Endangered and Threatened Wildlife and Plants; Interim Listing Priority Guidance

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

Endangered and Threatened Wildlife and Plants; Interim Listing

Priority Guidance

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of interim listing priority guidance.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) adopts interim

guidance for assigning relative priorities to listing actions conducted

under section 4 of the Endangered Species Act (Act). Congress enacted a

moratorium on final listings and critical habitat designations in April

1995 which, combined with severe funding constraints, essentially shut

down the Service's listing program beginning in October 1995. During

this shutdown, a large backlog of listing actions, particularly

unresolved proposed listings, is accruing. When the moratorium is

lifted and adequate funding is restored to operate a listing program,

the Service will need to act expeditiously to resolve the status of

outstanding proposed listings. This guidance supplements, but does not

replace, the current listing priority guidelines, which are silent on

the matter of prioritizing among different types of listing activities.

While the backlog exists, and in order to focus conservation benefits

on those species in greatest need, the Service believes that processing

the outstanding proposed listings should receive higher priority than

other actions authorized by section 4 (such as petition findings, new

proposed listings, and critical habitat determinations).

DATES: This guidance takes effect March 11, 1996. Comments on this

guidance will be accepted until April 10, 1996. This interim guidance

will remain in effect until September 30, 1996, unless extended by

further notice.

ADDRESSES: Comments on this interim guidance should be addressed to the

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

1849 C Street NW., Mailstop ARLSQ-452, Washington, DC 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 Public Law 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.

Since the end of Fiscal Year 1995, funding for the Service's

endangered species programs, including listing of endangered and

threatened species, has been provided through a series of continuing

resolutions, each of which has 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

these legislative and administrative actions is that the Service's

listing program has been essentially shut down since October 1995, and

will remain so until adequate funding is restored. The moratorium and

severe funding restrictions have created problems that require

additional guidance.

When adequate appropriations are provided by the Congress for the

administration of a listing program and when the listing program is no

longer restricted by moratoria or similar conditions, the Service will

face the considerable task of restaffing its listing program and

allocating the available resources to the following listing activities

that have accrued significant backlogs. First, the Service has issued

proposed listings for 243 species, which require final decisions.

Second, although the moratorium imposed by Pub. L. 104-6 does not

specifically extend to petition processing or the development of new

proposed listings, the extremely limited funding available to the

Service for listing activities has generally precluded these actions

since October 1, 1995. However, during this period the Service has

continued to receive new petitions and now has a backlog of petitions

that request the listing or delisting of 41 species under section

4(b)(3) of the Act. Third, the Service is required by numerous court

orders or settlement agreements to process a variety of actions under

section 4 of the Act. Fourth, the Service also needs to make

expeditious progress on determining the conservation status of the 182

species designated by the Service as candidates for listing in the

recently published Candidate Notice of Review (61 FR 7596; February 28,

1996). These backlogs and court orders illustrate the need for program-

wide priorities to guide the allocation of resources once the listing

program is revived. For the above reasons, good cause exists to make

this guidance effective immediately.

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

[[Page 9652]]

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, petitions, and 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 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 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.

While funding for listing activities is allocated based on expected

workload, the types of activities composing each Region's listing

workload vary greatly. As a result, Regions with few outstanding

proposed listings may be able to process new proposed listings or

petition findings before all of the outstanding proposed listings have

been processed in Regions with large numbers of outstanding proposed

listings.

To address the biological, budgetary, and administrative issues

noted above, the Service therefore adopts the following interim listing

priority guidance.

Interim Listing Priority Guidance

The Headquarters Office will promptly process any draft petition

findings, draft proposed rules or final rules (once the moratorium is

lifted) to add species to the lists, draft proposed or final critical

habitat determinations (once the moratorium is lifted), or draft

withdrawal notices that could not be processed because of the funding

constraints or the moratorium. This will only apply to draft documents

already approved by the Field and Regional Offices but for which final

action could not be completed per guidance issued by the Director.

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 should be used as applicable. The

Service emphasizes that this guidance is effective until September 30,

1996 (unless extended by future notice) and the agency fully

anticipates returning to a more balanced implementation of the Act's

listing responsibilities to concurrently process petition findings and

proposed and final listings and critical habitat determinations, after

funding has been restored and the backlogs reduced.

Tier 1--Emergency Listing Actions

Once the moratorium is lifted, 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. This provision will also apply to any

petitioned species for which the Service deems an emergency situation

exists.

Tier 2--Processing Final Decisions on Proposed Listings (Applies After

the Moratorium is Lifted)

In issuing the outstanding proposed listings, the Service deemed

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.

Tier 3--Processing New Proposed Listings for Species Facing High-

Magnitude Threats (Listing Priority Numbers 1 through 6) and Initial

Screening of Petitions

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 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. Many

candidate species face high-magnitude threats and the need to start the

regulatory process justifies placement of this activity in Tier 3.

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. If the initial

screening indicates a species that probably faces high-magnitude

threats, processing of the petition will be assigned to Tier 3.

Tier 4--Processing new Proposed Rules for Species Facing Moderate- or

Low-Magnitude Threats; Processing Administrative Findings on Petitions

not Assigned to Tiers 1 or 3; and Processing Final Decisions on

Proposed Delistings or Reclassifications

Processing of new proposed rules for species facing moderate- or

low-magnitude threats would provide less conservation benefit than

actions described in Tiers 1 through 3, so the Service is assigning

this activity to Tier 4.

Administrative findings for petitions that are not assigned to

Tiers 1 or 3 after initial screening will be processed as a Tier 4

priority but only to the extent that such action does not substantially

deter from the Service's ability to deal with the backlog of proposed

listings.

Processing of final decisions for previously proposed delistings

and reclassifications provides relief from unnecessary regulations. The

Service believes that providing such regulatory relief is an

appropriate Tier 4 activity.

Tier 5-- Processing Critical Habitat Determinations and Processing new

Proposed Delistings or Reclassifications

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 are

restricted to Federal actions, situations where designating critical

habitat provides additional protection beyond the protections included

in section 7 are rare. It is critical during this interim period to

maximize the conservation benefit of every dollar spent in the listing

activity. The small amount of additional protection that is gained by

designating critical habitat for species that are already on the lists

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

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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.

Issuing new proposed delistings and downlistings can provide

regulatory relief but will be accorded Tier 5 priority due to limited

listing resources and the fact that such actions will not become

effective in the immediate future.

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 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.

Proposed listings that cover multiple species facing high-magnitude

threats will 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 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.

Notifying the Courts on Matters in Litigation

The Service will assess the status and the relative priority of all

section 4 petition and rule-making activities that are the subject of

active litigation using this interim guidance and the 1983 listing

priority guidelines. 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. The Service will provide periodic updates to each

district court on the progress that it is making in addressing high

priority proposed and candidate species. However, to the extent that

these efforts to uphold the Service's interim 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 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, 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.

Public Comments Solicited

The Service intends that any action resulting from this guidance be

as accurate and as effective as possible. Therefore, any comments or

suggestions from the public, other concerned governmental agencies, the

scientific community, industry, commercial trade entities, or any other

interested party concerning any aspect of this guidance are hereby

solicited. While the guidance will be used immediately, the Service

will take into consideration the comments and any additional

information received. Such communications may lead to the adoption of

additional or revised guidance that differs from this interim guidance.

Authority

The authority for this notice is the Endangered Species Act of

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

Dated: March 1, 1996.

John G. Rogers,

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

[FR Doc. 96-5646 Filed 3-8-96; 8:45 am]

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