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The Listing Process

In order for a species to be eligible for the protections provided by the ESA,
FWS (or NMFS) must first determine through a formal rulemaking process that the species is either “endangered” or “threatened” and then add it to the list of such species. This process is known as the listing process and is described in section 4 of the ESA, , and in the regulations at 50 CFR Part 424 .

The listing process can be used to add a species to a list or designate critical
habitat, delete a species or critical habitat, change the listed status of a species, or revise the boundary of an area designated as critical habitat.

The listing process can be initiated in two ways. First, it can be initiated by a listing petition from “any interested person.”Second, it can initiated by FWS (or NMFS). Most listing decisions are initiated by petition.
Within 90 days of its receipt of a petition, FWS (or NMFS) is required, “to the maximum extent practicable,” to make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted. This is known as the 90-day finding. “Substantial information” is defined as “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted.” The finding is to be made on the basis of the information in the petition and in FWS’s files. No public comments are solicited. The finding must be published in the Federal Register.
If FWS (or NMFS) finds that a listing “may be warranted,” it is required to begin a “review of the status of the species.” During such a review, public comment will be solicited. Within 12 months of the receipt of a petition, FWS (or NMFS) is to make one of the following findings, which is to be published in the Federal Register:
1) the petitioned action is not warranted; or
2) the petitioned action is warranted; or
3) the petitioned action is warranted, but is precluded by other higher priority listings.
If a “warranted, but precluded” finding is made, FWS (or NMFS) is to review that finding every 12 months until it proceeds with the publication of a proposed rule or determines that a listing is not warranted.
FWS (or NMFS) is to make its 12-month finding “solely on the basis of the best available scientific and commercial information regarding a species’ status, without reference to possible economic or other impacts of such determination.” A positive finding is to be based on one or more of the following five factors:
1) the present or threatened destruction, modification, or curtailment of its habitat or range;
2) over utilization for commercial, recreational, scientific, or educational purposes;
3) disease or predation;
4) the inadequacy of existing regulatory mechanisms; or
5) other natural or manmade factors affecting its continued existence.
If FWS (or (NMFS) finds that the petitioned action is warranted, it is required to publish in the Federal Register a proposed rule to implement the listing. The proposed rule is to contain a summary of the data on which the rule is based. A 60 day period is provided for public comment on the proposed rule.FWS (or NMFS) is also required to submit its proposed ruleto a peer review by three appropriate and independent species specialists.
Within 12 months of publishing a proposed rule, FWS (or NMFS) must either: a) publish the rule in final form; b) publish a notice withdrawing the proposed rule upon a finding that available evidence does not justify the action proposed by the rule; or c) grant itself a six-month extension to make a final decision.
When a species is proposed for listing, FWS or NMFS is also required to specify the critical habitat of that species “to the maximum extent prudent and determinable.” Designation of critical habitat is to be made on the basis of the “best scientific data available, after taking into consideration the probable economic or other impacts of making such a designation.”
A designation of critical habitat is not “prudent” when the species is threatened by human activity, and identification of the habitat can be expected to increase the degree of such threat to the species, or when designation would not be beneficial to the species. A designation of critical habitat is not “determinable” when there is insufficient information to perform the required analysis of the impacts of the designation, or when the biological needs of the species are not sufficiently known to permit identification of an a area as critical habitat.
FWS (or NMFS) can review the status of a species on its own initiative. If it finds that there is sufficient information to justify a listing of the species, it will publish a propose rule. If its finds that the available evidence is not sufficient to justify a proposed listing, it may publish a Notice of Review in the Federal Register seeking additional information. It may also publish a Notice of Review identifying those species that it considers candidates for listing, but whose listing is precluded by other higher priority listing decisions. The list of candidate species can prompt landowners and resource managers to alleviate the threats, thus possibly insuring that a listing of the species will be unnecessary.
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