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Summary of Endangered Species Act and
Federal Regulation Requirements

The Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) (ESA) as
amended and its accompanying regulations (50 C.F.R. 424) set forth the
procedures to be followed in petitioning to have a species listed as either
endangered or threatened. It specifies time limits to perform certain
functions, and requirements that must be met. The following extracts
show the requirements that pertain to the petition to list the spotted
owl.

Definitions

"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 Class Insecta determined by the Secretary to constitute a pest. . . ." (ESA, Section 3(6))

"The term 'Secretary' means, except as otherwise herein provided, the Secretary of the Interior or the Secretary of Commerce as program responsibilities are vested... ." (ESA, Section 3(15))

"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 or political subdivision thereof, or of any foreign government." (ESA, Section 3(13))

"The term 'species' includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species or vertebrate fish or wildlife which interbreeds when mature.” (ESA, Section 3(16))

"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." (ESA, Section 3(20))

Individuals Allowed to
Petition

"General. Any interested person may submit a written petition to the Secretary requesting that one of the actions described in Section 424.10 [adding or removing a species or critical habitat from the endangered or threatened species lists] be taken. Such a document must clearly identify itself as a petition and be dated. It must contain the name, signature, address, telephone number, if any, and the association, institution, or business affiliation, if any, of the petitioner. The Secretary shall acknowledge in writing receipt of such a petition within 30 days." (50 C.F.R. Section 424.14. petitions.)

"In making a finding the Secretary shall consider whether such petition

(i) Clearly indicates the administrative measure recommended. . . ;

Summary of Endangered Species Act and
Federal Regulation Requirements

(ii) Contains detailed narrative justification for the recommended measure, describing, based on available information, past and present numbers and distribution of the species involved and any threats faced by the species;

(iii) Provides information regarding the status of the species over all or a significant portion of its range; and

(iv) Is accompanied by appropriate supporting documentation in the form of bibliographic references . . . .” (50 C.F.R. Section 424.14(b)(2))

Requirement to
Consider Only
Biological Status in
Making Listing
Decision

"The Secretary shall make determinations required by subsection (a)(1) of this section solely on the basis of the best scientific and commercial data available to him after conducting a review of the status of the species. ..." (ESA, Section 4(b)(1)(A))

"The principal purpose of these amendments is to ensure that decisions in every phase of the process pertaining to the listing or delisting of species are based solely upon biological criteria and to prevent nonbiological considerations from affecting such decisions." (Conference Report 97-835 at page 19 (1982))

Criteria for

Determining
Endangerment

"The Secretary shall by regulation promulgated in accordance with subsection (b) of this section 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." (ESA, Section 4(a)(1))

Summary of Endangered Species Act and
Federal Regulation Requirements

Time Frame
Requirements

"To the maximum extent practicable, within 90 days after receiving the petition... 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...." (ESA, Section 4(b)(3)(A))

"The requirement to make such a finding within 90 days may be waived only if the devotion of staff resources to petition responses would interfere with actions needed to list other species in greater need of protection." (49 FR 38900)

"Within 12 months after receiving a petition that is found under paragraph (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 ....

(iii) The petitioned action is warranted but that

(I) the immediate proposal and timely promulgation of a final regulation... 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." (ESA, Section 4(b)(3)(B))

"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 subpara-
graph (A) on the date of such finding and that presents substantial scientific or com-
mercial information that the petitioned action may be warranted." (ESA, Section
4(b)(3)(C))

"Any negative finding described in subparagraph (A) and any finding described in
subparagraph (B)(i) or (iii) shall be subject to judicial review." (ESA, Section
4(b)(3)(C)(ii))

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