-CITE-
16 USC Sec. 1536 01/05/99

-EXPCITE-
TITLE 16 - CONSERVATION
CHAPTER 35 - ENDANGERED SPECIES

-HEAD-
Sec. 1536. Interagency cooperation

-STATUTE-
(a) Federal agency actions and consultations
(1) The Secretary shall review other programs administered by him
and utilize such programs in furtherance of the purposes of this
chapter. All other Federal agencies shall, in consultation with
and with the assistance of the Secretary, utilize their authorities
in furtherance of the purposes of this chapter by carrying out
programs for the conservation of endangered species and threatened
species listed pursuant to section 1533 of this title.
(2) Each Federal agency shall, in consultation with and with the
assistance of the Secretary, insure that any action authorized,
funded, or carried out by such agency (hereinafter in this section
referred to as an ''agency action'') is not likely to jeopardize
the continued existence of any endangered species or threatened
species or result in the destruction or adverse modification of
habitat of such species which is determined by the Secretary, after
consultation as appropriate with affected States, to be critical,
unless such agency has been granted an exemption for such action by
the Committee pursuant to subsection (h) of this section. In
fulfilling the requirements of this paragraph each agency shall use
the best scientific and commercial data available.
(3) Subject to such guidelines as the Secretary may establish, a
Federal agency shall consult with the Secretary on any prospective
agency action at the request of, and in cooperation with, the
prospective permit or license applicant if the applicant has reason
to believe that an endangered species or a threatened species may
be present in the area affected by his project and that
implementation of such action will likely affect such species.
(4) Each Federal agency shall confer with the Secretary on any
agency action which is likely to jeopardize the continued existence
of any species proposed to be listed under section 1533 of this
title or result in the destruction or adverse modification of
critical habitat proposed to be designated for such species. This
paragraph does not require a limitation on the commitment of
resources as described in subsection (d) of this section.
(b) Opinion of Secretary
(1)(A) Consultation under subsection (a)(2) of this section 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) of this section 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) of this section, 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) of this section and can be
taken by the Federal agency or applicant in implementing the agency
action.
(B) Consultation under subsection (a)(3) of this section, and an
opinion issued by the Secretary incident to such consultation,
regarding an agency action shall be treated respectively as a
consultation under subsection (a)(2) of this section, 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) of this section, each Federal agency shall, with respect to
any agency action of such agency for which no contract for
construction has been entered into and for which no construction
has begun on November 10, 1978, request of the Secretary
information whether any species which is listed or proposed to be
listed may be present in the area of such proposed action. If the
Secretary advises, based on the best scientific and commercial data
available, that such species may be present, such agency shall
conduct a biological assessment for the purpose of identifying any
endangered species or threatened species which is likely to be
affected by such action. Such assessment shall be completed within
180 days after the date on which initiated (or within such other
period as is mutually agreed to by the Secretary and such agency,
except that if a permit or license applicant is involved, the
180-day period may not be extended unless such agency provides the
applicant, before the close of such period, with a written
statement setting forth the estimated length of the proposed
extension and the reasons therefor) and, before any contract for
construction is entered into and before construction is begun with
respect to such action. Such assessment may be undertaken as part
of a Federal agency's compliance with the requirements of section
102 of the National Environmental Policy Act of 1969 (42 U.S.C.
4332).
(2) Any person who may wish to apply for an exemption under
subsection (g) of this section for that action may conduct a
biological assessment to identify any endangered species or
threatened species which is likely to be affected by such action.
Any such biological assessment must, however, be conducted in
cooperation with the Secretary and under the supervision of the
appropriate Federal agency.
(d) Limitation on commitment of resources
After initiation of consultation required under subsection (a)(2)
of this section, the Federal agency and the permit or license
applicant shall not make any irreversible or irretrievable
commitment of resources with respect to the agency action which has
the effect of foreclosing the formulation or implementation of any
reasonable and prudent alternative measures which would not violate
subsection (a)(2) of this section.
(e) Endangered Species Committee
(1) There is established a committee to be known as the
Endangered Species Committee (hereinafter in this section referred
to as the ''Committee'').
(2) The Committee shall review any application submitted to it
pursuant to this section and determine in accordance with
subsection (h) of this section whether or not to grant an exemption
from the requirements of subsection (a)(2) of this section for the
action set forth in such application.
(3) The Committee shall be composed of seven members as follows:
(A) The Secretary of Agriculture.
(B) The Secretary of the Army.
(C) The Chairman of the Council of Economic Advisors.
(D) The Administrator of the Environmental Protection Agency.
(E) The Secretary of the Interior.
(F) The Administrator of the National Oceanic and Atmospheric
Administration.
(G) The President, after consideration of any recommendations
received pursuant to subsection (g)(2)(B) of this section shall
appoint one individual from each affected State, as determined by
the Secretary, to be a member of the Committee for the
consideration of the application for exemption for an agency
action with respect to which such recommendations are made, not
later than 30 days after an application is submitted pursuant to
this section.
(4)(A) Members of the Committee shall receive no additional pay
on account of their service on the Committee.
(B) While away from their homes or regular places of business in
the performance of services for the Committee, members of the
Committee shall be allowed travel expenses, including per diem in
lieu of subsistence, in the same manner as persons employed
intermittently in the Government service are allowed expenses under
section 5703 of title 5.
(5)(A) Five members of the Committee or their representatives
shall constitute a quorum for the transaction of any function of
the Committee, except that, in no case shall any representative be
considered in determining the existence of a quorum for the
transaction of any function of the Committee if that function
involves a vote by the Committee on any matter before the
Committee.
(B) The Secretary of the Interior shall be the Chairman of the
Committee.
(C) The Committee shall meet at the call of the Chairman or five
of its members.
(D) All meetings and records of the Committee shall be open to
the public.
(6) Upon request of the Committee, the head of any Federal agency
is authorized to detail, on a nonreimbursable basis, any of the
personnel of such agency to the Committee to assist it in carrying
out its duties under this section.
(7)(A) The Committee may for the purpose of carrying out its
duties under this section hold such hearings, sit and act at such
times and places, take such testimony, and receive such evidence,
as the Committee deems advisable.
(B) When so authorized by the Committee, any member or agent of
the Committee may take any action which the Committee is authorized
to take by this paragraph.
(C) Subject to the Privacy Act (5 U.S.C. 552a), the Committee may
secure directly from any Federal agency information necessary to
enable it to carry out its duties under this section. Upon request
of the Chairman of the Committee, the head of such Federal agency
shall furnish such information to the Committee.
(D) The Committee may use the United States mails in the same
manner and upon the same conditions as a Federal agency.
(E) The Administrator of General Services shall provide to the
Committee on a reimbursable basis such administrative support
services as the Committee may request.
(8) In carrying out its duties under this section, the Committee
may promulgate and amend such rules, regulations, and procedures,
and issue and amend such orders as it deems necessary.
(9) For the purpose of obtaining information necessary for the
consideration of an application for an exemption under this section
the Committee may issue subpenas for the attendance and testimony
of witnesses and the production of relevant papers, books, and
documents.
(10) In no case shall any representative, including a
representative of a member designated pursuant to paragraph (3)(G)
of this subsection, be eligible to cast a vote on behalf of any
member.
(f) Promulgation of regulations; form and contents of exemption
application
Not later than 90 days after November 10, 1978, the Secretary
shall promulgate regulations which set forth the form and manner in
which applications for exemption shall be submitted to the
Secretary and the information to be contained in such
applications. Such regulations shall require that information
submitted in an application by the head of any Federal agency with
respect to any agency action include, but not be limited to -
(1) a description of the consultation process carried out
pursuant to subsection (a)(2) of this section between the head of
the Federal agency and the Secretary; and
(2) a statement describing why such action cannot be altered or
modified to conform with the requirements of subsection (a)(2) of
this section.
(g) Application for exemption; report to Committee
(1) A Federal agency, the Governor of the State in which an
agency action will occur, if any, or a permit or license applicant
may apply to the Secretary for an exemption for an agency action of
such agency if, after consultation under subsection (a)(2) of this
section, the Secretary's opinion under subsection (b) of this
section indicates that the agency action would violate subsection
(a)(2) of this section. 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) of this section 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) of this
section, 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
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(A) determine that the Federal agency concerned and the
exemption applicant have -
(i) carried out the consultation responsibilities described
in subsection (a) of this section in good faith and made a
reasonable and responsible effort to develop and fairly
consider modifications or reasonable and prudent alternatives
to the proposed agency action which would not violate
subsection (a)(2) of this section;
(ii) conducted any biological assessment required by
subsection (c) of this section; and
(iii) to the extent determinable within the time provided
herein, refrained from making any irreversible or irretrievable
commitment of resources prohibited by subsection (d) of this
section; or
(B) deny the application for exemption because the Federal
agency concerned or the exemption applicant have not met the
requirements set forth in subparagraph (A)(i), (ii), and (iii).
The denial of an application under subparagraph (B) shall be
considered final agency action for purposes of chapter 7 of title
5.
(4) If the Secretary determines that the Federal agency concerned
and the exemption applicant have met the requirements set forth in
paragraph (3)(A)(i), (ii), and (iii) he shall, in consultation with
the Members of the Committee, hold a hearing on the application for
exemption in accordance with sections 554, 555, and 556 (other than
subsection (b)(1) and (2) thereof) of title 5 and prepare the
report to be submitted pursuant to paragraph (5).
(5) Within 140 days after making the determinations under
paragraph (3) or within such other period of time as is mutually
agreeable to the exemption applicant and the Secretary, the
Secretary shall submit to the Committee a report discussing -
(A) the availability of reasonable and prudent alternatives to
the agency action, and the nature and extent of the benefits of
the agency action and of alternative courses of action consistent
with conserving the species or the critical habitat;
(B) a summary of the evidence concerning whether or not the
agency action is in the public interest and is of national or
regional significance;
(C) appropriate reasonable mitigation and enhancement measures
which should be considered by the Committee; and
(D) whether the Federal agency concerned and the exemption
applicant refrained from making any irreversible or irretrievable
commitment of resources prohibited by subsection (d) of this
section.
(6) To the extent practicable within the time required for action
under subsection (g) of this section, and except to the extent
inconsistent with the requirements of this section, the
consideration of any application for an exemption under this
section and the conduct of any hearing under this subsection shall
be in accordance with sections 554, 555, and 556 (other than
subsection (b)(3) of section 556) of title 5.
(7) Upon request of the Secretary, the head of any Federal agency
is authorized to detail, on a nonreimbursable basis, any of the
personnel of such agency to the Secretary to assist him in carrying
out his duties under this section.
(8) All meetings and records resulting from activities pursuant
to this subsection shall be open to the public.
(h) Grant of exemption
(1) The Committee shall make a final determination whether or not
to grant an exemption within 30 days after receiving the report of
the Secretary pursuant to subsection (g)(5) of this section. The
Committee shall grant an exemption from the requirements of
subsection (a)(2) of this section 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)
of this section 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) of this section; and
(B) it establishes such reasonable mitigation and enhancement
measures, including, but not limited to, live propagation,
transplantation, and habitat acquisition and improvement, as are
necessary and appropriate to minimize the adverse effects of the
agency action upon the endangered species, threatened species, or
critical habitat concerned.
Any final determination by the Committee under this subsection
shall be considered final agency action for purposes of chapter 7
of title 5.
(2)(A) Except as provided in subparagraph (B), an exemption for
an agency action granted under paragraph (1) shall constitute a
permanent exemption with respect to all endangered or threatened
species for the purposes of completing such agency action -
(i) regardless whether the species was identified in the
biological assessment; and
(ii) only if a biological assessment has been conducted under
subsection (c) of this section 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) of this section or was not
identified in any biological assessment conducted under
subsection (c) of this section, and
(ii) the Committee determines within 60 days after the date of
the Secretary's finding that the exemption should not be
permanent.
If the Secretary makes a finding described in clause (i), the
Committee shall meet with respect to the matter within 30 days
after the date of the finding.
(i) Review by Secretary of State; violation of international treaty
or other international obligation of United States
Notwithstanding any other provision of this chapter, the
Committee shall be prohibited from considering for exemption any
application made to it, if the Secretary of State, after a review
of the proposed agency action and its potential implications, and
after hearing, certifies, in writing, to the Committee within 60
days of any application made under this section that the granting
of any such exemption and the carrying out of such action would be
in violation of an international treaty obligation or other
international obligation of the United States. The Secretary of
State shall, at the time of such certification, publish a copy
thereof in the Federal Register.
(j) Exemption for national security reasons
Notwithstanding any other provision of this chapter, the
Committee shall grant an exemption for any agency action if the
Secretary of Defense finds that such exemption is necessary for
reasons of national security.
(k) Exemption decision not considered major Federal action;
environmental impact statement
An exemption decision by the Committee under this section shall
not be a major Federal action for purposes of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.):
Provided, That an environmental impact statement which discusses
the impacts upon endangered species or threatened species or their
critical habitats shall have been previously prepared with respect
to any agency action exempted by such order.
(l) Committee order granting exemption; cost of mitigation and
enhancement measures; report by applicant to Council on
Environmental Quality
(1) If the Committee determines under subsection (h) of this
section 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) of this section which shall
be carried out and paid for by the exemption applicant in
implementing the agency action. All necessary mitigation and
enhancement measures shall be authorized prior to the implementing
of the agency action and funded concurrently with all other project
features.
(2) The applicant receiving such exemption shall include the
costs of such mitigation and enhancement measures within the
overall costs of continuing the proposed action. Notwithstanding
the preceding sentence the costs of such measures shall not be
treated as project costs for the purpose of computing benefit-cost
or other ratios for the proposed action. Any applicant may request
the Secretary to carry out such mitigation and enhancement
measures. The costs incurred by the Secretary in carrying out any
such measures shall be paid by the applicant receiving the
exemption. No later than one year after the granting of an
exemption, the exemption applicant shall submit to the Council on
Environmental Quality a report describing its compliance with the
mitigation and enhancement measures prescribed by this section.
Such a report shall be submitted annually until all such mitigation
and enhancement measures have been completed. Notice of the public
availability of such reports shall be published in the Federal
Register by the Council on Environmental Quality.
(m) Notice requirement for citizen suits not applicable
The 60-day notice requirement of section 1540(g) of this title
shall not apply with respect to review of any final determination
of the Committee under subsection (h) of this section granting an
exemption from the requirements of subsection (a)(2) of this
section.
(n) Judicial review
Any person, as defined by section 1532(13) of this title, may
obtain judicial review, under chapter 7 of title 5, of any decision
of the Endangered Species Committee under subsection (h) of this
section in the United States Court of Appeals for (1) any circuit
wherein the agency action concerned will be, or is being, carried
out, or (2) in any case in which the agency action will be, or is
being, carried out outside of any circuit, the District of
Columbia, by filing in such court within 90 days after the date of
issuance of the decision, a written petition for review. A copy of
such petition shall be transmitted by the clerk of the court to the
Committee and the Committee shall file in the court the record in
the proceeding, as provided in section 2112 of title 28. Attorneys
designated by the Endangered Species Committee may appear for, and
represent the Committee in any action for review under this
subsection.
(o) Exemption as providing exception on taking of endangered
species
Notwithstanding sections 1533(d) and 1538(a)(1)(B) and (C) of
this title, sections 1371 and 1372 of this title, or any regulation
promulgated to implement any such section -
(1) any action for which an exemption is granted under
subsection (h) 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 and Emergency
Assistance Act (42 U.S.C. 5121 et seq.), the President is
authorized to make the determinations required by subsections (g)
and (h) of this section for any project for the repair or
replacement of a public facility substantially as it existed prior
to the disaster under section 405 or 406 of the Disaster Relief and
Emergency Assistance Act (42 U.S.C. 5171 or 5172), and which the
President determines (1) is necessary to prevent the recurrence of
such a natural disaster and to reduce the potential loss of human
life, and (2) to involve an emergency situation which does not
allow the ordinary procedures of this section to be followed.
Notwithstanding any other provision of this section, the Committee
shall accept the determinations of the President under this
subsection.

-SOURCE-
(Pub. L. 93-205, Sec. 7, Dec. 28, 1973, 87 Stat. 892; Pub. L.
95-632, Sec. 3, Nov. 10, 1978, 92 Stat. 3752; Pub. L. 96-159, Sec.
4, Dec. 28, 1979, 93 Stat. 1226; Pub. L. 97-304, Sec. 4(a), 8(b),
Oct. 13, 1982, 96 Stat. 1417, 1426; Pub. L. 99-659, title IV, Sec.
411(b), (c), Nov. 14, 1986, 100 Stat. 3741, 3742; Pub. L. 100-707,
title I, Sec. 109(g), Nov. 23, 1988, 102 Stat. 4709.)

-REFTEXT-
REFERENCES IN TEXT
The Privacy Act, referred to in subsec. (e)(7)(C), is Pub. L.
93-579, Dec. 31, 1974, 88 Stat. 1896, as amended, which enacted
section 552a of Title 5, Government Organization and Employees, and
provisions set out as notes under section 552a of Title 5. For
complete classification of this Act to the Code, see Short Title
note set out under section 552a of Title 5 and Tables.
The National Environmental Policy Act of 1969, referred to in
subsec. (k), is Pub. L. 91-190, Jan. 1, 1970, 83 Stat. 852, as
amended, which is classified generally to chapter 55 (Sec. 4321 et
seq.) of Title 42, The Public Health and Welfare. For complete
classification of this Act to the Code, see Short Title note set
out under section 4321 of Title 42 and Tables.
The Disaster Relief and Emergency Assistance Act, referred to in
subsec. (p), is Pub. L. 93-288, May 22, 1974, 88 Stat. 143, as
amended, known as The Robert T. Stafford Disaster Relief and
Emergency Assistance Act, which is classified principally to
chapter 68 (Sec. 5121 et seq.) of Title 42. For complete
classification of this Act to the Code, see Short Title note set
out under section 5121 of Title 42 and Tables.

-MISC2-
AMENDMENTS
1988 - Subsec. (p). Pub. L. 100-707 substituted ''the Disaster
Relief and Emergency Assistance Act'' for ''the Disaster Relief Act
of 1974'' and ''section 405 or 406 of the Disaster Relief and
Emergency Assistance Act'' for ''section 401 or 402 of the Disaster
Relief Act of 1974''.
1986 - Subsec. (b)(4)(C). Pub. L. 99-659, Sec. 411(b)(1)-(3),
added subpar. (C).
Subsec. (b)(4)(iii), (iv). Pub. L. 99-659, Sec. 411(b)(4)-(6),
added cl. (iii), redesignated former cl. (iii) as (iv), and in cl.
(iv), as so redesignated, inserted reference to cl. (iii).
Subsec. (o). Pub. L. 99-659, Sec. 411(c)(1), in introductory
provisions, inserted '', sections 1371 and 1372 of this title,'',
and substituted ''any'' for ''either'' after ''implement''.
Subsec. (o)(2). Pub. L. 99-659, Sec. 411(c)(2), substituted
''subsection (b)(4)(iv)'' for ''subsection (b)(4)(iii)'' and
inserted ''prohibited'' before ''taking of the species''.
1982 - Subsec. (a)(3), (4). Pub. L. 97-304, Sec. 4(a)(1), added
par. (3) and redesignated former par. (3) as (4).
Subsec. (b). Pub. L. 97-304, Sec. 4(a)(2), incorporated existing
provisions into pars. (1)(A) and (3)(A) and added pars. (1)(B),
(2), (3)(B), and (4).
Subsec. (c)(1). Pub. L. 97-304, Sec. 4(a)(3), inserted '', except
that if a permit or license applicant is involved, the 180-day
period may not be extended unless such agency provides the
applicant, before the close of such period, with a written
statement setting forth the estimated length of the proposed
extension and the reasons therefor'' after ''agency'' in
parenthetical provision.
Subsec. (e)(10). Pub. L. 97-304, Sec. 4(a)(4), struck out
provision that, except in the case of a member designated pursuant
to paragraph (3)(G) of this subsection, no member could designate
any person to serve as his or her representative unless that person
was, at the time of such designation, holding a Federal office the
appointment to which was subject to the advice and consent of the
United States Senate.
Subsec. (g)(1). Pub. L. 97-304, Sec. 4(a)(5)(B), substituted ''An
application for an exemption shall be considered initially by the
Secretary in the manner provided for in this subsection, and shall
be considered by the Committee for a final determination under
subsection (h) of this section after a report is made pursuant to
paragraph (5)'' for ''An application for an exemption shall be
considered initially by a review board in the manner provided in
this subsection, and shall be considered by the Endangered Species
Committee for a final determination under subsection (h) of this
section after a report is made by the review board''.
Subsec. (g)(2)(A). Pub. L. 97-304, Sec. 4(a)(5)(C)(i),
substituted ''An exemption applicant shall submit a written
application to the Secretary, in a form prescribed under subsection
(f) of this section, not later than 90 days after the completion of
the consultation process; except that, in the case of any agency
action involving a permit or license applicant, such application
shall be submitted not later than 90 days after the date on which
the Federal agency concerned takes final agency action with respect
to the issuance of the permit or license'' for ''An exemption
applicant shall submit a written application to the Secretary, in a
form prescribed under subsection (f) of this section, not later
than 90 days after the completion of the consultation process; or,
in the case of any agency action involving a permit or license
applicant, not later than 90 days after the date on which the
Federal agency concerned takes final agency action, for purposes of
chapter 7 of title 5, with respect to the issuance of the permit or
license'' and inserted provision that, ''For purposes of the
preceding sentence, the term 'final agency action' means (i) a
disposition by an agency with respect to the issuance of a permit
or license that is subject to administrative review, whether or not
such disposition is subject to judicial review; or (ii) if
administrative review is sought with respect to such disposition,
the decision resulting after such review.''
Subsec. (g)(2)(B). Pub. L. 97-304, Sec. 4(a)(5)(C)(ii), inserted
''(i)'' after ''the Secretary shall promptly'', struck out ''to the
review board to be established under paragraph (3) and'' after
''individuals to be appointed'' in cl. (i) as so designated, and
added cl. (ii).
Subsec. (g)(3). Pub. L. 97-304, Sec. 4(a)(5)(D), (E),
redesignated par. (5) as (3) and substituted provisions directing
the Secretary, within 20 days after the receipt of an application
for exemption, or within such other period of time as is mutually
agreeable to the exemption applicant and the Secretary, to (A)
determine that the Federal agency concerned and the exemption
applicant have (i) carried out the consultation responsibilities
described in subsection (a) of this section in good faith and made
a reasonable and responsible effort to develop and fairly consider
modifications or reasonable and prudent alternatives to the
proposed agency action which would not violate subsection (a)(2) of
this section, (ii) conducted any biological assessment required by
subsection (c) of this section, and (iii) to the extent
determinable within the time provided herein, refrained from making
any irreversible or irretrievable commitment of resources
prohibited by subsection (d) of this section, or (B) deny the
application for exemption because the Federal agency concerned or
the exemption applicant have not met the requirements set forth in
subparagraph (A)(i), (ii), and (iii), and providing that the denial
of an application under subparagraph (B) shall be considered final
agency action for purposes of chapter 7 of title 5, for provisions
placing upon the review board appointed under former par. (3) the
duty to make a full review of the consultation carried out under
subsection (a)(2) of this section, and within 60 days after its
appointment or within such longer time as was mutually agreed upon
between the exemption applicant and the Secretary, to make a
determination, by a majority vote, (A) whether an irresolvable
conflict existed and (B) whether the Federal agency concerned and
such exemption applicant had (i) carried out its consultation
responsibilities as described in subsection (a) of this section in
good faith and made a reasonable and responsible effort to develop
and fairly consider modifications or reasonable and prudent
alternatives to the proposed agency action which would not violate
subsection (a)(2) of this section, (ii) conducted any biological
assessment required of it by subsection (c) of this section, and
(iii) refrained from making any irreversible or irretrievable
commitment of resources prohibited by subsection (d) of this
section, and providing that any determination by the review board
that an irresolvable conflict did not exist or that the Federal
agency concerned or the exemption applicant had not met its
respective requirements under subclause (i), (ii), or (iii) was to
be considered final agency action for purposes of chapter 7 of
title 5. Former par. (3), providing for the establishment and
functions of a review board to consider applications for exemptions
and to submit reports to the Endangered Species Committee, was
struck out.
Subsec. (g)(4). Pub. L. 97-304, Sec. 4(a)(5)(D), (F),
redesignated par. (6) as (4) and substituted ''If the Secretary
determines that the Federal agency concerned and the exemption
applicant have met the requirements set forth in paragraph
(3)(A)(i), (ii), and (iii) he shall, in consultation with the
Members of the Committee, hold a hearing on the application for
exemption in accordance with sections 554, 555, and 556 (other than
subsection (b)(1) and (2) thereof) of title 5 and prepare the
report to be submitted pursuant to paragraph (5)'' for ''If the
review board determines that an irresolvable conflict exists and
makes positive determinations under subclauses (i), (ii), and (iii)
of paragraph (5), it shall proceed to prepare the report to be
submitted under paragraph (7)''. Former par. (4), directing the
Secretary to submit the application to the review board immediately
after its appointment under paragraph (3), and to submit to the
review board, in writing, his views and recommendations with
respect to the application within 60 days after receiving a copy of
any application under paragraph (2), was struck out.
Subsec. (g)(5). Pub. L. 97-304, Sec. 4(a)(5)(G), redesignated
par. (7) as (5) and substituted ''Within 140 days after making the
determinations under paragraph (3) or within such other period of
time as is mutually agreeable to the exemption applicant and the
Secretary, the Secretary shall submit'' for ''Within 180 days after
making the determinations under paragraph (6), the review board
shall submit'' in the provisions preceding subpar. (A), and added
subpar. (D). Former par. (5) redesignated (3) and amended.
Subsec. (g)(6). Pub. L. 97-304, Sec. 4(a)(5)(H), redesignated
par. (8) as (6). Former par. (6) redesignated (4) and amended.
Subsec. (g)(7). Pub. L. 97-304, Sec. 4(a)(5)(I), redesignated
par. (10) as (7) and substituted ''Upon request of the Secretary,
the head of any Federal agency is authorized to detail, on a
nonreimbursable basis, any of the personnel of such agency to the
Secretary to assist him in carrying out his duties under this
section'' for ''Upon request of a review board, the head of any
Federal agency is authorized to detail, on a nonreimbursable basis,
any of the personnel of such agency to the review board to assist
it in carry out its duties under this section''. Former par. (7)
redesignated (5) and amended.
Subsec. (g)(8). Pub. L. 97-304, Sec. 4(a)(5)(J), redesignated
par. (12) as (8) and substituted ''records resulting from
activities pursuant to this subsection'' for ''records of review
boards''. Former par. (8) redesignated (6).
Subsec. (g)(9). Pub. L. 97-304, Sec. 4(a)(5)(D), struck out par.
(9) which had provided that the review board, in carrying out its
duties, could (A) sit and act at such times and places, take such
testimony, and receive such evidence, as the review board deemed
advisable, (B) subject to the Privacy Act of 1974 (5 U.S.C. 552a),
request of any Federal agency or applicant information necessary to
enable it to carry out such duties, and upon such request the head
of such Federal agency would furnish such information to the review
board, and (C) use the United States mails in the same manner and
upon the same conditions as a Federal agency.
Subsec. (g)(10). Pub. L. 97-304, Sec. 4(a)(5)(I), redesignated
par. (10) as (7).
Subsec. (g)(11). Pub. L. 97-304, Sec. 4(a)(5)(D), struck out par.
(11) which had provided that the Administrator of the General
Services Administration provide to a review board, on a
reimbursable basis, such administrative support services as the
review board requested.
Subsec. (g)(12). Pub. L. 97-304, Sec. 4(a)(5)(J), redesignated
par. (12) as (8).
Subsec. (h)(1). Pub. L. 97-304, Sec. 4(a)(6), substituted
''within 30 days after receiving the report of the Secretary
pursuant to subsection (g)(5) of this section'' for ''within 90
days of receiving the report of the review board under subsection
(g)(7) of this section'' in provisions preceding subpar. (A),
substituted ''report of the Secretary, the record of the hearing
held under subsection (g)(4) of this section and on such other
testimony'' for ''report of the review board and on such other
testimony'' in subpar. (A) preceding cl. (i), and added cl. (iv).
Subsec. (o). Pub. L. 97-304, Sec. 4(a)(7), substituted
''Notwithstanding sections 1533(d) and 1538(a)(1)(B) and (C) of
this title or any regulation promulgated to implement either such
section (1) any action for which an exemption is granted under
subsection (h) 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)(iii) of this section shall not be considered to be a taking
of the species concerned'' for ''Notwithstanding sections 1533(d)
and 1538(a) of this title or any regulations promulgated pursuant
to such sections, any action for which an exemption is granted
under subsection (h) of this section shall not be considered a
taking of any endangered or threatened species with respect to any
activity which is necessary to carry out such action''.
Subsec. (q). Pub. L. 97-304, Sec. 8(b), struck out subsec. (q)
which authorized appropriations of $600,000 for each of fiscal
years 1979, 1980, 1981, and 1982 in carrying out functions under
subsecs. (e), (f), (g), and (h) of this section. See section
1542(c) of this title.
1979 - Subsec. (a). Pub. L. 96-159, Sec. 4(1), designated
existing provisions as par. (1); struck out third sentence
requirement that each Federal agency, in consultation with and with
the assistance of the Secretary, insure that any action authorized,
funded, or carried out by such agency (referred to as ''agency
action'') did not jeopardize the continued existence of any
endangered species or threatened species or result in the
destruction or adverse modification of habitat of such species
which was determined by the Secretary, after consultation as
appropriate with the affected States, to be critical, unless the
agency was granted an exemption for such action by the Committee
pursuant to subsec. (h) of this section; and added pars. (2) and
(3), incorporating former third sentence provisions.
Subsec. (b). Pub. L. 96-159, Sec. 4(2), (3), substituted ''he
believes would not violate subsection (a)(2) of this section and''
for ''he believes would avoid jeopardizing the continued existence
of any endangered or threatened species or adversely modifying the
critical habitat of such species, and which'' before ''can be
taken'' and introductory ''subsection (a)(2) of this section'' for
''subsection (a) of this section''.
Subsec. (c). Pub. L. 96-159, Sec. 4(3), (4), substituted
''subsection (a)(2)'' for ''subsec. (a)'' of this section,
designated existing provisions as so amended par. (1), and added
par. (2).
Subsec. (d). Pub. L. 96-159, Sec. 4(3), (5), substituted
introductory words ''subsection (a)(2)'' for ''subsection (a)'' of
this section and ''alternative measures which would not violate
subsection (a)(2) of this section'' for ''alternative measures
which would avoid jeopardizing the continued existence of any
endangered or threatened species or adversely modifying or
destroying the critical habitat of any such species''.
Subsecs. (e)(2), (f). Pub. L. 96-159, Sec. 4(3), substituted
''subsection (a)(2)'' for ''subsection (a)''.
Subsec. (g)(1). Pub. L. 96-159, Sec. 4(3), (6), substituted in
first sentence ''subsection (a)(2)'' for ''subsection (a)'' of this
section and ''agency action would violate subsection (a)(2) of this
section'' for ''agency action may jeopardize the continued
existence of any endangered or threatened species or destroy or
adversely modify the critical habitat of such species''.
Subsec. (g)(2)(A). Pub. L. 96-159, Sec. 4(7), required exemption
applicant, to submit a written application, in the case of any
agency action involving a permit or license applicant, not later
than 90 days after the date on which the Federal agency concerned
takes final agency action, for purposes of chapter 7 of Title 5,
with respect to the issuance of the permit or license.
Subsec. (g)(3). Pub. L. 96-159, Sec. 4(8), added subpar. (B), and
redesignated former subpar. (B) as (C).
Subsec. (g)(5). Pub. L. 96-159, Sec. 4(3), (9), substituted in
introductory text and cl. (i) ''subsection (a)(2)'' for
''subsection (a)'' of this section; redesignated as cls. (A) and
(B) former cls. (i) and (ii); inserted in cl. (B) ''the Federal
agency concerned and'' before ''such exemption applicant'';
redesignated as subcls. (i) to (iii) former subcls. (A) to (C);
substituted in subcl. (i) ''agency action which would not violate
subsection (a)(2) of this section'' for ''agency action which will
avoid jeopardizing the continued existence of an endangered or
threatened species or result in the adverse modification or
destruction of a critical habitat''; and substituted in last
sentence ''the Federal agency concerned or the exemption applicant
has not met its respective requirements under subclause (i), (ii),
or (iii)'' for ''the exemption applicant has not met the
requirements of subparagraph (A), (B), or (C)'' preceding ''shall
be considered final agency action''.
Subsec. (g)(6). Pub. L. 96-159, Sec. 4(10), substituted
''subclauses (i), (ii), and (iii)'' for ''subparagraphs (A), (B),
and (C)'' of paragraph (5).
Subsec. (h)(1). Pub. L. 96-159, Sec. 4(3), substituted
''subsection (a)(2)'' for ''subsection (a)'' of this section.
Subsec. (h)(2). Pub. L. 96-159, Sec. 4(11), in subpar. (A),
substituted ''paragraph (1)'' for ''subsection (h) of this
section'', inserted cl. (i), incorporated existing provisions in
text designated cl. (ii), inserting thereto ''with respect to such
agency action''; in subpar. (B), incorporated existing provision in
cl. (i), inserted findings provision respecting the extinction of a
species that was not: the subject of consultation or identified in
any biological assessment under subsec. (a)(2) or (c) of this
section, added cl. (ii), deleted prior requirement for a Committee
determination within 30 days of the Secretary's finding that an
exemption would result in extinction of the species whether to
grant an exemption for the agency notwithstanding such finding, and
superseded the same with requirement that the Committee meet with
respect to the matter within 30 days after the date of such a
finding.
Subsec. (m). Pub. L. 96-159, Sec. 4(3), substituted ''subsection
(a)(2)'' for ''subsection (a)'' of this section.
Subsec. (q). Pub. L. 96-159, Sec. 4(12), authorized
appropriations of $600,000 for fiscal years 1980 through 1982, and
deleted appropriations authorization of $300,000 for period
beginning Oct. 1, 1979, and ending Mar. 3, 1980, and requirement
that the Chairman of the Committee report to the Congress before
end of fiscal year 1979 with respect to adequacy of the budget
authority.
1978 - Subsec. (a). Pub. L. 95-632 designated existing provision
as subsec. (a), inserted reference to agency action, substituted
''adverse modification'' for ''modification'', and provided for the
grant of an exemption for agency action by the Endangered Species
Committee pursuant to subsec. (h) of this section.
Subsecs. (b) to (q). Pub. L. 95-632 added subsecs. (b) to (q).
DEFERRAL OF AGENCY ACTION
Pub. L. 105-18, title II, Sec. 3003, June 12, 1997, 111 Stat.
176, provided that:
''(a) Consultation and Conferencing. - As provided by regulations
issued under the Endangered Species Act (16 U.S.C. 1531 et seq.)
for emergency situations, formal consultation or conferencing under
section 7(a)(2) or section 7(a)(4) of the Act (16 U.S.C.
1536(a)(2), (4)) for any action authorized, funded or carried out
by any Federal agency to repair a Federal or non-Federal flood
control project, facility or structure may be deferred by the
Federal agency authorizing, funding or carrying out the action, if
the agency determines that the repair is needed to respond to an
emergency causing an imminent threat to human lives and property in
1996 or 1997. Formal consultation or conferencing shall be deferred
until the imminent threat to human lives and property has been
abated. For purposes of this section, the term repair shall
include preventive and remedial measures to restore the project,
facility or structure to remove an imminent threat to human lives
and property.
''(b) Reasonable and Prudent Measures. - Any reasonable and
prudent measures specified under section 7 of the Endangered
Species Act (16 U.S.C. 1536) to minimize the impact of an action
taken under this section shall be related both in nature and extent
to the effect of the action taken to repair the flood control
project, facility or structure.''
TRANSLOCATION OF CALIFORNIA SEA OTTERS
Pub. L. 99-625, Sec. 1, Nov. 7, 1986, 100 Stat. 3500, provided
that:
''(a) Definitions. - For purposes of this section -
''(1) The term 'Act' means the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.).
''(2) The term 'agency action' has the meaning given that term
in section 7(a)(2) of the Act (16 U.S.C. 1536(a)(2)).
''(3) The term 'experimental population' means the population
of sea otters provided for under a plan developed under
subsection (b).
''(4) The phrase 'parent population' means the population of
sea otters existing in California on the date on which proposed
regulations setting forth a proposed plan under subsection (b)
are issued.
''(5) The phrase 'prospective action' refers to any prospective
agency action that -
''(A) may affect either the experimental population or the
parent population; and
''(B) has evolved to the point where meaningful consultation
under section 7(a)(2) or (3) of the Act (16 U.S.C. 1536(a)(2),
(3)) can take place.
''(6) The term 'Secretary' means the Secretary of the Interior.
''(7) The term 'Service' means the United States Fish and
Wildlife Service.
''(b) Plan Specifications. - The Secretary may develop and
implement, in accordance with this section, a plan for the
relocation and management of a population of California sea otters
from the existing range of the parent population to another
location. The plan, which must be developed by regulation and
administered by the Service in cooperation with the appropriate
State agency, shall include the following:
''(1) The number, age, and sex of sea otters proposed to be
relocated.
''(2) The manner in which the sea otters will be captured,
translocated, released, monitored, and protected.
''(3) The specification of a zone (hereinafter referred to as
the 'translocation zone') to which the experimental population
will be relocated. The zone must have appropriate
characteristics for furthering the conservation of the species.
''(4) The specification of a zone (hereinafter referred to as
the 'management zone') that -
''(A) surrounds the translocation zone; and
''(B) does not include the existing range of the parent
population or adjacent range where expansion is necessary for
the recovery of the species.
The purpose of the management zone is to (i) facilitate the
management of sea otters and the containment of the experimental
population within the translocation zone, and (ii) to prevent, to
the maximum extent feasible, conflict with other fishery
resources within the management zone by the experimental
population. Any sea otter found within the management zone shall
be treated as a member of the experimental population. The
Service shall use all feasible non-lethal means and measures to
capture any sea otter found within the management zone and return
it to either the translocation zone or to the range of the parent
population.
''(5) Measures, including an adequate funding mechanism, to
isolate and contain the experimental population.
''(6) A description of the relationship of the implementation
of the plan to the status of the species under the Act and to
determinations of the Secretary under section 7 of the Act (16
U.S.C. 1536).
''(c) Status of Members of the Experimental Population. - (1) Any
member of the experimental population shall be treated while within
the translocation zone as a threatened species for purposes of the
Act, except that -
''(A) section 7 of the Act (16 U.S.C. 1536) shall only apply to
agency actions that -
''(i) are undertaken within the translocation zone,
''(ii) are not defense-related agency actions, and
''(iii) are initiated after the date of the enactment of this
section (Nov. 7, 1986); and
''(B) with respect to defense-related actions within the
translocation zone, members of the experimental population shall
be treated as members of a species that is proposed to be listed
under section 4 of the Act (16 U.S.C. 1533).
For purposes of this paragraph, the term 'defense-related agency
action' means an agency action proposed to be carried out directly
by a military department.
''(2) For purposes of section 7 of the Act (16 U.S.C. 1536), any
member of the experimental population shall be treated while within
the management zone as a member of a species that is proposed to be
listed under section 4 of the Act (16 U.S.C. 1533). Section 9 of
the Act (16 U.S.C. 1538) applies to members of the experimental
population; except that any incidental taking of such a member
during the course of an otherwise lawful activity within the
management zone, may not be treated as a violation of the Act or
the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 et seq.).
''(d) Implementation of Plan. - The Secretary shall implement the
plan developed under subsection (b) -
''(1) after the Secretary provides an opinion under section
7(b) of the Act (16 U.S.C. 1536(b)) regarding each prospective
action for which consultation was initiated by a Federal agency
or requested by a prospective permit or license applicant before
April 1, 1986; or
''(2) if no consultation under section 7(a)(2) or (3) regarding
any prospective action is initiated or requested by April 1,
1986, at any time after that date.
''(e) Consultation and Effect of Opinion. - A Federal agency
shall promptly consult with the Secretary, under section 7(a)(3) of
the Act (16 U.S.C. 1536(a)(3)), at the request of, and in
cooperation with, any permit or license applicant regarding any
prospective action. The time limitations applicable to
consultations under section 7(a)(2) of the Act apply to
consultations under the preceding sentence. In applying section
7(b)(3)(B) with respect to an opinion on a prospective action that
is provided after consultation under section 7(a)(3), that opinion
shall be treated as the opinion issued after consultation under
section 7(a)(2) unless the Secretary finds, after notice and
opportunity for comment in accordance with section 553 of title 5,
United States Code, that a significant change has been made with
respect to the action or that a significant change has occurred
regarding the information used during the initial consultation.
The interested party may petition the Secretary to make a finding
under the preceding sentence. The Secretary may implement any
reasonable and prudent alternatives specified in any opinion
referred to in this subsection through appropriate agreements with
any such Federal agency, prospective permit or license applicant,
or other interested party.
''(f) Construction. - For purposes of implementing the plan, no
act by the Service, an authorized State agency, or an authorized
agent of the Service or such an agency with respect to a sea otter
that is necessary to effect the relocation or management of any sea
otter under the plan may be treated as a violation of any provision
of the Act or the Marine Mammal Protection Act of 1972 (16 U.S.C.
1361 et seq.).''

-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1532, 1539, 1542, 4802 of
this title; title 23 section 108.