16 U.S.C. § 1533 : US Code - Section 1533: Determination of endangered species and threatened species

Search 16 U.S.C. § 1533 : US Code - Section 1533: Determination of endangered species and threatened species

(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 (!1) to prevent a
significant risk to the well being of any such species.
(D)(i) To the maximum extent practicable, within 90 days after
receiving the petition of an interested person under section 553(e)
of title 5, 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 (relating to
rulemaking procedures), shall apply to any regulation promulgated
to carry out the purposes of this chapter.
(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) of this section, 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 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 or 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 chapter shall include a summary by the Secretary
of the data on which such regulation is based and shall show the
relationship of such data to such regulation; and if such
regulation designates or revises critical habitat, such summary
shall, to the maximum extent practicable, also include a brief
description and evaluation of those activities (whether public or
private) which, in the opinion of the Secretary, if undertaken may
adversely modify such habitat, or may be affected by such
designation.
(c) Lists
(1) The Secretary of the Interior shall publish in the Federal
Register a list of all species determined by him or the Secretary
of Commerce to be endangered species and a list of all species
determined by him or the Secretary of Commerce to be threatened
species. Each list shall refer to the species contained therein by
scientific and common name or names, if any, specify with respect
to each 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) of this section.
(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 subsections (a) and (b) of this
section.
(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 1538(a)(1) of this title, in the case of fish or
wildlife, or section 1538(a)(2) of this title, 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 1535(c) of this title
only to the extent that such regulations have also been adopted by
such State.
(e) Similarity of appearance cases
The Secretary may, by regulation of commerce or taking, and to
the extent he deems advisable, treat any species as an endangered
species or threatened species even though it is not listed pursuant
to this section 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
chapter.
(f) Recovery plans
(1) 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.
(2) The Secretary, in developing and implementing recovery plans,
may procure the services of appropriate public and private agencies
and institutions, and other qualified persons. Recovery teams
appointed pursuant to this subsection shall not be subject to the
Federal Advisory Committee Act.
(3) The Secretary shall report every two years to the Committee
on Environment and Public Works of the Senate and the Committee on
Merchant Marine and Fisheries of the House of Representatives on
the status of efforts to develop and implement recovery plans for
all species listed pursuant to this section and on the status of
all species for which such plans have been developed.
(4) The Secretary shall, prior to final approval of a new or
revised recovery plan, provide public notice and an opportunity for
public review and comment on such plan. The Secretary shall
consider all information presented during the public comment period
prior to approval of the plan.
(5) Each Federal agency shall, prior to implementation of a new
or revised recovery plan, consider all information presented during
the public comment period under paragraph (4).
(g) Monitoring
(1) The Secretary shall implement a system in cooperation with
the States to monitor effectively for not less than five years the
status of all species which have recovered to the point at which
the measures provided pursuant to this chapter 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) of this section.
(2) The Secretary shall make prompt use of the authority under
paragraph 7 (!2) 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.