39–008 

109TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 109–240 

PROVIDING FOR CONSIDERATION OF H.R. 3824, THREATENED AND ENDANGERED SPECIES RECOVERY ACT OF 

2005 

SEPTEMBER 28, 2005.—Referred to the House Calendar and ordered to be printed 

Mr. HASTINGS of Washington, from the Committee on Rules, 

submitted the following 

R E P O R T 

[To accompany H. Res. 470] 

The Committee on Rules, having had under consideration House 

Resolution 470, by a nonrecord vote, report the same to the House 

with the recommendation that the resolution be adopted. 

SUMMARY OF PROVISIONS OF THE RESOLUTION

The resolution provides for consideration of H.R. 3824, the 

Threatened and Endangered Species Recovery Act of 2005, under 

a structured rule. The rule provides ninety minutes of general debate equally divided and controlled by the chairman and ranking 

minority member of the Committee on Resources. 

The rule waives all points of order against consideration of the 

bill. The rule provides that in lieu of the amendment recommended 

by the Committee on Resources now printed in the bill, the amendment in the nature of a substitute consisting of the text of the Resources Committee Print dated September 26, 2005 shall be considered as an original bill for the purpose of amendment and shall be 

considered as read. The rule waives all points of order against that 

committee amendment in the nature of a substitute. 

The rule makes in order only those amendments printed in this 

report. The rule provides that the amendments printed in this report may be offered only in the order printed in this report, may 

be offered only by a Member designated in this report, shall be considered as read, shall be debatable for the time specified in this report equally divided and controlled by the proponent and an opponent, shall not be subject to amendment, and shall not be subject 

to a demand for a division of the question in the House or in the 

2 

Committee of the Whole. The rule waives all points of order against 

the amendments printed in the report. 

Finally, the rule provides one motion to recommit with or without instructions. 

EXPLANATION OF WAIVERS

The waiver of all points of order against consideration of the bill 

includes a waiver of clause 4(a) of rule XIII (requiring a three-day 

layover of the committee report) because the Committee on Resources filed its report (H. Rept. 109–237) with the House on Tuesday, September 27, 2005, and the bill may be considered by the 

House as early as Thursday, September 29, 2005. The waiver of all 

points of order also includes a waiver of section 303 of the Congressional Budget Act of 1974 (prohibiting consideration of legislation, 

as reported, providing new budget authority, change in revenues, 

change in public debt, new entitlement authority, or new credit authority for a fiscal year until the budget resolution for that year 

has been agreed to). It is important to note, however, that the delayed spending effects do not result from legislative design, but 

rather from the time required for the administrative agency to implement the program. 

SUMMARY OF AMENDMENTS MADE IN ORDER

1. Pombo: Manager’s Amendment.—Makes a number of technical 

changes to clarify certain provisions and address issues concerning 

science, definition of ‘‘jeopardy’’, consolidation of ESA related programs, and review of protective regulations. Allows actions authorized under an approved Section 10 permit to be carried out without 

duplicative consultation. Prevents water stakeholders from being 

held accountable for impacts due to State actions. Requires the four 

Power Marketing Administrations to include ESA costs in their 

monthly billings. Directs the Secretary of Interior to survey certain 

federal lands to assess their value for report to Congress. Clarifies 

conflicting statutes to make ESA the governing statutory authority 

when receiving a dock building permit. (20 minutes) 

2. Miller, George (CA)/Boehlert/Dingell/Gilchrest/Dicks/Saxton/ 

Tauscher/Kirk: Amendment in the Nature of a Substitute.—Improves the use of science, providing certainty to landowners, providing flexibility on deadlines for listing species, creating a voluntary conservation program to promote species conservation on 

private lands, creating a technical assistance program to help small 

landowners, increasing the role of State and localities, ensuring accountability of the Department of Interior, ensuring that permit 

and license applicants fully participate in the consultations process, 

and requiring a balancing of risks in planning for species recovery. 

(60 minutes) 

TEXT OF AMENDMENTS MADE IN ORDER

1. AN AMENDMENT TO BE OFFERED BY REPRESENTATIVE POMBO OF

CALIFORNIA, OR HIS DESIGNEE, DEBATABLE FOR 20 MINUTES

Page 2, strike line 24, and all that follows through page 3, line 

18, and insert the following: 

‘‘(C) In carrying out subparagraph (B), the Secretary shall undertake necessary measures to assure—

3 

‘‘(i) compliance with guidance issued under section 515 of the 

Treasury and General Government Appropriations Act of 2001 

(Public Law 106–554; 114 Stat. 2763A–171) by the Director of 

the Office of Management and Budget and the Secretary; ‘‘(ii) data consists of empirical data; or 

‘‘(iii) data is found in sources that have been subject to peer 

review by qualified individuals recommended by the National 

Academy of Sciences to serve as independent reviewers for a 

covered action in a generally acceptable manner.’’. Page 4, strike lines 3 through 11, and redesignate the subsequent subsection accordingly. 

Page 4, after line 14, insert the following: 

(d) CONFORMING AMENDMENT.—Section 3 (16 U.S.C. 1532) is further amended in paragraph (18), as redesignated by subsection (a) 

of this section, by striking ‘‘Trust Territory of the Pacific Islands’’

and inserting ‘‘Commonwealth of the Northern Mariana Islands’’. 

Page 6, after line 24, insert the following: 

(d) ANALYSIS OF IMPACTS AND BENEFITS.—Section 4(a) (16 U.S.C. 

1533(a)), as amended by section 4(a) of this Act, is further amended 

by striking paragraph (3) and inserting the following: ‘‘(4)(A) The Secretary shall, concurrently with making a determination under paragraph (1) that a species is an endangered species or a threatened species, prepare an analysis of— ‘‘(i) the economic impact and benefit of that determination; 

‘‘(ii) the impact and benefit on national security of that determination; and ‘‘(iii) any other relevant impact and benefit of that determination. ‘‘(B) Nothing in this paragraph shall delay the Secretary’s decision or change the criteria used in making determinations under 

paragraph (1).’’. Page 7, line 3, before the period insert ‘‘, and redesignate paragraph (4) (as added by section 4(d) of this Act) as paragraph (3)’’. Page 16, line 14, insert ‘‘(A)’’ after ‘‘(2)’’. 

Page 16, after line 19, insert the following: 

‘‘(B) Nothing in this paragraph shall be construed to affect the 

authority of the Secretary to issue any emergency regulation pursuant to section 4(b)(6). 

Page 19, line 4, after ‘‘costs’’ insert ‘‘, including direct, indirect 

and cumulative costs,’’. 

Page 20, line 5, strike ‘‘by’’. 

Page 24, beginning at line 3, strike ‘‘TO ENSURE CONSISTENCY

WITH DEVELOPMENT PLAN’’. 

Page 27, line 24, after ‘‘agreement’’ insert ‘‘from funds appropriated under section 18(a)(1)’’. 

Page 33, after line 20, insert the following: 

‘‘(F) A species conservation contract agreement may list other 

Federal program payments that incidentally contribute to conservation of a listed species. The head of a Federal agency shall not use 

the payments for the purposes of implementing the species conservation contract agreement. 

Page 39, strike line 23 and all that follows through page 40, line 

2, and insert the following: ‘‘(i) addresses or affects species that are determined to be 

endangered species or threatened species and the species 

4 

were not addressed or the effects were not considered previously in the agreement; or 

Page 43, line 12, strike ‘‘, under section 4’’ and insert ‘‘determined’’. Page 43, line 19, strike the close quotation mark and the following period, and after line 19, insert the following: ‘‘(6) This subsection shall not apply to any agency action that 

may affect any species for which a permit is issued under section 

10 for other than scientific purposes, if the action implements or 

is consistent with any conservation plan or agreement incorporated 

by reference in the permit.’’. Page 49, beginning at line 15, strike ‘‘offered by the Secretary 

pursuant to paragraph (2)(B)’’ and insert ‘‘required’’. Page 49, line 17, after ‘‘taking’’ insert ‘‘or otherwise comply with 

the requirements of paragraph (2)(B)’’. Page 49, line 18, after ‘‘proportional’’ insert ‘‘in extent’’. Page 53, line 22, strike ‘‘requester’’ and insert ‘‘requestor’’. Page 56, line 14, strike ‘‘10’’ and insert ‘‘5’’. Page 56, beginning at line 15, strike ‘‘date the Secretary provides 

notice of the withdrawal to the requestor’’ and insert ‘‘date the requestor receives from the Secretary, by certified mail, notice of the 

withdrawal’’. Page 56, line 19, insert ‘‘or biological’’ before ‘‘considerations’’. Page 57, line 21, strike ‘‘immediate’’ and insert ‘‘imminent’’. Page 57, after line 23, insert the following: 

(g) EXEMPTION FROM LIABILITY FOR TAKE OF LISTED AQUATIC

SPECIES.—Section 10 (16 U.S.C. 1539) is amended by adding at the 

end the following: ‘‘(n) EXEMPTION FROM LIABILITY FOR TAKE OF LISTED AQUATIC

SPECIES.—The operator of a water storage reservoir, water diversion structure, canal, or other artificial water delivery facility shall 

not be in violation of section 9(a) by reason of any take of any 

aquatic species listed under section 4(c) that results from predation, competition, or other adverse effects attributable to recreational fishing programs managed by a State Agency in a river 

basin in which the water storage reservoir, water diversion structure, canal, or other artificial water delivery facility is located.’’. Page 60, line 19, strike ‘‘180’’ and insert ‘‘270’’. Page 60, beginning at line 20, strike ‘‘unresolved questions regarding the documentation of the foregone proposed use or’’. Page 60, beginning at line 25, strike ‘‘the documentation of the 

foregone use established under subsection (f) or’’. Page 61, line 10, after ‘‘mechanisms’’ insert ‘‘that would benefit 

the species’’. Page 61, line 15, after ‘‘documented’’ insert ‘‘to benefit the species’’. Page 61, line 17, after ‘‘use’’ insert ‘‘, which shall not include 

transfer of title’’. Page 62, beginning at line 7, strike ‘‘binding on the Secretary 

and the private property owner’’ and insert ‘‘the best and final offer 

by the Secretary’’. 

Page 62, line 15, after ‘‘for’’ insert ‘‘essentially’’. 

Page 66, strike lines 21 through 26 and insert the following: 

‘‘(d) AUTHORIZATION OF APPROPRIATIONS.—Payments under this 

section are subject to appropriations.’’. 

5 

At the end of the bill add the following: 

SEC. 21. CONSOLIDATION OF PROGRAMS. 

(a) TRANSFER.—The President shall, by not later than one year 

after the date of enactment of this Act, transfer to the Secretary 

of the Interior all duties, resources, and responsibilities of the Secretary of Commerce under the Endangered Species Act of 1973 existing immediately before the enactment of this Act. 

(b) CONFORMING AMENDMENT.—

(1) AMENDMENT.—Section 3 (16 U.S.C. 1532) is further 

amended in paragraph (15) (relating to the definition of ‘‘Secretary’’) by striking ‘‘or the Secretary of Commerce as program 

responsibilities are vested pursuant to the provisions of Reorganization Plan Numbered 4 of 1970’’. 

(2) EFFECTIVE DATE.—The amendment made by paragraph 

(1) shall take effect one year after the date of the enactment 

of this Act. 

(c) REPORT.—No later than 180 days after the date of enactment 

of this Act, the Secretary of the Interior and the Secretary of Commerce shall jointly submit to the Committee on Resources and the 

Committee on Appropriations of the House of Representatives, and 

the Committee on Environment and Public Works and the Committee on Appropriations of the Senate, a detailed description of 

the process by which the transfer of functions under the amendment made by subsection (a) shall be implemented. 

(d) PRIOR DETERMINATIONS AND ACTIONS NOT AFFECTED.—This 

section shall not affect any determination or action by the Secretary of Commerce made or taken, respectively, under the Endangered Species Act of 1973 before the date of the enactment of this 

Act, except that such determinations and actions shall be treated 

as determinations and actions, respectively, of the Secretary of the 

Interior. 

SEC. 22. REVIEW OF PROTECTIVE REGULATIONS. 

The Secretary of the Interior shall—

(1) review regulations issued before the date of the enactment of this Act pursuant to section 4(d) of the Endangered 

Species Act of 1973, in order to determine whether revision of 

such regulations would be desirable in order to facilitate and 

improve cooperation with the States pursuant to section 6 of 

such Act; and 

(2) report to the Committee on Resources of the House of 

Representatives and the Committee on Environment and Public Works of the Senate regarding the findings of such review. 

SEC. 23. PROVISION OF INFORMATION REGARDING COMPLIANCE 

COSTS OF FEDERAL POWER ADMINISTRATIONS. 

(a) CUSTOMER BILLINGS.—The Administrator of the Bonneville 

Power Administration, the Western Area Power Administration, 

the Southwestern Power Administration, and the Southeastern 

Power Administration shall each include in monthly firm power 

customer billings sent to each customer information identifying and 

reporting such customer’s share of the Federal power marketing 

and generating agencies’ direct and indirect costs incurred by such 

administration related to compliance with the Endangered Species 

Act of 1973 (16 U.S.C. 1531 et seq.) and activities related to such 

Act. 

6 

(b) DIRECT COSTS.—In identifying and reporting direct costs, 

each Administrator shall include Federal agency obligations related 

to study-related costs, capital, operation, maintenance, and replacement costs, and staffing costs. 

(c) INDIRECT COSTS.—In identifying and reporting indirect costs, 

each Administrator shall include foregone generation and replacement power costs. 

(d) COORDINATION.—Each Administrator shall coordinate identification of costs under this subsection with the appropriate Federal 

power generating agencies. 

SEC. 24. SURVEY OF BLM LANDS AND FOREST SERVICE LANDS FOR 

MANAGEMENT FOR RECOVERY OF LISTED SPECIES. 

(a) IN GENERAL.—Not later than 2 years after the date of the enactment of this Act, the Secretary of the Interior shall—

(1) survey all lands under the administrative jurisdiction of 

the Bureau of Land Management and all lands under the administrative jurisdiction Forest Service immediately before the 

enactment of this Act, for the purpose of assessing the value 

of such lands for management for the recovery of any species 

included in a list published under section 4(c) of the Endangered Species Act of 1973 and for addition to the National 

Wildlife Refuge System; and 

(2) make recommendations to the Congress for managing 

any such lands as are appropriate as part of the National 

Wildlife Refuge System. 

(b) LIMITATION ON TRANSFERS.—The Secretary of the Interior 

may not transfer administrative jurisdiction pursuant to any recommendation under subsection (a)(2) except as authorized by a 

statute enacted after the date of the enactment of this Act. 

SEC. 25. RELATIONSHIP BETWEEN SECTION 7 CONSULTATION AND INCIDENT TAKE AUTHORIZATION UNDER MARINE MAMMAL 

PROTECTION ACT OF 1972. 

Consultation under section 7 of the Endangered Species Act of 

1973 (16 U.S.C. 1536) is equivalent to a section 101 incidental take 

authorization required under the Marine Mammal Protection Act of 

1972 (16 U.S.C. 1631 et seq.) for receiving dock building permits. 

2. AN AMENDMENT TO BE OFFERED BY REPRESENTATIVE GEORGE

MILLER OF CALIFORNIA, OR HIS DESIGNEE, DEBATABLE FOR 60 

MINUTES

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

(a) TABLE OF CONTENTS.—The table of contents for this Act is as 

follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. Amendment references. 

Sec. 3. Definitions. 

Sec. 4. Determinations of endangered species and threatened species. 

Sec. 5. Repeal of critical habitat requirements. 

Sec. 6. Petitions and procedures for determinations and revisions. 

Sec. 7. Reviews of listings and determinations. 

Sec. 8. Protective regulations. 

Sec. 9. Secretarial guidelines; State comments. 

Sec. 10. Recovery plans and land acquisitions. 

Sec. 11. Cooperation with States and Indian tribes. 

7 

Sec. 12. Interagency cooperation and consultation. 

Sec. 13. Exceptions to prohibitions. 

Sec. 14. Private property conservation. 

Sec. 15. Public accessibility and accountability. 

Sec. 16. Annual cost analyses. 

Sec. 17. Reimbursement for depredation of livestock by reintroduced species. 

Sec. 18. Authorization of appropriations. 

Sec. 19. Miscellaneous technical corrections. 

Sec. 20. Establishment of Science Advisory Board. 

Sec. 21. Clerical amendment to table of contents. 

(b) SHORT TITLE.—This Act may be cited as the ‘‘Threatened and 

Endangered Species Recovery Act of 2005’’. 

SEC. 2. AMENDMENT REFERENCES. 

Except as otherwise expressly provided, whenever in this Act an 

amendment or repeal is expressed in terms of an amendment to, 

or repeal of, a section or other provision, the reference shall be considered to be made to such section or other provision of the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.). 

SEC. 3. DEFINITIONS. 

(a) BEST AVAILABLE SCIENTIFIC DATA.—Section 3 (16 U.S.C. 

1532) is amended by redesignating paragraphs (2) through (21) in 

order as paragraphs (3), (4), (5), (6), (7), (8), (9), (10), (11), (13), 

(14), (15), (16), (17), (18), (19), (20), (21), and (22), respectively, and 

by inserting before paragraph (3), as so redesignated, the following: ‘‘(2) The term ‘best available scientific data’ means data and 

analyses, regardless of source, produced by scientifically accepted 

methods and procedures that are available to the Secretary at the 

time of a decision or action for which such data are required by this 

Act, and that meet scientifically accepted standards of objectivity, 

accuracy, reliability, and relevance. For the purpose of this paragraph, the term ‘scientifically accepted’ means those methods, procedures, and standards that are widely used within the relevant 

fields of science, including wildlife biology and management.’’. (b) PERMIT OR LICENSE APPLICANT.—Section 3 (16 U.S.C. 1532) 

is further amended by amending paragraph (13), as so redesignated, to read as follows: ‘‘(13) The term ‘permit or license applicant’ means, when used 

with respect to an action of a Federal agency that is subject to section 7(a) or (b), any person that has applied to such agency for a 

permit or license or for formal legal approval to perform an act.’’. (c) JEOPARDIZE THE CONTINUED EXISTENCE.—Section 3 (16 U.S.C. 

1532) is further amended by inserting after paragraph (11) the following: 

‘‘(12) The term ‘jeopardize the continued existence’ means to engage in an action that, directly or indirectly, makes it less likely 

that a threatened species or an endangered species will be brought 

to the point at which measures provided pursuant to this Act are 

no longer necessary, is likely to significantly delay doing so, or is 

likely to significantly increase the cost of doing so.’’. 

(d) CONFORMING AMENDMENT.—Section 7(n) (16 U.S.C. 1536(n)) 

is amended by striking ‘‘section 3(13)’’ and inserting ‘‘section 3(14)’’. 

SEC. 4. DETERMINATIONS OF ENDANGERED SPECIES AND THREATENED SPECIES. 

(a) REQUIREMENT TO MAKE DETERMINATIONS.—Section 4 (16 

U.S.C. 1533) is amended by striking so much as precedes subsection (a)(2) and inserting the following: 

8 

‘‘DETERMINATION OF ENDANGERED SPECIES AND THREATENED

SPECIES

‘‘SEC. 4. (a) IN 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, including by human activities, competition from other species, drought, fire, or other catastrophic natural causes. 

‘‘(B) Overutilization for commercial, recreational, scientific, 

or educational purposes. 

‘‘(C) Disease or predation. 

‘‘(D) The inadequacy of existing regulatory mechanisms, including any efforts identified pursuant to subsection (b)(1). 

‘‘(E) Other natural or manmade factors affecting its continued existence.’’. 

(b) BASIS FOR DETERMINATION.—Section 4(b)(1)(A) (16 U.S.C. 

1533(b)(1)(A)) is amended—

(1) by striking ‘‘best scientific and commercial data available 

to him’’ and inserting ‘‘best available scientific data’’; and 

(2) by inserting ‘‘Federal agency, any’’ after ‘‘being made by 

any’’. 

(c) LISTS.—Section 4(c)(2) (16 U.S.C. 1533(c)(2)) is amended to 

read as follows: 

‘‘(2)(A) The Secretary shall—

‘‘(i) conduct, at least once every 5 years, based on the information collected for the biennial reports to the Congress 

required by paragraph (3) of subsection (f), a review of all 

species included in a list that is published pursuant to 

paragraph (1) and that is in effect at the time of such review; and 

‘‘(ii) determine on the basis of such review and any other 

information the Secretary considers relevant whether any 

such species should be proposed for—

‘‘(I) removal from such list; 

‘‘(II) change in status from an endangered species to 

a threatened species; or 

‘‘(III) change in status from a threatened species to 

an endangered species. 

‘‘(B) Each determination under subparagraph (A)(ii) shall be 

made in accordance with subsections (a) and (b).’’. 

SEC. 5. REPEAL OF CRITICAL HABITAT REQUIREMENTS. 

(a) REPEAL OF REQUIREMENT.—Section 4(a) (16 U.S.C. 1533(a)) is 

amended by striking paragraph (3). 

(b) CONFORMING AMENDMENTS.—

(1) Section 4(b) (16 U.S.C. 1533(b)), as otherwise amended by 

this Act, is further amended by striking paragraph (2), and by 

redesignating paragraphs (3) through (8) in order as paragraphs (2) through (7), respectively. 

(2) Section 4(b) (16 U.S.C. 1533(b)) is further amended in 

paragraph (2), as redesignated by paragraph (1) of this subsection, by striking subparagraph (D). 

9 

(3) Section 4(b) (16 U.S.C. 1533(b)) is further amended in 

paragraph (4), as redesignated by paragraph (1) of this subsection, by striking ‘‘determination, designation, or revision referred to in subsection (a)(1) or (3)’’ and inserting ‘‘determination referred to in subsection (a)(1)’’. (4) Section 4(b) (16 U.S.C. 1533(b)) is further amended in 

paragraph (7), as redesignated by paragraph (1) of this subsection, by striking ‘‘; and if such regulation’’ and all that follows through the end of the sentence and inserting a period. 

(5) Section 4(c)(1) (16 U.S.C. 1533(c)(1)) is amended— (A) in the second sentence— (i) by inserting ‘‘and’’ after ‘‘if any’’; and 

(ii) by striking ‘‘, and specify any’’ and all that follows through the end of the sentence and inserting a 

period; and 

(B) in the third sentence by striking ‘‘, designations,’’. (6) Section 5 (16 U.S.C. 1534), as amended by section 9(a)(3) 

of this Act, is further amended in subsection (j)(2) by striking 

‘‘section 4(b)(7)’’ and inserting ‘‘section 4(b)(6)’’. (7) Section 6(c) (16 U.S.C. 1535(c)), as amended by section 

10(1) of this Act, is further amended in paragraph (3) by striking ‘‘section 4(b)(3)(B)(iii)’’ each place it appears and inserting 

‘‘section 4(b)(2)(B)(iii)’’. 

(8) Section 7 (16 U.S.C. 1536) is amended—

(A) in subsection (a)(2) in the first sentence by striking 

‘‘or result in the destruction or adverse modification of any 

habitat of such species’’ and all that follows through the 

end of the sentence and inserting a period; 

(B) in subsection (a)(4) in the first sentence by striking 

‘‘or result’’ and all that follows through the end of the sentence and inserting a period; and 

(C) in subsection (b)(3)(A) by striking ‘‘or its critical 

habitat’’. (9) Section 10(j)(2)(C)) (16 U.S.C. 1539(j)(2)(C)), as amended 

by section 12(c) of this Act, is further amended— (A) by striking ‘‘that—’’ and all that follows through ‘‘(i) 

solely’’ and inserting ‘‘that solely’’; and 

(B) by striking ‘‘; and’’ and all that follows through the 

end of the sentence and inserting a period. 

SEC. 6. PETITIONS AND PROCEDURES FOR DETERMINATIONS AND REVISIONS. 

(a) TREATMENT OF PETITIONS.—

(1) IN GENERAL.—Section 4(b) (16 U.S.C. 1533(b)) is amended 

in paragraph (2), as redesignated by section 5(b)(1) of this Act, 

by adding at the end of subparagraph (A) the following: ‘‘The 

Secretary shall not make a finding that the petition presents 

substantial scientific or commercial information indicating that 

the petitioned action may be warranted unless the petitioner 

provides to the Secretary a copy of all information cited in the 

petition.’’

(2) ADDITIONAL DATA.—Section 4(b) is further amended in 

paragraph (2), as redesignated by section 5(b)(1) of this Act, in 

subparagraph (A) by adding at the end the following: ‘‘If the 

Secretary finds with respect to a petition under this subparagraph, that there is substantial disagreement regarding the 

10 

sufficiency or accuracy of the available data relevant to the petitioned action, the Secretary, in consultation with the States, 

may for the purpose of seeking additional data postpone making a finding under this subsection by no more than 18 

months.’’. (3) PRIORITIZATION ALLOWED.—Section 4(b) is further amended in paragraph (2), as redesignated by section 5(b)(1) of this 

Act, in subparagraph (B)(iii) by amending subclause (I) to read 

as follows: ‘‘(I) the immediate proposal and timely promulgation of 

a final regulation implementing the petitioned action in accordance with paragraphs (5) and (6) is precluded within 

current fiscal year funding by higher priority pending proposals determined by the Secretary to involve species at 

greater risk of extinction, and’’. (b) IMPLEMENTING REGULATIONS.—

(1) PROPOSED REGULATIONS.—Section 4(b) (16 U.S.C. 1533(b)) 

is amended—

(A) in paragraph (4)(A), as redesignated by section 

5(b)(2) of this Act—

(i) in clause (i) by striking ‘‘, and’’ and inserting a 

semicolon; 

(ii) in clause (ii) by striking ‘‘to the State agency in’’

and inserting ‘‘to the Governor of, and the State agency in,’’; 

(iii) in clause (ii) by striking ‘‘such agency’’ and inserting ‘‘such Governor or agency’’; 

(iv) in clause (ii) by inserting ‘‘and’’ after the semicolon at the end; and 

(v) by adding at the end the following: 

‘‘(iii) maintain, and shall make available, a complete record 

of all information not protected by copyright concerning the determination or revision in the possession of the Secretary, on 

a publicly accessible website on the Internet, including an 

index to such information.’’; and 

(B) by adding at the end the following: ‘‘(8)(A) Information maintained and made available under 

paragraph (5)(A)(iii) shall include any status review, all information not protected by copyright cited in such a status review, all information referred to in the proposed regulation and 

the preamble to the proposed regulation, and all information 

submitted to the Secretary by third parties. ‘‘(B) The Secretary shall withhold from public review under 

paragraph (5)(A)(iii) any information that may be withheld 

under 552 of title 5, United States Code.’’. (2) FINAL REGULATIONS.—Paragraph (5) of section 4(b) (16 

U.S.C. 1533(b)), as amended by section 5(b)(2) of this Act, is 

further amended—

(A) in subparagraph (A) by striking clauses (i) and (ii) 

and inserting the following: 

‘‘(i) a final regulation to implement such a determination of 

whether a species is an endangered species or a threatened 

species; ‘‘(ii) notice that such one-year period is being extended under 

subparagraph (B)(i); or 

11 

‘‘(iii) notice that the proposed regulation is being withdrawn 

under subparagraph (B)(ii), together with the finding on which 

such withdrawal is based.’’; 

(B) in subparagraph (B)(i) by striking ‘‘subparagraph 

(A)(i)’’ and inserting ‘‘subparagraph (A)’’; 

(C) in subparagraph (B)(ii) by striking ‘‘subparagraph 

(A)(i)’’ and inserting ‘‘subparagraph (A)’’; and 

(D) by striking subparagraph (C). 

(3) EMERGENCY DETERMINATIONS.—Paragraph (6) of section 

4(b) (16 U.S.C. 1533(b)), as redesignated by section 5(b)(2) of 

this Act, is further amended—

(A) in the matter preceding subparagraph (A), by inserting ‘‘with respect to a determination of a species to be an 

endangered species’’ after ‘‘any regulation’’; and 

(B) in subparagraph (B), by striking ‘‘the State agency 

in’’ and inserting ‘‘the Governor of, and State agency in,’’. 

SEC. 7. REVIEWS OF LISTINGS AND DETERMINATIONS. 

Section 4(c) (16 U.S.C. 1533(c)) is amended by inserting at the 

end the following: 

‘‘(3) Each determination under paragraph (2)(B) shall consider 

the following as applicable: 

‘‘(A) Except as provided in subparagraph (B) of this paragraph, the criteria in the recovery plan for the species required 

by section 5(c)(1)(A) or (B). 

‘‘(B) If the recovery plan is issued before the criteria required 

under section 5(c)(1)(A) are established or if no recovery plan 

exists for the species, the factors for determination that a species is an endangered species or a threatened species set forth 

in subsections (a)(1) and (b)(1). 

‘‘(C) A finding of fundamental error in the determination 

that the species is an endangered species, a threatened species, 

or extinct. 

‘‘(D) A determination that the species is no longer an endangered species or threatened species or in danger of extinction, 

based on an analysis of the factors that are the basis for listing 

under section 4(a)(1).’’. 

SEC. 8. PROTECTIVE REGULATIONS. 

Section 4(d) (16 U.S.C. 1533(d)) is amended by—

(1) inserting ‘‘(1)’’ before ‘‘Whenever’’; 

(2) inserting ‘‘in consultation with the States’’ after ‘‘the Secretary shall’’; and 

(3) adding at the end the following new paragraphs: 

‘‘(2) Each regulation published under this subsection after the enactment of the Threatened and Endangered Species Recovery Act 

of 2005 shall be accompanied with a statement by the Secretary of 

the reason or reasons for applying any particular prohibition to the 

threatened species. 

‘‘(3) A regulation issued under this subsection after the enactment of the Threatened and Endangered Species Recovery Act of 

2005 may apply to more than one threatened species only if the 

specific threats to, and specific biological conditions and needs of, 

the species are identical, or sufficiently similar, to warrant the application of identical prohibitions. 

12 

‘‘(4) The Secretary may review regulations issued under this subsection prior to the enactment of the Threatened and Endangered 

Species Recovery Act of 2005. A species afforded protections by any 

such regulation shall continue to be afforded those protections until 

such time as the Secretary shall review the regulations issued prior 

to the enactment of the Threatened and Endangered Species Recovery Act of 2005 as they pertain to that species.’’. 

SEC. 9. SECRETARIAL GUIDELINES; STATE COMMENTS. 

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

(1) by striking subsections (f) and (g) and redesignating subsections (h) and (i) as subsections (f) and (g), respectively; 

(2) in subsection (f), as redesignated by paragraph (1) of this 

subsection—

(A) in the heading by striking ‘‘AGENCY’’ and inserting 

‘‘SECRETARIAL’’; 

(B) in the matter preceding paragraph (1), by striking 

‘‘the purposes of this section are achieved’’ and inserting 

‘‘this section is implemented’’; 

(C) by redesignating paragraph (4) as paragraph (5); 

(D) in paragraph (3) by striking ‘‘and’’ after the semicolon at the end, and by inserting after paragraph (3) the 

following: 

‘‘(4) the criteria for determining best available scientific data 

pursuant to section 3(2); and’’; and 

(E) in paragraph (5), as redesignated by subparagraph 

(C) of this paragraph, by striking ‘‘subsection (f) of this section’’ and inserting ‘‘section 5’’; 

(3) in subsection (g), as redesignated by paragraph (1) of this 

section—

(A) by inserting ‘‘COMMENTS.—’’ before the first sentence; 

(B) by striking ‘‘a State agency’’ the first place it appears 

and inserting ‘‘a Governor, State agency, county (or equivalent jurisdiction), or unit of local government’’; 

(C) by striking ‘‘a State agency’’ the second place it appears and inserting ‘‘a Governor, State agency, county (or 

equivalent jurisdiction), or unit of local government’’; 

(D) by striking ‘‘the State agency’’ and inserting ‘‘the 

Governor, State agency, county (or equivalent jurisdiction), 

or unit of local government, respectively’’; and 

(E) by striking ‘‘agency’s’’. 

SEC. 10. RECOVERY PLANS AND LAND ACQUISITIONS. 

(a) IN GENERAL.—Section 5 (16 U.S.C. 1534) is amended— (1) by redesignating subsections (a) and (b) as subsections (k) 

and (l), respectively; 

(2) in subsection (l), as redesignated by paragraph (1) of this 

section, by striking ‘‘subsection (a) of this section’’ and inserting ‘‘subsection (k)’’; and 

(3) by striking so much as precedes subsection (k), as redesignated by paragraph (1) of this section, and inserting the following: 

‘‘RECOVERY PLANS AND LAND ACQUISITION

‘‘SEC. 5. (a) RECOVERY PLANS.—The Secretary shall, in accordance with this section, develop and implement a plan (in this subVerDate Aug 31 2005 05:31 Sep 29, 2005 Jkt 039008 PO 00000 Frm 00012 Fmt 6659 Sfmt 6602 E:\HR\OC\HR240.XXX HR240
13 

section referred to as a ‘recovery plan’) for the conservation of the 

species determined under section 4(a)(1) to be an endangered species or a threatened species, unless the Secretary finds that such 

a plan will not promote the conservation and survival of the species. ‘‘(b) DEVELOPMENT OF RECOVERY PLANS.—(1) Subject to paragraphs (2) and (3), the Secretary, in developing recovery plans, 

shall, to the maximum extent practicable, 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. ‘‘(2) In the case of any species determined to be an endangered 

species or threatened species after the date of the enactment of the 

Threatened and Endangered Species Recovery Act of 2005, the Secretary shall publish a final recovery plan for a species within 3 

years after the date the species is listed under section 4(c). ‘‘(3)(A) For those species that are listed under section 4(c) on the 

date of enactment of the Threatened and Endangered Species Recovery Act of 2005 and are described in subparagraph (B) of this 

paragraph, the Secretary, after providing for public notice and comment, shall— ‘‘(i) not later than 1 year after such date, publish in the Federal Register a priority ranking system for preparing or revising such recovery plans that is consistent with paragraph (1) 

and takes into consideration the scientifically based needs of 

the species; and ‘‘(ii) not later than 18 months after such date, publish in the 

Federal Register a list of such species ranked in accordance 

with the priority ranking system published under clause (i) for 

which such recovery plans will be developed or revised, and a 

schedule for such development or revision. ‘‘(B) A species is described in this subparagraph if—

‘‘(i) a recovery plan for the species is not published under 

this Act before the date of enactment of the Threatened and 

Endangered Species Recovery Act of 2005 and the Secretary 

finds such a plan would promote the conservation and survival 

of the species; or 

‘‘(ii) a recovery plan for the species is published under this 

Act before such date of enactment and the Secretary finds revision of such plan is warranted. 

‘‘(C)(i) The Secretary shall, to the maximum extent practicable, 

adhere to the list and schedule published under subparagraph 

(A)(ii) in developing or revising recovery plans pursuant to this 

paragraph. 

‘‘(ii) The Secretary shall provide the reasons for any deviation 

from the list and tentative schedule published under subparagraph 

(A)(ii), in each report to the Congress under subsection (e). 

‘‘(4) The Secretary, using the priority ranking system required 

under paragraph (3), shall prepare or revise such plans within 10 

years after the date of the enactment of the Threatened and Endangered Species Recovery Act of 2005. 

‘‘(5) The Secretary, using the priority ranking system required 

under paragraph (3), shall revise such plans within 10 years after 

14 

the date of enactment of the Threatened and Endangered Species 

Recovery Act of 2005. ‘‘(6) In development of recovery plans, the Secretary shall use 

comparative risk assessments, if appropriate, to consider and analyze the short-term and long-term consequences of alternative recovery strategies. ‘‘(c) PLAN CONTENTS.—(1)(A) Except as provided in subparagraph 

(E), a recovery plan shall be based on the best available scientific 

data and shall include the following: ‘‘(i) Objective, measurable criteria that, when met, would result in a determination, in accordance with this section, that 

the species to which the recovery plan applies be removed from 

the lists published under section 4(c) or be reclassified from an 

endangered species to a threatened species. ‘‘(ii) A description of such site-specific or other measures that 

would achieve the criteria established under clause (i), including such intermediate measures as are warranted to effect 

progress toward achievement of the criteria. ‘‘(iii) Estimates of the time required and the costs to carry 

out those measures described under clause (ii), including, to 

the extent practicable, estimated costs for any recommendations, by the recovery team, or by the Secretary if no recovery 

team is selected, that any of the areas identified under clause 

(iv) be acquired on a willing seller basis. ‘‘(iv) An identification of those publicly owned areas of land 

or water that are necessary to achieve the purpose of the recovery plan under subsection (a), and, if such species is unlikely to be conserved on such areas, such other areas as are 

necessary to achieve the purpose of the recovery plan. ‘‘(B) The Secretary may at the time of listing or at any time prior 

to the approval of a recovery plan for a species issue such guidance 

as the Secretary considers appropriate to assist Federal agencies, 

State agencies, and other persons in complying with the requirements of this Act by identifying either particular types of activities 

or particular areas of land or water within which those or other activities may impede the conservation of the species. 

‘‘(C) In specifying measures in a recovery plan under subparagraph (A), the Secretary shall—

‘‘(i) whenever possible include alternative measures; and 

‘‘(ii) in developing such alternative measures, seek to identify, among such alternative measures of comparable expected 

efficacy and timeliness, the alternative measures that are least 

costly. 

‘‘(2) In the case of any species for which critical habitat has been 

designated prior to the enactment of the Threatened and Endangered Species Recovery Act of 2005, and for which no recovery plan 

has been developed or revised after the enactment of such Act, the 

Secretary shall treat the critical habitat of the species as an area 

described in subparagraph (A)(iv) until a recovery plan for the species is developed or the existing recovery plan for the species is revised pursuant to subsection (b)(4). In determining, pursuant to 

section 7(a)(2), whether an agency action is likely to jeopardize the 

continued existence of an endangered species or threatened species, 

the Secretary shall consider the effects of the action on any areas 

identified pursuant to subsection (b)(4). 

15 

‘‘(d) RECOVERY TEAMS.—(1) The Secretary shall promulgate regulations that provide for the establishment of recovery teams that 

may advise the Secretary in the development of recovery plans 

under this section. The recovery teams may help the Secretary ensure that recovery plans are scientifically rigorous and that the 

evaluation of costs required by paragraph (1)(A)(iii) of subsection 

(c) are economically rigorous. ‘‘(2) Such regulations shall— ‘‘(A) establish criteria and the process for selecting the members of recovery teams that ensure that each team— ‘‘(i) is of a size and composition to enable timely completion of the recovery plan; and ‘‘(ii) includes sufficient representation from scientists 

with relevant expertise and constituencies with a demonstrated direct interest in the species and its conservation or in the economic and social impacts of its conservation to ensure that the views of such constituencies will be 

considered in the development of the plan; and ‘‘(B) include provisions regarding operating procedures of and 

recordkeeping by recovery teams. ‘‘(3) The Federal Advisory Committee Act (5 App. U.S.C.) shall 

not apply to recovery teams appointed in accordance with regulations issued by the Secretary under this subsection. ‘‘(e) REPORTS TO CONGRESS.—(1) The Secretary shall report every 

two years to the Committee on Resources of the House of Representatives and the Committee on Environment and Public Works 

of the Senate on the status of all domestic endangered species and 

threatened species and the status of efforts to develop and implement recovery plans for all domestic endangered species and 

threatened species. ‘‘(2) In reporting on the status of such species since the time of 

its listing, the Secretary shall include— ‘‘(A) an assessment of any significant change in the wellbeing of each such species, including—

‘‘(i) changes in population, range, or threats; and 

‘‘(ii) the basis for that assessment; and 

‘‘(B) for each species, a measurement of the degree of confidence in the reported status of such species, based upon a 

quantifiable parameter developed for such purposes. 

‘‘(f) PUBLIC NOTICE AND COMMENT.—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. 

‘‘(g) STATE COMMENT.—The Secretary shall, prior to final approval of a new or revised recovery plan, provide a draft of such 

plan and an opportunity to comment on such draft to the Governor 

of, and State agency in, any State and any Indian tribe to which 

such draft would apply. The Secretary shall include in the final recovery plan the Secretary’s response to the comments of the Governor and the State agency and to any comments submitted by the 

Governor on behalf of a regional or local land use agency in the 

Governor’s State. ‘‘(h) INDIAN TRIBE DEFINED.—For purposes of this Act, the term 

‘Indian tribe’ means—

16 

‘‘(1) with respect to the 48 contiguous States, any federally recognized Indian tribe, organized band, pueblo, or community; and ‘‘(2) with respect to Alaska, the Metlakatla Indian Community. 

‘‘(i) USE OF PLANS.—(1) Each Federal agency shall consider any 

relevant best available scientific data contained in a recovery plan 

in any analysis conducted under section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. 4332). ‘‘(2)(A) The head of any Federal agency may enter into an agreement with the Secretary specifying the measures the agency will 

carry out to implement a recovery plan. ‘‘(B) Each such agreement shall be published in draft form with 

notice and an opportunity for public comment. ‘‘(C) Each such final agreement shall be published, with responses by the head of the Federal agency to any public comments 

submitted on the draft agreement. ‘‘(j) 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 that have recovered to the point 

at which the measures provided pursuant to this Act are no longer 

necessary and that, in accordance with this section, have been removed from the lists published under section 4(c). ‘‘(2) The Secretary shall make prompt use of the authority under 

section 4(b)(7) to prevent a significant risk to the well-being of any 

such recovered species.’’. (b) CONFORMING AMENDMENTS.— (1) Section 6(d)(1) (16 U.S.C. 1535(d)(1)) is amended by striking ‘‘section 4(g)’’ and inserting ‘‘section 5(j)’’. (2) The Marine Mammal Protection Act of 1972 is amended— (A) in section 104(c)(4)(A)(ii) (16 U.S.C. 1374(c)(4)(A)(ii)) 

by striking ‘‘section 4(f)’’ and inserting ‘‘section 5’’; and 

(B) in section 115(b)(2) (16 U.S.C. 1383b(b)(2)) by striking ‘‘section 4(f) of the Endangered Species Act of 1973 (16 

U.S.C. 1533(f))’’ and inserting ‘‘section 5 of the Endangered 

Species Act of 1973’’. 

SEC. 11. COOPERATION WITH STATES AND INDIAN TRIBES. 

Section 6 (16 U.S.C. 1535) is further amended— (1) in subsection (c), by adding at the end the following: ‘‘(3)(A) Any cooperative agreement entered into by the Secretary 

under this subsection may also provide for development of a program for conservation of species determined to be candidate species 

pursuant to section 4(b)(3)(B)(iii) or any other species that the 

State and the Secretary agree is at risk of being determined to be 

an endangered species or threatened species under section 4(a)(1) 

in that State. 

‘‘(B) Any cooperative agreement entered into by the Secretary 

under this subsection may also provide for monitoring or assistance 

in monitoring the status of candidate species pursuant to section 

4(b)(3)(C)(iii) or recovered species pursuant to section 5(j). 

‘‘(C) The Secretary shall periodically review each cooperative 

agreement under this subsection and seek to make changes the 

Secretary considers necessary for the conservation of endangered 

species and threatened species to which the agreement applies. ‘‘(4) Any cooperative agreement entered into by the Secretary 

under this subsection that provides for the enrollment of private 

17 

lands or water rights in any program established by the agreement 

shall ensure that the decision to enroll is voluntary for each owner 

of such lands or water rights. 

‘‘(5)(A) The Secretary may enter into a cooperative agreement 

under this subsection with an Indian tribe in substantially the 

same manner in which the Secretary may enter into a cooperative 

agreement with a State. 

‘‘(B) For the purposes of this paragraph, the term ‘Indian tribe’

means—

‘‘(i) with respect to the 48 contiguous States, any federally 

recognized Indian tribe, organized band, pueblo, or community; 

and 

‘‘(ii) with respect to Alaska, the Metlakatla Indian Community.’’; 

(2) in subsection (d)(1)—

(A) by striking ‘‘pursuant to subsection (c) of this section’’; 

(B) by striking ‘‘or to assist’’ and all that follows through 

‘‘section 5(j)’’ and inserting ‘‘pursuant to subsection (c)(1) 

and (2) or to address candidate species or other species at 

risk and recovered species pursuant to subsection (c)(3)’’; 

and 

(C) in subparagraph (F), by striking ‘‘monitoring the status of candidate species’’ and inserting ‘‘developing a conservation program for, or monitoring the status of, candidate species or other species determined to be at risk 

pursuant to subsection (c)(3)’’; and 

(3) in subsection (e)—

(A) by inserting ‘‘(1)’’ before the first sentence; 

(B) in paragraph (1), as designated by subparagraph (A) 

of this paragraph, by striking ‘‘at no greater than annual 

intervals’’ and inserting ‘‘every 3 years’’; and 

(C) by adding at the end the following: 

‘‘(2) Any cooperative agreement entered into by the Secretary 

under subsection (c) shall be subject to section 7(a)(2) through (d) 

and regulations implementing such provisions. 

‘‘(3) The Secretary may suspend any cooperative agreement established pursuant to subsection (c), after consultation with the 

Governor of the affected State, if the Secretary finds during the 

periodic review required by paragraph (1) of this subsection that 

the agreement no longer constitutes an adequate and active program for the conservation of endangered species and threatened 

species. 

‘‘(4) The Secretary may terminate any cooperative agreement entered into by the Secretary under subsection (c), after consultation 

with the Governor of the affected State, if—

‘‘(A) as result of the procedures of section 7(a)(2) through (d) 

undertaken pursuant to paragraph (2) of this subsection, the 

Secretary determines that continued implementation of the cooperative agreement is likely to jeopardize the continued existence of endangered species or threatened species, and the cooperative agreement is not amended or revised to incorporate a 

reasonable and prudent alternative offered by the Secretary 

pursuant to section 7(b)(3); or 

18 

‘‘(B) the cooperative agreement has been suspended under 

paragraph (3) of this subsection and has not been amended or 

revised and found by the Secretary to constitute an adequate 

and active program for the conservation of endangered species 

and threatened species within 180 days after the date of the 

suspension.’’. 

SEC. 12. INTERAGENCY COOPERATION AND CONSULTATION. 

(a) CONSULTATION REQUIREMENT.—Section 7(a) (16 U.S.C. 

1536(a)) is amended— (1) in paragraph (1) in the second sentence, by striking ‘‘endangered species’’ and all that follows through the end of the 

sentence and inserting ‘‘species determined to be endangered 

species and threatened species under section 4.’’; 

(2) in paragraph (2)— (A) in the first sentence by striking ‘‘action’’ the first 

place it appears and all that follows through ‘‘is not’’ and 

inserting ‘‘agency action authorized, funded, or carried out 

by such agency is not’’; 

(B) in the second sentence, by striking ‘‘best scientific 

and commercial data available’’ and inserting ‘‘best available scientific data’’; and 

(C) by adding at the end the following: ‘‘In fulfilling the 

requirements of this paragraph, the Secretary shall take 

into account whether the adverse impacts to individuals of 

a species are outweighed by any conservation benefits to 

the species as a whole.’’. (3) in paragraph (4)— (A) by striking ‘‘listed under section 4’’ and inserting ‘‘an 

endangered species or a threatened species’’; and 

(B) by inserting ‘‘, under section 4’’ after ‘‘such species’’. (b) OPINION OF SECRETARY.—Section 7(b) (16 U.S.C. 1536(b)) is 

amended— (1) in paragraph (1)(B)(i) by inserting ‘‘permit or license’’ before ‘‘applicant’’; 

(2) in paragraph (2) by inserting ‘‘permit or license’’ before ‘‘applicant’’; 

(3) in paragraph (3)(A)— (A) in the first sentence— (i) by striking ‘‘Promptly after’’ and inserting ‘‘Before’’; 

(ii) by inserting ‘‘permit or license’’ before ‘‘applicant’’; and 

(iii) by inserting ‘‘proposed’’ before ‘‘written statement’’; and 

(B) by striking all after the first sentence and inserting 

the following: ‘‘The Secretary shall consider any comment 

from the Federal agency and the permit or license applicant, if any, prior to issuance of the final written statement of the Secretary’s opinion. The Secretary shall issue 

the final written statement of the Secretary’s opinion by 

providing the written statement to the Federal agency and 

the permit or license applicant, if any, and publishing notice of the written statement in the Federal Register. If 

jeopardy is found, the Secretary shall suggest in the final 

written statement those reasonable and prudent alterVerDate Aug 31 2005 05:31 Sep 29, 2005 Jkt 039008 PO 00000 Frm 00018 Fmt 6659 Sfmt 6602 E:\HR\OC\HR240.XXX HR240
19 

natives, if any, that the Secretary believes would not violate subsection (a)(2) and can be taken by the Federal 

agency or applicant in implementing the agency action. 

The Secretary shall cooperate with the Federal agency and 

any permit or license applicant in the preparation of any 

suggested reasonable and prudent alternatives.’’; 

(4) in paragraph (4)— (A) by redesignating subparagraphs (A), (B), and (C) as 

clauses (i), (ii), and (iii), respectively; 

(B) by inserting ‘‘(A)’’ after ‘‘(4)’’; 

(C) by striking ‘‘the Secretary shall provide’’ and all that 

follows through ‘‘with a written statement that—’’ and inserting the following: ‘‘the Secretary shall include in the 

written statement under paragraph (3), a statement described in subparagraph (B) of this paragraph. ‘‘(B) A statement described in this subparagraph—’’; and 

(5) by adding at the end the following: ‘‘(5)(A) Any terms and conditions set forth pursuant to paragraph 

(4)(B)(iv) shall be no more than necessary to offset the impact of 

the incidental taking identified pursuant to paragraph (4) in the 

written statement prepared under paragraph (3). ‘‘(B) If various terms and conditions are available to comply with 

paragraph (4)(B)(iv), the terms and conditions set forth pursuant to 

that paragraph— ‘‘(i) must be capable of successful implementation; and 

‘‘(ii) must be consistent with the objectives of the Federal 

agency and the permit or license applicant, if any, to the greatest extent possible.’’. (c) BIOLOGICAL ASSESSMENTS.—Section 7(c) (16 U.S.C. 1536(c)) is 

amended— (1) in the first sentence, by striking ‘‘which is listed’’ and all 

that follows through the end of the sentence and inserting 

‘‘that is determined to be an endangered species or a threatened species, or for which such a determination is proposed 

pursuant to section 4, may be present in the area of such proposed action.’’; and 

(2) in the second sentence, by striking ‘‘best scientific and 

commercial data available’’ and inserting ‘‘best available scientific data’’. (d) MODIFICATION OF AN ENDANGERED SPECIES COMMITTEE PROC- ESS.—Section 7 (16 U.S.C. 1536) is amended—

(1) by repealing subsection (j); 

(2) by redesignating the remaining subsections accordingly; 

and 

(3) in subsection (o), as redesignated by paragraph (2) of this 

subsection—

(A) in the first sentence, by striking ‘‘is authorized’’ and 

all that follows through ‘‘of this section’’ and inserting 

‘‘may exempt an agency action from compliance with the 

requirements of subsections (a) through (d) of this section 

before the initiation of such agency action,’’; and 

(B) by striking the second sentence. 

SEC. 13. EXCEPTIONS TO PROHIBITIONS. 

(a) INCIDENTAL TAKE PERMITS.—Section 10(a)(2) (16 U.S.C. 

1539(a)(2)) is amended—

20 

(1) in subparagraph (A) by striking ‘‘and’’ after the semicolon 

at the end of clause (iii), by redesignating clause (iv) as clause 

(vii), and by inserting after clause (iii) the following: ‘‘(iv) objective, measurable biological goals to be achieved for 

species covered by the plan and specific measures for achieving 

such goals consistent with the requirements of subparagraph 

(B); ‘‘(v) measures the applicant will take to monitor impacts of 

the plan on covered species and the effectiveness of the plan’s 

measures in achieving the plan’s biological goals; ‘‘(vi) adaptive management provisions necessary to respond 

to all reasonably foreseeable changes in circumstances that 

could appreciably reduce the likelihood of the survival and recovery of any species covered by the plan; and’’; 

(2) in subparagraph (B) by striking ‘‘and’’ after the semicolon 

at the end of clause (iv), by redesignating clause (v) as clause 

(vi), and by inserting after clause (iv) the following: ‘‘(v) the term of the permit is reasonable, taking into consideration—

‘‘(I) the period in which the applicant can be expected to 

diligently complete the principal actions covered by the 

plan; ‘‘(II) the extent to which the plan will enhance the conservation of covered species; ‘‘(III) the adequacy of information underlying the plan; 

‘‘(IV) the length of time necessary to implement and 

achieve the benefits of the plan; and ‘‘(V) the scope of the plan’s adaptive management strategy; and’’; and 

(3) by striking subparagraph (C) and inserting the following: ‘‘(3) Any terms and conditions offered by the Secretary pursuant 

to paragraph (2)(B) to reduce or offset the impacts of incidental 

taking shall be no more than necessary to offset the impact of the 

incidental taking specified in the conservation plan pursuant to in 

paragraph (2)(A)(i). 

‘‘(4)(A) If the holder of a permit issued under this subsection for 

other than scientific purposes is in compliance with the terms and 

conditions of the permit, and any conservation plan or agreement 

incorporated by reference therein, the Secretary may not require 

the holder, without the consent of the holder, to adopt any new 

minimization, mitigation, or other measure with respect to any species adequately covered by the permit during the term of the permit, except as provided in subparagraphs (B) and (C) to meet circumstances that have changed subsequent to the issuance of the 

permit. 

‘‘(B) For any circumstance identified in the permit or incorporated document that has changed, the Secretary may, in the absence of consent of the permit holder, require only such additional 

minimization, mitigation, or other measures as are already provided in the permit or incorporated document for such changed circumstance. 

‘‘(C) For any changed circumstance not identified in the permit 

or incorporated document, the Secretary may, in the absence of 

consent of the permit holder, require only such additional minimization, mitigation, or other measures to address such changed 

21 

circumstance that do not involve the commitment of any additional 

land, water, or financial compensation not otherwise committed, or 

the imposition of additional restrictions on the use of any land, 

water or other natural resources otherwise available for development or use, under the original terms and conditions of the permit 

or incorporated document. ‘‘(D) The Secretary shall have the burden of proof in demonstrating and documenting, with the best available scientific data, 

the occurrence of any changed circumstances for purposes of this 

paragraph. ‘‘(E) All permits issued under this subsection on or after the date 

of the enactment of the Threatened and Endangered Species Recovery Act of 2005, other than permits for scientific purposes, shall 

contain the assurances contained in subparagraphs (B) through (D) 

of this paragraph and paragraph (5)(A) and (B). Permits issued 

under this subsection on or after March 25, 1998, and before the 

date of the enactment of the Threatened and Endangered Species 

Recovery Act of 2005, other than permits for scientific purposes, 

shall be governed by the applicable sections of parts 17.22(b), (c), 

and (d), and 17.32(b), (c), and (d) of title 50, Code of Federal Regulations, as the same exist on the date of the enactment of the 

Threatened and Endangered Species Act of 2005. ‘‘(F) If the Secretary determines that a conservation plan under 

this subsection reasonably can be expected to fail to achieve the 

goals specified under paragraph (2)(A)(iv), the Secretary shall, at 

the Secretary’s expense, implement remedial conservation measures. Nothing in the preceding sentence shall be construed to allow 

the Secretary to require the holder of a permit issued under this 

subsection to undertake any additional measures without the consent of the holder. ‘‘(5)(A) The Secretary shall revoke a permit issued under paragraph (2) if the Secretary finds that the permittee is not complying 

with the terms and conditions of the permit. ‘‘(B) Any permit subject to paragraph (4)(A) may be revoked due 

to changed circumstances only if—

‘‘(i) the Secretary determines that continuation of the activities to which the permit applies would be inconsistent with the 

criteria in paragraph (2)(B)(iv); 

‘‘(ii) the Secretary provides 60 days notice of revocation to 

the permittee; and 

‘‘(iii) the Secretary is unable to, and the permittee chooses 

not to, remedy the condition causing such inconsistency.’’. 

(b) EXTENSION OF PERIOD FOR PUBLIC REVIEW AND COMMENT ON

APPLICATIONS.—Section 10(c) (16 U.S.C. 1539(c)) is amended in the 

second sentence by striking ‘‘thirty’’ each place it appears and inserting ‘‘45’’. 

(c) EXPERIMENTAL POPULATIONS.—Section 10(j) (16 U.S.C. 

1539(j)) is amended—

(1) in paragraph (1), by striking ‘‘For purposes’’ and all that 

follows through the end of the paragraph and inserting the following: ‘‘For purposes of this subsection, the term ‘experimental population’ means any population (including any offspring arising therefrom) authorized by the Secretary for release under paragraph (2), but only when such population is in 

the area designated for it by the Secretary, and such area is, 

22 

at the time of release, wholly separate geographically from 

areas occupied by nonexperimental populations of the same 

species. For purposes of this subsection, the term ‘areas occupied by nonexperimental populations’ means areas characterized by the sustained and predictable presence of more than 

negligible numbers of successfully reproducing individuals over 

a period of many years.’’; 

(2) in paragraph (2)(B), by striking ‘‘information’’ and inserting ‘‘scientific data’’; and 

(3) in paragraph (2)(C)(i), by striking ‘‘listed’’ and inserting ‘‘determined to be an endangered species or a threatened species’’. (d) WRITTEN DETERMINATION OF COMPLIANCE.—Section 10 (16 

U.S.C. 1539) is amended by adding at the end the following: 

‘‘(k) WRITTEN DETERMINATION OF COMPLIANCE.—(1) A property 

owner (in this subsection referred to as a ‘requester’) may request 

the Secretary to make a written determination as to whether a proposed use of the owner’s property that is lawful under State and 

local law will require a permit under section 10(a), by submitting 

a written description of the proposed action to the Secretary by certified mail. 

‘‘(2) A written description of a proposed use is deemed to be sufficient for consideration by the Secretary under paragraph (1) if the 

description includes—

‘‘(A) the nature, the specific location, the lawfulness under 

State and local law, and the anticipated schedule and duration 

of the proposed use, and a demonstration that the property 

owner has the means to undertake the proposed use; and 

‘‘(B) any anticipated adverse impact to a species that is included on a list published under 4(c)(1) that the requestor reasonably expects to occur as a result of the proposed use. 

‘‘(3) The Secretary may request and the requestor may supply 

any other information that either believes will assist the Secretary 

to make a determination under paragraph (1). ‘‘(4) If the Secretary does not make a determination pursuant to 

a request under this subsection because of the omission from the 

request of any information described in paragraph (2), the requestor may submit a subsequent request under this subsection for 

the same proposed use. ‘‘(5)(A) Subject to subparagraph (B), the Secretary shall provide 

to the requestor a written determination of whether the proposed 

use, as proposed by the requestor, will require a permit under section 10(a), by not later than expiration of the 180-day period beginning on the date of the submission of the request. ‘‘(B) The Secretary may request, and the requestor may grant, a 

written extension of the period under subparagraph (A). ‘‘(6) At the end of each fiscal year, the Secretary shall transmit 

a report to the Congress listing the requests to which the Secretary 

did not provide a requestor a timely response under paragraph 

(5)(A) or (B), the status of those requests at the time of transmittal 

of the report, and an explanation for the circumstances that prevented the Secretary from providing any such requestor with a 

timely response. 

‘‘(7) This subsection shall not apply with respect to agency actions that are subject to consultation under section 7.’’. 

23 

(e) NATIONAL SECURITY EXEMPTION.—Section 10 (16 U.S.C. 1539) 

is further amended by adding at the end the following: 

‘‘(l) NATIONAL SECURITY.—The President, after consultation with 

the appropriate Federal agency, may exempt any act or omission 

from the provisions of this Act if the President finds that such exemption is necessary for national security.’’. 

SEC. 14. PRIVATE PROPERTY CONSERVATION. 

Section 13 (consisting of amendments to other laws, which have 

executed) is amended to read as follows: 

‘‘PRIVATE PROPERTY CONSERVATION PROGRAM

‘‘SEC. 13. (a) ESTABLISHMENT OF PROGRAM.—

‘‘(1) REQUIREMENT.—The Secretary shall establish a Private 

Property Conservation Program to improve the habitat and 

promote the conservation, on private lands, of endangered species, threatened species, and species that are candidates to be 

determined to be endangered species or threatened species. 

‘‘(2) AGREEMENTS AUTHORIZED.—The Secretary may enter 

into an agreement with a private property owner under which 

the Secretary shall, subject to appropriations, make annual or 

other payments to the person to implement the agreement. 

‘‘(3) CONTENTS.—Any agreement the Secretary enters into 

under this section shall—

‘‘(A) specify a management plan that the private property owner shall commit to implement on the property of 

the private property owner, including—

‘‘(i) an identification of the species and habitat covered by the plan; 

‘‘(ii) a finding by the Secretary that the land to 

which the agreement applies is appropriate for the 

species and habitat covered by the agreement; 

‘‘(iii) a description of the activities the private property owner shall undertake to conserve the species and 

to create, restore, enhance, or protect habitat; and 

‘‘(iv) a description of the existing or future economic 

activities on the land to which the agreement applies 

that are compatible with the goals of the program. 

‘‘(B) specify the terms of the agreement, including—

‘‘(i) the terms of payment to be provided by the Secretary to the private property owner; 

‘‘(ii) a description of any technical assistance the 

Secretary will provide to the private property owner to 

implement the management plan; 

‘‘(iii) the terms and conditions under which the Secretary and the private property owner mutually agree 

that the agreement may be modified or terminated; 

‘‘(iv) acts or omissions by the Secretary or the private property owner that shall be considered violations 

of the agreement, and procedures under which notice 

and an opportunity to remedy any violation by the private property owner shall be given; 

‘‘(v) a finding by the Secretary that the private property owner owns the land to which the agreement apVerDate Aug 31 2005 05:31 Sep 29, 2005 Jkt 039008 PO 00000 Frm 00023 Fmt 6659 Sfmt 6602 E:\HR\OC\HR240.XXX HR240
24 

plies or has sufficient control over the use of such land 

to ensure implementation of agreement; and ‘‘(vi) such other duties of the Secretary and of the 

private property owner as are appropriate. ‘‘(4) COST SHARE.—The Secretary may provide up to 70 percent of the cost to implement the management plan under the 

terms of the agreement. ‘‘(5) PRIORITY.—In entering into agreements under this section, the Secretary shall give priority to those agreements— ‘‘(A) that apply to areas identified under section 

5(c)(1)(A)(iv); and ‘‘(B) reasonably can be expected to achieve the greatest 

benefit for the conservation of the species covered by the 

agreement relative to the total amount of funds to be expended to implement the agreement. ‘‘(6) TECHNICAL ASSISTANCE.—Any State agency, local government, nonprofit organization, or federally recognized Indian 

tribe may provide technical assistance to a private property 

owner in the preparation of a management plan, or participate 

in the implementation of a management plan, including identifying and making available certified fisheries or wildlife biologists with expertise in the conservation of species. 

‘‘(7) TRANSFER OF PROPERTY.—Upon any conveyance or other 

transfer of interest in land that is subject to an agreement 

under this section ‘‘(A) the agreement shall continue in effect with respect 

to such land, with the same terms and conditions, if the 

person to whom the land or interest is conveyed or otherwise transferred notifies the Secretary of the person’s election to continue the agreement by not later than 30 days 

after the date of the conveyance or other transfer; ‘‘(B) the agreement shall terminate if the agreement 

does not continue in effect under subparagraph (A); and ‘‘(C) the person to whom the land or interest is conveyed 

or otherwise transferred may seek a new agreement under 

this section. 

‘‘(8) MODEL FORM OF AGREEMENT.—Not later than 1 year 

after the date of the enactment of the Threatened and Endangered Species Act of 2005, the Secretary shall establish a 

model form of agreement that a person may enter into with the 

Secretary under this section. ‘‘(9) VOLUNTARY PROGRAM.—

‘‘(A) AGREEMENTS MAY NOT BE REQUIRED.—The Secretary, or any other Federal official, may not require a person to enter into an agreement under this section as a 

term or condition of any right, privilege, or benefit, or of 

any action or refraining from any action, under this or any 

other law. 

‘‘(B) REQUIREMENTS UNDER LAWS AND PERMITS.—None of 

the activities otherwise required by law or by the terms of 

any permit may be included in any agreement under this 

section. ‘‘(10) RELATIONSHIP TO HABITAT CONSERVATION PLANS.—The 

Secretary may consider an agreement under this subsection 

that applies to an endangered species or threatened species in 

25 

determining the adequacy of a conservation plan for the purpose of section 10(a)(2). 

‘‘(b) TECHNICAL ASSISTANCE PROGRAM FOR SMALL LANDOWNERS.—

‘‘(1) IN GENERAL.—The Secretary shall establish a program to 

offer technical assistance to owners of private property seeking 

guidance on the conservation of endangered species or threatened species, or species that are candidates for being determined to be endangered species or threatened species. 

‘‘(2) ALLOWABLE ACTIVITIES.—Upon request, the Secretary 

may provide technical assistance to an owner of private property for the purpose of—

‘‘(A) helping to prepare and implement a conservation 

agreement under subsection (a); 

‘‘(B) training the managers of private property in best 

practices to conserve species and create, restore, enhance, 

and protect habitat for species; 

‘‘(C) helping to prepare an application for a permit and 

a conservation plan under section 10(a); and 

‘‘(D) any other purpose the Secretary determines is appropriate to meet the goals of the program under subsection (a). 

‘‘(3) PRIORITY.—The Secretary shall give priority in offers of 

technical assistance to owners of private property that the Secretary determines cannot reasonably be expected to afford adequate technical assistance. 

‘‘(4) FUNDING FOR PROGRAM.—For any year for which funds 

are appropriated to carry out this Act, 10 percent shall be for 

carrying out this subsection, unless the Secretary determines 

for any fiscal year that a smaller percentage is sufficient and 

submits a report to the Congress containing the percentage 

and an explanation of the basis for the determination.’’. 

SEC. 15. PUBLIC ACCESSIBILITY AND ACCOUNTABILITY. 

Section 14 (relating to repeals of other laws, which have executed) is amended to read as follows: 

‘‘PUBLIC ACCESSIBILITY AND ACCOUNTABILITY

‘‘SEC. 14. The Secretary shall make available on a publicly accessible website on the Internet—

‘‘(1) each list published under section 4(c)(1); 

‘‘(2) all final and proposed regulations and determinations 

under section 4; 

‘‘(3) the results of all 5-year reviews conducted under section 

4(c)(2)(A); 

‘‘(4) all draft and final recovery plans issued under section 

5(a), and all final recovery plans issued and in effect under section 4(f)(1) of this Act as in effect immediately before the enactment of the Threatened and Endangered Species Recovery Act 

of 2005; 

‘‘(5) all reports required under sections 5(e) and 16, and all 

reports required under sections 4(f)(3) and 18 of this Act as in 

effect immediately before the enactment of the Threatened and 

Endangered Species Recovery Act of 2005; and 

26 

‘‘(6) to the extent practicable, data contained in the reports 

referred to in paragraph (5) of this section, and that were produced after the date of enactment of the Threatened and Endangered Species Recovery Act of 2005, in the form of databases that may be searched by the variables included in the reports.’’. 

SEC. 16. ANNUAL COST ANALYSES. 

(a) ANNUAL COST ANALYSES.—Section 18 (16 U.S.C. 1544) is 

amended to read as follows: 

‘‘ANNUAL COST ANALYSIS BY UNITED STATES FISH AND WILDLIFE

SERVICE

‘‘SEC. 18. (a) IN GENERAL.—On or before January 15 of each year, 

the Secretary shall submit to the Congress an annual report covering the preceding fiscal year that contains an accounting of all 

reasonably identifiable expenditures made primarily for the conservation of species included on lists published and in effect under 

section 4(c). 

‘‘(b) SPECIFICATION OF EXPENDITURES.—Each report under this 

section shall specify—

‘‘(1) expenditures of Federal funds on a species-by-species 

basis, and expenditures of Federal funds that are not attributable to a specific species; 

‘‘(2) expenditures by States for the fiscal year covered by the 

report on a species-by-species basis, and expenditures by 

States that are not attributable to a specific species; and 

‘‘(3) based on data submitted pursuant to subsection (c), expenditures voluntarily reported by local governmental entities 

on a species-by-species basis, and such expenditures that are 

not attributable to a specific species. 

‘‘(c) ENCOURAGEMENT OF VOLUNTARY SUBMISSION OF DATA BY

LOCAL GOVERNMENTS.—The Secretary shall provide a means by 

which local governmental entities may—

‘‘(1) voluntarily submit electronic data regarding their expenditures for conservation of species listed under section 4(c); 

and 

‘‘(2) attest to the accuracy of such data.’’. 

(b) ELIGIBILITY OF STATES FOR FINANCIAL ASSISTANCE.—Section 

6(d) (16 U.S.C. 1535(d)) is amended by adding at the end the following: 

‘‘(3) A State shall not be eligible for financial assistance under 

this section for a fiscal year unless the State has provided to the 

Secretary for the preceding fiscal year information regarding the 

expenditures referred to in section 16(b)(2).’’. 

SEC. 17. REIMBURSEMENT FOR DEPREDATION OF LIVESTOCK BY REINTRODUCED SPECIES. 

The Endangered Species Act of 1973 is further amended—

(1) by striking sections 15 and 16; 

(2) by redesignating sections 17 and 18 as sections 15 and 

16, respectively; and 

(3) by adding after section 16, as so redesignated, the following: 

27 

‘‘REIMBURSEMENT FOR DEPREDATION OF LIVESTOCK BY

REINTRODUCED SPECIES

‘‘SEC. 17. (a) IN GENERAL.—The Secretary of the Interior, acting 

through the Director of the United States Fish and Wildlife Service, may reimburse the owner of livestock for any loss of livestock 

resulting from depredation by any population of a species if the 

population is listed under section 4(c) and includes or derives from 

members of the species that were reintroduced into the wild. 

‘‘(b) USE OF DONATIONS.—The Secretary may accept and use donations of funds to pay reimbursement under this section. 

‘‘(c) AVAILABILITY OF APPROPRIATIONS.—The requirement to pay 

reimbursement under this section is subject to the availability of 

funds for such payments.’’. 

SEC. 18. AUTHORIZATION OF APPROPRIATIONS. 

(a) AUTHORIZATION.—The Endangered Species Act of 1973 is further amended by adding at the end the following: 

‘‘AUTHORIZATION OF APPROPRIATIONS

‘‘SEC. 18. (a) IN GENERAL.—There are authorized to be appropriated to carry out this Act, other than section 8A(e)—

‘‘(1) to the Secretary of the Interior to carry out functions 

and responsibilities of the Department of the Interior under 

this Act, such sums as are necessary for fiscal years 2006 

through 2010; and 

‘‘(2) to the Secretary of Agriculture to carry out functions and 

responsibilities of the Department of the Interior with respect 

to the enforcement of this Act and the convention which pertain the importation of plants, such sums as are necessary for 

fiscal year 2006 through 2010. 

‘‘(b) CONVENTION IMPLEMENTATION.—There is authorized to be 

appropriated to the Secretary of the Interior to carry out section 

8A(e) such sums as are necessary for fiscal years 2006 through 

2010.’’. 

(b) CONFORMING AMENDMENT.—Section 8(a) (16 U.S.C. 1537(a)) 

is amended by striking ‘‘section 15’’ and inserting ‘‘section 18’’. 

SEC. 19. MISCELLANEOUS TECHNICAL CORRECTIONS. 

(a) INTERNATIONAL COOPERATION.—Section 8 (16 U.S.C. 1537) is 

amended—

(1) in subsection (a) in the first sentence by striking ‘‘any endangered species or threatened species listed’’ and inserting 

‘‘any species determined to be an endangered species or a 

threatened species’’; and 

(2) in subsection (b) in paragraph (1), by striking ‘‘endangered species and threatened species listed’’ and inserting ‘‘species determined to be endangered species and threatened species’’. 

(b) MANAGEMENT AUTHORITY AND SCIENTIFIC AUTHORITY.—Section 8A (16 U.S.C. 1537a)) is amended—

(1) in subsection (a), by striking ‘‘of the Interior (hereinafter 

in this section referred to as the ‘Secretary’)’’; 

(2) in subsection (d), by striking ‘‘Merchant Marine and Fisheries’’ and inserting ‘‘Resources’’; and 

(3) in subsection (e)—

28 

(A) in paragraph (1), by striking ‘‘of the Interior (hereinafter in this subsection referred to as the ‘Secretary’)’’; and 

(B) by striking paragraph (3) and redesignating paragraph (4) as paragraph (3). 

(c) PROHIBITED ACTS.—Section 9 (16 U.S.C. 1538) is amended—

(1) in subsection (a)—

(A) in paragraph (1), in the matter preceding subparagraph (A), by striking ‘‘of this Act, with respect to any endangered species of fish or wildlife listed pursuant to section 4 of this Act’’ and inserting ‘‘, with respect to any species of fish or wildlife determined to be an endangered species under section 4’’; 

(B) in paragraph (1)(G), by striking ‘‘threatened species 

of fish or wildlife listed pursuant to section 4 of this Act’’

and inserting ‘‘species of fish or wildlife determined to be 

a threatened species under section 4’’; 

(C) in paragraph (2), in the matter preceding subparagraph (A) by striking ‘‘of this Act, with respect to any endangered species of plants listed pursuant to section 4 of 

this Act’’ and inserting ‘‘, with respect to any species of 

plants determined to be an endangered species under section 4’’; and 

(D) in paragraph (2)(E), by striking ‘‘listed pursuant to 

section 4 of this Act’’ and inserting ‘‘determined to be a 

threatened species under section 4’’; 

(2) in subsection (b)—

(A) by striking ‘‘(1)’’ before ‘‘SPECIES’’ and inserting ‘‘(1)’’

before the first sentence; 

(B) in paragraph (1), in the first sentence, by striking 

‘‘adding such’’ and all that follows through ‘‘: Provided, 

That’’ and inserting ‘‘determining such fish or wildlife species to be an endangered species or a threatened species 

under section 4, if’’; and 

(C) in paragraph (1), in the second sentence, by striking 

‘‘adding such’’ and all that follows through ‘‘this Act’’ and 

inserting ‘‘determining such fish or wildlife species to be 

an endangered species or a threatened species under section 4’’; 

(3) in subsection (c)(2)(A), by striking ‘‘an endangered species 

listed’’ and inserting ‘‘a species determined to be an endangered species’’; 

(4) in subsection (d)(1)(A), by striking clause (i) and inserting 

the following: ‘‘(i) are not determined to be endangered species 

or threatened species under section 4, and’’; 

(5) in subsection (e), by striking clause (1) and inserting the 

following: ‘‘(1) are not determined to be endangered species or 

threatened species under section 4, and’’; and 

(6) in subsection (f)—

(A) in paragraph (1), in the first sentence, by striking 

clause (A) and inserting the following: ‘‘(A) are not determined to be endangered species or threatened species 

under section 4, and’’; and 

(B) by striking ‘‘Secretary of the Interior’’ each place it 

appears and inserting ‘‘Secretary’’. 

29 

(d) HARDSHIP EXEMPTIONS.—Section 10(b) (16 U.S.C. 1539(b)) is 

amended— (1) in paragraph (1)— (A) by striking ‘‘an endangered species’’ and all that follows through ‘‘section 4 of this Act’’ and inserting ‘‘an endangered species or a threatened species and the subsequent determination that the species is an endangered 

species or a threatened species under section 4’’; 

(B) by striking ‘‘section 9(a) of this Act’’ and inserting ‘‘section 9(a)’’; and 

(C) by striking ‘‘fish or wildlife listed by the Secretary as 

endangered’’ and inserting ‘‘fish or wildlife determined to 

be an endangered species or threatened species by the Secretary’’; and 

(2) in paragraph (2)— (A) by inserting ‘‘or a threatened species’’ after ‘‘endangered species’’ each place it appears; and 

(B) in subparagraph (B), by striking ‘‘listed species’’ and 

inserting ‘‘endangered species or threatened species’’. (e) PERMIT AND EXEMPTION POLICY.—Section 10(d) (16 U.S.C. 

1539(d)) is amended—

(1) by inserting ‘‘or threatened species’’ after ‘‘endangered 

species’’; and 

(2) by striking ‘‘of this Act’’. 

(f) PRE-ACT PARTS AND SCRIMSHAW.—Section 10(f) (16 U.S.C. 

1539(f)) is amended— (1) by inserting after ‘‘(f)’’ the following: ‘‘PRE-ACT PARTS AND

SCRIMSHAW.—’’; and 

(2) in paragraph (2), by striking ‘‘of this Act’’ each place it 

appears. 

(g) BURDEN OF PROOF IN SEEKING EXEMPTION OR PERMIT.—Section 10(g) (16 U.S.C. 1539(g)) is amended by inserting after ‘‘(g)’’ the following: ‘‘BURDEN OF PROOF IN SEEKING EXEMPTION OR PER- MIT.—’’. 

(h) ANTIQUE ARTICLES.—Section 10(h)(1)(B) (16 U.S.C. 

1539(h)(1)(B)) is amended by striking ‘‘endangered species or 

threatened species listed’’ and inserting ‘‘species determined to be 

an endangered species or a threatened species’’. (i) PENALTIES AND ENFORCEMENT.—Section 11 (16 U.S.C. 1540) 

is amended in subsection (e)(3), in the second sentence, by striking 

‘‘Such persons’’ and inserting ‘‘Such a person’’. (j) SUBSTITUTION OF GENDER-NEUTRAL REFERENCES.—

(1) ‘‘SECRETARY’’ FOR ‘‘HE’’.—The following provisions are 

amended by striking ‘‘he’’ each place it appears and inserting 

‘‘the Secretary’’: 

(A) Paragraph (4)(C) of section 4(b), as redesignated by 

section 5(b)(2) of this Act. 

(B) Paragraph (5)(B)(ii) of section 4(b), as redesignated 

by section 5(b)(2) of this Act. 

(C) Section 4(b)(7) (16 U.S.C. 1533(b)(7)), in the matter 

following subparagraph (B). 

(D) Section 6 (16 U.S.C. 1535). 

(E) Section 8(d) (16 U.S.C. 1537(d)). 

(F) Section 9(f) (16 U.S.C. 1538(f)). 

(G) Section 10(a) (16 U.S.C. 1539(a)). 

30 

(H) Section 10(b)(3) (16 U.S.C. 1539(b)(3)). 

(I) Section 10(d) (16 U.S.C. 1539(d)). 

(J) Section 10(e)(4) (16 U.S.C. 1539(e)(4)). 

(K) Section 10(f)(4), (5), and (8)(B) (16 U.S.C. 1599(f)(4), 

(5), (8)(B)). 

(L) Section 11(e)(5) (16 U.S.C. 1540(e)(5)). 

(2) ‘‘PRESIDENT’’ FOR ‘‘HE’’.—Section 8(a) (16 U.S.C. 1537(a)) 

is amended in the second sentence by striking ‘‘he’’ and inserting ‘‘the President’’. 

(3) ‘‘SECRETARY OF THE INTERIOR’’ FOR ‘‘HE’’.—Section 8(b)(3) 

(16 U.S.C. 1537(b)(3)) is amended by striking ‘‘he’’ and inserting ‘‘the Secretary of the Interior’’. 

(4) ‘‘PERSON’’ FOR ‘‘HE’’.—The following provisions are amended by striking ‘‘he’’ each place it appears and inserting ‘‘the 

person’’: 

(A) Section 10(f)(3) (16 U.S.C. 1539(f)(3)). 

(B) Section 11(e)(3) (16 U.S.C. 1540(e)(3)). 

(5) ‘‘DEFENDANT’’ FOR ‘‘HE’’.—The following provisions are 

amended by striking ‘‘he’’ each place it appears and inserting 

‘‘the defendant’’. 

(A) Section 11(a)(3) (16 U.S.C. 1540(a)(3)). 

(B) Section 11(b)(3) (16 U.S.C. 1540(b)(3)). 

(6) REFERENCES TO ‘‘HIM’’.—

(A) Section 4(c)(1) (16 U.S.C. 1533(c)(1)) is amended by 

striking ‘‘him or the Secretary of Commerce’’ each place it 

appears and inserting ‘‘the Secretary’’. 

(B) Paragraph (6) of section 4(b) (16 U.S.C. 1533(b)), as 

redesignated by section 5(b)(2) of this Act, is further 

amended in the matter following subparagraph (B) by 

striking ‘‘him’’ and inserting ‘‘the Secretary’’. 

(C) Section 5(k)(2), as redesignated by section 9(a)(1) of 

this Act, is amended by striking ‘‘him’’ and inserting ‘‘the 

Secretary’’. 

(D) Section 7(a)(1) (16 U.S.C. 1536(a)(1)) is amended in 

the first sentence by striking ‘‘him’’ and inserting ‘‘the Secretary’’. 

(E) Section 8A(c)(2) (16 U.S.C. 1537a(c)(2)) is amended 

by striking ‘‘him’’ and inserting ‘‘the Secretary’’. 

(F) Section 9(d)(2)(A) (16 U.S.C. 1538(d)(2)(A)) is amended by striking ‘‘him’’ each place it appears and inserting 

‘‘such person’’. 

(G) Section 10(b)(1) (16 U.S.C. 1539(b)(1)) is amended by 

striking ‘‘him’’ and inserting ‘‘the Secretary’’. 

(7) REFERENCES TO ‘‘HIMSELF OR HERSELF’’.—Section 11 (16 

U.S.C. 1540) is amended in subsections (a)(3) and (b)(3) by 

striking ‘‘himself or herself’’ each place it appears and inserting 

‘‘the defendant’’. 

(8) REFERENCES TO ‘‘HIS’’.—

(A) Section 4(g)(1), as redesignated by section 8(1) of this 

Act, is amended by striking ‘‘his’’ and inserting ‘‘the’’. 

(B) Section 6 (16 U.S.C. 1535) is amended—

(i) in subsection (d)(2) in the matter following clause 

(ii) by striking ‘‘his’’ and inserting ‘‘the Secretary’s’’; 

and 

31 

(ii) in subsection (e)(1), as designated by section 

10(3)(A) of this Act, by striking ‘‘his periodic review’’

and inserting ‘‘periodic review by the Secretary’’. 

(C) Section 7(a)(3) (16 U.S.C. 1536(a)(3)) is amended by 

striking ‘‘his’’ and inserting ‘‘the applicant’s’’. 

(D) Section 8(c)(1) (16 U.S.C. 1537(c)(1)) is amended by 

striking ‘‘his’’ and inserting ‘‘the Secretary’s’’. 

(E) Section 9 (16 U.S.C. 1538) is amended in subsection 

(d)(2)(B) and subsection (f) by striking ‘‘his’’ each place it 

appears and inserting ‘‘such person’s’’. 

(F) Section 10(b)(3) (16 U.S.C. 1539(b)(3)) is amended by 

striking ‘‘his’’ and inserting ‘‘the Secretary’s’’. 

(G) Section 10(d) (16 U.S.C. 1539(d)) is amended by 

striking ‘‘his’’ and inserting ‘‘the’’. 

(H) Section 11 (16 U.S.C. 1540) is amended—

(i) in subsection (a)(1) by striking ‘‘his’’ and inserting 

‘‘the Secretary’s’’; 

(ii) in subsections (a)(3) and (b)(3) by striking ‘‘his or 

her’’ each place it appears and inserting ‘‘the defendant’s’’; 

(iii) in subsection (d) by striking ‘‘his’’ and inserting 

‘‘the officer’s or employee’s’’; 

(iv) in subsection (e)(3) in the second sentence by 

striking ‘‘his’’ and inserting ‘‘the person’s’’; and 

(v) in subsection (g)(1) by striking ‘‘his’’ and inserting ‘‘the person’s’’. 

SEC. 20. ESTABLISHMENT OF SCIENCE ADVISORY BOARD. 

The Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) is 

further amended by adding at the end the following: 

‘‘SCIENCE ADVISORY BOARD

‘‘SEC. 19. 

‘‘(a) IN GENERAL.—Within 12 months after the date of the enactment of the Threatened and Endangered Species Recovery Act of 

2005, the Secretary of Interior, through the Director of the United 

States Fish and Wildlife Service, shall establish a Science Advisory 

Board (in this section referred to as the ‘Board’) to provide such scientific advice as may be requested by the Secretary to assist in the 

evaluation of the use of science in implementing this Act, including 

in the development of policies and procedures pertaining to the use 

of scientific information. 

‘‘(b) COMPOSITION.—The Board shall each consist of 9 members 

appointed by the Secretary of the Interior from a list of nominees 

recommended by the National Academy of Sciences, utilizing a system of staggered 3-year terms of appointment. One member shall 

be elected by the members of the Board as its Chairman. Members 

of the Board shall be selected on the basis of their professional 

qualifications in the areas of ecology, fish and wildlife management, plant ecology, or natural resource conservation. Members of 

the Board shall not hold another office or position in the Federal 

Government. If a vacancy occurs on the Board due to expiration of 

a term, resignation, or any other reason, each replacement shall be 

selected by the Secretary from a group of at least 4 nominees recommended by the National Academy of Sciences. The Secretary 

32 

may extend the term of a Board member until the new member is 

appointed to fill the vacancy. If a vacancy occurs due to resignation, or reason other than expiration of a term, the Secretary shall 

appoint a member to serve during the unexpired term utilizing the 

nomination process set forth in this subsection. The Secretary shall 

publish in the Federal Register the name, business address, and 

professional affiliations of each appointee. ‘‘(c) COMPENSATION.—Each member of the Board shall receive per 

diem compensation at a rate not in excess of that fixed for GS–15 

of the General Schedule as may be determined by the Secretary of 

the Interior. ‘‘(d) STAFF.—Upon the recommendation of the Board, the Secretary of the Interior shall make available employees as necessary 

to exercise and fulfill the Board’s responsibilities. ’’. 

SEC. 21. CLERICAL AMENDMENT TO TABLE OF CONTENTS. 

The table of contents in the first section is amended—

(1) by striking the item relating to section 5 and inserting 

the following: 

‘‘Sec. 5. Recovery plans and land acquisition.’’

; and 

(2) by striking the items relating to sections 13 through 17 

and inserting the following: 

‘‘Sec. 13. Private property conservation program. 

‘‘Sec. 14. Public accessibility and accountability. 

‘‘Sec. 15. Marine Mammal Protection Act of 1972. 

‘‘Sec. 16. Annual cost analysis by United States Fish and Wildlife Service. 

‘‘Sec. 17. Reimbursement for depredation of livestock by reintroduced species. 

‘‘Sec. 18. Authorization of appropriations. 

‘‘Sec. 19. Science Advisory Board.’’. 

Æ