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) Any person to whom a certificate of exemption has been issued under
paragraph (4) of this subsection may apply to the Secretary for a renewal of such
exemption for a period not to exceed three years beginning on the expiration date of such
certificate. Such application shall be made in the same manner as the application for
exemption was made under paragraph (3), but without regard to subparagraph (A) of
such paragraph.

(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 original 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.

(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 (other than scrimshaw) which

(A) was made before 1830;

(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).

Regulations.

16 USC 6533. Pre-Act endangered species parts, sales contract,

validity.

16 USC 1533.

Documentation submittal, regulations.

Port

(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 designation (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—

consultation.

Ante, p. 3751.

16 USC 1533.

Infra.

Exemption.

Ante, p. 3752.

Project modifications.

(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) (1) Tellico and Grayrocks Projects.-Notwithstanding any other provision of this Act, the Committee shall, within 30 days of the date of the enactment of the Endangered Species Act Amendments of 1978, proceed to consider the exemption of the Tellico Dam and Reservoir Project and the Grayrocks Dam and Reservoir Project from the requirements of section 7(a). For the purposes of such consideration, the Committee shall grant an exemption to such projects if the criteria of section 7(h)(1)(A)(i) and 7(h)(1)(A)(ii) are met. A decision on any such exemption shall be made within 90 days after the date of the enactment of the Endangered Species Act Amendments of 1978. If no decision is made within such 90-day period, such project shall be deemed to be exempted from the requirements of section 7(a).

(2) Following the rendering of a biological opinion by the United States Fish and Wildlife Service concerning the effect, if any, of the operation of the Missouri Basin Power Project on endangered species or their critical habitat, the responsible officers of the Rural Electrification Administration, the Secretary of the Interior, and the Secretary of the Army, shall require such modifications in the operation or design of the project as they may determine are required to insure that actions authorized, funded, or carried out by them, relating to the Missouri Basin Power Project do not jeopardize the continued existence of such endangered species or result in the destruction or adverse modification of habitat of such species which is or has been determined to be critical by the Secretary of the Interior, after consultation as appropriate with the affected States.

(As amended by P.L. 94-359, 90 Stat. 911, July 12, 1976; P.L. 95-632, 92 Stat. 3751, November 10, 1978; and P.L. 96-159, 93 Stat. 1225, December 28, 1979)

Penalties and Enforcement

Sec. 11.

Notice; hearing.

80 Stat. 384.

(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), or (C), (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 $10,000 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 $5,000 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 authorized 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), or (C), (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 $20,000 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 $10,000 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. Upon the recommendation of the Secretary, the Secretary of the Treasury is authorized to pay an amount equal to one-half of the civil penalty or fine paid, but not to exceed $2,500, to any person who furnishes information which leads to a finding of civil violation or a conviction of a criminal violation of any provision of this Act or any regulation or permit issued thereunder. Any officer or employee of the United States or of any State or local government who furnishes information or renders service in the performance of his official duties shall not be eligible for payment under this section.

(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 person may make arrests without a warrant for any violation of this Act if he has reasonable grounds

65 Stat. 725; 72 Stat. 348.

Federal and State agencies, utilization.

Warrants.

Package

inspection.

Search and seizure, authority.

Jurisdiction.

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 this subsection; except that the Secretary may, in lieu of
holding such fish, wildlife, property, or item, permit the owner of 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, importing of any fish or wildlife or plants in violation of this Act, or 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.
(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.

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, 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.

(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. (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).

Intervention.

Litigation costs.

Injunctive

relief.

19 USC 1654.

(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 (21 U.S.C. 101-105, 111-135b, and 612-614) and section 306 of the 46 Stat. 689. 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, 46 Stat. 741. or exported to the United States in violation of the laws or regulations of a foreign country.

(As amended by P.L. 94-359, 90 Stat. 911, July 12, 1976; and P.L. 95-632, 92 Stat. 3751, November 10, 1978)

Endangered Plants

Sec. 12. The Secretary of the Smithsonian Institution, in conjunction with other affected agencies, is authorized and directed to review

(1) species of plants which are now or may become endangered or threatened and (2) methods of adequately conserving such species, and to report to Congress, within one year after the date of the enactment of this Act, the results of such review including recommendations for new legislation or the amendment of existing legislation.

Report to
Congress.

Sec. 13.

Conforming Amendments

(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 Ante, p. 886. 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."

80 Stat. 929.

(b) Subsection 10(a) of the Migratory Bird Conservation Act (45 Stat. 1224, 16 U.S.C. 7151(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 80 Stat. 930. 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:

78 Stat. 897;

86 Stat. 459.