IB 
Union Calendar No. 471
107TH CONGRESS 
2D SESSION 
H. R. 4840
[Report No. 107–751] 
To amend the Endangered Species Act of 1973 to ensure the use of sound 
science in the implementation of that Act. 
IN THE HOUSE OF REPRESENTATIVES 
MAY 23, 2002
Mr. HANSEN (for himself, Mr. POMBO, and Mr. WALDEN) introduced the 
following bill; which was referred to the Committee on Resources 
OCTOBER 15, 2002 
Additional sponsors: Mr. THOMAS, Mr. OTTER, Mr. HERGER, Mr. GALLEGLY, 
Mr. SIMPSON, Mr. THUNE, Mr. PETERSON
of Minnesota, Mr. 
HAYWORTH, Mr. RADANOVICH, Mr. SESSIONS, Mr. CUNNINGHAM, and 
Mr. LEWIS of Kentucky 
OCTOBER 15, 2002 
Reported with an amendment, committed to the Committee of the Whole 
House on the State of the Union, and ordered to be printed 
[Strike out all after the enacting clause and insert the part printed in italic] 
[For text of introduced bill, see copy of bill as introduced on May 23, 2002] 
A BILL 
To amend the Endangered Species Act of 1973 to ensure 
the use of sound science in the implementation of 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. 
This Act may be cited as the ‘‘Sound Science for En-
dangered Species Act Planning Act of 2002’’. 
SEC. 2. SOUND SCIENCE. 
(a) BEST SCIENTIFIC AND COMMERCIAL DATA AVAIL-
ABLE AS BASIS OF DETERMINATIONS.—Section 4(b)(1)(A) 
of the Endangered Species Act of 1973 (16 U.S.C. 
1533(b)(1)(A)) is amended in the first sentence, by inserting 
‘‘, including any finding under paragraph (3)(B) on a peti-
tion referred to in paragraph (3)(A),’’ after ‘‘determina-
tions required by subsection (a)(1)’’. 
(b) PREFERENCE
FOR EMPIRICAL, FIELD-TESTED, 
AND PEER-REVIEWED DATA.—Section 4(b) of the Endan-
gered Species Act of 1973 (16 U.S.C. 1533(b)) is amended 
by adding at the end the following: 
‘‘(9) In making any determination under this section, 
the Secretary shall give greater weight to any scientific or 
commercial study or other information that is empirical 
or has been field-tested or peer-reviewed.’’. 
(c) CONTENTS OF LISTING PETITIONS.—
(1) IN GENERAL.—Section 4(b)(3) of the Endan-
gered Species Act of 1973 (16 U.S.C. 1533(b)(3)) is 
amended by adding at the end the following: 
‘‘(E) A petition referred to in subparagraph (A) re-
garding a species—
‘‘(i) shall, to the maximum extent practicable, 
contain clear and convincing evidence—
‘‘(I) of the current known and historic 
ranges of the species concerned; 
‘‘(II) of the most recent population esti-
mates and trends for the species, if available; 
‘‘(III) that any change in the population 
that is alleged in the petition is beyond the nat-
ural range of fluctuations for the species; and 
‘‘(IV) of the reason that the petitioned ac-
tion is warranted, including known or perceived 
threats to the species; 
‘‘(ii) shall include a bibliography of scientific lit-
erature on the species in support of the petition; and 
‘‘(iii) may contain any other information the pe-
titioner considers appropriate. 
‘‘(F) For purposes of subparagraph (E), evidence is 
clear and convincing evidence if—
‘‘(i) a preponderance of the evidence is based on 
reliable scientific and commercial information; and 
‘‘(ii) the evidence is sufficient to support a firm 
belief by the Secretary that the petitioned action may 
be warranted.’’.
(2) REQUIREMENT FOR CONSIDERATION OF PETI-
TION.—Section 4(b)(3) of the Endangered Species Act 
of 1973 (16 U.S.C. 1533(b)(3)) is further amended—
(A) in subparagraph (A) in the first sen-
tence, by inserting ‘‘and contains the informa-
tion required under clauses (i) and (ii) of sub-
paragraph (E)’’ after ‘‘may be warranted’’; and 
(B) in subparagraph (B) in the matter pre-
ceding clause (i), by inserting ‘‘and contains the 
information required under clauses (i) and (ii) 
of subparagraph (E)’’ after ‘‘may be warranted’’. 
(d) USE OF SOUND SCIENCE IN LISTING.—Section 
4(b) of the Endangered Species Act of 1973 (16 U.S.C. 
1533(b)) is further amended by adding at the end the fol-
lowing: 
‘‘(10) Not later than 1 year after the date of enactment 
of this paragraph, the Secretary shall promulgate regula-
tions that establish criteria that must be met for scientific 
and commercial data, studies, and other information to be 
used as the basis of a determination under this section. 
‘‘(11)(A) The Secretary may not determine that a spe-
cies is an endangered species or a threatened species unless 
data collected in the field on the species concerned supports 
the determination. 
‘‘(B) The Secretary shall—
‘‘(i) accept and acknowledge receipt of data re-
garding the status of a species that is collected by an 
owner of land, including data obtained by observation 
of the species on the land; and
‘‘(ii) include the data in the rulemaking record 
compiled for any determination that the species is an 
endangered species or a threatened species.’’. 
(e) USE OF SOUND SCIENCE IN RECOVERY PLAN-
NING.—Section 4(f) of the Endangered Species Act of 1973 
(16 U.S.C. 1533(f)) is amended by adding at the end the 
following: 
‘‘(6)(A) The Secretary shall identify and publish in 
the Federal Register with the notice of a proposed regula-
tion pursuant to paragraph (5)(A)(i) a description of addi-
tional scientific and commercial data that, if collected, 
would assist in the preparation of a recovery plan and—
‘‘(i) invite any person to submit the data to the 
Secretary; and 
‘‘(ii) describe the steps that the Secretary plans 
to take for acquiring additional data. 
‘‘(B) Data identified and obtained under subpara-
graph (A)(i) shall be considered by the recovery team and 
the Secretary in the preparation of the recovery plan.’’.
SEC. 3. INDEPENDENT SCIENTIFIC REVIEW. 
(a) IN GENERAL.—Section 4 of the Endangered Spe-
cies Act of 1973 (16 U.S.C. 1533) is amended by adding 
at the end the following: 
‘‘(j) INDEPENDENT SCIENTIFIC REVIEW REQUIRE-
MENTS.—(1) In this subsection: 
‘‘(A) The term ‘covered action’ means—
‘‘(i) the determination that a species is an 
endangered species or a threatened species under 
subsection (a); 
‘‘(ii) the determination under subsection (a) 
that an endangered species or a threatened spe-
cies be removed from any list published under 
subsection (c)(1); 
‘‘(iii) the development of a recovery plan for 
a threatened species or endangered species under 
subsection (f); 
‘‘(iv) the determination that a proposed ac-
tion is likely to jeopardize the continued exist-
ence of a listed species or result in the destruc-
tion or adverse modification of critical habitat 
and the proposal of any reasonable and prudent 
alternatives by the Secretary under section 
7(b)(3), if the Secretary finds that—
‘‘(I) there is significant disagreement 
regarding that determination or proposal; 
or 
‘‘(II) that determination or proposal 
may have significant economic impact; and 
‘‘(v) the determination that a proposed ac-
tion is not likely to jeopardize the continued ex-
istence of a listed species or result in the destruc-
tion or adverse modification of critical habitat, 
if the Secretary finds that there is significant 
disagreement regarding that determination or 
proposal. 
‘‘(B) The term ‘qualified individual’ means an 
individual who meets the standards of the National 
Academy of Sciences for independent scientific review 
conducted by the Academy, except that such term does 
not include any individual with a conflict of interest 
as determined by the Secretary or by a Governor who 
nominates the individual under paragraph (3)(B). 
‘‘(2) The Secretary shall—
‘‘(A) maintain a list of qualified individuals 
who are available to participate on independent re-
view boards under this subsection; 
‘‘(B) seek nominations of individuals to partici-
pate on such boards (upon appointment by the Sec-
retary), through the Federal Register, scientific and 
commercial journals, and the National Academy of 
Sciences and other such institutions; and 
‘‘(C) update such list every two years. 
‘‘(3)(A) Before any covered action becomes final, the 
Secretary shall appoint an independent review board in ac-
cordance with this section that shall review and report to 
the Secretary in writing on the scientific information and 
analyses on which the covered action is based. 
‘‘(B) Each independent review board under this para-
graph shall be composed of 5 members, of which—
‘‘(i) 3 shall be appointed by the Secretary from 
the list under paragraph (2); and 
‘‘(ii) 2 shall be appointed by the Secretary from 
among qualified individuals nominated by the Gov-
ernor of a State in which the species concerned is lo-
cated. 
‘‘(C) If any individual declines appointment to an 
independent review board under this paragraph, the Sec-
retary shall appoint another individual in the same man-
ner. 
‘‘(D) The selection of the members, and the activities, 
of independent review boards under this paragraph are not 
subject to the Federal Advisory Committee Act (5 U.S.C. 
App.).
‘‘(E) If funds are available, the Secretary shall provide 
compensation to an individual for service as a member of 
an independent review board under this paragraph, at a 
rate not to exceed the daily equivalent of the maximum an-
nual rate of basic pay for grade GS–14 of the General 
Schedule for each day (including travel time) during which 
the individual is engaged in the actual performance of du-
ties as a member of such board. 
‘‘(F) The Secretary may not delegate the authority to 
make appointments under this paragraph to any official 
who is below the level of the Director of the United States 
Fish and Wildlife Service or the Assistant Administrator 
for Fisheries of the National Oceanic and Atmospheric Ad-
ministration. 
‘‘(4)(A) Each independent review board under this 
subsection shall provide to the Secretary, within 90 days 
after the completion of appointment of the board, the opin-
ion of the board regarding all relevant scientific informa-
tion and assumptions relating to the taxonomy, population 
models, and supportive biological and ecological informa-
tion for the species in question. 
‘‘(B) The Secretary shall—
‘‘(i) develop a protocol for the conduct of sci-
entific independent review under this subsection, 
that—
‘‘(I) includes review of the adequacy of any 
scientific methodology used to support an action 
and the validity of any conclusions drawn from 
data used to support an action; and
‘‘(II) is modeled after applicable National 
Academy of Sciences policies and guidelines for 
report reviews; and 
‘‘(ii) provide to each independent review board 
established under this subsection clear guidelines as to 
the conduct of its review consistent with that protocol. 
‘‘(5) If an independent review board under this sub-
section makes a recommendation regarding a covered ac-
tion, the Secretary shall, within 90 days after receiving the 
recommendation, evaluate and consider the information 
that results from the review by the board, and shall include 
in the rulemaking record for the covered action—
‘‘(A) a summary of the results of the review by 
the board; and 
‘‘(B) in a case in which the recommendation of 
a majority of the members of the board is not fol-
lowed, an explanation of why the recommendation 
was not followed. 
‘‘(6) The report of each independent review board 
under this subsection shall be included in the rulemaking 
record of any regulation with respect to which the board
(B) in clause (ii) by striking ‘‘one-year’’ 
and inserting ‘‘18-month’’; and 
(C) in clause (iii) by striking ‘‘one-year’’ 
and inserting ‘‘18-month’’; and 
(3) in subparagraph (C)(ii) by striking ‘‘one-
year’’ and inserting ‘‘18-month’’. 
SEC. 4. IMPROVED INTERAGENCY COOPERATION. 
(a) USE OF INFORMATION PROVIDED BY STATES.—
Section 7(b)(1) of the Endangered Species Act of 1973 (16 
U.S.C. 1536(b)(1)) is amended by adding at the end the 
following: 
‘‘(C) In conducting a consultation under subsection 
(a)(2), the Secretary shall actively solicit and consider in-
formation from the State agency in each affected State.’’. 
(b) OPPORTUNITY TO PARTICIPATE
IN CONSULTA-
TIONS.—Section 7(b)(1) of the Endangered Species Act of 
1973 (16 U.S.C. 1536(b)(1)) (as amended by subsection (a)) 
is further amended by adding at the end the following: 
‘‘(D)(i) In conducting a consultation with a Federal 
agency under subsection (a)(2), the Secretary and the head 
of the agency shall provide any person who has sought au-
thorization or funding from a Federal agency for an action 
that is the subject of the consultation, the opportunity to—
‘‘(I) before the development of a draft biological 
opinion, submit and discuss with the Secretary and
the Federal agency information relevant to the effect 
of the proposed action on the species and reasonable 
and prudent alternatives that the Federal agency and 
the person can take to avoid violation of subsection 
(a)(2), including any such alternatives proposed by 
the person; 
‘‘(II) receive information, on request, subject to 
the exemptions specified in section 552(b) of title 5, 
United States Code, on the status of the species, 
threats to the species, and conservation measures, used 
by the Secretary to develop the draft biological opin-
ion and the final biological opinion, including any 
associated incidental taking statements; and 
‘‘(III) receive a copy of the draft biological opin-
ion from the Federal agency and, before issuance of 
the final biological opinion, submit comments on the 
draft biological opinion and discuss with the Sec-
retary and the Federal agency the basis for any find-
ing in the draft biological opinion. 
‘‘(ii) If alternatives are proposed by a person under 
clause (i) and the Secretary does not include the alter-
natives in the final biological opinion, the Secretary shall 
provide to the person reasonable justification, based on the 
best scientific and commercial data available, why those al-
ternatives were not included in the opinion.
‘‘(iii) Comments and other information submitted to, 
or received from, any person (pursuant to clause (i)) who 
seeks authorization or funding for an action shall be main-
tained in a file for that action by the Secretary and shall 
be made available to the public (subject to the exemptions 
specified in section 552(b) of title 5, United States Code).’’.
Union Calendar No. 471
107TH CONGRESS 
2D SESSION 
H. R. 4840
[Report No. 107–751] 
A BILL 
To amend the Endangered Species Act of 1973 to 
ensure the use of sound science in the implemen-
tation of that Act. 
OCTOBER 15, 2002
Reported with an amendment, committed to the Com-
mittee of the Whole House on the State of the Union, 
and ordered to be printed