I

106TH CONGRESS

1ST SESSION H. R. 494

To amend the Endangered Species Act of 1973 to reform the regulatory

process under that Act.

IN THE HOUSE OF REPRESENTATIVES

FEBRUARY 2, 1999

Mr. THOMAS introduced the following bill; which was referred to the

Committee on Resources

A BILL

To amend the Endangered Species Act of 1973 to reform

the regulatory process under that Act.

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; REFERENCES.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Endangered Species Fair Regulatory Process Reform

6 Act’’.

7 (b) REFERENCES TO ENDANGERED SPECIES ACT OF

8 1973.—Except as otherwise expressly provided, whenever

9 in this Act an amendment or repeal is expressed in terms

10 of an amendment to, or repeal of, a section or other provi-
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1 sion, the reference shall be considered to be made to that

2 section or provision of the Endangered Species Act (16

3 U.S.C. 1531 et seq.).

4 SEC. 2. LISTING PROCESS REFORMS.

5 (a) PETITION INFORMATION.—Section 4(b)(3) (16

6 U.S.C. 1533(b)(3)) is amended by adding at the end the

7 following:

8 ‘‘(E) In the case of a petition to add a species to

9 either list published under subsection (c), a finding that

10 the petition presents the information described in subpara11 graph (A) shall not be made unless the petition provides—

12 ‘‘(i) documentation from a published scientific

13 source that the fish, wildlife, or plant that is the

14 subject of the petition is a species;

15 ‘‘(ii) a description of the available data on the

16 historical and current range and distribution of the

17 species, an explanation of the methodology used to

18 collect the data, and identification of the location

19 where such data can be reviewed;

20 ‘‘(iii) an appraisal of the available data on the

21 status and trends of populations of the species;

22 ‘‘(iv) an appraisal of the available data on the

23 threats to the species;
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1 ‘‘(v) an identification of the information con2 tained or referred to in the petition that has been

3 peer-reviewed or field-tested; and

4 ‘‘(vi) at least one study or credible expert opin5 ion, from a person not affiliated with the petitioner,

6 to support the action requested in the petition.’’.

7 (b) AVAILABILITY OF INFORMATION RELATING TO

8 LISTING.—Section 4(b) (16 U.S.C. 1533(b)) is amended

9 by adding at the end the following:

10 ‘‘(9)(A) Upon publication of a proposed rule deter11 mining that a species is an endangered species or threat12 ened species, the Secretary shall make publicly available

13 all information on which the determination is based, in14 cluding all scientific studies and data underlying those

15 studies, and all information related to the species the Sec16 retary possesses that does not support the determination.

17 ‘‘(B) This paragraph does not require disclosure of

18 any information that—

19 ‘‘(i) is not subject to the requirements of sec20 tion 552 of title 5, United States Code (popularly

21 known as the Freedom of Information Act); or

22 ‘‘(ii) is prohibited from being disclosed under

23 section 552a of title 5, United States Code (popu24 larly known as the Privacy Act).’’.
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1 (c) PEER REVIEW COMMITTEES.—Section 4(b) (16

2 U.S.C. 1533) is further amended by adding at the end

3 the following:

4 ‘‘(10)(A) In the case of a regulation proposed by the

5 Secretary to implement a determination under subsection

6 (a)(1) that any species is an endangered species or a

7 threatened species or that any species currently listed as

8 an endangered species or a threatened species should be

9 removed from any list published pursuant to subsection

10 (c), the Secretary shall provide for independent scientific

11 peer review by—

12 ‘‘(i) selecting independent referees pursuant to

13 subparagraph (B);

14 ‘‘(ii) requesting the referees to conduct the re15 view, considering all relevant information, and make

16 a recommendation to the Secretary in accordance

17 with this paragraph not later than 150 days after

18 the general notice is published pursuant to para19 graph (5)(A)(i).

20 ‘‘(B) SELECTION OF REFEREES.—For each inde21 pendent scientific review to be conducted pursuant to sub22 paragraph (A), the Secretary shall select 3 independent

23 referees from a list provided by the National Academy of

24 Sciences, who—
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1 ‘‘(i) through publication of peer-reviewed sci2 entific literature or other means, have demonstrated

3 scientific expertise on the species or a similar species

4 or other scientific expertise relevant to the decision

5 of the Secretary under subsection (a);

6 ‘‘(ii) do not have, nor represent any person

7 with, a conflict of interest with respect to the deter8 mination that is the subject of the review; and

9 ‘‘(iii) are not participants in a petition to list,

10 change the status of, or remove the species from a

11 list under subsection (c), or the proposed or final de12 termination of the Secretary.

13 ‘‘(C) The Secretary shall take one of the actions

14 under paragraph (6)(A) of this subsection not later than

15 1 year after the date of publication of the general notice

16 of the proposed determination. If the referees have made

17 a recommendation in accordance with clause (ii) of sub18 paragraph (A), the Secretary shall evaluate and consider

19 the information that results from the independent sci20 entific review and include in the final determination—

21 ‘‘(i) a summary of the results of the independ22 ent scientific review; and

23 ‘‘(ii) in cases where the recommendation of a

24 majority of the referees who conducted the independ25 ent scientific review under subparagraph (A) is not
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1 followed, an explanation as to why the recommenda2 tion was not followed.

3 ‘‘(D) The referees selected pursuant to this para4 graph shall not be subject to the Federal Advisory Com5 mittee Act (5 U.S.C. App.).’’.

6 (d) ESTABLISHMENT OF CRITERIA FOR SCIENTIFIC

7 STUDIES TO SUPPORT LISTING.—Section 4(b) (16 U.S.C.

8 1533(b)) is further amended by adding at the end the fol9 lowing:

10 ‘‘(11) Within 1 year after the date of the enactment

11 of this paragraph, the Secretary shall issue rules that es12 tablish criteria that must be met for scientific and com13 mercial data to be used as the basis of any determination

14 under this section that a species is an endangered species

15 or threatened species or should be removed from a list

16 published under subsection (c).’’.

17 (e) FIELD DATA REQUIRED.—Section 4(b) (16

18 U.S.C. 1533(b)) is further amended by adding at the end

19 the following:

20 ‘‘(12)(A) The Secretary may not determine that a

21 species is an endangered species or threatened species un22 less the determination is supported by data obtained by

23 observation of the species in the field.

24 ‘‘(B) The Secretary shall—
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1 ‘‘(i) accept and acknowledge receipt of data re2 garding the status of a species, that is collected by

3 the owner of land through observation of the species

4 on such land; and

5 ‘‘(ii) include such data in the rulemaking record

6 for any determination that the species is an endan7 gered species or threatened species, unless the data

8 is refuted by other field-collected data in the posses9 sion of the Secretary.’’.

10 SEC. 3. FORMAL RULEMAKING PROCESS FOR LISTINGS.

11 (a) FORMAL RULEMAKING REQUIRED.—Section

12 4(b)(4) (16 U.S.C. 1533(b)(4)) is amended—

13 (1) by striking ‘‘Except as provided in’’ and in14 serting ‘‘(A) Except as provided in subparagraph

15 (B) of this paragraph and’’; and

16 (2) by adding at the end the following:

17 ‘‘(B)(i) The Secretary shall make determinations re18 ferred to in subsection (a)(1) and designations and revi19 sions referred to in subsection (a)(3) by a rule made on

20 the record after an opportunity for an agency hearing—

21 ‘‘(I) in the State in which the largest population

22 of the species exists; and

23 ‘‘(II) in the State for which the potential eco24 nomic impact of the determination, designation, or

25 revision is greatest.
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1 ‘‘(ii) A hearing under this subparagraph—

2 ‘‘(I) shall be initiated by the Secretary not later

3 than 1 year after publication of notice of proposed

4 rulemaking, and shall be of not more than 30 days

5 in duration; and

6 ‘‘(II) shall be conducted in accordance with sec7 tions 556 and 557 of title 5, United States Code.’’.

8 (b) CONFORMING AMENDMENT.—Section 4(b)(5) (16

9 U.S.C. 1533(b)(5)) is amended—

10 (1) in subparagraph (C) by adding ‘‘and’’ after

11 the semicolon;

12 (2) in subparagraph (D) by striking ‘‘; and’’

13 and inserting a period; and

14 (3) by striking subparagraph (E).

15 SEC. 4. ENSURING ADEQUATE BASIS FOR REGULATORY AC16 TIONS.

17 Section 4 (16 U.S.C. 1533) is amended by adding

18 at the end the following:

19 ‘‘(j) STANDARD FOR CERTAIN ACTIONS.—(1) Not20 withstanding section 706(2) of title 5, United States Code,

21 the Secretary may not take an action referred to in para22 graph (2) unless that action is supported by substantial

23 evidence.

24 ‘‘(2) The actions referred to in paragraph (1) are the

25 following:
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1 ‘‘(A) A determination under subsection (a)(1)

2 that a species is an endangered species or threatened

3 species.

4 ‘‘(B) The removal of a species from either of

5 the lists published under subsection (c).

6 ‘‘(C) The approval of a new or revised recovery

7 plan under subsection (f).’’.

8 SEC. 5. ECONOMIC IMPACT ANALYSES.

9 Section 4 (16 U.S.C. 1533) is further amended by

10 adding at the end the following:

11 ‘‘(k) ECONOMIC IMPACT ANALYSIS.—(1) The Sec12 retary shall prepare and publish with a final rule under

13 subsection (a)(1) determining that a species is an endan14 gered species or threatened species, or under subsection

15 (b)(2) designating critical habitat for a species, an analy16 sis of the economic impacts of the rule.

17 ‘‘(2) An analysis under paragraph (1) for a deter18 mination that a species is an endangered species or threat19 ened species shall describe the geographic area that will

20 be affected by the determination, including specification

21 of privately owned property located in that area.’’.

22 SEC. 6. EXPERIMENTAL POPULATIONS.

23 Section 10(j) (16 U.S.C. 1539(j)) is amended by add24 ing at the end the following:
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1 ‘‘(4)(A) The Secretary may not release any experi2 mental population on or affecting privately owned property

3 except by a rulemaking.

4 ‘‘(B) Any rule issued under this paragraph shall—

5 ‘‘(i) identify the geographic area affected by the

6 release;

7 ‘‘(ii) describe the need for the release; and

8 ‘‘(iii) the economic impacts of the release on

9 private landowners.’’.

10 SEC. 7. EXPEDITIOUS CONSIDERATION OF INCIDENTAL

11 TAKE PERMIT APPLICATIONS.

12 Section 10(a) (16 U.S.C. 1539(a)) is amended by

13 adding at the end the following:

14 ‘‘(3) The Secretary shall approve or disapprove an

15 application for an incidental take permit under paragraph

16 (1)(B) by not later than 90 days after the date the Sec17 retary receives the application.

18 ‘‘(4)(A) If the Secretary disapproves an application

19 for an incidental take permit under paragraph (1)(B), the

20 Secretary shall provide the applicant notice in writing the

21 specific reasons the application was not approved and

22 measures that, if included in the amended application,

23 would result in approval of the application.

24 ‘‘(B) If within 30 days after the date on which such

25 notice is provided the applicant submits an amended appli-
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1 cation that adequately addresses the reasons for dis2 approval that are specified in the notice, the Secretary

3 shall promptly issue the permit.

4 ‘‘(5) The Secretary may not charge any fee for proc5 essing a permit under paragraph (1)(B) in an amount that

6 exceeds the incremental cost to the United States of proc7 essing the permit.’’.

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