24722 Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 / Rules and Regulations

1Former section 10721 recodified section 22 of

the Interstate Commerce Act. Section 22 allowed

common carriers to depart from their tariffs in

providing service to the government.

2The regulations were later modified to exempt

nonagricultural rail rate quotations from the filing

requirements. Railroad Exempt.—Filing

Quotations—Section 10721, 7 I.C.C.2d 325 (1991).

offerors to be selected for phase-two

must not exceed 5 unless the

contracting officer determines that

specifying a number greater than 5 is in

the Government’s interest and is

consistent with the purpose and

objectives of the two-phase selection

process. For phase-two the solicitation

should identify all factors, including

price or cost, and any significant

subfactors that will be considered in

awarding the lease and state the relative

importance the Government places on

those evaluation factors and subfactors

and otherwise comply with paragraph

(a)(7)(i) of this section.

* * * * *

Dated: May 10, 1996.

Ida M. Ustad,

Deputy Associate Administrator for

Acquisition Policy.

[FR Doc. 96–12198 Filed 5–15–96; 8:45 am]

BILLING CODE 6820–61–P

DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

49 CFR Part 1330

[STB Ex Parte No. 547]

Removal of Obsolete Regulations

Concerning Filing Quotations for

Government Shipments

AGENCY: Surface Transportation Board.

ACTION: Final rule.

SUMMARY: The Surface Transportation

Board (the Board) is removing from the

Code of Federal Regulations obsolete

regulations concerning the filing of rate

quotations for government shipments.

EFFECTIVE DATE: January 1, 1996.

FOR FURTHER INFORMATION CONTACT:

Beryl Gordon, (202) 927–7513. [TDD for

the hearing impaired: (202) 927–5721.]

SUPPLEMENTARY INFORMATION: Effective

January 1, 1996, the ICC Termination

Act of 1995, Pub. L. No. 104–88, 109

Stat. 803 (ICCTA) abolished the

Interstate Commerce Commission (ICC)

and established the Board within the

Department of Transportation. Section

204(a) of ICCTA provides that ‘‘[t]he

Board shall promptly rescind all

regulations established by the [ICC] that

are based on provisions of law repealed

and not substantively reenacted by this

Act.’’

Former 49 U.S.C. 10721(b)(1)

expressly provided that a common

carrier could provide transportation for

the United States government without

charge or at a reduced rate.1 That

provision is retained in new 49 U.S.C.

10721 (rail transportation), 15712

(transportation by motor or water

carriage and freight forwarders), and

15504 (pipeline transportation).

However, the ICCTA removed the

requirement of former 49 U.S.C.

10721(b)(2) that common carriers

generally file copies of rate quotations

or tenders with both the ICC and the

department, agency or instrumentality

of the United States government for

which they were made. Therefore, the

ICC regulations to implement the

quotation filing requirement, which

were codified in part 1330 at 43 FR

59844 (December 22, 1978),2 have been

rendered obsolete. Because the statutory

basis for the part 1330 regulations has

been removed, we are eliminating those

rules.

Because this action merely reflects,

and is required by, the enactment of the

ICCTA and will not have an adverse

effect on the interests of any person, this

action will be deemed to be effective as

of January 1, 1996.

This action will not significantly

affect either the quality of the human

environment or the conservation of

energy resources.

List of Subjects in 49 CFR Part 1330

Freight, Government procurement,

Motor carriers, Moving of household

goods, Pipelines, Railroads.

Decided: May 2, 1996.

By the Board, Chairman Morgan, Vice

Chairman Simmons, and Commissioner

Owen.

Vernon A. Williams,

Secretary.

PART 1330—[REMOVED]

For the reasons set forth in the

preamble and under the authority of 49

U.S.C. 721(a), title 49, chapter X of the

Code of Federal Regulations is amended

by removing part 1330.

[FR Doc. 96–12280 Filed 5–15–96; 8:45 am]

BILLING CODE 4915–00–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

Endangered and Threatened Wildlife

and Plants; Restarting the Listing

Program and Final Listing Priority

Guidance

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Notice of listing priority

guidance.

SUMMARY: On March 11, 1996, the Fish

and Wildlife Service (Service) published

a notice in the Federal Register

describing interim guidance for setting

priorities in the listing program and

solicited public comments. The Service

took this action in anticipation of

receiving a limited amount of funds to

resume listing activities. Having

received a limited appropriation of

listing funds for the remainder of fiscal

year 1996, the Service announces final

listing priorities that will govern the

expenditure of the available funds for

the remainder of the fiscal year.

DATES: This guidance takes effect May

16, 1996 and will remain in effect until

September 30, 1996, unless extended by

further notice.

ADDRESSES: Questions about this

guidance should be directed to the

Chief, Division of Endangered Species,

U.S. Fish and Wildlife Service, 1849 C

Street, N.W., Mailstop ARLSQ–452,

Washington, D.C. 20240.

FOR FURTHER INFORMATION CONTACT: E.

LaVerne Smith, Chief, Division of

Endangered Species, U.S. Fish and

Wildlife Service, 703–358–2171 (see

ADDRESSES section).

SUPPLEMENTARY INFORMATION:

Background

Moratorium and Funding Constraints

Over the past thirteen months, the

Service’s Endangered Species listing

program, which operates under the

authority of section 4 of the Endangered

Species Act (Act) of 1973, as amended

(16 U.S.C. 1531 et seq.), has been

sharply curtailed by a variety of

legislative and funding restrictions.

Public Law 104–6, which took effect

April 10, 1995, rescinded $1.5 million

from the Service’s then-current listing

appropriation of $7.999 million and also

stipulated that the remaining listing

funds could not be used to make final

listing or critical habitat designations.

The net effect of Pub. L. 104–6 has been

that no new species have been added to

the lists of endangered and threatened
Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 / Rules and Regulations 24723

wildlife and plants in more than a year

and as a result, a backlog of 243

proposed listings has accrued.

From October 1, 1995, until April 26,

1996, the Department of the Interior

operated without a regularly enacted,

full-year appropriations bill. Instead,

funding for most of the Department’s

programs, including the endangered

species listing program, was governed

by the terms of a series of thirteen

‘‘continuing resolutions’’ (CRs). The

details of these are complex, and are

summarized in what follows. Their net

effect was essentially to shut down the

listing program.

The CR for the period October 1,

1995, through November 13, 1995,

continued the moratorium on final

listings and critical habitat designations

from the April 10, 1995, enactment. The

listing program was funded at a level

equal to 95% of the average of the

funding for these activities provided in

the appropriate appropriations bills

then pending before the House and

Senate. For listing activities, the House

bill provided zero funds. The Senate bill

provided only a token amount

($750,000) for the entire fiscal year.

Averaging these two, and apportioning

95% of the average across the six weeks

the CR was in effect meant that only

$43,000 was available during this time

period.

The Acting Director of the Service

issued guidance on October 13, 1995,

describing the activities on which these

funds could be spent—(1) completion of

any comment periods and public

hearings for pending proposals; (2)

completion of pending petition findings;

and (3) processing of any delistings or

reclassifications that were in the

Washington Office awaiting approval. In

the same memorandum the Director also

ordered each Regional Director to begin

the orderly transfer of listing personnel

into other activities that were likely to

be funded during fiscal year 1996. This

step was necessary because all

indications were that Congress would

further restrict the listing budget, which

could have resulted in reductions-inforce. The resulting loss of institutional

and scientific expertise would have

crippled the listing program.

The listing program had to be shut

down completely upon expiration of the

first continuing resolution. The CR in

effect from mid-November through

December 15 provided no funds to the

listing program and also continued the

moratorium provisions of Pub. L. 104–

6. Therefore, on November 22, 1995, the

Director ordered the reassignment of all

listing staff to other duties until funds

for these activities were restored.

Similar constraints applied during the

governmental shutdown and the CRs in

effect from December 16, 1995, through

January 26, 1996.

The CR that governed the period

January 27 through March 15, 1996,

provided that funds would be available

for the listing program based on the rate

established in the House-Senate

conference report the Department of the

Interior’s fiscal year 1996

Appropriations Act (Section 126 of Pub.

L. 104–99). This report included an

annual rate of $750,000 for listing

activities and continued the

moratorium. At an annual rate of

$750,000, about $100,000 were available

for listing activities during the period of

this CR.

Short-term CRs covered the periods

March 16–22, March 23–29, March 30–

April 24, and April 24–26, 1996. These

CRs continued the moratorium on final

listings and critical habitat designations,

and altogether provided the Service

with very limited funding ($90,000)

during this period.

These very limited funds were

quickly expended in paying for Federal

Register publication charges for a

variety of listing documents that were in

the Washington Office awaiting

publication (e.g., Vertebrate Population

Policy, miscellaneous petition findings,

and delistings or reclassifications) and

providing biological information to the

district courts.

On April 26, 1996, the appropriation

for the Department of the Interior for the

remainder of fiscal year 1996 was finally

enacted into law. It provides

approximately $4 million for the

Service’s listing program over the entire

fiscal year. The Service had already

expended $233,000 of the

appropriation, leaving $3,767,000 for

the remainder of fiscal year 1996. This

act also extends the moratorium on

expenditure of funds for final decisions

on listings and critical habitat

designations, but it also empowered the

President to waive the moratorium

provisions. The President issued a

waiver of these provisions on April 26,

1996, shortly after signing the Omnibus

Budget Reconciliation law.

Significant obstacles remain as the

Service restarts its listing program. The

available funds fall far short of what is

needed to clear away the backlog that

has built up. Currently the Service faces

a backlog of 243 proposed species, a far

larger backlog than has existed in recent

times. This poses a particularly difficult

problem for the Service in light of the

other Section 4 activities that require

attention such as resolving the

conservation status of 182 candidate

species (see 61 FR 7596; February 28,

1996); addressing pending court orders;

and resolving petitions for 57 species.

This highly irregular situation demands

that the Service establish biologically

defensible work priorities to guide

expenditures of the limited listing

appropriations in a manner that best

serves the purposes of the Act.

The Service is aware that the

Department of Commerce and the

National Marine Fisheries Service

(NMFS) have also faced a highly

irregular funding situation in fiscal year

1996 and may have different priorities

with respect to restarting their section 4

listing program. This guidance and its

priorities are not intended in any way

to affect the interpretation of the Act,

the Secretary of Commerce’s and NMFS’

decisions regarding implementation of

the Act, Commerce’s and NMFS’ budget

priorities or Commerce’s and NMFS’

administration of its section 4 listing

program. This guidance is intended only

to reflect the implementation difficulties

faced by the Department of the Interior

and the Service, and not those of other

agencies or Departments.

Principles for Restarting the Listing

Program

The primary purposes of the

Endangered Species Act are ‘‘to provide

a means whereby the ecosystems upon

which endangered species and

threatened species depend may be

conserved, to provide a program for the

conservation of such endangered

species and threatened species, and to

take such steps as may be appropriate to

achieve the purposes of the treaties and

conventions set forth in subsection (a) of

this section.’’

16 U.S.C. 1531(b). It is long-standing

Service policy that highest priority be

given to those species believed to face

the greatest threat of extinction. It is

especially important to continue this

policy with the current financial

constraints. In carrying out that policy,

four basic principles will govern the

Service’s implementation of the listing

process as the listing program is

restarted:

(1) Highest priority will be given to

protecting species most in need, based

on the priorities established by the

listing priority guidance finalized in this

notice and the 1983 Listing Priority

Guidelines (48 FR 43098–43103;

September 21, 1983);

(2) Biological need, not the

preferences of litigants, should drive the

listing process. The Service will work

closely with the Department of Justice to

defend its priority system in those cases

where plaintiffs, in pending or new

cases, request actions that would cause

the Service to diverge from the

principles discussed here, and therefore,
24724 Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 / Rules and Regulations

in the judgment of the Service, would

divert resources from providing prompt

protection to those species the Service

believes to be in greatest need of the

protections of the Endangered Species

Act;

(3) Sound science, including peer

review, will form the foundation of each

and every listing action; and

(4) Public comment and participation

in the petition and rulemaking

processes will be enhanced to ensure

that the States, other Federal agencies,

and the affected public are provided

with complete explanations of the

action and are provided every

opportunity to provide comments or

information. All comments received

will be carefully evaluated and

responded to.

Actions Required To Restart the Listing

Program

The resumption of an effective listing

program will require a variety of

actions. First, the budget interruptions

described above required the Service to

reassign all personnel funded through

the listing program to other activities

from mid-November 1995 through April

26, 1996. Many of the listing biologists

are in the process of being returned to

their regular duties. The tasks that these

biologists have been working on during

the listing shutdown will require a

period of orderly shutdown or transfer.

The Service estimates that it may

require as much as 45 days to fully

reengage all listing personnel. Where

vacancies exist, steps are being taken to

fill them.

As staff come back to the program, all

listing packages will be reviewed as

quickly as possible to determine their

priority placement according to the

listing priority guidance reconfirmed

here.

Upon completion of this initial stage,

the next step will be determined by the

facts involved in each package. The

packages are in various states of

completeness, both as to substance and

to process. Some merely require a final

review to ensure that they accurately

reflect the current situation, while

others will require extensive revision

because the biological situation may

have changed since the proposal was

issued. Still other proposals were issued

shortly before the funding interruption,

so that requests for public hearings or to

extend the comment periods could not

be acted upon. As a result of this

variety, final determinations on the

pending proposed listings will move

through the system at very different

rates. Those that still require addressing

public comments will take considerably

more time to bring to the stage of final

decision.

The $4 million currently appropriated

is substantially less than what is needed

to eliminate the current backlog of 243

proposed species. Because the facts

involved in each final listing

determination can vary widely, it is

impossible to generate meaningful

‘‘average’’ costs for each listing activity.

Processing a proposed final listing may

take only a few thousand dollars if

basically all steps except final approval

and Federal Register publication are

completed. But processing may take

many thousands of dollars if additional

comment and responses or public

hearings are required. The economic

analyses required for critical habitat

designations, for example, may require

substantial dollars as well as time.

Following completion of work by the

Field Office, draft recommendations on

each package will be sent to the

Regional Office for policy review and, if

appropriate, concurrence. Depending on

the remaining steps that must be

completed, the above described steps

may take from 30–120 days.

Following approval by the Regional

Office, the draft recommendations will

be sent to the Washington Office for

technical and policy review and

approval by the Director. Including a

brief review by the Department’s Office

of Regulatory Affairs, review time in the

Washington Office may require 30 to 60

days, especially if changes are

necessary. Rules with critical habitat

also require review by the Office of

Management and Budget and will take

additional time to complete.

Pending Litigation

The Service is presently involved in

numerous cases in federal court that

involve proposed and final listings,

petition findings, and critical habitat

designations. As of April 1, 1996,

approximately 60 separate civil suits

directed at the process of listing species

under the Act were pending against

Federal officials or agencies. As of April

1, 1996, the Secretary of the Interior had

received approximately 300 Notices of

Intent to Sue (required under the Act

before suit may be filed (see 16 U.S.C.

§ 1540(g))), on which litigation has not

yet been, but could be filed at any time.

Many of these Notices of Intent deal

with the listing process.

During the moratorium on final

listings and critical habitat designation

that was in effect for nearly thirteen

months, the courts generally agreed

with the Service that it could not legally

act to meet deadlines without a lawful

source of funds. See, e.g.,

Environmental Defense Center v.

Babbitt, 73 F.3d 867 (9th Cir. 1995).

Now that the moratorium is no longer in

effect, and funds, albeit limited, are

available for this task, the Service must

decide how to best spend these funds to

carry out the purposes of the Act. The

press of pending and threatened new

litigation could complicate this task

immensely.

This pending and threatened

litigation presents many competing and

conflicting claims, and in the current

budgetary situation translates into

expensive demands on inadequate

resources. Actions requested by

plaintiffs cover the entire spectrum of

listing activities, from petitions to add

species to the list to requests to overturn

existing listings. Taken collectively,

these pending and potential cases seek

different and sometimes diametrically

opposed results.

Defending existing and any new

lawsuits can divert considerable

resources away from the Service’s

efforts to conserve endangered species.

When the Service undertakes one listing

activity, it inevitably forgoes another. In

some cases courts have ordered the

Service to complete activities that are

simply not, in the Service’s expert

judgment, among the highest biological

priorities.

Development and Publication of

Interim Listing Priority Guidance and

Its Relationship to the 1983 Priority

Guidance

In 1983 the Service adopted

guidelines to govern the assignment of

priorities to species under consideration

for listing as endangered or threatened

under section 4 of the Endangered

Species Act (48 FR 43098–43105;

September 21, 1983) The purpose of

those guidelines was to establish a

rational system for allocating available

appropriations to the highest priority

species when adding species to the lists

of endangered or threatened wildlife

and plants or reclassifying threatened

species to endangered status. The

system places greatest importance on

the immediacy and magnitude of

threats, but also factors in the level of

taxonomic distinctiveness by assigning

priority in descending order to

monotypic genera, full species, and

subspecies (or equivalently, distinct

population segments of vertebrates).

The 1983 guidelines do not establish

priorities among different types of

listing activities, which include

processing pending proposed listings,

new proposed listings, delistings or

reclassifications, petition findings, and

critical habitat determinations. The

backlog of proposed species created by

the moratorium and the recent funding
Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 / Rules and Regulations 24725

constraints prompted the Service to

establish priorities among the various

listing activities.

Accordingly, earlier this spring, in

anticipation of facing a possible lifting

of the moratorium on final listings and

critical habitat designations but with

only limited funds available to clear

away the large backlog of proposed

species that had built up in the interim,

the Service published interim listing

priority guidance in the March 11, 1996

edition of the Federal Register (61 FR

9651–9653) and solicited public

comment on that guidance. Summaries

of the interim guidance and all

comments received, and responses to

the comments, are included in the

following sections.

The 1983 guidelines properly set

priorities for the Service, under a fullyfunded Section 4 program, for making

expeditious progress in adding species

to the Lists of Endangered and

Threatened Wildlife and Plants. They

are not, however, sufficient to deal with

the present backlog of proposed species.

The Service developed the Interim

Listing Priority Guidance, which in a

slightly modified form is now

republished as final guidance, to

provide a means to reconcile these

competing and conflicting demands in a

biologically effective and efficient way

to best carry out the purposes of the Act.

Specifically, after careful deliberation,

the Service has decided that, in order to

focus conservation benefits on those

species in greatest need, processing final

determinations relative to the pending

proposed listings should receive higher

priority than other actions required by

section 4 (such as petition findings, new

proposed listings, reclassifications or

delistings, and critical habitat

determinations). Publication of the

priority guidance is intended to explain

to the public (including litigants and

reviewing courts) precisely how the

Service believes it should use its limited

listing appropriations to maximum

effect to carry out the purposes of the

Act.

The Department of Justice and the

Department of the Interior Solicitor’s

Office will generally ask litigants and

the courts to defer to this listing priority

system. Near the end of fiscal year 1996,

the Service will review the extent of the

remaining listing backlog and the fiscal

year 1997 budget situation to determine

if an extension of this guidance is

necessary. For the reasons set out in the

preamble of the notice, the Service finds

that good cause exists under 5 U.S.C.

553(d) to make this guidance effective

upon the date of publication in the

Federal Register.

Summary of Interim Listing Priority

Guidance

The main principle underlying the

listing priority guidance is to focus the

limited listing resources on those

actions that will result in the greatest

conservation benefit for the species in

most urgent need of the Act’s

protections. Because only listed species

receive the full conservation benefits

and substantive protections of the Act,

and because the vast majority of the

proposed species face high-magnitude

threats to their continued survival, the

Service decided to give highest priority

to handling emergency situations and

resolving the listing status of the 243

outstanding proposed listings. Highest

priority actions were assigned to Tier 1,

lowest priority to Tier 5.

Tier 1—Emergency listings. Under

section 4(b)(7) of the Act, the Secretary

may list a species on an emergency basis

(without the usual public notice and

comment procedure) if an emergency

exists that poses ‘‘a significant risk to

the well-being of any species of fish or

wildlife or plants. * * *’’ Generally, an

emergency listing rule remains in effect

for 240 days, during which time the

Service typically issues a proposed

listing and makes a final determination

as to whether final listing is appropriate.

Tier 2—Preparation and processing of

final decisions on outstanding proposed

listings. Within Tier 2, highest priority

will be given to species facing the

highest magnitude and most imminent

threats. For species with equal listing

priority assignments, the following

types of actions will receive subsequent

priority—listing packages that cover

multiple species; listing packages that

can be quickly cleared (e.g., those with

few public comments or factual

questions presented); and proposals that

have been pending the longest.

Tier 3—Preparing and processing new

proposed listings for species facing

high-magnitude threats; and screening

petitions for emergency situations.

Tier 4—Preparing and processing

proposed listings for species facing

moderate- or low-magnitude threats;

processing final decisions on pending

proposed reclassifications and

delistings; preparing and processing

administrative findings for petitions.

Tier 5—Preparing and processing

critical habitat determinations and

preparing or processing new proposed

delistings or reclassifications.

Summary of, and Responses to,

Comments and Recommendations on

the Interim Listing Priority Guidance

Comments on the interim listing

priority guidance were received from

the following organizations—BMI

Marketing and Marine Services Corp.;

Arizona Game & Fish Department; the

Marine Industries Association of

Florida, Inc.; and Messrs. Eric

Glitzenstein, Michael Sherwood, and

William Snape, counsel for the plaintiffs

in the Fund for Animals v. Lujan, Civ.

No. 92–800, D.D.C.

The comments from the Arizona

Department of Game & Fish expressed

general support for the interim priority

guidance, but recommended that

reclassifications and delistings should

receive higher priority, perhaps in Tier

2 of the interim guidance. The Service

recognizes the useful regulatory relief

that delistings or reclassifications can

provide. The priority guidance provides

that to the extent such actions have been

processed and approved through the

Regional offices, these actions will

proceed while the subject guidance is in

effect. However, generation of new

proposed delistings or reclassifications

cannot be justified in a time of extreme

budget constraints and while there is an

extensive backlog of proposed species

awaiting final determinations. The

Service regrets that the limited

appropriations made available, coupled

with the backlog of new listings built up

by the moratorium, have delayed

delistings and reclassifications. The

Service has decided to combine all

activities that were assigned to Tiers 3,

4, and 5 and place them collectively in

a single Tier 3 for reasons explained

below.

The Marine Industries Association of

Florida, Inc. (MIA) expressed a similar

concern about the lower priority of

delisting or reclassification actions,

responded to above. The MIA also

commented that the proposed guidance

should not be used to ‘‘rush new listings

thru’’ for species that are highly

scientifically controversial. In the

interim listing priority guidance, the

Service noted that additional public

comment periods might be necessary

before rules can be finalized if there are

unresolved questions or new

information that must be evaluated. (See

61 Fed. Reg. at 9653, section entitled

‘‘Setting Priorities Within Tier 2’’). The

Service will ensure that sound science,

including peer review, forms the

foundation for all listing decisions.

Comments submitted by BMI

Marketing & Marine Services Corp.,

cautioned that final decisions on

proposed listings should not be rushed,

advising the Service to take the same

care and procedure as if no time had

been lost. The Service agrees with this

comment. Each pending proposal will

be reviewed to ensure it contains

current and accurate information.
24726 Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 / Rules and Regulations

Where necessary, public comment

periods will be reopened.

The attorneys representing the Fund

For Animals (FFA) expressed concern

that they were not consulted prior to

release of the interim guidance, since it

will substantially affect the Service’s

implementation of a court-ordered

settlement agreement with FFA dealing

with the processing of species regarded

as candidates for listing under the Act.

The FFA attorneys also expressed

concern that the Service violated section

4(h) of the Act by failing to provide

opportunity for public comment prior to

enactment of the priority guidance. The

FFA attorneys asserted that requiring

completion of all final listings before

beginning new proposals is contrary to

the settlement agreement and

inconsistent with sound administration

of the Act. The FFA also expressed

concern that the Service has erected a

series of administrative hurdles that

unnecessarily slow the speed at which

species can be added to the list.

On the objection to making the

interim guidance effective immediately,

the Service believes it acted reasonably

and responsibly in so doing. More

importantly, although the Service

found, as stated in the interim guidance

(see 61 FR 9651), that good cause

existed to make the guidance effective

immediately, it nonetheless solicited

and received comments from the public,

and has taken them into account and

responded to them now in confirming

the guidance. There was no opportunity

to implement the interim guidance

anyway, because the listing program

was essentially unfunded and the

moratorium was not lifted until

President Clinton approved a waiver of

the moratorium on April 26, 1996.

As discussed above, the limited

appropriated funds for listing activities

now available are simply not sufficient

to allow the Service to meet all of its

immediate responsibilities under

Section 4 of the Act. Thus the Service

must make difficult decisions about

how best to allocate the limited funds.

In anticipation of this situation, the

Service made the interim listing priority

guidance effective immediately upon

publication on March 11, 1996 since it

had no idea when a full year

appropriation might be enacted

(Congress having enacted several shortterm Crs during this period) and the

Service wanted to have a plan for

dealing with the situation it knew it

would face when the moratorium was

lifted. Comments received in response

to the interim guidance were considered

and are addressed in this notice.

Unless extended, the guidance is

effective until the end of this fiscal year

on September 30, 1996. Given the

magnitude of the backlog and the

limited funds available, however, it is

highly unlikely that the Service will

complete processing of all of the

pending proposed listings within that

time. Most of the outstanding proposed

listings are for species determined to

face high-magnitude threats (priority 1–

6 under the 1983 listing priority

guidelines). Once the backlog of

proposed species that face highmagnitude threats has been brought

under control, the Service will rescind

this guidance and return to a more

typical implementation of section 4 that

also includes preparation of proposed

listings, delistings, and processing of

petitions.

The court-approved Settlement

Agreement in Fund for Animals v.

Lujan, Civ. No. 92–800 (GAG) (D.D.C.,

Dec. 15, 1992) discussed by Glitzenstein

et al. in their comments illustrates the

problem posed by competing resource

demands. That agreement requires the

Service to resolve the conservation

status of 443 candidate species (either

by the publication of a proposed listing

rule or the publication of a notice

stating reasons why listing is not

warranted) by September 30, 1996.

Resolution of their status would require,

for each species, publication of either a

proposed listing rule or a notice stating

reasons why listing is not warranted.

The agreement does not, of its own

terms, require final decisions on

listings. Therefore, while it in a sense

advances the process of formally

protecting species, full compliance with

the agreement will not bring the full

protections of the Act to any species.

Up to the time the funding for the

listing program became severely

constrained, the Service was on track to

achieve full compliance with this

agreement. The Service has published,

during the period covered by the

agreement, proposed listing rules for

359 candidate species.

Despite this progress, the Service is

now left with the following dilemma. If

it were to continue to expend money on

moving candidate species forward to the

proposed listing state in order to comply

with the settlement agreement, it would

deplete the entire $4 million listing

appropriation for fiscal year 1996.

Processing of proposed listing rules

requires the investment of considerable

time and resources. It involves

substantial research, status review,

coordination with State and local

governments and other interested

parties, and conducting public hearings

and peer review.

If the Service were to devote its entire

budget for the remainder of fiscal year

1996 to complying with the Fund for

Animals Settlement Agreement, the

available funds would be insufficient.

More important, if the Service were to

follow this course, it would be devoting

no resources to final listing decisions on

the 243 species that have already been

proposed for listing. Being so close to

receiving the full protection of the Act,

these species would remain unprotected

under this course of action, while all the

Service’s efforts in the listing process

would be bent toward deciding whether

to move candidate species closer to

proposed listing, where they receive

some limited procedural protection (the

section 7 conference requirement, see 16

U.S.C. 1536(a)(4)), but not the full

substantive and procedural protections

offered by final listing. This course of

action would also result in a still larger

backlog of proposed species awaiting

final action.

Put a little differently, this one courtapproved settlement agreement, absent

modification, would defeat a primary

purpose of lifting the listing

moratorium. The Service is

recommending, therefore, that the

Department of Justice seek appropriate

relief from the courts to allow the

highest priority proposed species to be

processed and, if appropriate, added to

the lists of endangered and threatened

wildlife and plants, consistent with the

provisions of this listing priority

guidance.

The FFA also expressed concern that

the Service has erected a series of

administrative hurdles that

unnecessarily slow the speed at which

species can be added to the list. This

comment does not pertain to the subject

matter of this notice, which deals with

the relative priority of various listing

activities undertaken by the Service,

rather than the procedures used to

accomplish those activities.

Nevertheless, the Service reaffirms it

will process decisions on proposed

species as expeditiously as possible,

consistent with the substantive and

procedural requirements of Section 4 of

the Act.

The administrative ‘‘hurdles’’ noted

by the FFA consist of joint policy

statements issued by the National

Marine Fisheries Service and the Fish

and Wildlife Service on July 1, 1994 (59

FR 34270–34275). Those joint policies

are aimed at ensuring that the Act’s

requirement to use the ‘‘best available

scientific and commercial data’’ in the

decision-making process on petitions

and proposed listing rules, see 16 U.S.C.

1533(b), is met and that appropriate

coordination occurs with State

conservation agencies and the public.
Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 / Rules and Regulations 24727

Final Listing Priority Guidance

The Service has considered all

comments and believes that some

revision of the interim guidance is

appropriate. The Service has decided to

assign all activities other than

emergency listings and final review of

pending proposals to Tier 3. This

decision is based on the reality that the

fiscal year 1996 appropriation is

insufficient to fully dispense with the

entire backlog of proposed species, such

that the Service is unlikely to undertake

any actions below Tier 2 prior to

September 30, 1996. The Service adopts

the revised listing priority guidance as

final guidance for assigning relative

priorities to listing actions conducted

under section 4 of the Endangered

Species Act, to remain in effect until

September 30, 1996, unless extended.

This guidance supplements, but does

not replace, the current listing priority

guidelines (48 FR 43098; September 21,

1983), which are silent on the matter of

prioritizing among different types of

listing activities. The terms of this

guidance are effective only on the listing

priorities of the Service. Listing actions

under the jurisdiction of the Department

of Commerce, National Marine Fisheries

Service will be processed according to

priorities established by that agency.

Section 4(b)(1) of the Act requires the

Service to use the ‘‘best available

scientific and commercial information’’

to determine those species in need of

the Act’s protections. It has been longstanding Service policy that the order in

which species should be processed for

listing is based primarily on the

immediacy and magnitude of the threats

they face. Given the large backlog of

proposed species, the backlog of

pending petitions, and the list of

candidate species awaiting proposal, it

will be extremely important for the

Service to focus its efforts on actions

that will provide the greatest

conservation benefits to imperiled

species in the most expeditious manner.

The Service will base decisions

regarding the order in which species

will be proposed or listed on the 1983

listing priority guidelines and the

priority guidance in this notice. These

decisions will be implemented by the

Regional Office designated with lead

responsibility for the particular species.

The Service allocates its listing

appropriation among the Regional

Offices based primarily on the number

of proposed and candidate species for

which the Region has lead

responsibility. This ensures that those

areas of the country with the largest

percentage of known imperiled biota

will receive a correspondingly high

level of listing resources. The 1983

listing priority guidelines and this

guidance will be applied at the

National, Regional, and local levels.

Given the workload-based allocation,

and the fact that the $4 million is not

sufficient to complete final

determinations on all pending proposed

listings, the Service does not anticipate

undertaking any actions in Tier 3 prior

to September 30, 1996.

To address the biological, budgetary,

and administrative issues noted above,

the Service therefore adopts the

following listing priority guidance.

The following sections describe a

multi-tiered approach that assigns

relative priorities, on a descending

basis, to actions to be carried out under

section 4 of the Act. The various types

of actions within each tier (such as new

proposed listings, administrative

petition findings, etc.) will be accorded

roughly equal priority, but the 1983

listing priority guidelines will be used

as applicable. The Service emphasizes

that this guidance is effective until

September 30, 1996 (unless extended by

future notice) and the agency looks

forward to returning to a more typical

implementation of the Act’s listing

responsibilities, to concurrently process

petition findings; proposed and final

listings, reclassifications, or delistings;

and critical habitat determinations, after

the backlogs have been reduced.

Tier 1—Emergency Listing Actions

The Service will immediately process

emergency listings for species that face

an imminent risk of extinction under

the emergency listing provisions of

section 4(b)(7) of the Act and will

prepare a proposed listing immediately

upon learning of the need to emergency

list. The Service will screen all petitions

and other status information it receives

to determine if an emergency situation

exists.

Tier 2—Processing Final Decisions on

Proposed Listings

In issuing the pending proposed

listings, the Service found that the vast

majority of the proposed species faced

high-magnitude threats. The Service

believes that focusing efforts on making

final decisions relative to these

proposed species will provide

maximum conservation benefits to those

species that are in greatest need of the

Act’s protections. Since only emergency

or final listings provide substantive

protection, the Service is of the strong

belief that this activity should take

precedence over new proposed listings,

reclassifications or delistings, petition

findings, and critical habitat

designations, which in comparison to

listing, provide limited conservation

benefits.

Setting Priorities Within Tier 2

Most of the pending proposed listings

deal with species that face highmagnitude threats, such that additional

guidance is needed to clarify the relative

priorities within Tier 2. Proposed rules

dealing with taxa deemed to face

imminent, high-magnitude threats will

have the highest priority within Tier 2.

The Service will promptly review the

backlog of 243 proposed species and

each Region will reevaluate the

immediacy and magnitude of threats

facing all species that have been

proposed for listing and revise the

species’ listing priority assignments

accordingly. Those with the highest

listing priority will be processed first.

To further prioritize among the Tier 2

actions, proposed listings that cover

multiple species will be processed

based on the most urgent listing priority

of the component species and multispecies packages will have priority over

single-species proposed rules with equal

priority unless the Service has reason to

believe that the single-species proposal

should be processed to avoid possible

extinction. Furthermore, in those cases

where a proposed listing for a highpriority species also includes other

species with lower listing priorities, the

listing package will not be disassembled

to deal only with the high priority

species.

Due to unresolved questions or to the

length of time since proposal, the

Service may determine that additional

public comment or hearings are

necessary before issuing a final decision

for some Tier 2 actions. If the listing

priorities are equal, proposed listings

that can be quickly completed (based on

factors such as few public comments to

address or final decisions that were

almost complete prior to the

moratorium) will 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 should be

processed first.

Tier 3—All Other Listing Actions,

Including Processing Reclassifications

and Delistings, New Proposed Listings,

Petition Findings, and Critical Habitat

Designations

While the backlog of candidate

species has been reduced substantially

since 1992, the Service has determined

that 182 species warrant issuance of

proposed listings. The Act directs the
24728 Federal Register / Vol. 61, No. 96 / Thursday, May 16, 1996 / Rules and Regulations

Service to make ‘‘expeditious progress’’

in adding new species to the lists and

thereby necessitates steady work in

reducing the number of outstanding

candidate species. Issuance of new

proposed listings is the first formal step

in the regulatory process for listing a

species. However, this step provides

only limited conservation benefits and

the Service believes that issuance of

new proposed listings, even for species

facing imminent, high-magnitude

threats, should therefore be afforded

lower priority so long as a large backlog

exists of proposed listings for species

facing high-magnitude threats.

The Service will conduct a

preliminary review of any petition to

list a species or change a threatened

species to endangered status to

determine if an emergency situation

exists or if the species would probably

be assigned a high listing priority upon

completion of a status review. If the

initial screening indicates an emergency

situation the action will be elevated to

Tier 1. The historical record on listing

petitions reveals that fewer than 25

percent of all petitions are found to

warrant listing.

Processing reclassifications and

delistings can provide welcome

regulatory relief. The Service regrets

that such activities must be accorded

Tier 3 priority due to the limited

appropriations provided by Congress

and the need to devote scarce funds to

carry out the overall protective purposes

of the Act.

Designation of critical habitat

consumes large amounts of the Service’s

listing appropriation and generally

provides only limited conservation

benefits beyond those achieved when a

species is listed as endangered or

threatened. Because critical habitat

protections apply only to Federal

actions, situations where designating

critical habitat provides additional

protection beyond that provided by the

jeopardy prohibition of section 7 are

rare. It is critical during this period to

maximize the conservation benefit of

every dollar spent in the listing activity.

The relatively small amount of

additional protection that is gained by

designating critical habitat for species

that are already listed is greatly

outweighed by providing the

protections included in sections 7 and

9 to newly-listed species. Therefore, the

Service will place higher priority on

addressing species that presently have

no protection under the Act rather than

devoting limited resources to the

expensive process of designating critical

habitat for species already protected by

the Act.

Rules and Findings Currently Near

Completion

The Headquarters Office will

promptly process any draft final rules to

add species to or remove species from

the lists, draft proposed listings or

delistings, draft petition findings, draft

proposed or final critical habitat

determinations, and draft withdrawal

notices that were in the Washington

Office prior to the date of this notice but

could not be processed because of the

funding constraints or the moratorium.

These actions will require little

additional work to complete and the

Service believes it to be cost-effective to

finish up these actions that were

inadvertently delayed by the funding

constraints. The anticipated number of

such actions is fewer than ten.

Notifying the Courts on Matters in

Litigation

The Service will assess the relative

priority of all section 4 petition and

rule-making activities that are the

subject of active litigation using this

guidance and the 1983 listing priority

guidelines. In many cases, simply

identifying the tier in which an activity

falls will suffice to determine whether

the Service will undertake that action

during the time this priority guidance is

in effect. The Service, through the Office

of the Solicitor, will then notify the

Justice Department of its priority

determination and request that

appropriate relief be requested from

each district court to allow those species

with the highest biological priority to be

addressed first. To the extent that the

courts do not defer to the Service’s

priority guidance and the 1983 listing

priority guidelines, the Service will of

course comply with court orders despite

any conservation disruption that may

result.

The Service will not elevate the

priority of proposed listings for species

simply because they are subjects of

active litigation. To do so would let

litigants, rather than expert biological

judgments, control the setting of listing

priorities. The Regional Office with

responsibility for processing such

packages will need to determine the

relative priority of such cases based

upon this guidance and the 1983 listing

priority guidelines and furnish

supporting documentation that can be

submitted to the relevant Court to

indicate where such species fall in the

overall priority scheme.

Authority

The authority for this notice is the

Endangered Species Act of 1973, as

amended, 16 U.S.C. 1531 et seq.

Dated: May 10, 1996.

Mollie Beattie,

Director, Fish and Wildlife Service.

[FR Doc. 96–12243 Filed 5–15–96; 8:45 am]

BILLING CODE 4310–55–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 658

[I.D. 050896B]

Shrimp Fishery of the Gulf of Mexico;

Texas Closure

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Adjustment of the beginning

date of the Texas closure.

SUMMARY: NMFS announces an

adjustment of the beginning date of the

annual closure of the shrimp fishery in

the exclusive economic zone (EEZ) off

Texas. The closure is normally from

May 15 to July 15 each year. This year

the closure will begin on June 1, 1996.

The Texas closure is intended to

prohibit the harvest of brown shrimp

during the major period of emigration

from Texas estuaries to the Gulf of

Mexico so the shrimp may reach a

larger, more valuable size and to prevent

the waste of brown shrimp that would

be discarded in fishing operations

because of their small size.

EFFECTIVE DATE: The EEZ off Texas is

closed to trawl fishing from 30 minutes

after sunset, June 1, 1996, to 30 minutes

after sunset, July 15, 1996, unless the

latter date is changed through

notification in the Federal Register.

FOR FURTHER INFORMATION CONTACT:

Michael E. Justen, 813–570–5305.

SUPPLEMENTARY INFORMATION: The Gulf

of Mexico shrimp fishery is managed

under the Fishery Management Plan for

the Shrimp Fishery of the Gulf of

Mexico (FMP). The FMP was prepared

by the Gulf of Mexico Fishery

Management Council and is

implemented by regulations at 50 CFR

part 658 under the authority of the

Magnuson Fishery Conservation and

Management Act. The FMP

implementing regulations at 50 CFR

658.26 describe the Texas closure and

provide for adjustments to the beginning

and ending dates by the Director,

Southeast Region, NMFS, under

specified criteria.

Biological data collected by the Texas

Parks and Wildlife Department indicate