IB 

Union Calendar No. 479 

108TH CONGRESS 

2D SESSION H. R. 1662 

[Report No. 108–785] 

To amend the Endangered Species Act of 1973 to require the Secretary 

of the Interior to give greater weight to scientific or commercial data 

that is empirical or has been field-tested or peer-reviewed, and for other 

purposes. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 8, 2003 

Mr. WALDEN of Oregon (for himself, Mr. HUNTER, Mr. GIBBONS, Mr. 

HERGER, Mr. SIMPSON, Mr. HASTINGS of Washington, Mr. OTTER, Mr. 

PEARCE, Mr. PAUL, Mr. CANNON, Mr. MCINNIS, Mrs. CUBIN, Mr. STENHOLM, Mr. NETHERCUTT, Mr. REHBERG, Mr. DOOLITTLE, Mr. RENZI, 

and Mr. BRADY of Texas) introduced the following bill; which was referred to the Committee on Resources 

NOVEMBER 19, 2004 

Additional sponsors: Mr. RADANOVICH, Mr. THORNBERRY, Mr. BISHOP of 

Utah, Mr. EDWARDS, Mr. OSBORNE, Mr. BARTLETT of Maryland, Mr. 

WICKER, Mr. NORWOOD, Mr. DOOLEY of California, Mr. LINDER, Mr. 

GARY G. MILLER of California, Mr. AKIN, Mr. SHADEGG, Mr. CARDOZA, 

Mrs. EMERSON, Mr. NUNES, Ms. DUNN, Mr. JONES of North Carolina, 

Mr. TERRY, Mr. TANCREDO, Mr. SANDLIN, Mr. KING of Iowa, Mr. PICKERING, Mr. MILLER of Florida, Mr. TURNER of Texas, Mr. HEFLEY, Mr. 

ISSA, Mr. ROSS, Mr. PUTNAM, Mr. BISHOP of Georgia, Mr. PETERSON

of Pennsylvania, Mr. PITTS, Mr. CALVERT, Mr. LINCOLN DIAZ-BALART

of Florida, Mr. BLUNT, Mrs. MUSGRAVE, Mr. SHIMKUS, Mr. OSE, Mr. 

FLAKE, Mr. FEENEY, Mr. NEUGEBAUER, Ms. HART, Mr. HAYWORTH, 

Ms. HARRIS, Mr. WILSON of South Carolina, Mr. BONNER, Mr. CRAMER, 

Mr. LEWIS of Kentucky, and Mr. DUNCAN

NOVEMBER 19, 2004 

Reported with amendments, committed to the Committee of the Whole House 

on the State of the Union, and ordered to be printed 
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[Strike out all after the enacting clause and insert the part printed in italic] 

[For text of introduced bill, see copy of bill as introduced on April 8, 2003] 

A BILL 

To amend the Endangered Species Act of 1973 to require 

the Secretary of the Interior to give greater weight to 

scientific or commercial data that is empirical or has 

been field-tested or peer-reviewed, 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 Data Quality Act of 2004’’. 

6 SEC. 2. SOUND SCIENCE. 

7 (a) BEST SCIENTIFIC AND COMMERCIAL DATA AVAIL8 ABLE.— 

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

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

11 (A) by amending the section heading to 

12 read as follows: 

13 ‘‘SEC. 3. DEFINITIONS AND GENERAL PROVISIONS.’’. 

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

15 Act—’’ and inserting the following: 

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

17 (C) by adding at the end the following: 
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1 ‘‘(b) USE OF CERTAIN DATA.—In any case in which 

2 the Secretary is required by this Act to use the best scientific 

3 and commercial data available or the best scientific data 

4 available, the Secretary shall— 

5 ‘‘(1) ensure that such data comply with guide6 lines issued under section 515 of the Treasury and 

7 General Government Appropriations Act, 2001 (Pub8 lic Law 106–554; 114 Stat. 2763A–171) by the Direc9 tor of the Office of Management and Budget, and any 

10 guidance issued by the Secretary pursuant to such 

11 guidelines, except as provided in this Act; 

12 ‘‘(2) ensure that such data include timely field 

13 survey data to the extent such data are available; and 

14 ‘‘(3) give greater weight to interpretations of 

15 data derived from or verified by timely field work 

16 (commonly referred to as ‘empirical data’) that have 

17 been subjected to peer-review.’’. 

18 (2) CONFORMING AMENDMENT.—The table of 

19 contents in the first section of the Endangered Species 

20 Act of 1973 is amended by striking the item relating 

21 to section 3 and inserting the following: 

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

22 (b) USE OF SOUND SCIENCE IN LISTING.—Section 

23 4(b) of the Endangered Species Act of 1973 (16 U.S.C. 

24 1533(b)) is amended by adding at the end the following: 
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1 ‘‘(9) ESTABLISHMENT OF CRITERIA FOR SCI2 ENTIFIC DATA TO SUPPORT LISTING.—Not later than 

3 1 year after the date of the enactment of this para4 graph, the Secretary shall promulgate regulations 

5 that establish criteria that must be met in order to 

6 determine under this section that data is the best sci7 entific and commercial data available and for best 

8 scientific data available to be used as the basis of a 

9 determination under this section that a species is an 

10 endangered species or a threatened species. 

11 ‘‘(10) FIELD DATA.— 

12 ‘‘(A) REQUIREMENT.—The Secretary may 

13 not determine that a species is an endangered 

14 species or a threatened species unless the deter15 mination or designation, respectively, is sup16 ported by data obtained by timely fields. 

17 ‘‘(B) DATA FROM REAL PROPERTY OWNERS

18 AND OPERATORS.—The Secretary shall— 

19 ‘‘(i) accept data during the appro20 priate public comment period regarding the 

21 status of a species that is collected by an in22 dividual who is an owner of real property 

23 or who holds or is an applicant for a con24 tract, lease, or other permit for real prop-
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1 erty through observation of the species on 

2 the real property; and 

3 ‘‘(ii) acknowledge receipt of data sub4 mitted under clause (i) and include such 

5 data in the rulemaking record compiled 

6 under this section for any determination 

7 that the species is an endangered species or 

8 a threatened species.’’. 

9 (c) USE OF SOUND SCIENCE IN RECOVERY PLAN10 NING.—Section 4(f) of the Endangered Species Act of 1973 

11 (16 U.S.C. 1533(f)) is amended by adding at the end the 

12 following: 

13 ‘‘(6) ADDITIONAL DATA.— 

14 ‘‘(A) IDENTIFICATION.—The Secretary 

15 shall— 

16 ‘‘(i) identify and publish in the Fed17 eral Register with the notice of a proposed 

18 regulation published pursuant to subsection 

19 (b)(5)(A)(i), and with notice of any final 

20 regulation published pursuant to subsection 

21 (b)(6), a description of additional scientific 

22 and commercial data that would assist in 

23 the preparation of a recovery plan; 

24 ‘‘(ii) invite any person to submit such 

25 data to the Secretary; and 
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1 ‘‘(iii) describe the steps that the Sec2 retary plans to take to acquire additional 

3 data. 

4 ‘‘(B) CONSIDERATION.—Data identified and 

5 obtained under subparagraph (A) shall be con6 sidered by the recovery team and the Secretary 

7 in the preparation of the recovery plan in ac8 cordance with section 5.’’. 

9 SEC. 3. PEER REVIEW. 

10 Section 4 of the Endangered Species Act of 1973 (16 

11 U.S.C. 1533) is amended by adding at the end the following: 

12 ‘‘(j) INDEPENDENT SCIENTIFIC REVIEW REQUIRE13 MENTS.— 

14 ‘‘(1) DEFINITIONS.—In this subsection: 

15 ‘‘(A) COVERED ACTION.—The term ‘covered 

16 action’ means— 

17 ‘‘(i) a proposed determination under 

18 subsection (a)(1) that a species is an endan19 gered species or a threatened species under 

20 subsection (a)(1); 

21 ‘‘(ii) a proposed determination under 

22 subsection (a)(1) that would change the sta23 tus of a species as an endangered species or 

24 a threatened species or would remove such a 
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1 species from any list published under sub2 section (c)(1); 

3 ‘‘(iii) the development of a recovery 

4 plan for a threatened species or endangered 

5 species under subsection (f); and 

6 ‘‘(iv) the determination that a pro7 posed action is likely to jeopardize the con8 tinued existence of a listed species, includ9 ing the proposal of any reasonable and pru10 dent alternatives by the Secretary under 

11 section 7(b)(3). 

12 ‘‘(B) QUALIFIED INDIVIDUAL.—The term 

13 ‘qualified individual’ means an individual— 

14 ‘‘(i) who through publication of peer15 reviewed scientific literature or other 

16 means, has demonstrated scientific expertise 

17 on the species or a similar species or other 

18 scientific expertise relevant to the covered 

19 action; 

20 ‘‘(ii) who does not have, or represent 

21 any person with, a conflict of interest with 

22 respect to the covered action that is the sub23 ject of the review; and 

24 ‘‘(iii) who has not advocated a posi25 tion, and is not employed by a person who 
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1 has advocated a position, with respect to the 

2 outcome of the covered action that is the 

3 subject of the review, or of any previous cov4 ered action with respect to the affected spe5 cies. 

6 ‘‘(C) CONFLICT OF INTEREST.—The term 

7 ‘conflict of interest’— 

8 ‘‘(i) shall have such meaning as is es9 tablished by regulations as shall be issued 

10 by the Secretary; and 

11 ‘‘(ii) shall include, in accordance with 

12 such regulations, direct financial interests 

13 in the outcome of the action that will be the 

14 subject of the review, including consulting 

15 arrangements, grants, honoraria, or em16 ployment. 

17 ‘‘(2) RECOMMENDATION OF INDEPENDENT RE18 VIEWERS.—The Secretary shall solicit recommenda19 tions from the National Academy of Sciences and the 

20 governors of affected States of qualified individuals to 

21 serve as independent reviewers for a covered action. 

22 ‘‘(3) APPOINTMENT OF INDEPENDENT SCIENTIFIC

23 REVIEWERS.—(A) Before making the final decision on 

24 any covered action, the Secretary shall appoint, from 

25 among the individuals recommended under para-
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1 graph (2), 3 qualified individuals who shall review 

2 and report to the Secretary on the scientific informa3 tion and analyses on which the covered action is 

4 based. 

5 ‘‘(B) The selection and activities of the inde6 pendent reviewers appointed pursuant to this para7 graph shall not be subject to the Federal Advisory 

8 Committee Act (5 U.S.C. App.). 

9 ‘‘(C) If funds are available, the Secretary shall 

10 provide compensation to an individual for service as 

11 an independent reviewer under this paragraph, at a 

12 rate not to exceed the daily equivalent of the max13 imum annual rate of basic pay for GS–14 of the Gen14 eral Schedule for each day (including travel time) 

15 during which the individual is engaged in the actual 

16 performance of duties as an independent reviewer. 

17 ‘‘(4) INFORMATION FOR REVIEW.—The Secretary 

18 shall transmit to the independent reviewers all avail19 able scientific and commercial data identified in the 

20 administrative record for the action at the time of the 

21 transmission. 

22 ‘‘(5) RESPONSE OF INDEPENDENT REVIEWERS.— 

23 The independent reviewers shall provide the Sec24 retary, within 3 months after the transmission of the 

25 data under paragraph (4), their reviews regarding all 
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1 relevant scientific information and assumptions relat2 ing to the taxonomy, population models, and sup3 portive biological and ecological information for the 

4 species in question. 

5 ‘‘(6) NOTICE OF DATA AVAILABILITY.— 

6 ‘‘(A) Following receipt of the reviews pro7 vided under paragraph (5) and not less than 30 

8 days before making the final decision on a cov9 ered action described in paragraph (1)(A)(i) or 

10 (ii), the Secretary shall publish a notice of the 

11 availability of the draft determination of which 

12 data available qualify as the best scientific and 

13 commercial data available on which the final de14 cision will be based and which do not, including 

15 any ongoing assessments that are expected to 

16 produce such data. 

17 ‘‘(B) The Secretary shall provide the public 

18 with not less than 15 days to identify any addi19 tional information that should be considered as 

20 best scientific and commercial data available 

21 data with respect to a covered action described 

22 in paragraph (1)(A)(i) or (ii), including the rea23 sons why such information should be so consid24 ered. 
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1 ‘‘(C) The Secretary shall explain, in the no2 tice of final covered action with respect to a cov3 ered action described in paragraph (1)(A)(i) or 

4 (ii), why information identified under subpara5 graph (B) did or did not qualify as the best sci6 entific and commercial data available. 

7 ‘‘(D) The Secretary shall identify the data 

8 that qualified as the best scientific and commer9 cial data available on which the final decision 

10 with respect to a covered action described in 

11 paragraph (1)(A)(iii) or (iv) is based in a final 

12 biological opinion or final recovery plan for the 

13 covered action. 

14 ‘‘(7) FINAL DETERMINATION.—The Secretary 

15 shall evaluate the reviews received pursuant to para16 graph (5) and include in the final determination— 

17 ‘‘(A) a summary of each independent re18 view; and 

19 ‘‘(B) in any case in which the Secretary 

20 does not accept a recommendation of an inde21 pendent reviewer with respect to data reviewed 

22 pursuant to this subsection, an explanation of 

23 why the recommendation was not followed. 

24 ‘‘(8) PUBLIC NOTICE.—The reviews received by 

25 the Secretary pursuant to paragraph (5) shall be in-
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1 cluded in the official record of the final decision on 

2 the action and shall be available for public review as 

3 soon as the final decision is issued.’’. 

4 SEC. 4. IMPROVED CONSULTATION. 

5 (a) USE OF INFORMATION PROVIDED BY STATES.— 

6 Section 7(b)(1) of the Endangered Species Act of 1973 (16 

7 U.S.C. 1536(b)(1)) is amended by adding at the end the 

8 following: 

9 ‘‘(C) USE OF STATE INFORMATION.—In con10 ducting a consultation under subsection (a)(2), 

11 the Secretary— 

12 ‘‘(i) shall actively solicit and consider 

13 information from the governor of the State 

14 where the agency action is located; and 

15 ‘‘(ii) shall provide an opportunity for 

16 the governor of any State otherwise affected 

17 by the agency action, as determined by the 

18 Secretary, to submit information.’’. 

19 (b) OPPORTUNITY TO PARTICIPATE IN CONSULTA20 TIONS.—Section 7(b)(1) of the Endangered Species Act of 

21 1973 (16 U.S.C. 1536(b)(1)) (as amended by subsection (a)) 

22 is further amended by adding at the end the following: 

23 ‘‘(D) OPPORTUNITY TO PARTICIPATE IN

24 CONSULTATIONS.— 
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1 ‘‘(i) IN GENERAL.—In conducting a 

2 consultation under subsection (a)(2), the 

3 Secretary shall provide to any person who 

4 has sought authorization or funding from a 

5 Federal agency for an action that is the 

6 subject of the consultation or who holds or 

7 is an applicant for a Federal contract, 

8 lease, or other permit that may be materi9 ally affected by an agency action that is the 

10 subject of the consultation— 

11 ‘‘(I) the opportunity, before the 

12 development of a draft biological opin13 ion, to submit and discuss with the 

14 Secretary and the Federal agency in15 formation relevant to the effect of the 

16 proposed action on the species and any 

17 actions that could serve as reasonable 

18 and prudent measures or reasonable 

19 and prudent alternatives in the event 

20 such measures or alternatives are nec21 essary to complete the consultation; 

22 ‘‘(II) information, on request, sub23 ject to the exemptions specified in sec24 tion 552(b) of title 5, United States 

25 Code, on the status of the species, 
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1 threats to the species, and conservation 

2 measures, used by the Secretary to de3 velop the draft biological opinion and 

4 the final biological opinion, including 

5 any associated statement under sub6 section (b)(4); and 

7 ‘‘(III) a copy, on request, of the 

8 draft biological opinion, including any 

9 draft statement under subsection 

10 (b)(4), that was provided to the Fed11 eral agency and, before issuance of the 

12 final biological opinion and statement, 

13 the opportunity to submit comments on 

14 the draft biological opinion and state15 ment and to discuss with the Secretary 

16 and the Federal agency the basis for 

17 any finding in the draft biological 

18 opinion and statement. 

19 ‘‘(ii) EXPLANATION.—If reasonable 

20 and prudent alternatives are proposed by a 

21 person under clause (i) and the Secretary 

22 does not include the alternatives in the final 

23 biological opinion, the Secretary shall ex24 plain to the person why those alternatives 

25 were not included in the opinion. 
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1 ‘‘(iii) PUBLIC ACCESS TO INFORMA2 TION.—Comments and other information 

3 submitted to, or received from, any person 

4 (pursuant to clause (i)) who seeks author5 ization or funding for an action shall be 

6 maintained in a file for that action by the 

7 Secretary and shall be made available to the 

8 public (subject to the exemptions specified 

9 in section 552(b) of title 5, United States 

10 Code).’’. 

Amend the title so as to read: ‘‘A bill to amend the 

Endangered Species Act of 1973 to provide guidance and 

direction on the development and use of data under that 

Act, and for other purposes.’’. 
Union Calendar No. 479 

108TH CONGRESS 

2D SESSION H. R. 1662 

[Report No. 108–785] 

A BILL 

To amend the Endangered Species Act of 1973 to 

require the Secretary of the Interior to give greater weight to scientific or commercial data that is empirical or has been field-tested or peerreviewed, and for other purposes. 

NOVEMBER 19, 2004 

Reported with amendments, committed to the Committee 

of the Whole House on the State of the Union, and ordered to be printed