[Federal Register Volume 64, Number 204 (Friday, October 22, 1999)]
[Notices]
[Pages 57114-57119]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-27689]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
Endangered and Threatened Wildlife and Plants; Final Listing
Priority Guidance for Fiscal Year 2000
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: We (the U.S. Fish and Wildlife Service) announce final
guidance for assigning relative priorities to listing actions conducted
under section 4 of the Endangered Species Act of 1973 as amended (Act)
during fiscal year (FY) 2000. We have returned to a more balanced
listing program and have reduced the serious backlogs that remained
from the 1995-96 moratorium and funding rescission. Nevertheless, a
method for prioritizing among the various listing activities remains
necessary because it is still extremely important for us to focus our
efforts on listing actions that will provide the greatest conservation
benefits to imperiled species in the most expeditious and biologically
sound manner. We will no longer recognize tiers and, nationwide, we
will undertake all listing activities in all priority levels
simultaneously; however, we will observe relative priorities among
various listing actions as described in this guidance. The highest
priority will be processing emergency listing rules for any species
determined to face a significant and imminent risk to its well being.
Second priority is the processing
[[Page 57115]]
of final determinations on proposed additions to the lists of
endangered and threatened wildlife and plants. Third priority is
processing new proposals to add species to the lists. The processing of
administrative petition findings (petitions filed under section 4 of
the Act) is the fourth priority. The processing of critical habitat
determinations (prudency and determinability decisions) and proposed or
final designations of critical habitat will be funded separately from
other section 4 listing actions and will no longer be subject to
prioritization under Listing Priority Guidance. Critical habitat
determinations, which were previously included in final listing rules
published in the Federal Register, may now be processed separately, in
which case stand alone critical habitat determinations will be
published as notices in the Federal Register. We will undertake
critical habitat determinations and designations during FY 2000 as
conservation efforts demand and in light of resource constraints.
Delisting activities are no longer part of the listing program and have
been undertaken by the recovery program since FY 1999. In addition, all
listing and delisting of foreign species are carried out by the
Service's International Affairs program and are not addressed in this
notice.
DATES: This Listing Priority Guidance is effective immediately upon
publication and will remain in effect until modified or terminated.
This is internal Service guidance that will neither invoke nor relieve
restrictions on the private or public sector. Therefore, in accordance
with 5 U.S.C. 553(d), we have determined that good cause exists to make
the effective date of this notice immediate.
ADDRESSES: Submit questions regarding this guidance to the Chief,
Division of Endangered Species, U.S. Fish and Wildlife Service, 1849 C
Street, NW, Mailstop ARLSQ-420, Washington, D.C. 20240.
FOR FURTHER INFORMATION CONTACT: Nancy Gloman, Chief, Division of
Endangered Species, U.S. Fish and Wildlife Service, 703-358-2171 (see
ADDRESSES section).
SUPPLEMENTARY INFORMATION:
Background
We adopted guidelines on September 21, 1983 (48 FR 43098-43105),
that govern the assignment of priorities to species under consideration
for listing as endangered or threatened under section 4 of the Act. We
adopted those guidelines to establish a rational system for allocating
available appropriations to the highest priority species when adding
species to the lists of endangered or threatened wildlife and plants or
reclassifying threatened species to endangered status. The system
places greatest importance on the immediacy and magnitude of threats,
but also factors in the level of taxonomic distinctiveness by assigning
priority in descending order to monotypic genera, full species, and
subspecies (or, equivalently, distinct population segments of
vertebrates). However, this system does not provide for prioritization
among different types of listing actions such as preliminary
determinations, proposed listings, and final listings.
Serious backlogs of listing actions resulted from the 1995-96
listing moratorium and funding rescission. The enactment of Public Law
104-6 in April 1995 rescinded $1.5 million from our budget for carrying
out listing activities through the remainder of FY 1995. Public Law
104-6 prohibited the expenditure of the remaining appropriated funds
for final determinations to list species or designate critical habitat
which, in effect, placed a moratorium on those activities. For more
than half of FY 1996, we operated without a final budget due to a
series of continuing resolutions. Those continuing resolutions
continued the moratorium and provided almost no funds for listing. The
net effect of the moratorium and the limited funding provided by
continuing resolutions was that our listing program was essentially
shut down. The moratorium on final listings and the budget constraints
remained in effect until April 26, 1996, when President Clinton
approved the Omnibus Budget Reconciliation Act of 1996 and waived the
moratorium. At that time, we had accrued a backlog of proposed listings
for 243 species. The limited funding available for listing activities
generally precluded petition processing and the development of proposed
listings from October 1, 1995, through April 26, 1996.
When the moratorium was lifted and funds were appropriated for the
administration of the listing program, we faced the considerable task
of allocating the available resources to the significant backlog of
listing activities. The Final Listing Priority Guidance for FY 1996 was
published on May 16, 1996 (61 FR 24722). We followed that three-tiered
approach until the Final Listing Priority Guidance for FY 1997 was
published on December 5, 1996 (61 FR 64475). The FY 1997 Listing
Priority Guidance employed four tiers for assigning relative priorities
to listing actions to be carried out under section 4 of the Act. Tier
1, the highest priority, was the processing of emergency listings for
species facing a significant risk to their well-being. Processing final
decisions on pending proposed listings was assigned to Tier 2. Tier 3
was to resolve the conservation status of species identified as
candidates and processing 90-day or 12-month administrative findings on
petitions to list or reclassify species from threatened to endangered
status. Preparation of proposed or final critical habitat designations
and processing reclassifications were assigned lowest priority (Tier
4). We published Listing Priority Guidance for FY 1998 and 1999 on May
8, 1998 (63 FR 25502), and employed a three-tiered system. Emergency
actions comprised Tier 1, all other listing actions except critical
habitat designation were included in Tier 2, and critical habitat
designation was the lowest priority, or Tier 3.
While operating the listing program under the Final FY 1998 and FY
1999 Listing Priority Guidance, we focused our resources on completing
Tier 2 activities. Two emergency listing actions (for the San
Bernardino kangaroo rat (63 FR 3835) and Jarbidge population of bull
trout (63 FR 42757)) were necessary in FY 1998. During FY 1998, we made
final determinations for 57 species (47 final listings and 10
withdrawals). As a result of this expeditious progress, only 84
proposed species remained at the end of FY 1998 (including 42 newly
proposed species). We published petition findings for 18 species (11
90-day findings and seven 12-month findings). We proposed one species,
the peregrine falcon in North America, for delisting during FY 1998.
Since the end of FY 1998, and up to July 31, 1999, 38 final
determinations, 18 proposed rules, 15 petition findings, five proposed
delistings, one final delisting, and two proposed and three final
critical habitat designations have been completed. The proposed
critical habitat designations, Tier 3 activities, were undertaken to
comply with court orders. However, we did make critical habitat
determinations (prudency and/or determinability decisions) for each
final listing during FY 1998 and through July 30, 1999.
Despite the return to a more balanced listing program, backlogs
remain. As of July 31, 1999, there are 66 proposed species awaiting
final determinations, and 154 candidates awaiting resolution of their
conservation status. Fifty-three species have pending 90-day petition
findings and 22 species have pending 12-month petition findings.
Various district courts and appellate courts have
[[Page 57116]]
remanded not prudent critical habitat determinations to us for
reconsideration. Currently, we have to reconsider not prudent
determinations for 245 Hawaiian Island plants and four vernal pool
fairy shrimp that courts have remanded.
As stated in the FY 1998 and FY 1999 Listing Priority Guidance, it
is important to recognize that we face even greater backlogs in our
responsibilities to implement other aspects of the Act. The section 7
consultation and habitat conservation planning (HCP) backlogs continue
to grow. The backlog of species awaiting Recovery Plans and the
shortage of funding used for recovery implementation make the recovery
backlog most severe. We base our funding requests on the workloads
faced by all activities of the endangered species program. In FY 1999,
the Department of the Interior requested significant increases in
funding for all endangered species activities, but proportionally less
for the listing program. The magnitude of the other endangered species
backlogs exceeds the listing backlog, and was therefore reflected in
the overall Department of the Interior funding request that included
larger increases for the other endangered species programs.
In enacting the Department of the Interior's FY 1999 Omnibus and
Emergency Supplemental Appropriations Act (Public Law 105-277),
Congress provided only modest increases. Congress included in the
Department of the Interior's FY 1998 appropriation an express limit on
the amount to be spent on listing actions (including the designation of
critical habitat); that continues this year, and the limit is $5.756
million.
Even with the gradual reduction of the backlogs of proposed species
pending final action, candidate species awaiting proposal, and
petitions awaiting administrative findings, it is extremely important
for us to focus our efforts on listing actions that will provide the
greatest conservation benefits to imperiled species in the most
expeditious and biologically sound manner. It has been longstanding
policy (1983 Listing and Recovery Priority Guidelines (48 FR 43098))
that the order in which species should be processed for listing is
based primarily on the immediacy and magnitude of the threats they
face. We will continue to base decisions regarding the order in which
species will be proposed or listed on the 1983 listing priority
guidelines. We also must continue to prioritize among types of listing
actions and this level of relative prioritization is the guidance
provided below.
Analysis of Public Comments
On May 20, 1999, we published a notice in the Federal Register (63
FR 10931) announcing proposed listing priority guidance for FY 1999 and
FY 2000 and solicited public comment on that proposed guidance. We
received two letters of comment on the proposed guidance (in two
separate mailings) within the 30-day comment period specified in the
Notice of Proposed LPG for FY 1999 and 2000. One letter was generally
in favor of the proposed guidance and one letter was generally opposed.
A summary of the issues raised and our response follows.
Issue 1: The order for processing species listings should be based
on the immediacy and magnitude of the threats facing the species, as
outlined in the proposed Listing Priority Guidance. The priorities for
listing proposed in the guidance (emergency listings, final decisions,
resolving the status of candidate species, processing administrative
petition findings) will help to ensure the greatest conservation
benefits for imperiled species in the most expeditious and biologically
sound manner.
Response 1. We agree that the priorities outlined in the proposed
Listing Priority Guidance are sound. We developed our priority system
in order to provide the Act's protection to the most imperiled species
as quickly as possible. We received no additional information or
comments during the comment period that required the re-examination or
revision of these priorities.
Issue 2. Delisting activities are most appropriately undertaken by
the Service's Recovery Program, and the Service should provide a
funding amount that will be allocated within the Recovery Program
specifically for completing delisting actions.
Response 2. We agree that delisting actions should be accomplished
through our recovery program, instead of the listing program. Although
delisting activity is not a separate line item in Service budget
requests or Congressional appropriations, beginning in 1999, work on
delisting was included in the line item for the recovery program. Prior
to that time it was included in the line item for the listing program.
For Fiscal Year 1999, a total of $1 million was allocated to our
regions for work specifically related to delisting or reclassification
actions, and we plan to continue allocating a specific amount of
recovery funds for this purpose in future years.
Issue 3. Many of the Service's administrative and funding problems
related to listing activities are indicative of the larger problem of
insufficient attention to species prior to the need to list them. The
Service should continue to construct conservation agreements and
habitat conservation plans, and should seek additional ways to address
conservation issues proactively, in a manner that will preclude the
need for listing whenever possible.
Response 3. Efforts to conserve species and their habitats prior to
the need to list are extremely important. Initiating or expanding
conservation actions before a species and its habitat are critically
imperiled makes it more likely that simpler, more cost-effective
conservation options will still be available and that conservation will
ultimately be successful. In addition, removing the need to list a
species through early conservation actions maintains land use and
development flexibility for landowners. Our candidate conservation
program involves a collaborative approach with States and Territories,
other Federal agencies, and the private sector to identify species that
are in need of conservation actions. In cooperation with our partners,
we plan and implement conservation actions to stabilize or conserve
species and their habitats, thus reducing and removing threats so that
Federal listing is not necessary. We note that our efforts to conserve
candidate species do not come at the expense of the listing program, as
candidate conservation is funded by a separate budget line-item.
We recently published final policies on Safe Harbor Agreements and
Candidate Conservation Agreements with Assurances (CCAA) (June 17,
1999; 64 FR 32726). These Agreements are becoming extremely important
and effective candidate conservation tools. The CCAA policy offers
assurances as an incentive for non-Federal property owners to implement
conservation measures for species that are proposed for listing,
species that are candidates for listing, and species that are likely to
become candidates in the near future. In turn, property owners receive
assurances that additional conservation measures will not be required
and additional land, water, or resource use restrictions will not be
imposed should the species become listed in the future. We agree that
proactive conservation actions are vitally important and should be
initiated as early as possible. We encourage Federal, State, and
private partners to continue working with us to remove and reduce
threats to imperiled species so that listings may be precluded.
[[Page 57117]]
Issue 4. If the Service's Listing Priority Guidance permits
statutorily defined deadlines to be exceeded, the Listing Priority
Guidance violates the Act. The Service should establish a listing
procedure that guarantees that each deadline will be met. This
procedure should include the following: uniform intermediate deadlines
that Service listing staff must meet, elimination of multiple
intermediate reviews, elimination of multiple public comment periods
and comment period extensions, and elimination of reviews as required
under various Executive Orders (Executive Orders provide that they
cannot cause non-compliance with statutes). If necessary, imperfect
decisions can be made in order to comply with the mandated deadlines,
and remedied later with revisions.
Response 4. Contrary to the commenter's assertion, the Listing
Priority Guidance does not ``permit'' statutorily defined deadlines to
be exceeded. It is an unfortunate fact that some of those deadlines
will be exceeded with or without the Listing Priority Guidance. The
conflict between the listing actions required and deadlines imposed by
the Act and the appropriations provided by Congress make it impossible
for the Service to avoid delaying compliance with the Act. Therefore,
until Congress provides adequate funding, the relevant question is not
whether we will delay taking some listing actions required by the Act,
but what actions will we delay and with respect to what species. In the
Listing Priority Guidance, we have created a uniform policy for
answering these questions. The Listing Priority Guidance improves our
efficiency, thereby minimizing the need for such delays, and helps us
determine which delays of the Act will be of the least consequence to
imperiled species. Thus, the LPG is our blueprint for working to comply
with the Act while providing the most conservation benefit in
furthering the purposes of the Act.
We have established a listing procedure through which we endeavor
to meet statutory and regulatory guidelines to the extent made possible
by the annual appropriations for listing activities. We are committed
to making listing determinations based on the best available scientific
and commercial information as required by the Act. Violation of this
standard is no less a violation of the Act than missing a statutory
deadline. The opening of public comment periods is necessary to ensure
that the public has ample opportunity to provide us with any pertinent
information of which we may not be aware. Our agency review process,
which does contain internal deadlines for certain review stages, is
necessary to ensure that the best available information has been used
to make the most appropriate listing decision. In addition, various
Executive Orders, such as Executive Order 12866, require that we obtain
external review prior to publication of proposed and final listing
rules. Under this Executive Order, the Office of Management and Budget
must review significant regulatory actions. Coordinated review of
agency rulemaking is necessary to ensure that regulations are
consistent with applicable law and the President's priorities, and that
decisions made by one agency do not conflict with the policies or
actions taken or planned by another agency. This Executive Order
requires the Office of Management and Budget to complete its review
within 90 calendar days of receipt of the rule. In cases where a
statutory or court-ordered deadline is applicable, this Executive Order
directs agencies to schedule rulemakings, to the extent practicable, so
as to permit sufficient time for the Office of Management and Budget to
complete its review prior to the deadline. In some cases where courts
have imposed very short deadlines for completion of rules, this has not
been practicable. Lastly, we regularly review and revise the status of
species after they have been listed when additional information is
obtained that indicates such revision is appropriate. We will not
knowingly issue ``imperfect decisions'' in order to expedite listing
actions to meet mandated deadlines as suggested by the commenter.
Issue 5. The proposed Listing Priority Guidance states that
``[c]ritical habitat determinations, which were previously included in
final listing rules published in the Federal Register, may now be
processed separately.'' The Act does not allow this separation.
Response 5. It is true that Section 4(a)(3) of the Act requires
that critical habitat be designated concurrently with listing to the
maximum extent prudent and determinable. However, as discussed in our
response to Issue 4, we are unable to comply with all of the
requirements of the Act at current funding levels. In some cases,
making prudency and determinability findings, as well as actual
critical habitat designations, will divert limited listing resources
from other listing actions required by the Act. Therefore, in
appropriate cases, we will delay all critical habitat determinations
for a species in order to comply with other statutory requirements that
provide greater conservation benefit in furtherance of the purposes of
the Act.
Issue 6. The Service's position that critical habitat is relatively
unimportant is contradicted by the Act and its legislative history.
Response 6. We believe that protection of habitat is paramount to
successful species' conservation. On June 14, 1999, we published a
Notice of Intent to Clarify the Role of Habitat in Endangered Species
Conservation (64 FR 31871). As we stated in that notice, we believe
that the process of habitat protection via critical habitat designation
is most properly examined in the broad context of the overall
importance of habitat in endangered species conservation.
Habitat considerations are a key part of virtually every process
called for in the Act. We describe the habitat needs of species, and
threats to habitat, in detail in all listing rules. In fact, Factor
A of the ``Summary of Factors Affecting the Species'' section of all
proposed and final listing rules discusses ``The Present or
Threatened Destruction, Modification, or Curtailment of the Habitat
or Range'' of the species. For most species, the threats to habitat
are the most important consideration when determining if a species
qualifies for protection under the Act. Habitat considerations are
prominent in all recovery plans, and recovery plans include maps and
descriptions of the habitat needed to recover the species. The
section 7 consultation process addresses the dynamic and seasonal
characteristics of the habitat needs of listed species. New
information concerning species' habitat use becomes available
throughout the listing, consultation, habitat conservation planning,
and recovery processes. It is essential that we consider current and
complete habitat information in these processes. The analysis of
habitat alteration and/or destruction is the cornerstone of the
Act's section 7 consultation process and the section 10 habitat
conservation planning process; this is true for species that have
designated critical habitat, as well as for those species that do
not. Habitat is identified, communicated to affected parties,
protected, and conserved through all phases of applying the Act's
protections. The conservation and recovery of imperiled species are
dependent upon habitat protection and restoration. When species are
listed as threatened or endangered, the habitats or ecosystems upon
which they depend are recognized. Conservation and recovery actions
are directed not only to the imperiled species, but to the species'
habitat, as well. (64 FR 31871).
The designation of critical habitat has only one regulatory impact:
under section 7(a) (2), Federal agencies must, in consultation with us,
insure that any action they authorize, fund, or carry out is not likely
to result in the destruction or adverse modification of critical
habitat. Destruction or adverse modification is a direct or indirect
alteration that appreciably diminishes the value of critical habitat
for both the
[[Page 57118]]
survival and recovery of a listed species. However, section 7 also
prohibits Federal agencies from taking actions that jeopardize the
continued existence of a listed species. To jeopardize the continued
existence of a species is to engage in an action that reasonably would
be expected, directly or indirectly, to reduce appreciably the
likelihood of both the survival and recovery of a listed species in the
wild by reducing the reproduction, numbers, or distribution of species.
For almost all species, the section 7 critical habitat adverse
modification and jeopardy standards are the same, resulting in an
unnecessarily duplicative and expensive regulatory process.
Therefore, while we firmly believe that attention to and protection
of habitat is paramount to successful conservation actions, we have
found that, in most circumstances, the designation of ``official''
critical habitat is of little additional value for most listed species.
Issue 7. The Service's position that it will not allow litigation
to affect its priorities violates the Act's citizen suit provision, and
unnecessarily burdens the courts and others with protracted litigation.
The Service should respond to 60-day notices and enter into settlement
agreements to avoid protracted litigation.
Response 7. As we stated in the proposed Listing Priority Guidance
(64 FR 27596), we will not adjust our biological priorities to reflect
the threat of litigation. This position does not violate the Act's
provision that allows for citizen suits. According to section 11 (g)
(1) (c), any person may commence a civil suit on his own behalf against
the Secretary where there is alleged a failure of the Secretary to
perform any act or duty under section 4 which is not discretionary with
the Secretary. In cases where such citizen suits have been filed
regarding the processing of listing actions in accordance with our
Listing Priority Guidance, we continue to seek from the courts
recognition of our need to allocate our limited listing budget so as to
best fulfill the spirit and intent of the Act. We will, of course,
comply with all court orders. When possible and when consistent with
our biologically-based priorities, we have entered into, and will
continue to seek settlement agreements to resolve outstanding
litigation. However, adopting the commenter's position would result in
allocating scarce resources based on litigation rather than biology.
For instance, in response to litigation, we might spend our entire
listing budget designating critical habitat for species already listed
and therefore subject to most of the protections of the Act, while a
gravely imperilled species without the benefit of an interested
litigant would be denied the Act's protection.
Final Listing Priority Guidance for Fiscal Year 2000
Relative Listing Priorities
Nationwide in FY 2000, we will undertake the full array of listing
actions consistent with the relative priority guidance described below.
However, some Regions and some Field Offices within Regions have
significant backlogs of proposed species, candidates, and petitions.
Therefore, additional guidance is needed to clarify the relative
priorities among the various listing activities.
Completion of emergency listings for species facing a significant
risk to their well-being remains our highest priority. Emergency
actions take precedence over all other section 4 listing actions. With
the exception of emergency actions, all other listing activities may be
undertaken simultaneously. Regions should assign relative priorities
for their remaining non-emergency listing actions based on the
following priority levels. Processing final decisions on pending
proposed listings are Priority 2 actions. Priority 3 actions are the
resolution of the conservation status of species identified as
candidates (resulting in a new proposed rule or a candidate removal).
Priority 4 actions are the processing of 90-day or 12-month
administrative findings on petitions.
The processing of petitions requesting critical habitat
designations and the preparation of proposed and final critical habitat
determinations and/or designations will no longer be prioritized with
other section 4 listing actions. Critical habitat actions will be
conducted within a specified amount of funding ($979,000 (17% of total)
for FY99) which has been set aside out of the listing subactivity.
Priority 1--Emergency Listing Actions
We will immediately process emergency listings for any species of
fish, wildlife, or plant that faces a significant and imminent risk to
its well-being under the emergency listing provisions of section
4(b)(7) of the Act. This includes preparing a proposed rule to list the
species. Every petition to list a species or reclassify a threatened
species to endangered will be reviewed in order to determine whether an
emergency situation exists. If the initial review indicates an
emergency situation, the action will be a Priority 1 action and an
emergency rule to list the species will be prepared immediately.
Emergency listings are effective for 240 days. A proposed rule to list
the species is usually published concurrently with the emergency rule
to ensure that the final listing and full protection of the Act are
established before the 240-day emergency protection expires. If the
initial review does not indicate that emergency listing is necessary,
processing of the petition will be assigned to Priority 4 as discussed
below.
Priority 2--Processing Final Decisions on Proposed Listings
Proposed species are just one step away from receiving the most
important protections under the Act. The majority of the unresolved
proposed species face high-magnitude threats. By focusing our efforts
on completing final determinations, we can provide the maximum
conservation benefits to the largest numbers of those species that are
in greatest need of the Act's protections. As proposed listings are
reviewed and processed, they will be completed through publication of
either a final listing or a withdrawal of the proposed listing.
Completion of a withdrawal may not appear consistent with the
conservation intent of this guidance. However, once a determination not
to make a proposed listing final has been made, publishing the
withdrawal of the proposed listing takes minimal time and
appropriations. Thus, it is more cost effective and efficient to bring
closure to the proposed listing than it is to postpone the action and
take it up at some later time.
Priority 3--Resolving the Conservation Status of Candidate Species
(Resulting in a New Proposed Rule or a Candidate Removal)
The publication of new proposals (candidate conservation
resolution) to add species to the lists of threatened and endangered
species has significant conservation benefit. Under the 1983 listing
priority guidelines, proposed rules dealing with taxa believed to face
imminent, high-magnitude threats have the highest relative priority
within Priority 3. If an emergency situation exists, the species will
be elevated to Priority 1. Proposed listings that cover multiple
species facing high-magnitude threats have priority over single-species
proposed rules unless we have reason to believe that the single-species
proposal should be processed first to avoid possible extinction.
Proposed listings for species facing high-magnitude threats that can be
quickly completed have higher priority than proposed rules for species
with equivalent listing
[[Page 57119]]
priorities that require extensive work to complete.
Issuance of a new proposed listing is the first formal step in the
regulatory process for listing a species. It provides some protection
in that all Federal agencies must ``confer'' with us on actions that
are likely to jeopardize the continued existence of proposed species.
The resolution of a candidate species' conservation status will be
accomplished through the publication of new proposed rules or the
processing of candidate removal forms (which, when signed by the
Director, remove species from the candidate list). Candidate species
include species petitioned for listing, for which we have made a
warranted but precluded finding pursuant to section 4(b)(3)(B)(iii) of
the Act.
Priority 4--Processing Administrative Findings on Petitions to Add
Species to the Lists and Petitions to Reclassify Species
The processing of 90-day petition findings and 12-month petition
findings to add species to the lists or reclassify species will be
Priority 4 activities. Once a 90-day petition finding is published, we
will make every reasonable effort to complete the 12-month finding in
the appropriate time frame. When it is practicable for us to complete a
90-day finding within 90 days, we are statutorily afforded a 12-month
period from the receipt of a petition to completion of the 12-month
finding. However, in those cases in which it is not practicable for us
to complete a 90-day finding within 90 days of receipt of the petition,
after the 90-day finding is completed, we will require 9 months to
complete a thorough biological status review and issue a 12-month
finding.
Allocating Listing Resources Among Regions
We allocate the listing appropriation among our seven Regions based
strictly on the number of proposed and candidate species for which the
Region has lead responsibility, with the exception of providing minimum
``capability funding'' for each Region. The objective is to ensure that
those areas of the country with the largest percentage of known
imperiled species will receive a correspondingly high level of listing
resources. Our experience in administering the Act for the past twenty
five years has shown, however, that we need to maintain at least a
minimal listing program in each Region in order to respond to
emergencies and to retain a level of expertise that permits the overall
program to function effectively over the longer term, thus the
``capability funding'' to each Region. In the past, when faced with
seriously uneven workloads, we have experimented with reassigning
workloads from heavily burdened Regions to less burdened Regions. This
approach has proven to be very inefficient because the expertise
developed by a biologist who works on a species' listing is useful in
recovery planning and other conservation activities for that species.
Additionally, biologists in a Region are familiar with other species in
that Region that interact with the species proposed for listing, and
that knowledge is useful in processing a final decision. For these
reasons, we have found it unwise to reassign one Region's workload to
personnel in another Region. Because we must maintain a listing program
in each Region, Regions with few outstanding proposed listings may be
able to address more lower priority listing actions, while Regions with
many outstanding proposed listings will use most of their allocated
funds on Priority 2 actions (finalizing proposed listings) or Priority
3 actions (completing new proposals to add species to the lists). It is
the responsibility of individual Regions to recognize their workloads
and backlogs and undertake priorities (1-4) as their regional workloads
permit. We will provide critical habitat funding on a project-by-
project basis in FY 2000.
Addressing Matters in Litigation
The numerous statutory responsibilities we bear under the Act do
not come with an unlimited budget. We are sometimes required to make
difficult choices about how to prioritize carrying out those statutory
responsibilities in order to make the best use of our limited
resources. Under these circumstances, technical compliance with the
various sections of the Act with respect to one species can mean
failure to comply with the other technical requirements of the Act for
the same or another species. This guidance is part of a continuing
effort to strive to achieve compliance with the Act in the manner that
best fulfills the spirit of the Act, using our best scientific
expertise.
Individuals or organizations occasionally bring suit against us for
failing to carry out specific actions with regard to specific species.
Many of these suits question our judgment and priorities, and seek
compliance with the Act in circumstances that do not, in our judgment,
lead to the best use of our resources to provide the maximum
conservation benefit to all species. In many of the outstanding section
4 matters currently in litigation, the effect of what the plaintiff
seeks is to require us to postpone or sacrifice conservation actions
that we believe would have major conservation benefits in favor of
actions that we believe would have lesser conservation benefits.
In no case will we adjust our biological priorities to reflect the
threat of litigation. We have sought and will continue to seek from the
courts recognition of our need to allocate our limited listing budget
so as to best fulfill the spirit of the Act. We will, of course, comply
with all court orders.
National Environmental Policy Act
We do not consider the implementation of this guidance to be a
major Federal action significantly affecting the quality of the human
environment for the purposes of the National Environmental Policy Act
(NEPA) of 1969 (42 U.S.C. 4321 et seq.). Further, the Department of the
Interior's Departmental Manual (DM) categorically excludes from
consideration under NEPA, ``Policies, directives, regulations, and
guidelines of an administrative, financial, legal, technical, or
procedural nature or the environmental effects of which are too broad,
speculative, or conjectural to lend themselves to meaningful analysis
and will be subject later to the NEPA process, either collectively or
case-by-case.'' This guidance clearly qualifies as an administrative
matter under this exclusion. We also believe that the exceptions to
categorical exclusions (DM 2 Appendix 2) would not be applicable to
such a decision, especially in light of environmental effects for such
action.
Authority
The authority for this notice is the Endangered Species Act of
1973, as amended, 16 U.S.C. 1531 et seq.
Dated: September 15, 1999.
Marshall P. Jones,
Acting Director,
U.S. Fish and Wildlife Service.
[FR Doc. 99-27689 Filed 10-21-99; 8:45 am]
BILLING CODE 4310-55-P