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Title IV — Strengthening conservation decisionmaking through increased transparency

S. 4589 · 116th Congress · Sep 16, 2020 · Lineage

IV Strengthening conservation decisionmaking through increased transparency

Sec. 401 Transparency of information

(a)
Publication on internet of basis for listings— Section 4(b) of the Endangered Species Act of 1973 (16 U.S.C. 1533(b)) is amended by adding at the end the following:

“(9) Publication on internet of basis for listings

“(A) In general—Except as provided in subparagraph (C), the Secretary shall make publicly available on the internet the best scientific and commercial data available that are the basis for each regulation (including each proposed regulation) promulgated pursuant to this section.

“(B) Inclusions—The information required to be made available under subparagraph (A) includes any applicable—

“(i) status review, including all information—

“(I) cited in the review; or

“(II) submitted for the review by a third party;

“(ii) list of threatened species or endangered species under subsection (c), including—

“(I) any final or proposed regulations relating to such a list; and

“(II) the results of any 5-year review of such a list;

“(iii) draft or final recovery plan;

“(iv) information relating to the economic impacts of a critical habitat designation, especially with respect to the impacts on State and local governments and private persons; and

“(v) required report or other data.

“(C) Exceptions—For purposes of disclosure under subparagraph (A)—

“(i) the Secretary shall not make available—

“(I) on receipt of a request from the Governor (or a designee) of an impacted State, any information the public disclosure of which is prohibited by applicable State law, as determined by the impacted State; or

“(II) any information that may be withheld under section 552 of title 5, United States Code (commonly known as the “Freedom of Information Act”); and

“(ii) in the case of any information that includes copyrighted material, the Secretary shall—

“(I) to the maximum extent practicable, obtain consent from the copyright holder to publish the information; and

“(II) publish the information only if that consent is granted.”

(b)
Information provided to States and Indian Tribes—
(1)
In general— Paragraph (2) of section 6(a) of the Endangered Species Act of 1973 (16 U.S.C. 1535(a)) (as designated by section 205(1)(A)) is amended by adding at the end the following:

“(C) in any case in which the Secretary has not received a petition described in section 4(b)(3)(A) relating to a species and the Secretary is considering proposing to list the species as a threatened species or an endangered species under section 4(a), include—

“(i) providing to the Governor and the State agency of each impacted State and each Indian Tribe in which the species is believed to occur a notification of the consideration, which shall be made publicly available on the internet;

“(ii) soliciting comments from each Governor, State agency, and Indian Tribe described in clause (i) to be submitted to the Secretary by not later than the date that is 60 days after the date of receipt of the notification, regarding whether the listing is in accordance with section 4(a); and

“(iii) taking into consideration, and giving full and fair consideration to, any comments submitted by the deadline described in clause (ii) before publication of a proposed regulation to list the species;

“(D) before making any determination under section 4(a), include providing to each impacted State and Indian Tribe in which the species is believed to occur all information on which the determination is based, and making that information publicly available on the internet in accordance with section 4(b)(9);

“(E) include taking into consideration, giving full and fair consideration to, and using State data, analyses, and comments in all decisionmaking under this Act; and

“(F) include accepting comments from the Governor and State agency of, and any Indian Tribe within, an impacted State regarding any proposed regulation under this Act.”

(2)
Exceptions— Section 6(a) of the Endangered Species Act of 1973 (16 U.S.C. 1535(a)) (as amended by section 205(1)) is amended by adding at the end the following:

“(3) Exceptions—For purposes of disclosure of any information under paragraph (2)—

“(A) the Secretary shall not make available—

“(i) on receipt of a request from the Governor (or a designee) of an impacted State, any information the public disclosure of which is prohibited by applicable State law, as determined by the impacted State; or

“(ii) any information that may be withheld under section 552 of title 5, United States Code (commonly known as the “Freedom of Information Act”); and

“(B) in the case of any information that includes copyrighted material, the Secretary shall—

“(i) to the maximum extent practicable, obtain consent from the copyright holder to publish the information; and

“(ii) publish the information only if that consent is granted.”

Sec. 402 Transparency in litigation

Section 11(g) of the Endangered Species Act of 1973 (16 U.S.C. 1540(g)) is amended—
(1)
in paragraph (3), by adding at the end the following:

“(C) Publication of complaint; intervention

“(i) Publication of complaint

“(I) In general—Not later than 30 days after the date on which the plaintiff serves the defendant with the complaint in an action brought under paragraph (1)(C) in accordance with Rule 4 of the Federal Rules of Civil Procedure, the Secretary shall make the complaint publicly available on the internet.

“(II) Failure to meet deadline—The failure of the Secretary to meet the 30-day deadline described in subclause (I) shall not be the basis for an action under paragraph (1)(C).

“(ii) Intervention

“(I) Opportunity to intervene

“(aa) In general—After the end of the 30-day period described in clause (i), each affected party shall be given a reasonable opportunity to move to intervene in the action described in clause (i), until the end of which action a party may not file a motion for a consent decree or to dismiss the case pursuant to a settlement agreement.

“(bb) Effect of subclause—Nothing in this subclause limits the ability of any other party to move to intervene in an action described in clause (i).

“(II) Rebuttable presumption—In considering a motion to intervene by any affected party, the court shall presume, subject to rebuttal, that the interests of that party would not be represented adequately by the parties to the action described in clause (i).

“(III) Parties included in settlement discussions

“(aa) In general—Any settlement discussion relating to an action described in clause (i) shall include each—

“(AA) plaintiff;

“(BB) defendant agency; and

“(CC) intervenor that is an affected party.

“(bb) Effect of subclause—Nothing in this subclause limits the ability of any other party to participate in a settlement discussion relating to an action described in clause (i).”

(2)
by adding at the end the following:

“(6) Notice of proposed covered settlement required

“(A) Definition of species—In this paragraph, the term species means a species that is the subject of an action brought under paragraph (1)(C).

“(B) Notice—The Secretary shall provide each impacted State and Indian Tribe in which a species is believed to occur notice of a proposed covered settlement.

“(7) Disclosure required for attorney fees—The head of any Federal agency that pays to any person an amount for attorney fees in connection with an action brought under paragraph (1)(C) relating to a determination made under section 4(a) shall disclose to the Attorney General for publication under paragraph (8) the amount paid.

“(8) Publication of amounts paid—The Attorney General shall publish annually in the Federal Register a report that—

“(A) with respect to each action brought under paragraph (1)(C) relating to a determination made under section 4(a), describes the amounts paid in the action (including amounts paid for attorney fees as disclosed under paragraph (7), the hourly rate charged by the legal services entity on which attorney fees are based, any other amounts awarded by a judge, and amounts paid pursuant to a covered settlement) during the year covered by the report to any—

“(i) litigant;

“(ii) law firm; or

“(iii) expert witness; and

“(B) identifies—

“(i) each party to whom the amounts referred to in subparagraph (A) were paid, as that party is identified in the order or other agency document making the award; and

“(ii) each civil action in connection with which the amounts were paid.”