U.S. FISH AND WILDLIFE SERVICE
DIVISION OF ENDANGERED SPECIES
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ENDANGERED SPECIES ACT OF 1973

Table of Contents

   * FINDINGS, PURPOSES, AND POLICY -- SEC. 2.
   * DEFINITIONS -- SEC. 3.
   * DETERMINATION OF ENDANGERED SPECIES AND THREATENED SPECIES -- SEC. 4.
   * LAND ACQUISITION -- SEC. 5.
   * COOPERATION WITH THE STATES -- SEC. 6.
   * INTERAGENCY COOPERATION -- SEC. 7.
   * INTERNATIONAL COOPERATION -- SEC. 8.
   * PROHIBITED ACTS -- SEC. 9.
   * EXCEPTIONS -- SEC. 10.
   * PENALTIES AND ENFORCEMENT -- SEC. 11.
   * ENDANGERED PLANTS -- SEC. 12.
   * CONFORMING AMENDMENTS -- SEC. 13.
   * REPEALER -- SEC. 14.
   * AUTHORIZATION OF APPROPRIATIONS -- SEC. 15.
   * EFFECTIVE DATE -- SEC. 16.
   * MARINE MAMMAL PROTECTION ACT OF 1972 -- SEC. 17.

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FINDINGS, PURPOSES, AND POLICY 

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

DEFINITIONS ^

SEC. 3. For the purposes of this Act-
(1) The term "alternative courses of action" means all alternatives and thus
is not limited to original project objectives and agency jurisdiction.
(2) The term "commercial activity" means all activities of industry and
trade, including, but not limited to, the buying or selling of commodities
and activities conducted for the purpose of facilitating such buying and
selling: Provided, however, that it does not include exhibitions of
commodities by museums or similar cultural or historical organizations.
(3) The terms "conserve," "conserving," and "conservation" mean to use and
the use of all methods and procedures which are necessary to bring any
endangered species or threatened species to the point at which the measures
provided pursuant to this Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated with
scientific resources management such as research, census, law enforcement,
habitat acquisition and maintenance, propagation, live trapping, and trans-
plantation, and, in the extraordinary case where population pressures within
a given ecosystem cannot be otherwise relieved, may include regulated
taking.
(4) The term "Convention" means the Convention on International Trade in
Endangered Species of Wild Fauna and Flora, signed on March 3, 1973, and the
appendices thereto.
(5)(A) The term "critical habitat" for a threatened or endangered species
means-
(i) the specific areas within the geographical area occupied by the species,
at the time it is listed in accordance with the provisions of section 4 of
this Act, on which are found those physical or biological features (I)
essential to the conservation of the species and (II) which may require
special management considerations or protection; and
(ii) specific areas outside the geographical area occupied by the species at
the time it is listed in accordance with the provisions of section 4 of this
Act, upon a determination by the Secretary that such areas are essential for
the conservation of the species.
(B) Critical habitat may be established for those species now listed as
threatened or endangered species for which no critical habitat has
heretofore been established as set forth in subparagraph (A) of this
paragraph.
(C) Except in those circumstances determined by the Secretary, critical
habitat shall not include the entire geographical area which can be occupied
by the threatened or endangered species.
(6) The term "endangered species" means any species which is in danger of
extinction throughout all or a significant portion of its range other than a
species of the Class Insecta determined by the Secretary to constitute a
pest whose protection under the provisions of this Act would present an
overwhelming and overriding risk to man.
(7) The term "Federal agency" means any department, agency, or
instrumentality of the United States.
(8) The term "fish or wildlife" means any member of the animal kingdom,
including without limitation any mammal, fish, bird (including any
migratory, nonmigratory, or endangered bird for which protection is also
afforded by treaty or other international agreement), amphibian, reptile,
mollusk, crustacean, arthropod or other invertebrate, and includes any part,
product, egg, or offspring thereof, or the dead body or parts thereof.
(9) The term "foreign commerce" includes, among other things, any
transaction-
(A) between persons within one foreign country;
(B) between persons in two or more foreign countries;
(C) between a person within the United States and a person in a foreign
country; or
(D) between persons within the United States, where the fish and wildlife in
question are moving in any country or countries outside the United States.
(10) The term "import" means to land on, bring into, or introduce into, or
attempt to land on, bring into, or introduce into, any place subject to the
jurisdiction of the United States, whether or not such landing, bringing, or
introduction constitutes an importation within the meaning of the customs
laws of the United States.
(11) The term "permit or license applicant" means, when used with respect to
an action of a Federal agency for which exemption is sought under section 7,
any person whose application to such agency for a permit or license has been
denied primarily because of the application of section 7(a) to such agency
action.
(12) "The term person means an individual, corporation, partnership, trust,
association, or any other private entity; or any officer, employee, agent,
department, or instrumentality of the Federal Government, of any State,
municipality, or political subdivision of a State, or of any foreign
government; any State, municipality, or political subdivision of a State; or
any other entity subject to the jurisdiction of the United States."
(13) The term "plant" means any member of the plant kingdom, including
seeds, roots and other parts thereof.
(14) The term "Secretary" means, except as otherwise herein provided, the
Secretary of the Interior or the Secretary of Commerce as program
responsibilities are vested pursuant to the provisions of Reorganization
Plan Numbered 4 of 1970; except that with respect to the enforcement of the
provisions of this Act and the Convention which pertain to the importation
or exportation of terrestrial plants, the term also means the Secretary of
Agriculture.
(15) The term "species" includes any subspecies of fish or wildlife or
plants, and any distinct population segment of any species or vertebrate
fish or wildlife which interbreeds when mature.
(16) The term "State" means any of the several States, the District of
Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin
Islands, Guam, and the Trust Territory of the Pacific Islands.
(17) The term "State agency" means any State agency, department, board,
commission, or other governmental entity which is responsible for the
management and conservation of fish, plant, or wildlife resources within a
State.
(18) The term "take" means to harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, or collect, or to attempt to engage in any such
conduct.
(19) The term "threatened species" means any species which is likely to
become an endangered species within the foreseeable future throughout all or
a significant portion of its range.
(20) The term "United States," when used in a geographical context, includes
all States.

DETERMINATION OF ENDANGERED SPECIES AND THREATENED SPECIES ^

Sec. 4.
(a) GENERAL.-
(1) The Secretary shall by regulation promulgated in accordance with
subsection (b) determine whether any species is an endangered species or a
threatened species because of any of the following factors:
(A) the present or threatened destruction, modification, or curtailment of
its habitat or range;
(B) overutilization for commercial, recreational, scientific, or educational
purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms;
(E) other natural or manmade factors affecting its continued existence.
(2) With respect to any species over which program responsibilities have
been vested in the Secretary of Commerce pursuant to Reorganization Plan
Numbered 4 of 1970-
(A) in any case in which the Secretary of Commerce determines that such
species should-
(i) be listed as an endangered species or a threatened species, or
(ii) be changed in status from a threatened species to an endangered
species, he shall so inform the Secretary of the Interior, who shall list
such species in accordance with this section;
(B) in any case in which the Secretary of Commerce determines that such
species should-
(i) be removed from any list published pursuant to subsection (c) of this
section, or
(ii) be changed in status from an endangered species to a threatened
species, he shall recommend such action to the Secretary of the Interior,
and the Secretary of the Interior, if he concurs in the recommendation,
shall implement such action; and
(C) the Secretary of the Interior may not list or remove from any list any
such species, and may not change the status of any such species which are
listed, without a prior favorable determination made pursuant to this
section by the Secretary of Commerce.
(3) The Secretary, by regulation promulgated in accordance with subsection
(b) and to the maximum extent prudent and determinable-
(A) shall, concurrently with making a determination under paragraph (1) that
a species is an endangered species or a threatened species, designate any
habitat of such species which is then considered to be critical habitat; and
(B) may, from time-to-time thereafter as appropriate, revise such
designation.

(b) BASIS FOR DETERMINATIONS.-
(1)(A) The Secretary shall make determinations required by subsection (a)(1)
solely on the basis of the best scientific and commercial data available to
him after conducting a review of the status of the species and after taking
into account those efforts, if any, being made by any State or foreign
nation, or any political subdivision of a State or foreign nation, to
protect such species, whether by predator control, protection of habitat and
food supply, or other conservation practices, within any area under its
jurisdiction, or on the high seas.
(B) In carrying out this section, the Secretary shall give consideration to
species which have been-
(i) designated as requiring protection from unrestricted commerce by any
foreign nation, or pursuant to any international agreement; or
(ii) identified as in danger of extinction, or likely to become so within
the foreseeable future, by any State agency or by any agency of a foreign
nation that is responsible for the conservation of fish or wildlife or
plants.
(2) The Secretary shall designate critical habitat, and make revisions
thereto, under subsection (a)(3) on the basis of the best scientific data
available and after taking into consideration the economic impact, and any
other relevant impact, of specifying any particular area as critical
habitat. The Secretary may exclude any area from critical habitat if he
determines that the benefits of such exclusion outweigh the benefits of
specifying such area as part of the critical habitat, unless he determines,
based on the best scientific and commercial data available, that the failure
to designate such area as critical habitat will result in the extinction of
the species concerned.
(3)(A) To the maximum extent practicable, within 90 days after receiving the
petition of an interested person under section 553(e) of title 5, United
States Code, to add a species to, or to remove a species from, either of the
lists published under subsection (c), the Secretary shall make a finding as
to whether the petition presents substantial scientific or commercial
information indicating that the petitioned action may be warranted. If such
a petition is found to present such information, the Secretary shall
promptly commence a review of the status of the species concerned. The
Secretary shall promptly publish each finding made under this subparagraph
in the Federal Register.
(B) Within 12 months after receiving a petition that is found under
subparagraph (A) to present substantial information indicating that the
petitioned action may be warranted, the Secretary shall make one of the
following findings:
(i) The petitioned action is not warranted, in which case the Secretary
shall promptly publish such finding in the Federal Register.
(ii) The petitioned action is warranted in which case the Secretary shall
promptly publish in the Federal Register a general notice and the complete
text of a proposed regulation to implement such action in accordance with
paragraph (5).
(iii) The petitioned action is warranted but that-
(I) the immediate proposal and timely promulgation of a final regulation
implementing the petitioned action in accordance with paragraphs (5) and (6)
is precluded by pending proposals to determine whether any species is an
endangered species or a threatened species, and
(II) expeditious progress is being made to add qualified species to either
of the lists published under subsection (c) and to remove from such lists
species for which the protec- tions of the Act are no longer necessary, in
which case the Secretary shall promptly publish such finding in the Federal
Register, together with a description and evaluation of the reasons and data
on which the finding is based.
(C)(i) A petition with respect to which a finding is made under subparagraph
(B)(iii) shall be treated as a petition that is resubmitted to the Secretary
under subparagraph (A) on the date of such finding and that presents
substantial scientific or commercial information that the petitioned action
may be warranted.
(ii) Any negative finding described in subparagraph (A) and any finding
described in subparagraph (B) (i) or (iii) shall be subject to judicial
review.
(iii) The Secretary shall implement a system to monitor effectively the
status of all species with respect to which a finding is made under
subparagraph (B)(iii) and shall make prompt use of the authority under
paragraph 7 to prevent a significant risk to the well being of any such
species.
(D)(i) To the maximum extent practicable, within 90 days after receiving the
petition of an interested person under section 553(e) of title 5, United
States Code, to revise a critical habitat designation, the Secretary shall
make a finding as to whether the petition presents substantial scientific
information indicating that the revision may be warranted. The Secretary
shall promptly publish such finding in the Federal Register.
(ii) Within 12 months after receiving a petition that is found under clause
(i) to present substantial information indicating that the requested
revision may be warranted, the Secretary shall determine how he intends to
proceed with the requested revision, and shall promptly publish notice of
such intention in the Federal Register.
(4) Except as provided in paragraphs (5) and (6) of this subsection, the
provisions of section 553 of title 5, United States Code (relating to
rulemaking procedures), shall apply to any regulation promulgated to carry
out the purposes of this Act.
(5) With respect to any regulation proposed by the Secretary to implement a
determination, designation, or revision referred to in subsection (a) (1) or
(3), the Secretary shall-
(A) not less than 90 days before the effective date of the regulation-
(i) publish a general notice and the complete text of the proposed
regulation in the Federal Register, and
(ii) give actual notice of the proposed regulation (including the complete
text of the regulation) to the State agency in each State in which the
species is believed to occur, and to each county or equivalent jurisdiction
in which the species is believed to occur, and invite the comment of such
agency, and each such jurisdiction, thereon;
(B) insofar as practical, and in cooperation with the Secretary of State,
give notice of the proposed regulation to each foreign nation in which the
species is believed to occur or whose citizens harvest the species on the
high seas, and invite the comment of such nation thereon;
(C) give notice of the proposed regulation to such professional scientific
organizations as he deems appropriate;
(D) publish a summary of the proposed regulation in a newspaper of general
circulation in each area of the United States in which the species is
believed to occur; and
(E) promptly hold one public hearing on the proposed regulation if any
person files a request for such a hearing within 45 days after the date of
publication of general notice.
(6)(A) Within the one-year period beginning on the date on which general
notice is published in accordance with paragraph (5)(A)(i) regarding a
proposed regulation, the Secretary shall publish in the Federal Register-
(i) if a determination as to whether a species is an endangered species or a
threatened species, or a revision of critical habitat, is involved, either-
(I) a final regulation to implement such determination,
(II) a final regulation to implement such revision or a finding that such
revision should not be made,
(III) notice that such one-year period is being extended under subparagraph
(B)(i), or
(IV) notice that the proposed regulation is being withdrawn under
subparagraph
(B)(ii), together with the finding on which such withdrawal is based; or
(ii) subject to subparagraph (C), if a designation of critical habitat is
involved, either-
(I) a final regulation to implement such designation, or
(II) notice that such one-year period is being extended under such
subparagraph.
(B)(i) If the Secretary finds with respect to a proposed regulation referred
to in subparagraph (A)(i) that there is substantial disagreement regarding
the sufficiency or accuracy of the available data relevant to the
determination or revision concerned the Secretary may extend the one-year
period specified in subparagraph (A) for not more than six months for
purposes of soliciting additional data.
(ii) If a proposed regulation referred to in subparagraph (a)(i) is not
promulgated as a final regulation within such one-year period (or longer
period if extension under clause (i) applies) because the Secretary finds
that there is not sufficient evidence to justify the action proposed by the
regulation the Secretary shall immediately withdraw the regulation. The
finding on which a withdrawal is based shall be subject to judicial review.
The Secretary may not propose a regulation that has previously been
withdrawn under this clause unless he determines that sufficient new
information is available to warrant such proposal.
(iii) If the one-year period specified in subparagraph (A) is extended under
clause (i) with respect to a proposed regulation, then before the close of
such extended period the Secretary shall publish in the Federal Register
either a final regulation to implement the determination or revision
concerned, a finding that the revision should not be made, or a notice of
withdrawal of the regulation under clause (ii), together with the finding on
which the withdrawal is based.
(C) A final regulation designating critical habitat of an endangered species
or a threatened species shall be published concurrently with the final
regulation implementing the determination that such species is endangered or
threatened, unless the Secretary deems that-
(i) it is essential to the conservation of such species that the regulation
implementing such determination be promptly published; or
(ii) critical habitat of such species is not then determinable, in which
case the Secretary, with respect to the proposed regulation to designate
such habitat, may extend the one-year period specified in subparagraph (A)
by not more than one additional year, but not later than the close of such
additional year the Secretary must publish a final regulation, based on such
data as may be available at that time, designating, to the maximum extent
prudent, such habitat.
(7) Neither paragraph (4), (5), or (6) of this subsection nor section 553 of
title 5, United States Code, shall apply to any regulation issued by the
Secretary in regard to any emergency posing a significant risk to the
well-being of any species of fish and wildlife or plants, but only if-
(A) at the time of publication of the regulation in the Federal Register the
Secretary publishes therein detailed reasons why such regulation is
necessary; and
(B) in the case such regulation applies to resident species of fish or
wildlife, or plants, the Secretary gives actual notice of such regulation to
the State agency in each State in which such species is believed to occur.
Such regulation shall, at the discretion of the Secretary, take effect
immediately upon the publication of the regulation in the Federal Register.
Any regulation promulgated under the authority of this paragraph shall cease
to have force and effect at the close of the 240-day period following the
date of publication unless, during such 240-day period, the rulemaking
procedures which would apply to such regulation without regard to this
paragraph are complied with. If at any time after issuing an emergency
regulation the Secretary determines, on the basis of the best appropriate
data available to him, that substantial evidence does not exist to warrant
such regulation, he shall withdraw it.
(8) The publication in the Federal Register of any proposed or final
regulation which is necessary or appropriate to carry out the purposes of
this Act shall include a summary by the Secretary of the data on which such
regulation is based and shall show the relationship of such data to such
regulation; and if such regulation designates or revises critical habitat,
such summary shall, to the maximum extent practicable, also include a brief
description and evaluation of those activities (whether public or private)
which, in the opinion of the Secretary, if undertaken may adversely modify
such habitat, or may be affected by such designation.

(c) LISTS.-
(1) The Secretary of the Interior shall publish in the Federal Register a
list of all species determined by him or the Secretary of Commerce to be
endangered species and a list of all species determined by him or the
Secretary of Commerce to be threatened species. Each list shall refer to the
species contained therein by scientific and common name or names, if any,
specify with respect to such species over what portion of its range it is
endangered or threatened, and specify any critical habitat within such
range. The Secretary shall from time to time revise each list published
under the authority of this subsection to reflect recent determinations,
designations, and revisions made in accordance with subsections (a) and (b).
(2) The Secretary shall-
(A) conduct, at least once every five years, a review of all species
included in a list which is published pursuant to paragraph (1) and which is
in effect at the time of such review; and
(B) determine on the basis of such review whether any such species should-
(i) be removed from such list;
(ii) be changed in status from an endangered species to a threatened
species; or
(iii) be changed in status from a threatened species to an endangered
species. Each determination under subparagraph (B) shall be made in
accordance with the provisions of subsection (a) and (b).

(d) PROTECTIVE REGULATIONS.-Whenever any species is listed as a threatened
species pursuant to subsection (c) of this section, the Secretary shall
issue such regulations as he deems necessary and advisable to provide for
the conservation of such species. The Secretary may by regulation prohibit
with respect to any threatened species any act prohibited under section
9(a)(1), in the case of fish or wildlife, or section 9(a)(2), in the case of
plants, with respect to endangered species; except that with respect to the
taking of resident species of fish or wildlife, such regulations shall apply
in any State which has entered into a cooperative agreement pursuant to
section 6(c) of this Act only to the extent that such regulations have also
been adopted by such State.

(e) SIMILARITY OF APPEARANCE CASES.-The Secretary may, by regulation of
commerce or taking, and to the extent he deems advisable, treat any species
as an endangered species or threatened species even though it is not listed
pursuant to section 4 of this Act if he finds that-
(A) such species so closely resembles in appearance, at the point in
question, a species which has been listed pursuant to such section that
enforcement personnel would have substantial difficulty in attempting to
differentiate between the listed and unlisted species;
(B) the effect of this substantial difficulty is an additional threat to an
endangered or threatened species; and
(C) such treatment of an unlisted species will substantially facilitate the
enforcement and further the policy of this Act.

(f)(1) RECOVERY PLANS.-The Secretary shall develop and implement plans
(hereinafter in this subsection referred to as "recovery plans") for the
conservation and survival of endangered species and threatened species
listed pursuant to this section, unless he finds that such a plan will not
promote the conservation of the species. The Secretary, in development and
implementing recovery plans, shall, to the maximum extent practicable-
(A) give priority to those endangered species or threatened species, without
regard to taxonomic classification, that are most likely to benefit from
such plans, particularly those species that are, or may be, in conflict with
construction or other development projects or other forms of economic
activity;
(B) incorporate in each plan-
(i) a description of such site-specific management actions as may be
necessary to achieve the plan's goal for the conservation and survival of
the species;
(ii) objective, measurable criteria which, when met, would result in a
determination, in accordance with the provisions of this section, that the
species be removed from the list; and
(iii) estimates of the time required and the cost to carry out those
measures needed to achieve the plan's goal and to achieve intermediate steps
toward that goal.
(2) The Secretary, in developing and implementing recovery plans, may
procure the services of appropriate public and private agencies and
institutions, and other qualified persons. Recovery teams appointed pursuant
to this subsection shall not be subject to the Federal Advisory Committee
Act.
(3) The Secretary shall report every two years to the Committee on
Environment and Public Works of the Senate and the Committee on Merchant
Marine and Fisheries of the House of Representatives on the status of
efforts to develop and implement recovery plans for all species listed
pursuant to this section and on the status of all species for which such
plans have been developed.
(4) The Secretary shall, prior to final approval of a new or revised
recovery plan, provide public notice and an opportunity for public review
and comment on such plan. The Secretary shall consider all information
presented during the public comment period prior to approval of the plan.
(5) Each Federal agency shall, prior to implementation of a new or revised
recovery plan, consider all information presented during the public comment
period under paragraph (4).

(g) MONITORING.-
(1) The Secretary shall implement a system in cooperation with the States to
monitor effectively for not less than five years the status of all species
which have recovered to the point at which the measures provided pursuant to
this Act are no longer necessary and which, in accordance with the
provisions of this section, have been removed from either of the lists
published under subsection (c).
(2) The Secretary shall make prompt use of the authority under paragraph 7
of subsection (b) of this section to prevent a significant risk to the well
being of any such recovered species.

(h) AGENCY GUIDELINES.-The Secretary shall establish, and publish in the
Federal Register, agency guidelines to insure that the purposes of this
section are achieved efficiently and effectively. Such guidelines shall
include, but are not limited to-
(1) procedures for recording the receipt and the disposition of petitions
submitted under subsection (b)(3) of this section;
(2) criteria for making the findings required under such subsection with
respect to petitions;
(3) a ranking system to assist in the identification of species that should
receive priority review under subsection (a)(1) of the section; and
(4) a system for developing and implementing, on a priority basis, recovery
plans under subsection (f) of this section. The Secretary shall provide to
the public notice of, and opportunity to submit written comments on, any
guideline (including any amendment thereto) proposed to be established under
this subsection.

(i) If, in the case of any regulation proposed by the Secretary under the
authority of this section, a State agency to which notice thereof was given
in accordance with subsection
(b)(5)(A)(ii) files comments disagreeing with all or part of the proposed
regulation, and the Secretary issues a final regulation which is in conflict
with such comments, or if the Secretary fails to adopt a regulation pursuant
to an action petitioned by a State agency under subsection (b)(3), the
Secretary shall submit to the State agency a written justification for his
failure to adopt regulations consistent with the agency's comments or
petition.

LAND ACQUISITION ^

SEC. 5.
(a) PROGRAM.-The Secretary, and the Secretary of Agriculture with respect to
the National Forest System, shall establish and implement a program to
conserve fish, wildlife, and plants, including those which are listed as
endangered species or threatened species pursuant to section 4 of this Act.
To carry out such a program, the appropriate Secretary-
(1) shall utilize the land acquisition and other authority under the Fish
and Wildlife Act of 1956, as amended, the Fish and Wildlife Coordination
Act, as amended, and the Migratory Bird Conservation Act, as appropriate;
and
(2) is authorized to acquire by purchase, donation, or otherwise, lands,
waters, or interest therein, and such authority shall be in addition to any
other land acquisition vested in him.

(b) ACQUISITIONS.-Funds made available pursuant to the Land and Water
Conservation Fund Act of 1965, as amended, may be used for the purpose of
acquiring lands, waters, or interests therein under subsection (a) of this
section.

COOPERATION WITH THE STATES ^

SEC. 6.
(a) GENERAL.-In carrying out the program authorized by this Act, the
Secretary shall cooperate to the maximum extent practicable with the States.
Such cooperation shall include consultation with the States concerned before
acquiring any land or water, or interest therein, for the purpose of
conserving any endangered species or threatened species.

(b) MANAGEMENT AGREEMENTS.-The Secretary may enter into agreements with any
State for the administration and management of any area established for the
conservation of endangered species or threatened species. Any revenues
derived from the administration of such areas under these agreements shall
be subject to the provisions of section 401 of the Act of June 15, 1935 (49
Stat. 383; 16 U.S.C. 715s).

(c)(1) COOPERATIVE AGREEMENTS.-In furtherance of the purposes of this Act,
the Secretary is authorized to enter into a cooperative agreement in
accordance with this section with any State which establishes and maintains
an adequate and active program for the conservation of endangered species
and threatened species. Within one hundred and twenty days after the
Secretary receives a certified copy of such a proposed State program, he
shall make a determination whether such program is in accordance with this
Act. Unless he determines, pursuant to this paragraph, that the State
program is not in accordance with this Act, he shall enter into a
cooperative agreement with the State for the purpose of assisting in
implementation of the State program. In order for a State program to be
deemed an adequate and active program for the conservation of endangered
species and threatened species, the Secretary must find, and annually
thereafter reconfirm such finding, that under the State program-
(A) authority resides in the State agency to conserve resident species of
fish or wildlife determined by the State agency or the Secretary to be
endangered or threatened;
(B) the State agency has established acceptable conservation programs,
consistent with the purposes and policies of this Act, for all resident
species of fish or wildlife in the State which are deemed by the Secretary
to be endangered or threatened, and has furnished a copy of such plan and
program together with all pertinent details, information, and data requested
to the Secretary;
(C) the State agency is authorized to conduct investigations to determine
the status and requirements for survival of resident species of fish and
wildlife;
(D) the State agency is authorized to establish programs, including the
acquisition of land or aquatic habitat or interests therein, for the
conservation of resident endangered or threat- ened species of fish or
wildlife; and
(E) provision is made for public participation in designating resident
species of fish or wildlife as endangered or threatened, or that under the
State program-
(i) the requirements set forth in paragraphs (3), (4), and (5) of this
subsection are complied with, and
(ii) plans are included under which immediate attention will be given to
those resident species of fish and wildlife which are determined by the
Secretary or the State agency to be endangered or threatened and which the
Secretary and the State agency agree are most urgently in need of
conservation programs; except that a cooperative agreement entered into with
a State whose program is deemed adequate and active pursuant to clause (i)
and this clause and this subparagraph shall not affect the applicability of
prohibitions set forth in or authorized pursuant to section 4(d) or section
9(a)(1) with respect to the taking of any resident endangered or threatened
species.
(2) In furtherance of the purposes of this Act, the Secretary is authorized
to enter into a cooperative agreement in accordance with this section with
any State which establishes and maintains an adequate and active program for
the conservation of endangered species and threatened species of plants.
Within one hundred and twenty days after the Secretary receives a certified
copy of such a proposed State program, he shall make a determination whether
such program is in accordance with this Act. Unless he determines, pursuant
to this paragraph, that the State program is not in accordance with this
Act, he shall enter into a cooperative agreement with the State for the
purpose of assisting in implementation of the State program. In order for a
State program to be deemed an adequate and active program for the
conservation of endangered species of plants and threatened species of
plants, the Secretary must find, and annually thereafter reconfirm such
finding, that under the State program-
(A) authority resides in the State agency to conserve resident species of
plants determined by the State agency or the Secretary to be endangered or
threatened;
(B) the State agency has established acceptable conservation programs,
consistent with the purposes and policies of this Act, for all resident
species of plants in the State which are deemed by the Secretary to be
endangered or threatened, and has furnished a copy of such plan and program
together with all pertinent details, information, and data requested to the
Secretary;
(C) the State agency is authorized to conduct investigations to determine
the status and requirements for survival of resident species of plants; and
(D) provision is made for public participation in designating resident
species of plants as endangered or threatened; or that under the State
program-
(i) the requirements set forth in subparagraphs (C) and (D) of this
paragraph are complied with, and
(ii) plans are included under which immediate attention will be given to
those resident species of plants which are determined by the Secretary or
the State agency to be endangered or threatened and which the Secretary and
the State agency agree are most urgently in need of conservation programs;
except that a cooperative agreement entered into with a State whose program
is deemed adequate and active pursuant to clause (i) and this clause shall
not affect the applicability of prohibitions set forth in or authorized
pursuant to section 4(d) or section 9(a)(1) with respect to the taking of
any resident endangered or threatened species.

(d) ALLOCATION OF FUNDS.-
(1) The Secretary is authorized to provide financial assistance to any
State, through its respective State agency, which has entered into a
cooperative agreement pursuant to subsection (c) of this section to assist
in development of programs for the conservation of endangered and threatened
species or to assist in monitoring the status of candidate species pursuant
to subparagraph (C) of section 4(b)(3) and recovered species pursuant to
section 4(g). The Secretary shall allocate each annual appropriation made in
accordance with the provisions of subsection (i) of this section to such
States based on consideration of-
(A) the international commitments of the United States to protect endangered
species or threatened species;
(B) the readiness of a State to proceed with a conservation program
consistent with the objectives and purposes of this Act;
(C) the number of endangered species and threatened species within a State;
(D) the potential for restoring endangered species and threatened species
within a State;
(E) the relative urgency to initiate a program to restore and protect an
endangered species or threatened species in terms of survival of the
species;
(F) the importance of monitoring the status of candidate species within a
State to prevent a significant risk to the well being of any such species;
and
(G) the importance of monitoring the status of recovered species within a
State to assure that such species do not return to the point at which the
measures provided pursuant to this Act are again necessary.
So much of the annual appropriation made in accordance with provisions of
subsection (i) of this section allocated for obligation to any State for any
fiscal year as remains unobligated at the close thereof is authorized to fie
made available to that State until the close of the succeeding fiscal year.
Any amount allocated to any State which is unobligated at the end of the
period during which it is available for expenditure is authorized to be made
available for expenditure by the Secretary in conducting programs under this
section.
(2) Such cooperative agreements shall provide for-
(A) the actions to be taken by the Secretary and the States;
(B) the benefits that are expected to be derived in connection with the
conservation of endangered or threatened species;
(C) the estimated cost of these actions; and
(D) the share of such costs to be borne by the Federal Government and by the
States; except that-
(i) the Federal share of such program costs shall not exceed 75 percent of
the estimated program cost stated in the agreement; and
(ii) the Federal share may be increased to 90 percent whenever two or more
States having a common interest in one or more endangered or threatened
species, the conservation of which may be enhanced by cooperation of such
States, enter jointly into agreement with the Secretary.
The Secretary may, in his discretion, and under such rules and regulations
as he may prescribe, advance funds to the State for financing the United
States pro rata share agreed upon in the cooperative agreement. For the
purposes of this section, the non-Federal share may, in the discretion of
the Secretary, be in the form of money or real property, the value of which
will be determined by the Secretary whose decision shall be final.

(e) REVIEW OF STATE PROGRAMS.-Any action taken by the Secretary under this
section shall be subject to his periodic review at no greater than annual
intervals.

(f) CONFLICTS BETWEEN FEDERAL AND STATE LAWS.-Any State law or regulation
which applies with respect to the importation or exportation of, or
interstate or foreign commerce in, endangered species or threatened species
is void to the extent that it may effectively
(1) permit what is prohibited by this Act of by any regulation which
implements this Act, or
(2) prohibit what is authorized pursuant to an exemption or permit provided
for in this Act or in any regulation which implements this Act. This Act
shall not otherwise be construed to void any State law or regulation which
is intended to conserve migratory, resident, or introduced fish or wildlife,
or to permit or prohibit sale of such fish or wildlife. Any State law or
regulation respecting the taking of an endangered species or threatened
species may be more restrictive than the exemptions or permits provided for
in this Act or in any regulation which implements this Act but not less
restrictive than the prohibitions so defined.

(g) TRANSITION.-
(1) For purposes of this subsection, the term "establishment period" means,
with respect to any State, the period beginning on the date of enactment of
this Act and ending on whichever of the following dates first occurs:
(A) the date of the close of the 120-day period following the adjournment of
the first regular session of the legislature of such State which commences
after such date of enactment, or
(B) the date of the close of the 15 month period following such date of
enactment.
(2) The prohibitions set forth in or authorized pursuant to sections 4(d)
and 9(a)(1)(B) of this Act shall not apply with respect to the taking of any
resident endangered species or threatened species (other than species listed
in Appendix I to the Convention or otherwise specifically covered by any
other treaty or Federal law) within any State-
(A) which is then a party to a cooperative agreement with the Secretary
pursuant to section 6(c) of this Act (except to the extent that the taking
of any such species is contrary to the law of such State); or
(B) except for any time within the establishment period when-
(i) the Secretary applies such prohibition to such species at the request of
the State, or
(ii) the Secretary applies such prohibition after he finds, and publishes
his finding, that an emergency exists posing a significant risk to the
well-being of such species and that the prohibition must be applied to
protect such species. The Secretary's finding and publication may be made
without regard to the public hearing or comment provisions of section 553 of
title 5, United States Code, or any other provision of this Act; but such
prohibition shall expire 90 days after the date of its imposition unless the
Secretary further extends such prohibition by publishing notice and a
statement of justification of such extension.

(h) REGULATIONS.-The Secretary is authorized to promulgate such regulations
as may be appropriate to carry out the provisions of this section relating
to financial assistance to States.

(i) APPROPRIATIONS.-
(1) To carry out the provisions of this section for fiscal years after
September 30, 1988, there shall be deposited into a special fund known as
the cooperative endangered species conservation fund, to be administered by
the Secretary, an amount equal to five percent of the combined amounts
covered each fiscal year into the Federal aid to wildlife restoration fund
under section 3 of the Act of September 2, 1937, and paid, transferred, or
otherwise credited each fiscal year to the Sport Fishing Restoration Account
established under 1016 of the Act of July 18, 1984.
(2) Amounts deposited into the special fund are authorized to be
appropriated annually and allocated in accordance with subsection (d) of
this section.

INTERAGENCY COOPERATION ^

SEC. 7.
(a) FEDERAL AGENCY ACTIONS AND CONSULTATIONS.-
(1) The Secretary shall review other programs administered by him and
utilize such programs in furtherance of the purposes of this Act. All other
Federal agencies shall, in consultation with and with the assistance of the
Secretary, utilize their authorities in furtherance of the purposes of this
Act by carrying out programs for the conservation of endangered species and
threatened species listed pursuant to section 4 of this Act.
(2) Each Federal agency shall, in consultation with and with the assistance
of the Secretary, insure that any action authorized, funded, or carried out
by such agency (hereinafter in this section referred to as an "agency
action") is not likely to jeopardize the continued existence of any
endangered species or threatened species or result in the destruction or
adverse modification of habitat of such species which is determined by the
Secretary, after consultation as appropriate with affected States, to be
critical, unless such agency has been granted an exemption for such action
by the Committee pursuant to subsection (h) of this section. In fulfilling
the requirements of this paragraph each agency shall use the best scientific
and commercial data available.
(3) Subject to such guidelines as the Secretary may establish, a Federal
agency shall consult with the Secretary on any prospective agency action at
the request of, and in cooperation with, the prospective permit or license
applicant if the applicant has reason to believe that an endangered species
or a threatened species may be present in the area affected by his project
and that implementation of such action will likely affect such species.
(4) Each Federal agency shall confer with the Secretary on any agency action
which is likely to jeopardize the continued existence of any species
proposed to be listed under section 4 or result in the destruction or
adverse modification of critical habitat proposed to be designated for such
species. This paragraph does not require a limitation on the commitment of
resources as described in subsection (d).

(b) OPINION OF SECRETARY.-
(1)(A) Consultation under subsection (a)(2) with respect to any agency
action shall be concluded within the 90-day period beginning on the date on
which initiated or, subject to subparagraph (B), within such other period of
time as is mutually agreeable to the Secretary and the Federal agency;
(B) in the case of an agency action involving a permit or license applicant,
the Secretary and the Federal agency may not mutually agree to conclude
consultation within a period exceeding 90 days unless the Secretary, before
the close of the 90th day referred to in subparagraph (A)-
(i) if the consultation period proposed to be agreed to will end before the
150th day after the date on which consultation was initiated, submits to the
applicant a written statement setting forth-
(I) the reasons why a longer period is required;
(II) the information that is required to complete the consultation; and
(III) the estimated date on which consultation will be completed; or
(ii) if the consultation period proposed to be agreed to will end 150 or
more days after the date on which consultation was initiated, obtains the
consent of the applicant to such period. The Secretary and the Federal
agency may mutually agree to extend a consultation period established under
the preceding sentence if the Secretary, before the close of such period,
obtains the consent of the applicant to the extension.
(2) Consultation under subsection (a)(3) shall be concluded within such
period as is agreeable to the Secretary, the Federal agency, and the
applicant concerned.
(3)(A) Promptly after conclusion of consultation under paragraph (2) or (3)
of subsection (a), the Secretary shall provide to the Federal agency and the
applicant, if any, a written statement setting forth the Secretary's
opinion, and a summary of the information on which the opinion is based,
detailing how the agency action affects the species or its critical habitat.
If jeopardy or adverse modification is found, the Secretary shall suggest
those reasonable and prudent alternatives which he believes would not
violate subsection (a)(2) and can be taken by the Federal agency or
applicant in implementing the agency action.
(B) Consultation under subsection (a)(3), and an opinion based by the
Secretary incident to such consultation, regarding an agency action shall be
treated respectively as a consultation under subsection (a)(2), and as an
opinion issued after consultation under such subsection, regarding that
action if the Secretary reviews the action before it is commenced by the
Federal agency and finds, and notifies such agency, that no significant
changes have been made with respect to the action and that no significant
change has occurred regarding the information used during the initial
consultation.
(4) If after consultation under subsection (a)(2) of this section, the
Secretary concludes that-
(A) the agency action will not violate such subsection, or offers reasonable
and prudent alternatives which the Secretary believes would not violate such
subsection;
(B) the taking of an endangered species or a threatened species incidental
to the agency action will not violate such subsection; and
(C) if an endangered species or threatened species of a marine mammal is
involved, the taking is authorized pursuant to section 1371(a)(5) of this
title; the Secretary shall provide the Federal agency and the applicant
concerned, if any, with a written statement that-
(i) specifies the impact of such incidental taking on the species,
(ii) specifies those reasonable and prudent measures that the Secretary
considers necessary or appropriate to minimize such impact,
(iii) in the case of marine mammals, specifies those measures that are
necessary to comply with section 1371(a)(5) of this title with regard to
such taking, and
(iv) sets forth the terms and conditions (including, but not limited to,
reporting requirements) that must be complied with by the Federal agency or
applicant (if any), or both, to implement the measures specified under
clauses (ii) and (iii).

(c) BIOLOGICAL ASSESSMENT.-
(1) To facilitate compliance with the requirements of subsection (a)(2) each
Federal agency shall, with respect to any agency action of such agency for
which no contract for construction has been entered into and for which no
construction has begun on the date of enactment of the Endangered Species
Act Amendments of 1978, request of the Secretary information whether any
species which is listed or proposed to be listed may be present in the area
of such proposed action. If the Secretary advises, based on the best
scientific and commercial data available, that such species may be present,
such agency shall conduct a biological assessment for the purpose of
identifying any endangered species or threatened species which is likely to
be affected by such action. Such assessment shall be completed within 180
days after the date on which initiated (or within such other period as is
mutually agreed to by the Secretary and such agency, except that if a permit
or license applicant is involved, the 180-day period may not be extended
unless such agency provides the applicant, before the close of such period,
with a written statement setting forth the esti- mated length of the
proposed extension and the reasons therefor) and, before any contract for
construction is entered into and before construction is begun with respect
to such action. Such assessment may be undertaken as part of a Federal
agency's compliance with the requirements of section 102 of the National
Environmental Policy Act of 1969 (42 U.S.C. 4332).
(2) Any person who may wish to apply for an exemption under subsection (g)
of this section for that action may conduct a biological assessment to
identify any endangered species or threatened species which is likely to be
affected by such action. Any such bio- logical assessment must, however, be
conducted in cooperation with the Secretary and under the supervision of the
appropriate Federal agency.

(d) LIMITATION ON COMMITMENT OF RESOURCES.-After initiation of consultation
required under subsection (a)(2), the Federal agency and the permit or
license applicant shall not make any irreversible or irretrievable
commitment of resources with respect to the agency action which has the
effect of foreclosing the formulation or implementation of any reasonable
and prudent alternative measures which would not violate subsection (a)(2).

(e)(1) ESTABLISHMENT OF COMMITTEE.-There is established a committee to be
known as the Endangered Species Committee (hereinafter in this section
referred to as the "Committee").
(2) The Committee shall review any application submitted to it pursuant to
this section and determine in accordance with subsection (h) of this section
whether or not to grant an exemption from the requirements of subsection
(a)(2) of this action for the action set forth in such application.
(3) The Committee shall be composed of seven members as follows:
(A) The Secretary of Agriculture.
(B) The Secretary of the Army.
(C) The Chairman of the Council of Economic Advisors.
(D) The Administrator of the Environmental Protection Agency. Agency.
(E) The Secretary of the Interior.
(F) The Administrator of the National Oceanic and Atmospheric
Administration.
(G) The President, after consideration of any recommendations received
pursuant to subsection (g)(2)(B) shall appoint one individual from each
affected State, as determined by the Secretary, to be a member of the
Committee for the consideration of the application for exemption for an
agency action with respect to which such recommendations are made, not later
than 30 days after an application is submitted pursuant to this section.
(4)(A) Members of the Committee shall receive no additional pay on account
of their service on the Committee.
(B) While away from their homes or regular places of business in the
performance of services for the Committee, members of the Committee shall be
allowed travel expenses, including per diem in lieu of subsistence, in the
same manner as persons employed inter- mittently in the Government service
are allowed expenses under section 5703 of title 5 of the United States
Code.
(5)(A) Five members of the Committee or their representatives shall
constitute a quorum for the transaction of any function of the Committee,
except that, in no case shall any representative be considered in
determining the existence of a quorum for the transaction of any function of
the Committee if that function involves a vote by the Committee on any
matter before the Committee.
(B) The Secretary of the Interior shall be the Chairman of the Committee.
(C) The Committee shall meet at the call of the Chairman or five of its
members.
(D) All meetings and records of the Committee shall be open to the public.
(6) Upon request of the Committee, the head of any Federal agency is
authorized to detail, on a nonreimbursable basis, any of the personnel of
such agency to the Committee to assist it in carrying out its duties under
this section.
(7)(A) The Committee may for the purpose of carrying out its duties under
this section hold such hearings, sit and act at such times and places, take
such testimony, and receive such evidence, as the Committee deems advisable.
(B) When so authorized by the Committee, any member or agent of the
Committee may take any action which the Committee is authorized to take by
this paragraph.
(C) Subject to the Privacy Act, the Committee may secure directly from any
Federal agency information necessary to enable it to carry out its duties
under this section. Upon request of the Chairman of the Committee, the head
of such Federal agency shall furnish such information to the Committee.
(D) The Committee may use the United States mails in the same manner and
upon the same conditions as a Federal agency.
(E) The Administrator of General Services shall provide to the Committee on
a reimbursable basis such administrative support services as the Committee
may request.
(8) In carrying out its duties under this section, the Committee may
promulgate and amend such rules, regulations, and procedures, and issue and
amend such orders as it deems necessary.
(9) For the purpose of obtaining information necessary for the consideration
of an application for an exemption under this section the Committee may
issue subpoenas for the attendance and testimony of witnesses and the
production of relevant papers, books, and documents.
(10) In no case shall any representative, including a representative of a
member designated pursuant to paragraph (3)(G) of this subsection, be
eligible to cast a vote on behalf of any member.

(f) REGULATIONS.-Not later than 90 days after the date of enactment of the
Endangered Species Act Amendments of 1978, the Secretary shall promulgate
regulations which set forth the form and manner in which applications for
exemption shall be submitted to the Secretary and the information to be
contained in such applications. Such regulations shall require that
information submitted in an application by the head of any Federal agency
with respect to any agency action include but not be limited to-
(1) a description of the consultation process carried out pursuant to
subsection (a)(2) of this section between the head of the Federal agency and
the Secretary; and
(2) a statement describing why such action cannot be altered or modified to
conform with the requirements of subsection (a)(2) of this section.

(g) APPLICATION FOR EXEMPTION AND REPORT TO THE COMMITTEE.-
(1) A Federal agency, the Governor of the State in which an agency action
will occur, if any, or a permit or license applicant may apply to the
Secretary for an exemption for an agency action of such agency if, after
consultation under subsection (a)(2), the Secretary's opinion under
subsection (b) indicates that the agency action would violate subsection
(a)(2). An application for an exemption shall be considered initially by the
Secretary in the manner provided for in this subsection, and shall be
considered by the Committee for a final determination under subsection (h)
after a report is made pursuant to paragraph (5). The applicant for an
exemption shall be referred to as the "exemption applicant" in this section.
(2)(A) An exemption applicant shall submit a written application to the
Secretary, in a form prescribed under subsection (f), not later than 90 days
after the completion of the consultation process; except that, in the case
of any agency action involving a permit or license applicant, such
application shall be submitted not later than 90 days after the date on
which the Federal agency concerned takes final agency action with respect to
the issuance of the permit or license. For purposes of the preceding
sentence, the term "final agency action" means (i) a disposition by an
agency with respect to the issuance of a permit or license that is subject
to administrative review, whether or not such disposition is subject to
judicial review; or (ii) if administrative review is sought with respect to
such disposition, the decision resulting after such review. Such application
shall set forth the reasons why the exemption applicant considers that the
agency action meets the requirements for an exemption under this subsection.
(B) Upon receipt of an application for exemption for an agency action under
paragraph (1), the Secretary shall promptly
(i) notify the Governor of each affected State, if any, as determined by the
Secretary, and request the Governors so notified to recommend individuals to
be appointed to the Endangered Species Committee for consideration of such
application; and
(ii) publish notice of receipt of the application in the Federal Register,
including a summary of the information contained in the application and a
description of the agency action with respect to which the application for
exemption has been filed.
(3) The Secretary shall within 20 days after the receipt of an application
for exemption, or within such other period of time as is mutually agreeable
to the exemption applicant and the Secretary
(A) determine that the Federal agency concerned and the exemption applicant
have-
(i) carried out the consultation responsibilities described in subsection
(a) in good faith and made a reasonable and responsible effort to develop
and fairly consider modifications or reasonable and prudent alternatives to
the proposed agency action which would not violate subsection (a)(2);
(ii) conducted any biological assessment required by subsection (c); and
(iii) to the extent determinable within the time provided herein, refrained
from making any irreversible or irretrievable commitment of resources
prohibited by subsection (d); or
(B) deny the application for exemption because the Federal agency concerned
or the exemption applicant have not met the requirements set forth in
subparagraph (A) (i), (ii), and (iii). The denial of an application under
subparagraph (B) shall be considered final agency action for purposes of
chapter 7 of title 5, United States Code.
(4) If the Secretary determines that the Federal agency concerned and the
exemption applicant have met the requirements set forth in paragraph (3)(A)
(i), (ii) and (iii) he shall, in consultation with the Members of the
Committee, hold a hearing on the application for exemption in accordance
with sections 554, 555, and 556 (other than subsection (b) (1) and (2)
thereof) of title 5, United States Code, and prepare the report to be
submitted pursuant to paragraph (5).
(5) Within 140 days after making the determinations under paragraph (3) or
within such other period of time as is mutually agreeable to the exemption
applicant and the Secretary, the Secretary shall submit to the Committee a
report discussing-
(A) the availability of reasonable and prudent alternatives to the agency
action, and the nature and extent of the benefits of the agency action and
of alternative courses of action consistent with conserving the species of
the critical habitat;
(B) a summary of the evidence concerning whether or not the agency action is
in the public interest and is of national or regional significance;
(C) appropriate reasonable mitigation and enhancement measures which should
be considered by the Committee; and
(D) whether the Federal agency concerned and the exemption applicant
refrained from making any irreversible or irretrievable commitment of
resources prohibited by subsection (d).
(6) To the extent practicable within the time required for action under
subsection (g) of this section, and except to the extent inconsistent with
the requirements of this section, the consideration of any application for
an exemption under this section and the conduct of any hearing under this
subsection shall be in accordance with sections 554, 555, and 556 (other
than subsection (b)(3) of section 556) of title 5, United States Code.
(7) Upon request of the Secretary, the head of any Federal agency is
authorized to detail, on a nonreimbursable basis, any of the personnel of
such agency to the Secretary to assist him in carrying out his duties under
this section.
(8) All meetings and records resulting from activities pursuant to this
subsection shall be open to the public.

(h) EXEMPTION.-
(1) The Committee shall make a final determination whether or not to grant
an exemption within 30 days after receiving the report of the Secretary
pursuant to subsection (g)(5). The Committee shall grant an exemption from
the requirements of subsection (a)(2) for an agency action if, by a vote of
not less than five of its members voting in person-
(A) it determines on the record, based on the report of the Secretary, the
record of the hearing held under subsection (g)(4), and on such other
testimony or evidence as it may receive, that-
(i) there are no reasonable and prudent alternatives to the agency action;
(ii) the benefits of such action clearly outweigh the benefits of
alternative courses of action consistent with conserving the species or its
critical habitat, and such action is in the public interest;
(iii) the action is of regional or national significance; and
(iv) neither the Federal agency concerned nor the exemption applicant made
any irreversible or irretrievable commitment of resources prohibited by
subsection (d); and
(B) it establishes such reasonable mitigation and enhancement measures,
including, but not limited to, live propagation, transplantation, and
habitat acquisition and improvement, as are necessary and appropriate to
minimize the adverse effects of the agency action upon the endangered
species, threatened species, or critical habitat concerned.
Any final determination by Committee under this subsection shall be
considered final agency action for purposes of chapter 7 of title 5 of the
United States Code.
(2)(A) Except as provided in subparagraph (B), an exemption for an agency
action granted under paragraph (1) shall constitute a permanent exemption
with respect to all endangered or threatened species for the purposes of
completing such agency action-
(i) regardless whether the species was identified in the biological
assessment; and
(ii) only if a biological assessment has been conducted under subsection (c)
with respect to such agency action.
(B) An exemption shall be permanent under subparagraph (A) unless-
(i) the Secretary finds, based on the best scientific and commercial data
available, that such exemption would result in the extinction of a species
that was not the subject of consultation under subsection (a)(2) or was not
identified in any biological assessment conducted under subsection (c), and
(ii) the Committee determines within 60 days after the date of the
Secretary's finding that the exemption should not be permanent.
If the Secretary makes a finding described in clause (i), the Committee
shall meet with respect to the matter within 30 days after the date of the
finding.

(i) REVIEW BY SECRETARY OF STATE.-Notwithstanding any other provision of
this Act, the Committee shall be prohibited from considering for exemption
any application made to it, if the Secretary of State, after a review of the
proposed agency action and its potential implications, and after hearing,
certifies, in writing, to the Committee within 60 days of any application
made under this section that the granting of any such exemption and the
carrying out of such action would be in violation of an international treaty
obli- gation or other international obligation of the United States. The
Secretary of State shall, at the time of such certification, publish a copy
thereof in the Federal Register.

(j) Notwithstanding any other provision of this Act, the Committee shall
grant an exemption for any agency action if the Secretary of Defense finds
that such exemption is necessary for reasons of national security.

(k) SPECIAL PROVISIONS.-An exemption decision by the Committee under this
section shall not be a major Federal action for purposes of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.): Provided, That an
environmental impact statement which discusses the impacts upon endangered
species or threatened species or their critical habitats shall have been
previously prepared with respect to any agency action exempted by such
order.

(l) COMMITTEE ORDERS.-
(1) If the Committee determines under subsection (h) that an exemption
should be granted with respect to any agency action, the Committee shall
issue an order granting the exemption and specifying the mitigation and
enhancement measures established pursuant to subsection (h) which shall be
carried out and paid for by the exemption applicant in implementing the
agency action. All necessary mitigation and enhancement measures shall be
authorized prior to the implementing of the agency action and funded
concurrently with all other project features.
(2) The applicant receiving such exemption shall include the costs of such
mitigation and enhancement measures within the overall costs of continuing
the proposed action. Notwithstanding the preceding sentence the costs of
such measures shall not be treated as project costs for the purpose of
computing benefit-cost or other ratios for the proposed action. Any
applicant may request the Secretary to carry out such mitigation and
enhancement measures. The costs incurred by the Secretary in carrying out
any such measures shall be paid by the applicant receiving the exemption. No
later than one year after the granting of an exemption, the exemption
applicant shall submit to the Council on Environmental Quality a report
describing its compliance with the mitigation and en- hancement measures
prescribed by this section. Such report shall be submitted annually until
all such mitigation and enhancement measures have been completed. Notice of
the public availability of such reports shall be published in the Federal
Register by the Council on Environmental Quality.

(m) NOTICE.-The 60-day notice requirement of section 11(g) of this Act shall
not apply with respect to review of any final determination of the Committee
under subsection (h) of this section granting an exemption from the
requirements of subsection (a)(2) of this section.

(n) JUDICIAL REVIEW.-Any person, as defined by section 3(13) of this Act,
may obtain judicial review, under chapter 7 of title 5 of the United States
Code, of any decision of the Endangered Species Committee under subsection
(h) in the United States Court of Appeals for
(1) any circuit wherein the agency action concerned will be, or is being,
carried out, or
(2) in any case in which the agency action will be, or is being, carried out
outside of any circuit, the District of Columbia, by filing in such court
within 90 days after the date of issuance of the decision, a written
petition for review. A copy of such petition shall be transmitted by the
clerk of the court to the Committee and the Committee shall file in the
court the record in the proceeding, as provided in section 2112, of title
28, United States Code. Attorneys designated by the Endangered Species
Committee may appear for, and represent the Committee in any action for
review under this subsection.

(o) EXEMPTION AS PROVIDING EXCEPTION ON TAKING OF ENDANGERED
SPECIES.-Notwithstanding sections 1533(d) and 1538(a)(1)(B) and (C) of this
title, sections 1371 and 1372 of this title, or any regulation promulgated
to implement any such section-
(1) any action for which an exemption is granted under subsection (h) of
this section shall not be considered to be a taking of any endangered
species or threatened species with respect to any activity which is
necessary to carry out such action; and
(2) any taking that is in compliance with the terms and conditions specified
in a written statement provided under subsection (b)(4)(iv) of this section
shall not be considered to be a prohibited taking of the species concerned.

(p) EXEMPTIONS IN PRESIDENTIALLY DECLARED DISASTER AREAS. In any area which
has been declared by the President to be a major disaster area under the
Disaster Relief Act of 1974, the President is authorized to make the
determinations required by subsections (g) and (h) of this section for any
project for the repair or replacement of a public facility substantially as
it existed prior to the disaster under section 401 or 402 of the Disaster
Relief Act of 1974, and which the President determines
(1) is necessary to prevent the recurrence of such a natural disaster and to
reduce the potential loss of human life, and
(2) to involve an emergency situation which does not allow the ordinary
procedures of this section to be followed. Notwithstanding any other
provision of this section, the Committee shall accept the determinations of
the President under this subsection.

INTERNATIONAL COOPERATION ^

SEC. 8.
(a) FINANCIAL ASSISTANCE.-As a demonstration of the commitment of the United
States to the worldwide protection of endangered species and threatened
species, the President may, subject to the provisions of section 1415 of the
Supplemental Appropriation Act, 1953 (31 U.S.C. 724), use foreign currencies
accruing to the United States Government under the Agricultural Trade
Development and Assistance Act of 1954 or any other law to provide to any
foreign country (with its consent) assistance in the development and
management of programs in that country which the Secretary determines to be
necessary or useful for the conservation of any endangered species or
threatened species listed by the Secretary pursuant to section 4 of this
Act. The President shall provide assistance (which includes, but is not
limited to, the acquisition, by lease or otherwise, of lands, waters, or
interests therein) to foreign countries under this section under such terms
and conditions as he deems appropriate. Whenever foreign currencies are
available for the provision of assistance under this section, such
currencies shall be used in preference to funds appropriated under the
authority of section 15 of this Act.

(b) ENCOURAGEMENT OF FOREIGN PROGRAMS.-In order to carry out further the
provisions of this Act, the Secretary, through the Secretary of State shall
encourage-
(1) foreign countries to provide for the conservation of fish or wildlife
and plants including endangered species and threatened species listed
pursuant to section 4 of this Act;
(2) the entering into of bilateral or multilateral agreements with foreign
countries to provide for such conservation; and
(3) foreign persons who directly or indirectly take fish or wildlife or
plants in foreign countries or on the high seas for importation into the
United States for commercial or other purposes to develop and carry out with
such assistance as he may provide, conservation practices designed to
enhance such fish or wildlife or plants and their habitat.

(c) PERSONNEL.-After consultation with the Secretary of State, the Secretary
may-
(1) assign or otherwise make available any officer or employee of his
department for the purpose of cooperating with foreign countries and
international organizations in developing personnel resources and programs
which promote the conservation of fish or wildlife or plants, and
(2) conduct or provide financial assistance for the educational training of
foreign personnel, in this country or abroad, in fish, wildlife, or plant
management, research and law enforcement and to render professional
assistance abroad in such matters.

(d) INVESTIGATIONS.-After consultation with the Secretary of State and the
Secretary of the Treasury, as appropriate, the Secretary may conduct or
cause to be conducted such law enforcement investigations and research
abroad as he deems necessary to carry out the purposes of this Act.

CONVENTION IMPLEMENTATION

SEC. 8A.
(a) MANAGEMENT AUTHORITY AND SCIENTIFIC AUTHORITY.-The Secretary of the
Interior (hereinafter in this section referred to as the "Secretary") is
designated as the Management Authority and the Scientific Authority for
purposes of the Convention and the respective functions of each such
Authority shall be carried out through the United States Fish and Wildlife
Service.

(b) MANAGEMENT AUTHORITY FUNCTIONS.-The Secretary shall do all things
necessary and appropriate to carry out the functions of the Management
Authority under the Convention.

(c) SCIENTIFIC AUTHORITY FUNCTIONS.-
(1) The Secretary shall do all things necessary and appropriate to carry out
the functions of the Scientific Authority under the Convention.
(2) The Secretary shall base the determinations and advice given by him
under Article IV of the Convention with respect to wildlife upon the best
available biological information derived from professionally accepted
wildlife management practices; but is not required to make, or require any
State to make, estimates of population size in making such determinations or
giving such advice.

(d) RESERVATIONS BY THE UNITED STATES UNDER CONVENTION.-If the United States
votes against including any species in Appendix I or II of the Convention
and does not enter a reservation pursuant to paragraph (3) of Article XV of
the Convention with respect to that species, the Secretary of State, before
the 90th day after the last day on which such a reservation could be
entered, shall submit to the Committee on Merchant Marine and Fisheries of
the House of Representatives, and to the Committee on the Environment and
Public Works of the Senate, a written report setting forth the reasons why
such a reservation was not entered.

(e) WILDLIFE PRESERVATION IN WESTERN HEMISPHERE.-
(1) The Secretary of the Interior (hereinafter in this subsection referred
to as the "Secretary"), in cooperation with the Secretary of State, shall
act on behalf of, and represent, the United States in all regards as
required by the Convention on Nature Protection and Wildlife Preservation in
the Western Hemisphere (56 Stat. 1354, T.S. 982, hereinafter in this
subsection referred to as the "Western Convention"). In the discharge of
these responsibilities, the Secretary and the Secretary of State shall
consult with the Secretary of Agriculture, the Secretary of Commerce, and
the heads of other agencies with respect to matters relating to or affecting
their areas of responsibility.
(2) The Secretary and the Secretary of State shall, in cooperation with the
contracting parties to the Western Convention and, to the extent feasible
and appropriate, with the participation of State agencies, take such steps
as are necessary to implement the Western Convention. Such steps shall
include, but not be limited to
(A) cooperation with contracting parties and international organizations for
the purpose of developing personnel resources and programs that will
facilitate implementation of the Western Convention;
(B) identification of those species of birds that migrate between the United
States and other contracting parties, and the habitats upon which those
species depend, and the implementation of cooperative measures to ensure
that such species will not become endangered or threatened; and
(C) identification of measures that are necessary and appropriate to
implement those provisions of the Western Convention which address the
protection of wild plants.
(3) No later than September 30, 1985, the Secretary and the Secretary of
State shall submit a report to Congress describing those steps taken in
accordance with the requirements of this subsection and identifying the
principal remaining actions yet necessary for comprehensive and effective
implementation of the Western Convention.
(4) The provisions of this subsection shall not be construed as affecting
the authority, jurisdiction, or responsibility of the several States to
manage, control, or regulate resident fish or wildlife under State law or
regulations.

PROHIBITED ACTS ^

SEC. 9.
(a) GENERAL.-
(1) Except as provided in sections 6(g)(2) and 10 of this Act, with respect
to any endangered species of fish or wildlife listed pursuant to section 4
of this Act it is unlawful for any person subject to the jurisdiction of the
United States to-
(A) import any such species into, or export any such species from the United
States;
(B) take any such species within the United States or the territorial sea of
the United States;
(C) take any such species upon the high seas;
(D) possess, sell, deliver, carry, transport, or ship, by any means
whatsoever, any such species taken in violation of subparagraphs (B) and
(C);
(E) deliver, receive, carry, transport, or ship in interstate or foreign
commerce, by any means whatsoever and in the course of a commercial
activity, any such species;
(F) sell or offer for sale in interstate or foreign commerce any such
species; or
(G) violate any regulation pertaining to such species or to any threatened
species of fish or wildlife listed pursuant to section 4 of this Act and
promulgated by the Secretary pursuant to authority provided by this Act.
(2) Except as provided in sections 6(g)(2) and 10 of this Act, with respect
to any endangered species of plants listed pursuant to section 4 of this
Act, it is unlawful for any person subject to the jurisdiction of the United
States to-
(A) import any such species into, or export any such species from, the
United States;
(B) remove and reduce to possession any such species from areas under
Federal jurisdiction; maliciously damage or destroy any such species on any
such area; or remove, cut, dig up, or damage or destroy any such species on
any other area in knowing violation of any law or regulation of any state or
in the course of any violation of a state criminal trespass law;
(C) deliver, receive, carry, transport, or ship in interstate or foreign
commerce, by any means whatsoever and in the course of a commercial
activity, any such species;
(D) sell or offer for sale in interstate or foreign commerce any such
species; or
(E) violate any regulation pertaining to such species or to any threatened
species of plants listed pursuant to section 4 of this Act and promulgated
by the Secretary pursuant to authority provided by this Act.

(b)(1) SPECIES HELD IN CAPTIVITY OR CONTROLLED ENVIRONMENT. The provisions
of subsections (a)(1)(A) and (a)(1)(G) of this section shall not apply to
any fish or wildlife which was held in captivity or in a controlled
environment on
(A) December 28, 1973, or
(B) the date of the publication in the Federal Register of a final
regulation adding such fish or wildlife species to any list published
pursuant to subsection (c) of section 4 of this Act: Provided, That such
holding and any subsequent holding or use of the fish or wildlife was not in
the course of a commercial activity. With respect to any act prohibited by
subsections (a)(1)(A) and (a)(1)(G) of this section which occurs after a
period of 180 days from
(i) December 28, 1973, or
(ii) the date of publication in the Federal Register of a final regulation
adding such fish or wildlife species to any list published pursuant to
subsection (c) of section 4 of this Act, there shall be a rebuttable
presumption that the fish or wildlife involved in such act is not entitled
to the exemption contained in this subsection.
(2)(A) The provisions of subsections (a)(1) shall not apply to-
(i) any raptor legally held in captivity or in a controlled environment on
the effective date of the Endangered Species Act Amendments of 1978; or
(ii) any progeny of any raptor described in clause (i); until such time as
any such raptor or progeny is intentionally returned to a wild state.
(B) Any person holding any raptor or progeny described in subparagraph (A)
must be able to demonstrate that the raptor or progeny does, in fact,
qualify under the provisions of this paragraph, and shall maintain and
submit to the Secretary, on request, such inventories, documentation, and
records as the Secretary may by regulation require as being reasonably
appropriate to carry out the purposes of this paragraph. Such requirements
shall not unnecessarily duplicate the requirements of other rules and
regulations promulgated by the Secretary.

(c) VIOLATION OF CONVENTION.-
(1) It is unlawful for any person subject to the jurisdiction of the United
States to engage in any trade in any specimens contrary to the provisions of
the Convention, or to possess any specimens traded contrary to the
provisions of the Convention, including the definitions of terms in article
I thereof
(2) Any importation into the United States of fish or wildlife shall, if-
(A) such fish or wildlife is not an endangered species listed pursuant to
section 4 of this Act but is listed in Appendix II of the Convention;
(B) the taking and exportation of such fish or wildlife is not contrary to
the provisions of the Convention and all other applicable requirements of
the Convention have been satisfied;
(C) the applicable requirements of subsections (d), (e), and (f) of this
section have been satisfied; and
(D) such importation is not made in the course of a commercial activity; be
presumed to be an importation not in violation of any provision of this Act
or any regulation issued pursuant to this Act.

(d) IMPORTS AND EXPORTS.-
(1) IN GENERAL.-It is unlawful for any person, without first having obtained
permission from the Secretary, to engage in business-
(A) as an importer or exporter of fish or wildlife (other than shellfish and
fishery products which
(i) are not listed pursuant to section 4 of this Act as endangered species
or threatened species, and
(ii) are imported for purposes of human or animal consumption or taken in
waters under the jurisdiction of the United States or on the high seas for
recreational purposes) or plants; or
(B) as an importer or exporter of any amount of raw or worked African
elephant ivory.
(2) REQUIREMENTS.-Any person required to obtain permission under paragraph
(1) of this subsection shall-
(A) keep such records as will fully and correctly disclose each importation
or exportation of fish, wildlife, plants, or African elephant ivory made by
him and the subsequent disposition made by him with respect to such fish,
wildlife, plants, or ivory;
(B) at all reasonable times upon notice by a duly authorized representative
of the Secretary, afford such representative access to his place of
business, an opportunity to ex- amine his inventory of imported fish,
wildlife, plants, or African elephant ivory and the records required to be
kept under subparagraph (A) of this paragraph, and to copy such records; and
(C) file such reports as the Secretary may require.
(3) REGULATIONS.-The Secretary shall prescribe such regulations as are
necessary and appropriate to carry out the purposes of this subsection.
(4) RESTRICTION ON CONSIDERATION OF VALUE OR AMOUNT OF AFRICAN
ELEPHANT IVORY IMPORTED OR EXPORTED.-In granting permission under this
subsection for importation or exportation of African elephant ivory, the
Secretary shall not vary the requirements for obtaining such permission on
the basis of the value or amount of ivory imported or exported under such
permission.
(e) REPORTS.-It is unlawful for any person importing or exporting fish or
wildlife (other than shellfish and fishery products) which
(1) are not listed pursuant to section 4 of this Act as endangered or
threatened species, and
(2) are imported for purposes of human or animal consumption or taken in
waters under the jurisdiction of the United States or on the high seas for
recreational purposes) or plants to fail to file any declaration or report
as the Secretary deems necessary to facilitate enforcement of this Act or to
meet the obligations of the Convention.

(f) DESIGNATION OF PORTS.-
(1) It is unlawful for any person subject to the jurisdiction of the United
States to import into or export from the United States any fish or wildlife
(other than shellfish and fishery products which
(A) are not listed pursuant to section 4 of this Act as endangered species
or threatened species, and
(B) are imported for purposes of human or animal consumption or taken in
waters under the jurisdiction of the United States or on the high seas for
recreational purposes) or plants, except at a port or ports designated by
the Secretary of the Interior. For the purposes of facilitating enforcement
of this Act and reducing the costs thereof, the Secretary of the Interior,
with approval of the Secretary of the Treasury and after notice and
opportunity for public hearing, may, by regulation, designate ports and
change such designations. The Secretary of the Interior, under such terms
and conditions as he may prescribe, may permit the importation or
exportation at nondesignated ports in the interest of the health or safety
of the fish or wildlife or plants, or for other reasons if, in his
discretion, he deems it appropriate and consistent with the purpose of this
subsection.
(2) Any port designated by the Secretary of the Interior under the authority
of section 4(d) of the Act of December 5, 1969 (16 U.S.C. 666cc 4(d), shall,
if such designation is in effect on the day before the date of the enactment
of this Act, be deemed to be a port designated by the Secretary under
paragraph (1) of this subsection until such time as the Secretary otherwise
provides.

(g) VIOLATIONS.-It is Unlawful for any person subject to the jurisdiction of
the United States to attempt to commit, solicit another to commit, or cause
to be committed, any offense defined in this section.

EXCEPTIONS ^

SEC. 10.
(a) PERMITS.-
(1) The Secretary may permit, under such terms and conditions as he shall
prescribe-
(A) any act otherwise prohibited by section 9 for scientific purposes or to
enhance the propagation or survival of the affected species, including, but
not limited to, acts necessary for the establishment and maintenance of
experimental populations pursuant subsection (j); or
(B) any taking otherwise prohibited by section 9(a)(1)(B) if such taking is
incidental to, and not the purpose of, the carrying out of an otherwise
lawful activity.
(2)(A) No permit may be issued by the Secretary authorizing any taking
referred to in paragraph (1)(B) unless the applicant therefor submits to the
Secretary a conservation plan that specifies-
(i) the impact which will likely result from such taking;
(ii) what steps the applicant will take to minimize and mitigate such
impacts, and the funding that will be available to implement such steps;
(iii) what alternative actions to such taking the applicant considered and
the reasons why such alternatives are not being utilized; and
(iv) such other measures that the Secretary may require as being necessary
or appropriate for purposes of the plan.
(B) If the Secretary finds, after opportunity for public comment, with
respect to a permit application and the related conservation plan that-
(i) the taking will be incidental;
(ii) the applicant will, to the maximum extent practicable, minimize and
mitigate the impacts of such taking;
(iii) the applicant will ensure that adequate funding for the plan will be
provided;
(iv) the taking will not appreciably reduce the likelihood of the survival
and recovery of the species in the wild; and
(v) the measures, if any, required under subparagraph (A)(iv) will be met;
and he has received such other assurances as he may require that the plan
will be implemented, the Secretary shall issue the permit. The permit shall
contain such terms and conditions as the Secretary deems necessary or
appropriate to carry out the purposes of this paragraph, including, but not
limited to, such reporting requirements as the Secretary deems necessary for
determining whether such terms and conditions are being complied with.
(C) The Secretary shall revoke a permit issued under this paragraph if he
finds that the permittee is not complying with the terms and conditions of
the permit.

(b) HARDSHIP EXEMPTIONS.-
(1) If any person enters into a contract with respect to a species of fish
or wildlife or plant before the date of the publication in the Federal
Register of notice of consideration of that species as an endangered species
and the subsequent listing of that species as an endangered species pursuant
to section 4 of this Act will cause undue hardship to such person under the
contract, the Secretary, in order to minimize such hardship, may exempt such
person from the application of section 9(a) of this Act to the extent the
Secretary deems appropriate if such person applies to him for such exemption
and includes with such application such information as the Secretary may
require to prove such hardship; except that (A) no such exemption shall be
for a duration of more than one year from the date of publication in the
Federal Register of notice of consideration of the species concerned, or
shall apply to a quantity of fish or wildlife or plants in excess of that
specified by the Secretary; (B) the one-year period for those species of
fish or wildlife listed by the Secretary as endangered prior to the
effective date of this Act shall expire in accordance with the terms of
section 3 of the Act of December 5, 1969 (83 Stat. 275); and (C) no such
exemption may be granted for the importation or exportation of a specimen
listed in Appendix I of the Convention which is to be used in a commercial
activity.
(2) As used in this subsection, the term "undue economic hardship" shall
include, but not be limited to:
(A) substantial economic loss resulting from inability caused by this Act to
perform contracts with respect to species of fish and wildlife entered into
prior to the date of publication in the Federal Register of a notice of
consideration of such species as an endangered species;
(B) substantial economic loss to persons who, for the year prior to the
notice of consideration of such species as an endangered species, derived a
substantial portion of their income from the lawful taking of any listed
species, which taking would be made unlawful under this Act; or
(C) curtailment of subsistence taking made unlawful under this Act by
persons
(i) not reasonably able to secure other sources of subsistence; and
(ii) dependent to a substantial extent upon hunting and fishing for
subsistence; and
(iii) who must engage in such curtailed taking for subsistence purposes.
(3) The Secretary may make further requirements for a showing of undue
economic hardship as he deems fit. Exceptions granted under this section may
be limited by the Secretary in his discretion as to time, area, or other
factor of applicability.

(c) NOTICE AND REVIEW.-The Secretary shall publish notice in the Federal
Register of each application for an exemption or permit which is made under
this section. Each notice shall invite the submission from interested
parties, within thirty days after the date of the notice, of written data,
views, or arguments with respect to the application; except that such
thirty-day period may be waived by the Secretary in an emergency situation
where the health or life of an endangered animal is threatened and no
reasonable alternative is available to the applicant, but notice of any such
waiver shall be published by the Secretary in the Federal Register within
ten days following the issuance of the exemption or permit. Information
received by the Secretary as part of any application shall be available to
the public as a matter of public record at every stage of the proceeding.

(d) PERMIT AND EXEMPTION POLICY.-The Secretary may grant exceptions under
subsections (a)(1)(A) and (b) of this section only if he finds and publishes
his finding in the Federal Register that
(1) such exceptions were applied for in good faith,
(2) if granted and exercised will not operate to the disadvantage of such
endangered spe- cies, and
(3) will be consistent with the purposes and policy set forth in section 2
of this Act.

(e) ALASKA NATIVES.-
(1) Except as provided in paragraph (4) of this subsection the provisions of
this Act shall not apply with respect to the taking of any endangered
species or threatened species, or the importation of any such species taken
pursuant to this section, by-
(A) any Indian, Aleut, or Eskimo who is an Alaskan Native who resides in
Alaska; or
(B) any non-native permanent resident of an Alaskan native village; if such
taking is primarily for subsistence purposes. Non-edible byproducts of
species taken pursuant to this section may be sold in interstate commerce
when made into authentic native articles of handicrafts and clothing; except
that the provisions of this subsection shall not apply to any non-native
resident of an Alaskan native village found by the Secretary to be not
primarily dependent upon the taking of fish and wildlife for consumption or
for the creation and sale of authentic native articles of handicrafts and
clothing.
(2) Any taking under this subsection may not be accomplished in a wasteful
manner.
(3) As used in this subsection-
(i) The term "subsistence" includes selling any edible portion of fish or
wildlife in native villages and towns in Alaska for native consumption
within native villages or towns; and
(ii) The term "authentic native articles of handicrafts and clothing" means
items composed wholly or in some significant respect to natural materials,
and which are produced, decorated or fashioned in the exercise of
traditional native handicrafts without the use of pantographs, multiple
carvers, or other mass copying devices. Traditional native handicrafts
include, but are not limited to, weaving, carving, stitching, sewing,
lacing, beading, drawing, and painting.
(4) Notwithstanding the provisions of paragraph (1) of this subsection,
whenever the Secretary determines that any species of fish or wildlife which
is subject to taking under the provisions of this subsection is an
endangered species or threatened species, and that such taking materially
and negatively affects the threatened or endangered species, he may
prescribe regulations upon the taking of such species by any such Indian,
Aleut, Eskimo, or non-native Alaskan resident of an Alaskan native village.
Such regulations may be established with reference to species, geographical
description of the area included, the season for taking, or any other
factors related to the reason for establishing such regulations and
consistent with the policy of this Act. Such regulations shall be prescribed
after a notice and hearings in the affected judicial districts of Alaska and
as otherwise required by section 103 of the Marine Mammal Protection Act of
1972, and shall be removed as soon as the Secretary determines that the need
for their impositions has disappeared.

(f)(1) As used in this subsection-
(A) The term "Pre-Act endangered species part" means-
(i) any sperm whale oil, including derivatives thereof, which was lawfully
held within the United States on December 28, 1973, in the course of a
commercial activity; or
(ii) any finished scrimshaw product, if such product or the raw material for
such product was lawfully held within the United States on December 28,
1973, in the course of a commercial activity.
(B) The term "scrimshaw product" means any art form which involves the
substantial etching or engraving of designs upon, or the substantial carving
of figures, patterns, or designs from, any bone or tooth of any marine
mammal of the order Cetacea. For purposes of this subsection, polishing or
the adding of minor superficial markings does not constitute substantial
etching, engraving, or carving.
(2) The Secretary, pursuant to the provisions of this subsection, may
exempt, if such exemption is not in violation of the Convention, any pre-Act
endangered species part from one or more of the following prohibitions:
(A) The prohibition on exportation from the United States set forth in
section 9(a)(1)(A) of this Act.
(B) Any prohibition set forth in section 9(a)(1) (E) or (F) of this Act.
(3) Any person seeking an exemption described in paragraph (2) of this
subsection shall make application therefor to the Secretary in such form and
manner as he shall prescribe, but no such application may be considered by
the Secretary unless the application-
(A) is received by the Secretary before the close of the one year period
beginning on the date on which regulations promulgated by the Secretary to
carry out this subsection first take effect;
(B) contains a complete and detailed inventory of all pre-Act endangered
species parts for which the applicant seeks exemption;
(C) is accompanied by such documentation as the Secretary may require to
prove that any endangered species part or product claimed by the applicant
to be a pre-Act endangered species part is in fact such a part; and
(D) contains such other information as the Secretary deems necessary and
appropriate to carry out the purposes of this subsection.
(4) If the Secretary approves any application for exemption made under this
subsection, he shall issue to the applicant a certificate of exemption which
shall specify-
(A) any prohibition in section 9(a) of this Act which is exempted;
(B) the pre-Act endangered species parts to which the exemption applies;
(C) the period of time during which the exemption is in effect, but no
exemption made under this subsection shall have force and effect after the
close of the three-year period beginning on the date of issuance of the
certificate unless such exemption is renewed under paragraph (8); and
(D) any term or condition prescribed pursuant to paragraph (5)(A) or (B), or
both, which the Secretary deems necessary or appropriate.
(5) The Secretary shall prescribe such regulations as he deems necessary and
appropriate to carry out the purposes of this subsection. Such regulations
may set forth-
(A) terms and conditions which may be imposed on applicants for exemptions
under this subsection (including, but not limited to, requirements that
applicants register inventories, keep complete sales records, permit duly
authorized agents of the Secretary to inspect such inventories and records,
and periodically file appropriate reports with the Secretary); and
(B) terms and conditions which may be imposed on any subsequent purchaser of
any pre-Act endangered species part covered by an exemption granted under
this subsection; to insure that any such part so exempted is adequately
accounted for and not disposed of contrary to the provisions of this Act. No
regulation prescribed by the Secretary to carry out the purposes of this
subsection shall be subject to section 4(f)(2)(A)(i) of this Act.
(6)(A) Any contract for the sale of pre-Act endangered species parts which
is entered into by the Administrator of General Services prior to the
effective date of this subsection and pursuant to the notice published in
the Federal Register on January 9, 1973, shall not be rendered invalid by
virtue of the fact that fulfillment of such contract may be prohibited under
section 9(a)(1)(F).
(B) In the event that this paragraph is held invalid, the validity of the
remainder of the Act, including the remainder of this subsection, shall not
be affected.
(7) Nothing in this subsection shall be construed to-
(A) exonerate any person from any act committed in violation of paragraphs
(1)(A),
(1)(E), or (1)(F) of section 9(a) prior to the date of enactment of this
subsection; or
(B) immunize any person from prosecution for any such act.
(8)(A)(i) Any valid certificate of exemption which was renewed after October
13, 1982, and was in effect on March 31, 1988, shall be deemed to be renewed
for a 6-month period beginning on the date of enactment of the Endangered
Species Act Amendments of 1988. Any person holding such a certificate may
apply to the Secretary for one additional renewal of such certificate for a
period not to exceed 5 years beginning on the date of such enactment.
(B) If the Secretary approves any application for renewal of an exemption
under this paragraph, he shall issue to the applicant a certificate of
renewal of such exemption which shall provide that all terms, conditions,
prohibitions, and other regulations made applicable by the previous
certificate shall remain in effect during the period of the renewal.
(C) No exemption or renewal of such exemption made under this subsection
shall have force and effect after the expiration date of the certificate of
renewal of such exemption issued under this paragraph.
(D) No person may, after January 31, 1984, sell or offer for sale in
interstate or foreign commerce, any pre-Act finished scrimshaw product
unless such person holds a valid certificate of exemption issued by the
Secretary under this subsection, and unless such product or the raw material
for such product was held by such person on October 13, 1982.

(g) In connection with any action alleging a violation of section 9, any
person claiming the benefit of any exemption or permit under this Act shall
have the burden of proving that the exemption or permit is applicable, has
been granted, and was valid and in force at the time of the alleged
violation.

(h) CERTAIN ANTIQUE ARTICLES.-
(1) Sections 4(d), 9(a), and 9(c) do not apply to any article which-
(A) is not less than 100 years of age;
(B) is composed in whole or in part of any endangered species or threatened
species listed under section 4;
(C) has not been repaired or modified with any Dart of any such species on
or after the date of the enactment of this Act; and
(D) is entered at a port designated under paragraph (3).
(2) Any person who wishes to import an article under the exception provided
by this subsection shall submit to the customs officer concerned at the time
of entry of the article such documentation as the Secretary of the Treasury,
after consultation with the Secretary of the Interior, shall by regulation
require as being necessary to establish that the article meets the
requirements set forth in paragraph (1) (A), (B), and (C).
(3) The Secretary of the Treasury, after consultation with the Secretary of
the Interior, shall designate one port within each customs region at which
articles described in paragraph
(1) (A), (B), and (C) must be entered into the customs territory of the
United States.
(4) Any person who imported, after December 27, 1973, and on or before the
date of the enactment of the Endangered Species Act Amendments of 1978, any
article described in paragraph (1) which-
(A) was not repaired or modified after the date of importation with any part
of any endangered species or threatened species listed under section 4;
(B) was forfeited to the United States before such date of the enactment, or
is subject to forfeiture to the United States on such date of enactment,
pursuant to the assessment of a civil penalty under section 11; and
(C) is in the custody of the United States on such date of enactment; may,
before the close of the one-year period beginning on such date of enactment
make application to the Secretary for return of the article. Application
shall be made in such form and manner, and contain such documentation, as
the Secretary prescribes. If on the basis of any such application which is
timely filed, the Secretary is satisfied that the requirements of this
paragraph are met with respect to the article concerned, the Secretary shall
return the arti- cle to the applicant and the importation of such article
shall, on and after the date of return, be deemed to be a lawful importation
under this Act.

(i) NONCOMMERCIAL TRANSSHIPMENTS.-Any importation into the United States of
fish or wildlife shall, if-
(1) such fish or wildlife was lawfully taken and exported from the country
of origin and country of reexport, if any;
(2) such fish or wildlife is in transit or transshipment through any place
subject to the jurisdiction of the United States enroute to a country where
such fish or wildlife may be lawfully imported and received;
(3) the exporter or owner of such fish or wildlife gave explicit
instructions not to ship such fish or wildlife through any place subject to
the jurisdiction of the United States, or did all that could have reasonably
been done to prevent transshipment, and the circumstances leading to the
transshipment were beyond the exporter's or owner's control;
(4) the applicable requirements of the Convention have been satisfied; and
(5) such importation is not made in the course of a commercial activity, be
an importation not in violation of any provision of this Act or any
regulation issued pursuant to this Act while such fish or wildlife remains
in the control of the United States Customs Service.

(j) EXPERIMENTAL POPULATIONS.-
(1) For purposes of this subsection, the term "experimental population"
means any population (including any offspring arising solely therefrom)
authorized by the Secretary for release under paragraph (2), but only when,
and at such times as, the population is wholly separate geographically from
nonexperimental populations of the same species.
(2)(A) The Secretary may authorize the release (and the related
transportation) of any population (including eggs, propagules, or
individuals) of an endangered species or a threatened species outside the
current range of such species if the Secretary determines that such release
will further the conservation of such species.
(B) Before authorizing the release of any population under subparagraph (A),
the Secretary shall by regulation identify the population and determine, on
the basis of the best available information, whether or not such population
is essential to the continued existence of an endangered species or a
threatened species.
(C) For the purposes of this Act, each member of an experimental population
shall be treated as a threatened species; except that-
(i) solely for purposes of section 7 (other than subsection (a)(1) thereof),
an experimental population determined under subparagraph (B) to be not
essential to the continued existence of a species shall be treated, except
when it occurs in an area within the National Wildlife Refuge System or the
National Park System, as a species proposed to be listed under section 4;
and
(ii) critical habitat shall not be designated under this Act for any
experimental population determined under subparagraph (B) to be not
essential to the continued existence of a species.
(3) The Secretary, with respect to populations of endangered species or
threatened species that the Secretary authorized, before the date of the
enactment of this subsection, for release in geographical areas separate
from the other populations of such species, shall de- termine by regulation
which of such populations are an experimental population for the purposes of
this subsection and whether or not each is essential to the continued
existence of an endangered species or a threatened species.

PENALTIES AND ENFORCEMENT ^

SEC. 11.
(a) CIVIL PENALTIES.-
(1) Any person who knowingly violates, and any person engaged in business as
an importer or exporter of fish, wildlife, or plants who violates, any
provision of this Act, or any provision of any permit or certificate issued
hereunder, or of any regulation issued in order to implement subsection
(a)(1)(A), (B), (C), (D), (E), or (F), (a)(2)(A), (B), (C), or (D), (c), (d)
(other than regulation relating to recordkeeping or filing of reports), (f),
or (g) of section 9 of this Act, may be assessed a civil penalty by the
Secretary of not more than $25,000 for each violation. Any person who
knowingly violates, and any person engaged in business as an importer or
exporter of fish, wildlife, or plants who violates, any pro- vision of any
other regulation issued under this Act may be assessed a civil penalty by
the Secretary of not more than $12,000 for each such violation. Any person
who otherwise violates any provision of this Act, or any regulation, permit,
or certificate issued hereunder, may be assessed a civil penalty by the
Secretary of not more than $500 for each such violation. No penalty may be
assessed under this subsection unless such person is given notice and
opportunity for a hearing with respect to such violation. Each violation
shall be a separate offense. Any such civil penalty may be remitted or
mitigated by the Secretary. Upon any failure to pay a penalty assessed under
this subsection, the Secretary may request the Attorney General to institute
a civil action in a district court of the United States for any district in
which such person is found, resides, or transacts business to collect the
penalty and such court shall have jurisdiction to hear and decide any such
action. The court shall hear such action on the record made before the
Secretary and shall sustain his action if it is supported by substantial
evidence on the record considered as a whole.
(2) Hearings held during proceedings for the assessment of civil penalties
by paragraph (1) of this subsection shall be conducted in accordance with
section 554 of title 5, United States Code. The Secretary may issue
subpoenas for the attendance and testimony of witnesses and the production
of relevant papers, books, and documents, and administer oaths. Witnesses
summoned shall be paid the same fees and mileage that are paid to witnesses
in the courts of the United States. In case of contumacy or refusal to obey
a sub- poena served upon any person pursuant to this paragraph, the district
court of the United States for any district in which such person is found or
resides or transacts business, upon application by the United States and
after notice to such person, shall have jurisdiction to issue an order
requiring such person to appear and give testimony before the Secretary or
to appear and produce documents before the Secretary, or both, and any
failure to obey such order of the court may be punished by such court as a
contempt thereof.
(3) Notwithstanding any other provision of this Act, no civil penalty shall
be imposed if it can be shown by a preponderance of the evidence that the
defendant committed an act based on a good faith belief that he was acting
to protect himself or herself, a member of his or her family, or any other
individual from bodily harm, from any endangered or threatened species.

(b) CRIMINAL VIOLATIONS.-
(1) Any person who knowingly violates any provision of this Act, of any
permit or certificate issued hereunder, or of any regulation issued in order
to implement subsection (a)(1)(A), (B), (C), (D), (E), or (F); (a)(2)(A),
(B), (C), or (D), (c), (d) (other than a regulation relating to
recordkeeping, or filing of reports), (f), or (g) of section 9 of this Act
shall, upon conviction, be fined not more than $50,000 or imprisoned for not
more than one year, or both. Any person who knowingly violates any provision
of any other regulation issued under this Act shall, upon conviction, be
fined not more than $25,000 or imprisoned for not more than six months, or
both.
(2) The head of any Federal agency which has issued a lease, license,
permit, or other agreement authorizing a person to import or export fish,
wildlife, or plants, or to operate a quarantine station for imported
wildlife, or authorizing the use of Federal lands, including grazing of
domestic livestock, to any person who is convicted of a criminal violation
of this Act or any regulation, permit, or certificate issued hereunder may
immediately modify, suspend, or revoke each lease, license, permit, or other
agreement. The Secretary shall also suspend for a period of up to one year,
or cancel, any Federal hunting or fishing permits or stamps issued to any
person who is convicted of a criminal violation of any provision of this Act
or any regulation, permit, or certificate issued hereunder. The United
States shall not be liable for the payments of any compensation,
reimbursement, or damages in connection with the modification, suspension,
or revocation of any leases, licenses permits stamps, or other agreements
pursuant to this section.
(3) Notwithstanding any other provision of this Act, it shall be a defense
to prosecution under this subsection if the defendant committed the offense
based on a good faith belief that he was acting to protect himself or
herself, a member of his or her family, or any other individual, from bodily
harm from any endangered or threatened species.

(c) DISTRICT COURT JURISDICTION.-The several district courts of the United
States; including the courts enumerated in section 460 of title 28, United
States Code, shall have jurisdiction over any actions arising under this
Act. For the purpose of this Act, American Samoa shall be included within
the judicial district of the District Court of the United States for the
District of Hawaii.

(d) REWARDS AND CERTAIN INCIDENTAL EXPENSES.-The Secretary or the Secretary
of the Treasury shall pay, from sums received as penalties, fines, or
forfeitures of property for any violation of this chapter or any regulation
issued hereunder
(1) a reward to any person who furnishes information which leads to an
arrest, a criminal conviction, civil penalty assessment, or forfeiture of
property for any violation of this chapter or any regulation issued
hereunder, and
(2) the reasonable and necessary costs incurred by any person in providing
temporary care for any fish, wildlife, or plant pending the disposition of
any civil or criminal proceeding alleging a violation of this chapter with
respect to that fish, wildlife, or plant. The amount of the reward, if any,
is to be designated by the Secretary or the Secretary of the Treasury, as
appropriate. Any officer or employee of the United States or any State or
local government who furnishes information or renders service in the
performance of his official duties is ineligible for payment under this
subsection. Whenever the balance of sums received under this section and
section 6(d) of the Act of November 16, 1981 (16 U.S.C. 3375(d)) as
penalties or fines, or from forfeitures of property, exceed $500,000, the
Secretary of the Treasury shall deposit an amount equal to such excess
balance in the cooperative endangered species conservation fund established
under section 6(i) of this Act.

(e) ENFORCEMENT.-
(1) The provisions of this Act and any regulations or permits issued
pursuant thereto shall be enforced by the Secretary, the Secretary of the
Treasury, or the Secretary of the Department in which the Coast Guard is
operating, or all such Secretaries. Each such Secretary may utilize by
agreement, with or without reimbursement, the personnel, services, and
facilities of any other Federal agency or any State agency for purposes of
en- forcing this Act.
(2) The judges of the district courts of the United States and the United
States magistrates may within their respective jurisdictions, upon proper
oath or affirmation showing probable cause, issue such warrants or other
process as may be required for enforcement of this Act and any regulation
issued thereunder.
(3) Any person authorized by the Secretary, the Secretary of the Treasury,
or the Secretary of the Department in which the Coast Guard is operating, to
enforce this Act may detain for inspection and inspect any package, crate,
or other container, including its contents, and all accompanying documents,
upon importation or exportation. Such persons may make arrests without a
warrant for any violation of this Act if he has reasonable grounds to
believe that the person to be arrested is committing the violation in his
presence or view and may execute and serve any arrest warrant, search
warrant, or other warrant or civil or criminal process issued by any officer
or court of competent jurisdiction for enforcement of this Act. Such person
so authorized may search and seize, with or without a warrant, as authorized
by law. Any fish, wildlife, property, or item so seized shall be held by any
person authorized by the Secretary, the Secretary of the Treasury, or the
Secretary of the Department in which the Coast Guard is operating pending
disposition of civil or criminal proceedings, or the institution of an
action in rem for forfeiture of such fish, wildlife, property, or item
pursuant to paragraph (4) of the subsection; except that the Secretary may,
in lieu of holding such fish, wildlife, property, or item, permit the owner
or consignee to post a bond or other surety satisfactory to the Secretary,
but upon forfeiture of any such property to the United States, or the
abandonment or waiver of any claim to any such property, it shall be
disposed of (other than by sale to the general public) by the Secretary in
such a manner, consistent with the purposes of this Act, as the Secretary
shall by regulation prescribe.
(4)(A) All fish or wildlife or plants taken, possessed, sold, purchased,
offered for sale or purchase, transported, delivered, received, carried,
shipped, exported, or imported contrary to the provisions of this Act, any
regulation made pursuant thereto, or any permit or certificate issued
hereunder shall be subject to forfeiture to the United States.
(B) All guns, traps, nets, and other equipment, vessels, vehicles, aircraft,
and other means of transportation used to aid the taking, possessing,
selling, purchasing, offering for sale or purchase, transporting,
delivering, receiving, carrying, shipping, exporting, or im- porting of any
fish or wildlife or plants in violation of this Act, any regulation made
pursuant thereto, or any permit or certificate issued thereunder shall be
subject to forfeiture to the United States upon conviction of a criminal
violation pursuant to section 11(b)(1) of this Act.
(5) All provisions of law relating to the seizure, forfeiture, and
condemnation of a vessel for violation of the customs laws, the disposition
of such vessel or the proceeds from the sale thereof, and the remission or
mitigation of such forfeiture, shall apply to the seizures and forfeitures
incurred, or alleged to have been incurred, under the provisions of this
Act, insofar as such provisions of law are applicable and not inconsistent
with the provisions of this Act; except that all powers, rights, and duties
conferred or imposed by the customs laws upon any officer or employee of the
Treasury Department shall, for the purposes of this Act, be exercised or
performed by the Secretary or by such persons as he may designate.
(6) The Attorney General of the United States may seek to enjoin any person
who is alleged to be in violation of any provision of this Act or regulation
issued under authority thereof.

(f) REGULATIONS.-The Secretary, the Secretary of the Treasury, and the
Secretary of the Department in which the Coast Guard is operating, are
authorized to promulgate such regulations as may be appropriate to enforce
this Act, and charge reasonable fees for ex- penses to the Government
connected with permits or certificates authorized by this Act including
processing applications and reasonable inspections, and with the transfer,
board, handling, or storage of fish or wildlife or plants and evidentiary
items seized and forfeited under this Act. All such fees collected pursuant
to this subsection shall be deposited in the Treasury to the credit of the
appropriation which is current and chargeable for the cost of furnishing the
services. Appropriated funds may be expended pending reimbursement from
parties in interest.

(g) CITIZEN SUITS.-
(1) Except as provided in paragraph (2) of this subsection any person may
commence a civil suit on his own behalf-
(A) to enjoin any person, including the United States and any other
governmental instrumentality or agency (to the extent permitted by the
eleventh amendment to the Constitution), who is alleged to be in violation
of any provision of this Act or regulation issued under the authority
thereof; or
(B) to compel the Secretary to apply, pursuant to section 6(g)(2)(B)(ii) of
this Act, the prohibitions set forth in or authorized pursuant to section
4(d) or section 9(a)(1)(B) of this Act with respect to the taking of any
resident endangered species or threatened species within any State; or
(C) against the Secretary where there is alleged a failure of the Secretary
to perform any act or duty under section 4 which is not discretionary with
the Secretary.
The district courts shall have jurisdiction, without regard to the amount in
controversy or the citizenship of the parties, to enforce any such provision
or regulation or to order the Secretary to perform such act or duty, as the
case may be. In any civil suit commenced under subparagraph (B) the district
court shall compel the Secretary to apply the prohibition sought if the
court finds that the allegation that an emergency exists is supported by
substantial evidence.
(2)(A) No action may be commenced under subparagraph (1)(A) of this section-
(i) prior to sixty days after written notice of the violation has been given
to the Secretary, and to any alleged violator of any such provision or
regulation;
(ii) if the Secretary has commenced action to impose a penalty pursuant to
subsection (a) of this section; or
(iii) if the United States has commenced and is diligently prosecuting a
criminal action in a court of the United States or a State to redress a
violation of any such provision or regulation.
(B) No action may be commenced under subparagraph (1)(B) of this section-
(i) prior to sixty days after written notice has been given to the Secretary
setting forth the reasons why an emergency is thought to exist with respect
to an endangered species or a threatened species in the State concerned; or
(ii) if the Secretary has commenced and is diligently prosecuting action
under section 6(g)(2)(B)(ii) of this Act to determine whether any such
emergency exists.
(C) No action may be commenced under subparagraph (1)(C) of this section
prior to sixty days after written notice has been given to the Secretary;
except that such action may be brought immediately after such notification
in the case of an action under this section respecting an emergency posing a
significant risk to the wellbeing of any species of fish or wildlife or
plants.
(3)(A) Any suit under this subsection may be brought in the judicial
district in which the violation occurs.
(B) In any such suit under this subsection in which the United States is not
a party, the Attorney General, at the request of the Secretary, may
intervene on behalf of the United States as a matter of right.
(4) The court, in issuing any final order in any suit brought pursuant to
paragraph (1) of this subsection, may award costs of litigation (including
reasonable attorney and expert witness fees) to any party, whenever the
court determines such award is appropriate.
(5) The injunctive relief provided by this subsection shall not restrict any
right which any person (or class of persons) may have under any statute or
common law to seek enforcement of any standard or limitation or to seek any
other relief (including relief against the Secretary or a State agency).

(h) COORDINATION WITH OTHER LAWS.-The Secretary of Agriculture and the
Secretary shall provide for appropriate coordination of the administration
of this Act with the administration of the animal quarantine laws (21 U.S.C.
101-105, 111-135b, and 612-614) and section 306 of the Tariff Act of 1930
(19 U.S.C. 1306). Nothing in this Act or any amendment made by this Act
shall be construed as superseding or limiting in any manner the functions of
the Secretary of Agriculture under any other law relating to prohibited or
restricted importations or possession of animals and other articles and no
proceeding or determination under this Act shall preclude any proceeding or
be considered determinative of any issue of fact or law in any proceeding
under any Act administered by the Secretary of Agriculture. Nothing in this
Act shall be construed as superseding or limiting in any manner the
functions and responsibilities of the Secretary of the Treasury under the
Tariff Act of 1930, including, without limitation, section 527 of that Act
(19 U.S.C. 1527), relating to the importation of wildlife taken, killed,
possessed, or exported to the United States in violation of the laws or
regulations of a foreign country.

ENDANGERED PLANTS ^

SEC. 12. The Secretary of the Smithsonian Institution, in conjunction with
other affected agencies, is authorized and directed to review (1) species of
plants which are now or may become endangered, or threatened and (2) methods
of adequately conserving such species, and to report to Congress, within one
year after the date of the enactment of this Act, the results of such review
including recommendations for new legislation or the amendment of existing
legislation.

CONFORMING AMENDMENTS ^

SEC. 13.
(a) Subsection 4(c) of the Act of October 15, 1966 (80 Stat. 928, 16 U.S.C.
668dd(c)), is further amended by revising the second sentence thereof to
read as follows: "With the exception of endangered species and threatened
species listed by the Secretary pursuant to section 4 of the Endangered
Species Act of 1973 in States wherein a cooperative agreement does not exist
pursuant to section 6(c) of that Act, nothing in this Act shall be construed
to authorize the Secretary to control or regulate hunting or fishing of
resident fish and wildlife on lands not within the system."

(b) Subsection 10(a) of the Migratory Bird Conservation Act (45 Stat. 1224,
16 U.S.C. 715i(a)) and subsection 401(a) of the Act of June 15, 1935 (49
Stat. 383, 16 U.S.C. 715s(a)) are each amended by striking out "threatened
with extinction," and inserting in lieu thereof the following: "listed
pursuant to section 4 of the Endangered Species Act of 1973 as endangered
species or threatened species."

(c) Section 7(a)(1) of the Land and Water Conservation Fund Act of 1965 (16
U.S.C. 4601-9(a)(1)) is amended by striking out:
"THREATENED SPECIES.-For any national area which may be authorized for the
preservation of species of fish or wildlife that are threatened with
extinction." and inserting in lieu thereof the following:
"ENDANGERED SPECIES AND THREATENED SPECIES.-For lands, waters, or interests
therein, the acquisition of which is authorized under section 5(a) of the
Endangered Species Act of 1973, needed for the purpose of conserving
endangered or threatened species of fish or wildlife or plants."

(d) The first sentence of section 2 of the Act of September 28, 1962, as
amended (76 Stat. 653, 16 U.S.C. 460k-1), is amended to read as follows:
"The Secretary is authorized to acquire areas of land, or interests therein,
which are suitable for-
"(1) incidental fish and wildlife-oriented recreational development;
"(2) the protection of natural resources;
"(3) the conservation of endangered species or threatened species listed by
the Secretary pursuant to section 4 of the Endangered Species Act of 1973;
or
"(4) carrying out two or more of the purposes set forth in paragraphs (1)
through (3) of this section, and are adjacent to, or within, the said
conservation areas, except that the acquisition of any land or interest
therein pursuant to this section shall be accomplished only with such funds
as may be appropriated therefor by the Congress or donated for such
purposes, but such property shall not be acquired with funds obtained from
the sale of Federal migratory bird hunting stamps."

(e) The Marine Mammal Protection Act of 1972 (16 U.S.C. 13611407) is
amended-
(1) by striking out "Endangered Species Conservation Act of 1969" in section
3(l)(B) thereof and inserting in lieu thereof the following: "Endangered
Species Act of 1973";
(2) by striking out "pursuant to the Endangered Species Conservation Act of
1969" in section 101(a)(3)(B) thereof and inserting in lieu thereof the
following: "or threatened species pursuant to the Endangered Species Act of
1973";
(3) by striking out "endangered under the Endangered Species Conservation
Act of 1969" in section 102(b)(3) thereof and inserting in lieu thereof the
following: "an endangered species or threatened species pursuant to the
Endangered Species Act of 1973"; and
(4) by striking out "of the interior and revisions of the Endangered Species
List, authorized by the Endangered Species Conservation Act of 1969," in
section 202(a)(6) thereof and inserting in lieu thereof the following: "such
revisions of the endangered species list and threatened species list
published pursuant to section 4(c)(1) of the Endangered Species Act of
1973".-

(f) Section 2(1) of the Federal Environmental Pesticide Control Act of 1972
(Public Law 92-516) is amended by striking out the words "by the Secretary
of the Interior under Public Law 91-135" and inserting in lieu thereof the
words "or threatened by the Secretary pursuant to the Endangered Species Act
of 1973".

REPEALER ^

SEC. 14. The Endangered Species Conservation Act of 1969 (sections 1 through
3 of the Act of October 15, 1966, and sections 1 through 6 of the Act of
December 5, 1969; 16 U.S.C. 668aa-668cc-6), is repealed.

AUTHORIZATION OF APPROPRIATIONS ^

SEC. 15.
(a) IN GENERAL.-Except as provided in subsections (b), (c), and (d), there
are authorized to be appropriated-
(1) not to exceed $35,000,000 for fiscal year 1988, $36,500,000 for fiscal
year 1989, $38,000,000 for fiscal year 1990, $39,500,000 for fiscal year
1991, and $41,500,000 for fiscal year 1992 to enable the Department of the
Interior to carry out such functions and responsibilities as it may have
been given under this Act;
(2) not to exceed $5,750,000 for fiscal year 1988, $6,250,000 for each of
fiscal years 1989 and 1990, and $6,750,000 for each of fiscal years 1991 and
1992 to enable the Department of Commerce to carry out such functions and
responsibilities as it may have been given under this Act; and
(3) not to exceed $2,200,000 for fiscal year 1988, $2,400,000 for each of
fiscal years 1989 and 1990, and $2,600,000 for each of fiscal years 1991 and
1992, to enable the Department of Agriculture to carry out its functions and
responsibilities with respect to the enforcement of this Act and the
Convention which pertain to the importation or exportation of plants.

(b) EXEMPTIONS FROM ACT.-There are authorized to be appropriated to the
Secretary to assist him and the Endangered Species Committee in carrying out
their functions under section 7 (e), (g) and (h) not to exceed $600,000 for
each for fiscal years 1988, 1989, 1990, 1991, and 1992.

(c) CONVENTION IMPLEMENTATION.-There are authorized to be appropriated to
the Department of the Interior for purposes of carrying out section 8A(e)
not to exceed $400,000 for each of fiscal years 1988, 1989, and 1990, and
$500,000 for each of fiscal years 1991 and 1992, and such sums shall remain
available until expended.

EFFECTIVE DATE ^

SEC. 16. This Act shall take effect on the date of its enactment.

MARINE MAMMAL PROTECTION ACT OF 1972 ^

SEC. 17. Except as otherwise provided in this Act, no provision of this Act
shall take precedence over any more restrictive conflicting provision of the
Marine Mammal Protection Act of 1972.

ANNUAL COST ANALYSIS BY THE FISH AND WILDLIFE SERVICE

SEC. 18. On or before January 15, 1990, and each January 15 thereafter, the
Secretary of the Interior, acting through the Fish and Wildlife Service,
shall submit to the Congress an annual report covering the preceding fiscal
year which shall contain-
(1) an accounting on a species by species basis of all reasonably
identifiable Federal expenditures made primarily for the conservation of
endangered or threatened species pursuant to this Act; and
(2) an accounting on a species by species basis for all reasonably
identifiable expenditures made primarily for the conservation of endangered
or threatened species pursuant to this Act by states receiving grants under
section 6.