H.R. 9533 — what changed

“(j) National listing work plan

“(1) In general—Not later than the date described in paragraph (2), the Secretary shall submit to Congress a national listing work plan that establishes, for each covered species, a schedule for the completion during the 5-fiscal year period beginning on October 1 of the first fiscal year after the date of the submission of the work plan of—

“(A) findings as described in subsection (b)(3)(B) for each such covered species;

“(B) proposed and final determinations regarding listing each such covered species under this section; and

“(C) proposed and final critical habitat designations under subsection (a)(3) relating to each such covered species.

“(2) Submission to Congress

“(A) In general—The Secretary shall submit to Congress—

“(i) together with the budget request of the Secretary for the first fiscal year that begins not less than 365 days after the date of the enactment of this subsection, the initial work plan required under paragraph (1); and

“(ii) together with the budget request of the Secretary for each fiscal year thereafter, an updated work plan under paragraph (1).

“(B) Additional inclusions—The Secretary shall include with each budget request referred to in subparagraph (A) a description of the amounts to be requested to carry out the work plan for the fiscal year covered by the budget request, including any amounts requested to address emergency listings if the Secretary identifies any emergency posing a significant risk to the well-being of any species of fish or wildlife or plant.

“(3) Priority

“(A) In general—In developing a work plan under this subsection, the Secretary shall assign to each species included in the work plan a priority classification of Priority 1 through Priority 5, such that, as determined by the Secretary, the following apply:

“(i) Priority 1 represents species of the highest priority, to be designated as critically imperiled and in need of immediate action.

“(ii) Priority 2 represents species with respect to which the best scientific and commercial data available support a clear decision regarding the status of the species.

“(iii) Priority 3 represents species with respect to which studies regarding the status of the species are being carried out—

“(I) to answer key questions that may influence the findings of a petition to list the species submitted under subsection (b)(3); and

“(II) to resolve any uncertainty regarding the status of the species within a reasonable timeframe.

“(iv) Priority 4 represents species for which proactive conservation efforts likely to reduce threats to the species are being developed or carried out, within a reasonable timeframe and in an organized manner, by Federal agencies, States, landowners, or other stakeholders.

“(v) Priority 5 represents species—

“(I) for which there exists little information regarding—

“(aa) threats to the species; or

“(bb) the status of the species; or

“(II) that would receive limited conservation benefit in the foreseeable future by listing the species as a threatened species or endangered species under this section.

changed “(B) Use of methodology—The Secretary shall establish and assign priority classifications under subparagraph (A) in accordance with the notice of the Director of the United States Fish and Wildlife Service titled ‘Methodology for Prioritizing Status Reviews and Accompanying 12-Month 12–Month Findings on Petitions for Listing Under the Endangered Species Act’ (81 Fed. Reg. 49248; published July 27, 2016).

“(C) Extensions for certain priority classifications

“(i) Priority 3—With respect to a species classified as Priority 3 under subparagraph (A)(iii), if the Secretary determines that additional time would allow for more complete data collection or the completion of studies relating to the species, the Secretary may retain the species under the work plan for a period of not more than 5 years after the deadline under paragraph (4).

“(ii) Priority 4—With respect to a species classified as Priority 4 under subparagraph (A)(iv), if the Secretary determines that existing conservation efforts continue to meet the conservation needs of the species, the Secretary may retain the species under the work plan for a period of not more than 5 years after the deadline under paragraph (4).

“(iii) Priority 5—With respect to a species classified as Priority 5 under subparagraph (A)(v), the Secretary may retain the species under the work plan for a period of not more than 5 years after the deadline under paragraph (4).

“(D) Revision of priority classification—The Secretary may revise, in accordance with subparagraph (A), the assignment to a priority classification of a species included in a work plan at any time during the fiscal years to which the work plan applies.

“(E) Effect of priority classification—The assignment of a priority classification to a species included in a work plan is not a final agency action.

“(4) Deadline—The Secretary shall act on any petition to add a species to a list published under subsection (c) submitted under subsection (b)(3) not later than the last day of the fiscal year specified for that petition in the most recent work plan.

“(5) Regulations—The Secretary may issue such regulations as the Secretary determines appropriate to carry out this subsection.

“(6) Effect of subsection—Nothing in this subsection may be construed to preclude or otherwise affect the emergency listing authority of the Secretary under subsection (b)(7).

“(7) Definitions—In this subsection:

“(A) Covered species—The term covered species means a species that is not included on a list published under subsection (c)—

“(i) for which a petition to add the species to such a list has been submitted under subsection (b)(3); or

“(ii) that is otherwise under consideration by the Secretary for addition to such a list.

“(B) Work plan—The term work plan means the national listing work plan submitted by the Secretary under paragraph (1).”

“(C) Judicial review—Any negative finding described in subparagraph (A) and any finding described in subparagraph (B)(i)(I) shall be subject to judicial review.”

“(d) Protective regulations

“(1) In general—Whenever any species is listed as a threatened species pursuant to subsection (c), the Secretary shall issue such regulations as are necessary and advisable to provide for the conservation of that species.

“(2) Recovery goals—If the Secretary issues a regulation under paragraph (1) that prohibits an act described in section 9(a), the Secretary shall, with respect to the species that is the subject of such regulation—

“(A) establish objective, incremental recovery goals;

“(B) provide for the stringency of such regulation to decrease as such recovery goals are met; and

“(C) provide for State management within such State, if such State is willing to take on such management, beginning on the date on which the Secretary determines all such recovery goals are met and, if such recovery goals remain met, continuing until such species is removed from the list of threatened species published pursuant to subsection (c).

changed “(3) Cooperative agreement—A regulation issued under paragraph (1) that prohibits an act described in section 9(a)(1) 9(a) with respect to a resident species shall apply with respect to a State that has entered into a cooperative agreement with the Secretary pursuant to section 6(c) only to the extent that such regulation is adopted by such State.

“(4) State recovery strategy

“(A) In general—A State may develop a recovery strategy for a threatened species or a candidate species and submit to the Secretary a petition for the Secretary to use such recovery strategy as the basis for any regulation issued under paragraph (1) with respect to such species within such State.

“(B) Approval or denial of petition—Not later than 120 days after the date on which the Secretary receives a petition submitted under subparagraph (A), the Secretary shall—

changed “(i) approve such petition if the Secretary determines the recovery strategy is reasonably certain to be implemented by the petitioning State and to be effective in conserving the species that is the subject of such recovery strategy; or

“(ii) deny such petition if the requirements described in clause (i) are not met.

“(C) Publication—Not later than 30 days after the date on which the Secretary approves or denies a petition under subparagraph (B), the Secretary shall publish such approval or denial in the Federal Register.

“(D) Denial of petition

“(i) Written explanation—If the Secretary denies a petition under subparagraph (B), the Secretary shall include in such denial a written explanation for such denial, including a description of the changes to such petition that are necessary for the Secretary to approve such petition.

“(ii) Resubmission of denied petition—A State may resubmit a petition that is denied under subparagraph (B).

“(E) Use in protective regulations—If the Secretary approves a petition under subparagraph (B), the Secretary shall—

“(i) issue a regulation under paragraph (1) that adopts the recovery strategy as such regulation with respect to the species that is the subject of such recovery strategy within the petitioning State; and

“(ii) establish objective criteria to evaluate the effectiveness of such recovery strategy in conserving such species within such State.

“(F) Revision—If a recovery strategy that is adopted as a regulation issued under paragraph (1) is determined by the Secretary to be ineffective in conserving the species that is the subject of such recovery strategy in accordance with the objective criteria established under subparagraph (E)(ii) for such recovery strategy, the Secretary shall revise such regulation and reissue such regulation in accordance with paragraph (1).”

“(iv) with respect to an endangered species, objective, incremental recovery goals in accordance with subsection (d)(2)(A) for use under that subsection if such endangered species is changed in status from an endangered species to a threatened species under subsection (c)(2)(B)(ii).”

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:

changed “(9) The Secretary shall make publicly available on the internet Internet the best scientific and commercial data available that are used as the basis for each regulation, including each proposed regulation, promulgated under subsection (a)(1), except that—

“(A) at the request of a Governor, State agency, or legislature of a State, the Secretary may not make such data available under this paragraph if such entity determines that public disclosure of such data is prohibited by a law or regulation of such State, including any law or regulation requiring the protection of personal information; and

“(B) not later than 30 days after the date of the enactment of this paragraph, the Secretary shall execute an agreement with the Secretary of Defense that prevents the disclosure of classified information pertaining to Department of Defense personnel, facilities, lands, or waters.”

“(2) Such cooperation shall include—

“(A) before making a determination under section 4(a), providing to States affected by such determination all data that is the basis of the determination; and

“(B)”

“(2) The term best scientific and commercial data available includes data submitted to the Secretary by a State, Tribal, or county government.”

“13. Disclosure of expenditures

“(a) Requirement—The Secretary of the Interior, in consultation with the Secretary of Commerce, shall—

“(1) not later than 90 days after the end of each fiscal year, submit to the Committee on Natural Resources of the House of Representatives and the Committee on Environment and Public Works of the Senate an annual report detailing Federal Government expenditures for covered suits during the preceding fiscal year (including the information described in subsection (b)); and

“(2) make publicly available through the Internet a searchable database, updated monthly, of the information described in subsection (b).

“(b) Included information—The report shall include—

“(1) the case name and number of each covered suit, and, with respect to each such covered suit, a hyperlink to each settlement decision, final decision, consent decree, stipulation of dismissal, release, interim decision, motion to dismiss, partial motion for summary judgement, or related final document;

“(2) a description of each claim or cause of action in each covered suit;

“(3) the name of each covered agency the actions of which give rise to any claim in a covered suit and each plaintiff in such suit;

“(4) funds expended by each covered agency (disaggregated by agency account) to receive and respond to notices referred to in section 11(g)(2) or to prepare for litigation of, litigate, negotiate a settlement agreement or consent decree in, or provide material, technical, or other assistance in relation to, a covered suit;

“(5) the number of full-time equivalent employees that participated in the activities described in paragraph (4);

“(6) any information required to be published under section 1304 of title 31, United States Code, with respect to a covered suit; and

changed “(7) attorneys fees and other expenses (disaggregated by agency account) awarded in covered suits, including any consent decrees or settlement agreements (regardless of whether a decree or settlement agreement is sealed or otherwise subject to nondisclosure provisions), including the bases basis for such awards.

“(c) Requirement To provide information—The head of each covered agency shall provide to the Secretary in a timely manner all information requested by the Secretary to comply with the requirements of this section.

“(d) Limitation on disclosure—Notwithstanding any other provision of this section, this section shall not affect any restriction in a consent decree or settlement agreement on the disclosure of information that is not described in subsection (b).

“(e) Definitions—In this section:

“(1) Covered agency—The term covered agency means any agency of the—

“(A) Department of the Interior;

“(B) Forest Service;

“(C) Environmental Protection Agency;

“(D) National Marine Fisheries Service;

“(E) Bonneville Power Administration;

“(F) Western Area Power Administration;

“(G) Southwestern Power Administration; or

“(H) Southeastern Power Administration.

“(2) Covered suit—The term covered suit means—

“(A) any civil action containing any claim arising under this Act against the Federal Government and based on the action of a covered agency; and

“(B) any administrative proceeding under which the United States awards fees and other expenses to a third party under section 504 of title 5, United States Code.”

changed Section 11(g)(4) of the Endangered Species Act of 1973 (16 U.S.C. 1540(g)(4)) is amended by striking “to any party, whenever the court determines such award is appropriate” and inserting “in accordance with section 2412 of title 28, United States Code and section 504 of title 5, United States Code.”.Code”.