Endangered Species Act (16 USC 1531 et seq)

Page 1801

TITLE 16—CONSERVATION

Section 1504, Pub. L. 91–524, title X, § 1004, as added
Pub. L. 93–86, § 1(28), Aug. 10, 1973, 87 Stat. 243, authorized furnishing of conservation materials to eligible
owners and operators.
Section 1505, Pub. L. 91–524, title X, § 1005, as added
Pub. L. 93–86, § 1(28), Aug. 10, 1973, 87 Stat. 243; amended
Pub. L. 95–113, title XV, § 1509, Sept. 29, 1977, 91 Stat.
1022, authorized establishment of multiyear set-aside
contracts.
Section 1506, Pub. L. 91–524, title X, § 1006, as added
Pub. L. 93–86, § 1(28), Aug. 10, 1973, 87 Stat. 244, authorized issuance of rules and regulations as well as limitations on total retired acreage.
Section 1507, Pub. L. 91–524, title X, § 1007, as added
Pub. L. 93–86, § 1(28), Aug. 10, 1973, 87 Stat. 244; amended
Pub. L. 93–125, § 1(g)(ii), Oct. 18, 1973, 87 Stat. 450, directed appointment of advisory boards to assist in development of programs under this chapter.
Section 1508, Pub. L. 91–524, title X, § 1008, as added
Pub. L. 93–86, § 1(28), Aug. 10, 1973, 87 Stat. 244, directed
coordination with and utilization of Federal, State, and
local services and facilities to carry out programs and
plans.

§ 1509. Repealed. Pub. L. 95–313, § 16(a)(7), formerly § 13(a)(7), July 1, 1978, 92 Stat. 374; renumbered § 16(a)(7), Pub. L. 101–624, title XII,
§ 1215(1), Nov. 28, 1990, 104 Stat. 3525
Section, Pub. L. 91–524, title X, § 1009, as added Pub.
L. 93–86, § 1(28), Aug. 10, 1973, 87 Stat. 245, set forth provisions relating to establishment, funding requirements, etc., for the forestry incentives program.
EFFECTIVE DATE OF REPEAL
Section repealed effective Oct. 1, 1978, see section 17
of Pub. L. 95–313, set out as an Effective Date note
under section 2101 of this title.

§ 1510. Repealed. Pub. L. 104–127, title
§ 336(d)(1), Apr. 4, 1996, 110 Stat. 1006

III,

Section, Pub. L. 91–524, title X, § 1010, as added Pub.
L. 93–86, § 1(28), Aug. 10, 1973, 87 Stat. 245; amended Pub.
L. 95–313, § 16(a)(7), formerly § 13(a)(7), July 1, 1978, 92
Stat. 374, renumbered § 16(a)(7), Pub. L. 101–624, title
XII, § 1215(1), Nov. 28, 1990, 104 Stat. 3525, related to authorization of appropriations as well as construction
and continuation of programs, contracts, and authorities.

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—

§ 1531

(1) various species of fish, wildlife, and
plants in the United States have been rendered
extinct as a consequence of economic growth
and development untempered by adequate concern and conservation;
(2) other species of fish, wildlife, and plants
have been so depleted in numbers that they
are in danger of or threatened with extinction;
(3) these species of fish, wildlife, and plants
are of esthetic, ecological, educational, historical, recreational, and scientific value to the
Nation and its people;
(4) the United States has pledged itself as a
sovereign state in the international community to conserve to the extent practicable the
various species of fish or wildlife and plants
facing extinction, pursuant to—
(A) migratory bird treaties with Canada
and Mexico;
(B) the Migratory and Endangered Bird
Treaty with Japan;
(C) the Convention on Nature Protection
and Wildlife Preservation in the Western
Hemisphere;
(D) the International Convention for the
Northwest Atlantic Fisheries;
(E) the International Convention for the
High Seas Fisheries of the North Pacific
Ocean;
(F) the Convention on International Trade
in Endangered Species of Wild Fauna and
Flora; and
(G) other international agreements; and
(5) encouraging the States and other interested parties, through Federal financial assistance and a system of incentives, to develop
and maintain conservation programs which
meet national and international standards is a
key to meeting the Nation’s international
commitments and to better safeguarding, for
the benefit of all citizens, the Nation’s heritage in fish, wildlife, and plants.
(b) Purposes
The purposes of this chapter are to provide a
means whereby the ecosystems upon which endangered species and threatened species depend
may be conserved, to provide a program for the
conservation of such endangered species and
threatened species, and to take such steps as
may be appropriate to achieve the purposes of
the treaties and conventions set forth in subsection (a) of this section.
(c) Policy
(1) It is further declared to be the policy of
Congress that all Federal departments and agencies shall seek to conserve endangered species
and threatened species and shall utilize their authorities in furtherance of the purposes of this
chapter.
(2) It is further declared to be the policy of
Congress that Federal agencies shall cooperate
with State and local agencies to resolve water
resource issues in concert with conservation of
endangered species.
(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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TITLE 16—CONSERVATION
REFERENCES IN TEXT

This chapter, referred to in subsecs. (b) and (c)(1), was
in the original ‘‘this Act’’, meaning Pub. L. 93–205, Dec.
28, 1973, 81 Stat. 884, 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.
AMENDMENTS
1988—Subsec. (a)(4)(G). Pub. L. 100–478 substituted
‘‘; and’’ for period at end.
1982—Subsec. (c). Pub. L. 97–304 designated existing
provisions as par. (1) and added par. (2).
1979—Subsec. (a)(5). Pub. L. 96–159 substituted ‘‘wildlife, and plants’’ for ‘‘wildlife’’.
EFFECTIVE DATE
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].’’
SHORT TITLE OF 1982 AMENDMENT
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’.’’
SHORT TITLE OF 1978 AMENDMENT
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’.’’
SHORT TITLE
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’.’’
WILDLIFE MANAGEMENT AND WORKING LANDS FOR
WILDLIFE CONSERVATION MODEL
Pub. L. 115–334, title II, § 2407, Dec. 20, 2018, 132 Stat.
4573, provided that:
‘‘(a) IN GENERAL.—The Secretary [of Agriculture] and
the Secretary of the Interior shall continue to carry
out the Working Lands for Wildlife model of conservation on working landscapes, as implemented on the day
before the date of enactment of this Act [Dec. 20, 2018],
in accordance with—
‘‘(1) the document entitled ‘Partnership Agreement
Between the United States Department of Agriculture Natural Resources Conservation Service and
the United States Department of the Interior Fish
and Wildlife Service’, numbered A–3A7516–937, and
formalized by the Chief of the Natural Resources Conservation Service on September 15, 2016, and by the
Director of the United States Fish and Wildlife Service on August 4, 2016, as in effect on September 15,
2016; and
‘‘(2) United States Fish and Wildlife Service Director’s Order No. 217, dated August 9, 2016, as in effect
on August 9, 2016.
‘‘(b) EXPANSION OF MODEL.—The Secretary and the
Secretary of the Interior may expand the conservation
model described in subsection (a) through a new partnership agreement between the Farm Service Agency
and the United States Fish and Wildlife Service for the

Page 1802

purpose of carrying out conservation activities for species conservation.
‘‘(c) EXTENSION OF PERIOD OF REGULATORY PREDICTABILITY.—
‘‘(1) DEFINITION OF PERIOD OF REGULATORY PREDICTABILITY.—In this subsection, the term ‘period of regulatory predictability’ means the period of regulatory
predictability under the Endangered Species Act of
1973 (16 U.S.C. 1531 et seq.) initially determined in accordance with the document and order described in
paragraphs (1) and (2), respectively, of subsection (a).
‘‘(2) EXTENSION.—After the period of regulatory predictability, on request of the Secretary, the Secretary of the Interior, acting through the Director of
the United States Fish and Wildlife Service, may provide additional consultation under section 7(a)(2) of
the Endangered Species Act of 1973 (16 U.S.C.
1536(a)(2)), or additional conference under section
7(a)(4) of that Act (16 U.S.C. 1536(a)(4)), as applicable,
with the Chief of the Natural Resources Conservation
Service or the Administrator of the Farm Service
Agency, as applicable, to extend the period of regulatory predictability.’’
RELATIONSHIP TO ENDANGERED SPECIES ACT OF 1973
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.).’’
MINIMIZATION OF CONFLICTS WITH RECREATIONAL
FISHERIES
For provision that all Federal agencies minimize conflicts between recreational fisheries and administration
of this chapter, see Ex. Ord. No. 12962, § 4, June 7, 1995,
60 F.R. 30770, set out as a note under section 1801 of this
title.
EX. ORD. NO. 13648. COMBATING WILDLIFE TRAFFICKING
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:
SECTION 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:

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TITLE 16—CONSERVATION

(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.
SEC. 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 (CoChairs), 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.
SEC. 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;
(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.
SEC. 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.

§ 1532

SEC. 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.
SEC. 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.
BARACK OBAMA.
[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.]
EXTENSION OF TERM OF ADVISORY COUNCIL ON WILDLIFE
TRAFFICKING
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.

§ 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

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TITLE 16—CONSERVATION

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

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(D) between persons within the United
States, where the fish and wildlife in question are moving in any country or countries
outside the United States.
(10) The term ‘‘import’’ means to land on,
bring into, or introduce into, or attempt to
land on, bring into, or introduce into, any
place subject to the jurisdiction of the United
States, whether or not such landing, bringing,
or introduction constitutes an importation
within the meaning of the customs laws of the
United States.
(11) Repealed. Pub. L. 97–304, § 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.

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TITLE 16—CONSERVATION

(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.)
REFERENCES IN TEXT
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.
AMENDMENTS
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 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’’.

§ 1533

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’’.
TERMINATION OF TRUST TERRITORY OF THE PACIFIC
ISLANDS
For termination of Trust Territory of the Pacific Islands, see note set out preceding section 1681 of Title
48, Territories and Insular Possessions.

§ 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,
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,

§ 1533

TITLE 16—CONSERVATION

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),

Page 1806

the Secretary shall make a finding as to whether the petition presents substantial scientific or
commercial information indicating that the petitioned action may be warranted. If such a petition is found to present such information, the
Secretary shall promptly commence a review of
the status of the species concerned. The Secretary shall promptly publish each finding made
under this subparagraph in the Federal Register.
(B) Within 12 months after receiving a petition
that is found under subparagraph (A) to present
substantial information indicating that the petitioned action may be warranted, the Secretary
shall make one of the following findings:
(i) The petitioned action is not warranted, in
which case the Secretary shall promptly publish such finding in the Federal Register.
(ii) The petitioned action is warranted, in
which case the Secretary shall promptly publish in the Federal Register a general notice
and the complete text of a proposed regulation
to implement such action in accordance with
paragraph (5).
(iii) The petitioned action is warranted, but
that—
(I) the immediate proposal and timely promulgation of a final regulation implementing the petitioned action in accordance with
paragraphs (5) and (6) is precluded by pending proposals to determine whether any species is an endangered species or a threatened
species, and
(II) expeditious progress is being made to
add qualified species to either of the lists
published under subsection (c) and to remove
from such lists species for which the 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.
1 So

in original. Probably should be paragraph ‘‘(7)’’.

Page 1807

TITLE 16—CONSERVATION

(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;
(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

§ 1533

(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 oneyear period specified in subparagraph (A) by
not more than one additional year, but not
later than the close of such additional year
the Secretary must publish a final regulation,
based on such data as may be available at that
time, designating, to the maximum extent
prudent, such habitat.
(7) Neither paragraph (4), (5), or (6) of this subsection nor section 553 of title 5 shall apply to
any regulation issued by the Secretary in regard
to any emergency posing a significant risk to
the well-being of any species of fish or wildlife
or plants, but only if—
(A) at the time of publication of the regulation in the Federal Register the Secretary
publishes therein detailed reasons why such
regulation is necessary; and
(B) in the case such regulation applies to
resident species of fish or wildlife, or plants,
the Secretary gives actual notice of such regulation to the State agency in each State in
which such species is believed to occur.

§ 1533

TITLE 16—CONSERVATION

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

Page 1808

under section 1538(a)(1) of this title, in the case
of fish or wildlife, or section 1538(a)(2) of this
title, in the case of plants, with respect to endangered species; except that with respect to the
taking of resident species of fish or wildlife,
such regulations shall apply in any State which
has entered into a cooperative agreement pursuant to section 1535(c) of this title only to the extent that such regulations have also been adopted by such State.
(e) Similarity of appearance cases
The Secretary may, by regulation of commerce or taking, and to the extent he deems advisable, treat any species as an endangered species or threatened species even though it is not
listed pursuant to this section if he finds that—
(A) such species so closely resembles in appearance, at the point in question, a species
which has been listed pursuant to such section
that enforcement personnel would have substantial difficulty in attempting to differentiate between the listed and unlisted species;
(B) the effect of this substantial difficulty is
an additional threat to an endangered or
threatened species; and
(C) such treatment of an unlisted species
will substantially facilitate the enforcement
and further the policy of this chapter.
(f) Recovery plans
(1) The Secretary shall develop and implement
plans (hereinafter in this subsection referred to
as ‘‘recovery plans’’) for the conservation and
survival of endangered species and threatened
species listed pursuant to this section, unless he
finds that such a plan will not promote the conservation of the species. The Secretary, in developing and implementing recovery plans, shall,
to the maximum extent practicable—
(A) give priority to those endangered species
or threatened species, without regard to taxonomic classification, that are most likely to
benefit from such plans, particularly those
species that are, or may be, in conflict with
construction or other development projects or
other forms of economic activity;
(B) incorporate in each plan—
(i) a description of such site-specific management actions as may be necessary to
achieve the plan’s goal for the conservation
and survival of the species;
(ii) objective, measurable criteria which,
when met, would result in a determination,
in accordance with the provisions of this
section, that the species be removed from
the list; and
(iii) estimates of the time required and the
cost to carry out those measures needed to
achieve the plan’s goal and to achieve intermediate steps toward that goal.
(2) The Secretary, in developing and implementing recovery plans, may procure the services of appropriate public and private agencies
and institutions, and other qualified persons.
Recovery teams appointed pursuant to this subsection shall not be subject to the Federal Advisory Committee Act.
(3) The Secretary shall report every two years
to the Committee on Environment and Public
Works of the Senate and the Committee on Mer-

Page 1809

chant 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—
(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
2 So

§ 1533

TITLE 16—CONSERVATION

in original. Probably should be paragraph ‘‘(7)’’.

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.)
REFERENCES IN TEXT
Reorganization Plan Numbered 4 of 1970, referred to
in subsec. (a)(2), is Reorg. Plan No. 4 of 1970, eff. Oct. 3,
1970, 35 F.R. 15627, 84 Stat. 2090, which is set out in the
Appendix to Title 5, Government Organization and Employees.
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.
AMENDMENTS
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 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

§ 1533

TITLE 16—CONSERVATION

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).

Page 1810

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.
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)’’.
EFFECTIVE DATE OF 1982 AMENDMENT
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 ef-

Page 1811

§ 1535

TITLE 16—CONSERVATION

fect 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.’’
ABOLITION OF HOUSE COMMITTEE ON MERCHANT MARINE
AND FISHERIES
Committee on Merchant Marine and Fisheries of
House of Representatives abolished and its jurisdiction
transferred by House Resolution No. 6, One Hundred
Fourth Congress, Jan. 4, 1995. Committee on Merchant
Marine and Fisheries of House of Representatives treated as referring to Committee on Resources of House of
Representatives in case of provisions relating to fisheries, wildlife, international fishing agreements, marine affairs (including coastal zone management) except for measures relating to oil and other pollution of
navigable waters, or oceanography by section 1(b)(3) of
Pub. L. 104–14, set out as a note preceding section 21 of
Title 2, The Congress. 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.

§ 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 acquir-

ing 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.)
REFERENCES IN TEXT
The Fish and Wildlife Act of 1956, as amended, referred to in subsec. (a)(1), is act Aug. 8, 1956, ch. 1036,
70 Stat. 119, 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, which is classified generally to sections 661
to 666c–1 of this title. For complete classification of
this Act to the Code, see section 661(a) of this title,
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,
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.
AMENDMENTS
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.

§ 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

§ 1535

TITLE 16—CONSERVATION

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

Page 1812

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;

Page 1813

TITLE 16—CONSERVATION

(E) the relative urgency to initiate a program to restore and protect an endangered
species or threatened species in terms of survival of the species;
(F) the importance of monitoring the status
of candidate species within a State to prevent
a significant risk to the well being of any such
species; and
(G) the importance of monitoring the status
of recovered species within a State to assure
that such species do not return to the point at
which the measures provided pursuant to this
chapter are again necessary.
So much of the annual appropriation made in
accordance with provisions of subsection (i) of
this section allocated for obligation to any
State for any fiscal year as remains unobligated
at the close thereof is authorized to be made
available to that State until the close of the
succeeding fiscal year. Any amount allocated to
any State which is unobligated at the end of the
period during which it is available for expenditure is authorized to be made available for expenditure by the Secretary in conducting programs under this section.
(2) Such cooperative agreements shall provide
for (A) the actions to be taken by the Secretary
and the States; (B) the benefits that are expected to be derived in connection with the conservation of endangered or threatened species;
(C) the estimated cost of these actions; and (D)
the share of such costs to be borne by the Federal Government and by the States; except
that—
(i) the Federal share of such program costs
shall not exceed 75 percent of the estimated
program cost stated in the agreement; and
(ii) the Federal share may be increased to 90
percent whenever two or more States having a
common interest in one or more endangered or
threatened species, the conservation of which
may be enhanced by cooperation of such
States, enter jointly into an agreement with
the Secretary.
The Secretary may, in his discretion, and under
such rules and regulations as he may prescribe,
advance funds to the State for financing the
United States pro rata share agreed upon in the
cooperative agreement. For the purposes of this
section, the non-Federal share may, in the discretion of the Secretary, be in the form of
money or real property, the value of which will
be determined by the Secretary, whose decision
shall be final.
(e) Review of State programs
Any action taken by the Secretary under this
section shall be subject to his periodic review at
no greater than annual intervals.
(f) Conflicts between Federal and State laws
Any State law or regulation which applies
with respect to the importation or exportation
of, or interstate or foreign commerce in, endangered species or threatened species is void to the
extent that it may effectively (1) permit what is
prohibited by this chapter or by any regulation
which implements this chapter, or (2) prohibit
what is authorized pursuant to an exemption or
permit provided for in this chapter or in any
regulation which implements this chapter. This

§ 1535

chapter shall not otherwise be construed to void
any State law or regulation which is intended to
conserve migratory, resident, or introduced fish
or wildlife, or to permit or prohibit sale of such
fish or wildlife. Any State law or regulation respecting the taking of an endangered species or
threatened species may be more restrictive than
the exemptions or permits provided for in this
chapter or in any regulation which implements
this chapter but not less restrictive than the
prohibitions so defined.
(g) Transition
(1) For purposes of this subsection, the term
‘‘establishment period’’ means, with respect to
any State, the period beginning on December 28,
1973, and ending on whichever of the following
dates first occurs: (A) the date of the close of
the 120-day period following the adjournment of
the first regular session of the legislature of
such State which commences after December 28,
1973, or (B) the date of the close of the 15-month
period following December 28, 1973.
(2) The prohibitions set forth in or authorized
pursuant to sections 1533(d) and 1538(a)(1)(B) of
this title shall not apply with respect to the
taking of any resident endangered species or
threatened species (other than species listed in
Appendix I to the Convention or otherwise specifically covered by any other treaty or Federal
law) within any State—
(A) which is then a party to a cooperative
agreement with the Secretary pursuant to
subsection (c) of this section (except to the extent that the taking of any such species is
contrary to the law of such State); or
(B) except for any time within the establishment period when—
(i) the Secretary applies such prohibition
to such species at the request of the State,
or
(ii) the Secretary applies such prohibition
after he finds, and publishes his finding, that
an emergency exists posing a significant
risk to the well-being of such species and
that the prohibition must be applied to protect such species. The Secretary’s finding
and publication may be made without regard
to the public hearing or comment provisions
of section 553 of title 5 or any other provision of this chapter; but such prohibition
shall expire 90 days after the date of its imposition unless the Secretary further extends such prohibition by publishing notice
and a statement of justification of such extension.
(h) Regulations
The Secretary is authorized to promulgate
such regulations as may be appropriate to carry
out the provisions of this section relating to financial assistance to States.
(i) Appropriations
(1) To carry out the provisions of this section
for fiscal years after September 30, 1988, there
shall be deposited into a special fund known as
the cooperative endangered species conservation
fund, to be administered by the Secretary, an
amount equal to 5 percent of the combined
amounts covered each fiscal year into the Federal aid to wildlife restoration fund under sec-

§ 1536

TITLE 16—CONSERVATION

tion 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.)
REFERENCES IN TEXT
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.
AMENDMENTS
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’’.
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).

Page 1814

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.
COOPERATIVE AGREEMENTS WITH STATES UNAFFECTED
BY 1981 AMENDMENT OF MARINE MAMMAL PROTECTION
ACT
Nothing in the amendment of section 1379 of this title
by section 4(a) of Pub. L. 97–58 to be construed as affecting in any manner any cooperative agreement entered into by a State under subsec. (c) of this section
before, on, or after Oct. 9, 1981, see section 4(b) of Pub.
L. 97–58, set out as a note under section 1379 of this
title.

§ 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

Page 1815

TITLE 16—CONSERVATION

action at the request of, and in cooperation
with, the prospective permit or license applicant
if the applicant has reason to believe that an endangered species or a threatened species may be
present in the area affected by his project and
that implementation of such action will likely
affect such species.
(4) Each Federal agency shall confer with the
Secretary on any agency action which is likely
to jeopardize the continued existence of any species proposed to be listed under section 1533 of
this title or result in the destruction or adverse
modification of critical habitat proposed to be
designated for such species. This paragraph does
not require a limitation on the commitment of
resources as described in subsection (d).
(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.

§ 1536

(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
(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

§ 1536

TITLE 16—CONSERVATION

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.
(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 Gov-

Page 1816

ernment 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

Page 1817

TITLE 16—CONSERVATION

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.
(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—

§ 1536

(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 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

§ 1536

TITLE 16—CONSERVATION

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 re-

Page 1818

spect to the matter within 30 days after the date
of the finding.
(i) Review by Secretary of State; violation of
international treaty or other international
obligation of United States
Notwithstanding any other provision of this
chapter, the Committee shall be prohibited from
considering for exemption any application made
to it, if the Secretary of State, after a review of
the proposed agency action and its potential implications, and after hearing, certifies, in writing, to the Committee within 60 days of any application made under this section that the
granting of any such exemption and the carrying out of such action would be in violation of
an international treaty obligation or other
international obligation of the United States.
The Secretary of State shall, at the time of such
certification, publish a copy thereof in the Federal Register.
(j) Exemption for national security reasons
Notwithstanding any other provision of this
chapter, the Committee shall grant an exemption for any agency action if the Secretary of
Defense finds that such exemption is necessary
for reasons of national security.
(k) Exemption decision not considered major
Federal action; environmental impact statement
An exemption decision by the Committee
under this section shall not be a major Federal
action for purposes of the National Environmental Policy Act of 1969 [42 U.S.C. 4321 et seq.]:
Provided, That an environmental impact statement which discusses the impacts upon endangered species or threatened species or their critical habitats shall have been previously prepared with respect to any agency action exempted by such order.
(l) Committee order granting exemption; cost of
mitigation and enhancement measures; report by applicant to Council on Environmental Quality
(1) If the Committee determines under subsection (h) 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

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TITLE 16—CONSERVATION

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 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.)
REFERENCES IN TEXT
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.
AMENDMENTS
1988—Subsec. (p). Pub. L. 100–707 substituted ‘‘the Disaster Relief and Emergency Assistance Act’’ for ‘‘the
Disaster Relief Act of 1974’’ and ‘‘section 405 or 406 of
the Disaster Relief and Emergency Assistance Act’’ for
‘‘section 401 or 402 of the Disaster Relief Act of 1974’’.
1986—Subsec. (b)(4)(C). Pub. L. 99–659, § 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.

§ 1536

TITLE 16—CONSERVATION

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 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

Page 1820

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 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], re-

Page 1821

TITLE 16—CONSERVATION

quest 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.
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

§ 1536

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).
DEFERRAL OF AGENCY ACTION
Pub. L. 105–18, title II, § 3003, June 12, 1997, 111 Stat.
176, provided that:

§ 1536

TITLE 16—CONSERVATION

‘‘(a) CONSULTATION AND CONFERENCING.—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 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) REASONABLE AND PRUDENT MEASURES.—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.’’
TRANSLOCATION OF CALIFORNIA SEA OTTERS
Pub. L. 99–625, § 1, Nov. 7, 1986, 100 Stat. 3500, provided
that:
‘‘(a) DEFINITIONS.—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) PLAN SPECIFICATIONS.—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 contain-

Page 1822

ment 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) STATUS OF MEMBERS OF THE EXPERIMENTAL POPULATION.—(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,
‘‘(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) IMPLEMENTATION OF PLAN.—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) CONSULTATION AND EFFECT OF OPINION.—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 pru-

Page 1823

§ 1537

TITLE 16—CONSERVATION

dent 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) CONSTRUCTION.—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—
(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 person-

nel, 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.)
REFERENCES IN TEXT
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.
CODIFICATION
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.
AMENDMENTS
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.
EFFECTIVE DATE OF 2008 AMENDMENT
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.
CONSERVATION OF SEA TURTLES; IMPORTATION OF
SHRIMP
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—
‘‘(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

§ 1537a

TITLE 16—CONSERVATION

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) IN GENERAL.—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) CERTIFICATION PROCEDURE.—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.’’
EXECUTIVE ORDER NO. 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.
DELEGATION OF AUTHORITY REGARDING CERTIFICATION OF
COUNTRIES EXPORTING SHRIMP TO UNITED STATES
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

Page 1824

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.
GEORGE BUSH.

§ 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.

Page 1825

TITLE 16—CONSERVATION

§ 1538

(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.

ed 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.

(3) No later than September 30, 1985, the Secretary and the Secretary of State shall submit a
report to Congress describing those steps taken
in accordance with the requirements of this subsection and identifying the principal remaining
actions yet necessary for comprehensive and effective implementation of the Western Convention.
(4) The provisions of this subsection shall not
be construed as affecting the authority, jurisdiction, or responsibility of the several States to
manage, control, or regulate resident fish or
wildlife under State law or regulations.

(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 authority provided by this chapter.

(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.)
AMENDMENTS
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.
EFFECTIVE DATE OF 1982 AMENDMENT
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.’’
ABOLITION OF HOUSE COMMITTEE ON MERCHANT MARINE
AND FISHERIES
Committee on Merchant Marine and Fisheries of
House of Representatives abolished and its jurisdiction
transferred by House Resolution No. 6, One Hundred
Fourth Congress, Jan. 4, 1995. Committee on Merchant
Marine and Fisheries of House of Representatives treat-

ENDANGERED SPECIES SCIENTIFIC AUTHORITY; INTERIM
PERFORMANCE OF FUNCTIONS OF COMMISSION
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

(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

§ 1538

TITLE 16—CONSERVATION

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

Page 1826

the Convention and all other applicable requirements of the Convention have been satisfied,
(C) the applicable requirements of subsections (d), (e), and (f) of this section have
been satisfied, and
(D) such importation is not made in the
course of a commercial activity,
be presumed to be an importation not in violation of any provision of this 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 pur-

Page 1827

TITLE 16—CONSERVATION

poses 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.
(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.)
REFERENCES IN TEXT
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.
AMENDMENTS
1988—Subsec. (a)(2)(B). Pub. L. 100–478, § 1006, amended
subpar. (B) generally. Prior to amendment, subpar. (B)
1 See

References in Text note below.

§ 1538

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).
EXEMPTION OF EXPORTATION OF CERTAIN ECHINODERMS
FROM PERMISSION AND LICENSING REQUIREMENTS
Pub. L. 115–334, title XII, § 12617, Dec. 20, 2018, 132
Stat. 5016, provided that:
‘‘(a) DEFINITIONS.—In this section:
‘‘(1) CONSERVATION AND MANAGEMENT.—The term
‘conservation and management’ has the meaning
given the term in section 3 of the Magnuson-Stevens
Fishery Conservation and Management Act (16 U.S.C.
1802).
‘‘(2) MARINE FISHERIES COMMISSION.—The term ‘Marine Fisheries Commission’ means an interstate commission (as that term is used in the Interjurisdictional Fisheries Act of 1986 (16 USC [U.S.C.] 4101 et
seq.)).
‘‘(3) STATE JURISDICTION.—The term ‘State jurisdiction’ means areas under the jurisdiction and authority of a State as described in section 306(a)(2) of the
Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1856(a)(2)).
‘‘(b) EXEMPTION.—Not later than 90 days after the
date of enactment of this Act [Dec. 20, 2018], the Director of the United States Fish and Wildlife Service shall
amend section 14.92 of title 50, Code of Federal Regulations, to clarify that—
‘‘(1) except as provided in paragraph (2) and subsection (d)(2)—
‘‘(A) fish and wildlife described in subsection (c)
are fishery products exempt from the export permission requirements of section 9(d)(1) of the Endangered Species Act of 1973 (16 U.S.C. 1538(d)(1));
and

§ 1539

TITLE 16—CONSERVATION

‘‘(B) any person may engage in business as an exporter of fish or wildlife described in subsection (c)
without procuring—
‘‘(i) permission under section 9(d)(1) of the Endangered Species Act of 1973 (16 U.S.C. 1538(d)(1));
or
‘‘(ii) an export license under subpart I of part 14
of title 50, Code of Federal Regulations (or successor regulations); and
‘‘(2) notwithstanding paragraph (1), unless the person has qualified for and obtained an export license
described in paragraph (1)(B)(ii), any person that has
been convicted of 1 or more violations of a Federal
law relating to the importation, transportation, or
exportation of wildlife shall not be permitted, during
the 5-year period beginning on the date of the most
recent conviction, to engage in business as an exporter of fish or wildlife described in subsection (c).
‘‘(c) COVERED FISH OR WILDLIFE.—The fish or wildlife
referred to in subsection (b) are members of the species
Strongylocentrotus droebachiensis (commonly known as
the ‘green sea urchin’), including any products of that
species, that—
‘‘(1) do not require a permit under part 16, 17, or 23
of title 50, Code of Federal Regulations (or successor
regulations);
‘‘(2)(A) are harvested in waters under State jurisdiction; or
‘‘(B) are imported for processing in the United
States pursuant to an import license as required
under section 14.91 of title 50, Code of Federal Regulations (or a successor regulation), and not exempt
from import license requirements under section 14.92
of that title (as in effect on the day before the date
of enactment of this Act); and
‘‘(3) are exported for purposes of human or animal
consumption.
‘‘(d) INFORMATION COLLECTION ON EXPORTS.—
‘‘(1) IN GENERAL.—The State agency that regulates
or otherwise oversees a State fishery in which the
fish and wildlife described in subsection (c) are harvested shall annually transmit the conservation and
management data (as defined in subsection (a)) to the
Interstate Fisheries Management Program Policy
Board of the applicable Marine Fisheries Commission.
‘‘(2) PRIVACY.—Such data thereafter shall not be released and shall be maintained as confidential by
such applicable Marine Fisheries Commission, including data requested under the [sic] section 552 of title
5, United States Code, unless disclosure is required
under court order or unless the data is essential for
an enforcement action under Federal wildlife management laws.
‘‘(3) EXCLUSION.—The exemption under subsection
(b)(1) shall not apply in a State if—
‘‘(A) the State fails to transmit the data required
under paragraph (1); or
‘‘(B) the applicable Marine Fisheries Commission
determines, in consultation with the primary research agency of such Commission, after notice and
an opportunity to comment, that the data required
under paragraph (1) fails to prove that the State
agency or official is engaged in conservation and
management of the fish or wildlife described in subsection (c).’’
HUMAN ACTIVITIES WITHIN PROXIMITY OF WHALES
Pub. L. 103–238, § 17, Apr. 30, 1994, 108 Stat. 559, provided that:
‘‘(a) LAWFUL APPROACHES.—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) TERMINATION OF LEGAL EFFECT OF CERTAIN REGULATIONS.—Subsection (b) of section 222.31 of title 50,

Page 1828

Code of Federal Regulations, shall cease to be in force
and effect.’’
TERRITORIAL SEA OF UNITED STATES
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.

§ 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.

Page 1829

TITLE 16—CONSERVATION

(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 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
1 See

References in Text note below.

§ 1539

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 non-native resident of an Alaskan
native village found by the Secretary to be not
primarily dependent upon the taking of fish and
wildlife for consumption or for the creation and
sale of authentic native articles of handicrafts
and clothing.
(2) Any taking under this subsection may not
be accomplished in a wasteful manner.
(3) As used in this subsection—
(i) The term ‘‘subsistence’’ includes selling
any edible portion of fish or wildlife in native
villages and towns in Alaska for native consumption within native villages or towns; and
(ii) The term ‘‘authentic native articles of
handicrafts and clothing’’ means items composed wholly or in some significant respect 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

§ 1539

TITLE 16—CONSERVATION

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;

Page 1830

(C) is accompanied by such documentation
as the Secretary may require to prove that
any endangered species part or product
claimed by the applicant to be a pre-Act endangered species part is in fact such a part;
and
(D) contains such other information as the
Secretary deems necessary and appropriate to
carry out the purposes of this subsection.
(4) If the Secretary approves any application
for exemption made under this subsection, he
shall issue to the applicant a certificate of exemption which shall specify—
(A) any prohibition in section 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 preAct 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.

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TITLE 16—CONSERVATION

(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
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—
2 So

in original. No cl. (ii) has been enacted.

§ 1539

(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
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.

§ 1539

TITLE 16—CONSERVATION

(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.)
REFERENCES IN TEXT
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.
AMENDMENTS
1988—Subsec. (c). Pub. L. 100–478, § 1013(b), substituted
‘‘notice, of’’ for ‘‘notice,’’ in second sentence.

Page 1832

Subsec. (e)(3)(ii). Pub. L. 100–478, § 1013(c), substituted
‘‘lacing,’’ for ‘‘lacking,’’.
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).
EFFECTIVE DATE OF 1982 AMENDMENT
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.’’

Page 1833

TITLE 16—CONSERVATION
TRANSFER OF FUNCTIONS

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.
SCRIMSHAW EXEMPTIONS
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
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].’’

§ 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 para-

§ 1540

graph (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 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

§ 1540

TITLE 16—CONSERVATION

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

Page 1834

other container, including its contents, and all
accompanying documents, upon importation or
exportation. Such person may 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 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

Page 1835

TITLE 16—CONSERVATION

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 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—

§ 1540

(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 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.
1 See

References in Text note below.

§ 1541

TITLE 16—CONSERVATION

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.)
REFERENCES IN TEXT
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.
AMENDMENTS
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

Page 1836

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’’.
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’’.
CHANGE OF NAME
‘‘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.
EFFECTIVE DATE OF 1981 AMENDMENT
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.’’
TRANSFER OF FUNCTIONS
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.

§ 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 recom-

Page 1837

TITLE 16—CONSERVATION

mendations 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 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.)
REFERENCES IN TEXT
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.
AMENDMENTS
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 au1 So

in original. Probably should be ‘‘section’’.

§ 1542

thorizing, 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 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

§ 1543

TITLE 16—CONSERVATION

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.

Page 1838

CHAPTER 36—FOREST AND RANGELAND
RENEWABLE RESOURCES PLANNING
SUBCHAPTER I—PLANNING

§ 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.].

Sec.

1600.
1601.
1602.

1603.

(Pub. L. 93–205, § 17, Dec. 28, 1973, 87 Stat. 903.)
REFERENCES IN TEXT

1604.

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.

1605.

§ 1544. Annual cost analysis by Fish and Wildlife
Service

1608.
1609.
1610.

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.)
REFERENCES IN TEXT
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.
AMENDMENTS
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’’.
EFFECTIVE DATE OF 2000 AMENDMENT
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.’’

1606.
1606a.
1607.

1611.
1612.
1613.
1614.

Congressional findings.
Renewable Resource Assessment.
Renewable Resource Program; preparation by
Secretary and transmittal to President;
purpose and development of program; time
of preparation, updating and contents.
National Forest System resource inventories;
development, maintenance, and updating by
Secretary as part of Assessment.
National Forest System land and resource
management plans.
Protection, use and management of renewable resources on non-Federal lands; utilization of Assessment, surveys and Program
by Secretary to assist States, etc.
Budget requests by President for Forest Service activities.
Reforestation Trust Fund.
National Forest System renewable resources;
development and administration by Secretary in accordance with multiple use and
sustained yield concepts for products and
services; target year for operational posture
of resources; budget requests.
National Forest Transportation System.
National Forest System.
Implementation of provisions by Secretary;
utilization of information and data of other
organizations; avoidance of duplication of
planning, etc.; ‘‘renewable resources’’ defined.
Timber.
Public participation.
Promulgation of regulations.
Severability.
SUBCHAPTER II—RESEARCH

1641.
1642.

Findings and purpose.
Investigations, experiments, tests, and other
activities.
1643.
Implementation of provisions.
1644.
Forestry and rangeland competitive research
grants.
1645.
General provisions.
1646.
Authorization of appropriations.
1647.
Other Federal programs.
1648, 1649. Repealed.
1649a.
Repealed.
1650.
Hardwood technology transfer and applied research.
SUBCHAPTER III—EXTENSION PROGRAMS
1671.
1672.
1673.
1674.
1674a.
1674b.
1675.
1676.

Congressional statement of findings.
General program authorization.
State programs.
Renewable Resources Extension Program
plan.
Expanded programs.
Sustainable Forestry Outreach Initiative.
Authorization of appropriations; criteria for
eligibility of States for funds.
Issuance of rules and regulations for implementation of provisions and coordination
with agricultural, research, extension, and
teaching provisions.

SUBCHAPTER IV—WOOD RESIDUE UTILIZATION
1681.
1682.
1683.

1684.
1685.

Congressional statement of purpose.
Pilot projects and demonstrations.
Pilot projects; requirements; residue removal
credits as compensation; implementation
guidelines.
Annual reports.
Regulations.