Endangered and Threatened Wildlife and Plants; Extension of Listing Priority Guidance for Fiscal Year 1997

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

Endangered and Threatened Wildlife and Plants; Extension of

Listing Priority Guidance for Fiscal Year 1997

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) announces that it

is extending its listing priority guidance until an appropriations law

is approved for the Department of the Interior for fiscal year 1997 (FY

97). The Service also proposes to amend and continue implementation of

guidance for assigning relative priorities to listing actions conducted

under section 4 of the Endangered Species Act (Act) during FY 97 and

seeks public comment on this proposed guidance. The extension is

necessary because the Service expects appropriated funds to fall short

of those needed to eliminate the existing backlog of proposed listings

and complete all listing actions required by the Act in FY 97. Under

the proposed guidance, the Service would assign all listing actions to

one of four tiers, as distinguished from the three tiers in the current

guidance (61 FR 24722).

DATES: The extension of the existing listing priority guidance is

effective October 1, 1996 and will remain in effect until the Service

can determine the effects of any FY 97 appropriations law and then

issue final guidance. Comments on the proposed FY 97 guidance will be

accepted until October 17, 1996.

ADDRESSES: Comments on the proposed guidance should be addressed 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

The Service adopted guidelines on September 21, 1983 (48 FR 43098-

43105) that govern the assignment of priorities to species under

consideration for listing as endangered or threatened under section 4

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

seq.). The Service adopted those guidelines 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 enactment of Pub. L. 104-6 in April, 1995 rescinded $1.5

million from the Service's budget for carrying out listing activities

through the remainder of fiscal year 1995. Public Law 104-6 also

contained a prohibition on the expenditure of the remaining

appropriated funds for final determinations to list species or

designate critical habitat which, in effect, placed a moratorium on

those activities.

From October 1, 1995 through April 26, 1996, funding for the

Service's endangered species programs, including listing of endangered

and threatened species, was provided through a series of continuing

resolutions, each of which maintained in force the moratorium against

issuing final listings or critical habitat designations. The continuing

resolutions also severely reduced or eliminated the funding available

for the Service's listing program. Consequently, the Service reassigned

listing program personnel to other duties. The net effect of the

moratorium and reductions in funding was that the Service's listing

program was essentially shut down.

The moratorium on final listings and the budget constraints

remained in effect until April 26, 1996, when President Clinton

approved the Omnibus Budget Reconciliation Act of 1996 and exercised

the authority that Act gave him to waive the moratorium. At that time,

the Service had accrued a backlog of proposed listings for 243 species.

Moreover, although the moratorium imposed by Pub. L. 104-6 did not

specifically extend to petition processing or the development of new

proposed listings, the extremely limited funding available to the

Service for listing activities generally precluded these actions from

October 1, 1995 through April 26, 1996. The Service continued to

receive new petitions and accrued a backlog of petitions that request

the listing or delisting of 57 species under section 4(b)(3) of the

Act. The Service has historically attempted to strike a balance among

the various listing activities required by the Act, but as

appropriations have not kept pace with the Service's workload, an

increased backlog of listing actions has developed.

In anticipation of receiving a listing appropriation for the

remainder of FY 96, the Service issued and requested comment on interim

listing priority guidance on March 11, 1996 (61 FR 9651). On May 16,

1996, the Service addressed all public comments received on the interim

guidance and published final listing priority guidance for fiscal year

1996 activities (61 FR 24722). It is this guidance that is now extended

until the Service can prepare final guidance based on the terms of a FY

97 appropriations law.

When the moratorium was lifted and funds were appropriated for the

administration of a listing program, the Service faced the considerable

task of allocating the available resources to the significant backlog

of listing activities. Over the past four months, the Service has

focussed its resources on processing existing proposals and has issued

final rules listing five species.1 The relatively low number of

final rules issued during this period resulted primarily from the time

needed to restart the listing program from a total shutdown and the

need to consider factual developments related to proposed listing

packages (e.g., changes in known distribution, status, or threats) that

took place during the year-long moratorium.

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\1\ Final rules listing the red-legged frog, wahane (Hawaiian

plant), and 3 plants from the Island of Nihoa, Hawaii.

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Although progress has been made with regard to proposed rules, the

Service also needs to make expeditious progress on determining the

conservation status of the 183 2 species designated by the Service

as candidates for listing in the most recent Candidate Notice of Review

(61 FR 7596; February 28, 1996; see 16 U.S.C.

Sec. 1533(b)(3)(B)(iii)(II)). The Service is also subject to extensive

litigation that could require it to process a variety of actions under

section 4 of the Act.

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\2\ Effective August 26, 1996, the U.S. population of the short-

tailed albatross (Diomedea albetrus) was designated a candidate

species.

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Furthermore, it now appears that Congress will probably appropriate

only about two-thirds of the amount the President's FY 97 budget

requested for the listing program. The President's budget for FY 97

requested $7.483 million for the listing program, but appropriations

bills passed by the

[[Page 48963]]

House of Representatives and reported out by the Senate Appropriations

Committee each propose to appropriate only $5 million for the program.

The Senate bill also proposes to ``earmark'' $500,000 to be devoted

specifically to withdrawal notices, delistings, or reclassifications of

endangered species to threatened species.

The above discussed backlogs and the pending funding shortfall

underscore the need for program-wide priorities to guide the allocation

of limited resources. Moreover, existing and threatened litigation may

overwhelm the limited resources the Service anticipates receiving in FY

97 unless priorities are set in advance.

For example, the plaintiffs in Fund for Animals v. Babbitt, Civ.

No. 92-800 (SS) (D.D.C.), recently filed a motion to enforce the

December 15, 1992 Settlement Agreement in that case. They request the

District Court to order the Service to publish listing proposals for 41

of the candidate species covered by the Agreement (referred to

hereafter as ``settlement species'') by December 30, 1996, and to

publish listing proposals for the remaining 44 settlement species by

March 30, 1997.

Resolution of the conservation status of these 85 settlement

species 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 require final decisions on listings.

Therefore, full compliance with the Agreement will not bring the full

protection of the Act to any species, but rather would only somewhat

advance the process toward listing.

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 had 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 spend scarce appropriated funds to

move candidate species forward to the proposed listing stage in order

to comply with the Settlement Agreement, it would deplete the entire

$4.5 million listing appropriation that is anticipated for FY 97.

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.

Furthermore, since most of the 98 candidate species that are not

subject to the terms of the Agreement have high listing priority number

assignments (64 non-settlement, candidate species have priority numbers

of 1, 2 or 3), the Service would, in order to be consistent with the

1983 listing priority guidance, have to process all 183 candidate

species (85 settlement, 98 non-settlement) if ordered to comply fully

with the terms of the Settlement Agreement during FY 97.

The Service's entire anticipated FY 97 listing budget is

insufficient to comply with the Fund for Animals Settlement Agreement.

If it attempted to comply, it would devote no resources to making final

listing decisions on the 237 species, the vast majority of which face

high-magnitude threats, that have already been proposed for listing.

Though so close to receiving the full protection of the Act, these

species would move no closer to that goal while all the Service's

efforts 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.

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

protection afforded by final listing.

This course of action would also result in a still larger backlog

of up to 420 proposed species. Meanwhile, the administrative records on

many of the 237 species pending final decision could require, due to

the additional one-year delay in the decision-making process, further

public notice and comment proceedings in fiscal year 1998 because the

scientific data they contain may no longer be current.

In short, enforcement of the Fund for Animals Settlement Agreement

in FY 97 would delay for at least one year the issuance of final

listing rules and, in fiscal year 1998, would make the process of

issuing final listing rules for the aging backlog of proposed species

more time and labor intensive. Such action would entirely frustrate the

objective of waiving the final listing moratorium in April of 1996.

Therefore, in accordance with the Interior Department's recommendation,

the Department of Justice has filed a motion with the District Court

that seeks appropriate relief from the terms of the Agreement,

consistent with the listing priorities articulated in this Notice.

In order to focus conservation benefits on those species in

greatest need of the Act's protections, the Service believes that

processing the outstanding proposed listings should receive higher

priority than other actions authorized by section 4 such as new

proposed listings, petition findings, and critical habitat

determinations.

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 backlogs of proposed species,

candidate species awaiting proposal, and petitions, it is 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 continue to base decisions regarding the order in

which species will be proposed or listed on the 1983 listing priority

guidelines. These decisions will be implemented by the Regional Office

designated with lead responsibility for the particular species.

The Service allocates its listing appropriation among its seven

Regional Offices based primarily on the number of proposed and

candidate species for which the Region has lead responsibility. The

objective is to ensure that those areas of the country with the largest

percentage of known imperiled biota will receive a correspondingly high

level of listing resources. The Service's experience in administering

the Act for the past two decades has shown that it needs to maintain at

least a minimal listing program in each Region, in order to respond to

emergencies and to retain a level of expertise that permits the overall

program to function effectively over the longer term. In the past, when

faced with seriously uneven workloads, the Service has experimented

with reassigning workload from a heavily burdened Region to less-

burdened Regions. This approach has proven to be very inefficient

because the expertise developed by a biologist who works on a listing

package will be useful for recovery planning and other activities and

that expertise should be concentrated in the area which the species

inhabits. In addition, biologists in a Region are familiar with other

species in that Region that interact with the species proposed for

listing, and that knowledge may be useful in processing a final

decision. For these reasons, the Service does not believe it is wise to

reassign workload from one Region to another.

By maintaining a listing program in each Region, and with resource

allocation based on workload, Regions with few outstanding proposed

listings

[[Page 48964]]

will be able to process Tier 3 actions (such as new proposed listings

or petition findings), while Regions with many outstanding proposed

listings will use most or all of their allocated funds on Tier 2

actions. For example, following the lifting of the moratorium in April

1996, the Service allocated $2,336,000 to Region 1 (Pacific/Western

Region), which continues to face a substantial backlog of Tier 2

actions, while Region 3 (Great Lakes/Midwest Region) received only

$27,000. The Service cannot make Regional allocation of funds for FY 97

until it receives a final appropriation; however, it expects that a

similar funding disparity will result based on workload. Workload

variations will also mean that Region 3, which only has two proposed

species, could begin work on some Tier 3 actions under the revised

guidance proposed in this notice while Region 1, which has 196 proposed

species, will be primarily only processing final decisions on proposed

listings in FY 97. The Service anticipates that Nationwide, only a

small amount of funding will be used on activities below Tier 2,

because Regions that do not face a sizeable backlog of Tier 2 actions

will not receive significant amounts of funding.

In light of the continued budgetary uncertainty facing the Service

at this time, through this notice the Service is extending the listing

priority guidance currently in effect until the Service can prepare

final guidance based on the terms of a FY 97 appropriations law. To

address the biological, budgetary, and administrative issues noted

above in the longer term, the Service proposes to adopt the following

revised listing priority guidance. As with the guidance issued May 16,

1996, this guidance would supplement, but not replace, the 1983 listing

priority guidelines, which are silent on the matter of prioritizing

among different types of listing activities.

Proposed Listing Priority Guidance for Fiscal Year 1997

As noted above, the bill reported out of the Senate Appropriations

Committee for FY 97 would ``earmark'' $500,000 of the listing budget to

be devoted specifically to withdrawal notices, delistings, or

reclassifications of endangered species to threatened species. If such

an ``earmark'' emerges from the congressional process, those actions

would be processed as the ``earmarked'' amount of funding permits and

would not be subject to this proposed guidance.

Since it is unclear at this date whether any amount will be

``earmarked'' in the FY 97 appropriations law for any delistings or

reclassifications of endangered species to threatened species, the

Service has not proposed to include them within this priority system.

If the FY 97 appropriations law does not contain an earmark for those

activities, the Service's final guidance would prioritize such

activities as appropriate. The Service invites public comment on how it

ought to prioritize such activities if no earmark emerges from the

appropriations process.

If $4,500,000 would remain in the listing budget for all other

listing activities, it will fall far short of the resources needed to

eliminate the backlog of proposed species and complete all listing

actions required by the Act in FY 97, and some form of prioritization

will still be necessary. Therefore, the Service proposes to implement

the following guidance in FY 97, on the assumption that the listing

program budget will be appropriated no more than $5,000,000.

The following sections describe a multi-tiered approach that

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

to be carried out under section 4 of the Act. The 1983 listing priority

guidelines would be used as applicable to set priority among actions

within tiers. The Service emphasizes that this guidance would be

effective until September 30, 1997 (unless extended or canceled by

future notice) and the agency fully anticipates returning to

concurrently processing petition findings, proposed and final listings,

and critical habitat determinations after the backlog of proposed

listings has been further reduced.

Completion of emergency listings for species facing a significant

risk to their well-being would remain the Service's highest priority

(Tier 1) under the revised system. Processing final decisions on

pending proposed listings would, as now, be assigned to Tier 2. Third

priority would be to resolve the conservation status of species

identified as candidates and processing 90-day or 12-month

administrative findings on petitions to list, delist, reclassify, or

revise critical habitat. Preparation of proposed or final critical

habitat designations would be assigned lowest priority (Tier 4).

Tier 1--Emergency Listing Actions

The Service would immediately process emergency listings for any

species of fish, wildlife, or plant that faces a significant risk to

its well-being under the emergency listing provisions of section

4(b)(7) of the Act. This would include preparing a proposed rule to

list the species. The Service would conduct a preliminary review of

every petition that it receives to list a species or change a

threatened species to endangered status in order to determine whether

an emergency situation exists. If the initial screening indicates an

emergency situation, the action would be elevated to Tier 1. If the

initial screening does not indicate that emergency listing is

necessary, processing of the petition would be assigned to Tier 3

below.

Tier 2--Processing Final Decisions on Proposed Listings

In issuing the proposed listings that remain outstanding, 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 would best

comport with the overall purpose of the Act by providing maximum

conservation benefits to those species that are in greatest need of the

Act's protections. As proposed listings are reviewed and processed,

they will be completed through publication of either a final listing or

a notice withdrawing the proposed listing. While completion of a

withdrawal notice may appear inconsistent with the thrust of the

guidance, once a determination not to make a final listing has been

made, publishing the notice withdrawing the proposed listing takes

minimal time and appropriations, and it is important and more cost

effective and efficient to bring closure to the proposed listing, as

compared to postponing action and taking it up at some later time.

Setting Priorities Within Tier 2

Most of the outstanding 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 believed to face imminent, high-magnitude threats (listing

priority assignments of 1 through 3) would have the highest priority

within Tier 2.

Proposed listings that cover multiple species facing high-magnitude

threats would have priority over single-species proposed rules unless

the Service has reason to believe that the single-species proposal

should be processed to avoid possible extinction.

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 Tier 2

actions. Proposed listings for species facing high-magnitude threats

that can be quickly completed (based on

[[Page 48965]]

factors such as few public comments to address or final decisions that

are nearly complete) would 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 would be processed first.

Tier 3--Resolving the Conservation Status of Candidate Species and

Processing Administrative Findings on Petitions

As of this date, the Service has determined that 183 species

warrant issuance of proposed listings. The Act directs the Service to

make ``expeditious progress'' in adding new species to the lists.

Issuance of new proposed listings is the first formal step in the

regulatory process for listing a species. It provides some procedural

protection in that all Federal agencies must ``confer'' with the

Service on any actions that are likely to jeopardize the continued

existence of proposed species.

Administrative findings for listing petitions that are not assigned

to Tier 1 after initial screening would also be processed as a Tier 3

priority. As the Regional offices complete their pending Tier 1 and 2

actions, they will be expected to begin processing Tier 3 actions.

Within the discretionary funds available, each Region should begin

processing Tier 3 actions once all Tier 2 determinations are underway

and near completion and then Tier 4 actions once Tier 3 actions are

underway. Setting priorities within Tier 3 is discussed below.

Setting Priorities Within Tier 3

The 1983 listing priority guidelines and the basic principle that

species in greatest need of protection should be processed first would

be the primary bases for establishing priorities within Tier 3. Highest

priority within Tier 3 would be processing of new proposed listings for

species facing imminent, high-magnitude threats. If the initial

screening of a petition suggests that the species probably faces

imminent, high magnitude threats, processing that action will be

accorded high priority.

Tier 4-- Processing Critical Habitat Determinations

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 the protection that flows from

critical habitat designation applies only to Federal actions,

situations where designating critical habitat provides additional

protection beyond the consultation provisions of section 7, which also

apply to Federal actions, are rare. It is essential during this period

of limited listing funds to maximize the conservation benefit of

listing appropriations. The Service believes that the small amount of

additional protection that is gained by designating critical habitat

for species already on the lists is greatly outweighed by the benefits

of applying those same dollars to putting more species on the lists,

where they would gain the protections included in sections 7 and 9. The

Service has decided, in other words, to place higher priority on

addressing species that presently have no or very limited protection

under the Act, rather than devoting limited resources to the expensive

process of designating critical habitat for species already protected

by the Act.

Addressing Matters in Litigation

Using the proposed guidance and the 1983 listing priority

guidelines, the Service will assess the status and the relative

priority of all section 4 petition and rulemaking activities that are

the subject of active litigation. The Service, through the Department

of the Interior's Office of the Solicitor, will then notify the Justice

Department of its priority determinations and request that appropriate

relief be sought from each district court to allow those species with

the highest biological priority to be addressed first. As noted in the

guidance issued May 16, 1996, when the Service undertakes one listing

activity, it inevitably foregoes another, and 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.

However, to the extent that these efforts to uphold the Service's

listing priority guidance and the 1983 listing priority guidelines do

not receive deference in the courts, the Service will need to comply

with court orders despite any conservation disruption that may result.

The fact that the Service acknowledges its duty to comply with court

orders should not, however, be interpreted to mean that any court order

is consistent with this guidance without regard to how disruptive it

may be to the Service's effort to make the most biologically sound use

of its resources.

The Service will not elevate the priority of proposed listings for

species under active litigation. To do so would let litigants, rather

than expert biological judgments, set listing priorities. The Regional

Office with responsibility for processing such packages will be

responsible for determining the relative priority of such cases based

upon this proposed guidance and the 1983 listing priority guidelines,

and for furnishing supporting documentation that can be submitted to

the relevant court to indicate where such species rank in the overall

priority scheme.

Public Comments Solicited

The Service intends that any action resulting from this proposed

guidance be as accurate and as effective as possible. Therefore, any

comments or suggestions from the public, other concerned governmental

agencies, the scientific community, environmental groups, industry,

commercial trade entities, or any other interested party concerning any

aspect of this proposed guidance are hereby solicited. The Service will

take into consideration any comments and additional information

received (especially the final FY 97 appropriations law) and will

announce further guidance after the close of the public comment period

and as promptly as possible after a FY 97 appropriations bill for the

Department of the Interior is approved and becomes law.

Authority

The authority for this notice is the Endangered Species Act of

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

Dated: September 9, 1996.

John G. Rogers,

Acting Director, U.S. Fish and Wildlife Service.

[FR Doc. 96-23719 Filed 9-16-96; 8:45 am]

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