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103D CONGRESS

1ST SESSION S. 1440

To amend the Endangered Species Act of 1973 with common sense amendments to strengthen the Act, enhance wildlife conservation and management, augment funding, and protect fishing, hunting, and trapping.

IN THE SENATE OF THE UNITED STATES

AUGUST 6 (legislative day, JUNE 30), 1993

Mr. BURNS introduced the following bill; which was read twice and referred

to the Committee on Environment and Public Works

A BILL

To amend the Endangered Species Act of 1973 with common

sense amendments to strengthen the Act, enhance wildlife conservation and management, augment funding, and

protect fishing, hunting, and trapping.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Common Sense

5 Amendments for All Endangered Species Act’’.
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1 SEC. 2. WILDLIFE MANAGEMENT EFFECTS EVALUATION.

2 (a) AMENDMENT TO ACT.—Section 13 of the Endan3 gered Species Act of 1973 (87 Stat. 901) is amended to

4 read as follows:

5 ‘‘WILDLIFE MANAGEMENT EFFECTS EVALUATION

6 ‘‘SEC. 13. (a) IN GENERAL.—The Secretary shall

7 evaluate the impact on fish and wildlife management prac8 tices, including fishing, hunting, and trapping, of any pro9 posed action under this Act, including the listing of any

10 species or the designation of critical habitat under section

11 4, the making of any taking determination pursuant to

12 section 9, or the taking of any action under the Conven13 tion, which may have a significant effect on such practices.

14 Such evaluation shall include—

15 ‘‘(1) notification of the appropriate State or

16 local agencies responsible for the conduct or over17 sight of fish and wildlife management practices; and

18 ‘‘(2) notice and conduct of a hearing in the vi19 cinity of the proposed action.

20 ‘‘(b) DISCLAIMER.—Nothing in this section shall af21 fect the substantive standards for listing determinations

22 set forth in section 4.’’.

23 (b) CONFORMING AMENDMENT.—The entry for that

24 section in the table of contents to such Act of 1973 is

25 amended to read as follows:

‘‘Sec. 13. Wildlife management effects evaluation.’’.
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1 SEC. 3. FISH AND WILDLIFE CONSERVATION AND MANAGE2 MENT PROJECTS.

3 Section 6 of the Endangered Species Act of 1973 (16

4 U.S.C. 1535) is amended by adding the following new sub5 section at the end:

6 ‘‘(j) ACTIVITIES THAT CONSTITUTE TAKING.—(1)

7 No action to plan or execute fish and wildlife management

8 activities and projects authorized by Federal or State fish

9 and wildlife management authorities, including those that

10 alter habitat for the benefit of selected species, shall con11 stitute a taking pursuant to section 9 unless such activity

12 or project actually wounds or kills an endangered or

13 threatened species.

14 ‘‘(2) Nothing in this subsection shall alter or affect

15 consultation, if necessary, as provided in section 7 nor af16 fect the ability of a State agency or private entity to obtain

17 permits pursuant to section 10.’’.

18 SEC. 4. CITES AND SPORT HUNTING.

19 Section 8A(c) of the Endangered Species Act of 1973

20 (16 U.S.C. 1537a(c)) is amended—

21 (1) by striking out ‘‘practices;’’ in paragraph

22 (2) and inserting ‘‘practices and shall give due

23 weight to the conservation benefits of wildlife man24 agement practices, including sport hunting,’’; and

25 (2) by inserting after paragraph (2) the follow26 ing new paragraph:
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1 ‘‘(3)(A) The Secretary shall recognize and abide by

2 the determinations made by contracting parties to the

3 Convention as to which of their indigenous species are

4 threatened, endangered, or subject to the provisions of the

5 Convention, in all actions which the Secretary takes pur6 suant to the Convention.

7 ‘‘(B) The Secretary may reject any determination re8 ferred to in subparagraph (A) if the Secretary possesses

9 clear and convincing evidence that the determination was

10 fraudulently rendered or was based on erroneous or gross11 ly inadequate scientific data.’’.

12 SEC. 5. FAIR NOTICE OF FOREIGN LAWS.

13 Section 11(b)(1) of the Endangered Species Act of

14 1973 (16 U.S.C. 1540(b)(1)) is amended by adding at the

15 end the following new sentence: ‘‘To constitute a violation

16 under this subsection to which criminal penalties apply,

17 a violation of foreign law must be of a reasonably ascer18 tainable wildlife conservation statute. All other violations

19 of foreign law and foreign administrative requirements

20 with respect to the provisions of this Act shall be subject

21 to subsection (a)(1).’’.
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1 SEC. 6. SUBSPECIES AND POPULATION CRITERIA; ADJU2 DICATION AND PEER REVIEW.

3 Section 4(b) of the Endangered Species Act (16

4 U.S.C. 1533(b)) is amended by adding at the end the fol5 lowing new paragraphs:

6 ‘‘(9) The Secretary shall by regulation establish cri7 teria by which to determine whether any fish or wildlife

8 stock constitutes a subspecies or distinct population seg9 ment, or plant stock constitutes a subspecies, so as to be

10 eligible for listing as a threatened or endangered species

11 under this section. The criteria shall include a requirement

12 that genetic data analysis be employed where or when such

13 data are available and shall establish a reasonable burden

14 of proof for determinations of subspecies and distinct pop15 ulation segments.

16 ‘‘(10) In making the determinations pursuant to this

17 section, the Secretary may, at his sole discretion, employ

18 an adjudicative procedure to assist the Secretary in ac19 quiring the best scientific and commercial data pursuant

20 to subsection (b)(1). Any scientific determination on a

21 proposed listing made by the United States Fish and Wild22 life Service or the National Marine Fisheries Service may

23 be submitted by the Secretary for peer review to a scientif24 ically qualified entity or entities before a final determina25 tion is made by the Secretary. Such peer review process
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1 shall not be subject to the provisions of the Federal Advi2 sory Committee Act.’’.

3 SEC. 7. FUNDING AUGMENTATION STUDY.

4 The Secretary of the Interior shall study and report

5 to Congress within 18 months after the date of the enact6 ment of this Act on the feasibility of a program or pro7 grams (similar to the Dingell-Johnson and Pittman-Rob8 ertson programs which fund sport fishing, boating, and

9 hunting projects) under which monies shall be collected

10 from those who may benefit specifically from the provi11 sions of the Endangered Species Act of 1973 and used

12 in furtherance of the goals and purposes set forth in such

13 Act.

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