[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