To amend the Endangered Species Act of 1973 to require the Secretary of the Interior to give greater weight to scientific or commercial data that is empirical or has been field-tested or peer-reviewed, and for other purposes.

January 20, 2004

Mr. SMITH introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works

To amend the Endangered Species Act of 1973 to require the Secretary of the Interior to give greater weight to scientific or commercial data that is empirical or has been field-tested or peer-reviewed, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Sound Science for Endangered Species Act Planning Act of 2004'.

SEC. 2. SOUND SCIENCE.

(a) BEST SCIENTIFIC AND COMMERCIAL DATA AVAILABLE-

(1) IN GENERAL- Section 3 of the Endangered Species Act of 1973 (16 U.S.C. 1532) is amended--

(A) by amending the section heading to read as follows:

`SEC. 3. DEFINITIONS AND GENERAL PROVISIONS.';

(B) by striking `For the purposes of this Act--' and inserting the following:

`(a) DEFINITIONS- In this Act:'; and

(C) by adding at the end the following:

`(b) USE OF CERTAIN DATA- In any case in which the Secretary is required by this Act to use the best scientific and commercial data available, the Secretary, in evaluating comparable data, shall give greater weight to scientific or commercial data that is empirical or has been field-tested or peer-reviewed.'.

(2) CONFORMING AMENDMENT- The table of contents in the first section of the Endangered Species Act of 1973 (16 U.S.C. prec. 1531) is amended by striking the item relating to section 3 and inserting the following:

`Sec. 3. Definitions and general provisions.'.

(b) USE OF SOUND SCIENCE IN LISTING- Section 4(b) of the Endangered Species Act of 1973 (16 U.S.C. 1533(b)) is amended by adding at the end the following:

`(9) ESTABLISHMENT OF CRITERIA FOR SCIENTIFIC STUDIES TO SUPPORT LISTING- Not later than 1 year after the date of enactment of this paragraph, the Secretary shall promulgate regulations that establish criteria that must be met for scientific and commercial data to be used as the basis of a determination under this section that a species is an endangered species or a threatened species.

`(10) FIELD DATA-

`(A) REQUIREMENT- The Secretary may not determine that a species is an endangered species or a threatened species unless the determination is supported by data obtained by observation of the species in the field.

`(B) DATA FROM LANDOWNERS- The Secretary shall--

`(i) accept and acknowledge receipt of data regarding the status of a species that is collected by an owner of land through observation of the species on the land; and

`(ii) include the data in the rulemaking record compiled for any determination that the species is an endangered species or a threatened species.'.

(c) USE OF SOUND SCIENCE IN RECOVERY PLANNING- Section 4(f) of the Endangered Species Act of 1973 (16 U.S.C. 1533(f)) is amended by adding at the end the following:

`(6)(A) The Secretary shall identify and publish in the Federal Register with the notice of a proposed regulation pursuant to paragraph (5)(A)(i) a description of additional scientific and commercial data that would assist in the preparation of a recovery plan and--

`(i) invite any person to submit the data to the Secretary; and

`(ii) describe the steps that the Secretary plans to take for acquiring additional data.

`(B) Data identified and obtained under subparagraph (A)(i) shall be considered by the recovery team and the Secretary in the preparation of the recovery plan in accordance with section 5.'.

SEC. 3. PEER REVIEW.

Section 4 of the Endangered Species Act of 1973 (16 U.S.C. 1533) is amended by adding at the end the following:

`(j) Independent Scientific Review Requirements-

`(1) DEFINITIONS- In this subsection:

`(A) ACTION- The term `action' means--

`(i) the determination that a species is an endangered species or a threatened species under subsection (a);

`(ii) the determination under subsection (a) that an endangered species or a threatened species be removed from any list published under subsection (c)(1);

`(iii) the development of a recovery plan for a threatened species or endangered species under subsection (f); and

`(iv) the determination that a proposed action is likely to jeopardize the continued existence of a listed species and the proposal of any reasonable and prudent alternatives by the Secretary under section 7(b)(3).

`(B) QUALIFIED INDIVIDUAL- The term `qualified individual' means an individual with expertise in the biological sciences--

`(i) who through publication of peer-reviewed scientific literature or other means, has demonstrated scientific expertise on the species or a similar species or

other scientific expertise relevant to the decision of the Secretary under subsection (a) or (f);

`(ii) who does not have, or represent any person with, a conflict of interest with respect to the determination that is the subject of the review;

`(iii) who is not a participant in any petition or proposed or final determination before the Secretary; and

`(iv) who has no direct financial interest, and is not employed by any person with a direct financial interest, in opposing the action under consideration.

`(2) LIST OF INDEPENDENT SCIENTIFIC REVIEWERS- The Secretary shall solicit recommendations from the National Academy of Sciences and develop and maintain a list of qualified reviewers to participate in independent scientific review actions.

`(3) APPOINTMENT OF INDEPENDENT SCIENTIFIC REVIEWERS- (A) Before any action shall become final, the Secretary shall appoint randomly, from among the list prepared in accordance with this section, 3 qualified individuals who shall review and report to the Secretary on the scientific information and analyses on which the proposed action is based.

`(B) The selection and activities of the referees selected pursuant to this section shall not be subject to the Federal Advisory Committee Act (5 U.S.C. App.).

`(C) Reviewers shall be compensated for conducting the independent review.

`(4) OPINION OF PEER REVIEWERS- Independent reviewers shall provide the Secretary, within 3 months, their opinion regarding all relevant scientific information and assumptions relating to the taxonomy, population models, and supportive biological and ecological information for the species in question.

`(5) FINAL DETERMINATION- If the referees have made a recommendation on a proposed action, the Secretary shall evaluate and consider the information that results from the independent scientific review and include in the final determination--

`(A) a summary of the results of the independent scientific review; and

`(B) in a case in which the recommendation of a majority of the referees who conducted the independent scientific review is not followed, an explanation as to why the recommendation was not followed.

`(6) PUBLIC NOTICE- The report of the peer reviewers shall be included in the official record of the proposed action and shall be available for public review prior to the close of the comment period on the proposed action.'.

SEC. 4. IMPROVED RECOVERY PLANNING.

(a) USE OF INFORMATION PROVIDED BY STATES- Section 7(b)(1) of the Endangered Species Act of 1973 (16 U.S.C. 1536(b)(1)) is amended by adding at the end the following:

`(C) USE OF STATE INFORMATION- In conducting a consultation under subsection (a)(2), the Secretary shall actively solicit and consider information from the State agency in each affected State.'.

(b) OPPORTUNITY TO PARTICIPATE IN CONSULTATIONS- Section 7(b)(1) of the Endangered Species Act of 1973 (16 U.S.C. 1536(b)(1)) (as amended by subsection (a)) is further amended by adding at the end the following:

`(D) Opportunity to participate in consultations-

`(i) IN GENERAL- In conducting a consultation under subsection (a)(2), the Secretary shall provide any person who has sought authorization or funding from a Federal agency for an action that is the subject of the consultation, the opportunity to--

`(I) before the development of a draft biological opinion, submit and discuss with the Secretary and the Federal agency information relevant to the effect of the proposed action on the species and the availability of reasonable and prudent alternatives (if a jeopardy opinion is to be issued) that the Federal agency and the person can take to avoid violation of subsection (a)(2);

`(II) receive information, on request, subject to the exemptions specified in section 552(b) of title 5, United States Code, on the status of the species, threats to the species, and conservation measures, used by the Secretary to develop the draft biological opinion and the final biological opinion, including the associated incidental taking statements; and

`(III) receive a copy of the draft biological opinion from the Federal agency and, before issuance of the final biological opinion, submit comments on the draft biological opinion and discuss with the Secretary and the Federal agency the basis for any finding in the draft biological opinion.

`(ii) EXPLANATION- If reasonable and prudent alternatives are proposed by a person under clause (i) and the Secretary does not include the alternatives in the final biological opinion, the Secretary shall explain to the person why those alternatives were not included in the opinion.

`(iii) PUBLIC ACCESS TO INFORMATION- Comments and other information submitted to, or received from, any person (pursuant to clause (i)) who seeks authorization or funding for an action shall be maintained in a file for that action by the Secretary and shall be made available to the public (subject to the exemptions specified in section 552(b) of title 5, United States Code).'.

END