Excerpt from Section 7 of the Endangered Species Act

Excerpt from Section 7 of the Endangered Species Act, 16 U.S.C. § 1536:

(e) Endangered Species Committee
- (1) There is established a committee to be known as the Endangered Species Committee (hereinafter in this section referred to as the ''Committee'').
- (2) The Committee shall review any application submitted to it pursuant to this section and determine in accordance with subsection (h) of this section whether or not to grant an exemption from the requirements of subsection (a)(2) of this section for the action set forth in such application.
- (3) The Committee shall be composed of seven members as follows:
  - (A) The Secretary of Agriculture.
  - (B) The Secretary of the Army.
  - (C) The Chairman of the Council of Economic Advisors.
  - (D) The Administrator of the Environmental Protection Agency.
  - (E) The Secretary of the Interior.
  - (F) The Administrator of the National Oceanic and Atmospheric
    Administration.
  - (G) The President, after consideration of any recommendations
    received pursuant to subsection (g)(2)(B) of this section shall
    appoint one individual from each affected State, as determined by
    the Secretary, to be a member of the Committee for the
    consideration of the application for exemption for an agency
    action with respect to which such recommendations are made, not
    later than 30 days after an application is submitted pursuant to
    this section.
- (4)
  - (A) Members of the Committee shall receive no additional pay on account of their service on the Committee.
  - (B) While away from their homes or regular places of business in the performance of services for the Committee, members of the Committee shall be allowed travel expenses, including per diem in lieu of subsistence, in the same manner as persons employed intermittently in the Government service are allowed expenses under section 5703 of title 5.
- (5)
  - (A) Five members of the Committee or their representatives shall constitute a quorum for the transaction of any function of the Committee, except that, in no case shall any representative be considered in determining the existence of a quorum for the transaction of any function of the Committee if that function involves a vote by the Committee on any matter before the Committee.
  - (B) The Secretary of the Interior shall be the Chairman of the Committee.
  - (C) The Committee shall meet at the call of the Chairman or five of its members.
  - (D) All meetings and records of the Committee shall be open to the public.
- (6) Upon request of the Committee, the head of any Federal agency is authorized to detail, on a nonreimbursable basis, any of the personnel of such agency to the Committee to assist it in carrying out its duties under this section.
- (7)
  - (A) The Committee may for the purpose of carrying out its duties under this section hold such hearings, sit and act at such times and places, take such testimony, and receive such evidence, as the Committee deems advisable.
  - (B) When so authorized by the Committee, any member or agent of the Committee may take any action which the Committee is authorized to take by this paragraph.
  - (C) Subject to the Privacy Act (5 U.S.C. 552a), the Committee may secure directly from any Federal agency information necessary to enable it to carry out its duties under this section. Upon request of the Chairman of the Committee, the head of such Federal agency shall furnish such information to the Committee.
  - (D) The Committee may use the United States mails in the same manner and upon the same conditions as a Federal agency.
  - (E) The Administrator of General Services shall provide to the Committee on a reimbursable basis such administrative support services as the Committee may request.
- (8) In carrying out its duties under this section, the Committee may promulgate and amend such rules, regulations, and procedures, and issue and amend such orders as it deems necessary.
- (9) For the purpose of obtaining information necessary for the consideration of an application for an exemption under this section the Committee may issue subpenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents.
- (10) In no case shall any representative, including a representative of a member designated pursuant to paragraph (3)(G) of this subsection, be eligible to cast a vote on behalf of any member.

(f) Promulgation of regulations; form and contents of exemption
application
Not later than 90 days after November 10, 1978, the Secretary shall promulgate regulations which set forth the form and manner in which applications for exemption shall be submitted to the Secretary and the information to be contained in such applications. Such regulations shall require that information submitted in an application by the head of any Federal agency with respect to any agency action include, but not be limited to -
- (1) a description of the consultation process carried out
  pursuant to subsection (a)(2) of this section between the head of
  the Federal agency and the Secretary; and
  (2) a statement describing why such action cannot be altered or
  modified to conform with the requirements of subsection (a)(2) of
  this section.

(g) Application for exemption; report to Committee
- (1) A Federal agency, the Governor of the State in which an agency action will occur, if any, or a permit or license applicant may apply to the Secretary for an exemption for an agency action of such agency if, after consultation under subsection (a)(2) of this section, the Secretary's opinion under subsection (b) of this section indicates that the agency action would violate subsection (a)(2) of this section. An application for an exemption shall be considered initially by the Secretary in the manner provided for in this subsection, and shall be considered by the Committee for a final determination under subsection (h) of this section after a report is made pursuant to paragraph (5). The applicant for an exemption shall be referred to as the ''exemption applicant'' in this section.
- (2)
  - (A) An exemption applicant shall submit a written application to the Secretary, in a form prescribed under subsection (f) of this section, not later than 90 days after the completion of the consultation process; except that, in the case of any agency action involving a permit or license applicant, such application shall be submitted not later than 90 days after the date on which the Federal agency concerned takes final agency action with respect to the issuance of the permit or license. For purposes of the preceding sentence, the term ''final agency action'' means (i) a disposition by an agency with respect to the issuance of a permit or license that is subject to administrative review, whether or not such disposition is subject to judicial review; or (ii) if administrative review is sought with respect to such disposition, the decision resulting after such review. Such application shall set forth the reasons why the exemption applicant considers that the agency action meets the requirements for an exemption under this subsection.
  - (B) Upon receipt of an application for exemption for an agency action under paragraph (1), the Secretary shall promptly (i) notify the Governor of each affected State, if any, as determined by the Secretary, and request the Governors so notified to recommend individuals to be appointed to the Endangered Species Committee for consideration of such application; and (ii) publish notice of receipt of the application in the Federal Register, including a summary of the information contained in the application and a description of the agency action with respect to which the application for exemption has been filed.
- (3) The Secretary shall within 20 days after the receipt of an application for exemption, or within such other period of time as is mutually agreeable to the exemption applicant and the Secretary -
  - (A) determine that the Federal agency concerned and the
    exemption applicant have -
    - (i) carried out the consultation responsibilities described
      in subsection (a) of this section in good faith and made a
      reasonable and responsible effort to develop and fairly
      consider modifications or reasonable and prudent alternatives
      to the proposed agency action which would not violate
      subsection (a)(2) of this section;
    - (ii) conducted any biological assessment required by
      subsection (c) of this section; and
      (iii) to the extent determinable within the time provided
      herein, refrained from making any irreversible or irretrievable
      commitment of resources prohibited by subsection (d) of this
      section; or
  - (B) deny the application for exemption because the Federal
    agency concerned or the exemption applicant have not met the
    requirements set forth in subparagraph (A)(i), (ii), and (iii). The denial of an application under subparagraph (B) shall be considered final agency action for purposes of chapter 7 of title 5.
- (4) If the Secretary determines that the Federal agency concerned and the exemption applicant have met the requirements set forth in paragraph (3)(A)(i), (ii), and (iii) he shall, in consultation with the Members of the Committee, hold a hearing on the application for exemption in accordance with sections 554, 555, and 556 (other than subsection (b)(1) and (2) thereof) of title 5 and prepare the report to be submitted pursuant to paragraph (5).
- (5) Within 140 days after making the determinations under paragraph (3) or within such other period of time as is mutually agreeable to the exemption applicant and the Secretary, the Secretary shall submit to the Committee a report discussing -
  - (A) the availability of reasonable and prudent alternatives to
    the agency action, and the nature and extent of the benefits of
    the agency action and of alternative courses of action consistent
    with conserving the species or the critical habitat;
  - (B) a summary of the evidence concerning whether or not the
    agency action is in the public interest and is of national or
    regional significance;
  - (C) appropriate reasonable mitigation and enhancement measures
    which should be considered by the Committee; and
    (D) whether the Federal agency concerned and the exemption
    applicant refrained from making any irreversible or irretrievable
    commitment of resources prohibited by subsection (d) of this
    section.
- (6) To the extent practicable within the time required for action under subsection (g) of this section, and except to the extent inconsistent with the requirements of this section, the consideration of any application for an exemption under this section and the conduct of any hearing under this subsection shall be in accordance with sections 554, 555, and 556 (other than subsection (b)(3) of section 556) of title 5.
- (7) Upon request of the Secretary, the head of any Federal agency is authorized to detail, on a nonreimbursable basis, any of the personnel of such agency to the Secretary to assist him in carrying out his duties under this section.
- (8) All meetings and records resulting from activities pursuant to this subsection shall be open to the public.

(h) Grant of exemption
- (1) The Committee shall make a final determination whether or not to grant an exemption within 30 days after receiving the report of the Secretary pursuant to subsection (g)(5) of this section. The Committee shall grant an exemption from the requirements of subsection (a)(2) of this section for an agency action if, by a vote of not less than five of its members voting in person -
  - (A) it determines on the record, based on the report of the
    Secretary, the record of the hearing held under subsection (g)(4)
    of this section and on such other testimony or evidence as it may
    receive, that -

(i) there are no reasonable and prudent alternatives to the
agency action;

(ii) the benefits of such action clearly outweigh the
benefits of alternative courses of action consistent with
conserving the species or its critical habitat, and such action
is in the public interest;

(iii) the action is of regional or national significance; and
(iv) neither the Federal agency concerned nor the exemption
applicant made any irreversible or irretrievable commitment of
resources prohibited by subsection (d) of this section; and
(B) it establishes such reasonable mitigation and enhancement
measures, including, but not limited to, live propagation,
transplantation, and habitat acquisition and improvement, as are
necessary and appropriate to minimize the adverse effects of the
agency action upon the endangered species, threatened species, or
critical habitat concerned. Any final determination by the Committee under this subsection shall be considered final agency action for purposes of chapter 7 of title 5.

(2)
- (A) Except as provided in subparagraph (B), an exemption for an agency action granted under paragraph (1) shall constitute a permanent exemption with respect to all endangered or threatened species for the purposes of completing such agency action -

(i) regardless whether the species was identified in the
biological assessment; and
(ii) only if a biological assessment has been conducted under
subsection (c) of this section with respect to such agency
action.
- (B) An exemption shall be permanent under subparagraph (A) unless -

(i) the Secretary finds, based on the best scientific and
commercial data available, that such exemption would result in
the extinction of a species that was not the subject of
consultation under subsection (a)(2) of this section or was not
identified in any biological assessment conducted under
subsection (c) of this section, and
(ii) the Committee determines within 60 days after the date of
the Secretary's finding that the exemption should not be
permanent. If the Secretary makes a finding described in clause (i), the Committee shall meet with respect to the matter within 30 days after the date of the finding.

(i) Review by Secretary of State; violation of international treaty
or other international obligation of United States
Notwithstanding any other provision of this chapter, the Committee shall be prohibited from considering for exemption any application made to it, if the Secretary of State, after a review of the proposed agency action and its potential implications, and after hearing, certifies, in writing, to the Committee within 60 days of any application made under this section that the granting of any such exemption and the carrying out of such action would be in violation of an international treaty obligation or other international obligation of the United States. The Secretary of State shall, at the time of such certification, publish a copy thereof in the Federal Register.
- (j) Exemption for national security reasons
  Notwithstanding any other provision of this chapter, the Committee shall grant an exemption for any agency action if the Secretary of Defense finds that such exemption is necessary for reasons of national security.
- (k) Exemption decision not considered major Federal action;
  environmental impact statement
  An exemption decision by the Committee under this section shall not be a major Federal action for purposes of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.): Provided, That an environmental impact statement which discusses the impacts upon endangered species or threatened species or their critical habitats shall have been previously prepared with respect to any agency action exempted by such order.
- (l) Committee order granting exemption; cost of mitigation and
  enhancement measures; report by applicant to Council on
  Environmental Quality
  - (1) If the Committee determines under subsection (h) of this section that an exemption should be granted with respect to any agency action, the Committee shall issue an order granting the exemption and specifying the mitigation and enhancement measures established pursuant to subsection (h) of this section which shall be carried out and paid for by the exemption applicant in implementing the agency action. All necessary mitigation and enhancement measures shall be authorized prior to the implementing of the agency action and funded concurrently with all other project features.
  - (2) The applicant receiving such exemption shall include the costs of such mitigation and enhancement measures within the overall costs of continuing the proposed action. Notwithstanding the preceding sentence the costs of such measures shall not be treated as project costs for the purpose of computing benefit-cost or other ratios for the proposed action. Any applicant may request the Secretary to carry out such mitigation and enhancement measures. The costs incurred by the Secretary in carrying out any such measures shall be paid by the applicant receiving the exemption. No later than one year after the granting of an exemption, the exemption applicant shall submit to the Council on Environmental Quality a report describing its compliance with the mitigation and enhancement measures prescribed by this section. Such a report shall be submitted annually until all such mitigation and enhancement measures have been completed. Notice of the public availability of such reports shall be published in the Federal Register by the Council on Environmental Quality.
- (m) Notice requirement for citizen suits not applicable
  The 60-day notice requirement of section 1540(g) of this title shall not apply with respect to review of any final determination of the Committee under subsection (h) of this section granting an exemption from the requirements of subsection (a)(2) of this section.
- (n) Judicial review
  Any person, as defined by section 1532(13) of this title, may obtain judicial review, under chapter 7 of title 5, of any decision of the Endangered Species Committee under subsection (h) of this section in the United States Court of Appeals for (1) any circuit wherein the agency action concerned will be, or is being, carried out, or (2) in any case in which the agency action will be, or is being, carried out outside of any circuit, the District of Columbia, by filing in such court within 90 days after the date of issuance of the decision, a written petition for review. A copy of such petition shall be transmitted by the clerk of the court to the Committee and the Committee shall file in the court the record in the proceeding, as provided in section 2112 of title 28. Attorneys designated by the Endangered Species Committee may appear for, and represent the Committee in any action for review under this subsection.
- (o) Exemption as providing exception on taking of endangered
  species
  Notwithstanding sections 1533(d) and 1538(a)(1)(B) and (C) of this title, sections 1371 and 1372 of this title, or any regulation promulgated to implement any such section -
  - (1) any action for which an exemption is granted under
    subsection (h) of this section shall not be considered to be a
    taking of any endangered species or threatened species with
    respect to any activity which is necessary to carry out such
    action; and
    (2) any taking that is in compliance with the terms and
    conditions specified in a written statement provided under
    subsection (b)(4)(iv) of this section shall not be considered to
    be a prohibited taking of the species concerned.
- (p) Exemptions in Presidentially declared disaster areas
  In any area which has been declared by the President to be a major disaster area under the Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.), the President is authorized to make the determinations required by subsections (g) and (h) of this section for any project for the repair or replacement of a public facility substantially as it existed prior to the disaster under section 405 or 406 of the Disaster Relief and Emergency Assistance Act (42 U.S.C. 5171 or 5172), and which the President determines (1) is necessary to prevent the recurrence of such a natural disaster and to reduce the potential loss of human life, and (2) to involve an emergency situation which does not allow the ordinary procedures of this section to be followed. Notwithstanding any other provision of this section, the Committee shall accept the determinations of the President under this subsection.