[Federal Register Volume 61, Number 181 (Tuesday, September 17, 1996)]
[Notices]
[Pages 48962-48965]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23719]


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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) announces that it 
is extending its listing priority guidance until an appropriations law 
is approved for the Department of the Interior for fiscal year 1997 (FY 
97). The Service also proposes to amend and continue implementation of 
guidance for assigning relative priorities to listing actions conducted 
under section 4 of the Endangered Species Act (Act) during FY 97 and 
seeks public comment on this proposed guidance. The extension is 
necessary because the Service expects appropriated funds to fall short 
of those needed to eliminate the existing backlog of proposed listings 
and complete all listing actions required by the Act in FY 97. Under 
the proposed guidance, the Service would assign all listing actions to 
one of four tiers, as distinguished from the three tiers in the current 
guidance (61 FR 24722).

DATES: The extension of the existing listing priority guidance is 
effective October 1, 1996 and will remain in effect until the Service 
can determine the effects of any FY 97 appropriations law and then 
issue final guidance. Comments on the proposed FY 97 guidance will be 
accepted until October 17, 1996.

ADDRESSES: Comments on the proposed guidance should be addressed to the 
Chief, Division of Endangered Species, U.S. Fish and Wildlife Service, 
1849 C Street, N.W., Mailstop ARLSQ-452, Washington, D.C., 20240.

FOR FURTHER INFORMATION CONTACT: E. LaVerne Smith, Chief, Division of 
Endangered Species, U.S. Fish and Wildlife Service, 703-358-2171 (see 
ADDRESSES section).

SUPPLEMENTARY INFORMATION:

Background

    The Service adopted guidelines on September 21, 1983 (48 FR 43098-
43105) that govern the assignment of priorities to species under 
consideration for listing as endangered or threatened under section 4 
of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et 
seq.). The Service adopted those guidelines to establish a rational 
system for allocating available appropriations to the highest priority 
species when adding species to the lists of endangered or threatened 
wildlife and plants or reclassifying threatened species to endangered 
status. The system places greatest importance on the immediacy and 
magnitude of threats, but also factors in the level of taxonomic 
distinctiveness by assigning priority in descending order to monotypic 
genera, full species, and subspecies (or equivalently, distinct 
population segments of vertebrates).
    The enactment of Pub. L. 104-6 in April, 1995 rescinded $1.5 
million from the Service's budget for carrying out listing activities 
through the remainder of fiscal year 1995. Public Law 104-6 also 
contained a prohibition on the expenditure of the remaining 
appropriated funds for final determinations to list species or 
designate critical habitat which, in effect, placed a moratorium on 
those activities.
    From October 1, 1995 through April 26, 1996, funding for the 
Service's endangered species programs, including listing of endangered 
and threatened species, was provided through a series of continuing 
resolutions, each of which maintained in force the moratorium against 
issuing final listings or critical habitat designations. The continuing 
resolutions also severely reduced or eliminated the funding available 
for the Service's listing program. Consequently, the Service reassigned 
listing program personnel to other duties. The net effect of the 
moratorium and reductions in funding was that the Service's listing 
program was essentially shut down.
    The moratorium on final listings and the budget constraints 
remained in effect until April 26, 1996, when President Clinton 
approved the Omnibus Budget Reconciliation Act of 1996 and exercised 
the authority that Act gave him to waive the moratorium. At that time, 
the Service had accrued a backlog of proposed listings for 243 species. 
Moreover, although the moratorium imposed by Pub. L. 104-6 did not 
specifically extend to petition processing or the development of new 
proposed listings, the extremely limited funding available to the 
Service for listing activities generally precluded these actions from 
October 1, 1995 through April 26, 1996. The Service continued to 
receive new petitions and accrued a backlog of petitions that request 
the listing or delisting of 57 species under section 4(b)(3) of the 
Act. The Service has historically attempted to strike a balance among 
the various listing activities required by the Act, but as 
appropriations have not kept pace with the Service's workload, an 
increased backlog of listing actions has developed.
    In anticipation of receiving a listing appropriation for the 
remainder of FY 96, the Service issued and requested comment on interim 
listing priority guidance on March 11, 1996 (61 FR 9651). On May 16, 
1996, the Service addressed all public comments received on the interim 
guidance and published final listing priority guidance for fiscal year 
1996 activities (61 FR 24722). It is this guidance that is now extended 
until the Service can prepare final guidance based on the terms of a FY 
97 appropriations law.
    When the moratorium was lifted and funds were appropriated for the 
administration of a listing program, the Service faced the considerable 
task of allocating the available resources to the significant backlog 
of listing activities. Over the past four months, the Service has 
focussed its resources on processing existing proposals and has issued 
final rules listing five species.1 The relatively low number of 
final rules issued during this period resulted primarily from the time 
needed to restart the listing program from a total shutdown and the 
need to consider factual developments related to proposed listing 
packages (e.g., changes in known distribution, status, or threats) that 
took place during the year-long moratorium.
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    \1\ Final rules listing the red-legged frog, wahane (Hawaiian 
plant), and 3 plants from the Island of Nihoa, Hawaii.
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    Although progress has been made with regard to proposed rules, the 
Service also needs to make expeditious progress on determining the 
conservation status of the 183 2 species designated by the Service 
as candidates for listing in the most recent Candidate Notice of Review 
(61 FR 7596; February 28, 1996; see 16 U.S.C. 
Sec. 1533(b)(3)(B)(iii)(II)). The Service is also subject to extensive 
litigation that could require it to process a variety of actions under 
section 4 of the Act.
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    \2\ Effective August 26, 1996, the U.S. population of the short-
tailed albatross (Diomedea albetrus) was designated a candidate 
species.
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    Furthermore, it now appears that Congress will probably appropriate 
only about two-thirds of the amount the President's FY 97 budget 
requested for the listing program. The President's budget for FY 97 
requested $7.483 million for the listing program, but appropriations 
bills passed by the

[[Page 48963]]

House of Representatives and reported out by the Senate Appropriations 
Committee each propose to appropriate only $5 million for the program. 
The Senate bill also proposes to ``earmark'' $500,000 to be devoted 
specifically to withdrawal notices, delistings, or reclassifications of 
endangered species to threatened species.
    The above discussed backlogs and the pending funding shortfall 
underscore the need for program-wide priorities to guide the allocation 
of limited resources. Moreover, existing and threatened litigation may 
overwhelm the limited resources the Service anticipates receiving in FY 
97 unless priorities are set in advance.
    For example, the plaintiffs in Fund for Animals v. Babbitt, Civ. 
No. 92-800 (SS) (D.D.C.), recently filed a motion to enforce the 
December 15, 1992 Settlement Agreement in that case. They request the 
District Court to order the Service to publish listing proposals for 41 
of the candidate species covered by the Agreement (referred to 
hereafter as ``settlement species'') by December 30, 1996, and to 
publish listing proposals for the remaining 44 settlement species by 
March 30, 1997.
    Resolution of the conservation status of these 85 settlement 
species would require, for each species, publication of either a 
proposed listing rule or a notice stating reasons why listing is not 
warranted. The Agreement does not require final decisions on listings. 
Therefore, full compliance with the Agreement will not bring the full 
protection of the Act to any species, but rather would only somewhat 
advance the process toward listing.
    Up to the time the funding for the listing program became severely 
constrained, the Service was on track to achieve full compliance with 
this Agreement. The Service had published, during the period covered by 
the Agreement, proposed listing rules for 359 candidate species.
    Despite this progress, the Service is now left with the following 
dilemma. If it were to continue to spend scarce appropriated funds to 
move candidate species forward to the proposed listing stage in order 
to comply with the Settlement Agreement, it would deplete the entire 
$4.5 million listing appropriation that is anticipated for FY 97. 
Processing of proposed listing rules requires the investment of 
considerable time and resources. It involves substantial research, 
status review, coordination with State and local governments and other 
interested parties, and conducting public hearings and peer review. 
Furthermore, since most of the 98 candidate species that are not 
subject to the terms of the Agreement have high listing priority number 
assignments (64 non-settlement, candidate species have priority numbers 
of 1, 2 or 3), the Service would, in order to be consistent with the 
1983 listing priority guidance, have to process all 183 candidate 
species (85 settlement, 98 non-settlement) if ordered to comply fully 
with the terms of the Settlement Agreement during FY 97.
    The Service's entire anticipated FY 97 listing budget is 
insufficient to comply with the Fund for Animals Settlement Agreement. 
If it attempted to comply, it would devote no resources to making final 
listing decisions on the 237 species, the vast majority of which face 
high-magnitude threats, that have already been proposed for listing. 
Though so close to receiving the full protection of the Act, these 
species would move no closer to that goal while all the Service's 
efforts would be bent toward deciding whether to move candidate species 
closer to proposed listing, where they receive some limited procedural 
protection (the Section 7 conference requirement, see 16 U.S.C. 
Sec. 1536(a)(4)), but not the full substantive and procedural 
protection afforded by final listing.
    This course of action would also result in a still larger backlog 
of up to 420 proposed species. Meanwhile, the administrative records on 
many of the 237 species pending final decision could require, due to 
the additional one-year delay in the decision-making process, further 
public notice and comment proceedings in fiscal year 1998 because the 
scientific data they contain may no longer be current.
    In short, enforcement of the Fund for Animals Settlement Agreement 
in FY 97 would delay for at least one year the issuance of final 
listing rules and, in fiscal year 1998, would make the process of 
issuing final listing rules for the aging backlog of proposed species 
more time and labor intensive. Such action would entirely frustrate the 
objective of waiving the final listing moratorium in April of 1996. 
Therefore, in accordance with the Interior Department's recommendation, 
the Department of Justice has filed a motion with the District Court 
that seeks appropriate relief from the terms of the Agreement, 
consistent with the listing priorities articulated in this Notice.
    In order to focus conservation benefits on those species in 
greatest need of the Act's protections, the Service believes that 
processing the outstanding proposed listings should receive higher 
priority than other actions authorized by section 4 such as new 
proposed listings, petition findings, and critical habitat 
determinations.
    Section 4(b)(1) of the Act requires the Service to use the ``best 
available scientific and commercial information'' to determine those 
species in need of the Act's protections. It has been long-standing 
Service policy that the order in which species should be processed for 
listing is based primarily on the immediacy and magnitude of the 
threats they face. Given the large backlogs of proposed species, 
candidate species awaiting proposal, and petitions, it is extremely 
important for the Service to focus its efforts on actions that will 
provide the greatest conservation benefits to imperiled species in the 
most expeditious manner.
    The Service will continue to base decisions regarding the order in 
which species will be proposed or listed on the 1983 listing priority 
guidelines. These decisions will be implemented by the Regional Office 
designated with lead responsibility for the particular species.
    The Service allocates its listing appropriation among its seven 
Regional Offices based primarily on the number of proposed and 
candidate species for which the Region has lead responsibility. The 
objective is to ensure that those areas of the country with the largest 
percentage of known imperiled biota will receive a correspondingly high 
level of listing resources. The Service's experience in administering 
the Act for the past two decades has shown that it needs to maintain at 
least a minimal listing program in each Region, in order to respond to 
emergencies and to retain a level of expertise that permits the overall 
program to function effectively over the longer term. In the past, when 
faced with seriously uneven workloads, the Service has experimented 
with reassigning workload from a heavily burdened Region to less-
burdened Regions. This approach has proven to be very inefficient 
because the expertise developed by a biologist who works on a listing 
package will be useful for recovery planning and other activities and 
that expertise should be concentrated in the area which the species 
inhabits. In addition, biologists in a Region are familiar with other 
species in that Region that interact with the species proposed for 
listing, and that knowledge may be useful in processing a final 
decision. For these reasons, the Service does not believe it is wise to 
reassign workload from one Region to another.
    By maintaining a listing program in each Region, and with resource 
allocation based on workload, Regions with few outstanding proposed 
listings

[[Page 48964]]

will be able to process Tier 3 actions (such as new proposed listings 
or petition findings), while Regions with many outstanding proposed 
listings will use most or all of their allocated funds on Tier 2 
actions. For example, following the lifting of the moratorium in April 
1996, the Service allocated $2,336,000 to Region 1 (Pacific/Western 
Region), which continues to face a substantial backlog of Tier 2 
actions, while Region 3 (Great Lakes/Midwest Region) received only 
$27,000. The Service cannot make Regional allocation of funds for FY 97 
until it receives a final appropriation; however, it expects that a 
similar funding disparity will result based on workload. Workload 
variations will also mean that Region 3, which only has two proposed 
species, could begin work on some Tier 3 actions under the revised 
guidance proposed in this notice while Region 1, which has 196 proposed 
species, will be primarily only processing final decisions on proposed 
listings in FY 97. The Service anticipates that Nationwide, only a 
small amount of funding will be used on activities below Tier 2, 
because Regions that do not face a sizeable backlog of Tier 2 actions 
will not receive significant amounts of funding.
    In light of the continued budgetary uncertainty facing the Service 
at this time, through this notice the Service is extending the listing 
priority guidance currently in effect until the Service can prepare 
final guidance based on the terms of a FY 97 appropriations law. To 
address the biological, budgetary, and administrative issues noted 
above in the longer term, the Service proposes to adopt the following 
revised listing priority guidance. As with the guidance issued May 16, 
1996, this guidance would supplement, but not replace, the 1983 listing 
priority guidelines, which are silent on the matter of prioritizing 
among different types of listing activities.

Proposed Listing Priority Guidance for Fiscal Year 1997

    As noted above, the bill reported out of the Senate Appropriations 
Committee for FY 97 would ``earmark'' $500,000 of the listing budget to 
be devoted specifically to withdrawal notices, delistings, or 
reclassifications of endangered species to threatened species. If such 
an ``earmark'' emerges from the congressional process, those actions 
would be processed as the ``earmarked'' amount of funding permits and 
would not be subject to this proposed guidance.
    Since it is unclear at this date whether any amount will be 
``earmarked'' in the FY 97 appropriations law for any delistings or 
reclassifications of endangered species to threatened species, the 
Service has not proposed to include them within this priority system. 
If the FY 97 appropriations law does not contain an earmark for those 
activities, the Service's final guidance would prioritize such 
activities as appropriate. The Service invites public comment on how it 
ought to prioritize such activities if no earmark emerges from the 
appropriations process.
    If $4,500,000 would remain in the listing budget for all other 
listing activities, it will fall far short of the resources needed to 
eliminate the backlog of proposed species and complete all listing 
actions required by the Act in FY 97, and some form of prioritization 
will still be necessary. Therefore, the Service proposes to implement 
the following guidance in FY 97, on the assumption that the listing 
program budget will be appropriated no more than $5,000,000.
    The following sections describe a multi-tiered approach that 
assigns relative priorities, on a descending basis, to listing actions 
to be carried out under section 4 of the Act. The 1983 listing priority 
guidelines would be used as applicable to set priority among actions 
within tiers. The Service emphasizes that this guidance would be 
effective until September 30, 1997 (unless extended or canceled by 
future notice) and the agency fully anticipates returning to 
concurrently processing petition findings, proposed and final listings, 
and critical habitat determinations after the backlog of proposed 
listings has been further reduced.
    Completion of emergency listings for species facing a significant 
risk to their well-being would remain the Service's highest priority 
(Tier 1) under the revised system. Processing final decisions on 
pending proposed listings would, as now, be assigned to Tier 2. Third 
priority would be to resolve the conservation status of species 
identified as candidates and processing 90-day or 12-month 
administrative findings on petitions to list, delist, reclassify, or 
revise critical habitat. Preparation of proposed or final critical 
habitat designations would be assigned lowest priority (Tier 4).

Tier 1--Emergency Listing Actions

    The Service would immediately process emergency listings for any 
species of fish, wildlife, or plant that faces a significant risk to 
its well-being under the emergency listing provisions of section 
4(b)(7) of the Act. This would include preparing a proposed rule to 
list the species. The Service would conduct a preliminary review of 
every petition that it receives to list a species or change a 
threatened species to endangered status in order to determine whether 
an emergency situation exists. If the initial screening indicates an 
emergency situation, the action would be elevated to Tier 1. If the 
initial screening does not indicate that emergency listing is 
necessary, processing of the petition would be assigned to Tier 3 
below.

Tier 2--Processing Final Decisions on Proposed Listings

    In issuing the proposed listings that remain outstanding, the 
Service found that the vast majority of the proposed species faced 
high-magnitude threats. The Service believes that focusing efforts on 
making final decisions relative to these proposed species would best 
comport with the overall purpose of the Act by providing maximum 
conservation benefits to those species that are in greatest need of the 
Act's protections. As proposed listings are reviewed and processed, 
they will be completed through publication of either a final listing or 
a notice withdrawing the proposed listing. While completion of a 
withdrawal notice may appear inconsistent with the thrust of the 
guidance, once a determination not to make a final listing has been 
made, publishing the notice withdrawing the proposed listing takes 
minimal time and appropriations, and it is important and more cost 
effective and efficient to bring closure to the proposed listing, as 
compared to postponing action and taking it up at some later time.
Setting Priorities Within Tier 2
    Most of the outstanding proposed listings deal with species that 
face high-magnitude threats, such that additional guidance is needed to 
clarify the relative priorities within Tier 2. Proposed rules dealing 
with taxa believed to face imminent, high-magnitude threats (listing 
priority assignments of 1 through 3) would have the highest priority 
within Tier 2.
    Proposed listings that cover multiple species facing high-magnitude 
threats would have priority over single-species proposed rules unless 
the Service has reason to believe that the single-species proposal 
should be processed to avoid possible extinction.
    Due to unresolved questions or to the length of time since 
proposal, the Service may determine that additional public comment or 
hearings are necessary before issuing a final decision for Tier 2 
actions. Proposed listings for species facing high-magnitude threats 
that can be quickly completed (based on

[[Page 48965]]

factors such as few public comments to address or final decisions that 
are nearly complete) would have higher priority than proposed rules for 
species with equivalent listing priorities that still require extensive 
work to complete.
    Given species with equivalent listing priorities and the factors 
previously discussed being equal, proposed listings with the oldest 
dates of issue would be processed first.

Tier 3--Resolving the Conservation Status of Candidate Species and 
Processing Administrative Findings on Petitions

    As of this date, the Service has determined that 183 species 
warrant issuance of proposed listings. The Act directs the Service to 
make ``expeditious progress'' in adding new species to the lists. 
Issuance of new proposed listings is the first formal step in the 
regulatory process for listing a species. It provides some procedural 
protection in that all Federal agencies must ``confer'' with the 
Service on any actions that are likely to jeopardize the continued 
existence of proposed species.
    Administrative findings for listing petitions that are not assigned 
to Tier 1 after initial screening would also be processed as a Tier 3 
priority. As the Regional offices complete their pending Tier 1 and 2 
actions, they will be expected to begin processing Tier 3 actions. 
Within the discretionary funds available, each Region should begin 
processing Tier 3 actions once all Tier 2 determinations are underway 
and near completion and then Tier 4 actions once Tier 3 actions are 
underway. Setting priorities within Tier 3 is discussed below.
Setting Priorities Within Tier 3
    The 1983 listing priority guidelines and the basic principle that 
species in greatest need of protection should be processed first would 
be the primary bases for establishing priorities within Tier 3. Highest 
priority within Tier 3 would be processing of new proposed listings for 
species facing imminent, high-magnitude threats. If the initial 
screening of a petition suggests that the species probably faces 
imminent, high magnitude threats, processing that action will be 
accorded high priority.

Tier 4-- Processing Critical Habitat Determinations

    Designation of critical habitat consumes large amounts of the 
Service's listing appropriation and generally provides only limited 
conservation benefits beyond those achieved when a species is listed as 
endangered or threatened. Because the protection that flows from 
critical habitat designation applies only to Federal actions, 
situations where designating critical habitat provides additional 
protection beyond the consultation provisions of section 7, which also 
apply to Federal actions, are rare. It is essential during this period 
of limited listing funds to maximize the conservation benefit of 
listing appropriations. The Service believes that the small amount of 
additional protection that is gained by designating critical habitat 
for species already on the lists is greatly outweighed by the benefits 
of applying those same dollars to putting more species on the lists, 
where they would gain the protections included in sections 7 and 9. The 
Service has decided, in other words, to place higher priority on 
addressing species that presently have no or very limited protection 
under the Act, rather than devoting limited resources to the expensive 
process of designating critical habitat for species already protected 
by the Act.

Addressing Matters in Litigation

    Using the proposed guidance and the 1983 listing priority 
guidelines, the Service will assess the status and the relative 
priority of all section 4 petition and rulemaking activities that are 
the subject of active litigation. The Service, through the Department 
of the Interior's Office of the Solicitor, will then notify the Justice 
Department of its priority determinations and request that appropriate 
relief be sought from each district court to allow those species with 
the highest biological priority to be addressed first. As noted in the 
guidance issued May 16, 1996, when the Service undertakes one listing 
activity, it inevitably foregoes another, and in some cases courts have 
ordered the Service to complete activities that are simply not, in the 
Service's expert judgment, among the highest biological priorities. 
However, to the extent that these efforts to uphold the Service's 
listing priority guidance and the 1983 listing priority guidelines do 
not receive deference in the courts, the Service will need to comply 
with court orders despite any conservation disruption that may result. 
The fact that the Service acknowledges its duty to comply with court 
orders should not, however, be interpreted to mean that any court order 
is consistent with this guidance without regard to how disruptive it 
may be to the Service's effort to make the most biologically sound use 
of its resources.
    The Service will not elevate the priority of proposed listings for 
species under active litigation. To do so would let litigants, rather 
than expert biological judgments, set listing priorities. The Regional 
Office with responsibility for processing such packages will be 
responsible for determining the relative priority of such cases based 
upon this proposed guidance and the 1983 listing priority guidelines, 
and for furnishing supporting documentation that can be submitted to 
the relevant court to indicate where such species rank in the overall 
priority scheme.

Public Comments Solicited

    The Service intends that any action resulting from this proposed 
guidance be as accurate and as effective as possible. Therefore, any 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, environmental groups, industry, 
commercial trade entities, or any other interested party concerning any 
aspect of this proposed guidance are hereby solicited. The Service will 
take into consideration any comments and additional information 
received (especially the final FY 97 appropriations law) and will 
announce further guidance after the close of the public comment period 
and as promptly as possible after a FY 97 appropriations bill for the 
Department of the Interior is approved and becomes law.

Authority

    The authority for this notice is the Endangered Species Act of 
1973, as amended, 16 U.S.C. 1531 et seq.

    Dated: September 9, 1996.
John G. Rogers,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 96-23719 Filed 9-16-96; 8:45 am]
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