[Federal Register Volume 63, Number 43 (Thursday, March 5, 1998)]
[Notices]
[Pages 10931-10935]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-5814]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
Endangered and Threatened Wildlife and Plants; Proposed Listing
Priority Guidance for Fiscal Years 1998 and 1999
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice.
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SUMMARY: The U.S. Fish and Wildlife Service (Service) announces
proposed guidance for assigning relative priorities to listing actions
conducted under section 4 of the Endangered Species Act (Act) during
fiscal year (FY) 1998 and FY 1999. Although the Service is returning to
a more balanced listing program, serious backlogs remain and a method
of prioritizing among the various activities is necessary. 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 will be processing final determinations on proposed
additions to the lists of endangered and threatened wildlife and
plants; the processing of new proposals to add species to the lists;
the processing of administrative petition findings to add species to
the lists, delist species, or reclassify listed species (petitions
filed under section 4 of the Act); and a limited number of delisting
and reclassifying actions. Processing of proposed or final designations
of critical habitat will be accorded the lowest priority.
DATES: Comments on this guidance will be accepted until April 6, 1998.
The FY 1997 Listing Priority Guidance (extended on October 23, 1997)
will remain in effect until the Final FY 1998 and FY 1999 guidance is
published.
ADDRESSES: Comments 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 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 funding
[[Page 10932]]
rescission and 1996 major reductions in funding for the listing program
and from the 1995-96 listing moratorium. The enactment of Pub. L. 104-6
in April 1995 rescinded $1.5 million from the Service's budget for
carrying out listing activities through the remainder of FY 1995. Pub.
L. 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. 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 the Act
gave him to waive the moratorium. At that time, the Service had accrued
a backlog of proposed listings for 243 species. The extremely limited
funding available to the Service 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, the Service 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). The
Service 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 Service's 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, activities which provide little or no additional
conservation benefit to listed species, were assigned lowest priority
(Tier 4).
While operating the listing program under the Final FY 1997 Listing
Priority Guidance, the Service focused its resources on issuing final
determinations (Tier 2 listing activities); no Tier 1 actions
(emergency listings) were required during FY 1997. During FY 1997, the
Service made final determinations for 156 species (145 final listings
and 11 withdrawals). As a result of this expeditious progress, only 100
proposed species remained at the end of FY 1997 (including newly
proposed species). After April 1, 1997, the Service began implementing
a more balanced listing program and began processing more Tier 3
listing actions. Thus, the Service also made expeditious progress on
determining the conservation status of species designated by the
Service as candidates for listing. A candidate is a species for which
the Service has found that there is sufficient information indicating
that a listing proposal is appropriate. Such a finding may be made on
the Service's own initiative, or as a result of the petition process.
Once a species is placed on the Service's list of candidates, its
conservation status must be resolved by either proposing the species
for listing or by completing a candidate removal form. During FY 1997,
the Service proposed 23 species from the candidate list. In addition,
the Service published 9 petition findings in FY 1997. The Service also
updated the list of candidate species with the publication of the most
recent Candidate Notice of Review published on September 19, 1997 (see
16 U.S.C. 1533(b)(3)(B)(iii)(II)); at that time, there were 207
candidate species. This total represents 52 additions to the list of
candidates.
During FY 1997, the Service returned to a more balanced listing
program, but serious backlogs remain. Besides the 100 species awaiting
final rules and the 207 candidates awaiting resolution of their
conservation status, there are 35 species with due/overdue 90-day
petition findings and 30 species with due/overdue 12-month petition
findings.
It is important to recognize that the Service faces even greater
backlogs in its responsibilities to implement other aspects of the Act.
There is a large section 7 consultation and Habitat Conservation
Planning (HCP) backlog. The recovery backlog of over 300 species
awaiting Recovery Plans and an extreme shortage of recovery
implementation funding make the recovery backlog most severe. The
Service bases its funding requests on the workloads faced by all
activities of the endangered species program. Because the magnitude of
the other endangered species backlogs exceeds the listing backlog, the
President's FY 1998 request for funding endangered species programs was
focused on section 7 consultation, HCPs, and recovery rather than
listing. However, the President's budget for FY 1999 includes a
significant increase in funding for listing.
In enacting the Department of the Interior's FY 1998 Appropriations
Act (Pub. L. 105-163), Congress agreed with the President's priorities
regarding endangered species funding, providing significant increases
to the section 7 consultation, HCP, and recovery programs, while still
providing for a modest increase in the listing program funding.
Moreover, Congress expressly limited the amount the Service can spend
on listing actions (including the designation of critical habitat) to
$5.19 million.
Given the backlogs of proposed species pending final action,
candidate species awaiting proposal, and petitions awaiting
administrative findings, it is extremely important for the Service to
focus its 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 Service 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. The
Service will continue to base decisions regarding the order in which
species will be proposed or listed on the 1983 listing priority
guidelines. The Service also must prioritize among types of listing
actions and this level of prioritization is the guidance provided
below.
The Service has made this guidance applicable to FY 1999 as well as
FY 1998 to avoid any confusion over whether this guidance will remain
in effect if the budget process for FY 1999 is delayed. However, when
the Service receives its FY 1999 budget, it will review this guidance,
and, if appropriate, modify or terminate it.
Proposed Listing Priority Guidance for Fiscal Years 1998 and 1999
To address the biological, budgetary, and administrative issues
noted above, the Service submits the following proposed listing
priority guidance. As with the Final Listing Priority Guidance for FY
1997 issued December 5, 1996 (extended on October 23, 1997), this
guidance supplements, but does not replace, the 1983 listing priority
guidelines, which was silent on the
[[Page 10933]]
matter of prioritizing among different types of listing activities.
As noted above, the Department of the Interior's FY 1998
appropriation provides no more than $5.19 million for the Service's
endangered species listing program. The $5.19 million budget for all
listing activities will fall far short of the resources needed to
completely eliminate the listing backlogs in FY 1998 and FY 1999.
Therefore, some form of prioritization is still necessary, and the
Service will implement the following listing priority guidance in FY
1998 and FY 1999.
The following sections describe a three-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 species
within types of listing activities. The Service emphasizes that the
Final Listing Priority Guidance for FY 1997 (extended on October 23,
1997) will be effective until final FY 1998 and FY 1999 guidance is
issued, unless extended or canceled by future notice. In order to
continue to move toward a more balanced listing program, the Service
will concurrently undertake listing actions in Tiers 1 and 2 during FY
1998 with a listing budget of only $5.19 million. As the Service
informed Congress in its budget justification, critical habitat
designations (Tier 3 actions) during FY 1998 should not be expected.
The FY 1998 listing appropriation is only sufficient to support high-
priority listing, candidate assessment, petition processing activities,
and a minimal amount of high priority delisting/reclassification
actions. A single critical habitat designation could consume up to
twenty percent of the total listing appropriation, thereby disrupting
the Service's biologically based priorities. Higher priority listing
actions (Tiers 1 and 2) provide the greatest amount of protection for
imperiled species while making the most efficient use of limited
resources.
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, the
resolution of the conservation status of species identified as
candidates (resulting in a new proposed rule or a candidate removal),
processing 90-day or 12-month administrative findings on petitions, and
undertaking a limited number of delisting/reclassification activities
are assigned to Tier 2. Third priority is the processing of petitions
for critical habitat designations and the preparation of proposed and
final critical habitat designations; these actions provide little added
conservation benefit and are therefore assigned lowest priority (Tier
3).
Tier 1--Emergency Listing Actions
The Service 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 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 reclassify a
threatened species to endangered in order to determine whether an
emergency situation exists. If the initial review indicates an
emergency situation, the action will be elevated to Tier 1 and an
emergency rule to list the species will be prepared. Emergency listings
are effective for 240 days. A proposed rule to list the species is
usually published at the same time as an emergency rule. If the initial
review does not indicate that emergency listing is necessary,
processing of the petition will be assigned to Tier 2 as discussed
below.
Tier 2--Processing Final Decisions on Proposed Listings; Resolving the
Conservation Status of Candidate Species (Resulting in a New Proposed
Rule or a Candidate Removal); Processing Administrative Findings on
Petitions To Add Species To the Lists and Petitions to Delist or
Reclassify Species; and Delisting or Reclassifying Actions
The majority of the unresolved proposed species face high-magnitude
threats. Focusing efforts on completing final determinations provides
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 withdrawal of a 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 final
listing 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. For the
same reasons, the Service will consider critical habitat prudency and
determinability findings to be Tier 2 activities, although actual
designation of critical habitat is a Tier 3 activity. The publication
of new proposals (candidate conservation resolution) and the processing
of petition findings to add species to the lists of threatened and
endangered species have significant conservation benefit and these
actions are also now placed in Tier 2. Delisting activities also have
been placed in Tier 2 because of the indirect conservation benefits of
these actions. Nationwide in FY 1998 and FY 1999, the Service will
undertake the full array of listing actions in Tiers 1 and 2 as
appropriate. However, some Regions and some Field Offices still have
significant backlogs of proposed species, candidates, petitions, and
delistings. Therefore, additional guidance is needed to clarify the
relative priorities within Tier 2.
Setting Priorities Within Tier 2
Pursuant to the 1983 listing priority guidelines, proposed rules
dealing with taxa believed to face imminent, high-magnitude threats
have the highest priority within Tier 2. If an emergency situation
exists, the species will be elevated to Tier 1. 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 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 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.
Issuance of new proposed listings 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 the Service on
actions that are likely to jeopardize the continued existence of
proposed species.
Resolving the conservation status of candidates will be afforded
the second highest priority within Tier 2. 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). The 1983 listing priority guidelines are the basis
for assigning a candidate species a listing priority number. This
system ensures that species in the greatest need
[[Page 10934]]
of protection should be processed first. New proposed listings for
species facing imminent, high-magnitude threats (candidates with the
highest listing priority numbers) will be processed ahead of candidates
with lower listing priority numbers. The Service includes new proposals
for petitioned species that are currently on the candidate list in this
priority level within Tier 2.
The processing of 90-day petition findings and 12-month petition
findings to add species to the lists will be the next priority among
Tier 2 listing activities. Once a 90-day petition finding is published,
the Service will make every reasonable effort to complete the 12-month
finding in the appropriate time frame. When it is practicable for the
Service to complete a 90-day finding within 90 days, the Service is
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 the Service to complete a 90-day finding
within 90 days of receipt of the petition, after the 90-day finding is
completed, the Service will still require 9 months to complete a
thorough biological status review and issue a 12-month finding.
Finally, the Service expects to complete a small number of
delistings and reclassifications during FY 1998 and FY 1999. The
recovery of listed species is the ultimate goal of the endangered
species program. The Service finds that the prompt delisting of
recovered species and the reclassification of recovering species (from
endangered to threatened status) is necessary to keep the public and
other interested parties informed of a species' conservation status;
this is especially important to reducing the section 7 consultation
backlog since a species that is recovered and delisted will no longer
require consultation. Monitoring of species already on the lists is
accomplished through the recovery program; however, the small
expenditure of funds necessary to process the change in a species'
status will continue to be undertaken by the listing program. Delisting
and reclassifications will be afforded the lowest priority in Tier 2.
As with the processing of withdrawals, the conservation benefit of
these actions may not be readily apparent. However, the Service
believes that significant, albeit indirect, conservation benefit will
result from the processing of certain high-priority delisting or
reclassification actions. Moreover, the Service is obligated to
maintain the lists of threatened and endangered species and it is of
utmost importance to keep the lists accurate and up to date.
The Service expects to make substantial progress in removing or
reducing the backlogs of proposed species awaiting final determination,
candidates awaiting resolution, and petitions awaiting findings during
FY 1998 and FY 1999. During FY 1998 and FY 1999, the application of
both the listing priority guidance described above and the 1983
guidelines are critical to maintaining nationwide and program-wide
biologically sound priorities to guide the allocation of limited
listing resources.
Tier 3--Processing Critical Habitat Determinations
Designation of critical habitat, when undertaken, consumes large
amounts of the Service's listing appropriation and, in most cases, does
not add any conservation benefit beyond those achieved when a species
is listed as endangered or threatened. It is essential during periods
of limited listing funds to maximize the conservation benefit of
listing appropriations. The Service has determined that in most cases
no additional protection is gained by designating critical habitat for
species already on the lists and the application of the Service's
limited resources is best utilized to add new species to the lists
rather than designating critical habitat for species already receiving
full protection under the Act. The Service places higher priority on
addressing imperiled species that presently have very limited or no
protection under the Act, than on devoting limited resources to the
expensive process of designating critical habitat for species already
protected by the Act. Critical habitat will remain in Tier 3, and the
Service does not intend to process Tier 3 actions, including petitions
related to critical habitat designation, during FY 1998; this will be
re-evaluated when FY 1999 appropriations are received. Furthermore,
because the protection that flows from critical habitat designation
applies only to Federal actions, the designation of critical habitat
provides little or no additional protection beyond the ``jeopardy''
prohibition of section 7, which also applies only to Federal actions.
Allocating Listing Resources Among Regions
The Service allocates its listing appropriation among its seven
Regional Offices 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 one listing biologist
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. 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, thus the ``capability
funding'' to each Region. 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 conservation 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 to reassign 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 address lower priority listing actions
within Tier 2 (such as new proposed listings or petition findings),
while Regions with many outstanding proposed listings will use most of
their allocated funds on finalizing proposed listings.
Addressing Matters in Litigation
The Service understands the numerous statutory responsibilities it
bears under the Act. These responsibilities, however, do not come with
an unlimited budget. The Service is often required to make choices
about how to prioritize its responses to those statutory
responsibilities in order to make the best use of its limited
resources. Under these circumstances, technical compliance with the Act
with respect to one species often means failure to comply with the
technical requirements of the Act for another species. This guidance is
part of a continuing effort to express to the public that the Service
is striving towards compliance with the Act in the manner that best
fulfills the spirit of the
[[Page 10935]]
Act, using the Service's best scientific expertise.
The Service understands that some may believe they have reason to
bring suit against the Service for failing to carry out specific
actions with regard to specific species. These actions question the
Service's judgment and priorities, placing the emphasis of Act
compliance on technical fulfillment of the statute for specific species
rather than on the best use of the Service's resources to provide the
maximum conservation benefit to all species. There are many outstanding
section 4 matters currently in litigation. In each case, the plaintiff
seeks, in effect, to require the Service to sacrifice conservation
actions which the Service believes would have major impacts for actions
which the Service believes would have much lesser effects.
In no case will the Service adjust its priorities to reflect the
threat or reality of litigation. The Service has argued and will
continue to argue before the courts that it should be allowed to
prioritize its activities so as to best fulfill the spirit of the Act.
Should any court not accept this argument, the Service will, of course,
carry out the instruction of the court or the terms of any settlement
reached. The Service believes, however, that such obligations impede
the overall conservation effort for a much lesser benefit for a single
species.
For example, during FY 1997, a plaintiff succeeded in obtaining a
court order that required the Service to designate critical habitat for
the southwestern willow flycatcher. The Service acknowledges that it
had a responsibility to carry out this action and intended to meet its
statutory requirement, like all others, when its budget and backlog of
higher priority listing actions allowed. However, the Service still
contends that this particular action had relatively little conservation
benefit, especially compared to the numerous listings of wildlife and
plants that had to be delayed to allow it to proceed when it did. The
Service's Region 2 is suffering from their inability to prioritize its
responsibilities and complete several high priority species issues last
year.
Public Comments Solicited
The Service intends that any action resulting from this proposed
guidance be as accurate and as effective as possible. Therefore, any
suggestions from the public, concerned governmental agencies, the
scientific community, environmental groups, industry, commercial trade
entities, or any other interested party concerning any aspect of this
proposed guidance are hereby solicited. The Service will take into
consideration any comments and additional information received and will
announce final guidance after the close of the public comment period
and as promptly as possible after all comments have been reviewed and
analyzed. The Final FY 1997 Listing Priority Guidance, extended on
October 23, 1997, will remain in effect until publication of the Final
FY 1998 and FY 1999 Listing Priority 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 2, 1998.
Jamie Rappaport Clark,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 98-5814 Filed 3-4-98; 8:45 am]
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