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United States Code (Last Updated: May 24, 2014) |
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Title 16. CONSERVATION |
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Chapter 35. ENDANGERED SPECIES |
§ 1533. Determination of endangered species and threatened species
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(a) Generally (1) The Secretary shall by regulation promulgated in accordance with subsection (b) of this section 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) of this section 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 670a of this title, if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation. (ii) Nothing in this paragraph affects the requirement to consult under section 1536(a)(2) of this title with respect to an agency action (as that term is defined in that section). (iii) Nothing in this paragraph affects the obligation of the Department of Defense to comply with section 1538 of this title, including the prohibition preventing extinction and taking of endangered species and threatened species. (b) Basis for determinations (1) (A) The Secretary shall make determinations required by subsection (a)(1) of this section solely on the basis of the best scientific and commercial data available to him after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices, within any area under its jurisdiction; or on the high seas. (B) In carrying out this section, the Secretary shall give consideration to species which have been— (i) designated as requiring protection from unrestricted commerce by any foreign nation, or pursuant to any international agreement; or (ii) identified as in danger of extinction, or likely to become so within the foreseeable future, by any State agency or by any agency of a foreign nation that is responsible for the conservation of fish or wildlife or plants. (2) The Secretary shall designate critical habitat, and make revisions thereto, under subsection (a)(3) of this section on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned. (3) (A) To the maximum extent practicable, within 90 days after receiving the petition of an interested person under section 553(e) of title 5, to add a species to, or to remove a species from, either of the lists published under subsection (c) of this section, the Secretary shall make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted. If such a petition is found to present such information, the Secretary shall promptly commence a review of the status of the species concerned. The Secretary shall promptly publish each finding made under this subparagraph in the Federal Register. (B) Within 12 months after receiving a petition that is found under subparagraph (A) to present substantial information indicating that the petitioned action may be warranted, the Secretary shall make one of the following findings: (i) The petitioned action is not warranted, in which case the Secretary shall promptly publish such finding in the Federal Register. (ii) The petitioned action is warranted, in which case the Secretary shall promptly publish in the Federal Register a general notice and the complete text of a proposed regulation to implement such action in accordance with paragraph (5). (iii) The petitioned action is warranted, but that— (I) the immediate proposal and timely promulgation of a final regulation implementing the petitioned action in accordance with paragraphs (5) and (6) is precluded by pending proposals to determine whether any species is an endangered species or a threatened species, and (II) expeditious progress is being made to add qualified species to either of the lists published under subsection (c) of this section and to remove from such lists species for which the protections of this chapter are no longer necessary, in which case the Secretary shall promptly publish such finding in the Federal Register, together with a description and evaluation of the reasons and data on which the finding is based. (C) (i) A petition with respect to which a finding is made under subparagraph (B)(iii) shall be treated as a petition that is resubmitted to the Secretary under subparagraph (A) on the date of such finding and that presents substantial scientific or commercial information that the petitioned action may be warranted. (ii) Any negative finding described in subparagraph (A) and any finding described in subparagraph (B)(i) or (iii) shall be subject to judicial review. (iii) The Secretary shall implement a system to monitor effectively the status of all species with respect to which a finding is made under subparagraph (B)(iii) and shall make prompt use of the authority under paragraph 7 of subsection (b) of this section to prevent a significant risk to the well being of any such recovered species. (h) Agency guidelines; publication in Federal Register; scope; proposals and amendments: notice and opportunity for comments The Secretary shall establish, and publish in the Federal Register, agency guidelines to insure that the purposes of this section are achieved efficiently and effectively. Such guidelines shall include, but are not limited to— (1) procedures for recording the receipt and the disposition of petitions submitted under subsection (b)(3) of this section; (2) criteria for making the findings required under such subsection with respect to petitions; (3) a ranking system to assist in the identification of species that should receive priority review under subsection (a)(1) of this section; and (4) a system for developing and implementing, on a priority basis, recovery plans under subsection (f) of this section. The Secretary shall provide to the public notice of, and opportunity to submit written comments on, any guideline (including any amendment thereto) proposed to be established under this subsection. (i) Submission to State agency of justification for regulations inconsistent with State agency’s comments or petition If, in the case of any regulation proposed by the Secretary under the authority of this section, a State agency to which notice thereof was given in accordance with subsection (b)(5)(A)(ii) of this section 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) of this section, 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.
References In Text
Reorganization Plan Numbered 4 of 1970, referred to in subsec. (a)(2), is Reorg. Plan No. 4 of 1970, eff.
This chapter, referred to in subsecs. (b)(4), (8), (e)(C), and (g)(1), was in the original “this Act”, meaning Pub. L. 93–205,
The Federal Advisory Committee Act, referred to in subsec. (f)(2), is Pub. L. 92–463,
Amendments
2003—Subsec. (a)(3). Pub. L. 108–136, § 318(a), designated existing provisions as subpar. (A), redesignated former subpars. (A) and (B) as cls. (i) and (ii), respectively, and added subpar. (B).
Subsec. (b)(2). Pub. L. 108–136, § 318(b), inserted “the impact on national security,” after “the economic impact,”.
1988—Subsec. (b)(3)(C)(iii). Pub. L. 100–478, § 1002(a), added subcl. (iii).
Subsec. (e). Pub. L. 100–478, § 1002(b), substituted “regulation of commerce or taking,” for “regulation,” in introductory provisions.
Subsec. (f). Pub. L. 100–478, § 1003, amended subsec. (f) generally. Prior to amendment, subsec. (f) read as follows: “The Secretary shall develop and implement plans (hereinafter in this subsection referred to as ‘recovery plans’) for the conservation and survival of endangered species and threatened species listed pursuant to this section, unless he finds that such a plan will not promote the conservation of the species. The Secretary, in developing and implementing recovery plans (1) shall, to the maximum extent practicable, give priority to those endangered species or threatened species most likely to benefit from such plans, particularly those species that are, or may be, in conflict with construction or other developmental projects or other forms of economic activity, and (2) may procure the services of appropriate public and private agencies and institutions, and other qualified persons. Recovery teams appointed pursuant to this subsection shall not be subject to the Federal Advisory Committee Act.”
Subsecs. (g) to (i). Pub. L. 100–478, § 1004, added subsec. (g) and redesignated former subsecs. (g) and (h) as (h) and (i), respectively.
1982—Subsec. (a)(1). Pub. L. 97–304, § 2(a)(1)(B), (D), inserted “promulgated in accordance with subsection (b) of this section” after “shall by regulation” in introductory provisions preceding subpar. (A), and struck out provision following subpar. (E), which directed the Secretary, at the time regulations were proposed, to specify any habitat of a species considered to be a critical habitat but that such specification of critical habitats not apply to species listed prior to
Subsec. (a)(1)(A). Pub. L. 97–304, § 2(a)(1)(A), redesignated subpar. (1) as (A).
Subsec. (a)(1)(B). Pub. L. 97–304, § 2(a)(1)(A), (C), redesignated subpar. (2) as (B) and substituted “recreational,” for “sporting,”.
Subsec. (a)(1)(C) to (E). Pub. L. 97–304, § 2(a)(1)(A), redesignated subpars. (3), (4), and (5) as (C), (D), and (E), respectively.
Subsec. (a)(3). Pub. L. 97–304, § 2(a)(1)(E), added par. (3).
Subsec. (b). Pub. L. 97–304, § 2(a)(2), completely revised subsec. (b) by, among other changes, requiring the Secretary to base determinations regarding the listing or delisting of species “solely” on the basis of the best scientific and commercial data available, streamlining the listing process by reducing the time periods for rulemaking, consolidating public meetings and hearing requirements, and establishing virtually identical procedures for the listing and delisting of species and for the designation of critical habitat, and altering the evidentiary standard which petitioners must satisfy to warrant a status review of the species proposed for listing or delisting.
Subsec. (c)(1). Pub. L. 97–304, § 2(a)(3)(A), struck out “, and from time to time he may by regulation revise,” after “Federal Register” and inserted provision directing the Secretary to revise from time to time each list published under the authority of this subsection to reflect recent determinations, designations, and revisions made in accordance with subsections (a) and (b) of this section.
Subsec. (c)(2). Pub. L. 97–304, § 2(a)(3)(B), (C), redesignated par. (4) as (2). Former par. (2), directing the Secretary, within 90 days of the receipt of the petition of an interested person under section 553(e) of title 5, to conduct and publish in the Federal Register a review of the status of any listed or unlisted species proposed to be removed from or added to either of the lists published pursuant to paragraph (1) of this subsection, but only if he made and published a finding that such person had presented substantial evidence which in his judgment warranted such a review, was struck out.
Subsec. (c)(3). Pub. L. 97–304, § 2(a)(3)(B), struck out par. (3) which had provided that any list in effect on
Subsec. (c)(4). Pub. L. 97–304, § 2(a)(3)(C), redesignated par. (4) as (2).
Subsec. (d). Pub. L. 97–304, § 2(a)(4)(A), substituted “section 1535(c) of this title” for “section 1535(a) of this title”.
Subsec. (f). Pub. L. 97–304, § 2(a)(4)(B), (C), (D), redesignated subsec. (g) as (f) and substituted “recovery plans (1) shall, to the maximum extent practicable, give priority to those endangered species or threatened species most likely to benefit from such plans, particularly those species that are, or may be, in conflict with construction or other developmental projects or other forms of economic activity, and (2)” for “recovery plans,”. Former subsec. (f), relating to the promulgation of regulations, was struck out.
Subsec. (g). Pub. L. 97–304, § 2(a)(4)(C), (E), redesignated subsec. (h) as (g), substituted reference to subsection (b)(3) of this section for reference to subsection (c)(2) of this section in par. (1), substituted “under subsection (a)(1) of this section” for “for listing” in par. (3), and substituted “subsection (f) of this section” for “subsection (g) of this section” in par. (4). Former subsec. (g) redesignated (f).
Subsec. (h). Pub. L. 97–304, § 2(a)(4)(C), (F), added subsec. (h) and redesignated former subsec. (h) as (g).
1979—Subsec. (b)(1). Pub. L. 96–159, § 3(1), required the Secretary’s determinations to be preceded with a review of the status of the species.
Subsec. (f)(2)(B)(i). Pub. L. 96–159, § 3(2), required publication of summary of text rather than of the complete text of proposed regulation specifying any critical habitat and inclusion of a map of the proposed critical habitat.
Subsec. (f)(2)(B)(iv)(II). Pub. L. 96–159, § 3(3), substituted “if requested within 15 days after the date on which the public meeting is conducted,” for “if requested,”.
Subsec. (f)(2)(C). Pub. L. 96–159, § 3(4), (5), inserted in introductory text “, subsection (b)(4) of this section,”; and in cl. (ii), included reference to significant risk to wellbeing of any species of plants, inserted in item (II) reference to regulation applicable to resident species of plants, extended the statutory period to a “240-day period” from a “120-day period”, and provided for withdrawal of an emergency regulation without substantial evidence to warrant it, respectively.
Subsec. (h). Pub. L. 96–159, § 3(6), added subsec. (h).
1978—Subsec. (a)(1). Pub. L. 95–632, § 11(1), inserted provision requiring the Secretary, at the time a regulation is proposed, to specify by regulation any habitat of the species involved which is considered a critical habitat providing the species was listed subsequent to
Subsec. (b)(4). Pub. L. 95–632, § 11(7), added par. (4).
Subsec. (c)(1). Pub. L. 95–632, § 11(2), struck out “and shall” after “if any” and inserted “, and specify any critical habitat within such range” after “endangered or threatened”.
Subsec. (c)(2). Pub. L. 95–632, § 11(6), substituted “within 90 days of the receipt of” for “upon” and “conduct and publish in the Federal Register a review of the status of” for “conduct a review of” and inserted a provision requiring that the review and findings be made and published prior to initiation of any procedures under subsec. (b)(1) of this section.
Subsec. (c)(4). Pub. L. 95–632, § 11(3), added par. (4).
Subsec. (f)(2)(A). Pub. L. 95–632, § 11(4)(A), substituted “Except as provided in subparagraph (B), in” for “In”.
Subsec. (f)(2)(B), (C). Pub. L. 95–632, § 11(4)(B), (C), added subpar. (B), redesignated former subpar. (B) as (C), and as so redesignated, substituted “Neither subparagraph (A) or (B)” for “Neither subparagraph (A)”.
Subsec. (f)(3). Pub. L. 95–632, § 13, substituted “a summary by the Secretary of the data on which such regulation is based and shall show the relationship of such data to such regulations” for “a statement by the Secretary of the facts on which such regulation is based and the relationship of such facts to such regulation”.
Subsec. (f)(4), (5). Pub. L. 95–632, § 11(4)(D), added pars. (4) and (5).
Subsec. (g). Pub. L. 95–632, § 11(5), added subsec. (g).
1976—Subsec. (f)(2)(B)(ii). Pub. L. 94–359 substituted “subsection (b)(1)(A)” for “subsection (b)(A), (B), and (C)”.
Effective Date Of Amendment
Pub. L. 97–304, § 2(b),
Miscellaneous
Committee on Merchant Marine and Fisheries of House of Representatives abolished and its jurisdiction transferred by House Resolution No. 6, One Hundred Fourth Congress,