[Federal Register Volume 63, Number 89 (Friday, May 8, 1998)]
[Notices]
[Pages 25502-25512]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-12284]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
Endangered and Threatened Wildlife and Plants; Final 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 final
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: This Listing Priority Guidance is effective May 8, 1998 and will
remain in effect until modified or terminated.
ADDRESSES: Questions regarding this 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, 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, both
domestic and foreign, 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 major disruptions
in the listing budget beginning in FY 1995 and a moratorium on certain
listing actions during parts of FY 1995 and FY 1996. 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 also prohibited the expenditure of the remaining
appropriated funds for final determinations to list species, whether
foreign or domestic, or designate critical habitat; in effect, this
placed a moratorium on those activities. During the first half of FY
1996, the moratorium continued while a series of continuing resolutions
provided little or no funding for listing activity. 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 immediate 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 domestic and foreign 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
[[Page 25503]]
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 (species
eligible for proposed listing rules) 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, which provide little or no additional
conservation benefit to listed species, and processing delistings and
reclassifications from endangered to threatened status 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 11 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.
Although the Service returned to a more balanced listing program
during FY 1997, serious backlogs of listing activity remain. Besides
the 100 species awaiting final rules and the 207 candidates awaiting
resolution of their conservation status, there were 30 species with due
or overdue 12-month petition findings and 47 species with due or
overdue 90-day petition findings, plus one petition to list 3700
foreign species due a 90-day finding.
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. During FY 1998, the Service projects that it
will conduct more than 40,000 consultations with other Federal
agencies, including approximately 900 formal consultations. The Act
mandates time frames for consultation completion. The consultation
workload continues to increase as new species are listed. The Service
also projects that there will be approximately 75 new HCPs requiring
review in FY 1998, bringing the number of active HCPs to approximately
300. The recovery backlog includes over 300 species awaiting recovery
plans and an extreme shortage of recovery implementation funding.
Completing recovery plans within 2\1/2\ years after a species is listed
and funding implementation of completed plans is integral to the Act's
goal of removing the threats to listed species so that they can
eventually be recovered. 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
that of the listing backlog, the President's FY 1998 request for
increased funding for 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 for the program overall and a portion of the increase is
identified for listing.
In enacting the Department of the Interior's FY 1998 Appropriations
Act (Pub. L. 105-83, 111 Stat. 1543 (Nov. 14, 1997)), Congress agreed
with the President's priorities regarding endangered species funding,
providing significant increases to the section 7 consultation, HCP, and
recovery programs. Moreover, Congress expressly limited the amount the
Service can spend on listing actions (including delistings,
reclassifications, and the designation of critical habitat) to $5.19
million.
Federal agencies can act only to the extent funds are provided by
the Congress. This is a fundamental check and balance of our Federal
system of Government, and is indeed a constitutional requirement. The
enactment of the Act does not carry with it the appropriation of funds
necessary to implement that law. Absent appropriations by the Congress,
the Service cannot take the actions required by the Act. Appropriations
are provided to the Department of the Interior and the agencies
therein, including the Service, pursuant to annual appropriation acts.
The FY 1998 Appropriations Act, including the maximum of $5.19 million
for implementing listing activities (subsections (a), (b), (c), and (e)
of section 4 of the Act), is binding upon the Department and must be
strictly followed.
Given the backlogs of proposed species pending final action,
candidate species awaiting proposal, and petitions awaiting
administrative findings, and the limited funding available to address
these backlogs, 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. The purpose of this Listing Priority Guidance is to
reconcile the requirements of the Act with the realities of the annual
appropriation act. The Listing Priority Guidance is an exercise of the
Service's discretion concerning how best to expend that amount of money
for listing activities in a manner that provides the greatest
conservation benefit to threatened and endangered species consistent
with the purposes of the Act. In other words, the Listing Priority
Guidance is the Service's blueprint for coming into compliance with the
Act as quickly as the available appropriations allow.
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
[[Page 25504]]
prioritize among types of listing actions and this level of
prioritization is what necessitates 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. Funding for delistings and
reclassifications from endangered to threatened status is moved
entirely to the recovery funding subactivity in the Administration's FY
1999 budget proposal, so these activities would be removed from Tier 2.
Analysis of Public Comments
On March 5, 1998, the Service published a notice in the Federal
Register (63 FR 10931) announcing proposed listing priority guidance
for FY 1998 and FY 1999 and solicited public comment on that proposed
guidance. The Service received 6 letters of comment on the proposed
guidance. Two letters were generally in favor of the proposed guidance
and four were generally opposed. A summary of the issues raised and the
Service's response follows.
Issue 1: The notice is unclear as to the application of the Listing
Priority Guidance to foreign species. The commenter said that the
guidance should only apply to U.S. species because the listing and
delisting of foreign species is handled in the Service's headquarters
by a different office than domestic listing activities and with
different budget dollars.
Response: The Listing Priority Guidance is indeed applicable to
both foreign and domestic species, since the Congressional budget
appropriations for all listing activities, foreign and domestic, is
limited in FY 1998 to $5.19 million. The final Listing Priority
Guidance has been modified to clarify this point. However, exceptions
in the operation of the Guidance may be made with respect to foreign
species as explained in the discussions below.
Issue 2: Two commenters recommended that the Service recognize
sustainable use as a reason for delisting species, especially when the
listed status of the species conflicts with the recovery and/or
management program of the nation where the species occurs. Both
referred primarily to delisting of foreign species, such as the
Namibian cheetah and Nile crocodile. One commenter considered inclusion
of delisting in Tier 2, albeit at a low level within Tier 2, an
improvement over Listing Priority Guidance of FYs 1996 and 1997. The
other suggested assigning delisting activities to Tier 1 or at least
the highest priority of Tier 2.
Service response: The Service recognizes the conservation benefits
of delisting activities for domestic and foreign species and recognizes
that, with regard to foreign game species, fees from trophy hunters
can, in some cases, provide economic incentives for landowners to
maintain healthy populations of game species. It should be noted,
however, that several foreign big game species are listed under the Act
and import permits have not been issued for hunting trophies for
species listed as endangered. A large percentage of international
hunters are Americans who might invest in the hunting program if the
species were not listed and import was permitted.
However, the Service disagrees that delisting should be the highest
priority of Tier 2, although for some foreign species it will be a
higher priority. Furthermore, placing delisting activities ahead of
emergency listing actions (Tier 1), as suggested by the commenter, is
contrary to the intent of section 4 of the Act. With limited resources,
the Service must prioritize among the various listing activities. The
Service has placed highest priority on emergency listing actions since
those actions may mean the difference between extinction and existence.
The Service will not place any listing actions over emergency listing
actions.
The Service recognizes that listing, reclassifying from endangered
to threatened, and delisting actions for foreign species are different,
as the conservation benefits of those actions will be different than
for domestic species (species with a range that includes the United
States). The Service has placed delisting at the end of Tier 2 for
domestic species, because the conservation benefits of delisting are
indirect. For foreign species, particularly when trade is a factor
affecting the status of a species, the Service will also take into
consideration the international legal status of the species. Thus, for
species listed in Appendix II of the Convention on International Trade
in Endangered Species (CITES), an alignment of their listing status
under the Act should be evaluated. There may be species listed in CITES
Appendix II (which allows for regulated trade that is not detrimental
to the survival of the species), for which there can be potential
conservation benefits of such trade, such as when such trade is part of
the management plan of the country of origin. In such cases, listing
under the Act as endangered, which prohibits such trade, may have
potential conservation detriment for some species. Certainly, the
United States should endeavor, when possible, to recognize the
conservation programs of foreign countries, when based on sound
science.
The Service placed delisting at the end of Tier 2 because the
conservation benefits of delisting are indirect. The Service expends
its limited resources to conserve imperiled species through final
listing actions, resolving the conservation status of candidates,
including new proposals for listing, and processing petition findings.
These actions are vital to the continued existence of imperiled species
and are important in the protection of the habitats upon which those
species depend. The Service has determined that the above actions
should receive higher priority than delisting activities. The Service
acknowledges its responsibilities to delist and reclassify qualified
species and plans on completing a small number of these activities in
FY 1998. The President's FY 1999 budget request would fund delisting
and reclassification from endangered to threatened status under the
recovery subactivity for domestic species and under the Permits/CITES
subactivity for foreign species; the President's budget would also
remove delistings and reclassifications from endangered to threatened
status from the listing cap. If these aspects of the President's budget
are enacted, delisting and reclassification from endangered to
threatened will no longer be in direct competition for funding with
other listing activity and will be removed from this Listing Priority
Guidance.
Issue 3: It is disingenuous for the Service to claim that the $5.19
million appropriated by Congress for the listing program in FY 1998
falls far short of the resources needed to completely eliminate the
listing backlogs when that was all that the Department of the Interior
requested for the listing program, and further, the Department
specifically requested a listing cap. Therefore, the Service has failed
to justify the proposed guidance.
Response: The President's budget request for the entire endangered
species program for FY 1998 was $80 million. This budget request was
significantly greater than the FY 1997 enacted budget of $68 million
due to considerable workload facing the Service throughout the entire
endangered species program. As stated previously in this notice,
listing is not the only responsibility the Service has
[[Page 25505]]
under the Act. For instance, over 300 species await recovery plans,
while approximately 900 formal section 7 consultations, which are, by
regulation, to be completed within 90 days, will be due in FY 1998, and
200 HCP applicants are awaiting technical assistance and permit review
and issuance. Consequently, the President's FY 1998 request for
increased funding for the endangered species programs was focused on
section 7 consultation, HCPs, and recovery rather than listing.
Moreover, given the recent history of the listing budget, the FY 1998
request for listing was based on a realistic assessment of the level of
funding that might be obtained.
The listing budget has always been subject to a cap, in the sense
that Congressional committee reports allocate a certain amount of
funds, and no more, to the listing program. For FY 1998, the Department
of the Interior requested that Congress include the amount of funding
available to listing on the face of the appropriations law to further
clarify Congress' intent that the Service not be able to divert funding
to listings from other programs. Moreover, the Service's budget
justification to Congress made clear that the requested funding would
not be sufficient to eliminate the listing backlog in FY 1998,
particularly with regard to the designation of critical habitat.
Congress could have chosen to provide additional funding and/or earmark
funding for critical habitat designation, but did not do so.
The President's budget for FY 1999 seeks a $1.7 million increase
for listing activity. The FY 1999 budget also moves delisting and
reclassification to recovery since these activities are the end point
of the recovery process.
Issue 4: The proposed listing priority guidance is not based on
sound science. Critical habitat determinations should have a higher
priority than withdrawals, delistings, and reclassifications, which
offer no direct conservation benefits for listed species. Tier 2 should
include listing decisions, critical habitat designations, and listing
proposals for species with high, imminent threats; Tier 3 should
prioritize other species based on the September 1983 listing priority
guidance; and Tier 4 should include downlisting, delisting,
withdrawals, and other non-protective actions.
Response: The Service disagrees with the assertion that the
proposed listing priority guidance is not based on sound biological
considerations, and remains firm in its belief that designation of
critical habitat generally provides little or no additional
conservation benefits beyond those provided by the consultation
provisions of section 7 and the prohibitions of section 9, while the
cost of designation is generally high. The Service will continue to
determine whether critical habitat is prudent or not prudent at the
time a species is listed (Tier 2) by determining whether designation of
critical habitat would provide marginal benefit and, if so, weighing
that benefit against any risks caused or increased by designation.
However, any rulemaking resulting from a ``prudent'' determination will
remain the Service's lowest priority because, even where there is
benefit to the species, it is generally very slight. The listing of a
species, on the other hand, provides an array of generally applicable
prohibitions and protections, including the prohibition of agency
actions causing jeopardy.
The Service has determined that inclusion of a limited number of
delisting and reclassification actions in Tier 2 is justified. Although
indirect, conservation benefits to individual species and the
endangered species program are significant. As long as a species
remains on the endangered and threatened lists, Service funds are
expended for ongoing conservation activities, including reviewing and
permitting activities associated with habitat conservation plans and
other regulated activities pursuant to section 10 of the Act.
Similarly, the Service must expend funds engaging in consultations with
other Federal agencies under section 7 of the Act. Resources currently
devoted to these activities could be redirected to other listed species
more deserving of conservation efforts. Further, the primary objective
of the Act is recovering species and removing them from the lists. Once
it is determined that the Act's protections are no longer appropriate,
it is important that delisting or reclassification proceed,
particularly where listing creates an unwarranted management burden.
In addition to allowing the Service to direct resources to activity
with greater conservation benefit, delisting a species or reclassifying
a species from endangered to threatened and issuing a special rule also
can provide regulatory relief to, and thus reduce the expenses of,
other Federal agencies as well as State and private entities. For
instance, following delisting of a species, Federal agencies are no
longer required to consult under section 7 on Federal activities. In
addition, the prohibitions and permit requirements of sections 9 and
10, respectively, which apply to both public and private entities, are
eliminated. Thus, delisting and reclassification not only reduces
Service expenditures, but it has the added benefit of relieving
unnecessary restrictions and burdens on States and private citizens,
and may increase public support for the endangered species program.
While the primary focus of the FY 1998 Listing Priority Guidance
will remain adding species to the endangered and threatened lists, when
appropriate, the Service believes that a small number of delisting and
reclassification actions is critical to the integrity of the Act. The
Service would process delisting or reclassification actions as
appropriate and probably no more than 10-12 species during FY 1998, as
compared to approximately 170 proposed and final listing actions,
provided it is allowed to follow the Listing Priority Guidance.
Pub. L. 104-6 rescinded $1.5 million from the Service's FY 1995
listing budget and expressly prohibited the expenditure of the
remaining funds for final listing and critical habitat determinations
but did not prohibit delisting and downlisting activities. At the time
the Pub. L. was enacted, the Service was working on several delisting
and reclassification actions. For instance, on June 30, 1995, shortly
after the moratorium and rescission, the Service published in the
Federal Register (60 FR 34406) a notice of intent to delist the
American peregrine falcon. Considerable status information was received
from the public as a result of the notice. However, development of a
delisting proposal ceased when the listing program ran out of funds and
the entire program was shut down. The Service expects to proceed with
this delisting proposal in FY 1998. Completing this delisting is a high
priority for the Service. The Dismal Swamp shrew is another species
that the Service anticipates delisting soon. Other delistings actions
expected to proceed in FY 1998 include the Columbian white-tailed deer
(Roseburg population), Hoover's wooly star (a plant), the Tinian
monarch, and possibly one or two other domestic species. The Service
estimates that approximately $300,000 to $400,000 of the $5.19 million
listing budget would be necessary in FY 1998 to proceed with delisting
activities for these five species in addition to the delisting and
reclassification activities for a small number of other species. It
should be noted that recovery actions and the gathering of information
for use in the evaluation of delisting actions is funded from the
Service's Recovery budget allocation, and not from the Listing
allocation. Therefore, the only funding
[[Page 25506]]
from the Listing allocation is for the preparation and processing of
proposed and final delisting actions.
The costs associated with retaining these species on the endangered
and threatened lists are significant. Section 18 of the Act requires
that the Service annually report reasonably identifiable Federal and
State expenditures for the conservation of listed species. Expenditures
include, but are not limited to, activities such as research, recovery
(including grants to the States under section 6 of the Act), land
acquisition, consultation under section 7 of the Act, permitting under
section 10, and law enforcement, to the extent such activities can be
attributed to particular listed species. According to the most recent
expenditures report, Federal and State Endangered Species Expenditures,
Fiscal Year 1994 (U.S. Fish and Wildlife Service, October 1997), the
Service spent a total of approximately $1.2 million on conservation
activities for the five species identified above (American peregrine
falcon, Dismal Swamp shrew, Columbian white-tailed deer, Tinian
monarch, and Hoover's wooly star). Non-Service Federal agencies
expended $1.7 million on these species, bringing the total identifiable
Federal expenditures to nearly $3 million. While it is likely that
fewer resources were devoted to recovery of these species in more
recent years, as recovery neared completion, expenditures associated
with section 7 and section 9 typically increase as a species becomes
more abundant. Consultations on Federal projects will continue to be
necessary as long as these species are listed. The American peregrine
falcon has made a dramatic recovery since its listing in 1970; with
more than 1184 pairs currently in the wild, it has more than doubled
the overall recovery goal of 456 pairs. The species occurs in nearly
every State, and the eventual delisting will assist in reducing the
section 7 consultation workload. At least 50 formal consultations were
conducted for this species in 1996 and 1997. Even the Hoover's wooly-
star, which has a much more limited range, required 7 formal
consultations in 1996 and 1997. The sooner these species can be removed
from the endangered and threatened lists, the sooner associated
resources can be redirected to other listed species.
The Service expects to reclassify from endangered to threatened
some foreign species or populations that are currently listed in CITES
Appendix II, for which the United States listing under the Act
prohibits commercial imports. The existing prohibition is seen by some
range countries as potentially undermining their conservation and
management programs. After evaluating the conservation status of the
species, and assessing the scientific basis of those management
programs and the potential conservation benefits of continued trade
pursuant to CITES Appendix II, the Service expects to: (1) reclassify
from endangered to threatened the yacare caiman, with a special rule to
allow trade in parts and products that comply with CITES tagging and
other requirements for the species (the species has never been included
in CITES Appendix I); (2) reclassify from endangered to threatened
those populations of the vicuna that are listed in CITES Appendix II,
with a special rule to allow trade in parts and products only if they
comply with all CITES requirements for the species; and (3) consider
the reclassification from endangered to threatened of certain captive-
bred populations of both Morelet's crocodile and the Asian bonytongue
fish, that are treated as Appendix II species, as part of approved
CITES captive breeding programs. Although not all species for which
CITES allows commercial trade should be reclassified under the Act, the
Service intends to take CITES status into consideration. The Service
also plans to finalize its review, pursuant to a petition, of the
biological status of the cheetah to determine if it qualifies for
reclassification from endangered to threatened.
The inclusion of withdrawals of proposed listings in Tier 2 is
reasonable. As stated in the FY 1997 Listing Priority Guidance, it is
appropriate to process a withdrawal notice on a proposed listing if
that course of action is found to be appropriate and is based on a
review of the proposed listing 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 in Tier 2.
Preparation of withdrawals require relatively limited resources beyond
that required to complete the final listing status evaluation of the
proposed action. Some proposed listings are withdrawn as a result of
the implementation of Candidate Conservation Agreements developed to
conserve the species prior to its listing. While processing of the
notice withdrawing the proposed rule is charged to the Listing budget,
any funding associated with development or implementation of the
Conservation Agreement is charged to a separate Candidate Conservation
budget.
Issue 5: Several commenters contend that the Service lacks any
authority to implement the proposed Listing Priority Guidance and that
it may not be used by the Service to avoid its mandatory duty to
designate critical habitat or take other actions on species. Further,
it provides no deadlines by which the Service must take listing or
critical habitat actions under any of the tiers, ignoring explicit
deadlines set by Congress. One commenter cited several court rulings
that found the Service's Listing Priority Guidance invalid because it
attempted to turn the Service's mandatory duties under the Act into
indefinite extensions of time.
Response: These commenters fundamentally misunderstand the purpose
of the Listing Priority Guidance and the relationship between
substantive law, such as the Act, and the annual appropriation of funds
necessary to implement the law. The lack of deadlines in the Listing
Priority Guidance is entirely appropriate, as the Listing Priority
Guidance is not meant to replace the deadlines of the Act. Those
deadlines are binding on the Service; the Service must comply with them
to the extent that it can do so within the limits of its appropriated
funds. See the discussion of Pub. L. 105-83 above.
Contrary to the assertions of these commenters, simply inserting
deadlines into the Listing Priority Guidance would serve no purpose. If
lack of funds render it impossible for the Service to meet all of the
Act's deadlines, the Service must take the required actions as soon as
appropriated funds make it possible to do so. Thus, if the Listing
Priority Guidance included deadlines different than those of the Act,
those deadlines would be no more enforceable that the Act's deadlines
if the available funds prove insufficient. Conversely, the fact that
deadlines arbitrarily set in the Listing Priority Guidance had not
passed would not excuse the Service's failure to comply with the Act's
deadlines if the Service had sufficient available funds to take the
actions before the time specified in the Listing Priority Guidance.
As one commenter notes, while some courts have looked no further
than the fact of the Service's violation of a particular deadline,
other courts that have looked at the larger picture have held that the
Listing Priority guidance is a reasonable method of prioritization,
[[Page 25507]]
and allowed the Service to follow the Guidance in coming into
compliance with the Act. For example, in Forest Guardians v. Babbitt,
No. CIV 97-0453 JC/DJS (D.N.M. Oct. 23, 1997), the court deferred to
the Listing Priority Guidance's treatment of critical habitat
designation for the silvery minnow: ``The court is persuaded by the
recent cases that have deferred to the Secretary's listing priority
system. * * * The Court is also moved by the prudential argument
advanced by the Secretary. If the Service is forced to designate a
critical habitat for the silvery minnow in the wake of the budgetary
constraints, other species * * * may lose-out on the ESA's
protections.* * * Deferring to the Secretary's listing priority is also
consistent with the overarching purposes of the ESA--maximizing species
protection and reversing the trends of extinction.'' Slip op. at 4-5.
Such decisions recognize that the Service did not receive sufficient
funding in FY's 1996, 1997, or 1998 to allow it to comply with all the
mandated time frames under section 4 of the Act and that it was legally
prohibited by the listing moratorium from expending funds to accomplish
certain of those activities for over a year. Consequently, the Service
developed 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 it way out of the significant
listing backlog that was created by the moratorium and funding
rescission.
Issue 6: By placing candidate species conservation status
determinations over processing of petitions, the proposed Guidance
effectively eliminates the petition process. Unless a petitioned
species faces an emergency, it will not be addressed. The Listing
Priority Guidance directs the Service to complete listing
determinations for candidates species, for which the Act mandates no
deadlines, over making determinations for petitioned species, which
have explicit mandatory 90-day and 12-month deadlines.
Response: The Service disagrees that the Listing Priority Guidance
effectively eliminates the petition process. The development of
proposals for candidate species and the processing of petitions are
both included in Tier 2, reflecting the Service's expectation of making
significant headway in eliminating the substantial petition backlog
during FY 1998. Within Tier 2, the Service has given the highest
priority to the finalization of proposals and new proposals for
candidate species because the Service's most immediate concern is to
initiate and finalize protection for the most imperiled candidate
species. The Service also is still subject to the Fund for Animals
settlement agreement, which requires resolution of the status of 85
candidate species by December 31, 1998. Thirty-five were addressed in
FY 1997, 39 have been addressed so far in FY 1998 and the remaining 11
must be completed by the end of the calendar year. As the remaining
candidates are addressed, the Service Regions will accelerate the pace
of making petition findings.
The Service recognizes the need to address its backlog of petitions
in FY 1998. At the end of FY 1997, thirty 12-month petition findings
were due or overdue and forty-seven 90-day findings were due or
overdue, in addition to a finding due on a petition to add 3700 foreign
species to the lists. The actions requested in the various petitions
include listing, delisting, reclassification, and designation or
revision of critical habitat. The Service has received eight petitions
thus far in FY 1998. In FY 1998, each region will assess the overdue
petitions for which it has the lead responsibility. Overdue 12-month
findings generally will be processed before processing new, non-
emergency 90-day findings because the Service already has made an
initial determination that listing of those species may be warranted.
Completing the status reviews for these species and resolving whether
or not listing is warranted will be a high priority. For those actions
deemed warranted, the Service will assign the species a listing
priority number in accordance with the 1983 listing priority guidance
and either develop a listing proposal or designate the species a
candidate with a ``warranted but precluded'' finding, thus ensuring it
receives the appropriate priority for listing relative to other
species. Those species for which listing is not warranted will be
removed from further consideration. Among the petitions awaiting 90-day
findings, the Service will process listing petitions ahead of those
requesting delisting and reclassification. Petitions relating to
critical habitat will have the lowest priority.
Issue 7: The Service needs to clarify what a candidate species is,
what activities related to candidate species are given priority over
petition findings, and how petitions will be assessed. Candidate
conservation agreements must take a lower priority than statutory
listing actions.
Response: Species are added to the endangered and threatened
species lists through one of two mechanisms. The primary mechanism is
the Service's own candidate assessment process, which accounts for the
initiation of most listing proposals. The second mechanism is the
petition process, which supplements the Service's own ongoing
assessment process. In fact, it is not unusual for the Service to
receive a petition to list a species that is already a candidate for
listing or a petition requesting another action that the Service is
already actively considering. Section 4(h) of the Act required the
Service to establish and publish a ranking system to assist in the
identification of species that should receive priority review for
listing. Pursuant to this requirement, the September 1983 listing
priority guidelines established a system for prioritizing species for
listing based on magnitude and immediacy of threats. Once the Service
determines that a species qualifies for listing and has sufficient
information to support a proposal, the species is designated a
candidate and is assigned a listing priority number in accordance with
this ranking system.
The assessment of potential candidate species and monitoring of
species formally designated candidate species do not receive priority
over processing of petitions because the Service's candidate assessment
program is funded through the Service's Candidate Conservation
appropriation, not the Listing appropriation. Similarly, any early
conservation activities, including candidate conservation agreements,
conducted on behalf of candidate species are funded through the
Candidate Conservation appropriation. In fact, in many cases, an agency
other than the Service takes the lead in developing candidate
conservation agreements. Because candidate assessment and conservation
activities do not compete with listing funds they do not factor into
the Listing Priority Guidance priority system.
Issue 8: The Service should clarify its decision criteria for
emergency listings.
Response: The Service will consider the need for emergency listing
any candidate or potential candidate and any species included in a
petition. Consistent with the 1983 listing priority guidance, any
petition or other documentation that demonstrates such a need will
receive the highest priority (Tier 1). A petition must substantiate
that the immediacy of the threats to the species is so great to a
significant proportion of the total population that the normal
rulemaking process (publishing a proposed rule, considering comments,
then publishing a final rule) would be insufficient to prevent large
losses that may result in extinction.
[[Page 25508]]
Assessment of an emergency situation may consider the number of
individuals of the species that may be subject to the threats, the
location of the area threatened in proximity to the remaining
population, or other pertinent circumstances. While many petitions that
the Service receives request emergency listing, as a rule they fail to
meet the necessary criteria. Emergency situations are most likely to
exist when a species has a very limited distribution and a major
portion of its population or its habitat is under immediate threat of
loss. Petitions that do not demonstrate that an emergency exists will
be considered under Tier 2.
Issue 9: The proposed guidance does not use degree of threat as its
main driver, nor as a basis for missing 90-day petition finding
deadlines. Consequently, the guidance is likely to result in the
Service focusing substantial resources on species that are facing lower
degree of threat, as will occur when the Service elevates actions
involving a less biologically imperiled candidate species over an
action involving more biologically imperiled species that is the
subject of a petition. How will the 1983 listing priority guidance be
used in this priority system?
Response: The comment is primarily addressed at Tier 2, which
includes finalizing determinations on pending proposals, preparing new
proposals for candidate species (or removing species from candidacy),
processing petitions for listing, delisting and reclassification, and
processing a limited number of delisting and reclassification actions.
Although the Listing Priority Guidance describes an approach to
prioritizing types of listing actions, the underlying basis for the
Listing Priority Guidance is the 1983 listing priority guidelines. Now
that the Service has progressed to a more balanced listing program, it
can justify assigning all of the aforementioned activities to the same
tier. Inclusion within the same tier provides the Service greater
ability to apply the 1983 listing priority guidelines. The majority of
proposals awaiting final determinations include species with high level
threats; therefore, finalization of these rules is a high priority.
Preparing proposals for candidates with high level threats also is a
high priority. Processing of petitions to list species that appear to
face high level threats will have a lower but relatively comparable
priority. Among the petitions, each Service Region will screen all
overdue petitions for which it has the lead to identify any that may
face relatively high, imminent threats. Unless certain petitions
awaiting 90-day findings appear to warrant immediate action, such as in
the case of a species with limited distribution facing a high level of
threats, those petitions awaiting 12-month findings generally will have
priority over those awaiting 90-day findings, since the Service has
already made an initial determination that the petition contained
substantial information indicating listing may be warranted. If the 12-
month analysis results in a finding that listing is warranted, the
species will be assigned a listing priority number in accordance with
the 1983 guidelines and, depending on the priority, will be proposed
for listing or designated a ``warranted but precluded'' candidate.
Monitoring of these candidates will be accomplished using the Candidate
Conservation appropriation, not the Listing appropriation. Processing
90-day findings for species for which the initial review indicates a
lower urgency will have a lower priority. However, the Service wishes
to emphasize its intent to make significant progress in reducing the
total number of overdue 90-day and 12-month findings, provided it is
allowed to follow its Listing Priority Guidance. Delisting actions,
including processing of petitions for delisting and reclassifications
from endangered to threatened, have the lowest priority in Tier 2, as
explained in other sections of this notice.
Issue 10: The Listing Priority Guidance should not be allowed to
intrude on the listing process because Congress has provided the
``warranted but precluded'' designation to handle limited resources.
Response: The ``warranted but precluded'' designation in the Act
applies specifically to species subject to petitions for which the
Service has found that the requested action is warranted but an
immediate proposal is precluded by other higher priority listing
actions. However, the Service's listing process is not limited to
consideration of species under petition. The Service also actively
reviews other species, identified through its own initiative, that may
warrant the Act's protection. Once the Service determines that listing
a species is warranted, regardless of whether it is the subject of a
petition, it determines the species' priority for listing in accordance
with the 1983 listing priority guidance. Therefore, the Service
effectively considers all candidate species as species for which
listing is ``warranted but precluded.'' This approach expressly ensures
that the degree of threat the species faces drives the urgency of a
proposed listing, regardless of whether the species is subject to a
petition or is a candidate identified by the Service. This avoids a
situation where, simply by virtue of a species being the subject of a
petition, it takes priority over non-petitioned species in greater need
of timely protection.
Issue 11: The FY 1998-99 Listing Priority Guidance appears to
propose the same priority system for petitions embodied in the FY 1997
Listing Priority Guidance. Clarify how they differ.
Response: The order of priorities in the FY 1998-1999 Listing
Priority Guidance is very similar to that of the FY 1997 guidance in
that finalizing outstanding proposals and preparing new proposals for
candidate species will be considered ahead of processing petitions.
However, the FY 1998-99 Guidance differs from the FY 1997 Guidance in
that petition processing has been elevated to Tier 2 along with
finalization of proposals, processing new listing proposals, and, as
the lowest priority in Tier 2, a limited number of reclassification and
delisting actions. Placing petition processing within the same tier as
these other activities in effect elevates their consideration within
the whole prioritization scheme and provides the Service Regions
greater latitude to process petitions simultaneous with other actions
in Tier 2. Under this Guidance, the Service will focus on screening
petitions to identify those that appear most likely to include a
potentially high priority candidate and process those along with
proposing candidates. Therefore, the Listing Priority Guidance for FY
1998-99 differs from the FY 1997 Guidance in that the Service expects
to place a much greater emphasis on addressing overdue petitions in FY
1998.
Final Listing Priority Guidance for Fiscal Years 1998 and 1999
To address the biological, budgetary, and administrative issues
noted above, the Service issues the following listing priority guidance
for FYs 1998 and 1999. 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 were silent on the 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 (both foreign and domestic) will fall far short of
the resources needed to completely eliminate the listing backlogs in FY
[[Page 25509]]
1998. 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 priorities among species
within types of listing activities. 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 its
listing budget of $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
proposals and final determinations, petition processing activities, and
a minimal number 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 generally provide
little or no 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, such as the reduction of section 7 consultation
workload. 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, final
determinations on 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 species facing high-magnitude threats that can be quickly
finalized 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 of
protection will 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
[[Page 25510]]
activities. The Service will also screen all petitions to identify
species that may have an imminent, high magnitude threat and process
those concurrently with proposing new species. The Service will give
priority to completing 12-month findings for species for which it has
made a positive 90-day finding over processing petitions for species
awaiting 90-day findings. If a positive 90-day petition finding is
issued, 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, the Service will
still require 9 months to complete a thorough biological status review
and issue a 12-month finding after the 90-day finding is completed.
For foreign species only, within the limited allocation assigned to
that function, those final determinations that have potential for
conservation benefit, and assist developing countries with the
conservation and management of their species, will be of the highest
priority within Tier 2. Currently proposed listings and status
determinations on petitioned foreign species have the next highest
priority within Tier 2. Since the Service cannot develop recovery plans
for foreign species, priorities for listing or delisting must by
necessity take into account the conservation programs of other
countries in determining which actions are of higher priority. In
virtually all cases, the only nexus for the U.S. is whether or not to
allow importation of species, either for commercial or non-commercial
purposes.
Finally, the Service expects to complete a small number of
delistings and reclassifications during FY 1998. The Service believes
that significant, albeit indirect, conservation benefit will result
from the processing of certain high-priority delisting or
reclassification actions. As long as a species remains on the
endangered and threatened lists, Service funds are expended for ongoing
conservation activities, including reviewing and permitting activities
associated with habitat conservation plans and other regulated
activities pursuant to section 10 of the Act. Similarly, the Service
must expend funds engaging in consultations with other Federal agencies
under section 7 of the Act. Resources currently devoted to these
activities could be redirected to other listed species more deserving
of conservation efforts. Further, the ultimate goal of the Act is
recovering species and removing them from the lists. Once it is
determined that the Act's protections are no longer appropriate, it is
important that delisting or reclassification proceed, particularly
where listing creates an unwarranted management burden. 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. In addition to allowing the Service to direct resources to
activities with greater conservation benefit, delisting a species or
reclassifying a species from endangered to threatened and issuing a
special rule also can provide regulatory relief to other Federal
agencies as well as State and private entities, which are subject to
commerce and taking prohibitions under section 9 of the Act and permit
requirements under section 10. Monitoring of species that are on the
lists is accomplished through the recovery program, but the small
expenditure of funds necessary to process the change in a species'
status will continue to be undertaken by the listing program in FY
1998. However, the President's FY 1999 budget request proposes funding
delistings and reclassifications from endangered to threatened status
under the recovery subactivity rather than the listing subactivity.
Therefore, if enacted, these activities will no longer complete for
funding with other listing activities and will be removed from this
Guidance. Until then, delisting and reclassification will be afforded
the lowest priority in Tier 2.
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
It is essential during periods of limited listing funds to maximize
the conservation benefit of listing appropriations. Designation of
critical habitat is very costly. For instance, the cost of designating
critical habitat is illustrated by two recent examples: The Service
spent over $126,000 on designation of critical habitat for the marbled
murrelet and approximately $1 million for the northern spotted owl.
While in some cases the cost may be much less than it was for these two
birds, the Service has found that in those cases where designation of
critical habitat may provide some marginal benefit, such as for some
broad ranging, highly habitat-specific species, the Service expects
that the cost of designation would fall in the high cost range.
However, the Service has determined that in most cases little or no
additional protection is gained by designating critical habitat for
species already on the lists and the Service's limited resources are
best utilized for adding to the lists species that presently have very
limited or no protection under the Act, rather than designating
critical habitat for species already receiving its full protection.
Because the protection that flows from critical habitat designation
applies only to Federal actions, the Service continues to believe that
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. Critical habitat will remain in Tier 3
during FY 1998; this will be re-evaluated when FY 1999 appropriations
are received.
A recent court ruling remanded to the Service ``not prudent''
critical habitat determinations for 245 Hawaiian plant species listed
between 1991 and 1996. To comply with the Court's remand in this case,
the Service is proposing to the Court to complete reconsideration of
the 245 ``not prudent'' findings (Tier 2) during FY's 1998, 1999, and
2000. This option would completely suspend all other listing activities
in the Hawaiian Field Office until November 2000. A second option
proposed by the Service would require dedication of fewer staff to the
remands and allow for other listing activities in the Field Office, but
would extend reconsideration of the prudency findings to FY 2002.
However, for those species for which the Service finds that designation
is prudent, proposed designation would proceed only after prudency
determinations for all 245 species have been completed, and would be
subject to any listing priority guidance that might be in effect at
that time. Regardless of the approach selected (option 1 or 2),
reconsideration of the prudency findings will significantly delay the
Service's Hawaii Field Office in preparing proposed or final
rulemakings to add approximately 97 currently unprotected Hawaiian
[[Page 25511]]
species to the endangered and threatened lists.
Allocating Listing Resources Among Regions
The Service allocates its listing appropriation among its seven
Regional Offices, and the Washington Office for foreign species, 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 ecosystem or 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 take more 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 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 benefits 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. As a
result, the Service's Region 2 is suffering from an inability to
prioritize its responsibilities and complete several high priority
species listings last year.
Good Cause for Immediate Effectiveness
The Service finds that good cause exists to make this policy
effective immediately. Immediate implementation of this policy serves
to advance the public interest in maximizing the conservation benefits
that can be achieved from funds appropriated for listing activities
under the Act. As indicated herein, there are not sufficient funds to
do all listing activities contemplated by section 4 of the ESA. The
final Listing Priority Guidance for FY 1998-99 will allocate existing
funds to most effectively achieve the purposes of the Act.
In addition, immediate implementation of this policy will not
impose a burden on the public. This is internal Service guidance that
does not in and of itself invoke or relieve restrictions on the private
or public sector. Although this policy addresses the timing of
particular regulatory actions (i.e., listing of species), those
particular actions will be subject to public notice and comment and, in
the absence of good cause, delayed effective date pursuant to the
Administrative Procedures Act. Therefore, in accordance with 5 U.S.C.
533(d), the Service makes this policy effective upon publication in the
Federal Register.
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 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. The Service also believes 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.
[[Page 25512]]
Authority
The authority for this notice is the Endangered Species Act of
1973, as amended, 16 U.S.C. 1531 et seq.
Dated: May 1, 1998.
Jamie Rappaport Clark,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 98-12284 Filed 5-7-98; 8:45 am]
BILLING CODE 4310-55-P
