[Federal Register Volume 61, Number 96 (Thursday, May 16, 1996)]
[Rules and Regulations]
[Pages 24722-24728]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12243]



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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.

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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1995, rescinded $1.5 million from the Service's then-current listing 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

[[Page 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-in-force. 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,

[[Page 24724]]

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. Sec. 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

[[Page 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 fully-funded 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.

[[Page 24726]]

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 short-term 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 high-magnitude 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 court-approved 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.

[[Page 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 long-standing 
Service policy that the order in which species should be processed for 
listing is based primarily on the immediacy and magnitude of the 
threats they face. Given the large 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 
high-magnitude 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 multi-species 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 high-
priority 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

[[Page 24728]]

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