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115th Congress    }                                          {   Report
                         HOUSE OF REPRESENTATIVES
 2d Session       }                                          {  115-1048

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



 
         ENDANGERED SPECIES TRANSPARENCY AND REASONABLENESS ACT

                                _______
                                

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

                                _______
                                

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

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 3608]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (H.R. 3608) to amend the Endangered Species Act of 
1973 to require publication on the Internet of the basis for 
determinations that species are endangered species or 
threatened species, and for other purposes, having considered 
the same, report favorably thereon without amendment and 
recommend that the bill do pass.

                          Purpose of the Bill

    The purpose of H.R. 3608 is to amend the Endangered Species 
Act of 1973 to require publication on the Internet of the basis 
for determinations that species are endangered species or 
threatened species.

                  Background and Need for Legislation


The Endangered Species Act

    The Endangered Species Act of 1973 (ESA, 16 U.S.C. 1531 et 
seq.) sets out the broad goal of conserving and recovering 
species facing extinction. The law authorizes federal agencies 
to identify imperiled species and list them as either 
threatened or endangered, as appropriate.\1\ The law further 
requires agencies to take necessary actions to conserve those 
species and their habitats.\2\ The Secretary of the Interior, 
through the U.S. Fish and Wildlife Service (FWS), has 
responsibility for plants, wildlife and inland fisheries. The 
Secretary of Commerce, through the National Marine Fisheries 
Service (NMFS) is responsible for implementing the ESA with 
respect to ocean-going fish and some marine mammals.\3\ 
Congress made its most significant amendments to ESA in 1978, 
1982, and 1988, although the overall framework has remained 
essentially unchanged since its original enactment in 1973.\4\
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    \1\ 16 U.S.C. 1533.
    \2\ Id.
    \3\Cong. Research Serv., RL31654, The Endangered Species Act: A 
Primer 15 (2016).
    \4\ A History of the Endangered Species Act of 1973, U.S. Fish and 
Wildlife Service, U.S. Department of the Interior, https://www.fws.gov/
endangered/esa-library/pdf/history_ESA.pdf (last visited Sept. 18, 
2018).
---------------------------------------------------------------------------
    Despite the worthy goal set out by the ESA to conserve and 
protect species, in the 45 years since its enactment, less than 
2 percent of species have recovered enough to warrant removal 
from the list of endangered and threatened species.\5\ In fact, 
many of those species were delisted after it was discovered 
that federal agencies used erroneous data in the original 
listing.\6\ In total, to date there have been 2,421 listings\7\ 
under the ESA. In that time the Secretaries have delisted 77 
species, but only 47 distinct species have been removed, either 
entirely or partially throughout their range, due to population 
recovery.\8\
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    \5\ ECOS Environmental Conservation Online System, Listed Species 
Summary (Boxscore), U.S. Fish and Wildlife Service, U.S. Department of 
the Interior, https://ecos.fws.gov/ecp0/reports/box-score-report (last 
visited Sept. 19, 2018).
    \6\ ECOS Environmental Conservation Online System, Delisted 
Species, U.S. Fish and Wildlife Service, U.S. Department of the 
Interior, https://ecos.fws.gov/ecp0/reports/delisting-
report (last visited Sept. 19, 2018).
    \7\ Supra, note 5. This number was determined by adding the total 
number of species listed as endangered or threatened under the ESA to 
the total number delisted since the ESA's enactment.
    \8\Supra, note 6.
---------------------------------------------------------------------------
    In addition to failing to achieve meaningful recovery for 
species, implementation of the ESA disincentivizes conservation 
and can lead to increased conflict between people and species 
through unpredictable and expansive restrictions on land 
use.\9\ Excessive litigation and a lack of transparency in 
federal ESA decision-making has only exacerbated these problems 
and reduced the ESA's effectiveness in recovering species.\10\
---------------------------------------------------------------------------
    \9\Committee on House Natural Resources, Endangered Species Act 
Congressional Working Group, Report Findings and Recommendations, 
(2014) available at https://naturalresources.house.gov/uploadedfiles/
esa_working_group_final_report_ and_recommendations_02_04_14.pdf; See 
also: Legislative Hearing on H.R. 424. H.R. 717, H.R. 1274, H.R. 2603, 
and H.R. 3131: Hearing before the H. Comm. on Natural Resources, 115th 
Cong, (2017) (testimony of Kent Holsinger, Manager and Founder, 
Holsinger Law, LLC) available at https://naturalresources.house.gov/
uploadedfiles/testimony_holsinger.pdf.
    \10\Hearing on Examining Policy Impacts of Excessive Litigation 
Against the Department of the Interior, Before the Subcomm. on 
Oversight & Investigations of the H. Comm. on Natural Resources, 115th 
Cong. (2017), available at https://naturalresources.house.gov/
uploadedfiles/
hearing_memo_--_ov_hrg_06.28.17.pdf.
---------------------------------------------------------------------------
    In many cases, implementation of the ESA has caused 
increased burdens for those living in close proximity to the 
protected species.\11\ Often States and local communities have 
the most knowledge about the species located in their State and 
can bring the greatest amount of resources to conservation 
efforts.\12\ They are eager to stabilize species populations to 
prevent listings that can have a major negative economic impact 
on State and local communities through restrictions on land 
use.\13\ Yet, too often, federal management of threatened and 
endangered species fails to take advantage of the wealth of 
knowledge of State and local officials and of the successful 
conservation measures implemented by States.\14\
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    \11\ Supra, note 9.
    \12\Legislative Hearing on H.R. 424. H.R. 717, H.R. 1274, H.R. 
2603, and H.R. 3131: Hearing before the H. Comm. on Natural Resources, 
115th Cong, (2017) (testimony of Kent Holsinger, Manager and Founder, 
Holsinger Law, LLC) available at https://naturalresources.house.gov/
uploadedfiles/testimony_holsinger.pdf.
    \13\ Id.
    \14\See e.g., Letter from John Hickenlooper, Governor, State or 
Colorado, and Matt Mead, Governor, State of Wyoming, to Steve Ellis, 
Deputy Director, Bureau of Land Management, U.S. Dep't of the Interior, 
and Leslie Weldon, Deputy Chief, National Forest System, U.S. Forest 
Service, U.S. Dep't of Agriculture, Sept. 29, 2014, available at http:/
/westgov.org/images/editor/LTR_GSG_ Rollup_Mtgs_FINAL.pdf.
---------------------------------------------------------------------------
    Despite these shortcomings in how the ESA has been 
implemented since its enactment, the ESA and its overall goal 
of conserving and recovering species remains widely popular and 
accepted.\15\ ESA modernization should prioritize effective 
species recovery while maintaining the core principles of the 
Act.
---------------------------------------------------------------------------
    \15\ See e.g., Memo from Ben Tulchin, Ben Krompack, and Kiel 
Brunner, Tulchin Research, to Interested Parties, Jul. 6, 2015, 
available at https://earthjustice.org/sites/default/files/files/
PollingMemoNationalESASurvey.pdf.
---------------------------------------------------------------------------

Best scientific and commercial data available

    Section 4 of the ESA requires listings be made based on the 
best scientific and commercial data available.\16\ Defining 
best scientific and commercial data available, as well as the 
application of that data by federal agencies and its 
availability to the public, is a source of controversy. The 
data used to inform ESA policy decisions is a substantial 
factor in the total economic cost of the ESA to taxpayers and 
has been the basis for costly litigation.\17\
---------------------------------------------------------------------------
    \16\[ELRS] Science And Deference: The ``Best Available Science'' 
Mandate is A Fiction in the Ninth Circuit, Harvard Environmental Law 
Review (2016), http://harvardelr.com/2016/11/07/elrs-science-and-
deference-the-best-available-science-mandate-is-a-fiction-in-the-ninth-
circuit (last visited Sep 19, 2018); see also: P.J. Sullivan et al., 
Defining and Implementing Best Available Science for Fisheries and 
Environmental Science, Policy, and Management, 31 Defining and 
Implementing Best Available Science for Fisheries and Environmental 
Science, Policy, and Management (2006) available at https://
www.fws.gov/wafwo/fisheries/ Publications/Fisheries3109.pdf (last 
visited Sep 19, 2018).
    \17\Natalie Lowell & Ryan P. Kelly, Evaluating agency use of ``best 
available science'' under 
the United States Endangered Species Act, 196 Biological Conservation 
53-59 (2016), 
https://www.researchgate.net/publication/ 
295684321_Evaluating_agency_use_of_best_available_
science_under _the_United_States_Endangered_Species_Act (last visited 
Sep 19, 2018).
---------------------------------------------------------------------------
    Currently, most data used to make critical listing 
decisions is not readily available to the public. ESA proposed 
rules and final ruling are published in the Federal 
Register,\18\ which serves as the official public notice. 
Finalized listings are publicly available on the FWS 
website,\19\ providing the public with access to threatened and 
endangered plant and animal species. Although listings are 
readily available to the public, the scientific and commercial 
data used in making such decisions is generally unavailable. 
Testimony from local entities has raised concerns regarding 
unavailability of reports used to make controversial listing 
decisions.\20\
---------------------------------------------------------------------------
    \18\Wildlife Service, Listing and Critical HabitatPetition 
Process Official Web Page 
of the US Fish and Wildlife Service, https://www.fws.gov/endangered/
what-we-do/listing-
petition-process.html (last visited Sep 19, 2018).
    \19\Sarah Leon, Find Endangered Species Official Web page of the U 
S Fish and Wildlife Service, https://www.fws.gov/endangered/ (last 
visited Sep 19, 2018).
    \20\Transparency and Sound Science Gone Extinct?: The Impacts of 
the Obama Administration's Closed-Door Settlements on Endangered 
Species and People: Oversight Hearing Before the H. Comm. On Natural 
Resources, 113th Cong. (2013) (testimony of Kent McMullen, Franklin 
County Natural Resources Advisory Committee, at 21).
---------------------------------------------------------------------------
    H.R. 3608 aims to increase transparency by making listing 
data available to the public through the Internet. The current 
available information only allows the public to see the 
aftermath of the decision-making process. This bill will give 
taxpayers the ability to view what each agency identifies as 
the ``best scientific and commercial data available'' for use 
in each ESA listing, prompting agencies to ensure the data used 
meets the standards set forth by the ESA.

Use of State, tribal, and local information

    Section 6 of the ESA requires federal cooperation with the 
States ``to the maximum extent practicable'' in listing 
decisions.\21\ Species listings and critical habitat 
designations have the potential to impact communities and 
industries while placing unnecessary burdens upon State and 
local governments. States, tribes, and local governments are 
well-equipped to participate in listing decisions in a 
productive manner; however, federal cooperation with such 
governments does not always occur.
---------------------------------------------------------------------------
    \21\Endangered Species Act of 1973, 16 U.S.C. 1531 (1973).
---------------------------------------------------------------------------
    State witnesses have testified that the ESA, as currently 
implemented, does not properly honor their ability to 
participate to the maximum extent practicable in federal ESA 
listing decisions. State witnesses have stated that they are 
not made aware of factors used by the federal government in 
listing decisions that impact lands, communities, and species 
within their borders.\22\ States possess on-the-ground 
experience and expertise in managing wildlife as a public asset 
and in practical policy application, making them valuable 
resources for NMFS and FWS with regard to ESA listings.\23\ 
State expertise and data must be utilized to better manage ESA 
listed species.
---------------------------------------------------------------------------
    \22\See, The Status of the Federal Government's Management of 
Wolves: Hearing Before the H. Comm. on Natural Resources, 114th Cong. 
(2016) (States were not included in decisions to introduce and manage 
wolf populations in the Southwest, Mid-Atlantic, West, and Great Lakes 
regions. Faulty science and implementation caused failure of Red Wolf 
program in North Carolina).
    \23\See, H.B. 1025, 83rd Legislature (TX 2009) (The Texas 
Legislature provided $5 million to the Texas Comptroller's Office to 
support high-quality species research through state-funded universities 
and continues to provide funding. This has kept species, such as the 
Dunes Sagebrush Lizard, off of the Endangered Species List), https://
comptroller.texas.gov/programs/species-economy/. See also, Letter from 
Glenn Hegar, Comptroller, State of Texas to the People of Texas (2017) 
available at https://comptroller.texas.gov/ programs/species-economy/
letter.php.
---------------------------------------------------------------------------
    Local governments, particularly those in areas with a 
significant portion of federally-owned lands, have expressed 
concerns that federal ESA-implementing agencies often ignore 
locally generated science.\24\ In more than one case, a court 
order has been required to obtain listing data from federal 
officials, even though the data was obtained through taxpayer-
funded studies.\25\ Additionally, local entities have raised 
the concern that a key document used by the FWS in an ESA 
listing determination was an unpublished manuscript that was 
inaccessible to the public.\26\
---------------------------------------------------------------------------
    \24\Defining Species Conservation Success: Tribal, State and Local 
Stewardship vs. Federal Courtroom Battles and Sue-and-Settle Practices: 
Oversight Hearing Before the H. Comm. On Natural Resources, 113th Cong. 
(2013) (written testimony of Tom Jankovsky, Garfield County, Colorado, 
at 39), which describes Garfield County, Colorado's questioned the 
accuracy of a map developed by the FWS for sage grouse habitat in 
Colorado after the federal agency refused its request to verify data 
used by the U.S. Fish and Wildlife Service federal report.
    \25\Transparency and Sound Science Gone Extinct?: The Impacts of 
the Obama Administration's Closed-Door Settlements on Endangered 
Species and People: Oversight Hearing Before the H. Comm. On Natural 
Resources, 113th Cong. (2013) (testimony of Dr. Ramey, at 27).
    \26\Transparency and Sound Science Gone Extinct?: The Impacts of 
the Obama Administration's Closed-Door Settlements on Endangered 
Species and People: Oversight Hearing Before the H. Comm. On Natural 
Resources, 113th Cong. (2013) (testimony of Kent McMullen, Franklin 
County Natural Resources Advisory Committee, at 21).
---------------------------------------------------------------------------
    Tribal governments also play a significant role in species 
conservation and recovery activities. Witnesses have testified 
that tribal data and science are not factored into ESA listing 
decisions. For example, in the Columbia and Snake Rivers, where 
13 populations of salmon are listed under the ESA, tribal 
hatchery managers have successfully utilized hatchery 
supplementation to enhance salmon and steelhead recovery. The 
Snake River fall chinook run has rebounded to near-record 
levels due in large part to the tribal hatchery programs.\27\ 
Though a federal court ordered NMFS in 2001 to consider 
hatchery salmon in populations proposed for ESA listing, the 
agency issued a revised policy that emphasized the ``negative 
impacts'' of hatchery fish on naturally spawning fish, and 
ignored tribal data highlighting the benefits hatchery fish are 
having on recovering salmon.\28\
---------------------------------------------------------------------------
    \27\Defining Species Conservation Success: Tribal, State and Local 
Stewardship vs. Federal Courtroom Battles and Sue-and-Settle Practices: 
Oversight Hearing Before the H. Comm. On Natural Resources, 113th Cong. 
(2013) (written testimony of N. Kathryn Brigham, Columbia River Inter-
Tribal Fish Commission, at 17).
    \28\Trout Unlimited v. Lohn, 559 F.3d 946 (9th Cir. 2009); 70 Fed. 
Reg. 37, 204.
---------------------------------------------------------------------------
    Despite the expertise and willingness of State, local, and 
tribal governments to participate in the ESA process, the 
Secretaries of the Interior and Commerce are not required to 
disclose scientific information or the basis they use in making 
listing decisions to these governments. The Secretaries are 
also not required to utilize data generated by States, tribes, 
or local governments, even though these governments often have 
data federal agencies lack.\29\
---------------------------------------------------------------------------
    \29\See, Western Energy Alliance, Environmental Groups Keep Suing 
Despite Vast ESA Settlement Agreements (July 13, 2017), https://
www.westernenergyalliance.org/knowledge-center/legal/sue-and-settle 
(FWS settled agreements behind closed doors with WildEarth Guardians 
and the Center for Biological Diversity on a combined 878 species in 
2011 and the scientific information utilized in the settlement listing 
decisions was not made available to the States).
---------------------------------------------------------------------------
    H.R. 3608 would require FWS and NMFS to be transparent in 
their use of data for ESA listing decisions, both with regard 
to their ESA section 6 responsibilities and use of valuable 
State, local and tribal data to guide listing determinations. 
It ensures that States are afforded every opportunity to 
provide input on laws, regulations, and policies related to the 
implementation of the ESA before such policies are finalized. 
This bill would ensure that the best scientific and commercial 
data available for ESA listing decisions includes data from 
those closest to the ground and most impacted by the listings--
the States, local governments, and tribes.\30\
---------------------------------------------------------------------------
    \30\John Stroud, Garfield County Protests Sage Grouse Protection 
Plan, The Aspen Times, July 8, 2015 at http://www.aspentimes.com/news/
garfield-county-protests-sage-grouse-protection-plan/ (Garfield County, 
Co challenged the Northwest Colorado Greater Sage-Grouse management 
plan on the basis that the plan fails to recognize habitat differences 
in that portion of Colorado, designating critical habitat where the 
birds are unable to live. It also challenges the federal failure to 
take local and state habitat conservation plans into consideration) and 
Garfield County, CO, Comments on the BLM's NW Colorado Greater Sage 
Grouse Draft Resource Management Plan and Final Environmental Impact 
Statement (May 13, 2015) at https://www.garfield-county.com/community-
development/sage-grouse-resource-management.aspx.
---------------------------------------------------------------------------

Disclosure of Expenditures

    Federal expenditures associated with implementing and 
administering the ESA have long been a contentious issue. Much 
of the debate is centered on ESA's ``tremendous costs and 
adverse impact on private property owners and effective land 
management.''\31\ Enormous economic and regulatory burdens 
hinder species conservation, rendering ESA ineffective.\32\ The 
Competitive Enterprise Institute (CEI) recently reported that 
the overall economic impact of ESA cannot be systematically 
analyzed due to the complex nature of the ESA's impact on both 
individuals and businesses. All things considered, CEI 
estimates that the total cost of implementing ESA over its 
lifetime is ``close to hundreds of billions of dollars.''\33\
---------------------------------------------------------------------------
    \31\Robert Gordon, CEI Report: Endangered Species Act Costs 
Billions More than Generally Acknowledged, Government Accounting 
Obscures Costs Competitive Enterprise Institute (2018), https://
cei.org/content/cei-report-endangered-species-act-costs-billions-more- 
generally-acknowledged-government (last visited Sep 19, 2018).
    \32\Endangered Species Act Cong. Working Group, 113th Cong., 
Reports, Findings and Recommendations 32 (2014), available at https://
naturalresources.house.gov/uploadedfiles/ 
esa_working_group_final_report_and_recommendations_02_04_14.pdf.
    \33\Robert Gordon, CEI Report: Endangered Species Act Costs 
Billions More than Generally Acknowledged, Government Accounting 
Obscures Costs Competitive Enterprise Institute (2018), https://
cei.org/content/cei-report-endangered-species-act-costs-billions-more-
generally-acknowledged-government (last visited Sep 19, 2018).
---------------------------------------------------------------------------
    To decipher the cost to taxpayers associated with ESA, it 
is imperative for the agencies responsible for its 
implementation report their spending to Congress. H.R. 3608 
requires the creation of an annual expenditure report to be 
submitted to the House Natural Resources Committee and Senate 
Energy and Natural Resources Committee. Both FWS and NMFS must 
report the federal spending for ESA litigation costs for the 
previous year. This information will also be publicly available 
through an online searchable database. The information 
requiredincludes funds spent responding to ESA lawsuits, total number 
of full-time employees who participate in ESA lawsuits, and attorneys' 
fees associated with ESA litigation and settlement agreements.

Litigation costs under the ESA

    Attorneys' fees play a significant role in the enormous 
financial burden associated with the ESA. Special interest 
attorneys representing environmental groups argue that their 
expertise is ``specialized'' to justify substantial, uncapped 
fees.\34\ Some special interest attorneys have collected fees 
as high as $750 taxpayer dollars per hour.\35\ According to 
records from the Department of Justice, at least two such 
attorneys have garnered more than $2 million in attorneys' fees 
by filing ESA suits.\36\ Further, a review of 141 ESA lawsuits 
from 2005 to 2015 show that only ten environmental advocacy 
groups accounted for over 80 percent of all ESA settlements 
reached during the decade. These ``sue and settle'' ESA cases 
cost taxpayers huge amounts in attorneys' fees to fund ongoing 
litigation.\37\
---------------------------------------------------------------------------
    \34\Endangered Species Act Cong. Working Group, 113th Cong., 
Reports, Findings and Recommendations 32 (2014), available at https://
naturalresources.house.gov/uploadedfiles/
esa_working_group_final_report_and_recommendations_02_04_14.pdf.
    \35\Jordan Lofthouse, Ryan M. Yonk & Randy T. Simmons, Equal Access 
to Justice Act 12, available at http://www.strata.org/wp-content/
uploads/ipePublications/Final-Print.pdf; RaeLynn Ricarte, Taypayers 
Foot the Bill of Resource Lawsuits, Dallas Chron., May 13, 2014, http:/
/www.thedalleschronicle.com/news/2014/may/13/taxpayers-foot-bill-
resource-lawsuits/.
    \36\Endangered Species Act Cong. Working Group, supra note 6, at 
31.
    \37\Rob Gordon & Hans A. von Spakovsky, Scott Pruitt Ends an Obama 
Administration Abuse of Power, National Review (2017), https://
www.nationalreview.com/2017/10/scott-pruitt-ends-epa-sue-settle-scheme-
obama-administration-abuse-power/ (last visited Sep 19, 2018).
---------------------------------------------------------------------------
    With environmental groups leading the charge on ``sue and 
settle'' cases, it is important to evaluate the cost of 
litigation to American taxpayers.\38\ In September 2018, the 
Interior Department issued an order to promote transparency and 
accountability in consent decrees and settlement 
agreements.\39\ The Department plans to establish a publicly 
accessible website making available litigation information, 
consent decrees, and settlements.
---------------------------------------------------------------------------
    \38\Millions of Taxpayer Dollars Spent on Endangered Species Act 
Litigation and Attorney Fees, House Committee on Natural Resources 
(2012), https://naturalresources.house.gov/newsroom/
documentsingle.aspx?DocumentID=299899 (last visited Sep 19, 2018).
    \39\Order No. 3368, Promoting Transparency and Accountability in 
Consent Decrees and Settlement Agreements, U.S. Dep't of the Interior, 
Sept. 11, 2018, available at https://www.doi.gov/sites/doi.gov/files/
elips/documents/so_3368_promoting_transparency_and_accountability_in_
consent_decrees_ and_settlement_agreements.pdf.
---------------------------------------------------------------------------
    The Equal Access to Justice Act (EAJA) authorizes a 
``prevailing party'' to collect attorneys' fees in litigation 
against the federal government.\40\ EAJA also provides that 
``attorney fees shall not be awarded in excess of $125 per hour 
unless the court determines that an increase in the cost of 
living or a special factor, such as the limited availability of 
qualified attorneys for the proceedings involved, justifies a 
higher fee.''\41\
---------------------------------------------------------------------------
    \40\28 U.S.C. 2412.
    \41\28 U.S.C. 2412(d)(2)(A).
---------------------------------------------------------------------------
    H.R. 3608 would require ESA litigants to abide by the same 
rules as others suing the federal government, requiring 
plaintiffs to prevail to collect attorneys' fees, as well as 
impose the $125 fee cap set by EAJA. Capable environmental 
attorneys are no longer a rarity; therefore, uncapped 
attorneys' fees are not justified. While this legislation does 
not restrict aggrieved parties' ability to seek redress in 
court, it removes an incentive for litigious plaintiffs to 
request large fee awards. Most importantly, it safeguards 
taxpayer dollars against abusive litigation.\42\
---------------------------------------------------------------------------
    \42\Id. (For example, an attorney representing Center for 
Biological Diversity in a lawsuit to block construction of a San Diego 
elementary school based on the existence of a fairy shrimp argued that 
the ``prevailing San Diego market rate'' for his attorneys' fees was 
reasonable due to his special expertise in challenging ESA habitat 
conservation plans, vernal pools, and his skill in preparing documents. 
He charged more than $400 per hour in the final six years of 
litigation, including $450 per hours in the years that the project was 
delayed. With his own fees totaling over $150,000, he and two other 
attorneys were granted $650,000 in federal funds by the court. 
Similarly, in 2012 plaintiffs were awarded $940,000 in legal fees for 
litigation between 2000 and 2004, and an additional $950,000 for 
litigation between 2004 and 2008 for a case involving Salmon and dams 
operated by the Bonneville Power Administration. The plaintiffs' 
attorneys' fees included rates of $200 to $350 per hour, as well as 
$100 per hour for interns helping with the case. In 2014, three of the 
same attorneys representing the involved plaintiffs filed a third 
application for attorneys' fees, this time arguing for attorneys' fees 
at rates of $500, $475, and $400 per hour. These requested rates more 
than doubled in just a few years' time).
---------------------------------------------------------------------------

                      Section-by-Section Analysis


Section 1. Short title

    This act may be cited as the Endangered Species 
Transparency and Reasonableness Act.

Section 2. Requirement to publish on the Internet the basis for 
        listings

    Section 2 amends section 4 of the ESA to require the 
relevant Secretary make the ``best scientific and commercial 
data,'' which is the basis for listing determinations, publicly 
available on the Internet. If a State determines publishing 
online is prohibited by State law, an exception may be made to 
withhold publishing on the Internet. Further, the Secretary of 
Defense may prohibit publishing on the Internet to prevent 
disclosing classified information.

Section 3. Decisional Transparency and Use of State, Tribal, and Local 
        information

            Subsection (a). Requiring Decisional Transparency with 
                    Affected States.
    Subsection (a) amends section 6 of the ESA to require the 
relevant Secretary to provide all data used in listing 
determinations to affected States.
            Subsection (b). Ensuring Use of State, Tribal, and Local 
                    Information.
    Section (b) ensures FWS and NMFS's use of State, tribal, 
and local information in listing decisions by clarifying that 
the term ``best scientific and commercial data'' includes all 
such data submitted by State, tribal, or local governments that 
meets the criteria for ``best scientific and commercial data.''

Section 4. Disclosure of expenditures under Endangered Species Act of 
        1973

    Subsection (a) amends section 13 of the ESA to require FWS 
and NMFS to submit to the House Natural Resources Committee and 
the Senate Energy and Natural Resources Committee an annual 
report outlining federal spending on lawsuits related to ESA. 
The report must document funds spent by the federal government 
in response to ESA lawsuits, the number of government employees 
involved in ESA litigation, and attorney fees paid by the 
federal government for litigations and settlements. It also 
requires this information be made available on the Internet.

Section 5. Award of litigation costs to prevailing parties in 
        accordance with existing law

    Section 5 amends the ESA by limiting attorney fees to the 
$125 per hour cap currently established the EAJA, the same 
standard that applies to all other litigation against the 
federal government.

                            Committee Action

    H.R. 3608 was introduced on July 28, 2017, by Congressman 
Tom McClintock (R-CA). The bill was referred to the Committee 
on Natural Resources. On September 26, 2018, the Committee held 
a hearing on the bill. On September 27, 2018, the Committee met 
to consider the bill. No amendments were offered, and the bill 
was ordered favorably reported to the House of Representatives 
by a roll call vote of 19 yeas and 12 nays, as follows:

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

            Committee Oversight Findings and Recommendations

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Natural Resources' oversight findings and 
recommendations are reflected in the body of this report.

      Compliance With House Rule XIII and Congressional Budget Act

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

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, November 7, 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. 3608, the 
Endangered Species Transparency and Reasonableness Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Janani 
Shankaran.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

H.R. 3608--Endangered Species Transparency and Reasonableness Act

    H.R. 3608 would direct the U.S. Fish and Wildlife Service 
(USFWS) and the National Oceanic and Atmospheric Administration 
to make the data used as the basis for listing a species for 
protection under the Endangered Species Act (ESA) publicly 
available. The bill also would require certain agencies (such 
as the Forest Service and the Bonneville Power Administration) 
to provide information to the USFWS on ESA lawsuits, and would 
direct the USFWS to make that information publicly available in 
a searchable database. Based on the costs of similar 
activities, CBO estimates that implementing the bill would cost 
less than $500,000; such spending would be subject to the 
availability of appropriated funds.
    Enacting H.R. 3608 would affect direct spending; therefore, 
pay-as-you-go procedures apply. Under current law, plaintiffs 
who challenge the federal government under the ESA may be 
entitled to the repayment of attorneys' fees. Such payments are 
made from the Judgment Fund, which has a permanent indefinite 
appropriation. Section 5 would cap attorney fees awarded under 
the ESA to $125 per hour, adjusted for cost of living and other 
factors. Based on the amount of attorneys' fees paid to 
plaintiffs under the ESA in the past, CBO expects that amounts 
awarded to attorneys under the bill would be slightly less than 
amounts awarded under current law. In addition, the bill could 
affect spending by the Bonneville Power Administration, which 
is not funded through annual appropriations acts. On net, CBO 
estimates that enacting H.R. 3608 would reduce direct spending 
by an insignificant amount. Enacting the bill would not affect 
revenues.
    CBO estimates that enacting H.R. 3608 would not increase 
net direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2029.
    H.R. 3608 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    On February 12, 2018, CBO transmitted a cost estimate for 
H.R. 3131, the Endangered Species Litigation Reasonableness 
Act, as ordered reported by the House Committee on Natural 
Resources on October 4, 2017. H.R. 3131 is similar to section 5 
of H.R. 3608, and CBO' s estimates of the budgetary effects of 
those provisions are the same.
    The CBO staff contact for this estimate is Janani 
Shankaran. The estimate was reviewed by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.
    2. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goal or 
objective of this bill is to require publication on the 
Internet of the basis for determinations that species are 
endangered species or threatened species.

                           Earmark Statement

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

                    Compliance With Public Law 104-4

    This bill contains no unfunded mandates.

                       Compliance With H. Res. 5

    Directed Rule Making. This bill contains no directed 
rulemakings.
    Duplication of Existing Programs. This bill does not 
establish or reauthorize a program of the federal government 
known to be duplicative of another program. Such program was 
not included in any report from the Government Accountability 
Office to Congress pursuant to section 21 of Public Law 111-139 
or identified in the most recent Catalog of Federal Domestic 
Assistance published pursuant to the Federal Program 
Information Act (Public Law 95-220, as amended by Public Law 
98-169) as relating to other programs.

                Preemption of State, Local or Tribal Law

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

         Changes in Existing Law Made by the Bill, as Reported

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

                     ENDANGERED SPECIES ACT OF 1973


   Be it enacted by the Senate and House of Representatives of 
the United States of America in Congress assembled, That this 
Act may be cited as the ``Endangered Species Act of 1973''.

                            TABLE OF CONTENTS

Sec. 2. Findings, purposes, and policy.
     * * * * * * *
[Sec. 13. Conforming amendments.]
Sec. 13. Disclosure of expenditures.
     * * * * * * *

                              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 ``best scientific and commercial data 
available'' includes all such data submitted by a State, 
tribal, or county government.
  [(2)] (3) 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)] (4) 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)] (5) 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)] (6)(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)] (7) 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)] (8) The term ``Federal agency'' means any department, 
agency, or instrumentality of the United States.
  [(8)] (9) 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)] (10) 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)] (11) 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)] (13) 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)] (14) 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)] (15) The term ``plant'' means any member of the plant 
kingdom, including seeds, roots and other parts thereof.
  [(15)] (16) 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.
  [(16)] (17) 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)] (18) 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)] (19) 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)] (20) 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)] (21) 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)] (22) The term ``United States,'' when used in a 
geographical context, includes all States.

       determination of endangered species and threatened species

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

           *       *       *       *       *       *       *


                      cooperation with the states

  Sec. 6. (a) General.--(1) In carrying out the program 
authorized by this Act, the Secretary shall cooperate to the 
maximum extent practicable with the States. [Such cooperation 
shall include]
          (2) Such cooperation shall include--
                  (A) before making a determination under 
                section 4(a), providing to States affected by 
                such determination all data that is the basis 
                of the determination; and 
                  (B) consultation with the States concerned 
                before acquiring any land or water, or interest 
                therein, for the purpose of conserving any 
                endangered species or threatened species.
  (b) Management Agreements.--The Secretary may enter into 
agreements with any State for the administration and management 
of any area established for the conservation of endangered 
species or threatened species. Any revenues derived from the 
administration of such areas under these agreements shall be 
subject to the provisions of section 401 of the Act of June 15, 
1935 (49 Stat. 383; 16 U.S.C. 715s).
  (c)(1) Cooperative Agreements.--In furtherance of the 
purposes of this Act, the Secretary is authorized to enter into 
a cooperative agreement in accordance with this section with 
any State which establishes and maintains an adequate and 
active program for the conservation of endangered species and 
threatened species. Within one hundred and twenty days after 
the Secretary receives a certified copy of such a proposed 
State program, he shall make a determination whether such 
program is in accordance with this Act. Unless he determines, 
pursuant to this paragraph, that the State program is not in 
accordance with this Act, he shall enter into a cooperative 
agreement with the State for the purpose of assisting in 
implementation of the State program. In order for a State 
program to be deemed an adequate and active program for the 
conservation of endangered species and threatened species, the 
Secretary must find, and annually thereafter reconfirm such 
finding, that under the State program--
          (A) authority resides in the State agency to conserve 
        resident species of fish or wildlife determined by the 
        State agency or the Secretary to be endangered or 
        threatened;
          (B) the State agency has established acceptable 
        conservation programs, consistent with the purposes and 
        policies of this Act, for all resident species of fish 
        or wildlife in the State which are deemed by the 
        Secretary to be endangered or threatened, and has 
        furnished a copy of such plan and program together with 
        all pertinent details, information, and data requested 
        to the Secretary;
          (C) the State agency is authorized to conduct 
        investigations to determine the status and requirements 
        for survival of resident species of fish and wildlife;
          (D) the State agency is authorized to establish 
        programs, including the acquisition of land or aquatic 
        habitat or interests therein, for the conservation of 
        resident endangered or threatened species of fish or 
        wildlife; and
          (E) provision is made for public participation in 
        designating resident species of fish or wildlife as 
        endangered or threatened; or
that under the State program--
          (i) the requirements set forth in subparagraphs (C), 
        (D), and (E) of this paragraph are complied with, and
          (ii) plans are included under which immediate 
        attention will be given to those resident species of 
        fish and wildlife which are determined by the Secretary 
        or the State agency to be endangered or threatened and 
        which the Secretary and the State agency agree are most 
        urgently in need of conservation programs; except that 
        a cooperative agreement entered into with a State whose 
        program is deemed adequate and active pursuant to 
        clause (i) and this clause shall not affect the 
        applicability of prohibitions set forth in or 
        authorized pursuant to section 4(d) or section 9(a)(1) 
        with respect to the taking of any resident endangered 
        or threatened species.
  (2) In furtherance of the purposes of this Act, the Secretary 
is authorized to enter into a cooperative agreement in 
accordance with this section with any State which establishes 
and maintains an adequate and active program for the 
conservation of endangered species and threatened species of 
plants. Within one hundred and twenty days after the Secretary 
receives a certified copy of such a proposed State program, he 
shall make a determination whether such program is in 
accordance with this Act. Unless he determines, pursuant to 
this paragraph, that the State program is not in accordance 
with this Act, he shall enter into a cooperative agreement with 
the State for the purpose of assisting in implementation of the 
State program. In order for a State program to be deemed an 
adequate and active program for the conservation of endangered 
species of plants and threatened species of plants, the 
Secretary must find, and annually thereafter reconfirm such 
findings, that under the State program--
          (A) authority resides in the State agency to conserve 
        resident species of plants determined by the State 
        agency or the Secretary to be endangered or threatened;
          (B) the State agency has established acceptable 
        conservation programs, consistent with the purposes and 
        policies of this Act, for all resident species of 
        plants in the State which are deemed by the Secretary 
        to be endangered or threatened, and has furnished a 
        copy of such plan and program together with all 
        pertinent details, information, and data requested to 
        the Secretary;
          (C) the State agency is authorized to conduct 
        investigations to determine the status and requirements 
        for survival of resident species of plants; and
          (D) provision is made for public participation in 
        designating resident species of plants as endangered or 
        threatened; or that under the State program--
                  (i) the requirements set forth in 
                subparagraphs (C) and (D) of this paragraph are 
                complied with, and
                  (ii) plans are included under which immediate 
                attention will be given to those resident 
                species of plants which are determined by the 
                Secretary or the State agency to be endangered 
                or threatened and which the Secretary and the 
                State agency agree are most urgently in need of 
                conservation programs; except that a 
                cooperative agreement entered into with a State 
                whose program is deemed adequate and active 
                pursuant to clause (i) and this clause shall 
                not affect the applicability of prohibitions 
                set forth in or authorized pursuant to section 
                4(d) or section 9(a)(1) with respect to the 
                taking of any resident endangered or threatened 
                species.
  (d) Allocation of Funds.--(1) The Secretary is authorized to 
provide financial assistance to any State, through its 
respective State agency, which has entered into a cooperative 
agreement pursuant to subsection (c) of this section to assist 
in development of programs for the conservation of endangered 
and threatened species or to assist in monitoring the status of 
candidate species pursuant to subparagraph (C) of section 
4(b)(3) and recovered species pursuant to section 4(g). The 
Secretary shall allocate each annual appropriation made in 
accordance with the provisions of subsection (i) of this 
section to such States based on consideration of--
          (A) the international commitments of the United 
        States to protect endangered species or threatened 
        species;
          (B) the readiness of a State to proceed with a 
        conservation program consistent with the objectives and 
        purposes of this Act;
          (C) the number of endangered species and threatened 
        species within a State;
          (D) the potential for restoring endangered species 
        and threatened species within a State;
          (E) the relative urgency to initiate a program to 
        restore and protect an endangered species or threatened 
        species in terms of survival of the species;
          (F) the importance of monitoring the status of 
        candidate species within a State to prevent a 
        significant risk to the well being of any such species; 
        and
          (G) the importance of monitoring the status of 
        recovered species within a State to assure that such 
        species do not return to the point at which the 
        measures provided pursuant to this Act are again 
        necessary.
So much of the annual appropriation made in accordance with 
provisions of subsection (i) of this section allocated for 
obligation to any State for any fiscal year as remains 
unobligated at the close thereof is authorized to be made 
available to that State until the close of the succeeding 
fiscal year. Any amount allocated to any State which is 
unobligated at the end of the period during which it is 
available for expenditure is authorized to be made available 
for expenditure by the Secretary in conducting programs under 
this section.
  (2) Such cooperative agreements shall provide for (A) the 
actions to be taken by the Secretary and the States; (B) the 
benefits that are expected to be derived in connection with the 
conservation of endangered or threatened species; (C) the 
estimated cost of these actions; and (D) the share of such 
costs to be bore by the Federal Government and by the States; 
except that--
          (i) the Federal share of such program costs shall not 
        exceed 75 percent of the estimated program cost stated 
        in the agreement; and
          (ii) the Federal share may be increased to 90 percent 
        whenever two or more States having a common interest in 
        one or more endangered or threatened species, the 
        conservation of which may be enhanced by cooperation of 
        such States, enter jointly into agreement with the 
        Secretary.
The Secretary may, in his discretion, and under such rules and 
regulations as he may prescribe, advance funds to the State for 
financing the United States pro rata share agreed upon in the 
cooperative agreement. For the purposes of this section, the 
non-Federal share may, in the discretion of the Secretary, be 
in the form of money or real property, the value of which will 
be determined by the Secretary whose decision shall be final.
  (e) Review of State Programs.--Any action taken by the 
Secretary under this section shall be subject to his periodic 
review at no greater than annual intervals.
  (f) Conflicts Between Federal and State Laws.--Any State law 
or regulation which applies with respect to the importation or 
exportation of, or interstate or foreign commerce in, 
endangered species or threatened species is void to the extent 
that it may effectively (1) permit what is prohibited by this 
Act or by any regulation which implements this Act, or (2) 
prohibit what is authorized pursuant to an exemption or permit 
provided for in this Act or in any regulation which implements 
this Act. This Act shall not otherwise be construed to void any 
State law or regulation which is intended to conserve 
migratory, resident, or introduced fish or wildlife, or to 
permit or prohibit sale of such fish or wildlife. Any State law 
or regulation respecting the taking of an endangered species or 
threatened species may be more restrictive than the exemptions 
or permits provided for in this Act or in any regulation which 
implements this Act but not less restrictive than the 
prohibitions so defined.
  (g) Transition.--(1) For purposes of this subsection, the 
term ``establishment period'' means, with respect to any State, 
the period beginning on the date of enactment of this Act and 
ending on whichever of the following dates first occurs: (A) 
the date of the close of the 120-day period following the 
adjournment of the first regular session of the legislature of 
such State which commences after such date of enactment, or (B) 
the date of the close of the 15-month period following such 
date of enactment.
  (2) The prohibitions set forth in or authorized pursuant to 
sections 4(d) and 9(a)(1)(B) of this Act shall not apply with 
respect to the taking of any resident endangered species or 
threatened species (other than species listed in Appendix I to 
the Convention or otherwise specifically covered by any other 
treaty or Federal law) within any State--
          (A) which is then a party to a cooperative agreement 
        with the Secretary pursuant to section 6(c) of this Act 
        (except to the extent that the taking of any such 
        species is contrary to the law of such State); or
          (B) except for any time within the establishment 
        period when--
                  (i) the Secretary applies such prohibition to 
                such species at the request of the State, or
                  (ii) the Secretary applies such prohibition 
                after he finds, and publishes his finding, that 
                an emergency exists posing a significant risk 
                to the well-being of such species and that the 
                prohibition must be applied to protect such 
                species. The Secretary's finding and 
                publication may be made without regard to the 
                public hearing or comment provisions of section 
                553 of title 5, United States Code, or any 
                other provision of this Act; but such 
                prohibition shall expire 90 days after the date 
                of its imposition unless the Secretary further 
                extends such prohibition by publishing notice 
                and a statement of justification of such 
                extension.
  (h) Regulations.--The Secretary is authorized to promulgate 
such regulations as may be appropriate to carry out the 
provisions of this section relating to financial assistance to 
States.
  (i) Appropriations.--(1) To carry out the provisions of this 
section for fiscal years after September 30, 1988, there shall 
be deposited into a special fund known as the cooperative 
endangered species conservation fund, to be administered by the 
Secretary, an amount equal to five percent of the combined 
amounts covered each fiscal year into the Federal aid to 
wildlife restoration fund under section 3 of the Act of 
September 2, 1937, and paid, transferred, or otherwise credited 
each fiscal year to the Sport Fishing Restoration Account 
established under 1016 of the Act of July 18, 1984.
  (2) Amounts deposited into the special fund are authorized to 
be appropriated annually and allocated in accordance with 
subsection (d) of this section.

                        interagency cooperation

  Sec. 7. (a) Federal Agency Actions and Consultations.--(1) 
The Secretary shall review other programs administered by him 
and utilize such programs in furtherance of the purposes of 
this Act. All other Federal agencies shall, in consultation 
with and with the assistance of the Secretary, utilize their 
authorities in furtherance of the purposes of this Act by 
carrying out programs for the conservation of endangered 
species and threatened species listed pursuant to section 4 of 
this Act.
  (2) Each Federal agency shall, in consultation with and with 
the assistance of the Secretary, insure that any action 
authorized, funded, or carried out by such agency (hereinafter 
in this section referred to as an ``agency action'') is not 
likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or 
adverse modification of habitat of such species which is 
determined by the Secretary, after consultation as appropriate 
with affected States, to be critical, unless such agency has 
been granted an exemption for such action by the Committee 
pursuant to subsection (h) of this section. In fulfilling the 
requirements of this paragraph each agency shall use the best 
scientific and commercial data available.
  (3) Subject to such guidelines as the Secretary may 
establish, a Federal agency shall consult with the Secretary on 
any prospective agency action at the request of, and in 
cooperation with, the prospective permit or license applicant 
if the applicant has reason to believe that an endangered 
species or a threatened species may be present in the area 
affected by his project and that implementation of such action 
will likely affect such species.
  (4) Each Federal agency shall confer with the Secretary on 
any agency action which is likely to jeopardize the continued 
existence of any species proposed to be listed under section 4 
or result in the destruction or adverse modification of 
critical habitat proposed to be designated for such species. 
This paragraph does not require a limitation on the commitment 
of resources as described in subsection (d).
  (b) Opinion of Secretary.--(1)(A) Consultation under 
subsection (a)(2) with respect to any agency action shall be 
concluded within the 90-day period beginning on the date on 
which initiated or, subject to subparagraph (B), within such 
other period of time as is mutually agreeable to the Secretary 
and the Federal agency.
  (B) In the case of an agency action involving a permit or 
license applicant, the Secretary and the Federal agency may not 
mutually agree to conclude consultation within a period 
exceeding 90 days unless the Secretary, before the close of the 
90th day referred to in subparagraph (A)--
          (i) if the consultation period proposed to be agreed 
        to will end before the 150th day after the date on 
        which consultation was initiated, submits to the 
        applicant a written statement setting forth--
                  (I) the reasons why a longer period is 
                required;
                  (II) the information that is required to 
                complete the consultation; and
                  (III) the estimated date on which 
                consultation will be completed; or
          (ii) if the consultation period proposed to be agreed 
        to will end 150 or more days after the date on which 
        consultation was initiated, obtains the consent of the 
        applicant to such period.
The Secretary and the Federal agency may mutually agree to 
extend a consultation period established under the preceding 
sentence if the Secretary, before the close of such period, 
obtains the consent of the applicant to the extension.
  (2) Consultation under subsection (a)(3) shall be concluded 
within such period as is agreeable to the Secretary, the 
Federal agency, and the applicant concerned.
  (3)(A) Promptly after conclusion of consultation under 
paragraph (2) or (3) of subsection (a), the Secretary shall 
provide to the Federal agency and the applicant, if any, a 
written statement setting forth the Secretary's opinion, and a 
summary of the information on which the opinion is based, 
detailing how the agency action affects the species or its 
critical habitat. If jeopardy or adverse modification is found, 
the Secretary shall suggest those reasonable and prudent 
alternatives which he believes would not violate subsection 
(a)(2) and can be taken by the Federal agency or applicant in 
implementing the agency action.
  (B) Consultation under subsection (a)(3), and an opinion 
based by the Secretary incident to such consultation, regarding 
an agency action shall be treated respectively as a 
consultation under subsection (a)(2), and as an opinion issued 
after consultation under such subsection, regarding that action 
if the Secretary reviews the action before it is commenced by 
the Federal agency and finds, and notifies such agency, that no 
significant changes have been made with respect to the action 
and that no significant change has occurred regarding the 
information used during the initial consultation.
  (4) If after consultation under subsection (a)(2) of this 
section, the Secretary concludes that--
          (A) the agency action will not violate such 
        subsection, or offers reasonable and prudent 
        alternatives which the Secretary believes would not 
        violate such subsection;
          (B) the taking of an endangered species or a 
        threatened species incidental to the agency action will 
        not violate such subsection; and
          (C) if an endangered species or threatened species of 
        a marine mammal is involved, the taking is authorized 
        pursuant to section 101(a)(5) of the Marine Mammal 
        Protection Act of 1972;
the Secretary shall provide the Federal agency and the 
applicant concerned, if any, with a written statement that--
          (i) specifies the impact of such incidental taking on 
        the species,
          (ii) specifies those reasonable and prudent measures 
        that the Secretary considers necessary or appropriate 
        to minimize such impact,
          (iii) in the case of marine mammals, specifies those 
        measures that are necessary to comply with section 
        101(a)(5) of the Marine Mammal Protection Act of 1972 
        with regard to such taking, and
          (iv) sets forth the terms and conditions (including, 
        but not limited to, reporting requirements) that must 
        be complied with by the Federal agency or applicant (if 
        any), or both, to implement the measures specified 
        under clauses (ii) and (iii).
  (c) Biological Assessment.--(1) To facilitate compliance with 
the requirements of subsection (a)(2) each Federal agency 
shall, with respect to any agency action of such agency for 
which no contract for construction has been entered into and 
for which no construction has begun on the date of enactment of 
the Endangered Species Act Amendments of 1978, request of the 
Secretary information whether any species which is listed or 
proposed to be listed may be present in the area of such 
proposed action. If the Secretary advises, based on the best 
scientific and commercial data available, that such species may 
be present, such agency shall conduct a biological assessment 
for the purpose of identifying any endangered species or 
threatened species which is likely to be affected by such 
action. Such assessment shall be completed within 180 days 
after the date on which initiated (or within such other period 
as in mutually agreed to by the Secretary and such agency, 
except that if a permit or license applicant is involved, the 
180-day period may not be extended unless such agency provides 
the applicant, before the close of such period, with a written 
statement setting forth the estimated length of the proposed 
extension and the reasons therefor) and, before any contract 
for construction is entered into and before construction is 
begun with respect to such action. Such assessment may be 
undertaken as part of a Federal agency's compliance with the 
requirements of section 102 of the National Environmental 
Policy Act of 1969 (42 U.S.C. 4332).
  (2) Any person who may wish to apply for an exemption under 
subsection (g) of this section for that action may conduct a 
biological assessment to identify any endangered species or 
threatened species which is likely to be affected by such 
action. Any such biological assessment must, however, be 
conducted in cooperation with the Secretary and under the 
supervision of the appropriate Federal agency.
  (d) Limitation on Commitment of Resources.--After initiation 
of consultation required under subsection (a)(2), the Federal 
agency and the permit or license applicant shall not make any 
irreversible or irretrievable commitment of resources with 
respect to the agency action which has the effect of 
foreclosing the formulation or implementation of any reasonable 
and prudent alternative measures which would not violate 
subsection (a)(2).
  (e)(1) Establishment of Committee.--There is established a 
committee to be known as the Endangered Species Committee 
(hereinafter in this section referred to as the ``Committee'').
  (2) The Committee shall review any application submitted to 
it pursuant to this section and determine in accordance with 
subsection (h) of this section whether or not to grant an 
exemption from the requirements of subsection (a)(2) of this 
action for the action set forth in such application.
  (3) The Committee shall be composed of seven members as 
follows:
          (A) The Secretary of Agriculture.
          (B) The Secretary of the Army.
          (C) The Chairman of the Council of Economic Advisors.
          (D) The Administrator of the Environmental Protection 
        Agency. Agency.
          (E) The Secretary of the Interior.
          (F) The Administrator of the National Oceanic and 
        Atmospheric Administration.
          (G) The President, after consideration of any 
        recommendations received pursuant to subsection 
        (g)(2)(B) shall appoint one individual from each 
        affected State, as determined by the Secretary, to be a 
        member of the Committee for the consideration of the 
        application for exemption for an agency action with 
        respect to which such recommendations are made, not 
        later than 30 days after an application is submitted 
        pursuant to this section.
  (4)(A) Members of the Committee shall receive no additional 
pay on account of their service on the Committee.
  (B) While away from their homes or regular places of business 
in the performance of services for the Committee, members of 
the Committee shall be allowed travel expenses, including per 
diem in lieu of subsistence, in the same manner as persons 
employed intermittently in the Government service are allowed 
expenses under section 5703 of title 5 of the United States 
Code
  (5)(A) Five members of the Committee or their representatives 
shall constitute a quorum for the transaction of any function 
of the Committee, except that, in no case shall any 
representative be considered in determining the existence of a 
quorum for the transaction of any function of the Committee if 
that function involves a vote by the Committee on any matter 
before the Committee.
  (B) The Secretary of the Interior shall be the Chairman of 
the Committee.
  (C) The Committee shall meet at the call of the Chairman or 
five of its members.
  (D) All meetings and records of the Committee shall be open 
to the public.
  (6) Upon request of the Committee, the head of any Federal 
agency is authorized to detail, on a nonreimbursable basis, any 
of the personnel of such agency to the Committee to assist it 
in carrying out its duties under this section.
  (7)(A) The Committee may for the purpose of carrying out its 
duties under this section hold such hearings, sit and act at 
such times and places, take such testimony, and receive such 
evidence, as the Committee deems advisable.
  (B) When so authorized by the Committee, any member or agent 
of the Committee may take any action which the Committee is 
authorized to take by this paragraph.
  (C) Subject to the Privacy Act, the Committee may secure 
directly from any Federal agency information necessary to 
enable it to carry out its duties under this section. Upon 
request of the Chairman of the Committee, the head of such 
Federal agency shall furnish such information to the Committee.
  (D) The Committee may use the United States mails in the same 
manner and upon the same conditions as a Federal agency.
  (E) The Administrator of General Services shall provide to 
the Committee on a reimbursable basis such administrative 
support services as the Committee may request.
  (8) In carrying out its duties under this section, the 
Committee may promulgate and amend such rules, regulations, and 
procedures, and issue and amend such orders as it deems 
necessary.
  (9) For the purpose of obtaining information necessary for 
the consideration of an application for an exemption under this 
section the Committee may issue subpoenas for the attendance 
and testimony of witnesses and the production of relevant 
papers, books, and documents.
  (10) In no case shall any representative, including a 
representative of a member designated pursuant to paragraph 
(3)(G) of this subsection, be eligible to cast a vote on behalf 
of any member.
  (f) Regulations.--Not later than 90 days after the date of 
enactment of the Endangered Species Act Amendments of 1978, the 
Secretary shall promulgate regulations which set forth the form 
and manner in which applications for exemption shall be 
submitted to the Secretary and the information to be contained 
in such applications. Such regulations shall require that 
information submitted in an application by the head of any 
Federal agency with respect to any agency action include but 
not be limited to--
          (1) a description of the consultation process carried 
        out pursuant to subsection (a)(2) of this section 
        between the head of the Federal agency and the 
        Secretary; and
          (2) a statement describing why such action cannot be 
        altered or modified to conform with the requirements of 
        subsection (a)(2) of this section.
  (g) Application for Exemption and Report to the Committee.--
(1) A Federal agency, the Governor of the State in which an 
agency action will occur, if any, or a permit or license 
applicant may apply to the Secretary for an exemption for an 
agency action of such agency if, after consultation under 
subsection (a)(2), the Secretary's opinion under subsection (b) 
indicates that the agency action would violate subsection 
(a)(2). An application for an exemption shall be considered 
initially by the Secretary in the manner provided for in this 
subsection, and shall be considered by the Committee for a 
final determination under subsection (h) after a report is made 
pursuant to paragraph (5). The applicant for an exemption shall 
be referred to as the ``exemption applicant'' in this section.
  (2)(A) An exemption applicant shall submit a written 
application to the Secretary, in a form prescribed under 
subsection (f), not later than 90 days after the completion of 
the consultation process; except that, in the case of any 
agency action involving a permit or license applicant, such 
application shall be submitted not later than 90 days after the 
date on which the Federal agency concerned takes final agency 
action with respect to the issuance of the permit or license. 
For purposes of the preceding sentence, the term ``final agency 
action'' means (i) a disposition by an agency with respect to 
the issuance of a permit or license that is subject to 
administrative review, whether or not such disposition is 
subject to judicial review; or (ii) if administrative review is 
sought with respect to such disposition, the decision resulting 
after such review. Such application shall set forth the reasons 
why the exemption applicant considers that the agency action 
meets the requirements for an exemption under this subsection.
  (B) Upon receipt of an application for exemption for an 
agency action under paragraph (1), the Secretary shall promptly 
(i) notify the Governor of each affected State, if any, as 
determined by the Secretary, and request the Governors so 
notified to recommend individuals to be appointed to the 
Endangered Species Committee for consideration of such 
application; and (ii) publish notice of receipt of the 
application in the Federal Register, including a summary of the 
information contained in the application and a description of 
the agency action with respect to which the application for 
exemption has been filed.
  (3) The Secretary shall within 20 days after the receipt of 
an application for exemption, or within such other period of 
time as is mutually agreeable to the exemption applicant and 
the Secretary--
          (A) determine that the Federal agency concerned and 
        the exemption applicant have--
                  (i) carried out the consultation 
                responsibilities described in subsection (a) in 
                good faith and made a reasonable and 
                responsible effort to develop and fairly 
                consider modifications or reasonable and 
                prudent alternatives to the proposed agency 
                action which would not violate subsection 
                (a)(2);
                  (ii) conducted any biological assessment 
                required by subsection (c); and
                  (iii) to the extent determinable within the 
                time provided herein, refrained from making any 
                irreversible or irretrievable commitment of 
                resources prohibited by subsection (d); or
          (B) deny the application for exemption because the 
        Federal agency concerned or the exemption applicant 
        have not met the requirements set forth in subparagraph 
        (A)(i), (ii), and (iii).
The denial of an application under subparagraph (B) shall be 
considered final agency action for purposes of chapter 7 of 
title 5, United States Code.
  (4) If the Secretary determines that the Federal agency 
concerned and the exemption applicant have met the requirements 
set forth in paragraph (3)(A) (i), (ii) and (iii) he shall, in 
consultation with the Members of the Committee, hold a hearing 
on the application for exemption in accordance with sections 
554, 555, and 556 (other than subsection (b) (1) and (2) 
thereof) of title 5, United States Code, and prepare the report 
to be submitted pursuant to paragraph (5).
  (5) Within 140 days after making the determinations under 
paragraph (3) or within such other period of time as is 
mutually agreeable to the exemption applicant and the 
Secretary, the Secretary shall submit to the Committee a report 
discussing--
          (A) the availability and reasonable and prudent 
        alternatives to the agency action, and the nature and 
        extent of the benefits of the agency action and of 
        alternative courses of action consistent with 
        conserving the species or the critical habitat;
          (B) a summary of the evidence concerning whether or 
        not the agency action is in the public interest and is 
        of national or regional significance;
          (C) appropriate reasonable mitigation and enhancement 
        measures which should be considered by the Committee; 
        and
          (D) whether the Federal agency concerned and the 
        exemption applicant refrained from making any 
        irreversible or irretrievable commitment of resources 
        prohibited by subsection (d).
  (6) To the extent practicable within the time required for 
action under subsection (g) of this section, and except to the 
extent inconsistent with the requirements of this section, the 
consideration of any application for an exemption under this 
section and the conduct of any hearing under this subsection 
shall be in accordance with sections 554, 555, and 556 (other 
than subsection (b)(3) of section 556) of title 5, United 
States Code.
  (7) Upon request of the Secretary, the head of any Federal 
agency is authorized to detail, on a nonreimbursable basis, any 
of the personnel of such agency to the Secretary to assist him 
in carrying out his duties under this section.
  (8) All meetings and records resulting from activities 
pursuant to this subsection shall be open to the public.
  (h) Exemption.--(1) The Committee shall make a final 
determination whether or not to grant an exemption within 30 
days after receiving the report of the Secretary pursuant to 
subsection (g)(5). The Committee shall grant an exemption from 
the requirements of subsection (a)(2) for an agency action if, 
by a vote of not less than five of its members voting in 
person--
          (A) it determines on the record, based on the report 
        of the Secretary, the record of the hearing held under 
        subsection (g)(4), and on such other testimony or 
        evidence as it may receive, that--
                  (i) there are no reasonable and prudent 
                alternatives to the agency action;
                  (ii) the benefits of such action clearly 
                outweigh the benefits of alternative courses of 
                action consistent with conserving the species 
                or its critical habitat, and such action is in 
                the public interest;
                  (iii) the action is of regional or national 
                significance; and
                  (iv) neither the Federal agency concerned nor 
                the exemption applicant made any irreversible 
                or irretrievable commitment of resources 
                prohibited by subsection (d); and
          (B) it establishes such reasonable mitigation and 
        enhancement measures, including, but not limited to, 
        live propagation, transplantation, and habitat 
        acquisition and improvement, as are necessary and 
        appropriate to minimize the adverse effects of the 
        agency action upon the endangered species, threatened 
        species, or critical habitat concerned.
Any final determination by Committee under this subsection 
shall be considered final agency action for purposes of chapter 
7 of title 5 of the United States Code.
  (2)(A) Except as provided in subparagraph (B), an exemption 
for an agency action granted under paragraph (1) shall 
constitute a permanent exemption with respect to all endangered 
or threatened species for the purposes of completing such 
agency action--
          (i) regardless whether the species was identified in 
        the biological assessment; and
          (ii) only if a biological assessment has been 
        conducted under subsection (c) with respect to such 
        agency action.
  (B) An exemption shall be permanent under subparagraph (A) 
unless--
          (i) the Secretary finds, based on the best scientific 
        and commercial data available, that such exemption 
        would result in the extinction of a species that was 
        not the subject of consultation under subsection (a)(2) 
        or was not identified in any biological assessment 
        conducted under subsection (c), and
          (ii) the Committee determines within 60 days after 
        the date of the Secretary's finding that the exemption 
        should not be permanent.
If the Secretary makes a finding described in clause (i), the 
Committee shall meet with respect to the matter within 30 days 
after the date of the finding.
  (i) Review by Secretary of State.--Notwithstanding any other 
provision of this Act, the Committee shall be prohibited from 
considering for exemption any application made to it, if the 
Secretary of State, after a review of the proposed agency 
action and its potential implications, and after hearing, 
certifies, in writing, to the Committee within 60 days of any 
application made under this section that the granting of any 
such exemption and the carrying out of such action would be in 
violation of an international treaty obligation or other 
international obligation of the United States. The Secretary of 
State shall, at the time of such certification, publish a copy 
thereof in the Federal Register.
  (j) Notwithstanding any other provision of this Act, the 
Committee shall grant an exemption for any agency action if the 
Secretary of Defense finds that such exemption is necessary for 
reasons of national security.
  (k) Special Provisions.--An exemption decision by the 
Committee under this section shall not be a major Federal 
action for purposes of the National Environmental Policy Act of 
1969 (42 U.S.C. 4321 et seq.): Provided, That an environmental 
impact statement which discusses the impacts upon endangered 
species or threatened species or their critical habitats shall 
have been previously prepared with respect to any agency action 
exempted by such order.
  (l) Committee Orders.--(1) If the Committee determines under 
subsection (h) that an exemption should be granted with respect 
to any agency action, the Committee shall issue an order 
granting the exemption and specifying the mitigation and 
enhancement measures established pursuant to subsection (h) 
which shall be carried out and paid for by the exemption 
applicant in implementing the agency action. All necessary 
mitigation and enhancement measures shall be authorized prior 
to the implementing of the agency action and funded 
concurrently with all other project features.
  (2) The applicant receiving such exemption shall include the 
costs of such mitigation and enhancement measures within the 
overall costs of continuing the proposed action. 
Notwithstanding the preceding sentence the costs of such 
measures shall not be treated as project costs for the purpose 
of computing benefit-cost or other ratios for the proposed 
action. Any applicant may request the Secretary to carry out 
such mitigation and enhancement measures. The costs incurred by 
the Secretary in carrying out any such measures shall be paid 
by the applicant receiving the exemption. No later than one 
year after the granting of an exemption, the exemption 
applicant shall submit to the Council on Environmental Quality 
a report describing its compliance with the mitigation and 
enhancement measures prescribed by this section. Such report 
shall be submitted annually until all such mitigation and 
enhancement measures have been completed. Notice of the public 
availability of such reports shall be published in the Federal 
Register by the Council on Environmental Quality.
  (m) Notice.--The 60-day notice requirement of section 11(g) 
of this Act shall not apply with respect to review of any final 
determination of the Committee under subsection (h) of this 
section granting an exemption from the requirements of 
subsection (a)(2) of this section.
  (n) Judicial Review.--Any person, as defined by [section 
3(13)] section 3(14) of this Act, may obtain judicial review, 
under chapter 7 of title 5 of the United States Code, of any 
decision of the Endangered Species Committee under subsection 
(h) in the United States Court of Appeals for (1) any circuit 
wherein the agency action concerned will be, or is being, 
carried out, or (2) in any case in which the agency action will 
be, or is being, carried out outside of any circuit, the 
District of Columbia, by filing in such court within 90 days 
after the date of issuance of the decision, a written petition 
for review. A copy of such petition shall be transmitted by the 
clerk of the court to the Committee and the Committee shall 
file in the court the record in the proceeding, as provided in 
section 2112, of title 28, United States Code. Attorneys 
designated by the Endangered Species Committee may appear for, 
and represent the Committee in any action for review under this 
subsection.
  (o) Exemption as Providing Exception on Taking of Endangered 
Species.--Notwithstanding sections 4(d) and 9(a)(1)(B) and (C) 
of this Act, sections 101 and 102 of the Marine Mammal 
Protection Act of 1972, or any regulation promulgated to 
implement any such section--
          (1) any action for which an exemption is granted 
        under subsection (h) of this section shall not be 
        considered to be a taking of any endangered species or 
        threatened species with respect to any activity which 
        is necessary to carry out such action; and
          (2) any taking that is in compliance with the terms 
        and conditions specified in a written statement 
        provided under subsection (b)(4)(iv) of this section 
        shall not be considered to be a prohibited taking of 
        the species concerned.
  (p) Exemptions in Presidentially Declared Disaster Areas.--In 
any area which has been declared by the President to be a major 
disaster area under the Disaster Relief and Emergency 
Assistance Act, the President is authorized to make the 
determinations required by subsections (g) and (h) of this 
section for any project for the repair or replacement of a 
public facility substantially as it existed prior to the 
disaster under section 405 or 406 of the Disaster Relief and 
Emergency Assistance Act, and which the President determines 
(1) is necessary to prevent the recurrence of such a natural 
disaster and to reduce the potential loss of human life, and 
(2) to involve an emergency situation which does not allow the 
ordinary procedures of this section to be followed. 
Notwithstanding any other provision of this section, the 
Committee shall accept the determinations of the President 
under this subsection.

           *       *       *       *       *       *       *


                       penalties and enforcement

  Sec. 11. (a) Civil Penalties.--(1) Any person who knowingly 
violates, and any person engaged in business as an importer or 
exporter of fish, wildlife, or plants who violates, any 
provision of this Act, or any provision of any permit or 
certificate issued hereunder, or of any regulation issued in 
order to implement subsection (a)(1)(A), (B), (C), (D), (E), or 
(F), (a)(2(A), (B), (C), or (D), (c), (d), (other than 
regulation relating to recordkeeping or filing of reports), 
(f), or (g) of section 9 of this Act, may be assessed a civil 
penalty by the Secretary of not more than $25,000 for each 
violation. Any person who knowingly violates, and any person 
engaged in business as an importer or exporter of fish, 
wildlife, or plants who violates, any provision of any other 
regulation issued under this Act may be assessed a civil 
penalty by the Secretary of not more than $12,000 for each such 
violation. Any person who otherwise violates any provision of 
this Act, or any regulation, permit, or certificate issued 
hereunder, may be assessed a civil penalty by the Secretary of 
not more than $500 for each such violation. No penalty may be 
assessed under this subsection unless such person is given 
notice and opportunity for a hearing with respect to such 
violation. Each violation shall be a separate offense. Any such 
civil penalty may be remitted or mitigated by the Secretary. 
Upon any failure to pay a penalty assessed under this 
subsection, the Secretary may request the Attorney General to 
institute a civil action in a district court of the United 
States for any district in which such person is found, resides, 
or transacts business to collect the penalty and such court 
shall have jurisdiction to hear and decide any such action. The 
court shall hear such action on the record made before the 
Secretary and shall sustain his action if it is supported by 
substantial evidence on the record considered as a whole.
  (2) Hearings held during proceedings for the assessment of 
civil penalties by paragraph (1) of this subsection shall be 
conducted in accordance with section 554 of title 5, United 
States Code. The Secretary may issue subpoenas for the 
attendance and testimony of witnesses and the production of 
relevant papers, books, and documents, and administer oaths. 
Witnesses summoned shall be paid the same fees and mileage that 
are paid to witnesses in the courts of the United States. In 
case of contumacy or refusal to obey a subpoena served upon any 
person pursuant to this paragraph, the district court of the 
United States for any district in which such person is found or 
resides or transacts business, upon application by the United 
States and after notice to such person, shall have jurisdiction 
to issue an order requiring such person to appear and give 
testimony before the Secretary or to appear and produce 
documents before the Secretary, or both, and any failure to 
obey such order of the court may be punished by such court as a 
contempt thereof.
  (3) Notwithstanding any other provision of this Act, no civil 
penalty shall be imposed if it can be shown by a preponderance 
of the evidence that the defendant committed an act based on a 
good faith belief that he was acting to protect himself or 
herself, a member of his or her family, or any other individual 
from bodily harm, from any endangered or threatened species.
  (b) Criminal Violations.--(1) Any person who knowingly 
violates any provision of this Act, of any permit or 
certificate issued hereunder, or of any regulation issued in 
order to implement subsection (a)(1)(A), (B), (C), (D), (E), or 
(F); (a)(2)(A), (B), (C), or (D), (c), (d) (other than a 
regulation relating to recordkeeping, or filing of reports), 
(f), or (g) of section 9 of this Act shall, upon conviction, be 
fined not more than $50,000 or imprisoned for not more than one 
year, or both. Any person who knowingly violates any provision 
of any other regulation issued under this Act shall, upon 
conviction, be fined not more than $25,000 or imprisoned for 
not more than six months, or both.
  (2) The head of any Federal agency which has issued a lease, 
license, permit, or other agreement authorizing a person to 
import or export fish, wildlife, or plants, or to operate a 
quarantine station for imported wildlife, or authorizing the 
use of Federal lands, including grazing of domestic livestock, 
to any person who is convicted of a criminal violation of this 
Act or any regulation, permit, or certificate issued hereunder 
may immediately modify, suspend, or revoke each lease, license, 
permit, or other agreement. The Secretary shall also suspend 
for a period of up to one year, or cancel, any Federal hunting 
or fishing permits or stamps issued to any person who is 
convicted of a criminal violation of any provision of this Act 
or any regulation, permit, or certificate issued hereunder. The 
United States shall not be liable for the payments of any 
compensation, reimbursement, or damages in connection with the 
modification, suspension, or revocation of any leases, 
licenses, permits, stamps, or other agreements pursuant to this 
section.
  (3) Notwithstanding any other provision of this Act, it shall 
be a defense to prosecution under this subsection if the 
defendant committed the offense based on a good faith belief 
that he was acting to protect himself or herself, a member of 
his or her family, or any other individual, from bodily harm 
from any endangered or threatened species.
  (c) District Court Jurisdiction.--The several district courts 
of the United States; including the courts enumerated in 
section 460 of title 28, United States Code, shall have 
jurisdiction over any actions arising under this Act. For the 
purpose of this Act, American Samoa shall be included within 
the judicial district of the District Court of the United 
States for the District of Hawaii.
  (d) Rewards and Certain Incidental Expenses.--The Secretary 
or the Secretary of the Treasury shall pay, from sums received 
as penalties, fines, or forfeitures of property for any 
violations of this chapter or any regulation issued hereunder 
(1) a reward to any person who furnishes information which 
leads to an arrest, a criminal conviction, civil penalty 
assessment, or forfeiture of property for any violation of this 
chapter or any regulation issued hereunder, and (2) the 
reasonable and necessary costs incurred by any person in 
providing temporary care for any fish, wildlife, or plant 
pending the disposition of any civil or criminal proceeding 
alleging a violation of this chapter with respect to that fish, 
wildlife, or plant. The amount of the reward, if any, is to be 
designated by the Secretary or the Secretary of the Treasury, 
as appropriate. Any officer or employee of the United States or 
any State or local government who furnishes information or 
renders service in the performance of his official duties is 
ineligible for payment under this subsection. Whenever the 
balance of sums received under this section and section 6(d) of 
the Act of November 16, 1981 (16 U.S.C. 3375(d)) as penalties 
or fines, or from forfeitures of property, exceed $500,000, the 
Secretary of the Treasury shall deposit an amount equal to such 
excess balance in the cooperative endangered species 
conservation fund established under section 6(i) of this Act.
  (e) Enforcement.--(1) The provisions of this Act and any 
regulations or permits issued pursuant thereto shall be 
enforced by the Secretary, the Secretary of the Treasury, or 
the Secretary of the Department in which the Coast Guard is 
operating, or all such Secretaries. Each such Secretary may 
utilize by agreement, with or without reimbursement, the 
personnel, services, and facilities of any other Federal agency 
or any State agency for purposes of enforcing this Act.
  (2) The judges of the district courts of the United States 
and the United States magistrates may within their respective 
jurisdictions, upon proper oath or affirmation showing probable 
cause, issue such warrants or other process as may be required 
for enforcement of this Act and any regulation issued 
thereunder.
  (3) Any person authorized by the Secretary, the Secretary of 
the Treasury, or the Secretary of the Department in which the 
Coast Guard is operating, to enforce this Act may detain for 
inspection and inspect any package, crate, or other container, 
including its contents, and all accompanying documents, upon 
importation or exportation. Such persons may make arrests 
without a warrant for any violation of this Act if he has 
reasonable grounds to believe that the person to be arrested is 
committing the violation in his presence or view and may 
execute and serve any arrest warrant, search warrant, or other 
warrant or civil or criminal process issued by any officer or 
court of competent jurisdiction for enforcement of this Act. 
Such person so authorized may search and seize, with or without 
a warrant, as authorized by law. Any fish, wildlife, property, 
or item so seized shall be held by any person authorized by the 
Secretary, the Secretary of the Treasury, or the Secretary of 
the Department in which the Coast Guard is operating pending 
disposition of civil or criminal proceedings, or the 
institution of an action in rem for forfeiture of such fish, 
wildlife, property, or item pursuant to paragraph (4) of the 
subsection; except that the Secretary may, in lieu of holding 
such fish, wildlife, property, or item, permit the owner or 
consignee to post a bond or other surety satisfactory to the 
Secretary, but upon forfeiture of any such property to the 
United States, or the abandonment or waiver of any claim to any 
such property, it shall be disposed of (other than by sale to 
the general public) by the Secretary in such a manner, 
consistent with the purposes of this Act, as the Secretary 
shall by regulation prescribe.
  (4)(A) All fish or wildlife or plants taken, possessed, sold, 
purchased, offered for sale or purchase, transported, 
delivered, received, carried, shipped, exported, or imported 
contrary to the provisions of this Act, any regulation made 
pursuant thereto, or any permit or certificate issued hereunder 
shall be subject to forfeiture to the United States.
  (B) All guns, traps, nets, and other equipment, vessels, 
vehicles, aircraft, and other means of transportation used to 
aid the taking, possessing, selling, purchasing, offering for 
sale or purchase, transporting, delivering, receiving, 
carrying, shipping, exporting, or importing of any fish or 
wildlife or plants in violation of this Act, any regulation 
made pursuant thereto, or any permit or certificate issued 
thereunder shall be subject to forfeiture to the United States 
upon conviction of a criminal violation pursuant to section 
11(b)(1) of this Act.
  (5) All provisions of law relating to the seizure, 
forfeiture, and condemnation of a vessel for violation of the 
customs laws, the disposition of such vessel or the proceeds 
from the sale thereof, and the remission or mitigation of such 
forfeiture, shall apply to the seizures and forfeitures 
incurred, or alleged to have been incurred, under the 
provisions of this Act, insofar as such provisions of law are 
applicable and not inconsistent with the provisions of this 
Act; except that all powers, rights, and duties conferred or 
imposed by the customs laws upon any officer or employee of the 
Treasury Department shall, for the purposes of this Act, be 
exercised or performed by the Secretary or by such persons as 
he may designate.
  (6) The Attorney General of the United States may seek to 
enjoin any person who is alleged to be in violation of any 
provision of this Act or regulation issued under authority 
thereof.
  (f) Regulations.--The Secretary, the Secretary of the 
Treasury, and the Secretary of the Department in which the 
Coast Guard is operating, are authorized to promulgate such 
regulations as may be appropriate to enforce this Act, and 
charge reasonable fees for expenses to the Government connected 
with permits or certificates authorized by this Act including 
processing applications and reasonable inspections, and with 
the transfer, board, handling, or storage of fish or wildlife 
or plants and evidentiary items seized and forfeited under this 
Act. All such fees collected pursuant to this subsection shall 
be deposited in the Treasury to the credit of the appropriation 
which is current and chargeable for the cost of furnishing the 
services. Appropriated funds may be expended pending 
reimbursement from parties in interest.
  (g) Citizen Suits.--(1) Except as provided in paragraph (2) 
of this subsection any person may commence a civil suit on his 
own behalf--
          (A) to enjoin any person, including the United States 
        and any other governmental instrumentality or agency 
        (to the extent permitted by the eleventh amendment to 
        the Constitution), who is alleged to be in violation of 
        any provision of this Act or regulation issued under 
        the authority thereof; or
          (B) to compel the Secretary to apply, pursuant to 
        section 6(g)(2)(B)(ii) of this Act, the prohibitions 
        set forth in or authorized pursuant to section 4(d) or 
        section 9(a)(1)(B) of this Act with respect to the 
        taking of any resident endangered species or threatened 
        species within any State; or
          (C) against the Secretary where there is alleged a 
        failure of the Secretary to perform any act or duty 
        under section 4 which is not discretionary with the 
        Secretary.
The district courts shall have jurisdiction, without regard to 
the amount in controversy or the citizenship of the parties, to 
enforce any such provision or regulation or to order the 
Secretary to perform such act or duty, as the case may be. In 
any civil suit commenced under subparagraph (B) the district 
court shall compel the Secretary to apply the prohibition 
sought if the court finds that the allegation that an emergency 
exists is supported by substantial evidence.
  (2)(A) No action may be commenced under subparagraph (1)(A) 
of this section--
          (i) prior to sixty days after written notice of the 
        violation has been given to the Secretary, and to any 
        alleged violator of any such provision or regulation;
          (ii) if the Secretary has commenced action to impose 
        a penalty pursuant to subsection (a) of this section; 
        or
          (iii) if the United States has commenced and is 
        diligently prosecuting a criminal action in a court of 
        the United States or a State to redress a violation of 
        any such provision or regulation.
  (B) No action may be commenced under subparagraph (1)(B) of 
this section--
          (i) prior to sixty days after written notice has been 
        given to the Secretary setting forth the reasons why an 
        emergency is thought to exist with respect to an 
        endangered species or a threatened species in the State 
        concerned; or
          (ii) if the Secretary has commenced and is diligently 
        prosecuting action under section 6(g)(2)(B)(ii) of this 
        Act to determine whether any such emergency exists.
  (C) No action may be commenced under subparagraph (1)(C) of 
this section prior to sixty days after written notice has been 
given to the Secretary; except that such action may be brought 
immediately after such notification in the case of an action 
under this section respecting an emergency posing a significant 
risk to the well-being of any species of fish or wildlife or 
plants.
  (3)(A) Any suit under this subsection may be brought in the 
judicial district in which the violation occurs.
  (B) In any such suit under this subsection in which the 
United States is not a party, the Attorney General, at the 
request of the Secretary, may intervene on behalf of the United 
States as a matter of right.
  (4) The court, in issuing any final order in any suit brought 
pursuant to paragraph (1) of this subsection, may award costs 
of litigation (including reasonable attorney and expert witness 
fees) [to any party, whenever the court determines such award 
is appropriate.] to any prevailing party in accordance with 
section 2412 of title 28, United States Code.
  (5) The injunctive relief provided by this subsection shall 
not restrict any right which any person (or class of persons) 
may have under any statute or common law to seek enforcement of 
any standard or limitation or to seek any other relief 
(including relief against the Secretary or a State agency).
  (h) Coordination With Other Laws.--The Secretary of 
Agriculture and the Secretary shall provide for appropriate 
coordination of the administration of this Act with the 
administration of the animal quarantine laws (as defined in 
section 2509(f) of the Food, Agriculture, Conservation, and 
Trade Act of 1990 (21 U.S.C. 136a(f)) and section 306 of the 
Tariff Act of 1930 (19 U.S.C. 1306). Nothing in this Act or any 
amendment made by this Act shall be construed as superseding or 
limiting in any manner the functions of the Secretary of 
Agriculture under any other law relating to prohibited or 
restricted importations or possession of animals and other 
articles and no proceeding or determination under this Act 
shall preclude any proceeding or be considered determinative of 
any issue of fact or law in any proceeding under any Act 
administered by the Secretary of Agriculture. Nothing in this 
Act shall be construed as superseding or limiting in any manner 
the functions and responsibilities of the Secretary of the 
Treasury under the Tariff Act of 1930, including, without 
limitation, section 527 of that Act (19 U.S.C. 1527), relating 
to the importation of wildlife taken, killed, possessed, or 
exported to the United States in violation of the laws or 
regulations of a foreign country.

           *       *       *       *       *       *       *


                         [conforming amendments

  [Sec. 13. (a) Subsection 4(c) of the Act of October 15,1966 
(80 Stat. 928, 16 U.S.C. 668dd(c)), is further amended by 
revising the second sentence thereof to read as follows: ``With 
the exception of endangered species and threatened species 
listed by the Secretary pursuant to section 4 of the Endangered 
Species Act of 1973 in States wherein a cooperative agreement 
does not exist pursuant to section 6(c) of that Act, nothing in 
this Act shall be construed to authorize the Secretary to 
control or regulate hunting or fishing of resident fish and 
wildlife on lands not within the system.''
  [(b) Subsection 10(a) of the Migratory Bird Conservation Act 
(45 Stat. 1224, 16 U.S.C. 715i(a)) and subsection 401(a) of the 
Act of June 15, 1935 (49 Stat. 383,16 U.S.C. 715s(a)), are each 
amended by Striking out ``threatened with extinction,'' and 
inserting in lieu thereof the following: ``listed pursuant to 
section 4 of the Endangered Species Act of 1973 as endangered 
species or threatened species,''.
  [(c) Section 7(a)(1) of the Land and Water Conservation Fund 
Act of 1965 (16 U.S.C. 4601-9(a) (1)) is amended by striking 
out:
  [`` Threatened Species.--For any national area which may be 
authorized for the preservation of species of fish or wildlife 
that are threatened with extinction.and inserting in lieu 
thereof the following:
  [`` Endangered Species and Threatened Species.--For lands, 
waters, or interests therein, the acquisition of which is 
authorized under section 5 (a) of the Endangered Species Act of 
1973, needed for the purpose of conserving endangered or 
threatened species of fish or wildlife or plants.
  [(d) The first sentence of section 2 of the Act of September 
28,1962, as amended (76 Stat. 653, 16 U.S.C. 460k-l), is 
amended to read as follow:
  [``The Secretary is authorized to acquire areas of land, or 
interests therein, which are suitable for--
          [``(1) incidental fish and wildlife-oriented 
        recreational development,
          [``(2) the protection of natural resources,
          [``(3) the conservation of endangered species or 
        threatened species listed by the Secretary pursuant to 
        section 4 of the Endangered Species Act of 1973, or
          [``(4) carrying out two or more of the purposes set 
        forth in paragraphs (1) through (3) of this section, 
        and are adjacent to, or within, the said conservation 
        areas, except that the acquisition of any land or 
        interest therein pursuant to this section shall be 
        accomplished only with such funds as may be 
        appropriated therefor by the Congress or donated for 
        such purposes, but such property shall not be acquired 
        with funds obtained from the sale of Federal migratory 
        bird hunting stamps.
  [(e) The Marine Mammal Protection Act of 1972 (16 U.S.C. 
1361-1407) is amended--
          [(1) by striking out ``Endangered Species 
        Conservation Act of 1969'' in section 3(1)(B) thereof 
        and inserting in lieu thereof the following: 
        ``Endangered Species Act of 1973'';
          [(2) by striking out ``pursuant to the Endangered 
        Species Conservation Act of 1969'' in section 
        101(a)(3)(B) thereof and inserting in lieu thereof the 
        following: ``or threatened species pursuant to the 
        Endangered Species Act of 1973'';
          [(3) by striking out ``endangered under the 
        Endangered Species Conservation Act of 1969'' in 
        section 102(b)(3) thereof and inserting in lieu thereof 
        the following: ``an endangered species or threatened 
        species pursuant to the Endangered Species Act of 
        1973''; and
          [(4) by striking out ``of the Interior such revisions 
        of the Endangered Species List, authorized by the 
        Endangered Species Conservation Act of 1969,'' in 
        section 202(a)(6) thereof and inserting in lieu thereof 
        the following: ``such revisions of the endangered 
        species list and threatened species list published 
        pursuant to section 4(c)(1) of the Endangered Species 
        Act of 1973''.
  [(f) Section 2(l) of the Federal Environmental Pesticide 
Control Act of 1972 (Public Law 92-516) is amended by striking 
out the words ``by the Secretary of the Interior under Public 
Law 91- 135'' and inserting in lieu thereof the words ``or 
threatened by the Secretary pursuant to the Endangered Species 
Act of 1973''. ]

SEC. 13. DISCLOSURE OF EXPENDITURES.

  (a) Requirement.--The Secretary of the Interior, in 
consultation with the Secretary of Commerce, shall--
          (1) not later than 90 days after the end of each 
        fiscal year, submit to the Committee on Natural 
        Resources of the House of Representatives and the 
        Committee on Energy and Natural Resources of the Senate 
        an annual report detailing Federal Government 
        expenditures for covered suits during the preceding 
        fiscal year (including the information described in 
        subsection (b)); and
          (2) make publicly available through the Internet a 
        searchable database of the information described in 
        subsection (b).
  (b) Included Information.--The report shall include--
          (1) the case name and number of each covered suit, 
        and a hyperlink to the record or decision for each 
        covered suit (if available);
          (2) a description of the claims in each covered suit;
          (3) the name of each covered agency whose actions 
        gave rise to a claim in a covered suit;
          (4) funds expended by each covered agency 
        (disaggregated by agency account) to receive and 
        respond to notices referred to in section 11(g)(2) or 
        to prepare for litigation of, litigate, negotiate a 
        settlement agreement or consent decree in, or provide 
        material, technical, or other assistance in relation 
        to, a covered suit;
          (5) the number of full-time equivalent employees that 
        participated in the activities described in paragraph 
        (4);
          (6) attorneys fees and other expenses (disaggregated 
        by agency account) awarded in covered suits, including 
        any consent decrees or settlement agreements 
        (regardless of whether a decree or settlement agreement 
        is sealed or otherwise subject to nondisclosure 
        provisions), including the bases for such awards; and
          (7) any Federal funding used by a person or a 
        governmental or nongovernmental entity in bringing a 
        claim in a covered suit.
  (c) Requirement to Provide Information.--The head of each 
covered agency shall provide to the Secretary in a timely 
manner all information requested by the Secretary to comply 
with the requirements of this section.
  (d) Limitation on Disclosure.--Notwithstanding any other 
provision of this section, this section shall not affect any 
restriction in a consent decree or settlement agreement on the 
disclosure of information that is not described in subsection 
(b).
  (e) Definitions.--
          (1) Covered agency.--The term ``covered agency'' 
        means any agency of the Department of the Interior, the 
        Forest Service, the National Marine Fisheries Service, 
        the Bonneville Power Administration, the Western Area 
        Power Administration, the Southwestern Power 
        Administration, or the Southeastern Power 
        Administration.
          (2) Covered suit.--The term ``covered suit'' means 
        any civil action containing a claim against the Federal 
        Government, in which the claim arises under this Act 
        and is based on the action of a covered agency.

           *       *       *       *       *       *       *


                            DISSENTING VIEWS

    H.R. 3608 would undermine the scientific integrity of the 
Endangered Species Act (ESA) by defining ``best available 
scientific and commercial data'' as data provided by affected 
states, tribes, and local government, even if that is not the 
case. Scientific data submitted by non-government experts would 
be deemed less credible. This mandate could force the agencies 
to make decisions based on data that is neither the best nor 
scientific.
    This bill also requires federal agencies to track, report 
to Congress, and make available online funds expended to 
respond to ESA lawsuits, the number of employees dedicated to 
litigation, and attorney's fees awarded during ESA litigation 
and settlement agreements. This legislation also places a $125 
per hour cap on attorney's fees for suits filed under the ESA. 
This bill purports to increase transparency, but would do so 
only in a selective fashion, as it narrowly targets lawsuits 
against the agencies brought under the citizen suit provisions 
of the ESA. Notably absent is the requirement that the agency 
report expenditures for when the agency is the plaintiff or 
taking an enforcement action against a party. This bill neither 
serves any compelling purpose in furthering the goals of 
species recovery under the ESA nor provides a comprehensive 
look into agency litigation expenditures.
    Furthermore, H.R. 3608 undermines the citizen suit 
provision in the ESA by substituting fee recovery language from 
the Equal Access Justice Act (EAJA), thereby making it 
difficult for any prevailing party to recover reasonable 
attorney's fees and costs.
    Finally, requiring an EAJA fee-shifting regime but failing 
to specify which section of the EAJA, as H.R. 3608 does, may 
end up requiring the agencies to pay awards to prevailing 
parties from their agency appropriations, as opposed to the 
Equal Access to Judgment Fund. This would detract from the 
agencies core mission of recovering species. For these reasons, 
we oppose the bill as reported.
                                   Raul M. Grijalva,
                                           Ranking Member, Committee on 
                                               Natural Resources.
                                   Jared Huffman.
                                   A. Donald McEachin.
                                   Wm. Lacy Clay.
                                   Grace F. Napolitano.
                                   Nanette Diaz Barragan.
                                   Niki Tsongas.
                                   Donald S. Beyer, Jr.