[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4556 Introduced in House (IH)]







105th CONGRESS
  2d Session
                                H. R. 4556

 To amend the Endangered Species Act of 1973 to reform the regulatory 
                        process under that Act.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           September 11, 1998

  Mr. Thomas introduced the following bill; which was referred to the 
                         Committee on Resources

_______________________________________________________________________

                                 A BILL


 
 To amend the Endangered Species Act of 1973 to reform the regulatory 
                        process under that Act.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; REFERENCES.

    (a) Short Title.--This Act may be cited as the ``Endangered Species 
Fair Regulatory Process Reform Act''.
    (b) References to Endangered Species Act of 1973.--Except as 
otherwise expressly provided, whenever in this Act an amendment or 
repeal is expressed in terms of an amendment to, or repeal of, a 
section or other provision, the reference shall be considered to be 
made to that section or provision of the Endangered Species Act (16 
U.S.C. 1531 et seq.).

SEC. 2. LISTING PROCESS REFORMS.

    (a) Petition Information.--Section 4(b)(3) (16 U.S.C. 1533(b)(3)) 
is amended by adding at the end the following:
    ``(E) In the case of a petition to add a species to either list 
published under subsection (c), a finding that the petition presents 
the information described in subparagraph (A) shall not be made unless 
the petition provides--
            ``(i) documentation from a published scientific source that 
        the fish, wildlife, or plant that is the subject of the 
        petition is a species;
            ``(ii) a description of the available data on the 
        historical and current range and distribution of the species, 
        an explanation of the methodology used to collect the data, and 
        identification of the location where such data can be reviewed;
            ``(iii) an appraisal of the available data on the status 
        and trends of populations of the species;
            ``(iv) an appraisal of the available data on the threats to 
        the species;
            ``(v) an identification of the information contained or 
        referred to in the petition that has been peer-reviewed or 
        field-tested; and
            ``(vi) at least one study or credible expert opinion, from 
        a person not affiliated with the petitioner, to support the 
        action requested in the petition.''.
    (b) Availability of Information Relating to Listing.--Section 4(b) 
(16 U.S.C. 1533(b)) is amended by adding at the end the following:
    ``(9)(A) Upon publication of a proposed rule determining that a 
species is an endangered species or threatened species, the Secretary 
shall make publicly available all information on which the 
determination is based, including all scientific studies and data 
underlying those studies, and all information related to the species 
the Secretary possesses that does not support the determination.
    ``(B) This paragraph does not require disclosure of any information 
that--
            ``(i) is not subject to the requirements of section 552 of 
        title 5, United States Code (popularly known as the Freedom of 
        Information Act); or
            ``(ii) is prohibited from being disclosed under section 
        552a of title 5, United States Code (popularly known as the 
        Privacy Act).''.
    (c) Peer Review Committees.--Section 4(b) (16 U.S.C. 1533) is 
further amended by adding at the end the following:
    ``(10)(A) In the case of a regulation proposed by the Secretary to 
implement a determination under subsection (a)(1) that any species is 
an endangered species or a threatened species or that any species 
currently listed as an endangered species or a threatened species 
should be removed from any list published pursuant to subsection (c), 
the Secretary shall provide for independent scientific peer review by--
            ``(i) selecting independent referees pursuant to 
        subparagraph (B);
            ``(ii) requesting the referees to conduct the review, 
        considering all relevant information, and make a recommendation 
        to the Secretary in accordance with this paragraph not later 
        than 150 days after the general notice is published pursuant to 
        paragraph (5)(A)(i).
    ``(B) Selection of referees.--For each independent scientific 
review to be conducted pursuant to subparagraph (A), the Secretary 
shall select 3 independent referees from a list provided by the 
National Academy of Sciences, who--
            ``(i) through publication of peer-reviewed scientific 
        literature or other means, have demonstrated scientific 
        expertise on the species or a similar species or other 
        scientific expertise relevant to the decision of the Secretary 
        under subsection (a);
            ``(ii) do not have, nor represent any person with, a 
        conflict of interest with respect to the determination that is 
        the subject of the review; and
            ``(iii) are not participants in a petition to list, change 
        the status of, or remove the species from a list under 
        subsection (c), or the proposed or final determination of the 
        Secretary.
    ``(C) The Secretary shall take one of the actions under paragraph 
(6)(A) of this subsection not later than 1 year after the date of 
publication of the general notice of the proposed determination. If the 
referees have made a recommendation in accordance with clause (ii) of 
subparagraph (A), the Secretary shall evaluate and consider the 
information that results from the independent scientific review and 
include in the final determination--
            ``(i) a summary of the results of the independent 
        scientific review; and
            ``(ii) in cases where the recommendation of a majority of 
        the referees who conducted the independent scientific review 
        under subparagraph (A) is not followed, an explanation as to 
        why the recommendation was not followed.
    ``(D) The referees selected pursuant to this paragraph shall not be 
subject to the Federal Advisory Committee Act (5 U.S.C. App.).''.
    (d) Establishment of Criteria for Scientific Studies To Support 
Listing.--Section 4(b) (16 U.S.C. 1533(b)) is further amended by adding 
at the end the following:
    ``(11) Within 1 year after the date of the enactment of this 
paragraph, the Secretary shall issue rules that establish criteria that 
must be met for scientific and commercial data to be used as the basis 
of any determination under this section that a species is an endangered 
species or threatened species or should be removed from a list 
published under subsection (c).''.
    (e) Field Data Required.--Section 4(b) (16 U.S.C. 1533(b)) is 
further amended by adding at the end the following:
    ``(12)(A) The Secretary may not determine that a species is an 
endangered species or threatened species unless the determination is 
supported by data obtained by observation of the species in the field.
    ``(B) The Secretary shall--
            ``(i) accept and acknowledge receipt of data regarding the 
        status of a species, that is collected by the owner of land 
        through observation of the species on such land; and
            ``(ii) include such data in the rulemaking record for any 
        determination that the species is an endangered species or 
        threatened species, unless the data is refuted by other field-
        collected data in the possession of the Secretary.''.

SEC. 3. FORMAL RULEMAKING PROCESS FOR LISTINGS.

    (a) Formal Rulemaking Required.--Section 4(b)(4) (16 U.S.C. 
1533(b)(4)) is amended--
            (1) by striking ``Except as provided in'' and inserting 
        ``(A) Except as provided in subparagraph (B) of this paragraph 
        and''; and
            (2) by adding at the end the following:
    ``(B) The Secretary shall make determinations referred to in 
subsection (a)(1) and designations and revisions referred to in 
subsection (a)(3) by a rule made on the record after opportunity for an 
agency hearing in the State in which the largest population of the 
species exists, in accordance with sections 556 and 557 of title 5, 
United States Code. Such hearing shall be initiated by the Secretary 
not later than 1 year after publication of notice of proposed 
rulemaking, and shall be of not more than 30 days in duration.''.
    (b) Conforming Amendment.--Section 4(b)(5) (16 U.S.C. 1533(b)(5)) 
is amended--
            (1) in subparagraph (C) by adding ``and'' after the 
        semicolon;
            (2) in subparagraph (D) by striking ``; and'' and inserting 
        a period; and
            (3) by striking subparagraph (E).

SEC. 4. ENSURING ADEQUATE BASIS FOR REGULATORY ACTIONS.

    Section 4 (16 U.S.C. 1533) is amended by adding at the end the 
following:
    ``(j) Standard for Certain Actions.--(1) Notwithstanding section 
706(2) of title 5, United States Code, the Secretary may not take an 
action referred to in paragraph (2) unless that action is supported by 
substantial evidence.
    ``(2) The actions referred to in paragraph (1) are the following:
            ``(A) A determination under subsection (a)(1) that a 
        species is an endangered species or threatened species.
            ``(B) The removal of a species from either of the lists 
        published under subsection (c).
            ``(C) The approval of a new or revised recovery plan under 
        subsection (f).''.

SEC. 5. ECONOMIC IMPACT ANALYSES.

    Section 4 (16 U.S.C. 1533) is further amended by adding at the end 
the following:
    ``(k) Economic Impact Analysis.--(1) The Secretary shall prepare 
and publish with a final rule under subsection (a)(1) determining that 
a species is an endangered species or threatened species, or under 
subsection (b)(2) designating critical habitat for a species, an 
analysis of the economic impacts of the rule.
    ``(2) An analysis under paragraph (1) for a determination that a 
species is an endangered species or threatened species shall describe 
the geographic area that will be affected by the determination, 
including specification of privately owned property located in that 
area.''.

SEC. 6. EXPERIMENTAL POPULATIONS.

    Section 10(j) (16 U.S.C. 1539(j)) is amended by adding at the end 
the following:
    ``(4)(A) The Secretary may not release any experimental population 
on or affecting privately owned property except by a rulemaking.
    ``(B) Any rule issued under this paragraph shall--
            ``(i) identify the geographic area affected by the release;
            ``(ii) describe the need for the release; and
            ``(iii) the economic impacts of the release on private 
        landowners.''.

SEC. 7. EXPEDITIOUS CONSIDERATION OF INCIDENTAL TAKE PERMIT 
              APPLICATIONS.

    Section 10(a) (16 U.S.C. 1539(a)) is amended by adding at the end 
the following:
    ``(3) The Secretary shall approve or disapprove an application for 
an incidental take permit under paragraph (1)(B) by not later than 90 
days after the date the Secretary receives the application.
    ``(4)(A) If the Secretary disapproves an application for an 
incidental take permit under paragraph (1)(B), the Secretary shall 
provide the applicant notice in writing the specific reasons the 
application was not approved and measures that, if included in the 
amended application, would result in approval of the application.
    ``(B) If within 30 days after the date on which such notice is 
provided the applicant submits an amended application that adequately 
addresses the reasons for disapproval that are specified in the notice, 
the Secretary shall promptly issue the permit.
    ``(5) The Secretary may not charge any fee for processing a permit 
under paragraph (1)(B).''.
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