89–006 

115TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 115–1105 

PROVIDING ESA TIMING IMPROVEMENTS THAT INCREASE 

OPPORTUNITIES FOR NONLISTING ACT OF 2018 

DECEMBER 21, 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. 6355] 

The Committee on Natural Resources, to whom was referred the 

bill (H.R. 6355) to amend the Endangered Species Act of 1973 to 

define petition backlogs and provide expedited means for discharging petitions during such a backlog, 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 ‘‘Providing ESA Timing Improvements That Increase 

Opportunities for Nonlisting Act of 2018’’ or the ‘‘PETITION Act of 2018’’. 

SEC. 2. DEFINITIONS. 

Section 3 of the Endangered Species Act of 1973 (16 U.S.C. 1532) is amended— 

(1) by moving the margins of paragraphs (1) through (21) 2 ems to the right; 

(2) by inserting before the text the following: ‘‘(a) IN GENERAL.—’’; and 

(3) by adding at the end the following: 

‘‘(b) DEFINITIONS RELATED TO PETITIONS.—In this Act: 

‘‘(1) 90-DAY PETITION BACKLOG.—The term ‘90-day petition backlog’ means 

such a backlog declared by the Secretary under section 4(b)(3)(E). 

‘‘(2) 12-MONTH PETITION BACKLOG.—The term ‘12-month petition backlog’ 

means such a backlog declared by the Secretary under section 4(b)(3)(E). 

‘‘(3) BACKLOG SCHEDULE.—The term ‘backlog schedule’ means a comprehensive, regularly updated compendium of petitioned-for species that are the subject of a 90-day petition backlog or a 12-month petition backlog— 

‘‘(A) that consists of— 


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‘‘(i) a list of petitions to add a species to a list of species under section 

4(c), including petitions to move a species from the list of threatened 

species to the list of endangered species; and 

‘‘(ii) a list of petitions to remove a species from a list of species under 

section 4(c), including petitions to move a species from the list of endangered species to the list of threatened species; and 

‘‘(B) in which the petitions in each such list appear in the order in which 

the petitions were submitted to the Secretary. 

‘‘(4) BACKLOG PROCEDURES.—The term ‘backlog procedures’ means the actions 

taken by the Secretary— 

‘‘(A) under section 4(b)(3)(G) following the declaration of a 90-day petition 

backlog; or 

‘‘(B) under section 4(b)(3)(H) following the declaration of a 12-month petition backlog. 

‘‘(5) PETITIONED-FOR SPECIES.—The term ‘petitioned-for species’ means a species that has been identified in a petition presented under subparagraph (A) or 

(B) of section 4(b)(3).’’. 

SEC. 3. BACKLOG DECLARATION AND PROCEDURES. 

(a) IN GENERAL.—Section 4(b)(3) of the Endangered Species Act of 1973 (16 U.S.C. 

1533(b)(3)) is amended by adding at the end the following: 

‘‘(E)(i) The Secretary shall— 

‘‘(I) declare a 90-day petition backlog at any time the total number 

of species for which a petition is presented to the Secretary under subparagraph (A) that has not been the subject of a finding by the Secretary within the timeframe established under such subparagraph exceeds 5 percent of the number of species for which such petitions have 

been presented during the preceding 15 years; 

‘‘(II) submit a backlog schedule for such backlog to— 

‘‘(aa) the President; 

‘‘(bb) the Chairman and ranking minority Member of the Committee on Environment and Public Works of the Senate; and 

‘‘(cc) the Chairman and ranking minority Member of the Committee on Natural Resources of the House of Representatives; and 

‘‘(III) comply with backlog procedures under subparagraph (G) during 

the period such backlog is in effect. 

‘‘(ii) The Secretary shall— 

‘‘(I) declare a 12-month petition backlog at any time the total number 

of species for which a petition is being considered by the Secretary 

under subparagraph (B) that has not been the subject of a finding by 

the Secretary within the timeframe established under such subparagraph exceeds 5 percent of the number of species for which such petitions have been presented during the preceding 15 years; 

‘‘(II) submit a backlog schedule for such backlog to— 

‘‘(aa) the President; 

‘‘(bb) the Chairman and ranking minority Member of the Committee on Environment and Public Works of the Senate; and 

‘‘(cc) the Chairman and ranking minority Member of the Committee on Natural Resources of the House of Representatives; and 

‘‘(III) comply with backlog procedures under subparagraph (H) during 

the period such declaration is in effect. 

‘‘(iii) Not later than 90 days after declaring a 90-day petition backlog or 

12-month petition backlog, and every 90 days thereafter during the period 

such backlog is in effect, the Secretary shall submit to the recipients under 

clause (ii)(II) and (iii)(II), respectively, an updated backlog schedule that 

contains— 

‘‘(I) a list of petitioned-for species for which a finding had been made 

since the last submission of the backlog schedule under such clause; 

‘‘(II) the outcomes of findings for all petitioned-for species for which 

a finding has been made since the last submission of the backlog schedule under such clause; and 

‘‘(III) a summary of the bases of all findings for any petitioned-for 

species for which a finding has been made since the preceding submission of the backlog. 

‘‘(F) The Secretary shall terminate a 90-day petition backlog or 12-month 

petition backlog at such time as the requirements for declaring such backlog under subparagraph (E)(i) or (E)(ii), respectively, are not fulfilled. 

‘‘(G) During the effective period of a 90-day petition backlog— 


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‘‘(i) the requirement under subparagraph (A) to make a finding within 90 days shall not apply with respect to any species that is the subject of a petition included in the list under section 2(b)(3)(A)(i); 

‘‘(ii) except as provided in clause (iii), the Secretary shall not make 

any finding under subparagraph (A) with respect to any species included in the list under section 2(b)(3)(A)(i) in the applicable backlog 

schedule, until the earlier of— 

‘‘(I) the date the Secretary terminates the backlog under subparagraph (F); 

‘‘(II) the date the applicable backlog schedule consists of only the 

list under such section; or 

‘‘(III) the date the only petitioned-for species in the backlog 

schedule to which the Secretary has not devoted sufficient resources so as to issue such a finding within 90 days are those in 

the list under such section; and 

‘‘(iii) the Secretary is deemed to have made a finding under subparagraph (A) that each petition for a species included in the list under section 2(b)(3)(A)(i) in the applicable backlog schedule does not present 

substantial scientific or commercial information indicating that the petitioned action may be warranted, effective upon the expiration of the 

180-day period beginning on the date the petition was submitted. 

‘‘(H) Except as provided in subparagraph (I)— 

‘‘(i) after declaring a 12-month petition backlog under subparagraph 

(E)(ii) and before taking any actions under clause (ii) of this subparagraph, the Secretary shall assign each petition and petitioned-for species to be considered under such clause to one of the five priority bins 

referred to in the notice issued by the United States Fish and Wildlife 

Service entitled ‘Methodology for Prioritizing Status Reviews and Accompanying 12-month findings on Petitions for Listing Under the Endangered Species Act (81 Fed. Reg. 49248 (July 27, 2016))’; and 

‘‘(ii) during the effective period of such 12-month petition backlog 

under subparagraph (E)(ii)— 

‘‘(I) the requirement under subparagraph (B) to make a finding 

within 12 months shall not apply with respect to any species that 

is the subject of a petition included in the list under section 

2(b)(3)(A)(i); 

‘‘(II) the Secretary shall consider under this paragraph only petitions for species included in the list under section 2(b)(3)(A)(ii) in 

the applicable backlog schedule, that were submitted more than 12 

months before the establishment of the backlog; 

‘‘(III) except as provided in subclause (IV), the Secretary shall 

not make any finding under subparagraph (B) with respect to any 

species included in the list under section 2(b)(3)(A)(i) in the applicable backlog schedule, until the earlier of— 

‘‘(aa) the date the Secretary terminates the backlog under 

subparagraph (F); 

‘‘(bb) the date the applicable backlog schedule consists of 

only the list under such section; or 

‘‘(cc) the date the only petitioned-for species in the backlog 

schedule to which the Secretary has not devoted sufficient resources so as to issue such a finding within 12 months are 

those in the list under such section; and 

‘‘(IV) the Secretary is deemed to have made a finding under subparagraph (B)(i) for each species included in the list under section 

2(b)(3)(A)(i) that the petitioned action is not warranted— 

‘‘(aa) effective upon the expiration of the 18-month period beginning on the date the petition was submitted, if the Secretary has not assigned the species to the ‘Highest Priority— 

Critically Imperiled’, ‘Strong Data Already Available on Status’ 

priority bin or ‘New Science Underway to Inform Key Uncertainties’ priority bin referred to in the notice referred to in 

clause (i); or 

‘‘(bb) effective upon the expiration of the 24-month period beginning on the date the petition was submitted, if the Secretary has assigned the species to the ‘Strong Data Already 

Available on Status’ priority bin or ‘New Science Underway to 

Inform Key Uncertainties’ priority bin referred to in the notice 

referred to in clause (i). 


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‘‘(I)(i) In the case of the first 12-month petition backlog under subparagraph (E)(ii)— 

‘‘(I) item (aa) of subparagraph (H)(ii)(IV) shall be applied by substituting ‘30-month’ for ‘18-month’; and 

‘‘(II) item (bb) of subparagraph (H)(ii)(IV) shall be applied by substituting ‘36-month’ for ‘24-month’. 

‘‘(ii) The Secretary may not under subparagraph (H)(i) change the assignment of a petition or petitioned-for species from one priority bin to another 

priority bin. 

‘‘(J) In the case of findings under subparagraph (G)(iii) and (H)(ii)(IV), the 

publication under subparagraph (A) or (B)(i), respectively, may consist solely of a notice of each finding. 

‘‘(K)(i) Except as otherwise provided in this Act, the Secretary shall regularly maintain on the internet site of the United States Fish and Wildlife 

Service a publically available database of petitions referred to in this paragraph and species otherwise evaluated under subsection (a). 

‘‘(ii) The database shall contain information about each petitioned-for species including— 

‘‘(I) the date a petition for such species was submitted; 

‘‘(II) the person who submitted the petition; 

‘‘(III) the current status of the petition within the statutory and agency process, including the most recent agency action taken; 

‘‘(IV) a web link to any documents received under this paragraph that 

constituted the petition for such species; 

‘‘(V) a web link to any materials the Secretary has received from 

State or local governments pertaining to petitions to list such species; 

‘‘(VI) the outcomes of all prior petitioning or listing procedures for 

such species; and 

‘‘(VII) the outcomes of all prior litigation against the Federal Government on the basis of a petition for or listing of such species, including 

actions or agreements by the Federal Government to— 

‘‘(aa) dispense monies to litigating parties or counsel; 

‘‘(bb) promulgate rules as a direct or indirect result of litigation 

outcomes or agreements; 

‘‘(cc) resolve any matter related to the petition or a petitionedfor species by a certain date, or otherwise; 

‘‘(dd) conduct further research or analysis related to the petition 

or petitioned-for species; or 

‘‘(ee) engage in any other activity as a result of the terms of litigation settlements or court orders related to such petitions or petitioned-for species. 

‘‘(L) Notwithstanding subparagraph (C)(ii), a finding by the Secretary 

under subparagraph (G)(iii), and any failure by the Secretary in the effective period of a 90-day petition backlog to make a finding under subparagraph (A) with respect to any species included in the list under 

section 2(b)(3)(A)(i) in the applicable backlog schedule, is not subject to 

judicial review. 

‘‘(M)(i) The Secretary shall enter into a contract with any person under 

which the person agrees to reimburse the Federal Government for all costs 

incurred for review of and decision upon any petition under this Act to add 

a species to a list of species under section 4(c), including petitions to move 

a species from the list of threatened species to the list of endangered species. 

‘‘(ii) Such a contract— 

‘‘(I) shall require the person to reimburse such costs monthly during 

the period the petition is under review by the Secretary; and 

‘‘(II) if payment of reimbursement is made in accordance with subclause (I) without lapse, shall require the Secretary, notwithstanding 

any other provision of this Act, to— 

‘‘(aa) issue a decision on the petition; and 

‘‘(bb) continuously study, review, or render such a decision during the period the contract is in effect.’’. 

(b) CONFORMING AMENDMENT.—Section 4(b)(3)(C) of the Endangered Species Act 

of 1973 (16 U.S.C. 1533(b)(3)(C)) is amended— 

(1) by striking clause (ii); and 

(2) by redesignating clause (iii) as clause (ii). 

(c) EFFECT OF DISMISSAL OF PETITION.—Section 4(b)(3) of the Endangered Species 

Act of 1973 (16 U.S.C. 1533(b)(3)), as amended by subsection (a), is further amended 

by adding at the end the following: 


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1 16 U.S.C. 1533. 

2 Id. 3 Cong. Research Serv., RL31654, The Endangered Species Act: A Primer 15 (2016). 

4 A History of the Endangered Species Act of 1973, U.S. Fish and Wildlife Service, U.S. Department of the Interior, https://www.fws.gov/endangered/esa-library/pdf/history_ESA.pdf (last 

visited Sept. 18, 2018). 5 ECOS Environmental Conservation Online System, Listed Species Summary (Boxscore), U.S. 

Fish and Wildlife Service, U.S. Department of the Interior, https://ecos.fws.gov/ecp0/reports/boxscore-report (last visited Sept. 19, 2018). 6 ECOS Environmental Conservation Online System, Delisted Species, U.S. Fish and Wildlife 

Service, U.S. Department of the Interior, https://ecos.fws.gov/ecp0/reports/delisting-report (last 

visited Sept. 19, 2018). 7Supra, note 5. This number was determined by adding the total number of species listed as 

endangered or threatened under the ESA to the total number delisted since the ESA’s enactment. 8Supra, note 6. 9 Committee on House Natural Resources, Endangered Species Act Congressional Working 

Group, Report Findings and Recommendations, (2014) available at https:// 

naturalresources.house.gov/uploadedfiles/esa_working_group_final_report_and_recommendations _02_04_14.pdf; See also: Legislative Hearing on H.R. 424. H.R. 717, H.R. 1274, H.R. 2603, and 

H.R. 3131: Hearing before the H. Comm. on Natural Resources, 115th Cong, (2017) (testimony 

of Kent Holsinger, Manager and Founder, Holsinger Law, LLC) available at https:// 

naturalresources.house.gov/uploadedfiles/testimony_holsinger.pdf. 

‘‘(N) Dismissal of a petition by backlog procedures shall not affect the review of any subsequent petition for any species’’. 

PURPOSE OF THE BILL

The purpose of H.R. 6355 is to amend the Endangered Species 

Act of 1973 to define petition backlogs and provide expedited 

means for discharging petitions during such a backlog. 

BACKGROUND AND NEED FOR LEGISLATION

The Endangered Species Act of 1973 (ESA, 16 U.S.C. 1531 et 

seq.) sets out the broad goal of conserving and recovering species 

facing extinction. The law authorizes federal agencies to identify 

imperiled species and list them as either threatened or endangered, 

as appropriate.1 The law further requires agencies to take necessary actions to conserve those species and their habitats.2 The 

Secretary of the Interior, through the U.S. Fish and Wildlife Service (FWS), has responsibility for plants, wildlife and inland fisheries. The Secretary of Commerce, through the National Marine 

Fisheries Service (NMFS) is responsible for implementing the ESA 

with respect to ocean-going fish and some marine mammals.3 Congress made its most significant amendments to ESA in 1978, 1982, 

and 1988, although the overall framework has remained essentially 

unchanged since its original enactment in 1973.4

Despite the worthy goal set out by the ESA to conserve and protect species, in the 45 years since its enactment, less than 2 percent of species have recovered enough to warrant removal from the 

list of endangered and threatened species.5 In fact, many of those 

species were delisted after it was discovered that federal agencies 

used erroneous data in the original listing.6 In total, to date there 

have been 2,421 listings 7 under the ESA. In that time the Secretaries have delisted 77 species, but only 47 distinct species have 

been removed, either entirely or partially throughout their range, 

due to population recovery.8

In addition to failing to achieve meaningful recovery for species, 

implementation of the ESA disincentivizes conservation and can 

lead to increased conflict between people and species through unpredictable and expansive restrictions on land use.9 Excessive litiVerDate Sep 11 2014 02:42 Jan 04, 2019 Jkt 089006 PO 00000 Frm 00005 Fmt 6659 Sfmt 6602 E:\HR\OC\HR1105.XXX HR1105

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10 Hearing on Examining Policy Impacts of Excessive Litigation Against the Department of the 

Interior, Before the Subcomm. on Oversight & Investigations of the H. Comm. on Natural Resources, 115th Cong. (2017), available at https://naturalresources.house.gov/uploadedfiles/ 

hearing_memo_--_ov_hrg_06.28.17.pdf. 11Supra, note 9. 12Legislative Hearing on H.R. 424. H.R. 717, H.R. 1274, H.R. 2603, and H.R. 3131: Hearing 

before the H. Comm. on Natural Resources, 115th Cong, (2017) (testimony of Kent Holsinger, 

Manager and Founder, Holsinger Law, LLC) available at https://naturalresources.house.gov/ 

uploadedfiles/testimony_holsinger.pdf. 13 Id. 14See e.g., Letter form John Hickenlooper, Governor, State or Colorado, and Matt Mead, Governor, State of Wyoming, to Steve Ellis, Deputy Director, Bureau of Land Management, U.S. 

Dep’t of the Interior, and Leslie Weldon, Deputy Chief, National Forest System, U.S. Forest 

Service, U.S. Dep’t of Agriculture, Sept. 29, 2014, available at http://westgov.org/images/editor/ 

LTR_GSG_Rollup_Mtgs_FINAL.pdf. 15See e.g., Memo from Ben Tulchin, Ben Krompack, and Kiel Brunner, Tulchin Research, to 

Interested Parties, Jul. 6, 2015, available at https://earthjustice.org/sites/default/files/files/ 

PollingMemoNationalESASurvey.pdf. 16 16 U.S.C. 1533; The Secretaries may also initiate a review to determine if the listing or 

delisting of a species may be warranted. In addition, the Secretaries may initiate, or a petition 

can request, a review to determine if the status of a listed species should be reclassified from 

either endangered to threatened (downlisted) or threatened to endangered (uplisted). 17 16 U.S.C. 1533(b)(3). 18 16 U.S.C. 1540(g). 19The FWS and NMFS’ ESA section 4 programs encompass all actions related to listing species as threatened or endangered, including making findings on petitions to add, remove, or reclassify species from either of these lists (16 U.S.C. § 1533(b)(3)); designating and revising critical habitat (16 U.S.C. § 1533(a)(3)); and conducting 5-year status reviews of listed species (16 

U.S.C. § 1533(c)(2)(A)). 

gation and a lack of transparency in federal ESA decision-making 

has only exacerbated these problems and reduced the ESA’s effectiveness in recovering species.10

In many cases, implementation of the ESA has caused increased 

burdens for those living in close proximity to the protected species.11 Often States and local communities have the most knowledge about the species located in their State and can bring the 

greatest amount of resources to conservation efforts.12 They are 

eager to stabilize species populations to prevent listings that can 

have a major negative economic impact on State and local communities through restrictions on land use.13 Yet, too often, federal 

management of threatened and endangered species fails to take advantage of the wealth of knowledge of State and local officials and 

of the successful conservation measures implemented by States.14

Despite these shortcomings in how the ESA has been implemented since its enactment, the ESA and its overall goal of conserving and recovering species remains widely popular and accepted.15 ESA modernization should prioritize effective species recovery 

while maintaining the core principles of the Act. 

Section 4 of the ESA outlines specific timelines which must be 

met when the relevant Secretary receives a petition to list a species 

for protection under the ESA.16 These timelines bind the Secretary 

when making an initial determination whether the petition presents substantial information to warrant agency action, whether 

that agency action should proceed with delisting, when designating 

critical habitat for a listed species, and when conducting a five-year 

review of a protected species.17 If a specific timeline is not met, any 

person or entity may file a lawsuit to compel Secretarial action.18

With no legal defense for missing a statutory deadline, the Secretary is forced to shift valuable conservation resources when responding to a growing number of petitions, or lawsuits based on 

missing petition deadlines, rather than adequately accomplish all 

his or her ESA section 4 duties.19


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20Supra note 2. 21 Id. 22Supra note 2. 23 U.S. Fish and Wildlife Service, Managing the U.S. Fish and Wildlife Service’s Endangered 

Species Act Listing Program, Response to House Report 111–180, A Directive by the Committee 

on Appropriations to Review the Process for Determining the Status of Species (May 2010). See 

also Benjamin Jesup, Endless War or End This War? The History of Deadline Litigation Under 

Section 4 of the Endangered Species Act and the Multi-District Litigation Settlements, Vt. J. Env. 

L, 327 (2013). 24Supra note 6. 25Supra note 9. 26Supra note 6. 27 Id. 28 Id. 29 Id.; See also Allison Winter, Patrick Reis & E&E, ENDANGERED SPECIES: Obama admin 

confronts ‘candidate species’ backlog E&E News (2009), https://www.eenews.net/stories/81931. 30 Allison Winter, Patrick Reis & E&E, ENDANGERED SPECIES: Obama admin confronts 

‘candidate species’ backlog E&E News (2009), https://www.eenews.net/stories/81931. (Douglas 

Krofta serves as the U.S. Fish and Wildlife Service’s Chief in the Branch of Listing, Endangered 

Species Program). 

The process to list a species may begin in either one of two ways: 

through a petition submitted to the relevant Secretary or through 

a review initiated by the Secretary.20 When a petition to list a species is submitted, the Secretary must then follow a multi-step process to determine whether a species listing is warranted.21 See Appendix I/Figure 2. This multi-step process is further governed by 

statutory deadlines placed on the Secretaries, ranging from the 90- 

day initial response deadline to the 12-month final determination 

deadline.22 See Appendix II/Table 1. 

Over the past couple of decades, a high volume of petitions has 

prevented the Secretaries from adequately carrying out their ESA 

section 4 duties.23 For example, between fiscal years 2005 and 

2015, the Secretaries received 170 petitions to list 1,446 species.24

Without the ability to postpone action on petitions and faced with 

statutory deadlines for responding to each petition, the Secretaries 

have faced a high volume of litigation impacting valuable conservation resources.25

An even greater issue is the weaponization of these deadlines by 

some outside groups and individuals to force the Secretaries’ 

hands. On average, about 13 deadline suits were filed between fiscal years 2005 and 2015 against the Department of the Interior for 

failure to comply with a statutory deadline.26 Two environmental 

groups, the Center for Biological Diversity and WildEarth Guardians, filed more than half of the lawsuits between 2005 and 2015.27

A breakdown of the number and type of section 4 actions involving 

deadline lawsuits is outlined in Appendix III/Table 2. 

When a suit is brought against the Secretaries for failure to meet 

the statutory deadlines, most of these suits are resolved through 

settlement agreements.28 With no legal defense for missing a deadline, the Secretaries often enter into settlement agreements under 

which they must prioritize petitions which are the subject of a 

suit.29 With such a high volume of petitions and ever-increasing 

litigation, the Secretaries faces a situation where nearly all petitions become subject to immediate prioritization, and resources are 

devoted fully to responses rather than other ESA section 4 activities such as habitat planning. Growing litigation continues ‘‘tying 

up agency resources and leaving little money to address new species petitions and tackle the candidate backlog’’ for petitions not 

the subject of a settlement agreement.30


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H.R. 6355, the Providing ESA Timing Improvements That Increase Opportunities for Nonlisting Act of 2018, or the PETITION 

Act, would create a method for the Secretaries to manage a growing number of petitions to list while discouraging those seeking to 

weaponize the process. The legislation allows for the relevant Secretary to declare a petition backlog at different points throughout 

the petition process when there exists such an excess number of 

submitted petitions that the Secretary would surely face yet another lawsuit to enforce a deadline. This petition backlog declaration would trigger a process by which the Secretary could take additional time to prioritize and work through submitted petitions. 

Additionally, the process would allow for a more rapid disposal of 

frivolous petitions, discouraging those seeking to set the stage for 

a lawsuit by drowning the Secretary in frivolous petitions. 

SECTION-BY-SECTION ANALYSIS

Section 1. Short title. The act may be cited as the ‘‘Providing 

ESA Timing Improvements That Increase Opportunities for Nonlisting Act of 2018’’ or the ‘‘PETITION Act of 2018.’’ 

Section 2. Definitions. This section amends section 2 of the ESA 

to define additional terms used by this Act. 

Section 3. Backlog declaration and procedures. This section 

amends section 4 of the ESA to establish a set of procedures by 

which the relevant Secretary may declare a ‘‘petition backlog’’ at 

different points in the listing petition process. This section further 

outlines what would occur with different categorized listing petitions once sorted by priority during a ‘‘petition backlog.’’ Finally, 

this section establishes a public database where individuals may 

search petitioned-for species listings. 

COMMITTEE ACTION

H.R. 6355 was introduced on July 12, 2018, by Congressman 

Bruce Westerman (R–AR). The bill was referred to the Committee 

on Natural Resources. On September 26, 2018, the Committee held 

a hearing on the bill. On September 27, 2018, the Committee met 

to consider the bill. Congressman Westerman offered an amendment designated 040; it was adopted by voice vote. No additional 

amendments were offered, and the bill, as amended, was ordered 

favorably reported to the House of Representatives by a roll call 

vote of 19 yeas and 14 nays, as follows: 


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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 

requested but not received an estimate for the bill from the Director of the Congressional Budget Office. 

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 define petition backlogs and provide expedited means for discharging 

petitions during such a backlog. 

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 contains no directed 

rulemakings. 

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 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): 


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ENDANGERED SPECIES ACT OF 1973 

* * * * * * * 

DEFINITIONS

SEC. 3. (a) IN GENERAL.—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 ‘‘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) 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) 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)(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) 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 


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under the provisions of this Act would present an overwhelming and overriding risk to man. 

(7) The term ‘‘Federal agency’’ means any department, agency, or instrumentality of the United States. 

(8) 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) 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) 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. 

(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. 


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(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. 

(b) DEFINITIONS RELATED TO PETITIONS.—In this Act: 

(1) 90-DAY PETITION BACKLOG.—The term ‘‘90-day petition 

backlog’’ means such a backlog declared by the Secretary under 

section 4(b)(3)(E). 

(2) 12-MONTH PETITION BACKLOG.—The term ‘‘12-month petition backlog’’ means such a backlog declared by the Secretary 

under section 4(b)(3)(E). 

(3) BACKLOG SCHEDULE.—The term ‘‘backlog schedule’’ means 

a comprehensive, regularly updated compendium of petitionedfor species that are the subject of a 90-day petition backlog or 

a 12-month petition backlog— 

(A) that consists of— 

(i) a list of petitions to add a species to a list of species under section 4(c), including petitions to move a 

species from the list of threatened species to the list of 

endangered species; and 

(ii) a list of petitions to remove a species from a list 

of species under section 4(c), including petitions to 

move a species from the list of endangered species to 

the list of threatened species; and 

(B) in which the petitions in each such list appear in the 

order in which the petitions were submitted to the Secretary. 

(4) BACKLOG PROCEDURES.—The term ‘‘backlog procedures’’ 

means the actions taken by the Secretary— 

(A) under section 4(b)(3)(G) following the declaration of 

a 90-day petition backlog; or 

(B) under section 4(b)(3)(H) following the declaration of 

a 12-month petition backlog. 

(5) PETITIONED-FOR SPECIES.—The term ‘‘petitioned-for species’’ means a species that has been identified in a petition presented under subparagraph (A) or (B) of section 4(b)(3). 

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; 


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(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 

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ing 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) 


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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. 

ø(ii) Any negative finding described in subparagraph (A) and any 

finding described in subparagraph (B)(i) or (iii) shall be subject to 

judicial review.¿ 

ø(iii)¿ (ii) 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. 

(E)(i) The Secretary shall— 

(I) declare a 90-day petition backlog at any time the total 

number of species for which a petition is presented to the Secretary under subparagraph (A) that has not been the subject of 

a finding by the Secretary within the timeframe established 

under such subparagraph exceeds 5 percent of the number of 

species for which such petitions have been presented during the 

preceding 15 years; 

(II) submit a backlog schedule for such backlog to— 

(aa) the President; 

(bb) the Chairman and ranking minority Member of the 

Committee on Environment and Public Works of the Senate; and 

(cc) the Chairman and ranking minority Member of the 

Committee on Natural Resources of the House of Representatives; and 

(III) comply with backlog procedures under subparagraph (G) 

during the period such backlog is in effect. 

(ii) The Secretary shall— 

(I) declare a 12-month petition backlog at any time the total 

number of species for which a petition is being considered by 

the Secretary under subparagraph (B) that has not been the 

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tablished under such subparagraph exceeds 5 percent of the 

number of species for which such petitions have been presented 

during the preceding 15 years; 

(II) submit a backlog schedule for such backlog to— 

(aa) the President; 

(bb) the Chairman and ranking minority Member of the 

Committee on Environment and Public Works of the Senate; and 

(cc) the Chairman and ranking minority Member of the 

Committee on Natural Resources of the House of Representatives; and 

(III) comply with backlog procedures under subparagraph (H) 

during the period such declaration is in effect. 

(iii) Not later than 90 days after declaring a 90-day petition backlog or 12-month petition backlog, and every 90 days thereafter during the period such backlog is in effect, the Secretary shall submit 

to the recipients under clause (ii)(II) and (iii)(II), respectively, an 

updated backlog schedule that contains— 

(I) a list of petitioned-for species for which a finding had been 

made since the last submission of the backlog schedule under 

such clause; 

(II) the outcomes of findings for all petitioned-for species for 

which a finding has been made since the last submission of the 

backlog schedule under such clause; and 

(III) a summary of the bases of all findings for any petitioned-for species for which a finding has been made since the 

preceding submission of the backlog. 

(F) The Secretary shall terminate a 90-day petition backlog or 12- 

month petition backlog at such time as the requirements for declaring such backlog under subparagraph (E)(i) or (E)(ii), respectively, 

are not fulfilled. 

(G) During the effective period of a 90-day petition backlog— 

(i) the requirement under subparagraph (A) to make a finding within 90 days shall not apply with respect to any species 

that is the subject of a petition included in the list under section 

2(b)(3)(A)(i); 

(ii) except as provided in clause (iii), the Secretary shall not 

make any finding under subparagraph (A) with respect to any 

species included in the list under section 2(b)(3)(A)(i) in the applicable backlog schedule, until the earlier of— 

(I) the date the Secretary terminates the backlog under 

subparagraph (F); 

(II) the date the applicable backlog schedule consists of 

only the list under such section; or 

(III) the date the only petitioned-for species in the backlog 

schedule to which the Secretary has not devoted sufficient 

resources so as to issue such a finding within 90 days are 

those in the list under such section; and 

(iii) the Secretary is deemed to have made a finding under 

subparagraph (A) that each petition for a species included in 

the list under section 2(b)(3)(A)(i) in the applicable backlog 

schedule does not present substantial scientific or commercial 

information indicating that the petitioned action may be warranted, effective upon the expiration of the 180-day period beginning on the date the petition was submitted. 


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(H) Except as provided in subparagraph (I)— 

(i) after declaring a 12-month petition backlog under subparagraph (E)(ii) and before taking any actions under clause 

(ii) of this subparagraph, the Secretary shall assign each petition and petitioned-for species to be considered under such 

clause to one of the five priority bins referred to in the notice 

issued by the United States Fish and Wildlife Service entitled 

‘‘Methodology for Prioritizing Status Reviews and Accompanying 12-month findings on Petitions for Listing Under the 

Endangered Species Act (81 Fed. Reg. 49248 (July 27, 2016))’’; 

and 

(ii) during the effective period of such 12-month petition backlog under subparagraph (E)(ii)— 

(I) the requirement under subparagraph (B) to make a 

finding within 12 months shall not apply with respect to 

any species that is the subject of a petition included in the 

list under section 2(b)(3)(A)(i); 

(II) the Secretary shall consider under this paragraph 

only petitions for species included in the list under section 

2(b)(3)(A)(ii) in the applicable backlog schedule, that were 

submitted more than 12 months before the establishment of 

the backlog; 

(III) except as provided in subclause (IV), the Secretary 

shall not make any finding under subparagraph (B) with 

respect to any species included in the list under section 

2(b)(3)(A)(i) in the applicable backlog schedule, until the 

earlier of— 

(aa) the date the Secretary terminates the backlog 

under subparagraph (F); 

(bb) the date the applicable backlog schedule consists 

of only the list under such section; or 

(cc) the date the only petitioned-for species in the 

backlog schedule to which the Secretary has not devoted sufficient resources so as to issue such a finding 

within 12 months are those in the list under such section; and 

(IV) the Secretary is deemed to have made a finding 

under subparagraph (B)(i) for each species included in the 

list under section 2(b)(3)(A)(i) that the petitioned action is 

not warranted— 

(aa) effective upon the expiration of the 18-month period beginning on the date the petition was submitted, 

if the Secretary has not assigned the species to the 

‘‘Highest Priority—Critically Imperiled’’, ‘‘Strong Data 

Already Available on Status’’ priority bin or ‘‘New 

Science Underway to Inform Key Uncertainties’’ priority bin referred to in the notice referred to in clause 

(i); or 

(bb) effective upon the expiration of the 24-month period beginning on the date the petition was submitted, 

if the Secretary has assigned the species to the ‘‘Strong 

Data Already Available on Status’’ priority bin or ‘‘New 

Science Underway to Inform Key Uncertainties’’ priority bin referred to in the notice referred to in clause 

(i). 


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(I)(i) In the case of the first 12-month petition backlog under subparagraph (E)(ii)— 

(I) item (aa) of subparagraph (H)(ii)(IV) shall be applied by 

substituting ‘‘30-month’’ for ‘‘18-month’’; and 

(II) item (bb) of subparagraph (H)(ii)(IV) shall be applied by 

substituting ‘‘36-month’’ for ‘‘24-month’’. 

(ii) The Secretary may not under subparagraph (H)(i) change the 

assignment of a petition or petitioned-for species from one priority 

bin to another priority bin. 

(J) In the case of findings under subparagraph (G)(iii) and 

(H)(ii)(IV), the publication under subparagraph (A) or (B)(i), respectively, may consist solely of a notice of each finding. 

(K)(i) Except as otherwise provided in this Act, the Secretary shall 

regularly maintain on the internet site of the United States Fish 

and Wildlife Service a publically available database of petitions referred to in this paragraph and species otherwise evaluated under 

subsection (a). 

(ii) The database shall contain information about each petitionedfor species including— 

(I) the date a petition for such species was submitted; 

(II) the person who submitted the petition; 

(III) the current status of the petition within the statutory 

and agency process, including the most recent agency action 

taken; 

(IV) a web link to any documents received under this paragraph that constituted the petition for such species; 

(V) a web link to any materials the Secretary has received 

from State or local governments pertaining to petitions to list 

such species; 

(VI) the outcomes of all prior petitioning or listing procedures 

for such species; and 

(VII) the outcomes of all prior litigation against the Federal 

Government on the basis of a petition for or listing of such species, including actions or agreements by the Federal Government to— 

(aa) dispense monies to litigating parties or counsel; 

(bb) promulgate rules as a direct or indirect result of litigation outcomes or agreements; 

(cc) resolve any matter related to the petition or a petitioned-for species by a certain date, or otherwise; 

(dd) conduct further research or analysis related to the 

petition or petitioned-for species; or 

(ee) engage in any other activity as a result of the terms 

of litigation settlements or court orders related to such petitions or petitioned-for species. 

(L) Notwithstanding subparagraph (C)(ii), a finding by the Secretary under subparagraph (G)(iii), and any failure by the Secretary 

in the effective period of a 90-day petition backlog to make a finding 

under subparagraph (A) with respect to any species included in the 

list under section 2(b)(3)(A)(i) in the applicable backlog schedule, is 

not subject to judicial review. 

(M)(i) The Secretary shall enter into a contract with any person 

under which the person agrees to reimburse the Federal Government 

for all costs incurred for review of and decision upon any petition 

under this Act to add a species to a list of species under section 4(c), 


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including petitions to move a species from the list of threatened species to the list of endangered species. 

(ii) Such a contract— 

(I) shall require the person to reimburse such costs monthly 

during the period the petition is under review by the Secretary; 

and 

(II) if payment of reimbursement is made in accordance with 

subclause (I) without lapse, shall require the Secretary, notwithstanding any other provision of this Act, to— 

(aa) issue a decision on the petition; and 

(bb) continuously study, review, or render such a decision 

during the period the contract is in effect. 

(N) Dismissal of a petition by backlog procedures shall not affect 

the review of any subsequent petition for any species 

(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, 


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(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 

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nificant 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. 

(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). 


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(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. 


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(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. 

* * * * * * * 


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lotter on DSKBCFDHB2PROD with REPORTSInsert graphic folio 27 here HR1105.002
26 


lotter on DSKBCFDHB2PROD with REPORTSInsert graphic folio 28 here HR1105.003
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(28) 

DISSENTING VIEWS 

This legislation is part of a package of nine Republican bills, 

spearheaded by the Western Caucus, introduced late in the second 

session of this Congress, and designed to destroy the Endangered 

Species Act. Each bill has its own, logic-defying, acronym. 

H.R. 6355 weakens the citizen petition process by eliminating 

statutory deadlines for listing and would allow federal agencies to 

declare a ‘‘petition backlog’’ if the listing process is overloaded. Currently, federal agencies are required by law to issue decisions on 

petitions within specific timeframes established in the Endangered 

Species Act (ESA). The 90-day (for consideration of listing petitions) and 12-month (for making listing determinations) deadlines 

are critically important to holding federal agencies accountable for 

enforcing the law in a timely manner consistent with protecting 

species teetering on the brink of extinction. 

This bill creates a process for federal agencies to declare either 

a 90-day or 12-month ‘‘petition backlog’’ if the number of petitions 

awaiting a decision exceeds 5% of the number of species that have 

been subject to petitions in the preceding 15 years. Once a backlog 

for 90-day or 12-month petitions has been declared, under most circumstances, the Secretary must prioritize petitions to delist or 

downlist species. During a 90-day petition backlog, if the Secretary 

does not present substantial scientific or commercial information 

indicating that a species warrants listing, the petition will expire 

180 days after the date of submission. During a 12-month petition 

backlog, the Secretary arbitrarily places petitions into different priority bins. Petition in certain bins would then be automatically suspended if the Secretary does not act upon them within timeframes 

specified in the bill. This process not only represents an erroneous 

approach to managing species but would ultimately result in petitions being rejected without further consideration. 

The listing petitions found to be unwarranted in both the 90-day 

and 12-month petition backlogs are not subject to public review or 

comment. The Secretary must only provide a notice of each finding, 

and these determinations are precluded from juridical review. Notably, the same conditions do not apply for delisting or downlisting 

petitions. Furthermore, it is unclear how this legislation would impact the required timelines of the ESA. 

The misguided claim that environmental groups purposefully 

overload the petition process with frivolous requests that force federal agencies to miss the statutory deadlines is unfounded. The primary impediment to timely listings is stagnant agency funding for 

ESA implementation. Funding and the number of personnel dedicated to the conservation of threatened and endangered species 

have steadily declined, while costs associated with the listing process continue to grow. This decline is the result of congressional failure to ensure that funding keeps apace with current ESA program 


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needs, combined with the continued increase in the number of species needing protections. 

For these reasons, we strongly oppose this bill as reported. 

RAU ́ L M. GRIJALVA, 

Ranking Member, Committee 

on Natural Resources. 

JARED HUFFMAN. 

A. DONALD MCEACHIN. 

WM. LACY CLAY. 

GRACE F. NAPOLITANO. 

NANETTE DIAZ BARRAGA ́ N. 

NIKI TSONGAS. 

DONALD S. BEYER, JR. 

Æ 


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