[Federal Register Volume 61, Number 235 (Thursday, December 5, 1996)]
[Rules and Regulations]
[Pages 64475-64481]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-30946]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of final guidance.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) announces final 
guidance for assigning relative priorities to listing actions conducted 
under section 4 of the Endangered Species Act (Act) during fiscal year 
(FY) 1997. Highest priority will be processing emergency listing rules 
for any species determined to face a significant 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. Third priority will be processing new proposals to add 
species to the lists and processing administrative findings on 
petitions to add species to the lists that are filed under section 4 of 
the Act. Processing of proposed or final designations of critical 
habitat and processing of proposed or final delistings and 
reclassifications from endangered to threatened status will be accorded 
lowest priority. Effective April 1, 1997, the Service will implement a 
more balanced listing program nationwide, which means that during the 
second half of FY 1997 the remaining listing appropriation will be 
apportioned among the processing of any emergency listing rules, the 
issuance of final listing determinations, the preparation of proposed 
listing rules for candidate species, and the processing of listing 
petitions. However, the lower priority accorded to rulemaking and 
petition processing activities for critical habitat designations and 
delisting (or downlisting) actions will be maintained throughout FY 
1997.

DATES: The guidance described in this notice is effective December 5, 
1996 and will remain in effect until September 30, 1997 unless modified 
by subsequent notice in the Federal Register.

ADDRESSES: Questions 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

[[Page 64476]]

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 listing actions such as preliminary 
determinations, final listings, etc.
    The enactment of P.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 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.
    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 Public Law 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 requiring 
issuance of either 90-day or 12-month findings for 57 species.
    In anticipation of receiving a listing appropriation for the 
remainder of FY 1996, 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). This guidance was extended 
(61 FR 48962; September 17, 1996) until the Service prepared the final 
guidance described herein.
    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. Since April 26, 1996, the Service focused its 
resources on processing existing proposals and issued final 
determinations for rules listing 89 species.1 This level of 
performance is noteworthy considering 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. Despite the progress made in FY 1996, there is 
still a backlog of 151 proposed listings.
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    \1\ The Service also withdrew the proposed rule to list the 
Barton Springs salamander and proposed listings for two plants, 
Dudleya blochmanieae ssp. brevifolia and Corethrogyne filaginifolia 
var. linifolia.
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    In addition to making final determinations on pending proposed 
rules, the Service also needs to make expeditious progress on 
determining the conservation status of the 184 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. 1533(b)(3)(B)(iii)(II)). The Service remains subject to various 
lawsuits that could result in court orders requiring it to process a 
variety of actions under section 4 of the Act.
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    \2\ Since publication of the last Candidate Notice of Review, 
the Service has added the U.S. population of the short-tailed 
albatross (Diomedea albetrus) and the Alabama sturgeon 
(Scaphirhynchus suttkusi) to the list of candidate species.
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    On September 17, 1996, the Service published a notice in the 
Federal Register (61 FR 48962) announcing proposed listing priority 
guidance for FY 1997 and soliciting public comment on the proposed 
guidance. Since publication of that notice, the Department of the 
Interior has received its FY 1997 appropriation by way of the 1997 
Omnibus Appropriations Act, Public Law 104-208. Public Law 104-208 
appropriated $5 million for the endangered species listing activity. 
This appropriation is substantially less than the $7.483 million 
requested by the President.
    The continuing (though reduced) backlog and the funding shortfall 
underscore the need to maintain program-wide biologically sound 
priorities to guide the allocation of limited resources. Absent such 
priorities, existing and threatened litigation could overwhelm the 
limited resources the Service received in FY 1997.
    For example, in Fund for Animals v. Babbitt, Civ. No. 92-800 (SS) 
(D.D.C.), the District Court is considering plaintiff's motion to 
enforce the December 15, 1992 Settlement Agreement in that case and the 
Service's motion to modify that Agreement.
    Resolution of the conservation status of the remaining 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 $5 
million listing appropriation available in FY 1997. 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, 
while only 41 of the 85 settlement agreement species have listing 
priority assignments of 1, 2, or 3, most of the 99 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 guidelines, have to process 
all 184 candidate species (85 settlement, 99 non-settlement) if ordered 
to comply fully with the terms of the Settlement Agreement during FY 
1997.

[[Page 64477]]

    The Service's entire FY 1997 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 remaining 151 proposed species, the vast majority of 
which face high-magnitude threats. 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. 1536(a)(4)), but not the full 
substantive and procedural protection afforded by final listing.
    This course of action would also enlarge the backlog of proposed 
species awaiting final action to about 330. Meanwhile, the 
administrative records on many of the 151 other species pending final 
decision could require, due to the additional 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 1997 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, 1996. 
Further proceedings in District Court are expected. The Service is 
hopeful that the Court's final order will effect modifications to the 
Settlement Agreement that are consistent with biologically based 
priorities.
    Given the large backlogs of proposed species pending final action, 
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. 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.
    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. 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, 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. 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 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 simply to reassign part of 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 process 
Tier 3 actions (such as new proposed listings or petition findings), 
while Regions with many outstanding proposed listings will use most of 
their allocated funds on Tier 2 actions. For instance, workload 
variations will mean that the Great Lakes Region (Region 3), which only 
has two proposed species, could begin work on some Tier 3 actions under 
the final guidance described in this notice while the Pacific Region 
(Region 1), which still has 111 proposed species, will be primarily 
processing final decisions on proposed listings in FY 1997.
    Since the number of pending proposed species is expected to be 
reduced to a manageable range of 90-110 taxa by April 1, 1997, the 
Service believes that a balanced listing program should be implemented 
nationwide on that date. Under a balanced listing program, the 
categories of listing activities covered by Tiers 1, 2, and 3 of this 
guidance will be treated as having the same relative priority. On April 
1, 1997, all remaining listing appropriations for FY 1997 will be 
apportioned among the processing of any emergency listings, the 
issuance of final listing determinations, the preparation of proposed 
listing rules, and the processing of listing petitions. The 1983 
listing priority guidelines will set the relative priority for the 
allocation of listing resources within each of these categories of 
listing activities.

Analysis of Public Comments

    On September 17, 1996, the Service published a notice in the 
Federal Register (61 FR 48962) announcing proposed listing priority 
guidance for FY 1997 and solicited public comment on the proposed 
guidance. While the Department's FY 1997 appropriation provides the 
expected $5 million for the endangered species listing program, it 
differs from the assumptions upon which the proposed listing priority 
guidance was based in that it does not ``earmark'' funds for use in 
delisting or reclassifying endangered species to threatened status. In 
soliciting public comment, the Service specifically requested input as 
to, ``how it ought to prioritize such activities if no earmark emerges 
from the appropriations process'' (61 FR 48964; September 17, 1996). 
The Service received four letters of comment on the proposed guidance 
and an analysis of these comments follows.
    Three of the four letters of comment were generally opposed to the 
proposed listing priority guidance. A summary of the issues raised, and 
the Service's response, follows.
    Commenters' Issue 1--Under the proposed policy, there would be no 
enforceable deadlines. The Service cannot disregard the Act's mandated 
time frames and requirements to prioritize listing activities on the 
basis of biological need for the sake of administrative convenience 
gained by completing the listing process for outstanding proposed 
listings to the exclusion of all other listing actions.
    Service Response--The listing priority guidance is the Service's 
attempt to implement the provisions of section 4 in a manner that best 
supports the purposes of the Act and maximizes conservation benefits 
within the constraints imposed by appropriations

[[Page 64478]]

limitations. The Service recognizes the implementation of such guidance 
as an extraordinary measure and emphasizes that the guidance will only 
remain in effect through September 30, 1997. Furthermore, effective 
April 1, 1997, the Service will implement a more balanced listing 
program that apportions all remaining listing funds among the 
processing of any emergency rules, the issuance of final listing 
determinations, the preparation of proposed listing rules, and the 
processing of listing petitions. Moreover, many of the Service's 
Regions will be operating in Tier 3 upon implementation of this final 
guidance.
    As the Service has previously described, Congress has not 
appropriated sufficient funds to allow the Service to process all of 
its responsibilities under section 4 in a timely manner. This problem 
was then exacerbated by the imposition of the moratorium on final 
listings, which prevented the Service from issuing final listing 
decisions from April 1995 through April 1996, resulting in even more 
proposed listings that were in excess of the statutory deadline for 
making final decisions. On top of that, the backlog of overdue petition 
findings increased.
    The Service acknowledges its responsibility to base listing 
decisions solely on the basis of the best available scientific and 
commercial information and does not believe that the proposed guidance 
in any way refutes that responsibility. What the proposed guidance 
would do is allow the Service to give highest priority to extending the 
full legal protections of the Act to species that have already been 
proposed for listing rather than expending scarce resources on issuing 
new proposed listings, an action that only provides minimal procedural 
protections (via the section 7 conference provisions) for the species 
involved, while adding to an already large backlog of proposed species. 
The Service believes that the listing priority guidance will maximize 
the conservation benefits from the limited listing appropriation and 
help the Service return soon to implementing its section 4 
responsibilities across the board. The Service also emphasizes that 
this listing priority guidance will be effective on a temporary basis 
and it intends to return to a more normal administration of section 4 
by the start of fiscal year 1998.
    Commenters' Issue 2--The Service should not expend limited listing 
funds on withdrawal notices, delistings, or reclassifications of 
endangered species to threatened status.
    Service Response--In the absence of a Congressional earmark for 
delistings and reclassifications, the Service generally agrees with 
this comment insofar as it addresses delistings and reclassifications. 
It has decided to assign these actions (including review of petitions 
seeking such actions) to the lowest priority tier under the final 
guidance described below.
    The Service does not agree that it makes little sense to process 
withdrawal notices on proposed listings if that course of action is 
found to be appropriate based on a review of the proposed listing that 
was conducted in accordance with the listing priority guidance. The 
resolution of regulatory uncertainty that comes with a withdrawal 
notice, the fact that publication of the notice is a relatively small 
component of the total cost invested in the decision, and the fact that 
a withdrawal under section 4(b)(6)(A)(I)(IV) eliminates the legal 
liability under the time frames of section 4(b)(6)(A), all justify the 
placement of this activity within Tier 2.
    Commenters' Issue 3--The listing priority for processing final 
decisions on proposed species with low listing priority assignments 
should not be elevated above the priority for species with higher 
listing priorities that have not yet been proposed for listing.
    Service Response--More than two-thirds of the 151 proposed species 
pending final decisions face high magnitude threats. Most of the 41 
proposed species that do not face high magnitude threats are included 
in multi-species listing packages that also include species facing high 
magnitude threats. Addressing lower priority proposed species as part 
of a multi-species listing approach provides a cost-effective means of 
addressing many species in one listing rule. The Service believes that 
it should continue using this approach even though it may mean that 
final listing decisions will be prepared for some species with listing 
priorities that are lower than some candidate species awaiting proposed 
listing. These facts show that the Service is not subverting the 
existing priority system. Furthermore, this course of action is 
responsive to the Act's direction that proposed listings be resolved in 
a timely fashion. Also, focusing attention on proposed species ahead of 
candidate species which face no statutory deadlines for final decisions 
is consistent with the concerns raised in Issue 1 above.
    Commenters' Issue 4--The Service should place highest emphasis on 
listing species with high national importance and stop listing 
subspecies.
    Service Response--Assuming threats of equal magnitude and 
immediacy, the 1983 listing priority guidelines provide higher listing 
priority for a full species than for a subspecies. However, by virtue 
of the Act's definition of species, the Service must consider listing 
subspecies of plants and animals where appropriate.
    Commenters' Issue 5--Claims that designation of critical habitat 
provides only limited conservation benefits beyond a final listing are 
contradicted by the Act and real-life practice.
    Service Response--The Service remains firm in its belief that 
designation of critical habitat generally provides limited additional 
conservation benefits beyond those provided by the consultation 
provisions of section 7 and the prohibitions of section 9.
    Commenters' Issue 6--Purported lack of funds does not support the 
proposed listing priority policy because the courts have made clear 
that funding limitations do not excuse the Service from complying with 
mandatory duties to comply with the deadlines of the Act.
    Service Response--The Service recognizes that it sometimes does not 
meet the timing constraints imposed by the Act (see Responding to 
Litigation section below). However, due to the circumstances described 
in detail in this notice and other notices on this topic, the number of 
pending listing actions that are out of compliance with the Act's 
deadlines are so numerous that it is literally impossible for the 
Service to address them all immediately. Therefore, the Service has 
instituted this guidance to provide a reasonable means for prioritizing 
actions. By such actions as this notice and explanation of the priority 
guidance, the Service hopes to promote public and judicial 
understanding of the bind in which the Service finds itself and the 
reasonableness of its approach.
    Some courts have acknowledged the Service's predicament and granted 
relief accordingly. In a July 23, 1996 order entered by the U.S. 
District Court for the Eastern District of California in Sierra Club v. 
Babbitt et al. (Civ. No. S-95-299 EJG/GGH), Judge Garcia agreed to 
defer to the Service's listing priority guidance, finding that,

    Given that it would be ``impossible,'' see Alabama Power, supra, 
for defendants to discharge their Sec. 1533 (6)(A) obligation as to 
all pending species within this fiscal year, the court finds that 
defendants' prioritization scheme, predicated upon biological need, 
is reasonable in light of the Endangered Species Act's purpose. 
Sporadic and disorganized judicial interference with defendants' 
priorities would result in a game of musical

[[Page 64479]]

chairs plainly disruptive to a thoughtful and reasoned allocation of 
defendants' limited resources.

Such decisions recognize that the Service did not receive sufficient 
funding in fiscal years 1996 or 1997 to allow it to comply with all 
mandated time frames under section 4 of the Act was legally prohibited 
from expending funds to accomplish certain of those activities for over 
a year, and as a result generated a rational system for setting 
priorities that is most consistent with the purposes of the Act and 
makes most efficient use of limited funding as the Service manages its 
way out of a significant listing backlog.
    Commenters' Issue 7--The Service should not ``usurp'' public 
priority by relegating the petition process to Tier 3 or denying 
priority on the basis of litigation status.
    Service Response--The Act does establish priorities for the various 
section 4 responsibilities and the Service does not consider the 
petition process to be inherently of a higher priority than other 
section 4 activities. However, the Service does recognize the value of 
the petition process and the Service's decision to assign processing of 
petition findings to Tier 3 is not made lightly. As mentioned 
previously, the Service expects each Regional Office to begin 
processing petition findings no later than April 1, 1997 and some of 
the Regional listing programs will begin processing petitions upon 
implementation of this guidance. Processing of petition findings is, 
however, a preliminary step in the listing process and, during the 
current period of fiscal constraint, should be accorded lower priority 
in favor of taking final actions on the proposed listings. This course 
of action would remove a litigation liability and either implement the 
full protections of the Act for imperiled species or resolve pending 
regulatory uncertainty for species found not to warrant listing.
    The Service remains firm in its belief that litigation status 
should not be a criterion for assigning priority under this guidance. 
To the extent that the courts do not defer to this listing priority 
guidance, the Service is prepared to comply with any court order to 
process a section 4 listing action subject to any appeals that may be 
taken as determined on a case-by-case basis, to seek to overturn such a 
court order. The fact that the Service acknowledges its duty to comply 
with court orders should not, however, be interpreted to mean that it 
regards any court order as 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.

Final Listing Priority Guidance for Fiscal Year 1997

    To address in the longer term the biological, budgetary, and 
administrative issues noted above, and in response to public comments 
received, the Service adopts the following revised listing priority 
guidance. As with the guidance issued May 16, 1996, this guidance 
supplements, but does not replace, the 1983 listing priority 
guidelines, which are silent on the matter of prioritizing among 
different types of listing activities.
    As noted above, the Department of the Interior's FY 1997 
appropriation provides $5 million for the Service's endangered species 
listing program.
    The $5,000,000 available in the listing budget for all listing 
activities 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 1997. Therefore, some form of prioritization is still 
necessary, and the Service will implement the following listing 
priority guidance in FY 1997. However, effective April 1, 1997 the 
Service will undertake activities in three of the four tiers. 
Activities assigned to Tier 4 as described below will remain a low 
priority until all other listing backlogs (candidate species, proposed 
listings, and petition findings) have been exhausted.
    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 will continue to be used to set priority among actions 
within tiers. The Service emphasizes that this guidance will be 
effective until September 30, 1997 unless extended or canceled by 
future notice, except that, effective April 1, 1997, the Service will 
concurrently undertake all of the activities presently included in 
Tiers 1, 2, and 3. The assignment of critical habitat designations and 
delistings or reclassifications to Tier 4 is expected to continue for 
the duration of FY 1997 and processing of these activities in FY 1997 
should not be expected. Even though a more balanced program will be in 
place as of April 1, 1997, the FY 1997 listing appropriation is 
insufficient to support high-priority listing, candidate assessment, 
and petition processing activities unless critical habitat and 
delisting/downlisting activities are maintained as low-priority 
activities. The Service must focus its section 4 program on addressing 
proposed species, candidate species, and petition processing during the 
second half of FY 1997. A single critical habitat designation could 
consume up to ten percent of the total listing appropriation, thereby 
disrupting the Service's biologically based priorities.
    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 is assigned 
to Tier 2. Third priority is 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 preparation of proposed or final 
delistings and reclassifications are assigned lowest priority (Tier 4).

Tier 1--Emergency Listing Actions

    The Service will 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 will 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 will be elevated to Tier 1. If the 
initial screening does not indicate that emergency listing is 
necessary, processing of the petition will be assigned to Tier 3 below.

Tier 2--Processing Final Decisions on Proposed Listings

    The vast majority of the unresolved proposed species face 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

[[Page 64480]]

appropriations, and it is 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 have the 
highest priority within Tier 2.
    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 to avoid possible extinction.
    Due to unresolved questions or the possible staleness of the 
scientific information in the administrative record, 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 are nearly complete) 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.

Tier 3--Resolving the Conservation Status of Candidate Species and 
Processing Administrative Findings on Petitions to Add Species to 
the Lists or Reclassify Threatened Species to Endangered Status

    As of this date, the Service has determined that 184 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 will also be processed as a Tier 3 
priority. As the Regional offices near completion of their pending Tier 
1 and 2 actions, they will be expected to begin processing Tier 3 
actions. 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 and near completion.

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 are 
the primary bases for establishing priorities within Tier 3. Highest 
priority within Tier 3 will 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 and high magnitude threats, processing that action will be 
accorded high priority.

Tier 4--Processing Critical Habitat Determinations and Processing 
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 the protection that flows from 
critical habitat designation applies only to Federal actions, it is 
rare for designation of critical habitat to provide additional 
protection beyond the ``jeopardy'' prohibition of section 7, which also 
applies to Federal actions. 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 may be 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 imperiled 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.
    Since the final appropriations law did not include dedicated 
funding for delistings or reclassifications of endangered species to 
threatened species, the Service does not believe that it would be 
consistent with the intent of this listing priority guidance to afford 
these activities high priority at this time. Processing 
reclassifications and delistings can provide regulatory relief and the 
Service regrets that such activities must be accorded Tier 4 priority 
due to the limited appropriations provided by Congress.

Addressing Matters In Litigation

    Using this 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 
subject to any appeals that may be undertaken on a case-by-case basis. 
The fact that the Service acknowledges its duty to comply with court 
orders should not, however, be interpreted to mean that it acquiesces 
in the idea that all such court orders are consistent with this 
guidance without regard to how disruptive they 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.

National Environmental Policy Act

    The Service does not consider the implementation of this guidance 
to be a major Federal action significantly affecting the quality of the 
human environment for purposes of the

[[Page 64481]]

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. The Service 
also believes that the exceptions to categorical exclusions (516 DM 2, 
Appendix 2) would not be applicable to such a decision, especially in 
light of the absence 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: November 26, 1996.
John G. Rogers,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 96-30946 Filed 12-4-96; 8:45 am]
BILLING CODE 4310-55-P