Endangered Species Act Amendments
PL 95-632 (S.2899), enacted 11/10/1978

PUBLIC LAW 95-632—NOV. 10, 1978 
92 STAT. 3751 
Public Law 95-632 
95th Congress 
An Act 
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. 
Nov. 10. 1978 
[S. 2899] 
Endangered 
Species Act 
Amendments of 
1978. 
16 u s e 1531 
note. 
Definitions. 
16 u s e 1533. 
Be it enacted hy the Senate and House of Representatives 
of the 
United States of America in Congress assernbled, 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 alterna-
tives and thus is not limited to original project objectives and 
agency jurisdiction."; 
(2) by inserting after paragraph (4) as redesignated by para-
graph (7) of this section the following new paragraph: 
"(5) (A) The term 'critical habitat' for a threatened or endan-
gered species means— 
"(i) the specific areas within the geographical area occu-
pied by the species, at the time it is listed in accordance with 
the provisions of section 4 of this Act, on which are found 
those physical or biological features (I) essential to the con-
,, 
servation 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 conserva-
' 
tion 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 subpara-
graph (A) of this paragraph. 
"(C) Except in those circumstances determined by the Secre-
tary, 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 para-
graph (7) of this section the following new paragraph: 
"(7) The term 'Federal agency' means any department, agency, 
• 
or instrumentality of the United States."; 
J: 
(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 threat-
ened species, or (B) result in the adverse modification or destruc-
tion of a critical habitat. 
^au d? 
92 STAT. 3752 
PUBLIC LAW 95-632—NOV. 10, 1978 
Infra. 
"(12) The term 'permit or license applicant' means, when used 
with respect to an action of a Federal agency for which exemp-
tion 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 para-
graph (7) of this section, and inserting in lieu thereof the 
following: 
" (16) The term 'species' includes anj^ subspecies of fish or wild-
life 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 para-
graph (7) of this section, and inserting in lieu thereof the fol-
lowing : 
"(18) the term 'State agency' means any State agency, depart-
ment, 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 para-
graphs (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 redesig-
nating 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 
Review. 
"SEC. 7. (a) CONSULTATION.—The Secretary shall review other 
programs administered by him and utilize such programs in fur-
therance 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 
16 use 1533. 
threatened species listed pursuant to section 4 of this Act. Each Fed-
eral 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. 
Statement and 
Promptly after the conclusion of consultation, the Secretary shall pro-
summary, 
vide 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 
PUBLIC LAW 95-632—NOV. 10, 1978 
92 STAT. 3753 
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 construc-
tion has been entered into and for which no construction has begun 
on tlie 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 scien-
tific 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 assess-
ment 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 or RESOURCES.—After initia-
tion 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 imple-
mentation 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. 
"(e) (1) 
ESTABLISHMENT or COMMITTEE.—There is established a 
committee to be known as the Endangered Species Committee (here-
inafter 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. 
" (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 Atmos-
pheric Administration. 
"(G) The President, after consideration of any recommenda-
tions received pursuant to subsection (g) (2) (B) shall appoint one 
individual from each affected State, as determined by the Secre-
tary, to be a member of the Committee for the consideration of the 
Endangered 
Species 
Committee. 
Applications, 
review. 
Presidential 
appointment. 
39-194 O—80-pt. 3 
71 : QL3 
92 STAT. 3754 
PUBLIC LAW 95-632—NOV. 10, 1978 
Quorum. 
Chairman. 
Meetings. 
„,i 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. 
Travel allowance. 
"(B) While away from their homes or regular places of business in 
the performance of services for the Committee, members of the Com-
mittee 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 consid-
ered 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 Com-
mittee deems advisable. 
"(B) When so authorized by the Committee, any member or agent 
of the Committee may take any action which the Committee is author-
ized 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 infor-
mation 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 serv-
ices 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 para-
graph (3) (G) of this subsection, no member shall designate any 
5 u s e 552a note. 
Rules and 
regulations. 
Subpenas. 
PUBLIC LAW 95-632—NOV. 10, 1978 
92 STAT. 3755 
Applications, 
submittal. 
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 representa-
tive 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-
ment of the Endangered Species Act Amendments of 1978, the Secre-
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 regula-
tions shall require that information submitted in an application by 
the head of any Federal agency with respect to any agency action 
r •. 
include, but not be limited to— 
"(1) a description of the consultation process carried out pur-
suant 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 deter- 
,<> 
mination 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 applica-
tion to the Secretary, in a form prescribed under subsection (f) of 
this section, not later than 90 days after the completion of the con-
sultation 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 
Notification, 
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 fee 
appointed to the review board to be established under paragraph (3) 
and to the Endangered Species Committee for consideration of such 
application. 
"(3) (A) A review board shall be established for purposes of con- Review boan 
sidering an application for exemption and submitting a report to the establishmen 
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-
92 STAT. 3756 
PUBLIC LAW 95-632—NOV. 10, 1978 
Compensation. 
5 use 5332 note 
Per diem and 
travel allowances 
S' 
mitted pursuant to paragraph (2) and after consideration of any 
recommendations received pursuant to paragraph (2)(B). An 
individual appointed by the President under this subparagraph 
shall be a resident of a State, if any, in which the agency action 
will be, or is being, carried out. 
"(iii) One administrative law judge shall be selected to serve 
on the board by the Civil Service Commission in the same man-
ner as administrative law judges are selected under section 3344 
of title 5 of the United States Code to be detailed to an agency 
which occasionally or temporarily is insufficiently staffed with 
administrative law judges. The use by the review board of such 
an administrative law judge shall be on a reimbursable basis. 
"(B) Members of a review board who are full-time officers or 
employees of the United States shall receive no additional pay on 
account of their service on the board. All other members shall be 
entitled to receive an amount not to exceed the daily equivalent of 
the annual rate of basic pay in effect for grade GS-18 of the General 
Schedule for each day during which they are engaged in the actual 
performance of duties vested in the board. While away from their 
homes or regular places of business in the performance of sei-vices 
for a review board, members of the board 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. 
" (4) The Secretary shall submit the application to the review board 
immediately after its appointment under paragraph (3), and the 
Secretary shall submit to the review board, in writing, his views and 
recommendations with respect to the application within 60 days after 
receiving a copy of any application under paragraph (2). 
"(5) It shall be the duty of a review board appointed under para-
graph (3) to make a full review of the consultation carried out under 
subsection (a), and within 60 days after its appointment or Avithin 
such longer time as is mutually agreed upon between the exemption 
applicant and the Secretary, to make a determination, by a major-
ity vote, (1) whether an irresolvable conflict exists and (2) whether 
such exemption applicant has— 
"(A) carried out its consultation responsibilities as described 
in subsection (a) in good faith and made a reasonable and respon-
sible effort to develop and fairly consider modifications or rea-
.
;
= • Ji^j/ 
sonable and prudent alternatives to the proposed agency action 
which will avoid jeopardizing the continued existence of an 
endangered or threatened species or result in the adverse modifi-
cation or destruction of a critical habitat; 
"(B) conducted any biological assessment required of it by sub-
section (c); and 
"(C) refrained from making any irreversible or irretrievable 
commitment of resources prohibited by subsection (d). 
f
^ 
Any determination by the review board that an irresolvable conflict 
does not exist or that the exemption applicant has not met the require-
ments of subparagraph (A), (B), or (C) shall be considered final 
agency action for purposes of chapter 7 of title 5 of the United States 
5 use 701 et seq. Code.' 
Determination. 
PUBLIC LAW 95-632—NOV. 10, 1978 
92 STAT. 3757 
Report to 
Committee. 
"(6) If the review board determines that an irresolvable conflict 
exists and makes positive determinations under subparagraphs (A), 
(B), and (C) of paragraph (5), it shall proceed to prepare the report 
to be submitted under paragraph (7). 
" (7) Within 180 days after making the determinations under para-
graph (6), the review board shall submit to the Committee a report 
discussing— 
"(A) the availability of reasonable and prudent alternatives 
to the agency action, and the nature and extent of the benefits of 
the agency action and of alternative courses of action consistent 
with conserving the species or the critical habitat; 
"(B) a summary of the evidence concerning whether or not 
the agency action is in the public interest and is of national or 
regional significance; 
"(C) appropriate reasonable mitigation and enhancement meas- 
, 
, 
ures which should be considered by the Committee. 
*" " 
"(8) To the extent practicable within the time required for action 
under subsection (g) of this section, and except to the extent incon-
sistent with the requirements of this section, the consideration of 
any application for an exemption under this section and the conduct 
of any hearing under this subsection shall be in accordance with 
sections 554, 555, and 556 (other than subsection (b) (3) of section 
556) of title 5, United States Code. 
" (9) In carrying out its duties under this subsection, a review board 
may, and any member of a review board if so authorized by the review 
board, may— 
"(A) sit and act at such times and places, take such testimony, 
and receive such evidence, as the review board deems advisable; 
"(B) subject to the Privacy Act of 1974, request of any Fed- 5 USC 552a note, 
eral agency or applicant information necessary to enable it to 
carry out such duties, and upon such request the head of such 
Federal agency shall furnish such information to the review 
board; and 
"(C) use the United States mails in the same manner and 
upon the same conditions as a Federal agency. 
"(10) Upon request of a review board, the head of any Federal 
agency is authorized to detail, on a nonreimbursable basis, any of the 
personnel of such agency to the review board to assist it in carry out 
its duties under this section. 
'^" ' 
"(11) The Administrator of the General Services, Administration 
shall provide to a review board, on a reimbursable basis, such adminis-
trative support services as the review board may request. 
"(12) All meetings and records of review boards shall be open to 
the public. 
"(h) EXEMPTION.— (1) The Committee shall make a final determi-
nation whether or not to grant an exemption within 90 days of receiv-
ing the report of the review board under subsection (g)(7). The 
Committee shall grant an exemption from the requirements of sub-
section (a) for an agency action if, by a vote of not less than five of its 
members voting in person— 
"(A) it determines on the record, based on the report of the 
review board and on such other testimony or evidence as it may 
receive, that— 
Determination. 
92 STAT. 3758 
PUBLIC LAW 95-632—NOV. 10, 1978 
' 
"(i) there are no reasonable and prudent alternatives to 
the agency action; 
; 
"(ii) the benefits of such action clearly outweigh the bene-
fits of alternative courses of action consistent with conserving 
the species or its critical habitat, and such action is in the 
.3 
public interest; and 
" (iii) the action is of regional or national significance; and 
- -: 
" ( B ) it establishes such reasonable mitigation and enhance-
ment measures, including, but not limited to, live propagation, 
transplantation, and habitat acquisition and improvement, as 
1 
are necessary and appropriate to minimize the adverse effects of 
the agency action upon the endangered species, threatened species, 
or critical habitat concerned. 
Any final determination by the Committee under this subsection shall 
be considered final agency action for purposes of chapter 7 of title 5 
5 use 701 ef 569. of the United States Code. 
"(2) (A) Except as provided in subparagraph (B), an exemption 
for an agency action granted under subsection (h) shall constitute 
a permanent exemption with respect to all endangered or threatened 
, 
species for the purposes of completing such agency action: Provided^ 
That a biological assessment has been conducted under subsection (c). 
" ( B ) An exemption shall not be permanent under subparagraph 
(A) if the Secretary finds, based on the best scientific and commer-
cial data available, that such exemption would result in the extinction 
of the species. If the Secretary so finds, the Committee shall determine 
within 30 days after such finding whether to grant an exemption for 
the agency action notwithstanding the Secretary's finding. 
Certification. 
"(i) REVIEW BY SECRETARY OF STATE.—Notwithstanding any other 
provision of this Act, the Committee shall be prohibited from consider-
ing for exemption any application made to it, if the Secretary of State, 
after a review of the proposed agency action and its potential implica-
tions, and after hearing, certifies, in writing, to the Committee within 
60 days of any application made under this section that the granting 
of any such exemption and the carrying out of such action would be 
in violation of an international treaty obligation or other international 
Publication in 
obligation of the United States. The Secretary of State shall, at the 
Federal Register, time of such certification, publish a copy thereof in the Federal 
Register. 
Exemption. 
" (j) Notwithstanding any other provision of this Act, the Committee 
shall grant an exemption for any agency action if the Secretary of 
Defense finds that such exemption is necessary for reasons of national 
security. 
"(k) 
SPECIAL PROVISIONS.—An exemption decision by the 
Com-
^ 
mittee under this section shall not be a major Federal action for pur-
, 
-••] poses of the National Environmental Policy Act of 1969 (42 U.S.C. 
4321 et seq.) : Provided^ 
That an environmental impact statement 
which discusses the impacts upon endangered species or threatened 
species or their critical habitats shall have been previously prepared 
with respect to any agency action exempted by such order. 
"(1) COMMITTEE ORDERS.— (1) If the Committee determines under 
subsection (h) that an exemption should be granted with respect to 
any agency action, the Committee shall issue an order granting the 
, 
exemption and specifying the mitigation and enhancement measures 
established pursuant to subsection (h) which shall be carried out and 
paid for by the exemption applicant in implementing the agency 
PUBLIC LAW 95-632—NOV. 10, 1978 
92 STAT. 3759 
action. All necessary mitigation and enhancement measures shall be 
authorized prior to the implementing of the agency action and funded 
concurrently with all other project features. 
"(2) The applicant receiving such exemption shall include the costs 
of such mitigation and enhancement measures within the overall 
costs of continuing the proposed action. Notwithstanding the pre-
ceding sentence the costs of such measures shall not be treated as project 
costs for the purpose of computing benefit-cost or other ratios for the 
proposed action. Any applicant may request the Secretary to carry 
out such mitigation and enhancement measures. The costs incurred by 
the Secretary in carrying out any such measures shall be paid by the 
applicant receiving the exemption. No later than one year after the 
granting of an exemption, the exemption applicant shall submit to 
the Council on Environmental Quality a report describing its com-
pliance with the mitigation and enhancement measures prescribed 
by this section. Such a report shall be submitted annually until all 
such mitigation and enhancement measures have been completed. 
Notice of the public availability of such reports shall be published in 
the Federal Register by the Council on Environmental Quality. 
"(m) NOTICE.—The 60-day notice requirement of section 11(g) of 
this Act shall not apply with respect to review of any final determina-
tion of the Committee under subsection (h) of this section granting 
an exemption from the requirements of subsection (a) of this section. 
"(n) JUDICIAL REVIEW.—Any person, as defined by section 3(13) of 
this Act, may obtain judicial review, under chapter 7 of title 5 of the 
United States Code, of any decision of the Endangered Species Com-
mittee under subsection (h) in the United States Court of Appeals for 
(1) any circuit wherein the agency action concerned will be, or is 
being, carried out, or (2) in any case in which the agency action will 
be, or is being, carried out outside of any circuit, the District of Colum-
bia, by filing in such court within 90 days after the date of issuance of 
the decision, a written petition for review. A copy of such petition shall 
be transmitted by the clerk of the court to the Committee and the Com-
mittee shall file in the court the record in the proceeding, as provided 
in section 2112, of title 28, United States Code, Attorneys desig-
nated by the Endangered Species Committee may appear for, and rep-
resent the Committee in any action for review under this subsection. 
"(o) EXCEPTION ON TAKING.—Notwithstanding sections 4(d) 
and 
9(a) of this Act or any regulations promulgated pursuant to such sec-
tions, any action for which an exemption is granted under subsection 
(h) of this section shall not be considered a taking of any endangered 
or threatened species with respect to any activity which is necessary to 
carry out such action. 
" ( p ) EXEMPTIONS IN PRESIDENTIALLT DECLARED DISASTER AREAS.— 
In any area which has been declared by the President to be a major 
disaster area under the Disaster Relief Act of 1974, the President is 
authorized to make the determinations required by subsections (g) 
and (h) of this section for any project for the repair or replacement 
of a public facility substantially as it existed prior to the disaster under 
section 401 or 402 of the Disaster Relief Act of 1974, and which the 
President determines (1) is necessary to prevent the recurrence of 
such a natural disaster and to reduce the potential loss of human life, 
and (2) to involve an emergency situation which does not allow the 
ordinary procedures of this section to be followed. Notwithstanding 
Report to Council 
on 
Environmental 
Quality. 
Report 
availability, 
publication in 
Federal Register. 
16 use 1540. 
16 use 1532. 
5 use 701 et seq. 
16 use 1533, 
1538. 
42 use 5121 
note. 
42 use 5171, 
5172. 
92 STAT. 3760 
PUBLIC LAW 95-632—NOV. 10, 1978 
Report to 
Congress. 
Regulation. 
16 u s e 1533, 
1538. 
Documentation 
submittal, 
regulations. 
Port designation, 
consultation. 
Ante, p. 3751. 
any other provision of this section, the Committee shall accept the 
determinations of the President under this subsection. 
"(q) AUTHORIZATION.—There is authorized to be appropriated to 
the Secretary to assist review boards and the Committee in carrying 
out their functions under subsections (e), (f), (g), and (h) of this 
section not to exceed $600,000 for fiscal year 1979, and not to exceed 
$300,000 for the period beginning October 1, 1979, and ending 
March 31, 1980. The Chairman of the Committee shall report to the 
Congress before the end of fiscal year 1979 with respect to the ade-
quacy of the budget authority contained in this subsection.". 
SEC. 4. Section 9 (b) of the Endangered Species Act (16 U.S.C. 1538) 
is amended by inserting "(1)" after "(b) SPECIES HELD IN CAPTIVITY 
O
R CONTROLLED ENVIRONMENT.—" and by adding the following new 
paragraph: 
" (2) (A) This section shall not apply to— 
" (i) any raptor legally held in captivity or in a controlled envi-
ronment on the effective date of the Endangered Species Act 
Amendments of 1978; or 
" (ii) any progeny of any raptor described in clause (i); 
until such time as any such raptor or progeny is intentionally returned 
to a wild state. 
"(B) Any person holding any raptor or progeny described in sub-
paragraph (A) must be able to demonstrate that the raptor or progeny 
does, in fact, qualify under the provisions of this paragraph, and shall 
maintain and submit to the Secretary, on request, such inventories, 
documentation, and records as the Secretary may by regulation require 
as being reasonably appropriate to carry out the purposes of this para-
graph. Such requirements shall not unnecessarily duplicate the require-
ments of other rules and regulations promulgated by the Secretary.". 
SEC. 5. Section 10 of the Endangered Species Act of 1973 (16 U.S.C. 
1539) is amended by adding at the end thereof the following new 
subsections: 
"(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 or this Act; and 
"(D) is entered at a port designated under paragraph (3). 
"(2) Any person who wishes to import an article under the excep-
tion provided by this subsection shall submit to the customs officer 
concerned at the time of entry of the article such documentation as 
the Secretarv of the Treasurv, after consultation with the Secretary 
pf the Interior, shall by regulation require as being necessary to estab-
lish that the article meets the requirements set forth in paragraph 
(1) (A).(B).and(C). 
"(3) The Secretary of the Treasury, after consultation with the 
Secretary of the Interior, shall designate one port within ench customs 
region at which articles described in paragraph (IHA). CB), 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— 
PUBLIC LAW 95-632—NOV. 10, 1978 
92 STAT. 3761 
16 use 1533. 
Infra. 
" ( A ) was not repaired or modified after the date of importa-
tion 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 con-
tain such documentation, as the Secretary prescribes. If on the basis 
of any such application which is timely filed, the Secretary is satis-
fied 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 
Exemption, 
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 Reser-
voir Project and the Grayrocks Dam and Reservoir Project from the 
requirements of section 7(a). For the purposes of such consideration, Anu, p. 3752. 
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 Electrifica-
tion 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 con-
sultation as appropriate with the affected States.". 
SEC. 6. Section 11 of the Endangered Species Act of 1973 (16 U.S.C. Civil penalties. 
1540) is amended— 
(1) in the first and second sentences of subsection (a) (1) by 
striking out "or who knowingly commits an act in the course 
of a commercial activity which violates" each place it appears and 
inserting in lieu thereof "and any person engaged in business as 
an importer or exporter of fish, wildlife, or plants who violates"; 
(2) in the third sentence of subsection (a) (1) by striking out 
"$1,000" and inserting in lieu thereof "$500"; 
(3) in subsection (b) (1) by striking out "willfully commits 
an act which" each place it appears and inserting in lieu thereof 
"knowingly"; 
Project 
modifications. 
92 STAT. 3762 
PUBLIC LAW 95-632—NOV. 10, 1978 
(4) in subsection (b) (2) by inserting "a person to import or 
export fish, wildlife, or plants, or to operate a quarantine station 
I : • 
for imported wildlife, or authorizing" after "authorizing". 
SEC. 7. Section 11(a) of the Endangered Species Act of 1973 (16 
U.S.C. 1540) is amended by adding a new paragraph at the end 
thereof as follows: 
"(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.". 
SKC. 8. Section 11(b) of the Endangered Species Act of 1973 (16 
U.S.C. 1540) is amended by adding a new paragraph at the end 
thereof as follows: 
"(3) Notwithstanding any other provision of this Act, it shall be 
a defense to prosecution under this subsection if the defendant com-
mitted 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 threat-
ened species.". 
SEC. 9. Section 15 of the Endangered Species Act of 1973 (16 U.S.C. 
1542) is amended to read as follows: 
'iG'^E.-.JS/.M-^i. 
u 
AUTHORIZATION OF APPROPRIATIONS 
16 use 1535, 
"SEC. 15. Except as authorized in sections 6 and 7 of this Act, there 
Ante, p. 3752. 
are authorized to be appropriated— 
" (1) not to exceed $25,000,000 for the fiscal year ending Septem-
ber 30, 1977, and the fiscal year ending September 30, 1977, and 
.
. ;.. 
the fiscal year September 30, 1978, not to exceed $23,000,000 for 
-r., 
• ' •
- 
the fiscal year ending September 30, 1979, and not to exceed 
$12,500,000 for the period beginning October 1, 1979, and end-
ing March 31,1980. 
"(2) not to exceed $5,000,000 for the fiscal year ending Septem-
ber 30,1977, and the fiscal year ending September 30,1978, not to 
exceed $2,500,000 for the fiscal year ending September 30, 1979, 
not to exceed $12,500,000 for the period beginning October 1,1979 
and ending March 31, 1980, to enable the Department of Com-
merce to carry out such functions and responsibilities as it may 
have been given under this Act.". 
SEC. 10. Section 6(c) of the Endangered Species Act of 1973 (16 
U.S.C. 1535 (c)) is amended— 
,~tl':\:. 
(1) by inserting "(1)" after "(c) 
COOPERATIVE 
AGREE-
MENTS.—"; 
(2) by redesignating paragraphs (1) through (5) as sub-
paragraphs (A) through (E), respectively; 
(3) by redesignating subparagraphs (A) and (B) as clauses 
(i) and (ii),respectively; 
(4) by striking out "subsection" in the matter preceding sub-
paragraph (A) (as so redesignated) and inserting in lieu thereof 
"paragraph"; 
PUBLIC LAW 95-632—NOV. 10, 1978 
92 STAT. 3763 
(5) by striking out "endangered species or threatened species" 
in subparagraph (D) (as so redesignated) and inserting in lieu 
thereof "endangered or threatened species of fish or wildlife"; 
(6) by striking out "paragraphs (3), (4), and (5) of this sub-
section" in clause (i) (as so redesignated) and inserting in lieu 
thereof "subparagraphs (C), (D), and (E) of this paragraph"; 
(7) by striking out "subparagraph (A) and this subparagraph" 
in clause (ii) (as so redesignated) and inserting in lieu thereof 
"clause (i) and this clause"; and 
(8) by adding at the end thereof the following new paragraph: 
"(2) In furtherance of the purposes of this Act, the Secretary is 
authorized to enter into a cooperative agreement in accordance with 
this section with any State which establishes and maintains an ade-
quate and active program for the conservation of endangered species 
and threatened species of plants. Within one hundred and twenty 
days after the Secretary receives a certified copy of such a proposed 
State program, he shall make a determination whether such program 
is in accordance with this Act. Unless he determines, pursuant to this 
paragraph, that the State program is not in accordance with this Act, 
he shall enter into a cooperative agreement with the State for the pur-
pose of assisting in implementation of the State program. In order 
for a State program to be deemed an adequate and active program for 
the conservation of endangered species of plants and threatened 
species of plants, the Secretary must find, and annually thereafter 
reconfirm such finding, that under the State program— 
"(A) authority resides in the State agency to conserve resident 
species of plants determined by the State agency or the Secretary 
to be endangered or threatened; 
"(B) the State agency has established acceptable conservation 
programs, consistent with the purposes and policies of this Act, 
for all resident species of plants in the State which are deemed by 
the Secretary to be endangered or threatened, and has furnished 
a copy of such plan and program together with all pertinent 
details, information, and data requested to the Secretary; 
"(C) the State agency is authorized to conduct investigations 
to determine the status and requirements for survival of resident 
species of plants; and 
"(D) provision is made for public participation in designating 
resident species of plants as endangered or threatened; or 
that under the State program— 
"(i) the requirements set forth in subparagraphs (C) and (D) 
of this paragraph are complied with, and 
"(ii) plans are included under which immediate attention will 
be given to those resident species of plants which are determined 
by the Secretary or the State agency to be endangered or threat-
ened and which the Secretary and the State agency agree are 
most urgently in need of conservation programs; except that a 
cooperative agreement entered into with a State whose program is 
deemed adequate and active pursuant to clause (i) and this clause 
shall not affect the applicability of prohibitions set forth in or 
authorized pursuant to section 4(d) or section 9(a)(1) with 
Cooperative 
agreement. 
16 use 1535. 
Determination. 
State program, 
annual 
reconfirmations. 
Investigations. 
Public 
participation. 
16 u s e 1533, 
1538. 
92 STAT. 3764 
PUBLIC LAW 95-632—NOV. 10, 1978 
Regulation. 
Ante, p. 3751. 
Review and 
determination. 
Regulations. 
Publication in 
Federal Register. 
Notice. 
respect to the taking of any resident endangered or threatened 
species.". 
SEC. 11. Section 4 of the Endangered Species Act of 1973 (16 U.S.C. 
1533) is amended— 
(1) by adding at the end of subsection (a) (1) the following 
new sentence: "At the time any such regulation is proposed, the 
Secretary shall also by regulation, to the maximum extent 
prudent, specify any habitat of such species which is then con-
sidered to be critical habitat. The requirement of the preceding 
sentence shall not apply with respect to any species which was 
listed prior to enactment of the Endangered Species Act Amend-
ments of 1978."; 
(2) by amending subsection (c) (1) by striking out "and shall", 
and by inserting immediately before the final period the follow-
ing: ", and specify any critical habitat within such range"; 
(3) in subsection (c) by inserting at the end thereof the follow-
ing new paragraph: 
"(4) The Secretary shall— 
"(A) conduct, at least once every five years, a review of all 
species included in a list which is published pursuant to para-
graph (1) and which is in effect at the time of such review; and 
"(B) determine on the basis of such review whether any such 
species should— 
"(i) be removed from such list; 
"(ii) be changed in status from an endangered species to 
a threatened species; or 
"(iii) be changed in status from a threatened species to 
an endangered species. 
Each determination under subparagraph (B) shall be made in accord-
ance with the provisions of subsections (a) and (b).". 
(4) by amending subsection (f)— 
(A) in paragraph (2) (A) by striking out "In" and insert-
ing in lieu thereof "Except as provided in subparagraph (B), 
in"; 
(B) by inserting after subparagraph (A) of paragraph 
(2) the following new subparagraph: 
"(B) In the case of any regulation proposed by the Secretary to 
carry out the purposes of this section with respect to the determination 
and listing of endangered or threatened species and their critical hab-
itats in any State (other than regulations to implement the Conven-
tion), the Secretary— 
"(i) shall publish general notice of the proposed regulation 
(including the complete text of the regulation), not less than 60 
days before the effective date of the regulation— 
"(I) in the Federal Register, and 
"(II) if the proposed regulation specifies any critical 
habitat, in a newspaper of general circulation within or 
adjacent to such habitat; 
"(ii) shall offer for publication in appropriate scientific jour-
nals the substance of the Federal Register notice referred to in 
clause (i) (I) ; _ 
"(iii) shall give actual notice of the proposed regulation (in-
cluding the complete text of the regulation), and any environmen-
PUBLIC LAW 95-632—NOV. 10, 1978 
92 STAT. 3765 
tal assessment or environmental impact statement prepared on the 
proposed regulation, not less than 60 days before the effective date 
of the regulation to all general local governments located within 
or adjacent to the proposed critical habitat, if any; and 
"(iv) shall— 
" ( I ) if the proposed regulation does not specify any 
critical habitat, promptly hold a public meeting on the pro-
posed regulation within or adjacent to the area in which the 
endangered or threatened species is located, if request there-
for is filed with the Secretary by any person within 45 days 
after the date of publication of general notice under clause 
( i ) ( I ) , a n d 
" ( I I ) if the proposed regulation specifies any critical hab-
itat, promptly hold a public meeting on the proposed regu-
lation within the area in which such habitat is located in 
* ? 
each State, and, if requested, hold a public hearing in each 
such State. 
If a public meeting or hearing is held on any regulation, the regulation 
may not take effect before the 60th day after the date on which the 
meeting or hearing is concluded, and if more than one public meeting 
or hearing is held, before the 60th day after the date on which the 
last such meeting or hearing is concluded. Any accidental failure to 
provide actual notice under clause (ii) to all general local govern-
ments required to be given notice shall not invalidate the proposed 
regulation."; 
(C) by redesignating subparagraph (B) of paragraph (2) 
as subparagraph 
(C), and by inserting "or ( B ) " after 
"Neither subparagraph ( A ) " in such subparagraph; and 
(D) by adding at the end thereof the following new 
paragraphs: 
"(4) Any proposed or final regulation which specifies any critical 
habitat of any endangered species or threatened species shall be based 
on the best scientific data available, and the publication in the Fed-
eral Register of any such regulation shall, to the maximum extent 
practicable, be accompanied by 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 impacted by such designation. 
"(5) A final regulation adding a species to any list published pur-
suant to subsection (c) shall be published in the Federal Register not 
later than two years after the date of publication of notice of the 
regulation proposing such listing under paragraph (B) (i) (I). If a 
final regulation is not adopted within such two-year period, the Secre-
tary shall withdraw the proposed regulation and shall publish notice 
of such withdrawal in the Federal Register not later than 30 days 
after the end of such period. The Secretary shall not propose a regu-
lation adding to such a list any species for which a proposed regulation 
has been withdrawn under this paragraph unless he determines that 
sufficient new information is available to warrant the proposal of a 
regulation. No proposed regulation for the listing of any species pub-
lished before the date of the enactment of the Endangered Species 
Public meetings 
and hearing. 
16 use 1533. 
Publication in 
Federal Register. 
Regulations or 
withdrawal 
notice, 
publication in 
Federal Register. 
92 STAT. 3766 
PUBLIC LAW 95-632—NOV. 10, 1978 
Ante, p. 3751. 
16 u s e 1533. 
5 u s e app. 
Publication in 
Federal Register. 
Critical habitat 
determination, 
considerations. 
Establishment 
and 
implementation. 
16 u s e 1533. 
Summary, 
publication in 
Federal Register. 
Dr. Eugene L. 
Vickery, 
exception. 
Act Amendments of 1978 shall be withdrawn under this paragraph 
before the end of the one-year period beginning on such date of enact-
ment."; and 
(5) by adding at the end thereof the following new subsection: 
"(g) RECOVERY PLANS.—The Secretary shall develop and imple-
ment plans (hereinafter in this subsection referred to as 'recovery 
plans') for the conservation and survival of endangered species and 
threatened species listed pursuant to this section, unless he finds that 
such a plan will not promote the conservation of the species. The Secre-
tary, in developing and implementing recovery plans, may procure 
the services of appropriate public and private agencies and institu-
tions, and other qualified persons. Recovery teams appointed pursuant 
to this subsection shall not be subject to the Federal Advisory Com-
mittee Act."; 
(6) in subsection (c) (2) — 
(A) by striking out "upon" and inserting in lieu thereof 
"within 90 days of the receipt of"; 
(B) by inserting "and publish in the Federal Register" 
after "conduct"; 
(C) by inserting "the status of" after "a i-eview of"; and 
(D) by inserting at the end thereof the following: "Such 
review and finding shall be made and published prior to the 
initintion of any procedures under subsection (b) (1).". 
(7) by adding at the end of subsection (b) the following new 
pa ragraph: 
"(4) In determining the critical habitat of any endangered or 
threatened species, the Secretary shall consider the economic impact, 
and any other relevant impacts, of specifying any particular area as 
critical habitat, and he may exclude any such area from the critical 
habitat if he determines that the benefits of such exclusion outweigh 
the benefits of specifying the area as part of the critical habitat, unless 
he determines, based on the best scientific and commercial data avail-
able, that the failure to designate such area as critical habitat will 
result in the extinction of the species.". 
SEC. 12. That portion of subsection (a) of section 5 of the Endan-
gered Species Act of 1973 (16 U.S.C. 1534) which precedes paragraph 
(1) is amended to read as follows: 
(a) PROGRAM.—The Secretary, and the Secretary of Agriculture 
with respect to the National Forest System, shall establish and imple-
ment a program to conserve fish, wildlife, and plants, including those 
which are listed as endangered species or threatened species pursuant 
to section 4 of this Act. To carry out such a program, the appropriate 
Secretary—". 
SEC. 13. Paragraph (3) of section 4(f) of the Endangered Species 
Act of 1973 (16 U.S.C. 1533) is amended to read as follows: 
"(3) 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 relationship 
of such data to svich regulations.". 
SEC. 14. Notwithstanding any provision of the Endangered Species 
Act of 1973 (16 U.S.C. 1531 et seq.) or any regulation promulgated 
PUBLIC LAW 95-632—NOV. 10, 1978 
92 STAT. 3767 
or policy established thereunder, the Secretary of the Interior is 
authorized and directed to release to Doctor Eugene L. Vickery of 
Lena, Illinois, a narwhale (Monodon monocerus) tusk cane contained 
in a shipment consigned to him that was seized by agents of the United 
States Fish and Wildlife Service at O'Hare International Airport, 
Chicago, Illinois, on November 30,1977. For purposes of section 9 and 
section 11 of such Act, Doctor Vickery shall be considered not to have Ante, pp. 3760, 
violated any provision of such Act with respect to the importation of 3761. 
such narwhale tusk cane. 
Approved November 10, 1978. 
LEGISLATIVE HISTORY: 
HOUSE REPORTS: No. 95-1625 accompanying H.R. 14104 (Comm. on Merchant 
Marine and Fisheries) and No. 95-1804 (Comm. of Conference). 
SENATE REPORT No. 95-874 (Comm. on Environment and Public Works). 
CONGRESSIONAL RECORD, Vol. 124 (1978): 
July 17-19, considered and passed Senate. 
Oct. 14, H.R. 14104 considered and passed House; passage vacated, and S. 2899, 
amended, passed in lieu. 
Oct. 15, Senate and House agreed to conference report. 
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 14, No. 45: 
Nov. 10, Presidential statement.