[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]
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