[House Report 115-1051]
[From the U.S. Government Publishing Office]
115th Congress } { REPORT
HOUSE OF REPRESENTATIVES
2d Session } { 115-1051
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ENSURING MEANINGFUL PETITION OUTREACH WHILE ENHANCING RIGHTS OF STATES
ACT OF 2018
_______
November 27, 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. 6345]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 6345) to provide for greater county and State
consultation with regard to petitions under the Endangered
Species Act of 1973, and for other purposes, having considered
the same, report favorably thereon without amendment and
recommend that the bill do pass.
Purpose of the Bill
The purpose of H.R. 6345 is to provide for greater county
and State consultation with regard to petitions under the
Endangered Species Act of 1973.
Background and Need for Legislation
The Endangered Species Act of 1973 (ESA, 16 U.S.C. 1531 et
seq.) sets out the broad goal of conserving and recovering
species facing extinction. The law authorizes federal agencies
to identify imperiled species and list them as either
threatened or endangered, as appropriate.\1\ The law further
requires agencies to take necessary actions to conserve those
species and their habitats.\2\ The Secretary of the Interior,
through the U.S. Fish and Wildlife Service (FWS), has
responsibility for plants, wildlife and inland fisheries. The
Secretary of Commerce, through the National Marine Fisheries
Service (NMFS) is responsible for implementing the ESA with
respect to ocean-going fish and some marine mammals.\3\
Congress made its most significant amendments to ESA in 1978,
1982, and 1988, although the overall framework has remained
essentially unchanged since its original enactment in 1973.\4\
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\1\ 16 U.S.C. Sec. 1533.
\2\ Id.
\3\ Cong. Research Serv., RL31654, The Endangered Species Act: A
Primer 15 (2016).
\4\ A History of the Endangered Species Act of 1973, U.S. Fish and
Wildlife Service, U.S. Department of the Interior, https://www.fws.gov/
endangered/esa-library/pdf/history_ESA.pdf (last visited Sept. 18,
2018).
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Despite the worthy goal set out by the ESA to conserve and
protect species, in the 45 years since its enactment, less than
2 percent of species have recovered enough to warrant removal
from the list of endangered and threatened species.\5\ In fact,
many of those species were delisted after it was discovered
that federal agencies used erroneous data in the original
listing.\6\ In total, to date there have been 2,421 listings\7\
under the ESA. In that time the Secretaries have delisted 77
species, but only 47 distinct species have been removed, either
entirely or partially throughout their range, due to population
recovery.\8\
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\5\ ECOS Environmental Conservation Online System, Listed Species
Summary (Boxscore), U.S. Fish and Wildlife Service, U.S. Department of
the Interior, https://ecos.fws.gov/ecp0/reports/box-score-report (last
visited Sept. 19, 2018).
\6\ ECOS Environmental Conservation Online System, Delisted
Species, U.S. Fish and Wildlife Service, U.S. Department of the
Interior, https://ecos.fws.gov/ecp0/reports/delisting-
report (last visited Sept. 19, 2018).
\7\ Supra, note 5. This number was determined by adding the total
number of species listed as endangered or threatened under the ESA to
the total number delisted since the ESA's enactment.
\8\ Supra, note 6.
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In addition to failing to achieve meaningful recovery for
species, implementation of the ESA disincentivizes conservation
and can lead to increased conflict between people and species
through unpredictable and expansive restrictions on land
use.\9\ Excessive litigation and a lack of transparency in
federal ESA decision-making has only exacerbated these problems
and reduced the ESA's effectiveness in recovering species.\10\
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\9\Committee on House Natural Resources, Endangered Species Act
Congressional Working Group, Report Findings and Recommendations,
(2014) available at https://naturalresources.house.gov/uploadedfiles/
esa_working_group_final_report_and--recommendations_02_04_14.pdf; See
also: Legislative Hearing on H.R. 424. H.R. 717, H.R. 1274, H.R. 2603,
and H.R. 3131: Hearing before the H. Comm. on Natural Resources, 115th
Cong, (2017) (testimony of Kent Holsinger, Manager and Founder,
Holsinger Law, LLC) available at https://naturalresources.house.gov/
uploadedfiles/testimony_holsinger.pdf.
\10\Hearing on Examining Policy Impacts of Excessive Litigation
Against the Department of the Interior, Before the Subcomm. on
Oversight & Investigations of the H. Comm. on Natural Resources, 115th
Cong. (2017), available at https://naturalresources.house.gov/
uploadedfiles/
hearing_memo_--_ov_hrg_06.28.17.pdf.
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In many cases, implementation of the ESA has caused
increased burdens for those living in close proximity to the
protected species.\11\ Often States and local communities have
the most knowledge about the species located in their State and
can bring the greatest amount of resources to conservation
efforts.\12\ They are eager to stabilize species populations to
prevent listings that can have a major negative economic impact
on State and local communities through restrictions on land
use.\13\ Yet, too often, federal management of threatened and
endangered species fails to take advantage of the wealth of
knowledge of State and local officials and of the successful
conservation measures implemented by States.\14\
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\11\ Supra, note 9.
\12\Legislative Hearing on H.R. 424. H.R. 717, H.R. 1274, H.R.
2603, and H.R. 3131: Hearing before the H. Comm. on Natural Resources,
115th Cong, (2017) (testimony of Kent Holsinger, Manager and Founder,
Holsinger Law, LLC) available at https://naturalresources.house.gov/
uploadedfiles/testimony_holsinger.pdf.
\13\Id.
\14\ See e.g., Letter from John Hickenlooper, Governor, State of
Colorado, and Matt Mead, Governor, State of Wyoming, to Steve Ellis,
Deputy Director, Bureau of Land Management, U.S. Dep't of the Interior,
and Leslie Weldon, Deputy Chief, National Forest System, U.S. Forest
Service, U.S. Dep't of Agriculture, Sept. 29, 2014, available at http:/
/westgov.org/images/editor/LTR_GSG_Rollup_Mtgs_FINAL.pdf.
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Despite these shortcomings in how the ESA has been
implemented since its enactment, the ESA and its overall goal
of conserving and recovering species remains widely popular and
accepted.\15\ ESA modernization should prioritize effective
species recovery while maintaining the core principles of the
Act.
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\15\ See e.g., Memo from Ben Tulchin, Ben Krompack, and Kiel
Brunner, Tulchin Research, to Interested Parties, Jul. 6, 2015,
available at https://earthjustice.org/sites/default/files/files/
PollingMemoNationalESASurvey.pdf.
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Determinations under the ESA require FWS and NMFS to
collect extensive amounts of data and information to analyze
the status of a species and to decide whether a listing is
necessary for conservation and survival of the species.\16\
Notice and comment periods provide one mechanism for such
information to be collected,\17\ but more needs to be done to
ensure that valuable information from States, counties, and
local governments are solicited and considered in ESA decision-
making.
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\16\ 16 U.S.C. Sec. 1533.
\17\ Id.
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States and counties where species reside often have some of
the most specialized knowledge about the threats facing species
and local conservation measures in place to counter such
threats and to ensure the survival of the species. Many States
have already proven the value of their input in the ESA
decision-making process. For example, in Texas, the
Comptroller's Office is responsible for administering
approximately $15 million to fund research on little-known
species under consideration for ESA listing.\18\ The State
utilizes public universities to conduct research on these
species to ensure federal agencies have the most complete and
reliable information before making decisions that affect
private property owners and local economies in the State.\19\
Programs such as these highlight the unique perspective States
can provide to federal agencies through expert data, as well as
through the infrastructure and relationships they have in place
with landowners, communities, and industries.
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\18\ Legislative Hearing on H.R. 424, H.R. 717, H.R. 1274, H.R.
2603, and H.R. 3131: Hearing before the H. Comm. on Natural Resources,
115th Cong. (2017) (testimony of Glen Hegar, Texas Comptroller of
Public Accounts) available at https://naturalresources.house.gov/
uploadedfiles/
testimony_hegar.pdf.
\19\ Id.
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While many States, such as Texas, are willing to offer
these resources to federal agencies during the ESA decision-
making process, federal agencies often neglect to utilize these
key local resources available to them. This unfortunately was
the case for some local stakeholders during the decision-making
process for determining the listing status of the greater sage
grouse; they felt the Department of the Interior was not taking
local conservation plans and data into consideration at the
time.\20\ Stakeholders, such as the States involved in
conservation of the greater sage grouse, have essential input
that federal agencies should be required to factor into the
determination process for species listings.
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\20\ 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),
available at https://naturalresources.house.gov/uploadedfiles/
jankovskytestimony06-04-13.pdf.
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H.R. 6345, the Ensuring Meaningful Petition Outreach While
Enhancing Rights of States Act of 2018, or the EMPOWERS Act,
works to avoid these conflicts between federal agencies and
States by requiring that States receive advanced notice of any
potential listing decisions on species that impact their State,
and gives them the right to provide advice and information to
federal agencies concerning the potential listing. The bill
also increases transparency through the prerequisite that
federal agencies provide written explanations and relevant
information when their decisions do not comport with the
information provided by the States. Increasing meaningful
cooperation and counsel of States impacted by species decisions
in this manner will only improve the way species are conserved
and recovered under the ESA.
Section-by-Section Analysis
Section 1. Short title
The bill may be referred to as the ``Ensuring Meaningful
Petition Outreach While Enhancing Rights of States Act of
2018'' or the ``EMPOWERS Act of 2018''.
Section 2. Greater county and State involvement
Subsection (a). County and State Consultation on Petitions.
Amends Section 4(b)(3) of the ESA by requiring petitioners to
provide a 30-day notice of intent before submitting a petition
to list, delist, reclassify a species or to revise critical
habitat in the U.S. to the chief executive of each county and
State where the species is located.
If a petitioned action may be warranted, the relevant
Secretary shall request information from the chief executive of
each county and State concerning threats to the species, local
efforts to protect the species, anticipated effects of the
petition's actions within the area, and advice on whether the
petition is warranted based on the status of the species. The
relevant Secretary may also verify information presented in a
petition using field testing.
If the chief executive advises that the petitioned action
is not warranted, the relevant Secretary may not proceed with
the action unless the Secretary demonstrates the information
presented by the chief executive is incorrect and the action is
warranted.
Subsection (b). Regulations to Implement Determinations.
Section (b) amends section 4(b)(5) of the ESA to require that
90 days before a regulation goes into effect, the relevant
Secretary must provide notice to each chief executive of each
county and State where the species is located and request a
determination whether the proposed regulation is warranted. If
the chief executive does not agree with the determination, the
Secretary must provide the reasons in writing for the
determination and the information available to support that
determination.
Subsection (c). Consultation on Final Determination.
Section (c) amends section 4(i) of the ESA to ensure that if
the final determination on a regulation conflicts with the
advice of a county or State, the relevant Secretary must
provide written justification that includes any information
regarding the determination and comments that disagreed with
the regulation.
Committee Action
H.R. 6345 was introduced on July 12, 2018, by Congressman
Stevan Pearce (R-NM). The bill was referred to the Committee on
Natural Resources. On September 26, 2018, the Committee held a
hearing on the bill. On September 27, 2018, the Committee met
to consider the bill. No amendments were offered, and the bill
was ordered favorably reported to the House of Representatives
by a roll call vote of 20 yeas and 12 nays, 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, November 13, 2018.
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. 6345, the EMPOWERS
Act of 2018.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Janani
Shankaran.
Sincerely,
Keith Hall,
Director.
Enclosure.
H.R. 6345--EMPOWERS Act of 2018
Under the Endangered Species Act, individual people can
petition the U.S. Fish and Wildlife Service (USFWS) of the
National Oceanic and Atmospheric Administration (NOAA) to list
or remove a species. In such cases, H.R. 6345 would require
USFWS and NOAA to solicit information from officials in the
states and counties where the species is found. The bill also
would require USFWS or NOAA to notify state and local officials
about proposed rules under the Endangered Species Act and to
submit certain public comments to those officials.
CBO expects that implementing the new requirements would
result in a small increase in the agencies' workload. Based on
the costs of similar tasks, CBO estimates that those costs
would be less than $500,000 over the 2019-2023 period; such
spending would be subject to the availability of appropriated
funds.
H.R. 6345 would not affect direct spending or revenues;
therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting H.R. 6345 would not increase
net direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2029.
H.R. 6345 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
The CBO staff contact for this estimate is Janani
Shankaran. The estimate was reviewed 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 provide for greater county and
State consultation with regard to petitions under the
Endangered Species Act of 1973.
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 contains no directed
rulemakings.
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 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
* * * * * * *
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.
(E) Listing petition review requirements.--
(i) Not later than 30 days before submitting
to the Secretary a petition to list, delist, or
reclassify a species that occurs in the United
States, or to revise a designation of critical
habitat of such a species, the petitioner shall
provide to the chief executive of each county
and State in which the species is located a
notice of intent to submit such petition.
(ii) The Secretary shall, upon finding that a
petitioned action to list a species as a
threatened species or endangered species may be
warranted, solicit from the chief executive of
each county and State in which the species is
located--
(I) information
regarding threats to
the species and efforts
by the county or State,
respectively, to
protect the species;
(II) information
about the anticipated
effects of the action
requested in the
petition in that county
or State, respectively;
and
(III) the advice of
the chief executive on
whether the status of
the species merits the
action requested in the
petition, including
information in support
of such advice.
(iii) The Secretary may verify by field
testing the information presented in a petition
asserting that a species is a threatened
species or endangered species.
(iv) If a chief executive advises under
clause (ii)(III) that the petitioned-for action
is not warranted, the Secretary may not proceed
with the action unless the Secretary
demonstrates that information submitted in
support of such advice by the chief executive
is incorrect and that the action is warranted.
(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.]
(5) Notice required.--With respect to any regulation
proposed by the Secretary to implement a determination
referred to in subsection (a)(1), 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;
(ii) provide notice of the proposed
regulation (including the complete text
of the regulation) to the chief
executive of county and State in which
the species is located, and invite such
chief executive to submit to the
Secretary a determination as to whether
the proposed regulation is warranted;
and
(iii) if the chief executive notifies
the Secretary that the proposed
regulation is not warranted, provide to
the chief executive a record of
decision for such determination,
including information made available to
the Secretary that did not support the
determination and in writing the
reasons for the determination;
(B) in cooperation with the Secretary of
State, provide notice of the proposed
regulation to each foreign nation in which the
species is located or whose citizens harvest
the species on the high seas, and invite the
comment of such nation thereon;
(C) provide notice of the proposed regulation
to--
(i) each person who requests such
notice;
(ii) each person who has submitted
additional data on the proposed
regulation;
(iii) each county, State, and local
government within the jurisdiction of
which the species is located or that is
likely to experience any effects of any
measures to protect the species under
this Act; and
(iv) such professional scientific
organizations as the Secretary
considers appropriate;
(D) publish a summary of the proposed
regulation on the internet; 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) FACA.--Consultation with counties and States
regarding petitions and proposed regulations under this
subsection shall not be subject to the Federal Advisory
Committee Act (5 U.S.C. App.).
(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.]
(i) Written Justification.--If the Secretary adopts a final
regulation in conflict with advise submitted by the chief
executive of a county or State or fails to adopt a regulation
pursuant to an action petitioned for by such a chief executive
under subsection (b)(3), the Secretary shall submit to the
chief executive--
(1) a separate written justification explaining the
failure of the Secretary to adopt regulations
consistent with the advise or petition of the chief
executive;
(2) any determination referred to in subsection
(a)(1) relating to the regulation; and
(3) all comments received by the Secretary that
disagreed with all or part of the regulation.
* * * * * * *
DISSENTING VIEWS
This legislation is part of a package of nine Republican
bills, spearheaded by the Western Caucus, introduced late in
the second session of this Congress, and designed to destroy
the Endangered Species Act. Each bill has its own, logic-
defying, acronym.
H.R. 6345 undermines the ability of the Secretaries of
Interior and Commerce to list a species as threatened or
endangered under the Endangered Species Act (ESA). The listing
of a species should be based solely on the best-available
scientific and commercial data; however, this bill would inject
political considerations into the listing decision which would
make it extremely difficult for a new species to be listed.
Currently, federal agencies are required to make a finding
within 90 days of receiving a petition as to whether there is
substantial information indicating that the petitioned action
may be warranted. If this finding is positive, the agencies
conduct a status review and, within one year of receipt of the
petition, make a finding on whether listing is warranted. The
agencies then publish a proposed rule for public review before
making a final listing determination.
Section 4 of the ESA already requires federal agencies to
give notice, invite comments, and provide the complete text of
a listing decision to any affected state or county.
Conversely, this bill provides states with significant
control over listing decisions which could result in an
imperiled species not receiving the protections it needs. This
bill requires anyone who submits a petition to notify an
unspecified ``chief executive'' of each county and state in
which the species is located of such petition, and it requires
the Secretary to solicit from each chief executive information
regarding threats to the species, anticipated effects of the
listing (including economic impacts), and advice of the chief
executive on whether the species merits protection.
If a chief executive deems the listing could be
unwarranted, the Secretary cannot proceed with the action
unless he or she demonstrates that the information submitted by
the chief executive is incorrect. If the Secretary moves
forward with a final listing decision, he or she must provide
notice of the proposed rule to the chief executive of each
county and state in which the species is located and again
invite the chief executive to provide comment on whether the
proposal is warranted. If the Secretary adopts a final
regulation in conflict with advice submitted by any chief
executive or fails to adopt a petition requested by a chief
executive, the Secretary must provide them with a written
justification explaining why the decision diverged from the
chief executive's findings or advice.
H.R. 6345 creates a massive amount of bureaucracy with the
sole intention of making it nearly impossible to list a new
species. For example, the whooping crane can be found in 17
states and over 700 counties. If the whooping crane was not yet
listed, this bill would require federal agencies to consult
with over 700 different chief executives to determine whether
the species warrants protection. This process ultimately
guarantees that the species would never be listed due to the
absurd number of individuals the Secretary must consult with
and the amount of time that the process would take.
The bill does not specify who is considered the chief
executive of each county and state, which could potentially
result in unqualified individuals participating in listing
decisions, nor does it specify how the Secretary should proceed
if he or she receives conflicting advice from different chief
executives.
Finally, the bill places an unnecessary burden on the
Secretary to consult and provide additional information to the
states, even though Section 4 of the ESA already requires
federal agencies to give notice, invite comments, and provide
the complete text of a listing decision to any affected state
or county.
For these reasons, we cannot support the bill as reported.
Raul M. Grijalva,
Ranking Member, Committee on
Natural Resources.
Jared Huffman.
Grace F. Napolitano.
Nanette Diaz Barragan.
A. Donald McEachin.
Wm. Lacy Clay.
Niki Tsongas.
Donald S. Beyer.
[all]