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115th Congress   }                                      {       Report
                        HOUSE OF REPRESENTATIVES
 2d Session      }                                      {      115-560

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



 
                           LISTING REFORM ACT

                                _______
                                

 February 15, 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. 717]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (H.R. 717) to amend the Endangered Species Act of 1973 
to require review of the economic cost of adding a species to 
the list of 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. 717 is to amend the Endangered Species 
Act of 1973 to require review of the economic cost of adding a 
species to the list of endangered species or threatened 
species.

                  Background and Need for Legislation

    Pursuant to the Endangered Species Act of 1973 (ESA, 16 
U.S.C. 1531 et seq.), the Secretary of the Interior or 
Secretary of Commerce does not consider economic factors when 
listing a species as endangered or threatened. Species 
listings, however, impact our national economy and can restrict 
the ability of State and local entities to provide for the 
public health and safety. Species listings also can curtail the 
right of industry and private landowners to utilize property 
and resources to generate income or to increase local 
development. The ESA's prohibition of economic considerations 
in listing decisions of endangered or threatened species should 
therefore be addressed.
    H.R. 717 authorizes the Secretary of the Interior to 
consider economic impacts in listing decisions for threatened 
species, and allow preclusion of the listing if the likelihood 
of significant, cumulative economic effects would result from 
the listing, or from the resulting designation of critical 
habitat for that species. The bill also prohibits 
reconsideration of the decision unless the Secretary finds 
there is danger of species extinction, or receives a new 
petition that includes possible alternative actions to avoid 
the economic impact of the listing.
    The ESA also requires the federal government to make an 
initial decision concerning listing or delisting of a species 
within 90 days of receiving a petition. The agencies then have 
up to 12 months to issue a final determination whether a 
listing or delisting is warranted, not warranted, or warranted 
but precluded from listing at that time, in which case species 
are then placed on a candidate list. However, when the federal 
government does not meet these deadlines, it becomes vulnerable 
to litigation.
    Environmental lawsuits serve as a fundraising and revenue-
generating tool for non-governmental organizations, and the 
number of petitions agencies receive each year from these 
groups has generally increased since the ESA's enactment. 
According to a February 2017 Government Accountability Office 
report, the U.S. Fish and Wildlife Service (FWS) at the 
Department of the Interior received 170 petitions to list 1,446 
species between fiscal years 2005 and 2010 alone, some of which 
called for listing of hundreds of species at one time.
    As nongovernmental organizations overwhelm agencies with 
large numbers of petitions for listings, the agencies have not 
been able to meet their statutory deadlines to properly review 
the data and science supporting a petition to list. Instead, 
they have settled with the groups, leading to multi-species 
mega-listings conducted under non-transparent circumstances. 
Such listings are to the detriment of many State and local 
communities that have no opportunity to submit comments or 
otherwise provide stakeholder input.
    H.R. 717 authorizes FWS and National Marine Fisheries 
Service (NMFS) of the Department of Commerce to prioritize 
petitions to list a species as endangered or threatened under 
ESA at their discretion, as opposed to the current order in 
which a petition was received. Such discretion will allow the 
agencies increased flexibility to process petitions. The bill 
also removes the current 12-month deadline for FWS and NMFS to 
process petitions and instead requires listing petitions be 
processed as expeditiously as practicable. This will reduce the 
number of lawsuits that can be filed based on lapsed deadlines. 
The bill also requires FWS and NMFS to refrain from 
prioritizing listing petitions over delisting petitions.

                      Section-by-Section Analysis


Section 1. Short title

    The Act may be referred to as the Listing Reform Act.

Section 2. Consideration of economic cost in review of Listing 
        Petitions Under Endangered Species Act of 1973

    Subsection (a) removes the current ESA statutory deadlines 
by which the relevant Secretary is required to make a decision 
and take action on a listing petition. Instead the bill 
authorizes the Secretary to prioritize consideration of 
petitions other than in the order they are received and as 
expeditiously as practicable. However, the Secretary must not 
give general priority to petitions to add a species to the 
endangered or threatened list over a petition to remove a 
species from such list. This ensures one category of listing 
petitions is not significantly prioritized over others.
    Subsection (b) amends ESA to allow for the consideration of 
significant, cumulative economic effects that would result from 
the listing of a species as `threatened' or subsequent 
designation of critical habitat for the species. This 
subsection also outlines the conditions under which the 
relevant Secretary may reconsider a decision to preclude a 
species from the threatened list based on significant economic 
effects. These conditions include a determination that there is 
endangerment of extinction of the species or if the Secretary 
receives a new petition for the species. This petition must: 1) 
contain an analysis of the areas affected by potential actions 
resulting from the ESA listing; and 2) identify alternative 
actions that avoid the significant, cumulative economic 
effects.

                            Committee Action

    H.R. 717 was introduced on January 27, 2017, by Congressman 
Pete Olson (R-TX). The bill was referred to the Committee on 
Natural Resources. On July 19, 2017, the Committee held a 
hearing on the bill. On October 3, 2017, the Natural Resources 
Committee met to consider the bill. Congressman Garret Graves 
(R-LA) offered and withdrew an amendment designated 063. No 
further amendments were offered and the bill was ordered 
favorably reported to the House of Representatives on October 
4, 2017, by a bipartisan roll call vote of 22 ayes and 13 noes, 
as follows:


            Committee Oversight Findings and Recommendations

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

      Compliance With House Rule XIII and Congressional Budget Act

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

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, December 8, 2017.
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. 717, the Listing 
Reform Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Jeff LaFave.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

H.R. 717--Listing Reform Act

    Summary: H.R. 717 would authorize the Secretary of the 
Interior to make a determination under the Endangered Species 
Act (ESA) that placing species on the endangered or threatened 
list would be warranted but precluded because the action would 
have significant effects on the economy.
    Using information from the U.S. Fish and Wildlife Service 
(USFWS) and assuming appropriation of the necessary amounts, 
CBO estimates that implementing the bill would cost $16 million 
over the 2018-2022 period. Enacting the bill would not affect 
direct spending or revenues; therefore, pay-as-you-go 
procedures do not apply.
    CBO estimates that enacting H.R. 717 would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2028.
    H.R. 717 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
    Estimated cost to the Federal Government: The estimated 
budgetary effect of H.R. 717 is shown in the following table. 
The costs of this legislation fall within budget function 300 
(natural resources and environment).

----------------------------------------------------------------------------------------------------------------
                                                                    By fiscal year, in millions of dollars--
                                                              --------------------------------------------------
                                                                2018    2019    2020    2021    2022   2018-2022
----------------------------------------------------------------------------------------------------------------
                                 INCREASES IN SPENDING SUBJECT TO APPROPRIATION
 
Estimated Authorization Level................................       4       4       4       3       3         18
Estimated Outlays............................................       2       4       4       3       3         16
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: For this estimate, CBO assumes that the 
bill will be enacted early in calendar year 2018 and that the 
necessary amounts will be appropriated for each fiscal year. 
Estimated outlays are based on historical spending patterns for 
similar activities.
    H.R. 717 would authorize the Secretary to prevent the 
listing of species under the ESA if the action would have 
significant effects on the economy, including effects on 
property values, employment, or state and local revenue 
collections. CBO expects that the agency will determine that, 
on average, about 20 new species each year warrant listing 
under the ESA over the 2018-2022 period. CBO estimates that the 
economic analyses necessary to determine whether those species 
should be listed under ESA would cost $150,000 each. In 
addition, CBO expects that the agency would complete 25 
additional analyses over the 2018-2020 period for listing 
determinations in progress at the time the bill is enacted. On 
that basis CBO estimates that implementing the bill would cost 
$16 million over the 2018-2022 period.
    Pay-As-You-Go considerations: None.
    Increase in long-term direct spending and deficits: CBO 
estimates that enacting H.R. 717 would not increase net direct 
spending or on-budget deficits in any of the four consecutive 
10-year periods beginning in 2028.
    Mandates: H.R. 717 contains no intergovernmental or 
private-sector mandates as defined in UMRA.
    Estimate prepared by: Federal Costs: Jeff LaFave; Mandates: 
Zach Byrum.
    Estimate approved 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 review of the economic 
cost of adding a species to the list of 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 does not contain any 
directed rule makings.
    Duplication of Existing Programs. This bill does not 
establish or reauthorize a program of the federal government 
known to be duplicative of another program. Such program was 
not included in any report from the Government Accountability 
Office to Congress pursuant to section 21 of Public Law 111-139 
or identified in the most recent Catalog of Federal Domestic 
Assistance published pursuant to the Federal Program 
Information Act (Public Law 95-220, as amended by Public Law 
98-169) as relating to other programs.

                Preemption of State, Local or Tribal Law

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

                        Changes in Existing Law


         Changes in Existing Law Made by the Bill, as Reported

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

                     ENDANGERED SPECIES ACT OF 1973



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

  Sec. 4. (a) General.--(1) The Secretary shall by regulation 
promulgated in accordance with subsection (b) determine whether 
any species is an endangered species or a threatened species 
because of any of the following factors:
          (A) the present or threatened destruction, 
        modification, or curtailment of its habitat or range;
          (B) overutilization for commercial, recreational, 
        scientific, or educational purposes;
          (C) disease or predation;
          (D) the inadequacy of existing regulatory mechanisms; 
        or
          (E) other natural or manmade factors affecting its 
        continued existence.
  (2) With respect to any species over which program 
responsibilities have been vested in the Secretary of Commerce 
pursuant to Reorganization Plan Numbered 4 of 1970--
          (A) in any case in which the Secretary of Commerce 
        determines that such species should--
                  (i) be listed as an endangered species or a 
                threatened species, or
                  (ii) be changed in status from a threatened 
                species to an endangered species, he shall so 
                inform the Secretary of the Interior, who shall 
                list such species in accordance with this 
                section;
          (B) in any case in which the Secretary of Commerce 
        determines that such species should--
                  (i) be removed from any list published 
                pursuant to subsection (c) of this section, or
                  (ii) be changed in status from an endangered 
                species to a threatened species, he shall 
                recommend such action to the Secretary of the 
                Interior, and the Secretary of the Interior, if 
                he concurs in the recommendation, shall 
                implement such action; and
          (C) the Secretary of the Interior may not list or 
        remove from any list any such species, and may not 
        change the status of any such species which are listed, 
        without a prior favorable determination made pursuant 
        to this section by the Secretary of Commerce.
  (3)(A) The Secretary, by regulation promulgated in accordance 
with subsection (b) and to the maximum extent prudent and 
determinable--
          (i) shall, concurrently with making a determination 
        under paragraph (1) that a species is an endangered 
        species or a threatened species, designate any habitat 
        of such species which is then considered to be critical 
        habitat; and
          (ii) may, from time-to-time thereafter as 
        appropriate, revise such designation.
  (B)(i) The Secretary shall not designate as critical habitat 
any lands or other geographical areas owned or controlled by 
the Department of Defense, or designated for its use, that are 
subject to an integrated natural resources management plan 
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), 
if the Secretary determines in writing that such plan provides 
a benefit to the species for which critical habitat is proposed 
for designation.
  (ii) Nothing in this paragraph affects the requirement to 
consult under section 7(a)(2) with respect to an agency action 
(as that term is defined in that section).
  (iii) Nothing in this paragraph affects the obligation of the 
Department of Defense to comply with section 9, including the 
prohibition preventing extinction and taking of endangered 
species and threatened species.
  (b) Basis for Determinations.--(1)(A) The Secretary shall 
make determinations required by subsection (a)(1) solely 
(except as provided in clause (iv) of paragraph (3)(B)) 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] (i) 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.
  (ii) The Secretary may prioritize the consideration of 
petitions under this subparagraph other than in the order in 
which the petitions are received, except the Secretary may not 
give general priority to petitions to add species to such a 
list over petitions to remove a species from such a list.
  (B) [Within 12 months] As expeditiously as practicable 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.
          (iv)(I) In the case of a petition to add a species to 
        a list of threatened species, the petitioned action may 
        be warranted but is precluded due to the likelihood of 
        significant, cumulative economic effects that would 
        result from listing or, to the extent it can be 
        determined, from the likely resulting designation of 
        critical habitat of the species.
          (II) The Secretary may not reconsider such finding 
        unless--
                  (aa) the Secretary determines there is 
                endangerment of extinction of the species; or
                  (bb) the Secretary receives a new petition to 
                add such species to such list that includes a 
                written qualitative and quantitative analyses 
                reexamining the incremental and significant, 
                cumulative economic effects of likely actions 
                to protect the petitioned species and its 
                potential habitat upon each State and locality 
                that is affected by the petitioned species 
                listing and that, in the opinion of the 
                Secretary, credibly concludes that alternative 
                actions are possible other than those resulting 
                in significant, cumulative economic effects.
          (III) In this clause the term ``significant, 
        cumulative economic effects'' includes economic effects 
        on--
                  (aa) public land and, to the maximum extent 
                practicable, private land and property values;
                  (bb) the provision of water, power, or other 
                public services;
                  (cc) employment; and
                  (dd) revenues available for State and local 
                governments.
  (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.
  (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.

           *       *       *       *       *       *       *


                            DISSENTING VIEWS

    H.R. 717 would eliminate important deadlines in the 
Endangered Species Act (ESA) for federal agencies to determine 
the status of species that may need the Act's protections. The 
bill also allows the Interior and Commerce Secretaries to 
ignore science and delay action to protect imperiled species 
based on economic concerns. Finally, H.R. 717 prohibits 
agencies from prioritizing protection of vulnerable species 
over removing protections for recovered ones, even if the best 
available science shows that listing should take priority.
    The ESA's 90-day deadline to consider a listing petition 
and the 12-month deadline to make a listing decision are 
critically important to ensuring timely protection of species 
that are teetering on the brink of extinction. Federal agencies 
rarely make these determinations without judicial enforcement 
of the deadlines. Removing these deadlines would make it much 
more difficult to protect imperiled species.
    Further, allowing for the consideration of economic 
concerns as opposed to the current ESA standard of the ``best 
scientific and commercial data available'' would severely 
undermine conservation efforts. The ESA already gives the Fish 
and Wildlife Service and the National Marine Fisheries Service 
the discretion to designate species as ``warranted but 
precluded'' from being listed by higher conservation 
priorities, meaning that species can wait years to receive the 
protections they need and begin the path to recovery. Inserting 
a second loophole solely for economic concerns would exacerbate 
this problem and is not consistent with the intent of the ESA.
    Finally, the agencies made significant changes to their 
listing regulations just last year to slow down incoming 
petitions and give themselves more flexibility in responding. 
We have yet to see how the agencies will perform given these 
updates and H.R. 717 would override the new regulations. For 
these reasons, we oppose H.R. 717 as reported.
                                   Raul M. Grijalva,
                                           Ranking Member, Committee on 
                                               Natural Resources.
                                   Darren Soto.
                                   Jared Huffman.
                                   Alan Lowenthal.
                                   Nanette Diaz Barragan.
                                   Grace F. Napolitano.
                                   Donald S. Beyer, Jr.
                                   A. Donald McEachin.
                                   Colleen Hanabusa.

                                  [all]