‘‘(iii) describe the steps that the Sec-
retary plans to take to acquire additional 
data. 
‘‘(B) CONSIDERATION.—Data identified and 
obtained under subparagraph (A) shall be con-
sidered by the recovery team and the Secretary 
in the preparation of the recovery plan in ac-
cordance with section 5.’’. 
SEC. 3. PEER REVIEW. 
Section 4 of the Endangered Species 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) COVERED ACTION.—The term ‘covered 
action’ means— 
‘‘(i) a proposed determination under 
subsection (a)(1) that a species is an endan-
gered species or a threatened species under 
subsection (a)(1); 
‘‘(ii) a proposed determination under 
subsection (a)(1) that would change the sta-
tus of a species as an endangered species or 
a threatened species or would remove such a
species from any list published under sub-
section (c)(1); 
‘‘(iii) the development of a recovery 
plan for a threatened species or endangered 
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, includ-
ing the proposal of any reasonable and pru-
dent alternatives by the Secretary under 
section 7(b)(3). 
‘‘(B) QUALIFIED
INDIVIDUAL.—The term 
‘qualified individual’ means an individual— 
‘‘(i) who through publication of peer- 
reviewed 
scientific 
literature 
or 
other 
means, has demonstrated scientific expertise 
on the species or a similar species or other 
scientific expertise relevant to the covered 
action; 
‘‘(ii) who does not have, or represent 
any person with, a conflict of interest with 
respect to the covered action that is the sub-
ject of the review; and 
‘‘(iii) who has not advocated a posi-
tion, and is not employed by a person who
has advocated a position, with respect to the 
outcome of the covered action that is the 
subject of the review, or of any previous cov-
ered action with respect to the affected spe-
cies. 
‘‘(C) CONFLICT
OF
INTEREST.—The term 
‘conflict of interest’— 
‘‘(i) shall have such meaning as is es-
tablished by regulations as shall be issued 
by the Secretary; and 
‘‘(ii) shall include, in accordance with 
such regulations, direct financial interests 
in the outcome of the action that will be the 
subject of the review, including consulting 
arrangements, grants, honoraria, or em-
ployment. 
‘‘(2) RECOMMENDATION
OF
INDEPENDENT
RE-
VIEWERS.—The Secretary shall solicit recommenda-
tions from the National Academy of Sciences and the 
governors of affected States of qualified individuals to 
serve as independent reviewers for a covered action. 
‘‘(3) APPOINTMENT OF INDEPENDENT SCIENTIFIC 
REVIEWERS.—(A) Before making the final decision on 
any covered action, the Secretary shall appoint, from 
among the individuals recommended under para-
graph (2), 3 qualified individuals who shall review 
and report to the Secretary on the scientific informa-
tion and analyses on which the covered action is 
based. 
‘‘(B) The selection and activities of the inde-
pendent reviewers appointed pursuant to this para-
graph shall not be subject to the Federal Advisory 
Committee Act (5 U.S.C. App.). 
‘‘(C) If funds are available, the Secretary shall 
provide compensation to an individual for service as 
an independent reviewer under this paragraph, at a 
rate not to exceed the daily equivalent of the max-
imum annual rate of basic pay for GS–14 of the Gen-
eral Schedule for each day (including travel time) 
during which the individual is engaged in the actual 
performance of duties as an independent reviewer. 
‘‘(4) INFORMATION FOR REVIEW.—The Secretary 
shall transmit to the independent reviewers all avail-
able scientific and commercial data identified in the 
administrative record for the action at the time of the 
transmission. 
‘‘(5) RESPONSE OF INDEPENDENT REVIEWERS.— 
The independent reviewers shall provide the Sec-
retary, within 3 months after the transmission of the 
data under paragraph (4), their reviews regarding all
relevant scientific information and assumptions relat-
ing to the taxonomy, population models, and sup-
portive biological and ecological information for the 
species in question. 
‘‘(6) NOTICE OF DATA AVAILABILITY.— 
‘‘(A) Following receipt of the reviews pro-
vided under paragraph (5) and not less than 30 
days before making the final decision on a cov-
ered action described in paragraph (1)(A)(i) or 
(ii), the Secretary shall publish a notice of the 
availability of the draft determination of which 
data available qualify as the best scientific and 
commercial data available on which the final de-
cision will be based and which do not, including 
any ongoing assessments that are expected to 
produce such data. 
‘‘(B) The Secretary shall provide the public 
with not less than 15 days to identify any addi-
tional information that should be considered as 
best scientific and commercial data available 
data with respect to a covered action described 
in paragraph (1)(A)(i) or (ii), including the rea-
sons why such information should be so consid-
ered.
‘‘(C) The Secretary shall explain, in the no-
tice of final covered action with respect to a cov-
ered action described in paragraph (1)(A)(i) or 
(ii), why information identified under subpara-
graph (B) did or did not qualify as the best sci-
entific and commercial data available. 
‘‘(D) The Secretary shall identify the data 
that qualified as the best scientific and commer-
cial data available on which the final decision 
with respect to a covered action described in 
paragraph (1)(A)(iii) or (iv) is based in a final 
biological opinion or final recovery plan for the 
covered action. 
‘‘(7) FINAL
DETERMINATION.—The Secretary 
shall evaluate the reviews received pursuant to para-
graph (5) and include in the final determination— 
‘‘(A) a summary of each independent re-
view; and 
‘‘(B) in any case in which the Secretary 
does not accept a recommendation of an inde-
pendent reviewer with respect to data reviewed 
pursuant to this subsection, an explanation of 
why the recommendation was not followed. 
‘‘(8) PUBLIC NOTICE.—The reviews received by 
the Secretary pursuant to paragraph (5) shall be in-
cluded in the official record of the final decision on 
the action and shall be available for public review as 
soon as the final decision is issued.’’. 
SEC. 4. IMPROVED CONSULTATION. 
(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) USE OF STATE INFORMATION.—In con-
ducting a consultation under subsection (a)(2), 
the Secretary— 
‘‘(i) shall actively solicit and consider 
information from the governor of the State 
where the agency action is located; and 
‘‘(ii) shall provide an opportunity for 
the governor of any State otherwise affected 
by the agency action, as determined by the 
Secretary, to submit information.’’. 
(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) OPPORTUNITY
TO
PARTICIPATE
IN 
CONSULTATIONS.—
‘‘(i) IN
GENERAL.—In conducting a 
consultation under subsection (a)(2), the 
Secretary shall provide to any person who 
has sought authorization or funding from a 
Federal agency for an action that is the 
subject of the consultation or who holds or 
is an applicant for a Federal contract, 
lease, or other permit that may be materi-
ally affected by an agency action that is the 
subject of the consultation— 
‘‘(I) the opportunity, before the 
development of a draft biological opin-
ion, to submit and discuss with the 
Secretary and the Federal agency in-
formation relevant to the effect of the 
proposed action on the species and any 
actions that could serve as reasonable 
and prudent measures or reasonable 
and prudent alternatives in the event 
such measures or alternatives are nec-
essary to complete the consultation; 
‘‘(II) information, on request, sub-
ject to the exemptions specified in sec-
tion 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 de-
velop the draft biological opinion and 
the final biological opinion, including 
any associated statement under sub-
section (b)(4); and 
‘‘(III) a copy, on request, of the 
draft biological opinion, including any 
draft 
statement 
under 
subsection 
(b)(4), that was provided to the Fed-
eral agency and, before issuance of the 
final biological opinion and statement, 
the opportunity to submit comments on 
the draft biological opinion and state-
ment and to discuss with the Secretary 
and the Federal agency the basis for 
any finding in the draft biological 
opinion and statement. 
‘‘(ii) 
EXPLANATION.—If 
reasonable 
and prudent alternatives are proposed by a 
person under clause (i) and the Secretary 
does not include the alternatives in the final 
biological opinion, the Secretary shall ex-
plain to the person 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 specified 
in section 552(b) of title 5, United States 
Code).’’. 
Amend the title so as to read: ‘‘A bill to amend the 
Endangered Species Act of 1973 to provide guidance and 
direction on the development and use of data under that 
Act, and for other purposes.’’.
Union Calendar No. 479 
108TH CONGRESS 
2D SESSION 
H. R. 1662 
[Report No. 108–785] 
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. 
NOVEMBER 19, 2004 
Reported with amendments, committed to the Committee 
of the Whole House on the State of the Union, and or-
dered to be printed