[House Report 113-537]
[From the U.S. Government Publishing Office]


113th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     113-537

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



 
            21ST CENTURY ENDANGERED SPECIES TRANSPARENCY ACT

                                _______
                                

 July 17, 2014.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Hastings of Washington, from the Committee on Natural Resources, 
                        submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 4315]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (H.R. 4315) to amend the Endangered Species Act of 
1973 to require publication on the Internet of the basis for 
determinations that species are endangered species or 
threatened species, and for other purposes, having considered 
the same, report favorably thereon with an amendment and 
recommend that the bill as amended do pass.
    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``21st Century Endangered Species 
Transparency Act''.

SEC. 2. REQUIREMENT TO PUBLISH ON THE INTERNET THE BASIS FOR LISTINGS.

  Section 4(b) of the Endangered Species Act (16 U.S.C. 1533(b)) is 
amended by adding at the end the following:
  ``(9) The Secretary shall make publicly available on the Internet the 
best scientific and commercial data available that are the basis for 
each regulation, including each proposed regulation, promulgated under 
subsection (a)(1), except that, at the request of a Governor or 
legislature of a State, the Secretary shall not make available under 
this paragraph information regarding which the State has determined 
public disclosure is prohibited by a law of that State relating to the 
protection of personal information.''.

                          Purpose of the Bill

    The purpose of H.R. 4315 is to amend the Endangered Species 
Act of 1973 to require publication on the Internet of the basis 
for determinations that species are endangered species or 
threatened species.

                  Background and Need for Legislation

    The need for transparency in federal regulations, a 
principal frequently espoused by the Obama Administration, 
extends to the Endangered Species Act (ESA). In recent years, 
the federal agencies responsible for implementing the ESA, the 
U.S. Fish and Wildlife Service (FWS) and the National Oceanic 
and Atmospheric Administration's National Marine Fisheries 
Service (NMFS), have been processing an increasing number of 
listing petitions and making an increasing number of federal 
listing determinations.
    For example, as a result of the Department of the 
Interior's 2011 multi-district litigation settlements, the 
federal government agreed to make over 750 species listing 
determinations and critical habitat designations under specific 
timetables. Since these settlements, already close to 160 new 
ESA listings have been proposed or finalized, for a total of 
1,528 domestic listed species as of the date of this report.
    The ESA requires that decisions to list species as 
threatened or endangered be made ``solely on the basis of the 
best available scientific and commercial data'' (See 16 U.S.C. 
Sec. 1533(b)(1)(A)). However, the data and scientific 
information cited as support for federal ESA listing decisions, 
which often include unpublished studies or professional 
opinions rather than actual data, are frequently not made 
available or accessible to the public. A substantial amount of 
the research cited in ESA-related decisions is paid directly or 
indirectly by the American taxpayers. During the April 30, 2014 
markup of this bill, bipartisan comments supported the position 
that ESA science paid for by the taxpayers should be subject to 
public review.
    H.R. 4315 is intended to correct this problem by requiring 
the public disclosure of the data used to justify proposed and 
final regulations to list or delist species as threatened or 
endangered. Making ESA-related data available and accessible to 
everyone on the Internet will instill accountability, allow 
transparent review of data and science to justify important 
policy considerations, and help ensure that the ESA reflects 
technology and scientific advances for species recovery not 
available when the ESA was signed into law or when many of the 
species were originally listed by the federal government.
    Over the past three years, the Committee on Natural 
Resources held several hearings and has received testimony from 
multiple witnesses highlighting examples of the lack of 
transparency of ESA listing decisions and their impacts on 
species conservation and on affected states, local entities, 
tribal governments, and private landowners. On August 1, 2013, 
the Natural Resources Committee held a hearing entitled, 
``Transparency and Sound Science Gone Extinct: The Impacts of 
the Obama Administration's Closed-Door Settlements on 
Endangered Species and People.'' During the hearing, an expert 
biologist, Dr. Rob Roy Ramey II, testified in support of H.R. 
4315, presented a compelling case for transparency:

          What are the effects of this lack of transparency on 
        the public? When the data are not publicly accessible, 
        legitimate scientific inquiry and debate is effectively 
        eliminated, and no independent third party can 
        reproduce the results. This action puts the basis of 
        some ESA decisions outside the realm of science. 
        Furthermore, it has the effect of concentrating power, 
        money and regulatory authority in the hands of those 
        who control access to the data. Information is power.
          American people have paid for data collection and 
        research on threatened endangered species through 
        grants, contracts and agreements and permits. They pay 
        the salaries of agency staff who collect, data, publish 
        and produce work based on that data. And they are, for 
        the most part, regulated on the basis of that data. It 
        is essential that the American people have rights to 
        access that data in a timely manner.

    The FWS Director Dan Ashe testified at the August 1, 2013, 
Committee hearing that the process for listings, including any 
resulting from the Administration's ESA settlements, would be 
transparent and subject to peer review. However, Dr. Ramey 
pointed out that ``peer reviews are only as good as the 
information provided to them, and the depth of the questions 
asked.''
    ESA data currently maintained in Department of the Interior 
field offices, and lists of ESA literature, studies and other 
relevant data posted on a general federal website maintained 
for regulations, have simply proven insufficient for public 
transparency and to validate significant ESA decisions. The 
Committee has received testimony from multiple witnesses that 
private landowners, local governments and scientists have been 
unable to obtain data or information cited by these sources.
    For example, Mr. Tom Jankovsky, a Garfield County Colorado 
Commissioner, testified that his County's request for data 
concerning the Greater Sage Grouse Environmental Impact 
Statement ``has been denied or has not been responded to.'' Mr. 
Kent McMullen, a Franklin County, Washington, farmer testified 
that the FWS failed to properly notify the county and affected 
private landowners about a proposal to list the White Bluffs 
bladderpod. He further testified that data cited by the FWS in 
the proposal was not accessible for public review, and that 
``references calling for more time for research due to 
inconclusive data'' were ``diminished.'' The County's own 
commissioned DNA study conducted by an independent university 
scientist contradicted the FWS' science in the listing.
    Concern about the lack of federal ESA data transparency is 
not limited to listings, but extends to delistings as well. A 
November 11, 2013, online publication by EcoWatch, featuring 
the potential de-listing of grizzly bears in the Yellowstone 
ecosystem, quoted a Center for Biological Diversity 
spokesperson, Louisa Wilcox, who disputed FWS's use of 
unpublished studies and unreleased data for grizzly bear 
populations. Ms. Wilcox stated, ``There's no way to know if 
these are paper bears or real bears, because the government has 
refused to release the taxpayer-funded data and analyses upon 
which the findings were based.''
    H.R. 4315 would not divert resources or create significant 
new challenges for federal agencies in their implementation of 
ESA. Increased transparency can provide more effective species 
recovery and increase the credibility of highly controversial 
ESA listing decisions. As Dr. Ramey testified before the 
Committee at a April 8, 2014, hearing, ``withholding data does 
not further the goal of species recovery'' and a lack of 
transparency only empowers ``those who have sought to maintain 
their power, money and authority by withholding scientific and 
financial data from the public, and this comes at the cost of 
recovering species.'' Data transparency can enhance species 
recovery by forcing a discussion and debate about data and how 
species recovery is prioritized. If data are withheld, there is 
no opportunity for that debate. Specific examples of where data 
transparency has already led to more effective efforts on 
species recovery include the California condor, the Boreal 
toad, and the Peregrine falcon.
    H.R. 4315 would not impact current state privacy laws, 
Department of Defense activities, or require disclosure of 
commercial or private property information. Similarly, it would 
not require the disclosure of information that would put 
species at risk. There is no real evidence that greater 
information provided to the public regarding species have led 
to anything other than more protection for those species and 
their habitat. In addition, current stringent state and federal 
laws for poaching (federal criminal laws against harming an 
endangered species are punishable by a fine up to $50,000 and/
or one year imprisonment) provide a strong deterrent against 
such criminal activity.

                            Committee Action

    H.R. 4315 was introduced on March 27, 2014, by Congressman 
Doc Hastings (R-WA). The bill was referred to the Committee on 
Natural Resources. On April 8, 2014, the Committee held a 
hearing on the bill, and on April 30, 2014, the Committee met 
to consider the bill. Congressman Hastings offered an amendment 
designated .031 to the bill; the amendment was adopted by voice 
vote. No further amendments were offered, and the bill, as 
amended, was then adopted and ordered favorably reported to the 
House of Representatives by a bipartisan roll call vote of 17 
to 15, as follows:


            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 Natural Resources' oversight findings and 
recommendations are reflected in the body of this report.

                    Compliance With House Rule XIII

    1. Cost of Legislation. Clause 3(d)(1) 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)(2)(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. 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:

H.R. 4315--21st Century Endangered Species Transparency Act

    H.R. 4315 would require the Secretaries of the Interior and 
Commerce to make publicly available on the Internet data used 
as the basis for each listing determination under the 
Endangered Species Act. Based on information regarding the cost 
of providing documents on public websites, CBO estimates that 
implementing the legislation would have a negligible effect on 
the federal budget. Enacting H.R. 4315 would not affect direct 
spending or revenues; therefore, pay-as-you-go procedures do 
not apply.
    H.R. 4315 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Jeff LaFave. The 
estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.
    2. Section 308(a) of 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. Based on 
information regarding the cost of providing documents on public 
websites, CBO estimates that implementing the legislation would 
have a negligible effect on the federal budget.
    3. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goal or 
objective of this bill is to amend the Endangered Species Act 
of 1973 to require publication on the Internet of the basis for 
determinations that species are endangered species or 
threatened species.

                           Earmark Statement

    This bill does not contain any Congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined 
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of 
the House of Representatives.

                    Compliance With Public Law 104-4

    This bill contains no unfunded mandates.

                       Compliance With H. Res. 5

    Directed Rule Making. The Chairman does not believe that 
this bill directs any executive branch official to conduct any 
specific rule-making proceedings.
    Duplication of Existing Programs. This bill does not 
establish or reauthorize a program of the federal government 
known to be duplicative of another program. Such program was 
not included in any report from the Government Accountability 
Office to Congress pursuant to section 21 of Public Law 111-139 
or identified in the most recent Catalog of Federal Domestic 
Assistance published pursuant to the Federal Program 
Information Act (Public Law 95-220, as amended by Public Law 
98-169) as relating to other programs.

                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 (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

ENDANGERED SPECIES ACT

           *       *       *       *       *       *       *



       determination of endangered species and threatened species

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

           *       *       *       *       *       *       *

  (9) The Secretary shall make publicly available on the 
Internet the best scientific and commercial data available that 
are the basis for each regulation, including each proposed 
regulation, promulgated under subsection (a)(1), except that, 
at the request of a Governor or legislature of a State, the 
Secretary shall not make available under this paragraph 
information regarding which the State has determined public 
disclosure is prohibited by a law of that State relating to the 
protection of personal information.

           *       *       *       *       *       *       *


                            DISSENTING VIEWS

    H.R. 4315 would require data used for each listing decision 
under the Endangered Species Act to be made publicly available 
via the Internet. The Majority contends that the Fish and 
Wildlife Service and National Marine Fisheries Service have not 
been transparent in disclosing the underlying ``best available 
scientific and commercial data'' used for such decisions. A 
blanket mandate to make all data publically available, however, 
will have negative, unanticipated consequences.
    The bill could discourage scientists, local governments, 
states and private landowners from sharing their data with 
Federal agencies because they oppose having their property and 
commercial data published online. Further, making species 
location data publically available would provide a road map to 
those seeking to illegally poach endangered wildlife or plants. 
Finally, the bill ignores the fact that when a Federal agency 
does not pay for the data it is considering in its decision-
making, it does not have the authority to release it. As a 
result, legislation claiming to produce better scientific data 
could end up reducing the amount and quality of the data 
available.
    An amendment adopted by the Committee only begins to 
address these concerns by exempting ``personal information'' 
from the public disclosure requirement; personal information is 
just the tip of the iceberg. Putting aside for a moment the 
fact that ``personal information'' is not defined, the many 
other classes of information mentioned previously would still 
not be protected.
    This bill serves the same purpose as the Majority's 
endless, wasteful document requests and subpoenas: to gum up 
the works and make it harder for the agencies to focus on 
species recovery. Its breadth and ambiguity also create new, 
fertile ground for lawsuits--something the Majority has claimed 
it wants to limit. The amendment is not enough to address these 
concerns, and therefore we oppose the bill as reported.
                                   Peter A. DeFazio,
                                   Raul M. Grijalva.
                                   Grace F. Napolitano.
                                   Gregorio Kilili Camacho Sablan.
                                   Eni F. H. Faleomavaega.
                                   Rush Holt.
                                   Jared Huffman.
                                   Alan S. Lowenthal.
                                   Katherine M. Clark.
                                   Matt Cartwright.

                                  
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