I
107TH CONGRESS
2D SESSION
H. R. 3705
To amend the Endangered Species Act of 1973 to require the Secretary
of the Interior to use the best sound science available in implementing
the Endangered Species Act.
IN THE HOUSE OF REPRESENTATIVES
FEBRUARY 7, 2002
Mr. POMBO introduced the following bill; which was referred to the Committee
on Resources
A BILL
To amend the Endangered Species Act of 1973 to require
the Secretary of the Interior to use the best sound
science available in implementing the Endangered Spe-
cies 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 Saves
Species Act of 2002’’.
SEC. 2. AMENDMENT OF 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 a
section or other provision of the Endangered Species Act
of 1973 (16 U.S.C. 1531 et seq.).
SEC. 3. IMPROVING THE SCIENCE USED IN IMPLEMENTING
ENDANGERED SPECIES ACT OF 1973.
(a) CONTENTS OF PETITIONS.—Section 4(b)(3) (16
U.S.C. 1533(b)(3)) is amended by adding at the end the
following:
‘‘(E) A petition referred to in subparagraph (A) shall
contain each of the following:
‘‘(i) Clear and convincing evidence of each of
the following:
‘‘(I) The known and historic ranges of the
species.
‘‘(II) The most recent population estimates
and trends.
‘‘(III) The reason that the petitioned ac-
tion is warranted, including known or perceived
threats to the species.
‘‘(IV) The population of the species is de-
clining or has declined from historic population
levels and beyond normal population fluctua-
tions for the species.
‘‘(V) Any other information that the peti-
tioner considers appropriate.
‘‘(ii) A bibliography of scientific literature on
the species in support of the petition.
‘‘(iii) A description of all available data on the
historical and current range, population, and dis-
tribution of the species, an explanation of the meth-
odology used to collect the data, and an identifica-
tion of the location where the data can be re-
viewed.’’.
(b) NOTICE
OF PETITIONS.—Section 4(b)(3) (16
U.S.C. 1533(b)(3)) is amended by striking ‘‘(3)(A)’’ and
inserting the following:
‘‘(3)(A)(i) Within 30 days after receiving a petition
from an interested person under section 553(e) of title 5,
United States Code, to add a species to, or to remove a
species from, either list published under subsection (c), the
Secretary shall—
‘‘(I) publish in the Federal Register a notice in-
dicating receipt of such petition and inviting inter-
ested persons to submit any relevant scientific infor-
mation regarding the status of the species con-
cerned;
‘‘(II) promptly publish the petition on the Inter-
net website of the United States Fish and Wildlife
Service;
‘‘(III) provide notice of such receipt to each pri-
vate owner of land or water on or in which the spe-
cies may exist by publication of such notice in an ap-
propriate newspaper of general circulation, except
that such notice shall be provided directly to each
such owner if the number of such owners is 100 or
less; and
‘‘(IV) notify the Governor of each State that
could be affected by the petition.
‘‘(ii)’’.
(c) INDEPENDENT
REVIEW
OF
PETITIONS
AND
FINDINGS REGARDING PETITIONS.—Section 4(b) (16
U.S.C. 1533(b)) is amended by adding at the end the fol-
lowing:
‘‘(9)(A)(i) After the Secretary makes a finding under
paragraph (3)(A) the Secretary shall appoint and convene
an independent review board to conduct an independent
scientific review of the data included in the petition.
‘‘(ii) Within 60 days after the date the Secretary con-
venes the independent review board, the board shall pro-
vide to the Secretary its findings regarding the following:
‘‘(I) 3 shall be appointed by the Secretary from
the list under subparagraph (E); 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.
‘‘(iii) 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.
‘‘(iv) The selection of the members, and activities, of
independent review boards under this paragraph is not
subject to the Federal Advisory Committee Act (5 U.S.C.
App.).
‘‘(v) The identities of the members of independent re-
view boards under this paragraph shall not be made pub-
lic.
‘‘(vi) The Secretary shall provide compensation to an
individual for service as a member of an independent re-
view board under this paragraph, at a rate equal to not
to exceed the daily equivalent of the maximum annual rate
of basic pay for grade GS–12 of the General Schedule for
each day (including travel time) during which the indi-
vidual is engaged in the actual performance of duties as
a member of such board.
‘‘(vii) In this subparagraph, the term ‘qualified indi-
vidual’ means an individual with expertise in the biological
sciences—
‘‘(I) who is by virtue of advanced education,
training, or avocational, academic, commercial, re-
search, or other experience competent to review the
adequacy of any scientific methodology supporting a
finding by the Secretary and the validity of any con-
clusions drawn from data used to support the find-
ing;
‘‘(II) who is not a participant in any petition or
proposed or final determination before the Secretary;
‘‘(III) who is not, and has not been, employed
by or under contract to the Secretary or the State
in which is located the species that is the subject of
an independent scientific review in which the indi-
vidual participates, for work related to the finding or
species under consideration in such review; and
‘‘(V) who has no direct financial interest, and
is not employed by any person with a direct financial
interest, in the finding under consideration in such
review.
‘‘(G) The Secretary shall publish, with any final regu-
lation implementing an action with respect to which an
independent scientific review board is required under this
paragraph to be convened, a summary of the report of the
independent review board, noting points of disagreement
between the reviewers, if any, and the response of the Sec-
retary to the report.
‘‘(H) The report of each independent scientific review
board required under this paragraph shall be included in
the official record of any regulation with respect to which
the board is convened and shall be available for public re-
view 30 days before the close of the period for comment
on the regulation.’’.
(d) INDEPENDENT REVIEW
OF JEOPARDY OPIN-
IONS.—Section 7(b) (16 U.S.C. 1536(b)) is amended by
adding at the end the following:
‘‘(5)(A)(i) Within 30 days after the date on which
the Secretary issues a statement under paragraph (3) that
a proposed action is likely to jeopardize the continued ex-
istence of a species included in a list under section 4(c),
any person may submit to the Secretary a written request
for an independent scientific review of the scientific infor-
mation used in making such statement and any reasonable
and prudent measures the Secretary proposes in the state-
ment.
‘‘(ii) Promptly after receiving such a request, the Sec-
retary shall appoint and convene an independent review
board to conduct such an independent scientific review.
‘‘(B) Within 90 days after the date the Secretary con-
venes the independent review board, the board shall pro-
vide to the Secretary its findings regarding the following:
‘‘(I) The sufficiency of all relevant scientific in-
formation and assumptions in such statement relat-
ing to the taxonomy, population models, and sup-
portive biological and ecological information regard-
ing the species that is the subject of the statement.
‘‘(II) Whether the methodology and analysis
supporting the statement meet the standards of the
academic and scientific community.
‘‘(III) Whether the statement is supported by
clear and convincing evidence.
‘‘(IV) Whether the review board concurs in the
statement.
‘‘(C) The Secretary shall—
‘‘(i) publish in the Federal Register each find-
ing by an independent review board under subpara-
graph (A) or (B);
‘‘(ii) post each such finding on the Internet
website of the United States Fish and Wildlife Serv-
ice; and
‘‘(iii) otherwise make each such finding avail-
able to the public.
‘‘(D) If an independent review board finds under sub-
paragraph (B) that it does not concur in the statement
of the Secretary, the Secretary shall—
‘‘(i) revoke the statement; or
‘‘(ii) publish in the Federal Register an expla-
nation of why the finding of the review board is in-
correct, with clear and convincing evidence sup-
porting such explanation.
‘‘(E) The Secretary shall—
‘‘(i) maintain a list of individuals who are avail-
able to participate on independent review boards
under this paragraph;
‘‘(ii) 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
‘‘(iii) update such list every two years.
‘‘(F)(i) An independent review board under subpara-
graph (A) shall be composed of 5 members, of which—
‘‘(I) 3 shall be appointed by the Secretary from
the list under subparagraph (E); 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.
‘‘(ii) 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.
‘‘(iii) The selection of the members, and activities, of
independent review boards under this paragraph is not
subject to the Federal Advisory Committee Act (5 U.S.C.
App.).
‘‘(iv) The identities of the members of independent
review boards under this paragraph shall not be made
public.
‘‘(v) The Secretary shall provide compensation to an
individual for service as a member of an independent re-
view board under this paragraph, at a rate equal to not
to exceed the daily equivalent of the maximum annual rate
of basic pay for grade GS–12 of the General Schedule level
for each day (including travel time) during which the indi-
vidual is engaged in the actual performance of duties as
a member of such board.
‘‘(vi) In this subparagraph, the term ‘qualified indi-
vidual’ means an individual with expertise in the biological
sciences—
‘‘(I) who is by virtue of advanced education,
training, or avocational, academic, commercial, re-
search, or other experience competent to review the
adequacy of any scientific methodology supporting a
statement by the Secretary and the validity of any
conclusions drawn from data used to support the
statement;
‘‘(II) who is not a participant in any petition or
proposed or final determination before the Secretary;
‘‘(III) who is not, and has not been, employed
by or under contract to the Secretary or the State
in which is located the species that is the subject of
an independent scientific review in which the indi-
vidual participates, for work related to a statement
or species under consideration in such review; and
‘‘(V) who has no direct financial interest, and
is not employed by any person with a direct financial
interest, in any statement under consideration in
such review.’’.
‘‘(G) The Secretary shall publish, with any final regu-
lation implementing an action with respect to which an
independent scientific review board is required under this
paragraph to be convened, a summary of the report of the
independent review board, noting points of disagreement