I
106TH CONGRESS
1ST SESSION
H. R. 494
To amend the Endangered Species Act of 1973 to reform the regulatory
process under that Act.
IN THE HOUSE OF REPRESENTATIVES
FEBRUARY 2, 1999
Mr. THOMAS introduced the following bill; which was referred to the
Committee on Resources
A BILL
To amend the Endangered Species Act of 1973 to reform
the regulatory process under that Act.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; REFERENCES.
(a) SHORT TITLE.—This Act may be cited as the
‘‘Endangered Species Fair Regulatory Process Reform
Act’’.
(b) REFERENCES TO ENDANGERED SPECIES ACT OF
1973.—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 provi-
sion, the reference shall be considered to be made to that
section or provision of the Endangered Species Act (16
U.S.C. 1531 et seq.).
SEC. 2. LISTING PROCESS REFORMS.
(a) PETITION INFORMATION.—Section 4(b)(3) (16
U.S.C. 1533(b)(3)) is amended by adding at the end the
following:
‘‘(E) In the case of a petition to add a species to
either list published under subsection (c), a finding that
the petition presents the information described in subpara-
graph (A) shall not be made unless the petition provides—
‘‘(i) documentation from a published scientific
source that the fish, wildlife, or plant that is the
subject of the petition is a species;
‘‘(ii) a description of the available data on the
historical and current range and distribution of the
species, an explanation of the methodology used to
collect the data, and identification of the location
where such data can be reviewed;
‘‘(iii) an appraisal of the available data on the
status and trends of populations of the species;
‘‘(iv) an appraisal of the available data on the
threats to the species;
‘‘(v) an identification of the information con-
tained or referred to in the petition that has been
peer-reviewed or field-tested; and
‘‘(vi) at least one study or credible expert opin-
ion, from a person not affiliated with the petitioner,
to support the action requested in the petition.’’.
(b) AVAILABILITY OF INFORMATION RELATING TO
LISTING.—Section 4(b) (16 U.S.C. 1533(b)) is amended
by adding at the end the following:
‘‘(9)(A) Upon publication of a proposed rule deter-
mining that a species is an endangered species or threat-
ened species, the Secretary shall make publicly available
all information on which the determination is based, in-
cluding all scientific studies and data underlying those
studies, and all information related to the species the Sec-
retary possesses that does not support the determination.
‘‘(B) This paragraph does not require disclosure of
any information that—
‘‘(i) is not subject to the requirements of sec-
tion 552 of title 5, United States Code (popularly
known as the Freedom of Information Act); or
‘‘(ii) is prohibited from being disclosed under
section 552a of title 5, United States Code (popu-
larly known as the Privacy Act).’’.
(c) PEER REVIEW COMMITTEES.—Section 4(b) (16
U.S.C. 1533) is further amended by adding at the end
the following:
‘‘(10)(A) In the case of a regulation proposed by the
Secretary to implement a determination under subsection
(a)(1) that any species is an endangered species or a
threatened species or that any species currently listed as
an endangered species or a threatened species should be
removed from any list published pursuant to subsection
(c), the Secretary shall provide for independent scientific
peer review by—
‘‘(i) selecting independent referees pursuant to
subparagraph (B);
‘‘(ii) requesting the referees to conduct the re-
view, considering all relevant information, and make
a recommendation to the Secretary in accordance
with this paragraph not later than 150 days after
the general notice is published pursuant to para-
graph (5)(A)(i).
‘‘(B) SELECTION
OF REFEREES.—For each inde-
pendent scientific review to be conducted pursuant to sub-
paragraph (A), the Secretary shall select 3 independent
referees from a list provided by the National Academy of
Sciences, who—
‘‘(i) through publication of peer-reviewed sci-
entific literature or other means, have demonstrated
scientific expertise on the species or a similar species
or other scientific expertise relevant to the decision
of the Secretary under subsection (a);
‘‘(ii) do not have, nor represent any person
with, a conflict of interest with respect to the deter-
mination that is the subject of the review; and
‘‘(iii) are not participants in a petition to list,
change the status of, or remove the species from a
list under subsection (c), or the proposed or final de-
termination of the Secretary.
‘‘(C) The Secretary shall take one of the actions
under paragraph (6)(A) of this subsection not later than
1 year after the date of publication of the general notice
of the proposed determination. If the referees have made
a recommendation in accordance with clause (ii) of sub-
paragraph (A), the Secretary shall evaluate and consider
the information that results from the independent sci-
entific review and include in the final determination—
‘‘(i) a summary of the results of the independ-
ent scientific review; and
‘‘(ii) in cases where the recommendation of a
majority of the referees who conducted the independ-
ent scientific review under subparagraph (A) is not
followed, an explanation as to why the recommenda-
tion was not followed.
‘‘(D) The referees selected pursuant to this para-
graph shall not be subject to the Federal Advisory Com-
mittee Act (5 U.S.C. App.).’’.
(d) ESTABLISHMENT OF CRITERIA FOR SCIENTIFIC
STUDIES TO SUPPORT LISTING.—Section 4(b) (16 U.S.C.
1533(b)) is further amended by adding at the end the fol-
lowing:
‘‘(11) Within 1 year after the date of the enactment
of this paragraph, the Secretary shall issue rules that es-
tablish criteria that must be met for scientific and com-
mercial data to be used as the basis of any determination
under this section that a species is an endangered species
or threatened species or should be removed from a list
published under subsection (c).’’.
(e) FIELD
DATA
REQUIRED.—Section 4(b) (16
U.S.C. 1533(b)) is further amended by adding at the end
the following:
‘‘(12)(A) The Secretary may not determine that a
species is an endangered species or threatened species un-
less the determination is supported by data obtained by
observation of the species in the field.
‘‘(B) The Secretary shall—
‘‘(i) accept and acknowledge receipt of data re-
garding the status of a species, that is collected by
the owner of land through observation of the species
on such land; and
‘‘(ii) include such data in the rulemaking record
for any determination that the species is an endan-
gered species or threatened species, unless the data
is refuted by other field-collected data in the posses-
sion of the Secretary.’’.
SEC. 3. FORMAL RULEMAKING PROCESS FOR LISTINGS.
(a) FORMAL
RULEMAKING
REQUIRED.—Section
4(b)(4) (16 U.S.C. 1533(b)(4)) is amended—
(1) by striking ‘‘Except as provided in’’ and in-
serting ‘‘(A) Except as provided in subparagraph
(B) of this paragraph and’’; and
(2) by adding at the end the following:
‘‘(B)(i) The Secretary shall make determinations re-
ferred to in subsection (a)(1) and designations and revi-
sions referred to in subsection (a)(3) by a rule made on
the record after an opportunity for an agency hearing—
‘‘(I) in the State in which the largest population
of the species exists; and
‘‘(II) in the State for which the potential eco-
nomic impact of the determination, designation, or
revision is greatest.
‘‘(ii) A hearing under this subparagraph—
‘‘(I) shall be initiated by the Secretary not later
than 1 year after publication of notice of proposed
rulemaking, and shall be of not more than 30 days
in duration; and
‘‘(II) shall be conducted in accordance with sec-
tions 556 and 557 of title 5, United States Code.’’.
(b) CONFORMING AMENDMENT.—Section 4(b)(5) (16
U.S.C. 1533(b)(5)) is amended—
(1) in subparagraph (C) by adding ‘‘and’’ after
the semicolon;
(2) in subparagraph (D) by striking ‘‘; and’’
and inserting a period; and
(3) by striking subparagraph (E).
SEC. 4. ENSURING ADEQUATE BASIS FOR REGULATORY AC-
TIONS.
Section 4 (16 U.S.C. 1533) is amended by adding
at the end the following:
‘‘(j) STANDARD FOR CERTAIN ACTIONS.—(1) Not-
withstanding section 706(2) of title 5, United States Code,
the Secretary may not take an action referred to in para-
graph (2) unless that action is supported by substantial
evidence.
‘‘(2) The actions referred to in paragraph (1) are the
following:
‘‘(A) A determination under subsection (a)(1)
that a species is an endangered species or threatened
species.
‘‘(B) The removal of a species from either of
the lists published under subsection (c).
‘‘(C) The approval of a new or revised recovery
plan under subsection (f).’’.
SEC. 5. ECONOMIC IMPACT ANALYSES.
Section 4 (16 U.S.C. 1533) is further amended by
adding at the end the following:
‘‘(k) ECONOMIC IMPACT ANALYSIS.—(1) The Sec-
retary shall prepare and publish with a final rule under
subsection (a)(1) determining that a species is an endan-
gered species or threatened species, or under subsection
(b)(2) designating critical habitat for a species, an analy-
sis of the economic impacts of the rule.
‘‘(2) An analysis under paragraph (1) for a deter-
mination that a species is an endangered species or threat-
ened species shall describe the geographic area that will
be affected by the determination, including specification
of privately owned property located in that area.’’.
SEC. 6. EXPERIMENTAL POPULATIONS.
Section 10(j) (16 U.S.C. 1539(j)) is amended by add-
ing at the end the following:
‘‘(4)(A) The Secretary may not release any experi-
mental population on or affecting privately owned property
except by a rulemaking.
‘‘(B) Any rule issued under this paragraph shall—
‘‘(i) identify the geographic area affected by the
release;
‘‘(ii) describe the need for the release; and
‘‘(iii) the economic impacts of the release on
private landowners.’’.
SEC. 7. EXPEDITIOUS CONSIDERATION OF INCIDENTAL
TAKE PERMIT APPLICATIONS.
Section 10(a) (16 U.S.C. 1539(a)) is amended by
adding at the end the following:
‘‘(3) The Secretary shall approve or disapprove an
application for an incidental take permit under paragraph
(1)(B) by not later than 90 days after the date the Sec-
retary receives the application.
‘‘(4)(A) If the Secretary disapproves an application
for an incidental take permit under paragraph (1)(B), the
Secretary shall provide the applicant notice in writing the
specific reasons the application was not approved and
measures that, if included in the amended application,
would result in approval of the application.
‘‘(B) If within 30 days after the date on which such
notice is provided the applicant submits an amended appli-
cation that adequately addresses the reasons for dis-
approval that are specified in the notice, the Secretary
shall promptly issue the permit.
‘‘(5) The Secretary may not charge any fee for proc-
essing a permit under paragraph (1)(B) in an amount that
exceeds the incremental cost to the United States of proc-
essing the permit.’’.
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