I
107TH CONGRESS
2D SESSION
H. R. 4840
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
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
AVAILABLE
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 petition referred to in paragraph (3)(A),’’
after ‘‘determinations 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 amend-
ed 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 En-
dangered 
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 nor-
mal 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 that the petitioned action may be warranted.’’.
(2) REQUIREMENT FOR CONSIDERATION OF PE-
TITION.—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
preceding clause (i), by inserting ‘‘and contains
the information required under clauses (i) and
(ii) of subparagraph (E)’’ after ‘‘may be war-
ranted’’.
(d) USE OF SOUND SCIENCE IN LISTING.—Section
4(b) of the Endangered Species Act of 1973 (16 U.S.C.
1533(b)) is amended by adding at the end the following:
‘‘(9) ESTABLISHMENT OF CRITERIA FOR SCI-
ENTIFIC STUDIES TO SUPPORT LISTING.—Not later
than 1 year after the date of enactment of this para-
graph, the Secretary shall promulgate regulations
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.
‘‘(10) FIELD DATA.—
‘‘(A) REQUIREMENT.—The Secretary may
not determine that a species is an endangered
species or a threatened species unless data col-
lected in the field on the species concerned sup-
ports the determination.
‘‘(B) DATA
FROM
LANDOWNERS.—The
Secretary shall—
‘‘(i) accept and acknowledge receipt of
data regarding 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 rule-
making record compiled for any determina-
tion that the species is an endangered spe-
cies 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) DEFINITIONS.—In this subsection:
‘‘(A) ACTION.—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 sub-
section (a) that an endangered species or
a threatened species be removed from any
list published under subsection (c)(1);
‘‘(iii) the development of a recovery
plan for a threatened species or endan-
gered species under subsection (f); and
‘‘(iv) the determination that a pro-
posed action is likely to jeopardize the con-
tinued existence of a listed species and the
proposal of any reasonable and prudent al-
ternatives by the Secretary under section
7(b)(3), if the Secretary finds that—
‘‘(I) there is significant disagree-
ment regarding that determination or
proposal; or
‘‘(II) that determination or pro-
posal may have significant economic
impact.
‘‘(B) QUALIFIED INDIVIDUAL.—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.
‘‘(2) LIST OF INDEPENDENT SCIENTIFIC RE-
VIEWERS.—The Secretary shall—
‘‘(A) maintain a list of qualified individuals
who are available to participate on independent
review boards under this subsection;
‘‘(B) seek nominations of individuals to
participate on such boards (upon appointment
by the Secretary), through the Federal Reg-
ister, scientific and commercial journals, and
the National Academy of Sciences and other
such institutions; and
‘‘(C) update such list every two years.
‘‘(3) APPOINTMENT OF INDEPENDENT REVIEW
BOARDS.—(A) Before any covered action becomes
final, the Secretary shall appoint an independent re-
view board in accordance with this section that shall
review and report to the Secretary in writing on the
scientific information and analyses on which the cov-
ered action is based.
‘‘(B) Each independent review board under this
paragraph 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 Governor of a State in which the species
concerned is located.
‘‘(C) If any individual declines appointment to
an independent review board under this paragraph,
the Secretary shall appoint another individual in the
same manner.
‘‘(D) The selection of the members, and the ac-
tivities, of independent review boards under this
paragraph are not subject to the Federal Advisory
Committee Act (5 U.S.C. App.).
‘‘(E) The Secretary shall provide compensation
to an individual for service as a member of an inde-
pendent review board under this paragraph, at a
rate not to exceed the daily equivalent of the max-
imum annual 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 duties as a member of such
board.
‘‘(F) The Secretary may not delegate the au-
thority to make appointments under this paragraph
to any official who—
‘‘(i) is below the level of the Director of the
United States Fish and Wildlife Service; or
‘‘(ii) has not been confirmed by the Senate.
‘‘(4) OPINIONS
OF
REVIEWERS.—(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 opinion
of the board regarding all relevant scientific infor-
mation and assumptions relating to the taxonomy,
population models, and supportive biological and ec-
ological information for the species in question.
‘‘(B) The Secretary shall—
‘‘(i) develop a protocol for the conduct of
scientific independent review under this sub-
section that 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) provide to each independent review
board established under this subsection clear
guidelines as to the conduct of its review con-
sistent with that protocol.
‘‘(5) CONSIDERATION
OF
RESULTS
OF
RE-
VIEW.—If an independent review board under this
subsection makes a recommendation regarding a
covered action, 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 re-
view by the board; and
‘‘(B) in a case in which the recommenda-
tion of a majority of the members of the board
is not followed, an explanation of why the rec-
ommendation was not followed.
‘‘(6) INCLUSION OF REPORT IN RULEMAKING
RECORD.—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 is convened, and shall be available
section (a)) is further amended by adding at the end the
following:
‘‘(D) OPPORTUNITY
TO
PARTICIPATE
IN
CONSULTATIONS.—
‘‘(i) IN
GENERAL.—In conducting a
consultation under subsection (a)(2), the
Secretary shall provide any person who has
sought authorization 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 pru-
dent alternatives that the Federal
agency and the person can take to
avoid violation of subsection (a)(2),
including any such alternatives pro-
posed by the person;
‘‘(II) receive information, on re-
quest, subject to the exemptions speci-
fied 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 biologi-
cal opinion and the final biological
opinion, including any associated inci-
dental taking statements; and
‘‘(III) receive a copy of the draft
biological opinion from the Federal
agency and, before issuance of the
final biological opinion, submit com-
ments on the draft biological opinion
and discuss with the Secretary and
the Federal agency the basis for any
finding in the draft biological opinion.
‘‘(ii) EXPLANATION.—If alternatives
are proposed by a person under clause (i)
and the Secretary does not include the al-
ternatives 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 alternatives were not included in
the opinion.
‘‘(iii) PUBLIC
ACCESS
TO
INFORMA-
TION.—Comments and other information
submitted to, or received from, any person
(pursuant to clause (i)) who seeks author-
ization or funding for an action shall be
maintained in a file for that action by the
Secretary and shall be made available to
the public (subject to the exemptions speci-
fied in section 552(b) of title 5, United
States Code).’’.
Æ