Endangered Species Act Amendments of 1982
PL 97-304 (H.R.6133), enacted 10/13/1982

PUBLIC LAW 97-304—OCT. 13, 1982 
96 STAT. 1411 
Public Law 97-304 
97th Congress 
An Act 
To authorize appropriations to carry out the provisions of the Endangered Species 
Act of 1973 for fiscal years 1983, 1984, and 1985, and for other purposes. 
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 1982". 
SEC. 2. LISTING PROCESS. 
(a) Section 4 of the Endangered Species Act of 1973 (16 U.S.C. 
1533) is amended as follows: 
(1) Subsection (a) is amended— 
(A) by redesignating subparagraphs (1) through (5) of 
paragraph 
(1) 
as 
subparagraphs 
(A) 
through 
(E), 
respectively; 
(B) by amending that part of paragraph (1) which pre-
cedes subparagraph (A) (as so redesignated) by inserting 
"promulgated in accordance with subsection (b)" immedi-
ately after "shall by regulation"; 
(C) by striking out "sporting," in paragraph (1)(B) (as so 
redesignated) and inserting in lieu thereof "recreational,"; 
(D) by striking out the last two sentences in paragraph 
(1); and 
(E) by adding at the end thereof the following new 
paragraph: 
"(3) The Secretary, by regulation promulgated in accordance with 
subsection 
(b) and 
to 
the 
maximum 
extent 
prudent 
and 
determinable— 
"(A) 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 
"(B) may, from time-to-time thereafter as appropriate, revise 
such designation.". 
(2) Subsection (b) is amended to read as follows: 
"(b) BASIS FOR DETERMINATIONS.—(1)(A) The Secretary shall make 
determinations required by subsection (a)(1) 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 consider-
ation to species which have been— 
"(i) designated as requiring protection from unrestricted com-
merce by any foreign nation, or pursuant to any international 
agreement; or 
Oct. 13, 1982 
[H.R. 6133] 
Endangered 
Species Act 
Amendments of 
1982. 
16 u s e 1531 
note. 
Regulations. 
96 STAT. 1412 
PUBLIC LAW 97-304—OCT. 13, 1982 
Petition, 
findings. 
Review. 
Publications in 
Federal 
Register. 
"(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 conserva-
tion of fish or wildlife or plants. 
"(2) The Secretary shall designate critical habitat, and make 
revisions thereto, under subsection (aX3) on the basis of the best 
scientific data available and after taking into consideration the 
economic impact, 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, United States Code, to add a species to, or to remove a species 
from, either of the lists published under subsection (c), 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 pub-
lish 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 indicat-
ing 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) 
and to remove from such lists species for which the protec-
tions of the Act are no longer necessary, 
in which case the Secretary shall promptly publish such finding 
in the Federal Register, together with a description and evaJua-
tion 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 resubmit-
ted to the Secretary under subparagraph (A) on the date of such 
finding and that presents substantial scientific or commercial infor-
mation that the petitioned action may be warranted. 
PUBLIC LAW 97-304—OCT. 13, 1982 
96 STAT. 1413 
"(ii) Any negative finding described in subparagraph (A) and any 
finding described in subparagraph (B)(i) or (iii) shall be subject to 
judicial review. 
"(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, United States Code, to revise a critical habitat designation, 
the Secretary shall make a finding as to whether the petition 
presents substantial scientific information indicating that the revi-
sion 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 deter-
mine 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, United States Code (relating 
to rulemaking procedures), shall apply to any regulation promul-
gated to carry out the purposes of this Act. 
"(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), 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 (includ-
ing 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 Secre-
tary 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 profes-
sional 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 regula-
tion 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 endan-
gered 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. 
Judicial review. 
Petition, 
findings. 
Publications in 
Federal 
Register. 
Notice. 
Hearings. 
Publication in 
Federal 
Register. 
96 STAT. 1414 
PUBLIC LAW 97-304—OCT. 13, 1982 
Additional 
information, 
extension period. 
Judicial 
review. 
Publication in 
Federal 
Register. 
"(Ill) notice that such one-year period is being extended 
under subparagraph (B)(i), or 
"(IV) notice that the proposed regulation is being with-
drawn 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 disagree-
ment 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 endan-
gered 
species or 
a 
threatened 
species shall 
be 
published 
concurrently with the final regulation implementing the determina-
tion 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 pub-
lished; or 
"(ii) critical habitat of such species is not then determinable, 
in which case the Secretary, with respect to the proposed regu-
lation 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, United States Code, shall apply to any regulation 
issued by the Secretary in regard to any emergency posing a signifi-
cant risk to the well-being of any species of fish or wildlife or plants, 
but only i
f
— 
PUBLIC LAW 97-304—OCT. 13, 1982 
96 STAT. 1415 
"(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 deter-
mines, 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 Act shall include a summary by the Secretary of the 
data on which such regulation is based and shall show the relation-
ship 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.". 
(3) Subsection (c) is amended— 
(A) by amending paragraph (1) by striking out ", and from 
time to time he may by regulation revise," in the first 
sentence thereof, and by adding at the end thereof the 
following new sentence: "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).", 
(B) by striking out paragraphs (2) and (3) thereof; and 
(C) by redesignating paragraph (4) thereof as paragraph 
(2). 
(4) Such section 4 is further amended— 
(A) by amending subsection (d) by striking out "section 
6(a)" and inserting in lieu thereof "section 6(c)"; 
(B) by striking out subsection (f) thereof; 
(C) by redesignating subsections (g) and (h) as subsections 
(f) and (g), respectively; 
(D) by amending the second sentence of subsection (f) (as 
redesignated by subparagraph (O) by striking out "recovery 
plans," and inserting in lieu thereof "recovery plans (1) 
shall, to the maximum extent practicable, give priority to 
those endangered species or threatened species most likely 
to benefit from such plans, particularly those species that 
are, or may be, in conflict with construction or other devel-
opmental projects or other forms of economic activity, and 
(2)"; 
(E) by amending subsection (g) (as redesignated by sub-
paragraph (C))— 
Publication in 
Federal 
Register. 
Regulations, 
effective date. 
Data summary. 
16 u s e 1533. 
96 STAT. 1416 
PUBLIC LAW 97-304—OCT. 13, 1982 
Comments. 
Written 
statement to 
agency. 
16 u s e 1533 
note. 
Ante, p. 1411. 
Restrictions. 
(i) by striking out "subsection (c)(2)" in paragraph (1) 
and inserting in lieu thereof "subsection (b)(3)", 
(ii) by striking out "for listing" in paragraph (3) and 
inserting in lieu thereof "under subsection (a)(1) of this 
section", and 
(iii) by striking out "subsection (g)" in paragraph (4) 
and inserting in lieu thereof "subsection (D"; and 
(F) by inserting at the end thereof the following new 
subsection: 
"(h) 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) 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), 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.". 
(b)(1) Any petition filed under section 4(c)(2) of the Endangered 
Species Act of 1973 (as in effect on the day before the date of the 
enactment of this Act) and any regulation proposed under section 
4(f) of such Act of 1973 (as in effect on such day) that is pending on 
such date of enactment shall be treated as having been filed or 
proposed on such date of enactment under section 4(b) of such Act of 
1973 (as amended by subsection (a)); and the procedural require-
ments specified in such section 4(b) (as so amended) regarding such 
petition or proposed regulation shall be deemed to be complied with 
to the extent that like requirements under such section 4 (as in 
effect before the date of the enactment of this Act) were complied 
with before such date of enactment. 
(2) Any regulation proposed after, or pending on, the date of the 
enactment of this Act to designate critical habitat for a species that 
was determined before such date of enactment to be endangered or 
threatened shall be subject to the procedures set forth in section 4 of 
such Act of 1973 (as amended by subsection (a)) for regulations 
proposing revisions to critical habitat instead of those for regula-
tions proposing the designation of critical habitat. 
(3) Any list of endangered species or threatened species (as in 
effect under section 4(c) of such Act of 1973 on the day before the 
date of the enactment of this Act) shall remain in effect unless and 
until determinations regarding species and designations and revi-
sions of critical habitats that require changes to such list are made 
in accordance with subsection (b)(5) of such Act of 1973 (as added by 
subsection (a)). 
(4) Section 4(a)(3)(A) of such Act of 1973 (as added by subsection (a)) 
shall not apply with respect to any species which was listed as an 
endangered species or a threatened species before November 10, 
1978. 
SEC. 3. COOPERATION WITH THE STATES. 
Section 6 of the Endangered Species Act of 1973 (16 U.S.C. 1535) is 
amended— 
(1) by striking out "66% per centum" in subsection (d)(2)(i) 
thereof and inserting in lieu thereof "75 percent"; and 
(2) by striking out "75 per centum" in subsection (d)(2)(ii) 
thereof and inserting in lieu thereof "90 percent". 
PUBLIC LAW 97-304—OCT. 13, 1982 
96 STAT. 1417 
SEC. 4. INTERAGENCY COOPERATION AND COMMITTEE EXEMPTIONS. 
(a) Section 7 of the Endangered Species Act of 1973 (16 U.S.C. 
1536) is amended as follows: 
(1) Subsection (a) is amended by redesignating paragraph (3) 
as paragraph (4), and by inserting immediately after paragraph 
(2) the following new paragraph: 
"(3) Subject to such guidelines as the Secretary may establish, a 
Federal agency shall consult with the Secretary on any prospective 
agency action at the request of, and in cooperation with, the prospec-
tive permit or license applicant if the applicant has reason to believe 
that an endangered species or a threatened species may be present 
in the area affected by his project and that implementation of such 
action will likely affect such species.". 
(2) Subsection (b) is amended to read as follows: 
"(b) OPINION OF SECRETARY.—(1)(A) Consultation under subsection 
(a)(2) with respect to any agency action shall be concluded within 
the 90-day period beginning on the date on which initiated or, 
subject to subparagraph (B), within such other period of time as is 
mutually agreeable to the Secretary and the Federal agency. 
"(B) In the case of an agency action involving a permit or license 
applicant, the Secretary and the Federal agency may not mutually 
agree to conclude consultation within a period exceeding 90 days 
unless the Secretary, before the close of the 90th day referred to in 
subparagraph (A)— 
"(i) if the consultation period proposed to be agreed to will end 
before the 150th day after the date on which consultation was 
initiated, submits to the applicant a written statement setting 
forth— 
"(I) the reasons why a longer period is required, 
"(II) the information that is required to complete the 
consultation, and 
"(III) the estimated date on which consultation will be 
completed; or 
"(ii) if the consultation period proposed to be agreed to will 
end 150 or more days after the date on which consultation was 
initiated, obtains the consent of the applicant to such period. 
The Secretary and the Federal agency may mutually agree to 
extend a consultation period established under the preceding sen-
tence if the Secretary, before the close of such period, obtains the 
consent of the applicant to the extension. 
"(2) Consultation under subsection (a)(3) shall be concluded within 
such period as is agreeable to the Secretary, the Federal agency, and 
the applicant concerned. 
"(3)(A) Promptly after conclusion of consultation under paragraph 
(2) or (3) of subsection (a), the Secretary shall provide to the Federal 
agency and the applicant, if any, 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. If jeopardy or adverse modification is 
found, the Secretary shall suggest those reasonable and prudent 
alternatives which he believes would not violate subsection (a)(2) 
and can be taken by the Federal agency or applicant in implement-
ing the agency action. 
"(B) Consultation under subsection (a)(3), and an opinion issued by 
the Secretary incident to such consultation, regarding an agency 
action shall be treated respectively as a consultation under subsec-
Consultation 
period. 
Review and 
notification. 
96 STAT. 1418 
PUBLIC LAW 97-304—OCT. 13, 1982 
Written 
statement to 
agency. 
Submittal to 
Secretary. 
"Final agency 
action." 
tion (a)(2), and as an opinion issued after consultation under such 
subsection, regarding that action if the Secretary reviews the action 
before it is commenced by the Federal agency and finds, and notifies 
such agency, that no significant changes have been made with 
respect to the action and that no significant change has occurred 
regarding the information used during the initial consultation. 
"(4) If after consultation under subsection (a)(2), the Secretary 
concludes that— 
"(A) the agency action will not violate such subsection, or 
offers reasonable and prudent alternatives which the Secretary 
believes would not violate such subsection; and 
"(B) the taking of an endangered species or a threatened 
species incidental to the agency action will not violate such 
subsection; 
the Secretary shall provide the Federal agency and the applicant 
concerned, if any, with a written statement that— 
"(i) specifies the impact of such incidental taking on the 
species, 
"(ii) specifies those reasonable and prudent measures that the 
Secretary considers necessary or appropriate to minimize such 
impact, and 
"(iii) sets forth the terms and conditions (including, but not 
limited to, reporting requirements) that must be complied with 
by the Federal agency or applicant (if any), or both, to imple-
ment the measures specified under clause (ii).". 
(3) Subsection (c) is amended by amending the penultimate 
sentence in paragraph (1) by inserting ", except that if a permit 
or license applicant is involved, the 180-day period may not be 
extended unless such agency provides the applicant, before the 
close of such period, with a written statement setting forth the 
estimated length of the proposed extension and the reasons 
therefor" 
immediately 
after 
"agency" 
and 
before 
the 
parenthesis. 
(4) Subsection (e)(10) is amended by striking out the first 
sentence thereof. 
(5) Subsection (g) is amended as follows: 
(A) The sideheading is amended to read as follows: 
"APPLICATION 
FOR 
EXEMPTION 
AND 
REPORT 
TO 
THE 
COMMITTEE.—". 
(B) The second sentence of paragraph (1) is amended to 
read as follows: "An application for an exemption shall be 
considered initially by the Secretary in the manner pro-
vided for in this subsection, and shall be considered by the 
Committee for a final determination under subsection (h) 
after a report is made pursuant to paragraph (5).". 
(C) Paragraph (2) is amended— 
(i) by striking out the first sentence of subparagraph 
(A) and inserting in lieu thereof the following: "An 
exemption applicant shall submit a written application 
to the Secretary, in a form prescribed under subsection 
(f), 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 con-
cerned takes final agency action with respect to the 
issuance of the permit or license. For purposes of the 
PUBLIC LAW 97-304—OCT. 13, 1982 
96 STAT. 1419 
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 admin-
istrative 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."; and 
(ii) by amending subparagraph (B)— 
(I) 
by 
inserting 
"(i)" 
immediately 
after 
"promptly", 
(II) by striking out "to the review board to be 
established under paragraph (3) and", and 
(III) by inserting "; 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" immediately before the 
period. 
(D) Paragraphs (3), (4), (9), and (11) are repealed. 
(E) Paragraph (5) is redesignated as paragraph (3) and is 
further amended to read as follows: 
"(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) in good faith and made a reasonable and 
responsible effort to develop and fairly consider modifica-
tions or reasonable and prudent alternatives to the pro-
posed agency action which would not violate subsection 
(a)(2); 
"(ii) conducted any biological assessment required by sub-
section (c); and 
"(iii) to the extent determinable within the time provided 
herein, refrained from making any irreversible or irretriev-
able commitment of resources prohibited by subsection (d); 
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 consid-
ered final agency action for purposes of chapter 7 of title 5, United 
States Code.". 
(F) Paragraph (6) is redesignated as paragraph (4) and is 
further amended to read as follows: 
"(4) If the Secretary determines that the Federal agency con-
cerned 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 applica-
tion for exemption in accordance with sections 554, 555, and 556 
(other than subsection (b)(1) and (2) thereof) of title 5, United States 
Code, and prepare the report to be submitted pursuant to paragraph 
(5).". 
(G) Paragraph (7) is redesignated as paragraph (5) and is 
further amended— 
Publication in 
Federal 
Register. 
Application, 
determination. 
5 u s e 701 et seq. 
Hearings. 
Report to 
Committee. 
96 STAT. 1420 
PUBLIC LAW 97-304—OCT. 13, 1982 
(i) by striking out that part which precedes subpara-
graph (A) and inserting in lieu thereof "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 Secre-
tary, the Secretary shall submit to the Committee a 
report discussing—"; 
(ii) by striking out the period immediately after "by 
the Committee" in subparagraph (C) and inserting in 
lieu thereof "; and"; and 
(iii) by adding at the end thereof the following: 
"(D) whether the Federal agency concerned and the exemp-
tion applicant refrained from making any irreversible or irre-
trievable commitment of resources prohibited by subsection 
(d).". 
(H) Paragraph (8) is redesignated as paragraph (6). 
(I) Paragraph (10) is redesignated as paragraph (7) and is 
amended to read as follows: 
"(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.". 
(J) Paragraph (12) is redesignated as paragraph (8) and is 
further amended by striking out "of review boards" and 
inserting in lieu thereof "resulting from activities pursuant 
to this subsection". 
(6) Subsection (h)(1) is amended— 
(A) by striking out "90 days of receiving the report of the 
review board under subsection (g)(7)" in the matter preced-
ing subparagraph (A) and inserting in lieu thereof "30 days 
after receiving the report of the Secretary pursuant to 
subsection (g)(5)"; 
(B) by striking out "review board" in subparagraph (A) 
and inserting in lieu thereof "Secretary, the record of the 
hearing held under subsection (g)(4)"; 
(C) by striking out "and" at the end of subparagraph 
(A)(ii); 
(D) by inserting immediately after subparagraph (A)(iii) 
the following: 
"(iv) neither the Federal agency concerned nor the 
exemption applicant made any irreversible or irretrievable 
commitment of resources prohibited by subsection (d); and". 
(7) Subsection (o) is amended to read as follows: 
16 use 1533. 
"(o) Notwithstanding sections 4(d) and 9(a)(1)(B) and (C) or any 
^^^^- 
regulation promulgated to implement either such section— 
"(1) any action for which an exemption is granted under 
subsection (h) 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 sub-
section (b)(4)(iii) shall not be considered to be a taking of the 
species concerned.", 
(b) Paragraph (11) of section 3 of the Endangered Species Act of 
1973 (16 U.S.C. 1532(11)) is repealed. 
PUBLIC LAW 97-304—OCT. 13, 1982 
96 STAT. 1421 
SEC. 5. CONVENTION IMPLEMENTATION. 
Section 8A of the Endangered Species Act of 1973 (16 U.S.C. 1537a) 
is amended— 
(1) by amending subsection (c) by inserting "(1)" immediately 
after "SCIENTIFIC AUTHORITY FUNCTIONS.—", and by adding at 
the end thereof the following new paragraph: 
"(2) The Secretary shall base the determinations and advice given 
by him under Article IV of the Convention with respect to wildlife 
upon the best available biological information derived from profes-
sionally accepted wildlife management practices; but is not required 
to make, or require any State to make, estimates of population size 
in making such determinations or giving such advice."; 
(2) by amending subsection (d) to read as follows: 
"(d) RESERVATIONS BY THE UNITED STATES UNDER CONVENTION.—If 
the United States votes against including any species in Appendix I 
or II of the Convention and does not enter a reservation pursuant to 
paragraph (3) of Article XV of the Convention with respect to that 
species, the Secretary of State, before the 90th day after the last day 
on which such a reservation could be entered, shall submit to the 
Committee on Merchant Marine and Fisheries of the House of 
Representatives, and to the Committee on the Environment and 
Public Works of the Senate, a written report setting forth the 
reasons why such a reservation was not entered."; and 
(3) by amending subsection (e) to read as follows: 
"(e) WILDLIFE PRESERVATION IN WESTERN HEMISPHERE.—(1) 
The 
Secretary of the Interior (hereinafter in this subsection referred to 
as the 'Secretary'), in cooperation with the Secretary of State, shall 
act on behalf of, and represent, the United States in all regards as 
required by the Convention on Nature Protection and Wildlife 
Preservation in the Western Hemisphere (56 Stat. 1354, T.S. 982, 
hereinafter in this subsection referred to as the 'Western Conven-
tion'). In the discharge of these responsibilities, the Secretary and 
the Secretary of State shall consult with the Secretary of Agricul-
ture, the Secretary of Commerce, and the heads of other agencies 
with respect to matters relating to or affecting their areas of 
responsibility. 
"(2) The Secretary and the Secretary of State shall, in cooperation 
with the contracting parties to the Western Convention and, to the 
extent feasible and appropriate, with the participation of State 
agencies, take such steps as are necessary to implement the Western 
Convention. Such steps shall include, but not be limited to— 
"(A) cooperation with contracting parties and international 
organizations for the purpose of developing personnel resources 
and programs that will facilitate implementation of the West-
ern Convention; 
"(B) identification of those species of birds that migrate be-
tween the United States and other contracting parties, and the 
habitats upon which those species depend, and the implementa-
tion of cooperative measures to ensure that such species will not 
become endangered or threatened; and 
"(C) identification of measures that are necessary and appro-
priate to implement those provisions of the Western Convention 
which address the protection of wild plants. 
"(3) No later than September 30, 1985, the Secretary and the 
Secretary of State shall submit a report to Congress describing those 
steps taken in accordance with the requirements of this subsection 
Report to 
congressional 
committees. 
T.S. 981. 
Report to 
Congress. 
96 STAT. 1422 
PUBLIC LAW 97-304—OCT. 13, 1982 
Effective date. 
16 u s e 1537a 
note. 
16 u s e 1538. 
Post, p. 1424. 
Permit issuance. 
Conservation 
plan. 
and identifying the principal remaining actions yet necessary for 
comprehensive and effective 
implementation of the Western 
Convention. 
"(4) The provisions of this subsection shall not be construed as 
affecting the authority, jurisdiction, or responsibility of the several 
States to manage, control, or regulate resident fish or wildlife under 
State law or regulations.". 
(b) The amendment made by paragraph (1) of subsection (a) shall 
take effect January 1,1981. 
SEC. 6. EXPERIMENTAL POPULATIONS AND OTHER EXCEPTIONS. 
Section 10 of the Endangered Species Act of 1973 (16 U.S.C. 1539) 
is amended as follows: 
(1) Subsection (a) is amended to read as follows: 
"(a) PERMITS.—(1) The Secretary may permit, under such terms 
and conditions as he shall prescribe— 
"(A) any act otherwise prohibited by section 9 for scientific 
purposes or to enhance the propagation or survival of the 
affected species, including, but not limited to, acts necessary for 
the establishment and maintenance of experimental popula-
tions pursuant to subsection (j); or 
"(B) any taking otherwise prohibited by section 9(a)(1)(B) if 
such taking is incidental to, and not the purpose of, the carrying 
out of an otherwise lawful activity. 
"(2)(A) No permit may be issued by the Secretary authorizing any 
taking referred to in paragraph (1)(B) unless the applicant therefor 
submits to the Secretary a conservation plan that specifies— 
"(i) the impact which will likely result from such taking; 
"(ii) what steps the applicant will take to minimize and 
mitigate such impacts, and the funding that will be available to 
implement such steps; 
"(iii) what alternative actions to such taking the applicant 
considered and the reasons why such alternatives are not being 
utilized; and 
"(iv) such other measures that the Secretary may require as 
being necessary or appropriate for purposes of the plan. 
"(B) If the Secretary finds, after opportunity for public comment, 
with respect to a permit application and the related conservation 
plan that— 
"(i) the taking will be incidental; 
"(ii) the applicant will, to the maximum extent practicable, 
minimize and mitigate the impacts of such taking; 
"(iii) the applicant will ensure that adequate funding for the 
plan will be provided; 
"(iv) the taking will not appreciably reduce the likelihood of 
the survival and recovery of the species in the wild; and 
"(v) the measures, if any, required under subparagraph (A)(iv) 
will be met; 
and he has received such other assurances as he may require that 
the plan will be implemented, the Secretary shall issue the permit. 
The permit shall contain such terms and conditions as the Secretary 
deems necessary or appropriate to carry out the purposes of this 
paragraph, including, but not limited to, such reporting require-
ments as the Secretary deems necessary for determining whether 
such terms and conditions are being complied with. 
PUBLIC LAW 97-304—OCT. 13, 1982 
96 STAT. 1423 
"(C) The Secretary shall revoke a permit issued under this para-
graph if he finds that the permittee is not complying with the terms 
and conditions of the permit.". 
(2) Subsection (d) is amended by striking out "subsections (a)" 
and inserting in lieu thereof "subsections (a)(1)(A)". 
(8) Subsection (f) is amended— 
(A) by amending paragraph (1)(B) by inserting "substan-
tial" immediately before "etching" and before "carving", 
and by adding at the end thereof the following new sen-
tence: "For purposes of this subsection, polishing or the 
adding of minor superficial markings does not constitute 
substantial etching, engraving, or carving."; and 
(B) by adding at the end thereof the following new 
paragraph: 
"(9)(A) The Secretary shall carry out a comprehensive review of 
the effectiveness of the regulations prescribed pursuant to para-
graph (5) of this subsection— 
"(i) in insuring that pre-Act finished scrimshaw products, or 
the raw materials for such products, have been adequately 
accounted for and not disposed of contrary to the provisions of 
this Act; and 
"(ii) in preventing the commingling of unlawfully imported or 
acquired marine mammal products with such exempted prod-
ucts either by persons to whom certificates of exemption have 
been issued under paragraph (4) of this subsection or by subse-
quent purchasers from such persons. 
"(B) In conducting the review required under subparagraph (A), 
the Secretary shall consider, but not be limited to— 
"(i) the adequacy of the reporting and records required of 
exemption holders; 
"(ii) the extent to which such reports and records are subject 
to verification; 
"(iii) methods for identifying individual pieces of scrimshaw 
products and raw materials and for preventing commingling of 
exempted materials from those not subject to such exemption; 
and 
"(iv) the retention of unworked materials in controUed-access 
storage. 
The Secretary shall submit a report of such review to the Committee 
on Merchant Marine and Fisheries of the House of Representatives 
and the Committee on the Environment and Public Works of the 
Senate and make it available to the general public. Based on such 
review, the Secretary shall, on or before October 1, 1983, propose 
and adopt such revisions to such regulations as he deems necessary 
and appropriate to carry out this paragraph. Upon publication of 
such revised regulations, the Secretary may renew for a further 
period of not to exceed three years any certificate of exemption 
previously renewed under paragraph (8) of this subsection, subject to 
such new terms and conditions as are necessary and appropriate 
under the revised regulations; except that any certificate of exemp-
tion that would, but for this clause, expire on or after the date of 
enactment of this paragraph and before the date of the adoption of 
such regulations may be extended until such time after the date of 
adoption as may be necessary for purposes of applying such regula-
tions to the certificate. Notwithstanding the foregoing, however, no 
person may, after January 31,1984, sell or offer for sale in interstate 
or foreign commerce any pre-Act finished scrimshaw product unless 
Permit 
revocation. 
Review. 
Report to 
congressional 
committees. 
Public 
availability. 
Certificate of 
exemption, 
renewal. 
96 STAT. 1424 
PUBLIC LAW 97-304—OCT. 13, 1982 
Effective date. 
16 use 1539 
note. 
Release of 
endangered 
species. 
16 use 1536. 
such person has been issued a vaUd certificate of exemption by the 
Secretary under this subsection and unless such product or the raw 
material for such product was held by such person on the date of the 
enactment of this paragraph.". 
(4)(A) Subsection (h)(1) is amended— 
(i) by striking out "(other than scrimshaw)"; and 
(ii) by amending subparagraph (A) to read as follows: 
"(A) is not less than 100 years of age; ". 
(B) The amendment made by subparagraph (A) shall take 
effect January 1,1981. 
(5) Subsection (i) is amended to read as follows: 
"(i) NONCOMMERCIAL TRANSSHIPMENTS.—Any importation into the 
United States of fish or wildlife shall, if— 
"(1) such fish or wildlife was lawfully taken and exported 
from the country of origin and country of reexport, if any; 
"(2) such fish or wildlife is in transit or transshipment 
through any place subject to the jurisdiction of the United 
States en route to a country where such fish or wildlife may be 
lawfully imported and received; 
"(3) the exporter or owner of such fish or wildlife gave explicit 
instructions not to ship such fish or wildlife through any place 
subject to the jurisdiction of the United States, or did all that 
could have reasonably been done to prevent transshipment, and 
the circumstances leading to the transshipment were beyond 
the exporter's or owner's control; 
"(4) the applicable requirements of the Convention have been 
satisfied; and 
"(5) such importation is not made in the course of a commer-
cial activity, 
be an importation not in violation of any provision of this Act or any 
regulation issued pursuant to this Act while such fish or wildlife 
remains in the control of the United States Customs Service.". 
(6) At the end thereof insert the following new subsection: 
"(j) EXPERIMENTAL POPULATIONS.—(1) For purposes of this subsec-
tion, the term 'experimental population' means any population 
(including any offspring arising solely therefrom) authorized by the 
Secretary for release under paragraph (2), but only when, and at 
such times as, the population is wholly separate geographically from 
nonexperimental populations of the same species. 
"(2XA) The Secretary may authorize the release (and the related 
transportation) of any population (including eggs, propagules, or 
individuals) of an endangered species or a threatened species outside 
the current range of such species if the Secretary determines that 
such release will further the conservation of such species. 
"(B) Before authorizing the release of any population under sub-
paragraph (A), the Secretary shall by regulation identify the popula-
tion and determine, on the basis of the best available information, 
whether or not such population is essential to the continued exist-
ence of an endangered species or a threatened species. 
"(C) For the purposes of this Act, each member of an experimental 
population shall be treated as a threatened species; except that— 
"(i) solely for purposes of section 7 (other than subsection 
(aXl) thereof), an experimental population determined under 
subparagraph (B) to be not essential to the continued existence 
of a species shall be treated, except when it occurs in an area 
within the National Wildlife Refuge System or the National 
PUBLIC LAW 97-304—OCT. 13, 1982 
96 STAT. 1425 
Park System, as a species proposed to be listed under section 4; Ante, p. I4il. 
and 
"(ii) critical habitat shall not be designated under this Act for 
any experimental population determined under subparagraph 
(B) to be not essential to the continued existence of a species. 
"(3) The Secretary, with respect to populations of endangered 
species or threatened species that the Secretary authorized, before 
the date of the enactment of this subsection, for release in geograph-
ical areas separate from the other populations of such species, shall 
determine by regulation which of such populations are an experi-
mental population for the purposes of this subsection and whether 
or not each is essential to the continued existence of an endangered 
species or a threatened species.". 
SEC. 7. ENFORCEMENT. 
Section 11 of the Endangered Species Act of 1973 (16 U.S.C. 1540) 
is amended as follows: 
(1) Subsection (e) is amended by adding at the end thereof the 
following new paragraph: 
"(6) The Attorney General of the United States may seek to enjoin 
any person who is alleged to be in violation of any provision of this 
Act or regulation issued under authority thereof". 
(2) Subsection (g) is amended— 
(A) by amending paragraph (1)— 
(i) by striking out "any State," in subparagraph (B) 
and inserting in lieu thereof "any State; or", 
(ii) by inserting immediately after subparagraph (B) 
the following new subparagraph: 
"(C) against the Secretary where there is alleged a failure of 
the Secretary to perform any act or duty under section 4 which 
Ante, p. 1411. 
is not discretionary with the Secretary.", and 
(iii) by amending the first sentence following subpar-
agraph (C) (as added by clause (ii) of this subpara-
graph), by inserting "or to order the Secretary to 
perform such act or duty," immediately after "any such 
provision or regulation,"; and 
(B) by amending paragraph (2) by adding the following 
new subparagraph immediately after subparagraph (B) 
thereof: 
"(C) No action may be commenced under subparagraph (1)(C) of Written 
this section prior to sixty days after written notice has been given to 
notification. 
the Secretary; except that such action may be brought immediately 
after such notification in the case of an action under this section 
respecting an emergency posing a significant risk to the well-being 
of any species offish or wildlife or plants.". 
SEC. 8. AUTHORIZATION OF APPROPRIATIONS. 
Section 15 of the Endangered Species Act of 1973 (16 U.S.C. 1542) 
is amended to read as follows: 
"AUTHORIZATION OF APPROPRIATIONS 
"SEC. 15. (a) IN GENERAL.—Except as provided in subsections (b), 
(c), and (d), there are authorized to be appropriated— 
"(1) not to exceed $27,000,000 for each of fiscal years 1983, 
1984, and 1985 to enable the Department of the Interior to carry 
96 STAT. 1426 
PUBLIC LAW 97-304—OCT. 13, 1982 
out such functions and responsibilities as it may have been 
given under this Act; 
"(2) not to exceed $3,500,000 for each of fiscal years 1983,1984, 
and 1985 to enable the Department of Commerce to carry out 
such functions and responsibilities as it may have been given 
under this Act; and 
"(3) not to exceed $1,850,000 for each of fiscal years 1983,1984, 
and 1985 to enable the Department of Agriculture to carry out 
its functions and responsibilities with respect to the enforce-
ment of this Act and the Convention which pertain to the 
importation or exportation of plants. 
16 use 1535. 
"(b) COOPERATION WITH STATES.—For the purposes of section 6, 
there are authorized to be appropriated not to exceed $6,000,000 for 
each of fiscal years 1983,1984, and 1985. 
"(c) EXEMPTIONS FROM ACT.—There are authorized to be appropri-
ated to the Secretary to assist him and the Endangered Species 
Ante, p. 1417. 
Committee in carrying out their functions under section 7(e), (g), and 
(h) not to exceed $600,000 for each of fiscal years 1983, 1984, and 
1985. 
"(d) CONVENTION IMPLEMENTATION.—There are authorized to be 
appropriated to the Department of the Interior for purposes of 
Ante, p. 1421. 
carrying out section 8A(e) not to exceed $150,000 for each of fiscal 
years 1983 and 1984, and not to exceed $300,000 for fiscal year 1985, 
and such sums shall remain available until expended.". 
16 use 1535, 
(b) Sections 6(i) and 7(q) of such Act of 1973 are repealed. 
1536. 
SEC. 9. MISCELLANEOUS AMENDMENTS. 
(a) Section 2(c) of the Endangered Species Act of 1973 (16 U.S.C. 
16 use 1531. 
1532(c)) is amended— 
(1) by inserting "(1)" immediately before "It is"; and 
(2) by adding the following new paragraph: 
"(2) It is further declared to be the policy of Congress that Federal 
agencies shall cooperate with State and local agencies to resolve 
water resource issues in concert with conservation of endangered 
species.". 
(b) Section 9 of the Endangered Species Act of 1973 (16 U.S.C. 
1538) is amended— 
(1) by amending subsection (a)(2) by redesignating subpara-
graphs (B), (C), and (D) as subparagraphs (C), (D), and (E), 
respectively, and by inserting the following new subparagraph 
immediately after subparagraph (A) thereof: 
"(B) remove and reduce to possession any such species from 
areas under Federal jurisdiction;"; 
(2) by amending subsection (b)(1) to read as follows: 
"(b)(1) SPECIES HELD IN CAPTIVITY OR CONTROLLED 
ENVIRON-
MENT.—The provisions of subsections (a)(1)(A) and (a)(1)(G) of this 
section shall not apply to any fish or wildlife which was held in 
captivity or in a controlled environment on (A) December 28, 1973, 
or (B) the date of the publication in the Federal Register of a final 
regulation adding such fish or wildlife species to any list published 
Ante, p. 1411. 
pursuant to subsection (c) of section 4 of this Act: Provided, That 
such holding and any subsequent holding or use of the fish or 
wildlife was not in the course of a commercial activity. With respect 
to any act prohibited by subsections (a)(1)(A) and (a)(1)(G) of this 
section which occurs after a period of 180 days from (i) December 28, 
1973, or (ii) the date of publication in the Federal Register of a final 
regulation adding such fish or wildlife species to any list published 
PUBLIC LAW 97-304—OCT. 13, 1982 
96 STAT. 1427 
pursuant to subsection (c) of section 4 of this Act, there shall be a 
^nte, p. i4ii. 
rebuttable presumption that the fish or wildlife involved in such act 
is not entitled to the exemption contained in this subsection,"; and 
(3) by amending subsection (bX2XA) by striking out "This 
section shall not apply to" and inserting in lieu thereof "The 
provisions of subsection (a)(1) shall not apply to", 
(c) Section ll(aXl) and (bXD of such Act of 1973 are each amended 
1
6 use 1540. 
by striking out "or (C)" immediately after "(aX2XA), (B)," and insert-
mg in lieu thereof "(C), or (D)". 
Approved October 13, 1982. 
LEGISLATIVE HISTORY—H.R. 6133 (S. 2309): 
HOUSE REPORTS: No. 97-567 Pt. I (Comm. on Merchant Marine and Fisheries) and 
No. 97-835 (Comm. of Conference). 
SENATE REPORT No. 97-418 accompanying S. 2309 (Comm. on Environment and 
Public Works). 
CONGRESSIONAL RECORD, Vol. 128 (1982): 
June 8, considered and passed House. 
June 9, considered and passed Senate, amended, in lieu of S. 2309. 
Sept. 20, Senate agreed to conference report. 
Sept. 30, House agreed to conference report. 
97-200 O—84—pt. 2 
3 : QL3