I
105TH CONGRESS
2D SESSION
H. R. 4556
To amend the Endangered Species Act of 1973 to reform the regulatory
process under that Act.
IN THE HOUSE OF REPRESENTATIVES
SEPTEMBER 11, 1998
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) 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 opportunity for an agency hearing in the
State in which the largest population of the species exists,
in accordance with sections 556 and 557 of title 5, United
States Code. Such hearing shall be initiated by the Sec-
retary not later than 1 year after publication of notice of
proposed rulemaking, and shall be of not more than 30
days in duration.’’.
(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).