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ROLLIE SCHMITTEN, ASSISTANT ADMINISTRATOR FOR FISHERIES, NOAA 



Follow-up Answer to Question by Representative Unsoeld 



In what way does FACA impede full utilization of peer review in 

 the development of a recovery plan? 



In a strict sense, FACA does not impede utilization of peer 

 review in the development of a recovery plan itself. Section 

 4(f) of the Endangered Species Act, which mandates the 

 development and implementation of recovery plans, provides that: 



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. 



16 U.S.C. §1533(f)(2). Recovery teams have been appointed by the 

 Assistant Administrator of NMFS for both the development and 

 continuing implementation of recovery plans. As part of this 

 ongoing process, the Assistant Administrator may reconvene or 

 reconstitute recovery teams as deemed necessary. Thus, to a 

 large extent, FACA does not present a problem in developing and 

 implementing recovery plans. 



However, NMFS may undertake conservation and recovery measures 

 outside the context of a formal recovery plan, in which case FACA 

 may apply to any peer review on those measures. Such instances 

 may arise prior to development of a recovery plan, or to address 

 measures beyond the scope of, or not incorporated in, the 

 recovery plan. 



One example concerns the ongoing discussions relating to the 

 district court decision in Idaho Dept. of Fish and Game v. NMFS . 

 Civil No. 92-973-MA (D.C.Or. filed March 28, 1994), which involve 

 a re-evaluation of the standard to determine whether an action 

 jeopardizes listed Snake River salmon. These discussions do not 

 directly relate to the recovery plan process, so that they are 

 not exempt from FACA. In his decision, however. Judge Marsh 

 suggested that non-Federal entities be involved in these 

 discussions, specifically stating that "Federal defendants are 

 under no legal obligation to listen and respond to salmon plans 

 from every corner of the Northwest, but the ESA does impose 

 substantive obligations with respect to an agency's consideration 

 of significant information and data from well -qualified 

 scientists such as the fisheries biologists from the states and 

 tribes." The government's ability to incorporate these non- 

 Federal entities in the decisionmaking process, as recommended by 

 Judge Marsh, is certainly hampered by the requirements imposed by 

 FACA. 



