§ 1536. — Interagency cooperation.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 16USC1536]
TITLE 16--CONSERVATION
CHAPTER 35--ENDANGERED SPECIES
Sec. 1536. Interagency cooperation
(a) Federal agency actions and consultations
(1) The Secretary shall review other programs administered by him
and utilize such programs in furtherance of the purposes of this
chapter. All other Federal agencies shall, in consultation with and with
the assistance of the Secretary, utilize their authorities in
furtherance of the purposes of this chapter by carrying out programs for
the conservation of endangered species and threatened species listed
pursuant to section 1533 of this title.
(2) Each Federal agency shall, in consultation with and with the
assistance of the Secretary, insure that any action authorized, funded,
or carried out by such agency (hereinafter in this section referred to
as an ``agency action'') is not likely to jeopardize the continued
existence of any endangered species or threatened species or result in
the destruction or adverse modification of habitat of such species which
is determined by the Secretary, after consultation as appropriate with
affected States, to be critical, unless such agency has been granted an
exemption for such action by the Committee pursuant to subsection (h) of
this section. In fulfilling the requirements of this paragraph each
agency shall use the best scientific and commercial data available.
(3) Subject to such guidelines as the Secretary may establish, a
Federal agency shall consult with the Secretary on any prospective
agency action at the request of, and in cooperation with, the
prospective permit or license applicant if the applicant has reason to
believe that an endangered species or a threatened species may be
present in the area affected by his project and that implementation of
such action will likely affect such species.
(4) Each Federal agency shall confer with the Secretary on any
agency action which is likely to jeopardize the continued existence of
any species proposed to be listed under section 1533 of this 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--
(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.
(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, Secs. 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.)
References in Text
The Privacy Act, referred to in subsec. (e)(7)(C), is probably a
reference to section 552a of Title 5, Government Organization and
Employees. See Short Title note set out under section 552a of Title 5.
The National Environmental Policy Act of 1969, referred to in
subsec. (k), is Pub. L. 91-190, Jan. 1, 1970, 83 Stat. 852, as amended,
which is classified generally to chapter 55 (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.
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.).''
Section Referred to in Other Sections
This section is referred to in sections 1532, 1539, 1542, 3645 of
this title; title 23 section 108.
