[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6355 Introduced in House (IH)]

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115th CONGRESS
  2d Session
                                H. R. 6355

To amend the Endangered Species Act of 1973 to define petition backlogs 
  and provide expedited means for discharging petitions during such a 
                                backlog.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             July 12, 2018

Mr. Westerman (for himself, Mr. Biggs, Mr. Bishop of Utah, Mr. Cramer, 
 Mr. Duncan of South Carolina, Mr. Gosar, Mr. Norman, Mr. Abraham, Mr. 
 Luetkemeyer, Mr. Smith of Missouri, Mr. Banks of Indiana, Mrs. Noem, 
   Mr. Stewart, Mr. Collins of Georgia, Mr. McClintock, Mr. Estes of 
 Kansas, Mr. Gohmert, and Mr. Newhouse) introduced the following bill; 
        which was referred to the Committee on Natural Resources

_______________________________________________________________________

                                 A BILL


 
To amend the Endangered Species Act of 1973 to define petition backlogs 
  and provide expedited means for discharging petitions during such a 
                                backlog.

    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 ``Providing ESA Timing Improvements 
That Increase Opportunities for Nonlisting Act of 2018'' or the 
``PETITION Act of 2018''.

SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--Congress finds the following:
            (1) The number and type of species-listing petitions 
        received by the United States Fish and Wildlife Service (in 
        this Act referred to as the ``Service'') during the last two 
        decades under the Endangered Species Act of 1973 (16 U.S.C. 
        1531 et seq.) routinely outstrip the capacity of the agency to 
        process all such petitions within the timeframes required by 
        that statute, constituting a petition backlog.
            (2) A significant portion of petitions in the backlog would 
        ultimately be rejected as having failed to contain substantial 
        information, or containing substantial information but not 
        meriting a listing of a species as an endangered species or 
        threatened species, if the Service were to issue findings on 
        them.
            (3) The petition system has been overloaded with influxes 
        of petitions submitted by well-funded petitioners with the 
        express intention of creating a backlog that causes the Service 
        to fail to adhere to timeframes established in the Endangered 
        Species Act of 1973.
            (4) The deficit between total received petitions and 
        petitions processed within statutory timeframes results in the 
        Federal Government being exposed to legal liability on the 
        basis of such a backlog, in accordance with such intention of 
        petitioners.
            (5) Ensuing litigation initiated by such petitioners 
        results in the Service agreeing to or being court-ordered to 
        adhere to adverse timeframes, listing decisions, and 
        settlements.
            (6) Such litigation secures listings for species and 
        habitat designations for which the Service would otherwise not 
        issue a positive finding on the basis of its regular, 
        procedural evaluation of a petition.
            (7) Accordingly, such listings and designations are agreed 
        or adhered to contrary to the public interest insofar as the 
        public benefits from faithful execution of duly passed laws.
            (8) A statutory remedy is necessary to address the backlog 
        of the Service and to prevent such statutory abuse while 
        maintaining proper open channels for qualifying species to be 
        listed as threatened species or endangered species.
    (b) Purposes.--The purposes of this Act are the following:
            (1) To maintain safeguards and pathways to listing of 
        species as endangered species or threatened species, along with 
        all corresponding protections thereof, for any imperiled 
        species.
            (2) To limit unnecessary legal liability of the Federal 
        Government arising from any backlog of petitions received under 
        the Endangered Species Act of 1973.
            (3) To prevent adverse court orders and settlements arising 
        when such liability is exploited in litigation.
            (4) To accomplish all of the foregoing by reducing and 
        eliminating the backlog of excess petitions received by the 
        Service under the Endangered Species Act of 1973.

SEC. 3. DEFINITIONS.

    Section 2 of the Endangered Species Act of 1973 (16 U.S.C. 1531) is 
amended--
            (1) by inserting before the text the following:
    ``(a) In General.--''; and
            (2) by adding at the end the following:
    ``(b) Definitions Related to Petitions.--In this Act:
            ``(1) 90-day petition backlog.--The term `90-day petition 
        backlog' means such a backlog declared by the Secretary under 
        section 4(b)(3)(E).
            ``(2) 12-month petition backlog.--The term `12-month 
        petition backlog' means such a backlog declared by the 
        Secretary under section 4(b)(3)(E).
            ``(3) Backlog schedule.--The term `backlog schedule' means 
        a comprehensive, regularly updated compendium of petitioned-for 
        species that are the subject of a 90-day petition backlog or a 
        12-month petition backlog--
                    ``(A) that consists of--
                            ``(i) a list of petitions to add a species 
                        to a list of species under section 4(c), 
                        including petitions to move a species from the 
                        list of threatened species to the list of 
                        endangered species; and
                            ``(ii) a list of petitions to remove a 
                        species from a list of species under section 
                        4(c), including petitions to move a species 
                        from the list of endangered species to the list 
                        of threatened species; and
                    ``(B) in which the petitions in each such list 
                appear in the order in which the petitions were 
                submitted to the Secretary.
            ``(4) Backlog procedures.--The term `backlog procedures' 
        means the actions taken by the Secretary--
                    ``(A) under section 4(b)(3)(G) following the 
                declaration of a 90-day petition backlog; or
                    ``(B) under section 4(b)(3)(H) following the 
                declaration of a 12-month petition backlog.
            ``(5) Petitioned-for species.--The term `petitioned-for 
        species' means a species that has been identified in a petition 
        presented under subparagraph (A) or (B) of section 4(b)(3).''.

SEC. 4. BACKLOG DECLARATION AND PROCEDURES.

    (a) 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)(i) The Secretary shall--
                            ``(I) declare a 90-day petition backlog at 
                        any time the total number of species for which 
                        a petition is presented to the Secretary under 
                        subparagraph (A) that has not been the subject 
                        of a finding by the Secretary within the 
                        timeframe established under such subparagraph 
                        exceeds 5 percent of the number of species for 
                        which such petitions have been presented during 
                        the preceding 15 years;
                            ``(II) submit a backlog schedule for such 
                        backlog to--
                                    ``(aa) the President;
                                    ``(bb) the Chairman and ranking 
                                minority Member of the Committee on 
                                Environment and Public Works of the 
                                Senate; and
                                    ``(cc) the Chairman and ranking 
                                minority Member of the Committee on 
                                Natural Resources of the House of 
                                Representatives; and
                            ``(III) comply with backlog procedures 
                        under subparagraph (G) during the period such 
                        backlog is in effect.
                    ``(ii) The Secretary shall--
                            ``(I) declare a 12-month petition backlog 
                        at any time the total number of species for 
                        which a petition is being considered by the 
                        Secretary under subparagraph (B) that has not 
                        been the subject of a finding by the Secretary 
                        within the timeframe established under such 
                        subparagraph exceeds 5 percent of the number of 
                        species for which such petitions have been 
                        presented during the preceding 15 years;
                            ``(II) submit a backlog schedule for such 
                        backlog to--
                                    ``(aa) the President;
                                    ``(bb) the Chairman and ranking 
                                minority Member of the Committee on 
                                Environment and Public Works of the 
                                Senate; and
                                    ``(cc) the Chairman and ranking 
                                minority Member of the Committee on 
                                Natural Resources of the House of 
                                Representatives; and
                            ``(III) comply with backlog procedures 
                        under subparagraph (H) during the period such 
                        declaration is in effect.
                    ``(iii) Not later than 90 days after declaring a 
                90-day petition backlog or 12-month petition backlog, 
                and every 90 days thereafter during the period such 
                backlog is in effect, the Secretary shall submit to the 
                recipients under clause (ii)(II) and (iii)(II), 
                respectively, an updated backlog schedule that 
                contains--
                            ``(I) a list of petitioned-for species for 
                        which a finding had been made since the last 
                        submission of the backlog schedule under such 
                        clause;
                            ``(II) the outcomes of findings for all 
                        petitioned-for species for which a finding has 
                        been made since the last submission of the 
                        backlog schedule under such clause; and
                            ``(III) a summary of the bases of all 
                        findings for any petitioned-for species for 
                        which a finding has been made since the 
                        preceding submission of the backlog.
                    ``(F) The Secretary shall terminate a 90-day 
                petition backlog or 12-month petition backlog at such 
                time as the requirements for declaring such backlog 
                under subparagraph (E)(i) or (E)(ii), respectively, are 
                not fulfilled.
                    ``(G) During the effective period of a 90-day 
                petition backlog--
                            ``(i) the requirement under subparagraph 
                        (A) to make a finding within 90 days shall not 
                        apply with respect to any species that is the 
                        subject of a petition included in the list 
                        under section 2(b)(3)(A)(i);
                            ``(ii) except as provided in clause (iii), 
                        the Secretary shall not make any finding under 
                        subparagraph (A) with respect to any species 
                        included in the list under section 
                        2(b)(3)(A)(i) in the applicable backlog 
                        schedule, until the earlier of--
                                    ``(I) the date the Secretary 
                                terminates the backlog under 
                                subparagraph (F);
                                    ``(II) the date the applicable 
                                backlog schedule consists of only the 
                                list under such section; or
                                    ``(III) the date the only 
                                petitioned-for species in the backlog 
                                schedule to which the Secretary has not 
                                devoted sufficient resources so as to 
                                issue such a finding within 90 days are 
                                those in the list under such section; 
                                and
                            ``(iii) the Secretary is deemed to have 
                        made finding under subparagraph (A) that each 
                        petition for a species included in the list 
                        under section 2(b)(3)(A)(i) in the applicable 
                        backlog schedule does not present substantial 
                        scientific or commercial information indicating 
                        that the petitioned action may be warranted, 
                        effective upon the expiration of the 180-day 
                        period beginning on the date the petition was 
                        submitted.
                    ``(H) Except as provided in subparagraph (I)--
                            ``(i) after declaring a 12-month petition 
                        backlog under subparagraph (E)(ii) and before 
                        taking any actions under clause (ii) of this 
                        subparagraph, the Secretary shall assign each 
                        petition and petitioned-for species to be 
                        considered under such clause to one of the five 
                        priority bins referred to in the notice issued 
                        by the United States Fish and Wildlife Service 
                        entitled `Methodology for Prioritizing Status 
                        Reviews and Accompanying 12-month findings on 
                        Petitions for Listing Under the Endangered 
                        Species Act (81 Fed. Reg. 49248 (July 27, 
                        2016))'; and
                            ``(ii) during the effective period of such 
                        12-month petition backlog under subparagraph 
                        (E)(ii)--
                                    ``(I) the requirement under 
                                subparagraph (B) to make a finding 
                                within 12 months shall not apply with 
                                respect to any species that is the 
                                subject of a petition included in the 
                                list under section 2(b)(3)(A)(i);
                                    ``(II) the Secretary shall consider 
                                under this paragraph only petitions for 
                                species included in the list under 
                                section 2(b)(3)(A)(ii) in the 
                                applicable backlog schedule, that were 
                                submitted more than 12 months before 
                                the establishment of the backlog;
                                    ``(III) except as provided in 
                                subclause (IV), the Secretary shall not 
                                make any finding under subparagraph (B) 
                                with respect to any species included in 
                                the list under section 2(b)(3)(A)(i) in 
                                the applicable backlog schedule, until 
                                the earlier of--
                                            ``(aa) the date the 
                                        Secretary terminates the 
                                        backlog under subparagraph (F);
                                            ``(bb) the date the 
                                        applicable backlog schedule 
                                        consists of only the list under 
                                        such section; or
                                            ``(cc) the date the only 
                                        petitioned-for species in the 
                                        backlog schedule to which the 
                                        Secretary has not devoted 
                                        sufficient resources so as to 
                                        issue such a finding within 12 
                                        months are those in the list 
                                        under such section; and
                                    ``(IV) the Secretary is deemed to 
                                have made a finding under subparagraph 
                                (B)(i) for each species included in the 
                                list under section 2(b)(3)(A)(i) that 
                                the petitioned action is not 
                                warranted--
                                            ``(aa) effective upon the 
                                        expiration of the 18-month 
                                        period beginning on the date 
                                        the petition was submitted, if 
                                        the Secretary has not assigned 
                                        the species to the `Highest 
                                        Priority--Critically 
                                        Imperiled', `Strong Data 
                                        Already Available on Status' 
                                        priority bin or `New Science 
                                        Underway to Inform Key 
                                        Uncertainties' priority bin 
                                        referred to in the notice 
                                        referred to in clause (i); or
                                            ``(bb) effective upon the 
                                        expiration of the 24-month 
                                        period beginning on the date 
                                        the petition was submitted, if 
                                        the Secretary has assigned the 
                                        species to the `Strong Data 
                                        Already Available on Status' 
                                        priority bin or `New Science 
                                        Underway to Inform Key 
                                        Uncertainties' priority bin 
                                        referred to in the notice 
                                        referred to in clause (i).
                    ``(I)(i) In the case of the first 12-month petition 
                backlog under subparagraph (E)(ii)--
                            ``(I) item (aa) of subparagraph (H)(ii)(IV) 
                        shall be applied by substituting `30-month' for 
                        `18-month'; and
                            ``(II) item (bb) of subparagraph 
                        (H)(ii)(IV) shall be applied by substituting 
                        `36-month' for `24-month'.
                    ``(ii) The Secretary may not under subparagraph 
                (H)(i) change the assignment of a petition or 
                petitioned-for species from one priority bin to another 
                priority bin.
                    ``(J) In the case of findings under subparagraph 
                (G)(iii) and (H)(ii)(IV), the publication under 
                subparagraph (A) or (B)(i), respectively, may consist 
                solely of a notice of each finding.
                    ``(K)(i) Except as otherwise provided in this Act, 
                the Secretary shall regularly maintain on the internet 
                site of the United States Fish and Wildlife Service a 
                publically available database of petitions referred to 
                in this paragraph and species otherwise evaluated under 
                subsection (a).
                    ``(ii) The database shall contain information about 
                each petitioned-for species including--
                            ``(I) the date a petition for such species 
                        was submitted;
                            ``(II) the person who submitted the 
                        petition;
                            ``(III) the current status of the petition 
                        within the statutory and agency process, 
                        including the most recent agency action taken;
                            ``(IV) a web link to any documents received 
                        under this paragraph that constituted the 
                        petition for such species;
                            ``(V) a web link to any materials the 
                        Secretary has received from State or local 
                        governments pertaining to petitions to list 
                        such species;
                            ``(VI) the outcomes of all prior 
                        petitioning or listing procedures for such 
                        species; and
                            ``(VII) the outcomes of all prior 
                        litigation against the Federal Government on 
                        the basis of a petition for or listing of such 
                        species, including actions or agreements by the 
                        Federal Government to--
                                    ``(aa) dispense monies to 
                                litigating parties or counsel;
                                    ``(bb) promulgate rules as a direct 
                                or indirect result of litigation 
                                outcomes or agreements;
                                    ``(cc) resolve any matter related 
                                to the petition or a petitioned-for 
                                species by a certain date, or 
                                otherwise;
                                    ``(dd) conduct further research or 
                                analysis related to the petition or 
                                petitioned-for species; or
                                    ``(ee) engage in any other activity 
                                as a result of the terms of litigation 
                                settlements or court-orders related to 
                                such petitions or petitioned-for 
                                species.
                    ``(L)(i) Except as provided in clauses (ii) and 
                (iii), any negative finding described in subparagraph 
                (A) and any finding described in clause (i) or (ii) of 
                subparagraph (B) shall be subject to judicial review.
                    ``(ii) A petition in the list under section 
                2(a)(3)(A)(i) of the backlog schedule for a 12-month 
                petition backlog is not subject to judicial review--
                            ``(I) on the basis of a negative finding by 
                        the Secretary under subparagraph (H)(ii)(IV); 
                        or
                            ``(II) on the basis that the Secretary has 
                        failed to make a finding within the 12-month 
                        timeframe established under subparagraph (B).
                    ``(iii) Notwithstanding subparagraph (C)(ii), a 
                finding by the Secretary under subparagraph (G)(iii), 
                and any failure by the Secretary in the effective 
                period of a 90-day petition backlog to make a finding 
                under subparagraph (A) with respect to any species 
                included in the list under section 2(b)(3)(A)(i) in the 
                applicable backlog schedule, is not subject to judicial 
                review.''.
    (b) Conforming Amendment.--Section 4(b)(3)(C) of the Endangered 
Species Act of 1973 (16 U.S.C. 1533(b)(3)(C)) is amended--
            (1) by striking clause (ii); and
            (2) by redesignating clause (iii) as clause (ii).
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