Endangered Species Transparency and Reasonableness Act of 2020

I 116TH CONGRESS 2D SESSION H. R. 5694 To amend the Endangered Species Act of 1973 to require publication on the internet of the basis for determinations that species are endangered species or threatened species, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JANUARY 28, 2020 Mr. MCCLINTOCK (for himself, Mr. GOSAR, Mr. NEWHOUSE, Mr. CRAWFORD, Mr. STAUBER, Mr. LAMALFA, Mr. STEWART, Mr. PERRY, Ms. CHENEY, Mr. SMITH of Missouri, Mr. NORMAN, Mr. MARSHALL, Mr. GOHMERT, and Mr. ARMSTRONG) introduced the following bill; which was referred to the Committee on Natural Resources A BILL To amend the Endangered Species Act of 1973 to require publication on the internet of the basis for determina- tions that species are endangered species or threatened species, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Endangered Species 4 Transparency and Reasonableness Act of 2020’’. 5 VerDate Sep 11 2014 21:36 Jan 29, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H5694.IH H5694 pamtmann on DSKBC07HB2PROD with BILLS 2 •HR 5694 IH SEC. 2. REQUIREMENT TO PUBLISH ON THE INTERNET THE 1 BASIS FOR LISTINGS. 2 Section 4(b) of the Endangered Species Act (16 3 U.S.C. 1533(b)) is amended by adding at the end the fol- 4 lowing: 5 ‘‘(9) The Secretary shall make publicly available on 6 the internet the best scientific and commercial data avail- 7 able that are the basis for each regulation, including each 8 proposed regulation, promulgated under subsection (a)(1), 9 except that— 10 ‘‘(A) at the request of a Governor, State agen- 11 cy, or legislature of a State, the Secretary shall not 12 make information available under this paragraph if 13 such State determines that public disclosure of such 14 information is prohibited by a law or regulation of 15 such State, including any law or regulation requiring 16 the protection of personal information; and 17 ‘‘(B) within 30 days after the date of the enact- 18 ment of this paragraph, the Secretary shall execute 19 an agreement with the Secretary of Defense that 20 prevents the disclosure of classified information per- 21 taining to Department of Defense personnel, facili- 22 ties, lands, or waters.’’. 23 VerDate Sep 11 2014 21:36 Jan 29, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H5694.IH H5694 pamtmann on DSKBC07HB2PROD with BILLS 3 •HR 5694 IH SEC. 3. DECISIONAL TRANSPARENCY AND USE OF STATE, 1 TRIBAL, AND LOCAL INFORMATION. 2 (a) REQUIRING DECISIONAL TRANSPARENCY WITH 3 AFFECTED STATES.—Section 6(a) of the Endangered 4 Species Act of 1973 (16 U.S.C. 1535(a)) is amended— 5 (1) by inserting ‘‘(1)’’ before the first sentence; 6 and 7 (2) by striking ‘‘Such cooperation shall include’’ 8 and inserting the following: 9 ‘‘(2) Such cooperation shall include— 10 ‘‘(A) before making a determination under 11 section 4(a), providing to States affected by 12 such determination all data that is the basis of 13 the determination; and 14 ‘‘(B)’’. 15 (b) ENSURING USE OF STATE, TRIBAL, AND LOCAL 16 INFORMATION.— 17 (1) IN GENERAL.—Section 3 of the Endangered 18 Species Act of 1973 (16 U.S.C. 1532) is amended— 19 (A) by redesignating paragraphs (2) 20 through (21) as paragraphs (3) through (22), 21 respectively; and 22 (B) by inserting after paragraph (1) the 23 following: 24 VerDate Sep 11 2014 21:36 Jan 29, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H5694.IH H5694 pamtmann on DSKBC07HB2PROD with BILLS 4 •HR 5694 IH ‘‘(2) The term ‘best scientific and commercial data 1 available’ includes all such data submitted by a State, 2 Tribal, or county government.’’. 3 (2) CONFORMING AMENDMENT.—Section 7(n) 4 of such Act (16 U.S.C. 1536(n)) is amended by 5 striking ‘‘section 3(13)’’ and inserting ‘‘section 6 3(14)’’. 7 SEC. 4. DISCLOSURE OF EXPENDITURES UNDER ENDAN- 8 GERED SPECIES ACT OF 1973. 9 (a) REQUIREMENT TO DISCLOSE.—Section 13 of the 10 Endangered Species Act of 1973 (87 Stat. 902; relating 11 to conforming amendments which have executed) is 12 amended to read as follows: 13 ‘‘SEC. 13. DISCLOSURE OF EXPENDITURES. 14 ‘‘(a) REQUIREMENT.—The Secretary of the Interior, 15 in consultation with the Secretary of Commerce, shall— 16 ‘‘(1) not later than 90 days after the end of 17 each fiscal year, submit to the Committee on Nat- 18 ural Resources of the House of Representatives and 19 the Committee on Energy and Natural Resources of 20 the Senate an annual report detailing Federal Gov- 21 ernment expenditures for covered suits during the 22 preceding fiscal year (including the information de- 23 scribed in subsection (b)); and 24 VerDate Sep 11 2014 21:36 Jan 29, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H5694.IH H5694 pamtmann on DSKBC07HB2PROD with BILLS 5 •HR 5694 IH ‘‘(2) make publicly available through the inter- 1 net a searchable database of the information de- 2 scribed in subsection (b). 3 ‘‘(b) INCLUDED INFORMATION.—The report shall in- 4 clude— 5 ‘‘(1) the case name and number of each covered 6 suit, and a hyperlink to the record or decision for 7 each covered suit (if available); 8 ‘‘(2) a description of the claims in each covered 9 suit; 10 ‘‘(3) the name of each covered agency whose ac- 11 tions gave rise to a claim in a covered suit; 12 ‘‘(4) funds expended by each covered agency 13 (disaggregated by agency account) to receive and re- 14 spond to notices referred to in section 11(g)(2) or to 15 prepare for litigation of, litigate, negotiate a settle- 16 ment agreement or consent decree in, or provide ma- 17 terial, technical, or other assistance in relation to, a 18 covered suit; 19 ‘‘(5) the number of full-time equivalent employ- 20 ees that participated in the activities described in 21 paragraph (4); 22 ‘‘(6) attorneys fees and other expenses (disag- 23 gregated by agency account) awarded in covered 24 suits, including any consent decrees or settlement 25 VerDate Sep 11 2014 21:36 Jan 29, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H5694.IH H5694 pamtmann on DSKBC07HB2PROD with BILLS 6 •HR 5694 IH agreements (regardless of whether a decree or settle- 1 ment agreement is sealed or otherwise subject to 2 nondisclosure provisions), including the bases for 3 such awards; and 4 ‘‘(7) any Federal funding used by a person or 5 a governmental or nongovernmental entity in bring- 6 ing a claim in a covered suit. 7 ‘‘(c) REQUIREMENT TO PROVIDE INFORMATION.— 8 The head of each covered agency shall provide to the Sec- 9 retary in a timely manner all information requested by the 10 Secretary to comply with the requirements of this section. 11 ‘‘(d) LIMITATION ON DISCLOSURE.—Notwithstand- 12 ing any other provision of this section, this section shall 13 not affect any restriction in a consent decree or settlement 14 agreement on the disclosure of information that is not de- 15 scribed in subsection (b). 16 ‘‘(e) DEFINITIONS.— 17 ‘‘(1) COVERED AGENCY.—The term ‘covered 18 agency’ means any agency of the Department of the 19 Interior, the Forest Service, the National Marine 20 Fisheries Service, the Bonneville Power Administra- 21 tion, the Western Area Power Administration, the 22 Southwestern Power Administration, or the South- 23 eastern Power Administration. 24 VerDate Sep 11 2014 21:36 Jan 29, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H5694.IH H5694 pamtmann on DSKBC07HB2PROD with BILLS 7 •HR 5694 IH ‘‘(2) COVERED SUIT.—The term ‘covered suit’ 1 means any civil action containing a claim against the 2 Federal Government, in which the claim arises under 3 this Act and is based on the action of a covered 4 agency.’’. 5 (b) CLERICAL AMENDMENT.—The table of contents 6 in the first section of such Act is amended by striking the 7 item relating to such section and inserting the following: 8 ‘‘Sec. 13. Disclosure of expenditures.’’. (c) PRIOR AMENDMENTS NOT AFFECTED.—This sec- 9 tion shall not be construed to affect the amendments made 10 by section 13 of such Act, as in effect before the enact- 11 ment of this Act. 12 SEC. 5. AWARD OF LITIGATION COSTS TO PREVAILING PAR- 13 TIES IN ACCORDANCE WITH EXISTING LAW. 14 Section 11(g)(4) of the Endangered Species Act of 15 1973 (16 U.S.C. 1540(g)(4)) is amended by striking ‘‘to 16 any’’ and all that follows through the end of the sentence 17 and inserting ‘‘to any prevailing party in accordance with 18 section 2412 of title 28, United States Code.’’. 19 Æ VerDate Sep 11 2014 21:36 Jan 29, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6301 E:\BILLS\H5694.IH H5694 pamtmann on DSKBC07HB2PROD with BILLS