HR 9533 — ESA Amendments Act of 2024

changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, and existing law in which no 
change is proposed is shown in roman):

 ENDANGERED SPECIES ACT OF 1973

 Be it enacted by the Senate and House of Representatives of 
the United States of America in Congress assembled, That this 
Act may be cited as the ``Endangered Species Act of 1973''.

 TABLE OF CONTENTS

Sec. 2. Findings, purposes, and policy.
 * * * * * * *
[Sec. 13. Conforming amendments.]
Sec. 13. Disclosure of expenditures.

 * * * * * * *

 definitions

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

 determination of endangered species and threatened species

 Sec. 4. (a) General.--(1) The Secretary shall by regulation 
promulgated in accordance with subsection (b) determine whether 
any species is an endangered species or a threatened species 
because of any of the following factors:
 (A) the present or threatened destruction, 
 modification, or curtailment of its habitat or range;
 (B) overutilization for commercial, recreational, 
 scientific, or educational purposes;
 (C) disease or predation;
 (D) the inadequacy of existing regulatory mechanisms; 
 or
 (E) other natural or manmade factors affecting its 
 continued existence.
 (2) With respect to any species over which program 
responsibilities have been vested in the Secretary of Commerce 
pursuant to Reorganization Plan Numbered 4 of 1970--
 (A) in any case in which the Secretary of Commerce 
 determines that such species should--
 (i) be listed as an endangered species or a 
 threatened species, or
 (ii) be changed in status from a threatened 
 species to an endangered species, he shall so 
 inform the Secretary of the Interior, who shall 
 list such species in accordance with this 
 section;
 (B) in any case in which the Secretary of Commerce 
 determines that such species should--
 (i) be removed from any list published 
 pursuant to subsection (c) of this section, or
 (ii) be changed in status from an endangered 
 species to a threatened species, he shall 
 recommend such action to the Secretary of the 
 Interior, and the Secretary of the Interior, if 
 he concurs in the recommendation, shall 
 implement such action; and
 (C) the Secretary of the Interior may not list or 
 remove from any list any such species, and may not 
 change the status of any such species which are listed, 
 without a prior favorable determination made pursuant 
 to this section by the Secretary of Commerce.
 (3)(A) The Secretary, by regulation promulgated in accordance 
with subsection (b) and to the maximum extent prudent and 
determinable--
 (i) shall, concurrently with making a determination 
 under paragraph (1) that a species is an endangered 
 species or a threatened species, designate any habitat 
 of such species which is then considered to be critical 
 habitat; and
 (ii) may, from time-to-time thereafter as 
 appropriate, revise such designation.
 (B)(i) The Secretary shall not designate as critical habitat 
any lands or other geographical areas owned or controlled by 
the Department of Defense, or designated for its use, that are 
subject to an integrated natural resources management plan 
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), 
if the Secretary determines in writing that such plan provides 
a benefit to the species for which critical habitat is proposed 
for designation.
 (ii) Nothing in this paragraph affects the requirement to 
consult under section 7(a)(2) with respect to an agency action 
(as that term is defined in that section).
 (iii) Nothing in this paragraph affects the obligation of the 
Department of Defense to comply with section 9, including the 
prohibition preventing extinction and taking of endangered 
species and threatened species.
 (C) Privately owned or controlled land.--The 
 Secretary may not designate as critical habitat 
 under subparagraph (A) any privately owned or 
 controlled land or other geographical area that 
 is subject to a land management plan that--
 (i) the Secretary determines is 
 similar in nature to an integrated 
 natural resources management plan 
 described in section 101 of the Sikes 
 Act (16 U.S.C. 670a);
 (ii)(I) is prepared in cooperation 
 with the Secretary and the head of each 
 applicable State fish and wildlife 
 agency of each State in which such land 
 or other geographical area is located; 
 or
 (II) is submitted to the Secretary in 
 a manner that is similar to the manner 
 in which an applicant submits a 
 conservation plan to the Secretary 
 under section 10(a)(2)(A);
 (iii) includes an activity or a limitation on 
 an activity that the Secretary determines will 
 likely conserve the species concerned;
 (iv) the Secretary determines will result 
 in--
 (I) an increase in the population of 
 the species concerned above the 
 population of such species on the date 
 that such species is listed as a 
 threatened species or an endangered 
 species; or
 (II) maintaining the same population 
 of such species on the land or other 
 geographical area as the population 
 that would likely occur if such land or 
 other geographical area is designated 
 as critical habitat; and
 (v) to the maximum extent practicable, will 
 minimize and mitigate the impacts of any 
 activity that will likely result in an 
 incidental taking of the species concerned.
 (4) Analysis of effects of determination.--
 (A) In general.--The Secretary shall, concurrently 
 with making a determination under paragraph (1) that a 
 species is a threatened species or an endangered 
 species, prepare an analysis with respect to such 
 determination of--
 (i) the economic effect;
 (ii) the effects on national security; and
 (iii) any other relevant effect.
 (B) Effect.--Nothing in this paragraph shall delay a 
 determination made by the Secretary under paragraph (1) 
 or change the criteria used by the Secretary to make 
 such a determination.
 (b) Basis for Determinations.--(1)(A) The Secretary shall 
make determinations required by subsection (a)(1) solely on the 
basis of the best scientific and commercial data available to 
him after conducting a review of the status of the species and 
after taking into account those efforts, if any, being made by 
any State or foreign nation, or any political subdivision of a 
State or foreign nation, to protect such species, whether by 
predator control, protection of habitat and food supply, or 
other conservation practices, within any area under its 
jurisdiction, or on the high seas.
 (B) In carrying out this section, the Secretary shall give 
consideration to species which have been--
 (i) designated as requiring protection from 
 unrestricted commerce by any foreign nation, or 
 pursuant to any international agreement; or
 (ii) identified as in danger of extinction, or likely 
 to become so within the foreseeable future, by any 
 State agency or by any agency of a foreign nation that 
 is responsible for the conservation of fish or wildlife 
 or plants.
 (C) Candidate conservation agreements with 
 assurances.--In making a determination under 
 subsection (a)(1) with respect to a species, 
 the Secretary shall take into account and 
 document the effect of any net conservation 
 benefit (as that term is defined in subsection 
 (k) of section 10) of any Candidate 
 Conservation Agreement with Assurances or any 
 programmatic Candidate Conservation Agreement 
 with Assurances (as those terms are defined in 
 that subsection) relating to such species.
 (2) The Secretary shall designate critical habitat, and make 
revisions thereto, under subsection (a)(3) on the basis of the 
best scientific data available and after taking into 
consideration the economic impact, the impact on national 
security, the impact on existing efforts of private landowners 
to conserve the species, and any other relevant impact, of 
specifying any particular area as critical habitat. The 
Secretary may exclude any area from critical habitat if he 
determines that the benefits of such exclusion outweigh the 
benefits of specifying such area as part of the critical 
habitat, unless he determines, based on the best scientific and 
commercial data available, that the failure to designate such 
area as critical habitat will result in the extinction of the 
species concerned.
 (3)(A) To the maximum extent practicable, within 90 days 
after receiving the petition of an interested person under 
section 553(e) of title 5, United States Code, to add a species 
to, or to remove a species from, either of the lists published 
under subsection (c), the Secretary shall make a finding as to 
whether the petition presents substantial scientific or 
commercial information indicating that the petitioned action 
may be warranted. If such a petition is found to present such 
information, the Secretary shall promptly commence a review of 
the status of the species concerned. The Secretary shall 
promptly publish each finding made under this subparagraph in 
the Federal Register.
 (B) [Within 12 months] In accordance with the national 
listing work plan submitted under subsection (j), after 
receiving a petition that is found under subparagraph (A) to 
present substantial information indicating that the petitioned 
action may be warranted, the Secretary shall make one of the 
following findings:
 (i) The petitioned action is not warranted, in which 
 case the Secretary shall promptly publish such finding 
 in the Federal Register.
 (ii) The petitioned action is warranted in which case 
 the Secretary shall promptly publish in the Federal 
 Register a general notice and the complete text of a 
 proposed regulation to implement such action in 
 accordance with paragraph (5).
 (iii) The petitioned action is warranted but that--
 (I) the immediate proposal and timely 
 promulgation of a final regulation implementing 
 the petitioned action in accordance with 
 paragraphs (5) and (6) is precluded by pending 
 proposals to determine whether any species is 
 an endangered species or a threatened species, 
 and
 (II) expeditious progress is being made to 
 add qualified species to either of the lists 
 published under subsection (c) and to remove 
 from such lists species for which the 
 protections of the Act are no longer necessary,
 in which case the Secretary shall promptly publish such 
 finding in the Federal Register, together with a 
 description and evaluation of the reasons and data on 
 which the finding is based.
 [(C)(i) A petition with respect to which a finding is made 
under subparagraph (B)(iii) shall be treated as a petition that 
is resubmitted to the Secretary under subparagraph (A) on the 
date of such finding and that presents substantial scientific 
or commercial information that the petitioned action may be 
warranted.
 [(ii) Any negative finding described in subparagraph (A) and 
any finding described in subparagraph (B)(i) or (iii) shall be 
subject to judicial review.
 [(iii) The Secretary shall implement a system to monitor 
effectively the status of all species with respect to which a 
finding is made under subparagraph (B)(iii) and shall make 
prompt use of the authority under paragraph 7 to prevent a 
significant risk to the well being of any such species.]
 (C) Judicial review.--Any negative finding 
 described in subparagraph (A) and any finding 
 described in subparagraph (B)(i)(I) shall be 
 subject to judicial review.
 (D)(i) To the maximum extent practicable, within 90 days 
after receiving the petition of an interested person under 
section 553(e) of title 5, United States Code, to revise a 
critical habitat designation, the Secretary shall make a 
finding as to whether the petition presents substantial 
scientific information indicating that the revision may be 
warranted. The Secretary shall promptly publish such finding in 
the Federal Register.
 (ii) Within 12 months after receiving a petition that is 
found under clause (i) to present substantial information 
indicating that the requested revision may be warranted, the 
Secretary shall determine how he intends to proceed with the 
requested revision, and shall promptly publish notice of such 
intention in the Federal Register.
 (4) Except as provided in paragraphs (5) and (6) of this 
subsection, the provisions of section 553 of title 5, United 
States Code (relating to rulemaking procedures), shall apply to 
any regulation promulgated to carry out the purposes of this 
Act.
 (5) With respect to any regulation proposed by the Secretary 
to implement a determination, designation, or revision referred 
to in subsection (a)(1) or (3), the Secretary shall--
 (A) not less than 90 days before the effective date 
 of the regulation--
 (i) publish a general notice and the complete 
 text of the proposed regulation in the Federal 
 Register, and
 (ii) give actual notice of the proposed 
 regulation (including the complete text of the 
 regulation) to the State agency in each State 
 in which the species is believed to occur, and 
 to each county or equivalent jurisdiction in 
 which the species is believed to occur, and 
 invite the comment of such agency, and each 
 such jurisdiction, thereon;
 (B) insofar as practical, and in cooperation with the 
 Secretary of State, give notice of the proposed 
 regulation to each foreign nation in which the species 
 is believed to occur or whose citizens harvest the 
 species on the high seas, and invite the comment of 
 such nation thereon;
 (C) give notice of the proposed regulation to such 
 professional scientific organizations as he deems 
 appropriate;
 (D) publish a summary of the proposed regulation in a 
 newspaper of general circulation in each area of the 
 United States in which the species is believed to 
 occur; and
 (E) promptly hold one public hearing on the proposed 
 regulation if any person files a request for such a 
 hearing within 45 days after the date of publication of 
 general notice.
 (6)(A) Within the one-year period beginning on the date on 
which general notice is published in accordance with paragraph 
(5)(A)(i) regarding a proposed regulation, the Secretary shall 
publish in the Federal Register--
 (i) if a determination as to whether a species is an 
 endangered species or a threatened species, or a 
 revision of critical habitat, is involved, either--
 (I) a final regulation to implement such 
 determination,
 (II) a final regulation to implement such 
 revision or a finding that such revision should 
 not be made,
 (III) notice that such one-year period is 
 being extended under subparagraph (B)(i), or
 (IV) notice that the proposed regulation is 
 being withdrawn under subparagraph (B)(ii), 
 together with the finding on which such 
 withdrawal is based; or
 (ii) subject to subparagraph (C), if a designation of 
 critical habitat is involved, either--
 (I) a final regulation to implement such 
 designation, or
 (II) notice that such one-year period is 
 being extended under such subparagraph.
 (B)(i) If the Secretary finds with respect to a proposed 
regulation referred to in subparagraph (A)(i) that there is 
substantial disagreement regarding the sufficiency or accuracy 
of the available data relevant to the determination or revision 
concerned, the Secretary may extend the one-year period 
specified in subparagraph (A) for not more than six months for 
purposes of soliciting additional data.
 (ii) If a proposed regulation referred to in subparagraph 
(A)(i) is not promulgated as a final regulation within such 
one-year period (or longer period if extension under clause (i) 
applies) because the Secretary finds that there is not 
sufficient evidence to justify the action proposed by the 
regulation, the Secretary shall immediately withdraw the 
regulation. The finding on which a withdrawal is based shall be 
subject to judicial review. The Secretary may not propose a 
regulation that has previously been withdrawn under this clause 
unless he determines that sufficient new information is 
available to warrant such proposal.
 (iii) If the one-year period specified in subparagraph (A) is 
extended under clause (i) with respect to a proposed 
regulation, then before the close of such extended period the 
Secretary shall publish in the Federal Register either a final 
regulation to implement the determination or revision 
concerned, a finding that the revision should not be made, or a 
notice of withdrawal of the regulation under clause (ii), 
together with the finding on which the withdrawal is based.
 (C) A final regulation designating critical habitat of an 
endangered species or a threatened species shall be published 
concurrently with the final regulation implementing the 
determination that such species is endangered or threatened, 
unless the Secretary deems that--
 (i) it is essential to the conservation of such 
 species that the regulation implementing such 
 determination be promptly published; or
 (ii) critical habitat of such species is not then 
 determinable, in which case the Secretary, with respect 
 to the proposed regulation to designate such habitat, 
 may extend the one-year period specified in 
 subparagraph (A) by not more than one additional year, 
 but not later than the close of such additional year 
 the Secretary must publish a final regulation, based on 
 such data as may be available at that time, 
 designating, to the maximum extent prudent, such 
 habitat.
 (7) Neither paragraph (4), (5), or (6) of this subsection nor 
section 553 of title 5, United States Code, shall apply to any 
regulation issued by the Secretary in regard to any emergency 
posing a significant risk to the well-being of any species of 
fish and wildlife or plants, but only if--
 (A) at the time of publication of the regulation in 
 the Federal Register the Secretary publishes therein 
 detailed reasons why such regulation is necessary; and
 (B) in the case such regulation applies to resident 
 species of fish or wildlife, or plants, the Secretary 
 gives actual notice of such regulation to the State 
 agency in each State in which such species is believed 
 to occur.
Such regulation shall, at the discretion of the Secretary, take 
effect immediately upon the publication of the regulation in 
the Federal Register. Any regulation promulgated under the 
authority of this paragraph shall cease to have force and 
effect at the close of the 240-day period following the date of 
publication unless, during such 240-day period, the rulemaking 
procedures which would apply to such regulation without regard 
to this paragraph are complied with. If at any time after 
issuing an emergency regulation the Secretary determines, on 
the basis of the best appropriate data available to him, that 
substantial evidence does not exist to warrant such regulation, 
he shall withdraw it.
 (8) The publication in the Federal Register of any proposed 
or final regulation which is necessary or appropriate to carry 
out the purposes of this Act shall include a summary by the 
Secretary of the data on which such regulation is based and 
shall show the relationship of such data to such regulation; 
and if such regulation designates or revises critical habitat, 
such summary shall, to the maximum extent practicable, also 
include a brief description and evaluation of those activities 
(whether public or private) which, in the opinion of the 
Secretary, if undertaken may adversely modify such habitat, or 
may be affected by such designation.
 (9) The Secretary shall make publicly available on the 
Internet the best scientific and commercial data available that 
are used as the basis for each regulation, including each 
proposed regulation, promulgated under subsection (a)(1), 
except that--
 (A) at the request of a Governor, State agency, or 
 legislature of a State, the Secretary may not make such 
 data available under this paragraph if such entity 
 determines that public disclosure of such data is 
 prohibited by a law or regulation of such State, 
 including any law or regulation requiring the 
 protection of personal information; and
 (B) not later than 30 days after the date of the 
 enactment of this paragraph, the Secretary shall 
 execute an agreement with the Secretary of Defense that 
 prevents the disclosure of classified information 
 pertaining to Department of Defense personnel, 
 facilities, lands, or waters.
 (c) Lists.--(1) The Secretary of the Interior shall publish 
in the Federal Register a list of all species determined by him 
or the Secretary of Commerce to be endangered species and a 
list of all species determined by him or the Secretary of 
Commerce to be threatened species. Each list shall refer to the 
species contained therein by scientific and common name or 
names, if any, specify with respect to such species over what 
portion of its range it is endangered or threatened, and 
specify any critical habitat within such range. The Secretary 
shall from time to time revise each list published under the 
authority of this subsection to reflect recent determinations, 
designations, and revisions made in accordance with subsections 
(a) and (b).
 (2) The Secretary shall--
 (A) conduct, at least once every five years, a review 
 of all species included in a list which is published 
 pursuant to paragraph (1) and which is in effect at the 
 time of such review; and
 (B) determine on the basis of such review whether any 
 such species should--
 (i) be removed from such list;
 (ii) be changed in status from an endangered 
 species to a threatened species; or
 (iii) be changed in status from a threatened 
 species to an endangered species.
Each determination under subparagraph (B) shall be made in 
accordance with the provisions of subsection (a) and (b).
 (3) Not later than 30 days after the date on which the 
Secretary makes a determination under paragraph (2)(B), the 
Secretary shall initiate a rulemaking to carry out such 
determination.
 [(d) Protective Regulations.--Whenever any species is listed 
as a threatened species pursuant to subsection (c) of this 
section, the Secretary shall issue such regulations as he deems 
necessary and advisable to provide for the conservation of such 
species. The Secretary may by regulation prohibit with respect 
to any threatened species any act prohibited under section 
9(a)(1), in the case of fish or wildlife, or section 9(a)(2) in 
the case of plants, with respect to endangered species; except 
that with respect to the taking of resident species of fish or 
wildlife, such, regulations shall apply in any State which has 
entered into a cooperative agreement pursuant to section 6(c) 
of this Act only to the extent that such regulations have also 
been adopted by such State.]
 (d) Protective Regulations.--
 (1) In general.--Whenever any species is listed as a 
 threatened species pursuant to subsection (c), the 
 Secretary shall issue such regulations as are necessary 
 and advisable to provide for the conservation of that 
 species.
 (2) Recovery goals.--If the Secretary issues a 
 regulation under paragraph (1) that prohibits an act 
 described in section 9(a), the Secretary shall, with 
 respect to the species that is the subject of such 
 regulation--
 (A) establish objective, incremental recovery 
 goals;
 (B) provide for the stringency of such 
 regulation to decrease as such recovery goals 
 are met; and
 (C) provide for State management within such 
 State, if such State is willing to take on such 
 management, beginning on the date on which the 
 Secretary determines all such recovery goals 
 are met and, if such recovery goals remain met, 
 continuing until such species is removed from 
 the list of threatened species published 
 pursuant to subsection (c).
 (3) Cooperative agreement.--A regulation issued under 
 paragraph (1) that prohibits an act described in 
 section 9(a) with respect to a resident species shall 
 apply with respect to a State that has entered into a 
 cooperative agreement with the Secretary pursuant to 
 section 6(c) only to the extent that such regulation is 
 adopted by such State.
 (4) State recovery strategy.--
 (A) In general.--A State may develop a 
 recovery strategy for a threatened species or a 
 candidate species and submit to the Secretary a 
 petition for the Secretary to use such recovery 
 strategy as the basis for any regulation issued 
 under paragraph (1) with respect to such 
 species within such State.
 (B) Approval or denial of petition.--Not 
 later than 120 days after the date on which the 
 Secretary receives a petition submitted under 
 subparagraph (A), the Secretary shall--
 (i) approve such petition if the 
 Secretary determines the recovery 
 strategy is reasonably certain to be 
 implemented by the petitioning State 
 and to be effective in conserving the 
 species that is the subject of such 
 recovery strategy; or
 (ii) deny such petition if the 
 requirements described in clause (i) 
 are not met.
 (C) Publication.--Not later than 30 days 
 after the date on which the Secretary approves 
 or denies a petition under subparagraph (B), 
 the Secretary shall publish such approval or 
 denial in the Federal Register.
 (D) Denial of petition.--
 (i) Written explanation.--If the 
 Secretary denies a petition under 
 subparagraph (B), the Secretary shall 
 include in such denial a written 
 explanation for such denial, including 
 a description of the changes to such 
 petition that are necessary for the 
 Secretary to approve such petition.
 (ii) Resubmission of denied 
 petition.--A State may resubmit a 
 petition that is denied under 
 subparagraph (B).
 (E) Use in protective regulations.--If the 
 Secretary approves a petition under 
 subparagraph (B), the Secretary shall--
 (i) issue a regulation under 
 paragraph (1) that adopts the recovery 
 strategy as such regulation with 
 respect to the species that is the 
 subject of such recovery strategy 
 within the petitioning State; and
 (ii) establish objective criteria to 
 evaluate the effectiveness of such 
 recovery strategy in conserving such 
 species within such State.
 (F) Revision.--If a recovery strategy that is 
 adopted as a regulation issued under paragraph 
 (1) is determined by the Secretary to be 
 ineffective in conserving the species that is 
 the subject of such recovery strategy in 
 accordance with the objective criteria 
 established under subparagraph (E)(ii) for such 
 recovery strategy, the Secretary shall revise 
 such regulation and reissue such regulation in 
 accordance with paragraph (1).
 (e) Similarity of Appearance Cases.--The Secretary may, by 
regulation of commerce or taking, and to the extent he deems 
advisable, treat any species as an endangered species or 
threatened species even through it is not listed pursuant to 
section 4 of this Act if he finds that--
 
 (A) such species so closely resembles in appearance, 
 at the point in question, a species which has been 
 listed pursuant to such section that enforcement 
 personnel would have substantial difficulty in 
 attempting to differentiate between the listed and 
 unlisted species;
 (B) the effect of this substantial difficulty is an 
 additional threat to an endangered or threatened 
 species; and
 (C) such treatment of an unlisted species will 
 substantially facilitate the enforcement and further 
 the policy of this Act.
 (f)(1) Recovery Plans.--The Secretary shall develop and 
implement plans (hereinafter in this subsection referred to as 
``recovery plans'') for the conservation and survival of 
endangered species and threatened species listed pursuant to 
this section, unless he finds that such a plan will not promote 
the conservation of the species. The Secretary, in developing 
and implementing recovery plans, shall, to the maximum extent 
practicable--
 (A) give priority to those endangered species or 
 threatened species, without regard to taxonomic 
 classification, that are most likely to benefit from 
 such plans, particularly those species that are, or may 
 be, in conflict with construction or other development 
 projects or other forms of economic activity;
 (B) incorporate in each plan--
 (i) a description of such site-specific 
 management actions as may be necessary to 
 achieve the plan's goal for the conservation 
 and survival of the species;
 (ii) objective, measurable criteria which, 
 when met, would result in a determination, in 
 accordance with the provisions of this section, 
 that the species be removed from the list; 
 [and]
 (iii) estimates of the time required and the 
 cost to carry out those measures needed to 
 achieve the plan's goal and to achieve 
 intermediate steps toward that goal[.]; and
 (iv) with respect to an endangered species, 
 objective, incremental recovery goals in 
 accordance with subsection (d)(2)(A) for use 
 under that subsection if such endangered 
 species is changed in status from an endangered 
 species to a threatened species under 
 subsection (c)(2)(B)(ii).
 (2) The Secretary, in developing and implementing recovery 
plans, may procure the services of appropriate public and 
private agencies and institutions and other qualified persons. 
Recovery teams appointed pursuant to this subsection shall not 
be subject to chapter 10 of title 5, United States Code.
 (3) The Secretary shall report every two years to the 
Committee on Environment and Public Works of the Senate and the 
Committee on Merchant Marine and Fisheries of the House of 
Representatives on the status of efforts to develop and 
implement recovery plans for all species listed pursuant to 
this section and on the status of all species for which such 
plans have been developed.
 (4) The Secretary shall, prior to final approval of a new or 
revised recovery plan, provide public notice and an opportunity 
for public review and comment on such plan. The Secretary shall 
consider all information presented during the public comment 
period prior to approval of the plan.
 (5) Each Federal agency shall, prior to implementation of a 
new or revised recovery plan, consider all information 
presented during the public comment period under paragraph (4).
 (g) Monitoring.--(1) The Secretary shall implement a system 
in cooperation with the States to monitor effectively for not 
less than five years the status of all species which have 
recovered to the point at which the measures provided pursuant 
to this Act are no longer necessary and which, in accordance 
with the provisions of this section, have been removed from 
either of the lists published under subsection (c).
 (2) The Secretary shall make prompt use of the authority 
under paragraph 7 of subsection (b) of this section to prevent 
a significant risk to the well being of any such recovered 
species.
 (3) The removal of a species from a list published under 
subsection (c)(1) is not subject to judicial review during the 
period established under paragraph (1) with respect to the 
species.
 (h) Agency Guidelines.--The Secretary shall establish, and 
publish in the Federal Register, agency guidelines to insure 
that the purposes of this section are achieved efficiently and 
effectively. Such guidelines shall include, but are not limited 
to--
 (1) procedures for recording the receipt and the 
 disposition of petitions submitted under subsection 
 (b)(3) of this section;
 (2) criteria for making the findings required under 
 such subsection with respect to petitions;
 (3) a ranking system to assist in the identification 
 of species that should receive priority review under 
 subsection (a)(1) of the section; and
 (4) a system for developing and implementing, on a 
 priority basis, recovery plans under subsection (f) of 
 this section.
The Secretary shall provide to the public notice of, and 
opportunity to submit written comments on, any guideline 
(including any amendment thereto) proposed to be established 
under this subsection.
 (i) If, in the case of any regulation proposed by the 
Secretary under the authority of this section, a State agency 
to which notice thereof was given in accordance with subsection 
(b)(5)(A)(ii) files comments disagreeing with all or part of 
the proposed regulation, and the Secretary issues a final 
regulation which is in conflict with such comments, or if the 
Secretary fails to adopt a regulation pursuant to an action 
petitioned by a State agency under subsection (b)(3), the 
Secretary shall submit to the State agency a written 
justification for his failure to adopt regulations consistent 
with the agency's comments or petition.
 (j) National Listing Work Plan.--
 (1) In general.--Not later than the date described in 
 paragraph (2), the Secretary shall submit to Congress a 
 national listing work plan that establishes, for each 
 covered species, a schedule for the completion during 
 the 5-fiscal year period beginning on October 1 of the 
 first fiscal year after the date of the submission of 
 the work plan of--
 (A) findings as described in subsection 
 (b)(3)(B) for each such covered species;
 (B) proposed and final determinations 
 regarding listing each such covered species 
 under this section; and
 (C) proposed and final critical habitat 
 designations under subsection (a)(3) relating 
 to each such covered species.
 (2) Submission to congress.--
 (A) In general.--The Secretary shall submit 
 to Congress--
 (i) together with the budget request 
 of the Secretary for the first fiscal 
 year that begins not less than 365 days 
 after the date of the enactment of this 
 subsection, the initial work plan 
 required under paragraph (1); and
 (ii) together with the budget request 
 of the Secretary for each fiscal year 
 thereafter, an updated work plan under 
 paragraph (1).
 (B) Additional inclusions.--The Secretary 
 shall include with each budget request referred 
 to in subparagraph (A) a description of the 
 amounts to be requested to carry out the work 
 plan for the fiscal year covered by the budget 
 request, including any amounts requested to 
 address emergency listings if the Secretary 
 identifies any emergency posing a significant 
 risk to the well-being of any species of fish 
 or wildlife or plant.
 (3) Priority.--
 (A) In general.--In developing a work plan 
 under this subsection, the Secretary shall 
 assign to each species included in the work 
 plan a priority classification of Priority 1 
 through Priority 5, such that, as determined by 
 the Secretary, the following apply:
 (i) Priority 1 represents species of 
 the highest priority, to be designated 
 as critically imperiled and in need of 
 immediate action.
 (ii) Priority 2 represents species 
 with respect to which the best 
 scientific and commercial data 
 available support a clear decision 
 regarding the status of the species.
 (iii) Priority 3 represents species 
 with respect to which studies regarding 
 the status of the species are being 
 carried out--
 (I) to answer key questions 
 that may influence the findings 
 of a petition to list the 
 species submitted under 
 subsection (b)(3); and
 (II) to resolve any 
 uncertainty regarding the 
 status of the species within a 
 reasonable timeframe.
 (iv) Priority 4 represents species 
 for which proactive conservation 
 efforts likely to reduce threats to the 
 species are being developed or carried 
 out, within a reasonable timeframe and 
 in an organized manner, by Federal 
 agencies, States, landowners, or other 
 stakeholders.
 (v) Priority 5 represents species--
 (I) for which there exists 
 little information regarding--
 (aa) threats to the 
 species; or
 (bb) the status of 
 the species; or
 (II) that would receive 
 limited conservation benefit in 
 the foreseeable future by 
 listing the species as a 
 threatened species or 
 endangered species under this 
 section.
 (B) Use of methodology.--The Secretary shall 
 establish and assign priority classifications 
 under subparagraph (A) in accordance with the 
 notice of the Director of the United States 
 Fish and Wildlife Service titled ``Methodology 
 for Prioritizing Status Reviews and 
 Accompanying 12-Month Findings on Petitions for 
 Listing Under the Endangered Species Act'' (81 
 Fed. Reg. 49248; published July 27, 2016).
 (C) Extensions for certain priority 
 classifications.--
 (i) Priority 3.--With respect to a 
 species classified as Priority 3 under 
 subparagraph (A)(iii), if the Secretary 
 determines that additional time would 
 allow for more complete data collection 
 or the completion of studies relating 
 to the species, the Secretary may 
 retain the species under the work plan 
 for a period of not more than 5 years 
 after the deadline under paragraph (4).
 (ii) Priority 4.--With respect to a 
 species classified as Priority 4 under 
 subparagraph (A)(iv), if the Secretary 
 determines that existing conservation 
 efforts continue to meet the 
 conservation needs of the species, the 
 Secretary may retain the species under 
 the work plan for a period of not more 
 than 5 years after the deadline under 
 paragraph (4).
 (iii) Priority 5.--With respect to a 
 species classified as Priority 5 under 
 subparagraph (A)(v), the Secretary may 
 retain the species under the work plan 
 for a period of not more than 5 years 
 after the deadline under paragraph (4).
 (D) Revision of priority classification.--The 
 Secretary may revise, in accordance with 
 subparagraph (A), the assignment to a priority 
 classification of a species included in a work 
 plan at any time during the fiscal years to 
 which the work plan applies.
 (E) Effect of priority classification.--The 
 assignment of a priority classification to a 
 species included in a work plan is not a final 
 agency action.
 (4) Deadline.--The Secretary shall act on any 
 petition to add a species to a list published under 
 subsection (c) submitted under subsection (b)(3) not 
 later than the last day of the fiscal year specified 
 for that petition in the most recent work plan.
 (5) Regulations.--The Secretary may issue such 
 regulations as the Secretary determines appropriate to 
 carry out this subsection.
 (6) Effect of subsection.--Nothing in this subsection 
 may be construed to preclude or otherwise affect the 
 emergency listing authority of the Secretary under 
 subsection (b)(7).
 (7) Definitions.--In this subsection:
 (A) Covered species.--The term ``covered 
 species'' means a species that is not included 
 on a list published under subsection (c)--
 (i) for which a petition to add the 
 species to such a list has been 
 submitted under subsection (b)(3); or
 (ii) that is otherwise under 
 consideration by the Secretary for 
 addition to such a list.
 (B) Work plan.--The term ``work plan'' means 
 the national listing work plan submitted by the 
 Secretary under paragraph (1).

 * * * * * * *

 cooperation with the states

 Sec. 6. (a) General.--(1) In carrying out the program 
authorized by this Act, the Secretary shall cooperate to the 
maximum extent practicable with the States. [Such cooperation 
shall include]
 (2) Such cooperation shall include--
 (A) before making a determination under section 4(a), 
 providing to States affected by such determination all 
 data that is the basis of the determination; and 
 (B) consultation with the States concerned before 
 acquiring any land or water, or interest therein, for 
 the purpose of conserving any endangered species or 
 threatened species.
 (b) Management Agreements.--The Secretary may enter into 
agreements with any State for the administration and management 
of any area established for the conservation of endangered 
species or threatened species. Any revenues derived from the 
administration of such areas under these agreements shall be 
subject to the provisions of section 401 of the Act of June 15, 
1935 (49 Stat. 383; 16 U.S.C. 715s).
 (c)(1) Cooperative Agreements.--In furtherance of the 
purposes of this Act, the Secretary is authorized to enter into 
a cooperative agreement in accordance with this section with 
any State which establishes and maintains an adequate and 
active program for the conservation of endangered species and 
threatened species. Within one hundred and twenty days after 
the Secretary receives a certified copy of such a proposed 
State program, he shall make a determination whether such 
program is in accordance with this Act. Unless he determines, 
pursuant to this paragraph, that the State program is not in 
accordance with this Act, he shall enter into a cooperative 
agreement with the State for the purpose of assisting in 
implementation of the State program. In order for a State 
program to be deemed an adequate and active program for the 
conservation of endangered species and threatened species, the 
Secretary must find, and annually thereafter reconfirm such 
finding, that under the State program--
 (A) authority resides in the State agency to conserve 
 resident species of fish or wildlife determined by the 
 State agency or the Secretary to be endangered or 
 threatened;
 (B) the State agency has established acceptable 
 conservation programs, consistent with the purposes and 
 policies of this Act, for all resident species of fish 
 or wildlife in the State which are deemed by the 
 Secretary to be endangered or threatened, and has 
 furnished a copy of such plan and program together with 
 all pertinent details, information, and data requested 
 to the Secretary;
 (C) the State agency is authorized to conduct 
 investigations to determine the status and requirements 
 for survival of resident species of fish and wildlife;
 (D) the State agency is authorized to establish 
 programs, including the acquisition of land or aquatic 
 habitat or interests therein, for the conservation of 
 resident endangered or threatened species of fish or 
 wildlife; and
 (E) provision is made for public participation in 
 designating resident species of fish or wildlife as 
 endangered or threatened; or
that under the State program--
 
 (i) the requirements set forth in subparagraphs (C), 
 (D), and (E) of this paragraph are complied with, and
 (ii) plans are included under which immediate 
 attention will be given to those resident species of 
 fish and wildlife which are determined by the Secretary 
 or the State agency to be endangered or threatened and 
 which the Secretary and the State agency agree are most 
 urgently in need of conservation programs; except that 
 a cooperative agreement entered into with a State whose 
 program is deemed adequate and active pursuant to 
 clause (i) and this clause shall not affect the 
 applicability of prohibitions set forth in or 
 authorized pursuant to section 4(d) or section 9(a)(1) 
 with respect to the taking of any resident endangered 
 or threatened species.
 (2) In furtherance of the purposes of this Act, the Secretary 
is authorized to enter into a cooperative agreement in 
accordance with this section with any State which establishes 
and maintains an adequate and active program for the 
conservation of endangered species and threatened species of 
plants. Within one hundred and twenty days after the Secretary 
receives a certified copy of such a proposed State program, he 
shall make a determination whether such program is in 
accordance with this Act. Unless he determines, pursuant to 
this paragraph, that the State program is not in accordance 
with this Act, he shall enter into a cooperative agreement with 
the State for the purpose of assisting in implementation of the 
State program. In order for a State program to be deemed an 
adequate and active program for the conservation of endangered 
species of plants and threatened species of plants, the 
Secretary must find, and annually thereafter reconfirm such 
findings, that under the State program--
 (A) authority resides in the State agency to conserve 
 resident species of plants determined by the State 
 agency or the Secretary to be endangered or threatened;
 (B) the State agency has established acceptable 
 conservation programs, consistent with the purposes and 
 policies of this Act, for all resident species of 
 plants in the State which are deemed by the Secretary 
 to be endangered or threatened, and has furnished a 
 copy of such plan and program together with all 
 pertinent details, information, and data requested to 
 the Secretary;
 (C) the State agency is authorized to conduct 
 investigations to determine the status and requirements 
 for survival of resident species of plants; and
 (D) provision is made for public participation in 
 designating resident species of plants as endangered or 
 threatened; or that under the State program--
 (i) the requirements set forth in 
 subparagraphs (C) and (D) of this paragraph are 
 complied with, and
 (ii) plans are included under which immediate 
 attention will be given to those resident 
 species of plants which are determined by the 
 Secretary or the State agency to be endangered 
 or threatened and which the Secretary and the 
 State agency agree are most urgently in need of 
 conservation programs; except that a 
 cooperative agreement entered into with a State 
 whose program is deemed adequate and active 
 pursuant to clause (i) and this clause shall 
 not affect the applicability of prohibitions 
 set forth in or authorized pursuant to section 
 4(d) or section 9(a)(1) with respect to the 
 taking of any resident endangered or threatened 
 species.
 (d) Allocation of Funds.--(1) The Secretary is authorized to 
provide financial assistance to any State, through its 
respective State agency, which has entered into a cooperative 
agreement pursuant to subsection (c) of this section to assist 
in development of programs for the conservation of endangered 
and threatened species or to assist in monitoring the status of 
candidate species pursuant to subparagraph (C) of section 
4(b)(3) and recovered species pursuant to section 4(g). The 
Secretary shall allocate each annual appropriation made in 
accordance with the provisions of subsection (i) of this 
section to such States based on consideration of--
 (A) the international commitments of the United 
 States to protect endangered species or threatened 
 species;
 (B) the readiness of a State to proceed with a 
 conservation program consistent with the objectives and 
 purposes of this Act;
 (C) the number of endangered species and threatened 
 species within a State;
 (D) the potential for restoring endangered species 
 and threatened species within a State;
 (E) the relative urgency to initiate a program to 
 restore and protect an endangered species or threatened 
 species in terms of survival of the species;
 (F) the importance of monitoring the status of 
 candidate species within a State to prevent a 
 significant risk to the well being of any such species; 
 and
 (G) the importance of monitoring the status of 
 recovered species within a State to assure that such 
 species do not return to the point at which the 
 measures provided pursuant to this Act are again 
 necessary.
So much of the annual appropriation made in accordance with 
provisions of subsection (i) of this section allocated for 
obligation to any State for any fiscal year as remains 
unobligated at the close thereof is authorized to be made 
available to that State until the close of the succeeding 
fiscal year. Any amount allocated to any State which is 
unobligated at the end of the period during which it is 
available for expenditure is authorized to be made available 
for expenditure by the Secretary in conducting programs under 
this section.
 (2) Such cooperative agreements shall provide for (A) the 
actions to be taken by the Secretary and the States; (B) the 
benefits that are expected to be derived in connection with the 
conservation of endangered or threatened species; (C) the 
estimated cost of these actions; and (D) the share of such 
costs to be bore by the Federal Government and by the States; 
except that--
 
 (i) the Federal share of such program costs shall not 
 exceed 75 percent of the estimated program cost stated 
 in the agreement; and
 (ii) the Federal share may be increased to 90 percent 
 whenever two or more States having a common interest in 
 one or more endangered or threatened species, the 
 conservation of which may be enhanced by cooperation of 
 such States, enter jointly into agreement with the 
 Secretary.
The Secretary may, in his discretion, and under such rules and 
regulations as he may prescribe, advance funds to the State for 
financing the United States pro rata share agreed upon in the 
cooperative agreement. For the purposes of this section, the 
non-Federal share may, in the discretion of the Secretary, be 
in the form of money or real property, the value of which will 
be determined by the Secretary whose decision shall be final.
 (e) Review of State Programs.--Any action taken by the 
Secretary under this section shall be subject to his periodic 
review at no greater than annual intervals.
 (f) Conflicts Between Federal and State Laws.--Any State law 
or regulation which applies with respect to the importation or 
exportation of, or interstate or foreign commerce in, 
endangered species or threatened species is void to the extent 
that it may effectively (1) permit what is prohibited by this 
Act or by any regulation which implements this Act, or (2) 
prohibit what is authorized pursuant to an exemption or permit 
provided for in this Act or in any regulation which implements 
this Act. This Act shall not otherwise be construed to void any 
State law or regulation which is intended to conserve 
migratory, resident, or introduced fish or wildlife, or to 
permit or prohibit sale of such fish or wildlife. Any State law 
or regulation respecting the taking of an endangered species or 
threatened species may be more restrictive than the exemptions 
or permits provided for in this Act or in any regulation which 
implements this Act but not less restrictive than the 
prohibitions so defined.
 (g) Transition.--(1) For purposes of this subsection, the 
term ``establishment period'' means, with respect to any State, 
the period beginning on the date of enactment of this Act and 
ending on whichever of the following dates first occurs: (A) 
the date of the close of the 120-day period following the 
adjournment of the first regular session of the legislature of 
such State which commences after such date of enactment, or (B) 
the date of the close of the 15-month period following such 
date of enactment.
 (2) The prohibitions set forth in or authorized pursuant to 
sections 4(d) and 9(a)(1)(B) of this Act shall not apply with 
respect to the taking of any resident endangered species or 
threatened species (other than species listed in Appendix I to 
the Convention or otherwise specifically covered by any other 
treaty or Federal law) within any State--
 (A) which is then a party to a cooperative agreement 
 with the Secretary pursuant to section 6(c) of this Act 
 (except to the extent that the taking of any such 
 species is contrary to the law of such State); or
 (B) except for any time within the establishment 
 period when--
 (i) the Secretary applies such prohibition to 
 such species at the request of the State, or
 (ii) the Secretary applies such prohibition 
 after he finds, and publishes his finding, that 
 an emergency exists posing a significant risk 
 to the well-being of such species and that the 
 prohibition must be applied to protect such 
 species. The Secretary's finding and 
 publication may be made without regard to the 
 public hearing or comment provisions of section 
 553 of title 5, United States Code, or any 
 other provision of this Act; but such 
 prohibition shall expire 90 days after the date 
 of its imposition unless the Secretary further 
 extends such prohibition by publishing notice 
 and a statement of justification of such 
 extension.
 (h) Regulations.--The Secretary is authorized to promulgate 
such regulations as may be appropriate to carry out the 
provisions of this section relating to financial assistance to 
States.
 (i) Appropriations.--(1) To carry out the provisions of this 
section for fiscal years after September 30, 1988, there shall 
be deposited into a special fund known as the cooperative 
endangered species conservation fund, to be administered by the 
Secretary, an amount equal to five percent of the combined 
amounts covered each fiscal year into the Federal aid to 
wildlife restoration fund under section 3 of the Act of 
September 2, 1937, and paid, transferred, or otherwise credited 
each fiscal year to the Sport Fishing Restoration Account 
established under 1016 of the Act of July 18, 1984.
 (2) Amounts deposited into the special fund are authorized to 
be appropriated annually and allocated in accordance with 
subsection (d) of this section.

 interagency cooperation

 Sec. 7. (a) Federal Agency Actions and Consultations.--(1) 
The Secretary shall review other programs administered by him 
and utilize such programs in furtherance of the purposes of 
this Act. All other Federal agencies shall, in consultation 
with and with the assistance of the Secretary, utilize their 
authorities in furtherance of the purposes of this Act by 
carrying out programs for the conservation of endangered 
species and threatened species listed pursuant to section 4 of 
this Act.
 (2) Each Federal agency shall, in consultation with and with 
the assistance of the Secretary, insure that any action 
authorized, funded, or carried out by such agency (hereinafter 
in this section referred to as an ``agency action'') is not 
likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or 
adverse modification of habitat of such species which is 
determined by the Secretary, after consultation as appropriate 
with affected States, to be critical, unless such agency has 
been granted an exemption for such action by the Committee 
pursuant to subsection (h) of this section. In fulfilling the 
requirements of this paragraph each agency shall use the best 
scientific and commercial data available.
 (3) Subject to such guidelines as the Secretary may 
establish, a Federal agency shall consult with the Secretary on 
any prospective agency action at the request of, and in 
cooperation with, the prospective permit or license applicant 
if the applicant has reason to believe that an endangered 
species or a threatened species may be present in the area 
affected by his project and that implementation of such action 
will likely affect such species.
 (4) Each Federal agency shall confer with the Secretary on 
any agency action which is likely to jeopardize the continued 
existence of any species proposed to be listed under section 4 
or result in the destruction or adverse modification of 
critical habitat proposed to be designated for such species. 
This paragraph does not require a limitation on the commitment 
of resources as described in subsection (d).
 (5) For the purposes of carrying out a consultation under 
this section with respect to a threatened species or an 
endangered species, the term ``environmental baseline''--
 (A) means the condition of the species or the 
 critical habitat of the species in the action area, 
 without the consequences to the species or the critical 
 habitat of the species caused by the proposed action; 
 and
 (B) includes--
 (i) the past and present effects of all 
 Federal, State, and private actions and other 
 human activities in the action area;
 (ii) the anticipated effects of each proposed 
 Federal project within the action area for 
 which a consultation under this section has 
 been completed;
 (iii) the effects of State and private 
 actions that are contemporaneous with the 
 consultation in process; and
 (iv) the ongoing impacts to listed species or 
 designated critical habitat from existing 
 facilities or activities that are not caused by 
 the proposed action or that are not within the 
 discretion of the Federal action agency to 
 modify.
 (b) Opinion of Secretary.--(1)(A) Consultation under 
subsection (a)(2) with respect to any agency action shall be 
concluded within the 90-day period beginning on the date on 
which initiated or, subject to subparagraph (B), within such 
other period of time as is mutually agreeable to the Secretary 
and the Federal agency.
 (B) In the case of an agency action involving a permit or 
license applicant, the Secretary and the Federal agency may not 
mutually agree to conclude consultation within a period 
exceeding 90 days unless the Secretary, before the close of the 
90th day referred to in subparagraph (A)--
 (i) if the consultation period proposed to be agreed 
 to will end before the 150th day after the date on 
 which consultation was initiated, submits to the 
 applicant a written statement setting forth--
 (I) the reasons why a longer period is 
 required;
 (II) the information that is required to 
 complete the consultation; and
 (III) the estimated date on which 
 consultation will be completed; or
 (ii) if the consultation period proposed to be agreed 
 to will end 150 or more days after the date on which 
 consultation was initiated, obtains the consent of the 
 applicant to such period.
The Secretary and the Federal agency may mutually agree to 
extend a consultation period established under the preceding 
sentence if the Secretary, before the close of such period, 
obtains the consent of the applicant to the extension.
 (2) Consultation under subsection (a)(3) shall be concluded 
within such period as is agreeable to the Secretary, the 
Federal agency, and the applicant concerned.
 (3)(A) Promptly after conclusion of consultation under 
paragraph (2) or (3) of subsection (a), the Secretary shall 
provide to the Federal agency and the applicant, if any, a 
written statement setting forth the Secretary's opinion, and a 
summary of the information on which the opinion is based, 
detailing how the agency action affects the species or its 
critical habitat. If jeopardy or adverse modification is found, 
the Secretary shall suggest those reasonable and prudent 
alternatives which he believes would not violate subsection 
(a)(2) and can be taken by the Federal agency or applicant in 
implementing the agency action.
 (B) Consultation under subsection (a)(3), and an opinion 
based by the Secretary incident to such consultation, regarding 
an agency action shall be treated respectively as a 
consultation under subsection (a)(2), and as an opinion issued 
after consultation under such subsection, regarding that action 
if the Secretary reviews the action before it is commenced by 
the Federal agency and finds, and notifies such agency, that no 
significant changes have been made with respect to the action 
and that no significant change has occurred regarding the 
information used during the initial consultation.
 (4) If after consultation under subsection (a)(2) of this 
section, the Secretary concludes that--
 (A) the agency action will not violate such 
 subsection, or offers reasonable and prudent 
 alternatives which the Secretary believes would not 
 violate such subsection;
 (B) the taking of an endangered species or a 
 threatened species incidental to the agency action will 
 not violate such subsection; and
 (C) if an endangered species or threatened species of 
 a marine mammal is involved, the taking is authorized 
 pursuant to section 101(a)(5) of the Marine Mammal 
 Protection Act of 1972;
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 and that do not propose, 
 recommend, or require the Federal agency or the 
 applicant concerned, if any, to mitigate or offset such 
 impact,
 (iii) in the case of marine mammals, specifies those 
 measures that are necessary to comply with section 
 101(a)(5) of the Marine Mammal Protection Act of 1972 
 with regard to such taking, and
 (iv) sets forth the terms and conditions (including, 
 but not limited to, reporting requirements) that must 
 be complied with by the Federal agency or applicant (if 
 any), or both, to implement the measures specified 
 under clauses (ii) and (iii).
 (c) Biological Assessment.--(1) To facilitate compliance with 
the requirements of subsection (a)(2) each Federal agency 
shall, with respect to any agency action of such agency for 
which no contract for construction has been entered into and 
for which no construction has begun on the date of enactment of 
the Endangered Species Act Amendments of 1978, request of the 
Secretary information whether any species which is listed or 
proposed to be listed may be present in the area of such 
proposed action. If the Secretary advises, based on the best 
scientific and commercial data available, that such species may 
be present, such agency shall conduct a biological assessment 
for the purpose of identifying any endangered species or 
threatened species which is likely to be affected by such 
action. Such assessment shall be completed within 180 days 
after the date on which initiated (or within such other period 
as in mutually agreed to by the Secretary and such agency, 
except that if a permit or license applicant is involved, the 
180-day period may not be extended unless such agency provides 
the applicant, before the close of such period, with a written 
statement setting forth the estimated length of the proposed 
extension and the reasons therefor) and, before any contract 
for construction is entered into and before construction is 
begun with respect to such action. Such assessment may be 
undertaken as part of a Federal agency's compliance with the 
requirements of section 102 of the National Environmental 
Policy Act of 1969 (42 U.S.C. 4332).
 (2) Any person who may wish to apply for an exemption under 
subsection (g) of this section for that action may conduct a 
biological assessment to identify any endangered species or 
threatened species which is likely to be affected by such 
action. Any such biological assessment must, however, be 
conducted in cooperation with the Secretary and under the 
supervision of the appropriate Federal agency.
 (d) Limitation on Commitment of Resources.--After initiation 
of consultation required under subsection (a)(2), the Federal 
agency and the permit or license applicant shall not make any 
irreversible or irretrievable commitment of resources with 
respect to the agency action which has the effect of 
foreclosing the formulation or implementation of any reasonable 
and prudent alternative measures which would not violate 
subsection (a)(2).
 (e)(1) Establishment of Committee.--There is established a 
committee to be known as the Endangered Species Committee 
(hereinafter in this section referred to as the ``Committee'').
 (2) The Committee shall review any application submitted to 
it pursuant to this section and determine in accordance with 
subsection (h) of this section whether or not to grant an 
exemption from the requirements of subsection (a)(2) of this 
action for the action set forth in such application.
 (3) The Committee shall be composed of seven members as 
follows:
 (A) The Secretary of Agriculture.
 (B) The Secretary of the Army.
 (C) The Chairman of the Council of Economic Advisors.
 (D) The Administrator of the Environmental Protection 
 Agency. Agency.
 (E) The Secretary of the Interior.
 (F) The Administrator of the National Oceanic and 
 Atmospheric Administration.
 (G) The President, after consideration of any 
 recommendations received pursuant to subsection 
 (g)(2)(B) shall appoint one individual from each 
 affected State, as determined by the Secretary, to be a 
 member of the Committee for the consideration of the 
 application for exemption for an agency action with 
 respect to which such recommendations are made, not 
 later than 30 days after an application is submitted 
 pursuant to this section.
 (4)(A) Members of the Committee shall receive no additional 
pay on account of their service on the Committee.
 (B) While away from their homes or regular places of business 
in the performance of services for the Committee, members of 
the Committee shall be allowed travel expenses, including per 
diem in lieu of subsistence, in the same manner as persons 
employed intermittently in the Government service are allowed 
expenses under section 5703 of title 5 of the United States 
Code
 (5)(A) Five members of the Committee or their representatives 
shall constitute a quorum for the transaction of any function 
of the Committee, except that, in no case shall any 
representative be considered in determining the existence of a 
quorum for the transaction of any function of the Committee if 
that function involves a vote by the Committee on any matter 
before the Committee.
 (B) The Secretary of the Interior shall be the Chairman of 
the Committee.
 (C) The Committee shall meet at the call of the Chairman or 
five of its members.
 (D) All meetings and records of the Committee shall be open 
to the public.
 (6) Upon request of the Committee, the head of any Federal 
agency is authorized to detail, on a nonreimbursable basis, any 
of the personnel of such agency to the Committee to assist it 
in carrying out its duties under this section.
 (7)(A) The Committee may for the purpose of carrying out its 
duties under this section hold such hearings, sit and act at 
such times and places, take such testimony, and receive such 
evidence, as the Committee deems advisable.
 (B) When so authorized by the Committee, any member or agent 
of the Committee may take any action which the Committee is 
authorized to take by this paragraph.
 (C) Subject to the Privacy Act, the Committee may secure 
directly from any Federal agency information necessary to 
enable it to carry out its duties under this section. Upon 
request of the Chairman of the Committee, the head of such 
Federal agency shall furnish such information to the Committee.
 (D) The Committee may use the United States mails in the same 
manner and upon the same conditions as a Federal agency.
 (E) The Administrator of General Services shall provide to 
the Committee on a reimbursable basis such administrative 
support services as the Committee may request.
 (8) In carrying out its duties under this section, the 
Committee may promulgate and amend such rules, regulations, and 
procedures, and issue and amend such orders as it deems 
necessary.
 (9) For the purpose of obtaining information necessary for 
the consideration of an application for an exemption under this 
section the Committee may issue subpoenas for the attendance 
and testimony of witnesses and the production of relevant 
papers, books, and documents.
 (10) In no case shall any representative, including a 
representative of a member designated pursuant to paragraph 
(3)(G) of this subsection, be eligible to cast a vote on behalf 
of any member.
 (f) Regulations.--Not later than 90 days after the date of 
enactment of the Endangered Species Act Amendments of 1978, the 
Secretary shall promulgate regulations which set forth the form 
and manner in which applications for exemption shall be 
submitted to the Secretary and the information to be contained 
in such applications. Such regulations shall require that 
information submitted in an application by the head of any 
Federal agency with respect to any agency action include but 
not be limited to--
 (1) a description of the consultation process carried 
 out pursuant to subsection (a)(2) of this section 
 between the head of the Federal agency and the 
 Secretary; and
 (2) a statement describing why such action cannot be 
 altered or modified to conform with the requirements of 
 subsection (a)(2) of this section.
 (g) Application for Exemption and Report to the Committee.--
(1) A Federal agency, the Governor of the State in which an 
agency action will occur, if any, or a permit or license 
applicant may apply to the Secretary for an exemption for an 
agency action of such agency if, after consultation under 
subsection (a)(2), the Secretary's opinion under subsection (b) 
indicates that the agency action would violate subsection 
(a)(2). An application for an exemption shall be considered 
initially by the Secretary in the manner provided for in this 
subsection, and shall be considered by the Committee for a 
final determination under subsection (h) after a report is made 
pursuant to paragraph (5). The applicant for an exemption shall 
be referred to as the ``exemption applicant'' in this section.
 (2)(A) An exemption applicant shall submit a written 
application to the Secretary, in a form prescribed under 
subsection (f), not later than 90 days after the completion of 
the consultation process; except that, in the case of any 
agency action involving a permit or license applicant, such 
application shall be submitted not later than 90 days after the 
date on which the Federal agency concerned takes final agency 
action with respect to the issuance of the permit or license. 
For purposes of the preceding sentence, the term ``final agency 
action'' means (i) a disposition by an agency with respect to 
the issuance of a permit or license that is subject to 
administrative review, whether or not such disposition is 
subject to judicial review; or (ii) if administrative review is 
sought with respect to such disposition, the decision resulting 
after such review. Such application shall set forth the reasons 
why the exemption applicant considers that the agency action 
meets the requirements for an exemption under this subsection.
 (B) Upon receipt of an application for exemption for an 
agency action under paragraph (1), the Secretary shall promptly 
(i) notify the Governor of each affected State, if any, as 
determined by the Secretary, and request the Governors so 
notified to recommend individuals to be appointed to the 
Endangered Species Committee for consideration of such 
application; and (ii) publish notice of receipt of the 
application in the Federal Register, including a summary of the 
information contained in the application and a description of 
the agency action with respect to which the application for 
exemption has been filed.
 (3) The Secretary shall within 20 days after the receipt of 
an application for exemption, or within such other period of 
time as is mutually agreeable to the exemption applicant and 
the Secretary--
 (A) determine that the Federal agency concerned and 
 the exemption applicant have--
 (i) carried out the consultation 
 responsibilities described in subsection (a) in 
 good faith and made a reasonable and 
 responsible effort to develop and fairly 
 consider modifications or reasonable and 
 prudent alternatives to the proposed agency 
 action which would not violate subsection 
 (a)(2);
 (ii) conducted any biological assessment 
 required by subsection (c); and
 (iii) to the extent determinable within the 
 time provided herein, refrained from making any 
 irreversible or irretrievable commitment of 
 resources prohibited by subsection (d); or
 (B) deny the application for exemption because the 
 Federal agency concerned or the exemption applicant 
 have not met the requirements set forth in subparagraph 
 (A)(i), (ii), and (iii).
The denial of an application under subparagraph (B) shall be 
considered final agency action for purposes of chapter 7 of 
title 5, United States Code.
 (4) If the Secretary determines that the Federal agency 
concerned and the exemption applicant have met the requirements 
set forth in paragraph (3)(A) (i), (ii) and (iii) he shall, in 
consultation with the Members of the Committee, hold a hearing 
on the application for exemption in accordance with sections 
554, 555, and 556 (other than subsection (b) (1) and (2) 
thereof) of title 5, United States Code, and prepare the report 
to be submitted pursuant to paragraph (5).
 (5) Within 140 days after making the determinations under 
paragraph (3) or within such other period of time as is 
mutually agreeable to the exemption applicant and the 
Secretary, the Secretary shall submit to the Committee a report 
discussing--
 (A) the availability and reasonable and prudent 
 alternatives to the agency action, and the nature and 
 extent of the benefits of the agency action and of 
 alternative courses of action consistent with 
 conserving the species or the critical habitat;
 (B) a summary of the evidence concerning whether or 
 not the agency action is in the public interest and is 
 of national or regional significance;
 (C) appropriate reasonable mitigation and enhancement 
 measures which should be considered by the Committee; 
 and
 (D) whether the Federal agency concerned and the 
 exemption applicant refrained from making any 
 irreversible or irretrievable commitment of resources 
 prohibited by subsection (d).
 (6) To the extent practicable within the time required for 
action under subsection (g) of this section, and except to the 
extent inconsistent with the requirements of this section, the 
consideration of any application for an exemption under this 
section and the conduct of any hearing under this subsection 
shall be in accordance with sections 554, 555, and 556 (other 
than subsection (b)(3) of section 556) of title 5, United 
States Code.
 (7) Upon request of the Secretary, the head of any Federal 
agency is authorized to detail, on a nonreimbursable basis, any 
of the personnel of such agency to the Secretary to assist him 
in carrying out his duties under this section.
 (8) All meetings and records resulting from activities 
pursuant to this subsection shall be open to the public.
 (h) Exemption.--(1) The Committee shall make a final 
determination whether or not to grant an exemption within 30 
days after receiving the report of the Secretary pursuant to 
subsection (g)(5). The Committee shall grant an exemption from 
the requirements of subsection (a)(2) for an agency action if, 
by a vote of not less than five of its members voting in 
person--
 (A) it determines on the record, based on the report 
 of the Secretary, the record of the hearing held under 
 subsection (g)(4), and on such other testimony or 
 evidence as it may receive, that--
 (i) there are no reasonable and prudent 
 alternatives to the agency action;
 (ii) the benefits of such action clearly 
 outweigh the benefits of alternative courses of 
 action consistent with conserving the species 
 or its critical habitat, and such action is in 
 the public interest;
 (iii) the action is of regional or national 
 significance; and
 (iv) neither the Federal agency concerned nor 
 the exemption applicant made any irreversible 
 or irretrievable commitment of resources 
 prohibited by subsection (d); and
 (B) it establishes such reasonable mitigation and 
 enhancement measures, including, but not limited to, 
 live propagation, transplantation, and habitat 
 acquisition and improvement, as are necessary and 
 appropriate to minimize the adverse effects of the 
 agency action upon the endangered species, threatened 
 species, or critical habitat concerned.
Any final determination by Committee under this subsection 
shall be considered final agency action for purposes of chapter 
7 of title 5 of the United States Code.
 (2)(A) Except as provided in subparagraph (B), an exemption 
for an agency action granted under paragraph (1) shall 
constitute a permanent exemption with respect to all endangered 
or threatened species for the purposes of completing such 
agency action--
 (i) regardless whether the species was identified in 
 the biological assessment; and
 (ii) only if a biological assessment has been 
 conducted under subsection (c) with respect to such 
 agency action.
 (B) An exemption shall be permanent under subparagraph (A) 
unless--
 (i) the Secretary finds, based on the best scientific 
 and commercial data available, that such exemption 
 would result in the extinction of a species that was 
 not the subject of consultation under subsection (a)(2) 
 or was not identified in any biological assessment 
 conducted under subsection (c), and
 (ii) the Committee determines within 60 days after 
 the date of the Secretary's finding that the exemption 
 should not be permanent.
If the Secretary makes a finding described in clause (i), the 
Committee shall meet with respect to the matter within 30 days 
after the date of the finding.
 (i) Review by Secretary of State.--Notwithstanding any other 
provision of this Act, the Committee shall be prohibited from 
considering for exemption any application made to it, if the 
Secretary of State, after a review of the proposed agency 
action and its potential implications, and after hearing, 
certifies, in writing, to the Committee within 60 days of any 
application made under this section that the granting of any 
such exemption and the carrying out of such action would be in 
violation of an international treaty 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) Notwithstanding any other provision of this Act, the 
Committee shall grant an exemption for any agency action if the 
Secretary of Defense finds that such exemption is necessary for 
reasons of national security.
 (k) Special Provisions.--An exemption decision by the 
Committee under this section shall not be a major Federal 
action for purposes of the National Environmental Policy Act of 
1969 (42 U.S.C. 4321 et seq.): Provided, That an environmental 
impact statement which discusses the impacts upon endangered 
species or threatened species or their critical habitats shall 
have been previously prepared with respect to any agency action 
exempted by such order.
 (l) Committee Orders.--(1) If the Committee determines under 
subsection (h) that an exemption should be granted with respect 
to any agency action, the Committee shall issue an order 
granting the exemption and specifying the mitigation and 
enhancement measures established pursuant to subsection (h) 
which shall be carried out and paid for by the exemption 
applicant in implementing the agency action. All necessary 
mitigation and enhancement measures shall be authorized prior 
to the implementing of the agency action and funded 
concurrently with all other project features.
 (2) The applicant receiving such exemption shall include the 
costs of such mitigation and enhancement measures within the 
overall costs of continuing the proposed action. 
Notwithstanding the preceding sentence the costs of such 
measures shall not be treated as project costs for the purpose 
of computing benefit-cost or other ratios for the proposed 
action. Any applicant may request the Secretary to carry out 
such mitigation and enhancement measures. The costs incurred by 
the Secretary in carrying out any such measures shall be paid 
by the applicant receiving the exemption. No later than one 
year after the granting of an exemption, the exemption 
applicant shall submit to the Council on Environmental Quality 
a report describing its compliance with the mitigation and 
enhancement measures prescribed by this section. Such report 
shall be submitted annually until all such mitigation and 
enhancement measures have been completed. Notice of the public 
availability of such reports shall be published in the Federal 
Register by the Council on Environmental Quality.
 (m) Notice.--The 60-day notice requirement of section 11(g) 
of this Act shall not apply with respect to review of any final 
determination of the Committee under subsection (h) of this 
section granting an exemption from the requirements of 
subsection (a)(2) of this section.
 (n) Judicial Review.--Any person, as defined by [section 
3(13)] section 3(14) of this Act, may obtain judicial review, 
under chapter 7 of title 5 of the United States Code, of any 
decision of the Endangered Species Committee under subsection 
(h) in the United States Court of Appeals for (1) any circuit 
wherein the agency action concerned will be, or is being, 
carried out, or (2) in any case in which the agency action will 
be, or is being, carried out outside of any circuit, the 
District of Columbia, by filing in such court within 90 days 
after the date of issuance of the decision, a written petition 
for review. A copy of such petition shall be transmitted by the 
clerk of the court to the Committee and the Committee shall 
file in the court the record in the proceeding, as provided in 
section 2112, of title 28, United States Code. Attorneys 
designated by the Endangered Species Committee may appear for, 
and represent the Committee in any action for review under this 
subsection.
 (o) Exemption as Providing Exception on Taking of Endangered 
Species.--Notwithstanding sections 4(d) and 9(a)(1)(B) and (C) 
of this Act, sections 101 and 102 of the Marine Mammal 
Protection Act of 1972, 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, 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, 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.

 * * * * * * *

 exceptions

 Sec. 10. (a) Permits.--(1) The Secretary may permit, under 
such terms and conditions as he shall prescribe--
 (A) any act otherwise prohibited by section 9 for 
 scientific purposes or to enhance the propagation or 
 survival of the affected species, including, but not 
 limited to, acts necessary for the establishment and 
 maintenance of experimental populations pursuant to 
 subsection (j); or
 (B) any taking otherwise prohibited by section 
 9(a)(1)(B) if such taking is incidental to, and not the 
 purpose of, the carrying out of an otherwise lawful 
 activity.
 (2)(A) No permit may be issued by the Secretary authorizing 
any taking referred to in paragraph (1)(B) unless the applicant 
therefor submits to the Secretary a conservation plan that 
specifies--
 (i) the impact which will likely result from such 
 taking;
 (ii) what steps the applicant will take to minimize 
 and mitigate such impacts, and the funding that will be 
 available to implement such steps;
 (iii) what alternative actions to such taking the 
 applicant considered and the reasons why such 
 alternatives are not being utilized; and
 (iv) such other measures that the Secretary may 
 require as being necessary or appropriate for purposes 
 of the plan.
 (B) If the Secretary finds, after opportunity for public 
comment, with respect to a permit application and the related 
conservation plan that--
 (i) the taking will be incidental;
 (ii) the applicant will, to the maximum extent 
 practicable, minimize and mitigate the impacts of such 
 taking;
 (iii) the applicant will ensure that adequate funding 
 for the plan will be provided;
 (iv) the taking will not appreciably reduce the 
 likelihood of the survival and recovery of the species 
 in the wild; and
 (v) the measures, if any, required under subparagraph 
 (A)(iv) will be met;
and he has received such other assurances as he may require 
that the plan will be implemented, the Secretary shall issue 
the permit. The permit shall contain such terms and conditions 
as the Secretary deems necessary or appropriate to carry out 
the purposes of this paragraph, including, but not limited to, 
such reporting requirements as the Secretary deems necessary 
for determining whether such terms and conditions are being 
complied with.
 (C) The Secretary shall revoke a permit issued under this 
paragraph if he finds that the permittee is not complying with 
the terms and conditions of the permit.
 (b) Hardship Exemptions.--(1) If any person enters into a 
contract with respect to a species of fish or wildlife or plant 
before the date of the publication in the Federal Register of 
notice of consideration of that species as an endangered 
species and the subsequent listing of that species as an 
endangered species pursuant to section 4 of this Act will cause 
undue hardship to such person under the contract, the 
Secretary, in order to minimize such hardship, may exempt such 
person from the application of section 9(a) of this Act to the 
extent the Secretary deems appropriate if such person applies 
to him for such exemption and includes with such application 
such information as the Secretary may require to prove such 
hardship; except that (A) no such exemption shall be for a 
duration of more than one year from the date of publication in 
the Federal Register of notice of consideration of the species 
concerned, or shall apply to a quantity of fish or wildlife or 
plants in excess of that specified by the Secretary; (B) the 
one-year period for those species of fish or wildlife listed by 
the Secretary as endangered prior to the effective date of this 
Act shall expire in accordance with the terms of section 3 of 
the Act of December 5, 1969 (83 Stat. 275); and (C) no such 
exemption may be granted for the importation or exportation of 
a specimen listed in Appendix I of the Convention which is to 
be used in a commercial activity.
 (2) As used in this subsection, the term ``undue economic 
hardship'' shall include, but not be limited to:
 (A) substantial economic loss resulting from 
 inability caused by this Act to perform contracts with 
 respect to species of fish and wildlife entered into 
 prior to the date of publication in the Federal 
 Register of a notice of consideration of such species 
 as an endangered species;
 (B) substantial economic loss to persons who, for the 
 year prior to the notice of consideration of such 
 species as an endangered species, derived a substantial 
 portion of their income from the lawful taking of any 
 listed species, which taking would be made unlawful 
 under this Act; or
 (C) curtailment of subsistence taking made unlawful 
 under this Act by persons (i) not reasonably able to 
 secure other sources of subsistence; and (ii) dependent 
 to a substantial extent upon hunting and fishing for 
 subsistence; and (iii) who must engage in such 
 curtailed taking for subsistence purposes.
 (3) The Secretary may make further requirements for a showing 
of undue economic hardship as he deems fit. Exceptions granted 
under this section may be limited by the Secretary in his 
discretion as to time, area, or other factor of applicability.
 (c) Notice and Review.--The Secretary shall publish notice in 
the Federal Register of each application for an exemption or 
permit which is made under this section. Each notice shall 
invite the submission from interested parties, within thirty 
days after the date of the notice, of written data, views, or 
arguments with respect to the application; except that such 
thirty-day period may be waived by the Secretary in an 
emergency situation where the health or life of an endangered 
animal is threatened and no reasonable alternative is available 
to the applicant, but notice of any such waiver shall be 
published by the Secretary in the Federal Register within ten 
days following the issuance of the exemption or permit. 
Information received by the Secretary as part of any 
application shall be available to the public as a matter of 
public record at every stage of the proceeding.
 (d) Permit and Exemption Policy.--The Secretary may grant 
exceptions under subsections (a)(1)(A) and (b) of this section 
only if he finds and publishes his finding in the Federal 
Register that (1) such exceptions were applied for in good 
faith, (2) if granted and exercised will not operate to the 
disadvantage of such endangered species, and (3) will be 
consistent with the purposes and policy set forth in section 2 
of this Act.
 (e) Alaska Natives.--(1) Except as provided in paragraph (4) 
of this subsection the provisions of this Act shall not apply 
with respect to the taking of any endangered species or 
threatened species, or the importation of any such species 
taken pursuant to this section, by--
 (A) any Indian, Aleut, or Eskimo who is an Alaskan 
 Native who resides in Alaska; or
 (B) any non-native permanent resident of an Alaska 
 native village;
if such taking is primarily for subsistence purposes. Non-
edible by-products of species taken pursuant to this section 
may be sold in interstate commerce when made into authentic 
native articles of handicrafts and clothing; except that the 
provisions of this subsection shall not apply to any non-native 
resident of an Alaskan native village found by the Secretary to 
be not primarily dependent upon the taking of fish and wildlife 
for consumption or for the creation and sale of authentic 
native articles of handicrafts and clothing.
 (2) Any taking under this subsection may not be accomplished 
in a wasteful manner.
 (3) As used in this subsection--
 
 (i) The term ``subsistence'' includes selling any 
 edible portion of fish or wildlife in native villages 
 and towns in Alaska for native consumption within 
 native villages or towns; and
 (ii) The term ``authentic native articles of handicrafts and 
clothing'' means items composed wholly or in some significant 
respect to natural materials, and which are produced, decorated 
or fashioned in the exercise of traditional native handicrafts 
without the use of pantographs, multiple carvers, or other mass 
copying devices. Traditional native handicrafts include, but 
are not limited to, weaving, carving, stitching, sewing, 
lacing, beading, drawing, and painting.
 (4) Notwithstanding the provisions of paragraph (l) of this 
subsection, whenever the Secretary determines that any species 
of fish or wildlife which is subject to taking under the 
provisions of this subsection is an endangered species or 
threatened species, and that such taking materially and 
negatively affects the threatened or endangered species, he may 
prescribe regulations upon the taking of such species by any 
such Indian, Aleut, Eskimo, or non-native Alaskan resident of 
an Alaskan native village. Such regulations may be established 
with reference to species, geographical description of the area 
included, the season for taking, or any other factors related 
to the reason for establishing such regulations and consistent 
with the policy of this Act. Such regulations shall be 
prescribed after a notice and hearings in the affected judicial 
districts of Alaska and as otherwise required by section 103 of 
the Marine Mammal Protection Act of 1972, and shall be removed 
as soon as the Secretary determines that the need for their 
impositions has disappeared.
 (f)(1) As used in this subsection--
 (A) The term ``pre-Act endangered species part'' 
 means--
 (i) any sperm whale oil, including 
 derivatives thereof, which was lawfully held 
 within the United States on December 28, 1973, 
 in the course of a commercial activity; or
 (ii) any finished scrimshaw product, if such 
 product or the raw material for such product 
 was lawfully held within the United States on 
 December 28, 1973, in the course of a 
 commercial activity.
 (B) The term ``scrimshaw product'' means any art form 
 which involves the substantial etching or engraving of 
 designs upon, or the substantial carving of figures, 
 patterns, or designs from, any bone or tooth of any 
 marine mammal of the order Cetacea. For purposes of 
 this subsection, polishing or the adding of minor 
 superficial markings does not constitute substantial 
 etching, engraving, or carving.
 (2) The Secretary, pursuant to the provisions of this 
subsection, may exempt, if such exemption is not in violation 
of the Convention, any pre-Act endangered species part from one 
or more of the following prohibitions.
 (A) The prohibition on exportation from the United 
 States set forth in section 9(a)(1)(A) of this Act.
 (B) Any prohibition set forth in section 9(a)(1) (E) 
 or (F) of this Act.
 (3) Any person seeking an exemption described in paragraph 
(2) of this subsection shall make application therefor to the 
Secretary in such form and manner as he shall prescribe, but no 
such application may be considered by the Secretary unless the 
application--
 (A) is received by the Secretary before the close of 
 the one-year period beginning on the date on which 
 regulations promulgated by the Secretary to carry out 
 this subsection first take effect;
 (B) contains a complete and detailed inventory of all 
 pre-Act endangered species parts for which the 
 applicant seeks exemption;
 (C) is accompanied by such documentation as the 
 Secretary may require to prove that any endangered 
 species part or product claimed by the applicant to be 
 a pre-Act endangered species part is in fact such a 
 part; and
 (D) contains such other information as the Secretary 
 deems necessary and appropriate to carry out the 
 purposes of this subsection.
 (4) If the Secretary approves any application for exemption 
made under this subsection, he shall issue to the applicant a 
certificate of exemption which shall specify--
 (A) any prohibition in section 9(a) of this Act which 
 is exempted;
 (B) the pre-Act endangered species parts to which the 
 exemption applies;
 (C) the period of time during which the exemption is 
 in effect, but no exemption made under this subsection 
 shall have force and effect after the close of the 
 three-year period beginning on the date of issuance of 
 the certificate unless such exemption is renewed under 
 paragraph (8); and
 (D) any term or condition prescribed pursuant to 
 paragraph (5) (A) or (B), or both, which the Secretary 
 deems necessary or appropriate.
 (5) The Secretary shall prescribe such regulations as he 
deems necessary and appropriate to carry out the purposes of 
this subsection. Such regulations may set forth--
 (A) terms and conditions which may be imposed on 
 applicants for exemptions under this subsection 
 (including, but not limited to, requirements that 
 applicants register inventories, keep complete sales 
 records, permit duly authorized agents of the Secretary 
 to inspect such inventories and records, and 
 periodically file appropriate reports with the 
 Secretary); and
 (B) terms and conditions which may be imposed on any 
 subsequent purchaser of any pre-Act endangered species 
 part covered by an exemption granted under this 
 subsection;
to insure that any such part so exempted is adequately 
accounted for and not disposed of contrary to the provisions of 
this Act. No regulation prescribed by the Secretary to carry 
out the purposes of this subsection shall be subject to section 
4(f)(2)(A)(i) of this Act.
 (6)(A) Any contract for the sale of pre-Act endangered 
species parts which is entered into by the Administrator of 
General Services prior to the effective date of this subsection 
and pursuant to the notice published in the Federal Register on 
January 9, 1973, shall not be rendered invalid by virtue of the 
fact that fulfillment of such contract may be prohibited under 
section 9(a)(1)(F).
 (B) In the event that this paragraph is held invalid, the 
validity of the remainder of the Act, including the remainder 
of this subsection, shall not be affected.
 (7) Nothing in this subsection shall be construed to--
 (A) exonerate any person from any act committed in 
 violation of paragraphs (1)(A), (1)(E), or (1)(F) of 
 section 9(a) prior to the date of enactment of this 
 subsection; or
 (B) immunize any person from prosecution for any such 
 act.
 (8)(A)(i) Any valid certificate of exemption which was 
renewed after October 13, 1982, and was in effect on March 31, 
1988, shall be deemed to be renewed for a 6-month period 
beginning on the date of enactment of the Endangered Species 
Act Amendments of 1988. Any person holding such a certificate 
may apply to the Secretary for one additional renewal of such 
certificate for a period not to exceed 5 years beginning on the 
date of such enactment.
 (B) If the Secretary approves any application for renewal of 
an exemption under this paragraph, he shall issue to the 
applicant a certificate of renewal of such exemption which 
shall provide that all terms, conditions, prohibitions, and 
other regulations made applicable by the previous certificate 
shall remain in effect during the period of the renewal.
 (C) No exemption or renewal of such exemption made under this 
subsection shall have force and effect after the expiration 
date of the certificate of renewal of such exemption issued 
under this paragraph.
 (D) No person may, after January 31, 1984, sell or offer for 
sale in interstate or foreign commerce, any pre-Act finished 
scrimshaw product unless such person holds a valid certificate 
of exemption issued by the Secretary under this subsection, and 
unless such product or the raw material for such product was 
held by such person on October 13, 1982.
 (g) In connection with any action alleging a violation of 
section 9, any person claiming the benefit of any exemption or 
permit under this Act shall have the burden of proving that the 
exemption or permit is applicable, has been granted, and was 
valid and in force at the time of the alleged violation.
 (h) Certain Antique Articles.--(1) Sections 4(d), 9(a), and 
9(c) do not apply to any article which--
 (A) is not less than 100 years of age;
 (B) is composed in whole or in part of any endangered 
 species or threatened species listed under section 4;
 (C) has not been repaired or modified with any part 
 of any such species on or after the date of the 
 enactment of this Act; and
 (D) is entered at a port designated under paragraph 
 (3).
 (2) Any person who wishes to import an article under the 
exception provided by this subsection shall submit to the 
customs officer concerned at the time of entry of the article 
such documentation as the Secretary of the Treasury, after 
consultation with the Secretary of the Interior, shall by 
regulation require as being necessary to establish that the 
article meets the requirements set forth in paragraph (1) (A), 
(B), and (C).
 (3) The Secretary of the Treasury, after consultation with 
the Secretary of the Interior, shall designate one port within 
each customs region at which articles described in paragraph 
(1) (A), (B), and (C) must be entered into the customs 
territory of the United States.
 (4) Any person who imported, after December 27, 1973, and on 
or before the date of the enactment of the Endangered Species 
Act Amendments of 1978, any article described in paragraph (1) 
which--
 (A) was not repaired or modified after the date of 
 importation with any part of any endangered species or 
 threatened species listed under section 4;
 (B) was forfeited to the United States before such 
 date of the enactment, or is subject to forfeiture to 
 the United States on such date of enactment, pursuant 
 to the assessment of a civil penalty under section 11; 
 and
 (C) is in the custody of the United States on such 
 date of enactment;
may, before the close of the one-year period beginning on such 
date of enactment make application to the Secretary for return 
of the article. Application shall be made in such form and 
manner, and contain such documentation, as the Secretary 
prescribes. If on the basis of any such application which is 
timely filed, the Secretary is satisfied that the requirements 
of this paragraph are met with respect to the article 
concerned, the Secretary shall return the article to the 
applicant and the importation of such article shall, on and 
after the date of return, be deemed to be a lawful importation 
under this Act.
 (i) Noncommercial Transshipments.--Any importation into the 
United States of fish or wildlife shall, if--
 (1) such fish or wildlife was lawfully taken and 
 exported from the country of origin and country of 
 reexport, if any;
 (2) such fish or wildlife is in transit or 
 transshipment through any place subject to the 
 jurisdiction of the United States en route to a country 
 where such fish or wildlife may be lawfully imported 
 and received;
 (3) the exporter or owner of such fish or wildlife 
 gave explicit instructions not to ship such fish or 
 wildlife through any place subject to the jurisdiction 
 of the United States, or did all that could have 
 reasonably been done to prevent transshipment, and the 
 circumstances leading to the transshipment were beyond 
 the exporter's or owner's control;
 (4) the applicable requirements of the Convention 
 have been satisfied; and
 (5) such importation is not made in the course of a 
 commercial activity,
be an importation not in violation of any provision of this Act 
or any regulation issued pursuant to this Act while such fish 
or wildlife remains in the control of the United States Customs 
Service.
 (j) Experimental Populations.--(1) For purposes of this 
subsection, the term ``experimental population'' means any 
population (including any offspring arising solely therefrom) 
authorized by the Secretary for release under paragraph (2), 
but only when, and at such times as, the population is wholly 
separate geographically from nonexperimental populations of the 
same species.
 (2)(A) The Secretary may authorize the release (and the 
related transportation) of any population (including eggs, 
propagules, or individuals) of an endangered species or a 
threatened species outside the current range of such species if 
the Secretary determines that such release will further the 
conservation of such species.
 (B) Before authorizing the release of any population under 
subparagraph (A), the Secretary shall by regulation identify 
the population and determine, on the basis of the best 
available information, whether or not such population is 
essential to the continued existence of an endangered species 
or a threatened species.
 (C) For the purposes of this Act, each member of an 
experimental population shall be treated as a threatened 
species; except that--
 (i) solely for purposes of section 7 (other than 
 subsection (a)(1) thereof), an experimental population 
 determined under subparagraph (B) to be not essential 
 to the continued existence of a species shall be 
 treated, except when it occurs in an area within the 
 National Wildlife Refuge System or the National Park 
 System, as a species proposed to be listed under 
 section 4; and
 (ii) critical habitat shall not be designated under 
 this Act for any experimental population determined 
 under subparagraph (B) to be not essential to the 
 continued existence of a species.
 (3) The Secretary, with respect to populations of endangered 
species or threatened species that the Secretary authorized, 
before the date of the enactment of this subsection, for 
release in geographical areas separate from the other 
populations of such species, shall determine by regulation 
which of such populations are an experimental population for 
the purposes of this subsection and whether or not each is 
essential to the continued existence of an endangered species 
or a threatened species.
 (k) Candidate Conservation Agreements With Assurances.--
 (1) Proposed agreement.--A covered party may submit a 
 proposed Agreement to the Secretary.
 (2) Approval.--Not later than 120 days after the date 
 of the receipt of a proposed Agreement under paragraph 
 (1), the Secretary shall approve the proposed Agreement 
 if the Secretary determines that the proposed 
 Agreement--
 (A) sets forth specific management activities 
 that the covered party will undertake to 
 conserve the covered species;
 (B) provides a positive estimate of the net 
 conservation benefit of such management 
 activities to the covered species;
 (C) describes, to the maximum extent 
 practicable, the existing population levels of 
 the covered species or the existing quality of 
 habitat;
 (D) includes a monitoring plan to be carried 
 out by the parties to the Agreement; and
 (E) provides assurances to the covered party 
 that no additional conservation measures will 
 be required and additional land, water, or 
 resource use restrictions will not be imposed 
 on the covered party if the covered species 
 becomes listed after the effective date of such 
 Agreement.
 (3) Denial.--Not later than 120 days after the date 
 of the receipt of a proposed Agreement under paragraph 
 (1), the Secretary shall--
 (A) deny the proposed Agreement if the 
 Secretary determines that the proposed 
 Agreement does not meet the requirements 
 described in paragraph (2); and
 (B) provide the submitting covered party a 
 written explanation for such determination and 
 the adjustments required for the Secretary to 
 approve such proposed Agreement.
 (4) Programmatic candidate conservation agreement 
 with assurances.--
 (A) In general.--The Secretary may enter into 
 a Candidate Conservation Agreement with 
 Assurances with a covered party that authorizes 
 such covered party--
 (i) to administer such Candidate 
 Conservation Agreement with Assurances;
 (ii) to hold any permit issued under 
 this section with regard to such 
 Candidate Conservation Agreement with 
 Assurances;
 (iii) to enroll other covered parties 
 within the area covered by such 
 Candidate Conservation Agreement with 
 Assurances in such Candidate 
 Conservation Agreement with Assurances; 
 and
 (iv) to convey any permit 
 authorization held by such covered 
 party under clause (ii) to each covered 
 party enrolled under clause (iii).
 (B) Publication.--Upon receipt of a proposed 
 programmatic Candidate Conservation Agreement 
 with Assurances under paragraph (1) and before 
 approving or denying such a proposed 
 programmatic Candidate Conservation Agreement 
 with Assurances under paragraph (2) or (3), 
 respectively, the Secretary shall--
 (i) not later than 30 days after the 
 date of such receipt, publish the 
 proposed programmatic Candidate 
 Conservation Agreement with Assurances 
 in the Federal Register for public 
 comment for a period of not less than 
 60 days;
 (ii) review any comments received 
 under clause (i); and
 (iii) after the close of the public 
 comment period for the proposed 
 programmatic Candidate Conservation 
 Agreement with Assurances, publish in 
 the Federal Register--
 (I) any comments received 
 under clause (i); and
 (II) the approval or denial 
 of the proposed programmatic 
 Candidate Conservation 
 Agreement with Assurances under 
 paragraph (2) or (3), 
 respectively.
 (5) Incidental take authorization.--If a covered 
 species is listed under section 4, the Secretary shall 
 issue a permit to the relevant covered party under this 
 section allowing incidental take of and modification to 
 the habitat of such covered species consistent with the 
 Agreement.
 (6) Technical assistance.--The Secretary shall, upon 
 request, provide a covered party with technical 
 assistance in developing a proposed Agreement.
 (7) Applicability to federal land.--An Agreement may 
 apply to a covered party that conducts activities on 
 land administered by any Federal agency pursuant to a 
 permit or lease issued to the covered party by that 
 Federal agency.
 (8) Exemption from consultation requirement.--An 
 Agreement approved under this subsection shall be 
 deemed to have been granted an exemption under section 
 7(h) for the purposes of that section.
 (9) Exemption from disclosure.--Information submitted 
 by a private party to the Secretary under this 
 subsection shall be exempt from disclosure under 
 section 552(b)(3)(B) of title 5, United States Code.
 (10) Definitions.--In this subsection:
 (A) Agreement.--The term ``Agreement'' 
 means--
 (i) a Candidate Conservation 
 Agreement with Assurances; or
 (ii) a programmatic Candidate 
 Conservation Agreement with Assurances.
 (B) Candidate conservation agreement with 
 assurances.--The term ``Candidate Conservation 
 Agreement with Assurances'' means any voluntary 
 agreement, including a conservation benefit 
 agreement, between the Secretary and a covered 
 party in which--
 (i) the covered party commits to 
 implementing mutually agreed upon 
 conservation measures for a candidate 
 species; and
 (ii) the Secretary provides 
 assurances that, if such candidate 
 species is listed pursuant to section 
 4--
 (I) the covered party shall 
 incur no additional obligations 
 beyond actions agreed to in the 
 agreement with respect to 
 conservation activities 
 required under this Act; and
 (II) no additional land, 
 water, or resource use 
 restrictions shall be imposed 
 on the covered party beyond 
 those included in the 
 agreement.
 (C) Candidate species.--The term ``candidate 
 species'' means a species--
 (i) designated by the Secretary as a 
 candidate species under this Act; or
 (ii) proposed to be listed pursuant 
 to section 4.
 (D) Covered party.--The term ``covered 
 party'' means a--
 (i) party that conducts activities on 
 land administered by a Federal agency 
 pursuant to a permit or lease issued to 
 the party;
 (ii) private property owner;
 (iii) county;
 (iv) State or State agency; or
 (v) Tribal government.
 (E) Covered species.--The term ``covered 
 species'' means, with respect to an Agreement, 
 the species that is the subject of such 
 Agreement.
 (F) Net conservation benefit.--The term ``net 
 conservation benefit'' means the net effect of 
 an Agreement, determined by comparing the 
 existing situation of the candidate species 
 without the Agreement in effect and a situation 
 in which the Agreement is in effect, on a 
 candidate species, including--
 (i) the net effect on threats to such 
 species;
 (ii) the net effect on the number of 
 individuals of such species; or
 (iii) the net effect on the habitat 
 of such species.
 (G) Programmatic candidate conservation 
 agreement with assurances.--The term 
 ``programmatic Candidate Conservation Agreement 
 with Assurances'' means a Candidate 
 Conservation Agreement with Assurances 
 described in paragraph (4)(A).

 penalties and enforcement

 Sec. 11. (a) Civil Penalties.--(1) Any person who knowingly 
violates, and any person engaged in business as an importer or 
exporter of fish, wildlife, or plants who violates, any 
provision of this Act, or any provision of any permit or 
certificate issued hereunder, or of any regulation issued in 
order to implement subsection (a)(1)(A), (B), (C), (D), (E), or 
(F), (a)(2(A), (B), (C), or (D), (c), (d), (other than 
regulation relating to recordkeeping or filing of reports), 
(f), or (g) of section 9 of this Act, may be assessed a civil 
penalty by the Secretary of not more than $25,000 for each 
violation. Any person who knowingly violates, and any person 
engaged in business as an importer or exporter of fish, 
wildlife, or plants who violates, any provision of any other 
regulation issued under this Act may be assessed a civil 
penalty by the Secretary of not more than $12,000 for each such 
violation. Any person who otherwise violates any provision of 
this Act, or any regulation, permit, or certificate issued 
hereunder, may be assessed a civil penalty by the Secretary of 
not more than $500 for each such violation. No penalty may be 
assessed under this subsection unless such person is given 
notice and opportunity for a hearing with respect to such 
violation. Each violation shall be a separate offense. Any such 
civil penalty may be remitted or mitigated by the Secretary. 
Upon any failure to pay a penalty assessed under this 
subsection, the Secretary may request the Attorney General to 
institute a civil action in a district court of the United 
States for any district in which such person is found, resides, 
or transacts business to collect the penalty and such court 
shall have jurisdiction to hear and decide any such action. The 
court shall hear such action on the record made before the 
Secretary and shall sustain his action if it is supported by 
substantial evidence on the record considered as a whole.
 (2) Hearings held during proceedings for the assessment of 
civil penalties by paragraph (1) of this subsection shall be 
conducted in accordance with section 554 of title 5, United 
States Code. The Secretary may issue subpoenas for the 
attendance and testimony of witnesses and the production of 
relevant papers, books, and documents, and administer oaths. 
Witnesses summoned shall be paid the same fees and mileage that 
are paid to witnesses in the courts of the United States. In 
case of contumacy or refusal to obey a subpoena served upon any 
person pursuant to this paragraph, the district court of the 
United States for any district in which such person is found or 
resides or transacts business, upon application by the United 
States and after notice to such person, shall have jurisdiction 
to issue an order requiring such person to appear and give 
testimony before the Secretary or to appear and produce 
documents before the Secretary, or both, and any failure to 
obey such order of the court may be punished by such court as a 
contempt thereof.
 (3) Notwithstanding any other provision of this Act, no civil 
penalty shall be imposed if it can be shown by a preponderance 
of the evidence that the defendant committed an act based on a 
good faith belief that he was acting to protect himself or 
herself, a member of his or her family, or any other individual 
from bodily harm, from any endangered or threatened species.
 (b) Criminal Violations.--(1) Any person who knowingly 
violates any provision of this Act, of any permit or 
certificate issued hereunder, or of any regulation issued in 
order to implement subsection (a)(1)(A), (B), (C), (D), (E), or 
(F); (a)(2)(A), (B), (C), or (D), (c), (d) (other than a 
regulation relating to recordkeeping, or filing of reports), 
(f), or (g) of section 9 of this Act shall, upon conviction, be 
fined not more than $50,000 or imprisoned for not more than one 
year, or both. Any person who knowingly violates any provision 
of any other regulation issued under this Act shall, upon 
conviction, be fined not more than $25,000 or imprisoned for 
not more than six months, or both.
 (2) The head of any Federal agency which has issued a lease, 
license, permit, or other agreement authorizing a person to 
import or export fish, wildlife, or plants, or to operate a 
quarantine station for imported wildlife, or authorizing the 
use of Federal lands, including grazing of domestic livestock, 
to any person who is convicted of a criminal violation of this 
Act or any regulation, permit, or certificate issued hereunder 
may immediately modify, suspend, or revoke each lease, license, 
permit, or other agreement. The Secretary shall also suspend 
for a period of up to one year, or cancel, any Federal hunting 
or fishing permits or stamps issued to any person who is 
convicted of a criminal violation of any provision of this Act 
or any regulation, permit, or certificate issued hereunder. The 
United States shall not be liable for the payments of any 
compensation, reimbursement, or damages in connection with the 
modification, suspension, or revocation of any leases, 
licenses, permits, stamps, or other agreements pursuant to this 
section.
 (3) Notwithstanding any other provision of this Act, it shall 
be a defense to prosecution under this subsection if the 
defendant committed the offense based on a good faith belief 
that he was acting to protect himself or herself, a member of 
his or her family, or any other individual, from bodily harm 
from any endangered or threatened species.
 (c) District Court Jurisdiction.--The several district courts 
of the United States; including the courts enumerated in 
section 460 of title 28, United States Code, shall have 
jurisdiction over any actions arising under this Act. For the 
purpose of this Act, American Samoa shall be included within 
the judicial district of the District Court of the United 
States for the District of Hawaii.
 (d) Rewards and Certain Incidental Expenses.--The Secretary 
or the Secretary of the Treasury shall pay, from sums received 
as penalties, fines, or forfeitures of property for any 
violations of this chapter or any regulation issued hereunder 
(1) a reward to any person who furnishes information which 
leads to an arrest, a criminal conviction, civil penalty 
assessment, or forfeiture of property for any violation of this 
chapter or any regulation issued hereunder, and (2) the 
reasonable and necessary costs incurred by any person in 
providing temporary care for any fish, wildlife, or plant 
pending the disposition of any civil or criminal proceeding 
alleging a violation of this chapter with respect to that fish, 
wildlife, or plant. The amount of the reward, if any, is to be 
designated by the Secretary or the Secretary of the Treasury, 
as appropriate. Any officer or employee of the United States or 
any State or local government who furnishes information or 
renders service in the performance of his official duties is 
ineligible for payment under this subsection. Whenever the 
balance of sums received under this section and section 6(d) of 
the Act of November 16, 1981 (16 U.S.C. 3375(d)) as penalties 
or fines, or from forfeitures of property, exceed $500,000, the 
Secretary of the Treasury shall deposit an amount equal to such 
excess balance in the cooperative endangered species 
conservation fund established under section 6(i) of this Act.
 (e) Enforcement.--(1) The provisions of this Act and any 
regulations or permits issued pursuant thereto shall be 
enforced by the Secretary, the Secretary of the Treasury, or 
the Secretary of the Department in which the Coast Guard is 
operating, or all such Secretaries. Each such Secretary may 
utilize by agreement, with or without reimbursement, the 
personnel, services, and facilities of any other Federal agency 
or any State agency for purposes of enforcing this Act.
 (2) The judges of the district courts of the United States 
and the United States magistrates may within their respective 
jurisdictions, upon proper oath or affirmation showing probable 
cause, issue such warrants or other process as may be required 
for enforcement of this Act and any regulation issued 
thereunder.
 (3) Any person authorized by the Secretary, the Secretary of 
the Treasury, or the Secretary of the Department in which the 
Coast Guard is operating, to enforce this Act may detain for 
inspection and inspect any package, crate, or other container, 
including its contents, and all accompanying documents, upon 
importation or exportation. Such persons may make arrests 
without a warrant for any violation of this Act if he has 
reasonable grounds to believe that the person to be arrested is 
committing the violation in his presence or view and may 
execute and serve any arrest warrant, search warrant, or other 
warrant or civil or criminal process issued by any officer or 
court of competent jurisdiction for enforcement of this Act. 
Such person so authorized may search and seize, with or without 
a warrant, as authorized by law. Any fish, wildlife, property, 
or item so seized shall be held by any person authorized by the 
Secretary, the Secretary of the Treasury, or the Secretary of 
the Department in which the Coast Guard is operating pending 
disposition of civil or criminal proceedings, or the 
institution of an action in rem for forfeiture of such fish, 
wildlife, property, or item pursuant to paragraph (4) of the 
subsection; except that the Secretary may, in lieu of holding 
such fish, wildlife, property, or item, permit the owner or 
consignee to post a bond or other surety satisfactory to the 
Secretary, but upon forfeiture of any such property to the 
United States, or the abandonment or waiver of any claim to any 
such property, it shall be disposed of (other than by sale to 
the general public) by the Secretary in such a manner, 
consistent with the purposes of this Act, as the Secretary 
shall by regulation prescribe.
 (4)(A) All fish or wildlife or plants taken, possessed, sold, 
purchased, offered for sale or purchase, transported, 
delivered, received, carried, shipped, exported, or imported 
contrary to the provisions of this Act, any regulation made 
pursuant thereto, or any permit or certificate issued hereunder 
shall be subject to forfeiture to the United States.
 (B) All guns, traps, nets, and other equipment, vessels, 
vehicles, aircraft, and other means of transportation used to 
aid the taking, possessing, selling, purchasing, offering for 
sale or purchase, transporting, delivering, receiving, 
carrying, shipping, exporting, or importing of any fish or 
wildlife or plants in violation of this Act, any regulation 
made pursuant thereto, or any permit or certificate issued 
thereunder shall be subject to forfeiture to the United States 
upon conviction of a criminal violation pursuant to section 
11(b)(1) of this Act.
 (5) All provisions of law relating to the seizure, 
forfeiture, and condemnation of a vessel for violation of the 
customs laws, the disposition of such vessel or the proceeds 
from the sale thereof, and the remission or mitigation of such 
forfeiture, shall apply to the seizures and forfeitures 
incurred, or alleged to have been incurred, under the 
provisions of this Act, insofar as such provisions of law are 
applicable and not inconsistent with the provisions of this 
Act; except that all powers, rights, and duties conferred or 
imposed by the customs laws upon any officer or employee of the 
Treasury Department shall, for the purposes of this Act, be 
exercised or performed by the Secretary or by such persons as 
he may designate.
 (6) The Attorney General of the United States may seek to 
enjoin any person who is alleged to be in violation of any 
provision of this Act or regulation issued under authority 
thereof.
 (f) Regulations.--The Secretary, the Secretary of the 
Treasury, and the Secretary of the Department in which the 
Coast Guard is operating, are authorized to promulgate such 
regulations as may be appropriate to enforce this Act, and 
charge reasonable fees for expenses to the Government connected 
with permits or certificates authorized by this Act including 
processing applications and reasonable inspections, and with 
the transfer, board, handling, or storage of fish or wildlife 
or plants and evidentiary items seized and forfeited under this 
Act. All such fees collected pursuant to this subsection shall 
be deposited in the Treasury to the credit of the appropriation 
which is current and chargeable for the cost of furnishing the 
services. Appropriated funds may be expended pending 
reimbursement from parties in interest.
 (g) Citizen Suits.--(1) Except as provided in paragraph (2) 
of this subsection any person may commence a civil suit on his 
own behalf--
 (A) to enjoin any person, including the United States 
 and any other governmental instrumentality or agency 
 (to the extent permitted by the eleventh amendment to 
 the Constitution), who is alleged to be in violation of 
 any provision of this Act or regulation issued under 
 the authority thereof; or
 (B) to compel the Secretary to apply, pursuant to 
 section 6(g)(2)(B)(ii) of this Act, the prohibitions 
 set forth in or authorized pursuant to section 4(d) or 
 section 9(a)(1)(B) of this Act with respect to the 
 taking of any resident endangered species or threatened 
 species within any State; or
 (C) against the Secretary where there is alleged a 
 failure of the Secretary to perform any act or duty 
 under section 4 which is not discretionary with the 
 Secretary.
The district courts shall have jurisdiction, without regard to 
the amount in controversy or the citizenship of the parties, to 
enforce any such provision or regulation or to order the 
Secretary to perform such act or duty, as the case may be. In 
any civil suit commenced under subparagraph (B) the district 
court shall compel the Secretary to apply the prohibition 
sought if the court finds that the allegation that an emergency 
exists is supported by substantial evidence.
 (2)(A) No action may be commenced under subparagraph (1)(A) 
of this section--
 (i) prior to sixty days after written notice of the 
 violation has been given to the Secretary, and to any 
 alleged violator of any such provision or regulation;
 (ii) if the Secretary has commenced action to impose 
 a penalty pursuant to subsection (a) of this section; 
 or
 (iii) if the United States has commenced and is 
 diligently prosecuting a criminal action in a court of 
 the United States or a State to redress a violation of 
 any such provision or regulation.
 (B) No action may be commenced under subparagraph (1)(B) of 
this section--
 (i) prior to sixty days after written notice has been 
 given to the Secretary setting forth the reasons why an 
 emergency is thought to exist with respect to an 
 endangered species or a threatened species in the State 
 concerned; or
 (ii) if the Secretary has commenced and is diligently 
 prosecuting action under section 6(g)(2)(B)(ii) of this 
 Act to determine whether any such emergency exists.
 (C) No action may be commenced under subparagraph (1)(C) of 
this section prior to sixty days after written notice has been 
given to the Secretary; except that such action may be brought 
immediately after such notification in the case of an action 
under this section respecting an emergency posing a significant 
risk to the well-being of any species of fish or wildlife or 
plants.
 (3)(A) Any suit under this subsection may be brought in the 
judicial district in which the violation occurs.
 (B) In any such suit under this subsection in which the 
United States is not a party, the Attorney General, at the 
request of the Secretary, may intervene on behalf of the United 
States as a matter of right.
 (4) The court, in issuing any final order in any suit brought 
pursuant to paragraph (1) of this subsection, may award costs 
of litigation (including reasonable attorney and expert witness 
fees) [to any party, whenever the court determines such award 
is appropriate] in accordance with section 2412 of title 28, 
United States Code and section 504 of title 5, United States 
Code.
 (5) The injunctive relief provided by this subsection shall 
not restrict any right which any person (or class of persons) 
may have under any statute or common law to seek enforcement of 
any standard or limitation or to seek any other relief 
(including relief against the Secretary or a State agency).
 (h) Coordination With Other Laws.--The Secretary of 
Agriculture and the Secretary shall provide for appropriate 
coordination of the administration of this Act with the 
administration of the animal quarantine laws (as defined in 
section 2509(f) of the Food, Agriculture, Conservation, and 
Trade Act of 1990 (21 U.S.C. 136a(f)) and section 306 of the 
Tariff Act of 1930 (19 U.S.C. 1306). Nothing in this Act or any 
amendment made by this Act shall be construed as superseding or 
limiting in any manner the functions of the Secretary of 
Agriculture under any other law relating to prohibited or 
restricted importations or possession of animals and other 
articles and no proceeding or determination under this Act 
shall preclude any proceeding or be considered determinative of 
any issue of fact or law in any proceeding under any Act 
administered by the Secretary of Agriculture. Nothing in this 
Act shall be construed as superseding or limiting in any manner 
the functions and responsibilities of the Secretary of the 
Treasury under the Tariff Act of 1930, including, without 
limitation, section 527 of that Act (19 U.S.C. 1527), relating 
to the importation of wildlife taken, killed, possessed, or 
exported to the United States in violation of the laws or 
regulations of a foreign country.

 * * * * * * *

 [conforming amendments

 [Sec. 13. (a) Subsection 4(c) of the Act of October 15,1966 
(80 Stat. 928, 16 U.S.C. 668dd(c)), is further amended by 
revising the second sentence thereof to read as follows: ``With 
the exception of endangered species and threatened species 
listed by the Secretary pursuant to section 4 of the Endangered 
Species Act of 1973 in States wherein a cooperative agreement 
does not exist pursuant to section 6(c) of that Act, nothing in 
this Act shall be construed to authorize the Secretary to 
control or regulate hunting or fishing of resident fish and 
wildlife on lands not within the system.''
 [(b) Subsection 10(a) of the Migratory Bird Conservation Act 
(45 Stat. 1224, 16 U.S.C. 715i(a)) and subsection 401(a) of the 
Act of June 15, 1935 (49 Stat. 383,16 U.S.C. 715s(a)), are each 
amended by Striking out ``threatened with extinction,'' and 
inserting in lieu thereof the following: ``listed pursuant to 
section 4 of the Endangered Species Act of 1973 as endangered 
species or threatened species,''.
 [(c) Section 7(a)(1) of the Land and Water Conservation Fund 
Act of 1965 (16 U.S.C. 4601--9(a) (1)) is amended by striking 
out:
 `` Threatened Species.--For any national area which may be 
authorized for the preservation of species of fish or wildlife 
that are threatened with extinction.and inserting in lieu 
thereof the following:
 `` Endangered Species and Threatened Species.--For lands, 
waters, or interests therein, the acquisition of which is 
authorized under section 5 (a) of the Endangered Species Act of 
1973, needed for the purpose of conserving endangered or 
threatened species of fish or wildlife or plants.
 [(d) The first sentence of section 2 of the Act of September 
28,1962, as amended (76 Stat. 653, 16 U.S.C. 460k-l), is 
amended to read as follow:
 ``The Secretary is authorized to acquire areas of land, or 
interests therein, which are suitable for--
 [``(1) incidental fish and wildlife-oriented 
 recreational development,
 [``(2) the protection of natural resources,
 [``(3) the conservation of endangered species or 
 threatened species listed by the Secretary pursuant to 
 section 4 of the Endangered Species Act of 1973, or
 [``(4) carrying out two or more of the purposes set 
 forth in paragraphs (1) through (3) of this section, 
 and are adjacent to, or within, the said conservation 
 areas, except that the acquisition of any land or 
 interest therein pursuant to this section shall be 
 accomplished only with such funds as may be 
 appropriated therefor by the Congress or donated for 
 such purposes, but such property shall not be acquired 
 with funds obtained from the sale of Federal migratory 
 bird hunting stamps.
 [(e) The Marine Mammal Protection Act of 1972 (16 U.S.C. 
1361-1407) is amended--
 [(1) by striking out ``Endangered Species 
 Conservation Act of 1969'' in section 3(1)(B) thereof 
 and inserting in lieu thereof the following: 
 ``Endangered Species Act of 1973'';
 [(2) by striking out ``pursuant to the Endangered 
 Species Conservation Act of 1969'' in section 
 101(a)(3)(B) thereof and inserting in lieu thereof the 
 following: ``or threatened species pursuant to the 
 Endangered Species Act of 1973'';
 [(3) by striking out ``endangered under the 
 Endangered Species Conservation Act of 1969'' in 
 section 102(b)(3) thereof and inserting in lieu thereof 
 the following: ``an endangered species or threatened 
 species pursuant to the Endangered Species Act of 
 1973''; and
 [(4) by striking out ``of the Interior such revisions 
 of the Endangered Species List, authorized by the 
 Endangered Species Conservation Act of 1969,'' in 
 section 202(a)(6) thereof and inserting in lieu thereof 
 the following: ``such revisions of the endangered 
 species list and threatened species list published 
 pursuant to section 4(c)(1) of the Endangered Species 
 Act of 1973''.
 [(f) Section 2(l) of the Federal Environmental Pesticide 
Control Act of 1972 (Public Law 92-516) is amended by striking 
out the words ``by the Secretary of the Interior under Public 
Law 91- 135'' and inserting in lieu thereof the words ``or 
threatened by the Secretary pursuant to the Endangered Species 
Act of 1973''. ]

SEC. 13. DISCLOSURE OF EXPENDITURES.

 (a) Requirement.--The Secretary of the Interior, in 
consultation with the Secretary of Commerce, shall--
 (1) not later than 90 days after the end of each 
 fiscal year, submit to the Committee on Natural 
 Resources of the House of Representatives and the 
 Committee on Environment and Public Works of the Senate 
 an annual report detailing Federal Government 
 expenditures for covered suits during the preceding 
 fiscal year (including the information described in 
 subsection (b)); and
 (2) make publicly available through the Internet a 
 searchable database, updated monthly, of the 
 information described in subsection (b).
 (b) Included Information.--The report shall include--
 (1) the case name and number of each covered suit, 
 and, with respect to each such covered suit, a 
 hyperlink to each settlement decision, final decision, 
 consent decree, stipulation of dismissal, release, 
 interim decision, motion to dismiss, partial motion for 
 summary judgement, or related final document;
 (2) a description of each claim or cause of action in 
 each covered suit;
 (3) the name of each covered agency the actions of 
 which give rise to any claim in a covered suit and each 
 plaintiff in such suit;
 (4) funds expended by each covered agency 
 (disaggregated by agency account) to receive and 
 respond to notices referred to in section 11(g)(2) or 
 to prepare for litigation of, litigate, negotiate a 
 settlement agreement or consent decree in, or provide 
 material, technical, or other assistance in relation 
 to, a covered suit;
 (5) the number of full-time equivalent employees that 
 participated in the activities described in paragraph 
 (4);
 (6) any information required to be published under 
 section 1304 of title 31, United States Code, with 
 respect to a covered suit; and
 (7) attorneys fees and other expenses (disaggregated 
 by agency account) awarded in covered suits, including 
 any consent decrees or settlement agreements 
 (regardless of whether a decree or settlement agreement 
 is sealed or otherwise subject to nondisclosure 
 provisions), including the basis for such awards.
 (c) Requirement to Provide Information.--The head of each 
covered agency shall provide to the Secretary in a timely 
manner all information requested by the Secretary to comply 
with the requirements of this section.
 (d) Limitation on Disclosure.--Notwithstanding any other 
provision of this section, this section shall not affect any 
restriction in a consent decree or settlement agreement on the 
disclosure of information that is not described in subsection 
(b).
 (e) Definitions.--In this section:
 (1) Covered agency.--The term ``covered agency'' 
 means any agency of the--
 (A) Department of the Interior;
 (B) Forest Service;
 (C) Environmental Protection Agency;
 (D) National Marine Fisheries Service;
 (E) Bonneville Power Administration;
 (F) Western Area Power Administration;
 (G) Southwestern Power Administration; or
 (H) Southeastern Power Administration.
 (2) Covered suit.--The term ``covered suit'' means--
 (A) any civil action containing any claim 
 arising under this Act against the Federal 
 Government and based on the action of a covered 
 agency; and
 (B) any administrative proceeding under which 
 the United States awards fees and other 
 expenses to a third party under section 504 of 
 title 5, United States Code.

 * * * * * * *

 authorization of appropriations

 Sec. 15. (a) In General.--Except as provided in [subsection 
(b), (c), and (d)] subsections (b) and (c), there are 
authorized to be appropriated--
 (1) not to exceed $35,000,000 for fiscal year 1988, 
 $36,500,000 for fiscal year 1989, $38,000,000 for 
 fiscal year 1990, $39,500,000 for fiscal year 1991, 
 [and] $41,500,000 for fiscal year 1992, and 
 $302,025,000 for each of fiscal years 2025 through 2030 
 to enable the Department of the Interior to carry out 
 such functions and responsibilities as it may have been 
 given under this Act;
 (2) not to exceed $5,750,000 for fiscal year 1988, 
 $6,250,000 for each of fiscal years 1989 and 1990, 
 [and] $6,750,000 for each of fiscal years 1991 and 
 1992, and $116,630,000 for each of fiscal years 2025 
 through 2030 to enable the Department of Commerce to 
 carry out such functions and responsibilities as it may 
 have been given under this Act; and
 (3) not to exceed $2,200,000 for fiscal year 1988, 
 $2,400,000 for each of fiscal years 1989 and 1990, 
 [and] $2,600,000 for each of fiscal years 1991 and 
 1992, and $2,600,000 for each of fiscal years 2025 
 through 2030 to enable the Department of Agriculture to 
 carry out its functions and responsibilities with 
 respect to the enforcement of this Act and the 
 Convention which pertain to the importation or 
 exportation of plants.
 (b) Exemptions From Act.--There are authorized to be 
appropriated to the Secretary to assist him and the Endangered 
Species Committee in carrying out their functions under 
sections 7 (e), (g), and (h) not to exceed $600,000 for each of 
fiscal years 1988, 1989, 1990, 1991, and 1992 and $600,000 for 
each of fiscal years 2025 through 2030.
 (c) Convention Implementation.--There are authorized to be 
appropriated to the Department of the Interior for purposes of 
carrying out section 8A(e) not to exceed $400,000 for each of 
fiscal years 1988, 1989, and 1990, [and] $500,000 for each of 
fiscal years 1991 and 1992, and $9,900,000 for each of fiscal 
years 2025 through 2030, and such sums shall remain available 
until expended.

 * * * * * * *