[House Report 113-537]
[From the U.S. Government Publishing Office]
113th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 113-537
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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.