[Senate Report 106-126]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 237
106th Congress                                                   Report
                                 SENATE
 1st Session                                                    106-126

======================================================================



 
   AMENDMENTS TO THE CRITICAL HABITAT REQUIREMENTS OF THE ENDANGERED 
                          SPECIES ACT OF 1973

                                _______
                                

                 July 28, 1999.--Ordered to be printed

                                _______


    Mr. Chafee, from the Committee on Environment and Public Works, 
                        submitted the following

                              R E P O R T

                         [to accompany S. 1100]

                             together with

                            ADDITIONAL VIEWS

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Environment and Public Works, to which was 
referred the bill (S. 1100) to amend the Endangered Species Act 
of 1973 to provide that the designation of critical habitat for 
endangered and threatened species be required as part of the 
development of recovery plans for those species, having 
considered the same, reports favorably thereon with an 
amendment, and recommends that the bill, as amended, do pass.

                    General Statement and Background

Critical Habitat Designations
    Congress enacted the Endangered Species Act in 1973 (ESA) 
to establish a program to identify and protect species of fish, 
wildlife and plants that are endangered or threatened. Section 
4(b) of the ESA establishes a process for the Secretary (the 
Fish and Wildlife Service or the National Marine Fisheries 
Service) to determine whether a species is endangered or 
threatened. Concurrently with this determination, the Secretary 
is also required, to the maximum extent prudent and 
determinable, to designate critical habitat for the species. If 
the Secretary finds that critical habitat is indeterminable at 
the time of listing, the Secretary may delay the designation by 
one year.
    The ESA defines critical habitat occupied by the species as 
the area containing biological and physical features essential 
to the conservation of the species and requiring special 
management considerations or protections. Critical habitat not 
occupied by the species may be designated upon a determination 
by the Secretary that it is essential for the conservation of 
the species. The Secretary is required to base the designation 
on the best scientific data available, after taking into 
consideration the economic impact, and any other relevant 
impact, of specifying any particular area as critical habitat. 
The Secretary may exclude any area from critical habitat upon a 
determination that the benefits of exclusion outweigh the 
benefits of designating the specific area, unless failure to do 
so will result in the extinction of the species.
    Once critical habitat is designated for a listed species, 
each Federal agency is required under section 7 to ensure that 
any action it funds, authorizes or carries out is not likely to 
jeopardize the continued existence of the species or result in 
the destruction or adverse modification of its critical 
habitat. Through regulations codified at 50 CFR 402.02, the 
Secretary has defined ``likely to jeopardize the continued 
existence of'' as ``engag[ing] in an action that reasonably 
would be expected, directly or indirectly, to reduce 
appreciably the likelihood of survival and recovery of a listed 
species in the wild,'' and has defined ``destruction or adverse 
modification of critical habitat'' as ``a direct or indirect 
alteration that appreciably diminishes the value of critical 
habitat for both the survival and recovery of a listed 
species.''
    The designation of critical habitat for endangered and 
threatened species has proven to be one of the most vexing, 
complicated and controversial provisions of the ESA. Of almost 
1,200 species listed as endangered or threatened by the Fish 
and Wildlife Service, only 113--nine percent--have critical 
habitat designated. Indeed, of the 256 species listed since 
April 1996, the Service has designated critical habitat for 
only two. As a result, numerous lawsuits have been recently 
brought against the Service for failure to designate critical 
habitat. According to the Fish and Wildlife Service, currently 
17 active lawsuits are pending, with 15 already decided--all 
but one against the Service (see e.g., Conservation Council for 
Hawaii v. Babbitt, 24 F. Supp. 2d 1074 (D. Hi. 1998))--and 
prospective challenges on critical habitat for another 123 
species are on the horizon.
    Problems with critical habitat have been chronic over the 
life of the ESA. In 1978, this committee noted in its report 
accompanying S. 2899 that ``[i]n many cases the Fish and 
Wildlife Service has been unable to explain fully or predict 
what the impacts of a critical habitat designation are going to 
be on activities which occur within a designated critical 
habitat.'' For this reason, Congress required an economic 
analysis and public participation as part of the designation 
process. However, in 1982, this committee observed, in its 
report accompanying S. 2309, that the 1978 amendment ``burdened 
the listing process.'' It went on to state: ``The designation 
of critical habitat has failed on two grounds. First, it is not 
being designated. Second, it has improperly delayed listings.'' 
As a result, Congress enacted the strict timetables for 
listings and designations that exist in the law today. As the 
recent statistics demonstrate, neither of these amendments to 
the ESA have achieved their desired effect.
    Indeed, during a hearing before the Subcommittee on 
Fisheries, Wildlife and Drinking Water on May 27, 1999, not one 
witness endorsed the current law with respect to the 
designation requirement. While each offered reasons why the 
current process was problematic, there was a fundamental 
disagreement on the basic concept of critical habitat. The 
Honorable Jamie Clark, Director of the Fish and Wildlife 
Service, stated that ``[f]or almost all Federal actions, the 
adverse modification of critical habitat and jeopardy to the 
species are the same, resulting in critical habitat designation 
being no more than regulatory process that duplicates the 
protection already provided by the jeopardy standard.'' At the 
same time, John F. Kostyack of the National Wildlife Federation 
argued that critical habitat augments protections afforded by 
the jeopardy standard with respect to unoccupied habitat, and 
further stated that critical habitat is ``a vital tool for 
protecting, managing and restoring habitats of listed 
species.'' Charles T. DuMars of the University of New Mexico 
School of Law also believed that critical habitat designations 
had significant consequences, and noted that ``not only does 
the critical habitat designation place individual[s]. . . at 
risk for civil and criminal penalties if they alter critical 
habitat. . . it governs all future operations of all Federal 
agencies. . . .'' As William R. Murray of American Forest and 
Paper Association observed, there is ``overall disarray of the 
critical habitat concept and the lack of support from the 
expert agencies.'' A recent report by the Congressional 
Research Service notes the importance of critical habitat and 
comments that the Service's conclusions that designations 
provide little additional protection to listed species and 
consumes significant funding and staff time ``seem to have 
resulted from how the FWS has interpreted certain aspects of 
the ESA.'' See CRS, The Role of Designation of Critical Habitat 
under the Endangered Species Act, July 16, 1999.
    The reasons for the problems with critical habitat 
designations become evident with an analysis of the statutory 
and regulatory structure outlined above. The root of the 
problems lies in the fact that the designation is required 
concurrently with the listing, although the information 
required for designations is different from the information 
required for listings. In determining whether a species is 
threatened or endangered, the Secretary must consider 
population numbers, distributions and trends, as well as 
immediate and future threats to the species; however, in 
designating habitat as critical, the Secretary must know the 
conservation needs of the species, as well as special 
management considerations for the species and its habitat. This 
difference is a question of degree: information for designation 
generally requires more knowledge of the species and its 
habitat and the natural and human impacts to them, which is 
unavailable, or not well known, to the Secretary during the 
listing process. Both the listings and designations are 
required to be based on the best available scientific and 
commercial data. With respect to designations, however, even 
the best available data at the time of listing are often poor 
because the data are generally ascertained in developing the 
recovery plan for the species. Consequently, more 
scientifically sound decisions regarding designation can be 
made at the time of recovery planning than at the time of 
listing.
    The disjunction between listings and designations also 
arises because of the different requirements regarding an 
economic analysis for each action. Specifically, designation of 
critical habitat requires an analysis of the economic impact, 
and any other relevant impact, resulting from the designation, 
whereas the listing of a species as endangered or threatened 
must be based upon solely the best scientific and commercial 
data available. With the strict deadlines and limited 
information available during the listing process, the Secretary 
frequently has conducted a cursory analysis of the economic 
impacts of the designation, even after invoking the 1-year 
extension in designating habitat allowed by statute. As with 
information on the conservation needs of the species, 
information on the economic costs of management measures for 
the species is prepared as part of the recovery plan.
    The problems are compounded by the similarity in standards 
applied to species and critical habitat. Because ``jeopardy'' 
is so closely related to ``adverse modification,'' the 
Secretary has concluded that they mean virtually the same 
thing. As Director Clark mentioned in her testimony before the 
Subcommittee on Fisheries, Wildlife and Drinking Water, ``the 
Service believes that the protection conveyed by designation of 
critical habitat is duplicative of the prohibition against 
jeopardy for most species.'' Consequently, the Service has 
decided, in many instances, that critical habitat is ``not 
prudent'' because it affords no additional protections to the 
species. For the 256 species listed by the Fish and Wildlife 
Service since April 1996, it has determined that critical 
habitat is ``not prudent'' 228 times. The authority to 
determine that critical habitat is ``not prudent'' was intended 
for a different circumstance, to be exercised only rarely. Also 
because of the Service's position, it often prepares no 
economic analysis of a designation, insisting that there are no 
economic impacts attributed exclusively to the designation. 
However, when Congress enacted the 1978 amendments relating to 
critical habitat, it envisioned that the designation may have 
certain impacts on the area so designated, and further observed 
that protection of the habitat of listed species was the key to 
protection of the species themselves.
Recovery Plans
    Under section 4(f) of the ESA, the Secretary is required to 
develop and implement recovery plans for listed species, unless 
the Secretary finds that the plan will not promote the 
conservation of the species. The Secretary must incorporate in 
each plan the following: a description of the site-specific 
management actions to achieve the plan's goal; objective, 
measurable criteria that, when met, would result in the 
delisting of the species; and estimates of the time and cost 
for carrying out the measures needed to achieve the plan's 
goal. For the species, recovery plans serve as blueprints for 
long-term conservation strategies leading to recovery; for the 
landowners, recovery plans provide an opportunity to develop 
sound scientific information, an indication of activities that 
affect recovery, and estimated costs of recovery actions, which 
gives some certainty with respect to future requirements.
    However, there is no deadline for the Secretary to develop 
recovery plans, which undermines these purposes. In recent 
years, the Fish and Wildlife Service has undertaken great 
efforts to prepare plans for listed species, and has 
significantly reduced the backlog of listed species that do not 
have recovery plans. Nevertheless, at present, according to the 
Service, 269 species do not have final recovery plans--23 
percent of the total number of listed species. Of these 269 
species, 41 have been listed for longer than 3 years.
    Once the Secretary does prepare a plan, it can be many 
years before that plan will be revised with new scientific and 
economic information. Of the 890 species with existing plans, 
438 species have plans that were developed 5 years ago or 
longer, with 216 of these species covered by plans developed 10 
years ago or longer without being revised at all.
    It is against the backdrop of these statistics that the 
recovery planning provisions must be viewed. The purpose of the 
ESA is to conserve, recover and delist species, so that the 
often costly and contentious protections afforded by the Act 
are no longer necessary. The ESA's ultimate goal is thus to 
make itself obsolete. The linchpin of recovery is the recovery 
plan. The first step toward recovery, therefore, is to ensure 
that recovery plans are developed in a timely manner, with the 
best scientific information available.

               Objectives and Summary of the Legislation

    The purpose of this bill is to amend the Endangered Species 
Act of 1973 to provide that the designation of critical habitat 
for endangered and threatened species be required as part of 
development of recovery plans for those species.
    The bill moves the requirement to designate critical 
habitat from the time of listing to the time of recovery plan 
development. This will enable the Secretary to better assess 
both the conservation needs and the economic impacts relating 
to the designation. The bill also makes the designation a 
component of the recovery plan, which will alleviate some of 
the regulatory burdens and litigation pressures on the 
Secretary. In the event that the Secretary determines that 
designation is necessary to avoid the imminent extinction of 
the species, the bill requires the Secretary to designate 
critical habitat concurrently with listing. The bill also 
requires the Secretary to seek additional information at the 
time of listing to assist both the Secretary and the recovery 
team in developing the recovery plan and designating critical 
habitat. In sum, the bill seeks to make the designation of 
critical habitat a meaningful and workable part of the law.
    With respect to recovery planning, the bill provides a 
deadline for development of recovery plans, no later than 30 
months after listing. The bill also requires the Secretary to 
appoint a recovery team, unless the Secretary decides, after 
public notice and opportunity for comment, that one will not be 
appointed. The bill identifies the parameters for selecting the 
team. In sum, the bill seeks to jump-start the recovery process 
for listed species.
    As a related matter, the bill addresses the substantial 
backlog in critical habitat designations and recovery plans, 
particularly by the Fish and Wildlife Service. It provides a 
framework for species listed prior to date of enactment based 
on four criteria: whether a final recovery plan has been 
prepared before the date of enactment; whether the Secretary 
decides to revise an existing plan within 10 years after 
enactment; whether critical habitat has been designated for the 
species; and whether the failure to designate has been subject 
to a court order.

                      Section-By-Section Analysis

Section 1. Recovery Plans
            Summary
    This section amends section 4(f) of the ESA. Section 1(1) 
of the bill amends section 4(f)(1) to provide that recovery 
plans are not required to be developed by the Secretary for 
species that are not indigenous to the United States or waters 
with respect to which the United States exercises sovereign 
rights or jurisdiction.
    Section 1(2) of the bill amends section 4(f)(2) of the ESA, 
relating to the appointment of recovery team. Not later than 
120 days after the date of publication of a final determination 
that a species is a threatened or endangered species under 
subsection 4(b) of the ESA, the Secretary shall appoint a 
recovery team to develop a recovery plan for the species. The 
Secretary may, after public notice and opportunity for comment, 
determine that a recovery team shall not be appointed, in which 
case the Secretary shall perform all the duties of the recovery 
team. New section 4(f)(2)(D) provides that each recovery team 
shall include the Secretary and at least one representative 
from each affected State that chooses to participate, and shall 
have balanced representation among constituencies with an 
interest in the species and its recovery, and with an interest 
in the economic or social impacts of recovery. This includes 
Federal agencies, tribal governments, local governments, 
academic institutions, private individuals (including 
landowners), conservation and other organizations, and 
commercial enterprises. When a recovery plan or critical 
habitat designation will have a significant impact on private 
land, the Secretary shall invite at least one landowner or one 
representative of an organization representing landowners to 
serve on the team. The recovery team members shall be selected 
for their knowledge of the species or for their expertise in 
the elements of the recovery plan or its implementation.
    Section 1(3) of the bill amends section 4(f)(4) of the ESA, 
so that when a final recovery plan has been published, the 
Secretary shall respond to comments received during the comment 
period.
    Section 1(4) of the bill mandates deadlines for developing 
recovery plans. Specifically, under new section 4(f)(6), for 
each species for which the Secretary is required to develop a 
recovery plan, the Secretary shall publish, not later than 18 
months after the date of the publication under subsection (b) 
of the final regulation containing the listing determination, a 
draft recovery plan; and not later than 30 months after the 
date of publication under subsection (b) of the final 
regulation containing the listing determination, a final 
recovery plan.
            Discussion
    As noted earlier, recovery of species is the paramount 
objective of the ESA, and recovery plans serve as the 
blueprints for recovery. As a first step, then, recovery plans 
must be developed in a timely manner. The bill requires 
recovery teams to be appointed no later than 120 days after 
listing, draft recovery plans to be published no later than 18 
months after listing, and final recovery plans to be published 
no later than 30 months after listing. These deadlines are 
consistent with the administrative policies of both the Fish 
and Wildlife Service and the National Marine Fisheries Service.
    The next step in promoting recovery is to develop 
scientifically sound recovery plans that have the support of 
the various stakeholders interested in the species and recovery 
efforts. For this reason, the Secretary is generally required 
to appoint a recovery team, although the Secretary maintains 
the ability to not appoint a team after public notice and 
opportunity for comment.
    The recovery team should be broad-based and well-balanced. 
At the same time, it should not be so large that it becomes 
cumbersome and unwieldy. At a minimum, each team must have a 
balanced representation among constituencies with an interest 
in the species and its recovery, and with an interest in the 
economic or social impacts of recovery. When a recovery plan or 
critical habitat designation will have a significant impact on 
private land, the Secretary shall invite at least one landowner 
or one representative of an organization representing 
landowners to serve on the team. All members must have 
knowledge of the species or expertise in the elements of the 
recovery plan or its implementation. The Secretary may appoint 
members from among Federal agencies, tribal governments, local 
governments, academic institutions, private individuals, 
conservation and other organizations, and commercial 
enterprises. In selecting members, the Secretary shall give 
preference to qualified local individuals of these entities.
Section 2. Critical Habitat Designations
            Summary
    Section 2(a) amends the ESA by adding a new section 4(f)(7) 
relating to critical habitat designations. New subparagraph (A) 
provides that the Secretary, to the extent prudent, shall 
designate habitat that is considered critical habitat of an 
endangered or threatened species that is indigenous to the 
United States or waters with respect to which the United States 
exercises sovereign rights or jurisdiction. Specifically, under 
new clause (i), the Secretary shall designate proposed critical 
habitat as part of the draft recovery plan, and final critical 
habitat as part of the final recovery plan, both after 
consultation and in cooperation with the recovery team. Under 
new clause (ii), if the Secretary does not prepare a plan, the 
Secretary must designate critical habitat by regulation not 
later than 3 years after making a determination that the 
species is endangered or threatened.
    Under new clause (iii), the Secretary shall designate 
critical habitat for an endangered or threatened species 
concurrently with the listing if the Secretary determines that 
the designation of such habitat at the time of listing is 
essential to avoid the imminent extinction of the species. When 
designating at the time of listing, the Secretary must provide 
public notice and opportunity for comment prior to the 
designation, respond to such comments, and publish responses 
and the designation in the Federal Register. The designation 
shall be considered a final agency action for purposes of 
judicial review, although the recovery team and the Secretary 
shall review and revise, as appropriate, the designation during 
the development of the recovery plan for the species.
    New subparagraph (B) states that the critical habitat 
designation shall be made on the basis of the best scientific 
and commercial data available and after taking into 
consideration the economic impact, impacts to military training 
and operations, and any other relevant impact, of specifying 
any particular area as critical habitat. These impacts must be 
described in the draft and final recovery plans (or 
regulations).
    New subparagraph (C) states that the Secretary may exclude 
any area from critical habitat if the Secretary determines that 
the benefits of the exclusion outweigh the benefits of 
designating the area as part of the critical habitat, unless 
the Secretary determines, based on the best scientific and 
commercial data available, that the failure to designate the 
area as critical habitat will result in the extinction of the 
species.
    New subparagraph (D) provides that, at the time of a 
determination that a species is endangered or threatened, the 
Secretary undertake efforts to attain additional data for 
designations and recovery plans. Specifically, the Secretary 
shall publish a description of additional scientific and 
commercial data that would assist in the preparation of a 
recovery plan and designation of critical habitat, invite any 
person to submit data to the Secretary, and describe the steps 
that the recovery team and the Secretary will take to acquire 
additional data.
    New subparagraph (E) states that, in accordance with 
section 11(g), any person may bring a civil action against the 
Secretary regarding the designation of critical habitat.
    Section 2(b) of the bill addresses the backlog of recovery 
plans and designations for species listed prior to the date of 
enactment of the bill. Paragraph (1) relates to recovery plans. 
Paragraph (1)(A) requires the Secretary to develop a plan for 
any species listed, but without a final recovery plan, on the 
date of enactment. Plans for not less than half the species 
must be completed no later than 36 months after that date, and 
for the remaining species not later than 60 months after that 
date.
    Paragraph (1)(B) provides that the Secretary shall publish, 
not later than 270 days after the date of enactment, a list of 
the species for which the Secretary will revise recovery plans 
developed prior to the date of enactment, and the schedule for 
revising the plans.
    Paragraph (1)(C) requires that the Secretary of the 
Interior and the Secretary of Commerce each, after providing 
notice and opportunity for public comment, develop and 
implement a priority ranking system for the development and 
revision of recovery plans under the law, in the most efficient 
and effective manner practicable. In developing the priority 
ranking System, the Secretary shall be consistent with the 
criteria set forth in section 4(f)(1)(A) of the ESA and shall 
take into account the scientifically based biological needs of 
the species.
    Paragraph (1)(D) establishes a schedule for revising 
recovery plans identified on the list established under 
subparagraph (B), with \1/3\ of the species required to have 
recovery plans completed not later than 4 years after date of 
enactment, \2/3\ of the species required to have recovery plans 
completed not later than 7 years after date of enactment, and 
the remaining balance required to have recovery plans not later 
than 10 years after date of enactment.
    Paragraph (1)(E) states that no person may bring a civil 
action under title 5 of the U.S. Code (the Administrative 
Procedure Act) or the ESA, alleging failure to develop a 
recovery plan or to designate critical habitat for the 
following: any listed species before 270 days after date of 
enactment; any species for which a recovery plan is required to 
be developed under subparagraph (A) before sixty months after 
date of enactment; or any species on a list established under 
subparagraph (B) before the date on which the recovery plan and 
designation are required to be completed in accordance with the 
schedule established under subparagraph (D).
    Paragraph (2) relates to critical habitat designations. 
Paragraph (2)(A) states that the Secretary shall review, and 
revise as necessary, any designation for a listed species when 
the Secretary develops or revises the final recovery plan for 
the species. Each area designated as critical habitat before 
date of enactment shall continue to be considered until the 
designation is revised in accordance with this subsection, at 
which point the regulation designating critical habitat shall 
be withdrawn.
    Paragraph (2)(B)(i) states that if the Secretary has not 
designated critical habitat for a listed species, the Secretary 
shall designate critical habitat for the species as part of the 
development or revision of the recovery plan. Paragraph 
(2)(B)(ii) provides an exception from this requirement in one 
of two cases: one in which court has issued, prior to the date 
of enactment, an order relating to critical habitat 
designation; or one in which a court issues an order in an 
action for which a complaint was filed before July 1, 1999 
regarding the designation of critical habitat. Such 
designations, however, are subject to revisions under 
subparagraph (A). Nothing in this clause affects the right of 
any party to appeal a court order relating to a designation.
            Discussion
    As mentioned earlier, Congress has repeatedly tried to 
address chronic problems regarding critical habitat 
designations, and yet those problems persist. By moving the 
designation from listing to recovery planning and making it 
non-regulatory, this bill offers a solution that should benefit 
both species and landowners. These changes to the designation 
process were generally supported by the witnesses at the May 27 
hearing. The substantive requirements in designating critical 
habitat change only slightly, and the section 7 mandate with 
respect to destruction or adverse modification does not change 
at all.
    The new provisions for critical habitat are moved to a new 
section 4(f)(7) of the ESA. Subparagraph (A) of this new 
section lays out the general requirement, but in doing so, 
makes several clarifications and changes. First, the Secretary 
has exercised discretion in finding that, for species in 
foreign countries, designation is not prudent and recovery 
plans do not promote the species' conservation. Consistent with 
this practice, this bill requires recovery plans and 
designations only for those species that are indigenous to the 
United States or waters with respect to which the United States 
exercises sovereign rights or jurisdiction.
    Second, this subparagraph eliminates the authority for the 
Secretary to find the critical habitat is indeterminable. This 
authority gave the Secretary some breathing room in the context 
of the strict deadlines associated with the listing petition 
process. Given the changes made by this bill, there is no need 
for this excuse to not designate critical habitat.
    Third, the Secretary's authority to determine that 
designation is not prudent is retained, although it is with the 
express understanding that this authority is to be exercised 
only in rare situations. In finding that designation is not 
prudent in 228 out of 256 instances since April 1996, the Fish 
and Wildlife Service has made the designation of critical 
habitat the exception rather than the rule. This is 
inconsistent with the original purpose of a ``not prudent'' 
finding, well stated in the 1978 report by the former House 
Committee on Merchant Marine and Fisheries:

            The phrase . . . is intended to give the Secretary 
        the discretion to decide not to designate critical 
        habitat concurrently with the listing where it would 
        not be in the best interests of the species to do so. 
        As an example, the designation of critical habitat for 
        some endangered plants may only encourage individuals 
        to collect these plants to the species [sic] ultimate 
        detriment. The committee intends that in most 
        situations the Secretary will, in fact designate 
        critical habitat . . . . It is only in rare 
        circumstances where the specification of critical 
        habitat concurrently with the listing would not be 
        beneficial to the species.

    Subparagraph (A) also requires the Secretary to designate 
critical habitat for species concurrently with the 
determination that the species is endangered or threatened, if 
the Secretary determines that the designation at the time of 
listing is essential to avoid the imminent extinction of the 
species. This provision is expected to be rarely used, only in 
those instances in which the designation is the difference 
between survival and extinction.
    As provided by subparagraphs (B) and (C), the basis for the 
designation and any exclusions is generally unchanged from 
existing law. There is one change in the factors that the 
Secretary must consider in designating critical habitat: the 
Secretary must take into consideration any impacts to military 
training and operations.
    In deciding whether to exclude any lands from the 
designation under subparagraph (C), the Secretary should apply 
the principles of the Administration's ``Ten Point Plan'' on 
the ESA, published March 6, 1995. The Plan provides that the 
ESA must be administered in a manner that assures fair and 
considerate treatment for those whose use of property is 
affected by its programs. The Plan further emphasizes the 
importance of having each Federal agency fully meet its 
responsibilities for conserving species in order to reduce 
impacts to private lands.
    Addressing the backlog of critical habitat designations and 
recovery plans for species already listed has been one of the 
most challenging aspects of this bill. Section 2(b) of the bill 
establishes a framework to allow the Secretary an opportunity 
to catch up on overdue designations and recovery plans without 
incurring additional litigation exposure. This framework 
creates two broad categories.
    The first category concerns species listed prior to the 
date of enactment and for which no final recovery plan has been 
developed. Under paragraph (1)(A) of section 2(b) of the bill, 
the Secretary shall complete recovery plans for no less than 
half the number of such species no later than 36 months after 
that date, and for the remaining species no later than 60 
months after that date. The term ``Secretary'' has the same 
meaning as it does in section 3 of the ESA.
    The second category concerns species listed prior to the 
date of enactment that do have final recovery plans. Many of 
these plans are outdated. The bill provides an opportunity for 
the Secretary to revise these plans, according to certain 
schedules and requirements, but in exchange, the Secretary is 
shielded from lawsuits while the revisions are being made. This 
structure is intended to encourage the Secretary to freely 
revise plans so that they are based on sound, accurate science. 
Specifically, paragraph (1)(B) requires the Secretary to 
publish, not later than 270 days after the date of enactment, a 
list of species for which the Secretary will revise recovery 
plans, as well as a schedule for revising the plans. Paragraph 
(1)(D) provides that, in establishing the schedule, the 
Secretary shall require that recovery plans for \1/3\ of the 
species on the list be completed not later than 4 years after 
date of enactment, \2/3\ of the species on the list be 
completed not later than 7 years after that date, and all 
species on the list be completed not later than 10 years after 
that date.
    Paragraph (1)(E) provides a bar to lawsuits under the 
Administrative Procedure Act or the ESA alleging a failure to 
develop a recovery plan or to designate critical habitat for 
certain periods. Under clause (i), no challenge regarding 
failure to designate habitat or prepare or revise a recovery 
plan can be brought for any threatened or endangered species 
prior to 270 days after the date of enactment. This allows the 
Secretary an opportunity to prepare the lists, develop the 
priority ranking system, and put together the schedule for all 
species that either do not have plans or for which plans should 
be revised. Under clause (ii), no challenge can be brought for 
any species prior to 60 months after the date of enactment for 
which a recovery plan is required to be developed during that 
time. Under clause (iii), no challenge can be brought for any 
species prior to the date on which the plan and designation are 
required to be completed in accordance with the schedule. This 
bar to litigation applies only to these explicit categories. 
Nothing in this provision prohibits any person from commencing 
a civil action alleging the failure to revise a recovery plan 
or designate critical habitat for a species that is not 
included in the list published by the Secretary pursuant to 
paragraph 1(B).
    The backlog for critical habitat designations is folded 
into the framework for developing or revising recovery plans. 
Under paragraph (2)(A) of section 2(b) of the bill, the 
Secretary shall review, and revise as necessary, any 
designation of critical habitat for a species listed, but for 
which no final recovery plan exists, prior to date of 
enactment. If the designation is revised, it must be done in 
accordance with the new requirements provided in the bill. 
Until then, any critical habitat previously designated remains 
valid.
    Under paragraph 2(B), for any species that does not have 
critical habitat, the Secretary shall designate critical 
habitat, in accordance with the new requirements provided in 
the bill, as part of the development or revision of the 
recovery plan. An exception is provided for cases in which a 
court has issued, prior to date of enactment, an order relating 
to a designation, or in which a complaint relating to a 
designation was filed prior to July 1, 1999, and a court order 
is subsequently entered.
    This framework thus provides that in all cases in which the 
Secretary develops or revises a recovery plan, the Secretary 
shall at least review existing designations, and make new 
designations if none exist. In cases in which the Secretary 
chooses not to revise a recovery plan, any obligation to 
designate critical habitat exists as it did under the law prior 
to the date of enactment. The Secretary remains susceptible to 
any legal challenge with respect to those designations under 
the existing law prior to date of enactment.
    It should be noted that, when Congress established the duty 
to designate critical habitat, in the 1978 amendments to the 
ESA, designation was required only for those species listed 
after the date of enactment of those amendments. Designation of 
critical habitat for species listed prior to that date was 
discretionary on the part of the Secretary. Nothing in this 
bill seeks to change that premise. In requiring critical 
habitat for species listed prior to the date of enactment to be 
designated or revised under the new procedures, this bill 
applies only to those species for which the designation of 
critical habitat is already required.
Section 3. Authorization of Appropriations
            Summary
    Section 3 authorizes appropriations to carry out the bill, 
the amendments to the ESA made by the bill, and section 4(f) of 
the ESA. Annual appropriations to the Secretary of the Interior 
are authorized from fiscal year 2000 through 2004 as follows: 
$42 million, $46 million, $50 million, $55 million, and $60 
million. This section also authorizes appropriations to the 
Secretary of Commerce of $30 million annually from fiscal year 
2000 through 2004.
            Discussion
    The level of authorized appropriations for both the 
Secretary of the Interior and the Secretary of Commerce is 
derived from estimates as to the costs of the bill that they 
have provided. However, those estimates were received by the 
committee from the Administration shortly before the business 
meeting to consider the bill. Justification for the estimates 
was still being reviewed by the Office of Management and Budget 
at the time of the business meeting. Consequently, there has 
been no opportunity to study these estimates, and they are 
included in the bill as placeholders. Based on the overall 
funding for ESA implementation, these estimates seem high, 
particularly in light of the facts that the Secretary has 
already budgeted for the development of recovery plans 
(although there is no mandatory deadline for completing these 
plans), and that the bill streamlines the requirements for 
designations by making them non-regulatory. The Congressional 
Budget Office, as noted below, estimates that less than $20 
million for both the FWS and NMFS will be spent in fiscal year 
1999 for the development of recovery plans. The committee 
intends to review the authorization levels further, and if 
necessary, revise them.
    At the same time, the Administration will certainly incur 
additional costs in complying with the new deadlines, and 
curing the backlog of uncompleted recovery plans and 
designations. Additional funding will be necessary to address 
these costs, which is the purpose for the new authorization of 
appropriations. This authorization is strictly for the 
procedural requirements contained in the bill and in developing 
plans under section 4(f); it is not intended to be used for 
implementation of recovery plans.

                                Hearings

    The Subcommittee on Fisheries, Wildlife, and Drinking Water 
of the Senate Committee on the Environment and Public Works 
held a hearing on S. 1100 on May 27, 1999. Testimony was 
received from Senator Pete Dominici of New Mexico; Ms. Jamie 
Clark, Director of the United States Fish and Wildlife Service; 
Mr. William R. Murray, Natural Resources Counsel of American 
Forest and Paper Association; Mr. Charles T. DuMars, Professor 
of Law, University of New Mexico School of Law, Albuquerque, 
New Mexico; and Mr. John Kostyack, Counsel, National Wildlife 
Federation.

                          Legislative History

    On May 20, 1999, Senator Chafee introduced S. 1100, which 
was referred to the Committee on Environment and Public Works. 
On Tuesday, June 29, 1999, the committee held a business 
meeting to consider this bill. Senator Chafee offered an 
amendment in the nature of a substitute, which was adopted by 
voice vote, and Senator Hutchison offered an amendment, with a 
second-degree amendment by Senator Chafee, that was adopted by 
voice vote. S. 1100, as amended, was favorably reported out of 
the committee by voice vote.

                           Regulatory Impact

    In compliance with section 11(b) of rule XXVI of the 
Standing Rules of the Senate, the committee makes this 
evaluation of the regulatory impact of the reported bill.
    The bill does not create any additional regulatory burdens, 
nor will it cause any adverse impact on the personal privacy of 
individuals. The current law states that ``each Federal Agency. 
. . shall insure that any action authorized, funded or carried 
out by such Agency. . . is not likely to. . . result in the 
destruction or adverse modification of [critical] habitat.'' 
This provision may apply to private persons whose actions 
involve Federal authorization, funding or implementation, 
although this provision is not affected by the bill.

                          Mandates Assessment

    In compliance with the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4), the committee finds that this bill would 
impose no Federal intergovernmental unfunded mandates on State, 
local, or tribal governments. While the bill does not directly 
impose any private sector mandate, it prohibits certain civil 
lawsuits against the Secretary during periods specified by the 
bill.

                          Cost of Legislation

    Section 403 of the Congressional Budget and Impoundment 
Control Act requires that a statement of the cost of the 
reported bill, prepared by the Congressional Budget Office, be 
included in the report. That statement follows:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 19, 1999.

Hon. John H. Chafee, Chairman,
Committee on Environment and Public Works,
U.S. Senate, Washington, DC.

    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1100, a bill to 
amend the Endangered Species Act of 1973 to provide that the 
designation of critical habitat for endangered and threatened 
species be required as part of the development of recovery 
plans for those species.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Deborah 
Reis (for Federal costs), who can be reached at 226-2860, and 
Patrice Gordon (for the impact on the private sector), who can 
be reached at 226-2940.
            Sincerely,
                                            Dan L. Crippen.
                              ----------                              


               Congressional Budget Office Cost Estimate

S. 1100, A bill to amend the Endangered Species Act of 1973 to provide 
        that the designation of critical habitat for endangered and 
        threatened species be required as part of the development of 
        recovery plans for those species, As ordered reported by the 
        Senate Committee on Environment and Public Works on June 29, 
        1999
            Summary
    Assuming appropriation of the authorized amounts, CBO 
estimates that implementing S. 1100 would cost the Federal 
Government about $380 million over the 2000-2004 period. 
Enacting this legislation would not affect direct spending or 
receipts; therefore, pay-as-you-go procedures would not apply. 
S. 1100 contains no intergovernmental mandates as defined in 
the Unfunded Mandates Reform Act (UMRA) and would impose no 
costs on State, local, or tribal governments. S. 1100 would 
impose a mandate on the private sector, but CBO expects that 
the private sector would not likely incur any direct costs as a 
result.
    S. 1100 would amend provisions of the Endangered Species 
Act (ESA) that govern the designation of critical habitat and 
the development of recovery plans for threatened or endangered 
species. The bill also would authorize funding for these 
activities for each of fiscal years 2000 through 2004. 
Specifically, the bill would authorize $30 million annually for 
the National Marine Fisheries Service (NMFS) of the Department 
of Commerce and between $42 million and $60 million per year 
for the U.S. Fish and Wildlife Service (USFWS) of the 
Department of the Interior. The bill also would amend 
provisions of the ESA that govern these activities.
Estimated Cost to the Federal Government
    The estimated budgetary impact of S. 1100 is shown in the 
following table. The costs of the bill fall within budget 
function 300 (natural resources and environment). For purposes 
of this estimate, CBO assumes that the entire amounts 
authorized will be appropriated for each fiscal year. Outlays 
are estimated on the basis of historical spending patterns for 
ongoing ESA programs.


                 by Fiscal Year, in Millions of Dollars
------------------------------------------------------------------------
                                   2000    2001    2002    2003    2004
------------------------------------------------------------------------
       SPENDING SUBJECT TO
          APPROPRIATION
Authorization Level.............      72      76      80      85      90
Estimated Outlays...............      40      82      83      85      89
------------------------------------------------------------------------

    The amounts authorized by the bill would be available 
solely to develop recovery plans and to designate critical 
habitat for threatened or endangered species. For fiscal year 
1999, the NMFS and the USFWS received appropriations of about 
$29 million and $47 million respectively for species recovery 
and designation of critical habitat. Of these amounts, about $2 
million in total was allocated to habitat designation. CBO 
cannot determine the exact portion of the remaining amounts 
allocated to the development of recovery plans (rather than to 
implementation, which is not addressed by this legislation). We 
estimate, however, that less than $20 million (in total for 
both agencies) will be made available during 1999 for that 
purpose, because over 70 percent of all listed species already 
have recovery plans.
    Pay-As-You-Go Considerations: None.
    Estimated Impact on State, Local, and Tribal Governments: 
S. 1100 contains no intergovernmental mandates as defined in 
UMRA and would impose no costs on State, local, or tribal 
governments.
Estimated Impact on the Private Sector
    S. 1100 would impose a mandate on the private sector by 
prohibiting certain civil lawsuits against the Federal 
Government during the first 9 months after enactment and during 
periods specified by the bill to allow the government time to 
assess recovery plans and critical habitat designations for 
listed species. Under current law, Federal agencies are 
supposed to designate a critical habitat at the same time that 
a species is listed as endangered or threatened. The bill would 
allow Federal agencies to designate critical habitat at a later 
stage of the process as part of the planning for the recovery 
of listed species.
    According to sources in the government and the private 
sector, currently most suits filed under the Endangered Species 
Act are to force the government to designate a critical 
habitat. The bill would not impose any direct costs on the 
private sector by delaying such civil suits against the 
government.
    Estimate Prepared By: Federal Costs: Deborah Reis (226-
2860); Impact on the Private Sector: Patrice Gordon (226-2940).
    Estimate Approved By: Robert A. Sunshine, Deputy Assistant 
Director for Budget Analysis.
                   ADDITIONAL VIEWS OF SENATOR THOMAS

    Recently I introduced S. 1305, a bill that addresses 
recovery planning and a number of other Endangered Species Act 
issues. My legislation represents a different approach to 
critical habitat designation and recovery plans. I offer this 
statement to explain and clarify my views on the timing of 
critical habitat designation and recovery plan development. 
Under S. 1305, critical habitat designation would remain 
concurrent with listing, and recovery plans would be issued at 
the time of listing as well.
    The information needed to support a listing determination, 
critical habitat designation or a recovery may not be exactly 
the same. However, in my view, if one has gathered information 
sufficient to support with confidence any one of the three 
actions, then one also must have obtained a great deal of 
information that is relevant to the other two.
    More specifically, if the Secretary, at the time of 
listing, does not have enough information to provide 
substantial direction with regard to critical habitat and 
recovery, one should question whether the Secretary really 
knows enough about the species to support a listing 
determination. For example, suppose that the Secretary asserts 
that he understands species population numbers, distributions 
and trends sufficiently to list a species as endangered. Let's 
also assume that, as required by the ESA, he has considered 
threats to the species' habitat and other factors affecting the 
continuing existence of the species. I find it difficult to see 
how the Secretary could obtain this information without 
conducting a thorough analysis of the area inhabited by the 
species and without determining, with a high degree of 
confidence, what habitat is critical and what should be done to 
encourage recovery.
    Among my primary concerns is the fact that the listing of a 
species can impose burdens on land owners and others. In my 
State, I strongly believe that the Fish and Wildlife Service 
needs to be as certain as possible of the need for listing 
before imposing these burdens on those in the local areas 
affected. If a listing is necessary, it is only fair that the 
Service inform the public as quickly as possible what lands are 
involved and how they will be affected. Critical habitat 
designations and recovery plans serve this function, so if they 
must be prepared, I believe they should be provided to the 
public at the earliest possible time.
    S. 1100 reflects a judgment to delay critical habitat 
designation and recovery planning to allow among other things, 
more time to obtain information. S. 1305 would require all the 
information to be gathered before listing. I recognize that 
reasonable people can disagree on the precise timing of 
critical habitat designation and recovery planning. I do share 
the underlying desire of the committee to make the critical 
habitat and recovery planning processes more meaningful. In 
particular, I strongly support provisions in the legislation to 
provide greater balance on the recovery team, and I associate 
myself with the statement in the committee report that the 
Secretary must provide priority for local persons in the 
recovery planning process.
                        Changes in Existing Law

    In compliance with section 12 of rule XXVI of the Standing 
Rules of the Senate, 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, existing law in which no change is proposed is shown 
in roman:
                              ----------                              


              ENDANGERED SPECIES ACT OF 1973 1

---------------------------------------------------------------------------
    \1\ As amended by P.L. 94-325, June 30, 1976; P.L. 94-359, July 12, 
1976; P.L. 95-212, December 19, 1977; P.L. 95-632, November 10, 1978; 
P.L. 96-159, December 28, 1979; 97-304, October 13, 1982; P.L. 98-327, 
June 25, 1984; and P.L. 100-478, October 7, 1988; P.L. 100-653, 
November 14, 1988; and P.L. 100-707, November 23, 1988.
---------------------------------------------------------------------------

            [As Amended Through P.L. 104-333, Nov. 12, 1996]


  AN ACT To provide for the conservation of endangered and threatened 
     species of fish, wildlife, and plants, and for other purposes.

      Be it enacted by the Senate and House of Representatives 
of the United States of America in Congress assembled, That 
this Act may be cited as the ``Endangered Species Act of 
1973''.

           *       *       *       *       *       *       *


                              definitions

    Sec. 3. For the purposes of this Act--
    (1) * * *

           *       *       *       *       *       *       *

    (5)(A) The term ``critical habitat'' for a threatened or 
endangered species means--
          (i) the specific areas within the geographical area 
        occupied by the species, [at the time it is listed in 
        accordance with the provisions of section 4 of this 
        Act,] on which are found those physical or biological 
        features (I) essential to the conservation of the 
        species and (II) which may require special management 
        considerations or protection; and
            (ii) specific areas outside the geographical area 
        occupied by the species [at the time it is listed in 
        accordance with the provisions of section 4 of this 
        Act,] upon a determination by the Secretary that such 
        areas are essential for the conservation of the 
        species.
    (B) Critical habitat may be established for those species 
now listed as threatened or endangered species for which no 
critical habitat has heretofore been established as set forth 
in subparagraph (A) of this paragraph.
    (C) Except in those circumstances determined by the 
Secretary, critical habitat shall not include the entire 
geographical area which can be occupied by the threatened or 
endangered species.

           *       *       *       *       *       *       *


       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) The Secretary, by regulation promulgated in accordance 
with subsection (b) and to the maximum extent prudent and 
determinable--
            [(A) 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
            [(B) may, from time-to-time thereafter as 
        appropriate, revise such designation.]
    (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, 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 outweight 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.]
    [(8)] (2) 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.
    (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 \1\ to prevent a 
significant risk to the well being of any such species.
---------------------------------------------------------------------------
    \1\ So in original. Probably should be paragraph ``(7)''.
---------------------------------------------------------------------------
    [(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.]
    (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.
    [(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.]
            (6) Final regulations.--
                    (A) In general.--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) a final regulation to implement 
                        the determination;
                            (ii) notice that the one-year 
                        period is being extended under 
                        subparagraph (B)(i); or
                            (iii) notice that the proposed 
                        regulation is being withdrawn under 
                        subparagraph (B)(ii), together with the 
                        finding on which the withdrawal is 
                        based.
    (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.
    (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 designated 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] determinations 
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.] species, or that the species 
is not indigenous to the United States or waters with respect 
to which the United States exercises sovereign rights or 
jurisdiction. The Secretary, in development 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,]
            (2) Recovery teams.--
                    (A) In general.--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.
                    (B) Appointment of a team.--Not later than 
                120 days after the date of publication under 
                subsection (b) of a final determination that a 
                species is an endangered species or a 
                threatened species, the Secretary, in 
                cooperation with any State affected by the 
                determination, shall--
                            (i) appoint a recovery team to 
                        develop a recovery plan for the 
                        species; or
                            (ii) after public notice and 
                        opportunity for comment, determine that 
                        a recovery team shall not be appointed.
                    (C) No recovery team appointed.--If a 
                recovery team is not appointed by the 
                Secretary, the Secretary shall perform all 
                duties of the recovery team required under this 
                subsection.
                    (D) Composition of recovery team.--Each 
                recovery team shall include the Secretary and 
                at least 1 representative from each affected 
                State that chooses to participate, and shall 
                have balanced representation among 
                constituencies with an interest in the species 
                and its recovery and with an interest in the 
                economic or social impacts of recovery, 
                including Federal agencies, tribal governments, 
                local governments, academic institutions, 
                private individuals (including landowners), 
                conservation and other organizations, and 
                commercial enterprises. When a recovery plan or 
                critical habitat designation will have a 
                significant impact on private land, the 
                Secretary shall invite at least one landowner 
                or one representative of an organization 
                representing landowners to serve on the 
                recovery team. The recovery team members shall 
                be selected for their knowledge of the species 
                or for their expertise in the elements of the 
                recovery plan or its implementation.
    (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 and shall, 
when the Secretary publishes a final recovery plan, respond to 
comments received during the comment period.
    (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).
            (6) Schedule.--For each species determined to be an 
        endangered species or a threatened species after the 
        date of enactment of this paragraph for which the 
        Secretary is required to develop a recovery plan under 
        paragraph (1), the Secretary shall publish--
                    (A) not later than 18 months after the date 
                of publication under subsection (b) of the 
                final regulation containing the listing 
                determination, a draft recovery plan; and
                    (B) not later than 30 months after the date 
                of publication under subsection (b) of the 
                final regulation containing the listing 
                determination, a final recovery plan.
            (7) Critical habitat designations.--
                    (A) In general.--The Secretary, to the 
                extent prudent, shall designate any habitat 
                that is considered to be critical habitat of an 
                endangered species or a threatened species that 
                is indigenous to the United States or waters 
                with respect to which the United States 
                exercises sovereign rights or jurisdiction.
                            (i) Designation.--
                                    (I) Proposal.--As part of a 
                                draft recovery plan, the 
                                Secretary, after consultation 
                                and in cooperation with the 
                                recovery team, shall designate 
                                proposed critical habitat for 
                                the species.
                                    (II) Final.--As part of a 
                                final recovery plan, the 
                                Secretary, after consultation 
                                and in cooperation with the 
                                recovery team, shall designate 
                                critical habitat for the 
                                species.
                            (ii) Other designations.--If the 
                        Secretary determines that a recovery 
                        plan will not promote the conservation 
                        of an endangered species or a 
                        threatened species, the Secretary shall 
                        publish in the Federal Register, in 
                        accordance with paragraphs (4), (5), 
                        and (6) of subsection (b), a regulation 
                        designating critical habitat for the 
                        species not later than three years 
                        after making a determination that the 
                        species is an endangered species or a 
                        threatened species.
                            (iii) Additional authority.--The 
                        Secretary shall, after providing public 
                        notice and opportunity for comment, 
                        designate critical habitat for an 
                        endangered species or a threatened 
                        species concurrently with the final 
                        regulation implementing the 
                        determination that the species is an 
                        endangered species or a threatened 
                        species if the Secretary determines 
                        that designation of such habitat at the 
                        time of listing is essential to avoid 
                        the imminent extinction of the species. 
                        Such designation, in addition to 
                        responses to comments received by the 
                        Secretary, shall be published in the 
                        Federal Register and shall be 
                        considered to be a final agency action 
                        for the purposes of judicial review. 
                        The recovery team and the Secretary 
                        shall review and revise, as 
                        appropriate, the designation during the 
                        development of the recovery plan for 
                        the species.
                    (B) Factors to be considered.--The 
                designation of critical habitat shall be made 
                on the basis of the best scientific and 
                commercial data available and after taking into 
                consideration the economic impact, impacts to 
                military training and operations, and any other 
                relevant impact, of specifying any particular 
                area as critical habitat. The Secretary shall 
                describe in the draft and final recovery plans 
                (or in the proposed and final regulations) the 
                economic impacts and other relevant impacts 
                considered under this paragraph in any 
                designation of critical habitat.
                    (C) Exclusions.--The Secretary may exclude 
                any area from critical habitat for a species if 
                the Secretary determines that the benefits of 
                the exclusion outweigh the benefits of 
                designating the area as part of the critical 
                habitat, unless the Secretary determines, based 
                on the best scientific and commercial data 
                available, that the failure to designate the 
                area as critical habitat will result in the 
                extinction of the species.
                    (D) Additional information.--At the time 
                that the Secretary determines that a species is 
                an endangered species or a threatened species, 
                the Secretary shall--
                            (i) publish a description of 
                        additional scientific and commercial 
                        data that would assist in the 
                        preparation of a recovery plan and 
                        designation of critical habitat;
                            (ii) invite any person to submit 
                        data to the Secretary; and
                            (iii) describe the steps that the 
                        recovery team and the Secretary will 
                        take to acquire additional data.
                    (E) Civil actions.--In accordance with 
                section 11(g), any person may bring a civil 
                action against the Secretary regarding the 
                designation of critical habitat for a species.
    (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 \1\ of subsection (b) of this section to 
prevent a significant risk to the well being of any such 
recovered species.
---------------------------------------------------------------------------
    \1\ So in original. Probably should be paragraph ``(7)''.
---------------------------------------------------------------------------
    (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.

(16 U.S.C. 1533)



           *       *       *       *       *       *       *
                               exceptions

    Sec. 10. (a) Permits.--(1) The Secretary may permit, under 
such terms and conditions as he shall prescribe--

           *       *       *       *       *       *       *

    (f)(1) As used in this subsection--

           *       *       *       *       *       *       *

    (5) The Secretary shall prescribe such regulations as he 
deems necessary and appropriate to carry out the purposes of 
this subsection. Such regulations may set forth--
            (A) terms and conditions which may be imposed on 
        applicants for exemptions under this subsection 
        (including, but not limited to, requirements that 
        applicants register, inventories, keep complete sales 
        records, permit duly authorized agents of the Secretary 
        to inspect such inventories and records, and 
        periodically file appropriate reports with the 
        Secretary); and
            (B) terms and conditions which may be imposed on 
        any subsequent purchaser of any pre-Act endangered 
        species part covered by an exemption granted under this 
        subsection;
to insure that any such part so exempted is adequately 
accounted for and not disposed of contrary to the provisions of 
this Act. [No regulation prescribed by the Secretary to carry 
out the purposes of this subsection shall be subject to section 
4(f)(2)(A)(i) of this Act.]

           *       *       *       *       *       *       *


                                  
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