25502 Federal Register / Vol. 63, No. 89 / Friday, May 8, 1998 / Notices

Landholding Agency: Navy

Property Number: 779820018

Status: Excess

Comment: 4226 sq. ft., presence of lead paint,

most recent use—maintenance shop, offsite use only

Bldg. Z–394

Naval Station

Norfolk VA 23511–

Landholding Agency: Navy

Property Number: 779820019

Status: Excess

Comment: 2400 sq. ft., presence of lead paint,

most recent use—storage, off-site use only

Bldg. Z–398

Naval Station

Norfolk VA 23511–

Landholding Agency: Navy

Property Number: 779820020

Status: Excess

Comment: 1680 sq. ft., most recent use—pwc

shop, off-site use only

Unsuitable Properties

Buildings (by State)

California

02–120 Liz White Residence

Wilson Creek

Klamath Co: Del Norte CA 95531–

Landholding Agency: Interior

Property Number: 619820002

Status: Unutilized

Reason: Extensive deterioration

Hawaii

Bldg. 4

Beckoning Point Naval Station

Pearl Harbor Co: Honolulu HI 96860–

Landholding Agency: Navy

Property Number: 779820002

Status: Excess

Reason: Extensive deterioration

Bldg. 33

Naval Magazine Lualualei

West Loch Branch Co: Oahu HI

Landholding Agency: Navy

Property Number: 779820021

Status: Unutilized

Reason: Extensive deterioration

Maryland

Bldg. 947, Qtrs. D

Naval Air Station

Co: St. Mary’s MD 20670–5304

Landholding Agency: Navy

Property Number: 779820003

Status: Unutilized

Reason: Extensive deterioration

New Mexico

11 Bldgs., Tech Area I

Kirtland AFB

#639–43, 828, 830, 863, 881–883

Albuquerque NM 87185–

Landholding Agency: Energy

Property Number: 419820001

Status: Excess

Reason: Extensive deterioration

Washington

Bldgs. 1158, 1159

Ross Lake Natl Recreation Area

Co: Whatcom WA

Landholding Agency: Interior

Property Number: 619820001

Status: Unutilized

Reason: Extensive deterioration

[FR Doc. 98–11938 Filed 5–7–98; 8:45 am]

BILLING CODE 4210–29–M

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.

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
Federal Register / Vol. 63, No. 89 / Friday, May 8, 1998 / Notices 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 21⁄2 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
25504 Federal Register / Vol. 63, No. 89 / Friday, May 8, 1998 / Notices

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
Federal Register / Vol. 63, No. 89 / Friday, May 8, 1998 / Notices 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
25506 Federal Register / Vol. 63, No. 89 / Friday, May 8, 1998 / Notices

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

vicun ̃ a 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,
Federal Register / Vol. 63, No. 89 / Friday, May 8, 1998 / Notices 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, nonemergency 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.
25508 Federal Register / Vol. 63, No. 89 / Friday, May 8, 1998 / Notices

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
Federal Register / Vol. 63, No. 89 / Friday, May 8, 1998 / Notices 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, highmagnitude 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 highmagnitude 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
25510 Federal Register / Vol. 63, No. 89 / Friday, May 8, 1998 / Notices

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
Federal Register / Vol. 63, No. 89 / Friday, May 8, 1998 / Notices 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-bycase.’’ 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.
25512 Federal Register / Vol. 63, No. 89 / Friday, May 8, 1998 / Notices

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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

Proposed Policy on the Export of Live

American Alligators and

Announcement of Public Meeting

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Notice of proposed policy.

SUMMARY: After review and analysis of

comments received and for the reasons

detailed in this notice, the Service

proposes to adopt a policy against the

issuance of permits for the export of live

American alligators for commercial

breeding or resale purposes. The

American alligator is protected under

the Endangered Species Act of 1973

(ESA) as threatened due to similarity of

appearance and under the Convention

on International Trade in Endangered

Species of Wild Fauna and Flora

(CITES) as Appendix II. The Service

may issue an export permit upon

finding that all applicable permit

issuance requirements have been met.

Exports of animals listed on Appendix

II of CITES may occur only if the

Scientific Authority has advised the

Management Authority that such

exports will not be detrimental to the

survival of the species and the

Management Authority is satisfied the

animals were not obtained in violation

of laws for their protection. Based on

documentation presented for

consideration by the CITES Parties in

1983, the Service has determined that

the American alligator is listed on

Appendix II for reasons of similarity in

appearance under Article II.2(b) of

CITES as well as the potential threat to

the species survival under CITES Article

II.2(a).

This notice announces a proposed

policy by the Service on the export of

live American alligators. Based on the

information received in response to the

June 24, 1997, notice, the Service is

unable to find that the export of live

American alligators either for

commercial breeding or resale purposes

is not detrimental as required under

CITES or that such exports comply with

Executive Order 11987—Exotic

Organisms. Applications for permits to

export live American alligators for

purposes such as scientific research or

zoological exhibition would be

evaluated on a case-by-case basis.

DATES: The Service will consider all

information and comments received by

June 8, 1998 in making its final decision

on this proposal. A public meeting will

be held at the Delta Resort Orlando,

5715 Major Boulevard, Orlando, Florida

32819–7988, on May 5, 1998, from 1:30

pm to 3:30 pm.

ADDRESSES: Please send comments or

other correspondence concerning this

document to the Office of Management

Authority, U.S. Fish and Wildlife

Service, 4401 North Fairfax Drive, room

700, Arlington, VA 22203. Materials

received will be available for public

inspection by appointment from 8 a.m.

to 4 p.m., Monday through Friday, at the

Office of Management Authority.

FOR FURTHER INFORMATION CONTACT: Ms.

Teiko Saito, Chief, Office of

Management Authority, telephone 703–

358–2095, fax 703–358–2298.

SUPPLEMENTARY INFORMATION: The Fish

and Wildlife Service (Service) published

a notice on June 24, 1997 (62 FR 34074),

requesting submission to the Service of

any information available on the

impacts of exports of live American

alligators. Generally, in order to export

species of wildlife protected under the

ESA and/or CITES, an export permit

must be issued. The Service is the

agency responsible for reviewing

applications for export of wildlife. Each

permit application must be carefully

evaluated to ensure compliance with all

applicable regulations and executive

orders. The American alligator is

protected under the Endangered Species

Act of 1973 (ESA) as threatened due to

similarity of appearance and under the

Convention on International Trade in

Endangered Species of Wild Fauna and

Flora (CITES) as Appendix II. A permit

for export of American alligators can

only be issued if the Service can

determine:

1. That the export will not be

detrimental to the survival of the

species (50 CFR 23.15(d)(1));

2. That the animals to be exported

were not obtained in violation of laws

for their protection (50 CFR 23.15(d)(2));

3. That the authorization requested

does not potentially threaten a wildlife

population (50 CFR 13.21(b)(4)); and

4. That the requirements of Executive

Order 11987, Exotic Organisms, are met.

(This Executive Order, in part, requires

‘‘Executive agencies shall, to the extent

permitted by law, restrict the use of

Federal funds, programs, or authorities

used to export native species for the

purpose of introducing such species

into ecosystems outside the United

States where they do not naturally

occur.’’ In this instance, introduction is

defined to include ‘‘the release, escape,

or establishment of an exotic species

into a natural ecosystem.’’)

5. That live specimens are prepared

for shipping and shipped in compliance

with the International Air Transport

Association (IATA) Live Animal

Regulations (for air transport) or CITES

guidelines for transport (for other

transport).

The Service received requests from

the Florida Game and Freshwater Fish

Commission and the Louisiana

Department of Wildlife and Fisheries

that we review the criteria for issuance

of permits for export of live American

alligators for commercial breeding or

resale purposes and to restrict issuance

of such permits until a review could be

completed. In response to these

concerns, the Service published the

June 24, 1997, Federal Register notice

requesting submission of any

information available to assist us in

evaluating such impacts.

In addition, the problems associated

with the introduction of exotic species

have become increasingly apparent

worldwide. The problems have been

discussed in a number of international

fora such as the meeting of the CITES

Conference of the Parties in 1997 in

Zimbabwe, the World Conservation

Congress in 1996, and the Conference

on Alien Species in Norway in 1996. In

the United States, approximately 122

species of exotic (non-indigenous)

species of fish and wildlife have already

established free-living populations and

are causing great harm. The import of

potentially harmful exotic species is

currently being reviewed by the Service

in the context of the Lacey Act

prohibitions on import of injurious

species. In relation to export of native

species, E.O. 11987 restricts the use of

Federal funds, programs, or authorities

(i.e., the issuance of CITES export

permits) to export native species outside

the United States. The American

alligator is one of the few native species

that requires a CITES export permit and

for which we have received applications

for export of large numbers of live

specimens. Given the documented

introduction of other crocodilians

outside their range, in evaluating an

application for export of live American

alligators the Service must take into

consideration the ecological damage

that could result from introduction of

alligators, either planned or unplanned,

into ecosystems outside their natural

range in the United States.