Endangered and Threatened Wildlife and Plants; Final Listing Priority Guidance for Fiscal Year 2000

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

Endangered and Threatened Wildlife and Plants; Final Listing

Priority Guidance for Fiscal Year 2000

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice.

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SUMMARY: We (the U.S. Fish and Wildlife Service) announce final

guidance for assigning relative priorities to listing actions conducted

under section 4 of the Endangered Species Act of 1973 as amended (Act)

during fiscal year (FY) 2000. We have returned to a more balanced

listing program and have reduced the serious backlogs that remained

from the 1995-96 moratorium and funding rescission. Nevertheless, a

method for prioritizing among the various listing activities remains

necessary because it is still extremely important for us to focus our

efforts on listing actions that will provide the greatest conservation

benefits to imperiled species in the most expeditious and biologically

sound manner. We will no longer recognize tiers and, nationwide, we

will undertake all listing activities in all priority levels

simultaneously; however, we will observe relative priorities among

various listing actions as described in this guidance. The 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 is the processing

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of final determinations on proposed additions to the lists of

endangered and threatened wildlife and plants. Third priority is

processing new proposals to add species to the lists. The processing of

administrative petition findings (petitions filed under section 4 of

the Act) is the fourth priority. The processing of critical habitat

determinations (prudency and determinability decisions) and proposed or

final designations of critical habitat will be funded separately from

other section 4 listing actions and will no longer be subject to

prioritization under Listing Priority Guidance. Critical habitat

determinations, which were previously included in final listing rules

published in the Federal Register, may now be processed separately, in

which case stand alone critical habitat determinations will be

published as notices in the Federal Register. We will undertake

critical habitat determinations and designations during FY 2000 as

conservation efforts demand and in light of resource constraints.

Delisting activities are no longer part of the listing program and have

been undertaken by the recovery program since FY 1999. In addition, all

listing and delisting of foreign species are carried out by the

Service's International Affairs program and are not addressed in this

notice.

DATES: This Listing Priority Guidance is effective immediately upon

publication and will remain in effect until modified or terminated.

This is internal Service guidance that will neither invoke nor relieve

restrictions on the private or public sector. Therefore, in accordance

with 5 U.S.C. 553(d), we have determined that good cause exists to make

the effective date of this notice immediate.

ADDRESSES: Submit questions regarding this guidance to the Chief,

Division of Endangered Species, U.S. Fish and Wildlife Service, 1849 C

Street, NW, Mailstop ARLSQ-420, Washington, D.C. 20240.

FOR FURTHER INFORMATION CONTACT: Nancy Gloman, Chief, Division of

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

ADDRESSES section).

SUPPLEMENTARY INFORMATION:

Background

We 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 Act. We

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 1995-96

listing moratorium and funding rescission. The enactment of Public Law

104-6 in April 1995 rescinded $1.5 million from our budget for carrying

out listing activities through the remainder of FY 1995. Public Law

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. For more

than half of FY 1996, we operated without a final budget due to a

series of continuing resolutions. Those continuing resolutions

continued the moratorium and provided almost no funds for listing. The

net effect of the moratorium and the limited funding provided by

continuing resolutions was that our 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 waived the

moratorium. At that time, we had accrued a backlog of proposed listings

for 243 species. The limited funding available 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, we 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). We 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 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 were assigned lowest priority (Tier

4). We published Listing Priority Guidance for FY 1998 and 1999 on May

8, 1998 (63 FR 25502), and employed a three-tiered system. Emergency

actions comprised Tier 1, all other listing actions except critical

habitat designation were included in Tier 2, and critical habitat

designation was the lowest priority, or Tier 3.

While operating the listing program under the Final FY 1998 and FY

1999 Listing Priority Guidance, we focused our resources on completing

Tier 2 activities. Two emergency listing actions (for the San

Bernardino kangaroo rat (63 FR 3835) and Jarbidge population of bull

trout (63 FR 42757)) were necessary in FY 1998. During FY 1998, we made

final determinations for 57 species (47 final listings and 10

withdrawals). As a result of this expeditious progress, only 84

proposed species remained at the end of FY 1998 (including 42 newly

proposed species). We published petition findings for 18 species (11

90-day findings and seven 12-month findings). We proposed one species,

the peregrine falcon in North America, for delisting during FY 1998.

Since the end of FY 1998, and up to July 31, 1999, 38 final

determinations, 18 proposed rules, 15 petition findings, five proposed

delistings, one final delisting, and two proposed and three final

critical habitat designations have been completed. The proposed

critical habitat designations, Tier 3 activities, were undertaken to

comply with court orders. However, we did make critical habitat

determinations (prudency and/or determinability decisions) for each

final listing during FY 1998 and through July 30, 1999.

Despite the return to a more balanced listing program, backlogs

remain. As of July 31, 1999, there are 66 proposed species awaiting

final determinations, and 154 candidates awaiting resolution of their

conservation status. Fifty-three species have pending 90-day petition

findings and 22 species have pending 12-month petition findings.

Various district courts and appellate courts have

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remanded not prudent critical habitat determinations to us for

reconsideration. Currently, we have to reconsider not prudent

determinations for 245 Hawaiian Island plants and four vernal pool

fairy shrimp that courts have remanded.

As stated in the FY 1998 and FY 1999 Listing Priority Guidance, it

is important to recognize that we face even greater backlogs in our

responsibilities to implement other aspects of the Act. The section 7

consultation and habitat conservation planning (HCP) backlogs continue

to grow. The backlog of species awaiting Recovery Plans and the

shortage of funding used for recovery implementation make the recovery

backlog most severe. We base our funding requests on the workloads

faced by all activities of the endangered species program. In FY 1999,

the Department of the Interior requested significant increases in

funding for all endangered species activities, but proportionally less

for the listing program. The magnitude of the other endangered species

backlogs exceeds the listing backlog, and was therefore reflected in

the overall Department of the Interior funding request that included

larger increases for the other endangered species programs.

In enacting the Department of the Interior's FY 1999 Omnibus and

Emergency Supplemental Appropriations Act (Public Law 105-277),

Congress provided only modest increases. Congress included in the

Department of the Interior's FY 1998 appropriation an express limit on

the amount to be spent on listing actions (including the designation of

critical habitat); that continues this year, and the limit is $5.756

million.

Even with the gradual reduction of the backlogs of proposed species

pending final action, candidate species awaiting proposal, and

petitions awaiting administrative findings, it is extremely important

for us to focus our 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

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. We will continue to base decisions regarding the order in which

species will be proposed or listed on the 1983 listing priority

guidelines. We also must continue to prioritize among types of listing

actions and this level of relative prioritization is the guidance

provided below.

Analysis of Public Comments

On May 20, 1999, we published a notice in the Federal Register (63

FR 10931) announcing proposed listing priority guidance for FY 1999 and

FY 2000 and solicited public comment on that proposed guidance. We

received two letters of comment on the proposed guidance (in two

separate mailings) within the 30-day comment period specified in the

Notice of Proposed LPG for FY 1999 and 2000. One letter was generally

in favor of the proposed guidance and one letter was generally opposed.

A summary of the issues raised and our response follows.

Issue 1: The order for processing species listings should be based

on the immediacy and magnitude of the threats facing the species, as

outlined in the proposed Listing Priority Guidance. The priorities for

listing proposed in the guidance (emergency listings, final decisions,

resolving the status of candidate species, processing administrative

petition findings) will help to ensure the greatest conservation

benefits for imperiled species in the most expeditious and biologically

sound manner.

Response 1. We agree that the priorities outlined in the proposed

Listing Priority Guidance are sound. We developed our priority system

in order to provide the Act's protection to the most imperiled species

as quickly as possible. We received no additional information or

comments during the comment period that required the re-examination or

revision of these priorities.

Issue 2. Delisting activities are most appropriately undertaken by

the Service's Recovery Program, and the Service should provide a

funding amount that will be allocated within the Recovery Program

specifically for completing delisting actions.

Response 2. We agree that delisting actions should be accomplished

through our recovery program, instead of the listing program. Although

delisting activity is not a separate line item in Service budget

requests or Congressional appropriations, beginning in 1999, work on

delisting was included in the line item for the recovery program. Prior

to that time it was included in the line item for the listing program.

For Fiscal Year 1999, a total of $1 million was allocated to our

regions for work specifically related to delisting or reclassification

actions, and we plan to continue allocating a specific amount of

recovery funds for this purpose in future years.

Issue 3. Many of the Service's administrative and funding problems

related to listing activities are indicative of the larger problem of

insufficient attention to species prior to the need to list them. The

Service should continue to construct conservation agreements and

habitat conservation plans, and should seek additional ways to address

conservation issues proactively, in a manner that will preclude the

need for listing whenever possible.

Response 3. Efforts to conserve species and their habitats prior to

the need to list are extremely important. Initiating or expanding

conservation actions before a species and its habitat are critically

imperiled makes it more likely that simpler, more cost-effective

conservation options will still be available and that conservation will

ultimately be successful. In addition, removing the need to list a

species through early conservation actions maintains land use and

development flexibility for landowners. Our candidate conservation

program involves a collaborative approach with States and Territories,

other Federal agencies, and the private sector to identify species that

are in need of conservation actions. In cooperation with our partners,

we plan and implement conservation actions to stabilize or conserve

species and their habitats, thus reducing and removing threats so that

Federal listing is not necessary. We note that our efforts to conserve

candidate species do not come at the expense of the listing program, as

candidate conservation is funded by a separate budget line-item.

We recently published final policies on Safe Harbor Agreements and

Candidate Conservation Agreements with Assurances (CCAA) (June 17,

1999; 64 FR 32726). These Agreements are becoming extremely important

and effective candidate conservation tools. The CCAA policy offers

assurances as an incentive for non-Federal property owners to implement

conservation measures for species that are proposed for listing,

species that are candidates for listing, and species that are likely to

become candidates in the near future. In turn, property owners receive

assurances that additional conservation measures will not be required

and additional land, water, or resource use restrictions will not be

imposed should the species become listed in the future. We agree that

proactive conservation actions are vitally important and should be

initiated as early as possible. We encourage Federal, State, and

private partners to continue working with us to remove and reduce

threats to imperiled species so that listings may be precluded.

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Issue 4. If the Service's Listing Priority Guidance permits

statutorily defined deadlines to be exceeded, the Listing Priority

Guidance violates the Act. The Service should establish a listing

procedure that guarantees that each deadline will be met. This

procedure should include the following: uniform intermediate deadlines

that Service listing staff must meet, elimination of multiple

intermediate reviews, elimination of multiple public comment periods

and comment period extensions, and elimination of reviews as required

under various Executive Orders (Executive Orders provide that they

cannot cause non-compliance with statutes). If necessary, imperfect

decisions can be made in order to comply with the mandated deadlines,

and remedied later with revisions.

Response 4. Contrary to the commenter's assertion, the Listing

Priority Guidance does not ``permit'' statutorily defined deadlines to

be exceeded. It is an unfortunate fact that some of those deadlines

will be exceeded with or without the Listing Priority Guidance. The

conflict between the listing actions required and deadlines imposed by

the Act and the appropriations provided by Congress make it impossible

for the Service to avoid delaying compliance with the Act. Therefore,

until Congress provides adequate funding, the relevant question is not

whether we will delay taking some listing actions required by the Act,

but what actions will we delay and with respect to what species. In the

Listing Priority Guidance, we have created a uniform policy for

answering these questions. The Listing Priority Guidance improves our

efficiency, thereby minimizing the need for such delays, and helps us

determine which delays of the Act will be of the least consequence to

imperiled species. Thus, the LPG is our blueprint for working to comply

with the Act while providing the most conservation benefit in

furthering the purposes of the Act.

We have established a listing procedure through which we endeavor

to meet statutory and regulatory guidelines to the extent made possible

by the annual appropriations for listing activities. We are committed

to making listing determinations based on the best available scientific

and commercial information as required by the Act. Violation of this

standard is no less a violation of the Act than missing a statutory

deadline. The opening of public comment periods is necessary to ensure

that the public has ample opportunity to provide us with any pertinent

information of which we may not be aware. Our agency review process,

which does contain internal deadlines for certain review stages, is

necessary to ensure that the best available information has been used

to make the most appropriate listing decision. In addition, various

Executive Orders, such as Executive Order 12866, require that we obtain

external review prior to publication of proposed and final listing

rules. Under this Executive Order, the Office of Management and Budget

must review significant regulatory actions. Coordinated review of

agency rulemaking is necessary to ensure that regulations are

consistent with applicable law and the President's priorities, and that

decisions made by one agency do not conflict with the policies or

actions taken or planned by another agency. This Executive Order

requires the Office of Management and Budget to complete its review

within 90 calendar days of receipt of the rule. In cases where a

statutory or court-ordered deadline is applicable, this Executive Order

directs agencies to schedule rulemakings, to the extent practicable, so

as to permit sufficient time for the Office of Management and Budget to

complete its review prior to the deadline. In some cases where courts

have imposed very short deadlines for completion of rules, this has not

been practicable. Lastly, we regularly review and revise the status of

species after they have been listed when additional information is

obtained that indicates such revision is appropriate. We will not

knowingly issue ``imperfect decisions'' in order to expedite listing

actions to meet mandated deadlines as suggested by the commenter.

Issue 5. The proposed Listing Priority Guidance states that

``[c]ritical habitat determinations, which were previously included in

final listing rules published in the Federal Register, may now be

processed separately.'' The Act does not allow this separation.

Response 5. It is true that Section 4(a)(3) of the Act requires

that critical habitat be designated concurrently with listing to the

maximum extent prudent and determinable. However, as discussed in our

response to Issue 4, we are unable to comply with all of the

requirements of the Act at current funding levels. In some cases,

making prudency and determinability findings, as well as actual

critical habitat designations, will divert limited listing resources

from other listing actions required by the Act. Therefore, in

appropriate cases, we will delay all critical habitat determinations

for a species in order to comply with other statutory requirements that

provide greater conservation benefit in furtherance of the purposes of

the Act.

Issue 6. The Service's position that critical habitat is relatively

unimportant is contradicted by the Act and its legislative history.

Response 6. We believe that protection of habitat is paramount to

successful species' conservation. On June 14, 1999, we published a

Notice of Intent to Clarify the Role of Habitat in Endangered Species

Conservation (64 FR 31871). As we stated in that notice, we believe

that the process of habitat protection via critical habitat designation

is most properly examined in the broad context of the overall

importance of habitat in endangered species conservation.

Habitat considerations are a key part of virtually every process

called for in the Act. We describe the habitat needs of species, and

threats to habitat, in detail in all listing rules. In fact, Factor

A of the ``Summary of Factors Affecting the Species'' section of all

proposed and final listing rules discusses ``The Present or

Threatened Destruction, Modification, or Curtailment of the Habitat

or Range'' of the species. For most species, the threats to habitat

are the most important consideration when determining if a species

qualifies for protection under the Act. Habitat considerations are

prominent in all recovery plans, and recovery plans include maps and

descriptions of the habitat needed to recover the species. The

section 7 consultation process addresses the dynamic and seasonal

characteristics of the habitat needs of listed species. New

information concerning species' habitat use becomes available

throughout the listing, consultation, habitat conservation planning,

and recovery processes. It is essential that we consider current and

complete habitat information in these processes. The analysis of

habitat alteration and/or destruction is the cornerstone of the

Act's section 7 consultation process and the section 10 habitat

conservation planning process; this is true for species that have

designated critical habitat, as well as for those species that do

not. Habitat is identified, communicated to affected parties,

protected, and conserved through all phases of applying the Act's

protections. The conservation and recovery of imperiled species are

dependent upon habitat protection and restoration. When species are

listed as threatened or endangered, the habitats or ecosystems upon

which they depend are recognized. Conservation and recovery actions

are directed not only to the imperiled species, but to the species'

habitat, as well. (64 FR 31871).

The designation of critical habitat has only one regulatory impact:

under section 7(a) (2), Federal agencies must, in consultation with us,

insure that any action they authorize, fund, or carry out is not likely

to result in the destruction or adverse modification of critical

habitat. Destruction or adverse modification is a direct or indirect

alteration that appreciably diminishes the value of critical habitat

for both the

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survival and recovery of a listed species. However, section 7 also

prohibits Federal agencies from taking actions that jeopardize the

continued existence of a listed species. To jeopardize the continued

existence of a species is to engage in an action that reasonably would

be expected, directly or indirectly, to reduce appreciably the

likelihood of both the survival and recovery of a listed species in the

wild by reducing the reproduction, numbers, or distribution of species.

For almost all species, the section 7 critical habitat adverse

modification and jeopardy standards are the same, resulting in an

unnecessarily duplicative and expensive regulatory process.

Therefore, while we firmly believe that attention to and protection

of habitat is paramount to successful conservation actions, we have

found that, in most circumstances, the designation of ``official''

critical habitat is of little additional value for most listed species.

Issue 7. The Service's position that it will not allow litigation

to affect its priorities violates the Act's citizen suit provision, and

unnecessarily burdens the courts and others with protracted litigation.

The Service should respond to 60-day notices and enter into settlement

agreements to avoid protracted litigation.

Response 7. As we stated in the proposed Listing Priority Guidance

(64 FR 27596), we will not adjust our biological priorities to reflect

the threat of litigation. This position does not violate the Act's

provision that allows for citizen suits. According to section 11 (g)

(1) (c), any person may commence a civil suit on his own behalf against

the Secretary where there is alleged a failure of the Secretary to

perform any act or duty under section 4 which is not discretionary with

the Secretary. In cases where such citizen suits have been filed

regarding the processing of listing actions in accordance with our

Listing Priority Guidance, we continue to seek from the courts

recognition of our need to allocate our limited listing budget so as to

best fulfill the spirit and intent of the Act. We will, of course,

comply with all court orders. When possible and when consistent with

our biologically-based priorities, we have entered into, and will

continue to seek settlement agreements to resolve outstanding

litigation. However, adopting the commenter's position would result in

allocating scarce resources based on litigation rather than biology.

For instance, in response to litigation, we might spend our entire

listing budget designating critical habitat for species already listed

and therefore subject to most of the protections of the Act, while a

gravely imperilled species without the benefit of an interested

litigant would be denied the Act's protection.

Final Listing Priority Guidance for Fiscal Year 2000

Relative Listing Priorities

Nationwide in FY 2000, we will undertake the full array of listing

actions consistent with the relative priority guidance described below.

However, some Regions and some Field Offices within Regions have

significant backlogs of proposed species, candidates, and petitions.

Therefore, additional guidance is needed to clarify the relative

priorities among the various listing activities.

Completion of emergency listings for species facing a significant

risk to their well-being remains our highest priority. Emergency

actions take precedence over all other section 4 listing actions. With

the exception of emergency actions, all other listing activities may be

undertaken simultaneously. Regions should assign relative priorities

for their remaining non-emergency listing actions based on the

following priority levels. Processing final decisions on pending

proposed listings are Priority 2 actions. Priority 3 actions are the

resolution of the conservation status of species identified as

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

Priority 4 actions are the processing of 90-day or 12-month

administrative findings on petitions.

The processing of petitions requesting critical habitat

designations and the preparation of proposed and final critical habitat

determinations and/or designations will no longer be prioritized with

other section 4 listing actions. Critical habitat actions will be

conducted within a specified amount of funding ($979,000 (17% of total)

for FY99) which has been set aside out of the listing subactivity.

Priority 1--Emergency Listing Actions

We 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 includes preparing a proposed rule to list the

species. Every petition to list a species or reclassify a threatened

species to endangered will be reviewed in order to determine whether an

emergency situation exists. If the initial review indicates an

emergency situation, the action will be a Priority 1 action and an

emergency rule to list the species will be prepared immediately.

Emergency listings are effective for 240 days. A proposed rule to list

the species is usually published concurrently with the emergency rule

to ensure that the final listing and full protection of the Act are

established before the 240-day emergency protection expires. If the

initial review does not indicate that emergency listing is necessary,

processing of the petition will be assigned to Priority 4 as discussed

below.

Priority 2--Processing Final Decisions on Proposed Listings

Proposed species are just one step away from receiving the most

important protections under the Act. The majority of the unresolved

proposed species face high-magnitude threats. By focusing our efforts

on completing final determinations, we can provide the maximum

conservation benefits to the largest numbers of 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 the 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 proposed listing final 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.

Priority 3--Resolving the Conservation Status of Candidate Species

(Resulting in a New Proposed Rule or a Candidate Removal)

The publication of new proposals (candidate conservation

resolution) to add species to the lists of threatened and endangered

species has significant conservation benefit. Under the 1983 listing

priority guidelines, proposed rules dealing with taxa believed to face

imminent, high-magnitude threats have the highest relative priority

within Priority 3. If an emergency situation exists, the species will

be elevated to Priority 1. Proposed listings that cover multiple

species facing high-magnitude threats have priority over single-species

proposed rules unless we have 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

[[Page 57119]]

priorities that require extensive work to complete.

Issuance of a new proposed listing 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 us on actions that

are likely to jeopardize the continued existence of proposed species.

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). Candidate species

include species petitioned for listing, for which we have made a

warranted but precluded finding pursuant to section 4(b)(3)(B)(iii) of

the Act.

Priority 4--Processing Administrative Findings on Petitions to Add

Species to the Lists and Petitions to Reclassify Species

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

findings to add species to the lists or reclassify species will be

Priority 4 activities. Once a 90-day petition finding is published, we

will make every reasonable effort to complete the 12-month finding in

the appropriate time frame. When it is practicable for us to complete a

90-day finding within 90 days, we are 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 us

to complete a 90-day finding within 90 days of receipt of the petition,

after the 90-day finding is completed, we will require 9 months to

complete a thorough biological status review and issue a 12-month

finding.

Allocating Listing Resources Among Regions

We allocate the listing appropriation among our seven Regions 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 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. Our experience in administering the Act for the past twenty

five years has shown, however, that we need 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, we have experimented with reassigning

workloads from heavily burdened Regions to less burdened Regions. This

approach has proven to be very inefficient because the expertise

developed by a biologist who works on a species' listing is useful in

recovery planning and other conservation activities for that species.

Additionally, biologists in a Region are familiar with other species in

that Region that interact with the species proposed for listing, and

that knowledge is useful in processing a final decision. For these

reasons, we have found it unwise to reassign one Region's workload to

personnel in another Region. Because we must maintain a listing program

in each Region, Regions with few outstanding proposed listings may be

able to address more lower priority listing actions, while Regions with

many outstanding proposed listings will use most of their allocated

funds on Priority 2 actions (finalizing proposed listings) or Priority

3 actions (completing new proposals to add species to the lists). It is

the responsibility of individual Regions to recognize their workloads

and backlogs and undertake priorities (1-4) as their regional workloads

permit. We will provide critical habitat funding on a project-by-

project basis in FY 2000.

Addressing Matters in Litigation

The numerous statutory responsibilities we bear under the Act do

not come with an unlimited budget. We are sometimes required to make

difficult choices about how to prioritize carrying out those statutory

responsibilities in order to make the best use of our limited

resources. Under these circumstances, technical compliance with the

various sections of the Act with respect to one species can mean

failure to comply with the other technical requirements of the Act for

the same or another species. This guidance is part of a continuing

effort to strive to achieve compliance with the Act in the manner that

best fulfills the spirit of the Act, using our best scientific

expertise.

Individuals or organizations occasionally bring suit against us for

failing to carry out specific actions with regard to specific species.

Many of these suits question our judgment and priorities, and seek

compliance with the Act in circumstances that do not, in our judgment,

lead to the best use of our resources to provide the maximum

conservation benefit to all species. In many of the outstanding section

4 matters currently in litigation, the effect of what the plaintiff

seeks is to require us to postpone or sacrifice conservation actions

that we believe would have major conservation benefits in favor of

actions that we believe would have lesser conservation benefits.

In no case will we adjust our biological priorities to reflect the

threat of litigation. We have sought and will continue to seek from the

courts recognition of our need to allocate our limited listing budget

so as to best fulfill the spirit of the Act. We will, of course, comply

with all court orders.

National Environmental Policy Act

We do not consider the implementation of this guidance to be a

major Federal action significantly affecting the quality of the human

environment for the purposes of the National Environmental Policy Act

(NEPA) of 1969 (42 U.S.C. 4321 et seq.). Further, the Department of the

Interior's Departmental Manual (DM) categorically excludes from

consideration under NEPA, ``Policies, directives, regulations, and

guidelines of an administrative, financial, legal, technical, or

procedural nature or the environmental effects of which are too broad,

speculative, or conjectural to lend themselves to meaningful analysis

and will be subject later to the NEPA process, either collectively or

case-by-case.'' This guidance clearly qualifies as an administrative

matter under this exclusion. We also believe that the exceptions to

categorical exclusions (DM 2 Appendix 2) would not be applicable to

such a decision, especially in light of environmental effects for such

action.

Authority

The authority for this notice is the Endangered Species Act of

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

Dated: September 15, 1999.

Marshall P. Jones,

Acting Director,

U.S. Fish and Wildlife Service.

[FR Doc. 99-27689 Filed 10-21-99; 8:45 am]

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