[House Report 115-838]
[From the U.S. Government Publishing Office]


115th Congress   }                                            {   Report
                          HOUSE OF REPRESENTATIVES
 2d Session      }                                            {  115-838

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



 
                FEDERALLY INTEGRATED SPECIES HEALTH ACT

                                _______
                                

 July 18, 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. 3916]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (H.R. 3916) to amend the Endangered Species Act of 
1973 to vest in the Secretary of the Interior functions under 
that Act with respect to species of fish that spawn in fresh or 
estuarine waters and migrate to ocean waters, and species of 
fish that spawn in ocean waters and migrate to fresh waters, 
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 ``Federally Integrated Species Health 
Act'' or the ``FISH Act''.

SEC. 2. TRANSFER OF FUNCTIONS WITH RESPECT TO ANADROMOUS SPECIES AND 
                    CATADROMOUS SPECIES.

  (a) Transfer of Functions.--All functions with respect to anadromous 
species and catadromous species under the Endangered Species Act of 
1973 (16 U.S.C. 1531 et seq.) that were vested in the Secretary of 
Commerce or the National Marine Fisheries Service immediately before 
the enactment of this Act are transferred to the Secretary of the 
Interior.
  (b) Conforming Amendments.--The Endangered Species Act of 1973 is 
amended--
          (1) in section 3(15) (16 U.S.C. 1532(15))--
                  (A) by inserting ``(A)'' after ``(15)''; and
                  (B) by adding at the end the following:
  ``(B) Notwithstanding subparagraph (A), with respect to anadromous 
species and catadromous species, the term `Secretary' means the 
Secretary of the Interior.''; and
          (2) in section 3 (16 U.S.C. 1532) by adding at the end the 
        following:
  ``(22) The term `anadromous species' means a species of fish that 
spawn in fresh or estuarine waters and that migrate to ocean waters.
  ``(23) The term `catadromous species' means a species of fish that 
spawn in ocean waters and migrate to fresh waters.''.

SEC. 3. MISCELLANEOUS PROVISIONS.

  (a) References.--Any reference in any other Federal law, Executive 
order, rule, regulation, or delegation of authority, or any document of 
or pertaining to a department or office from which a function is 
transferred by this Act--
          (1) to the head of such department or office is deemed to 
        refer to the Secretary of the Interior; or
          (2) to such department or office is deemed to refer to the 
        Department of the Interior.
  (b) Exercise of Authorities.--Except as otherwise provided by law, 
the Secretary of the Interior may, for purposes of performing the 
functions transferred by this Act, exercise all authorities under the 
Endangered Species Act of 1973 that were available with respect to the 
performance of that function immediately before the effective date of 
the transfer of the function under this Act.
  (c) Savings Provisions.--
          (1) Legal documents.--All orders, determinations, rules, 
        regulations, permits, grants, loans, contracts, agreements, 
        certificates, licenses, and privileges--
                  (A) that have been issued, made, granted, or allowed 
                to become effective by the Secretary of Commerce, any 
                officer or employee of the Department of Commerce, or 
                any other Government official in the performance of any 
                function that is transferred by this Act, or by a court 
                of competent jurisdiction with respect to such 
                performance; and
                  (B) that are in effect on the effective date of this 
                Act (or become effective after such date pursuant to 
                their terms as in effect on such effective date),
        shall continue in effect according to their terms until 
        modified, terminated, superseded, set aside, or revoked in 
        accordance with law by the President, any other authorized 
        official, a court of competent jurisdiction, or operation of 
        law.
          (2) Proceedings.--
                  (A) In general.--This Act shall not affect any 
                proceedings or any application for any benefits, 
                service, license, permit, certificate, or financial 
                assistance pending on the date of the enactment of this 
                Act before an office transferred by this Act. Such 
                proceedings and applications shall be continued. Orders 
                shall be issued in such proceedings, appeals shall be 
                taken therefrom, and payments shall be made pursuant to 
                such orders, as if this Act had not been enacted, and 
                orders issued in any such proceeding shall continue in 
                effect until modified, terminated, superseded, or 
                revoked by a duly authorized official, by a court of 
                competent jurisdiction, or by operation of law.
                  (B) Limitation.--Nothing in this paragraph shall be 
                considered to prohibit the discontinuance or 
                modification of any such proceeding under the same 
                terms and conditions and to the same extent that such 
                proceeding could have been discontinued or modified if 
                this Act had not been enacted.
          (3) Suits.--This Act shall not affect suits commenced before 
        the date of the enactment of this Act, and in all such suits, 
        proceeding shall be had, appeals taken, and judgments rendered 
        in the same manner and with the same effect as if this Act had 
        not been enacted.
          (4) Nonabatement of actions.--No suit, action, or other 
        proceeding commenced by or against the Department of Commerce 
        or the Secretary of Commerce, or by or against any individual 
        in the official capacity of such individual as an officer or 
        employee of the Department of Commerce, shall abate by reason 
        of the enactment of this Act.
          (5) Continuance of suits.--If any Government officer in the 
        official capacity of such officer is party to a suit with 
        respect to a function of the officer, and under this Act such 
        function is transferred to any other officer or office, then 
        such suit shall be continued with the other officer or the head 
        of such other office, as applicable, substituted or added as a 
        party.
          (6) Administrative procedure and judicial review.--Except as 
        otherwise provided by this Act, any statutory requirements 
        relating to notice, hearings, action upon the record, or 
        administrative or judicial review that apply to any function 
        transferred by this Act shall apply to the exercise of such 
        function by the head of the Federal agency, and other officers 
        of the agency, to which such function is transferred by this 
        Act.

SEC. 4. DEFINITIONS.

  For purposes of this Act:
          (1) Anadromous species and catadromous species.--Each of the 
        terms ``anadromous species'' and ``catadromous species'' has 
        the meaning that term has under section 3 of the Endangered 
        Species Act of 1973, as amended by section 2 of this Act.
          (2) Function.--The term ``function'' includes any duty, 
        obligation, power, authority, responsibility, right, privilege, 
        activity, or program.
          (3) Office.--The term ``office'' includes any office, 
        administration, agency, bureau, institute, council, unit, 
        organizational entity, or component thereof.

                          Purpose of the Bill

    The purpose of H.R. 3916 is to amend the Endangered Species 
Act of 1973 to vest in the Secretary of the Interior functions 
under the Act with respect to species of fish that spawn in 
fresh or estuarine waters and migrate to ocean waters, and 
species of fish that spawn in ocean waters and migrate to fresh 
waters.

                  Background and Need for Legislation


The Endangered Species Act of 1973

    In response to fears over dwindling populations of plant 
and animal species, Congress passed the Endangered Species Act 
of 1973 (ESA, 16 U.S.C. 1531 et seq.). ESA sets out the broad 
goal of conserving and recovering species facing extinction.\1\ 
The law authorizes federal agencies to identify imperiled 
species and list them as either threatened or endangered as 
appropriate.\2\ The law further requires agencies to take 
necessary actions to conserve those species and their habitats. 
Congress made significant amendments to the ESA in 1978, 1982, 
and 1988, though the overall framework has remained essentially 
unchanged since its original enactment in 1973.\3\ In 44 years, 
there have been 2,335 total listings of species as either 
``endangered'' or ``threatened'', thus triggering ESA 
protections.\4\ In that time, of the 72 total species delisted, 
only 42 distinct species have been removed, either entirely or 
partially throughout their range, due to population 
recovery.\5\
---------------------------------------------------------------------------
    \1\The Endangered Species Act of 1973, 16 U.S.C. Sec. 1531(b).
    \2\16 U.S.C. Sec. 1533.
    \3\A History of the Endangered Species Act of 1973, United States 
Fish and Wildlife Service.
    \4\Listed Species Summary, Environmental Conservation Online 
System, United States Fish and Wildlife Service.
    \5\Delisted Species, Environmental Conservation Online System, 
United States Fish and Wildlife Service.
---------------------------------------------------------------------------
    Under the ESA, 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.\6\ If federal actions\7\ 
might affect a listed species, section 7 of the ESA requires 
federal agencies that would carry out such actions to consult 
with FWS or NMFS to ``ensure that their actions are `not likely 
to jeopardize the continued existence' of any endangered or 
threatened species, nor to adversely modify critical 
habitat''.\8\
---------------------------------------------------------------------------
    \6\Congressional Research Service Report ``The Endangered Species 
Act: A Primer,'' p. 8.
    \7\As defined in 40 Code of Federal Regulations 1508.18.
    \8\Id.
---------------------------------------------------------------------------
    When otherwise lawful actions occurring on private lands 
that lack a federal nexus impact a listed species, the 
appropriate Secretary may issue an incidental take permit.\9\ 
These ESA section 10 permits require applicants to submit a 
conservation plan outlining the impacts of the takings and 
steps the applicant will take to reduce such impacts along with 
any alternatives that could avoid such impacts.\10\
---------------------------------------------------------------------------
    \9\16 U.S.C. Sec. 1539.
    \10\Id.
---------------------------------------------------------------------------

Regulatory duplication

    FWS or NMFS completes its section 7 consultation process 
with the issuance of a Biological Opinion (BiOp) determining 
whether the federal action will jeopardize the continued 
existence of the species in question or adversely modify 
critical habitat.\11\ If the BiOp concludes ``no jeopardy'' to 
the species, then the agency issues an incidental take 
statement allowing the action to continue.\12\ If the BiOp 
concludes that the proposed action ``jeopardizes'' a species, 
then the agency outlines Reasonable and Prudent Alternative 
courses of action (RPAs) that will allow the action to move 
forward without jeopardizing the species.\13\ If no such RPAs 
exist, the action is not permitted to proceed.
---------------------------------------------------------------------------
    \11\16 U.S.C. Sec. 1536(b).
    \12\16 U.S.C. Sec. 1536(b)(4).
    \13\Id.
---------------------------------------------------------------------------
    In many cases, federal and private actions impact multiple 
species that fall under the jurisdiction of both FWS and NMFS. 
In such instances, both FWS and NMFS issue BiOps detailing 
impacts on their respective species and detailing RPAs to 
mitigate jeopardy if necessary. This redundant exercise can 
result in competing recommendations and in some cases, 
irreconcilable mandates, such as in the example below.

Examples of Agency duplication

    In California, operations of the federal Central Valley 
Project (CVP) and the State Water Project (SWP) in the 
Sacramento-San Joaquin Bay-Delta (Bay-Delta) required BiOps 
from FWS and NMFS relating to impacts on the Delta smelt and 
certain species of salmon respectively. The 2009 NMFS BiOP for 
Winter-run Chinook salmon (2009 BiOp) requires the Bureau of 
Reclamation to receive approval from NMFS prior to issuing 
water supply allocations for the water year.\14\ On March 31, 
2016, after reviewing Reclamation's March forecast and water 
supply allocation, NMFS sent a concurrence letter stating, 
``NMFS concurs with Reclamation's forecast based on March 15, 
2016, hydrologic conditions, and initial water supply 
allocation, that RPA I.2.3.A should be implemented this 
year.''\15\ Two weeks after sending its concurrence letter, 
NMFS indicated that its temperature projections were no longer 
valid. As a result, NMFS proposed to limit releases from Shasta 
Dam to 8,000 cubic feet per second (cfs)--down from a maximum 
of 10,500 cfs in the approved operations plan--through the 
summer and into the fall to preserve cold water for Winter-run 
Chinook salmon.\16\
---------------------------------------------------------------------------
    \14\Biological Opinion and Conference Opinion on the Long-Term 
Operations of the Central Valley Project and State Water Project, 
Southwest Region, National Marine Fisheries Service, June 4, 2009, p. 
602.
    \15\http://www.westcoast.fisheries.noaa.gov/publications/
Central_Valley/Water%20Operations/
nmfs_march_31_2016_response_to_the_bureau_of_reclamation_s_march_forecas
t.pdf, p. 4.
    \16\http://valadao.house.gov/uploadedfiles/
june_2016_letter_to_u.s._interior_and_u.s._commerce.pdf, p. 1.
---------------------------------------------------------------------------
    As NMFS sought to limit Delta outflow, FWS proposed to 
increase Bay-Delta outflow for the Delta smelt during the same 
period. According to a Reclamation spokesman, FWS requested up 
to 300,000 acre-feet of water for Delta outflow for the Delta 
smelt in the summer of 2016.\17\ Some contend that these 
actions are outside the requirements of the 2008 FWS Delta 
smelt Biological Opinion (2008 BiOp).\18\ At a July 2016 
Subcommittee on Water, Power and Oceans hearing, Mr. Ara 
Azhderian, Water Policy Administrator for the San Luis and 
Delta-Mendota Water Authority, testified, ``The current BiOps 
have squeezed virtually all of the operational flexibility from 
the Projects, causing the damaging effects of the natural 
drought to amplify the chronic water supply shortages of the 
regulatory drought, with devastating effect throughout the CVP 
service area, but especially in the San Joaquin Valley.''\19\
---------------------------------------------------------------------------
    \17\http://www.sacbee.com/news/state/california/water-and-drought/
article86742377.html
    \18\http://valadao.house.gov/uploadedfiles/
june_2016_letter_to_u.s._interior_and_u.s._commerce.pdf, p. 2.
    \19\Written Testimony of Mr. Ara Azhderian before the Subcommittee 
on Water, Power and Oceans, Oversight Hearing ``Changing Demands and 
Water Supply Uncertainty in California'', July 12, 2016, p. 2.
---------------------------------------------------------------------------
    Section 10 permit applicants face similar uncertainty when 
their actions impact species that cross jurisdictional lines. 
An example would be ESA listing of several species including 
the northern spotted owl and the marbled murrelet that stalled 
timber management activities in the Pacific Northwest. Revenues 
from timber sales in the Pacific Northwest finance a variety of 
county services, including public schools.\20\ Section 10 of 
ESA requires non-federal stakeholders to develop habitat 
conservation plans (HCPs) for spotted owls and marbled 
murrelets to continue timber harvesting in ways that would 
mitigate impacts on these species.\21\ However, a 2007 guidance 
from FWS and NMFS regional offices overseeing California, 
Nevada and the Pacific Northwest complicated the HCP 
development and section 10 application processes.\22\ According 
to the guidance, each agency will consider only multi-species 
HCPs that also encompass potential impacts on species under the 
jurisdiction of both agencies if the lands in question may 
support any such species. Furthermore, the guidance established 
that applicants pursue ``parallel permit processes as a 
criterion for permit issuance,'' effectively establishing a 
firewall between the agencies' individual ESA 
determinations.\23\
---------------------------------------------------------------------------
    \20\``Public Timber: Federal and State Programs Differ 
Significantly in Pacific Northwest'', Report to the Chairman, Committee 
on Resources, House of Representatives, U.S. Government Accountability 
Office, May 1996, p. 1.
    \21\``OFIC Comments on Streamlining Regulatory Processes and 
Reducing Regulatory Burden'', Letter from the Oregon Forest & 
Industries Council to the National Marine Fisheries Service, August 21, 
2017, p. 2.
    \22\``Guidance on Single-Species and Single-Agency Approaches to 
Endangered Species Act Section 10 Permits for Habitat Conservation 
Plans, Safe Harbor Agreements, and Candidate Conservation Agreement 
with Assurances'', Joint Memorandum, National Marine Fisheries Service 
and United States Fish and Wildlife Service; July 11, 2007.
    \23\Id., p. 2.
---------------------------------------------------------------------------
    In Oregon, for example, FWS refuses to issue section 10 
permits to forestland owners for the marbled murrelet and 
spotted owl unless the applicants also undertake the 
conservation measures required to obtain a section 10 permit 
from NMFS for Oregon coast coho.\24\ All three species are 
listed as threatened.
---------------------------------------------------------------------------
    \24\``OFIC Comments on Streamlining Regulatory Processes and 
Reducing Regulatory Burden'', Letter from the Oregon Forest & 
Industries Council to the National Marine Fisheries Service, August 21, 
2017, p. 2.
---------------------------------------------------------------------------
    The different approach each agency takes to ESA section 
4(d) rules creates further uncertainty for those attempting to 
navigate the interjurisdictional regulatory web. While the ESA 
applies a blanket prohibition on takings of endangered 
species,\25\ this prohibition does not extend to threatened 
species. Section 4(d) authorizes each agency to promulgate 
regulations ``the Secretary deems necessary and advisable to 
provide for the conservation of [threatened] species.''\26\ 
NMFS applies 4(d) rules to threatened species in its 
jurisdiction on a case-by-case basis, whereas FWS uses its 4(d) 
authority to extend a blanket taking prohibition to all 
threatened species in its jurisdiction and in some instances 
applies tailored rules to individual threatened species.\27\ 
When the ESA requires both agencies to participate in a section 
7 consultation or to issue a section 10 permit, these differing 
regulatory styles add unnecessary hurdles to an already 
extensive review process.
---------------------------------------------------------------------------
    \25\16 U.S.C. Sec. 1538(a).
    \26\16 U.S.C. Sec. 1533(d).
    \27\Curtiss, Sarah Stauffer, ``A Necessary Tool for Conservation: 
The Case for Section 4(d) of the Endangered Species Act: Current & 
Emerging Issues Affecting Resource Development'', Paper 7C, Page No. 2 
(Rocky Mt. Min. L. Fdn. 2015).
---------------------------------------------------------------------------

H.R. 3916--The FISH Act

    In 1966 Congress passed the Marine Resources and 
Engineering Development Act (Public Law 89-454), which 
established a Commission on Marine Science, Engineering and 
Resources. The legislation directed the Commission to ``make a 
comprehensive investigation and study of all aspects of marine 
science in order to recommend an overall plan for an adequate 
national oceanographic program that will meet the present and 
future national needs.''\28\ The Commission published its final 
report ``Our Nation and the Sea: A Plan for National Action'' 
which laid the foundation for creation of the National Oceanic 
and Atmospheric Administration (NOAA).\29\ President Nixon 
incorporated the Commission's recommendation into his Advisory 
Council on Executive Organization which recommended that this 
new agency be housed in the Department of the Interior 
(DOI).\30\ Nearly two-thirds of this new agency's budget would 
comprise the budget of the Environmental Science Services 
Administration (ESSA) which operated within the Department of 
Commerce. Citing the prevalence of ESSA's resources in the new 
budget for NOAA, then-Secretary of Commerce Maurice Stans--
aided by political strife between President Nixon and his DOI 
Secretary--successfully argued that NOAA should be temporarily 
housed in the Department of Commerce.\31\ On October 3, 1970, 
President Nixon created NOAA as part of Reorganization Plan No. 
4, placing it in the Department of Commerce.\32\
---------------------------------------------------------------------------
    \28\80 Stat 206.
    \29\A History of NOAA, National Oceanic and Atmospheric 
Administration.
    \30\Id.
    \31\Id.
    \32\84 Stat. 2090-3.
---------------------------------------------------------------------------
    In his 2011 State of the Union address, President Obama 
highlighted this duplicative authority as his ``favorite 
example'' of government inefficiency, saying ``the Interior 
Department is in charge of salmon while they're in freshwater, 
but the Commerce Department handles them when they're in 
saltwater. And I hear it gets even more complicated once 
they're smoked.''\33\ Furthermore, President Obama formally 
proposed the idea of merging NOAA into DOI in 2012 in his 
Fiscal Year (FY) 2013 budget request and echoed the 2012 
proposal in his FY 2016 budget request.\34\\35\
---------------------------------------------------------------------------
    \33\State of the Union Address, President Barack Obama, 2011.
    \34\Fiscal Year 2013 Budget of the United States, p. 41.
    \35\Fiscal Year 2016 Budget of the United States, p. 81.
---------------------------------------------------------------------------
    The FISH Act, authored by Rep. Ken Calvert (R-CA), takes a 
step in righting a decades-old wrong. H.R. 3916 would eliminate 
bureaucratic redundancies by consolidating the ESA functions of 
NOAA and DOI relating to the conservation of anadromous and 
catadromous fish, making DOI solely responsible for managing 
these species. This legislation will allow one wildlife 
management agency to comprehensively evaluate impacts on 
species interacting in a shared ecosystem and determine a 
holistic management approach.

                      Section-by-Section Analysis


Section 1. Short title

    This Act may be cited as ``Federally Integrated Species 
Health Act'' or ``FISH Act''.

Section 2. Transfer of functions with respect to anadromous species and 
        catadromous species

    This section transfers all ESA authority with respect to 
the conservation of anadromous and catadromous fish species 
from NOAA to DOI. Section 2 amends Section 3 of the ESA to 
reflect this change.

Section 3. Miscellaneous provisions

    This section ensures any reference in federal law, 
executive order, rule, regulation, or delegation of authority, 
or any document of or pertaining to a department or office from 
which a function is transferred by the FISH Act would refer to 
the Secretary of the Interior and/or DOI upon passage. Section 
3 also guarantees the FISH Act would impose no limitations on 
the Secretary of the Interior's authorities under the ESA.
    Section 3 also includes a number of savings clauses. The 
legislation would not interfere with existing rules, contracts, 
licenses, etc. or any court proceedings that had initiated 
prior to the date of enactment of this Act. If any official is 
party to a lawsuit in his/her official capacity relating to 
authorities transferred under this legislation, the lawsuit is 
allowed to proceed substituting the analogous officer within 
DOI. Section 3 also ensures compliance with all procedural and 
judicial review requirements with respect to exercise of 
transferred authorities by the Secretary of the Interior.

Section 4. Definitions

    This section defines several key terms including 
``anadromous species'' and ``catadromous species''.
    This section defines several key terms including 
``anadromous species'' and ``catadromous species''.

                            Committee Action

    H.R. 3916 was introduced on October 3, 2017, by Congressman 
Ken Calvert (R-CA). The bill was referred to the Committee on 
Natural Resources, and within the Committee to the Subcommittee 
on Water, Power and Oceans. On October 12, 2017, the 
Subcommittee held a hearing on the legislation. On May 16, 
2018, the Natural Resources Committee met to consider the bill. 
The Subcommittee was discharged by unanimous consent. 
Congressman Doug Lamborn (R-CO) offered an amendment designated 
#1; it was adopted by voice vote. No further amendments were 
offered and the bill, as amended, was ordered favorably 
reported to the House of Representatives by a bipartisan roll 
call vote of 22 yeas and 14 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, June 25, 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. 3916, the FISH 
Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Jeff LaFave.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

H.R. 3916--FISH Act

    H.R. 3916 would amend the Endangered Species Act (ESA) to 
transfer all authority for managing the species of fish that 
migrate between freshwater and saltwater to the U.S. Fish and 
Wildlife Service (USFWS). Currently, the responsibility is 
shared by USFWS and the National Oceanic and Atmospheric 
Administration (NOAA).
    In 2018, NOAA allocated appropriations totaling $140 
million to support 363 agency staff who manage the affected 
fish populations. Those employees conduct research and 
monitoring, engage in interagency consultations, complete 
habitat conservation plans, and implement recovery actions. CBO 
expects that NOAA' s workforce and budget would be reduced 
under the bill and that any reduction in spending would be 
offset by a corresponding increase in USFWS spending.
    Implementing H.R. 3916 could affect the federal budget if 
the transfer of authority affected the amount of work space 
necessary for one or both agencies or the number of employees 
needed to carry out the activities required under the ESA. 
However, CBO lacks sufficient information regarding how the 
agencies would implement the bill to determine whether such 
effects would result in any significant net increase or 
decrease in spending; any increased spending would be subject 
to the availability of appropriated funds.
    Enacting H.R. 3916 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    CBO estimates that enacting H.R. 3916 would not increase 
net direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2029.
    H.R. 3916 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    The CBO staff contact for this estimate is Jeff LaFave. 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 amend the Endangered Species Act 
of 1973 to vest in the Secretary of the Interior functions 
under the Act with respect to species of fish that spawn in 
fresh or estuarine waters and migrate to ocean waters, and 
species of fish that spawn in ocean waters and migrate to fresh 
waters.

                           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 does not contain any 
directed rule makings.
    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 OF 1973




           *       *       *       *       *       *       *
                              definitions

  Sec. 3. For the purposes of this Act--
  (1) The term ``alternative courses of action'' means all 
alternatives and thus is not limited to original project 
objectives and agency jurisdiction.
  (2) The term ``commercial activity'' means all activities of 
industry and trade, including, but not limited to, the buying 
or selling of commodities and activities conducted for the 
purpose of facilitating such buying and selling: Provided, 
however, That it does not include exhibitions of commodities by 
museums or similar cultural or historical organizations.
  (3) The terms ``conserve,''``conserving,'' and 
``conservation'' mean to use and the use of all methods and 
procedures which are necessary to bring any endangered species 
or threatened species to the point at which the measures 
provided pursuant to this Act are no longer necessary. Such 
methods and procedures include, but are not limited to, all 
activities associated with scientific resources management such 
as research, census, law enforcement, habitat acquisition and 
maintenance, propagation, live trapping, and transplantation, 
and, in the extraordinary case where population pressures 
within a given ecosystem cannot be otherwise relieved, may 
include regulated taking.
  (4) The term ``Convention'' means the Convention on 
International Trade in Endangered Species of Wild Fauna and 
Flora, signed on March 3, 1973, and the appendices thereto.
  (5)(A) The term ``critical habitat'' for a threatened or 
endangered species means--
          (i) the specific areas within the geographical area 
        occupied by the species, at the time it is listed in 
        accordance with the provisions of section 4 of this 
        Act, on which are found those physical or biological 
        features (I) essential to the conservation of the 
        species and (II) which may require special management 
        considerations or protection; and
          (ii) specific areas outside the geographical area 
        occupied by the species at the time it is listed in 
        accordance with the provisions of section 4 of this 
        Act, upon a determination by the Secretary that such 
        areas are essential for the conservation of the 
        species.
  (B) Critical habitat may be established for those species now 
listed as threatened or endangered species for which no 
critical habitat has heretofore been established as set forth 
in subparagraph (A) of this paragraph.
  (C) Except in those circumstances determined by the 
Secretary, critical habitat shall not include the entire 
geographical area which can be occupied by the threatened or 
endangered species.
  (6) The term ``endangered species''' means any species which 
is in danger of extinction throughout all or a significant 
portion of its range other than a species of the Class Insecta 
determined by the Secretary to constitute a pest whose 
protection under the provisions of this Act would present an 
overwhelming and overriding risk to man.
  (7) The term ``Federal agency'' means any department, agency, 
or instrumentality of the United States.
  (8) The term ``fish or wildlife'' means any member of the 
animal kingdom, including without limitation any mammal, fish, 
bird (including any migratory, nonmigratory, or endangered bird 
for which protection is also afforded by treaty or other 
international agreement), amphibian, reptile, mollusk, 
crustacean, arthropod or other invertebrate, and includes any 
part, product, egg, or offspring thereof, or the dead body or 
parts thereof.
  (9) The term ``foreign commerce'' includes, among other 
things, any transaction--
          (A) between persons within one foreign country;
          (B) between persons in two or more foreign countries;
          (C) between a person within the United States and a 
        person in a foreign country; or
          (D) between persons within the United States, where 
        the fish and wildlife in question are moving in any 
        country or countries outside the United States.
  (10) The term ``import'' means to land on, bring into, or 
introduce into or attempt to land on, bring into, or introduce 
into, any place subject to the jurisdiction of the United 
States, whether or not such landing, bringing, or introduction 
constitutes an importation within the meaning of the customs 
laws of the United States.
  (12) The term ``permit or license applicant'' means, when 
used with respect to an action of a Federal agency for which 
exemption is sought under section 7, any person whose 
application to such agency for a permit or license has been 
denied primarily because of the application of section 7(a) to 
such agency action.
  (13) The term ``person'' means an individual, corporation, 
partnership, trust, association, or any other private entity; 
or any officer, employee, agent, department, or instrumentality 
of the Federal Government, of any State, municipality, or 
political subdivision of a State, or of any foreign government; 
any State, municipality, or political subdivision of a State; 
or any other entity subject to the jurisdiction of the United 
States.
  (14) The term ``plant'' means any member of the plant 
kingdom, including seeds, roots and other parts thereof.
  (15)(A) The term ``Secretary'' means, except as otherwise 
herein provided, the Secretary of the Interior or the Secretary 
of Commerce as program responsibilities are vested pursuant to 
the provisions of Reorganization Plan Numbered 4 of 1970; 
except that with respect to the enforcement of the provisions 
of this Act and the Convention which pertain to the importation 
or exportation of terrestrial plants, the term also means the 
Secretary of Agriculture.
  (B) Notwithstanding subparagraph (A), with respect to 
anadromous species and catadromous species, the term 
``Secretary'' means the Secretary of the Interior.
  (16) The term ``species''' includes any subspecies of fish or 
wildlife or plants, and any distinct population segment of any 
species of vertebrate fish or wildlife which interbreeds when 
mature.
  (17) The term ``State'' means any of the several States, the 
District of Columbia, the Commonwealth of Puerto Rico, American 
Samoa, the Virgin Islands, Guam, and the Trust Territory of the 
Pacific Islands.
  (18) The term ``State agency'' means any State agency, 
department, board, commission, or other governmental entity 
which is responsible for the management and conservation of 
fish, plant, or wildlife resources within a State.
  (19) The term ``take'' means to harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect, or to attempt to 
engage in any such conduct.
  (20) The term ``threatened species''' means any species which 
is likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of 
its range.
  (21) The term ``United States,'' when used in a geographical 
context, includes all States.
  (22) The term ``anadromous species''' means a species of fish 
that spawn in fresh or estuarine waters and that migrate to 
ocean waters.
  (23) The term ``catadromous species''' means a species of 
fish that spawn in ocean waters and migrate to fresh waters.

           *       *       *       *       *       *       *


                            DISSENTING VIEWS

    H.R. 3916 transfers management of certain endangered fish 
species from the National Marine Fisheries Service (NMFS), an 
agency within the Commerce Department, to the Department of the 
Interior (DOI). Because the bill fails to account for the 
complexities of protecting endangered fish, we cannot support 
H.R. 3916.
    Anadromous fish are born and spawn in fresh water, but 
spend most of their lives in the ocean, while catadromous 
species spend most of their lives in fresh water, but breed in 
the ocean. Many anadromous species of fish are listed under the 
Endangered Species Act (ESA), including 28 salmon and steelhead 
populations on the West Coast, Atlantic salmon, and 13 sturgeon 
species. There are no catadromous species currently listed 
under the ESA. H.R. 3916 would transfer management of these 
species to DOI.
    Given that ESA-listed anadromous fish spend most of their 
lives in the open ocean, the National Marine Fisheries Service 
is the appropriate agency to manage these populations, not the 
Interior Department. Marine fisheries are inherently different 
from freshwater fisheries in both environmental and policy 
contexts. Endangered fish management across habitats is 
informed by life cycles; threats and recovery measures 
necessary for spawning and migrating salmon are different from 
measures necessary for adult salmon in the open ocean. While it 
is necessary for the Fish and Wildlife Service (FWS), an 
Interior Department agency, and NMFS to coordinate, 
transferring management of these species to Interior would 
undermine management and recovery of these endangered fish.
    Additionally, H.R. 3916 fails to indicate how this 
management transition would be supported in the budget. The 
bill does not indicate if the existing NMFS budgets for both 
Atlantic and Pacific salmon would go to the FWS. Given the 
current lack of funding for the FWS to manage listed species, 
it is unclear if the already-strained agency would have the 
budget and personnel necessary to take on management of 
additional endangered species.
    Several fishing and other non-governmental organizations, 
including the Pacific Coast Federation of Fishermen's 
Associations, League of Conservation Voters, Natural Resources 
Defense Council, Western Watersheds Project, and the Golden 
State Salmon Association, also oppose H.R. 3916.
                                   Raul M. Grijalva,
                                           Ranking Member,
                                           House Committee on Natural 
                                               Resources.
                                   Nydia M. Velazquez.
                                   Jared Huffman.