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[House Report 115-561]
[From the U.S. Government Publishing Office]

115th Congress   }                                       {      Report
                        HOUSE OF REPRESENTATIVES
 2d Session      }                                       {     115-561

======================================================================

 
     STATE, TRIBAL, AND LOCAL SPECIES TRANSPARENCY AND RECOVERY ACT

                                _______
                                

 February 15, 2018.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

Mr. Bishop of Utah, from the Committee on Natural Resources, submitted 
                             the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 1274]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (H.R. 1274) to amend the Endangered Species Act of 
1973 to require making available to States affected by 
determinations that species are endangered species or 
threatened species all data that is the basis of such 
determinations, and for other purposes, having considered the 
same, report favorably thereon with an amendment and recommend 
that the bill as amended do pass.
    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``State, Tribal, and Local Species 
Transparency and Recovery Act''.

SEC. 2. DECISIONAL TRANSPARENCY AND USE OF STATE, TRIBAL, AND LOCAL 
                    INFORMATION.

  (a) Requiring Decisional Transparency With Affected States.--Section 
6(a) of the Endangered Species Act of 1973 (16 U.S.C. 1535(a)) is 
amended--
          (1) by inserting ``(1)'' before the first sentence; and
          (2) by striking ``Such cooperation shall include'' and 
        inserting the following:
  ``(2) Such cooperation shall include--
          ``(A) before making a determination under section 4(a), 
        providing to States affected by such determination all data 
        that is the basis of the determination; and
          ``(B)''.
  (b) Ensuring Use of State, Tribal, and Local Information.--Section 3 
of the Endangered Species Act of 1973 (16 U.S.C. 1532) is amended--
          (1) by redesignating paragraphs (2) through (10) as 
        paragraphs (3) through (11), respectively; and
          (2) by inserting after paragraph (1) the following:
  ``(2) The term `best scientific and commercial data available' 
includes all such data submitted by a State, tribal, or county 
government.''.
  (c) Requirement to Publish on the Internet the Basis for Listings.--
Section 4(b) of the Endangered Species Act of 1973 (16 U.S.C. 1533(b)) 
is amended by adding at the end the following:
  ``(9) The Secretary shall make publicly available on the Internet the 
best scientific and commercial data available that are the basis for 
each regulation, including each proposed regulation, promulgated under 
subsection (a)(1), except that, at the request of a Governor or 
legislature of a State, the Secretary shall not make available under 
this paragraph information regarding which the State has determined 
public disclosure is prohibited by a law of that State relating to the 
protection of personal information.''.

                          Purpose of the Bill

    The purpose of H.R. 1274 is to amend the Endangered Species 
Act of 1973 to require making available to States affected by 
determinations that species are endangered species or 
threatened species all data that is the basis of such 
determinations.

                  Background and Need for Legislation

    Section 6 of the Endangered Species Act of 1973 (ESA, 16 
U.S.C. 1535) requires federal cooperation with the States ``to 
the maximum extent practicable'' in listing decisions, yet 
federal agencies often duplicate analyses and conservation 
plans already generated by States. Moreover, data provided by 
States is sometimes ignored by the federal agencies in ESA 
activities. Species listings and critical habitat designations 
have the potential to impact entire communities and industries 
and can place burdens upon State governments. States, tribes, 
and county governments are well situated to participate in 
decisions regarding endangered or threatened species 
determinations or their ensuing critical habitat designations 
in a meaningful and productive manner. However, in practice, 
federal cooperation with States, tribes, and local governments 
does not always occur under the ESA.
    States have testified that the ESA, as currently 
implemented, does not properly honor their ability to 
participate to the maximum extent practicable in federal ESA 
listing decisions. During a September 21, 2016, Natural 
Resources Committee hearing on federal government management of 
wolves, witnesses such as New Mexico Department of Game and 
Fish Commissioner Alexandra Sandoval testified that her office 
was not made privy to factors utilized by the federal 
government in listing decisions that impact lands, communities, 
and species within New Mexico.
    States are the species managers prior to a listing decision 
by the federal government and will become the managers of the 
species after a delisting decision by the federal government. 
States possess extensive, on-the-ground experience and 
expertise in science-based wildlife management principles, 
generation of applicable data, and the application of public 
policy in managing wildlife as public assets.
    Despite the expertise and willingness of State, local, and 
tribal governments to participate in the ESA process, the 
Department of the Interior and the Department of Commerce are 
not required to disclose scientific information or the basis 
they use in making listing or critical habitat decisions to the 
States. They are also not required to utilize scientific data 
generated by States, even though States often have actual data 
that the federal agencies do not.
    Local and county governments, particularly those in areas 
with a significant portion of federally-owned lands within 
their jurisdictional borders, have expressed concerns that 
federal ESA-implementing agencies often ignore locally-
generated science and data provided to the federal agencies in 
listing decisions. In testimony submitted by Garfield County 
Commissioner Tom Jankovsky at a Natural Resources Committee 
hearing in the 113th Congress, the accuracy of a map developed 
by the U.S. Fish and Wildlife Service (FWS) for sage grouse 
habitat in Colorado was questioned after the federal agency 
refused the County's request to verify data used by the FWS.\1\ 
In more than one case, a court order has also been required to 
obtain the data from federal officials, even though the data 
was obtained through taxpayer-funded studies. Further testimony 
submitted by Kent McMullen, Chairman of the Franklin County 
Natural Resources Advisory Committee, raised the concern that a 
key document used by FWS in its listing determination was an 
unpublished manuscript that was inaccessible for public 
review.\2\
---------------------------------------------------------------------------
    \1\Defining Species Conservation Success: Tribal, State and Local 
Stewardship vs. Federal Courtroom Battles and Sue-and-Settle Practices: 
Oversight Hearing Before the H. Comm. On Natural Resources, 113th Cong. 
(2013) (written testimony of Tom Jankovsky, Garfield County, Colorado).
    \2\Transparency and Sound Science Gone Extinct?: The Impacts of the 
Obama Administration's Closed-Door Settlements on Endangered Species 
and People: Oversight Hearing Before the H. Comm. On Natural Resources, 
113th Cong. (2013) (testimony of Kent McMullen, Franklin County Natural 
Resources Advisory Committee, at 21).
---------------------------------------------------------------------------
    Tribal governments also play a significant role in species 
conservation and recovery activities and some have raised 
concerns that tribal data and science are not factored into ESA 
listing decisions. For example, in the Columbia and Snake 
Rivers, where 13 populations of salmon are listed under the 
ESA, tribal hatchery managers have successfully utilized 
hatchery supplementation to enhance salmon and steelhead 
recovery for several years. The Snake River fall chinook run 
has rebounded to near-record levels due in large part to the 
tribal hatchery programs. Though a federal court ordered the 
National Marine Fisheries Service (NMFS) in 2001 to consider 
hatchery salmon in populations proposed for ESA listing, NMFS 
issued a revised policy that emphasized the ``negative 
impacts'' of hatchery fish on naturally spawning fish, and 
ignored tribal scientific data highlighting the positive 
benefits that hatchery fish are having on recovering salmon in 
the Northwest.\3\
---------------------------------------------------------------------------
    \3\Trout Unlimited v. Lohn, 559 F.3d 946 (9th Cir. 2009); 70 Fed. 
Reg. 37, 204.
---------------------------------------------------------------------------
    H.R. 1274 would simply require FWS and NMFS to be 
transparent in their use of data for ESA listing decisions, 
both with their ESA Section 6 cooperation responsibilities with 
States and with respecting valuable State, local and tribal 
data to guide listing determinations that affect them and their 
citizens. The bill ensures that States are afforded every 
opportunity to provide input on laws, regulations, and policies 
related to the implementation of the ESA before such laws, 
regulations, and policies are final. This bill also would 
ensure that the best scientific and commercial data available 
for ESA listing decisions includes data from those closest to 
the ground and most affected by the listings--the States, local 
governments, and tribes.

        Section-by-Section Analysis of Text as Ordered Reported

Section 1. Short title

    The Act may be referred to as the State, Tribal, and Local 
Species Transparency and Recovery Act.

Section 2. Decisional transparency and use of State, tribal, and local 
        information

    Subsection (a) amends ESA Section 6 to require decisional 
transparency with the States by requiring the relevant 
Secretary to provide all data used in listing determinations to 
affected States.
    Subsection (b) ensures FWS or NMFS use of State, tribal, 
and local information in listing decisions by clarifying that 
the term ``best scientific and commercial data'' includes all 
such data submitted by a State, tribal, or county government.
    Subsection (c) requires FWS and NMFS to post on the 
internet the ``best available commercial and scientific data'' 
that they use to support their ESA listing determinations 
unless public disclosure is prohibited by a State law relating 
to protection of personal information (as determined by the 
affected State).

                            Committee Action

    H.R. 1274 was introduced on March 1, 2017, by Congressman 
Dan Newhouse (R-WA). The bill was referred to the Committee on 
Natural Resources. On July 19, 2017, the Committee held a 
hearing on the bill. On October 3, 2017, the Natural Resources 
Committee met to consider the bill. Congressman Tom McClintock 
(R-CA) offered an amendment designated 046; it was adopted by 
voice vote. No further amendments were offered and the bill, as 
amended, was ordered favorably reported to the House of 
Representatives on October 4, 2017, by a roll call vote of 22 
ayes and 14 noes, as follows:

            Committee Oversight Findings and Recommendations

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Natural Resources' oversight findings and 
recommendations are reflected in the body of this report.

      Compliance With House Rule XIII and Congressional Budget Act

    1. Cost of Legislation and the Congressional Budget Act. 
With respect to the requirements of clause 3(c)(2) and (3) of 
rule XIII of the Rules of the House of Representatives and 
sections 308(a) and 402 of the Congressional Budget Act of 
1974, the Committee has received the following estimate for the 
bill from the Director of the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, December 4, 2017.
Hon. Rob Bishop,
Chairman, Committee on Natural Resources,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1274, the State, 
Tribal, and Local Species Transparency and Recovery Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CB0 staff contact is Jeff LaFave.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

H.R. 1274--State, Tribal, and Local Species Transparency and Recovery 
        Act

    H.R. 1274 would require the Secretaries of the Departments 
of the Interior and Commerce to make available to states the 
data those departments use as the basis for each listing 
determination made under the Endangered Species Act. Such 
determinations are required to be based on the best scientific 
and commercial data available. H.R. 1274 would clarify that 
such data includes information provided by state, local, and 
tribal governments. Using information from the affected 
departments, CBO estimates that implementing the legislation 
would have no significant effect on the federal budget.
    Enacting H.R. 1274 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    CBO estimates that enacting H.R. 1274 would not increase 
net direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2028.
    H.R. 1274 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    The CBO staff contact for this estimate is Jeff LaFave. The 
estimate was approved by H. Samuel Papenfuss, Deputy Assistant 
Director for Budget Analysis.
    2. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goal or 
objective of this bill is to amend the Endangered Species Act 
of 1973 to require making available to States affected by 
determinations that species are endangered species or 
threatened species all data that is the basis of such 
determinations.

                           Earmark Statement

    This bill does not contain any Congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined 
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of 
the House of Representatives.

                    Compliance With Public Law 104-4

    This bill contains no unfunded mandates.

                       Compliance With H. Res. 5

    Directed Rule Making. This bill does not contain any 
directed rule makings.
    Duplication of Existing Programs. This bill does not 
establish or reauthorize a program of the federal government 
known to be duplicative of another program. Such program was 
not included in any report from the Government Accountability 
Office to Congress pursuant to section 21 of Public Law 111-139 
or identified in the most recent Catalog of Federal Domestic 
Assistance published pursuant to the Federal Program 
Information Act (Public Law 95-220, as amended by Public Law 
98-169) as relating to other programs.

                Preemption of State, Local or Tribal Law

    This bill is not intended to preempt any State, local or 
tribal law.

                        Changes in Existing Law

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, and existing law in which no 
change is proposed is shown in roman):

                     ENDANGERED SPECIES ACT OF 1973

           *       *       *       *       *       *       *
                              definitions

  Sec. 3. For the purposes of this Act--
  (1) The term ``alternative courses of action'' means all 
alternatives and thus is not limited to original project 
objectives and agency jurisdiction.
  (2) The term ``best scientific and commercial data 
available'' includes all such data submitted by a State, 
tribal, or county government.
  [(2)] (3) The term ``commercial activity'' means all 
activities of industry and trade, including, but not limited 
to, the buying or selling of commodities and activities 
conducted for the purpose of facilitating such buying and 
selling: Provided, however, That it does not include 
exhibitions of commodities by museums or similar cultural or 
historical organizations.
  [(3)] (4) The terms ``conserve,''``conserving,'' and 
``conservation'' mean to use and the use of all methods and 
procedures which are necessary to bring any endangered species 
or threatened species to the point at which the measures 
provided pursuant to this Act are no longer necessary. Such 
methods and procedures include, but are not limited to, all 
activities associated with scientific resources management such 
as research, census, law enforcement, habitat acquisition and 
maintenance, propagation, live trapping, and transplantation, 
and, in the extraordinary case where population pressures 
within a given ecosystem cannot be otherwise relieved, may 
include regulated taking.
  [(4)] (5) The term ``Convention'' means the Convention on 
International Trade in Endangered Species of Wild Fauna and 
Flora, signed on March 3, 1973, and the appendices thereto.
  [(5)] (6)(A) The term ``critical habitat'' for a threatened 
or endangered species means--
          (i) the specific areas within the geographical area 
        occupied by the species, at the time it is listed in 
        accordance with the provisions of section 4 of this 
        Act, on which are found those physical or biological 
        features (I) essential to the conservation of the 
        species and (II) which may require special management 
        considerations or protection; and
          (ii) specific areas outside the geographical area 
        occupied by the species at the time it is listed in 
        accordance with the provisions of section 4 of this 
        Act, upon a determination by the Secretary that such 
        areas are essential for the conservation of the 
        species.
  (B) Critical habitat may be established for those species now 
listed as threatened or endangered species for which no 
critical habitat has heretofore been established as set forth 
in subparagraph (A) of this paragraph.
  (C) Except in those circumstances determined by the 
Secretary, critical habitat shall not include the entire 
geographical area which can be occupied by the threatened or 
endangered species.
  [(6)] (7) The term ``endangered species'' means any species 
which is in danger of extinction throughout all or a 
significant portion of its range other than a species of the 
Class Insecta determined by the Secretary to constitute a pest 
whose protection under the provisions of this Act would present 
an overwhelming and overriding risk to man.
  [(7)] (8) The term ``Federal agency'' means any department, 
agency, or instrumentality of the United States.
  [(8)] (9) The term ``fish or wildlife'' means any member of 
the animal kingdom, including without limitation any mammal, 
fish, bird (including any migratory, nonmigratory, or 
endangered bird for which protection is also afforded by treaty 
or other international agreement), amphibian, reptile, mollusk, 
crustacean, arthropod or other invertebrate, and includes any 
part, product, egg, or offspring thereof, or the dead body or 
parts thereof.
  [(9)] (10) The term ``foreign commerce'' includes, among 
other things, any transaction--
          (A) between persons within one foreign country;
          (B) between persons in two or more foreign countries;
          (C) between a person within the United States and a 
        person in a foreign country; or
          (D) between persons within the United States, where 
        the fish and wildlife in question are moving in any 
        country or countries outside the United States.
  [(10)] (11) The term ``import'' means to land on, bring into, 
or introduce into or attempt to land on, bring into, or 
introduce into, any place subject to the jurisdiction of the 
United States, whether or not such landing, bringing, or 
introduction constitutes an importation within the meaning of 
the customs laws of the United States.
  (12) The term ``permit or license applicant'' means, when 
used with respect to an action of a Federal agency for which 
exemption is sought under section 7, any person whose 
application to such agency for a permit or license has been 
denied primarily because of the application of section 7(a) to 
such agency action.
  (13) The term ``person'' means an individual, corporation, 
partnership, trust, association, or any other private entity; 
or any officer, employee, agent, department, or instrumentality 
of the Federal Government, of any State, municipality, or 
political subdivision of a State, or of any foreign government; 
any State, municipality, or political subdivision of a State; 
or any other entity subject to the jurisdiction of the United 
States.
  (14) The term ``plant'' means any member of the plant 
kingdom, including seeds, roots and other parts thereof.
  (15) The term ``Secretary'' means, except as otherwise herein 
provided, the Secretary of the Interior or the Secretary of 
Commerce as program responsibilities are vested pursuant to the 
provisions of Reorganization Plan Numbered 4 of 1970; except 
that with respect to the enforcement of the provisions of this 
Act and the Convention which pertain to the importation or 
exportation of terrestrial plants, the term also means the 
Secretary of Agriculture.
  (16) The term ``species'' includes any subspecies of fish or 
wildlife or plants, and any distinct population segment of any 
species of vertebrate fish or wildlife which interbreeds when 
mature.
  (17) The term ``State'' means any of the several States, the 
District of Columbia, the Commonwealth of Puerto Rico, American 
Samoa, the Virgin Islands, Guam, and the Trust Territory of the 
Pacific Islands.
  (18) The term ``State agency'' means any State agency, 
department, board, commission, or other governmental entity 
which is responsible for the management and conservation of 
fish, plant, or wildlife resources within a State.
  (19) The term ``take'' means to harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect, or to attempt to 
engage in any such conduct.
  (20) The term ``threatened species'' means any species which 
is likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of 
its range.
  (21) The term ``United States,'' when used in a geographical 
context, includes all States.

       determination of endangered species and threatened species

  Sec. 4. (a) General.--(1) The Secretary shall by regulation 
promulgated in accordance with subsection (b) determine whether 
any species is an endangered species or a threatened species 
because of any of the following factors:
          (A) the present or threatened destruction, 
        modification, or curtailment of its habitat or range;
          (B) overutilization for commercial, recreational, 
        scientific, or educational purposes;
          (C) disease or predation;
          (D) the inadequacy of existing regulatory mechanisms; 
        or
          (E) other natural or manmade factors affecting its 
        continued existence.
  (2) With respect to any species over which program 
responsibilities have been vested in the Secretary of Commerce 
pursuant to Reorganization Plan Numbered 4 of 1970--
          (A) in any case in which the Secretary of Commerce 
        determines that such species should--
                  (i) be listed as an endangered species or a 
                threatened species, or
                  (ii) be changed in status from a threatened 
                species to an endangered species, he shall so 
                inform the Secretary of the Interior, who shall 
                list such species in accordance with this 
                section;
          (B) in any case in which the Secretary of Commerce 
        determines that such species should--
                  (i) be removed from any list published 
                pursuant to subsection (c) of this section, or
                  (ii) be changed in status from an endangered 
                species to a threatened species, he shall 
                recommend such action to the Secretary of the 
                Interior, and the Secretary of the Interior, if 
                he concurs in the recommendation, shall 
                implement such action; and
          (C) the Secretary of the Interior may not list or 
        remove from any list any such species, and may not 
        change the status of any such species which are listed, 
        without a prior favorable determination made pursuant 
        to this section by the Secretary of Commerce.
  (3)(A) The Secretary, by regulation promulgated in accordance 
with subsection (b) and to the maximum extent prudent and 
determinable--
          (i) 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
          (ii) may, from time-to-time thereafter as 
        appropriate, revise such designation.
  (B)(i) The Secretary shall not designate as critical habitat 
any lands or other geographical areas owned or controlled by 
the Department of Defense, or designated for its use, that are 
subject to an integrated natural resources management plan 
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), 
if the Secretary determines in writing that such plan provides 
a benefit to the species for which critical habitat is proposed 
for designation.
  (ii) Nothing in this paragraph affects the requirement to 
consult under section 7(a)(2) with respect to an agency action 
(as that term is defined in that section).
  (iii) Nothing in this paragraph affects the obligation of the 
Department of Defense to comply with section 9, including the 
prohibition preventing extinction and taking of endangered 
species and threatened species.
  (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 
consideration to species which have been--
          (i) designated as requiring protection from 
        unrestricted commerce by any foreign nation, or 
        pursuant to any international agreement; or
          (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 conservation of fish or wildlife 
        or plants.
  (2) The Secretary shall designate critical habitat, and make 
revisions thereto, under subsection (a)(3) on the basis of the 
best scientific data available and after taking into 
consideration the economic impact, the impact on national 
security, 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 publish 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 
indicating 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 
                protections 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 evaluation 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 resubmitted to the Secretary under subparagraph (A) on the 
date of such finding and that presents substantial scientific 
or commercial information that the petitioned action may be 
warranted.
  (ii) Any negative finding described in subparagraph (A) and 
any finding described in subparagraph (B)(i) or (iii) shall be 
subject to judicial review.
  (iii) The Secretary shall implement a system to monitor 
effectively the status of all species with respect to which a 
finding is made under subparagraph (B)(iii) and shall make 
prompt use of the authority under paragraph 7 to prevent a 
significant risk to the well being of any such species.
  (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 revision 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 determine 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 promulgated 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 (including 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 
        Secretary 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 
        professional 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 
        regulation 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 
        endangered 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,
                  (III) notice that such one-year period is 
                being extended under subparagraph (B)(i), or
                  (IV) notice that the proposed regulation is 
                being withdrawn 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 disagreement 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 
endangered species or a threatened species shall be published 
concurrently with the final regulation implementing the 
determination 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 published; or
          (ii) critical habitat of such species is not then 
        determinable, in which case the Secretary, with respect 
        to the proposed regulation 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 significant risk to the well-being of any species of 
fish and wildlife or plants, but only if--
          (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 determines, 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 relationship 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.
  (9) The Secretary shall make publicly available on the 
Internet the best scientific and commercial data available that 
are the basis for each regulation, including each proposed 
regulation, promulgated under subsection (a)(1), except that, 
at the request of a Governor or legislature of a State, the 
Secretary shall not make available under this paragraph 
information regarding which the State has determined public 
disclosure is prohibited by a law of that State relating to the 
protection of personal information.
  (c) Lists.--(1) The Secretary of the Interior shall publish 
in the Federal Register a list of all species determined by him 
or the Secretary of Commerce to be endangered species and a 
list of all species determined by him or the Secretary of 
Commerce to be threatened species. Each list shall refer to the 
species contained therein by scientific and common name or 
names, if any, specify with respect to such species over what 
portion of its range it is endangered or threatened, and 
specify any critical habitat within such range. 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).
  (2) 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 paragraph (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 
accordance with the provisions of subsection (a) and (b).
  (d) Protective Regulations.--Whenever any species is listed 
as a threatened species pursuant to subsection (c) of this 
section, the Secretary shall issue such regulations as he deems 
necessary and advisable to provide for the conservation of such 
species. The Secretary may by regulation prohibit with respect 
to any threatened species any act prohibited under section 
9(a)(1), in the case of fish or wildlife, or section 9(a)(2) in 
the case of plants, with respect to endangered species; except 
that with respect to the taking of resident species of fish or 
wildlife, such, regulations shall apply in any State which has 
entered into a cooperative agreement pursuant to section 6(c) 
of this Act only to the extent that such regulations have also 
been adopted by such State.
  (e) Similarity of Appearance Cases.--The Secretary may, by 
regulation of commerce or taking, and to the extent he deems 
advisable, treat any species as an endangered species or 
threatened species even through it is not listed pursuant to 
section 4 of this Act if he finds that--
          
          (A) such species so closely resembles in appearance, 
        at the point in question, a species which has been 
        listed pursuant to such section that enforcement 
        personnel would have substantial difficulty in 
        attempting to differentiate between the listed and 
        unlisted species;
          (B) the effect of this substantial difficulty is an 
        additional threat to an endangered or threatened 
        species; and
          (C) such treatment of an unlisted species will 
        substantially facilitate the enforcement and further 
        the policy of this Act.
  (f)(1) Recovery Plans.--The Secretary shall develop and 
implement 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 Secretary, in developing 
and implementing recovery plans, shall, to the maximum extent 
practicable--
          (A) give priority to those endangered species or 
        threatened species, without regard to taxonomic 
        classification, that are most likely to benefit from 
        such plans, particularly those species that are, or may 
        be, in conflict with construction or other development 
        projects or other forms of economic activity;
          (B) incorporate in each plan--
                  (i) a description of such site-specific 
                management actions as may be necessary to 
                achieve the plan's goal for the conservation 
                and survival of the species;
                  (ii) objective, measurable criteria which, 
                when met, would result in a determination, in 
                accordance with the provisions of this section, 
                that the species be removed from the list; and
                  (iii) estimates of the time required and the 
                cost to carry out those measures needed to 
                achieve the plan's goal and to achieve 
                intermediate steps toward that goal.
  (2) The Secretary, in developing and implementing recovery 
plans, may procure the services of appropriate public and 
private agencies and institutions and other qualified persons. 
Recovery teams appointed pursuant to this subsection shall not 
be subject to the Federal Advisory Committee Act.
  (3) The Secretary shall report every two years to the 
Committee on Environment and Public Works of the Senate and the 
Committee on Merchant Marine and Fisheries of the House of 
Representatives on the status of efforts to develop and 
implement recovery plans for all species listed pursuant to 
this section and on the status of all species for which such 
plans have been developed.
  (4) The Secretary shall, prior to final approval of a new or 
revised recovery plan, provide public notice and an opportunity 
for public review and comment on such plan. The Secretary shall 
consider all information presented during the public comment 
period prior to approval of the plan.
  (5) Each Federal agency shall, prior to implementation of a 
new or revised recovery plan, consider all information 
presented during the public comment period under paragraph (4).
  (g) Monitoring.--(1) The Secretary shall implement a system 
in cooperation with the States to monitor effectively for not 
less than five years the status of all species which have 
recovered to the point at which the measures provided pursuant 
to this Act are no longer necessary and which, in accordance 
with the provisions of this section, have been removed from 
either of the lists published under subsection (c).
  (2) The Secretary shall make prompt use of the authority 
under paragraph 7 of subsection (b) of this section to prevent 
a significant risk to the well being of any such recovered 
species.
  (h) Agency Guidelines.--The Secretary shall establish, and 
publish in the Federal Register, agency guidelines to insure 
that the purposes of this section are achieved efficiently and 
effectively. Such guidelines shall include, but are not limited 
to--
          (1) procedures for recording the receipt and the 
        disposition of petitions submitted under subsection 
        (b)(3) of this section;
          (2) criteria for making the findings required under 
        such subsection with respect to petitions;
          (3) a ranking system to assist in the identification 
        of species that should receive priority review under 
        subsection (a)(1) of the section; and
          (4) a system for developing and implementing, on a 
        priority basis, recovery plans under subsection (f) of 
        this section.
The Secretary shall provide to the public notice of, and 
opportunity to submit written comments on, any guideline 
(including any amendment thereto) proposed to be established 
under this subsection.
  (i) 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.

           *       *       *       *       *       *       *

                      cooperation with the states

  Sec. 6. (a) General.--(1) In carrying out the program 
authorized by this Act, the Secretary shall cooperate to the 
maximum extent practicable with the States. [Such cooperation 
shall include]
  (2) Such cooperation shall include--
          (A) before making a determination under section 4(a), 
        providing to States affected by such determination all 
        data that is the basis of the determination; and
          (B) consultation with the States concerned before 
        acquiring any land or water, or interest therein, for 
        the purpose of conserving any endangered species or 
        threatened species.
  (b) Management Agreements.--The Secretary may enter into 
agreements with any State for the administration and management 
of any area established for the conservation of endangered 
species or threatened species. Any revenues derived from the 
administration of such areas under these agreements shall be 
subject to the provisions of section 401 of the Act of June 15, 
1935 (49 Stat. 383; 16 U.S.C. 715s).
  (c)(1) Cooperative Agreements.--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 adequate and 
active program for the conservation of endangered species and 
threatened species. 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 purpose 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 and threatened species, 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 fish or wildlife 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 fish 
        or wildlife 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 fish and wildlife;
          (D) the State agency is authorized to establish 
        programs, including the acquisition of land or aquatic 
        habitat or interests therein, for the conservation of 
        resident endangered or threatened species of fish or 
        wildlife; and
          (E) provision is made for public participation in 
        designating resident species of fish or wildlife as 
        endangered or threatened; or
that under the State program--
                  
          (i) the requirements set forth in subparagraphs (C), 
        (D), and (E) of this paragraph are complied with, and
          (ii) plans are included under which immediate 
        attention will be given to those resident species of 
        fish and wildlife which are determined by the Secretary 
        or the State agency to be endangered or threatened 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 respect to the taking of any resident endangered 
        or threatened species.
  (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 adequate 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 purpose 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 
findings, 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 threatened 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 respect to the 
                taking of any resident endangered or threatened 
                species.
  (d) Allocation of Funds.--(1) The Secretary is authorized to 
provide financial assistance to any State, through its 
respective State agency, which has entered into a cooperative 
agreement pursuant to subsection (c) of this section to assist 
in development of programs for the conservation of endangered 
and threatened species or to assist in monitoring the status of 
candidate species pursuant to subparagraph (C) of section 
4(b)(3) and recovered species pursuant to section 4(g). The 
Secretary shall allocate each annual appropriation made in 
accordance with the provisions of subsection (i) of this 
section to such States based on consideration of--
          (A) the international commitments of the United 
        States to protect endangered species or threatened 
        species;
          (B) the readiness of a State to proceed with a 
        conservation program consistent with the objectives and 
        purposes of this Act;
          (C) the number of endangered species and threatened 
        species within a State;
          (D) the potential for restoring endangered species 
        and threatened species within a State;
          (E) the relative urgency to initiate a program to 
        restore and protect an endangered species or threatened 
        species in terms of survival of the species;
          (F) the importance of monitoring the status of 
        candidate species within a State to prevent a 
        significant risk to the well being of any such species; 
        and
          (G) the importance of monitoring the status of 
        recovered species within a State to assure that such 
        species do not return to the point at which the 
        measures provided pursuant to this Act are again 
        necessary.
So much of the annual appropriation made in accordance with 
provisions of subsection (i) of this section allocated for 
obligation to any State for any fiscal year as remains 
unobligated at the close thereof is authorized to be made 
available to that State until the close of the succeeding 
fiscal year. Any amount allocated to any State which is 
unobligated at the end of the period during which it is 
available for expenditure is authorized to be made available 
for expenditure by the Secretary in conducting programs under 
this section.
  (2) Such cooperative agreements shall provide for (A) the 
actions to be taken by the Secretary and the States; (B) the 
benefits that are expected to be derived in connection with the 
conservation of endangered or threatened species; (C) the 
estimated cost of these actions; and (D) the share of such 
costs to be bore by the Federal Government and by the States; 
except that--
          
          (i) the Federal share of such program costs shall not 
        exceed 75 percent of the estimated program cost stated 
        in the agreement; and
          (ii) the Federal share may be increased to 90 percent 
        whenever two or more States having a common interest in 
        one or more endangered or threatened species, the 
        conservation of which may be enhanced by cooperation of 
        such States, enter jointly into agreement with the 
        Secretary.
The Secretary may, in his discretion, and under such rules and 
regulations as he may prescribe, advance funds to the State for 
financing the United States pro rata share agreed upon in the 
cooperative agreement. For the purposes of this section, the 
non-Federal share may, in the discretion of the Secretary, be 
in the form of money or real property, the value of which will 
be determined by the Secretary whose decision shall be final.
  (e) Review of State Programs.--Any action taken by the 
Secretary under this section shall be subject to his periodic 
review at no greater than annual intervals.
  (f) Conflicts Between Federal and State Laws.--Any State law 
or regulation which applies with respect to the importation or 
exportation of, or interstate or foreign commerce in, 
endangered species or threatened species is void to the extent 
that it may effectively (1) permit what is prohibited by this 
Act or by any regulation which implements this Act, or (2) 
prohibit what is authorized pursuant to an exemption or permit 
provided for in this Act or in any regulation which implements 
this Act. This Act shall not otherwise be construed to void any 
State law or regulation which is intended to conserve 
migratory, resident, or introduced fish or wildlife, or to 
permit or prohibit sale of such fish or wildlife. Any State law 
or regulation respecting the taking of an endangered species or 
threatened species may be more restrictive than the exemptions 
or permits provided for in this Act or in any regulation which 
implements this Act but not less restrictive than the 
prohibitions so defined.
  (g) Transition.--(1) For purposes of this subsection, the 
term ``establishment period'' means, with respect to any State, 
the period beginning on the date of enactment of this Act and 
ending on whichever of the following dates first occurs: (A) 
the date of the close of the 120-day period following the 
adjournment of the first regular session of the legislature of 
such State which commences after such date of enactment, or (B) 
the date of the close of the 15-month period following such 
date of enactment.
  (2) The prohibitions set forth in or authorized pursuant to 
sections 4(d) and 9(a)(1)(B) of this Act shall not apply with 
respect to the taking of any resident endangered species or 
threatened species (other than species listed in Appendix I to 
the Convention or otherwise specifically covered by any other 
treaty or Federal law) within any State--
          (A) which is then a party to a cooperative agreement 
        with the Secretary pursuant to section 6(c) of this Act 
        (except to the extent that the taking of any such 
        species is contrary to the law of such State); or
          (B) except for any time within the establishment 
        period when--
                  (i) the Secretary applies such prohibition to 
                such species at the request of the State, or
                  (ii) the Secretary applies such prohibition 
                after he finds, and publishes his finding, that 
                an emergency exists posing a significant risk 
                to the well-being of such species and that the 
                prohibition must be applied to protect such 
                species. The Secretary's finding and 
                publication may be made without regard to the 
                public hearing or comment provisions of section 
                553 of title 5, United States Code, or any 
                other provision of this Act; but such 
                prohibition shall expire 90 days after the date 
                of its imposition unless the Secretary further 
                extends such prohibition by publishing notice 
                and a statement of justification of such 
                extension.
  (h) Regulations.--The Secretary is authorized to promulgate 
such regulations as may be appropriate to carry out the 
provisions of this section relating to financial assistance to 
States.
  (i) Appropriations.--(1) To carry out the provisions of this 
section for fiscal years after September 30, 1988, there shall 
be deposited into a special fund known as the cooperative 
endangered species conservation fund, to be administered by the 
Secretary, an amount equal to five percent of the combined 
amounts covered each fiscal year into the Federal aid to 
wildlife restoration fund under section 3 of the Act of 
September 2, 1937, and paid, transferred, or otherwise credited 
each fiscal year to the Sport Fishing Restoration Account 
established under 1016 of the Act of July 18, 1984.
  (2) Amounts deposited into the special fund are authorized to 
be appropriated annually and allocated in accordance with 
subsection (d) of this section.

           *       *       *       *       *       *       *

                            DISSENTING VIEWS

    H.R. 1274 would require that all data submitted by states, 
tribes or local governments during a listing determination 
automatically be considered the ``best scientific data 
available.'' The bill would also require that all data that is 
the basis of a listing determination under the Endangered 
Species Act (ESA) be provided to any state affected by the 
listing prior to the final determination.
    Forcing Federal agencies to accept as the ``best available 
science'' anything that states, localities, or tribes submit is 
both unreasonable and impractical. At best, the lack of quality 
control could allow faulty data to warp the ESA process; at 
worst, this provision would invite the submission of 
incomplete, shoddy, or falsified information in support of 
political, not scientific goals.
    Further, H.R. 1274 opens up a whole new avenue for 
litigation under the ESA, particularly in cases where states, 
localities, or tribes submit conflicting data. There is no 
scientific basis whatsoever for Congress to establish any 
particular source of data as being the ``best'' when in fact it 
may not be. Agency decision-makers must constantly evaluate 
data from all sources to ensure they are making decisions based 
on the best information available, and we should encourage them 
to continue doing so.
    The requirement that the U.S. Fish and Wildlife Service 
(FWS) provide states all data used in listing decisions is an 
unnecessary burden on the agency and would be unworkable in 
many cases. FWS already provides any references cited for each 
listing decision, in addition to any data they are authorized 
to release, upon request. However, FWS does not own all of the 
data it uses in making listing decisions, and is therefore not 
legally able to release some of it.
    By dictating what constitutes sound science based on its 
source rather than its merit, this bill creates more problems 
than it solves. The decision on whether or not any particular 
study or data set has scientific merit with respect to an 
individual species listing should be made in the context of on-
the-ground conservation work, not by politicians in Washington, 
DC. For these reasons, we oppose H.R. 1274 as reported.

                                   Raul M. Grijalva,
                                           Ranking Member, Committee on 
                                               Natural Resources.
                                   Darren Soto.
                                   Jared Huffman.
                                   Alan S. Lowenthal.
                                   Nanette Diaz Barragan.
                                   Grace F. Napolitano.
                                   Donald S. Beyer, Jr.
                                   A. Donald McEachin.
                                   Colleen Hanabusa.

                                  [all]
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