89–006 

1 16 U.S.C. §1533. 

115TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 115–1051 

ENSURING MEANINGFUL PETITION OUTREACH WHILE 

ENHANCING RIGHTS OF STATES ACT OF 2018 

NOVEMBER 27, 2018.—Committed to the Committee of the Whole House on the 

State of the Union and ordered to be printed 

Mr. BISHOP of Utah, from the Committee on Natural Resources, 

submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 6345] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Natural Resources, to whom was referred the 

bill (H.R. 6345) to provide for greater county and State consultation 

with regard to petitions under the Endangered Species Act of 1973, 

and for other purposes, having considered the same, report favorably thereon without amendment and recommend that the bill do 

pass. 

PURPOSE OF THE BILL

The purpose of H.R. 6345 is to provide for greater county and 

State consultation with regard to petitions under the Endangered 

Species Act of 1973. 

BACKGROUND AND NEED FOR LEGISLATION

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

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

facing extinction. The law authorizes federal agencies to identify 

imperiled species and list them as either threatened or endangered, 

as appropriate.1 The law further requires agencies to take necVerDate Sep 11 2014 06:27 Dec 06, 2018 Jkt 089006 PO 00000 Frm 00001 Fmt 6659 Sfmt 6602 E:\HR\OC\HR1051.XXX HR1051
2 

2 Id. 3 CONG. RESEARCH SERV., RL31654, THE ENDANGERED SPECIES ACT: A PRIMER 15 (2016). 4 A History of the Endangered Species Act of 1973, U.S. FISH AND WILDLIFE SERVICE, U.S. 

DEPARTMENT OF THE INTERIOR, https://www.fws.gov/endangered/esa-library/pdf/history_ESA.pdf 

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

U.S. FISH AND WILDLIFE SERVICE, U.S. DEPARTMENT OF THE INTERIOR, https://ecos.fws.gov/ecp0/ 

reports/box-score-report (last visited Sept. 19, 2018). 6 ECOS Environmental Conservation Online System, Delisted Species, U.S. FISH AND WILDLIFE SERVICE, U.S. DEPARTMENT OF THE INTERIOR, https://ecos.fws.gov/ecp0/reports/delistingreport (last visited Sept. 19, 2018). 7 Supra, note 5. This number was determined by adding the total number of species listed 

as endangered or threatened under the ESA to the total number delisted since the ESA’s enactment. 8 Supra, note 6. 9 COMMITTEE ON HOUSE NATURAL RESOURCES, ENDANGERED SPECIES ACT CONGRESSIONAL

WORKING GROUP, REPORT FINDINGS AND RECOMMENDATIONS, (2014) available at https:// 

naturalresources.house.gov/uploadedfiles/esa_working_group_final_report_and—recommendations_02_04_14.pdf; See also: Legislative Hearing on H.R. 424. H.R. 717, H.R. 1274, H.R. 2603, 

and H.R. 3131: Hearing before the H. Comm. on Natural Resources, 115th Cong, (2017) (testimony of Kent Holsinger, Manager and Founder, Holsinger Law, LLC) available at https:// 

naturalresources.house.gov/uploadedfiles/testimony_holsinger.pdf. 10 Hearing on Examining Policy Impacts of Excessive Litigation Against the Department of the 

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

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

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

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

uploadedfiles/testimony_holsinger.pdf. 

essary actions to conserve those species and their habitats.2 The 

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

Fisheries Service (NMFS) is responsible for implementing the ESA 

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

and 1988, although the overall framework has remained essentially 

unchanged since its original enactment in 1973.4

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

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

species were delisted after it was discovered that federal agencies 

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

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

been removed, either entirely or partially throughout their range, 

due to population recovery.8

In addition to failing to achieve meaningful recovery for species, 

implementation of the ESA disincentivizes conservation and can 

lead to increased conflict between people and species through unpredictable and expansive restrictions on land use.9 Excessive litigation and a lack of transparency in federal ESA decision-making 

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

In many cases, implementation of the ESA has caused increased 

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

greatest amount of resources to conservation efforts.12 They are 

eager to stabilize species populations to prevent listings that can 

3 

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

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

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

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

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

PollingMemoNationalESASurvey.pdf. 16 16 U.S.C. §1533. 17 Id. 18 Legislative Hearing on H.R. 424, H.R. 717, H.R. 1274, H.R. 2603, and H.R. 3131: Hearing 

before the H. Comm. on Natural Resources, 115th Cong. (2017) (testimony of Glen Hegar, Texas 

Comptroller of Public Accounts) available at https://naturalresources.house.gov/uploadedfiles/ 

testimony_hegar.pdf. 19 Id. 

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

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

of the successful conservation measures implemented by States.14

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

while maintaining the core principles of the Act. 

Determinations under the ESA require FWS and NMFS to collect 

extensive amounts of data and information to analyze the status of 

a species and to decide whether a listing is necessary for conservation and survival of the species.16 Notice and comment periods provide one mechanism for such information to be collected,17 but 

more needs to be done to ensure that valuable information from 

States, counties, and local governments are solicited and considered 

in ESA decision-making. 

States and counties where species reside often have some of the 

most specialized knowledge about the threats facing species and 

local conservation measures in place to counter such threats and to 

ensure the survival of the species. Many States have already proven the value of their input in the ESA decision-making process. For 

example, in Texas, the Comptroller’s Office is responsible for administering approximately $15 million to fund research on littleknown species under consideration for ESA listing.18 The State utilizes public universities to conduct research on these species to ensure federal agencies have the most complete and reliable information before making decisions that affect private property owners 

and local economies in the State.19 Programs such as these highlight the unique perspective States can provide to federal agencies 

through expert data, as well as through the infrastructure and relationships they have in place with landowners, communities, and 

industries. 

While many States, such as Texas, are willing to offer these resources to federal agencies during the ESA decision-making process, federal agencies often neglect to utilize these key local resources available to them. This unfortunately was the case for 

some local stakeholders during the decision-making process for determining the listing status of the greater sage grouse; they felt the 

Department of the Interior was not taking local conservation plans 

4 

20 Defining Species Conservation Success: Tribal, State and Local Stewardship vs. Federal 

Courtroom Battles and Sue-and-Settle Practices: Oversight Hearing before the H. Comm. On Natural Resources, 113th Cong. (2013) (written testimony of Tom Jankovsky, Garfield County, Colorado), available at https://naturalresources.house.gov/uploadedfiles/jankovskytestimony06-04- 

13.pdf. 

and data into consideration at the time.20 Stakeholders, such as 

the States involved in conservation of the greater sage grouse, have 

essential input that federal agencies should be required to factor 

into the determination process for species listings. 

H.R. 6345, the Ensuring Meaningful Petition Outreach While 

Enhancing Rights of States Act of 2018, or the EMPOWERS Act, 

works to avoid these conflicts between federal agencies and States 

by requiring that States receive advanced notice of any potential 

listing decisions on species that impact their State, and gives them 

the right to provide advice and information to federal agencies concerning the potential listing. The bill also increases transparency 

through the prerequisite that federal agencies provide written explanations and relevant information when their decisions do not 

comport with the information provided by the States. Increasing 

meaningful cooperation and counsel of States impacted by species 

decisions in this manner will only improve the way species are conserved and recovered under the ESA. 

SECTION–BY–SECTION ANALYSIS

Section 1. Short title 

The bill may be referred to as the ‘‘Ensuring Meaningful Petition 

Outreach While Enhancing Rights of States Act of 2018’’ or the 

‘‘EMPOWERS Act of 2018’’. 

Section 2. Greater county and State involvement 

Subsection (a). County and State Consultation on Petitions. 

Amends Section 4(b)(3) of the ESA by requiring petitioners to provide a 30-day notice of intent before submitting a petition to list, 

delist, reclassify a species or to revise critical habitat in the U.S. 

to the chief executive of each county and State where the species 

is located. 

If a petitioned action may be warranted, the relevant Secretary 

shall request information from the chief executive of each county 

and State concerning threats to the species, local efforts to protect 

the species, anticipated effects of the petition’s actions within the 

area, and advice on whether the petition is warranted based on the 

status of the species. The relevant Secretary may also verify information presented in a petition using field testing. 

If the chief executive advises that the petitioned action is not 

warranted, the relevant Secretary may not proceed with the action 

unless the Secretary demonstrates the information presented by 

the chief executive is incorrect and the action is warranted. 

Subsection (b). Regulations to Implement Determinations. Section 

(b) amends section 4(b)(5) of the ESA to require that 90 days before 

a regulation goes into effect, the relevant Secretary must provide 

notice to each chief executive of each county and State where the 

species is located and request a determination whether the proposed regulation is warranted. If the chief executive does not agree 

with the determination, the Secretary must provide the reasons in 

5 

writing for the determination and the information available to support that determination. 

Subsection (c). Consultation on Final Determination. Section (c) 

amends section 4(i) of the ESA to ensure that if the final determination on a regulation conflicts with the advice of a county or 

State, the relevant Secretary must provide written justification 

that includes any information regarding the determination and 

comments that disagreed with the regulation. 

COMMITTEE ACTION

H.R. 6345 was introduced on July 12, 2018, by Congressman 

Stevan Pearce (R–NM). The bill was referred to the Committee on 

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

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

consider the bill. No amendments were offered, and the bill was ordered favorably reported to the House of Representatives by a roll 

call vote of 20 yeas and 12 nays, as follows: 

6 


Insert offset folio 6 here HR1051.001

Date: 09.27.18 

Committee on Natural Resources 

U.S. House of Representatives 

!15th Congress 

Recorded Vote #:3 

Meeting on I Amendment on: FC Markup Favorably Rep01t HR 6345 (Rep. Stcvan Pearce) 

MEMBERS Yes No Pres MEMBERS 

Mr. Bishop, UT, Chairman X Mr.Cook,CA 

A1r. Grijalva, AZ, Ranking Member X Afr. lvfcEachin, VA 

Mr. Young, AK, Chairman Emeritus X Mr. Westerman, AR 

Mrs. Napolitano, CA X l'vfr. Brmvn, N!D 

Mr. Gohmcrt, TX, Vice Chairman Mr. Graves, LA 

Ms. Bordallo, Guam X Mr. Clay, MO 

Mr. Lamborn, CO X Mr. Hicc,GA 

l'vfr. Co.vta, CA X i'vfr. Come:::, CA 

Mr. Wittman, VA X Mrs. Radewagcn, AS 

Mr. Sahlan, CNMI Ms. Vcld:zque=, NY 

Mr. McClintock, CA X Mr. Webster, FL 

/vis. J:wngas, A1A X Mr. Bergman, MI 

Mr. Pearce, NM X Ms. Cheney, WY 

lvfr. lb~f!Jnau, CA X Mr. Johnson, LA 

Mr. Thompson, PA X Ms. Gonz:ilcz-Colon, PR 

A1r. Lmventhal, CA Mr. Gianforte, MT 

Mr. Gosar~ AZ X Mr. Curtis, lJT 

}dr. Beyer, VA X 

Mr. Labrador, ID 

Mr. Gallego, AZ X 

Mr. Tipton, CO X 

Ms. Hanabusa, Ill X 

Mr. LaMalfa, CA X 

M'). Barragdn, CA X 

Mr. Denham, CA 

Mr. Soto, FL X TOTAL: 

Yes No Pres 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

20 12 
7 

COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of rule XIII 

of the Rules of the House of Representatives, the Committee on 

Natural Resources’ oversight findings and recommendations are reflected in the body of this report. 

COMPLIANCE WITH HOUSE RULE XIII AND CONGRESSIONAL BUDGET

ACT

1. Cost of Legislation and the Congressional Budget Act. With respect to the requirements of clause 3(c)(2) and (3) of rule XIII of 

the Rules of the House of Representatives and sections 308(a) and 

402 of the Congressional Budget Act of 1974, the Committee has 

received the following estimate for the bill from the Director of the 

Congressional Budget Office: 

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, November 13, 2018. 

Hon. ROB BISHOP, 

Chairman, Committee on Natural Resources, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 6345, the EMPOWERS 

Act of 2018. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Janani Shankaran. 

Sincerely, 

KEITH HALL, Director. 

Enclosure. 

H.R. 6345—EMPOWERS Act of 2018 

Under the Endangered Species Act, individual people can petition the U.S. Fish and Wildlife Service (USFWS) of the National 

Oceanic and Atmospheric Administration (NOAA) to list or remove 

a species. In such cases, H.R. 6345 would require USFWS and 

NOAA to solicit information from officials in the states and counties where the species is found. The bill also would require USFWS 

or NOAA to notify state and local officials about proposed rules 

under the Endangered Species Act and to submit certain public 

comments to those officials. 

CBO expects that implementing the new requirements would result in a small increase in the agencies’ workload. Based on the 

costs of similar tasks, CBO estimates that those costs would be less 

than $500,000 over the 2019–2023 period; such spending would be 

subject to the availability of appropriated funds. 

H.R. 6345 would not affect direct spending or revenues; therefore, pay-as-you-go procedures do not apply. 

CBO estimates that enacting H.R. 6345 would not increase net 

direct spending or on-budget deficits in any of the four consecutive 

10-year periods beginning in 2029. 

H.R. 6345 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act. 

8 

The CBO staff contact for this estimate is Janani Shankaran. 

The estimate was reviewed by H. Samuel Papenfuss, Deputy Assistant Director for Budget Analysis. 

2. General Performance Goals and Objectives. As required by 

clause 3(c)(4) of rule XIII, the general performance goal or objective 

of this bill is to provide for greater county and State consultation 

with regard to petitions under the Endangered Species Act of 1973. 

EARMARK STATEMENT

This bill does not contain any Congressional earmarks, limited 

tax benefits, or limited tariff benefits as defined under clause 9(e), 

9(f), and 9(g) of rule XXI of the Rules of the House of Representatives. 

COMPLIANCE WITH PUBLIC LAW 104–4 

This bill contains no unfunded mandates. 

COMPLIANCE WITH H. RES. 5 

Directed Rule Making. This bill contains no directed 

rulemakings. 

Duplication of Existing Programs. This bill does not establish or 

reauthorize a program of the federal government known to be duplicative of another program. Such program was not included in 

any report from the Government Accountability Office to Congress 

pursuant to section 21 of Public Law 111–139 or identified in the 

most recent Catalog of Federal Domestic Assistance published pursuant to the Federal Program Information Act (Public Law 95–220, 

as amended by Public Law 98–169) as relating to other programs. 

PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

This bill is not intended to preempt any State, local or tribal law. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, 

and existing law in which no change is proposed is shown in 

roman): 

ENDANGERED SPECIES ACT OF 1973 

* * * * * * * 

DETERMINATION OF ENDANGERED SPECIES AND THREATENED SPECIES

SEC. 4. (a) GENERAL.—(1) The Secretary shall by regulation promulgated in accordance with subsection (b) determine whether any 

species is an endangered species or a threatened species because of 

any of the following factors: 

(A) the present or threatened destruction, modification, or 

curtailment of its habitat or range; 

(B) overutilization for commercial, recreational, scientific, or 

educational purposes; 

9 

(C) disease or predation; 

(D) the inadequacy of existing regulatory mechanisms; or 

(E) other natural or manmade factors affecting its continued 

existence. 

(2) With respect to any species over which program responsibilities have been vested in the Secretary of Commerce pursuant to 

Reorganization Plan Numbered 4 of 1970— 

(A) in any case in which the Secretary of Commerce determines that such species should— 

(i) be listed as an endangered species or a threatened 

species, or 

(ii) be changed in status from a threatened species to an 

endangered species, he shall so inform the Secretary of the 

Interior, who shall list such species in accordance with this 

section; 

(B) in any case in which the Secretary of Commerce determines that such species should— 

(i) be removed from any list published pursuant to subsection (c) of this section, or 

(ii) be changed in status from an endangered species to 

a threatened species, he shall recommend such action to 

the Secretary of the Interior, and the Secretary of the Interior, if he concurs in the recommendation, shall implement 

such action; and 

(C) the Secretary of the Interior may not list or remove from 

any list any such species, and may not change the status of 

any such species which are listed, without a prior favorable determination made pursuant to this section by the Secretary of 

Commerce. 

(3)(A) The Secretary, by regulation promulgated in accordance 

with subsection (b) and to the maximum extent prudent and determinable— 

(i) shall, concurrently with making a determination under 

paragraph (1) that a species is an endangered species or a 

threatened species, designate any habitat of such species which 

is then considered to be critical habitat; and 

(ii) may, from time-to-time thereafter as appropriate, revise 

such designation. 

(B)(i) The Secretary shall not designate as critical habitat any 

lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to 

an integrated natural resources management plan prepared under 

section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species 

for which critical habitat is proposed for designation. 

(ii) Nothing in this paragraph affects the requirement to consult 

under section 7(a)(2) with respect to an agency action (as that term 

is defined in that section). 

(iii) Nothing in this paragraph affects the obligation of the Department of Defense to comply with section 9, including the prohibition preventing extinction and taking of endangered species and 

threatened species. 

(b) BASIS FOR DETERMINATIONS.—(1)(A) The Secretary shall 

make determinations required by subsection (a)(1) solely on the 

basis of the best scientific and commercial data available to him 

10 

after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any State or 

foreign nation, or any political subdivision of a State or foreign nation, to protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices, 

within any area under its jurisdiction, or on the high seas. 

(B) In carrying out this section, the Secretary shall give consideration to species which have been— 

(i) designated as requiring protection from unrestricted commerce by any foreign nation, or pursuant to any international 

agreement; or 

(ii) identified as in danger of extinction, or likely to become 

so within the foreseeable future, by any State agency or by any 

agency of a foreign nation that is responsible for the conservation of fish or wildlife or plants. 

(2) The Secretary shall designate critical habitat, and make revisions thereto, under subsection (a)(3) on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat. 

The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits 

of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will 

result in the extinction of the species concerned. 

(3)(A) To the maximum extent practicable, within 90 days after 

receiving the petition of an interested person under section 553(e) 

of title 5, United States Code, to add a species to, or to remove a 

species from, either of the lists published under subsection (c), the 

Secretary shall make a finding as to whether the petition presents 

substantial scientific or commercial information indicating that the 

petitioned action may be warranted. If such a petition is found to 

present such information, the Secretary shall promptly commence 

a review of the status of the species concerned. The Secretary shall 

promptly publish each finding made under this subparagraph in 

the Federal Register. 

(B) Within 12 months after receiving a petition that is found 

under subparagraph (A) to present substantial information indicating that the petitioned action may be warranted, the Secretary 

shall make one of the following findings: 

(i) The petitioned action is not warranted, in which case the 

Secretary shall promptly publish such finding in the Federal 

Register. 

(ii) The petitioned action is warranted in which case the Secretary shall promptly publish in the Federal Register a general 

notice and the complete text of a proposed regulation to implement such action in accordance with paragraph (5). 

(iii) The petitioned action is warranted but that— 

(I) the immediate proposal and timely promulgation of a 

final regulation implementing the petitioned action in accordance with paragraphs (5) and (6) is precluded by pending proposals to determine whether any species is an endangered species or a threatened species, and 

11 

(II) expeditious progress is being made to add qualified 

species to either of the lists published under subsection (c) 

and to remove from such lists species for which the protections of the Act are no longer necessary, 

in which case the Secretary shall promptly publish such finding in the Federal Register, together with a description and 

evaluation of the reasons and data on which the finding is 

based. 

(C)(i) A petition with respect to which a finding is made under 

subparagraph (B)(iii) shall be treated as a petition that is resubmitted to the Secretary under subparagraph (A) on the date of such 

finding and that presents substantial scientific or commercial information that the petitioned action may be warranted. 

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

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

judicial review. 

(iii) The Secretary shall implement a system to monitor effectively the status of all species with respect to which a finding is 

made under subparagraph (B)(iii) and shall make prompt use of 

the authority under paragraph 7 to prevent a significant risk to the 

well being of any such species. 

(D)(i) To the maximum extent practicable, within 90 days after 

receiving the petition of an interested person under section 553(e) 

of title 5, United States Code, to revise a critical habitat designation, the Secretary shall make a finding as to whether the petition 

presents substantial scientific information indicating that the revision may be warranted. The Secretary shall promptly publish such 

finding in the Federal Register. 

(ii) Within 12 months after receiving a petition that is found 

under clause (i) to present substantial information indicating that 

the requested revision may be warranted, the Secretary shall determine how he intends to proceed with the requested revision, and 

shall promptly publish notice of such intention in the Federal Register. 

(E) LISTING PETITION REVIEW REQUIREMENTS.— (i) Not later than 30 days before submitting to the Secretary a petition to list, delist, or reclassify a species that 

occurs in the United States, or to revise a designation of 

critical habitat of such a species, the petitioner shall provide to the chief executive of each county and State in 

which the species is located a notice of intent to submit 

such petition. 

(ii) The Secretary shall, upon finding that a petitioned 

action to list a species as a threatened species or endangered species may be warranted, solicit from the chief executive of each county and State in which the species is located— 

(I) information regarding threats to the species and efforts by the county or State, respectively, to protect the species; 

(II) information about the anticipated effects 

of the action requested in the petition in that 

county or State, respectively; and 

(III) the advice of the chief executive on 

whether the status of the species merits the acVerDate Sep 11 2014 06:27 Dec 06, 2018 Jkt 089006 PO 00000 Frm 00011 Fmt 6659 Sfmt 6603 E:\HR\OC\HR1051.XXX HR1051
12 

tion requested in the petition, including information in support of such advice. 

(iii) The Secretary may verify by field testing the information presented in a petition asserting that a species is a 

threatened species or endangered species. 

(iv) If a chief executive advises under clause (ii)(III) that 

the petitioned-for action is not warranted, the Secretary 

may not proceed with the action unless the Secretary demonstrates that information submitted in support of such advice by the chief executive is incorrect and that the action 

is warranted. 

(4) Except as provided in paragraphs (5) and (6) of this subsection, the provisions of section 553 of title 5, United States Code 

(relating to rulemaking procedures), shall apply to any regulation 

promulgated to carry out the purposes of this Act. 

ø(5) With respect to any regulation proposed by the Secretary to 

implement a determination, designation, or revision referred to in 

subsection (a)(1) or (3), the Secretary shall— 

ø(A) not less than 90 days before the effective date of the 

regulation— 

ø(i) publish a general notice and the complete text of the 

proposed regulation in the Federal Register, and 

ø(ii) give actual notice of the proposed regulation (including the complete text of the regulation) to the State agency 

in each State in which the species is believed to occur, and 

to each county or equivalent jurisdiction in which the species is believed to occur, and invite the comment of such 

agency, and each such jurisdiction, thereon; 

ø(B) insofar as practical, and in cooperation with the Secretary of State, give notice of the proposed regulation to each 

foreign nation in which the species is believed to occur or 

whose citizens harvest the species on the high seas, and invite 

the comment of such nation thereon; 

ø(C) give notice of the proposed regulation to such professional scientific organizations as he deems appropriate; 

ø(D) publish a summary of the proposed regulation in a 

newspaper of general circulation in each area of the United 

States in which the species is believed to occur; and 

ø(E) promptly hold one public hearing on the proposed regulation if any person files a request for such a hearing within 

45 days after the date of publication of general notice.¿ 

(5) NOTICE REQUIRED.—With respect to any regulation proposed by the Secretary to implement a determination referred to 

in subsection (a)(1), the Secretary shall— 

(A) not less than 90 days before the effective date of the 

regulation— 

(i) publish a general notice and the complete text of 

the proposed regulation in the Federal Register; 

(ii) provide notice of the proposed regulation (including the complete text of the regulation) to the chief executive of county and State in which the species is located, and invite such chief executive to submit to the 

Secretary a determination as to whether the proposed 

regulation is warranted; and 

13 

(iii) if the chief executive notifies the Secretary that 

the proposed regulation is not warranted, provide to 

the chief executive a record of decision for such determination, including information made available to the 

Secretary that did not support the determination and 

in writing the reasons for the determination; 

(B) in cooperation with the Secretary of State, provide notice of the proposed regulation to each foreign nation in 

which the species is located or whose citizens harvest the 

species on the high seas, and invite the comment of such 

nation thereon; 

(C) provide notice of the proposed regulation to— 

(i) each person who requests such notice; 

(ii) each person who has submitted additional data 

on the proposed regulation; 

(iii) each county, State, and local government within 

the jurisdiction of which the species is located or that 

is likely to experience any effects of any measures to 

protect the species under this Act; and 

(iv) such professional scientific organizations as the 

Secretary considers appropriate; 

(D) publish a summary of the proposed regulation on the 

internet; and 

(E) promptly hold one public hearing on the proposed 

regulation if any person files a request for such a hearing 

within 45 days after the date of publication of general notice. 

(6)(A) Within the one-year period beginning on the date on which 

general notice is published in accordance with paragraph (5)(A)(i) 

regarding a proposed regulation, the Secretary shall publish in the 

Federal Register— 

(i) if a determination as to whether a species is an endangered species or a threatened species, or a revision of critical 

habitat, is involved, either— 

(I) a final regulation to implement such determination, 

(II) a final regulation to implement such revision or a 

finding that such revision should not be made, 

(III) notice that such one-year period is being extended 

under subparagraph (B)(i), or 

(IV) notice that the proposed regulation is being withdrawn under subparagraph (B)(ii), together with the finding on which such withdrawal is based; or 

(ii) subject to subparagraph (C), if a designation of critical 

habitat is involved, either— 

(I) a final regulation to implement such designation, or 

(II) notice that such one-year period is being extended 

under such subparagraph. 

(B)(i) If the Secretary finds with respect to a proposed regulation 

referred to in subparagraph (A)(i) that there is substantial disagreement regarding the sufficiency or accuracy of the available 

data relevant to the determination or revision concerned, the Secretary may extend the one-year period specified in subparagraph 

(A) for not more than six months for purposes of soliciting additional data. 

14 

(ii) If a proposed regulation referred to in subparagraph (A)(i) is 

not promulgated as a final regulation within such one-year period 

(or longer period if extension under clause (i) applies) because the 

Secretary finds that there is not sufficient evidence to justify the 

action proposed by the regulation, the Secretary shall immediately 

withdraw the regulation. The finding on which a withdrawal is 

based shall be subject to judicial review. The Secretary may not 

propose a regulation that has previously been withdrawn under 

this clause unless he determines that sufficient new information is 

available to warrant such proposal. 

(iii) If the one-year period specified in subparagraph (A) is extended under clause (i) with respect to a proposed regulation, then 

before the close of such extended period the Secretary shall publish 

in the Federal Register either a final regulation to implement the 

determination or revision concerned, a finding that the revision 

should not be made, or a notice of withdrawal of the regulation 

under clause (ii), together with the finding on which the withdrawal is based. 

(C) A final regulation designating critical habitat of an endangered species or a threatened species shall be published concurrently with the final regulation implementing the determination 

that such species is endangered or threatened, unless the Secretary 

deems that— 

(i) it is essential to the conservation of such species that the 

regulation implementing such determination be promptly published; or 

(ii) critical habitat of such species is not then determinable, 

in which case the Secretary, with respect to the proposed regulation to designate such habitat, may extend the one-year period specified in subparagraph (A) by not more than one additional year, but not later than the close of such additional year 

the Secretary must publish a final regulation, based on such 

data as may be available at that time, designating, to the maximum extent prudent, such habitat. 

(7) Neither paragraph (4), (5), or (6) of this subsection nor section 

553 of title 5, United States Code, shall apply to any regulation 

issued by the Secretary in regard to any emergency posing a significant risk to the well-being of any species of fish and wildlife or 

plants, but only if— 

(A) at the time of publication of the regulation in the Federal 

Register the Secretary publishes therein detailed reasons why 

such regulation is necessary; and 

(B) in the case such regulation applies to resident species of 

fish or wildlife, or plants, the Secretary gives actual notice of 

such regulation to the State agency in each State in which 

such species is believed to occur. 

Such regulation shall, at the discretion of the Secretary, take effect 

immediately upon the publication of the regulation in the Federal 

Register. Any regulation promulgated under the authority of this 

paragraph shall cease to have force and effect at the close of the 

240-day period following the date of publication unless, during such 

240-day period, the rulemaking procedures which would apply to 

such regulation without regard to this paragraph are complied 

with. If at any time after issuing an emergency regulation the Secretary determines, on the basis of the best appropriate data availVerDate Sep 11 2014 06:27 Dec 06, 2018 Jkt 089006 PO 00000 Frm 00014 Fmt 6659 Sfmt 6601 E:\HR\OC\HR1051.XXX HR1051
15 

able to him, that substantial evidence does not exist to warrant 

such regulation, he shall withdraw it. 

(8) The publication in the Federal Register of any proposed or 

final regulation which is necessary or appropriate to carry out the 

purposes of this Act shall include a summary by the Secretary of 

the data on which such regulation is based and shall show the relationship of such data to such regulation; and if such regulation designates or revises critical habitat, such summary shall, to the maximum extent practicable, also include a brief description and evaluation of those activities (whether public or private) which, in the 

opinion of the Secretary, if undertaken may adversely modify such 

habitat, or may be affected by such designation. 

(9) FACA.—Consultation with counties and States regarding 

petitions and proposed regulations under this subsection shall 

not be subject to the Federal Advisory Committee Act (5 U.S.C. 

App.). 

(c) LISTS.—(1) The Secretary of the Interior shall publish in the 

Federal Register a list of all species determined by him or the Secretary of Commerce to be endangered species and a list of all species determined by him or the Secretary of Commerce to be threatened species. Each list shall refer to the species contained therein 

by scientific and common name or names, if any, specify with respect to such species over what portion of its range it is endangered 

or threatened, and specify any critical habitat within such range. 

The Secretary shall from time to time revise each list published 

under the authority of this subsection to reflect recent determinations, designations, and revisions made in accordance with subsections (a) and (b). 

(2) The Secretary shall— 

(A) conduct, at least once every five years, a review of all 

species included in a list which is published pursuant to paragraph (1) and which is in effect at the time of such review; and 

(B) determine on the basis of such review whether any such 

species should— 

(i) be removed from such list; 

(ii) be changed in status from an endangered species to 

a threatened species; or 

(iii) be changed in status from a threatened species to an 

endangered species. 

Each determination under subparagraph (B) shall be made in accordance with the provisions of subsection (a) and (b). 

(d) PROTECTIVE REGULATIONS.—Whenever any species is listed as 

a threatened species pursuant to subsection (c) of this section, the 

Secretary shall issue such regulations as he deems necessary and 

advisable to provide for the conservation of such species. The Secretary may by regulation prohibit with respect to any threatened 

species any act prohibited under section 9(a)(1), in the case of fish 

or wildlife, or section 9(a)(2) in the case of plants, with respect to 

endangered species; except that with respect to the taking of resident species of fish or wildlife, such, regulations shall apply in any 

State which has entered into a cooperative agreement pursuant to 

section 6(c) of this Act only to the extent that such regulations 

have also been adopted by such State. 

(e) SIMILARITY OF APPEARANCE CASES.—The Secretary may, by 

regulation of commerce or taking, and to the extent he deems adVerDate Sep 11 2014 06:27 Dec 06, 2018 Jkt 089006 PO 00000 Frm 00015 Fmt 6659 Sfmt 6601 E:\HR\OC\HR1051.XXX HR1051
16 

visable, treat any species as an endangered species or threatened 

species even through it is not listed pursuant to section 4 of this 

Act if he finds that— 

(A) such species so closely resembles in appearance, at the 

point in question, a species which has been listed pursuant to 

such section that enforcement personnel would have substantial difficulty in attempting to differentiate between the listed 

and unlisted species; 

(B) the effect of this substantial difficulty is an additional 

threat to an endangered or threatened species; and 

(C) such treatment of an unlisted species will substantially 

facilitate the enforcement and further the policy of this Act. 

(f)(1) RECOVERY PLANS.—The Secretary shall develop and implement plans (hereinafter in this subsection referred to as ‘‘recovery 

plans’’) for the conservation and survival of endangered species and 

threatened species listed pursuant to this section, unless he finds 

that such a plan will not promote the conservation of the species. 

The Secretary, in developing and implementing recovery plans, 

shall, to the maximum extent practicable— 

(A) give priority to those endangered species or threatened 

species, without regard to taxonomic classification, that are 

most likely to benefit from such plans, particularly those species that are, or may be, in conflict with construction or other 

development projects or other forms of economic activity; 

(B) incorporate in each plan— 

(i) a description of such site-specific management actions 

as may be necessary to achieve the plan’s goal for the conservation and survival of the species; 

(ii) objective, measurable criteria which, when met, 

would result in a determination, in accordance with the 

provisions of this section, that the species be removed from 

the list; and 

(iii) estimates of the time required and the cost to carry 

out those measures needed to achieve the plan’s goal and 

to achieve intermediate steps toward that goal. 

(2) The Secretary, in developing and implementing recovery 

plans, may procure the services of appropriate public and private 

agencies and institutions and other qualified persons. Recovery 

teams appointed pursuant to this subsection shall not be subject to 

the Federal Advisory Committee Act. 

(3) The Secretary shall report every two years to the Committee 

on Environment and Public Works of the Senate and the Committee on Merchant Marine and Fisheries of the House of Representatives on the status of efforts to develop and implement recovery plans for all species listed pursuant to this section and on 

the status of all species for which such plans have been developed. 

(4) The Secretary shall, prior to final approval of a new or revised recovery plan, provide public notice and an opportunity for 

public review and comment on such plan. The Secretary shall consider all information presented during the public comment period 

prior to approval of the plan. 

(5) Each Federal agency shall, prior to implementation of a new 

or revised recovery plan, consider all information presented during 

the public comment period under paragraph (4). 

17 

(g) MONITORING.—(1) The Secretary shall implement a system in 

cooperation with the States to monitor effectively for not less than 

five years the status of all species which have recovered to the 

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

longer necessary and which, in accordance with the provisions of 

this section, have been removed from either of the lists published 

under subsection (c). 

(2) The Secretary shall make prompt use of the authority under 

paragraph 7 of subsection (b) of this section to prevent a significant 

risk to the well being of any such recovered species. 

(h) AGENCY GUIDELINES.—The Secretary shall establish, and 

publish in the Federal Register, agency guidelines to insure that 

the purposes of this section are achieved efficiently and effectively. 

Such guidelines shall include, but are not limited to— 

(1) procedures for recording the receipt and the disposition of 

petitions submitted under subsection (b)(3) of this section; 

(2) criteria for making the findings required under such subsection with respect to petitions; 

(3) a ranking system to assist in the identification of species 

that should receive priority review under subsection (a)(1) of 

the section; and 

(4) a system for developing and implementing, on a priority 

basis, recovery plans under subsection (f) of this section. 

The Secretary shall provide to the public notice of, and opportunity 

to submit written comments on, any guideline (including any 

amendment thereto) proposed to be established under this subsection. 

ø(i) If, in the case of any regulation proposed by the Secretary 

under the authority of this section, a State agency to which notice 

thereof was given in accordance with subsection (b)(5)(A)(ii) files 

comments disagreeing with all or part of the proposed regulation, 

and the Secretary issues a final regulation which is in conflict with 

such comments, or if the Secretary fails to adopt a regulation pursuant to an action petitioned by a State agency under subsection 

(b)(3), the Secretary shall submit to the State agency a written justification for his failure to adopt regulations consistent with the 

agency’s comments or petition.¿ 

(i) WRITTEN JUSTIFICATION.—If the Secretary adopts a final regulation in conflict with advise submitted by the chief executive of a 

county or State or fails to adopt a regulation pursuant to an action 

petitioned for by such a chief executive under subsection (b)(3), the 

Secretary shall submit to the chief executive— 

(1) a separate written justification explaining the failure of 

the Secretary to adopt regulations consistent with the advise or 

petition of the chief executive; 

(2) any determination referred to in subsection (a)(1) relating 

to the regulation; and 

(3) all comments received by the Secretary that disagreed 

with all or part of the regulation. 

* * * * * * * 

(18) 

DISSENTING VIEWS 

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

spearheaded by the Western Caucus, introduced late in the second 

session of this Congress, and designed to destroy the Endangered 

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

H.R. 6345 undermines the ability of the Secretaries of Interior 

and Commerce to list a species as threatened or endangered under 

the Endangered Species Act (ESA). The listing of a species should 

be based solely on the best-available scientific and commercial 

data; however, this bill would inject political considerations into the 

listing decision which would make it extremely difficult for a new 

species to be listed. 

Currently, federal agencies are required to make a finding within 

90 days of receiving a petition as to whether there is substantial 

information indicating that the petitioned action may be warranted. If this finding is positive, the agencies conduct a status review and, within one year of receipt of the petition, make a finding 

on whether listing is warranted. The agencies then publish a proposed rule for public review before making a final listing determination. 

Section 4 of the ESA already requires federal agencies to give notice, invite comments, and provide the complete text of a listing decision to any affected state or county. 

Conversely, this bill provides states with significant control over 

listing decisions which could result in an imperiled species not receiving the protections it needs. This bill requires anyone who submits a petition to notify an unspecified ‘‘chief executive’’ of each 

county and state in which the species is located of such petition, 

and it requires the Secretary to solicit from each chief executive information regarding threats to the species, anticipated effects of 

the listing (including economic impacts), and advice of the chief executive on whether the species merits protection. 

If a chief executive deems the listing could be unwarranted, the 

Secretary cannot proceed with the action unless he or she demonstrates that the information submitted by the chief executive is 

incorrect. If the Secretary moves forward with a final listing decision, he or she must provide notice of the proposed rule to the chief 

executive of each county and state in which the species is located 

and again invite the chief executive to provide comment on whether the proposal is warranted. If the Secretary adopts a final regulation in conflict with advice submitted by any chief executive or fails 

to adopt a petition requested by a chief executive, the Secretary 

must provide them with a written justification explaining why the 

decision diverged from the chief executive’s findings or advice. 

H.R. 6345 creates a massive amount of bureaucracy with the sole 

intention of making it nearly impossible to list a new species. For 

example, the whooping crane can be found in 17 states and over 

19 

700 counties. If the whooping crane was not yet listed, this bill 

would require federal agencies to consult with over 700 different 

chief executives to determine whether the species warrants protection. This process ultimately guarantees that the species would 

never be listed due to the absurd number of individuals the Secretary must consult with and the amount of time that the process 

would take. 

The bill does not specify who is considered the chief executive of 

each county and state, which could potentially result in unqualified 

individuals participating in listing decisions, nor does it specify 

how the Secretary should proceed if he or she receives conflicting 

advice from different chief executives. 

Finally, the bill places an unnecessary burden on the Secretary 

to consult and provide additional information to the states, even 

though Section 4 of the ESA already requires federal agencies to 

give notice, invite comments, and provide the complete text of a 

listing decision to any affected state or county. 

For these reasons, we cannot support the bill as reported. 

RAU ́ L M. GRIJALVA, 

Ranking Member, Committee 

on Natural Resources. 

JARED HUFFMAN. 

GRACE F. NAPOLITANO. 

NANETTE DIAZ BARRAGA ́ N. 

A. DONALD MCEACHIN. 

WM. LACY CLAY. 

NIKI TSONGAS. 

DONALD S. BEYER. 

Æ