[Federal Register Volume 61, Number 48 (Monday, March 11, 1996)]
[Rules and Regulations]
[Pages 9651-9653]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5646]



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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 

[[Page 9653]]
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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