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

                                                 Union Calendar No. 471
107th CONGRESS
  2d Session
                                H. R. 4840

                          [Report No. 107-751]

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

                            October 15, 2002

 Additional sponsors: Mr. Thomas, Mr. Otter, Mr. Herger, Mr. Gallegly, 
 Mr. Simpson, Mr. Thune, Mr. Peterson of Minnesota, Mr. Hayworth, Mr. 
  Radanovich, Mr. Sessions, Mr. Cunningham, and Mr. Lewis of Kentucky

                            October 15, 2002

  Reported with an amendment, committed to the Committee of the Whole 
       House on the State of the Union, and ordered to be printed
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]
[For text of introduced bill, see copy of bill as introduced on May 23, 
                                 2002]

_______________________________________________________________________

                                 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 natural range of 
                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 
        by the Secretary 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 further amended 
by adding at the end the following:
    ``(10) 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.
    ``(11)(A) 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) 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) In this 
subsection:
            ``(A) 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);
                    ``(iv) the determination that a proposed action is 
                likely to jeopardize the continued existence of a 
                listed species or result in the destruction or adverse 
                modification of critical habitat 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; and
                    ``(v) the determination that a proposed action is 
                not likely to jeopardize the continued existence of a 
                listed species or result in the destruction or adverse 
                modification of critical habitat, if the Secretary 
                finds that there is significant disagreement regarding 
                that determination or proposal.
            ``(B) 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, except 
        that such term does not include any individual with a conflict 
        of interest as determined by the Secretary or by a Governor who 
        nominates the individual under paragraph (3)(B).
    ``(2) 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)(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) If funds are available, 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 is below the 
level of the Director of the United States Fish and Wildlife Service or 
the Assistant Administrator for Fisheries of the National Oceanic and 
Atmospheric Administration.
    ``(4)(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--
                    ``(I) 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) is modeled after applicable National Academy 
                of Sciences policies and guidelines for report reviews; 
                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) 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) 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.''.
    (c) Extension of Periods.--Section 4(b)(6) of the Endangered 
Species Act of 1973 (16 U.S.C. 1533(b)(6)) is amended--
            (1) in subparagraph (A)--
                    (A) in the matter preceding clause (i) by striking 
                ``one-year'' and inserting ``18-month''; and
                    (B) in clause (i)(III) by striking ``one-year'' and 
                inserting ``18-month''; and
                    (C) in clause (ii)(II) by striking ``one-year'' and 
                inserting ``18-month'';
            (2) in subparagraph (B)--
                    (A) in clause (i) by striking ``one-year'' and 
                inserting ``18-month'';
                    (B) in clause (ii) by striking ``one-year'' and 
                inserting ``18-month''; and
                    (C) in clause (iii) by striking ``one-year'' and 
                inserting ``18-month''; and
            (3) in subparagraph (C)(ii) by striking ``one-year'' and 
        inserting ``18-month''.

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) 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)(i) In conducting a consultation with a Federal agency under 
subsection (a)(2), the Secretary and the head of the agency 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) 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) 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).''.




                                                 Union Calendar No. 471

107th CONGRESS

  2d Session

                               H. R. 4840

                          [Report No. 107-751]

_______________________________________________________________________

                                 A BILL

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

_______________________________________________________________________

                            October 15, 2002

  Reported with an amendment, committed to the Committee of the Whole 
       House on the State of the Union, and ordered to be printed