Endangered and Threatened Wildlife and Plants; Restarting the Listing Program and Final Listing Priority Guidance

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

Endangered and Threatened Wildlife and Plants; Restarting the

Listing Program and Final Listing Priority Guidance

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of listing priority guidance.

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SUMMARY: On March 11, 1996, the Fish and Wildlife Service (Service)

published a notice in the Federal Register describing interim guidance

for setting priorities in the listing program and solicited public

comments. The Service took this action in anticipation of receiving a

limited amount of funds to resume listing activities. Having received a

limited appropriation of listing funds for the remainder of fiscal year

1996, the Service announces final listing priorities that will govern

the expenditure of the available funds for the remainder of the fiscal

year.

DATES: This guidance takes effect May 16, 1996 and will remain in

effect until September 30, 1996, unless extended by further notice.

ADDRESSES: Questions about this guidance should be directed to the

Chief, Division of Endangered Species, U.S. Fish and Wildlife Service,

1849 C Street, N.W., Mailstop ARLSQ-452, Washington, D.C. 20240.

FOR FURTHER INFORMATION CONTACT: E. LaVerne Smith, Chief, Division of

Endangered Species, U.S. Fish and Wildlife Service, 703-358-2171 (see

ADDRESSES section).

SUPPLEMENTARY INFORMATION:

Background

Moratorium and Funding Constraints

Over the past thirteen months, the Service's Endangered Species

listing program, which operates under the authority of section 4 of the

Endangered Species Act (Act) of 1973, as amended (16 U.S.C. 1531 et

seq.), has been sharply curtailed by a variety of legislative and

funding restrictions. Public Law 104-6, which took effect April 10,

1995, rescinded $1.5 million from the Service's then-current listing

appropriation of $7.999 million and also stipulated that the remaining

listing funds could not be used to make final listing or critical

habitat designations. The net effect of Pub. L. 104-6 has been that no

new species have been added to the lists of endangered and threatened

[[Page 24723]]

wildlife and plants in more than a year and as a result, a backlog of

243 proposed listings has accrued.

From October 1, 1995, until April 26, 1996, the Department of the

Interior operated without a regularly enacted, full-year appropriations

bill. Instead, funding for most of the Department's programs, including

the endangered species listing program, was governed by the terms of a

series of thirteen ``continuing resolutions'' (CRs). The details of

these are complex, and are summarized in what follows. Their net effect

was essentially to shut down the listing program.

The CR for the period October 1, 1995, through November 13, 1995,

continued the moratorium on final listings and critical habitat

designations from the April 10, 1995, enactment. The listing program

was funded at a level equal to 95% of the average of the funding for

these activities provided in the appropriate appropriations bills then

pending before the House and Senate. For listing activities, the House

bill provided zero funds. The Senate bill provided only a token amount

($750,000) for the entire fiscal year. Averaging these two, and

apportioning 95% of the average across the six weeks the CR was in

effect meant that only $43,000 was available during this time period.

The Acting Director of the Service issued guidance on October 13,

1995, describing the activities on which these funds could be spent--

(1) completion of any comment periods and public hearings for pending

proposals; (2) completion of pending petition findings; and (3)

processing of any delistings or reclassifications that were in the

Washington Office awaiting approval. In the same memorandum the

Director also ordered each Regional Director to begin the orderly

transfer of listing personnel into other activities that were likely to

be funded during fiscal year 1996. This step was necessary because all

indications were that Congress would further restrict the listing

budget, which could have resulted in reductions-in-force. The resulting

loss of institutional and scientific expertise would have crippled the

listing program.

The listing program had to be shut down completely upon expiration

of the first continuing resolution. The CR in effect from mid-November

through December 15 provided no funds to the listing program and also

continued the moratorium provisions of Pub. L. 104-6. Therefore, on

November 22, 1995, the Director ordered the reassignment of all listing

staff to other duties until funds for these activities were restored.

Similar constraints applied during the governmental shutdown and the

CRs in effect from December 16, 1995, through January 26, 1996.

The CR that governed the period January 27 through March 15, 1996,

provided that funds would be available for the listing program based on

the rate established in the House-Senate conference report the

Department of the Interior's fiscal year 1996 Appropriations Act

(Section 126 of Pub. L. 104-99). This report included an annual rate of

$750,000 for listing activities and continued the moratorium. At an

annual rate of $750,000, about $100,000 were available for listing

activities during the period of this CR.

Short-term CRs covered the periods March 16-22, March 23-29, March

30-April 24, and April 24-26, 1996. These CRs continued the moratorium

on final listings and critical habitat designations, and altogether

provided the Service with very limited funding ($90,000) during this

period.

These very limited funds were quickly expended in paying for

Federal Register publication charges for a variety of listing documents

that were in the Washington Office awaiting publication (e.g.,

Vertebrate Population Policy, miscellaneous petition findings, and

delistings or reclassifications) and providing biological information

to the district courts.

On April 26, 1996, the appropriation for the Department of the

Interior for the remainder of fiscal year 1996 was finally enacted into

law. It provides approximately $4 million for the Service's listing

program over the entire fiscal year. The Service had already expended

$233,000 of the appropriation, leaving $3,767,000 for the remainder of

fiscal year 1996. This act also extends the moratorium on expenditure

of funds for final decisions on listings and critical habitat

designations, but it also empowered the President to waive the

moratorium provisions. The President issued a waiver of these

provisions on April 26, 1996, shortly after signing the Omnibus Budget

Reconciliation law.

Significant obstacles remain as the Service restarts its listing

program. The available funds fall far short of what is needed to clear

away the backlog that has built up. Currently the Service faces a

backlog of 243 proposed species, a far larger backlog than has existed

in recent times. This poses a particularly difficult problem for the

Service in light of the other Section 4 activities that require

attention such as resolving the conservation status of 182 candidate

species (see 61 FR 7596; February 28, 1996); addressing pending court

orders; and resolving petitions for 57 species. This highly irregular

situation demands that the Service establish biologically defensible

work priorities to guide expenditures of the limited listing

appropriations in a manner that best serves the purposes of the Act.

The Service is aware that the Department of Commerce and the

National Marine Fisheries Service (NMFS) have also faced a highly

irregular funding situation in fiscal year 1996 and may have different

priorities with respect to restarting their section 4 listing program.

This guidance and its priorities are not intended in any way to affect

the interpretation of the Act, the Secretary of Commerce's and NMFS'

decisions regarding implementation of the Act, Commerce's and NMFS'

budget priorities or Commerce's and NMFS' administration of its section

4 listing program. This guidance is intended only to reflect the

implementation difficulties faced by the Department of the Interior and

the Service, and not those of other agencies or Departments.

Principles for Restarting the Listing Program

The primary purposes of the Endangered Species Act are ``to provide

a means whereby the ecosystems upon which endangered species and

threatened species depend may be conserved, to provide a program for

the conservation of such endangered species and threatened species, and

to take such steps as may be appropriate to achieve the purposes of the

treaties and conventions set forth in subsection (a) of this section.''

16 U.S.C. 1531(b). It is long-standing Service policy that highest

priority be given to those species believed to face the greatest threat

of extinction. It is especially important to continue this policy with

the current financial constraints. In carrying out that policy, four

basic principles will govern the Service's implementation of the

listing process as the listing program is restarted:

(1) Highest priority will be given to protecting species most in

need, based on the priorities established by the listing priority

guidance finalized in this notice and the 1983 Listing Priority

Guidelines (48 FR 43098-43103; September 21, 1983);

(2) Biological need, not the preferences of litigants, should drive

the listing process. The Service will work closely with the Department

of Justice to defend its priority system in those cases where

plaintiffs, in pending or new cases, request actions that would cause

the Service to diverge from the principles discussed here, and

therefore,

[[Page 24724]]

in the judgment of the Service, would divert resources from providing

prompt protection to those species the Service believes to be in

greatest need of the protections of the Endangered Species Act;

(3) Sound science, including peer review, will form the foundation

of each and every listing action; and

(4) Public comment and participation in the petition and rulemaking

processes will be enhanced to ensure that the States, other Federal

agencies, and the affected public are provided with complete

explanations of the action and are provided every opportunity to

provide comments or information. All comments received will be

carefully evaluated and responded to.

Actions Required To Restart the Listing Program

The resumption of an effective listing program will require a

variety of actions. First, the budget interruptions described above

required the Service to reassign all personnel funded through the

listing program to other activities from mid-November 1995 through

April 26, 1996. Many of the listing biologists are in the process of

being returned to their regular duties. The tasks that these biologists

have been working on during the listing shutdown will require a period

of orderly shutdown or transfer. The Service estimates that it may

require as much as 45 days to fully reengage all listing personnel.

Where vacancies exist, steps are being taken to fill them.

As staff come back to the program, all listing packages will be

reviewed as quickly as possible to determine their priority placement

according to the listing priority guidance reconfirmed here.

Upon completion of this initial stage, the next step will be

determined by the facts involved in each package. The packages are in

various states of completeness, both as to substance and to process.

Some merely require a final review to ensure that they accurately

reflect the current situation, while others will require extensive

revision because the biological situation may have changed since the

proposal was issued. Still other proposals were issued shortly before

the funding interruption, so that requests for public hearings or to

extend the comment periods could not be acted upon. As a result of this

variety, final determinations on the pending proposed listings will

move through the system at very different rates. Those that still

require addressing public comments will take considerably more time to

bring to the stage of final decision.

The $4 million currently appropriated is substantially less than

what is needed to eliminate the current backlog of 243 proposed

species. Because the facts involved in each final listing determination

can vary widely, it is impossible to generate meaningful ``average''

costs for each listing activity. Processing a proposed final listing

may take only a few thousand dollars if basically all steps except

final approval and Federal Register publication are completed. But

processing may take many thousands of dollars if additional comment and

responses or public hearings are required. The economic analyses

required for critical habitat designations, for example, may require

substantial dollars as well as time.

Following completion of work by the Field Office, draft

recommendations on each package will be sent to the Regional Office for

policy review and, if appropriate, concurrence. Depending on the

remaining steps that must be completed, the above described steps may

take from 30-120 days.

Following approval by the Regional Office, the draft

recommendations will be sent to the Washington Office for technical and

policy review and approval by the Director. Including a brief review by

the Department's Office of Regulatory Affairs, review time in the

Washington Office may require 30 to 60 days, especially if changes are

necessary. Rules with critical habitat also require review by the

Office of Management and Budget and will take additional time to

complete.

Pending Litigation

The Service is presently involved in numerous cases in federal

court that involve proposed and final listings, petition findings, and

critical habitat designations. As of April 1, 1996, approximately 60

separate civil suits directed at the process of listing species under

the Act were pending against Federal officials or agencies. As of April

1, 1996, the Secretary of the Interior had received approximately 300

Notices of Intent to Sue (required under the Act before suit may be

filed (see 16 U.S.C. Sec. 1540(g))), on which litigation has not yet

been, but could be filed at any time. Many of these Notices of Intent

deal with the listing process.

During the moratorium on final listings and critical habitat

designation that was in effect for nearly thirteen months, the courts

generally agreed with the Service that it could not legally act to meet

deadlines without a lawful source of funds. See, e.g., Environmental

Defense Center v. Babbitt, 73 F.3d 867 (9th Cir. 1995). Now that the

moratorium is no longer in effect, and funds, albeit limited, are

available for this task, the Service must decide how to best spend

these funds to carry out the purposes of the Act. The press of pending

and threatened new litigation could complicate this task immensely.

This pending and threatened litigation presents many competing and

conflicting claims, and in the current budgetary situation translates

into expensive demands on inadequate resources. Actions requested by

plaintiffs cover the entire spectrum of listing activities, from

petitions to add species to the list to requests to overturn existing

listings. Taken collectively, these pending and potential cases seek

different and sometimes diametrically opposed results.

Defending existing and any new lawsuits can divert considerable

resources away from the Service's efforts to conserve endangered

species. When the Service undertakes one listing activity, it

inevitably forgoes another. In some cases courts have ordered the

Service to complete activities that are simply not, in the Service's

expert judgment, among the highest biological priorities.

Development and Publication of Interim Listing Priority Guidance

and Its Relationship to the 1983 Priority Guidance

In 1983 the Service adopted guidelines to govern the assignment of

priorities to species under consideration for listing as endangered or

threatened under section 4 of the Endangered Species Act (48 FR 43098-

43105; September 21, 1983) The purpose of those guidelines was to

establish a rational system for allocating available appropriations to

the highest priority species when adding species to the lists of

endangered or threatened wildlife and plants or reclassifying

threatened species to endangered status. The system places greatest

importance on the immediacy and magnitude of threats, but also factors

in the level of taxonomic distinctiveness by assigning priority in

descending order to monotypic genera, full species, and subspecies (or

equivalently, distinct population segments of vertebrates).

The 1983 guidelines do not establish priorities among different

types of listing activities, which include processing pending proposed

listings, new proposed listings, delistings or reclassifications,

petition findings, and critical habitat determinations. The backlog of

proposed species created by the moratorium and the recent funding

[[Page 24725]]

constraints prompted the Service to establish priorities among the

various listing activities.

Accordingly, earlier this spring, in anticipation of facing a

possible lifting of the moratorium on final listings and critical

habitat designations but with only limited funds available to clear

away the large backlog of proposed species that had built up in the

interim, the Service published interim listing priority guidance in the

March 11, 1996 edition of the Federal Register (61 FR 9651-9653) and

solicited public comment on that guidance. Summaries of the interim

guidance and all comments received, and responses to the comments, are

included in the following sections.

The 1983 guidelines properly set priorities for the Service, under

a fully-funded Section 4 program, for making expeditious progress in

adding species to the Lists of Endangered and Threatened Wildlife and

Plants. They are not, however, sufficient to deal with the present

backlog of proposed species. The Service developed the Interim Listing

Priority Guidance, which in a slightly modified form is now republished

as final guidance, to provide a means to reconcile these competing and

conflicting demands in a biologically effective and efficient way to

best carry out the purposes of the Act. Specifically, after careful

deliberation, the Service has decided that, in order to focus

conservation benefits on those species in greatest need, processing

final determinations relative to the pending proposed listings should

receive higher priority than other actions required by section 4 (such

as petition findings, new proposed listings, reclassifications or

delistings, and critical habitat determinations). Publication of the

priority guidance is intended to explain to the public (including

litigants and reviewing courts) precisely how the Service believes it

should use its limited listing appropriations to maximum effect to

carry out the purposes of the Act.

The Department of Justice and the Department of the Interior

Solicitor's Office will generally ask litigants and the courts to defer

to this listing priority system. Near the end of fiscal year 1996, the

Service will review the extent of the remaining listing backlog and the

fiscal year 1997 budget situation to determine if an extension of this

guidance is necessary. For the reasons set out in the preamble of the

notice, the Service finds that good cause exists under 5 U.S.C. 553(d)

to make this guidance effective upon the date of publication in the

Federal Register.

Summary of Interim Listing Priority Guidance

The main principle underlying the listing priority guidance is to

focus the limited listing resources on those actions that will result

in the greatest conservation benefit for the species in most urgent

need of the Act's protections. Because only listed species receive the

full conservation benefits and substantive protections of the Act, and

because the vast majority of the proposed species face high-magnitude

threats to their continued survival, the Service decided to give

highest priority to handling emergency situations and resolving the

listing status of the 243 outstanding proposed listings. Highest

priority actions were assigned to Tier 1, lowest priority to Tier 5.

Tier 1--Emergency listings. Under section 4(b)(7) of the Act, the

Secretary may list a species on an emergency basis (without the usual

public notice and comment procedure) if an emergency exists that poses

``a significant risk to the well-being of any species of fish or

wildlife or plants. * * *'' Generally, an emergency listing rule

remains in effect for 240 days, during which time the Service typically

issues a proposed listing and makes a final determination as to whether

final listing is appropriate.

Tier 2--Preparation and processing of final decisions on

outstanding proposed listings. Within Tier 2, highest priority will be

given to species facing the highest magnitude and most imminent

threats. For species with equal listing priority assignments, the

following types of actions will receive subsequent priority--listing

packages that cover multiple species; listing packages that can be

quickly cleared (e.g., those with few public comments or factual

questions presented); and proposals that have been pending the longest.

Tier 3--Preparing and processing new proposed listings for species

facing high-magnitude threats; and screening petitions for emergency

situations.

Tier 4--Preparing and processing proposed listings for species

facing moderate- or low-magnitude threats; processing final decisions

on pending proposed reclassifications and delistings; preparing and

processing administrative findings for petitions.

Tier 5--Preparing and processing critical habitat determinations

and preparing or processing new proposed delistings or

reclassifications.

Summary of, and Responses to, Comments and Recommendations on the

Interim Listing Priority Guidance

Comments on the interim listing priority guidance were received

from the following organizations--BMI Marketing and Marine Services

Corp.; Arizona Game & Fish Department; the Marine Industries

Association of Florida, Inc.; and Messrs. Eric Glitzenstein, Michael

Sherwood, and William Snape, counsel for the plaintiffs in the Fund for

Animals v. Lujan, Civ. No. 92-800, D.D.C.

The comments from the Arizona Department of Game & Fish expressed

general support for the interim priority guidance, but recommended that

reclassifications and delistings should receive higher priority,

perhaps in Tier 2 of the interim guidance. The Service recognizes the

useful regulatory relief that delistings or reclassifications can

provide. The priority guidance provides that to the extent such actions

have been processed and approved through the Regional offices, these

actions will proceed while the subject guidance is in effect. However,

generation of new proposed delistings or reclassifications cannot be

justified in a time of extreme budget constraints and while there is an

extensive backlog of proposed species awaiting final determinations.

The Service regrets that the limited appropriations made available,

coupled with the backlog of new listings built up by the moratorium,

have delayed delistings and reclassifications. The Service has decided

to combine all activities that were assigned to Tiers 3, 4, and 5 and

place them collectively in a single Tier 3 for reasons explained below.

The Marine Industries Association of Florida, Inc. (MIA) expressed

a similar concern about the lower priority of delisting or

reclassification actions, responded to above. The MIA also commented

that the proposed guidance should not be used to ``rush new listings

thru'' for species that are highly scientifically controversial. In the

interim listing priority guidance, the Service noted that additional

public comment periods might be necessary before rules can be finalized

if there are unresolved questions or new information that must be

evaluated. (See 61 Fed. Reg. at 9653, section entitled ``Setting

Priorities Within Tier 2''). The Service will ensure that sound

science, including peer review, forms the foundation for all listing

decisions.

Comments submitted by BMI Marketing & Marine Services Corp.,

cautioned that final decisions on proposed listings should not be

rushed, advising the Service to take the same care and procedure as if

no time had been lost. The Service agrees with this comment. Each

pending proposal will be reviewed to ensure it contains current and

accurate information.

[[Page 24726]]

Where necessary, public comment periods will be reopened.

The attorneys representing the Fund For Animals (FFA) expressed

concern that they were not consulted prior to release of the interim

guidance, since it will substantially affect the Service's

implementation of a court-ordered settlement agreement with FFA dealing

with the processing of species regarded as candidates for listing under

the Act. The FFA attorneys also expressed concern that the Service

violated section 4(h) of the Act by failing to provide opportunity for

public comment prior to enactment of the priority guidance. The FFA

attorneys asserted that requiring completion of all final listings

before beginning new proposals is contrary to the settlement agreement

and inconsistent with sound administration of the Act. The FFA also

expressed concern that the Service has erected a series of

administrative hurdles that unnecessarily slow the speed at which

species can be added to the list.

On the objection to making the interim guidance effective

immediately, the Service believes it acted reasonably and responsibly

in so doing. More importantly, although the Service found, as stated in

the interim guidance (see 61 FR 9651), that good cause existed to make

the guidance effective immediately, it nonetheless solicited and

received comments from the public, and has taken them into account and

responded to them now in confirming the guidance. There was no

opportunity to implement the interim guidance anyway, because the

listing program was essentially unfunded and the moratorium was not

lifted until President Clinton approved a waiver of the moratorium on

April 26, 1996.

As discussed above, the limited appropriated funds for listing

activities now available are simply not sufficient to allow the Service

to meet all of its immediate responsibilities under Section 4 of the

Act. Thus the Service must make difficult decisions about how best to

allocate the limited funds. In anticipation of this situation, the

Service made the interim listing priority guidance effective

immediately upon publication on March 11, 1996 since it had no idea

when a full year appropriation might be enacted (Congress having

enacted several short-term Crs during this period) and the Service

wanted to have a plan for dealing with the situation it knew it would

face when the moratorium was lifted. Comments received in response to

the interim guidance were considered and are addressed in this notice.

Unless extended, the guidance is effective until the end of this

fiscal year on September 30, 1996. Given the magnitude of the backlog

and the limited funds available, however, it is highly unlikely that

the Service will complete processing of all of the pending proposed

listings within that time. Most of the outstanding proposed listings

are for species determined to face high-magnitude threats (priority 1-6

under the 1983 listing priority guidelines). Once the backlog of

proposed species that face high-magnitude threats has been brought

under control, the Service will rescind this guidance and return to a

more typical implementation of section 4 that also includes preparation

of proposed listings, delistings, and processing of petitions.

The court-approved Settlement Agreement in Fund for Animals v.

Lujan, Civ. No. 92-800 (GAG) (D.D.C., Dec. 15, 1992) discussed by

Glitzenstein et al. in their comments illustrates the problem posed by

competing resource demands. That agreement requires the Service to

resolve the conservation status of 443 candidate species (either by the

publication of a proposed listing rule or the publication of a notice

stating reasons why listing is not warranted) by September 30, 1996.

Resolution of their status would require, for each species, publication

of either a proposed listing rule or a notice stating reasons why

listing is not warranted. The agreement does not, of its own terms,

require final decisions on listings. Therefore, while it in a sense

advances the process of formally protecting species, full compliance

with the agreement will not bring the full protections of the Act to

any species.

Up to the time the funding for the listing program became severely

constrained, the Service was on track to achieve full compliance with

this agreement. The Service has published, during the period covered by

the agreement, proposed listing rules for 359 candidate species.

Despite this progress, the Service is now left with the following

dilemma. If it were to continue to expend money on moving candidate

species forward to the proposed listing state in order to comply with

the settlement agreement, it would deplete the entire $4 million

listing appropriation for fiscal year 1996. Processing of proposed

listing rules requires the investment of considerable time and

resources. It involves substantial research, status review,

coordination with State and local governments and other interested

parties, and conducting public hearings and peer review.

If the Service were to devote its entire budget for the remainder

of fiscal year 1996 to complying with the Fund for Animals Settlement

Agreement, the available funds would be insufficient. More important,

if the Service were to follow this course, it would be devoting no

resources to final listing decisions on the 243 species that have

already been proposed for listing. Being so close to receiving the full

protection of the Act, these species would remain unprotected under

this course of action, while all the Service's efforts in the listing

process would be bent toward deciding whether to move candidate species

closer to proposed listing, where they receive some limited procedural

protection (the section 7 conference requirement, see 16 U.S.C.

1536(a)(4)), but not the full substantive and procedural protections

offered by final listing. This course of action would also result in a

still larger backlog of proposed species awaiting final action.

Put a little differently, this one court-approved settlement

agreement, absent modification, would defeat a primary purpose of

lifting the listing moratorium. The Service is recommending, therefore,

that the Department of Justice seek appropriate relief from the courts

to allow the highest priority proposed species to be processed and, if

appropriate, added to the lists of endangered and threatened wildlife

and plants, consistent with the provisions of this listing priority

guidance.

The FFA also expressed concern that the Service has erected a

series of administrative hurdles that unnecessarily slow the speed at

which species can be added to the list. This comment does not pertain

to the subject matter of this notice, which deals with the relative

priority of various listing activities undertaken by the Service,

rather than the procedures used to accomplish those activities.

Nevertheless, the Service reaffirms it will process decisions on

proposed species as expeditiously as possible, consistent with the

substantive and procedural requirements of Section 4 of the Act.

The administrative ``hurdles'' noted by the FFA consist of joint

policy statements issued by the National Marine Fisheries Service and

the Fish and Wildlife Service on July 1, 1994 (59 FR 34270-34275).

Those joint policies are aimed at ensuring that the Act's requirement

to use the ``best available scientific and commercial data'' in the

decision-making process on petitions and proposed listing rules, see 16

U.S.C. 1533(b), is met and that appropriate coordination occurs with

State conservation agencies and the public.

[[Page 24727]]

Final Listing Priority Guidance

The Service has considered all comments and believes that some

revision of the interim guidance is appropriate. The Service has

decided to assign all activities other than emergency listings and

final review of pending proposals to Tier 3. This decision is based on

the reality that the fiscal year 1996 appropriation is insufficient to

fully dispense with the entire backlog of proposed species, such that

the Service is unlikely to undertake any actions below Tier 2 prior to

September 30, 1996. The Service adopts the revised listing priority

guidance as final guidance for assigning relative priorities to listing

actions conducted under section 4 of the Endangered Species Act, to

remain in effect until September 30, 1996, unless extended. This

guidance supplements, but does not replace, the current listing

priority guidelines (48 FR 43098; September 21, 1983), which are silent

on the matter of prioritizing among different types of listing

activities. The terms of this guidance are effective only on the

listing priorities of the Service. Listing actions under the

jurisdiction of the Department of Commerce, National Marine Fisheries

Service will be processed according to priorities established by that

agency.

Section 4(b)(1) of the Act requires the Service to use the ``best

available scientific and commercial information'' to determine those

species in need of the Act's protections. It has been long-standing

Service policy that the order in which species should be processed for

listing is based primarily on the immediacy and magnitude of the

threats they face. Given the large backlog of proposed species, the

backlog of pending petitions, and the list of candidate species

awaiting proposal, it will be extremely important for the Service to

focus its efforts on actions that will provide the greatest

conservation benefits to imperiled species in the most expeditious

manner.

The Service will base decisions regarding the order in which

species will be proposed or listed on the 1983 listing priority

guidelines and the priority guidance in this notice. These decisions

will be implemented by the Regional Office designated with lead

responsibility for the particular species. The Service allocates its

listing appropriation among the Regional Offices based primarily on the

number of proposed and candidate species for which the Region has lead

responsibility. This ensures that those areas of the country with the

largest percentage of known imperiled biota will receive a

correspondingly high level of listing resources. The 1983 listing

priority guidelines and this guidance will be applied at the National,

Regional, and local levels. Given the workload-based allocation, and

the fact that the $4 million is not sufficient to complete final

determinations on all pending proposed listings, the Service does not

anticipate undertaking any actions in Tier 3 prior to September 30,

1996.

To address the biological, budgetary, and administrative issues

noted above, the Service therefore adopts the following listing

priority guidance.

The following sections describe a multi-tiered approach that

assigns relative priorities, on a descending basis, to actions to be

carried out under section 4 of the Act. The various types of actions

within each tier (such as new proposed listings, administrative

petition findings, etc.) will be accorded roughly equal priority, but

the 1983 listing priority guidelines will be used as applicable. The

Service emphasizes that this guidance is effective until September 30,

1996 (unless extended by future notice) and the agency looks forward to

returning to a more typical implementation of the Act's listing

responsibilities, to concurrently process petition findings; proposed

and final listings, reclassifications, or delistings; and critical

habitat determinations, after the backlogs have been reduced.

Tier 1--Emergency Listing Actions

The Service will immediately process emergency listings for species

that face an imminent risk of extinction under the emergency listing

provisions of section 4(b)(7) of the Act and will prepare a proposed

listing immediately upon learning of the need to emergency list. The

Service will screen all petitions and other status information it

receives to determine if an emergency situation exists.

Tier 2--Processing Final Decisions on Proposed Listings

In issuing the pending proposed listings, the Service found that

the vast majority of the proposed species faced high-magnitude threats.

The Service believes that focusing efforts on making final decisions

relative to these proposed species will provide maximum conservation

benefits to those species that are in greatest need of the Act's

protections. Since only emergency or final listings provide substantive

protection, the Service is of the strong belief that this activity

should take precedence over new proposed listings, reclassifications or

delistings, petition findings, and critical habitat designations, which

in comparison to listing, provide limited conservation benefits.

Setting Priorities Within Tier 2

Most of the pending proposed listings deal with species that face

high-magnitude threats, such that additional guidance is needed to

clarify the relative priorities within Tier 2. Proposed rules dealing

with taxa deemed to face imminent, high-magnitude threats will have the

highest priority within Tier 2. The Service will promptly review the

backlog of 243 proposed species and each Region will reevaluate the

immediacy and magnitude of threats facing all species that have been

proposed for listing and revise the species' listing priority

assignments accordingly. Those with the highest listing priority will

be processed first.

To further prioritize among the Tier 2 actions, proposed listings

that cover multiple species will be processed based on the most urgent

listing priority of the component species and multi-species packages

will have priority over single-species proposed rules with equal

priority unless the Service has reason to believe that the single-

species proposal should be processed to avoid possible extinction.

Furthermore, in those cases where a proposed listing for a high-

priority species also includes other species with lower listing

priorities, the listing package will not be disassembled to deal only

with the high priority species.

Due to unresolved questions or to the length of time since

proposal, the Service may determine that additional public comment or

hearings are necessary before issuing a final decision for some Tier 2

actions. If the listing priorities are equal, proposed listings that

can be quickly completed (based on factors such as few public comments

to address or final decisions that were almost complete prior to the

moratorium) will have higher priority than proposed rules for species

with equivalent listing priorities that still require extensive work to

complete.

Given species with equivalent listing priorities and the factors

previously discussed being equal, proposed listings with the oldest

dates of issue should be processed first.

Tier 3--All Other Listing Actions, Including Processing

Reclassifications and Delistings, New Proposed Listings, Petition

Findings, and Critical Habitat Designations

While the backlog of candidate species has been reduced

substantially since 1992, the Service has determined that 182 species

warrant issuance of proposed listings. The Act directs the

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Service to make ``expeditious progress'' in adding new species to the

lists and thereby necessitates steady work in reducing the number of

outstanding candidate species. Issuance of new proposed listings is the

first formal step in the regulatory process for listing a species.

However, this step provides only limited conservation benefits and the

Service believes that issuance of new proposed listings, even for

species facing imminent, high-magnitude threats, should therefore be

afforded lower priority so long as a large backlog exists of proposed

listings for species facing high-magnitude threats.

The Service will conduct a preliminary review of any petition to

list a species or change a threatened species to endangered status to

determine if an emergency situation exists or if the species would

probably be assigned a high listing priority upon completion of a

status review. If the initial screening indicates an emergency

situation the action will be elevated to Tier 1. The historical record

on listing petitions reveals that fewer than 25 percent of all

petitions are found to warrant listing.

Processing reclassifications and delistings can provide welcome

regulatory relief. The Service regrets that such activities must be

accorded Tier 3 priority due to the limited appropriations provided by

Congress and the need to devote scarce funds to carry out the overall

protective purposes of the Act.

Designation of critical habitat consumes large amounts of the

Service's listing appropriation and generally provides only limited

conservation benefits beyond those achieved when a species is listed as

endangered or threatened. Because critical habitat protections apply

only to Federal actions, situations where designating critical habitat

provides additional protection beyond that provided by the jeopardy

prohibition of section 7 are rare. It is critical during this period to

maximize the conservation benefit of every dollar spent in the listing

activity. The relatively small amount of additional protection that is

gained by designating critical habitat for species that are already

listed is greatly outweighed by providing the protections included in

sections 7 and 9 to newly-listed species. Therefore, the Service will

place higher priority on addressing species that presently have no

protection under the Act rather than devoting limited resources to the

expensive process of designating critical habitat for species already

protected by the Act.

Rules and Findings Currently Near Completion

The Headquarters Office will promptly process any draft final rules

to add species to or remove species from the lists, draft proposed

listings or delistings, draft petition findings, draft proposed or

final critical habitat determinations, and draft withdrawal notices

that were in the Washington Office prior to the date of this notice but

could not be processed because of the funding constraints or the

moratorium. These actions will require little additional work to

complete and the Service believes it to be cost-effective to finish up

these actions that were inadvertently delayed by the funding

constraints. The anticipated number of such actions is fewer than ten.

Notifying the Courts on Matters in Litigation

The Service will assess the relative priority of all section 4

petition and rule-making activities that are the subject of active

litigation using this guidance and the 1983 listing priority

guidelines. In many cases, simply identifying the tier in which an

activity falls will suffice to determine whether the Service will

undertake that action during the time this priority guidance is in

effect. The Service, through the Office of the Solicitor, will then

notify the Justice Department of its priority determination and request

that appropriate relief be requested from each district court to allow

those species with the highest biological priority to be addressed

first. To the extent that the courts do not defer to the Service's

priority guidance and the 1983 listing priority guidelines, the Service

will of course comply with court orders despite any conservation

disruption that may result.

The Service will not elevate the priority of proposed listings for

species simply because they are subjects of active litigation. To do so

would let litigants, rather than expert biological judgments, control

the setting of listing priorities. The Regional Office with

responsibility for processing such packages will need to determine the

relative priority of such cases based upon this guidance and the 1983

listing priority guidelines and furnish supporting documentation that

can be submitted to the relevant Court to indicate where such species

fall in the overall priority scheme.

Authority

The authority for this notice is the Endangered Species Act of

1973, as amended, 16 U.S.C. 1531 et seq.

Dated: May 10, 1996.

Mollie Beattie,

Director, Fish and Wildlife Service.

[FR Doc. 96-12243 Filed 5-15-96; 8:45 am]

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