[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4840 Introduced in House (IH)]







107th CONGRESS
  2d Session
                                H. R. 4840

To amend the Endangered Species Act of 1973 to ensure the use of sound 
               science in the implementation of that Act.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                              May 23, 2002

  Mr. Hansen (for himself, Mr. Pombo, and Mr. Walden) introduced the 
    following bill; which was referred to the Committee on Resources

_______________________________________________________________________

                                 A BILL


 
To amend the Endangered Species Act of 1973 to ensure the use of sound 
               science in the implementation of 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.

    This Act may be cited as the ``Sound Science for Endangered Species 
Act Planning Act of 2002''.

SEC. 2. SOUND SCIENCE.

    (a) Best Scientific and Commercial Data Available as Basis of 
Determinations.--Section 4(b)(1)(A) of the Endangered Species Act of 
1973 (16 U.S.C. 1533(b)(1)(A)) is amended in the first sentence, by 
inserting ``, including any finding under paragraph (3)(B) on a 
petition referred to in paragraph (3)(A),'' after ``determinations 
required by subsection (a)(1)''.
    (b) Preference for Empirical, Field-Tested, and Peer-Reviewed 
Data.--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) In making any determination under this section, the Secretary 
shall give greater weight to any scientific or commercial study or 
other information that is empirical or has been field-tested or peer-
reviewed.''.
    (c) Contents of Listing Petitions.--
            (1) In general.--Section 4(b)(3) of the Endangered Species 
        Act of 1973 (16 U.S.C. 1533(b)(3)) is amended by adding at the 
        end the following:
    ``(E) A petition referred to in subparagraph (A) regarding a 
species--
            ``(i) shall, to the maximum extent practicable, contain 
        clear and convincing evidence--
                    ``(I) of the current known and historic ranges of 
                the species concerned;
                    ``(II) of the most recent population estimates and 
                trends for the species, if available;
                    ``(III) that any change in the population that is 
                alleged in the petition is beyond the normal 
                fluctuations for the species; and
                    ``(IV) of the reason that the petitioned action is 
                warranted, including known or perceived threats to the 
                species;
            ``(ii) shall include a bibliography of scientific 
        literature on the species in support of the petition; and
            ``(iii) may contain any other information the petitioner 
        considers appropriate.
    ``(F) For purposes of subparagraph (E), evidence is clear and 
convincing evidence if--
            ``(i) a preponderance of the evidence is based on reliable 
        scientific and commercial information; and
            ``(ii) the evidence is sufficient to support a firm belief 
        that the petitioned action may be warranted.''.
            (2) Requirement for consideration of petition.--Section 
        4(b)(3) of the Endangered Species Act of 1973 (16 U.S.C. 
        1533(b)(3)) is further amended--
                    (A) in subparagraph (A) in the first sentence, by 
                inserting ``and contains the information required under 
                clauses (i) and (ii) of subparagraph (E)'' after ``may 
                be warranted''; and
                    (B) in subparagraph (B) in the matter preceding 
                clause (i), by inserting ``and contains the information 
                required under clauses (i) and (ii) of subparagraph 
                (E)'' after ``may be warranted''.
    (d) Use of Sound Science in Listing.--Section 4(b) of the 
Endangered Species Act of 1973 (16 U.S.C. 1533(b)) is amended by adding 
at the end the following:
            ``(9) Establishment of criteria for scientific studies to 
        support listing.--Not later than 1 year after the date of 
        enactment of this paragraph, the Secretary shall promulgate 
        regulations that establish criteria that must be met for 
        scientific and commercial data, studies, and other information 
        to be used as the basis of a determination under this section.
            ``(10) Field data.--
                    ``(A) Requirement.--The Secretary may not determine 
                that a species is an endangered species or a threatened 
                species unless data collected in the field on the 
                species concerned supports the determination.
                    ``(B) Data from landowners.--The Secretary shall--
                            ``(i) accept and acknowledge receipt of 
                        data regarding the status of a species that is 
                        collected by an owner of land, including data 
                        obtained by observation of the species on the 
                        land; and
                            ``(ii) include the data in the rulemaking 
                        record compiled for any determination that the 
                        species is an endangered species or a 
                        threatened species.''.
    (e) Use of Sound Science in Recovery Planning.--Section 4(f) of the 
Endangered Species Act of 1973 (16 U.S.C. 1533(f)) is amended by adding 
at the end the following:
    ``(6)(A) The Secretary shall identify and publish in the Federal 
Register with the notice of a proposed regulation pursuant to paragraph 
(5)(A)(i) a description of additional scientific and commercial data 
that, if collected, would assist in the preparation of a recovery plan 
and--
            ``(i) invite any person to submit the data to the 
        Secretary; and
            ``(ii) describe the steps that the Secretary plans to take 
        for acquiring additional data.
    ``(B) Data identified and obtained under subparagraph (A)(i) shall 
be considered by the recovery team and the Secretary in the preparation 
of the recovery plan.''.

SEC. 3. INDEPENDENT SCIENTIFIC REVIEW.

    (a) In General.--Section 4 of the Endangered Species Act of 1973 
(16 U.S.C. 1533) is amended by adding at the end the following:
    ``(j) Independent Scientific Review Requirements.--
            ``(1) Definitions.--In this subsection:
                    ``(A) Action.--The term `covered action' means--
                            ``(i) the determination that a species is 
                        an endangered species or a threatened species 
                        under subsection (a);
                            ``(ii) the determination under subsection 
                        (a) that an endangered species or a threatened 
                        species be removed from any list published 
                        under subsection (c)(1);
                            ``(iii) the development of a recovery plan 
                        for a threatened species or endangered species 
                        under subsection (f); and
                            ``(iv) the determination that a proposed 
                        action is likely to jeopardize the continued 
                        existence of a listed species and the proposal 
                        of any reasonable and prudent alternatives by 
                        the Secretary under section 7(b)(3), if the 
                        Secretary finds that--
                                    ``(I) there is significant 
                                disagreement regarding that 
                                determination or proposal; or
                                    ``(II) that determination or 
                                proposal may have significant economic 
                                impact.
                    ``(B) Qualified individual.--The term `qualified 
                individual' means an individual who meets the standards 
                of the National Academy of Sciences for independent 
                scientific review conducted by the Academy.
            ``(2) List of independent scientific reviewers.--The 
        Secretary shall--
                    ``(A) maintain a list of qualified individuals who 
                are available to participate on independent review 
                boards under this subsection;
                    ``(B) seek nominations of individuals to 
                participate on such boards (upon appointment by the 
                Secretary), through the Federal Register, scientific 
                and commercial journals, and the National Academy of 
                Sciences and other such institutions; and
                    ``(C) update such list every two years.
            ``(3) Appointment of independent review boards.--(A) Before 
        any covered action becomes final, the Secretary shall appoint 
        an independent review board in accordance with this section 
        that shall review and report to the Secretary in writing on the 
        scientific information and analyses on which the covered action 
        is based.
            ``(B) Each independent review board under this paragraph 
        shall be composed of 5 members, of which--
                    ``(i) 3 shall be appointed by the Secretary from 
                the list under paragraph (2); and
                    ``(ii) 2 shall be appointed by the Secretary from 
                among qualified individuals nominated by the Governor 
                of a State in which the species concerned is located.
            ``(C) If any individual declines appointment to an 
        independent review board under this paragraph, the Secretary 
        shall appoint another individual in the same manner.
            ``(D) The selection of the members, and the activities, of 
        independent review boards under this paragraph are not subject 
        to the Federal Advisory Committee Act (5 U.S.C. App.).
            ``(E) The Secretary shall provide compensation to an 
        individual for service as a member of an independent review 
        board under this paragraph, at a rate not to exceed the daily 
        equivalent of the maximum annual rate of basic pay for grade 
        GS-14 of the General Schedule for each day (including travel 
        time) during which the individual is engaged in the actual 
        performance of duties as a member of such board.
            ``(F) The Secretary may not delegate the authority to make 
        appointments under this paragraph to any official who--
                    ``(i) is below the level of the Director of the 
                United States Fish and Wildlife Service; or
                    ``(ii) has not been confirmed by the Senate.
            ``(4) Opinions of reviewers.--(A) Each independent review 
        board under this subsection shall provide to the Secretary, 
        within 90 days after the completion of appointment of the 
        board, the opinion of the board regarding all relevant 
        scientific information and assumptions relating to the 
        taxonomy, population models, and supportive biological and 
        ecological information for the species in question.
            ``(B) The Secretary shall--
                    ``(i) develop a protocol for the conduct of 
                scientific independent review under this subsection 
                that includes review of the adequacy of any scientific 
                methodology used to support an action and the validity 
                of any conclusions drawn from data used to support an 
                action; and
                    ``(ii) provide to each independent review board 
                established under this subsection clear guidelines as 
                to the conduct of its review consistent with that 
                protocol.
            ``(5) Consideration of results of review.--If an 
        independent review board under this subsection makes a 
        recommendation regarding a covered action, the Secretary shall, 
        within 90 days after receiving the recommendation, evaluate and 
        consider the information that results from the review by the 
        board, and shall include in the rulemaking record for the 
        covered action--
                    ``(A) a summary of the results of the review by the 
                board; and
                    ``(B) in a case in which the recommendation of a 
                majority of the members of the board is not followed, 
an explanation of why the recommendation was not followed.
            ``(6) Inclusion of report in rulemaking record.--The report 
        of each independent review board under this subsection shall be 
        included in the rulemaking record of any regulation with 
        respect to which the board is convened, and shall be available 
        for public review for at least 30 days before the close of the 
        period for comment on the regulation.''.
    (b) Biological Assessments.--Section 7(c) of the Endangered Species 
Act of 1973 (16 U.S.C. 1536(c)) is amended by adding at the end the 
following:
    ``(3) In preparing a biological assessment under this subsection, 
the head of an agency shall solicit and review any scientific and 
commercial data that a prospective permit or license applicant believes 
is relevant to the assessment, and shall make that data available to 
the Secretary.''.

SEC. 4. IMPROVED INTERAGENCY COOPERATION.

    (a) Use of Information Provided by States.--Section 7(b)(1) of the 
Endangered Species Act of 1973 (16 U.S.C. 1536(b)(1)) is amended by 
adding at the end the following:
                    ``(C) Use of state information.--In conducting a 
                consultation under subsection (a)(2), the Secretary 
                shall actively solicit and consider information from 
                the State agency in each affected State.''.
    (b) Opportunity To Participate in Consultations.--Section 7(b)(1) 
of the Endangered Species Act of 1973 (16 U.S.C. 1536(b)(1)) (as 
amended by subsection (a)) is further amended by adding at the end the 
following:
                    ``(D) Opportunity to participate in 
                consultations.--
                            ``(i) In general.--In conducting a 
                        consultation under subsection (a)(2), the 
                        Secretary shall provide any person who has 
                        sought authorization or funding from a Federal 
                        agency for an action that is the subject of the 
                        consultation, the opportunity to--
                                    ``(I) before the development of a 
                                draft biological opinion, submit and 
                                discuss with the Secretary and the 
                                Federal agency information relevant to 
                                the effect of the proposed action on 
                                the species and reasonable and prudent 
                                alternatives that the Federal agency 
                                and the person can take to avoid 
                                violation of subsection (a)(2), 
                                including any such alternatives 
                                proposed by the person;
                                    ``(II) receive information, on 
                                request, subject to the exemptions 
                                specified in section 552(b) of title 5, 
                                United States Code, on the status of 
                                the species, threats to the species, 
                                and conservation measures, used by the 
                                Secretary to develop the draft 
                                biological opinion and the final 
                                biological opinion, including any 
                                associated incidental taking 
                                statements; and
                                    ``(III) receive a copy of the draft 
                                biological opinion from the Federal 
                                agency and, before issuance of the 
                                final biological opinion, submit 
                                comments on the draft biological 
                                opinion and discuss with the Secretary 
                                and the Federal agency the basis for 
                                any finding in the draft biological 
                                opinion.
                            ``(ii) Explanation.--If alternatives are 
                        proposed by a person under clause (i) and the 
                        Secretary does not include the alternatives in 
                        the final biological opinion, the Secretary 
                        shall provide to the person reasonable 
                        justification, based on the best scientific and 
                        commercial data available, why those 
                        alternatives were not included in the opinion.
                            ``(iii) Public access to information.--
                        Comments and other information submitted to, or 
                        received from, any person (pursuant to clause 
                        (i)) who seeks authorization or funding for an 
                        action shall be maintained in a file for that 
                        action by the Secretary and shall be made 
                        available to the public (subject to the 
                        exemptions specified in section 552(b) of title 
                        5, United States Code).''.
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