[Federal Register: May 20, 1999 (Volume 64, Number 97)]
[Notices]
[Page 27596-27600]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20my99-114]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
Endangered and Threatened Wildlife and Plants; Proposed Listing
Priority Guidance for Fiscal Years 1999 and 2000
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice.
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SUMMARY: We (the U.S. Fish and Wildlife Service) announce proposed
guidance for assigning relative priorities to listing actions conducted
under section 4 of the Endangered Species Act of 1973 as amended (Act)
during fiscal years (FY) 1999 and 2000. We have returned to a more
balanced listing program and have reduced the serious backlogs that
remained from the 1995-96 moratorium and funding rescission. A method
for prioritizing among the various listing activities is necessary to
ensure that an organized system for conserving species is in place. It
is extremely important for us to focus our efforts on listing actions
that will provide the greatest conservation benefits to imperiled
species in the most expeditious and biologically sound manner. We will
no longer recognize tiers and nationwide, we will undertake all listing
activities in all priority levels simultaneously; however, we will
observe relative priorities among various listing actions as described
in this guidance. The highest priority will be processing emergency
listing rules for any species determined to face a significant and
imminent risk to its well being. Second priority is the processing of
final determinations on proposed additions to the lists of endangered
and threatened wildlife and plants. Third priority is processing new
proposals to add species to the lists. The processing of administrative
petition findings (petitions filed under section 4 of the Act) is the
fourth priority. The processing of critical habitat determinations
(prudency and determinability decisions) and proposed or final
designations of critical habitat will be funded separately from other
section 4 listing actions and will no longer be subject to
prioritization under Listing Priority Guidance. Critical habitat
determinations, which were previously included in final listing rules
published in the Federal Register, may now be processed separately, in
which case stand alone critical habitat determinations will be
published as notices in the Federal Register. We will undertake
critical habitat determinations and designations during FY 1999 and FY
2000 as allowed by our funding allocation for that year. Delisting
activities are no longer part of the listing program and will be
undertaken by the recovery program in FY 1999 and beyond.
DATES: We will accept comments on this guidance until June 21, 1999.
The final FY 1998 and FY 1999 Listing Priority Guidance published on
May 6, 1998 (63 FR 25502), will remain in effect until the Final FY
1999 and FY 2000 Listing Priority Guidance is published.
ADDRESSES: Send comments regarding this guidance to the Chief, Division
of Endangered Species, U.S. Fish and Wildlife Service, 1849 C Street,
N.W., Mailstop ARLSQ-420, Washington, D.C. 20240.
FOR FURTHER INFORMATION CONTACT: Chief, Division of Endangered Species,
U.S. Fish and Wildlife Service, 703-358-2171 (see ADDRESSES section).
SUPPLEMENTARY INFORMATION:
Background
We adopted guidelines on September 21, 1983 (48 FR 43098-43105),
that govern the assignment of priorities to species under consideration
for listing as endangered or threatened under section 4 of the Act. We
adopted those guidelines to establish a rational system for allocating
available appropriations to the highest priority species when adding
species to the lists of endangered or threatened wildlife and plants or
reclassifying threatened species to endangered status. The system
places greatest importance on the immediacy
[[Page 27597]]
and magnitude of threats, but also factors in the level of taxonomic
distinctiveness by assigning priority in descending order to monotypic
genera, full species, and subspecies (or, equivalently, distinct
population segments of vertebrates). However, this system does not
provide for prioritization among different types of listing actions
such as preliminary determinations, proposed listings, and final
listings.
Serious backlogs of listing actions resulted from the 1995-96
listing moratorium and funding rescission. The enactment of Public Law
104-6 in April 1995 rescinded $1.5 million from our budget for carrying
out listing activities through the remainder of FY 1995. Public Law
104-6 prohibited the expenditure of the remaining appropriated funds
for final determinations to list species or designate critical habitat
which, in effect, placed a moratorium on those activities. The net
effect of the moratorium and reductions in funding was that our listing
program was essentially shut down. The moratorium on final listings and
the budget constraints remained in effect until April 26, 1996, when
President Clinton approved the Omnibus Budget Reconciliation Act of
1996 and waived the moratorium. At that time, we had accrued a backlog
of proposed listings for 243 species. The extremely limited funding
available to us for listing activities generally precluded petition
processing and the development of proposed listings from October 1,
1995, through April 26, 1996.
When the moratorium was lifted and funds were appropriated for the
administration of the listing program, we faced the considerable task
of allocating the available resources to the significant backlog of
listing activities. The Final Listing Priority Guidance for FY 1996 was
published on May 16, 1996 (61 FR 24722). We followed that three-tiered
approach until the Final Listing Priority Guidance for FY 1997 was
published on December 5, 1996 (61 FR 64475). The FY 1997 Listing
Priority Guidance employed four tiers for assigning relative priorities
to listing actions to be carried out under section 4 of the Act. Tier
1, the highest priority, was the processing of emergency listings for
species facing a significant risk to their well-being. Processing final
decisions on pending proposed listings was assigned to Tier 2. Tier 3
was to resolve the conservation status of species identified as
candidates and processing 90-day or 12-month administrative findings on
petitions to list or reclassify species from threatened to endangered
status. Preparation of proposed or final critical habitat designations
and processing reclassifications were assigned lowest priority (Tier
4). We published Listing Priority Guidance for FY 1998 and 1999 on May
6, 1998 (63 FR 25502), and employed a three-tiered system. Emergency
actions comprised Tier 1, all other listing actions except critical
habitat designation were included in Tier 2, and critical habitat
designation was the lowest priority, or Tier 3.
While operating the listing program under the Final FY 1998 and FY
1999 Listing Priority Guidance, we focused our resources on completing
Tier 2 activities. Two emergency listing actions (for the San
Bernardino kangaroo rat (63 FR 3835) and Jarbidge population of bull
trout (63 FR 42757)) were necessary in FY 1998. During FY 1998, we made
final determinations for 57 species (47 final listings and 10
withdrawals). As a result of this expeditious progress, only 84
proposed species remained at the end of FY 1998 (including 42 newly
proposed species). We published petition findings for 18 species (11
90-day findings and 7 12-month findings). We proposed one species, the
peregrine falcon in North America, for delisting during FY 1998. Since
the end of FY 1998, and as of April 30, 1999, 34 final determinations,
17 proposed rules, 12 petition findings, 3 proposed delistings, and 2
proposed critical habitat designations have been completed. The
proposed critical habitat designations, Tier 3 activities, were
undertaken to comply with a court order. However, the Service did make
critical habitat determinations (prudency and/or determinability
decisions) for each final listing during this period and FY 1998. Only
two proposed species that were included in the premoratorium backlog
remain to be finalized.
Despite the return to a balanced listing program, backlogs remain.
As of April 30, 1999, there are 69 proposed species awaiting final
determinations, and 154 candidates awaiting resolution of their
conservation status. Forty-seven species have due/overdue 90-day
petition findings and 13 species have due/overdue 12-month petition
findings. Various district courts and appellate courts have remanded
not prudent critical habitat determinations to us for reconsideration.
As stated in the FY 1998 and FY 1999 Listing Priority Guidance, it
is important to recognize that we face even greater backlogs in our
responsibilities to implement other aspects of the Act. The section 7
consultation and habitat conservation planning (HCP) backlogs continue
to grow. The backlog of species awaiting Recovery Plans and the
shortage of recovery implementation funding make the recovery backlog
most severe. We base our funding requests on the workloads faced by all
activities of the endangered species program. The President's budget
request for FY 1999 included a significant increase in funding for
listing activities. Nevertheless, the magnitude of the other endangered
species backlogs exceeds the listing backlog; therefore, the
President's FY 1999 request for funding endangered species programs
requested even larger increases in funding for consultation and
recovery.
In enacting the Department of the Interior's FY 1999 Omnibus and
Emergency Supplemental Appropriations Act (Pub. L. 105-277), Congress
rejected our requests for significant resources in all three programs
and provided only modest increases to the consultation, recovery, and
listing programs' funding. The Department of the Interior's
appropriation again includes an express limit on the amount we can
spend on listing actions (including the designation of critical
habitat); this year the limit is $5.756 million.
Even with the gradual reduction of the backlogs of proposed species
pending final action, candidate species awaiting proposal, and
petitions awaiting administrative findings, it is extremely important
for us to focus our efforts on listing actions that will provide the
greatest conservation benefits to imperiled species in the most
expeditious and biologically sound manner. It has been longstanding
policy (1983 Listing and Recovery Priority Guidelines (48 FR 43098))
that the order in which species should be processed for listing is
based primarily on the immediacy and magnitude of the threats they
face. We will continue to base decisions regarding the order in which
species will be proposed or listed on the 1983 listing priority
guidelines. We also must continue to prioritize among types of listing
actions and this level of relative prioritization is the guidance
provided below.
We have made this guidance applicable to FY 2000 as well to avoid
any confusion over whether this guidance will remain in effect if the
budget process for FY 2000 is delayed. However, when we receive our FY
2000 budget, we will review this guidance, and, if appropriate, modify
or terminate it.
[[Page 27598]]
Proposed Listing Priority Guidance for Fiscal Years 1999 and 2000
To address the biological, budgetary, and administrative issues
noted above, we submit the following proposed listing priority
guidance. As with the Final Listing Priority Guidance for FY 1998 and
FY 1999 issued May 6, 1998, this guidance supplements, but does not
replace, the 1983 listing priority guidelines, which was silent on the
matter of prioritizing among different types of listing activities.
As noted above, the Department of the Interior's FY 1999
appropriation provides no more than $5.756 million for our endangered
species listing program. The $5.756 million budget for all listing
activities will fall far short of the resources needed to completely
eliminate all the existing listing backlogs in FY 1999. Therefore, a
form of relative prioritization is necessary. We will implement the
following listing priority guidance in FY 1999 and FY 2000 to aid us in
our expeditious completion of the wide array of listing actions
necessary to maintain a balanced listing program.
The following sections describe how we will assign relative
priorities to listing actions to be carried out under section 4 of the
Act. The 1983 listing priority guidelines will continue to be used to
set priority among species within types of listing activities. We
emphasize that the Final Listing Priority Guidance for FY 1998 and FY
1999 will remain in effect until final FY 1999 and FY 2000 guidance is
issued, unless extended or canceled by future notice.
In order to continue to operate a balanced listing program, we will
concurrently undertake all types of listing actions in compliance with
the relative priorities described below during FY 1999. It has been
essential during periods of limited listing funds to maximize the
conservation benefit of listing appropriations. For the past several
years, we have determined that our limited resources were best utilized
to add new species to the lists rather than designating critical
habitat for species already receiving full protection under the Act.
Designation of critical habitat, when undertaken in the past, consumed
large amounts of our listing appropriation and, in most cases, added
little conservation benefit beyond that achieved when a species was
listed as endangered or threatened. For this reason, we have placed
higher priority on addressing imperiled species that had very limited
or no protection under the Act, than on devoting limited resources to
the expensive process of designating critical habitat for species
already protected by the Act.
The reduced listing backlogs and the funding increase of $566,000,
which we received in the listing subactivity in FY 1999, will allow us
to devote some resources to critical habitat actions without an undue
impact on the more important activities in the listing program.
Therefore, we will dedicate $979,000 (17 percent of the total listing
program funding) toward critical habitat determinations and
designations during FY 1999. Progress toward critical habitat
determinations and designations in FY 2000 will be governed by our
listing appropriations for that fiscal year.
Critical habitat determinations, which were previously included in
final listing rules published in the Federal Register, may now be
processed separately, in which case stand alone critical habitat
determinations will be published as notices in the Federal Register. We
cannot estimate the number of species for which critical habitat
designations will be prudent because each prudency determination is
considered on a strictly biological, species-by-species basis. Although
we consider the conservation benefits from critical habitat designation
to be minimal for most species, we have surveyed our Regional Offices
requesting them to identify species that would benefit from critical
habitat designations, and are in the process of prioritizing Regional
responses. We expect to undertake court ordered critical habitat
determinations and designations, and non-court ordered determinations
and designations for any species identified by Regional Offices as
species that would benefit from critical habitat.
We are exploring how to revise our critical habitat determination
and designation processes in order to streamline the process and
maximize the conservation benefit provided. We will publish a separate
notice in the Federal Register in the near future to solicit comments
on how to revise the process for completing critical habitat
determinations and designations. Public comment will be sought and
considered in developing final guidance and policy regarding critical
habitat determinations and designations.
Relative Listing Priorities
Nationwide in FY 1999 and FY 2000, we will undertake the full array
of listing actions consistent with the relative priority guidance
described below. However, some Regions and some Field Offices within
Regions have significant backlogs of proposed species, candidates, and
petitions. Therefore, additional guidance is needed to clarify the
relative priorities among the various listing activities.
Completion of emergency listings for species facing a significant
risk to their well-being remains our highest priority. Emergency
actions take precedent over all other section 4 listing actions. With
the exception of emergency actions, all other listing activities may be
undertaken simultaneously. Regions should assign relative priorities
for their remaining non-emergency listing actions based on the
following priority levels. Processing final decisions on pending
proposed listings are priority 2 actions. Priority 3 actions are the
resolution of the conservation status of species identified as
candidates (resulting in a new proposed rule or a candidate removal).
Priority 4 actions are the processing of 90-day or 12-month
administrative findings on petitions.
The processing of petitions requesting critical habitat
designations and the preparation of proposed and final critical habitat
determinations and/or designations will no longer be prioritized with
other section 4 listing actions. Critical habitat will be conducted
within a specified amount of funding which has been set aside out of
the listing subactivity.
Priority 1--Emergency Listing Actions
We will immediately process emergency listings for any species of
fish, wildlife, or plant that faces a significant and imminent risk to
its well-being under the emergency listing provisions of section
4(b)(7) of the Act. This would include preparing a proposed rule to
list the species. Every petition to list a species or reclassify a
threatened species to endangered will be reviewed in order to determine
whether an emergency situation exists. If the initial review indicates
an emergency situation, the action will be a Priority 1 action and an
emergency rule to list the species will be prepared immediately.
Emergency listings are effective for 240- days. A proposed rule to list
the species is usually published concurrently with the emergency rule
to ensure that the final listing and full protection of the Act are
established before the 240-day emergency protection expires. If the
initial review does not indicate that emergency listing is necessary,
processing of the petition will be assigned to Priority 4 as discussed
below.
Priority 2--Processing Final Decisions on Proposed Listings
Proposed species are just one step away from receiving the most
important protections under the Act. The majority
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of the unresolved proposed species face high-magnitude threats. By
focusing our efforts on completing final determinations, we can provide
the maximum conservation benefits to the largest numbers of those
species that are in greatest need of the Act's protections. As proposed
listings are reviewed and processed, they will be completed through
publication of either a final listing or a withdrawal of 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 proposed listing final has been made, publishing the
withdrawal of the proposed listing takes minimal time and
appropriations. Thus, it is more cost effective and efficient to bring
closure to the proposed listing than it is to postpone the action and
take it up at some later time.
Priority 3--Resolving the Conservation Status of Candidate Species
(Resulting in a New Proposed Rule or a Candidate Removal)
The publication of new proposals (candidate conservation
resolution) to add species to the lists of threatened and endangered
species has significant conservation benefit. Pursuant to the 1983
listing priority guidelines, proposed rules dealing with taxa believed
to face imminent, high-magnitude threats have the highest relative
priority within Priority 3. If an emergency situation exists, the
species will be elevated to Priority 1. Proposed listings that cover
multiple species facing high-magnitude threats have priority over
single-species proposed rules unless we have reason to believe that the
single-species proposal should be processed first to avoid possible
extinction. Proposed listings for species facing high-magnitude threats
that can be quickly completed have higher priority than proposed rules
for species with equivalent listing priorities that require extensive
work to complete.
Issuance of a new proposed listing is the first formal step in the
regulatory process for listing a species. It provides some protection
in that all Federal agencies must ``confer'' with us on actions that
are likely to jeopardize the continued existence of proposed species.
The resolution of a candidate species' conservation status will be
accomplished through the publication of new proposed rules or the
processing of candidate removal forms (which, when signed by the
Director, remove species from the candidate list). Candidate species
include species petitioned for listing, for which the Service has made
a warranted but precluded finding pursuant to section 4(b)(3)(iii) of
the Act.
Priority 4--Processing Administrative Findings on Petitions to Add
Species to the Lists and Petitions Reclassify Species
The processing of 90-day petition findings and 12-month petition
findings to add species to the lists or reclassify species will be
Priority 4 activities. Once a 90-day petition finding is published, we
will make every reasonable effort to complete the 12-month finding in
the appropriate time frame. When it is practicable for us to complete a
90-day finding within 90 days, we are statutorily afforded a 12-month
period from the receipt of a petition to completion of the 12-month
finding. However, in those cases in which it is not practicable for us
to complete a 90-day finding within 90 days of receipt of the petition,
after the 90-day finding is completed, we will require 9 months to
complete a thorough biological status review and issue a 12-month
finding.
Allocating Listing Resources Among Regions
We allocate the listing appropriation among our seven Regions based
strictly on the number of proposed and candidate species for which the
Region has lead responsibility, with the exception of providing minimum
``capability funding'' for each Region. The objective is to ensure that
those areas of the country with the largest percentage of known
imperiled species will receive a correspondingly high level of listing
resources. Our experience in administering the Act for the past two
decades has shown, however, that we need to maintain at least a minimal
listing program in each Region in order to respond to emergencies and
to retain a level of expertise that permits the overall program to
function effectively over the longer term, thus the ``capability
funding'' to each Region. In the past, when faced with seriously uneven
workloads, we have experimented with reassigning workloads from heavily
burdened Regions to less burdened Regions. This approach has proven to
be very inefficient because the expertise developed by a biologist who
works on a species' listing is useful in recovery planning and other
conservation activities for that species. Additionally, biologists in a
Region are familiar with other species in that Region that interact
with the species proposed for listing, and that knowledge is useful in
processing a final decision. For these reasons, we have found it unwise
to reassign one Region's workload to personnel in another Region.
Because we must maintain a listing program in each Region, Regions with
few outstanding proposed listings may be able to address more lower
priority listing actions, while Regions with many outstanding proposed
listings will use most of their allocated funds on Priority 2 actions
(finalizing proposed listings) or Priority 3 actions (completing new
proposals to add species to the lists). It is the responsibility of
individual Regions to recognize their workloads and backlogs and
undertake priorities (1-4) as their regional workloads permit. We will
provide critical habitat funding on a project by project basis in FY
1999.
Addressing Matters in Litigation
The numerous statutory responsibilities we bear under the Act do
not come with an unlimited budget. We are sometimes required to make
painful choices about how to prioritize carrying out those statutory
responsibilities in order to make the best use of our limited
resources. Under these circumstances, technical compliance with the Act
with respect to one species can mean failure to comply with the
technical requirements of the Act for another species. This guidance is
part of a continuing effort to strive to achieve compliance with the
Act in the manner that best fulfills the spirit of the Act, using our
best scientific expertise.
Individuals or organizations occasionally bring suit against us for
failing to carry out specific actions with regard to specific species.
Many of these suits question our judgment and priorities, and seek
compliance with the Act in circumstances that do not, in the judgment
of the Service, lead to the best use of our resources to provide the
maximum conservation benefit to all species. In many of the outstanding
section 4 matters currently in litigation, the effect of what the
plaintiff seeks is to require us to postpone or sacrifice conservation
actions that we believe would have major conservation benefits in favor
of actions that we believe would have lesser conservation benefits.
In no case will we adjust our biological priorities to reflect the
threat of litigation. We have sought and will continue to seek from the
courts recognition of our need to allocate our limited listing budget
so as to best fulfill the spirit of the Act. We will, of course, obey
any outstanding court orders.
Public Comments Solicited
We intend that any action resulting from this proposed guidance be
as accurate and as effective as possible.
[[Page 27600]]
Therefore, any suggestions from the public, concerned governmental
agencies, the scientific community, environmental groups, industry,
commercial trade entities, or any other interested party concerning any
aspect of this proposed guidance are hereby solicited. We will take
into consideration any comments and additional information received and
we will announce final guidance after the close of the public comment
period and as promptly as possible after all comments have been
reviewed and analyzed. The Final FY 1998 and FY 1999 Listing Priority
Guidance will remain in effect until publication of the Final FY 1999
and FY 2000 Listing Priority Guidance.
Executive order 12866 requires each agency to write regulations/
notices that are easy to understand. We invite your comments on how to
make this notice easier to understand, including answers to questions
such as the following: (1) Are the requirements in the notice clearly
stated? (2) Does the notice contain technical language or jargon that
interferes with the clarity? (3) Does the format of the notice
(grouping and order of sections, use of headings, paragraphing, etc.)
aid or reduce its clarity? (4) Is the description of the notice in the
Supplementary Information section of the preamble helpful in
understanding the notice? What else could we do to make the notice
easier to understand?
Authority
The authority for this notice is the Endangered Species Act of
1973, as amended, 16 U.S.C. 1531 et seq.
Dated: April 2, 1999.
Jamie Rappaport Clark,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 99-12783 Filed 5-19-99; 8:45 am]
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