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107th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     107-751

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



 
     SOUND SCIENCE FOR ENDANGERED SPECIES ACT PLANNING ACT OF 2002

                                _______
                                

October 15, 2002.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

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

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 4840]

  The Committee on Resources, to whom was referred the bill 
(H.R. 4840) to amend the Endangered Species Act of 1973 to 
ensure the use of sound science in the implementation of that 
Act, 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 ``Sound Science for Endangered Species 
Act Planning Act of 2002''.

SEC. 2. SOUND SCIENCE.

  (a) Best Scientific and Commercial Data Available as Basis of 
Determinations.--Section 4(b)(1)(A) of the Endangered Species Act of 
1973 (16 U.S.C. 1533(b)(1)(A)) is amended in the first sentence, by 
inserting ``, including any finding under paragraph (3)(B) on a 
petition referred to in paragraph (3)(A),'' after ``determinations 
required by subsection (a)(1)''.
  (b) Preference for Empirical, Field-Tested, and Peer-Reviewed Data.--
Section 4(b) of the Endangered Species Act of 1973 (16 U.S.C. 1533(b)) 
is amended by adding at the end the following:
  ``(9) In making any determination under this section, the Secretary 
shall give greater weight to any scientific or commercial study or 
other information that is empirical or has been field-tested or peer-
reviewed.''.
  (c) Contents of Listing Petitions.--
          (1) In general.--Section 4(b)(3) of the Endangered Species 
        Act of 1973 (16 U.S.C. 1533(b)(3)) is amended by adding at the 
        end the following:
  ``(E) A petition referred to in subparagraph (A) regarding a 
species--
          ``(i) shall, to the maximum extent practicable, contain clear 
        and convincing evidence--
                  ``(I) of the current known and historic ranges of the 
                species concerned;
                  ``(II) of the most recent population estimates and 
                trends for the species, if available;
                  ``(III) that any change in the population that is 
                alleged in the petition is beyond the natural range of 
                fluctuations for the species; and
                  ``(IV) of the reason that the petitioned action is 
                warranted, including known or perceived threats to the 
                species;
          ``(ii) shall include a bibliography of scientific literature 
        on the species in support of the petition; and
          ``(iii) may contain any other information the petitioner 
        considers appropriate.
  ``(F) For purposes of subparagraph (E), evidence is clear and 
convincing evidence if--
          ``(i) a preponderance of the evidence is based on reliable 
        scientific and commercial information; and
          ``(ii) the evidence is sufficient to support a firm belief by 
        the Secretary that the petitioned action may be warranted.''.
          (2) Requirement for consideration of petition.--Section 
        4(b)(3) of the Endangered Species Act of 1973 (16 U.S.C. 
        1533(b)(3)) is further amended--
                  (A) in subparagraph (A) in the first sentence, by 
                inserting ``and contains the information required under 
                clauses (i) and (ii) of subparagraph (E)'' after ``may 
                be warranted''; and
                  (B) in subparagraph (B) in the matter preceding 
                clause (i), by inserting ``and contains the information 
                required under clauses (i) and (ii) of subparagraph 
                (E)'' after ``may be warranted''.
  (d) Use of Sound Science in Listing.--Section 4(b) of the Endangered 
Species Act of 1973 (16 U.S.C. 1533(b)) is further amended by adding at 
the end the following:
  ``(10) Not later than 1 year after the date of enactment of this 
paragraph, the Secretary shall promulgate regulations that establish 
criteria that must be met for scientific and commercial data, studies, 
and other information to be used as the basis of a determination under 
this section.
  ``(11)(A) The Secretary may not determine that a species is an 
endangered species or a threatened species unless data collected in the 
field on the species concerned supports the determination.
  ``(B) The Secretary shall--
          ``(i) accept and acknowledge receipt of data regarding the 
        status of a species that is collected by an owner of land, 
        including data obtained by observation of the species on the 
        land; and
          ``(ii) include the data in the rulemaking record compiled for 
        any determination that the species is an endangered species or 
        a threatened species.''.
  (e) Use of Sound Science in Recovery Planning.--Section 4(f) of the 
Endangered Species Act of 1973 (16 U.S.C. 1533(f)) is amended by adding 
at the end the following:
  ``(6)(A) The Secretary shall identify and publish in the Federal 
Register with the notice of a proposed regulation pursuant to paragraph 
(5)(A)(i) a description of additional scientific and commercial data 
that, if collected, would assist in the preparation of a recovery plan 
and--
          ``(i) invite any person to submit the data to the Secretary; 
        and
          ``(ii) describe the steps that the Secretary plans to take 
        for acquiring additional data.
  ``(B) Data identified and obtained under subparagraph (A)(i) shall be 
considered by the recovery team and the Secretary in the preparation of 
the recovery plan.''.

SEC. 3. INDEPENDENT SCIENTIFIC REVIEW.

  (a) In General.--Section 4 of the Endangered Species Act of 1973 (16 
U.S.C. 1533) is amended by adding at the end the following:
  ``(j) Independent Scientific Review Requirements.--(1) In this 
subsection:
          ``(A) The term `covered action' means--
                  ``(i) the determination that a species is an 
                endangered species or a threatened species under 
                subsection (a);
                  ``(ii) the determination under subsection (a) that an 
                endangered species or a threatened species be removed 
                from any list published under subsection (c)(1);
                  ``(iii) the development of a recovery plan for a 
                threatened species or endangered species under 
                subsection (f);
                  ``(iv) the determination that a proposed action is 
                likely to jeopardize the continued existence of a 
                listed species or result in the destruction or adverse 
                modification of critical habitat and the proposal of 
                any reasonable and prudent alternatives by the 
                Secretary under section 7(b)(3), if the Secretary finds 
                that--
                          ``(I) there is significant disagreement 
                        regarding that determination or proposal; or
                          ``(II) that determination or proposal may 
                        have significant economic impact; and
                  ``(v) the determination that a proposed action is not 
                likely to jeopardize the continued existence of a 
                listed species or result in the destruction or adverse 
                modification of critical habitat, if the Secretary 
                finds that there is significant disagreement regarding 
                that determination or proposal.
          ``(B) The term `qualified individual' means an individual who 
        meets the standards of the National Academy of Sciences for 
        independent scientific review conducted by the Academy, except 
        that such term does not include any individual with a conflict 
        of interest as determined by the Secretary or by a Governor who 
        nominates the individual under paragraph (3)(B).
  ``(2) The Secretary shall--
          ``(A) maintain a list of qualified individuals who are 
        available to participate on independent review boards under 
        this subsection;
          ``(B) seek nominations of individuals to participate on such 
        boards (upon appointment by the Secretary), through the Federal 
        Register, scientific and commercial journals, and the National 
        Academy of Sciences and other such institutions; and
          ``(C) update such list every two years.
  ``(3)(A) Before any covered action becomes final, the Secretary shall 
appoint an independent review board in accordance with this section 
that shall review and report to the Secretary in writing on the 
scientific information and analyses on which the covered action is 
based.
  ``(B) Each independent review board under this paragraph shall be 
composed of 5 members, of which--
          ``(i) 3 shall be appointed by the Secretary from the list 
        under paragraph (2); and
          ``(ii) 2 shall be appointed by the Secretary from among 
        qualified individuals nominated by the Governor of a State in 
        which the species concerned is located.
  ``(C) If any individual declines appointment to an independent review 
board under this paragraph, the Secretary shall appoint another 
individual in the same manner.
  ``(D) The selection of the members, and the activities, of 
independent review boards under this paragraph are not subject to the 
Federal Advisory Committee Act (5 U.S.C. App.).
  ``(E) If funds are available, the Secretary shall provide 
compensation to an individual for service as a member of an independent 
review board under this paragraph, at a rate not to exceed the daily 
equivalent of the maximum annual rate of basic pay for grade GS-14 of 
the General Schedule for each day (including travel time) during which 
the individual is engaged in the actual performance of duties as a 
member of such board.
  ``(F) The Secretary may not delegate the authority to make 
appointments under this paragraph to any official who is below the 
level of the Director of the United States Fish and Wildlife Service or 
the Assistant Administrator for Fisheries of the National Oceanic and 
Atmospheric Administration.
  ``(4)(A) Each independent review board under this subsection shall 
provide to the Secretary, within 90 days after the completion of 
appointment of the board, the opinion of the board regarding all 
relevant scientific information and assumptions relating to the 
taxonomy, population models, and supportive biological and ecological 
information for the species in question.
  ``(B) The Secretary shall--
          ``(i) develop a protocol for the conduct of scientific 
        independent review under this subsection, that--
                  ``(I) includes review of the adequacy of any 
                scientific methodology used to support an action and 
                the validity of any conclusions drawn from data used to 
                support an action; and
                  ``(II) is modeled after applicable National Academy 
                of Sciences policies and guidelines for report reviews; 
                and
          ``(ii) provide to each independent review board established 
        under this subsection clear guidelines as to the conduct of its 
        review consistent with that protocol.
  ``(5) If an independent review board under this subsection makes a 
recommendation regarding a covered action, the Secretary shall, within 
90 days after receiving the recommendation, evaluate and consider the 
information that results from the review by the board, and shall 
include in the rulemaking record for the covered action--
          ``(A) a summary of the results of the review by the board; 
        and
          ``(B) in a case in which the recommendation of a majority of 
        the members of the board is not followed, an explanation of why 
        the recommendation was not followed.
  ``(6) The report of each independent review board under this 
subsection shall be included in the rulemaking record of any regulation 
with respect to which the board is convened, and shall be available for 
public review for at least 30 days before the close of the period for 
comment on the regulation.''.
  (b) Biological Assessments.--Section 7(c) of the Endangered Species 
Act of 1973 (16 U.S.C. 1536(c)) is amended by adding at the end the 
following:
  ``(3) In preparing a biological assessment under this subsection, the 
head of an agency shall solicit and review any scientific and 
commercial data that a prospective permit or license applicant believes 
is relevant to the assessment, and shall make that data available to 
the Secretary.''.
  (c) Extension of Periods.--Section 4(b)(6) of the Endangered Species 
Act of 1973 (16 U.S.C. 1533(b)(6)) is amended--
          (1) in subparagraph (A)--
                  (A) in the matter preceding clause (i) by striking 
                ``one-year'' and inserting ``18-month''; and
                  (B) in clause (i)(III) by striking ``one-year'' and 
                inserting ``18-month''; and
                  (C) in clause (ii)(II) by striking ``one-year'' and 
                inserting ``18-month'';
          (2) in subparagraph (B)--
                  (A) in clause (i) by striking ``one-year'' and 
                inserting ``18-month'';
                  (B) in clause (ii) by striking ``one-year'' and 
                inserting ``18-month''; and
                  (C) in clause (iii) by striking ``one-year'' and 
                inserting ``18-month''; and
          (3) in subparagraph (C)(ii) by striking ``one-year'' and 
        inserting ``18-month''.

SEC. 4. IMPROVED INTERAGENCY COOPERATION.

  (a) Use of Information Provided by States.--Section 7(b)(1) of the 
Endangered Species Act of 1973 (16 U.S.C. 1536(b)(1)) is amended by 
adding at the end the following:
  ``(C) In conducting a consultation under subsection (a)(2), the 
Secretary shall actively solicit and consider information from the 
State agency in each affected State.''.
  (b) Opportunity To Participate in Consultations.--Section 7(b)(1) of 
the Endangered Species Act of 1973 (16 U.S.C. 1536(b)(1)) (as amended 
by subsection (a)) is further amended by adding at the end the 
following:
  ``(D)(i) In conducting a consultation with a Federal agency under 
subsection (a)(2), the Secretary and the head of the agency shall 
provide any person who has sought authorization or funding from a 
Federal agency for an action that is the subject of the consultation, 
the opportunity to--
          ``(I) before the development of a draft biological opinion, 
        submit and discuss with the Secretary and the Federal agency 
        information relevant to the effect of the proposed action on 
        the species and reasonable and prudent alternatives that the 
        Federal agency and the person can take to avoid violation of 
        subsection (a)(2), including any such alternatives proposed by 
        the person;
          ``(II) receive information, on request, subject to the 
        exemptions specified in section 552(b) of title 5, United 
        States Code, on the status of the species, threats to the 
        species, and conservation measures, used by the Secretary to 
        develop the draft biological opinion and the final biological 
        opinion, including any associated incidental taking statements; 
        and
          ``(III) receive a copy of the draft biological opinion from 
        the Federal agency and, before issuance of the final biological 
        opinion, submit comments on the draft biological opinion and 
        discuss with the Secretary and the Federal agency the basis for 
        any finding in the draft biological opinion.
  ``(ii) If alternatives are proposed by a person under clause (i) and 
the Secretary does not include the alternatives in the final biological 
opinion, the Secretary shall provide to the person reasonable 
justification, based on the best scientific and commercial data 
available, why those alternatives were not included in the opinion.
  ``(iii) Comments and other information submitted to, or received 
from, any person (pursuant to clause (i)) who seeks authorization or 
funding for an action shall be maintained in a file for that action by 
the Secretary and shall be made available to the public (subject to the 
exemptions specified in section 552(b) of title 5, United States 
Code).''.

                          Purpose of the Bill

    The purpose of H.R. 4840 is to amend the Endangered Species 
Act of 1973 to ensure the use of sound science in the 
implementation of that Act.

                  Background and Need for Legislation

    In 1973 the Endangered Species Act (ESA) was enacted. The 
ESA established a program to list (as either threatened or 
endangered) animal and plant species and to conserve the 
ecosystems upon which they depend. The ESA also declared it to 
be the policy of the Congress that all federal agencies and 
departments shall seek to conserve endangered and threatened 
species and shall utilize their authorities to further the 
purposes of the ESA. When first enacted, many believed the ESA 
was a law to provide protective measures primarily for large 
recognizable species in the United States in obvious peril at 
the time, such as the American bald eagle, California condor, 
grizzly bear, and gray wolf.
    This view dramatically changed, however, in 1978 as a 
result of a U.S. Supreme Court decision dealing with the 
construction of the Tellico dam in Tennessee and a species of 
fish, the snail darter. That decision, Tennessee Valley 
Authority v. Hill, catapulted the ESA into the forefront as an 
extremely strong environmental law. This strength is derived 
from the Court's opinion that the ESA ``indicates beyond doubt 
that Congress intended endangered species to be afforded the 
highest priorities'' and that ``Congress [gave] endangered 
species priority over the `primary missions' of federal 
agencies.''
    As originally conceived, the ESA was thought by many as a 
law ensuring the survival of species threatened with extinction 
by specific actions such as road building, dams, and other 
large construction projects. Instead, however, the ESA has been 
applied across millions of acres and to hundreds of miles of 
watercourses costing billions of dollars, causing economic 
hardship, and, at times, devastation, to thousands of people. 
The situation worsens every year because of the ease to 
petition, then list, a species as threatened or endangered and 
the difficulty in removing species from the list. As of 
December 31, 2001, there are 1254 plants and animals listed 
(740 plants; 514 animals). This figure represents hundreds of 
species more added to the list than Members of Congress 
probably ever envisioned. Moreover, many of these are species 
that the Congress never contemplated adding to the list such as 
the Delhi sands flower-loving fly, Lee County cave pill bug, 
and the orangefoot pimpleback mollusk. Hundreds species more 
(249) remain on the candidate list and 32 species are proposed 
for listing. Obviously, as more species are listed more 
problems can be anticipated.
    The use of ``good'' science by the agencies responsible for 
ESA listing and critical habitat determinations along with 
decision making on petitions, consultations, and recovery plans 
has been a major and contentious issue. Although the language 
and intent of the ESA dealing with the use of science seems 
clear, the interpretation by responsible federal agencies (U.S. 
Fish and Wildlife Service and the National Marine Fisheries 
Service) has been met with substantial suspicion. The ESA 
mandates that listing determinations be based ``solely on the 
basis of the best scientific and commercial data available * * 
*'' and that critical habitat determinations be made ``on the 
best scientific data available * * *''. Implementing this 
mandate has been problematic, however, primarily because there 
are no definitions in either the ESA or the accompanying 
regulations as to what constitutes the ``best'' or 
``available'' information. The responsible agencies have 
complete discretion over these terms and have defined and used 
them to their advantage. The only defined term in the 
regulations deals with the petition process whereas the 
petitioner must provide ``substantial scientific or commercial 
information'' in the petition. ``Substantial information'' is 
that amount which would lead a reasonable person to believe the 
proposed measure may be warranted. Clearly, this is a very low 
standard and unacceptable threshold to be met.
    Although the credibility of these agencies and their use of 
``good'' science has been frequently and deservedly criticized, 
it has recently come under added and very close scrutiny. Two 
high-profile situations--one in Klamath Falls, Oregon, the 
other dealing with planted Canada lynx hair--have raised the 
ire and concern of Congress and the public alike. Both of these 
incidents conclusively showed that the U.S. Fish and Wildlife 
Service and the National Marine Fisheries Service based 
decisions on the use of unsubstantiated scientific information 
or had doctored scientific information. Although these two 
incidents clearly call the integrity of these agencies into 
question, they are not isolated and incidents like this have 
occurred for many years.
    Within the context of the ESA, there is an inseparable link 
between ``best'' science and that science which has been field 
tested, validated, or peer-reviewed. The scientific community 
would generally agree that, in terms of the ESA, the ``best'' 
science would be comprised of data that had been collected by 
established standards or protocols, properly analyzed, and then 
peer-reviewed before published or released to the public. Such 
information is assumed to be reliable and the conclusions drawn 
usually can be duplicated to test the accuracy of the 
information. Unfortunately, the ESA currently has no such 
standards in either the provisions of law or in the 
accompanying regulations.
    H.R. 4840 seeks to remedy this problem by integrating a 
better and more defined method of using reliable and valid 
science in the decision-making process and by initiating a 
system of peer review of many of the federal agency decisions. 
Specifically, H.R. 4840 gives greater weight to scientific or 
commercial information that is empirical or has been field-
tested when making decisions and requires that the relevant 
Secretary determine a threatened or endangered species only if 
data is collected in the field and that data supports the 
determination. The bill also revises the contents of a listing 
petition and establishes a higher threshold for the petitioner 
to meet before the petition can be considered. Under this bill, 
the petition must contain clear and convincing evidence that 
the species is, in fact, in peril. Clear and convincing is 
defined as a preponderance of evidence that is based on 
reliable science and is sufficient enough for the relevant 
Secretary to have a firm belief that the petitioned action is 
warranted.
    H.R. 4840 establishes a peer review process for numerous 
determinations such as listing a species, delisting a species, 
recovery plans, and jeopardy opinions, if the relevant 
Secretary finds that there is significant disagreement or 
significant economic impact. The peer reviewers must be 
qualified individuals and meet National Academy of Sciences 
standards. The relevant Secretary would appoint a peer review 
board (three members from the Secretary and two members 
nominated by the appropriate State governors) who must submit a 
report within 90 daysdescribing its opinion as to the 
scientific validity of the determination and any recommendations it 
has. If the Secretary does not follow the recommendation, the Secretary 
must justify why the recommendation is not being followed.
    Lastly, the bill improves agency cooperation with States 
during the consultation process and actively solicit and 
consider any information provided by the affected State. Also, 
it provides any person who needs authorization or funding from 
a federal agency to be involved in the consultation process and 
allows them to submit data and information in regard to the 
consultation, including the development of reasonable and 
prudent alternatives.

                      Section-by-Section Analysis


Section 1. Short title

    Section 1 contains the short title of the bill, the ``Sound 
Science for Endangered Species Act Planning Act of 2002.''

Section 2. Sound science

    Section 2 establishes the requirement of using sound 
science as the basis in listing petitions and recovery planning 
of endangered species. This section mandates that the relevant 
Secretary give greater weight to empirical, field-tested, or 
peer reviewed information or studies. It is the Committee's 
view that better decisions and analyses will be made by the 
responsible agencies by giving greater weight to this 
information or studies. The Committee intends ``greater 
weight'' to mean that an elevated and increased emphasis shall 
be given and placed on information that is empirical, field-
tested, or peer reviewed in comparison to other information not 
fitting these criteria when reviewed by the responsible 
agencies. The Committee notes that information or studies that 
are not empirical, field-tested, or peer reviewed does not mean 
that these are prohibited from being considered and, as such, 
continue to be reviewable under the current statute. However, 
less importance shall be placed on this information or studies.
    Section 2 revises the contents of listing petitions by 
establishing a higher threshold in meeting the listing 
requirement and requires that clear and convincing evidence 
must be present to support a listing. Under current regulations 
(50 Code of Federal Regulation Sec. 424.14(b)) the threshold 
for the Secretary's finding for a petition is whether that 
petition contains ``substantial information'' indicating that 
the petitioned action may be warranted. The regulations further 
define ``substantial information'' as that amount of 
information ``which would lead a reasonable person to believe 
that the measure proposed in the petition may be warranted.'' 
The Committee recognizes that this ``reasonable person'' 
threshold is ridiculously easy to meet and has led to a spate 
of petitions being considered by the responsible agencies. 
Therefore, the Committee has raised the threshold to a ``clear 
and convincing evidence'' standard. The Committee believes that 
it is the responsibility of the petitioner to provide 
sufficient scientific evidence that the petitioned action is 
warranted and that a preponderance, that is, most of this 
evidence, is based on reliable scientific and commercial 
information. The Committee further believes that the 
``reasonable person'' standard under current regulations is too 
low in determining whether a petitioned action may be 
warranted. Instead, the Committee raises this threshold by 
mandating that the petitioners submit enough information so 
that the Secretary has a firm belief that the petitioned action 
may be warranted. For this section, the Committee intends that 
the petitioner provide sufficient evidence so that the 
Secretary has a well-founded certainty in regard to making the 
determination.
    Section 2 also contains a requirement that the Secretary 
cannot make a determination that a species is threatened or 
endangered unless data on that species is collected in the 
field and that data supports the listing. The Committee views 
actual collection of field data essential for any listing 
determination. The Committee believes that it makes common 
sense to have actual field data collected on that species for 
listing determinations and that this data supports the 
determination. The Committee finds it would be impossible to 
reliably and accurately list species without such information.

Section 3. Independent scientific review

    Section 3 defines the covered actions which would be 
reviewable by the independent scientific review board. These 
covered actions include: the listing of a species as endangered 
or threatened; the delisting of an endangered or threatened 
species; the development of recovery plans; jeopardy opinions, 
in the event of significant disagreement or significant 
economic impact; and findings of non-jeopardy, in the event of 
significant disagreement.
    Section 3 establishes an independent review board and 
requires each reviewer to meet the standards for peer review 
set by the National Academy of Sciences, except that an 
individual cannot serve on the board if that individual is 
determined to have a conflict of interest by the Secretary or a 
Governor, as appropriate. The Committee intends individuals 
with ``conflict of interest'' to include, but not be limited, 
to those individuals: who are a party to any petition or 
proposed or final determination before the Secretary; who are 
not nor have been under contract or employed by the Secretary 
or the State for work related to the species under 
consideration; who have a direct financial interest or employed 
by any person who has a direct financial in the action under 
consideration in the review.
    Section 3 also requires that the Secretary seek nominations 
for and maintain a list of qualified individuals for the review 
board and also establishes the manner in which the independent 
review boards are appointed. Each review board shall be 
comprised of five reviewers appointed by the Secretary. The 
Secretary will select three of the reviewers from the list and 
the other two from qualified individuals nominated by the 
Governor of the State in which the species is located. The 
Secretary must compensate the reviewers if funds are available. 
The Committee urges, in the strongest of terms, that the 
Administration request in its annual budget sufficient funds 
for the reviewers and that these funds are appropriated 
accordingly.
    Section 3 mandates that the reviewers, within 90 days from 
the board's appointment, provide the Secretary with their 
opinion as to the scientific adequacy of the information 
supporting the Secretary's decision. Once the Secretary has 
received the review, the Secretary shall consider the board's 
recommendations and include a summary of the review in the 
rulemaking record. If theboard disagrees with the Secretary's 
decision, the Secretary shall provide an explanation as to why the 
recommendation was not followed. The review shall be made available to 
the public. This section also directs the Secretary to establish 
protocols that comply with applicable National Academy of Sciences 
policies and guidelines for the review.
    Section 3 extends the time periods required in Section 
4(b)(6) of the ESA from one year to 18 months. The Committee 
believes that the 6 month time period extension is necessary 
for the board to complete its review and then for the Secretary 
to review the board's recommendations.

Section 4. Improved interagency cooperation

    Section 4 establishes improved cooperation between federal 
and State agencies by directing the Secretary to solicit and 
use information from a State agency for the State affected. 
This section also allows any person who has sought 
authorization or funding from a federal agency for an action 
that is the subject of an ESA Section 7 consultation to be 
involved by: submitting and discussing with the relevant 
Secretary and the federal agency information relevant to the 
proposed action; propose any reasonable and prudent 
alternatives; receive information that the Secretary is using 
to make decisions related to that consultation; and receive a 
copy of the draft biological opinion from the federal agency 
and submit comments on the same before the issuance of the 
final biological opinion. The Committee believes it is very 
important for those individuals directly affected by the 
outcome of the consultation to be involved and have the 
opportunity to submit information relevant to that 
consultation.

                            Committee Action

    H.R. 4840 was introduced on May 23, 2002, by Congressman 
James V. Hansen (R-UT). The bill was referred to the Committee 
on Resources. On June 18 and 19, 2002, the Committee on 
Resources held hearings on the bill. On July 10, 2002, the Full 
Resources Committee met to consider the bill. An amendment in 
the nature of a substitute was offered by Mr. Hansen. The 
amendment addressed a number of the Administration's concerns 
highlighted during the hearings on the measure: (1) the 
amendment added the National Marine Fisheries Service as an 
agency where appropriate; (2) clarified that a qualified 
individual with a conflict of interest cannot participate in a 
scientific review; and (3) added the determination of 
destruction or adverse modification of critical habitat to the 
covered actions along with other small modifications. The 
amendment also extended many of the time periods by six months 
to allow for the scientific review and Secretary's analysis and 
added non-jeopardy opinions to covered actions that are 
reviewable by the review board. Congressman Nick Rahall (D-WV) 
offered a substitute amendment to the Hansen amendment in the 
nature of a substitute. The Rahall amendment was not agreed to 
by a rollcall vote of 18-22, as follows:


    The Hansen amendment in the nature of a substitute was 
adopted by voice vote. The bill, as amended, was then ordered 
favorably reported to the House of Representatives by a 
rollcall vote of 22 to 18, 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 Resources' oversight findings and recommendations 
are reflected in the body of this report.

                  Federal Advisory Committee Statement

    The functions of the proposed advisory committee authorized 
in the bill are not currently being nor could they be performed 
by one or more agencies, an advisory committee already in 
existence or by enlarging the mandate of an existing advisory 
committee.

                   Constitutional Authority Statement

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

                    Compliance With House Rule XIII

    1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the 
Rules of the House of Representatives requires an estimate and 
a comparison by the Committee of the costs which would be 
incurred in carrying out this bill. The Committee believes that 
enactment of this bill will have little impact on the federal 
budget.
    2. Congressional Budget Act. As required by clause 3(c)(2) 
of rule XIII of the Rules of the House of Representatives and 
section 308(a) of the Congressional Budget Act of 1974, this 
bill does not contain any new budget authority, spending 
authority, credit authority, or an increase or decrease in 
revenues or tax expenditures.
    3. General Performance Goals and Objectives. This bill does 
not authorize funding and therefore, clause 3(c)(4) of rule 
XIII of the Rules of the House of Representatives does not 
apply.
    4. Congressional Budget Office Cost Estimate. Under clause 
3(c)(3) of rule XIII of the Rules of the House of 
Representatives and section 403 of the Congressional Budget Act 
of 1974, the Committee has requested but not received a cost 
estimate for this bill from the Director of the Congressional 
Budget Office.

                    Compliance With Public Law 104-4

    This bill contains no unfunded mandates.

                Preemption of State, Local or Tribal Law

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

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

ENDANGERED SPECIES ACT OF 1973

           *       *       *       *       *       *       *



       DETERMINATION OF ENDANGERED SPECIES AND THREATENED SPECIES

  Sec. 4. (a) * * *
  (b) Basis for Determinations.--(1)(A) The Secretary shall 
make determinations required by subsection (a)(1), including 
any finding under paragraph (3)(B) on a petition referred to in 
paragraph (3)(A), 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.

           *       *       *       *       *       *       *

  (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 and contains the information required under 
clauses (i) and (ii) of subparagraph (E). 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 and 
contains the information required under clauses (i) and (ii) of 
subparagraph (E), the Secretary shall make one of the following 
findings:
          (i) * * *

           *       *       *       *       *       *       *

  (E) A petition referred to in subparagraph (A) regarding a 
species--
          (i) shall, to the maximum extent practicable, contain 
        clear and convincing evidence--
                  (I) of the current known and historic ranges 
                of the species concerned;
                  (II) of the most recent population estimates 
                and trends for the species, if available;
                  (III) that any change in the population that 
                is alleged in the petition is beyond the 
                natural range of fluctuations for the species; 
                and
                  (IV) of the reason that the petitioned action 
                is warranted, including known or perceived 
                threats to the species;
          (ii) shall include a bibliography of scientific 
        literature on the species in support of the petition; 
        and
          (iii) may contain any other information the 
        petitioner considers appropriate.
  (F) For purposes of subparagraph (E), evidence is clear and 
convincing evidence if--
          (i) a preponderance of the evidence is based on 
        reliable scientific and commercial information; and
          (ii) the evidence is sufficient to support a firm 
        belief by the Secretary that the petitioned action may 
        be warranted.

           *       *       *       *       *       *       *

  (6)(A) Within the [one-year] 18-month 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) * * *

           *       *       *       *       *       *       *

                  (III) notice that such [one-year] 18-month 
                period is being extended under subparagraph 
                (B)(i), or

           *       *       *       *       *       *       *

          (ii) subject to subparagraph (C), if a designation of 
        critical habitat is involved, either--
                  (I) * * *
                  (II) notice that such [one-year] 18-month 
                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] 18-month 
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] 18-month 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] 18-month 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) * * *
          (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] 18-month 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.

           *       *       *       *       *       *       *

  (9) In making any determination under this section, the 
Secretary shall give greater weight to any scientific or 
commercial study or other information that is empirical or has 
been field-tested or peer-reviewed.
  (10) Not later than 1 year after the date of enactment of 
this paragraph, the Secretary shall promulgate regulations that 
establish criteria that must be met for scientific and 
commercial data, studies, and other information to be used as 
the basis of a determination under this section.
  (11)(A) The Secretary may not determine that a species is an 
endangered species or a threatened species unless data 
collected in the field on the species concerned supports the 
determination.
      (B) The Secretary shall--
          (i) accept and acknowledge receipt of data regarding 
        the status of a species that is collected by an owner 
        of land, including data obtained by observation of the 
        species on the land; and
          (ii) include the data in the rulemaking record 
        compiled for any determination that the species is an 
        endangered species or a threatened species.

           *       *       *       *       *       *       *

  (f)(1) * * *

           *       *       *       *       *       *       *

  (6)(A) The Secretary shall identify and publish in the 
Federal Register with the notice of a proposed regulation 
pursuant to paragraph (5)(A)(i) a description of additional 
scientific and commercial data that, if collected, would assist 
in the preparation of a recovery plan and--
          (i) invite any person to submit the data to the 
        Secretary; and
          (ii) describe the steps that the Secretary plans to 
        take for acquiring additional data.
  (B) Data identified and obtained under subparagraph (A)(i) 
shall be considered by the recovery team and the Secretary in 
the preparation of the recovery plan.

           *       *       *       *       *       *       *

  (j) Independent Scientific Review Requirements.--
          (1) In this subsection:
                  (A) The term ``covered action'' means--
                          (i) the determination that a species 
                        is an endangered species or a 
                        threatened species under subsection 
                        (a);
                          (ii) the determination under 
                        subsection (a) that an endangered 
                        species or a threatened species be 
                        removed from any list published under 
                        subsection (c)(1);
                          (iii) the development of a recovery 
                        plan for a threatened species or 
                        endangered species under subsection 
                        (f);
                          (iv) the determination that a 
                        proposed action is likely to jeopardize 
                        the continued existence of a listed 
                        species or result in the destruction or 
                        adverse modification of critical 
                        habitat and the proposal of any 
                        reasonable and prudent alternatives by 
                        the Secretary under section 7(b)(3), if 
                        the Secretary finds that--
                                  (I) there is significant 
                                disagreement regarding that 
                                determination or proposal; or
                                  (II) that determination or 
                                proposal may have significant 
                                economic impact; and
                          (v) the determination that a proposed 
                        action is not likely to jeopardize the 
                        continued existence of a listed species 
                        or result in the destruction or adverse 
                        modification of critical habitat, if 
                        the Secretary finds that there is 
                        significant disagreement regarding that 
                        determination or proposal.
                  (B) The term ``qualified individual'' means 
                an individual who meets the standards of the 
                National Academy of Sciences for independent 
                scientific review conducted by the Academy, 
                except that such term does not include any 
                individual with a conflict of interest as 
                determined by the Secretary or by a Governor 
                who nominates the individual under paragraph 
                (3)(B).
          (2) The Secretary shall--
                  (A) maintain a list of qualified individuals 
                who are available to participate on independent 
                review boards under this subsection;
                  (B) seek nominations of individuals to 
                participate on such boards (upon appointment by 
                the Secretary), through the Federal Register, 
                scientific and commercial journals, and the 
                National Academy of Sciences and other such 
                institutions; and
                  (C) update such list every two years.
          (3)(A) Before any covered action becomes final, the 
        Secretary shall appoint an independent review board in 
        accordance with this section that shall review and 
        report to the Secretary in writing on the scientific 
        information and analyses on which the covered action is 
        based.
          (B) Each independent review board under this 
        paragraph shall be composed of 5 members, of which--
                  (i) 3 shall be appointed by the Secretary 
                from the list under paragraph (2); and
                  (ii) 2 shall be appointed by the Secretary 
                from among qualified individuals nominated by 
                the Governor of a State in which the species 
                concerned is located.
          (C) If any individual declines appointment to an 
        independent review board under this paragraph, the 
        Secretary shall appoint another individual in the same 
        manner.
          (D) The selection of the members, and the activities, 
        of independent review boards under this paragraph are 
        not subject to the Federal Advisory Committee Act (5 
        U.S.C. App.).
          (E) If funds are available, the Secretary shall 
        provide compensation to an individual for service as a 
        member of an independent review board under this 
        paragraph, at a rate not to exceed the daily equivalent 
        of the maximum annual rate of basic pay for grade GS-14 
        of the General Schedule for each day (including travel 
        time) during which the individual is engaged in the 
        actual performance of duties as a member of such board.
          (F) The Secretary may not delegate the authority to 
        make appointments under this paragraph to any official 
        who is below the level of the Director of the United 
        States Fish and Wildlife Service or the Assistant 
        Administrator for Fisheries of the National Oceanic and 
        Atmospheric Administration.
          (4)(A) Each independent review board under this 
        subsection shall provide to the Secretary, within 90 
        days after the completion of appointment of the board, 
        the opinion of the board regarding all relevant 
        scientific information and assumptions relating to the 
        taxonomy, population models, and supportive biological 
        and ecological information for the species in question.
          (B) The Secretary shall--
                  (i) develop a protocol for the conduct of 
                scientific independent review under this 
                subsection, that--
                          (I) includes review of the adequacy 
                        of any scientific methodology used to 
                        support an action and the validity of 
                        any conclusions drawn from data used to 
                        support an action; and
                          (II) is modeled after applicable 
                        National Academy of Sciences policies 
                        and guidelines for report reviews; and
                  (ii) provide to each independent review board 
                established under this subsection clear 
                guidelines as to the conduct of its review 
                consistent with that protocol.
          (5) If an independent review board under this 
        subsection makes a recommendation regarding a covered 
        action, the Secretary shall, within 90 days after 
        receiving the recommendation, evaluate and consider the 
        information that results from the review by the board, 
        and shall include in the rulemaking record for the 
        covered action--
                  (A) a summary of the results of the review by 
                the board; and
                  (B) in a case in which the recommendation of 
                a majority of the members of the board is not 
                followed, an explanation of why the 
                recommendation was not followed.
          (6) The report of each independent review board under 
        this subsection shall be included in the rulemaking 
        record of any regulation with respect to which the 
        board is convened, and shall be available for public 
        review for at least 30 days before the close of the 
        period for comment on the regulation.

           *       *       *       *       *       *       *


                        INTERAGENCY COOPERATION

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

           *       *       *       *       *       *       *

  (C) In conducting a consultation under subsection (a)(2), the 
Secretary shall actively solicit and consider information from 
the State agency in each affected State.
  (D)(i) In conducting a consultation with a Federal agency 
under subsection (a)(2), the Secretary and the head of the 
agency shall provide any person who has sought authorization or 
funding from a Federal agency for an action that is the subject 
of the consultation, the opportunity to--
          (I) before the development of a draft biological 
        opinion, submit and discuss with the Secretary and the 
        Federal agency information relevant to the effect of 
        the proposed action on the species and reasonable and 
        prudent alternatives that the Federal agency and the 
        person can take to avoid violation of subsection 
        (a)(2), including any such alternatives proposed by the 
        person;
          (II) receive information, on request, subject to the 
        exemptions specified in section 552(b) of title 5, 
        United States Code, on the status of the species, 
        threats to the species, and conservation measures, used 
        by the Secretary to develop the draft biological 
        opinion and the final biological opinion, including any 
        associated incidental taking statements; and
          (III) receive a copy of the draft biological opinion 
        from the Federal agency and, before issuance of the 
        final biological opinion, submit comments on the draft 
        biological opinion and discuss with the Secretary and 
        the Federal agency the basis for any finding in the 
        draft biological opinion.
  (ii) If alternatives are proposed by a person under clause 
(i) and the Secretary does not include the alternatives in the 
final biological opinion, the Secretary shall provide to the 
person reasonable justification, based on the best scientific 
and commercial data available, why those alternatives were not 
included in the opinion.
  (iii) Comments and other information submitted to, or 
received from, any person (pursuant to clause (i)) who seeks 
authorization or funding for an action shall be maintained in a 
file for that action by the Secretary and shall be made 
available to the public (subject to the exemptions specified in 
section 552(b) of title 5, United States Code).

           *       *       *       *       *       *       *

  (c) Biological Assessment.--(1) * * *

           *       *       *       *       *       *       *

  (3) In preparing a biological assessment under this 
subsection, the head of an agency shall solicit and review any 
scientific and commercial data that a prospective permit or 
license applicant believes is relevant to the assessment, and 
shall make that data available to the Secretary.

           *       *       *       *       *       *       *


                            DISSENTING VIEWS

    The ESA requires the Secretaries of the Interior and 
Commerce, when implementing the law, to base their decisions on 
the ``best scientific and commercial data available''. Current 
Department of Interior and Commerce joint policy establishes 
procedures and provides guidance to ensure that ESA decisions 
made by the Fish and Wildlife Service and the National Marine 
Fisheries Service rely on and represent the best scientific 
information available. A second joint policy requires the 
solicitation of independent peer review of listing proposals 
and recovery plans. Both have been in effect since July 1, 
1994.
    Unfortunately, H.R. 4840 would politicize those 
requirements and policies and seeks to predetermine what 
constitutes ``best science'' and what science can be considered 
in decision making in several ways. For these reasons, we 
cannot support it.
    Listing Petitions--Setting the Bar Impossibly High: First, 
the bill sets an extremely high threshold for listing or de-
listing petitions to meet before they can be considered for 
review by the agencies. While the requirement for petitions to 
contain certain basic information makes sense and has been 
proposed in other legislation, the requirement that any 
petition must demonstrate that a change in population is beyond 
the normal fluctuations for the species effectively shifts the 
burden of scientific analysis from the Fish and Wildlife 
Service to the petitioner, making it far more difficult for 
citizens to protect species.
    The substitute also appears to replace the current standard 
of ``best scientific information available'' with a requirement 
that the petition provide ``clear and convincing evidence'' of 
the information required. Not only is this a very high legal 
standard, the matter is further confused by defining ``clear 
and convincing evidence'' with a different legal standard of a 
``preponderance of the evidence'' and by requiring that the 
evidence must be sufficient to ``support a firm belief that the 
petition action is warranted'' and is based on ``reliable 
scientific and commercial information''. If the goal of this 
requirement is to create more ambiguity and potential for 
litigation and delay in the listing of species, it will likely 
have the desired effect.
    Standards for Data--Letting Politicians Define Good 
Science: The bill gives priority to specific kinds of data and 
information, requires that a species cannot be listed unless 
the determination is supported by ``data collected in the 
field'', and requires the Secretary, not scientists, to define 
what constitutes the best available science to be used in 
determinations. By predetermining what information can be used 
regardless of whether it is actually the ``best'', the bill 
would seem to contradict the law and its own alleged goal of 
using the best scientific information available. Further, the 
requirement that a listing determination must be supported by 
data collected in the field ignores the fact that this data 
might not be the best and that listing decisions can be based 
on factors that have nothing to do with field data (such as the 
inadequacy of existing regulatory mechanisms).
    In addition, by requiring the Secretary to dictate, through 
regulation, the criteria that scientific information must meet 
in order to be used to for decision making, the bill 
politicizes and allows the Secretary, not scientists, to 
determine what is the best information available.
    Finally, the bill seems to establish contradictory 
standards for data, requiring the Secretary to establish 
rigorous criteria for data used by the agency for decision 
making, and giving priority to data that is empirical, field 
tested, or peer reviewed, but then also mandating the 
acceptance of data from landowners and the inclusion of that 
data in the rule making even though such data is not required 
to meet any of these standards.
    Peer Review: While the concept of peer review is broadly 
supported, and the agencies already conduct review for listing 
determinations and recovery plans, the process established in 
the bill is problematic for several reasons. First, the bill 
does not require a review of decisions not to list species. 
Further, in conflict with current statutory deadlines for 
decisions, the bill requires that, before any determination to 
list or delist, any approval of a recovery plan, or any 
jeopardy or no-jeopardy decision under a Section 7 consultation 
can become final, the Secretary must appoint an independent 
review board to review and report on the scientific information 
and analyses on which that decision or plan is based. If the 
Secretary has difficulty finding five reviewers to conduct the 
review, it appears the action could not become final. The bill 
extends the statutory deadlines for listing decisions by six 
months to address this potential delay, it does not extend the 
deadlines for Section 7 consultations. The majority argues that 
this delay in protecting species is warranted and necessary 
because unwarranted listings and jeopardy decisions are 
resulting in greater burdens on landowners. To the contrary, 
the NAS found in its review of the ESA that current decision 
making process employed in ESA listing and jeopardy decisions 
makes it more likely that an endangered species is denied 
needed protections than it is for non-endangered species to be 
protected unnecessarily.
    The bill also establishes a potential conflict between the 
responsibilities of the agencies under the law that requires 
them to make decisions on the best scientific information 
available and the findings of the scientists who will be using 
a protocol for review that would be developed by the Secretary 
under the bill. If the Secretarial protocol establishes a 
different standard of evaluation, as was the case with the 
review of the Klamath River biological opinion, and the bill 
then requires the Secretary to explain why his or her findings 
based on the best science available do not coincide with the 
findings of the review, the likely outcome will be more 
conflict, litigation, and delay in the implementation of the 
law.
    Finally, the bill would further politicize the review 
process by allowing the Governor to appoint two of the five 
reviewers, and to determine whether the review has a potential 
conflict of interest.
    Consultation--Access for Some but not for Others: Finally, 
the bill would legislate exclusive access to the development of 
a biological opinion for any person who has sought 
authorization for an activity that is the subject of the 
consultation. Other interested parties who may also be affected 
economically or in other ways by the outcome of the opinion 
would have no such opportunity for input. In the case of the 
Klamath River biological opinion, the bill would ensure that 
the irrigators were guaranteed access to the consultation 
process, but the Tribes and fishermen who are also economically 
affected by the outcome of the opinion, would be provided no 
such access.
    In conclusion, H.R. 4840 contradicts its own title and 
ensures that the science used in making decisions under the ESA 
will not be based on the best science, but instead on politics 
and result in further delay and conflict in the implementation 
of the law. As such, we cannot support it.

                                   Nick Rahall.
                                   George Miller.
                                   Edward J. Markey.
                                   Frank Pallone, Jr.
                                   Jay Inslee.
                                   Anibal Acevedo-Vila.
                                   Betty McCollum.