[House Report 108-785]
[From the U.S. Government Publishing Office]



108th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     108-785
======================================================================
 
              ENDANGERED SPECIES DATA QUALITY ACT OF 2004

                                _______
                                

 November 19, 2004.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

  Mr. Pombo, from the Committee on Resources, submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 1662]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Resources, to whom was referred the bill 
(H.R. 1662) to amend the Endangered Species Act of 1973 to 
require the Secretary of the Interior to give greater weight to 
scientific or commercial data that is empirical or has been 
field-tested or peer-reviewed, and for other purposes, having 
considered the same, report favorably thereon with amendments 
and recommend that the bill as amended do pass.
  The amendments are as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

   This Act may be cited as the ``Endangered Species Data Quality Act 
of 2004''.

SEC. 2. SOUND SCIENCE.

  (a) Best Scientific and Commercial Data Available.--
          (1) In general.--Section 3 of the Endangered Species Act of 
        1973 (16 U.S.C. 1532) is amended--
                  (A) by amending the section heading to read as 
                follows:

``SEC. 3. DEFINITIONS AND GENERAL PROVISIONS. ''.

                  (B) by striking ``For the purposes of this Act--'' 
                and inserting the following:
  ``(a) Definitions.--In this Act:''; and
                  (C) by adding at the end the following:
  ``(b) Use of Certain Data.--In any case in which the Secretary is 
required by this Act to use the best scientific and commercial data 
available or the best scientific data available, the Secretary shall--
          ``(1) ensure that such data comply with guidelines issued 
        under section 515 of the Treasury and General Government 
        Appropriations Act, 2001 (Public Law 106-554; 114 Stat. 2763A-
        171) by the Director of the Office of Management and Budget, 
        and any guidance issued by the Secretary pursuant to such 
        guidelines, except as provided in this Act;
          ``(2) ensure that such data include timely field survey data 
        to the extent such data are available; and
          ``(3) give greater weight to interpretations of data derived 
        from or verified by timely field work (commonly referred to as 
        `empirical data') that have been subjected to peer-review.''.
          (2) Conforming amendment.--The table of contents in the first 
        section of the Endangered Species Act of 1973 is amended by 
        striking the item relating to section 3 and inserting the 
        following:

``Sec. 3. Definitions and general provisions.''

  (b) Use of Sound Science in Listing.--Section 4(b) of the Endangered 
Species Act of 1973 (16 U.S.C. 1533(b)) is amended by adding at the end 
the following:
          ``(9) Establishment of criteria for scientific data to 
        support listing.--Not later than 1 year after the date of the 
        enactment of this paragraph, the Secretary shall promulgate 
        regulations that establish criteria that must be met in order 
        to determine under this section that data is the best 
        scientific and commercial data available and for best 
        scientific data available to be used as the basis of a 
        determination under this section that a species is an 
        endangered species or a threatened species.
          ``(10) Field data.--
                  ``(A) Requirement.--The Secretary may not determine 
                that a species is an endangered species or a threatened 
                species unless the determination or designation, 
                respectively, is supported by data obtained by timely 
                fields.
                  ``(B) Data from real property owners and operators.--
                The Secretary shall--
                          ``(i) accept data during the appropriate 
                        public comment period regarding the status of a 
                        species that is collected by an individual who 
                        is an owner of real property or who holds or is 
                        an applicant for a contract, lease, or other 
                        permit for real property through observation of 
                        the species on the real property; and
                          ``(ii) acknowledge receipt of data submitted 
                        under clause (i) and include such data in the 
                        rulemaking record compiled under this section 
                        for any determination that the species is an 
                        endangered species or a threatened species.''.
  (c) Use of Sound Science in Recovery Planning.--Section 4(f) of the 
Endangered Species Act of 1973 (16 U.S.C. 1533(f)) is amended by adding 
at the end the following:
          ``(6) Additional data.--
                  ``(A) Identification.--The Secretary shall--
                          ``(i) identify and publish in the Federal 
                        Register with the notice of a proposed 
                        regulation published pursuant to subsection 
                        (b)(5)(A)(i), and with notice of any final 
                        regulation published pursuant to subsection 
                        (b)(6), a description of additional scientific 
                        and commercial data that would assist in the 
                        preparation of a recovery plan;
                          ``(ii) invite any person to submit such data 
                        to the Secretary; and
                          ``(iii) describe the steps that the Secretary 
                        plans to take to acquire additional data.
                  ``(B) Consideration.--Data identified and obtained 
                under subparagraph (A) shall be considered by the 
                recovery team and the Secretary in the preparation of 
                the recovery plan in accordance with section 5.''.

SEC. 3. PEER REVIEW.

   Section 4 of the Endangered Species Act of 1973 (16 U.S.C. 1533) is 
amended by adding at the end the following:
  ``(j) Independent Scientific Review Requirements.--
          ``(1) Definitions.--In this subsection:
                  ``(A) Covered action.--The term `covered action' 
                means--
                          ``(i) a proposed determination under 
                        subsection (a)(1) that a species is an 
                        endangered species or a threatened species 
                        under subsection (a)(1);
                          ``(ii) a proposed determination under 
                        subsection (a)(1) that would change the status 
                        of a species as an endangered species or a 
                        threatened species or would remove such a 
                        species from any list published under 
                        subsection (c)(1);
                          ``(iii) the development of a recovery plan 
                        for a threatened species or endangered species 
                        under subsection (f); and
                          ``(iv) the determination that a proposed 
                        action is likely to jeopardize the continued 
                        existence of a listed species, including the 
                        proposal of any reasonable and prudent 
                        alternatives by the Secretary under section 
                        7(b)(3).
                  ``(B) Qualified individual.--The term `qualified 
                individual' means an individual--
                          ``(i) who through publication of peer-
                        reviewed scientific literature or other means, 
                        has demonstrated scientific expertise on the 
                        species or a similar species or other 
                        scientific expertise relevant to the covered 
                        action;
                          ``(ii) who does not have, or represent any 
                        person with, a conflict of interest with 
                        respect to the covered action that is the 
                        subject of the review; and
                          ``(iii) who has not advocated a position, and 
                        is not employed by a person who has advocated a 
                        position, with respect to the outcome of the 
                        covered action that is the subject of the 
                        review, or of any previous covered action with 
                        respect to the affected species.
                  ``(C) Conflict of interest.--The term `conflict of 
                interest'--
                          ``(i) shall have such meaning as is 
                        established by regulations as shall be issued 
                        by the Secretary; and
                          ``(ii) shall include, in accordance with such 
                        regulations, direct financial interests in the 
                        outcome of the action that will be the subject 
                        of the review, including consulting 
                        arrangements, grants, honoraria, or employment.
          ``(2) Recommendation of independent reviewers.--The Secretary 
        shall solicit recommendations from the National Academy of 
        Sciences and the governors of affected States of qualified 
        individuals to serve as independent reviewers for a covered 
        action.
          ``(3) Appointment of independent scientific reviewers.--(A) 
        Before making the final decision on any covered action, the 
        Secretary shall appoint, from among the individuals recommended 
        under paragraph (2), 3 qualified individuals who shall review 
        and report to the Secretary on the scientific information and 
        analyses on which the covered action is based.
          ``(B) The selection and activities of the independent 
        reviewers appointed pursuant to this paragraph shall not be 
        subject to the Federal Advisory Committee Act (5 U.S.C. App.).
          ``(C) If funds are available, the Secretary shall provide 
        compensation to an individual for service as an independent 
        reviewer under this paragraph, at a rate not to exceed the 
        daily equivalent of the maximum annual rate of basic pay for 
        GS-14 of the General Schedule for each day (including travel 
        time) during which the individual is engaged in the actual 
        performance of duties as an independent reviewer.
          ``(4) Information for review.--The Secretary shall transmit 
        to the independent reviewers all available scientific and 
        commercial data identified in the administrative record for the 
        action at the time of the transmission.
          ``(5) Response of independent reviewers.--The independent 
        reviewers shall provide the Secretary, within 3 months after 
        the transmission of the data under paragraph (4), their reviews 
        regarding all relevant scientific information and assumptions 
        relating to the taxonomy, population models, and supportive 
        biological and ecological information for the species in 
        question.
          ``(6) Notice of data availability.--
                  ``(A) Following receipt of the reviews provided under 
                paragraph (5) and not less than 30 days before making 
                the final decision on a covered action described in 
                paragraph (1)(A)(i) or (ii), the Secretary shall 
                publish a notice of the availability of the draft 
                determination of which data available qualify as the 
                best scientific and commercial data available on which 
                the final decision will be based and which do not, 
                including any ongoing assessments that are expected to 
                produce such data.
                  ``(B) The Secretary shall provide the public with not 
                less than 15 days to identify any additional 
                information that should be considered as best 
                scientific and commercial data available data with 
                respect to a covered action described in paragraph 
                (1)(A)(i) or (ii), including the reasons why such 
                information should be so considered.
                  ``(C) The Secretary shall explain, in the notice of 
                final covered action with respect to a covered action 
                described in paragraph (1)(A)(i) or (ii), why 
                information identified under subparagraph (B) did or 
                did not qualify as the best scientific and commercial 
                data available.
                  ``(D) The Secretary shall identify the data that 
                qualified as the best scientific and commercial data 
                available on which the final decision with respect to a 
                covered action described in paragraph (1)(A)(iii) or 
                (iv) is based in a final biological opinion or final 
                recovery plan for the covered action.
          ``(7) Final determination.--The Secretary shall evaluate the 
        reviews received pursuant to paragraph (5) and include in the 
        final determination--
                  ``(A) a summary of each independent review; and
                  ``(B) in any case in which the Secretary does not 
                accept a recommendation of an independent reviewer with 
                respect to data reviewed pursuant to this subsection, 
                an explanation of why the recommendation was not 
                followed.
          ``(8) Public notice.--The reviews received by the Secretary 
        pursuant to paragraph (5) shall be included in the official 
        record of the final decision on the action and shall be 
        available for public review as soon as the final decision is 
        issued.''.

SEC. 4. IMPROVED CONSULTATION.

  (a) Use of Information Provided by States.--Section 7(b)(1) of the 
Endangered Species Act of 1973 (16 U.S.C. 1536(b)(1)) is amended by 
adding at the end the following:
                  ``(C) Use of state information.--In conducting a 
                consultation under subsection (a)(2), the Secretary--
                          ``(i) shall actively solicit and consider 
                        information from the governor of the State 
                        where the agency action is located; and
                          ``(ii) shall provide an opportunity for the 
                        governor of any State otherwise affected by the 
                        agency action, as determined by the Secretary, 
                        to submit information.''.
  (b) Opportunity to Participate in Consultations.--Section 7(b)(1) of 
the Endangered Species Act of 1973 (16 U.S.C. 1536(b)(1)) (as amended 
by subsection (a)) is further amended by adding at the end the 
following:
                  ``(D) Opportunity to participate in consultations.--
                          ``(i) In general.--In conducting a 
                        consultation under subsection (a)(2), the 
                        Secretary shall provide to any person who has 
                        sought authorization or funding from a Federal 
                        agency for an action that is the subject of the 
                        consultation or who holds or is an applicant 
                        for a Federal contract, lease, or other permit 
                        that may be materially affected by an agency 
                        action that is the subject of the 
                        consultation--
                                  ``(I) the opportunity, before the 
                                development of a draft biological 
                                opinion, to submit and discuss with the 
                                Secretary and the Federal agency 
                                information relevant to the effect of 
                                the proposed action on the species and 
                                any actions that could serve as 
                                reasonable and prudent measures or 
                                reasonable and prudent alternatives in 
                                the event such measures or alternatives 
                                are necessary to complete the 
                                consultation;
                                  ``(II) information, on request, 
                                subject to the exemptions specified in 
                                section 552(b) of title 5, United 
                                States Code, on the status of the 
                                species, threats to the species, and 
                                conservation measures, used by the 
                                Secretary to develop the draft 
                                biological opinion and the final 
                                biological opinion, including any 
                                associated statement under subsection 
                                (b)(4); and
                                  ``(III) a copy, on request, of the 
                                draft biological opinion, including any 
                                draft statement under subsection 
                                (b)(4), that was provided to the 
                                Federal agency and, before issuance of 
                                the final biological opinion and 
                                statement, the opportunity to submit 
                                comments on the draft biological 
                                opinion and statement and to discuss 
                                with the Secretary and the Federal 
                                agency the basis for any finding in the 
                                draft biological opinion and statement.
                          ``(ii) Explanation.--If reasonable and 
                        prudent alternatives are proposed by a person 
                        under clause (i) and the Secretary does not 
                        include the alternatives in the final 
                        biological opinion, the Secretary shall explain 
                        to the person why those alternatives were not 
                        included in the opinion.
                          ``(iii) Public access to information.--
                        Comments and other information submitted to, or 
                        received from, any person (pursuant to clause 
                        (i)) who seeks authorization or funding for an 
                        action shall be maintained in a file for that 
                        action by the Secretary and shall be made 
                        available to the public (subject to the 
                        exemptions specified in section 552(b) of title 
                        5, United States Code).''.

  Amend the title so as to read:

      A bill to amend the Endangered Species Act of 1973 to 
provide guidance and direction on the development and use of 
data under that Act, and for other purposes.

                          Purpose of the Bill

    As ordered reported, the purpose of H.R. 1662 is to amend 
the Endangered Species Act of 1973 to provide guidance and 
direction on the development and use of data under that Act, 
and for other purposes.

                  Background and Need for Legislation

    Prior to 1966, authority for wildlife protection rested 
primarily with the States, except where the wildlife was highly 
migratory or where wildlife was taken in violation of State or 
federal law and transported across State boundaries. In 
response to a concern that various species had become or were 
in danger of becoming extinct, the federal government began to 
consider legislation protecting endangered and threatened fish, 
wildlife and plants. Congress' efforts culminated in 1973 with 
the passage of the Endangered Species Act of 1973 (ESA, Public 
Law 93-205, 16 U.S.C. 1531 et seq.), which has become our 
Nation's strictest and most stringent environmental law.
    The ESA is implemented by the Secretary of the Department 
of the Interior, through the Fish and Wildlife Service (FWS), 
which has responsibility for plants, wildlife and inland 
fishes. The Secretary of Commerce, through the National Marine 
Fisheries Service (NMFS), is responsible for implementing the 
ESA with respect to ocean going fish and marine animals. 
However, given the much greater number of species under its 
jurisdiction, FWS is the major agency involved in ESA-related 
decisions.
    Under the ESA, certain species of animals and plants are 
listed as threatened or endangered based on the risk of their 
extinction. In addition, the ESA requires prior consultation 
with FWS and NMFS whenever a federal agency action might affect 
an endangered to threatened species. FWS and NMFS are also 
responsible for the development of recovery plans to improve 
the survival of species. Finally, FWS and NMFS can designate 
critical habitat to protect a species.
    H.R. 1662 amends the ESA by directing the Secretaries to 
provide guidance and direction on the development and use of 
scientific and commercial data that is empirical or that has 
been field-tested or peer-reviewed in determining that a 
species is an endangered or threatened species. The bill also 
directs the Secretaries to promulgate regulations that 
establish criteria for data to be used as the basis of such a 
determination.
    The fundamental goal of this legislation is to ensure that 
sound and defensible science is used and peer-reviewed in all 
listing decisions. For many Members of Congress, this is a 
simple and long overdue revision to the ESA. The ESA was passed 
by Congress in 1973 with the intent to protect and preserve 
species that have been identified as threatened or endangered. 
Over the past 30 years more than 1,800 species have been listed 
for protection. While the ESA has many unique provisions 
designed to recover threatened and endangered species, H.R. 
1662 focuses primarily on the use of sound science and peer 
review in actions including: a proposed listing or delisting of 
an endangered or threatened species; a proposal to reclassify a 
species from threatened to endangered or vice versa; the 
development of a recovery plan for an endangered or threatened 
species; and a jeopardy determination.
    Each Secretary follows a regulatory process to list species 
as threatened or endangered and to recover a species. 
Currently, the ESA requires ``the best scientific and 
commercial data available'' for listings and other actions. 
However, this term is not defined, and there are no objective 
standards to ensure a uniformly high quality of scientific 
data. Further, many question the cost, magnitude and validity 
of the ESA's requirements and implementation since the Act has 
produced very limited recovery results. This has led to 
concerns about the adequacy of science supporting 
implementation of actions under the ESA. To address these 
issues, H.R. 1662 amends the ESA by requiring the Secretaries 
to set standards for the scientific and commercial data that is 
used to take actions under the ESA.
    The ESA grants the Secretaries broad discretion in 
determining what listings, if any, will take place, with little 
to no constraints as to what data may or may not be used. H.R. 
1662 prohibits the Secretaries from determining that a species 
is endangered or threatened unless the determination is 
supported by data obtained by observation of the species in the 
field. It requires the Secretaries to accept, acknowledge 
receipt of, and include in the rulemaking record of such a 
determination data collected by landowners through observation 
of the species on the land. This provides a constructive role 
for private landowners in the listing recovery and consultation 
processes who will be affected by the actions of the 
Secretaries.
    Furthermore, the Secretaries are also currently given broad 
discretion in developing recovery plans and critical habitat 
designations. H.R. 1662 requires the Secretaries to publish 
with the notice of a proposed regulation a description of 
additional scientific and commercial data that would assist in 
preparing a recovery plan, invite any person to submit such 
data, and describe the steps for acquiring additional data. 
This will give the public an opportunity to comment on a draft 
recovery plan, something that currently does not occur.
    The bill also establishes a peer review board and process 
by directing the Secretaries to solicit recommendations from 
the National Academy of Sciences, develop a list of qualified 
reviewers to participate in independent scientific review 
actions, appoint from such list three individuals who shall 
report on the scientific information and analyses on which such 
action is based before any proposed action becomes final, and 
include such report in the official record of the proposed 
action. This peer review process improves the ESA, which 
currently requires the Secretaries to cooperate with the States 
``to the maximum extent possible,'' but largely leaves the 
implementation of such cooperation to the discretion of the 
relevant Secretary.
    H.R. 1662 requires the Secretaries, in consultation with 
each federal agency and the affected States, to consider 
information provided by those States. The bill also provides 
any person who has sought authorization or funding from a 
federal agency for an action the opportunity to submit, 
discuss, and receive information relevant to the draft 
biological opinion relating to that action. This gives the 
applicant a formal role in the ESA process.
    These changes will greatly improve the process by which 
endangered species are protected and recovered. This bill 
improves the underlying scientific and commercial basis for ESA 
decision making by establishing objective standards; favoring 
common sense use of science; including States, landowners and 
other stakeholders in the listing, delisting, recovery planning 
processes; and providing reliable data analysis in the decision 
making process for endangered species.

                            Committee Action

    H.R. 1662 was introduced on April 8, 2003, by Congressman 
Greg Walden (R-OR). The bill was referred to the Committee on 
Resources. On July 21, 2004, the Full Resources Committee met 
to consider the bill. Congressman Greg Walden offered an 
amendment in the nature of a substitute to make technical 
changes. The amendment was adopted by a voice vote. The bill as 
amended was then ordered favorably reported to the House of 
Representatives by a rollcall vote of 26-15, as follows:


                      Section-by-Section Analysis


Section 1. Short title

    H.R. 1662 may be cited as the ``Endangered Species Data 
Quality Act of 2004.''

Section 2. Sound science

    This section amends ESA section 3 (definitions) to requires 
the Secretaries to ``use the best scientific and commercial 
data available or the best scientific data available'' and 
incorporates the so-called Data Quality Act (Public Law 106-
554; 114 Stat. 2763A-171), which ensures that such data comply 
with Office of Management and Budget and agency issued 
guidelines, making the agency actions subject to judicial 
review. This is supplemented by a field survey requirement and 
gives greater weight for peer review.
    This section also amendments section 4 of the ESA 
(determination of endangered species and threatened species) to 
requires the use of sound science for the listing and for the 
designation of critical habitat of threatened or endangered 
species. More specifically, this section requires FWS and NMFS 
to ``accept and acknowledge receipt'' of data from landowners 
or lessees or contractors. These individuals may present the 
agencies with their own field-survey data when the agencies are 
considering listing a species as threatened or endangered which 
is present on their land or the land they are performing work 
on. The section also stipulates that this data must be 
submitted during the appropriate public comment period.
    In addition, section 2 requires the identification of the 
scientific and commercial data needed for a recovery plan in a 
proposed rulemaking to list a species, as well as in the final 
rulemaking process, and ensures that this data will be 
considered in the preparation of the recovery plan.

Section 3. Peer review

    Section 3 adds a new subsection (j) to section 4 of the ESA 
to require peer review for the following: a proposed listing or 
delisting of an endangered or threatened species; a proposal to 
reclassify a species from threatened to endangered or vice 
versa; the development of a recovery plan for an endangered or 
threatened species; or a jeopardy determination. In addition, 
the section requires a peer-reviewer to have relevant 
scientific expertise.
    The section further requires FWS and NMFS to consult with 
the National Academy of Sciences and the governors of affected 
States to develop a list of qualified independent peer 
reviewers. The section requires the appointment of three 
qualified individuals from the recommended list to review and 
report to the Secretaries. These individuals, if funds are 
available, will be provided compensation for their service.
    Section 3 requires that federal agencies transmit all data 
that was used in the final decision-making. The section 
requires each independent reviewer to provide the Secretaries 
with their views within three months of receipt of the data 
provided by the Secretaries. The section requires the 
Secretaries to publish a notice of the availability of the 
draft determination of which data available qualifies as the 
``best scientific and commercial data available'' on which the 
final decision will be based. The Secretaries must provide the 
public with at least 15 days to identify any additional 
information that should be considered. In the publication of 
the final biological opinion or final recovery plan, the 
Secretaries must identify the data that qualified as the best 
scientific and commercial data available. In addition, the 
Secretaries must include in the final determination the reviews 
received from the peer reviewers, and the independent reviews 
received must be included in the official record and available 
for public review.

Section 4. Improved consultation

    Section 4 amends ESA section 7 (interagency cooperation) to 
requires FWS and NMFS to actively solicit and consider 
information from the governor of the State where the proposed 
agency action is located. This will prevent the ESA agencies 
from ``agency shopping'' within a State to get the most 
favorable data. All States affected by the federal action are 
given the opportunity to submit comments.
    The section further requires the Secretaries to consider 
information from any person who has sought authorization or 
funding from a federal agency for a particular action 
potentially affecting threatened or endangered species the 
opportunity to submit, discuss, and receive information 
relevant to the draft biological opinion for that action. These 
comments and information will be made available to the public.

            Committee Oversight Findings and Recommendations

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Resources' oversight findings and recommendations 
are reflected in the body of this report.

                   Constitutional Authority Statement

    Article I, section 8 of the Constitution of the United 
States grants Congress the authority to enact this bill.

                    Compliance With House Rule XIII

    1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the 
Rules of the House of Representatives requires an estimate and 
a comparison by the Committee of the costs which would be 
incurred in carrying out this bill. However, clause 3(d)(3)(B) 
of that rule provides that this requirement does not apply when 
the Committee has included in its report a timely submitted 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974.
    2. Congressional Budget Act. As required by clause 3(c)(2) 
of Rule XIII of the Rules of the House of Representatives and 
section 308(a) of the Congressional Budget Act of 1974, this 
bill does not contain any new budget authority, spending 
authority, credit authority, or an increase or decrease in 
revenues or tax expenditures.
    3. General Performance Goals and Objectives. This bill does 
not authorize funding and therefore, clause 3(c)(4) of rule 
XIII of the Rules of the House of Representatives does not 
apply.

    4. Congressional Budget Office Cost Estimate. Under clause 
3(c)(3) of Rule XIII of the Rules of the House of 
Representatives and section 403 of the Congressional Budget Act 
of 1974, the Committee has received the following cost estimate 
for this bill from the Director of the Congressional Budget 
Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                   Washington, DC, August 17, 2004.
Hon. Richard W. Pombo,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1662, the 
Endangered Species Data Quality Act of 2004.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Megan 
Carroll.
            Sincerely,
                                         Elizabeth Robinson
                               (For Douglas Holtz-Eakin, Director).
    Enclosure.

H.R. 1662--Endangered Species Data Quality Act of 2004

    Summary: Under the Endangered Species Act (ESA), certain 
species of plants and animals are listed as threatened or 
endangered based on assessments of the risk of their 
extinction. H.R. 1662 would amend the ESA to clarify the role 
of science as the basis for making certain decisions under that 
act.
    CBO estimates that implementing H.R. 1662 would cost $27 
million over the 2005-2009 period, assuming appropriation of 
the necessary amounts. The bill would not affect direct 
spending or revenues. H.R. 1662 contains no intergovernmental 
or private-sector mandates as defined in the Unfunded Mandates 
Reform Act (UMRA) and would impose no costs on state, local, or 
tribal governments.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of H.R. 1662 is shown in the following table. 
The costs of this legislation fall within the budget function 
300 (natural resources and environment).

----------------------------------------------------------------------------------------------------------------
                                                                       By fiscal year in millions of dollars--
                                                                    --------------------------------------------
                                                                       2005     2006     2007     2008     2009
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level......................................        5        5        5        6        6
Estimated Outlays..................................................        5        5        5        6        6
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: Under the ESA, the Secretary of the 
Interior and the Secretary of Commerce maintain a list of 
species that are threatened or endangered. The ESA outlines a 
multistage process of review and public participation that the 
two Secretaries must follow in making decisions to list or 
unlist a species and develop plans for its recovery.
    H.R. 1662 would specify new requirements and procedures 
regarding the collection, use, and review of information 
throughout that process. Specifically, the bill would:
           Require the Secretaries of the Interior and 
        Commerce to promulgate regulations establishing 
        criteria that studies must meet to serve as the basis 
        for decisions under the ESA;
           Direct the Secretaries to give greater 
        weight to studies that use empirical or field-tested 
        data;
           Authorize the Secretaries to appoint 
        individuals to review the information used in making 
        certain decisions under the ESA; and
           Direct the Secretaries to solicit and 
        consider information from State agencies, landowners, 
        and others who might be affected by decisions under the 
        ESA.
    Based on information from the Department of the Interior 
and the National Marine Fisheries Service, CBO estimates that 
implementing H.R. 1662 would cost $5 million in 2005 and $27 
million over the 2005-2009 period, assuming appropriation of 
the necessary amounts. That amount includes $3 million in 2005 
and $17 million over the next 5 years for increased 
administrative costs to the agencies. The estimate also 
includes $2 million a year over the 5 years for the cost of 
compensating individuals who review information used in certain 
ESA decisions. That estimate assumes that such individuals 
would review roughly 200 decisions a year at an average cost of 
$10,000.
    Intergovernmental and private-sector impact: H.R. 1662 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would impose no cost on State, local, or 
tribal governments.
    Estimate prepared by: Federal Costs: Megan Carroll; Impact 
on State, Local, and Tribal Governments: Marjorie Miller; and 
Impact on the Private Sector: Amina Masood.
    Estimate approved by: Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

                    Compliance with Public Law 104-4

    This bill contains no unfunded mandates.

                Preemption of State, Local or Tribal Law

    This bill is not intended to preempt any State, local or 
tribal law.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, 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

           *       *       *       *       *       *       *



                           TABLE OF CONTENTS

Sec. 2. Findings, purposes, and policy.
[Sec. 3. Definitions.]
Sec. 3. Definitions and general provisions.

           *       *       *       *       *       *       *


                              [DEFINITIONS

  [Sec. 3. For the purposes of this Act--]

SEC. 3. DEFINITIONS AND GENERAL PROVISIONS.

  (a) Definitions.--In this Act:
          (1) * * *

           *       *       *       *       *       *       *

  (b) Use of Certain Data.--In any case in which the Secretary 
is required by this Act to use the best scientific and 
commercial data available or the best scientific data 
available, the Secretary shall--
          (1) ensure that such data comply with guidelines 
        issued under section 515 of the Treasury and General 
        Government Appropriations Act, 2001 (Public Law 106-
        554; 114 Stat. 2763A-171) by the Director of the Office 
        of Management and Budget, and any guidance issued by 
        the Secretary pursuant to such guidelines, except as 
        provided in this Act;
          (2) ensure that such data include timely field survey 
        data to the extent such data are available; and
          (3) give greater weight to interpretations of data 
        derived from or verified by timely field work (commonly 
        referred to as ``empirical data'') that have been 
        subjected to peer-review.

           *       *       *       *       *       *       *


       DETERMINATION OF ENDANGERED SPECIES AND THREATENED SPECIES

  Sec. 4. (a) * * *
  (b) Basis for Determinations.--(1) * * *

           *       *       *       *       *       *       *

    (9) Establishment of criteria for scientific data to 
support listing.--Not later than 1 year after the date of the 
enactment of this paragraph, the Secretary shall promulgate 
regulations that establish criteria that must be met in order 
to determine under this section that data is the best 
scientific and commercial data available and for best 
scientific data available to be used as the basis of a 
determination under this section that a species is an 
endangered species or a threatened species.
    (10) Field data.--
          (A) Requirement.--The Secretary may not determine 
        that a species is an endangered species or a threatened 
        species unless the determination or designation, 
        respectively, is supported by data obtained by timely 
        fields.
          (B) Data from real property owners and operators.--
        The Secretary shall--
                  (i) accept data during the appropriate public 
                comment period regarding the status of a 
                species that is collected by an individual who 
                is an owner of real property or who holds or is 
                an applicant for a contract, lease, or other 
                permit for real property through observation of 
                the species on the real property; and
                  (ii) acknowledge receipt of data submitted 
                under clause (i) and include such data in the 
                rulemaking record compiled under this section 
                for any determination that the species is an 
                endangered species or a threatened species.

           *       *       *       *       *       *       *

  (f)(1) * * *

           *       *       *       *       *       *       *

          (6) Additional data.--
          (A) Identification.--The Secretary shall--
                  (i) identify and publish in the Federal 
                Register with the notice of a proposed 
                regulation published pursuant to subsection 
                (b)(5)(A)(i), and with notice of any final 
                regulation published pursuant to subsection 
                (b)(6), a description of additional scientific 
                and commercial data that would assist in the 
                preparation of a recovery plan;
                  (ii) invite any person to submit such data to 
                the Secretary; and
                  (iii) describe the steps that the Secretary 
                plans to take to acquire additional data.
          (B) Consideration.--Data identified and obtained 
        under subparagraph (A) shall be considered by the 
        recovery team and the Secretary in the preparation of 
        the recovery plan in accordance with section 5.

           *       *       *       *       *       *       *

  (j) Independent Scientific Review Requirements.--
          (1) Definitions.--In this subsection:
                  (A) Covered action.--The term ``covered 
                action'' means--
                          (i) a proposed determination under 
                        subsection (a)(1) that a species is an 
                        endangered species or a threatened 
                        species under subsection (a)(1);
                          (ii) a proposed determination under 
                        subsection (a)(1) that would change the 
                        status of a species as an endangered 
                        species or a threatened species or 
                        would remove such a species from any 
                        list published under subsection (c)(1);
                          (iii) the development of a recovery 
                        plan for a threatened species or 
                        endangered species under subsection 
                        (f); and
                          (iv) the determination that a 
                        proposed action is likely to jeopardize 
                        the continued existence of a listed 
                        species, including the proposal of any 
                        reasonable and prudent alternatives by 
                        the Secretary under section 7(b)(3).
                  (B) Qualified individual.--The term 
                ``qualified individual'' means an individual--
                          (i) who through publication of peer-
                        reviewed scientific literature or other 
                        means, has demonstrated scientific 
                        expertise on the species or a similar 
                        species or other scientific expertise 
                        relevant to the covered action;
                          (ii) who does not have, or represent 
                        any person with, a conflict of interest 
                        with respect to the covered action that 
                        is the subject of the review; and
                          (iii) who has not advocated a 
                        position, and is not employed by a 
                        person who has advocated a position, 
                        with respect to the outcome of the 
                        covered action that is the subject of 
                        the review, or of any previous covered 
                        action with respect to the affected 
                        species.
                  (C) Conflict of interest.--The term 
                ``conflict of interest''--
                          (i) shall have such meaning as is 
                        established by regulations as shall be 
                        issued by the Secretary; and
                          (ii) shall include, in accordance 
                        with such regulations, direct financial 
                        interests in the outcome of the action 
                        that will be the subject of the review, 
                        including consulting arrangements, 
                        grants, honoraria, or employment.
          (2) Recommendation of independent reviewers.--The 
        Secretary shall solicit recommendations from the 
        National Academy of Sciences and the governors of 
        affected States of qualified individuals to serve as 
        independent reviewers for a covered action.
          (3) Appointment of independent scientific 
        reviewers.--(A) Before making the final decision on any 
        covered action, the Secretary shall appoint, from among 
        the individuals recommended under paragraph (2), 3 
        qualified individuals who shall review and report to 
        the Secretary on the scientific information and 
        analyses on which the covered action is based.
          (B) The selection and activities of the independent 
        reviewers appointed pursuant to this paragraph shall 
        not be subject to the Federal Advisory Committee Act (5 
        U.S.C. App.).
          (C) If funds are available, the Secretary shall 
        provide compensation to an individual for service as an 
        independent reviewer under this paragraph, at a rate 
        not to exceed the daily equivalent of the maximum 
        annual rate of basic pay for GS-14 of the General 
        Schedule for each day (including travel time) during 
        which the individual is engaged in the actual 
        performance of duties as an independent reviewer.
          (4) Information for review.--The Secretary shall 
        transmit to the independent reviewers all available 
        scientific and commercial data identified in the 
        administrative record for the action at the time of the 
        transmission.
          (5) Response of independent reviewers.--The 
        independent reviewers shall provide the Secretary, 
        within 3 months after the transmission of the data 
        under paragraph (4), their reviews regarding all 
        relevant scientific information and assumptions 
        relating to the taxonomy, population models, and 
        supportive biological and ecological information for 
        the species in question.
          (6) Notice of data availability.--
                  (A) Following receipt of the reviews provided 
                under paragraph (5) and not less than 30 days 
                before making the final decision on a covered 
                action described in paragraph (1)(A)(i) or 
                (ii), the Secretary shall publish a notice of 
                the availability of the draft determination of 
                which data available qualify as the best 
                scientific and commercial data available on 
                which the final decision will be based and 
                which do not, including any ongoing assessments 
                that are expected to produce such data.
                  (B) The Secretary shall provide the public 
                with not less than 15 days to identify any 
                additional information that should be 
                considered as best scientific and commercial 
                data available data with respect to a covered 
                action described in paragraph (1)(A)(i) or 
                (ii), including the reasons why such 
                information should be so considered.
                  (C) The Secretary shall explain, in the 
                notice of final covered action with respect to 
                a covered action described in paragraph 
                (1)(A)(i) or (ii), why information identified 
                under subparagraph (B) did or did not qualify 
                as the best scientific and commercial data 
                available.
                  (D) The Secretary shall identify the data 
                that qualified as the best scientific and 
                commercial data available on which the final 
                decision with respect to a covered action 
                described in paragraph (1)(A)(iii) or (iv) is 
                based in a final biological opinion or final 
                recovery plan for the covered action.
          (7) Final determination.--The Secretary shall 
        evaluate the reviews received pursuant to paragraph (5) 
        and include in the final determination--
                  (A) a summary of each independent review; and
                  (B) in any case in which the Secretary does 
                not accept a recommendation of an independent 
                reviewer with respect to data reviewed pursuant 
                to this subsection, an explanation of why the 
                recommendation was not followed.
          (8) Public notice.--The reviews received by the 
        Secretary pursuant to paragraph (5) shall be included 
        in the official record of the final decision on the 
        action and shall be available for public review as soon 
        as the final decision is issued.

           *       *       *       *       *       *       *


                        INTERAGENCY COOPERATION

  Sec. 7. (a) * * *
  (b) Opinion of Secretary.--(1)(A) * * *

           *       *       *       *       *       *       *

    (C) Use of state information.--In conducting a consultation 
under subsection (a)(2), the Secretary--
          (i) shall actively solicit and consider information 
        from the governor of the State where the agency action 
        is located; and
          (ii) shall provide an opportunity for the governor of 
        any State otherwise affected by the agency action, as 
        determined by the Secretary, to submit information.
    (D) Opportunity to participate in consultations.--
          (i) In general.--In conducting a consultation under 
        subsection (a)(2), the Secretary shall provide to any 
        person who has sought authorization or funding from a 
        Federal agency for an action that is the subject of the 
        consultation or who holds or is an applicant for a 
        Federal contract, lease, or other permit that may be 
        materially affected by an agency action that is the 
        subject of the consultation--
                  (I) the opportunity, before the development 
                of a draft biological opinion, to submit and 
                discuss with the Secretary and the Federal 
                agency information relevant to the effect of 
                the proposed action on the species and any 
                actions that could serve as reasonable and 
                prudent measures or reasonable and prudent 
                alternatives in the event such measures or 
                alternatives are necessary to complete the 
                consultation;
                  (II) information, on request, subject to the 
                exemptions specified in section 552(b) of title 
                5, United States Code, on the status of the 
                species, threats to the species, and 
                conservation measures, used by the Secretary to 
                develop the draft biological opinion and the 
                final biological opinion, including any 
                associated statement under subsection (b)(4); 
                and
                  (III) a copy, on request, of the draft 
                biological opinion, including any draft 
                statement under subsection (b)(4), that was 
                provided to the Federal agency and, before 
                issuance of the final biological opinion and 
                statement, the opportunity to submit comments 
                on the draft biological opinion and statement 
                and to discuss with the Secretary and the 
                Federal agency the basis for any finding in the 
                draft biological opinion and statement.
          (ii) Explanation.--If reasonable and prudent 
        alternatives are proposed by a person under clause (i) 
        and the Secretary does not include the alternatives in 
        the final biological opinion, the Secretary shall 
        explain to the person why those alternatives were not 
        included in the opinion.
          (iii) Public access to information.--Comments and 
        other information submitted to, or received from, any 
        person (pursuant to clause (i)) who seeks authorization 
        or funding for an action shall be maintained in a file 
        for that action by the Secretary and shall be made 
        available to the public (subject to the exemptions 
        specified in section 552(b) of title 5, United States 
        Code).

           *       *       *       *       *       *       *


                            DISSENTING VIEWS

    We view H.R. 1662 as quasi political science wrapped in the 
thread bare blanket of sound science. If enacted, H.R. 1662 
would make the Secretaries of the Interior and Commerce jump 
through so many bureaucratic hoops to implement the Endangered 
Species Act (ESA) that decisions would be delayed, making 
compliance with the statutory deadlines nearly impossible. 
Ultimately additional lawsuits will be filed, fewer species 
recovered, and there will be more extinctions.
    The ESA requires the Secretaries of the Interior and 
Commerce to rely on the best scientific and commercial data 
available when making listing decisions, developing recovery 
plans, and evaluating whether endangered or threatened species 
will be affected by a Federal action. For critical habitat 
designations, the Secretaries are to use the best scientific 
data available.
    Apparently the best scientific data is not good enough for 
supporters of H.R. 1662. They would prefer to limit the 
scientific information available to the Secretaries, and rig 
the decisions that follow.
    The National Research Council in its briefing to the 
Committee in July 2004 warned that a statutory definition of 
best scientific information available in fisheries management 
is inadvisable because it could impede the incorporation of new 
types of scientific information and would be difficult to amend 
if circumstances warranted change. In our view, the Secretaries 
should have the freedom to use the best science available, 
including field studies, modeling, and a combination of the 
two, in their ESA decisions as well.
    Standards for Data. Under H.R. 1662, the Secretaries could 
not designate critical habitat or list a species as endangered 
or threatened, unless the decisions were supported by timely 
field survey data. Decisions to delist species, however, would 
not have to be based on field survey data. Neither definitions 
of timely nor standards for field survey data are provided in 
H.R. 1662. In making these determinations the Secretaries would 
have to consider data from property owners and lessees, which 
the ESA already requires. The difference is that H.R. 1662 
would allow the observations by individuals who own land or 
applicants for contracts, leases or permits to masquerade as 
legitimate scientific data. Biased, untrained, self-serving 
observations could become the scientific basis for secretarial 
decisions. The individual's observation would not even have to 
meet the criteria for data the Secretary is to establish under 
H.R. 1662.
    Under H.R. 1662, the Secretary would be required to give 
greater weight to empirical data that has been peer reviewed 
when (1) deciding whether species should be listed as 
endangered or threatened, (2) approving recovery plans, (3) 
determining whether endangered or threatened species are 
present in the area of a proposed agency action, and (4) 
developing biological opinions addressing whether a proposed 
agency action is likely to jeopardize the continued existence 
of a listed species or adversely modify critical habitat. This 
could cause the agency to be dependent on older, peer-reviewed 
data even when more recent, even better data, may be available. 
Under H.R. 1662, if both empirical data and non empirical data 
relevant to a decision are available, the Secretary could not 
give equal weight to each set, even if both had been peer 
reviewed.
    Ironically, some proponents of this bill also supported the 
Record of Decision issued earlier this year that eliminated the 
Forest Service's and Bureau of Land Management's requirements 
to conduct detailed field surveys prior to logging in old 
growth and other forests covered by the Pacific Northwest Plan. 
We see inconsistency, if not hypocrisy, in those who advocate 
that Federal agencies skip field surveys prior to timber sales 
but insist on field data to support endangered and threatened 
species listing decisions, and critical habitat determinations.
    In the complex sciences of conservation biology and 
ecology, there is no scientific justification for giving 
greater weight to empirical data over modeling results. As a 
matter of course, the field data is often inadequate and 
important interactions can only be understood by sophisticated 
models. Moreover, ``the [Fish and Wildlife] Service's policies 
and practices generally ensure that listing and critical 
habitat decisions are based on the best available science,'' 
according to the General Accountability Office (GAO) in a 2003 
report commissioned by Chairman Richard Pombo. [Fish and 
Wildlife Service Uses Best Available Science to Make Listing 
Decisions, but Additional Guidance Needed for Critical Habitat 
Designations, August 2003.]
    Today, mathematical models are fundamental to forecasting 
everything from the weekend weather to the national budget 
deficit. We value models when predicting the arrival of 
hurricanes and eruption of volcanoes. We support the Federal 
Reserve's use of models to predict the response of the economy 
to monetary policies. We understand why the Environmental 
Protection Agency develops models to assess risks to human 
health. Models are no less important to understanding 
environmental interactions and maintaining environmental 
health.
    Nevertheless, H.R. 1662 would strip the Secretaries of 
their ability to base decisions on models used to predict the 
risk of extinction. In 1995, the National Research Council 
issued its report Science and the Endangered Species Act which 
on page 82 states, ``Population viability analysis is the 
cornerstone, the obligatory tool by which objectives and 
criteria are identified.'' Most population viability analyses 
(PVA0 combine data from field studies with simulation modeling 
of the possible impacts of various extinction factors. Yet, the 
Secretaries of the Interior and Commerce could not use PVA in 
listing decisions and critical habitat determinations if H.R. 
1662 is enacted.
    During hearings last Congress on similar legislation (H.R. 
4840), the Administration expressed concern over the 
requirement to limit the use of modeling in ESA decisions. In 
testimony, William Hogart, Director of National Oceanic and 
Atmospheric Administration (NOAA)--Fisheries said, ``We support 
the goal of basing our decisions on sound and peer-reviewed 
science, and we agree that empirical field tested data are 
important. However, we would not want to diminish the use of 
models of populations, habitat use and/or life histories, which 
frequently do represent the best available science and are 
based on field-collected data.'' [Testimony before the House 
Resources Committee on June 19, 2002; the Committee failed to 
hold hearings on H.R. 1662.]
    Peer Review. H.R. 1662 also would require that all 
proposals to list and de-list species,designate critical 
habitat, issue a recovery plan, and determine that a proposed action is 
likely to jeopardize the continued existence of a listed species or 
adversely modify habitat, be subject to peer review prior to the 
Secretary's final decision. Since 1994, the Fish and Wildlife Service 
and NOAA Fisheries have used external peer review of listing and 
critical habitat decisions. The GAO found in 2003, ``The Service's 
peer-review policy generally appears to be appropriate for the 
circumstances in which it is used.''
    Under H.R. 1662, the Secretary would be required to select 
three individuals to review relevant scientific information and 
assumptions for the species in question. They would be paid at 
the annual rate of basic pay for GS-14 of the General Schedule, 
if funds are available.
    ``An independent peer review process could potentially add 
six months to each action that is reviewed, and this type of 
delay could have tremendous economic impact to business 
including the fishing industry when we were trying to open and 
close seasons and also public projects,'' testified Director 
Hogarth at a hearing in 2002. Similarly, the Wildlife Society 
said that peer review during the Section 7 consultation process 
``would substantially lengthen the timeframes for that 
consultation to the detriment of species conservation or 
federal agency actions.''
    H.R. 1662 fails to say what is to happen if funds or 
individuals are not available to participate in peer review. 
The plan is not practical because there are not enough 
scientists to carry out the tasks indicated. ``One limitation 
that the Service faces in getting an independent review is the 
scarcity of experts on a particular species,'' the GAO found in 
its 2003 report.
    The cumbersome peer review process established under H.R. 
1662 would likely result in the Secretary missing statutory 
deadlines in the ESA, providing fodder for additional lawsuits, 
and forfeiting opportunities to recover species.
    Consultation--Access for Some But Not for Others. Finally, 
H.R. 1662 would legislate exclusive access to the development 
of a biological opinion for any person who has sought 
authorization for an activity that is the subject of the 
consultation. Other interested parties who may also be affected 
economically or in other ways by the outcome of the opinion 
would have no such opportunity for input. In the case of the 
Klamath River biological opinion, H.R. 1662 would ensure that 
the irrigators were guaranteed access to the consultation 
process under Section 7 of the ESA, but not the Indian Tribes 
and fishermen who are also economically affected by the outcome 
of the opinion would be provided no such access. This is wholly 
inconsistent with American standards of fairness and procedural 
equity.
    Conclusion. Rather than give the Secretaries the tools they 
need to make sound decisions, H.R. 1662 would limit the type of 
data available. The bill would predetermine what constitutes 
the best science, instead of letting the scientists make this 
determination. It also would delay decisions, making it likely 
that additional lawsuits alleging failure to comply with 
statutory deadlines will be filed against the Fish and Wildlife 
Service. More importantly, the delays in listings, critical 
habitat designations and development of recovery plan will make 
it more difficult more species to recover. For these reasons we 
strongly oppose H.R. 1662.

                                   Nick Rahall.
                                   George Miller.
                                   Jay Inslee.
                                   Raul M. Grijalva.

                                  
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