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.

SECTION 1. SHORT TITLE.

     This Act may be cited as the ``Endangered Species Data Quality Act 
of 2004''.

SEC. 2. SOUND SCIENCE.

    (a) Best Scientific and Commercial Data Available.--
            (1) In general.--Section 3 of the Endangered Species Act of 
        1973 (16 U.S.C. 1532) is amended--
                    (A) by amending the section heading to read as 
                follows:

``SEC. 3. DEFINITIONS AND GENERAL PROVISIONS.''.

                    (B) by striking ``For the purposes of this Act--'' 
                and inserting the following:
    ``(a) Definitions.--In this Act:''; and
                    (C) by adding at the end the following:
    ``(b) Use of Certain Data.--In any case in which the Secretary is 
required by this Act to use the best scientific and commercial data 
available or the best scientific data available, the Secretary shall--
            ``(1) ensure that such data comply with guidelines issued 
        under section 515 of the Treasury and General Government 
        Appropriations Act, 2001 (Public Law 106-554; 114 Stat. 2763A-
        171) by the Director of the Office of Management and Budget, 
        and any guidance issued by the Secretary pursuant to such 
        guidelines, except as provided in this Act;
            ``(2) ensure that such data include timely field survey 
        data to the extent such data are available; and
            ``(3) give greater weight to interpretations of data 
        derived from or verified by timely field work (commonly 
        referred to as `empirical data') that have been subjected to 
        peer-review.''.
            (2) Conforming amendment.--The table of contents in the 
        first section of the Endangered Species Act of 1973 is amended 
        by striking the item relating to section 3 and inserting the 
        following:

``Sec. 3. Definitions and general provisions.''.
    (b) 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 scientific data to 
        support listing.--Not later than 1 year after the date of the 
        enactment of this paragraph, the Secretary shall promulgate 
        regulations that establish criteria that must be met in order 
        to determine under this section that data is the best 
        scientific and commercial data available and for best 
        scientific data available to be used as the basis of a 
        determination under this section that a species is an 
        endangered species or a threatened species.
            ``(10) Field data.--
                    ``(A) Requirement.--The Secretary may not determine 
                that a species is an endangered species or a threatened 
                species unless the determination or designation, 
                respectively, is supported by data obtained by timely 
                fields.
                    ``(B) Data from real property owners and 
                operators.--The Secretary shall--
                            ``(i) accept data during the appropriate 
                        public comment period regarding the status of a 
                        species that is collected by an individual who 
                        is an owner of real property or who holds or is 
                        an applicant for a contract, lease, or other 
                        permit for real property through observation of 
                        the species on the real property; and
                            ``(ii) acknowledge receipt of data 
                        submitted under clause (i) and include such 
                        data in the rulemaking record compiled under 
                        this section for any determination that the 
                        species is an endangered species or a 
                        threatened species.''.
    (c) Use of Sound Science in Recovery Planning.--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) Additional data.--
                    ``(A) Identification.--The Secretary shall--
                            ``(i) identify and publish in the Federal 
                        Register with the notice of a proposed 
                        regulation published pursuant to subsection 
                        (b)(5)(A)(i), and with notice of any final 
                        regulation published pursuant to subsection 
                        (b)(6), a description of additional scientific 
                        and commercial data that would assist in the 
                        preparation of a recovery plan;
                            ``(ii) invite any person to submit such 
                        data to the Secretary; and
                            ``(iii) describe the steps that the 
                        Secretary plans to take to acquire additional 
                        data.
                    ``(B) Consideration.--Data identified and obtained 
                under subparagraph (A) shall be considered by the 
                recovery team and the Secretary in the preparation of 
                the recovery plan in accordance 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 Requirements.--
            ``(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 
                        endangered species or a threatened species 
                        under subsection (a)(1);
                            ``(ii) a proposed determination under 
                        subsection (a)(1) that would change the status 
                        of a species as an endangered species or a 
                        threatened species or would remove such a 
                        species 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); and
                            ``(iv) the determination that a proposed 
                        action is likely to jeopardize the continued 
                        existence of a listed species, including the 
                        proposal of any reasonable and prudent 
                        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 
                        subject of the review; and
                            ``(iii) who has not advocated a position, 
                        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 
                        covered action with respect to the affected 
                        species.
                    ``(C) Conflict of interest.--The term `conflict of 
                interest'--
                            ``(i) shall have such meaning as is 
                        established 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 employment.
            ``(2) Recommendation of independent reviewers.--The 
        Secretary shall solicit recommendations 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 paragraph (2), 3 qualified individuals who shall review 
        and report to the Secretary on the scientific information and 
        analyses on which the covered action is based.
            ``(B) The selection and activities of the independent 
        reviewers appointed pursuant to this paragraph 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 maximum annual rate of basic pay for 
        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 an independent reviewer.
            ``(4) Information for review.--The Secretary shall transmit 
        to the independent reviewers all available 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 Secretary, within 3 months after 
        the transmission of the data under paragraph (4), their reviews 
        regarding all relevant scientific information and assumptions 
        relating to the taxonomy, population models, and supportive 
        biological and ecological information for the species in 
        question.
            ``(6) Notice of data availability.--
                    ``(A) Following receipt of the reviews provided 
                under paragraph (5) and not less than 30 days before 
                making the final decision on a covered 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 decision 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 additional 
                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 reasons why such 
                information should be so considered.
                    ``(C) The Secretary shall explain, in the notice of 
                final covered action with respect to a covered action 
                described in paragraph (1)(A)(i) or (ii), why 
                information identified under subparagraph (B) did or 
                did not qualify as the best scientific and commercial 
                data available.
                    ``(D) The Secretary shall identify the data that 
                qualified as the best scientific and commercial 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 paragraph (5) and include in 
        the final determination--
                    ``(A) a summary of each independent review; and
                    ``(B) in any case in which the Secretary does not 
                accept a recommendation of an independent 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 included 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 conducting 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 Consultations.--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 materially affected by an agency 
                        action that is the subject of the 
                        consultation--
                                    ``(I) the opportunity, before the 
                                development of a draft biological 
                                opinion, to submit and discuss with the 
                                Secretary and the Federal agency 
                                information 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 necessary to complete the 
                                consultation;
                                    ``(II) 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 opinion and the final 
                                biological opinion, including any 
                                associated statement under subsection 
                                (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 
                                Federal agency and, before issuance of 
                                the final biological opinion and 
                                statement, the opportunity to submit 
                                comments on the draft biological 
                                opinion and statement 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 explain 
                        to the person why those alternatives were not 
                        included in the opinion.
                            ``(iii) Public access to information.--
                        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 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.''.

Summary: Endangered Species Data Quality Act of 2004 - (Sec. 2) Amends the Endangered Species Act of 1973 to direct the Secretary of the Interior, when required to use the best scientific and commercial data available or the best scientific data available in determining that a species is an endangered or threatened species, to: (1) ensure that such data complies with specified guidelines and includes timely field survey data to the extent such data is available; and (2) give greater weight to scientific and commercial data that is empirical or that has been field-tested or peer-reviewed. Directs the Secretary to promulgate regulations that establish criteria for selecting and using such data. Prohibits the Secretary from determining that a species is endangered or threatened unless the determination is supported by timely field data. Requires the Secretary to include in the rule-making record of such a determination data collected by real property owners or persons holding or applying for contracts, leases, or other permits for real property. Requires the Secretary to publish, with notice of a proposed or final regulation, a description of additional scientific and commercial data that would assist in the preparation of a recovery plan.

(Sec. 3) Directs the Secretary to: (1) solicit recommendations from the National Academy of Sciences and the governors of affected States for qualified individuals to serve as independent reviewers for "covered actions" (defined to include proposed listings, delistings, or reclassifications of endangered or protected species, the development of recovery plans, and jeopardy determinations); and (2) appoint from such list three individuals who shall report to the Secretary on the scientific information and analyses on which a covered action is based.

Requires: (1) the Secretary to transmit to the independent reviewers all available scientific and commercial data in the administrative record with regard to an action; and (2) the reviewers to provide the Secretary with their response within three months of such transmission.

Directs the Secretary to: (1) publish notice of the draft determination regarding data on which a final determination will be based and provide an opportunity for public comment following receipt of the reviewers' response; and (2) include in the final determination a summary of each independent review (and, if reviewers' recommendations are rejected, an explanation for that decision).

(Sec. 4) Requires the Secretary, when consulting with a Federal agency to determine whether agency action will jeopardize an endangered or threatened species or destroy the critical habitat of such species, to: (1) actively solicit and consider information provided by governors of States where the agency action is located; (2) provide governors of States otherwise affected by such action with an opportunity to submit information; and (3) allow any person who has sought agency authorization or funding for an action to participate in related consultations and to make related comments or other information publicly available.