[Federal Register Volume 61, Number 48 (Monday, March 11, 1996)]
[Rules and Regulations]
[Pages 9651-9653]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5646]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Interim Listing
Priority Guidance
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of interim listing priority guidance.
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SUMMARY: The U.S. Fish and Wildlife Service (Service) adopts interim
guidance for assigning relative priorities to listing actions conducted
under section 4 of the Endangered Species Act (Act). Congress enacted a
moratorium on final listings and critical habitat designations in April
1995 which, combined with severe funding constraints, essentially shut
down the Service's listing program beginning in October 1995. During
this shutdown, a large backlog of listing actions, particularly
unresolved proposed listings, is accruing. When the moratorium is
lifted and adequate funding is restored to operate a listing program,
the Service will need to act expeditiously to resolve the status of
outstanding proposed listings. This guidance supplements, but does not
replace, the current listing priority guidelines, which are silent on
the matter of prioritizing among different types of listing activities.
While the backlog exists, and in order to focus conservation benefits
on those species in greatest need, the Service believes that processing
the outstanding proposed listings should receive higher priority than
other actions authorized by section 4 (such as petition findings, new
proposed listings, and critical habitat determinations).
DATES: This guidance takes effect March 11, 1996. Comments on this
guidance will be accepted until April 10, 1996. This interim guidance
will remain in effect until September 30, 1996, unless extended by
further notice.
ADDRESSES: Comments on this interim guidance should be addressed to the
Chief, Division of Endangered Species, U.S. Fish and Wildlife Service,
1849 C Street NW., Mailstop ARLSQ-452, Washington, DC 20240.
FOR FURTHER INFORMATION CONTACT: E. LaVerne Smith, Chief, Division of
Endangered Species, U.S. Fish and Wildlife Service, 703-358-2171 (see
ADDRESSES section).
SUPPLEMENTARY INFORMATION:
Background
The Service adopted guidelines on September 21, 1983 (48 FR 43098-
43105) that govern the assignment of priorities to species under
consideration for listing as endangered or threatened under section 4
of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et
seq.). The Service adopted those guidelines to establish a rational
system for allocating available appropriations to the highest priority
species when adding species to the lists of endangered or threatened
wildlife and plants or reclassifying threatened species to endangered
status. The system places greatest importance on the immediacy and
magnitude of threats, but also factors in the level of taxonomic
distinctiveness by assigning priority in descending order to monotypic
genera, full species, and subspecies (or equivalently, distinct
population segments of vertebrates).
The enactment of Public Law 104-6 in April, 1995 rescinded $1.5
million from the Service's budget for carrying out listing activities
through the remainder of Fiscal Year 1995. Public Law 104-6 also
contained a prohibition on the expenditure of the remaining
appropriated funds for final determinations to list species or
designate critical habitat which, in effect, placed a moratorium on
those activities.
Since the end of Fiscal Year 1995, funding for the Service's
endangered species programs, including listing of endangered and
threatened species, has been provided through a series of continuing
resolutions, each of which has maintained in force the moratorium
against issuing final listings or critical habitat designations. The
continuing resolutions also severely reduced or eliminated the funding
available for the Service's listing program. Consequently, the Service
reassigned listing program personnel to other duties. The net effect of
these legislative and administrative actions is that the Service's
listing program has been essentially shut down since October 1995, and
will remain so until adequate funding is restored. The moratorium and
severe funding restrictions have created problems that require
additional guidance.
When adequate appropriations are provided by the Congress for the
administration of a listing program and when the listing program is no
longer restricted by moratoria or similar conditions, the Service will
face the considerable task of restaffing its listing program and
allocating the available resources to the following listing activities
that have accrued significant backlogs. First, the Service has issued
proposed listings for 243 species, which require final decisions.
Second, although the moratorium imposed by Pub. L. 104-6 does not
specifically extend to petition processing or the development of new
proposed listings, the extremely limited funding available to the
Service for listing activities has generally precluded these actions
since October 1, 1995. However, during this period the Service has
continued to receive new petitions and now has a backlog of petitions
that request the listing or delisting of 41 species under section
4(b)(3) of the Act. Third, the Service is required by numerous court
orders or settlement agreements to process a variety of actions under
section 4 of the Act. Fourth, the Service also needs to make
expeditious progress on determining the conservation status of the 182
species designated by the Service as candidates for listing in the
recently published Candidate Notice of Review (61 FR 7596; February 28,
1996). These backlogs and court orders illustrate the need for program-
wide priorities to guide the allocation of resources once the listing
program is revived. For the above reasons, good cause exists to make
this guidance effective immediately.
Section 4(b)(1) of the Act requires the Service to use the ``best
available scientific and commercial information'' to determine those
species in need of the Act's protections. It has been long-standing
Service policy that the order in
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which species should be processed for listing is based primarily on the
immediacy and magnitude of the threats they face. Given the large
backlogs of proposed species, petitions, and candidate species awaiting
proposal, it will be extremely important for the Service to focus its
efforts on actions that will provide the greatest conservation benefits
to imperiled species in the most expeditious manner.
The Service will continue to base decisions regarding the order in
which species will be proposed or listed on the 1983 listing priority
guidelines. These decisions will be implemented by the Regional Office
designated with lead responsibility for the particular species. The
Service allocates its listing appropriation among the Regional Offices
based primarily on the number of proposed and candidate species for
which the Region has lead responsibility. This ensures that those areas
of the country with the largest percentage of known imperiled biota
will receive a correspondingly high level of listing resources. The
1983 listing priority guidelines and this guidance will be applied at
the National, Regional, and local levels.
While funding for listing activities is allocated based on expected
workload, the types of activities composing each Region's listing
workload vary greatly. As a result, Regions with few outstanding
proposed listings may be able to process new proposed listings or
petition findings before all of the outstanding proposed listings have
been processed in Regions with large numbers of outstanding proposed
listings.
To address the biological, budgetary, and administrative issues
noted above, the Service therefore adopts the following interim listing
priority guidance.
Interim Listing Priority Guidance
The Headquarters Office will promptly process any draft petition
findings, draft proposed rules or final rules (once the moratorium is
lifted) to add species to the lists, draft proposed or final critical
habitat determinations (once the moratorium is lifted), or draft
withdrawal notices that could not be processed because of the funding
constraints or the moratorium. This will only apply to draft documents
already approved by the Field and Regional Offices but for which final
action could not be completed per guidance issued by the Director.
The following sections describe a multi-tiered approach that
assigns relative priorities, on a descending basis, to actions to be
carried out under section 4 of the Act. The various types of actions
within each tier (such as new proposed listings, administrative
petition findings, etc.) will be accorded roughly equal priority, but
the 1983 listing priority guidelines should be used as applicable. The
Service emphasizes that this guidance is effective until September 30,
1996 (unless extended by future notice) and the agency fully
anticipates returning to a more balanced implementation of the Act's
listing responsibilities to concurrently process petition findings and
proposed and final listings and critical habitat determinations, after
funding has been restored and the backlogs reduced.
Tier 1--Emergency Listing Actions
Once the moratorium is lifted, the Service will immediately process
emergency listings for species that face an imminent risk of extinction
under the emergency listing provisions of section 4(b)(7) of the Act
and will prepare a proposed listing immediately upon learning of the
need to emergency list. This provision will also apply to any
petitioned species for which the Service deems an emergency situation
exists.
Tier 2--Processing Final Decisions on Proposed Listings (Applies After
the Moratorium is Lifted)
In issuing the outstanding proposed listings, the Service deemed
that the vast majority of the proposed species faced high-magnitude
threats. The Service believes that focusing efforts on making final
decisions relative to these proposed species will provide maximum
conservation benefits to those species that are in greatest need of the
Act's protections.
Tier 3--Processing New Proposed Listings for Species Facing High-
Magnitude Threats (Listing Priority Numbers 1 through 6) and Initial
Screening of Petitions
While the backlog of candidate species has been reduced
substantially since 1992, the Service has determined that 182 species
warrant issuance of proposed listings. The Act directs the Service to
make ``expeditious progress'' in adding new species to the lists and
thereby necessitates steady work in reducing the number of outstanding
candidate species. Issuance of new proposed listings is the first
formal step in the regulatory process for listing a species. Many
candidate species face high-magnitude threats and the need to start the
regulatory process justifies placement of this activity in Tier 3.
The Service will conduct a preliminary review of any petition to
list a species or change a threatened species to endangered status to
determine if an emergency situation exists or if the species would
probably be assigned a high listing priority upon completion of a
status review. If the initial screening indicates an emergency
situation the action will be elevated to Tier 1. If the initial
screening indicates a species that probably faces high-magnitude
threats, processing of the petition will be assigned to Tier 3.
Tier 4--Processing new Proposed Rules for Species Facing Moderate- or
Low-Magnitude Threats; Processing Administrative Findings on Petitions
not Assigned to Tiers 1 or 3; and Processing Final Decisions on
Proposed Delistings or Reclassifications
Processing of new proposed rules for species facing moderate- or
low-magnitude threats would provide less conservation benefit than
actions described in Tiers 1 through 3, so the Service is assigning
this activity to Tier 4.
Administrative findings for petitions that are not assigned to
Tiers 1 or 3 after initial screening will be processed as a Tier 4
priority but only to the extent that such action does not substantially
deter from the Service's ability to deal with the backlog of proposed
listings.
Processing of final decisions for previously proposed delistings
and reclassifications provides relief from unnecessary regulations. The
Service believes that providing such regulatory relief is an
appropriate Tier 4 activity.
Tier 5-- Processing Critical Habitat Determinations and Processing new
Proposed Delistings or Reclassifications
Designation of critical habitat consumes large amounts of the
Service's listing appropriation and generally provides only limited
conservation benefits beyond those achieved when a species is listed as
endangered or threatened. Because critical habitat protections are
restricted to Federal actions, situations where designating critical
habitat provides additional protection beyond the protections included
in section 7 are rare. It is critical during this interim period to
maximize the conservation benefit of every dollar spent in the listing
activity. The small amount of additional protection that is gained by
designating critical habitat for species that are already on the lists
is greatly outweighed by providing the protections included in sections
7 and 9 to newly-listed species. Therefore, the Service will place
higher priority on
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addressing species that presently have no protection under the Act
rather than devoting limited resources to the expensive process of
designating critical habitat for species already protected by the Act.
Issuing new proposed delistings and downlistings can provide
regulatory relief but will be accorded Tier 5 priority due to limited
listing resources and the fact that such actions will not become
effective in the immediate future.
Setting Priorities Within Tier 2
Most of the outstanding proposed listings deal with species that
face high-magnitude threats, such that additional guidance is needed to
clarify the relative priorities within Tier 2. Proposed rules dealing
with taxa deemed to face imminent, high-magnitude threats will have the
highest priority within Tier 2. The Service will promptly review the
backlog of 243 proposed species and each Region will reevaluate the
immediacy and magnitude of threats facing all species that have been
proposed for listing and revise the species' listing priority
assignments accordingly. Those with the highest listing priority will
be processed first.
Proposed listings that cover multiple species facing high-magnitude
threats will have priority over single-species proposed rules unless
the Service has reason to believe that the single-species proposal
should be processed to avoid possible extinction.
Due to unresolved questions or to the length of time since
proposal, the Service may determine that additional public comment or
hearings are necessary before issuing a final decision for Tier 2
actions. Proposed listings for species facing high-magnitude threats
that can be quickly completed (based on factors such as few public
comments to address or final decisions that were almost complete prior
to the moratorium) will have higher priority than proposed rules for
species with equivalent listing priorities that still require extensive
work to complete.
Given species with equivalent listing priorities and the factors
previously discussed being equal, proposed listings with the oldest
dates of issue should be processed first.
Notifying the Courts on Matters in Litigation
The Service will assess the status and the relative priority of all
section 4 petition and rule-making activities that are the subject of
active litigation using this interim guidance and the 1983 listing
priority guidelines. The Service, through the Office of the Solicitor,
will then notify the Justice Department of its priority determination
and request that appropriate relief be requested from each district
court to allow those species with the highest biological priority to be
addressed first. The Service will provide periodic updates to each
district court on the progress that it is making in addressing high
priority proposed and candidate species. However, to the extent that
these efforts to uphold the Service's interim priority guidance and the
1983 listing priority guidelines do not receive deference in the
Courts, the Service will need to comply with court orders despite any
conservation disruption that may result.
The Service will not elevate the priority of proposed listings for
species under active litigation. To do so would let litigants, rather
than expert biological judgments, control the setting of listing
priorities. The Regional Office with responsibility for processing such
packages will need to determine the relative priority of such cases
based upon this guidance and the 1983 listing priority guidelines and
furnish supporting documentation that can be submitted to the relevant
Court to indicate where such species fall in the overall priority
scheme.
Public Comments Solicited
The Service intends that any action resulting from this guidance be
as accurate and as effective as possible. Therefore, any comments or
suggestions from the public, other concerned governmental agencies, the
scientific community, industry, commercial trade entities, or any other
interested party concerning any aspect of this guidance are hereby
solicited. While the guidance will be used immediately, the Service
will take into consideration the comments and any additional
information received. Such communications may lead to the adoption of
additional or revised guidance that differs from this interim guidance.
Authority
The authority for this notice is the Endangered Species Act of
1973, as amended, 16 U.S.C. 1531 et seq.
Dated: March 1, 1996.
John G. Rogers,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 96-5646 Filed 3-8-96; 8:45 am]
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