[Federal Register Volume 61, Number 181 (Tuesday, September 17, 1996)]
[Notices]
[Pages 48962-48965]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23719]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
Endangered and Threatened Wildlife and Plants; Extension of
Listing Priority Guidance for Fiscal Year 1997
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice.
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SUMMARY: The U.S. Fish and Wildlife Service (Service) announces that it
is extending its listing priority guidance until an appropriations law
is approved for the Department of the Interior for fiscal year 1997 (FY
97). The Service also proposes to amend and continue implementation of
guidance for assigning relative priorities to listing actions conducted
under section 4 of the Endangered Species Act (Act) during FY 97 and
seeks public comment on this proposed guidance. The extension is
necessary because the Service expects appropriated funds to fall short
of those needed to eliminate the existing backlog of proposed listings
and complete all listing actions required by the Act in FY 97. Under
the proposed guidance, the Service would assign all listing actions to
one of four tiers, as distinguished from the three tiers in the current
guidance (61 FR 24722).
DATES: The extension of the existing listing priority guidance is
effective October 1, 1996 and will remain in effect until the Service
can determine the effects of any FY 97 appropriations law and then
issue final guidance. Comments on the proposed FY 97 guidance will be
accepted until October 17, 1996.
ADDRESSES: Comments on the proposed 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).
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 fiscal year 1995. Public Law 104-6 also
contained a prohibition on the expenditure of the remaining
appropriated funds for final determinations to list species or
designate critical habitat which, in effect, placed a moratorium on
those activities.
From October 1, 1995 through April 26, 1996, funding for the
Service's endangered species programs, including listing of endangered
and threatened species, was provided through a series of continuing
resolutions, each of which maintained in force the moratorium against
issuing final listings or critical habitat designations. The continuing
resolutions also severely reduced or eliminated the funding available
for the Service's listing program. Consequently, the Service reassigned
listing program personnel to other duties. The net effect of the
moratorium and reductions in funding was that the Service's listing
program was essentially shut down.
The moratorium on final listings and the budget constraints
remained in effect until April 26, 1996, when President Clinton
approved the Omnibus Budget Reconciliation Act of 1996 and exercised
the authority that Act gave him to waive the moratorium. At that time,
the Service had accrued a backlog of proposed listings for 243 species.
Moreover, although the moratorium imposed by Pub. L. 104-6 did not
specifically extend to petition processing or the development of new
proposed listings, the extremely limited funding available to the
Service for listing activities generally precluded these actions from
October 1, 1995 through April 26, 1996. The Service continued to
receive new petitions and accrued a backlog of petitions that request
the listing or delisting of 57 species under section 4(b)(3) of the
Act. The Service has historically attempted to strike a balance among
the various listing activities required by the Act, but as
appropriations have not kept pace with the Service's workload, an
increased backlog of listing actions has developed.
In anticipation of receiving a listing appropriation for the
remainder of FY 96, the Service issued and requested comment on interim
listing priority guidance on March 11, 1996 (61 FR 9651). On May 16,
1996, the Service addressed all public comments received on the interim
guidance and published final listing priority guidance for fiscal year
1996 activities (61 FR 24722). It is this guidance that is now extended
until the Service can prepare final guidance based on the terms of a FY
97 appropriations law.
When the moratorium was lifted and funds were appropriated for the
administration of a listing program, the Service faced the considerable
task of allocating the available resources to the significant backlog
of listing activities. Over the past four months, the Service has
focussed its resources on processing existing proposals and has issued
final rules listing five species.1 The relatively low number of
final rules issued during this period resulted primarily from the time
needed to restart the listing program from a total shutdown and the
need to consider factual developments related to proposed listing
packages (e.g., changes in known distribution, status, or threats) that
took place during the year-long moratorium.
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\1\ Final rules listing the red-legged frog, wahane (Hawaiian
plant), and 3 plants from the Island of Nihoa, Hawaii.
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Although progress has been made with regard to proposed rules, the
Service also needs to make expeditious progress on determining the
conservation status of the 183 2 species designated by the Service
as candidates for listing in the most recent Candidate Notice of Review
(61 FR 7596; February 28, 1996; see 16 U.S.C.
Sec. 1533(b)(3)(B)(iii)(II)). The Service is also subject to extensive
litigation that could require it to process a variety of actions under
section 4 of the Act.
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\2\ Effective August 26, 1996, the U.S. population of the short-
tailed albatross (Diomedea albetrus) was designated a candidate
species.
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Furthermore, it now appears that Congress will probably appropriate
only about two-thirds of the amount the President's FY 97 budget
requested for the listing program. The President's budget for FY 97
requested $7.483 million for the listing program, but appropriations
bills passed by the
[[Page 48963]]
House of Representatives and reported out by the Senate Appropriations
Committee each propose to appropriate only $5 million for the program.
The Senate bill also proposes to ``earmark'' $500,000 to be devoted
specifically to withdrawal notices, delistings, or reclassifications of
endangered species to threatened species.
The above discussed backlogs and the pending funding shortfall
underscore the need for program-wide priorities to guide the allocation
of limited resources. Moreover, existing and threatened litigation may
overwhelm the limited resources the Service anticipates receiving in FY
97 unless priorities are set in advance.
For example, the plaintiffs in Fund for Animals v. Babbitt, Civ.
No. 92-800 (SS) (D.D.C.), recently filed a motion to enforce the
December 15, 1992 Settlement Agreement in that case. They request the
District Court to order the Service to publish listing proposals for 41
of the candidate species covered by the Agreement (referred to
hereafter as ``settlement species'') by December 30, 1996, and to
publish listing proposals for the remaining 44 settlement species by
March 30, 1997.
Resolution of the conservation status of these 85 settlement
species would require, for each species, publication of either a
proposed listing rule or a notice stating reasons why listing is not
warranted. The Agreement does not require final decisions on listings.
Therefore, full compliance with the Agreement will not bring the full
protection of the Act to any species, but rather would only somewhat
advance the process toward listing.
Up to the time the funding for the listing program became severely
constrained, the Service was on track to achieve full compliance with
this Agreement. The Service had published, during the period covered by
the Agreement, proposed listing rules for 359 candidate species.
Despite this progress, the Service is now left with the following
dilemma. If it were to continue to spend scarce appropriated funds to
move candidate species forward to the proposed listing stage in order
to comply with the Settlement Agreement, it would deplete the entire
$4.5 million listing appropriation that is anticipated for FY 97.
Processing of proposed listing rules requires the investment of
considerable time and resources. It involves substantial research,
status review, coordination with State and local governments and other
interested parties, and conducting public hearings and peer review.
Furthermore, since most of the 98 candidate species that are not
subject to the terms of the Agreement have high listing priority number
assignments (64 non-settlement, candidate species have priority numbers
of 1, 2 or 3), the Service would, in order to be consistent with the
1983 listing priority guidance, have to process all 183 candidate
species (85 settlement, 98 non-settlement) if ordered to comply fully
with the terms of the Settlement Agreement during FY 97.
The Service's entire anticipated FY 97 listing budget is
insufficient to comply with the Fund for Animals Settlement Agreement.
If it attempted to comply, it would devote no resources to making final
listing decisions on the 237 species, the vast majority of which face
high-magnitude threats, that have already been proposed for listing.
Though so close to receiving the full protection of the Act, these
species would move no closer to that goal while all the Service's
efforts would be bent toward deciding whether to move candidate species
closer to proposed listing, where they receive some limited procedural
protection (the Section 7 conference requirement, see 16 U.S.C.
Sec. 1536(a)(4)), but not the full substantive and procedural
protection afforded by final listing.
This course of action would also result in a still larger backlog
of up to 420 proposed species. Meanwhile, the administrative records on
many of the 237 species pending final decision could require, due to
the additional one-year delay in the decision-making process, further
public notice and comment proceedings in fiscal year 1998 because the
scientific data they contain may no longer be current.
In short, enforcement of the Fund for Animals Settlement Agreement
in FY 97 would delay for at least one year the issuance of final
listing rules and, in fiscal year 1998, would make the process of
issuing final listing rules for the aging backlog of proposed species
more time and labor intensive. Such action would entirely frustrate the
objective of waiving the final listing moratorium in April of 1996.
Therefore, in accordance with the Interior Department's recommendation,
the Department of Justice has filed a motion with the District Court
that seeks appropriate relief from the terms of the Agreement,
consistent with the listing priorities articulated in this Notice.
In order to focus conservation benefits on those species in
greatest need of the Act's protections, the Service believes that
processing the outstanding proposed listings should receive higher
priority than other actions authorized by section 4 such as new
proposed listings, petition findings, and critical habitat
determinations.
Section 4(b)(1) of the Act requires the Service to use the ``best
available scientific and commercial information'' to determine those
species in need of the Act's protections. It has been long-standing
Service policy that the order in which species should be processed for
listing is based primarily on the immediacy and magnitude of the
threats they face. Given the large backlogs of proposed species,
candidate species awaiting proposal, and petitions, it is extremely
important for the Service to focus its efforts on actions that will
provide the greatest conservation benefits to imperiled species in the
most expeditious manner.
The Service will continue to base decisions regarding the order in
which species will be proposed or listed on the 1983 listing priority
guidelines. These decisions will be implemented by the Regional Office
designated with lead responsibility for the particular species.
The Service allocates its listing appropriation among its seven
Regional Offices based primarily on the number of proposed and
candidate species for which the Region has lead responsibility. The
objective is to ensure that those areas of the country with the largest
percentage of known imperiled biota will receive a correspondingly high
level of listing resources. The Service's experience in administering
the Act for the past two decades has shown that it needs to maintain at
least a minimal listing program in each Region, in order to respond to
emergencies and to retain a level of expertise that permits the overall
program to function effectively over the longer term. In the past, when
faced with seriously uneven workloads, the Service has experimented
with reassigning workload from a heavily burdened Region to less-
burdened Regions. This approach has proven to be very inefficient
because the expertise developed by a biologist who works on a listing
package will be useful for recovery planning and other activities and
that expertise should be concentrated in the area which the species
inhabits. 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 does not believe it is wise to
reassign workload from one Region to another.
By maintaining a listing program in each Region, and with resource
allocation based on workload, Regions with few outstanding proposed
listings
[[Page 48964]]
will be able to process Tier 3 actions (such as new proposed listings
or petition findings), while Regions with many outstanding proposed
listings will use most or all of their allocated funds on Tier 2
actions. For example, following the lifting of the moratorium in April
1996, the Service allocated $2,336,000 to Region 1 (Pacific/Western
Region), which continues to face a substantial backlog of Tier 2
actions, while Region 3 (Great Lakes/Midwest Region) received only
$27,000. The Service cannot make Regional allocation of funds for FY 97
until it receives a final appropriation; however, it expects that a
similar funding disparity will result based on workload. Workload
variations will also mean that Region 3, which only has two proposed
species, could begin work on some Tier 3 actions under the revised
guidance proposed in this notice while Region 1, which has 196 proposed
species, will be primarily only processing final decisions on proposed
listings in FY 97. The Service anticipates that Nationwide, only a
small amount of funding will be used on activities below Tier 2,
because Regions that do not face a sizeable backlog of Tier 2 actions
will not receive significant amounts of funding.
In light of the continued budgetary uncertainty facing the Service
at this time, through this notice the Service is extending the listing
priority guidance currently in effect until the Service can prepare
final guidance based on the terms of a FY 97 appropriations law. To
address the biological, budgetary, and administrative issues noted
above in the longer term, the Service proposes to adopt the following
revised listing priority guidance. As with the guidance issued May 16,
1996, this guidance would supplement, but not replace, the 1983 listing
priority guidelines, which are silent on the matter of prioritizing
among different types of listing activities.
Proposed Listing Priority Guidance for Fiscal Year 1997
As noted above, the bill reported out of the Senate Appropriations
Committee for FY 97 would ``earmark'' $500,000 of the listing budget to
be devoted specifically to withdrawal notices, delistings, or
reclassifications of endangered species to threatened species. If such
an ``earmark'' emerges from the congressional process, those actions
would be processed as the ``earmarked'' amount of funding permits and
would not be subject to this proposed guidance.
Since it is unclear at this date whether any amount will be
``earmarked'' in the FY 97 appropriations law for any delistings or
reclassifications of endangered species to threatened species, the
Service has not proposed to include them within this priority system.
If the FY 97 appropriations law does not contain an earmark for those
activities, the Service's final guidance would prioritize such
activities as appropriate. The Service invites public comment on how it
ought to prioritize such activities if no earmark emerges from the
appropriations process.
If $4,500,000 would remain in the listing budget for all other
listing activities, it will fall far short of the resources needed to
eliminate the backlog of proposed species and complete all listing
actions required by the Act in FY 97, and some form of prioritization
will still be necessary. Therefore, the Service proposes to implement
the following guidance in FY 97, on the assumption that the listing
program budget will be appropriated no more than $5,000,000.
The following sections describe a multi-tiered approach that
assigns relative priorities, on a descending basis, to listing actions
to be carried out under section 4 of the Act. The 1983 listing priority
guidelines would be used as applicable to set priority among actions
within tiers. The Service emphasizes that this guidance would be
effective until September 30, 1997 (unless extended or canceled by
future notice) and the agency fully anticipates returning to
concurrently processing petition findings, proposed and final listings,
and critical habitat determinations after the backlog of proposed
listings has been further reduced.
Completion of emergency listings for species facing a significant
risk to their well-being would remain the Service's highest priority
(Tier 1) under the revised system. Processing final decisions on
pending proposed listings would, as now, be assigned to Tier 2. Third
priority would be to resolve the conservation status of species
identified as candidates and processing 90-day or 12-month
administrative findings on petitions to list, delist, reclassify, or
revise critical habitat. Preparation of proposed or final critical
habitat designations would be assigned lowest priority (Tier 4).
Tier 1--Emergency Listing Actions
The Service would immediately process emergency listings for any
species of fish, wildlife, or plant that faces a significant risk to
its well-being under the emergency listing provisions of section
4(b)(7) of the Act. This would include preparing a proposed rule to
list the species. The Service would conduct a preliminary review of
every petition that it receives to list a species or change a
threatened species to endangered status in order to determine whether
an emergency situation exists. If the initial screening indicates an
emergency situation, the action would be elevated to Tier 1. If the
initial screening does not indicate that emergency listing is
necessary, processing of the petition would be assigned to Tier 3
below.
Tier 2--Processing Final Decisions on Proposed Listings
In issuing the proposed listings that remain outstanding, the
Service found that the vast majority of the proposed species faced
high-magnitude threats. The Service believes that focusing efforts on
making final decisions relative to these proposed species would best
comport with the overall purpose of the Act by providing maximum
conservation benefits to those species that are in greatest need of the
Act's protections. As proposed listings are reviewed and processed,
they will be completed through publication of either a final listing or
a notice withdrawing the proposed listing. While completion of a
withdrawal notice may appear inconsistent with the thrust of the
guidance, once a determination not to make a final listing has been
made, publishing the notice withdrawing the proposed listing takes
minimal time and appropriations, and it is important and more cost
effective and efficient to bring closure to the proposed listing, as
compared to postponing action and taking it up at some later time.
Setting Priorities Within Tier 2
Most of the outstanding proposed listings deal with species that
face high-magnitude threats, such that additional guidance is needed to
clarify the relative priorities within Tier 2. Proposed rules dealing
with taxa believed to face imminent, high-magnitude threats (listing
priority assignments of 1 through 3) would have the highest priority
within Tier 2.
Proposed listings that cover multiple species facing high-magnitude
threats would have priority over single-species proposed rules unless
the Service has reason to believe that the single-species proposal
should be processed to avoid possible extinction.
Due to unresolved questions or to the length of time since
proposal, the Service may determine that additional public comment or
hearings are necessary before issuing a final decision for Tier 2
actions. Proposed listings for species facing high-magnitude threats
that can be quickly completed (based on
[[Page 48965]]
factors such as few public comments to address or final decisions that
are nearly complete) would 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 would be processed first.
Tier 3--Resolving the Conservation Status of Candidate Species and
Processing Administrative Findings on Petitions
As of this date, the Service has determined that 183 species
warrant issuance of proposed listings. The Act directs the Service to
make ``expeditious progress'' in adding new species to the lists.
Issuance of new proposed listings is the first formal step in the
regulatory process for listing a species. It provides some procedural
protection in that all Federal agencies must ``confer'' with the
Service on any actions that are likely to jeopardize the continued
existence of proposed species.
Administrative findings for listing petitions that are not assigned
to Tier 1 after initial screening would also be processed as a Tier 3
priority. As the Regional offices complete their pending Tier 1 and 2
actions, they will be expected to begin processing Tier 3 actions.
Within the discretionary funds available, each Region should begin
processing Tier 3 actions once all Tier 2 determinations are underway
and near completion and then Tier 4 actions once Tier 3 actions are
underway. Setting priorities within Tier 3 is discussed below.
Setting Priorities Within Tier 3
The 1983 listing priority guidelines and the basic principle that
species in greatest need of protection should be processed first would
be the primary bases for establishing priorities within Tier 3. Highest
priority within Tier 3 would be processing of new proposed listings for
species facing imminent, high-magnitude threats. If the initial
screening of a petition suggests that the species probably faces
imminent, high magnitude threats, processing that action will be
accorded high priority.
Tier 4-- Processing Critical Habitat Determinations
Designation of critical habitat consumes large amounts of the
Service's listing appropriation and generally provides only limited
conservation benefits beyond those achieved when a species is listed as
endangered or threatened. Because the protection that flows from
critical habitat designation applies only to Federal actions,
situations where designating critical habitat provides additional
protection beyond the consultation provisions of section 7, which also
apply to Federal actions, are rare. It is essential during this period
of limited listing funds to maximize the conservation benefit of
listing appropriations. The Service believes that the small amount of
additional protection that is gained by designating critical habitat
for species already on the lists is greatly outweighed by the benefits
of applying those same dollars to putting more species on the lists,
where they would gain the protections included in sections 7 and 9. The
Service has decided, in other words, to place higher priority on
addressing species that presently have no or very limited protection
under the Act, rather than devoting limited resources to the expensive
process of designating critical habitat for species already protected
by the Act.
Addressing Matters in Litigation
Using the proposed guidance and the 1983 listing priority
guidelines, the Service will assess the status and the relative
priority of all section 4 petition and rulemaking activities that are
the subject of active litigation. The Service, through the Department
of the Interior's Office of the Solicitor, will then notify the Justice
Department of its priority determinations and request that appropriate
relief be sought from each district court to allow those species with
the highest biological priority to be addressed first. As noted in the
guidance issued May 16, 1996, when the Service undertakes one listing
activity, it inevitably foregoes another, and in some cases courts have
ordered the Service to complete activities that are simply not, in the
Service's expert judgment, among the highest biological priorities.
However, to the extent that these efforts to uphold the Service's
listing priority guidance and the 1983 listing priority guidelines do
not receive deference in the courts, the Service will need to comply
with court orders despite any conservation disruption that may result.
The fact that the Service acknowledges its duty to comply with court
orders should not, however, be interpreted to mean that any court order
is consistent with this guidance without regard to how disruptive it
may be to the Service's effort to make the most biologically sound use
of its resources.
The Service will not elevate the priority of proposed listings for
species under active litigation. To do so would let litigants, rather
than expert biological judgments, set listing priorities. The Regional
Office with responsibility for processing such packages will be
responsible for determining the relative priority of such cases based
upon this proposed guidance and the 1983 listing priority guidelines,
and for furnishing supporting documentation that can be submitted to
the relevant court to indicate where such species rank in the overall
priority scheme.
Public Comments Solicited
The Service intends that any action resulting from this proposed
guidance be as accurate and as effective as possible. Therefore, any
comments or suggestions from the public, other 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 (especially the final FY 97 appropriations law) and will
announce further guidance after the close of the public comment period
and as promptly as possible after a FY 97 appropriations bill for the
Department of the Interior is approved and becomes law.
Authority
The authority for this notice is the Endangered Species Act of
1973, as amended, 16 U.S.C. 1531 et seq.
Dated: September 9, 1996.
John G. Rogers,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 96-23719 Filed 9-16-96; 8:45 am]
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