[House Report 115-1051]
[From the U.S. Government Publishing Office]


115th Congress }                                          { REPORT
                        HOUSE OF REPRESENTATIVES
  2d Session   }                                          { 115-1051

======================================================================
 
ENSURING MEANINGFUL PETITION OUTREACH WHILE ENHANCING RIGHTS OF STATES 
                              ACT OF 2018

                                _______
                                

 November 27, 2018.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

Mr. Bishop of Utah, from the Committee on Natural Resources, submitted 
                             the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 6345]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (H.R. 6345) to provide for greater county and State 
consultation with regard to petitions under the Endangered 
Species Act of 1973, and for other purposes, having considered 
the same, report favorably thereon without amendment and 
recommend that the bill do pass.

                          Purpose of the Bill

    The purpose of H.R. 6345 is to provide for greater county 
and State consultation with regard to petitions under the 
Endangered Species Act of 1973.

                  Background and Need for Legislation

    The Endangered Species Act of 1973 (ESA, 16 U.S.C. 1531 et 
seq.) sets out the broad goal of conserving and recovering 
species facing extinction. The law authorizes federal agencies 
to identify imperiled species and list them as either 
threatened or endangered, as appropriate.\1\ The law further 
requires agencies to take necessary actions to conserve those 
species and their habitats.\2\ The Secretary of the Interior, 
through the U.S. Fish and Wildlife Service (FWS), has 
responsibility for plants, wildlife and inland fisheries. The 
Secretary of Commerce, through the National Marine Fisheries 
Service (NMFS) is responsible for implementing the ESA with 
respect to ocean-going fish and some marine mammals.\3\ 
Congress made its most significant amendments to ESA in 1978, 
1982, and 1988, although the overall framework has remained 
essentially unchanged since its original enactment in 1973.\4\
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    \1\ 16 U.S.C. Sec. 1533.
    \2\ Id.
    \3\ Cong. Research Serv., RL31654, The Endangered Species Act: A 
Primer 15 (2016).
    \4\ A History of the Endangered Species Act of 1973, U.S. Fish and 
Wildlife Service, U.S. Department of the Interior, https://www.fws.gov/
endangered/esa-library/pdf/history_ESA.pdf (last visited Sept. 18, 
2018).
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    Despite the worthy goal set out by the ESA to conserve and 
protect species, in the 45 years since its enactment, less than 
2 percent of species have recovered enough to warrant removal 
from the list of endangered and threatened species.\5\ In fact, 
many of those species were delisted after it was discovered 
that federal agencies used erroneous data in the original 
listing.\6\ In total, to date there have been 2,421 listings\7\ 
under the ESA. In that time the Secretaries have delisted 77 
species, but only 47 distinct species have been removed, either 
entirely or partially throughout their range, due to population 
recovery.\8\
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    \5\ ECOS Environmental Conservation Online System, Listed Species 
Summary (Boxscore), U.S. Fish and Wildlife Service, U.S. Department of 
the Interior, https://ecos.fws.gov/ecp0/reports/box-score-report (last 
visited Sept. 19, 2018).
    \6\ ECOS Environmental Conservation Online System, Delisted 
Species, U.S. Fish and Wildlife Service, U.S. Department of the 
Interior, https://ecos.fws.gov/ecp0/reports/delisting-
report (last visited Sept. 19, 2018).
    \7\ Supra, note 5. This number was determined by adding the total 
number of species listed as endangered or threatened under the ESA to 
the total number delisted since the ESA's enactment.
    \8\ Supra, note 6.
---------------------------------------------------------------------------
    In addition to failing to achieve meaningful recovery for 
species, implementation of the ESA disincentivizes conservation 
and can lead to increased conflict between people and species 
through unpredictable and expansive restrictions on land 
use.\9\ Excessive litigation and a lack of transparency in 
federal ESA decision-making has only exacerbated these problems 
and reduced the ESA's effectiveness in recovering species.\10\
---------------------------------------------------------------------------
    \9\Committee on House Natural Resources, Endangered Species Act 
Congressional Working Group, Report Findings and Recommendations, 
(2014) available at https://naturalresources.house.gov/uploadedfiles/
esa_working_group_final_report_and--recommendations_02_04_14.pdf; See 
also: Legislative Hearing on H.R. 424. H.R. 717, H.R. 1274, H.R. 2603, 
and H.R. 3131: Hearing before the H. Comm. on Natural Resources, 115th 
Cong, (2017) (testimony of Kent Holsinger, Manager and Founder, 
Holsinger Law, LLC) available at https://naturalresources.house.gov/
uploadedfiles/testimony_holsinger.pdf.
    \10\Hearing on Examining Policy Impacts of Excessive Litigation 
Against the Department of the Interior, Before the Subcomm. on 
Oversight & Investigations of the H. Comm. on Natural Resources, 115th 
Cong. (2017), available at https://naturalresources.house.gov/
uploadedfiles/
hearing_memo_--_ov_hrg_06.28.17.pdf.
---------------------------------------------------------------------------
    In many cases, implementation of the ESA has caused 
increased burdens for those living in close proximity to the 
protected species.\11\ Often States and local communities have 
the most knowledge about the species located in their State and 
can bring the greatest amount of resources to conservation 
efforts.\12\ They are eager to stabilize species populations to 
prevent listings that can have a major negative economic impact 
on State and local communities through restrictions on land 
use.\13\ Yet, too often, federal management of threatened and 
endangered species fails to take advantage of the wealth of 
knowledge of State and local officials and of the successful 
conservation measures implemented by States.\14\
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    \11\ Supra, note 9.
    \12\Legislative Hearing on H.R. 424. H.R. 717, H.R. 1274, H.R. 
2603, and H.R. 3131: Hearing before the H. Comm. on Natural Resources, 
115th Cong, (2017) (testimony of Kent Holsinger, Manager and Founder, 
Holsinger Law, LLC) available at https://naturalresources.house.gov/
uploadedfiles/testimony_holsinger.pdf.
    \13\Id.
    \14\ See e.g., Letter from John Hickenlooper, Governor, State of 
Colorado, and Matt Mead, Governor, State of Wyoming, to Steve Ellis, 
Deputy Director, Bureau of Land Management, U.S. Dep't of the Interior, 
and Leslie Weldon, Deputy Chief, National Forest System, U.S. Forest 
Service, U.S. Dep't of Agriculture, Sept. 29, 2014, available at http:/
/westgov.org/images/editor/LTR_GSG_Rollup_Mtgs_FINAL.pdf.
---------------------------------------------------------------------------
    Despite these shortcomings in how the ESA has been 
implemented since its enactment, the ESA and its overall goal 
of conserving and recovering species remains widely popular and 
accepted.\15\ ESA modernization should prioritize effective 
species recovery while maintaining the core principles of the 
Act.
---------------------------------------------------------------------------
    \15\ See e.g., Memo from Ben Tulchin, Ben Krompack, and Kiel 
Brunner, Tulchin Research, to Interested Parties, Jul. 6, 2015, 
available at https://earthjustice.org/sites/default/files/files/
PollingMemoNationalESASurvey.pdf.
---------------------------------------------------------------------------
    Determinations under the ESA require FWS and NMFS to 
collect extensive amounts of data and information to analyze 
the status of a species and to decide whether a listing is 
necessary for conservation and survival of the species.\16\ 
Notice and comment periods provide one mechanism for such 
information to be collected,\17\ but more needs to be done to 
ensure that valuable information from States, counties, and 
local governments are solicited and considered in ESA decision-
making.
---------------------------------------------------------------------------
    \16\ 16 U.S.C. Sec. 1533.
    \17\ Id.
---------------------------------------------------------------------------
    States and counties where species reside often have some of 
the most specialized knowledge about the threats facing species 
and local conservation measures in place to counter such 
threats and to ensure the survival of the species. Many States 
have already proven the value of their input in the ESA 
decision-making process. For example, in Texas, the 
Comptroller's Office is responsible for administering 
approximately $15 million to fund research on little-known 
species under consideration for ESA listing.\18\ The State 
utilizes public universities to conduct research on these 
species to ensure federal agencies have the most complete and 
reliable information before making decisions that affect 
private property owners and local economies in the State.\19\ 
Programs such as these highlight the unique perspective States 
can provide to federal agencies through expert data, as well as 
through the infrastructure and relationships they have in place 
with landowners, communities, and industries.
---------------------------------------------------------------------------
    \18\ Legislative Hearing on H.R. 424, H.R. 717, H.R. 1274, H.R. 
2603, and H.R. 3131: Hearing before the H. Comm. on Natural Resources, 
115th Cong. (2017) (testimony of Glen Hegar, Texas Comptroller of 
Public Accounts) available at https://naturalresources.house.gov/
uploadedfiles/
testimony_hegar.pdf.
    \19\ Id.
---------------------------------------------------------------------------
    While many States, such as Texas, are willing to offer 
these resources to federal agencies during the ESA decision-
making process, federal agencies often neglect to utilize these 
key local resources available to them. This unfortunately was 
the case for some local stakeholders during the decision-making 
process for determining the listing status of the greater sage 
grouse; they felt the Department of the Interior was not taking 
local conservation plans and data into consideration at the 
time.\20\ Stakeholders, such as the States involved in 
conservation of the greater sage grouse, have essential input 
that federal agencies should be required to factor into the 
determination process for species listings.
---------------------------------------------------------------------------
    \20\ Defining Species Conservation Success: Tribal, State and Local 
Stewardship vs. Federal Courtroom Battles and Sue-and-Settle Practices: 
Oversight Hearing before the H. Comm. On Natural Resources, 113th Cong. 
(2013) (written testimony of Tom Jankovsky, Garfield County, Colorado), 
available at https://naturalresources.house.gov/uploadedfiles/
jankovskytestimony06-04-13.pdf.
---------------------------------------------------------------------------
    H.R. 6345, the Ensuring Meaningful Petition Outreach While 
Enhancing Rights of States Act of 2018, or the EMPOWERS Act, 
works to avoid these conflicts between federal agencies and 
States by requiring that States receive advanced notice of any 
potential listing decisions on species that impact their State, 
and gives them the right to provide advice and information to 
federal agencies concerning the potential listing. The bill 
also increases transparency through the prerequisite that 
federal agencies provide written explanations and relevant 
information when their decisions do not comport with the 
information provided by the States. Increasing meaningful 
cooperation and counsel of States impacted by species decisions 
in this manner will only improve the way species are conserved 
and recovered under the ESA.

                      Section-by-Section Analysis


Section 1. Short title

    The bill may be referred to as the ``Ensuring Meaningful 
Petition Outreach While Enhancing Rights of States Act of 
2018'' or the ``EMPOWERS Act of 2018''.

Section 2. Greater county and State involvement

    Subsection (a). County and State Consultation on Petitions. 
Amends Section 4(b)(3) of the ESA by requiring petitioners to 
provide a 30-day notice of intent before submitting a petition 
to list, delist, reclassify a species or to revise critical 
habitat in the U.S. to the chief executive of each county and 
State where the species is located.
    If a petitioned action may be warranted, the relevant 
Secretary shall request information from the chief executive of 
each county and State concerning threats to the species, local 
efforts to protect the species, anticipated effects of the 
petition's actions within the area, and advice on whether the 
petition is warranted based on the status of the species. The 
relevant Secretary may also verify information presented in a 
petition using field testing.
    If the chief executive advises that the petitioned action 
is not warranted, the relevant Secretary may not proceed with 
the action unless the Secretary demonstrates the information 
presented by the chief executive is incorrect and the action is 
warranted.
    Subsection (b). Regulations to Implement Determinations. 
Section (b) amends section 4(b)(5) of the ESA to require that 
90 days before a regulation goes into effect, the relevant 
Secretary must provide notice to each chief executive of each 
county and State where the species is located and request a 
determination whether the proposed regulation is warranted. If 
the chief executive does not agree with the determination, the 
Secretary must provide the reasons in writing for the 
determination and the information available to support that 
determination.
    Subsection (c). Consultation on Final Determination. 
Section (c) amends section 4(i) of the ESA to ensure that if 
the final determination on a regulation conflicts with the 
advice of a county or State, the relevant Secretary must 
provide written justification that includes any information 
regarding the determination and comments that disagreed with 
the regulation.

                            Committee Action

    H.R. 6345 was introduced on July 12, 2018, by Congressman 
Stevan Pearce (R-NM). The bill was referred to the Committee on 
Natural Resources. On September 26, 2018, the Committee held a 
hearing on the bill. On September 27, 2018, the Committee met 
to consider the bill. No amendments were offered, and the bill 
was ordered favorably reported to the House of Representatives 
by a roll call vote of 20 yeas and 12 nays, 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 and Congressional Budget Act

    1. Cost of Legislation and the Congressional Budget Act. 
With respect to the requirements of clause 3(c)(2) and (3) of 
rule XIII of the Rules of the House of Representatives and 
sections 308(a) and 402 of the Congressional Budget Act of 
1974, the Committee has received the following estimate for the 
bill from the Director of the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, November 13, 2018.
Hon. Rob Bishop,
Chairman, Committee on Natural Resources,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 6345, the EMPOWERS 
Act of 2018.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Janani 
Shankaran.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

H.R. 6345--EMPOWERS Act of 2018

    Under the Endangered Species Act, individual people can 
petition the U.S. Fish and Wildlife Service (USFWS) of the 
National Oceanic and Atmospheric Administration (NOAA) to list 
or remove a species. In such cases, H.R. 6345 would require 
USFWS and NOAA to solicit information from officials in the 
states and counties where the species is found. The bill also 
would require USFWS or NOAA to notify state and local officials 
about proposed rules under the Endangered Species Act and to 
submit certain public comments to those officials.
    CBO expects that implementing the new requirements would 
result in a small increase in the agencies' workload. Based on 
the costs of similar tasks, CBO estimates that those costs 
would be less than $500,000 over the 2019-2023 period; such 
spending would be subject to the availability of appropriated 
funds.
    H.R. 6345 would not affect direct spending or revenues; 
therefore, pay-as-you-go procedures do not apply.
    CBO estimates that enacting H.R. 6345 would not increase 
net direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2029.
    H.R. 6345 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    The CBO staff contact for this estimate is Janani 
Shankaran. The estimate was reviewed by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.
    2. 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 provide for greater county and 
State consultation with regard to petitions under the 
Endangered Species Act of 1973.

                           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. This bill contains no directed 
rulemakings.
    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 (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, and existing law in which no 
change is proposed is shown in roman):

                     ENDANGERED SPECIES ACT OF 1973




           *       *       *       *       *       *       *
       determination of endangered species and threatened species

  Sec. 4. (a) General.--(1) The Secretary shall by regulation 
promulgated in accordance with subsection (b) determine whether 
any species is an endangered species or a threatened species 
because of any of the following factors:
          (A) the present or threatened destruction, 
        modification, or curtailment of its habitat or range;
          (B) overutilization for commercial, recreational, 
        scientific, or educational purposes;
          (C) disease or predation;
          (D) the inadequacy of existing regulatory mechanisms; 
        or
          (E) other natural or manmade factors affecting its 
        continued existence.
  (2) With respect to any species over which program 
responsibilities have been vested in the Secretary of Commerce 
pursuant to Reorganization Plan Numbered 4 of 1970--
          (A) in any case in which the Secretary of Commerce 
        determines that such species should--
                  (i) be listed as an endangered species or a 
                threatened species, or
                  (ii) be changed in status from a threatened 
                species to an endangered species, he shall so 
                inform the Secretary of the Interior, who shall 
                list such species in accordance with this 
                section;
          (B) in any case in which the Secretary of Commerce 
        determines that such species should--
                  (i) be removed from any list published 
                pursuant to subsection (c) of this section, or
                  (ii) be changed in status from an endangered 
                species to a threatened species, he shall 
                recommend such action to the Secretary of the 
                Interior, and the Secretary of the Interior, if 
                he concurs in the recommendation, shall 
                implement such action; and
          (C) the Secretary of the Interior may not list or 
        remove from any list any such species, and may not 
        change the status of any such species which are listed, 
        without a prior favorable determination made pursuant 
        to this section by the Secretary of Commerce.
  (3)(A) The Secretary, by regulation promulgated in accordance 
with subsection (b) and to the maximum extent prudent and 
determinable--
          (i) shall, concurrently with making a determination 
        under paragraph (1) that a species is an endangered 
        species or a threatened species, designate any habitat 
        of such species which is then considered to be critical 
        habitat; and
          (ii) may, from time-to-time thereafter as 
        appropriate, revise such designation.
  (B)(i) The Secretary shall not designate as critical habitat 
any lands or other geographical areas owned or controlled by 
the Department of Defense, or designated for its use, that are 
subject to an integrated natural resources management plan 
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), 
if the Secretary determines in writing that such plan provides 
a benefit to the species for which critical habitat is proposed 
for designation.
  (ii) Nothing in this paragraph affects the requirement to 
consult under section 7(a)(2) with respect to an agency action 
(as that term is defined in that section).
  (iii) Nothing in this paragraph affects the obligation of the 
Department of Defense to comply with section 9, including the 
prohibition preventing extinction and taking of endangered 
species and threatened species.
  (b) Basis for Determinations.--(1)(A) The Secretary shall 
make determinations required by subsection (a)(1) solely on the 
basis of the best scientific and commercial data available to 
him after conducting a review of the status of the species and 
after taking into account those efforts, if any, being made by 
any State or foreign nation, or any political subdivision of a 
State or foreign nation, to protect such species, whether by 
predator control, protection of habitat and food supply, or 
other conservation practices, within any area under its 
jurisdiction, or on the high seas.
  (B) In carrying out this section, the Secretary shall give 
consideration to species which have been--
          (i) designated as requiring protection from 
        unrestricted commerce by any foreign nation, or 
        pursuant to any international agreement; or
          (ii) identified as in danger of extinction, or likely 
        to become so within the foreseeable future, by any 
        State agency or by any agency of a foreign nation that 
        is responsible for the conservation of fish or wildlife 
        or plants.
  (2) The Secretary shall designate critical habitat, and make 
revisions thereto, under subsection (a)(3) on the basis of the 
best scientific data available and after taking into 
consideration the economic impact, the impact on national 
security, and any other relevant impact, of specifying any 
particular area as critical habitat. The Secretary may exclude 
any area from critical habitat if he determines that the 
benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless he 
determines, based on the best scientific and commercial data 
available, that the failure to designate such area as critical 
habitat will result in the extinction of the species concerned.
  (3)(A) To the maximum extent practicable, within 90 days 
after receiving the petition of an interested person under 
section 553(e) of title 5, United States Code, to add a species 
to, or to remove a species from, either of the lists published 
under subsection (c), the Secretary shall make a finding as to 
whether the petition presents substantial scientific or 
commercial information indicating that the petitioned action 
may be warranted. If such a petition is found to present such 
information, the Secretary shall promptly commence a review of 
the status of the species concerned. The Secretary shall 
promptly publish each finding made under this subparagraph in 
the Federal Register.
  (B) Within 12 months after receiving a petition that is found 
under subparagraph (A) to present substantial information 
indicating that the petitioned action may be warranted, the 
Secretary shall make one of the following findings:
          (i) The petitioned action is not warranted, in which 
        case the Secretary shall promptly publish such finding 
        in the Federal Register.
          (ii) The petitioned action is warranted in which case 
        the Secretary shall promptly publish in the Federal 
        Register a general notice and the complete text of a 
        proposed regulation to implement such action in 
        accordance with paragraph (5).
          (iii) The petitioned action is warranted but that--
                  (I) the immediate proposal and timely 
                promulgation of a final regulation implementing 
                the petitioned action in accordance with 
                paragraphs (5) and (6) is precluded by pending 
                proposals to determine whether any species is 
                an endangered species or a threatened species, 
                and
                  (II) expeditious progress is being made to 
                add qualified species to either of the lists 
                published under subsection (c) and to remove 
                from such lists species for which the 
                protections of the Act are no longer necessary,
        in which case the Secretary shall promptly publish such 
        finding in the Federal Register, together with a 
        description and evaluation of the reasons and data on 
        which the finding is based.
  (C)(i) A petition with respect to which a finding is made 
under subparagraph (B)(iii) shall be treated as a petition that 
is resubmitted to the Secretary under subparagraph (A) on the 
date of such finding and that presents substantial scientific 
or commercial information that the petitioned action may be 
warranted.
  (ii) Any negative finding described in subparagraph (A) and 
any finding described in subparagraph (B)(i) or (iii) shall be 
subject to judicial review.
  (iii) The Secretary shall implement a system to monitor 
effectively the status of all species with respect to which a 
finding is made under subparagraph (B)(iii) and shall make 
prompt use of the authority under paragraph 7 to prevent a 
significant risk to the well being of any such species.
  (D)(i) To the maximum extent practicable, within 90 days 
after receiving the petition of an interested person under 
section 553(e) of title 5, United States Code, to revise a 
critical habitat designation, the Secretary shall make a 
finding as to whether the petition presents substantial 
scientific information indicating that the revision may be 
warranted. The Secretary shall promptly publish such finding in 
the Federal Register.
  (ii) Within 12 months after receiving a petition that is 
found under clause (i) to present substantial information 
indicating that the requested revision may be warranted, the 
Secretary shall determine how he intends to proceed with the 
requested revision, and shall promptly publish notice of such 
intention in the Federal Register.
          (E) Listing petition review requirements.--
                  (i) Not later than 30 days before submitting 
                to the Secretary a petition to list, delist, or 
                reclassify a species that occurs in the United 
                States, or to revise a designation of critical 
                habitat of such a species, the petitioner shall 
                provide to the chief executive of each county 
                and State in which the species is located a 
                notice of intent to submit such petition.
                  (ii) The Secretary shall, upon finding that a 
                petitioned action to list a species as a 
                threatened species or endangered species may be 
                warranted, solicit from the chief executive of 
                each county and State in which the species is 
                located--
                                          (I) information 
                                        regarding threats to 
                                        the species and efforts 
                                        by the county or State, 
                                        respectively, to 
                                        protect the species;
                                          (II) information 
                                        about the anticipated 
                                        effects of the action 
                                        requested in the 
                                        petition in that county 
                                        or State, respectively; 
                                        and
                                          (III) the advice of 
                                        the chief executive on 
                                        whether the status of 
                                        the species merits the 
                                        action requested in the 
                                        petition, including 
                                        information in support 
                                        of such advice.
                  (iii) The Secretary may verify by field 
                testing the information presented in a petition 
                asserting that a species is a threatened 
                species or endangered species.
                  (iv) If a chief executive advises under 
                clause (ii)(III) that the petitioned-for action 
                is not warranted, the Secretary may not proceed 
                with the action unless the Secretary 
                demonstrates that information submitted in 
                support of such advice by the chief executive 
                is incorrect and that the action is warranted.
  (4) Except as provided in paragraphs (5) and (6) of this 
subsection, the provisions of section 553 of title 5, United 
States Code (relating to rulemaking procedures), shall apply to 
any regulation promulgated to carry out the purposes of this 
Act.
  [(5) With respect to any regulation proposed by the Secretary 
to implement a determination, designation, or revision referred 
to in subsection (a)(1) or (3), the Secretary shall--
          [(A) not less than 90 days before the effective date 
        of the regulation--
                  [(i) publish a general notice and the 
                complete text of the proposed regulation in the 
                Federal Register, and
                  [(ii) give actual notice of the proposed 
                regulation (including the complete text of the 
                regulation) to the State agency in each State 
                in which the species is believed to occur, and 
                to each county or equivalent jurisdiction in 
                which the species is believed to occur, and 
                invite the comment of such agency, and each 
                such jurisdiction, thereon;
          [(B) insofar as practical, and in cooperation with 
        the Secretary of State, give notice of the proposed 
        regulation to each foreign nation in which the species 
        is believed to occur or whose citizens harvest the 
        species on the high seas, and invite the comment of 
        such nation thereon;
          [(C) give notice of the proposed regulation to such 
        professional scientific organizations as he deems 
        appropriate;
          [(D) publish a summary of the proposed regulation in 
        a newspaper of general circulation in each area of the 
        United States in which the species is believed to 
        occur; and
          [(E) promptly hold one public hearing on the proposed 
        regulation if any person files a request for such a 
        hearing within 45 days after the date of publication of 
        general notice.]
          (5) Notice required.--With respect to any regulation 
        proposed by the Secretary to implement a determination 
        referred to in subsection (a)(1), the Secretary shall--
                  (A) not less than 90 days before the 
                effective date of the regulation--
                          (i) publish a general notice and the 
                        complete text of the proposed 
                        regulation in the Federal Register;
                          (ii) provide notice of the proposed 
                        regulation (including the complete text 
                        of the regulation) to the chief 
                        executive of county and State in which 
                        the species is located, and invite such 
                        chief executive to submit to the 
                        Secretary a determination as to whether 
                        the proposed regulation is warranted; 
                        and
                          (iii) if the chief executive notifies 
                        the Secretary that the proposed 
                        regulation is not warranted, provide to 
                        the chief executive a record of 
                        decision for such determination, 
                        including information made available to 
                        the Secretary that did not support the 
                        determination and in writing the 
                        reasons for the determination;
                  (B) in cooperation with the Secretary of 
                State, provide notice of the proposed 
                regulation to each foreign nation in which the 
                species is located or whose citizens harvest 
                the species on the high seas, and invite the 
                comment of such nation thereon;
                  (C) provide notice of the proposed regulation 
                to--
                          (i) each person who requests such 
                        notice;
                          (ii) each person who has submitted 
                        additional data on the proposed 
                        regulation;
                          (iii) each county, State, and local 
                        government within the jurisdiction of 
                        which the species is located or that is 
                        likely to experience any effects of any 
                        measures to protect the species under 
                        this Act; and
                          (iv) such professional scientific 
                        organizations as the Secretary 
                        considers appropriate;
                  (D) publish a summary of the proposed 
                regulation on the internet; and
                  (E) promptly hold one public hearing on the 
                proposed regulation if any person files a 
                request for such a hearing within 45 days after 
                the date of publication of general notice.
  (6)(A) Within the one-year period beginning on the date on 
which general notice is published in accordance with paragraph 
(5)(A)(i) regarding a proposed regulation, the Secretary shall 
publish in the Federal Register--
          (i) if a determination as to whether a species is an 
        endangered species or a threatened species, or a 
        revision of critical habitat, is involved, either--
                  (I) a final regulation to implement such 
                determination,
                  (II) a final regulation to implement such 
                revision or a finding that such revision should 
                not be made,
                  (III) notice that such one-year period is 
                being extended under subparagraph (B)(i), or
                  (IV) notice that the proposed regulation is 
                being withdrawn under subparagraph (B)(ii), 
                together with the finding on which such 
                withdrawal is based; or
          (ii) subject to subparagraph (C), if a designation of 
        critical habitat is involved, either--
                  (I) a final regulation to implement such 
                designation, or
                  (II) notice that such one-year period is 
                being extended under such subparagraph.
  (B)(i) If the Secretary finds with respect to a proposed 
regulation referred to in subparagraph (A)(i) that there is 
substantial disagreement regarding the sufficiency or accuracy 
of the available data relevant to the determination or revision 
concerned, the Secretary may extend the one-year period 
specified in subparagraph (A) for not more than six months for 
purposes of soliciting additional data.
  (ii) If a proposed regulation referred to in subparagraph 
(A)(i) is not promulgated as a final regulation within such 
one-year period (or longer period if extension under clause (i) 
applies) because the Secretary finds that there is not 
sufficient evidence to justify the action proposed by the 
regulation, the Secretary shall immediately withdraw the 
regulation. The finding on which a withdrawal is based shall be 
subject to judicial review. The Secretary may not propose a 
regulation that has previously been withdrawn under this clause 
unless he determines that sufficient new information is 
available to warrant such proposal.
  (iii) If the one-year period specified in subparagraph (A) is 
extended under clause (i) with respect to a proposed 
regulation, then before the close of such extended period the 
Secretary shall publish in the Federal Register either a final 
regulation to implement the determination or revision 
concerned, a finding that the revision should not be made, or a 
notice of withdrawal of the regulation under clause (ii), 
together with the finding on which the withdrawal is based.
  (C) A final regulation designating critical habitat of an 
endangered species or a threatened species shall be published 
concurrently with the final regulation implementing the 
determination that such species is endangered or threatened, 
unless the Secretary deems that--
          (i) it is essential to the conservation of such 
        species that the regulation implementing such 
        determination be promptly published; or
          (ii) critical habitat of such species is not then 
        determinable, in which case the Secretary, with respect 
        to the proposed regulation to designate such habitat, 
        may extend the one-year period specified in 
        subparagraph (A) by not more than one additional year, 
        but not later than the close of such additional year 
        the Secretary must publish a final regulation, based on 
        such data as may be available at that time, 
        designating, to the maximum extent prudent, such 
        habitat.
  (7) Neither paragraph (4), (5), or (6) of this subsection nor 
section 553 of title 5, United States Code, shall apply to any 
regulation issued by the Secretary in regard to any emergency 
posing a significant risk to the well-being of any species of 
fish and wildlife or plants, but only if--
          (A) at the time of publication of the regulation in 
        the Federal Register the Secretary publishes therein 
        detailed reasons why such regulation is necessary; and
          (B) in the case such regulation applies to resident 
        species of fish or wildlife, or plants, the Secretary 
        gives actual notice of such regulation to the State 
        agency in each State in which such species is believed 
        to occur.
Such regulation shall, at the discretion of the Secretary, take 
effect immediately upon the publication of the regulation in 
the Federal Register. Any regulation promulgated under the 
authority of this paragraph shall cease to have force and 
effect at the close of the 240-day period following the date of 
publication unless, during such 240-day period, the rulemaking 
procedures which would apply to such regulation without regard 
to this paragraph are complied with. If at any time after 
issuing an emergency regulation the Secretary determines, on 
the basis of the best appropriate data available to him, that 
substantial evidence does not exist to warrant such regulation, 
he shall withdraw it.
  (8) The publication in the Federal Register of any proposed 
or final regulation which is necessary or appropriate to carry 
out the purposes of this Act shall include a summary by the 
Secretary of the data on which such regulation is based and 
shall show the relationship of such data to such regulation; 
and if such regulation designates or revises critical habitat, 
such summary shall, to the maximum extent practicable, also 
include a brief description and evaluation of those activities 
(whether public or private) which, in the opinion of the 
Secretary, if undertaken may adversely modify such habitat, or 
may be affected by such designation.
          (9) FACA.--Consultation with counties and States 
        regarding petitions and proposed regulations under this 
        subsection shall not be subject to the Federal Advisory 
        Committee Act (5 U.S.C. App.).
  (c) Lists.--(1) The Secretary of the Interior shall publish 
in the Federal Register a list of all species determined by him 
or the Secretary of Commerce to be endangered species and a 
list of all species determined by him or the Secretary of 
Commerce to be threatened species. Each list shall refer to the 
species contained therein by scientific and common name or 
names, if any, specify with respect to such species over what 
portion of its range it is endangered or threatened, and 
specify any critical habitat within such range. The Secretary 
shall from time to time revise each list published under the 
authority of this subsection to reflect recent determinations, 
designations, and revisions made in accordance with subsections 
(a) and (b).
  (2) The Secretary shall--
          (A) conduct, at least once every five years, a review 
        of all species included in a list which is published 
        pursuant to paragraph (1) and which is in effect at the 
        time of such review; and
          (B) determine on the basis of such review whether any 
        such species should--
                  (i) be removed from such list;
                  (ii) be changed in status from an endangered 
                species to a threatened species; or
                  (iii) be changed in status from a threatened 
                species to an endangered species.
Each determination under subparagraph (B) shall be made in 
accordance with the provisions of subsection (a) and (b).
  (d) Protective Regulations.--Whenever any species is listed 
as a threatened species pursuant to subsection (c) of this 
section, the Secretary shall issue such regulations as he deems 
necessary and advisable to provide for the conservation of such 
species. The Secretary may by regulation prohibit with respect 
to any threatened species any act prohibited under section 
9(a)(1), in the case of fish or wildlife, or section 9(a)(2) in 
the case of plants, with respect to endangered species; except 
that with respect to the taking of resident species of fish or 
wildlife, such, regulations shall apply in any State which has 
entered into a cooperative agreement pursuant to section 6(c) 
of this Act only to the extent that such regulations have also 
been adopted by such State.
  (e) Similarity of Appearance Cases.--The Secretary may, by 
regulation of commerce or taking, and to the extent he deems 
advisable, treat any species as an endangered species or 
threatened species even through it is not listed pursuant to 
section 4 of this Act if he finds that--
          
          (A) such species so closely resembles in appearance, 
        at the point in question, a species which has been 
        listed pursuant to such section that enforcement 
        personnel would have substantial difficulty in 
        attempting to differentiate between the listed and 
        unlisted species;
          (B) the effect of this substantial difficulty is an 
        additional threat to an endangered or threatened 
        species; and
          (C) such treatment of an unlisted species will 
        substantially facilitate the enforcement and further 
        the policy of this Act.
  (f)(1) Recovery Plans.--The Secretary shall develop and 
implement plans (hereinafter in this subsection referred to as 
``recovery plans'') for the conservation and survival of 
endangered species and threatened species listed pursuant to 
this section, unless he finds that such a plan will not promote 
the conservation of the species. The Secretary, in developing 
and implementing recovery plans, shall, to the maximum extent 
practicable--
          (A) give priority to those endangered species or 
        threatened species, without regard to taxonomic 
        classification, that are most likely to benefit from 
        such plans, particularly those species that are, or may 
        be, in conflict with construction or other development 
        projects or other forms of economic activity;
          (B) incorporate in each plan--
                  (i) a description of such site-specific 
                management actions as may be necessary to 
                achieve the plan's goal for the conservation 
                and survival of the species;
                  (ii) objective, measurable criteria which, 
                when met, would result in a determination, in 
                accordance with the provisions of this section, 
                that the species be removed from the list; and
                  (iii) estimates of the time required and the 
                cost to carry out those measures needed to 
                achieve the plan's goal and to achieve 
                intermediate steps toward that goal.
  (2) The Secretary, in developing and implementing recovery 
plans, may procure the services of appropriate public and 
private agencies and institutions and other qualified persons. 
Recovery teams appointed pursuant to this subsection shall not 
be subject to the Federal Advisory Committee Act.
  (3) The Secretary shall report every two years to the 
Committee on Environment and Public Works of the Senate and the 
Committee on Merchant Marine and Fisheries of the House of 
Representatives on the status of efforts to develop and 
implement recovery plans for all species listed pursuant to 
this section and on the status of all species for which such 
plans have been developed.
  (4) The Secretary shall, prior to final approval of a new or 
revised recovery plan, provide public notice and an opportunity 
for public review and comment on such plan. The Secretary shall 
consider all information presented during the public comment 
period prior to approval of the plan.
  (5) Each Federal agency shall, prior to implementation of a 
new or revised recovery plan, consider all information 
presented during the public comment period under paragraph (4).
  (g) Monitoring.--(1) The Secretary shall implement a system 
in cooperation with the States to monitor effectively for not 
less than five years the status of all species which have 
recovered to the point at which the measures provided pursuant 
to this Act are no longer necessary and which, in accordance 
with the provisions of this section, have been removed from 
either of the lists published under subsection (c).
  (2) The Secretary shall make prompt use of the authority 
under paragraph 7 of subsection (b) of this section to prevent 
a significant risk to the well being of any such recovered 
species.
  (h) Agency Guidelines.--The Secretary shall establish, and 
publish in the Federal Register, agency guidelines to insure 
that the purposes of this section are achieved efficiently and 
effectively. Such guidelines shall include, but are not limited 
to--
          (1) procedures for recording the receipt and the 
        disposition of petitions submitted under subsection 
        (b)(3) of this section;
          (2) criteria for making the findings required under 
        such subsection with respect to petitions;
          (3) a ranking system to assist in the identification 
        of species that should receive priority review under 
        subsection (a)(1) of the section; and
          (4) a system for developing and implementing, on a 
        priority basis, recovery plans under subsection (f) of 
        this section.
The Secretary shall provide to the public notice of, and 
opportunity to submit written comments on, any guideline 
(including any amendment thereto) proposed to be established 
under this subsection.
  [(i) If, in the case of any regulation proposed by the 
Secretary under the authority of this section, a State agency 
to which notice thereof was given in accordance with subsection 
(b)(5)(A)(ii) files comments disagreeing with all or part of 
the proposed regulation, and the Secretary issues a final 
regulation which is in conflict with such comments, or if the 
Secretary fails to adopt a regulation pursuant to an action 
petitioned by a State agency under subsection (b)(3), the 
Secretary shall submit to the State agency a written 
justification for his failure to adopt regulations consistent 
with the agency's comments or petition.]
  (i) Written Justification.--If the Secretary adopts a final 
regulation in conflict with advise submitted by the chief 
executive of a county or State or fails to adopt a regulation 
pursuant to an action petitioned for by such a chief executive 
under subsection (b)(3), the Secretary shall submit to the 
chief executive--
          (1) a separate written justification explaining the 
        failure of the Secretary to adopt regulations 
        consistent with the advise or petition of the chief 
        executive;
          (2) any determination referred to in subsection 
        (a)(1) relating to the regulation; and
          (3) all comments received by the Secretary that 
        disagreed with all or part of the regulation.

           *       *       *       *       *       *       *


                            DISSENTING VIEWS

    This legislation is part of a package of nine Republican 
bills, spearheaded by the Western Caucus, introduced late in 
the second session of this Congress, and designed to destroy 
the Endangered Species Act. Each bill has its own, logic-
defying, acronym.
    H.R. 6345 undermines the ability of the Secretaries of 
Interior and Commerce to list a species as threatened or 
endangered under the Endangered Species Act (ESA). The listing 
of a species should be based solely on the best-available 
scientific and commercial data; however, this bill would inject 
political considerations into the listing decision which would 
make it extremely difficult for a new species to be listed.
    Currently, federal agencies are required to make a finding 
within 90 days of receiving a petition as to whether there is 
substantial information indicating that the petitioned action 
may be warranted. If this finding is positive, the agencies 
conduct a status review and, within one year of receipt of the 
petition, make a finding on whether listing is warranted. The 
agencies then publish a proposed rule for public review before 
making a final listing determination.
    Section 4 of the ESA already requires federal agencies to 
give notice, invite comments, and provide the complete text of 
a listing decision to any affected state or county.
    Conversely, this bill provides states with significant 
control over listing decisions which could result in an 
imperiled species not receiving the protections it needs. This 
bill requires anyone who submits a petition to notify an 
unspecified ``chief executive'' of each county and state in 
which the species is located of such petition, and it requires 
the Secretary to solicit from each chief executive information 
regarding threats to the species, anticipated effects of the 
listing (including economic impacts), and advice of the chief 
executive on whether the species merits protection.
    If a chief executive deems the listing could be 
unwarranted, the Secretary cannot proceed with the action 
unless he or she demonstrates that the information submitted by 
the chief executive is incorrect. If the Secretary moves 
forward with a final listing decision, he or she must provide 
notice of the proposed rule to the chief executive of each 
county and state in which the species is located and again 
invite the chief executive to provide comment on whether the 
proposal is warranted. If the Secretary adopts a final 
regulation in conflict with advice submitted by any chief 
executive or fails to adopt a petition requested by a chief 
executive, the Secretary must provide them with a written 
justification explaining why the decision diverged from the 
chief executive's findings or advice.
    H.R. 6345 creates a massive amount of bureaucracy with the 
sole intention of making it nearly impossible to list a new 
species. For example, the whooping crane can be found in 17 
states and over 700 counties. If the whooping crane was not yet 
listed, this bill would require federal agencies to consult 
with over 700 different chief executives to determine whether 
the species warrants protection. This process ultimately 
guarantees that the species would never be listed due to the 
absurd number of individuals the Secretary must consult with 
and the amount of time that the process would take.
    The bill does not specify who is considered the chief 
executive of each county and state, which could potentially 
result in unqualified individuals participating in listing 
decisions, nor does it specify how the Secretary should proceed 
if he or she receives conflicting advice from different chief 
executives.
    Finally, the bill places an unnecessary burden on the 
Secretary to consult and provide additional information to the 
states, even though Section 4 of the ESA already requires 
federal agencies to give notice, invite comments, and provide 
the complete text of a listing decision to any affected state 
or county.
    For these reasons, we cannot support the bill as reported.

                                   Raul M. Grijalva,
                                           Ranking Member, Committee on 
                                               Natural Resources.
                                   Jared Huffman.
                                   Grace F. Napolitano.
                                   Nanette Diaz Barragan.
                                   A. Donald McEachin.
                                   Wm. Lacy Clay.
                                   Niki Tsongas.
                                   Donald S. Beyer.

                                  [all]