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115th Congress   }                                    {         Report
                        HOUSE OF REPRESENTATIVES
 2d Session      }                                    {       115-1105

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



 
   PROVIDING ESA TIMING IMPROVEMENTS THAT INCREASE OPPORTUNITIES FOR 
                         NONLISTING ACT OF 2018

                                _______
                                

 December 21, 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. 6355]

    The Committee on Natural Resources, to whom was referred 
the bill (H.R. 6355) to amend the Endangered Species Act of 
1973 to define petition backlogs and provide expedited means 
for discharging petitions during such a backlog, having 
considered the same, report favorably thereon with an amendment 
and recommend that the bill as amended do pass.
    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Providing ESA Timing Improvements That 
Increase Opportunities for Nonlisting Act of 2018'' or the ``PETITION 
Act of 2018''.

SEC. 2. DEFINITIONS.

  Section 3 of the Endangered Species Act of 1973 (16 U.S.C. 1532) is 
amended--
          (1) by moving the margins of paragraphs (1) through (21) 2 
        ems to the right;
          (2) by inserting before the text the following: ``(a) In 
        General.--''; and
          (3) by adding at the end the following:
  ``(b) Definitions Related to Petitions.--In this Act:
          ``(1) 90-day petition backlog.--The term `90-day petition 
        backlog' means such a backlog declared by the Secretary under 
        section 4(b)(3)(E).
          ``(2) 12-month petition backlog.--The term `12-month petition 
        backlog' means such a backlog declared by the Secretary under 
        section 4(b)(3)(E).
          ``(3) Backlog schedule.--The term `backlog schedule' means a 
        comprehensive, regularly updated compendium of petitioned-for 
        species that are the subject of a 90-day petition backlog or a 
        12-month petition backlog--
                  ``(A) that consists of--
                          ``(i) a list of petitions to add a species to 
                        a list of species under section 4(c), including 
                        petitions to move a species from the list of 
                        threatened species to the list of endangered 
                        species; and
                          ``(ii) a list of petitions to remove a 
                        species from a list of species under section 
                        4(c), including petitions to move a species 
                        from the list of endangered species to the list 
                        of threatened species; and
                  ``(B) in which the petitions in each such list appear 
                in the order in which the petitions were submitted to 
                the Secretary.
          ``(4) Backlog procedures.--The term `backlog procedures' 
        means the actions taken by the Secretary--
                  ``(A) under section 4(b)(3)(G) following the 
                declaration of a 90-day petition backlog; or
                  ``(B) under section 4(b)(3)(H) following the 
                declaration of a 12-month petition backlog.
          ``(5) Petitioned-for species.--The term `petitioned-for 
        species' means a species that has been identified in a petition 
        presented under subparagraph (A) or (B) of section 4(b)(3).''.

SEC. 3. BACKLOG DECLARATION AND PROCEDURES.

  (a) In General.--Section 4(b)(3) of the Endangered Species Act of 
1973 (16 U.S.C. 1533(b)(3)) is amended by adding at the end the 
following:
                  ``(E)(i) The Secretary shall--
                          ``(I) declare a 90-day petition backlog at 
                        any time the total number of species for which 
                        a petition is presented to the Secretary under 
                        subparagraph (A) that has not been the subject 
                        of a finding by the Secretary within the 
                        timeframe established under such subparagraph 
                        exceeds 5 percent of the number of species for 
                        which such petitions have been presented during 
                        the preceding 15 years;
                          ``(II) submit a backlog schedule for such 
                        backlog to--
                                  ``(aa) the President;
                                  ``(bb) the Chairman and ranking 
                                minority Member of the Committee on 
                                Environment and Public Works of the 
                                Senate; and
                                  ``(cc) the Chairman and ranking 
                                minority Member of the Committee on 
                                Natural Resources of the House of 
                                Representatives; and
                          ``(III) comply with backlog procedures under 
                        subparagraph (G) during the period such backlog 
                        is in effect.
                  ``(ii) The Secretary shall--
                          ``(I) declare a 12-month petition backlog at 
                        any time the total number of species for which 
                        a petition is being considered by the Secretary 
                        under subparagraph (B) that has not been the 
                        subject of a finding by the Secretary within 
                        the timeframe established under such 
                        subparagraph exceeds 5 percent of the number of 
                        species for which such petitions have been 
                        presented during the preceding 15 years;
                          ``(II) submit a backlog schedule for such 
                        backlog to--
                                  ``(aa) the President;
                                  ``(bb) the Chairman and ranking 
                                minority Member of the Committee on 
                                Environment and Public Works of the 
                                Senate; and
                                  ``(cc) the Chairman and ranking 
                                minority Member of the Committee on 
                                Natural Resources of the House of 
                                Representatives; and
                          ``(III) comply with backlog procedures under 
                        subparagraph (H) during the period such 
                        declaration is in effect.
                  ``(iii) Not later than 90 days after declaring a 90-
                day petition backlog or 12-month petition backlog, and 
                every 90 days thereafter during the period such backlog 
                is in effect, the Secretary shall submit to the 
                recipients under clause (ii)(II) and (iii)(II), 
                respectively, an updated backlog schedule that 
                contains--
                          ``(I) a list of petitioned-for species for 
                        which a finding had been made since the last 
                        submission of the backlog schedule under such 
                        clause;
                          ``(II) the outcomes of findings for all 
                        petitioned-for species for which a finding has 
                        been made since the last submission of the 
                        backlog schedule under such clause; and
                          ``(III) a summary of the bases of all 
                        findings for any petitioned-for species for 
                        which a finding has been made since the 
                        preceding submission of the backlog.
                  ``(F) The Secretary shall terminate a 90-day petition 
                backlog or 12-month petition backlog at such time as 
                the requirements for declaring such backlog under 
                subparagraph (E)(i) or (E)(ii), respectively, are not 
                fulfilled.
                  ``(G) During the effective period of a 90-day 
                petition backlog--
                          ``(i) the requirement under subparagraph (A) 
                        to make a finding within 90 days shall not 
                        apply with respect to any species that is the 
                        subject of a petition included in the list 
                        under section 2(b)(3)(A)(i);
                          ``(ii) except as provided in clause (iii), 
                        the Secretary shall not make any finding under 
                        subparagraph (A) with respect to any species 
                        included in the list under section 
                        2(b)(3)(A)(i) in the applicable backlog 
                        schedule, until the earlier of--
                                  ``(I) the date the Secretary 
                                terminates the backlog under 
                                subparagraph (F);
                                  ``(II) the date the applicable 
                                backlog schedule consists of only the 
                                list under such section; or
                                  ``(III) the date the only petitioned-
                                for species in the backlog schedule to 
                                which the Secretary has not devoted 
                                sufficient resources so as to issue 
                                such a finding within 90 days are those 
                                in the list under such section; and
                          ``(iii) the Secretary is deemed to have made 
                        a finding under subparagraph (A) that each 
                        petition for a species included in the list 
                        under section 2(b)(3)(A)(i) in the applicable 
                        backlog schedule does not present substantial 
                        scientific or commercial information indicating 
                        that the petitioned action may be warranted, 
                        effective upon the expiration of the 180-day 
                        period beginning on the date the petition was 
                        submitted.
                  ``(H) Except as provided in subparagraph (I)--
                          ``(i) after declaring a 12-month petition 
                        backlog under subparagraph (E)(ii) and before 
                        taking any actions under clause (ii) of this 
                        subparagraph, the Secretary shall assign each 
                        petition and petitioned-for species to be 
                        considered under such clause to one of the five 
                        priority bins referred to in the notice issued 
                        by the United States Fish and Wildlife Service 
                        entitled `Methodology for Prioritizing Status 
                        Reviews and Accompanying 12-month findings on 
                        Petitions for Listing Under the Endangered 
                        Species Act (81 Fed. Reg. 49248 (July 27, 
                        2016))'; and
                          ``(ii) during the effective period of such 
                        12-month petition backlog under subparagraph 
                        (E)(ii)--
                                  ``(I) the requirement under 
                                subparagraph (B) to make a finding 
                                within 12 months shall not apply with 
                                respect to any species that is the 
                                subject of a petition included in the 
                                list under section 2(b)(3)(A)(i);
                                  ``(II) the Secretary shall consider 
                                under this paragraph only petitions for 
                                species included in the list under 
                                section 2(b)(3)(A)(ii) in the 
                                applicable backlog schedule, that were 
                                submitted more than 12 months before 
                                the establishment of the backlog;
                                  ``(III) except as provided in 
                                subclause (IV), the Secretary shall not 
                                make any finding under subparagraph (B) 
                                with respect to any species included in 
                                the list under section 2(b)(3)(A)(i) in 
                                the applicable backlog schedule, until 
                                the earlier of--
                                          ``(aa) the date the Secretary 
                                        terminates the backlog under 
                                        subparagraph (F);
                                          ``(bb) the date the 
                                        applicable backlog schedule 
                                        consists of only the list under 
                                        such section; or
                                          ``(cc) the date the only 
                                        petitioned-for species in the 
                                        backlog schedule to which the 
                                        Secretary has not devoted 
                                        sufficient resources so as to 
                                        issue such a finding within 12 
                                        months are those in the list 
                                        under such section; and
                                  ``(IV) the Secretary is deemed to 
                                have made a finding under subparagraph 
                                (B)(i) for each species included in the 
                                list under section 2(b)(3)(A)(i) that 
                                the petitioned action is not 
                                warranted--
                                          ``(aa) effective upon the 
                                        expiration of the 18-month 
                                        period beginning on the date 
                                        the petition was submitted, if 
                                        the Secretary has not assigned 
                                        the species to the `Highest 
                                        Priority--Critically 
                                        Imperiled', `Strong Data 
                                        Already Available on Status' 
                                        priority bin or `New Science 
                                        Underway to Inform Key 
                                        Uncertainties' priority bin 
                                        referred to in the notice 
                                        referred to in clause (i); or
                                          ``(bb) effective upon the 
                                        expiration of the 24-month 
                                        period beginning on the date 
                                        the petition was submitted, if 
                                        the Secretary has assigned the 
                                        species to the `Strong Data 
                                        Already Available on Status' 
                                        priority bin or `New Science 
                                        Underway to Inform Key 
                                        Uncertainties' priority bin 
                                        referred to in the notice 
                                        referred to in clause (i).
                  ``(I)(i) In the case of the first 12-month petition 
                backlog under subparagraph (E)(ii)--
                          ``(I) item (aa) of subparagraph (H)(ii)(IV) 
                        shall be applied by substituting `30-month' for 
                        `18-month'; and
                          ``(II) item (bb) of subparagraph (H)(ii)(IV) 
                        shall be applied by substituting `36-month' for 
                        `24-month'.
                  ``(ii) The Secretary may not under subparagraph 
                (H)(i) change the assignment of a petition or 
                petitioned-for species from one priority bin to another 
                priority bin.
                  ``(J) In the case of findings under subparagraph 
                (G)(iii) and (H)(ii)(IV), the publication under 
                subparagraph (A) or (B)(i), respectively, may consist 
                solely of a notice of each finding.
                  ``(K)(i) Except as otherwise provided in this Act, 
                the Secretary shall regularly maintain on the internet 
                site of the United States Fish and Wildlife Service a 
                publically available database of petitions referred to 
                in this paragraph and species otherwise evaluated under 
                subsection (a).
                  ``(ii) The database shall contain information about 
                each petitioned-for species including--
                          ``(I) the date a petition for such species 
                        was submitted;
                          ``(II) the person who submitted the petition;
                          ``(III) the current status of the petition 
                        within the statutory and agency process, 
                        including the most recent agency action taken;
                          ``(IV) a web link to any documents received 
                        under this paragraph that constituted the 
                        petition for such species;
                          ``(V) a web link to any materials the 
                        Secretary has received from State or local 
                        governments pertaining to petitions to list 
                        such species;
                          ``(VI) the outcomes of all prior petitioning 
                        or listing procedures for such species; and
                          ``(VII) the outcomes of all prior litigation 
                        against the Federal Government on the basis of 
                        a petition for or listing of such species, 
                        including actions or agreements by the Federal 
                        Government to--
                                  ``(aa) dispense monies to litigating 
                                parties or counsel;
                                  ``(bb) promulgate rules as a direct 
                                or indirect result of litigation 
                                outcomes or agreements;
                                  ``(cc) resolve any matter related to 
                                the petition or a petitioned-for 
                                species by a certain date, or 
                                otherwise;
                                  ``(dd) conduct further research or 
                                analysis related to the petition or 
                                petitioned-for species; or
                                  ``(ee) engage in any other activity 
                                as a result of the terms of litigation 
                                settlements or court orders related to 
                                such petitions or petitioned-for 
                                species.
                          ``(L) Notwithstanding subparagraph (C)(ii), a 
                        finding by the Secretary under subparagraph 
                        (G)(iii), and any failure by the Secretary in 
                        the effective period of a 90-day petition 
                        backlog to make a finding under subparagraph 
                        (A) with respect to any species included in the 
                        list under section 2(b)(3)(A)(i) in the 
                        applicable backlog schedule, is not subject to 
                        judicial review.
                  ``(M)(i) The Secretary shall enter into a contract 
                with any person under which the person agrees to 
                reimburse the Federal Government for all costs incurred 
                for review of and decision upon any petition under this 
                Act to add a species to a list of species under section 
                4(c), including petitions to move a species from the 
                list of threatened species to the list of endangered 
                species.
                  ``(ii) Such a contract--
                          ``(I) shall require the person to reimburse 
                        such costs monthly during the period the 
                        petition is under review by the Secretary; and
                          ``(II) if payment of reimbursement is made in 
                        accordance with subclause (I) without lapse, 
                        shall require the Secretary, notwithstanding 
                        any other provision of this Act, to--
                                  ``(aa) issue a decision on the 
                                petition; and
                                  ``(bb) continuously study, review, or 
                                render such a decision during the 
                                period the contract is in effect.''.
  (b) Conforming Amendment.--Section 4(b)(3)(C) of the Endangered 
Species Act of 1973 (16 U.S.C. 1533(b)(3)(C)) is amended--
          (1) by striking clause (ii); and
          (2) by redesignating clause (iii) as clause (ii).
  (c) Effect of Dismissal of Petition.--Section 4(b)(3) of the 
Endangered Species Act of 1973 (16 U.S.C. 1533(b)(3)), as amended by 
subsection (a), is further amended by adding at the end the following:
                  ``(N) Dismissal of a petition by backlog procedures 
                shall not affect the review of any subsequent petition 
                for any species''.

                          Purpose of the Bill

    The purpose of H.R. 6355 is to amend the Endangered Species 
Act of 1973 to define petition backlogs and provide expedited 
means for discharging petitions during such a backlog.

                  Background and Need for Legislation

    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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 form 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.
---------------------------------------------------------------------------
    Section 4 of the ESA outlines specific timelines which must 
be met when the relevant Secretary receives a petition to list 
a species for protection under the ESA.\16\ These timelines 
bind the Secretary when making an initial determination whether 
the petition presents substantial information to warrant agency 
action, whether that agency action should proceed with 
delisting, when designating critical habitat for a listed 
species, and when conducting a five-year review of a protected 
species.\17\ If a specific timeline is not met, any person or 
entity may file a lawsuit to compel Secretarial action.\18\ 
With no legal defense for missing a statutory deadline, the 
Secretary is forced to shift valuable conservation resources 
when responding to a growing number of petitions, or lawsuits 
based on missing petition deadlines, rather than adequately 
accomplish all his or her ESA section 4 duties.\19\
---------------------------------------------------------------------------
    \16\16 U.S.C. 1533; The Secretaries may also initiate a review to 
determine if the listing or delisting of a species may be warranted. In 
addition, the Secretaries may initiate, or a petition can request, a 
review to determine if the status of a listed species should be 
reclassified from either endangered to threatened (downlisted) or 
threatened to endangered (uplisted).
    \17\16 U.S.C. 1533(b)(3).
    \18\16 U.S.C. 1540(g).
    \19\The FWS and NMFS' ESA section 4 programs encompass all actions 
related to listing species as threatened or endangered, including 
making findings on petitions to add, remove, or reclassify species from 
either of these lists (16 U.S.C. Sec. 1533(b)(3)); designating and 
revising critical habitat (16 U.S.C. Sec. 1533(a)(3)); and conducting 
5-year status reviews of listed species (16 U.S.C. Sec. 1533(c)(2)(A)).
---------------------------------------------------------------------------
    The process to list a species may begin in either one of 
two ways: through a petition submitted to the relevant 
Secretary or through a review initiated by the Secretary.\20\ 
When a petition to list a species is submitted, the Secretary 
must then follow a multi-step process to determine whether a 
species listing is warranted.\21\ See Appendix I/Figure 2. This 
multi-step process is further governed by statutory deadlines 
placed on the Secretaries, ranging from the 90-day initial 
response deadline to the 12-month final determination 
deadline.\22\ See Appendix II/Table 1.
---------------------------------------------------------------------------
    \20\Supra note 2.
    \21\Id.
    \22\Supra note 2.
---------------------------------------------------------------------------
    Over the past couple of decades, a high volume of petitions 
has prevented the Secretaries from adequately carrying out 
their ESA section 4 duties.\23\ For example, between fiscal 
years 2005 and 2015, the Secretaries received 170 petitions to 
list 1,446 species.\24\ Without the ability to postpone action 
on petitions and faced with statutory deadlines for responding 
to each petition, the Secretaries have faced a high volume of 
litigation impacting valuable conservation resources.\25\
---------------------------------------------------------------------------
    \23\U.S. Fish and Wildlife Service, Managing the U.S. Fish and 
Wildlife Service's Endangered Species Act Listing Program, Response to 
House Report 111-180, A Directive by the Committee on Appropriations to 
Review the Process for Determining the Status of Species (May 2010). 
See also Benjamin Jesup, Endless War or End This War? The History of 
Deadline Litigation Under Section 4 of the Endangered Species Act and 
the Multi-District Litigation Settlements, Vt. J. Env. L, 327 (2013).
    \24\Supra note 6.
    \25\Supra note 9.
---------------------------------------------------------------------------
    An even greater issue is the weaponization of these 
deadlines by some outside groups and individuals to force the 
Secretaries' hands. On average, about 13 deadline suits were 
filed between fiscal years 2005 and 2015 against the Department 
of the Interior for failure to comply with a statutory 
deadline.\26\ Two environmental groups, the Center for 
Biological Diversity and WildEarth Guardians, filed more than 
half of the lawsuits between 2005 and 2015.\27\ A breakdown of 
the number and type of section 4 actions involving deadline 
lawsuits is outlined in Appendix III/Table 2.
---------------------------------------------------------------------------
    \26\Supra note 6.
    \27\Id.
---------------------------------------------------------------------------
    When a suit is brought against the Secretaries for failure 
to meet the statutory deadlines, most of these suits are 
resolved through settlement agreements.\28\ With no legal 
defense for missing a deadline, the Secretaries often enter 
into settlement agreements under which they must prioritize 
petitions which are the subject of a suit.\29\ With such a high 
volume of petitions and ever-increasing litigation, the 
Secretaries faces a situation where nearly all petitions become 
subject to immediate prioritization, and resources are devoted 
fully to responses rather than other ESA section 4 activities 
such as habitat planning. Growing litigation continues ``tying 
up agency resources and leaving little money to address new 
species petitions and tackle the candidate backlog'' for 
petitions not the subject of a settlement agreement.\30\
---------------------------------------------------------------------------
    \28\Id.
    \29\Id.; See also Allison Winter, Patrick Reis & E&E, ENDANGERED 
SPECIES: Obama admin confronts `candidate species' backlog E&E News 
(2009), https://www.eenews.net/stories/81931.
    \30\Allison Winter, Patrick Reis & E&E, ENDANGERED SPECIES: Obama 
admin confronts `candidate species' backlog E&E News (2009), https://
www.eenews.net/stories/81931. (Douglas Krofta serves as the U.S. Fish 
and Wildlife Service's Chief in the Branch of Listing, Endangered 
Species Program).
---------------------------------------------------------------------------
    H.R. 6355, the Providing ESA Timing Improvements That 
Increase Opportunities for Nonlisting Act of 2018, or the 
PETITION Act, would create a method for the Secretaries to 
manage a growing number of petitions to list while discouraging 
those seeking to weaponize the process. The legislation allows 
for the relevant Secretary to declare a petition backlog at 
different points throughout the petition process when there 
exists such an excess number of submitted petitions that the 
Secretary would surely face yet another lawsuit to enforce a 
deadline. This petition backlog declaration would trigger a 
process by which the Secretary could take additional time to 
prioritize and work through submitted petitions. Additionally, 
the process would allow for a more rapid disposal of frivolous 
petitions, discouraging those seeking to set the stage for a 
lawsuit by drowning the Secretary in frivolous petitions.

                      Section-by-Section Analysis

    Section 1. Short title. The act may be cited as the 
``Providing ESA Timing Improvements That Increase Opportunities 
for Nonlisting Act of 2018'' or the ``PETITION Act of 2018.''
    Section 2. Definitions. This section amends section 2 of 
the ESA to define additional terms used by this Act.
    Section 3. Backlog declaration and procedures. This section 
amends section 4 of the ESA to establish a set of procedures by 
which the relevant Secretary may declare a ``petition backlog'' 
at different points in the listing petition process. This 
section further outlines what would occur with different 
categorized listing petitions once sorted by priority during a 
``petition backlog.'' Finally, this section establishes a 
public database where individuals may search petitioned-for 
species listings.

                            Committee Action

    H.R. 6355 was introduced on July 12, 2018, by Congressman 
Bruce Westerman (R-AR). 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. Congressman Westerman offered an 
amendment designated 040; it was adopted by voice vote. No 
additional amendments were offered, and the bill, as amended, 
was ordered favorably reported to the House of Representatives 
by a roll call vote of 19 yeas and 14 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 requested but not received an estimate 
for the bill from the Director of the Congressional Budget 
Office.
    2. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goal or 
objective of this bill is to amend the Endangered Species Act 
of 1973 to define petition backlogs and provide expedited means 
for discharging petitions during such a backlog.

                           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




           *       *       *       *       *       *       *
                              definitions

  Sec. 3. (a) In General._For the purposes of this Act--
          (1) The term ``alternative courses of action'' means 
        all alternatives and thus is not limited to original 
        project objectives and agency jurisdiction.
          (2) The term ``commercial activity'' means all 
        activities of industry and trade, including, but not 
        limited to, the buying or selling of commodities and 
        activities conducted for the purpose of facilitating 
        such buying and selling: Provided, however, That it 
        does not include exhibitions of commodities by museums 
        or similar cultural or historical organizations.
          (3) The terms ``conserve,''``conserving,'' and 
        ``conservation'' mean to use and the use of all methods 
        and procedures which are necessary to bring any 
        endangered species or threatened species to the point 
        at which the measures provided pursuant to this Act are 
        no longer necessary. Such methods and procedures 
        include, but are not limited to, all activities 
        associated with scientific resources management such as 
        research, census, law enforcement, habitat acquisition 
        and maintenance, propagation, live trapping, and 
        transplantation, and, in the extraordinary case where 
        population pressures within a given ecosystem cannot be 
        otherwise relieved, may include regulated taking.
          (4) The term ``Convention'' means the Convention on 
        International Trade in Endangered Species of Wild Fauna 
        and Flora, signed on March 3, 1973, and the appendices 
        thereto.
          (5)(A) The term ``critical habitat'' for a threatened 
        or endangered species means--
                  (i) the specific areas within the 
                geographical area occupied by the species, at 
                the time it is listed in accordance with the 
                provisions of section 4 of this Act, on which 
                are found those physical or biological features 
                (I) essential to the conservation of the 
                species and (II) which may require special 
                management considerations or protection; and
                  (ii) specific areas outside the geographical 
                area occupied by the species at the time it is 
                listed in accordance with the provisions of 
                section 4 of this Act, upon a determination by 
                the Secretary that such areas are essential for 
                the conservation of the species.
          (B) Critical habitat may be established for those 
        species now listed as threatened or endangered species 
        for which no critical habitat has heretofore been 
        established as set forth in subparagraph (A) of this 
        paragraph.
          (C) Except in those circumstances determined by the 
        Secretary, critical habitat shall not include the 
        entire geographical area which can be occupied by the 
        threatened or endangered species.
          (6) The term ``endangered species'' means any species 
        which is in danger of extinction throughout all or a 
        significant portion of its range other than a species 
        of the Class Insecta determined by the Secretary to 
        constitute a pest whose protection under the provisions 
        of this Act would present an overwhelming and 
        overriding risk to man.
          (7) The term ``Federal agency'' means any department, 
        agency, or instrumentality of the United States.
          (8) The term ``fish or wildlife'' means any member of 
        the animal kingdom, including without limitation any 
        mammal, fish, bird (including any migratory, 
        nonmigratory, or endangered bird for which protection 
        is also afforded by treaty or other international 
        agreement), amphibian, reptile, mollusk, crustacean, 
        arthropod or other invertebrate, and includes any part, 
        product, egg, or offspring thereof, or the dead body or 
        parts thereof.
          (9) The term ``foreign commerce'' includes, among 
        other things, any transaction--
                  (A) between persons within one foreign 
                country;
                  (B) between persons in two or more foreign 
                countries;
                  (C) between a person within the United States 
                and a person in a foreign country; or
                  (D) between persons within the United States, 
                where the fish and wildlife in question are 
                moving in any country or countries outside the 
                United States.
          (10) The term ``import'' means to land on, bring 
        into, or introduce into or attempt to land on, bring 
        into, or introduce into, any place subject to the 
        jurisdiction of the United States, whether or not such 
        landing, bringing, or introduction constitutes an 
        importation within the meaning of the customs laws of 
        the United States.
          (12) The term ``permit or license applicant'' means, 
        when used with respect to an action of a Federal agency 
        for which exemption is sought under section 7, any 
        person whose application to such agency for a permit or 
        license has been denied primarily because of the 
        application of section 7(a) to such agency action.
          (13) The term ``person'' means an individual, 
        corporation, partnership, trust, association, or any 
        other private entity; or any officer, employee, agent, 
        department, or instrumentality of the Federal 
        Government, of any State, municipality, or political 
        subdivision of a State, or of any foreign government; 
        any State, municipality, or political subdivision of a 
        State; or any other entity subject to the jurisdiction 
        of the United States.
          (14) The term ``plant'' means any member of the plant 
        kingdom, including seeds, roots and other parts 
        thereof.
          (15) 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.
          (17) The term ``State'' means any of the several 
        States, the District of Columbia, the Commonwealth of 
        Puerto Rico, American Samoa, the Virgin Islands, Guam, 
        and the Trust Territory of the Pacific Islands.
          (18) The term ``State agency'' means any State 
        agency, department, board, commission, or other 
        governmental entity which is responsible for the 
        management and conservation of fish, plant, or wildlife 
        resources within a State.
          (19) The term ``take'' means to harass, harm, pursue, 
        hunt, shoot, wound, kill, trap, capture, or collect, or 
        to attempt to engage in any such conduct.
          (20) The term ``threatened species'' means any 
        species which is likely to become an endangered species 
        within the foreseeable future throughout all or a 
        significant portion of its range.
          (21) The term ``United States,'' when used in a 
        geographical context, includes all States.
  (b) Definitions Related to Petitions.--In this Act:
          (1) 90-day petition backlog.--The term ``90-day 
        petition backlog'' means such a backlog declared by the 
        Secretary under section 4(b)(3)(E).
          (2) 12-month petition backlog.--The term ``12-month 
        petition backlog'' means such a backlog declared by the 
        Secretary under section 4(b)(3)(E).
          (3) Backlog schedule.--The term ``backlog schedule'' 
        means a comprehensive, regularly updated compendium of 
        petitioned-for species that are the subject of a 90-day 
        petition backlog or a 12-month petition backlog--
                  (A) that consists of--
                          (i) a list of petitions to add a 
                        species to a list of species under 
                        section 4(c), including petitions to 
                        move a species from the list of 
                        threatened species to the list of 
                        endangered species; and
                          (ii) a list of petitions to remove a 
                        species from a list of species under 
                        section 4(c), including petitions to 
                        move a species from the list of 
                        endangered species to the list of 
                        threatened species; and
                  (B) in which the petitions in each such list 
                appear in the order in which the petitions were 
                submitted to the Secretary.
          (4) Backlog procedures.--The term ``backlog 
        procedures'' means the actions taken by the Secretary--
                  (A) under section 4(b)(3)(G) following the 
                declaration of a 90-day petition backlog; or
                  (B) under section 4(b)(3)(H) following the 
                declaration of a 12-month petition backlog.
          (5) Petitioned-for species.--The term ``petitioned-
        for species'' means a species that has been identified 
        in a petition presented under subparagraph (A) or (B) 
        of section 4(b)(3).

       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)] (ii) 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.
  (E)(i) The Secretary shall--
          (I) declare a 90-day petition backlog at any time the 
        total number of species for which a petition is 
        presented to the Secretary under subparagraph (A) that 
        has not been the subject of a finding by the Secretary 
        within the timeframe established under such 
        subparagraph exceeds 5 percent of the number of species 
        for which such petitions have been presented during the 
        preceding 15 years;
          (II) submit a backlog schedule for such backlog to--
                  (aa) the President;
                  (bb) the Chairman and ranking minority Member 
                of the Committee on Environment and Public 
                Works of the Senate; and
                  (cc) the Chairman and ranking minority Member 
                of the Committee on Natural Resources of the 
                House of Representatives; and
          (III) comply with backlog procedures under 
        subparagraph (G) during the period such backlog is in 
        effect.
  (ii) The Secretary shall--
          (I) declare a 12-month petition backlog at any time 
        the total number of species for which a petition is 
        being considered by the Secretary under subparagraph 
        (B) that has not been the subject of a finding by the 
        Secretary within the timeframe established under such 
        subparagraph exceeds 5 percent of the number of species 
        for which such petitions have been presented during the 
        preceding 15 years;
          (II) submit a backlog schedule for such backlog to--
                  (aa) the President;
                  (bb) the Chairman and ranking minority Member 
                of the Committee on Environment and Public 
                Works of the Senate; and
                  (cc) the Chairman and ranking minority Member 
                of the Committee on Natural Resources of the 
                House of Representatives; and
          (III) comply with backlog procedures under 
        subparagraph (H) during the period such declaration is 
        in effect.
  (iii) Not later than 90 days after declaring a 90-day 
petition backlog or 12-month petition backlog, and every 90 
days thereafter during the period such backlog is in effect, 
the Secretary shall submit to the recipients under clause 
(ii)(II) and (iii)(II), respectively, an updated backlog 
schedule that contains--
          (I) a list of petitioned-for species for which a 
        finding had been made since the last submission of the 
        backlog schedule under such clause;
          (II) the outcomes of findings for all petitioned-for 
        species for which a finding has been made since the 
        last submission of the backlog schedule under such 
        clause; and
          (III) a summary of the bases of all findings for any 
        petitioned-for species for which a finding has been 
        made since the preceding submission of the backlog.
  (F) The Secretary shall terminate a 90-day petition backlog 
or 12-month petition backlog at such time as the requirements 
for declaring such backlog under subparagraph (E)(i) or 
(E)(ii), respectively, are not fulfilled.
  (G) During the effective period of a 90-day petition 
backlog--
          (i) the requirement under subparagraph (A) to make a 
        finding within 90 days shall not apply with respect to 
        any species that is the subject of a petition included 
        in the list under section 2(b)(3)(A)(i);
          (ii) except as provided in clause (iii), the 
        Secretary shall not make any finding under subparagraph 
        (A) with respect to any species included in the list 
        under section 2(b)(3)(A)(i) in the applicable backlog 
        schedule, until the earlier of--
                  (I) the date the Secretary terminates the 
                backlog under subparagraph (F);
                  (II) the date the applicable backlog schedule 
                consists of only the list under such section; 
                or
                  (III) the date the only petitioned-for 
                species in the backlog schedule to which the 
                Secretary has not devoted sufficient resources 
                so as to issue such a finding within 90 days 
                are those in the list under such section; and
          (iii) the Secretary is deemed to have made a finding 
        under subparagraph (A) that each petition for a species 
        included in the list under section 2(b)(3)(A)(i) in the 
        applicable backlog schedule does not present 
        substantial scientific or commercial information 
        indicating that the petitioned action may be warranted, 
        effective upon the expiration of the 180-day period 
        beginning on the date the petition was submitted.
  (H) Except as provided in subparagraph (I)--
          (i) after declaring a 12-month petition backlog under 
        subparagraph (E)(ii) and before taking any actions 
        under clause (ii) of this subparagraph, the Secretary 
        shall assign each petition and petitioned-for species 
        to be considered under such clause to one of the five 
        priority bins referred to in the notice issued by the 
        United States Fish and Wildlife Service entitled 
        ``Methodology for Prioritizing Status Reviews and 
        Accompanying 12-month findings on Petitions for Listing 
        Under the Endangered Species Act (81 Fed. Reg. 49248 
        (July 27, 2016))''; and
          (ii) during the effective period of such 12-month 
        petition backlog under subparagraph (E)(ii)--
                  (I) the requirement under subparagraph (B) to 
                make a finding within 12 months shall not apply 
                with respect to any species that is the subject 
                of a petition included in the list under 
                section 2(b)(3)(A)(i);
                  (II) the Secretary shall consider under this 
                paragraph only petitions for species included 
                in the list under section 2(b)(3)(A)(ii) in the 
                applicable backlog schedule, that were 
                submitted more than 12 months before the 
                establishment of the backlog;
                  (III) except as provided in subclause (IV), 
                the Secretary shall not make any finding under 
                subparagraph (B) with respect to any species 
                included in the list under section 
                2(b)(3)(A)(i) in the applicable backlog 
                schedule, until the earlier of--
                          (aa) the date the Secretary 
                        terminates the backlog under 
                        subparagraph (F);
                          (bb) the date the applicable backlog 
                        schedule consists of only the list 
                        under such section; or
                          (cc) the date the only petitioned-for 
                        species in the backlog schedule to 
                        which the Secretary has not devoted 
                        sufficient resources so as to issue 
                        such a finding within 12 months are 
                        those in the list under such section; 
                        and
                  (IV) the Secretary is deemed to have made a 
                finding under subparagraph (B)(i) for each 
                species included in the list under section 
                2(b)(3)(A)(i) that the petitioned action is not 
                warranted--
                          (aa) effective upon the expiration of 
                        the 18-month period beginning on the 
                        date the petition was submitted, if the 
                        Secretary has not assigned the species 
                        to the ``Highest Priority--Critically 
                        Imperiled'', ``Strong Data Already 
                        Available on Status'' priority bin or 
                        ``New Science Underway to Inform Key 
                        Uncertainties'' priority bin referred 
                        to in the notice referred to in clause 
                        (i); or
                          (bb) effective upon the expiration of 
                        the 24-month period beginning on the 
                        date the petition was submitted, if the 
                        Secretary has assigned the species to 
                        the ``Strong Data Already Available on 
                        Status'' priority bin or ``New Science 
                        Underway to Inform Key Uncertainties'' 
                        priority bin referred to in the notice 
                        referred to in clause (i).
  (I)(i) In the case of the first 12-month petition backlog 
under subparagraph (E)(ii)--
          (I) item (aa) of subparagraph (H)(ii)(IV) shall be 
        applied by substituting ``30-month'' for ``18-month''; 
        and
          (II) item (bb) of subparagraph (H)(ii)(IV) shall be 
        applied by substituting ``36-month'' for ``24-month''.
  (ii) The Secretary may not under subparagraph (H)(i) change 
the assignment of a petition or petitioned-for species from one 
priority bin to another priority bin.
  (J) In the case of findings under subparagraph (G)(iii) and 
(H)(ii)(IV), the publication under subparagraph (A) or (B)(i), 
respectively, may consist solely of a notice of each finding.
  (K)(i) Except as otherwise provided in this Act, the 
Secretary shall regularly maintain on the internet site of the 
United States Fish and Wildlife Service a publically available 
database of petitions referred to in this paragraph and species 
otherwise evaluated under subsection (a).
  (ii) The database shall contain information about each 
petitioned-for species including--
          (I) the date a petition for such species was 
        submitted;
          (II) the person who submitted the petition;
          (III) the current status of the petition within the 
        statutory and agency process, including the most recent 
        agency action taken;
          (IV) a web link to any documents received under this 
        paragraph that constituted the petition for such 
        species;
          (V) a web link to any materials the Secretary has 
        received from State or local governments pertaining to 
        petitions to list such species;
          (VI) the outcomes of all prior petitioning or listing 
        procedures for such species; and
          (VII) the outcomes of all prior litigation against 
        the Federal Government on the basis of a petition for 
        or listing of such species, including actions or 
        agreements by the Federal Government to--
                  (aa) dispense monies to litigating parties or 
                counsel;
                  (bb) promulgate rules as a direct or indirect 
                result of litigation outcomes or agreements;
                  (cc) resolve any matter related to the 
                petition or a petitioned-for species by a 
                certain date, or otherwise;
                  (dd) conduct further research or analysis 
                related to the petition or petitioned-for 
                species; or
                  (ee) engage in any other activity as a result 
                of the terms of litigation settlements or court 
                orders related to such petitions or petitioned-
                for species.
  (L) Notwithstanding subparagraph (C)(ii), a finding by the 
Secretary under subparagraph (G)(iii), and any failure by the 
Secretary in the effective period of a 90-day petition backlog 
to make a finding under subparagraph (A) with respect to any 
species included in the list under section 2(b)(3)(A)(i) in the 
applicable backlog schedule, is not subject to judicial review.
  (M)(i) The Secretary shall enter into a contract with any 
person under which the person agrees to reimburse the Federal 
Government for all costs incurred for review of and decision 
upon any petition under this Act to add a species to a list of 
species under section 4(c), including petitions to move a 
species from the list of threatened species to the list of 
endangered species.
  (ii) Such a contract--
          (I) shall require the person to reimburse such costs 
        monthly during the period the petition is under review 
        by the Secretary; and
          (II) if payment of reimbursement is made in 
        accordance with subclause (I) without lapse, shall 
        require the Secretary, notwithstanding any other 
        provision of this Act, to--
                  (aa) issue a decision on the petition; and
                  (bb) continuously study, review, or render 
                such a decision during the period the contract 
                is in effect.
  (N) Dismissal of a petition by backlog procedures shall not 
affect the review of any subsequent petition for any species
  (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.

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[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


                            DISSENTING VIEWS

    This legislation is part of a package of nine Republican 
bills, spearheaded by the Western Caucus, introduced late in 
the second session of this Congress, and designed to destroy 
the Endangered Species Act. Each bill has its own, logic-
defying, acronym.
    H.R. 6355 weakens the citizen petition process by 
eliminating statutory deadlines for listing and would allow 
federal agencies to declare a ``petition backlog'' if the 
listing process is overloaded. Currently, federal agencies are 
required by law to issue decisions on petitions within specific 
timeframes established in the Endangered Species Act (ESA). The 
90-day (for consideration of listing petitions) and 12-month 
(for making listing determinations) deadlines are critically 
important to holding federal agencies accountable for enforcing 
the law in a timely manner consistent with protecting species 
teetering on the brink of extinction.
    This bill creates a process for federal agencies to declare 
either a 90-day or 12-month ``petition backlog'' if the number 
of petitions awaiting a decision exceeds 5% of the number of 
species that have been subject to petitions in the preceding 15 
years. Once a backlog for 90-day or 12-month petitions has been 
declared, under most circumstances, the Secretary must 
prioritize petitions to delist or downlist species. During a 
90-day petition backlog, if the Secretary does not present 
substantial scientific or commercial information indicating 
that a species warrants listing, the petition will expire 180 
days after the date of submission. During a 12-month petition 
backlog, the Secretary arbitrarily places petitions into 
different priority bins. Petition in certain bins would then be 
automatically suspended if the Secretary does not act upon them 
within timeframes specified in the bill. This process not only 
represents an erroneous approach to managing species but would 
ultimately result in petitions being rejected without further 
consideration.
    The listing petitions found to be unwarranted in both the 
90-day and 12-month petition backlogs are not subject to public 
review or comment. The Secretary must only provide a notice of 
each finding, and these determinations are precluded from 
juridical review. Notably, the same conditions do not apply for 
delisting or downlisting petitions. Furthermore, it is unclear 
how this legislation would impact the required timelines of the 
ESA.
    The misguided claim that environmental groups purposefully 
overload the petition process with frivolous requests that 
force federal agencies to miss the statutory deadlines is 
unfounded. The primary impediment to timely listings is 
stagnant agency funding for ESA implementation. Funding and the 
number of personnel dedicated to the conservation of threatened 
and endangered species have steadily declined, while costs 
associated with the listing process continue to grow. This 
decline is the result of congressional failure to ensure that 
funding keeps apace with current ESA program needs, combined 
with the continued increase in the number of species needing 
protections.
    For these reasons, we strongly oppose this 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.

                                  [all]