II

106TH CONGRESS

1ST SESSION S. 1305

To amend the Endangered Species Act of 1973 to improve the processes

for listing, recovery planning, and delisting and for other purposes.

IN THE SENATE OF THE UNITED STATES

JUNE 30, 1999

Mr. THOMAS (for himself and Mr. ENZI) introduced the following bill; which

was read twice and referred to the Committee on Environment and Public

Works

A BILL

To amend the Endangered Species Act of 1973 to improve

the processes for listing, recovery planning, and delisting

and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Endangered Species

5 Listing and Delisting Process Reform Act of 1999’’.

6 SEC. 2. LISTING PROCESS REFORMS.

7 (a) BEST SCIENTIFIC AND COMMERCIAL DATA

8 AVAILABLE.—
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1 (1) IN GENERAL.—Section 3 of the Endangered

2 Species Act of 1973 (16 U.S.C. 1532) is amended—

3 (A) by striking the section heading and in4 serting the following:

5 ‘‘DEFINITIONS AND GENERAL PROVISIONS’’;

6 (B) by striking ‘‘For the purposes of this

7 Act—’’ and inserting the following:

8 ‘‘(a) DEFINITIONS.—In this Act:’’; and

9 (C) by adding at the end the following:

10 ‘‘(b) GENERAL PROVISIONS.—Where this Act re11 quires the Secretary to use the best scientific and commer12 cial data available, the Secretary shall obtain and use sci13 entific or commercial data that is empirical or has been

14 field-tested or peer-reviewed.’’.

15 (2) CONFORMING AMENDMENT.—The table of

16 contents in the first section of the Endangered Spe17 cies Act of 1973 (16 U.S.C. prec. 1531) is amended

18 by striking the item relating to section 3 and insert19 ing the following:

‘‘Sec. 3. Definitions and general provisions.’’.

20 (b) FINDING OF SUFFICIENT BIOLOGICAL INFORMA21 TION TO SUPPORT RECOVERY PLANNING.—Section 4(b)

22 of the Endangered Species Act of 1973 (16 U.S.C.

23 1533(b)) is amended—

24 (1) in paragraph (1)(A), by adding at the end

25 the following: ‘‘The Secretary shall determine that a
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1 species is an endangered species or a threatened spe2 cies only if the Secretary finds that there is suffi3 cient biological information to support recovery plan4 ning for the species under subsection (f).’’; and

5 (2) in the first sentence of paragraph (3)(A), by

6 inserting before the period at the end the following:

7 ‘‘and as to whether the petition presents sufficient

8 biological information to support recovery planning

9 for the species under subsection (f)’’.

10 (c) PETITION PROCESS.—Section 4(b)(3) of the En11 dangered Species Act of 1973 (16 U.S.C. 1533(b)(3)) is

12 amended by adding at the end the following:

13 ‘‘(E) LISTING PETITION INFORMATION.—

14 In the case of a petition to add a species to a

15 list published under subsection (c), a finding

16 that the petition presents the information de17 scribed in subparagraph (A) shall not be made

18 unless the petition provides—

19 ‘‘(i) documentation from a published

20 scientific source that the fish, wildlife, or

21 plant that is the subject of the petition is

22 a species;

23 ‘‘(ii) a description of the available

24 data on the historical and current range

25 and distribution of the species, an expla-
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1 nation of the methodology used to collect

2 the data, and identification of the location

3 where the data can be reviewed;

4 ‘‘(iii) an appraisal of the available

5 data on the status and trends of all extant

6 populations of the species;

7 ‘‘(iv) an appraisal of the available

8 data on the threats to the species;

9 ‘‘(v) an identification of the informa10 tion contained or referred to in the petition

11 that has been peer-reviewed or field-tested;

12 and

13 ‘‘(vi) a description of at least 1 study

14 or credible expert opinion, from a person

15 not affiliated with the petitioner, to sup16 port the action requested in the petition.

17 ‘‘(F) NOTIFICATION TO STATES.—

18 ‘‘(i) PETITIONED ACTIONS.—If a peti19 tion is found to present information de20 scribed in subparagraph (A), the Secretary

21 shall notify and provide a copy of the peti22 tion to the State agency of each State in

23 which the species is believed to occur and

24 solicit the assessment of the agency, to be

25 submitted to the Secretary during a com-
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1 ment period ending 90 days after the date

2 of notification, as to whether the petitioned

3 action is warranted.

4 ‘‘(ii) OTHER ACTIONS.—If the Sec5 retary has not received a petition to add a

6 species to a list published under subsection

7 (c) and the Secretary is considering pro8 posing to list the species as an endangered

9 species or a threatened species under sub10 section (a), the Secretary shall notify the

11 State agency of each State in which the

12 species is believed to occur and solicit the

13 assessment of the agency, to be submitted

14 to the Secretary during a comment period

15 ending 90 days after the date of the notifi16 cation, as to whether the listing would be

17 in accordance with subsection (a).

18 ‘‘(iii) CONSIDERATION OF STATE AS19 SESSMENTS.—Before publication of a find20 ing described in subparagraph (A) that a

21 petition is warranted, the Secretary shall

22 consider any assessments submitted with

23 respect to the species within the comment

24 period established under clause (i) or (ii).’’.
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1 (d) IMPROVING PUBLIC HEARINGS IN THE LISTING

2 PROCESS.—

3 (1) IN GENERAL.—Section 4(b)(5) of the En4 dangered Species Act of 1973 (16 U.S.C.

5 1533(b)(5)) is amended by striking subparagraph

6 (E) and inserting the following:

7 ‘‘(E) promptly hold at least 2 hearings in each

8 State in which the species proposed for determina9 tion as an endangered species or a threatened spe10 cies is located (including at least 1 hearing in an af11 fected rural area if 1 or more rural areas within the

12 State are affected by the determination), except that

13 the Secretary may not be required to hold more than

14 10 hearings under this subparagraph with respect to

15 the proposed regulation.’’.

16 (2) DEFINITION OF RURAL AREA.—Section 3(a)

17 of the Endangered Species Act of 1973 (16 U.S.C.

18 1532(a)) (as amended by subsection (a)(1)(B)) is

19 amended—

20 (A) by redesignating paragraphs (12)

21 through (14) as paragraphs (11) through (13),

22 respectively; and

23 (B) by inserting before paragraph (15) the

24 following:
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1 ‘‘(14) RURAL AREA.—The term ‘rural area’

2 means a county or unincorporated area that has no

3 city or town that has a population of more than

4 10,000 inhabitants.’’.

5 (3) CONFORMING AMENDMENT.—Section 7(n)

6 of the Endangered Species Act of 1973 (16 U.S.C.

7 1536(n)) is amended in the first sentence by striking

8 ‘‘, as defined by section 3(13) of this Act,’’.

9 (e) EMERGENCY LISTING.—Section 4(b)(7) of the

10 Endangered Species Act of 1973 (16 U.S.C. 1533(b)(7))

11 is amended by striking ‘‘posing a significant risk to the

12 well-being’’ and inserting ‘‘that poses an imminent threat

13 to the continued existence’’.

14 (f) OTHER LISTING REFORMS.—Section 4(b) of the

15 Endangered Species Act of 1973 (16 U.S.C. 1533(b)) is

16 amended by adding at the end the following:

17 ‘‘(9) AVAILABILITY OF LISTING DATA.—

18 ‘‘(A) IN GENERAL.—Subject to subpara19 graph (B), upon publication of a proposed regu20 lation determining that a species is an endan21 gered species or a threatened species, the Sec22 retary shall make publicly available—

23 ‘‘(i) all information on which the de24 termination is based, including all sci-
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1 entific studies and data underlying the

2 studies; and

3 ‘‘(ii) all information relating to the

4 species that the Secretary possesses and

5 that does not support the determination.

6 ‘‘(B) LIMITATION.—Subparagraph (A)

7 does not require disclosure of any information

8 that—

9 ‘‘(i) is not subject to section 552 of

10 title 5, United States Code (commonly

11 known as the ‘Freedom of Information

12 Act’); or

13 ‘‘(ii) is prohibited from being disclosed

14 under section 552a of title 5, United

15 States Code (commonly known as the ‘Pri16 vacy Act’).

17 ‘‘(10) ESTABLISHMENT OF CRITERIA FOR SCI18 ENTIFIC STUDIES TO SUPPORT LISTING.—Not later

19 than 1 year after the date of enactment of this para20 graph, the Secretary shall promulgate regulations

21 that establish criteria that must be met for scientific

22 and commercial data to be used as the basis of a de23 termination under this section that a species is an

24 endangered species or a threatened species.

25 ‘‘(11) FIELD DATA.—
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1 ‘‘(A) REQUIREMENT.—The Secretary may

2 not determine that a species is an endangered

3 species or a threatened species unless the deter4 mination is supported by data obtained by ob5 servation of the species in the field.

6 ‘‘(B) DATA FROM LANDOWNERS.—The

7 Secretary shall—

8 ‘‘(i) accept and acknowledge receipt of

9 data regarding the status of a species that

10 is collected by the owner of land through

11 observation of the species on the land; and

12 ‘‘(ii) include the data in the rule13 making record compiled for any determina14 tion that the species is an endangered spe15 cies or a threatened species.’’.

16 SEC. 3. DEADLINE FOR DEVELOPMENT OF RECOVERY

17 PLANS.

18 Section 4(f) of the Endangered Species Act of 1973

19 (16 U.S.C. 1533(f)) is amended by adding at the end the

20 following:

21 ‘‘(6) DEADLINE FOR DEVELOPMENT OF RECOV22 ERY PLANS.—The Secretary shall—

23 ‘‘(A) begin developing a recovery plan re24 quired for a species under paragraph (1) on the

25 date of promulgation of the proposed regulation
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1 to implement a determination under subsection

2 (a)(1) with respect to the species; and

3 ‘‘(B) issue a recovery plan in final form

4 not later than the date of promulgation of the

5 final regulation to implement the determina6 tion.’’.

7 SEC. 4. DELISTING.

8 Section 4(f) of the Endangered Species Act of 1973

9 (16 U.S.C. 1533(f)) (as amended by section 3) is amended

10 by adding at the end the following:

11 ‘‘(7) EFFECT OF FULFILLMENT OF RECOVERY

12 PLAN CRITERIA.—

13 ‘‘(A) CHANGE IN STATUS.—If the Sec14 retary finds that the criteria of a recovery plan

15 have been met for a change in status of the

16 species covered by the recovery plan from an

17 endangered species to a threatened species, or

18 from a threatened species to an endangered

19 species, the Secretary shall promptly publish in

20 the Federal Register a notice of the change in

21 status of the species.

22 ‘‘(B) REMOVAL FROM LISTING.—If the

23 Secretary finds that the criteria of a recovery

24 plan have been met for the removal of the spe25 cies covered by the recovery plan from a list
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1 published under subsection (c), the Secretary

2 shall promptly publish in the Federal Register

3 a notice of an intent to remove the species from

4 the list.’’.

Æ