[House Report 115-561]
[From the U.S. Government Publishing Office]
115th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 115-561
======================================================================
STATE, TRIBAL, AND LOCAL SPECIES TRANSPARENCY AND RECOVERY ACT
_______
February 15, 2018.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Bishop of Utah, from the Committee on Natural Resources, submitted
the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 1274]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 1274) to amend the Endangered Species Act of
1973 to require making available to States affected by
determinations that species are endangered species or
threatened species all data that is the basis of such
determinations, and for other purposes, having considered the
same, report favorably thereon with an amendment and recommend
that the bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``State, Tribal, and Local Species
Transparency and Recovery Act''.
SEC. 2. DECISIONAL TRANSPARENCY AND USE OF STATE, TRIBAL, AND LOCAL
INFORMATION.
(a) Requiring Decisional Transparency With Affected States.--Section
6(a) of the Endangered Species Act of 1973 (16 U.S.C. 1535(a)) is
amended--
(1) by inserting ``(1)'' before the first sentence; and
(2) by striking ``Such cooperation shall include'' and
inserting the following:
``(2) Such cooperation shall include--
``(A) before making a determination under section 4(a),
providing to States affected by such determination all data
that is the basis of the determination; and
``(B)''.
(b) Ensuring Use of State, Tribal, and Local Information.--Section 3
of the Endangered Species Act of 1973 (16 U.S.C. 1532) is amended--
(1) by redesignating paragraphs (2) through (10) as
paragraphs (3) through (11), respectively; and
(2) by inserting after paragraph (1) the following:
``(2) The term `best scientific and commercial data available'
includes all such data submitted by a State, tribal, or county
government.''.
(c) Requirement to Publish on the Internet the Basis for Listings.--
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) The Secretary shall make publicly available on the Internet the
best scientific and commercial data available that are the basis for
each regulation, including each proposed regulation, promulgated under
subsection (a)(1), except that, at the request of a Governor or
legislature of a State, the Secretary shall not make available under
this paragraph information regarding which the State has determined
public disclosure is prohibited by a law of that State relating to the
protection of personal information.''.
Purpose of the Bill
The purpose of H.R. 1274 is to amend the Endangered Species
Act of 1973 to require making available to States affected by
determinations that species are endangered species or
threatened species all data that is the basis of such
determinations.
Background and Need for Legislation
Section 6 of the Endangered Species Act of 1973 (ESA, 16
U.S.C. 1535) requires federal cooperation with the States ``to
the maximum extent practicable'' in listing decisions, yet
federal agencies often duplicate analyses and conservation
plans already generated by States. Moreover, data provided by
States is sometimes ignored by the federal agencies in ESA
activities. Species listings and critical habitat designations
have the potential to impact entire communities and industries
and can place burdens upon State governments. States, tribes,
and county governments are well situated to participate in
decisions regarding endangered or threatened species
determinations or their ensuing critical habitat designations
in a meaningful and productive manner. However, in practice,
federal cooperation with States, tribes, and local governments
does not always occur under the ESA.
States have testified that the ESA, as currently
implemented, does not properly honor their ability to
participate to the maximum extent practicable in federal ESA
listing decisions. During a September 21, 2016, Natural
Resources Committee hearing on federal government management of
wolves, witnesses such as New Mexico Department of Game and
Fish Commissioner Alexandra Sandoval testified that her office
was not made privy to factors utilized by the federal
government in listing decisions that impact lands, communities,
and species within New Mexico.
States are the species managers prior to a listing decision
by the federal government and will become the managers of the
species after a delisting decision by the federal government.
States possess extensive, on-the-ground experience and
expertise in science-based wildlife management principles,
generation of applicable data, and the application of public
policy in managing wildlife as public assets.
Despite the expertise and willingness of State, local, and
tribal governments to participate in the ESA process, the
Department of the Interior and the Department of Commerce are
not required to disclose scientific information or the basis
they use in making listing or critical habitat decisions to the
States. They are also not required to utilize scientific data
generated by States, even though States often have actual data
that the federal agencies do not.
Local and county governments, particularly those in areas
with a significant portion of federally-owned lands within
their jurisdictional borders, have expressed concerns that
federal ESA-implementing agencies often ignore locally-
generated science and data provided to the federal agencies in
listing decisions. In testimony submitted by Garfield County
Commissioner Tom Jankovsky at a Natural Resources Committee
hearing in the 113th Congress, the accuracy of a map developed
by the U.S. Fish and Wildlife Service (FWS) for sage grouse
habitat in Colorado was questioned after the federal agency
refused the County's request to verify data used by the FWS.\1\
In more than one case, a court order has also been required to
obtain the data from federal officials, even though the data
was obtained through taxpayer-funded studies. Further testimony
submitted by Kent McMullen, Chairman of the Franklin County
Natural Resources Advisory Committee, raised the concern that a
key document used by FWS in its listing determination was an
unpublished manuscript that was inaccessible for public
review.\2\
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\1\Defining Species Conservation Success: Tribal, State and Local
Stewardship vs. Federal Courtroom Battles and Sue-and-Settle Practices:
Oversight Hearing Before the H. Comm. On Natural Resources, 113th Cong.
(2013) (written testimony of Tom Jankovsky, Garfield County, Colorado).
\2\Transparency and Sound Science Gone Extinct?: The Impacts of the
Obama Administration's Closed-Door Settlements on Endangered Species
and People: Oversight Hearing Before the H. Comm. On Natural Resources,
113th Cong. (2013) (testimony of Kent McMullen, Franklin County Natural
Resources Advisory Committee, at 21).
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Tribal governments also play a significant role in species
conservation and recovery activities and some have raised
concerns that tribal data and science are not factored into ESA
listing decisions. For example, in the Columbia and Snake
Rivers, where 13 populations of salmon are listed under the
ESA, tribal hatchery managers have successfully utilized
hatchery supplementation to enhance salmon and steelhead
recovery for several years. The Snake River fall chinook run
has rebounded to near-record levels due in large part to the
tribal hatchery programs. Though a federal court ordered the
National Marine Fisheries Service (NMFS) in 2001 to consider
hatchery salmon in populations proposed for ESA listing, NMFS
issued a revised policy that emphasized the ``negative
impacts'' of hatchery fish on naturally spawning fish, and
ignored tribal scientific data highlighting the positive
benefits that hatchery fish are having on recovering salmon in
the Northwest.\3\
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\3\Trout Unlimited v. Lohn, 559 F.3d 946 (9th Cir. 2009); 70 Fed.
Reg. 37, 204.
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H.R. 1274 would simply require FWS and NMFS to be
transparent in their use of data for ESA listing decisions,
both with their ESA Section 6 cooperation responsibilities with
States and with respecting valuable State, local and tribal
data to guide listing determinations that affect them and their
citizens. The bill ensures that States are afforded every
opportunity to provide input on laws, regulations, and policies
related to the implementation of the ESA before such laws,
regulations, and policies are final. This bill also would
ensure that the best scientific and commercial data available
for ESA listing decisions includes data from those closest to
the ground and most affected by the listings--the States, local
governments, and tribes.
Section-by-Section Analysis of Text as Ordered Reported
Section 1. Short title
The Act may be referred to as the State, Tribal, and Local
Species Transparency and Recovery Act.
Section 2. Decisional transparency and use of State, tribal, and local
information
Subsection (a) amends ESA Section 6 to require decisional
transparency with the States by requiring the relevant
Secretary to provide all data used in listing determinations to
affected States.
Subsection (b) ensures FWS or NMFS use of State, tribal,
and local information in listing decisions by clarifying that
the term ``best scientific and commercial data'' includes all
such data submitted by a State, tribal, or county government.
Subsection (c) requires FWS and NMFS to post on the
internet the ``best available commercial and scientific data''
that they use to support their ESA listing determinations
unless public disclosure is prohibited by a State law relating
to protection of personal information (as determined by the
affected State).
Committee Action
H.R. 1274 was introduced on March 1, 2017, by Congressman
Dan Newhouse (R-WA). The bill was referred to the Committee on
Natural Resources. On July 19, 2017, the Committee held a
hearing on the bill. On October 3, 2017, the Natural Resources
Committee met to consider the bill. Congressman Tom McClintock
(R-CA) offered an amendment designated 046; it was adopted by
voice vote. No further amendments were offered and the bill, as
amended, was ordered favorably reported to the House of
Representatives on October 4, 2017, by a roll call vote of 22
ayes and 14 noes, as follows:
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
Compliance With House Rule XIII and Congressional Budget Act
1. Cost of Legislation and the Congressional Budget Act.
With respect to the requirements of clause 3(c)(2) and (3) of
rule XIII of the Rules of the House of Representatives and
sections 308(a) and 402 of the Congressional Budget Act of
1974, the Committee has received the following estimate for the
bill from the Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, December 4, 2017.
Hon. Rob Bishop,
Chairman, Committee on Natural Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1274, the State,
Tribal, and Local Species Transparency and Recovery Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CB0 staff contact is Jeff LaFave.
Sincerely,
Keith Hall,
Director.
Enclosure.
H.R. 1274--State, Tribal, and Local Species Transparency and Recovery
Act
H.R. 1274 would require the Secretaries of the Departments
of the Interior and Commerce to make available to states the
data those departments use as the basis for each listing
determination made under the Endangered Species Act. Such
determinations are required to be based on the best scientific
and commercial data available. H.R. 1274 would clarify that
such data includes information provided by state, local, and
tribal governments. Using information from the affected
departments, CBO estimates that implementing the legislation
would have no significant effect on the federal budget.
Enacting H.R. 1274 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting H.R. 1274 would not increase
net direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2028.
H.R. 1274 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
The CBO staff contact for this estimate is Jeff LaFave. The
estimate was approved by H. Samuel Papenfuss, Deputy Assistant
Director for Budget Analysis.
2. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill is to amend the Endangered Species Act
of 1973 to require making available to States affected by
determinations that species are endangered species or
threatened species all data that is the basis of such
determinations.
Earmark Statement
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
Compliance With Public Law 104-4
This bill contains no unfunded mandates.
Compliance With H. Res. 5
Directed Rule Making. This bill does not contain any
directed rule makings.
Duplication of Existing Programs. This bill does not
establish or reauthorize a program of the federal government
known to be duplicative of another program. Such program was
not included in any report from the Government Accountability
Office to Congress pursuant to section 21 of Public Law 111-139
or identified in the most recent Catalog of Federal Domestic
Assistance published pursuant to the Federal Program
Information Act (Public Law 95-220, as amended by Public Law
98-169) as relating to other programs.
Preemption of State, Local or Tribal Law
This bill is not intended to preempt any State, local or
tribal law.
Changes in Existing Law
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
ENDANGERED SPECIES ACT OF 1973
* * * * * * *
definitions
Sec. 3. For the purposes of this Act--
(1) The term ``alternative courses of action'' means all
alternatives and thus is not limited to original project
objectives and agency jurisdiction.
(2) The term ``best scientific and commercial data
available'' includes all such data submitted by a State,
tribal, or county government.
[(2)] (3) The term ``commercial activity'' means all
activities of industry and trade, including, but not limited
to, the buying or selling of commodities and activities
conducted for the purpose of facilitating such buying and
selling: Provided, however, That it does not include
exhibitions of commodities by museums or similar cultural or
historical organizations.
[(3)] (4) The terms ``conserve,''``conserving,'' and
``conservation'' mean to use and the use of all methods and
procedures which are necessary to bring any endangered species
or threatened species to the point at which the measures
provided pursuant to this Act are no longer necessary. Such
methods and procedures include, but are not limited to, all
activities associated with scientific resources management such
as research, census, law enforcement, habitat acquisition and
maintenance, propagation, live trapping, and transplantation,
and, in the extraordinary case where population pressures
within a given ecosystem cannot be otherwise relieved, may
include regulated taking.
[(4)] (5) The term ``Convention'' means the Convention on
International Trade in Endangered Species of Wild Fauna and
Flora, signed on March 3, 1973, and the appendices thereto.
[(5)] (6)(A) The term ``critical habitat'' for a threatened
or endangered species means--
(i) the specific areas within the geographical area
occupied by the species, at the time it is listed in
accordance with the provisions of section 4 of this
Act, on which are found those physical or biological
features (I) essential to the conservation of the
species and (II) which may require special management
considerations or protection; and
(ii) specific areas outside the geographical area
occupied by the species at the time it is listed in
accordance with the provisions of section 4 of this
Act, upon a determination by the Secretary that such
areas are essential for the conservation of the
species.
(B) Critical habitat may be established for those species now
listed as threatened or endangered species for which no
critical habitat has heretofore been established as set forth
in subparagraph (A) of this paragraph.
(C) Except in those circumstances determined by the
Secretary, critical habitat shall not include the entire
geographical area which can be occupied by the threatened or
endangered species.
[(6)] (7) The term ``endangered species'' means any species
which is in danger of extinction throughout all or a
significant portion of its range other than a species of the
Class Insecta determined by the Secretary to constitute a pest
whose protection under the provisions of this Act would present
an overwhelming and overriding risk to man.
[(7)] (8) The term ``Federal agency'' means any department,
agency, or instrumentality of the United States.
[(8)] (9) The term ``fish or wildlife'' means any member of
the animal kingdom, including without limitation any mammal,
fish, bird (including any migratory, nonmigratory, or
endangered bird for which protection is also afforded by treaty
or other international agreement), amphibian, reptile, mollusk,
crustacean, arthropod or other invertebrate, and includes any
part, product, egg, or offspring thereof, or the dead body or
parts thereof.
[(9)] (10) The term ``foreign commerce'' includes, among
other things, any transaction--
(A) between persons within one foreign country;
(B) between persons in two or more foreign countries;
(C) between a person within the United States and a
person in a foreign country; or
(D) between persons within the United States, where
the fish and wildlife in question are moving in any
country or countries outside the United States.
[(10)] (11) The term ``import'' means to land on, bring into,
or introduce into or attempt to land on, bring into, or
introduce into, any place subject to the jurisdiction of the
United States, whether or not such landing, bringing, or
introduction constitutes an importation within the meaning of
the customs laws of the United States.
(12) The term ``permit or license applicant'' means, when
used with respect to an action of a Federal agency for which
exemption is sought under section 7, any person whose
application to such agency for a permit or license has been
denied primarily because of the application of section 7(a) to
such agency action.
(13) The term ``person'' means an individual, corporation,
partnership, trust, association, or any other private entity;
or any officer, employee, agent, department, or instrumentality
of the Federal Government, of any State, municipality, or
political subdivision of a State, or of any foreign government;
any State, municipality, or political subdivision of a State;
or any other entity subject to the jurisdiction of the United
States.
(14) The term ``plant'' means any member of the plant
kingdom, including seeds, roots and other parts thereof.
(15) The term ``Secretary'' means, except as otherwise herein
provided, the Secretary of the Interior or the Secretary of
Commerce as program responsibilities are vested pursuant to the
provisions of Reorganization Plan Numbered 4 of 1970; except
that with respect to the enforcement of the provisions of this
Act and the Convention which pertain to the importation or
exportation of terrestrial plants, the term also means the
Secretary of Agriculture.
(16) The term ``species'' includes any subspecies of fish or
wildlife or plants, and any distinct population segment of any
species of vertebrate fish or wildlife which interbreeds when
mature.
(17) The term ``State'' means any of the several States, the
District of Columbia, the Commonwealth of Puerto Rico, American
Samoa, the Virgin Islands, Guam, and the Trust Territory of the
Pacific Islands.
(18) The term ``State agency'' means any State agency,
department, board, commission, or other governmental entity
which is responsible for the management and conservation of
fish, plant, or wildlife resources within a State.
(19) The term ``take'' means to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or to attempt to
engage in any such conduct.
(20) The term ``threatened species'' means any species which
is likely to become an endangered species within the
foreseeable future throughout all or a significant portion of
its range.
(21) The term ``United States,'' when used in a geographical
context, includes all States.
determination of endangered species and threatened species
Sec. 4. (a) General.--(1) The Secretary shall by regulation
promulgated in accordance with subsection (b) determine whether
any species is an endangered species or a threatened species
because of any of the following factors:
(A) the present or threatened destruction,
modification, or curtailment of its habitat or range;
(B) overutilization for commercial, recreational,
scientific, or educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms;
or
(E) other natural or manmade factors affecting its
continued existence.
(2) With respect to any species over which program
responsibilities have been vested in the Secretary of Commerce
pursuant to Reorganization Plan Numbered 4 of 1970--
(A) in any case in which the Secretary of Commerce
determines that such species should--
(i) be listed as an endangered species or a
threatened species, or
(ii) be changed in status from a threatened
species to an endangered species, he shall so
inform the Secretary of the Interior, who shall
list such species in accordance with this
section;
(B) in any case in which the Secretary of Commerce
determines that such species should--
(i) be removed from any list published
pursuant to subsection (c) of this section, or
(ii) be changed in status from an endangered
species to a threatened species, he shall
recommend such action to the Secretary of the
Interior, and the Secretary of the Interior, if
he concurs in the recommendation, shall
implement such action; and
(C) the Secretary of the Interior may not list or
remove from any list any such species, and may not
change the status of any such species which are listed,
without a prior favorable determination made pursuant
to this section by the Secretary of Commerce.
(3)(A) The Secretary, by regulation promulgated in accordance
with subsection (b) and to the maximum extent prudent and
determinable--
(i) shall, concurrently with making a determination
under paragraph (1) that a species is an endangered
species or a threatened species, designate any habitat
of such species which is then considered to be critical
habitat; and
(ii) may, from time-to-time thereafter as
appropriate, revise such designation.
(B)(i) The Secretary shall not designate as critical habitat
any lands or other geographical areas owned or controlled by
the Department of Defense, or designated for its use, that are
subject to an integrated natural resources management plan
prepared under section 101 of the Sikes Act (16 U.S.C. 670a),
if the Secretary determines in writing that such plan provides
a benefit to the species for which critical habitat is proposed
for designation.
(ii) Nothing in this paragraph affects the requirement to
consult under section 7(a)(2) with respect to an agency action
(as that term is defined in that section).
(iii) Nothing in this paragraph affects the obligation of the
Department of Defense to comply with section 9, including the
prohibition preventing extinction and taking of endangered
species and threatened species.
(b) Basis for Determinations.--(1)(A) The Secretary shall
make determinations required by subsection (a)(1) solely on the
basis of the best scientific and commercial data available to
him after conducting a review of the status of the species and
after taking into account those efforts, if any, being made by
any State or foreign nation, or any political subdivision of a
State or foreign nation, to protect such species, whether by
predator control, protection of habitat and food supply, or
other conservation practices, within any area under its
jurisdiction, or on the high seas.
(B) In carrying out this section, the Secretary shall give
consideration to species which have been--
(i) designated as requiring protection from
unrestricted commerce by any foreign nation, or
pursuant to any international agreement; or
(ii) identified as in danger of extinction, or likely
to become so within the foreseeable future, by any
State agency or by any agency of a foreign nation that
is responsible for the conservation of fish or wildlife
or plants.
(2) The Secretary shall designate critical habitat, and make
revisions thereto, under subsection (a)(3) on the basis of the
best scientific data available and after taking into
consideration the economic impact, the impact on national
security, and any other relevant impact, of specifying any
particular area as critical habitat. The Secretary may exclude
any area from critical habitat if he determines that the
benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless he
determines, based on the best scientific and commercial data
available, that the failure to designate such area as critical
habitat will result in the extinction of the species concerned.
(3)(A) To the maximum extent practicable, within 90 days
after receiving the petition of 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 of the lists published
under subsection (c), the Secretary shall make a finding as to
whether the petition presents substantial scientific or
commercial information indicating that the petitioned action
may be warranted. If such a petition is found to present such
information, the Secretary shall promptly commence a review of
the status of the species concerned. The Secretary shall
promptly publish each finding made under this subparagraph in
the Federal Register.
(B) Within 12 months after receiving a petition that is found
under subparagraph (A) to present substantial information
indicating that the petitioned action may be warranted, the
Secretary shall make one of the following findings:
(i) The petitioned action is not warranted, in which
case the Secretary shall promptly publish such finding
in the Federal Register.
(ii) The petitioned action is warranted in which case
the Secretary shall promptly publish in the Federal
Register a general notice and the complete text of a
proposed regulation to implement such action in
accordance with paragraph (5).
(iii) The petitioned action is warranted but that--
(I) the immediate proposal and timely
promulgation of a final regulation implementing
the petitioned action in accordance with
paragraphs (5) and (6) is precluded by pending
proposals to determine whether any species is
an endangered species or a threatened species,
and
(II) expeditious progress is being made to
add qualified species to either of the lists
published under subsection (c) and to remove
from such lists species for which the
protections of the Act are no longer necessary,
in which case the Secretary shall promptly publish such
finding in the Federal Register, together with a
description and evaluation of the reasons and data on
which the finding is based.
(C)(i) A petition with respect to which a finding is made
under subparagraph (B)(iii) shall be treated as a petition that
is resubmitted to the Secretary under subparagraph (A) on the
date of such finding and that presents substantial scientific
or commercial information that the petitioned action may be
warranted.
(ii) Any negative finding described in subparagraph (A) and
any finding described in subparagraph (B)(i) or (iii) shall be
subject to judicial review.
(iii) The Secretary shall implement a system to monitor
effectively the status of all species with respect to which a
finding is made under subparagraph (B)(iii) and shall make
prompt use of the authority under paragraph 7 to prevent a
significant risk to the well being of any such species.
(D)(i) To the maximum extent practicable, within 90 days
after receiving the petition of an interested person under
section 553(e) of title 5, United States Code, to revise a
critical habitat designation, the Secretary shall make a
finding as to whether the petition presents substantial
scientific information indicating that the revision may be
warranted. The Secretary shall promptly publish such finding in
the Federal Register.
(ii) Within 12 months after receiving a petition that is
found under clause (i) to present substantial information
indicating that the requested revision may be warranted, the
Secretary shall determine how he intends to proceed with the
requested revision, and shall promptly publish notice of such
intention in the Federal Register.
(4) Except as provided in paragraphs (5) and (6) of this
subsection, the provisions of section 553 of title 5, United
States Code (relating to rulemaking procedures), shall apply to
any regulation promulgated to carry out the purposes of this
Act.
(5) With respect to any regulation proposed by the Secretary
to implement a determination, designation, or revision referred
to in subsection (a)(1) or (3), the Secretary shall--
(A) not less than 90 days before the effective date
of the regulation--
(i) publish a general notice and the complete
text of the proposed regulation in the Federal
Register, and
(ii) give actual notice of the proposed
regulation (including the complete text of the
regulation) to the State agency in each State
in which the species is believed to occur, and
to each county or equivalent jurisdiction in
which the species is believed to occur, and
invite the comment of such agency, and each
such jurisdiction, thereon;
(B) insofar as practical, and in cooperation with the
Secretary of State, give notice of the proposed
regulation to each foreign nation in which the species
is believed to occur or whose citizens harvest the
species on the high seas, and invite the comment of
such nation thereon;
(C) give notice of the proposed regulation to such
professional scientific organizations as he deems
appropriate;
(D) publish a summary of the proposed regulation in a
newspaper of general circulation in each area of the
United States in which the species is believed to
occur; and
(E) promptly hold one public hearing on the proposed
regulation if any person files a request for such a
hearing within 45 days after the date of publication of
general notice.
(6)(A) Within the one-year period beginning on the date on
which general notice is published in accordance with paragraph
(5)(A)(i) regarding a proposed regulation, the Secretary shall
publish in the Federal Register--
(i) if a determination as to whether a species is an
endangered species or a threatened species, or a
revision of critical habitat, is involved, either--
(I) a final regulation to implement such
determination,
(II) a final regulation to implement such
revision or a finding that such revision should
not be made,
(III) notice that such one-year period is
being extended under subparagraph (B)(i), or
(IV) notice that the proposed regulation is
being withdrawn under subparagraph (B)(ii),
together with the finding on which such
withdrawal is based; or
(ii) subject to subparagraph (C), if a designation of
critical habitat is involved, either--
(I) a final regulation to implement such
designation, or
(II) notice that such one-year period is
being extended under such subparagraph.
(B)(i) If the Secretary finds with respect to a proposed
regulation referred to in subparagraph (A)(i) that there is
substantial disagreement regarding the sufficiency or accuracy
of the available data relevant to the determination or revision
concerned, the Secretary may extend the one-year period
specified in subparagraph (A) for not more than six months for
purposes of soliciting additional data.
(ii) If a proposed regulation referred to in subparagraph
(A)(i) is not promulgated as a final regulation within such
one-year period (or longer period if extension under clause (i)
applies) because the Secretary finds that there is not
sufficient evidence to justify the action proposed by the
regulation, the Secretary shall immediately withdraw the
regulation. The finding on which a withdrawal is based shall be
subject to judicial review. The Secretary may not propose a
regulation that has previously been withdrawn under this clause
unless he determines that sufficient new information is
available to warrant such proposal.
(iii) If the one-year period specified in subparagraph (A) is
extended under clause (i) with respect to a proposed
regulation, then before the close of such extended period the
Secretary shall publish in the Federal Register either a final
regulation to implement the determination or revision
concerned, a finding that the revision should not be made, or a
notice of withdrawal of the regulation under clause (ii),
together with the finding on which the withdrawal is based.
(C) A final regulation designating critical habitat of an
endangered species or a threatened species shall be published
concurrently with the final regulation implementing the
determination that such species is endangered or threatened,
unless the Secretary deems that--
(i) it is essential to the conservation of such
species that the regulation implementing such
determination be promptly published; or
(ii) critical habitat of such species is not then
determinable, in which case the Secretary, with respect
to the proposed regulation to designate such habitat,
may extend the one-year period specified in
subparagraph (A) by not more than one additional year,
but not later than the close of such additional year
the Secretary must publish a final regulation, based on
such data as may be available at that time,
designating, to the maximum extent prudent, such
habitat.
(7) Neither paragraph (4), (5), or (6) of this subsection nor
section 553 of title 5, United States Code, shall apply to any
regulation issued by the Secretary in regard to any emergency
posing a significant risk to the well-being of any species of
fish and wildlife or plants, but only if--
(A) at the time of publication of the regulation in
the Federal Register the Secretary publishes therein
detailed reasons why such regulation is necessary; and
(B) in the case such regulation applies to resident
species of fish or wildlife, or plants, the Secretary
gives actual notice of such regulation to the State
agency in each State in which such species is believed
to occur.
Such regulation shall, at the discretion of the Secretary, take
effect immediately upon the publication of the regulation in
the Federal Register. Any regulation promulgated under the
authority of this paragraph shall cease to have force and
effect at the close of the 240-day period following the date of
publication unless, during such 240-day period, the rulemaking
procedures which would apply to such regulation without regard
to this paragraph are complied with. If at any time after
issuing an emergency regulation the Secretary determines, on
the basis of the best appropriate data available to him, that
substantial evidence does not exist to warrant such regulation,
he shall withdraw it.
(8) The publication in the Federal Register of any proposed
or final regulation which is necessary or appropriate to carry
out the purposes of this Act shall include a summary by the
Secretary of the data on which such regulation is based and
shall show the relationship of such data to such regulation;
and if such regulation designates or revises critical habitat,
such summary shall, to the maximum extent practicable, also
include a brief description and evaluation of those activities
(whether public or private) which, in the opinion of the
Secretary, if undertaken may adversely modify such habitat, or
may be affected by such designation.
(9) The Secretary shall make publicly available on the
Internet the best scientific and commercial data available that
are the basis for each regulation, including each proposed
regulation, promulgated under subsection (a)(1), except that,
at the request of a Governor or legislature of a State, the
Secretary shall not make available under this paragraph
information regarding which the State has determined public
disclosure is prohibited by a law of that State relating to the
protection of personal information.
(c) Lists.--(1) The Secretary of the Interior shall publish
in the Federal Register a list of all species determined by him
or the Secretary of Commerce to be endangered species and a
list of all species determined by him or the Secretary of
Commerce to be threatened species. Each list shall refer to the
species contained therein by scientific and common name or
names, if any, specify with respect to such species over what
portion of its range it is endangered or threatened, and
specify any critical habitat within such range. The Secretary
shall from time to time revise each list published under the
authority of this subsection to reflect recent determinations,
designations, and revisions made in accordance with subsections
(a) and (b).
(2) The Secretary shall--
(A) conduct, at least once every five years, a review
of all species included in a list which is published
pursuant to paragraph (1) and which is in effect at the
time of such review; and
(B) determine on the basis of such review whether any
such species should--
(i) be removed from such list;
(ii) be changed in status from an endangered
species to a threatened species; or
(iii) be changed in status from a threatened
species to an endangered species.
Each determination under subparagraph (B) shall be made in
accordance with the provisions of subsection (a) and (b).
(d) Protective Regulations.--Whenever any species is listed
as a threatened species pursuant to subsection (c) of this
section, the Secretary shall issue such regulations as he deems
necessary and advisable to provide for the conservation of such
species. The Secretary may by regulation prohibit with respect
to any threatened species any act prohibited under section
9(a)(1), in the case of fish or wildlife, or section 9(a)(2) in
the case of plants, with respect to endangered species; except
that with respect to the taking of resident species of fish or
wildlife, such, regulations shall apply in any State which has
entered into a cooperative agreement pursuant to section 6(c)
of this Act only to the extent that such regulations have also
been adopted by such State.
(e) Similarity of Appearance Cases.--The Secretary may, by
regulation of commerce or taking, and to the extent he deems
advisable, treat any species as an endangered species or
threatened species even through it is not listed pursuant to
section 4 of this Act if he finds that--
(A) such species so closely resembles in appearance,
at the point in question, a species which has been
listed pursuant to such section that enforcement
personnel would have substantial difficulty in
attempting to differentiate between the listed and
unlisted species;
(B) the effect of this substantial difficulty is an
additional threat to an endangered or threatened
species; and
(C) such treatment of an unlisted species will
substantially facilitate the enforcement and further
the policy of this Act.
(f)(1) Recovery Plans.--The Secretary shall develop and
implement plans (hereinafter in this subsection referred to as
``recovery plans'') for the conservation and survival of
endangered species and threatened species listed pursuant to
this section, unless he finds that such a plan will not promote
the conservation of the species. The Secretary, in developing
and implementing recovery plans, shall, to the maximum extent
practicable--
(A) give priority to those endangered species or
threatened species, without regard to taxonomic
classification, that are most likely to benefit from
such plans, particularly those species that are, or may
be, in conflict with construction or other development
projects or other forms of economic activity;
(B) incorporate in each plan--
(i) a description of such site-specific
management actions as may be necessary to
achieve the plan's goal for the conservation
and survival of the species;
(ii) objective, measurable criteria which,
when met, would result in a determination, in
accordance with the provisions of this section,
that the species be removed from the list; and
(iii) estimates of the time required and the
cost to carry out those measures needed to
achieve the plan's goal and to achieve
intermediate steps toward that goal.
(2) The Secretary, in developing and implementing recovery
plans, may procure the services of appropriate public and
private agencies and institutions and other qualified persons.
Recovery teams appointed pursuant to this subsection shall not
be subject to the Federal Advisory Committee Act.
(3) The Secretary shall report every two years to the
Committee on Environment and Public Works of the Senate and the
Committee on Merchant Marine and Fisheries of the House of
Representatives on the status of efforts to develop and
implement recovery plans for all species listed pursuant to
this section and on the status of all species for which such
plans have been developed.
(4) The Secretary shall, prior to final approval of a new or
revised recovery plan, provide public notice and an opportunity
for public review and comment on such plan. The Secretary shall
consider all information presented during the public comment
period prior to approval of the plan.
(5) Each Federal agency shall, prior to implementation of a
new or revised recovery plan, consider all information
presented during the public comment period under paragraph (4).
(g) Monitoring.--(1) The Secretary shall implement a system
in cooperation with the States to monitor effectively for not
less than five years the status of all species which have
recovered to the point at which the measures provided pursuant
to this Act are no longer necessary and which, in accordance
with the provisions of this section, have been removed from
either of the lists published under subsection (c).
(2) The Secretary shall make prompt use of the authority
under paragraph 7 of subsection (b) of this section to prevent
a significant risk to the well being of any such recovered
species.
(h) Agency Guidelines.--The Secretary shall establish, and
publish in the Federal Register, agency guidelines to insure
that the purposes of this section are achieved efficiently and
effectively. Such guidelines shall include, but are not limited
to--
(1) procedures for recording the receipt and the
disposition of petitions submitted under subsection
(b)(3) of this section;
(2) criteria for making the findings required under
such subsection with respect to petitions;
(3) a ranking system to assist in the identification
of species that should receive priority review under
subsection (a)(1) of the section; and
(4) a system for developing and implementing, on a
priority basis, recovery plans under subsection (f) of
this section.
The Secretary shall provide to the public notice of, and
opportunity to submit written comments on, any guideline
(including any amendment thereto) proposed to be established
under this subsection.
(i) If, in the case of any regulation proposed by the
Secretary under the authority of this section, a State agency
to which notice thereof was given in accordance with subsection
(b)(5)(A)(ii) files comments disagreeing with all or part of
the proposed regulation, and the Secretary issues a final
regulation which is in conflict with such comments, or if the
Secretary fails to adopt a regulation pursuant to an action
petitioned by a State agency under subsection (b)(3), the
Secretary shall submit to the State agency a written
justification for his failure to adopt regulations consistent
with the agency's comments or petition.
* * * * * * *
cooperation with the states
Sec. 6. (a) General.--(1) In carrying out the program
authorized by this Act, the Secretary shall cooperate to the
maximum extent practicable with the States. [Such cooperation
shall include]
(2) Such cooperation shall include--
(A) before making a determination under section 4(a),
providing to States affected by such determination all
data that is the basis of the determination; and
(B) consultation with the States concerned before
acquiring any land or water, or interest therein, for
the purpose of conserving any endangered species or
threatened species.
(b) Management Agreements.--The Secretary may enter into
agreements with any State for the administration and management
of any area established for the conservation of endangered
species or threatened species. Any revenues derived from the
administration of such areas under these agreements shall be
subject to the provisions of section 401 of the Act of June 15,
1935 (49 Stat. 383; 16 U.S.C. 715s).
(c)(1) Cooperative Agreements.--In furtherance of the
purposes of this Act, the Secretary is authorized to enter into
a cooperative agreement in accordance with this section with
any State which establishes and maintains an adequate and
active program for the conservation of endangered species and
threatened species. Within one hundred and twenty days after
the Secretary receives a certified copy of such a proposed
State program, he shall make a determination whether such
program is in accordance with this Act. Unless he determines,
pursuant to this paragraph, that the State program is not in
accordance with this Act, he shall enter into a cooperative
agreement with the State for the purpose of assisting in
implementation of the State program. In order for a State
program to be deemed an adequate and active program for the
conservation of endangered species and threatened species, the
Secretary must find, and annually thereafter reconfirm such
finding, that under the State program--
(A) authority resides in the State agency to conserve
resident species of fish or wildlife determined by the
State agency or the Secretary to be endangered or
threatened;
(B) the State agency has established acceptable
conservation programs, consistent with the purposes and
policies of this Act, for all resident species of fish
or wildlife in the State which are deemed by the
Secretary to be endangered or threatened, and has
furnished a copy of such plan and program together with
all pertinent details, information, and data requested
to the Secretary;
(C) the State agency is authorized to conduct
investigations to determine the status and requirements
for survival of resident species of fish and wildlife;
(D) the State agency is authorized to establish
programs, including the acquisition of land or aquatic
habitat or interests therein, for the conservation of
resident endangered or threatened species of fish or
wildlife; and
(E) provision is made for public participation in
designating resident species of fish or wildlife as
endangered or threatened; or
that under the State program--
(i) the requirements set forth in subparagraphs (C),
(D), and (E) of this paragraph are complied with, and
(ii) plans are included under which immediate
attention will be given to those resident species of
fish and wildlife which are determined by the Secretary
or the State agency to be endangered or threatened and
which the Secretary and the State agency agree are most
urgently in need of conservation programs; except that
a cooperative agreement entered into with a State whose
program is deemed adequate and active pursuant to
clause (i) and this clause shall not affect the
applicability of prohibitions set forth in or
authorized pursuant to section 4(d) or section 9(a)(1)
with respect to the taking of any resident endangered
or threatened species.
(2) In furtherance of the purposes of this Act, the Secretary
is authorized to enter into a cooperative agreement in
accordance with this section with any State which establishes
and maintains an adequate and active program for the
conservation of endangered species and threatened species of
plants. Within one hundred and twenty days after the Secretary
receives a certified copy of such a proposed State program, he
shall make a determination whether such program is in
accordance with this Act. Unless he determines, pursuant to
this paragraph, that the State program is not in accordance
with this Act, he shall enter into a cooperative agreement with
the State for the purpose of assisting in implementation of the
State program. In order for a State program to be deemed an
adequate and active program for the conservation of endangered
species of plants and threatened species of plants, the
Secretary must find, and annually thereafter reconfirm such
findings, that under the State program--
(A) authority resides in the State agency to conserve
resident species of plants determined by the State
agency or the Secretary to be endangered or threatened;
(B) the State agency has established acceptable
conservation programs, consistent with the purposes and
policies of this Act, for all resident species of
plants in the State which are deemed by the Secretary
to be endangered or threatened, and has furnished a
copy of such plan and program together with all
pertinent details, information, and data requested to
the Secretary;
(C) the State agency is authorized to conduct
investigations to determine the status and requirements
for survival of resident species of plants; and
(D) provision is made for public participation in
designating resident species of plants as endangered or
threatened; or that under the State program--
(i) the requirements set forth in
subparagraphs (C) and (D) of this paragraph are
complied with, and
(ii) plans are included under which immediate
attention will be given to those resident
species of plants which are determined by the
Secretary or the State agency to be endangered
or threatened and which the Secretary and the
State agency agree are most urgently in need of
conservation programs; except that a
cooperative agreement entered into with a State
whose program is deemed adequate and active
pursuant to clause (i) and this clause shall
not affect the applicability of prohibitions
set forth in or authorized pursuant to section
4(d) or section 9(a)(1) with respect to the
taking of any resident endangered or threatened
species.
(d) Allocation of Funds.--(1) The Secretary is authorized to
provide financial assistance to any State, through its
respective State agency, which has entered into a cooperative
agreement pursuant to subsection (c) of this section to assist
in development of programs for the conservation of endangered
and threatened species or to assist in monitoring the status of
candidate species pursuant to subparagraph (C) of section
4(b)(3) and recovered species pursuant to section 4(g). The
Secretary shall allocate each annual appropriation made in
accordance with the provisions of subsection (i) of this
section to such States based on consideration of--
(A) the international commitments of the United
States to protect endangered species or threatened
species;
(B) the readiness of a State to proceed with a
conservation program consistent with the objectives and
purposes of this Act;
(C) the number of endangered species and threatened
species within a State;
(D) the potential for restoring endangered species
and threatened species within a State;
(E) the relative urgency to initiate a program to
restore and protect an endangered species or threatened
species in terms of survival of the species;
(F) the importance of monitoring the status of
candidate species within a State to prevent a
significant risk to the well being of any such species;
and
(G) the importance of monitoring the status of
recovered species within a State to assure that such
species do not return to the point at which the
measures provided pursuant to this Act are again
necessary.
So much of the annual appropriation made in accordance with
provisions of subsection (i) of this section allocated for
obligation to any State for any fiscal year as remains
unobligated at the close thereof is authorized to be made
available to that State until the close of the succeeding
fiscal year. Any amount allocated to any State which is
unobligated at the end of the period during which it is
available for expenditure is authorized to be made available
for expenditure by the Secretary in conducting programs under
this section.
(2) Such cooperative agreements shall provide for (A) the
actions to be taken by the Secretary and the States; (B) the
benefits that are expected to be derived in connection with the
conservation of endangered or threatened species; (C) the
estimated cost of these actions; and (D) the share of such
costs to be bore by the Federal Government and by the States;
except that--
(i) the Federal share of such program costs shall not
exceed 75 percent of the estimated program cost stated
in the agreement; and
(ii) the Federal share may be increased to 90 percent
whenever two or more States having a common interest in
one or more endangered or threatened species, the
conservation of which may be enhanced by cooperation of
such States, enter jointly into agreement with the
Secretary.
The Secretary may, in his discretion, and under such rules and
regulations as he may prescribe, advance funds to the State for
financing the United States pro rata share agreed upon in the
cooperative agreement. For the purposes of this section, the
non-Federal share may, in the discretion of the Secretary, be
in the form of money or real property, the value of which will
be determined by the Secretary whose decision shall be final.
(e) Review of State Programs.--Any action taken by the
Secretary under this section shall be subject to his periodic
review at no greater than annual intervals.
(f) Conflicts Between Federal and State Laws.--Any State law
or regulation which applies with respect to the importation or
exportation of, or interstate or foreign commerce in,
endangered species or threatened species is void to the extent
that it may effectively (1) permit what is prohibited by this
Act or by any regulation which implements this Act, or (2)
prohibit what is authorized pursuant to an exemption or permit
provided for in this Act or in any regulation which implements
this Act. This Act shall not otherwise be construed to void any
State law or regulation which is intended to conserve
migratory, resident, or introduced fish or wildlife, or to
permit or prohibit sale of such fish or wildlife. Any State law
or regulation respecting the taking of an endangered species or
threatened species may be more restrictive than the exemptions
or permits provided for in this Act or in any regulation which
implements this Act but not less restrictive than the
prohibitions so defined.
(g) Transition.--(1) For purposes of this subsection, the
term ``establishment period'' means, with respect to any State,
the period beginning on the date of enactment of this Act and
ending on whichever of the following dates first occurs: (A)
the date of the close of the 120-day period following the
adjournment of the first regular session of the legislature of
such State which commences after such date of enactment, or (B)
the date of the close of the 15-month period following such
date of enactment.
(2) The prohibitions set forth in or authorized pursuant to
sections 4(d) and 9(a)(1)(B) of this Act shall not apply with
respect to the taking of any resident endangered species or
threatened species (other than species listed in Appendix I to
the Convention or otherwise specifically covered by any other
treaty or Federal law) within any State--
(A) which is then a party to a cooperative agreement
with the Secretary pursuant to section 6(c) of this Act
(except to the extent that the taking of any such
species is contrary to the law of such State); or
(B) except for any time within the establishment
period when--
(i) the Secretary applies such prohibition to
such species at the request of the State, or
(ii) the Secretary applies such prohibition
after he finds, and publishes his finding, that
an emergency exists posing a significant risk
to the well-being of such species and that the
prohibition must be applied to protect such
species. The Secretary's finding and
publication may be made without regard to the
public hearing or comment provisions of section
553 of title 5, United States Code, or any
other provision of this Act; but such
prohibition shall expire 90 days after the date
of its imposition unless the Secretary further
extends such prohibition by publishing notice
and a statement of justification of such
extension.
(h) Regulations.--The Secretary is authorized to promulgate
such regulations as may be appropriate to carry out the
provisions of this section relating to financial assistance to
States.
(i) Appropriations.--(1) To carry out the provisions of this
section for fiscal years after September 30, 1988, there shall
be deposited into a special fund known as the cooperative
endangered species conservation fund, to be administered by the
Secretary, an amount equal to five percent of the combined
amounts covered each fiscal year into the Federal aid to
wildlife restoration fund under section 3 of the Act of
September 2, 1937, and paid, transferred, or otherwise credited
each fiscal year to the Sport Fishing Restoration Account
established under 1016 of the Act of July 18, 1984.
(2) Amounts deposited into the special fund are authorized to
be appropriated annually and allocated in accordance with
subsection (d) of this section.
* * * * * * *
DISSENTING VIEWS
H.R. 1274 would require that all data submitted by states,
tribes or local governments during a listing determination
automatically be considered the ``best scientific data
available.'' The bill would also require that all data that is
the basis of a listing determination under the Endangered
Species Act (ESA) be provided to any state affected by the
listing prior to the final determination.
Forcing Federal agencies to accept as the ``best available
science'' anything that states, localities, or tribes submit is
both unreasonable and impractical. At best, the lack of quality
control could allow faulty data to warp the ESA process; at
worst, this provision would invite the submission of
incomplete, shoddy, or falsified information in support of
political, not scientific goals.
Further, H.R. 1274 opens up a whole new avenue for
litigation under the ESA, particularly in cases where states,
localities, or tribes submit conflicting data. There is no
scientific basis whatsoever for Congress to establish any
particular source of data as being the ``best'' when in fact it
may not be. Agency decision-makers must constantly evaluate
data from all sources to ensure they are making decisions based
on the best information available, and we should encourage them
to continue doing so.
The requirement that the U.S. Fish and Wildlife Service
(FWS) provide states all data used in listing decisions is an
unnecessary burden on the agency and would be unworkable in
many cases. FWS already provides any references cited for each
listing decision, in addition to any data they are authorized
to release, upon request. However, FWS does not own all of the
data it uses in making listing decisions, and is therefore not
legally able to release some of it.
By dictating what constitutes sound science based on its
source rather than its merit, this bill creates more problems
than it solves. The decision on whether or not any particular
study or data set has scientific merit with respect to an
individual species listing should be made in the context of on-
the-ground conservation work, not by politicians in Washington,
DC. For these reasons, we oppose H.R. 1274 as reported.
Raul M. Grijalva,
Ranking Member, Committee on
Natural Resources.
Darren Soto.
Jared Huffman.
Alan S. Lowenthal.
Nanette Diaz Barragan.
Grace F. Napolitano.
Donald S. Beyer, Jr.
A. Donald McEachin.
Colleen Hanabusa.
[all]