II 

108TH CONGRESS 

2D SESSION S. 2009

To amend the Endangered Species Act of 1973 to require the Secretary 

of the Interior to give greater weight to scientific or commercial data 

that is empirical or has been field-tested or peer-reviewed, and for other 

purposes. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 20, 2004

Mr. SMITH 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 to require 

the Secretary of the Interior to give greater weight to 

scientific or commercial data that is empirical or has 

been field-tested or peer-reviewed, and for other purposes.

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 ‘‘Sound Science for En5 dangered Species Act Planning Act of 2004’’. 
2

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1 SEC. 2. SOUND SCIENCE. 

2 (a) BEST SCIENTIFIC AND COMMERCIAL DATA

3 AVAILABLE.—

4 (1) IN GENERAL.—Section 3 of the Endangered 

5 Species Act of 1973 (16 U.S.C. 1532) is amended—

6 (A) by amending the section heading to 

7 read as follows: 

8 ‘‘SEC. 3. DEFINITIONS AND GENERAL PROVISIONS.’’; 

9 (B) by striking ‘‘For the purposes of this 

10 Act—’’ and inserting the following: 

11 ‘‘(a) DEFINITIONS.—In this Act:’’; and 

12 (C) by adding at the end the following: 

13 ‘‘(b) USE OF CERTAIN DATA.—In any case in which 

14 the Secretary is required by this Act to use the best sci15 entific and commercial data available, the Secretary, in 

16 evaluating comparable data, shall give greater weight to 

17 scientific or commercial data that is empirical or has been 

18 field-tested or peer-reviewed.’’. 

19 (2) CONFORMING AMENDMENT.—The table of 

20 contents in the first section of the Endangered Spe21 cies Act of 1973 (16 U.S.C. prec. 1531) is amended 

22 by striking the item relating to section 3 and insert23 ing the following:

‘‘Sec. 3. Definitions and general provisions.’’.
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1 (b) USE OF SOUND SCIENCE IN LISTING.—Section 

2 4(b) of the Endangered Species Act of 1973 (16 U.S.C. 

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

4 ‘‘(9) ESTABLISHMENT OF CRITERIA FOR SCI5 ENTIFIC STUDIES TO SUPPORT LISTING.—Not later 

6 than 1 year after the date of enactment of this para7 graph, the Secretary shall promulgate regulations 

8 that establish criteria that must be met for scientific 

9 and commercial data to be used as the basis of a de10 termination under this section that a species is an 

11 endangered species or a threatened species. 

12 ‘‘(10) FIELD DATA.—

13 ‘‘(A) REQUIREMENT.—The Secretary may 

14 not determine that a species is an endangered 

15 species or a threatened species unless the deter16 mination is supported by data obtained by ob17 servation of the species in the field. 

18 ‘‘(B) DATA FROM LANDOWNERS.—The 

19 Secretary shall—

20 ‘‘(i) accept and acknowledge receipt of 

21 data regarding the status of a species that 

22 is collected by an owner of land through 

23 observation of the species on the land; and 

24 ‘‘(ii) include the data in the rule25 making record compiled for any determina-
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1 tion that the species is an endangered spe2 cies or a threatened species.’’. 

3 (c) USE OF SOUND SCIENCE IN RECOVERY PLAN4 NING.—Section 4(f) of the Endangered Species Act of 

5 1973 (16 U.S.C. 1533(f)) is amended by adding at the 

6 end the following: 

7 ‘‘(6)(A) The Secretary shall identify and publish in 

8 the Federal Register with the notice of a proposed regula9 tion pursuant to paragraph (5)(A)(i) a description of addi10 tional scientific and commercial data that would assist in 

11 the preparation of a recovery plan and—

12 ‘‘(i) invite any person to submit the data to the 

13 Secretary; and 

14 ‘‘(ii) describe the steps that the Secretary plans 

15 to take for acquiring additional data. 

16 ‘‘(B) Data identified and obtained under subpara17 graph (A)(i) shall be considered by the recovery team and 

18 the Secretary in the preparation of the recovery plan in 

19 accordance with section 5.’’. 

20 SEC. 3. PEER REVIEW. 

21 Section 4 of the Endangered Species Act of 1973 (16 

22 U.S.C. 1533) is amended by adding at the end the fol23 lowing: 

24 ‘‘(j) INDEPENDENT SCIENTIFIC REVIEW REQUIRE25 MENTS.—
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1 ‘‘(1) DEFINITIONS.—In this subsection: 

2 ‘‘(A) ACTION.—The term ‘action’ means—

3 ‘‘(i) the determination that a species 

4 is an endangered species or a threatened 

5 species under subsection (a); 

6 ‘‘(ii) the determination under sub7 section (a) that an endangered species or 

8 a threatened species be removed from any 

9 list published under subsection (c)(1); 

10 ‘‘(iii) the development of a recovery 

11 plan for a threatened species or endan12 gered species under subsection (f); and 

13 ‘‘(iv) the determination that a pro14 posed action is likely to jeopardize the con15 tinued existence of a listed species and the 

16 proposal of any reasonable and prudent al17 ternatives by the Secretary under section 

18 7(b)(3). 

19 ‘‘(B) QUALIFIED INDIVIDUAL.—The term 

20 ‘qualified individual’ means an individual with 

21 expertise in the biological sciences—

22 ‘‘(i) who through publication of peer23 reviewed scientific literature or other 

24 means, has demonstrated scientific exper25 tise on the species or a similar species or
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1 other scientific expertise relevant to the de2 cision of the Secretary under subsection 

3 (a) or (f); 

4 ‘‘(ii) who does not have, or represent 

5 any person with, a conflict of interest with 

6 respect to the determination that is the 

7 subject of the review; 

8 ‘‘(iii) who is not a participant in any 

9 petition or proposed or final determination 

10 before the Secretary; and 

11 ‘‘(iv) who has no direct financial in12 terest, and is not employed by any person 

13 with a direct financial interest, in opposing 

14 the action under consideration. 

15 ‘‘(2) LIST OF INDEPENDENT SCIENTIFIC RE16 VIEWERS.—The Secretary shall solicit recommenda17 tions from the National Academy of Sciences and 

18 develop and maintain a list of qualified reviewers to 

19 participate in independent scientific review actions. 

20 ‘‘(3) APPOINTMENT OF INDEPENDENT SCI21 ENTIFIC REVIEWERS.—(A) Before any action shall 

22 become final, the Secretary shall appoint randomly, 

23 from among the list prepared in accordance with 

24 this section, 3 qualified individuals who shall review 

25 and report to the Secretary on the scientific infor-
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1 mation and analyses on which the proposed action is 

2 based. 

3 ‘‘(B) The selection and activities of the referees 

4 selected pursuant to this section shall not be subject 

5 to the Federal Advisory Committee Act (5 U.S.C. 

6 App.). 

7 ‘‘(C) Reviewers shall be compensated for con8 ducting the independent review. 

9 ‘‘(4) OPINION OF PEER REVIEWERS.—Inde10 pendent reviewers shall provide the Secretary, within 

11 3 months, their opinion regarding all relevant sci12 entific information and assumptions relating to the 

13 taxonomy, population models, and supportive biologi14 cal and ecological information for the species in 

15 question. 

16 ‘‘(5) FINAL DETERMINATION.—If the referees 

17 have made a recommendation on a proposed action, 

18 the Secretary shall evaluate and consider the infor19 mation that results from the independent scientific 

20 review and include in the final determination—

21 ‘‘(A) a summary of the results of the inde22 pendent scientific review; and 

23 ‘‘(B) in a case in which the recommenda24 tion of a majority of the referees who conducted 

25 the independent scientific review is not followed, 
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1 an explanation as to why the recommendation 

2 was not followed. 

3 ‘‘(6) PUBLIC NOTICE.—The report of the peer 

4 reviewers shall be included in the official record of 

5 the proposed action and shall be available for public 

6 review prior to the close of the comment period on 

7 the proposed action.’’. 

8 SEC. 4. IMPROVED RECOVERY PLANNING. 

9 (a) USE OF INFORMATION PROVIDED BY STATES.—

10 Section 7(b)(1) of the Endangered Species Act of 1973 

11 (16 U.S.C. 1536(b)(1)) is amended by adding at the end 

12 the following: 

13 ‘‘(C) USE OF STATE INFORMATION.—In 

14 conducting a consultation under subsection 

15 (a)(2), the Secretary shall actively solicit and 

16 consider information from the State agency in 

17 each affected State.’’. 

18 (b) OPPORTUNITY TO PARTICIPATE IN CONSULTA19 TIONS.—Section 7(b)(1) of the Endangered Species Act 

20 of 1973 (16 U.S.C. 1536(b)(1)) (as amended by sub21 section (a)) is further amended by adding at the end the 

22 following: 

23 ‘‘(D) OPPORTUNITY TO PARTICIPATE IN

24 CONSULTATIONS.—
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1 ‘‘(i) IN GENERAL.—In conducting a 

2 consultation under subsection (a)(2), the 

3 Secretary shall provide any person who has 

4 sought authorization or funding from a 

5 Federal agency for an action that is the 

6 subject of the consultation, the opportunity 

7 to—

8 ‘‘(I) before the development of a 

9 draft biological opinion, submit and 

10 discuss with the Secretary and the 

11 Federal agency information relevant 

12 to the effect of the proposed action on 

13 the species and the availability of rea14 sonable and prudent alternatives (if a 

15 jeopardy opinion is to be issued) that 

16 the Federal agency and the person 

17 can take to avoid violation of sub18 section (a)(2); 

19 ‘‘(II) receive information, on re20 quest, subject to the exemptions speci21 fied in section 552(b) of title 5, 

22 United States Code, on the status of 

23 the species, threats to the species, and 

24 conservation measures, used by the 

25 Secretary to develop the draft biologi-
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1 cal opinion and the final biological 

2 opinion, including the associated inci3 dental taking statements; and 

4 ‘‘(III) receive a copy of the draft 

5 biological opinion from the Federal 

6 agency and, before issuance of the 

7 final biological opinion, submit com8 ments on the draft biological opinion 

9 and discuss with the Secretary and 

10 the Federal agency the basis for any 

11 finding in the draft biological opinion. 

12 ‘‘(ii) EXPLANATION.—If reasonable 

13 and prudent alternatives are proposed by a 

14 person under clause (i) and the Secretary 

15 does not include the alternatives in the 

16 final biological opinion, the Secretary shall 

17 explain to the person why those alter18 natives were not included in the opinion. 

19 ‘‘(iii) PUBLIC ACCESS TO INFORMA20 TION.—Comments and other information 

21 submitted to, or received from, any person 

22 (pursuant to clause (i)) who seeks author23 ization or funding for an action shall be 

24 maintained in a file for that action by the 

25 Secretary and shall be made available to 
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1 the public (subject to the exemptions speci2 fied in section 552(b) of title 5, United 

3 States Code).’’.

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