To amend the Endangered Species Act of 1973 to establish an Endangered Species Interagency Committee to review certain actions to determine whether exemptions from certain requirements of that Act should be granted for such actions. 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 Amendments of 1978". SEC. 2. Section 3 of the Endangered Species Act of 1973 (16 U.S.C. 1532) is amended (1) by inserting before paragraph (1) thereof the following new paragraph: "(1) The term 'alternative courses of action' means all alternatives and thus is not limited to original project objectives and agency jurisdiction."; (2) by inserting after paragraph (4) as redesignated by paragraph (7) of this section the following new paragraph: "(5)(A) The term 'critical habitat' for a threatened or endangered species means— Nov. 10, 1978 [S. 2899] Endangered 1978. note. (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 16 USC 1533. 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."; (3) by inserting after paragraph (6), as redesignated by paragraph (7) of this section the following new paragraph: "(7) The term 'Federal agency' means any department, agency, or instrumentality of the United States."; (4) by inserting after paragraph (10), as redesignated by paragraph (7) of this section, the following new paragraphs: "(11) The term 'irresolvable conflict' means, with respect to any action authorized, funded, or carried out by a Federal agency, a set of circumstances under which, after consultation as required in section 7(a) of this Act, completion of such action would (A) Post, p. 3752. jeopardize the continued existence of an endangered or threatened species, or (B) result in the adverse modification or destruction of a critical habitat. Infra. Review. 16 USC 1533. Statement and summary. "(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."; (5) by striking out paragraph (16), as redesignated by paragraph (7) of this section, and inserting in lieu thereof the following: "(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."; (6) by striking out paragraph (18), as redesignated by paragraph (7) of this section, and inserting in lieu thereof the following: "(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."; and (7) by redesignating paragraphs (1) through (3) as paragraphs (2) through (4), respectively, by redesignating paragraph (4) as paragraph (6), by redesignating paragraphs (5) through (7) as paragraphs (8) through (10), respectively, and by redesignating paragraphs (8) through (16) as paragraphs (13) through (21), respectively. SEC. 3. Section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1536) is amended to read as follows: "INTERAGENCY COOPERATION "SEC. 7. (a) CONSULTATION.-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. 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') does not 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 the 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. "(b) SECRETARY'S OPINION.-Consultation under subsection (a) with respect to any agency action shall be concluded within 90 days after the date on which initiated or within such other period of time as is mutually agreeable to the Federal agency and the Secretary. Promptly after the conclusion of consultation, the Secretary shall provide to the Federal agency concerned 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. The Secretary shall suggest those reasonable and prudent alternatives which he believes would avoid jeopardizing the continued existence of any endangered or threatened species or adversely modifying the critical habitat of such species, and which can be taken by the Federal agency or the permit or license applicant in implementing the agency action. "(c) BIOLOGICAL ASSESSMENT.-To facilitate compliance with the requirements of subsection (a), 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 is mutually agreed to by the Secretary and such agency) 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). "(d) LIMITATION ON COMMITMENT OF RESOURCES.-After initiation of consultation required under subsection (a), 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 avoid jeopardizing the continued existence of any endangered or threatened species or adversely modifying or destroying the critical habitat of any such species. Species Committee. "(e) (1) ESTABLISHMENT OF COMMITTEE.-There is established a Endangered 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) of this section for the action set forth in such application. review. "(3) The Committee shall be composed of seven members as follows: Membership. "(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 recommenda- Presidential tions received pursuant to subsection (g) (2) (B) shall appoint one appointment. individual from each affected State, as determined by the Secretary, to be a member of the Committee for the consideration of the Travel allowance. Quorum. Chairman. Meetings. 5 USC 552a note. Rules and egulations. Subpenas. 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 subpenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents. "(10) Except in the case of a member designated pursuant to paragraph (3) (G) of this subsection, no member shall designate any person to serve as his or her representative unless that person is, at the time of such designation, holding a Federal office the appointment to which is subject to the advice and consent of the United States Senate. 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 enact- Applications, ment of the Endangered Species Act Amendments of 1978, the Secre- submittal. tary 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) 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) of this section. "(g) APPLICATION FOR EXEMPTION AND CONSIDERATION BY REVIEW BOARD. (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), the Secretary's opinion under subsection (b) indicates that the agency action may jeopardize the continued existence of any endangered or threatened species or destroy or adversely modify the critical habitat of such species. An application for an exemption shall be considered initially by a review board in the manner provided in this subsection, and shall be considered by the Endangered Species Committee for a final determination under subsection (h) after a report is made by the review board. 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. 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 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 review board to be established under paragraph (3) and to the Endangered Species Committee for consideration of such application. Notification. Review board, “(3)(A) A review board shall be established for purposes of considering an application for exemption and submitting a report to the establishment. Endangered Species Committee under this subsection as follows: (i) One individual shall be appointed to the board by the Secretary not later than 15 days after an application is submitted pursuant to paragraph (2). "(ii) One individual shall be appointed to the board by the Appointment. President, not later than 30 days after an application is sub |