This overview of the ESA examines its regulatory structure in conjunction with key terms defined under the act.
1. The Fish and Wildlife Service eventually settled on the current definition of harm which is found in Federal Register 46, (4 November 1981): 54748, 54750.
To receive protection under the act, species must first be listed. The listing process is an assessment of the relative vulnerability of certain species.2 While it has been changed several times, the listing process can be initiated by private individuals, who petition the Secretary of Interior.3 To determine if a species should be listed, the Secretary of the Interior considers the best scientific and commercial data available and also takes into account the efforts being made by any state or foreign nation, or political subdivision of a state or foreign nation to protect such species (ESA §4[b][A], 16 USC §1533[b][A]).
Once listed, species are classified as either endangered or threatened. Those species "in danger of extinction throughout all or a significant portion of their range" are classified as endangered (ESA §3, 16 USC §1532). For a species to be classified as threatened, the petitioner must show that the species "are likely to become an endangered species within the foreseeable future throughout all or a significant portion of their range" (ESA §3, 16 USC §1532).
Once the secretary determines that a species should be listed as either endangered or threatened, he must also establish a critical habitat for that species (ESA §3[A][i], 16 USC §1532[A][i]). Critical habitats are specific areas within the geographical areas occupied by the species at the time the species are listed. Critical habitats also have physical and biological features considered essential to conserving the species and which may require special management considerations or protection (ESA §3[A][i], 16 USC §1532[A][i]).4
Finally, a person for purposes of the ESA, is also defined broadly. A person is "an individual, corporation, partner
2. The term is used by Michael Bean. See Bean, M. The evolution of national wildlife law. 1983. New York. For provisions regarding the listing and identification of endangered and threatened wildlife and plant life, see Code of Federal Regulations, Title 50, secs. 7.1, 217.1 et seq, 424.01 et seq., and Title 60, sec. 227.1 et seq.
3. The Secretary of Commerce may, in certain cases, be the authority to petition. The Department of the Interior, through its Secretary, can also initiate the listing process. Apart from the petition process, the Secretary of Agriculture is authorized to enforce the ESA with respect to plants. See Endangered Species Act, sec. 3(15), U.S. Code Vol. 16, sec. 1532(15). These sections also apply to the changing of a species' status and the removal of species from the list, i.e., delisting.
4. Specific areas outside the geographical areas occupied by the species are considered as critical habitat under certain circumstances.
ship, trust, association, or any private entity, or an officer, employee agent, department, or instrumentality of the Federal Government, of any state, municipality, or political subdivision of the state; or any other entity subject to the jurisdiction of the United States" (ESA§3, 16 USC §1532).
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