Endangered and Threatened Wildlife and Plants; Proposed Listing Priority Guidance for Fiscal Years 1998 and 1999

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

Endangered and Threatened Wildlife and Plants; Proposed Listing

Priority Guidance for Fiscal Years 1998 and 1999

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice.

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

proposed guidance for assigning relative priorities to listing actions

conducted under section 4 of the Endangered Species Act (Act) during

fiscal year (FY) 1998 and FY 1999. Although the Service is returning to

a more balanced listing program, serious backlogs remain and a method

of prioritizing among the various activities is necessary. Highest

priority will be processing emergency listing rules for any species

determined to face a significant and imminent risk to its well being.

Second priority will be processing final determinations on proposed

additions to the lists of endangered and threatened wildlife and

plants; the processing of new proposals to add species to the lists;

the processing of administrative petition findings to add species to

the lists, delist species, or reclassify listed species (petitions

filed under section 4 of the Act); and a limited number of delisting

and reclassifying actions. Processing of proposed or final designations

of critical habitat will be accorded the lowest priority.

DATES: Comments on this guidance will be accepted until April 6, 1998.

The FY 1997 Listing Priority Guidance (extended on October 23, 1997)

will remain in effect until the Final FY 1998 and FY 1999 guidance is

published.

ADDRESSES: Comments regarding this 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). However, this system does not

provide for prioritization among different types of listing actions

such as preliminary determinations, proposed listings, and final

listings.

Serious backlogs of listing actions resulted from the 1995 funding

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rescission and 1996 major reductions in funding for the listing program

and from the 1995-96 listing moratorium. 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 FY 1995. Pub.

L. 104-6 prohibited 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. 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 the Act

gave him to waive the moratorium. At that time, the Service had accrued

a backlog of proposed listings for 243 species. The extremely limited

funding available to the Service for listing activities generally

precluded petition processing and the development of proposed listings

from October 1, 1995, through April 26, 1996.

When the moratorium was lifted and funds were appropriated for the

administration of the listing program, the Service faced the

considerable task of allocating the available resources to the

significant backlog of listing activities. The Final Listing Priority

Guidance for FY 1996 was published on May 16, 1996 (61 FR 24722). The

Service followed that three-tiered approach until the Final Listing

Priority Guidance for FY 1997 was published on December 5, 1996 (61 FR

64475). The FY 1997 Listing Priority Guidance employed four tiers for

assigning relative priorities to listing actions to be carried out

under section 4 of the Act. Tier 1, the Service's highest priority, was

the processing of emergency listings for species facing a significant

risk to their well-being. Processing final decisions on pending

proposed listings was assigned to Tier 2. Tier 3 was to resolve the

conservation status of species identified as candidates and processing

90-day or 12-month administrative findings on petitions to list or

reclassify species from threatened to endangered status. Preparation of

proposed or final critical habitat designations and processing

reclassifications, activities which provide little or no additional

conservation benefit to listed species, were assigned lowest priority

(Tier 4).

While operating the listing program under the Final FY 1997 Listing

Priority Guidance, the Service focused its resources on issuing final

determinations (Tier 2 listing activities); no Tier 1 actions

(emergency listings) were required during FY 1997. During FY 1997, the

Service made final determinations for 156 species (145 final listings

and 11 withdrawals). As a result of this expeditious progress, only 100

proposed species remained at the end of FY 1997 (including newly

proposed species). After April 1, 1997, the Service began implementing

a more balanced listing program and began processing more Tier 3

listing actions. Thus, the Service also made expeditious progress on

determining the conservation status of species designated by the

Service as candidates for listing. A candidate is a species for which

the Service has found that there is sufficient information indicating

that a listing proposal is appropriate. Such a finding may be made on

the Service's own initiative, or as a result of the petition process.

Once a species is placed on the Service's list of candidates, its

conservation status must be resolved by either proposing the species

for listing or by completing a candidate removal form. During FY 1997,

the Service proposed 23 species from the candidate list. In addition,

the Service published 9 petition findings in FY 1997. The Service also

updated the list of candidate species with the publication of the most

recent Candidate Notice of Review published on September 19, 1997 (see

16 U.S.C. 1533(b)(3)(B)(iii)(II)); at that time, there were 207

candidate species. This total represents 52 additions to the list of

candidates.

During FY 1997, the Service returned to a more balanced listing

program, but serious backlogs remain. Besides the 100 species awaiting

final rules and the 207 candidates awaiting resolution of their

conservation status, there are 35 species with due/overdue 90-day

petition findings and 30 species with due/overdue 12-month petition

findings.

It is important to recognize that the Service faces even greater

backlogs in its responsibilities to implement other aspects of the Act.

There is a large section 7 consultation and Habitat Conservation

Planning (HCP) backlog. The recovery backlog of over 300 species

awaiting Recovery Plans and an extreme shortage of recovery

implementation funding make the recovery backlog most severe. The

Service bases its funding requests on the workloads faced by all

activities of the endangered species program. Because the magnitude of

the other endangered species backlogs exceeds the listing backlog, the

President's FY 1998 request for funding endangered species programs was

focused on section 7 consultation, HCPs, and recovery rather than

listing. However, the President's budget for FY 1999 includes a

significant increase in funding for listing.

In enacting the Department of the Interior's FY 1998 Appropriations

Act (Pub. L. 105-163), Congress agreed with the President's priorities

regarding endangered species funding, providing significant increases

to the section 7 consultation, HCP, and recovery programs, while still

providing for a modest increase in the listing program funding.

Moreover, Congress expressly limited the amount the Service can spend

on listing actions (including the designation of critical habitat) to

$5.19 million.

Given the backlogs of proposed species pending final action,

candidate species awaiting proposal, and petitions awaiting

administrative findings, it is extremely important for the Service to

focus its efforts on listing actions that will provide the greatest

conservation benefits to imperiled species in the most expeditious and

biologically sound manner. It has been longstanding Service policy

(1983 Listing and Recovery Priority Guidelines (48 FR 43098)) that the

order in which species should be processed for listing is based

primarily on the immediacy and magnitude of the threats they face. The

Service will continue to base decisions regarding the order in which

species will be proposed or listed on the 1983 listing priority

guidelines. The Service also must prioritize among types of listing

actions and this level of prioritization is the guidance provided

below.

The Service has made this guidance applicable to FY 1999 as well as

FY 1998 to avoid any confusion over whether this guidance will remain

in effect if the budget process for FY 1999 is delayed. However, when

the Service receives its FY 1999 budget, it will review this guidance,

and, if appropriate, modify or terminate it.

Proposed Listing Priority Guidance for Fiscal Years 1998 and 1999

To address the biological, budgetary, and administrative issues

noted above, the Service submits the following proposed listing

priority guidance. As with the Final Listing Priority Guidance for FY

1997 issued December 5, 1996 (extended on October 23, 1997), this

guidance supplements, but does not replace, the 1983 listing priority

guidelines, which was silent on the

[[Page 10933]]

matter of prioritizing among different types of listing activities.

As noted above, the Department of the Interior's FY 1998

appropriation provides no more than $5.19 million for the Service's

endangered species listing program. The $5.19 million budget for all

listing activities will fall far short of the resources needed to

completely eliminate the listing backlogs in FY 1998 and FY 1999.

Therefore, some form of prioritization is still necessary, and the

Service will implement the following listing priority guidance in FY

1998 and FY 1999.

The following sections describe a three-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 will continue to be used to set priority among species

within types of listing activities. The Service emphasizes that the

Final Listing Priority Guidance for FY 1997 (extended on October 23,

1997) will be effective until final FY 1998 and FY 1999 guidance is

issued, unless extended or canceled by future notice. In order to

continue to move toward a more balanced listing program, the Service

will concurrently undertake listing actions in Tiers 1 and 2 during FY

1998 with a listing budget of only $5.19 million. As the Service

informed Congress in its budget justification, critical habitat

designations (Tier 3 actions) during FY 1998 should not be expected.

The FY 1998 listing appropriation is only sufficient to support high-

priority listing, candidate assessment, petition processing activities,

and a minimal amount of high priority delisting/reclassification

actions. A single critical habitat designation could consume up to

twenty percent of the total listing appropriation, thereby disrupting

the Service's biologically based priorities. Higher priority listing

actions (Tiers 1 and 2) provide the greatest amount of protection for

imperiled species while making the most efficient use of limited

resources.

Completion of emergency listings for species facing a significant

risk to their well-being remains the Service's highest priority (Tier

1). Processing final decisions on pending proposed listings, the

resolution of the conservation status of species identified as

candidates (resulting in a new proposed rule or a candidate removal),

processing 90-day or 12-month administrative findings on petitions, and

undertaking a limited number of delisting/reclassification activities

are assigned to Tier 2. Third priority is the processing of petitions

for critical habitat designations and the preparation of proposed and

final critical habitat designations; these actions provide little added

conservation benefit and are therefore assigned lowest priority (Tier

3).

Tier 1--Emergency Listing Actions

The Service will immediately process emergency listings for any

species of fish, wildlife, or plant that faces a significant and

imminent 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 will conduct a preliminary review

of every petition that it receives to list a species or reclassify a

threatened species to endangered in order to determine whether an

emergency situation exists. If the initial review indicates an

emergency situation, the action will be elevated to Tier 1 and an

emergency rule to list the species will be prepared. Emergency listings

are effective for 240 days. A proposed rule to list the species is

usually published at the same time as an emergency rule. If the initial

review does not indicate that emergency listing is necessary,

processing of the petition will be assigned to Tier 2 as discussed

below.

Tier 2--Processing Final Decisions on Proposed Listings; Resolving the

Conservation Status of Candidate Species (Resulting in a New Proposed

Rule or a Candidate Removal); Processing Administrative Findings on

Petitions To Add Species To the Lists and Petitions to Delist or

Reclassify Species; and Delisting or Reclassifying Actions

The majority of the unresolved proposed species face high-magnitude

threats. Focusing efforts on completing final determinations provides

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 withdrawal of a proposed listing. Completion of a

withdrawal may not appear consistent with the conservation intent of

this guidance. However, once a determination not to make a final

listing has been made, publishing the withdrawal of the proposed

listing takes minimal time and appropriations. Thus it is more cost

effective and efficient to bring closure to the proposed listing than

it is to postpone the action and take it up at some later time. For the

same reasons, the Service will consider critical habitat prudency and

determinability findings to be Tier 2 activities, although actual

designation of critical habitat is a Tier 3 activity. The publication

of new proposals (candidate conservation resolution) and the processing

of petition findings to add species to the lists of threatened and

endangered species have significant conservation benefit and these

actions are also now placed in Tier 2. Delisting activities also have

been placed in Tier 2 because of the indirect conservation benefits of

these actions. Nationwide in FY 1998 and FY 1999, the Service will

undertake the full array of listing actions in Tiers 1 and 2 as

appropriate. However, some Regions and some Field Offices still have

significant backlogs of proposed species, candidates, petitions, and

delistings. Therefore, additional guidance is needed to clarify the

relative priorities within Tier 2.

Setting Priorities Within Tier 2

Pursuant to the 1983 listing priority guidelines, proposed rules

dealing with taxa believed to face imminent, high-magnitude threats

have the highest priority within Tier 2. If an emergency situation

exists, the species will be elevated to Tier 1. Proposed listings that

cover multiple species facing high-magnitude threats have priority over

single-species proposed rules unless the Service has reason to believe

that the single-species proposal should be processed first to avoid

possible extinction. Proposed listings for species facing high-

magnitude threats that can be quickly completed 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 will be processed

first.

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

regulatory process for listing a species. It provides some protection

in that all Federal agencies must ``confer'' with the Service on

actions that are likely to jeopardize the continued existence of

proposed species.

Resolving the conservation status of candidates will be afforded

the second highest priority within Tier 2. The resolution of a

candidate species' conservation status will be accomplished through the

publication of new proposed rules or the processing of candidate

removal forms (which, when signed by the Director, remove species from

the candidate list). The 1983 listing priority guidelines are the basis

for assigning a candidate species a listing priority number. This

system ensures that species in the greatest need

[[Page 10934]]

of protection should be processed first. New proposed listings for

species facing imminent, high-magnitude threats (candidates with the

highest listing priority numbers) will be processed ahead of candidates

with lower listing priority numbers. The Service includes new proposals

for petitioned species that are currently on the candidate list in this

priority level within Tier 2.

The processing of 90-day petition findings and 12-month petition

findings to add species to the lists will be the next priority among

Tier 2 listing activities. Once a 90-day petition finding is published,

the Service will make every reasonable effort to complete the 12-month

finding in the appropriate time frame. When it is practicable for the

Service to complete a 90-day finding within 90 days, the Service is

statutorily afforded a 12-month period from the receipt of a petition

to completion of the 12-month finding. However, in those cases in which

it is not practicable for the Service to complete a 90-day finding

within 90 days of receipt of the petition, after the 90-day finding is

completed, the Service will still require 9 months to complete a

thorough biological status review and issue a 12-month finding.

Finally, the Service expects to complete a small number of

delistings and reclassifications during FY 1998 and FY 1999. The

recovery of listed species is the ultimate goal of the endangered

species program. The Service finds that the prompt delisting of

recovered species and the reclassification of recovering species (from

endangered to threatened status) is necessary to keep the public and

other interested parties informed of a species' conservation status;

this is especially important to reducing the section 7 consultation

backlog since a species that is recovered and delisted will no longer

require consultation. Monitoring of species already on the lists is

accomplished through the recovery program; however, the small

expenditure of funds necessary to process the change in a species'

status will continue to be undertaken by the listing program. Delisting

and reclassifications will be afforded the lowest priority in Tier 2.

As with the processing of withdrawals, the conservation benefit of

these actions may not be readily apparent. However, the Service

believes that significant, albeit indirect, conservation benefit will

result from the processing of certain high-priority delisting or

reclassification actions. Moreover, the Service is obligated to

maintain the lists of threatened and endangered species and it is of

utmost importance to keep the lists accurate and up to date.

The Service expects to make substantial progress in removing or

reducing the backlogs of proposed species awaiting final determination,

candidates awaiting resolution, and petitions awaiting findings during

FY 1998 and FY 1999. During FY 1998 and FY 1999, the application of

both the listing priority guidance described above and the 1983

guidelines are critical to maintaining nationwide and program-wide

biologically sound priorities to guide the allocation of limited

listing resources.

Tier 3--Processing Critical Habitat Determinations

Designation of critical habitat, when undertaken, consumes large

amounts of the Service's listing appropriation and, in most cases, does

not add any conservation benefit beyond those achieved when a species

is listed as endangered or threatened. It is essential during periods

of limited listing funds to maximize the conservation benefit of

listing appropriations. The Service has determined that in most cases

no additional protection is gained by designating critical habitat for

species already on the lists and the application of the Service's

limited resources is best utilized to add new species to the lists

rather than designating critical habitat for species already receiving

full protection under the Act. The Service places higher priority on

addressing imperiled species that presently have very limited or no

protection under the Act, than on devoting limited resources to the

expensive process of designating critical habitat for species already

protected by the Act. Critical habitat will remain in Tier 3, and the

Service does not intend to process Tier 3 actions, including petitions

related to critical habitat designation, during FY 1998; this will be

re-evaluated when FY 1999 appropriations are received. Furthermore,

because the protection that flows from critical habitat designation

applies only to Federal actions, the designation of critical habitat

provides little or no additional protection beyond the ``jeopardy''

prohibition of section 7, which also applies only to Federal actions.

Allocating Listing Resources Among Regions

The Service allocates its listing appropriation among its seven

Regional Offices based strictly on the number of proposed and candidate

species for which the Region has lead responsibility with the exception

of providing minimum ``capability funding'' for one listing biologist

for each Region. The objective is to ensure that those areas of the

country with the largest percentage of known imperiled species will

receive a correspondingly high level of listing resources. The

Service's experience in administering the Act for the past two decades

has shown, however, 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, thus the ``capability

funding'' to each Region. 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 conservation activities, and that expertise should

be concentrated in the geographic area inhabited by the species. 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 has found it unwise to reassign one Region's

workload to personnel in another Region. Because the Service must

maintain a listing program in each Region, Regions with few outstanding

proposed listings may be able to address lower priority listing actions

within Tier 2 (such as new proposed listings or petition findings),

while Regions with many outstanding proposed listings will use most of

their allocated funds on finalizing proposed listings.

Addressing Matters in Litigation

The Service understands the numerous statutory responsibilities it

bears under the Act. These responsibilities, however, do not come with

an unlimited budget. The Service is often required to make choices

about how to prioritize its responses to those statutory

responsibilities in order to make the best use of its limited

resources. Under these circumstances, technical compliance with the Act

with respect to one species often means failure to comply with the

technical requirements of the Act for another species. This guidance is

part of a continuing effort to express to the public that the Service

is striving towards compliance with the Act in the manner that best

fulfills the spirit of the

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Act, using the Service's best scientific expertise.

The Service understands that some may believe they have reason to

bring suit against the Service for failing to carry out specific

actions with regard to specific species. These actions question the

Service's judgment and priorities, placing the emphasis of Act

compliance on technical fulfillment of the statute for specific species

rather than on the best use of the Service's resources to provide the

maximum conservation benefit to all species. There are many outstanding

section 4 matters currently in litigation. In each case, the plaintiff

seeks, in effect, to require the Service to sacrifice conservation

actions which the Service believes would have major impacts for actions

which the Service believes would have much lesser effects.

In no case will the Service adjust its priorities to reflect the

threat or reality of litigation. The Service has argued and will

continue to argue before the courts that it should be allowed to

prioritize its activities so as to best fulfill the spirit of the Act.

Should any court not accept this argument, the Service will, of course,

carry out the instruction of the court or the terms of any settlement

reached. The Service believes, however, that such obligations impede

the overall conservation effort for a much lesser benefit for a single

species.

For example, during FY 1997, a plaintiff succeeded in obtaining a

court order that required the Service to designate critical habitat for

the southwestern willow flycatcher. The Service acknowledges that it

had a responsibility to carry out this action and intended to meet its

statutory requirement, like all others, when its budget and backlog of

higher priority listing actions allowed. However, the Service still

contends that this particular action had relatively little conservation

benefit, especially compared to the numerous listings of wildlife and

plants that had to be delayed to allow it to proceed when it did. The

Service's Region 2 is suffering from their inability to prioritize its

responsibilities and complete several high priority species issues last

year.

Public Comments Solicited

The Service intends that any action resulting from this proposed

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

suggestions from the public, 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 and will

announce final guidance after the close of the public comment period

and as promptly as possible after all comments have been reviewed and

analyzed. The Final FY 1997 Listing Priority Guidance, extended on

October 23, 1997, will remain in effect until publication of the Final

FY 1998 and FY 1999 Listing Priority 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 2, 1998.

Jamie Rappaport Clark,

Director, U.S. Fish and Wildlife Service.

[FR Doc. 98-5814 Filed 3-4-98; 8:45 am]

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