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<br />ENDANGERED SPECIES ACT OF 1973, Endangered Sp...(J02572 Page 21 of44 <br /> <br />(ii), and (iii). The denial of an application under subparagraph (B) shall be considered <br />final agency action for purposes of chapter 7 of title 5, United States Code. <br />(4) If the Secretary determines that the Federal agency concerned and the exemption <br />applicant have met the requirements set forth in paragraph (3)(A) (i), (ii) and (iii) he <br />shall, in consultation with the Members of the Committee, hold a hearing on the <br />application for exemption in accordance with sections 554, 555, and 556 (other than <br />subsection (b) (I) and (2) thereof) of title 5, United States Code, and prepare the <br />report to be submitted pursuant to paragraph (5). <br />(5) Within 140 days after making the determinations under paragraph (3) or within <br />such other period of time as is mutually agreeable to the exemption applicant and the <br />Secretary, the Secretary shall submit to the Committee a report discussing- <br />(A) the availability of reasonable and prudent alternatives to the agency action, and <br />the nature and extent of the benefits ofthe agency action and of alternative courses of <br />action consistent with conserving the species of the critical habitat; <br />(B) a summary of the evidence concerning whether or not the agency action is in the <br />public interest and is of national or regional significance; <br />(C) appropriate reasonable mitigation and enhancement measures which should be <br />considered by the Committee; and <br />(D) whether the Federal agency concerned and the exemption applicant refrained <br />from making any irreversible or irretrievable commitment of resources prohibited by <br />subsection (d). <br />(6) To the extent practicable within the time required for action under subsection (g) <br />of this section, and except to the extent inconsistent with the requirements of this <br />section, the consideration of any application for an exemption under this section and <br />the conduct of any hearing under this subsection shall be in accordance with sections <br />554,555, and 556 (other than subsection (b)(3) of section 556) of title 5, United <br />States Code. <br />(7) Upon request of the Secretary, the head of any Federal agency is authorized to <br />detail, on a nonreimbursable basis, any of the personnel of such agency to the <br />Secretary to assist him in carrying out his duties under this section. <br />(8) All meetings and records resulting from activities pursuant to this subsection shall <br />be open to the public. <br /> <br />(h) EXEMPTION.- <br />(I) The Committee shall make a final determination whether or not to grant an <br />exemption within 30 days after receiving the report of the Secretary pursuant to <br />subsection (g)(5). The Committee shall grant an exemption from the requirements of <br />subsection (a)(2) for an agency action if, by a vote of not less than five of its <br />members voting in person- <br />(A) it determines on the record, based on the report of the Secretary, the record of the <br />hearing held under subsection (g)(4), and on such other testimony or evidence as it <br />may receive, that- <br />(i) there are no reasonable and prudent alternatives to the agency action; <br />(ii) the benefits of such action clearly outweigh the benefits of alternative courses of <br />action consistent with conserving the species or its critical habitat, and such action is <br />in the public interest; <br />(iii) the action is ofregional or national significance; and <br /> <br />http://www.fws.gov/-r9endspp/esa.html <br /> <br />9/30/97 <br />