consultation.
(4) If after consultation under subsection (a)(2), the Secretary concludes that—
(A) the agency action will not violate such subsection, or offers reasonable and prudent
alternatives which the Secretary believes would not violate such subsection;
(B) the taking of an endangered species or a threatened species incidental to the agency action
will not violate such subsection; and
(C) if an endangered species or threatened species of a marine mammal is involved, the taking is
authorized pursuant to section 1371(a)(5) of this title;
the Secretary shall provide the Federal agency and the applicant concerned, if any, with a written
statement that—
(i) specifies the impact of such incidental taking on the species,
(ii) specifies those reasonable and prudent measures that the Secretary considers necessary or
appropriate to minimize such impact,
(iii) in the case of marine mammals, specifies those measures that are necessary to comply with
section 1371(a)(5) of this title with regard to such taking, and
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(iv) sets forth the terms and conditions (including, but not limited to, reporting requirements)
that must be complied with by the Federal agency or applicant (if any), or both, to implement the
measures specified under clauses (ii) and (iii).
(c) Biological assessment
(1) To facilitate compliance with the requirements of subsection (a)(2), each Federal agency shall,
with respect to any agency action of such agency for which no contract for construction has been
entered into and for which no construction has begun on November 10, 1978, request of the
Secretary information whether any species which is listed or proposed to be listed may be present in
the area of such proposed action. If the Secretary advises, based on the best scientific and
commercial data available, that such species may be present, such agency shall conduct a biological
assessment for the purpose of identifying any endangered species or threatened species which is
likely to be affected by such action. Such assessment shall be completed within 180 days after the
date on which initiated (or within such other period as is mutually agreed to by the Secretary and
such agency, except that if a permit or license applicant is involved, the 180-day period may not be
extended unless such agency provides the applicant, before the close of such period, with a written
statement setting forth the estimated length of the proposed extension and the reasons therefor) and,
before any contract for construction is entered into and before construction is begun with respect to
such action. Such assessment may be undertaken as part of a Federal agency's compliance with the
requirements of section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. 4332).
(2) Any person who may wish to apply for an exemption under subsection (g) of this section for
that action may conduct a biological assessment to identify any endangered species or threatened
species which is likely to be affected by such action. Any such biological assessment must, however,
be conducted in cooperation with the Secretary and under the supervision of the appropriate Federal
agency.
(d) Limitation on commitment of resources
After initiation of consultation required under subsection (a)(2), the Federal agency and the permit
or license applicant shall not make any irreversible or irretrievable commitment of resources with
respect to the agency action which has the effect of foreclosing the formulation or implementation of
any reasonable and prudent alternative measures which would not violate subsection (a)(2) of this
section.
(e) Endangered Species Committee
(1) There is established a committee to be known as the Endangered Species Committee
(hereinafter in this section referred to as the "Committee").
(2) The Committee shall review any application submitted to it pursuant to this section and
determine in accordance with subsection (h) of this section whether or not to grant an exemption
from the requirements of subsection (a)(2) of this section for the action set forth in such application.
(3) The Committee shall be composed of seven members as follows:
(A) The Secretary of Agriculture.
(B) The Secretary of the Army.
(C) The Chairman of the Council of Economic Advisors.
(D) The Administrator of the Environmental Protection Agency.
(E) The Secretary of the Interior.
(F) The Administrator of the National Oceanic and Atmospheric Administration.
(G) The President, after consideration of any recommendations received pursuant to subsection
(g)(2)(B) shall appoint one individual from each affected State, as determined by the Secretary, to
be a member of the Committee for the consideration of the application for exemption for an
agency action with respect to which such recommendations are made, not later than 30 days after
an application is submitted pursuant to this section.
(4)(A) Members of the Committee shall receive no additional pay on account of their service on
the Committee.
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(B) While away from their homes or regular places of business in the performance of services for
the Committee, members of the Committee shall be allowed travel expenses, including per diem in
lieu of subsistence, in the same manner as persons employed intermittently in the Government
service are allowed expenses under section 5703 of title 5.
(5)(A) Five members of the Committee or their representatives shall constitute a quorum for the
transaction of any function of the Committee, except that, in no case shall any representative be
considered in determining the existence of a quorum for the transaction of any function of the
Committee if that function involves a vote by the Committee on any matter before the Committee.
(B) The Secretary of the Interior shall be the Chairman of the Committee.
(C) The Committee shall meet at the call of the Chairman or five of its members.
(D) All meetings and records of the Committee shall be open to the public.
(6) Upon request of the Committee, the head of any Federal agency is authorized to detail, on a
nonreimbursable basis, any of the personnel of such agency to the Committee to assist it in carrying
out its duties under this section.
(7)(A) The Committee may for the purpose of carrying out its duties under this section hold such
hearings, sit and act at such times and places, take such testimony, and receive such evidence, as the
Committee deems advisable.
(B) When so authorized by the Committee, any member or agent of the Committee may take any
action which the Committee is authorized to take by this paragraph.
(C) Subject to the Privacy Act [5 U.S.C. 552a], the Committee may secure directly from any
Federal agency information necessary to enable it to carry out its duties under this section. Upon
request of the Chairman of the Committee, the head of such Federal agency shall furnish such
information to the Committee.
(D) The Committee may use the United States mails in the same manner and upon the same
conditions as a Federal agency.
(E) The Administrator of General Services shall provide to the Committee on a reimbursable basis
such administrative support services as the Committee may request.
(8) In carrying out its duties under this section, the Committee may promulgate and amend such
rules, regulations, and procedures, and issue and amend such orders as it deems necessary.
(9) For the purpose of obtaining information necessary for the consideration of an application for
an exemption under this section the Committee may issue subpenas for the attendance and testimony
of witnesses and the production of relevant papers, books, and documents.
(10) In no case shall any representative, including a representative of a member designated
pursuant to paragraph (3)(G) of this subsection, be eligible to cast a vote on behalf of any member.
(f) Promulgation of regulations; form and contents of exemption application
Not later than 90 days after November 10, 1978, the Secretary shall promulgate regulations which
set forth the form and manner in which applications for exemption shall be submitted to the
Secretary and the information to be contained in such applications. Such regulations shall require
that information submitted in an application by the head of any Federal agency with respect to any
agency action include, but not be limited to—
(1) a description of the consultation process carried out pursuant to subsection (a)(2) of this
section between the head of the Federal agency and the Secretary; and
(2) a statement describing why such action cannot be altered or modified to conform with the
requirements of subsection (a)(2) of this section.
(g) Application for exemption; report to Committee
(1) A Federal agency, the Governor of the State in which an agency action will occur, if any, or a
permit or license applicant may apply to the Secretary for an exemption for an agency action of such
agency if, after consultation under subsection (a)(2), the Secretary's opinion under subsection (b)
indicates that the agency action would violate subsection (a)(2). An application for an exemption
shall be considered initially by the Secretary in the manner provided for in this subsection, and shall
be considered by the Committee for a final determination under subsection (h) after a report is made
pursuant to paragraph (5). The applicant for an exemption shall be referred to as the "exemption
applicant" in this section.
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(2)(A) An exemption applicant shall submit a written application to the Secretary, in a form
prescribed under subsection (f), not later than 90 days after the completion of the consultation
process; except that, in the case of any agency action involving a permit or license applicant, such
application shall be submitted not later than 90 days after the date on which the Federal agency
concerned takes final agency action with respect to the issuance of the permit or license. For
purposes of the preceding sentence, the term "final agency action" means (i) a disposition by an
agency with respect to the issuance of a permit or license that is subject to administrative review,
whether or not such disposition is subject to judicial review; or (ii) if administrative review is sought
with respect to such disposition, the decision resulting after such review. Such application shall set
forth the reasons why the exemption applicant considers that the agency action meets the
requirements for an exemption under this subsection.
(B) Upon receipt of an application for exemption for an agency action under paragraph (1), the
Secretary shall promptly (i) notify the Governor of each affected State, if any, as determined by the
Secretary, and request the Governors so notified to recommend individuals to be appointed to the
Endangered Species Committee for consideration of such application; and (ii) publish notice of
receipt of the application in the Federal Register, including a summary of the information contained
in the application and a description of the agency action with respect to which the application for
exemption has been filed.
(3) The Secretary shall within 20 days after the receipt of an application for exemption, or within
such other period of time as is mutually agreeable to the exemption applicant and the Secretary—
(A) determine that the Federal agency concerned and the exemption applicant have—
(i) carried out the consultation responsibilities described in subsection (a) in good faith and
made a reasonable and responsible effort to develop and fairly consider modifications or
reasonable and prudent alternatives to the proposed agency action which would not violate
subsection (a)(2);
(ii) conducted any biological assessment required by subsection (c); and
(iii) to the extent determinable within the time provided herein, refrained from making any
irreversible or irretrievable commitment of resources prohibited by subsection (d); or
(B) deny the application for exemption because the Federal agency concerned or the exemption
applicant have not met the requirements set forth in subparagraph (A)(i), (ii), and (iii).
The denial of an application under subparagraph (B) shall be considered final agency action for
purposes of chapter 7 of title 5.
(4) If the Secretary determines that the Federal agency concerned and the exemption applicant
have met the requirements set forth in paragraph (3)(A)(i), (ii), and (iii) he shall, in consultation with
the Members of the Committee, hold a hearing on the application for exemption in accordance with
sections 554, 555, and 556 (other than subsection (b)(1) and (2) thereof) of title 5 and prepare the
report to be submitted pursuant to paragraph (5).
(5) Within 140 days after making the determinations under paragraph (3) or within such other
period of time as is mutually agreeable to the exemption applicant and the Secretary, the Secretary
shall submit to the Committee a report discussing—
(A) the availability of reasonable and prudent alternatives to the agency action, and the nature
and extent of the benefits of the agency action and of alternative courses of action consistent with
conserving the species or the critical habitat;
(B) a summary of the evidence concerning whether or not the agency action is in the public
interest and is of national or regional significance;
(C) appropriate reasonable mitigation and enhancement measures which should be considered
by the Committee; and
(D) whether the Federal agency concerned and the exemption applicant refrained from making
any irreversible or irretrievable commitment of resources prohibited by subsection (d).
(6) To the extent practicable within the time required for action under subsection (g) of this
section, and except to the extent inconsistent with the requirements of this section, the consideration
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of any application for an exemption under this section and the conduct of any hearing under this
subsection shall be in accordance with sections 554, 555, and 556 (other than subsection (b)(3) of
section 556) of title 5.
(7) Upon request of the Secretary, the head of any Federal agency is authorized to detail, on a
nonreimbursable basis, any of the personnel of such agency to the Secretary to assist him in carrying
out his duties under this section.
(8) All meetings and records resulting from activities pursuant to this subsection shall be open to
the public.
(h) Grant of exemption
(1) The Committee shall make a final determination whether or not to grant an exemption within
30 days after receiving the report of the Secretary pursuant to subsection (g)(5). The Committee shall
grant an exemption from the requirements of subsection (a)(2) for an agency action if, by a vote of
not less than five of its members voting in person—
(A) it determines on the record, based on the report of the Secretary, the record of the hearing
held under subsection (g)(4) and on such other testimony or evidence as it may receive, that—
(i) there are no reasonable and prudent alternatives to the agency action;
(ii) the benefits of such action clearly outweigh the benefits of alternative courses of action
consistent with conserving the species or its critical habitat, and such action is in the public
interest;
(iii) the action is of regional or national significance; and
(iv) neither the Federal agency concerned nor the exemption applicant made any irreversible
or irretrievable commitment of resources prohibited by subsection (d); and
(B) it establishes such reasonable mitigation and enhancement measures, including, but not
limited to, live propagation, transplantation, and habitat acquisition and improvement, as are
necessary and appropriate to minimize the adverse effects of the agency action upon the
endangered species, threatened species, or critical habitat concerned.
Any final determination by the Committee under this subsection shall be considered final agency
action for purposes of chapter 7 of title 5.
(2)(A) Except as provided in subparagraph (B), an exemption for an agency action granted under
paragraph (1) shall constitute a permanent exemption with respect to all endangered or threatened
species for the purposes of completing such agency action—
(i) regardless whether the species was identified in the biological assessment; and
(ii) only if a biological assessment has been conducted under subsection (c) with respect to such
agency action.
(B) An exemption shall be permanent under subparagraph (A) unless—
(i) the Secretary finds, based on the best scientific and commercial data available, that such
exemption would result in the extinction of a species that was not the subject of consultation under
subsection (a)(2) or was not identified in any biological assessment conducted under subsection
(c), and
(ii) the Committee determines within 60 days after the date of the Secretary's finding that the
exemption should not be permanent.
If the Secretary makes a finding described in clause (i), the Committee shall meet with respect to
the matter within 30 days after the date of the finding.
(i) Review by Secretary of State; violation of international treaty or other international
obligation of United States
Notwithstanding any other provision of this chapter, the Committee shall be prohibited from
considering for exemption any application made to it, if the Secretary of State, after a review of the
proposed agency action and its potential implications, and after hearing, certifies, in writing, to the
Committee within 60 days of any application made under this section that the granting of any such
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exemption and the carrying out of such action would be in violation of an international treaty
obligation or other international obligation of the United States. The Secretary of State shall, at the
time of such certification, publish a copy thereof in the Federal Register.
(j) Exemption for national security reasons
Notwithstanding any other provision of this chapter, the Committee shall grant an exemption for
any agency action if the Secretary of Defense finds that such exemption is necessary for reasons of
national security.
(k) Exemption decision not considered major Federal action; environmental impact statement
An exemption decision by the Committee under this section shall not be a major Federal action for
purposes of the National Environmental Policy Act of 1969 [42 U.S.C. 4321 et seq.]: Provided, That
an environmental impact statement which discusses the impacts upon endangered species or
threatened species or their critical habitats shall have been previously prepared with respect to any
agency action exempted by such order.
(l) Committee order granting exemption; cost of mitigation and enhancement measures; report
by applicant to Council on Environmental Quality
(1) If the Committee determines under subsection (h) that an exemption should be granted with
respect to any agency action, the Committee shall issue an order granting the exemption and
specifying the mitigation and enhancement measures established pursuant to subsection (h) which
shall be carried out and paid for by the exemption applicant in implementing the agency action. All
necessary mitigation and enhancement measures shall be authorized prior to the implementing of the
agency action and funded concurrently with all other project features.
(2) The applicant receiving such exemption shall include the costs of such mitigation and
enhancement measures within the overall costs of continuing the proposed action. Notwithstanding
the preceding sentence the costs of such measures shall not be treated as project costs for the purpose
of computing benefit-cost or other ratios for the proposed action. Any applicant may request the
Secretary to carry out such mitigation and enhancement measures. The costs incurred by the
Secretary in carrying out any such measures shall be paid by the applicant receiving the exemption.
No later than one year after the granting of an exemption, the exemption applicant shall submit to the
Council on Environmental Quality a report describing its compliance with the mitigation and
enhancement measures prescribed by this section. Such a report shall be submitted annually until all
such mitigation and enhancement measures have been completed. Notice of the public availability of
such reports shall be published in the Federal Register by the Council on Environmental Quality.
(m) Notice requirement for citizen suits not applicable
The 60-day notice requirement of section 1540(g) of this title shall not apply with respect to
review of any final determination of the Committee under subsection (h) of this section granting an
exemption from the requirements of subsection (a)(2) of this section.
(n) Judicial review
Any person, as defined by section 1532(13) of this title, may obtain judicial review, under chapter
7 of title 5, of any decision of the Endangered Species Committee under subsection (h) in the United
States Court of Appeals for (1) any circuit wherein the agency action concerned will be, or is being,
carried out, or (2) in any case in which the agency action will be, or is being, carried out outside of
any circuit, the District of Columbia, by filing in such court within 90 days after the date of issuance
of the decision, a written petition for review. A copy of such petition shall be transmitted by the clerk
of the court to the Committee and the Committee shall file in the court the record in the proceeding,
as provided in section 2112 of title 28. Attorneys designated by the Endangered Species Committee
may appear for, and represent the Committee in any action for review under this subsection.
(o) Exemption as providing exception on taking of endangered species
Notwithstanding sections 1533(d) and 1538(a)(1)(B) and (C) of this title, sections 1371 and 1372
of this title, or any regulation promulgated to implement any such section—
(1) any action for which an exemption is granted under subsection (h) shall not be considered to
be a taking of any endangered species or threatened species with respect to any activity which is
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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) shall not be considered to be a prohibited taking of
the species concerned.
(p) Exemptions in Presidentially declared disaster areas
In any area which has been declared by the President to be a major disaster area under the Disaster
Relief and Emergency Assistance Act [42 U.S.C. 5121 et seq.], the President is authorized to make
the determinations required by subsections (g) and (h) of this section for any project for the repair or
replacement of a public facility substantially as it existed prior to the disaster under section 405 or
406 of the Disaster Relief and Emergency Assistance Act [42 U.S.C. 5171 or 5172], and which the
President determines (1) is necessary to prevent the recurrence of such a natural disaster and to
reduce the potential loss of human life, and (2) to involve an emergency situation which does not
allow the ordinary procedures of this section to be followed. Notwithstanding any other provision of
this section, the Committee shall accept the determinations of the President under this subsection.
(Pub. L. 93–205, §7, Dec. 28, 1973, 87 Stat. 892; Pub. L. 95–632, §3, Nov. 10, 1978, 92 Stat. 3752;
Pub. L. 96–159, §4, Dec. 28, 1979, 93 Stat. 1226; Pub. L. 97–304, §§4(a), 8(b), Oct. 13, 1982, 96
Stat. 1417, 1426; Pub. L. 99–659, title IV, §411(b), (c), Nov. 14, 1986, 100 Stat. 3741, 3742; Pub. L.
100–707, title I, §109(g), Nov. 23, 1988, 102 Stat. 4709.)
R
T
This chapter, referred to in subsecs. (a)(1), (i), and (j), was in the original "this Act", meaning Pub. L. 93–
205, Dec. 28, 1973, 81 Stat. 884, known as the Endangered Species Act of 1973, which is classified
principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out
under section 1531 of this title and Tables.
The Privacy Act, referred to in subsec. (e)(7)(C), is probably a reference to section 552a of Title 5,
Government Organization and Employees. See Short Title note set out under section 552a of Title 5.
The National Environmental Policy Act of 1969, referred to in subsec. (k), is Pub. L. 91–190, Jan. 1, 1970,
83 Stat. 852, as amended, which is classified generally to chapter 55 (§4321 et seq.) of Title 42, The Public
Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under
section 4321 of Title 42 and Tables.
The Disaster Relief and Emergency Assistance Act, referred to in subsec. (p), is Pub. L. 93–288, May 22,
1974, 88 Stat. 143, as amended, known as the Robert T. Stafford Disaster Relief and Emergency Assistance
Act, which is classified principally to chapter 68 (§5121 et seq.) of Title 42. For complete classification of this
Act to the Code, see Short Title note set out under section 5121 of Title 42 and Tables.
A
1988—Subsec. (p). Pub. L. 100–707 substituted "the Disaster Relief and Emergency Assistance Act" for
"the Disaster Relief Act of 1974" and "section 405 or 406 of the Disaster Relief and Emergency Assistance
Act" for "section 401 or 402 of the Disaster Relief Act of 1974".
1986—Subsec. (b)(4)(C). Pub. L. 99–659, §411(b)(1)–(3), added subpar. (C).
Subsec. (b)(4)(iii), (iv). Pub. L. 99–659, §411(b)(4)–(6), added cl. (iii), redesignated former cl. (iii) as (iv),
and in cl. (iv), as so redesignated, inserted reference to cl. (iii).
Subsec. (o). Pub. L. 99–659, §411(c)(1), in introductory provisions, inserted ", sections 1371 and 1372 of
this title,", and substituted "any" for "either" after "implement".
Subsec. (o)(2). Pub. L. 99–659, §411(c)(2), substituted "subsection (b)(4)(iv)" for "subsection (b)(4)(iii)"
and inserted "prohibited" before "taking of the species".
1982—Subsec. (a)(3), (4). Pub. L. 97–304, §4(a)(1), added par. (3) and redesignated former par. (3) as (4).
Subsec. (b). Pub. L. 97–304, §4(a)(2), incorporated existing provisions into pars. (1)(A) and (3)(A) and
added pars. (1)(B), (2), (3)(B), and (4).
Subsec. (c)(1). Pub. L. 97–304, §4(a)(3), inserted ", except that if a permit or license applicant is involved,
the 180-day period may not be extended unless such agency provides the applicant, before the close of such
period, with a written statement setting forth the estimated length of the proposed extension and the reasons
therefor" after "agency" in parenthetical provision.
Subsec. (e)(10). Pub. L. 97–304, §4(a)(4), struck out provision that, except in the case of a member
designated pursuant to paragraph (3)(G) of this subsection, no member could designate any person to serve as
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his or her representative unless that person was, at the time of such designation, holding a Federal office the
appointment to which was subject to the advice and consent of the United States Senate.
Subsec. (g)(1). Pub. L. 97–304, §4(a)(5)(B), substituted "An application for an exemption shall be
considered initially by the Secretary in the manner provided for in this subsection, and shall be considered by
the Committee for a final determination under subsection (h) after a report is made pursuant to paragraph (5)"
for "An application for an exemption shall be considered initially by a review board in the manner provided in
this subsection, and shall be considered by the Endangered Species Committee for a final determination under
subsection (h) after a report is made by the review board".
Subsec. (g)(2)(A). Pub. L. 97–304, §4(a)(5)(C)(i), substituted "An exemption applicant shall submit a
written application to the Secretary, in a form prescribed under subsection (f), not later than 90 days after the
completion of the consultation process; except that, in the case of any agency action involving a permit or
license applicant, such application shall be submitted not later than 90 days after the date on which the Federal
agency concerned takes final agency action with respect to the issuance of the permit or license" for "An
exemption applicant shall submit a written application to the Secretary, in a form prescribed under subsection
(f) of this section, not later than 90 days after the completion of the consultation process; or, in the case of any
agency action involving a permit or license applicant, not later than 90 days after the date on which the
Federal agency concerned takes final agency action, for purposes of chapter 7 of title 5, with respect to the
issuance of the permit or license" and inserted provision that, "For purposes of the preceding sentence, the
term 'final agency action' means (i) a disposition by an agency with respect to the issuance of a permit or
license that is subject to administrative review, whether or not such disposition is subject to judicial review; or
(ii) if administrative review is sought with respect to such disposition, the decision resulting after such
review."
Subsec. (g)(2)(B). Pub. L. 97–304, §4(a)(5)(C)(ii), inserted "(i)" after "the Secretary shall promptly", struck
out "to the review board to be established under paragraph (3) and" after "individuals to be appointed" in cl.
(i) as so designated, and added cl. (ii).
Subsec. (g)(3). Pub. L. 97–304, §4(a)(5)(D), (E), redesignated par. (5) as (3) and substituted provisions
directing the Secretary, within 20 days after the receipt of an application for exemption, or within such other
period of time as is mutually agreeable to the exemption applicant and the Secretary, to (A) determine that the
Federal agency concerned and the exemption applicant have (i) carried out the consultation responsibilities
described in subsection (a) of this section in good faith and made a reasonable and responsible effort to
develop and fairly consider modifications or reasonable and prudent alternatives to the proposed agency action
which would not violate subsection (a)(2) of this section, (ii) conducted any biological assessment required by
subsection (c) of this section, and (iii) to the extent determinable within the time provided herein, refrained
from making any irreversible or irretrievable commitment of resources prohibited by subsection (d) of this
section, or (B) deny the application for exemption because the Federal agency concerned or the exemption
applicant have not met the requirements set forth in subparagraph (A)(i), (ii), and (iii), and providing that the
denial of an application under subparagraph (B) shall be considered final agency action for purposes of
chapter 7 of title 5, for provisions placing upon the review board appointed under former par. (3) the duty to
make a full review of the consultation carried out under subsection (a)(2) of this section, and within 60 days
after its appointment or within such longer time as was mutually agreed upon between the exemption
applicant and the Secretary, to make a determination, by a majority vote, (A) whether an irresolvable conflict
existed and (B) whether the Federal agency concerned and such exemption applicant had (i) carried out its
consultation responsibilities as described in subsection (a) of this section in good faith and made a reasonable
and responsible effort to develop and fairly consider modifications or reasonable and prudent alternatives to
the proposed agency action which would not violate subsection (a)(2) of this section, (ii) conducted any
biological assessment required of it by subsection (c) of this section, and (iii) refrained from making any
irreversible or irretrievable commitment of resources prohibited by subsection (d) of this section, and
providing that any determination by the review board that an irresolvable conflict did not exist or that the
Federal agency concerned or the exemption applicant had not met its respective requirements under subclause
(i), (ii), or (iii) was to be considered final agency action for purposes of chapter 7 of title 5. Former par. (3),
providing for the establishment and functions of a review board to consider applications for exemptions and to
submit reports to the Endangered Species Committee, was struck out.
Subsec. (g)(4). Pub. L. 97–304, §4(a)(5)(D), (F), redesignated par. (6) as (4) and substituted "If the
Secretary determines that the Federal agency concerned and the exemption applicant have met the
requirements set forth in paragraph (3)(A)(i), (ii), and (iii) he shall, in consultation with the Members of the
Committee, hold a hearing on the application for exemption in accordance with sections 554, 555, and 556
(other than subsection (b)(1) and (2) thereof) of title 5 and prepare the report to be submitted pursuant to
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paragraph (5)" for "If the review board determines that an irresolvable conflict exists and makes positive
determinations under subclauses (i), (ii), and (iii) of paragraph (5), it shall proceed to prepare the report to be
submitted under paragraph (7)". Former par. (4), directing the Secretary to submit the application to the review
board immediately after its appointment under paragraph (3), and to submit to the review board, in writing, his
views and recommendations with respect to the application within 60 days after receiving a copy of any
application under paragraph (2), was struck out.
Subsec. (g)(5). Pub. L. 97–304, §4(a)(5)(G), redesignated par. (7) as (5) and substituted "Within 140 days
after making the determinations under paragraph (3) or within such other period of time as is mutually
agreeable to the exemption applicant and the Secretary, the Secretary shall submit" for "Within 180 days after
making the determinations under paragraph (6), the review board shall submit" in the provisions preceding
subpar. (A), and added subpar. (D). Former par. (5) redesignated (3) and amended.
Subsec. (g)(6). Pub. L. 97–304, §4(a)(5)(H), redesignated par. (8) as (6). Former par. (6) redesignated (4)
and amended.
Subsec. (g)(7). Pub. L. 97–304, §4(a)(5)(I), redesignated par. (10) as (7) and substituted "Upon request of
the Secretary, the head of any Federal agency is authorized to detail, on a nonreimbursable basis, any of the
personnel of such agency to the Secretary to assist him in carrying out his duties under this section" for "Upon
request of a review board, the head of any Federal agency is authorized to detail, on a nonreimbursable basis,
any of the personnel of such agency to the review board to assist it in carry out its duties under this section".
Former par. (7) redesignated (5) and amended.
Subsec. (g)(8). Pub. L. 97–304, §4(a)(5)(J), redesignated par. (12) as (8) and substituted "records resulting
from activities pursuant to this subsection" for "records of review boards". Former par. (8) redesignated (6).
Subsec. (g)(9). Pub. L. 97–304, §4(a)(5)(D), struck out par. (9) which had provided that the review board, in
carrying out its duties, could (A) sit and act at such times and places, take such testimony, and receive such
evidence, as the review board deemed advisable, (B) subject to the Privacy Act of 1974 [5 U.S.C. 552a],
request of any Federal agency or applicant information necessary to enable it to carry out such duties, and
upon such request the head of such Federal agency would furnish such information to the review board, and
(C) use the United States mails in the same manner and upon the same conditions as a Federal agency.
Subsec. (g)(10). Pub. L. 97–304, §4(a)(5)(I), redesignated par. (10) as (7).
Subsec. (g)(11). Pub. L. 97–304, §4(a)(5)(D), struck out par. (11) which had provided that the Administrator
of the General Services Administration provide to a review board, on a reimbursable basis, such
administrative support services as the review board requested.
Subsec. (g)(12). Pub. L. 97–304, §4(a)(5)(J), redesignated par. (12) as (8).
Subsec. (h)(1). Pub. L. 97–304, §4(a)(6), substituted "within 30 days after receiving the report of the
Secretary pursuant to subsection (g)(5)" for "within 90 days of receiving the report of the review board under
subsection (g)(7)" in provisions preceding subpar. (A), substituted "report of the Secretary, the record of the
hearing held under subsection (g)(4) and on such other testimony" for "report of the review board and on such
other testimony" in subpar. (A) preceding cl. (i), and added cl. (iv).
Subsec. (o). Pub. L. 97–304, §4(a)(7), substituted "Notwithstanding sections 1533(d) and 1538(a)(1)(B) and
(C) of this title or any regulation promulgated to implement either such section (1) any action for which an
exemption is granted under subsection (h) shall not be considered to be a taking of any endangered species or
threatened species with respect to any activity which is necessary to carry out such action; and (2) any taking
that is in compliance with the terms and conditions specified in a written statement provided under subsection
(b)(4)(iii) shall not be considered to be a taking of the species concerned" for "Notwithstanding sections
1533(d) and 1538(a) of this title or any regulations promulgated pursuant to such sections, any action for
which an exemption is granted under subsection (h) of this section shall not be considered a taking of any
endangered or threatened species with respect to any activity which is necessary to carry out such action".
Subsec. (q). Pub. L. 97–304, §8(b), struck out subsec. (q) which authorized appropriations of $600,000 for
each of fiscal years 1979, 1980, 1981, and 1982 in carrying out functions under subsecs. (e), (f), (g), and (h) of
this section. See section 1542(c) of this title.
1979—Subsec. (a). Pub. L. 96–159, §4(1), designated existing provisions as par. (1); struck out third
sentence requirement that each Federal agency, in consultation with and with the assistance of the Secretary,
insure that any action authorized, funded, or carried out by such agency (referred to as "agency action") did
not jeopardize the continued existence of any endangered species or threatened species or result in the
destruction or adverse modification of habitat of such species which was determined by the Secretary, after
consultation as appropriate with the affected States, to be critical, unless the agency was granted an exemption
for such action by the Committee pursuant to subsec. (h) of this section; and added pars. (2) and (3),
incorporating former third sentence provisions.
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Subsec. (b). Pub. L. 96–159, §4(2), (3), substituted "he believes would not violate subsection (a)(2) of this
section and" for "he believes would avoid jeopardizing the continued existence of any endangered or
threatened species or adversely modifying the critical habitat of such species, and which" before "can be
taken" and introductory "subsection (a)(2) of this section" for "subsection (a) of this section".
Subsec. (c). Pub. L. 96–159, §4(3), (4), substituted "subsection (a)(2)" for "subsec. (a)" of this section,
designated existing provisions as so amended par. (1), and added par. (2).
Subsec. (d). Pub. L. 96–159, §4(3), (5), substituted introductory words "subsection (a)(2)" for "subsection
(a)" of this section and "alternative measures which would not violate subsection (a)(2)" for "alternative
measures which would avoid jeopardizing the continued existence of any endangered or threatened species or
adversely modifying or destroying the critical habitat of any such species".
Subsecs. (e)(2), (f). Pub. L. 96–159, §4(3), substituted "subsection (a)(2)" for "subsection (a)".
Subsec. (g)(1). Pub. L. 96–159, §4(3), (6), substituted in first sentence "subsection (a)(2)" for "subsection
(a)" of this section and "agency action would violate subsection (a)(2)" for "agency action may jeopardize the
continued existence of any endangered or threatened species or destroy or adversely modify the critical habitat
of such species".
Subsec. (g)(2)(A). Pub. L. 96–159, §4(7), required exemption applicant, to submit a written application, in
the case of any agency action involving a permit or license applicant, not later than 90 days after the date on
which the Federal agency concerned takes final agency action, for purposes of chapter 7 of Title 5, with
respect to the issuance of the permit or license.
Subsec. (g)(3). Pub. L. 96–159, §4(8), added subpar. (B), and redesignated former subpar. (B) as (C).
Subsec. (g)(5). Pub. L. 96–159, §4(3), (9), substituted in introductory text and cl. (i) "subsection (a)(2)" for
"subsection (a)" of this section; redesignated as cls. (A) and (B) former cls. (i) and (ii); inserted in cl. (B) "the
Federal agency concerned and" before "such exemption applicant"; redesignated as subcls. (i) to (iii) former
subcls. (A) to (C); substituted in subcl. (i) "agency action which would not violate subsection (a)(2) of this
section" for "agency action which will avoid jeopardizing the continued existence of an endangered or
threatened species or result in the adverse modification or destruction of a critical habitat"; and substituted in
last sentence "the Federal agency concerned or the exemption applicant has not met its respective
requirements under subclause (i), (ii), or (iii)" for "the exemption applicant has not met the requirements of
subparagraph (A), (B), or (C)" preceding "shall be considered final agency action".
Subsec. (g)(6). Pub. L. 96–159, §4(10), substituted "subclauses (i), (ii), and (iii)" for "subparagraphs (A),
(B), and (C)" of paragraph (5).
Subsec. (h)(1). Pub. L. 96–159, §4(3), substituted "subsection (a)(2)" for "subsection (a)" of this section.
Subsec. (h)(2). Pub. L. 96–159, §4(11), in subpar. (A), substituted "paragraph (1)" for "subsection (h) of this
section", inserted cl. (i), incorporated existing provisions in text designated cl. (ii), inserting thereto "with
respect to such agency action"; in subpar. (B), incorporated existing provision in cl. (i), inserted findings
provision respecting the extinction of a species that was not: the subject of consultation or identified in any
biological assessment under subsec. (a)(2) or (c) of this section, added cl. (ii), deleted prior requirement for a
Committee determination within 30 days of the Secretary's finding that an exemption would result in
extinction of the species whether to grant an exemption for the agency notwithstanding such finding, and
superseded the same with requirement that the Committee meet with respect to the matter within 30 days after
the date of such a finding.
Subsec. (m). Pub. L. 96–159, §4(3), substituted "subsection (a)(2)" for "subsection (a)" of this section.
Subsec. (q). Pub. L. 96–159, §4(12), authorized appropriations of $600,000 for fiscal years 1980 through
1982, and deleted appropriations authorization of $300,000 for period beginning Oct. 1, 1979, and ending
Mar. 3, 1980, and requirement that the Chairman of the Committee report to the Congress before end of fiscal
year 1979 with respect to adequacy of the budget authority.
1978—Subsec. (a). Pub. L. 95–632 designated existing provision as subsec. (a), inserted reference to
agency action, substituted "adverse modification" for "modification", and provided for the grant of an
exemption for agency action by the Endangered Species Committee pursuant to subsec. (h) of this section.
Subsecs. (b) to (q). Pub. L. 95–632 added subsecs. (b) to (q).
D
A
A
Pub. L. 105–18, title II, §3003, June 12, 1997, 111 Stat. 176, provided that:
"(a) C
C
.—As provided by regulations issued under the Endangered Species
Act (16 U.S.C. 1531 et seq.) for emergency situations, formal consultation or conferencing under section 7(a)
(2) or section 7(a)(4) of the Act [16 U.S.C. 1536(a)(2), (4)] for any action authorized, funded or carried out by
any Federal agency to repair a Federal or non-Federal flood control project, facility or structure may be
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deferred by the Federal agency authorizing, funding or carrying out the action, if the agency determines that
the repair is needed to respond to an emergency causing an imminent threat to human lives and property in
1996 or 1997. Formal consultation or conferencing shall be deferred until the imminent threat to human lives
and property has been abated. For purposes of this section, the term repair shall include preventive and
remedial measures to restore the project, facility or structure to remove an imminent threat to human lives and
property.
"(b) R
P
M
.—Any reasonable and prudent measures specified under section
7 of the Endangered Species Act (16 U.S.C. 1536) to minimize the impact of an action taken under this
section shall be related both in nature and extent to the effect of the action taken to repair the flood control
project, facility or structure."
T
C
S O
Pub. L. 99–625, §1, Nov. 7, 1986, 100 Stat. 3500, provided that:
"(a) D
.—For purposes of this section—
"(1) The term 'Act' means the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).
"(2) The term 'agency action' has the meaning given that term in section 7(a)(2) of the Act [16 U.S.C.
1536(a)(2)].
"(3) The term 'experimental population' means the population of sea otters provided for under a plan
developed under subsection (b).
"(4) The phrase 'parent population' means the population of sea otters existing in California on the date
on which proposed regulations setting forth a proposed plan under subsection (b) are issued.
"(5) The phrase 'prospective action' refers to any prospective agency action that—
"(A) may affect either the experimental population or the parent population; and
"(B) has evolved to the point where meaningful consultation under section 7(a)(2) or (3) of the
Act [16 U.S.C. 1536(a)(2), (3)] can take place.
"(6) The term 'Secretary' means the Secretary of the Interior.
"(7) The term 'Service' means the United States Fish and Wildlife Service.
"(b) P
S
.—The Secretary may develop and implement, in accordance with this section, a
plan for the relocation and management of a population of California sea otters from the existing range of the
parent population to another location. The plan, which must be developed by regulation and administered by
the Service in cooperation with the appropriate State agency, shall include the following:
"(1) The number, age, and sex of sea otters proposed to be relocated.
"(2) The manner in which the sea otters will be captured, translocated, released, monitored, and
protected.
"(3) The specification of a zone (hereinafter referred to as the 'translocation zone') to which the
experimental population will be relocated. The zone must have appropriate characteristics for furthering the
conservation of the species.
"(4) The specification of a zone (hereinafter referred to as the 'management zone') that—
"(A) surrounds the translocation zone; and
"(B) does not include the existing range of the parent population or adjacent range where
expansion is necessary for the recovery of the species.
The purpose of the management zone is to (i) facilitate the management of sea otters and the
containment of the experimental population within the translocation zone, and (ii) to prevent, to the
maximum extent feasible, conflict with other fishery resources within the management zone by the
experimental population. Any sea otter found within the management zone shall be treated as a
member of the experimental population. The Service shall use all feasible non-lethal means and
measures to capture any sea otter found within the management zone and return it to either the
translocation zone or to the range of the parent population.
"(5) Measures, including an adequate funding mechanism, to isolate and contain the experimental
population.
"(6) A description of the relationship of the implementation of the plan to the status of the species
under the Act and to determinations of the Secretary under section 7 of the Act [16 U.S.C. 1536].
"(c) S
M
E
P
.—(1) Any member of the experimental
population shall be treated while within the translocation zone as a threatened species for purposes of the Act,
except that—
"(A) section 7 of the Act [16 U.S.C. 1536] shall only apply to agency actions that—
"(i) are undertaken within the translocation zone,
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"(ii) are not defense-related agency actions, and
"(iii) are initiated after the date of the enactment of this section [Nov. 7, 1986]; and
"(B) with respect to defense-related actions within the translocation zone, members of the experimental
population shall be treated as members of a species that is proposed to be listed under section 4 of the Act
[16 U.S.C. 1533].
For purposes of this paragraph, the term 'defense-related agency action' means an agency action proposed to
be carried out directly by a military department.
"(2) For purposes of section 7 of the Act [16 U.S.C. 1536], any member of the experimental population
shall be treated while within the management zone as a member of a species that is proposed to be listed under
section 4 of the Act [16 U.S.C. 1533]. Section 9 of the Act [16 U.S.C. 1538] applies to members of the
experimental population; except that any incidental taking of such a member during the course of an otherwise
lawful activity within the management zone, may not be treated as a violation of the Act or the Marine
Mammal Protection Act of 1972 [16 U.S.C. 1361 et seq.].
"(d) I
P
.—The Secretary shall implement the plan developed under subsection (b)—
"(1) after the Secretary provides an opinion under section 7(b) of the Act [16 U.S.C. 1536(b)]
regarding each prospective action for which consultation was initiated by a Federal agency or requested by
a prospective permit or license applicant before April 1, 1986; or
"(2) if no consultation under section 7(a)(2) or (3) regarding any prospective action is initiated or
requested by April 1, 1986, at any time after that date.
"(e) C
E
O
.—A Federal agency shall promptly consult with the Secretary,
under section 7(a)(3) of the Act [16 U.S.C. 1536(a)(3)], at the request of, and in cooperation with, any permit
or license applicant regarding any prospective action. The time limitations applicable to consultations under
section 7(a)(2) of the Act apply to consultations under the preceding sentence. In applying section 7(b)(3)(B)
with respect to an opinion on a prospective action that is provided after consultation under section 7(a)(3), that
opinion shall be treated as the opinion issued after consultation under section 7(a)(2) unless the Secretary
finds, after notice and opportunity for comment in accordance with section 553 of title 5, United States Code,
that a significant change has been made with respect to the action or that a significant change has occurred
regarding the information used during the initial consultation. The interested party may petition the Secretary
to make a finding under the preceding sentence. The Secretary may implement any reasonable and prudent
alternatives specified in any opinion referred to in this subsection through appropriate agreements with any
such Federal agency, prospective permit or license applicant, or other interested party.
"(f) C
.—For purposes of implementing the plan, no act by the Service, an authorized State
agency, or an authorized agent of the Service or such an agency with respect to a sea otter that is necessary to
effect the relocation or management of any sea otter under the plan may be treated as a violation of any
provision of the Act or the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 et seq.)."
§1537. International cooperation
(a) Financial assistance
As a demonstration of the commitment of the United States to the worldwide protection of
endangered species and threatened species, the President may, subject to the provisions of section
1306 of title 31, use foreign currencies accruing to the United States Government under the Food for
Peace Act [7 U.S.C. 1691 et seq.] or any other law to provide to any foreign country (with its
consent) assistance in the development and management of programs in that country which the
Secretary determines to be necessary or useful for the conservation of any endangered species or
threatened species listed by the Secretary pursuant to section 1533 of this title. The President shall
provide assistance (which includes, but is not limited to, the acquisition, by lease or otherwise, of
lands, waters, or interests therein) to foreign countries under this section under such terms and
conditions as he deems appropriate. Whenever foreign currencies are available for the provision of
assistance under this section, such currencies shall be used in preference to funds appropriated under
the authority of section 1542 of this title.
(b) Encouragement of foreign programs
In order to carry out further the provisions of this chapter, the Secretary, through the Secretary of
State, shall encourage—
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(1) foreign countries to provide for the conservation of fish or wildlife and plants including
endangered species and threatened species listed pursuant to section 1533 of this title;
(2) the entering into of bilateral or multilateral agreements with foreign countries to provide for
such conservation; and
(3) foreign persons who directly or indirectly take fish or wildlife or plants in foreign countries
or on the high seas for importation into the United States for commercial or other purposes to
develop and carry out with such assistance as he may provide, conservation practices designed to
enhance such fish or wildlife or plants and their habitat.
(c) Personnel
After consultation with the Secretary of State, the Secretary may—
(1) assign or otherwise make available any officer or employee of his department for the
purpose of cooperating with foreign countries and international organizations in developing
personnel resources and programs which promote the conservation of fish or wildlife or plants;
and
(2) conduct or provide financial assistance for the educational training of foreign personnel, in
this country or abroad, in fish, wildlife, or plant management, research and law enforcement and to
render professional assistance abroad in such matters.
(d) Investigations
After consultation with the Secretary of State and the Secretary of the Treasury, as appropriate, the
Secretary may conduct or cause to be conducted such law enforcement investigations and research
abroad as he deems necessary to carry out the purposes of this chapter.
(Pub. L. 93–205, §8, Dec. 28, 1973, 87 Stat. 892; Pub. L. 96–159, §5, Dec. 28, 1979, 93 Stat. 1228;
Pub. L. 110–246, title III, §3001(b)(1)(A), (2)(N), June 18, 2008, 122 Stat. 1820.)
R
T
The Food for Peace Act, referred to in subsec. (a), is act July 10, 1954, ch. 469, 68 Stat. 454, which is
classified generally to chapter 41 (§1691 et seq.) of Title 7, Agriculture. For complete classification of this Act
to the Code, see Short Title note set out under section 1691 of Title 7 and Tables.
This chapter, referred to in subsecs. (b) and (d), was in the original "this Act", meaning Pub. L. 93–205,
Dec. 28, 1973, 81 Stat. 884, known as the Endangered Species Act of 1973, which is classified principally to
this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1531
of this title and Tables.
C
In subsec. (a), "section 1306 of title 31" substituted for "section 1415 of the Supplemental Appropriation
Act, 1953 (31 U.S.C. 724)" on authority of Pub. L. 97–258, §4(b), Sept. 13, 1982, 96 Stat. 1067, the first
section of which enacted Title 31, Money and Finance.
A
2008—Subsec. (a). Pub. L. 110–246 substituted "Food for Peace Act" for "Agricultural Trade Development
and Assistance Act of 1954".
1979—Subsec. (b)(1). Pub. L. 96–159, §5(1), encouraged conservation of plants.
Subsec. (b)(3). Pub. L. 96–159, §5(2), encouraged conservation practices for enhancement of plants taken
for importation into the United States.
Subsec. (c)(1). Pub. L. 96–159, §5(3), made personnel available for plant conservation.
Subsec. (e). Pub. L. 96–159, §5(4), struck out subsec. (e) relating to Convention implementation.
E
D
2008 A
Amendment by Pub. L. 110–246 effective May 22, 2008, see section 4(b) of Pub. L. 110–246, set out as an
Effective Date note under section 8701 of Title 7, Agriculture.
C
S T
;I
S
Pub. L. 101–162, title VI, §609, Nov. 21, 1989, 103 Stat. 1037, provided that:
"(a) The Secretary of State, in consultation with the Secretary of Commerce, shall, with respect to those
species of sea turtles the conservation of which is the subject of regulations promulgated by the Secretary of
Commerce on June 29, 1987—
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"(1) initiate negotiations as soon as possible for the development of bilateral or multilateral agreements
with other nations for the protection and conservation of such species of sea turtles;
"(2) initiate negotiations as soon as possible with all foreign governments which are engaged in, or
which have persons or companies engaged in, commercial fishing operations which, as determined by the
Secretary of Commerce, may affect adversely such species of sea turtles, for the purpose of entering into
bilateral and multilateral treaties with such countries to protect such species of sea turtles;
"(3) encourage such other agreements to promote the purposes of this section with other nations for the
protection of specific ocean and land regions which are of special significance to the health and stability of
such species of sea turtles;
"(4) initiate the amendment of any existing international treaty for the protection and conservation of
such species of sea turtles to which the United States is a party in order to make such treaty consistent with
the purposes and policies of this section; and
"(5) provide to the Congress by not later than one year after the date of enactment of this section [Nov.
21, 1989]—
"(A) a list of each nation which conducts commercial shrimp fishing operations within the
geographic range of distribution of such sea turtles;
"(B) a list of each nation which conducts commercial shrimp fishing operations which may affect
adversely such species of sea turtles; and
"(C) a full report on—
"(i) the results of his efforts under this section; and
"(ii) the status of measures taken by each nation listed pursuant to paragraph (A) or (B) to
protect and conserve such sea turtles.
"(b)(1) I G
.—The importation of shrimp or products from shrimp which have been harvested with
commercial fishing technology which may affect adversely such species of sea turtles shall be prohibited not
later than May 1, 1991, except as provided in paragraph (2).
"(2) C
P
.—The ban on importation of shrimp or products from shrimp pursuant to
paragraph (1) shall not apply if the President shall determine and certify to the Congress not later than May 1,
1991, and annually thereafter that—
"(A) the government of the harvesting nation has provided documentary evidence of the adoption of a
regulatory program governing the incidental taking of such sea turtles in the course of such harvesting that
is comparable to that of the United States; and
"(B) the average rate of that incidental taking by the vessels of the harvesting nation is comparable to
the average rate of incidental taking of sea turtles by United States vessels in the course of such harvesting;
or
"(C) the particular fishing environment of the harvesting nation does not pose a threat of the incidental
taking of such sea turtles in the course of such harvesting."
E
O
N . 11911
Ex. Ord. No. 11911, Apr. 13, 1976, 41 F.R. 15683, which provided that for purposes of the Convention on
International Trade in Endangered Species of Wild Fauna and Flora the Secretary of the Interior be designated
as the Management Authority and established the Endangered Species Scientific Authority as the Scientific
Authority, with the Secretary of the Interior designated to act on behalf of the United States in all regards as
required by the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere, was
revoked by Ex. Ord. No. 12608, Sept. 9, 1987, 52 F.R. 34617.
D
A
R
C
C
E
S
U
S
Memorandum of the President of the United States, Dec. 19, 1990, 56 F.R. 357, provided:
Memorandum for the Secretary of State
By virtue of the authority vested in me by the Constitution and laws of the United States of America,
including section 609 of the Departments of Commerce, Justice, and State, the Judiciary, and Related
Agencies Appropriations Act, 1990 (Public Law 101–162) [set out above], and section 301 of title 3 of the
United States Code, I hereby delegate to the Secretary of State the functions vested in me by section 609(b) of
that Act. The authority delegated by this memorandum may be further redelegated within the Department of
State.
The Secretary of State is authorized and directed to publish this memorandum in the Federal Register.
G
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B
.
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§1537a. Convention implementation
(a) Management Authority and Scientific Authority
The Secretary of the Interior (hereinafter in this section referred to as the "Secretary") is
designated as the Management Authority and the Scientific Authority for purposes of the Convention
and the respective functions of each such Authority shall be carried out through the United States
Fish and Wildlife Service.
(b) Management Authority functions
The Secretary shall do all things necessary and appropriate to carry out the functions of the
Management Authority under the Convention.
(c) Scientific Authority functions; determinations
(1) The Secretary shall do all things necessary and appropriate to carry out the functions of the
Scientific Authority under the Convention.
(2) The Secretary shall base the determinations and advice given by him under Article IV of the
Convention with respect to wildlife upon the best available biological information derived from
professionally accepted wildlife management practices; but is not required to make, or require any
State to make, estimates of population size in making such determinations or giving such advice.
(d) Reservations by the United States under Convention
If the United States votes against including any species in Appendix I or II of the Convention and
does not enter a reservation pursuant to paragraph (3) of Article XV of the Convention with respect
to that species, the Secretary of State, before the 90th day after the last day on which such a
reservation could be entered, shall submit to the Committee on Merchant Marine and Fisheries of the
House of Representatives, and to the Committee on the Environment and Public Works of the Senate,
a written report setting forth the reasons why such a reservation was not entered.
(e) Wildlife preservation in Western Hemisphere
(1) The Secretary of the Interior (hereinafter in this subsection referred to as the "Secretary"), in
cooperation with the Secretary of State, shall act on behalf of, and represent, the United States in all
regards as required by the Convention on Nature Protection and Wildlife Preservation in the Western
Hemisphere (56 Stat. 1354, T.S. 982, hereinafter in this subsection referred to as the "Western
Convention"). In the discharge of these responsibilities, the Secretary and the Secretary of State shall
consult with the Secretary of Agriculture, the Secretary of Commerce, and the heads of other
agencies with respect to matters relating to or affecting their areas of responsibility.
(2) The Secretary and the Secretary of State shall, in cooperation with the contracting parties to the
Western Convention and, to the extent feasible and appropriate, with the participation of State
agencies, take such steps as are necessary to implement the Western Convention. Such steps shall
include, but not be limited to—
(A) cooperation with contracting parties and international organizations for the purpose of
developing personnel resources and programs that will facilitate implementation of the Western
Convention;
(B) identification of those species of birds that migrate between the United States and other
contracting parties, and the habitats upon which those species depend, and the implementation of
cooperative measures to ensure that such species will not become endangered or threatened; and
(C) identification of measures that are necessary and appropriate to implement those provisions
of the Western Convention which address the protection of wild plants.
(3) No later than September 30, 1985, the Secretary and the Secretary of State shall submit a report
to Congress describing those steps taken in accordance with the requirements of this subsection and
identifying the principal remaining actions yet necessary for comprehensive and effective
implementation of the Western Convention.
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(4) The provisions of this subsection shall not be construed as affecting the authority, jurisdiction,
or responsibility of the several States to manage, control, or regulate resident fish or wildlife under
State law or regulations.
(Pub. L. 93–205, §8A, as added Pub. L. 96–159, §6(a)(1), Dec. 28, 1979, 93 Stat. 1228; amended
Pub. L. 97–304, §5[(a)], Oct. 13, 1983, 96 Stat. 1421.)
A
1982—Subsec. (c). Pub. L. 97–304, §5[(a)](1), designated existing provisions as par. (1) and added par. (2).
Subsec. (d). Pub. L. 97–304, §5[(a)](2), substituted provisions relating to reservations by the United States
under the Convention for provisions which had established an International Convention Advisory Commission
and had provided for its membership, staffing, and operation.
Subsec. (e). Pub. L. 97–304, §5[(a)](3), substituted provisions implementing the Convention on Nature
Protection and Wildlife Preservation in the Western Hemisphere for provisions which had provided that the
President shall designate those agencies of the Federal Government that shall act on behalf of, and represent,
the United States in all regards as required by the Convention on Nature Protection and Wildlife Preservation
in the Western Hemisphere.
E
D
1982 A
Pub. L. 97–304, §5(b), Oct. 13, 1982, 96 Stat. 1422, provided that: "The amendment made by paragraph (1)
of subsection (a) [amending this section] shall take effect January 1, 1981."
A
H
C
M
M
F
Committee on Merchant Marine and Fisheries of House of Representatives abolished and its jurisdiction
transferred by House Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995. Committee on Merchant
Marine and Fisheries of House of Representatives treated as referring to Committee on Resources of House of
Representatives in case of provisions relating to fisheries, wildlife, international fishing agreements, marine
affairs (including coastal zone management) except for measures relating to oil and other pollution of
navigable waters, or oceanography by section 1(b)(3) of Pub. L. 104–14, set out as a note preceding section 21
of Title 2, The Congress. Committee on Resources of House of Representatives changed to Committee on
Natural Resources of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress,
Jan. 5, 2007.
E
S
S
A
;I
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Pub. L. 96–159, §6(b), Dec. 28, 1979, 93 Stat. 1230, provided that until such time as the Chairman,
Members, and Executive Secretary of the International Convention Advisory Commission are appointed, but
not later than 90 days after Dec. 28, 1979, the functions of the Commission be carried out by the Endangered
Species Scientific Authority as established by Ex. Ord. No. 11911, formerly set out as a note under section
1537 of this title, with staff and administrative support being provided by the Secretary of the Interior as set
forth in that Executive Order.
§1538. Prohibited acts
(a) Generally
(1) Except as provided in sections 1535(g)(2) and 1539 of this title, with respect to any
endangered species of fish or wildlife listed pursuant to section 1533 of this title it is unlawful for
any person subject to the jurisdiction of the United States to—
(A) import any such species into, or export any such species from the United States;
(B) take any such species within the United States or the territorial sea of the United States;
(C) take any such species upon the high seas;
(D) possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any such species
taken in violation of subparagraphs (B) and (C);
(E) deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means
whatsoever and in the course of a commercial activity, any such species;
(F) sell or offer for sale in interstate or foreign commerce any such species; or
(G) violate any regulation pertaining to such species or to any threatened species of fish or
wildlife listed pursuant to section 1533 of this title and promulgated by the Secretary pursuant to
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authority provided by this chapter.
(2) Except as provided in sections 1535(g)(2) and 1539 of this title, with respect to any
endangered species of plants listed pursuant to section 1533 of this title, it is unlawful for any person
subject to the jurisdiction of the United States to—
(A) import any such species into, or export any such species from, the United States;
(B) remove and reduce to possession any such species from areas under Federal jurisdiction;
maliciously damage or destroy any such species on any such area; or remove, cut, dig up, or
damage or destroy any such species on any other area in knowing violation of any law or
regulation of any State or in the course of any violation of a State criminal trespass law;
(C) deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means
whatsoever and in the course of a commercial activity, any such species;
(D) sell or offer for sale in interstate or foreign commerce any such species; or
(E) violate any regulation pertaining to such species or to any threatened species of plants listed
pursuant to section 1533 of this title and promulgated by the Secretary pursuant to authority
provided by this chapter.
(b) Species held in captivity or controlled environment
(1) The provisions of subsections (a)(1)(A) and (a)(1)(G) of this section shall not apply to any fish
or wildlife which was held in captivity or in a controlled environment on (A) December 28, 1973, or
(B) the date of the publication in the Federal Register of a final regulation adding such fish or
wildlife species to any list published pursuant to subsection (c) of section 1533 of this title: Provided,
That such holding and any subsequent holding or use of the fish or wildlife was not in the course of a
commercial activity. With respect to any act prohibited by subsections (a)(1)(A) and (a)(1)(G) of this
section which occurs after a period of 180 days from (i) December 28, 1973, or (ii) the date of
publication in the Federal Register of a final regulation adding such fish or wildlife species to any list
published pursuant to subsection (c) of section 1533 of this title, there shall be a rebuttable
presumption that the fish or wildlife involved in such act is not entitled to the exemption contained in
this subsection.
(2)(A) The provisions of subsection (a)(1) shall not apply to—
(i) any raptor legally held in captivity or in a controlled environment on November 10, 1978; or
(ii) any progeny of any raptor described in clause (i);
until such time as any such raptor or progeny is intentionally returned to a wild state.
(B) Any person holding any raptor or progeny described in subparagraph (A) must be able to
demonstrate that the raptor or progeny does, in fact, qualify under the provisions of this paragraph,
and shall maintain and submit to the Secretary, on request, such inventories, documentation, and
records as the Secretary may by regulation require as being reasonably appropriate to carry out the
purposes of this paragraph. Such requirements shall not unnecessarily duplicate the requirements of
other rules and regulations promulgated by the Secretary.
(c) Violation of Convention
(1) It is unlawful for any person subject to the jurisdiction of the United States to engage in any
trade in any specimens contrary to the provisions of the Convention, or to possess any specimens
traded contrary to the provisions of the Convention, including the definitions of terms in article I
thereof.
(2) Any importation into the United States of fish or wildlife shall, if—
(A) such fish or wildlife is not an endangered species listed pursuant to section 1533 of this title
but is listed in Appendix II to the Convention,
(B) the taking and exportation of such fish or wildlife is not contrary to the provisions of the
Convention and all other applicable requirements of the Convention have been satisfied,
(C) the applicable requirements of subsections (d), (e), and (f) of this section have been
satisfied, and
(D) such importation is not made in the course of a commercial activity,
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be presumed to be an importation not in violation of any provision of this chapter or any
regulation issued pursuant to this chapter.
(d) Imports and exports
(1) In general
It is unlawful for any person, without first having obtained permission from the Secretary, to
engage in business—
(A) as an importer or exporter of fish or wildlife (other than shellfish and fishery products
which (i) are not listed pursuant to section 1533 of this title as endangered species or threatened
species, and (ii) are imported for purposes of human or animal consumption or taken in waters
under the jurisdiction of the United States or on the high seas for recreational purposes) or
plants; or
(B) as an importer or exporter of any amount of raw or worked African elephant ivory.
(2) Requirements
Any person required to obtain permission under paragraph (1) of this subsection shall—
(A) keep such records as will fully and correctly disclose each importation or exportation of
fish, wildlife, plants, or African elephant ivory made by him and the subsequent disposition
made by him with respect to such fish, wildlife, plants, or ivory;
(B) at all reasonable times upon notice by a duly authorized representative of the Secretary,
afford such representative access to his place of business, an opportunity to examine his
inventory of imported fish, wildlife, plants, or African elephant ivory and the records required
to be kept under subparagraph (A) of this paragraph, and to copy such records; and
(C) file such reports as the Secretary may require.
(3) Regulations
The Secretary shall prescribe such regulations as are necessary and appropriate to carry out the
purposes of this subsection.
(4) Restriction on consideration of value or amount of African elephant ivory imported or
exported
In granting permission under this subsection for importation or exportation of African elephant
ivory, the Secretary shall not vary the requirements for obtaining such permission on the basis of
the value or amount of ivory imported or exported under such permission.
(e) Reports
It is unlawful for any person importing or exporting fish or wildlife (other than shellfish and
fishery products which (1) are not listed pursuant to section 1533 of this title as endangered or
threatened species, and (2) are imported for purposes of human or animal consumption or taken in
waters under the jurisdiction of the United States or on the high seas for recreational purposes) or
plants to fail to file any declaration or report as the Secretary deems necessary to facilitate
enforcement of this chapter or to meet the obligations of the Convention.
(f) Designation of ports
(1) It is unlawful for any person subject to the jurisdiction of the United States to import into or
export from the United States any fish or wildlife (other than shellfish and fishery products which
(A) are not listed pursuant to section 1533 of this title as endangered species or threatened species,
and (B) are imported for purposes of human or animal consumption or taken in waters under the
jurisdiction of the United States or on the high seas for recreational purposes) or plants, except at a
port or ports designated by the Secretary of the Interior. For the purpose of facilitating enforcement
of this chapter and reducing the costs thereof, the Secretary of the Interior, with approval of the
Secretary of the Treasury and after notice and opportunity for public hearing, may, by regulation,
designate ports and change such designations. The Secretary of the Interior, under such terms and
conditions as he may prescribe, may permit the importation or exportation at nondesignated ports in
the interest of the health or safety of the fish or wildlife or plants, or for other reasons, if, in his
discretion, he deems it appropriate and consistent with the purpose of this subsection.
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(2) Any port designated by the Secretary 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 under paragraph (1) of this subsection until such time as the Secretary
otherwise provides.
(g) Violations
It is unlawful for any person subject to the jurisdiction of the United States to attempt to commit,
solicit another to commit, or cause to be committed, any offense defined in this section.
(Pub. L. 93–205, §9, Dec. 28, 1973, 87 Stat. 893; Pub. L. 95–632, §4, Nov. 10, 1978, 92 Stat. 3760;
Pub. L. 97–304, §9(b), Oct. 13, 1982, 96 Stat. 1426; Pub. L. 100–478, title I, §1006, title II, §2301,
Oct. 7, 1988, 102 Stat. 2308, 2321; Pub. L. 100–653, title IX, §905, Nov. 14, 1988, 102 Stat. 3835.)
R
T
This chapter, referred to in subsecs. (a)(1)(G), (2)(E), (c)(2), (e), and (f)(1), was in the original "this Act",
meaning Pub. L. 93–205, Dec. 28, 1973, 81 Stat. 884, known as the Endangered Species Act of 1973, which is
classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note
set out under section 1531 of this title and Tables.
Section 668cc–4 of this title, referred to in subsec. (f)(2), was repealed by Pub. L. 93–205, §14, Dec. 28,
1973, 87 Stat. 903.
A
1988—Subsec. (a)(2)(B). Pub. L. 100–478, §1006, amended subpar. (B) generally. Prior to amendment,
subpar. (B) read as follows: "remove and reduce to possession any such species from areas under Federal
jurisdiction;".
Subsec. (d). Pub. L. 100–478, §2301, amended subsec. (d) generally, revising and restating as pars. (1) to
(4) provisions of former pars. (1) to (3).
Subsec. (d)(1)(A). Pub. L. 100–653 inserted "or plants" after "purposes)".
1982—Subsec. (a)(2)(B) to (E). Pub. L. 97–304, §9(b)(1), added subpar. (B) and redesignated former
subpars. (B), (C), and (D) as (C), (D), and (E), respectively.
Subsec. (b)(1). Pub. L. 97–304, §9(b)(2), substituted "The provisions of subsections (a)(1)(A) and (a)(1)(G)
of this section shall not apply to any fish or wildlife which was held in captivity or in a controlled environment
on (A) December 28, 1973, or (B) the date of the publication in the Federal Register of a final regulation
adding such fish or wildlife species to any list published pursuant to subsection (c) of section 1533 of this title:
Provided, That such holding and any subsequent holding or use of the fish or wildlife was not in the course of
a commercial activity. With respect to any act prohibited by subsections (a)(1)(A) and (a)(1)(G) of this section
which occurs after a period of 180 days from (i) December 28, 1973, or (ii) the date of publication in the
Federal Register of a final regulation adding such fish or wildlife species to any list published pursuant to
subsection (c) of section 1533 of this title, there shall be a rebuttable presumption that the fish or wildlife
involved in such act is not entitled to the exemption contained in this subsection" for "The provisions of this
section shall not apply to any fish or wildlife held in captivity or in a controlled environment on December 28,
1973, if the purposes of such holding are not contrary to the purposes of this chapter; except that this
subsection shall not apply in the case of any fish or wildlife held in the course of a commercial activity. With
respect to any act prohibited by this section which occurs after a period of 180 days from December 28, 1973,
there shall be a rebuttable presumption that the fish or wildlife involved in such act was not held in captivity
or in a controlled environment on December 28, 1973".
Subsec. (b)(2)(A). Pub. L. 97–304, §9(b)(3), substituted "The provisions of subsection (a)(1) shall not apply
to" for "This section shall not apply to" in provisions preceding cl. (i).
1978—Subsec. (b). Pub. L. 95–632 designated existing provision as par. (1) and added par. (2).
H
A
W
P
W
Pub. L. 103–238, §17, Apr. 30, 1994, 108 Stat. 559, provided that:
"(a) L
A
.—In waters of the United States surrounding the State of Hawaii, it is lawful for
a person subject to the jurisdiction of the United States to approach, by any means other than an aircraft, no
closer than 100 yards to a humpback whale, regardless of whether the approach is made in waters designated
under section 222.31 of title 50, Code of Federal Regulations, as cow/calf waters.
"(b) T
L
E
C
R
.—Subsection (b) of section 222.31 of title
50, Code of Federal Regulations, shall cease to be in force and effect."
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T
S
U
S
For extension of territorial sea of United States, see Proc. No. 5928, set out as a note under section 1331 of
Title 43, Public Lands.
1 See
References in Text note below.
§1539. Exceptions
(a) Permits
(1) The Secretary may permit, under such terms and conditions as he shall prescribe—
(A) any act otherwise prohibited by section 1538 of this title for scientific purposes or to
enhance the propagation or survival of the affected species, including, but not limited to, acts
necessary for the establishment and maintenance of experimental populations pursuant to
subsection (j); or
(B) any taking otherwise prohibited by section 1538(a)(1)(B) of this title if such taking is
incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.
(2)(A) No permit may be issued by the Secretary authorizing any taking referred to in paragraph
(1)(B) unless the applicant therefor submits to the Secretary a conservation plan that specifies—
(i) the impact which will likely result from such taking;
(ii) what steps the applicant will take to minimize and mitigate such impacts, and the funding
that will be available to implement such steps;
(iii) what alternative actions to such taking the applicant considered and the reasons why such
alternatives are not being utilized; and
(iv) such other measures that the Secretary may require as being necessary or appropriate for
purposes of the plan.
(B) If the Secretary finds, after opportunity for public comment, with respect to a permit
application and the related conservation plan that—
(i) the taking will be incidental;
(ii) the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of
such taking;
(iii) the applicant will ensure that adequate funding for the plan will be provided;
(iv) the taking will not appreciably reduce the likelihood of the survival and recovery of the
species in the wild; and
(v) the measures, if any, required under subparagraph (A)(iv) will be met;
and he has received such other assurances as he may require that the plan will be implemented, the
Secretary shall issue the permit. The permit shall contain such terms and conditions as the Secretary
deems necessary or appropriate to carry out the purposes of this paragraph, including, but not limited
to, such reporting requirements as the Secretary deems necessary for determining whether such terms
and conditions are being complied with.
(C) The Secretary shall revoke a permit issued under this paragraph if he finds that the permittee is
not complying with the terms and conditions of the permit.
(b) Hardship exemptions
(1) If any person enters into a contract with respect to a species of fish or wildlife or plant before
the date of the publication in the Federal Register of notice of consideration of that species as an
endangered species and the subsequent listing of that species as an endangered species pursuant to
section 1533 of this title will cause undue economic hardship to such person under the contract, the
Secretary, in order to minimize such hardship, may exempt such person from the application of
section 1538(a) of this title to the extent the Secretary deems appropriate if such person applies to
him for such exemption and includes with such application such information as the Secretary may
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require to prove such hardship; except that (A) no such exemption shall be for a duration of more
than one year from the date of publication in the Federal Register of notice of consideration of the
species concerned, or shall apply to a quantity of fish or wildlife or plants in excess of that specified
by the Secretary; (B) the one-year period for those species of fish or wildlife listed by the Secretary
as endangered prior to December 28, 1973, shall expire in accordance with the terms of section
668cc–3 1 of this title; and (C) no such exemption may be granted for the importation or exportation
of a specimen listed in Appendix I of the Convention which is to be used in a commercial activity.
(2) As used in this subsection, the term "undue economic hardship" shall include, but not be
limited to:
(A) substantial economic loss resulting from inability caused by this chapter to perform
contracts with respect to species of fish and wildlife entered into prior to the date of publication in
the Federal Register of a notice of consideration of such species as an endangered species;
(B) substantial economic loss to persons who, for the year prior to the notice of consideration of
such species as an endangered species, derived a substantial portion of their income from the
lawful taking of any listed species, which taking would be made unlawful under this chapter; or
(C) curtailment of subsistence taking made unlawful under this chapter by persons (i) not
reasonably able to secure other sources of subsistence; and (ii) dependent to a substantial extent
upon hunting and fishing for subsistence; and (iii) who must engage in such curtailed taking for
subsistence purposes.
(3) The Secretary may make further requirements for a showing of undue economic hardship as he
deems fit. Exceptions granted under this section may be limited by the Secretary in his discretion as
to time, area, or other factor of applicability.
(c) Notice and review
The Secretary shall publish notice in the Federal Register of each application for an exemption or
permit which is made under this section. Each notice shall invite the submission from interested
parties, within thirty days after the date of the notice, of written data, views, or arguments with
respect to the application; except that such thirty-day period may be waived by the Secretary in an
emergency situation where the health or life of an endangered animal is threatened and no reasonable
alternative is available to the applicant, but notice of any such waiver shall be published by the
Secretary in the Federal Register within ten days following the issuance of the exemption or permit.
Information received by the Secretary as a part of any application shall be available to the public as a
matter of public record at every stage of the proceeding.
(d) Permit and exemption policy
The Secretary may grant exceptions under subsections (a)(1)(A) and (b) of this section only if he
finds and publishes his finding in the Federal Register that (1) such exceptions were applied for in
good faith, (2) if granted and exercised will not operate to the disadvantage of such endangered
species, and (3) will be consistent with the purposes and policy set forth in section 1531 of this title.
(e) Alaska natives
(1) Except as provided in paragraph (4) of this subsection the provisions of this chapter shall not
apply with respect to the taking of any endangered species or threatened species, or the importation
of any such species taken pursuant to this section, by—
(A) any Indian, Aleut, or Eskimo who is an Alaskan Native who resides in Alaska; or
(B) any non-native permanent resident of an Alaskan native village;
if such taking is primarily for subsistence purposes. Non-edible byproducts of species taken
pursuant to this section may be sold in interstate commerce when made into authentic native articles
of handicrafts and clothing; except that the provisions of this subsection shall not apply to any nonnative resident of an Alaskan native village found by the Secretary to be not primarily dependent
upon the taking of fish and wildlife for consumption or for the creation and sale of authentic native
articles of handicrafts and clothing.
(2) Any taking under this subsection may not be accomplished in a wasteful manner.
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(3) As used in this subsection—
(i) The term "subsistence" includes selling any edible portion of fish or wildlife in native
villages and towns in Alaska for native consumption within native villages or towns; and
(ii) The term "authentic native articles of handicrafts and clothing" means items composed
wholly or in some significant respect of natural materials, and which are produced, decorated, or
fashioned in the exercise of traditional native handicrafts without the use of pantographs, multiple
carvers, or other mass copying devices. Traditional native handicrafts include, but are not limited
to, weaving, carving, stitching, sewing, lacing, beading, drawing, and painting.
(4) Notwithstanding the provisions of paragraph (1) of this subsection, whenever the Secretary
determines that any species of fish or wildlife which is subject to taking under the provisions of this
subsection is an endangered species or threatened species, and that such taking materially and
negatively affects the threatened or endangered species, he may prescribe regulations upon the taking
of such species by any such Indian, Aleut, Eskimo, or non-Native Alaskan resident of an Alaskan
native village. Such regulations may be established with reference to species, geographical
description of the area included, the season for taking, or any other factors related to the reason for
establishing such regulations and consistent with the policy of this chapter. Such regulations shall be
prescribed after a notice and hearings in the affected judicial districts of Alaska and as otherwise
required by section 1373 of this title, and shall be removed as soon as the Secretary determines that
the need for their impositions has disappeared.
(f) Pre-Act endangered species parts exemption; application and certification; regulation;
validity of sales contract; separability; renewal of exemption; expiration of renewal
certification
(1) As used in this subsection—
(A) The term "pre-Act endangered species part" means—
(i) any sperm whale oil, including derivatives thereof, which was lawfully held within the
United States on December 28, 1973, in the course of a commercial activity; or
(ii) any finished scrimshaw product, if such product or the raw material for such product was
lawfully held within the United States on December 28, 1973, in the course of a commercial
activity.
(B) The term "scrimshaw product" means any art form which involves the substantial etching or
engraving of designs upon, or the substantial carving of figures, patterns, or designs from, any
bone or tooth of any marine mammal of the order Cetacea. For purposes of this subsection,
polishing or the adding of minor superficial markings does not constitute substantial etching,
engraving, or carving.
(2) The Secretary, pursuant to the provisions of this subsection, may exempt, if such exemption is
not in violation of the Convention, any pre-Act endangered species part from one or more of the
following prohibitions:
(A) The prohibition on exportation from the United States set forth in section 1538(a)(1)(A) of
this title.
(B) Any prohibition set forth in section 1538(a)(1)(E) or (F) of this title.
(3) Any person seeking an exemption described in paragraph (2) of this subsection shall make
application therefor to the Secretary in such form and manner as he shall prescribe, but no such
application may be considered by the Secretary unless the application—
(A) is received by the Secretary before the close of the one-year period beginning on the date on
which regulations promulgated by the Secretary to carry out this subsection first take effect;
(B) contains a complete and detailed inventory of all pre-Act endangered species parts for
which the applicant seeks exemption;
(C) is accompanied by such documentation as the Secretary may require to prove that any
endangered species part or product claimed by the applicant to be a pre-Act endangered species
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part is in fact such a part; and
(D) contains such other information as the Secretary deems necessary and appropriate to carry
out the purposes of this subsection.
(4) If the Secretary approves any application for exemption made under this subsection, he shall
issue to the applicant a certificate of exemption which shall specify—
(A) any prohibition in section 1538(a) of this title which is exempted;
(B) the pre-Act endangered species parts to which the exemption applies;
(C) the period of time during which the exemption is in effect, but no exemption made under
this subsection shall have force and effect after the close of the three-year period beginning on the
date of issuance of the certificate unless such exemption is renewed under paragraph (8); and
(D) any term or condition prescribed pursuant to paragraph (5)(A) or (B), or both, which the
Secretary deems necessary or appropriate.
(5) The Secretary shall prescribe such regulations as he deems necessary and appropriate to carry
out the purposes of this subsection. Such regulations may set forth—
(A) terms and conditions which may be imposed on applicants for exemptions under this
subsection (including, but not limited to, requirements that applicants register inventories, keep
complete sales records, permit duly authorized agents of the Secretary to inspect such inventories
and records, and periodically file appropriate reports with the Secretary); and
(B) terms and conditions which may be imposed on any subsequent purchaser of any pre-Act
endangered species part covered by an exemption granted under this subsection;
to insure that any such part so exempted is adequately accounted for and not disposed of contrary
to the provisions of this chapter. No regulation prescribed by the Secretary to carry out the purposes
of this subsection shall be subject to section 1533(f)(2)(A)(i) of this title.
(6)(A) Any contract for the sale of pre-Act endangered species parts which is entered into by the
Administrator of General Services prior to the effective date of this subsection and pursuant to the
notice published in the Federal Register on January 9, 1973, shall not be rendered invalid by virtue of
the fact that fulfillment of such contract may be prohibited under section 1538(a)(1)(F) of this title.
(B) In the event that this paragraph is held invalid, the validity of the remainder of this chapter,
including the remainder of this subsection, shall not be affected.
(7) Nothing in this subsection shall be construed to—
(A) exonerate any person from any act committed in violation of paragraphs (1)(A), (1)(E), or
(1)(F) of section 1538(a) of this title prior to July 12, 1976; or
(B) immunize any person from prosecution for any such act.
(8)(A)(i) 2 Any valid certificate of exemption which was renewed after October 13, 1982, and was
in effect on March 31, 1988, shall be deemed to be renewed for a six-month period beginning on
October 7, 1988. Any person holding such a certificate may apply to the Secretary for one additional
renewal of such certificate for a period not to exceed 5 years beginning on October 7, 1988.
(B) If the Secretary approves any application for renewal of an exemption under this paragraph, he
shall issue to the applicant a certificate of renewal of such exemption which shall provide that all
terms, conditions, prohibitions, and other regulations made applicable by the previous certificate
shall remain in effect during the period of the renewal.
(C) No exemption or renewal of such exemption made under this subsection shall have force and
effect after the expiration date of the certificate of renewal of such exemption issued under this
paragraph.
(D) No person may, after January 31, 1984, sell or offer for sale in interstate or foreign commerce,
any pre-Act finished scrimshaw product unless such person holds a valid certificate of exemption
issued by the Secretary under this subsection, and unless such product or the raw material for such
product was held by such person on October 13, 1982.
(g) Burden of proof
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In connection with any action alleging a violation of section 1538 of this title, any person claiming
the benefit of any exemption or permit under this chapter shall have the burden of proving that the
exemption or permit is applicable, has been granted, and was valid and in force at the time of the
alleged violation.
(h) Certain antique articles; importation; port designation; application for return of articles
(1) Sections 1533(d) and 1538(a) and (c) of this title do not apply to any article which—
(A) is not less than 100 years of age;
(B) is composed in whole or in part of any endangered species or threatened species listed under
section 1533 of this title;
(C) has not been repaired or modified with any part of any such species on or after December
28, 1973; and
(D) is entered at a port designated under paragraph (3).
(2) Any person who wishes to import an article under the exception provided by this subsection
shall submit to the customs officer concerned at the time of entry of the article such documentation
as the Secretary of the Treasury, after consultation with the Secretary of the Interior, shall by
regulation require as being necessary to establish that the article meets the requirements set forth in
paragraph (1)(A), (B), and (C).
(3) The Secretary of the Treasury, after consultation with the Secretary of the Interior, shall
designate one port within each customs region at which articles described in paragraph (1)(A), (B),
and (C) must be entered into the customs territory of the United States.
(4) Any person who imported, after December 27, 1973, and on or before November 10, 1978, any
article described in paragraph (1) which—
(A) was not repaired or modified after the date of importation with any part of any endangered
species or threatened species listed under section 1533 of this title;
(B) was forfeited to the United States before November 10, 1978, or is subject to forfeiture to
the United States on such date of enactment, pursuant to the assessment of a civil penalty under
section 1540 of this title; and
(C) is in the custody of the United States on November 10, 1978;
may, before the close of the one-year period beginning on November 10, 1978, make application
to the Secretary for return of the article. Application shall be made in such form and manner, and
contain such documentation, as the Secretary prescribes. If on the basis of any such application
which is timely filed, the Secretary is satisfied that the requirements of this paragraph are met with
respect to the article concerned, the Secretary shall return the article to the applicant and the
importation of such article shall, on and after the date of return, be deemed to be a lawful importation
under this chapter.
(i) Noncommercial transshipments
Any importation into the United States of fish or wildlife shall, if—
(1) such fish or wildlife was lawfully taken and exported from the country of origin and country
of reexport, if any;
(2) such fish or wildlife is in transit or transshipment through any place subject to the
jurisdiction of the United States en route to a country where such fish or wildlife may be lawfully
imported and received;
(3) the exporter or owner of such fish or wildlife gave explicit instructions not to ship such fish
or wildlife through any place subject to the jurisdiction of the United States, or did all that could
have reasonably been done to prevent transshipment, and the circumstances leading to the
transshipment were beyond the exporter's or owner's control;
(4) the applicable requirements of the Convention have been satisfied; and
(5) such importation is not made in the course of a commercial activity,
be an importation not in violation of any provision of this chapter or any regulation issued
pursuant to this chapter while such fish or wildlife remains in the control of the United States
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Customs Service.
(j) Experimental populations
(1) For purposes of this subsection, the term "experimental population" means any population
(including any offspring arising solely therefrom) authorized by the Secretary for release under
paragraph (2), but only when, and at such times as, the population is wholly separate geographically
from nonexperimental populations of the same species.
(2)(A) The Secretary may authorize the release (and the related transportation) of any population
(including eggs, propagules, or individuals) of an endangered species or a threatened species outside
the current range of such species if the Secretary determines that such release will further the
conservation of such species.
(B) Before authorizing the release of any population under subparagraph (A), the Secretary shall
by regulation identify the population and determine, on the basis of the best available information,
whether or not such population is essential to the continued existence of an endangered species or a
threatened species.
(C) For the purposes of this chapter, each member of an experimental population shall be treated
as a threatened species; except that—
(i) solely for purposes of section 1536 of this title (other than subsection (a)(1) thereof), an
experimental population determined under subparagraph (B) to be not essential to the continued
existence of a species shall be treated, except when it occurs in an area within the National
Wildlife Refuge System or the National Park System, as a species proposed to be listed under
section 1533 of this title; and
(ii) critical habitat shall not be designated under this chapter for any experimental population
determined under subparagraph (B) to be not essential to the continued existence of a species.
(3) The Secretary, with respect to populations of endangered species or threatened species that the
Secretary authorized, before October 13, 1982, for release in geographical areas separate from the
other populations of such species, shall determine by regulation which of such populations are an
experimental population for the purposes of this subsection and whether or not each is essential to
the continued existence of an endangered species or a threatened species.
(Pub. L. 93–205, §10, Dec. 28, 1973, 87 Stat. 896; Pub. L. 94–359, §§2, 3, July 12, 1976, 90 Stat.
911, 912; Pub. L. 95–632, §5, Nov. 10, 1978, 92 Stat. 3760; Pub. L. 96–159, §7, Dec. 28, 1979, 93
Stat. 1230; Pub. L. 97–304, §6(1)–(4)(A), (5), (6), Oct. 13, 1982, 96 Stat. 1422–1424; Pub. L. 100–
478, title I, §§1011, 1013(b), (c), Oct. 7, 1988, 102 Stat. 2314, 2315.)
R
T
This chapter, referred to in text, was in the original "this Act", except for "the Act" in subsec. (f)(6)(B),
meaning Pub. L. 93–205, Dec. 28, 1973, 81 Stat. 884, known as the Endangered Species Act of 1973, which is
classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note
set out under section 1531 of this title and Tables.
Section 668cc–3 of this title, referred to in subsec. (b), was repealed by Pub. L. 93–205, §14, Dec. 28, 1973,
87 Stat. 903.
Subsec. (f) of section 1533 of this title, referred to in subsec. (f)(5), which related to promulgation of
regulations by the Secretary was struck out, and subsec. (g) of section 1533 of this title, was redesignated as
subsec. (f), by Pub. L. 97–304, §2(a)(4)(B), (C), Oct. 13, 1982, 96 Stat. 1415. For provisions relating to
promulgation of regulations, see subsecs. (b) and (h) of section 1533 of this title.
Effective date of this subsection, referred to in subsec. (f)(6)(A), probably means the date of enactment of
subsec. (f) by section 2 of Pub. L. 94–359, July 12, 1976.
October 7, 1988, referred to in subsec. (f)(8)(A), was in the original "the date of enactment of the
Endangered Species Act Amendments of 1988" and "the date of such enactment" which were translated as
meaning the date of enactment of title I of Pub. L. 100–478 which is entitled "Endangered Species Act
Amendments of 1988" and which was approved Oct. 7, 1988.
A
1988—Subsec. (c). Pub. L. 100–478, §1013(b), substituted "notice, of" for "notice," in second sentence.
Subsec. (e)(3)(ii). Pub. L. 100–478, §1013(c), substituted "lacing," for "lacking,".
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Subsec. (f)(8)(A). Pub. L. 100–478, §1011(a), amended subpar. (A) generally. Prior to amendment, subpar.
(A) read as follows: "Any person to whom a certificate of exemption has been issued under paragraph (4) of
this subsection may apply to the Secretary for a renewal of such exemption for a period not to exceed three
years beginning on the expiration date of such certificate. Such application shall be made in the same manner
as the application for exemption was made under paragraph (3), but without regard to subparagraph (A) of
such paragraph."
Subsec. (f)(8)(B). Pub. L. 100–478, §1011(b), substituted "previous" for "original".
Subsec. (f)(8)(D). Pub. L. 100–478, §1011(c), added subpar. (D).
Subsec. (f)(9). Pub. L. 100–478, §1011(d), struck out par. (9) which provided for comprehensive review by
Secretary of effectiveness of regulations prescribed pursuant to subsec. (f)(5) of this section.
1982—Subsec. (a). Pub. L. 97–304, §6(1), designated as par. (1) and the beginning phrase of subpar. (A)
thereof the existing provisions consisting of language authorizing the Secretary to permit, under such terms
and conditions as he may prescribe, any act otherwise prohibited by section 1538 of this title for scientific
purposes or to enhance the propagation or survival of the affected species, and inserted remainder of par. (1)
(A) and pars. (1)(B) and (2).
Subsec. (d). Pub. L. 97–304, §6(2), substituted "subsections (a)(1)(A) and (b) of this section" for
"subsections (a) and (b) of this section".
Subsec. (f)(1)(B). Pub. L. 97–304, §6(3)(A), substituted "involves the substantial etching or engraving of
designs upon, or the substantial carving of figures" for "involves the etching or engraving of designs upon, or
the carving of figures" and inserted provision that, for purposes of this subsection, polishing or the adding of
minor superficial markings does not constitute substantial etching, engraving, or carving.
Subsec. (f)(9). Pub. L. 97–304, §6(3)(B), added par. (9).
Subsec. (h)(1). Pub. L. 97–304, §6(4)(A), struck out "(other than scrimshaw)" after "do not apply to any
article" in provisions preceding subpar. (A) and in subpar. (A) substituted "is not less than 100 years of age"
for "was made before 1830".
Subsec. (i). Pub. L. 97–304, §6(5), substituted provisions covering noncommercial transshipments of fish or
wildlife for provisions that had related to exemptions from the provisions of this title of the Tellico Dam and
Reservoir Project and the Grayrocks Dam and Reservoir Project and to the operation of the Missouri Basin
Power Project.
Subsec. (j). Pub. L. 97–304, §6(6), added subsec. (j).
1979—Subsec. (f)(4)(C). Pub. L. 96–159, §7(1), inserted "unless such exemption is renewed under
paragraph (8)" after "issuance of the certificate".
Subsec. (f)(8). Pub. L. 96–159, §7(2), added par. (8).
1978—Subsecs. (h), (i). Pub. L. 95–632 added subsecs. (h) and (i).
1976—Subsec. (c). Pub. L. 94–359, §3, substituted "section" for "subsection" and inserted "; except that
such thirty-day period may be waived by the Secretary in an emergency situation where the health or life of an
endangered animal is threatened and no reasonable alternative is available to the applicant, but notice of any
such waiver shall be published by the Secretary in the Federal Register within ten days following the issuance
of the exemption or permit." after "every stage of the proceeding".
Subsecs. (f), (g). Pub. L. 94–359, §2, added subsecs. (f) and (g).
E
D
1982 A
Pub. L. 97–304, §6(4)(B), Oct. 13, 1982, 96 Stat. 1424, provided that: "The amendment made by
subparagraph (A) [amending this section] shall take effect January 1, 1981."
T
F
For transfer of functions, personnel, assets, and liabilities of the United States Customs Service of the
Department of the Treasury, including functions of the Secretary of the Treasury relating thereto, to the
Secretary of Homeland Security, and for treatment of related references, see sections 203(1), 551(d), 552(d),
and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of
November 25, 2002, as modified, set out as a note under section 542 of Title 6. For establishment of U.S.
Customs and Border Protection in the Department of Homeland Security, treated as if included in Pub. L.
107–296 as of Nov. 25, 2002, see section 211 of Title 6, as amended generally by Pub. L. 114–125, and
section 802(b) of Pub. L. 114–125, set out as a note under section 211 of Title 6.
S
E
Pub. L. 103–238, §18, Apr. 30, 1994, 108 Stat. 559, provided that: "Notwithstanding any other provision of
law, any valid certificate of exemption renewed by the Secretary (or deemed to be renewed) under section
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10(f)(8) of the Endangered Species Act of 1973 (16 U.S.C. 1539(f)(8)) for any person holding such a
certificate with respect to the possession of pre-Act finished scrimshaw products or raw material for such
products shall remain valid for a period not to exceed 5 years beginning on the date of enactment of this Act
[Apr. 30, 1994]."
1 See
2 So
References in Text note below.
in original. No cl. (ii) has been enacted.
§1540. Penalties and enforcement
(a) Civil penalties
(1) Any person who knowingly violates, and any person engaged in business as an importer or
exporter of fish, wildlife, or plants who violates, any provision of this chapter, or any provision of
any permit or certificate issued hereunder, or of any regulation issued in order to implement
subsection (a)(1)(A), (B), (C), (D), (E), or (F), (a)(2)(A), (B), (C), or (D), (c), (d) (other than
regulation relating to recordkeeping or filing of reports), (f) or (g) of section 1538 of this title, may
be assessed a civil penalty by the Secretary of not more than $25,000 for each violation. Any person
who knowingly violates, and any person engaged in business as an importer or exporter of fish,
wildlife, or plants who violates, any provision of any other regulation issued under this chapter may
be assessed a civil penalty by the Secretary of not more than $12,000 for each such violation. Any
person who otherwise violates any provision of this chapter, or any regulation, permit, or certificate
issued hereunder, may be assessed a civil penalty by the Secretary of not more than $500 for each
such violation. No penalty may be assessed under this subsection unless such person is given notice
and opportunity for a hearing with respect to such violation. Each violation shall be a separate
offense. Any such civil penalty may be remitted or mitigated by the Secretary. Upon any failure to
pay a penalty assessed under this subsection, the Secretary may request the Attorney General to
institute a civil action in a district court of the United States for any district in which such person is
found, resides, or transacts business to collect the penalty and such court shall have jurisdiction to
hear and decide any such action. The court shall hear such action on the record made before the
Secretary and shall sustain his action if it is supported by substantial evidence on the record
considered as a whole.
(2) Hearings held during proceedings for the assessment of civil penalties authorized by paragraph
(1) of this subsection shall be conducted in accordance with section 554 of title 5. The Secretary may
issue subpenas for the attendance and testimony of witnesses and the production of relevant papers,
books, and documents, and administer oaths. Witnesses summoned shall be paid the same fees and
mileage that are paid to witnesses in the courts of the United States. In case of contumacy or refusal
to obey a subpena served upon any person pursuant to this paragraph, the district court of the United
States for any district in which such person is found or resides or transacts business, upon application
by the United States and after notice to such person, shall have jurisdiction to issue an order
requiring such person to appear and give testimony before the Secretary or to appear and produce
documents before the Secretary, or both, and any failure to obey such order of the court may be
punished by such court as a contempt thereof.
(3) Notwithstanding any other provision of this chapter, no civil penalty shall be imposed if it can
be shown by a preponderance of the evidence that the defendant committed an act based on a good
faith belief that he was acting to protect himself or herself, a member of his or her family, or any
other individual from bodily harm, from any endangered or threatened species.
(b) Criminal violations
(1) Any person who knowingly violates any provision of this chapter, of any permit or certificate
issued hereunder, or of any regulation issued in order to implement subsection (a)(1)(A), (B), (C),
(D), (E), or (F), (a)(2)(A), (B), (C), or (D), (c), (d) (other than a regulation relating to recordkeeping,
or filing of reports), (f), or (g) of section 1538 of this title shall, upon conviction, be fined not more
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than $50,000 or imprisoned for not more than one year, or both. Any person who knowingly violates
any provision of any other regulation issued under this chapter shall, upon conviction, be fined not
more than $25,000 or imprisoned for not more than six months, or both.
(2) The head of any Federal agency which has issued a lease, license, permit, or other agreement
authorizing a person to import or export fish, wildlife, or plants, or to operate a quarantine station for
imported wildlife, or authorizing the use of Federal lands, including grazing of domestic livestock, to
any person who is convicted of a criminal violation of this chapter or any regulation, permit, or
certificate issued hereunder may immediately modify, suspend, or revoke each lease, license, permit,
or other agreement. The Secretary shall also suspend for a period of up to one year, or cancel, any
Federal hunting or fishing permits or stamps issued to any person who is convicted of a criminal
violation of any provision of this chapter or any regulation, permit, or certificate issued hereunder.
The United States shall not be liable for the payments of any compensation, reimbursement, or
damages in connection with the modification, suspension, or revocation of any leases, licenses,
permits, stamps, or other agreements pursuant to this section.
(3) Notwithstanding any other provision of this chapter, it shall be a defense to prosecution under
this subsection if the defendant committed the offense based on a good faith belief that he was acting
to protect himself or herself, a member of his or her family, or any other individual, from bodily
harm from any endangered or threatened species.
(c) District court jurisdiction
The several district courts of the United States, including the courts enumerated in section 460 of
title 28, shall have jurisdiction over any actions arising under this chapter. For the purpose of this
chapter, American Samoa shall be included within the judicial district of the District Court of the
United States for the District of Hawaii.
(d) Rewards and certain incidental expenses
The Secretary or the Secretary of the Treasury shall pay, from sums received as penalties, fines, or
forfeitures of property for any violation of this chapter or any regulation issued hereunder (1) a
reward to any person who furnishes information which leads to an arrest, a criminal conviction, civil
penalty assessment, or forfeiture of property for any violation of this chapter or any regulation issued
hereunder, and (2) the reasonable and necessary costs incurred by any person in providing temporary
care for any fish, wildlife, or plant pending the disposition of any civil or criminal proceeding
alleging a violation of this chapter with respect to that fish, wildlife, or plant. The amount of the
reward, if any, is to be designated by the Secretary or the Secretary of the Treasury, as appropriate.
Any officer or employee of the United States or any State or local government who furnishes
information or renders service in the performance of his official duties is ineligible for payment
under this subsection. Whenever the balance of sums received under this section and section 3375(d)
of this title, as penalties or fines, or from forfeitures of property, exceed $500,000, the Secretary of
the Treasury shall deposit an amount equal to such excess balance in the cooperative endangered
species conservation fund established under section 1535(i) of this title.
(e) Enforcement
(1) The provisions of this chapter and any regulations or permits issued pursuant thereto shall be
enforced by the Secretary, the Secretary of the Treasury, or the Secretary of the Department in which
the Coast Guard is operating, or all such Secretaries. Each such Secretary may utilize by agreement,
with or without reimbursement, the personnel, services, and facilities of any other Federal agency or
any State agency for purposes of enforcing this chapter.
(2) The judges of the district courts of the United States and the United States magistrate judges
may, within their respective jurisdictions, upon proper oath or affirmation showing probable cause,
issue such warrants or other process as may be required for enforcement of this chapter and any
regulation issued thereunder.
(3) Any person authorized by the Secretary, the Secretary of the Treasury, or the Secretary of the
Department in which the Coast Guard is operating, to enforce this chapter may detain for inspection
and inspect any package, crate, or other container, including its contents, and all accompanying
documents, upon importation or exportation. Such person may make arrests without a warrant for
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any violation of this chapter if he has reasonable grounds to believe that the person to be arrested is
committing the violation in his presence or view, and may execute and serve any arrest warrant,
search warrant, or other warrant or civil or criminal process issued by any officer or court of
competent jurisdiction for enforcement of this chapter. Such person so authorized may search and
seize, with or without a warrant, as authorized by law. Any fish, wildlife, property, or item so seized
shall be held by any person authorized by the Secretary, the Secretary of the Treasury, or the
Secretary of the Department in which the Coast Guard is operating pending disposition of civil or
criminal proceedings, or the institution of an action in rem for forfeiture of such fish, wildlife,
property, or item pursuant to paragraph (4) of this subsection; except that the Secretary may, in lieu
of holding such fish, wildlife, property, or item, permit the owner or consignee to post a bond or
other surety satisfactory to the Secretary, but upon forfeiture of any such property to the United
States, or the abandonment or waiver of any claim to any such property, it shall be disposed of (other
than by sale to the general public) by the Secretary in such a manner, consistent with the purposes of
this chapter, as the Secretary shall by regulation prescribe.
(4)(A) All fish or wildlife or plants taken, possessed, sold, purchased, offered for sale or purchase,
transported, delivered, received, carried, shipped, exported, or imported contrary to the provisions of
this chapter, any regulation made pursuant thereto, or any permit or certificate issued hereunder shall
be subject to forfeiture to the United States.
(B) All guns, traps, nets, and other equipment, vessels, vehicles, aircraft, and other means of
transportation used to aid the taking, possessing, selling, purchasing, offering for sale or purchase,
transporting, delivering, receiving, carrying, shipping, exporting, or importing of any fish or wildlife
or plants in violation of this chapter, any regulation made pursuant thereto, or any permit or
certificate issued thereunder shall be subject to forfeiture to the United States upon conviction of a
criminal violation pursuant to subsection (b)(1) of this section.
(5) All provisions of law relating to the seizure, forfeiture, and condemnation of a vessel for
violation of the customs laws, the disposition of such vessel or the proceeds from the sale thereof,
and the remission or mitigation of such forfeiture, shall apply to the seizures and forfeitures incurred,
or alleged to have been incurred, under the provisions of this chapter, insofar as such provisions of
law are applicable and not inconsistent with the provisions of this chapter; except that all powers,
rights, and duties conferred or imposed by the customs laws upon any officer or employee of the
Treasury Department shall, for the purposes of this chapter, be exercised or performed by the
Secretary or by such persons as he may designate.
(6) The Attorney General of the United States may seek to enjoin any person who is alleged to be
in violation of any provision of this chapter or regulation issued under authority thereof.
(f) Regulations
The Secretary, the Secretary of the Treasury, and the Secretary of the Department in which the
Coast Guard is operating, are authorized to promulgate such regulations as may be appropriate to
enforce this chapter, and charge reasonable fees for expenses to the Government connected with
permits or certificates authorized by this chapter including processing applications and reasonable
inspections, and with the transfer, board, handling, or storage of fish or wildlife or plants and
evidentiary items seized and forfeited under this chapter. All such fees collected pursuant to this
subsection shall be deposited in the Treasury to the credit of the appropriation which is current and
chargeable for the cost of furnishing the services. Appropriated funds may be expended pending
reimbursement from parties in interest.
(g) Citizen suits
(1) Except as provided in paragraph (2) of this subsection any person may commence a civil suit
on his own behalf—
(A) to enjoin any person, including the United States and any other governmental
instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution),
who is alleged to be in violation of any provision of this chapter or regulation issued under the
authority thereof; or
(B) to compel the Secretary to apply, pursuant to section 1535(g)(2)(B)(ii) of this title, the
prohibitions set forth in or authorized pursuant to section 1533(d) or 1538(a)(1)(B) of this title
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with respect to the taking of any resident endangered species or threatened species within any
State; or
(C) against the Secretary where there is alleged a failure of the Secretary to perform any act or
duty under section 1533 of this title which is not discretionary with the Secretary.
The district courts shall have jurisdiction, without regard to the amount in controversy or the
citizenship of the parties, to enforce any such provision or regulation, or to order the Secretary to
perform such act or duty, as the case may be. In any civil suit commenced under subparagraph (B)
the district court shall compel the Secretary to apply the prohibition sought if the court finds that the
allegation that an emergency exists is supported by substantial evidence.
(2)(A) No action may be commenced under subparagraph (1)(A) of this section—
(i) prior to sixty days after written notice of the violation has been given to the Secretary, and to
any alleged violator of any such provision or regulation;
(ii) if the Secretary has commenced action to impose a penalty pursuant to subsection (a) of this
section; or
(iii) if the United States has commenced and is diligently prosecuting a criminal action in a
court of the United States or a State to redress a violation of any such provision or regulation.
(B) No action may be commenced under subparagraph (1)(B) of this section—
(i) prior to sixty days after written notice has been given to the Secretary setting forth the
reasons why an emergency is thought to exist with respect to an endangered species or a
threatened species in the State concerned; or
(ii) if the Secretary has commenced and is diligently prosecuting action under section 1535(g)
(2)(B)(ii) of this title to determine whether any such emergency exists.
(C) No action may be commenced under subparagraph (1)(C) of this section prior to sixty days
after written notice has been given to the Secretary; except that such action may be brought
immediately after such notification in the case of an action under this section respecting an
emergency posing a significant risk to the well-being of any species of fish or wildlife or plants.
(3)(A) Any suit under this subsection may be brought in the judicial district in which the violation
occurs.
(B) In any such suit under this subsection in which the United States is not a party, the Attorney
General, at the request of the Secretary, may intervene on behalf of the United States as a matter of
right.
(4) The court, in issuing any final order in any suit brought pursuant to paragraph (1) of this
subsection, may award costs of litigation (including reasonable attorney and expert witness fees) to
any party, whenever the court determines such award is appropriate.
(5) The injunctive relief provided by this subsection shall not restrict any right which any person
(or class of persons) may have under any statute or common law to seek enforcement of any standard
or limitation or to seek any other relief (including relief against the Secretary or a State agency).
(h) Coordination with other laws
The Secretary of Agriculture and the Secretary shall provide for appropriate coordination of the
administration of this chapter with the administration of the animal quarantine laws (as defined in
section 136a(f) of title 21) and section 306 1 of the Tariff Act of 1930 (19 U.S.C. 1306). Nothing in
this chapter or any amendment made by this chapter shall be construed as superseding or limiting in
any manner the functions of the Secretary of Agriculture under any other law relating to prohibited
or restricted importations or possession of animals and other articles and no proceeding or
determination under this chapter shall preclude any proceeding or be considered determinative of any
issue of fact or law in any proceeding under any Act administered by the Secretary of Agriculture.
Nothing in this chapter shall be construed as superseding or limiting in any manner the functions and
responsibilities of the Secretary of the Treasury under the Tariff Act of 1930 [19 U.S.C. 1202 et
seq.], including, without limitation, section 527 of that Act (19 U.S.C. 1527), relating to the
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importation of wildlife taken, killed, possessed, or exported to the United States in violation of the
laws or regulations of a foreign country.
(Pub. L. 93–205, §11, Dec. 28, 1973, 87 Stat. 897; Pub. L. 94–359, §4, July 12, 1976, 90 Stat. 913;
Pub. L. 95–632, §§6–8, Nov. 10, 1978, 92 Stat. 3761, 3762; Pub. L. 97–79, §9(e), Nov. 16, 1981, 95
Stat. 1079; Pub. L. 97–304, §§7, 9(c), Oct. 13, 1982, 96 Stat. 1425, 1427; Pub. L. 98–327, §4, June
25, 1984, 98 Stat. 271; Pub. L. 100–478, title I, §1007, Oct. 7, 1988, 102 Stat. 2309; Pub. L. 101–
650, title III, §321, Dec. 1, 1990, 104 Stat. 5117; Pub. L. 107–171, title X, §10418(b)(3), May 13,
2002, 116 Stat. 508.)
R
T
This chapter, referred to in subsecs. (a)(1), (3), (b)–(f), (g)(1)(A), and (h), was in the original "this Act",
meaning Pub. L. 93–205, Dec. 28, 1973, 81 Stat. 884, known as the Endangered Species Act of 1973, which is
classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note
set out under section 1531 of this title and Tables.
The amendments made by this chapter, referred to in subsec. (h), refer to the amendments made by Pub. L.
93–205, which amended section 460k–1, former section 460l–9, and sections 668dd, 715i, 715s, 1362, 1371,
1372, and 1402 of this title and section 136 of Title 7, Agriculture, and repealed sections 668aa to 668cc–6 of
this title.
The Tariff Act of 1930, referred to in subsec. (h), is act June 17, 1930, ch. 497, 46 Stat. 590, which is
classified generally to chapter 4 (§1202 et seq.) of Title 19, Customs Duties. Section 306 of the Act was
repealed by Pub. L. 107–171, title X, §10418(a)(5), May 13, 2002, 116 Stat. 507. For complete classification
of this Act to the Code, see section 1654 of Title 19 and Tables.
A
2002—Subsec. (h). Pub. L. 107–171 substituted "animal quarantine laws (as defined in section 136a(f) of
title 21)" for "animal quarantine laws (21 U.S.C. 101–105, 111–135b, and 612–614)".
1988—Subsec. (a)(1). Pub. L. 100–478, §1007(a), substituted "$25,000" for "$10,000" and "$12,000" for
"$5,000".
Subsec. (b)(1). Pub. L. 100–478, §1007(b), substituted "$50,000" for "$20,000" and "$25,000" for
"$10,000".
Subsec. (d). Pub. L. 100–478, §1007(c), inserted at end "Whenever the balance of sums received under this
section and section 3375(d) of this title, as penalties or fines, or from forfeitures of property, exceed $500,000,
the Secretary of the Treasury shall deposit an amount equal to such excess balance in the cooperative
endangered species conservation fund established under section 1535(i) of this title."
1984—Subsec. (d). Pub. L. 98–327, in first sentence, substituted a comma for "a reward" after "shall pay",
inserted "(1) a reward" before "to any person", and added cl. (2).
1982—Subsecs. (a)(1), (b)(1). Pub. L. 97–304, §9(c), substituted "(a)(2)(A), (B), (C), or (D)" for "(a)(2)(A),
(B), or (C)".
Subsec. (e)(6). Pub. L. 97–304, §7(1), added par. (6).
Subsec. (g)(1)(B). Pub. L. 97–304, §7(2)(A)(i), substituted "any State; or" for "any State.".
Subsec. (g)(1)(C). Pub. L. 97–304, §7(2)(A)(ii), added subpar. (C).
Subsec. (g)(1). Pub. L. 97–304, §7(2)(A)(iii), inserted "or to order the Secretary to perform such act or
duty," after "any such provision or regulation," in provisions following subpar. (C).
Subsec. (g)(2)(C). Pub. L. 97–304, §7(2)(B), added subpar. (C).
1981—Subsec. (d). Pub. L. 97–79 substituted "The Secretary or the Secretary of the Treasury shall pay a
reward from sums received as penalties, fines, or forfeitures of property for any violation of this chapter or
any regulation issued hereunder to any person who furnishes information which leads to an arrest, a criminal
conviction, civil penalty assessment, or forfeiture of property for any violation of this chapter or any
regulation issued hereunder" for "Upon the recommendation of the Secretary, the Secretary of the Treasury is
authorized to pay an amount equal to one-half of the civil penalty or fine paid, but not to exceed $2,500, to
any person who furnishes information which leads to a finding of civil violation or a conviction of a criminal
violation of any provision of this chapter or any regulation or permit issued thereunder" and inserted provision
that the amount of the reward, if any, be designated by the Secretary or the Secretary of the Treasury, as
appropriate.
1978—Subsec. (a)(1). Pub. L. 95–632, §6(1), (2), substituted "and any person engaged in business as an
importer or exporter of fish, wildlife, or plants who violates" for "or who knowingly commits an act in the
course of a commercial activity which violates" in two places and "$500" for "$1,000".
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Subsec. (a)(3). Pub. L. 95–632, §7, added par. (3).
Subsec. (b)(1). Pub. L. 95–632, §6(3), substituted "knowingly" for "willfully commits an act which" in two
places.
Subsec. (b)(2). Pub. L. 95–632, §6(4), inserted "a person to import or export fish, wildlife, or plants, or to
operate a quarantine station for imported wildlife, or authorizing" after "authorizing".
Subsec. (b)(3). Pub. L. 95–632, §8, added par. (3).
1976—Subsec. (e)(3). Pub. L. 94–359 inserted "make arrests without a warrant for any violation of this
chapter if he has reasonable grounds to believe that the person to be arrested is committing the violation in his
presence or view, and may" after "Such person may" and ", but upon forfeiture of any such property to the
United States, or the abandonment or waiver of any claim to any such property, it shall be disposed of (other
than by sale to the general public) by the Secretary in such a manner, consistent with the purposes of this
chapter, as the Secretary shall by regulation prescribe," after "other surety satisfactory to the Secretary".
C
N
"United States magistrate judges" substituted for "United States magistrates" in subsec. (e)(2) pursuant to
section 321 of Pub. L. 101–650, set out as a note under section 631 of Title 28, Judiciary and Judicial
Procedure.
E
D
1981 A
Pub. L. 97–79, §9(f), Nov. 16, 1981, 95 Stat. 1080, provided that: "The amendment specified in subsection
9(e) of this Act [amending this section] shall take effect beginning in fiscal year 1983."
T
F
For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and
functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for
treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and
the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a
note under section 542 of Title 6.
For transfer of functions of the Secretary of Agriculture relating to agricultural import and entry inspection
activities under this section to the Secretary of Homeland Security, and for treatment of related references, see
sections 231, 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security
Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.
1 See
References in Text note below.
§1541. Endangered plants
The Secretary of the Smithsonian Institution, in conjunction with other affected agencies, is
authorized and directed to review (1) species of plants which are now or may become endangered or
threatened and (2) methods of adequately conserving such species, and to report to Congress, within
one year after December 28, 1973, the results of such review including recommendations for new
legislation or the amendment of existing legislation.
(Pub. L. 93–205, §12, Dec. 28, 1973, 87 Stat. 901.)
§1542. Authorization of appropriations
(a) In general
Except as provided in subsections (b), (c), and (d), there are authorized to be appropriated—
(1) not to exceed $35,000,000 for fiscal year 1988, $36,500,000 for fiscal year 1989,
$38,000,000 for fiscal year 1990, $39,500,000 for fiscal year 1991, and $41,500,000 for fiscal year
1992 to enable the Department of the Interior to carry out such functions and responsibilities as it
may have been given under this 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
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Commerce to carry out such functions and responsibilities as it may have been given under this
chapter; and
(3) not to exceed $2,200,000 for fiscal year 1988, $2,400,000 for each of fiscal years 1989 and
1990, and $2,600,000 for each of fiscal years 1991 and 1992, to enable the Department of
Agriculture to carry out its functions and responsibilities with respect to the enforcement of this
chapter and the Convention which pertain to the importation or exportation of plants.
(b) Exemptions
There are authorized to be appropriated to the Secretary to assist him and the Endangered Species
Committee in carrying out their functions under sections 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 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.
(Pub. L. 93–205, §15, Dec. 28, 1973, 87 Stat. 903; Pub. L. 94–325, June 30, 1976, 90 Stat. 724; Pub.
L. 95–632, §9, Nov. 10, 1978, 92 Stat. 3762; Pub. L. 96–159, §8, Dec. 28, 1979, 93 Stat. 1230; Pub.
L. 97–304, §8[(a)], Oct. 13, 1982, 96 Stat. 1425; Pub. L. 100–478, title I, §1009, Oct. 7, 1988, 102
Stat. 2312.)
R
T
This chapter, referred to in subsec. (a), was in the original "this Act", meaning Pub. L. 93–205, Dec. 28,
1973, 81 Stat. 884, known as the Endangered Species Act of 1973, which is classified principally to this
chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1531 of
this title and Tables.
A
1988—Pub. L. 100–478 amended section generally, substituting provisions authorizing appropriations for
fiscal years 1988 through 1992 for provisions authorizing appropriations for fiscal years 1983 through 1985.
1982—Subsec. (a). Pub. L. 97–304 designated existing provisions as subsec. (a), and substituted provisions
authorizing, except as provided in subsecs. (b), (c), and (d), appropriations of $27,000,000 for each of fiscal
years 1983, 1984, and 1985 for the Department of the Interior, $3,500,000 for each of fiscal years 1983, 1984,
and 1985 for the Department of Commerce, and $1,850,000 for each of fiscal years 1983, 1984, and 1985 for
the Department of Agriculture, for provisions that, except as authorized in sections 1535 and 1536 of this title,
had authorized appropriations of (1) not to exceed $23,000,000 for each of fiscal years 1979 and 1980, not to
exceed $25,000,000 for fiscal year 1981, and not to exceed $27,000,000 for fiscal year 1982 to the
Department of the Interior, (2) not to exceed $2,500,000 for each of fiscal years 1979 and 1980, not to exceed
$3,000,000 for fiscal year 1981, and not to exceed $3,500,000 for fiscal year 1982 to the Department of
Commerce, and (3) not to exceed $1,500,000 for fiscal year 1980, not to exceed $1,750,000 for fiscal year
1981, and not to exceed $1,850,000 for fiscal year 1982 to the Department of Agriculture.
Subsecs. (b) to (d). Pub. L. 97–304 added subsecs. (b) to (d).
1979—Par. (1). Pub. L. 96–159 struck out appropriations authorization of $25,000,000 for fiscal years
ending Sept. 30, 1977, and 1978, substituted appropriations authorization of $23,000,000; $23,000,000;
$25,000,000; and $27,000,000 for fiscal years 1979 through 1982 for prior authorization of $23,000,000 for
fiscal year ending Sept. 30, 1979, and $12,500,000 for period beginning Oct. 1, 1979, and ending Mar. 31,
1980, and restored intent of appropriations to enable the Interior Department to carry out its functions and
responsibilities.
Par. (2). Pub. L. 96–159 deleted appropriations authorization of $5,000,000 for fiscal years ending Sept. 30,
1977, and 1978, and substituted appropriations authorization of $2,500,000; $2,500,000; $3,000,000; and
$3,500,000 for fiscal years 1979 through 1982 for prior authorization of $2,500,000 for fiscal year ending
Sept. 30, 1979, and $12,500,000 for period beginning Oct. 1, 1979, and ending Mar. 31, 1980.
1978—Pub. L. 95–632, in provision preceding par. (1), substituted "sections 1535 and 1536 of this title" for
"section 1535 of this title".
Par. (1). Pub. L. 95–632 substituted provision authorizing appropriations of not to exceed $25,000,000 for
the fiscal year ending Sept. 30, 1977 and the fiscal year ending Sept. 30, 1978, of not to exceed $23,000,000
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for the fiscal year ending Sept. 30, 1979, and of not to exceed $12,500,000 for the period beginning Oct. 1,
1979 and ending Mar. 31, 1980 for provision authorizing appropriations of not to exceed $10,000,000 for the
fiscal year ending June 30, 1976, of not to exceed $1,800,000 for the fiscal transitional period ending Sept. 30,
1976, and of not to exceed a total of $25,000,000 for the fiscal year ending Sept. 30, 1977 and the fiscal year
ending Sept. 30, 1978, to enable the Department of the Interior to carry out its functions under this chapter.
Par. (2). Pub. L. 95–632 substituted provision authorizing appropriations of not to exceed $5,000,000 for
the fiscal year ending Sept. 30, 1977 and the fiscal year ending Sept. 30, 1978, of not to exceed $2,500,000 for
the fiscal year ending Sept. 30, 1979, and of not to exceed $12,500,000 for the period beginning Oct. 1, 1979
and ending Mar. 31, 1980 for provision authorizing appropriations of not to exceed $2,000,000 for the fiscal
year ending June 30, 1976, of not to exceed $500,000 for the fiscal transitional period ending Sept. 30, 1976
and of not to exceed a total of $5,000,000 for the fiscal year Sept. 30, 1977 and the fiscal year ending Sept. 30,
1978.
1976—Par. (1). Pub. L. 94–325, §1(1), redesignated par. (A) as (1), inserted provisions authorizing
appropriations for the fiscal year transitional period ending Sept. 30, 1976, fiscal year ending Sept. 30, 1977,
and fiscal year ending Sept. 30, 1978, and struck out provisions authorizing appropriations of not to exceed
$4,000,000 for fiscal year 1974, and not to exceed $8,000,000 for fiscal year 1975.
Par. (2). Pub. L. 94–325, §1(2), redesignated par. (B) as (2), inserted provisions authorizing appropriation
for the fiscal year transitional period ending Sept. 30, 1976, fiscal year ending Sept. 30, 1977, and fiscal year
ending Sept. 30, 1978, and struck out provisions authorizing appropriations of not to exceed $2,000,000 for
fiscal year 1974, and not to exceed $1,500,000 for fiscal year 1975.
1 So
in original. Probably should be "section".
§1543. Construction with Marine Mammal Protection Act of 1972
Except as otherwise provided in this chapter, no provision of this chapter shall take precedence
over any more restrictive conflicting provision of the Marine Mammal Protection Act of 1972 [16
U.S.C. 1361 et seq.].
(Pub. L. 93–205, §17, Dec. 28, 1973, 87 Stat. 903.)
R
T
This chapter, referred to in text, was in the original "this Act", meaning Pub. L. 93–205, Dec. 28, 1973, 81
Stat. 884, known as the Endangered Species Act of 1973, which is classified principally to this chapter. For
complete classification of this Act to the Code, see Short Title note set out under section 1531 of this title and
Tables.
The Marine Mammal Protection Act of 1972, referred to in text, is Pub. L. 92–522, Oct. 21, 1972, 86 Stat.
1027, as amended, which is classified generally to chapter 31 (§1361 et seq.) of this title. For complete
classification of this Act to the Code, see Short Title note set out under section 1361 of this title and Tables.
§1544. Annual cost analysis by Fish and Wildlife Service
Notwithstanding section 3003 of Public Law 104–66 (31 U.S.C. 1113 note; 109 Stat. 734), on or
before January 15, 1990, and each January 15 thereafter, the Secretary of the Interior, acting through
the Fish and Wildlife Service, shall submit to the Congress an annual report covering the preceding
fiscal year which shall contain—
(1) an accounting on a species by species basis of all reasonably identifiable Federal
expenditures made primarily for the conservation of endangered or threatened species pursuant to
this chapter; and
(2) an accounting on a species by species basis of all reasonably identifiable expenditures made
primarily for the conservation of endangered or threatened species pursuant to this chapter by
States receiving grants under section 1535 of this title.
(Pub. L. 93–205, §18, as added Pub. L. 100–478, title I, §1012, Oct. 7, 1988, 102 Stat. 2314;
amended Pub. L. 106–201, §1(a), May 18, 2000, 114 Stat. 307.)
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R
T
This chapter, referred to in text, was in the original "this Act", meaning Pub. L. 93–205, Dec. 28, 1973, 81
Stat. 884, known as the Endangered Species Act of 1973, which is classified principally to this chapter. For
complete classification of this Act to the Code, see Short Title note set out under section 1531 of this title and
Tables.
A
2000—Pub. L. 106–201, in introductory provisions, substituted "Notwithstanding section 3003 of Public
Law 104–66 (31 U.S.C. 1113 note; 109 Stat. 734), on" for "On".
E
D
2000 A
Pub. L. 106–201, §1(b), May 18, 2000, 114 Stat. 307, provided that: "The amendment made by this section
[amending this section] takes effect on the earlier of—
"(1) the date of enactment of this Act [May 18, 2000]; or
"(2) December 19, 1999."
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| File Type | application/pdf |
| File Modified | 2019-07-24 |
| File Created | 2019-07-24 |