[Federal Register: October 22, 1999 (Volume 64, Number 204)]
[Page 57114-57119]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

Endangered and Threatened Wildlife and Plants; Final Listing 
Priority Guidance for Fiscal Year 2000

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice.


SUMMARY: We (the U.S. Fish and Wildlife Service) announce final 
guidance for assigning relative priorities to listing actions conducted 
under section 4 of the Endangered Species Act of 1973 as amended (Act) 
during fiscal year (FY) 2000. We have returned to a more balanced 
listing program and have reduced the serious backlogs that remained 
from the 1995-96 moratorium and funding rescission. Nevertheless, a 
method for prioritizing among the various listing activities remains 
necessary because it is still extremely important for us to focus our 
efforts on listing actions that will provide the greatest conservation 
benefits to imperiled species in the most expeditious and biologically 
sound manner. We will no longer recognize tiers and, nationwide, we 
will undertake all listing activities in all priority levels 
simultaneously; however, we will observe relative priorities among 
various listing actions as described in this guidance. The highest 
priority will be processing emergency listing rules for any species 
determined to face a significant and imminent risk to its well being. 
Second priority is the processing

[[Page 57115]]

of final determinations on proposed additions to the lists of 
endangered and threatened wildlife and plants. Third priority is 
processing new proposals to add species to the lists. The processing of 
administrative petition findings (petitions filed under section 4 of 
the Act) is the fourth priority. The processing of critical habitat 
determinations (prudency and determinability decisions) and proposed or 
final designations of critical habitat will be funded separately from 
other section 4 listing actions and will no longer be subject to 
prioritization under Listing Priority Guidance. Critical habitat 
determinations, which were previously included in final listing rules 
published in the Federal Register, may now be processed separately, in 
which case stand alone critical habitat determinations will be 
published as notices in the Federal Register. We will undertake 
critical habitat determinations and designations during FY 2000 as 
conservation efforts demand and in light of resource constraints. 
Delisting activities are no longer part of the listing program and have 
been undertaken by the recovery program since FY 1999. In addition, all 
listing and delisting of foreign species are carried out by the 
Service's International Affairs program and are not addressed in this 

DATES: This Listing Priority Guidance is effective immediately upon 
publication and will remain in effect until modified or terminated. 
This is internal Service guidance that will neither invoke nor relieve 
restrictions on the private or public sector. Therefore, in accordance 
with 5 U.S.C. 553(d), we have determined that good cause exists to make 
the effective date of this notice immediate.

ADDRESSES: Submit questions regarding this guidance to the Chief, 
Division of Endangered Species, U.S. Fish and Wildlife Service, 1849 C 
Street, NW, Mailstop ARLSQ-420, Washington, D.C. 20240.

FOR FURTHER INFORMATION CONTACT: Nancy Gloman, Chief, Division of 
Endangered Species, U.S. Fish and Wildlife Service, 703-358-2171 (see 
ADDRESSES section).



    We adopted guidelines on September 21, 1983 (48 FR 43098-43105), 
that govern the assignment of priorities to species under consideration 
for listing as endangered or threatened under section 4 of the Act. We 
adopted those guidelines to establish a rational system for allocating 
available appropriations to the highest priority species when adding 
species to the lists of endangered or threatened wildlife and plants or 
reclassifying threatened species to endangered status. The system 
places greatest importance on the immediacy and magnitude of threats, 
but also factors in the level of taxonomic distinctiveness by assigning 
priority in descending order to monotypic genera, full species, and 
subspecies (or, equivalently, distinct population segments of 
vertebrates). However, this system does not provide for prioritization 
among different types of listing actions such as preliminary 
determinations, proposed listings, and final listings.
    Serious backlogs of listing actions resulted from the 1995-96 
listing moratorium and funding rescission. The enactment of Public Law 
104-6 in April 1995 rescinded $1.5 million from our budget for carrying 
out listing activities through the remainder of FY 1995. Public Law 
104-6 prohibited the expenditure of the remaining appropriated funds 
for final determinations to list species or designate critical habitat 
which, in effect, placed a moratorium on those activities. For more 
than half of FY 1996, we operated without a final budget due to a 
series of continuing resolutions. Those continuing resolutions 
continued the moratorium and provided almost no funds for listing. The 
net effect of the moratorium and the limited funding provided by 
continuing resolutions was that our listing program was essentially 
shut down. The moratorium on final listings and the budget constraints 
remained in effect until April 26, 1996, when President Clinton 
approved the Omnibus Budget Reconciliation Act of 1996 and waived the 
moratorium. At that time, we had accrued a backlog of proposed listings 
for 243 species. The limited funding available for listing activities 
generally precluded petition processing and the development of proposed 
listings from October 1, 1995, through April 26, 1996.
    When the moratorium was lifted and funds were appropriated for the 
administration of the listing program, we faced the considerable task 
of allocating the available resources to the significant backlog of 
listing activities. The Final Listing Priority Guidance for FY 1996 was 
published on May 16, 1996 (61 FR 24722). We followed that three-tiered 
approach until the Final Listing Priority Guidance for FY 1997 was 
published on December 5, 1996 (61 FR 64475). The FY 1997 Listing 
Priority Guidance employed four tiers for assigning relative priorities 
to listing actions to be carried out under section 4 of the Act. Tier 
1, the highest priority, was the processing of emergency listings for 
species facing a significant risk to their well-being. Processing final 
decisions on pending proposed listings was assigned to Tier 2. Tier 3 
was to resolve the conservation status of species identified as 
candidates and processing 90-day or 12-month administrative findings on 
petitions to list or reclassify species from threatened to endangered 
status. Preparation of proposed or final critical habitat designations 
and processing reclassifications were assigned lowest priority (Tier 
4). We published Listing Priority Guidance for FY 1998 and 1999 on May 
8, 1998 (63 FR 25502), and employed a three-tiered system. Emergency 
actions comprised Tier 1, all other listing actions except critical 
habitat designation were included in Tier 2, and critical habitat 
designation was the lowest priority, or Tier 3.
    While operating the listing program under the Final FY 1998 and FY 
1999 Listing Priority Guidance, we focused our resources on completing 
Tier 2 activities. Two emergency listing actions (for the San 
Bernardino kangaroo rat (63 FR 3835) and Jarbidge population of bull 
trout (63 FR 42757)) were necessary in FY 1998. During FY 1998, we made 
final determinations for 57 species (47 final listings and 10 
withdrawals). As a result of this expeditious progress, only 84 
proposed species remained at the end of FY 1998 (including 42 newly 
proposed species). We published petition findings for 18 species (11 
90-day findings and seven 12-month findings). We proposed one species, 
the peregrine falcon in North America, for delisting during FY 1998. 
Since the end of FY 1998, and up to July 31, 1999, 38 final 
determinations, 18 proposed rules, 15 petition findings, five proposed 
delistings, one final delisting, and two proposed and three final 
critical habitat designations have been completed. The proposed 
critical habitat designations, Tier 3 activities, were undertaken to 
comply with court orders. However, we did make critical habitat 
determinations (prudency and/or determinability decisions) for each 
final listing during FY 1998 and through July 30, 1999.
    Despite the return to a more balanced listing program, backlogs 
remain. As of July 31, 1999, there are 66 proposed species awaiting 
final determinations, and 154 candidates awaiting resolution of their 
conservation status. Fifty-three species have pending 90-day petition 
findings and 22 species have pending 12-month petition findings. 
Various district courts and appellate courts have

[[Page 57116]]

remanded not prudent critical habitat determinations to us for 
reconsideration. Currently, we have to reconsider not prudent 
determinations for 245 Hawaiian Island plants and four vernal pool 
fairy shrimp that courts have remanded.
    As stated in the FY 1998 and FY 1999 Listing Priority Guidance, it 
is important to recognize that we face even greater backlogs in our 
responsibilities to implement other aspects of the Act. The section 7 
consultation and habitat conservation planning (HCP) backlogs continue 
to grow. The backlog of species awaiting Recovery Plans and the 
shortage of funding used for recovery implementation make the recovery 
backlog most severe. We base our funding requests on the workloads 
faced by all activities of the endangered species program. In FY 1999, 
the Department of the Interior requested significant increases in 
funding for all endangered species activities, but proportionally less 
for the listing program. The magnitude of the other endangered species 
backlogs exceeds the listing backlog, and was therefore reflected in 
the overall Department of the Interior funding request that included 
larger increases for the other endangered species programs.
    In enacting the Department of the Interior's FY 1999 Omnibus and 
Emergency Supplemental Appropriations Act (Public Law 105-277), 
Congress provided only modest increases. Congress included in the 
Department of the Interior's FY 1998 appropriation an express limit on 
the amount to be spent on listing actions (including the designation of 
critical habitat); that continues this year, and the limit is $5.756 
    Even with the gradual reduction of the backlogs of proposed species 
pending final action, candidate species awaiting proposal, and 
petitions awaiting administrative findings, it is extremely important 
for us to focus our efforts on listing actions that will provide the 
greatest conservation benefits to imperiled species in the most 
expeditious and biologically sound manner. It has been longstanding 
policy (1983 Listing and Recovery Priority Guidelines (48 FR 43098)) 
that the order in which species should be processed for listing is 
based primarily on the immediacy and magnitude of the threats they 
face. We will continue to base decisions regarding the order in which 
species will be proposed or listed on the 1983 listing priority 
guidelines. We also must continue to prioritize among types of listing 
actions and this level of relative prioritization is the guidance 
provided below.

Analysis of Public Comments

    On May 20, 1999, we published a notice in the Federal Register (63 
FR 10931) announcing proposed listing priority guidance for FY 1999 and 
FY 2000 and solicited public comment on that proposed guidance. We 
received two letters of comment on the proposed guidance (in two 
separate mailings) within the 30-day comment period specified in the 
Notice of Proposed LPG for FY 1999 and 2000. One letter was generally 
in favor of the proposed guidance and one letter was generally opposed. 
A summary of the issues raised and our response follows.
    Issue 1: The order for processing species listings should be based 
on the immediacy and magnitude of the threats facing the species, as 
outlined in the proposed Listing Priority Guidance. The priorities for 
listing proposed in the guidance (emergency listings, final decisions, 
resolving the status of candidate species, processing administrative 
petition findings) will help to ensure the greatest conservation 
benefits for imperiled species in the most expeditious and biologically 
sound manner.
    Response 1. We agree that the priorities outlined in the proposed 
Listing Priority Guidance are sound. We developed our priority system 
in order to provide the Act's protection to the most imperiled species 
as quickly as possible. We received no additional information or 
comments during the comment period that required the re-examination or 
revision of these priorities.
    Issue 2. Delisting activities are most appropriately undertaken by 
the Service's Recovery Program, and the Service should provide a 
funding amount that will be allocated within the Recovery Program 
specifically for completing delisting actions.
    Response 2. We agree that delisting actions should be accomplished 
through our recovery program, instead of the listing program. Although 
delisting activity is not a separate line item in Service budget 
requests or Congressional appropriations, beginning in 1999, work on 
delisting was included in the line item for the recovery program. Prior 
to that time it was included in the line item for the listing program. 
For Fiscal Year 1999, a total of $1 million was allocated to our 
regions for work specifically related to delisting or reclassification 
actions, and we plan to continue allocating a specific amount of 
recovery funds for this purpose in future years.
    Issue 3. Many of the Service's administrative and funding problems 
related to listing activities are indicative of the larger problem of 
insufficient attention to species prior to the need to list them. The 
Service should continue to construct conservation agreements and 
habitat conservation plans, and should seek additional ways to address 
conservation issues proactively, in a manner that will preclude the 
need for listing whenever possible.
    Response 3. Efforts to conserve species and their habitats prior to 
the need to list are extremely important. Initiating or expanding 
conservation actions before a species and its habitat are critically 
imperiled makes it more likely that simpler, more cost-effective 
conservation options will still be available and that conservation will 
ultimately be successful. In addition, removing the need to list a 
species through early conservation actions maintains land use and 
development flexibility for landowners. Our candidate conservation 
program involves a collaborative approach with States and Territories, 
other Federal agencies, and the private sector to identify species that 
are in need of conservation actions. In cooperation with our partners, 
we plan and implement conservation actions to stabilize or conserve 
species and their habitats, thus reducing and removing threats so that 
Federal listing is not necessary. We note that our efforts to conserve 
candidate species do not come at the expense of the listing program, as 
candidate conservation is funded by a separate budget line-item.
    We recently published final policies on Safe Harbor Agreements and 
Candidate Conservation Agreements with Assurances (CCAA) (June 17, 
1999; 64 FR 32726). These Agreements are becoming extremely important 
and effective candidate conservation tools. The CCAA policy offers 
assurances as an incentive for non-Federal property owners to implement 
conservation measures for species that are proposed for listing, 
species that are candidates for listing, and species that are likely to 
become candidates in the near future. In turn, property owners receive 
assurances that additional conservation measures will not be required 
and additional land, water, or resource use restrictions will not be 
imposed should the species become listed in the future. We agree that 
proactive conservation actions are vitally important and should be 
initiated as early as possible. We encourage Federal, State, and 
private partners to continue working with us to remove and reduce 
threats to imperiled species so that listings may be precluded.

[[Page 57117]]

    Issue 4. If the Service's Listing Priority Guidance permits 
statutorily defined deadlines to be exceeded, the Listing Priority 
Guidance violates the Act. The Service should establish a listing 
procedure that guarantees that each deadline will be met. This 
procedure should include the following: uniform intermediate deadlines 
that Service listing staff must meet, elimination of multiple 
intermediate reviews, elimination of multiple public comment periods 
and comment period extensions, and elimination of reviews as required 
under various Executive Orders (Executive Orders provide that they 
cannot cause non-compliance with statutes). If necessary, imperfect 
decisions can be made in order to comply with the mandated deadlines, 
and remedied later with revisions.
    Response 4. Contrary to the commenter's assertion, the Listing 
Priority Guidance does not ``permit'' statutorily defined deadlines to 
be exceeded. It is an unfortunate fact that some of those deadlines 
will be exceeded with or without the Listing Priority Guidance. The 
conflict between the listing actions required and deadlines imposed by 
the Act and the appropriations provided by Congress make it impossible 
for the Service to avoid delaying compliance with the Act. Therefore, 
until Congress provides adequate funding, the relevant question is not 
whether we will delay taking some listing actions required by the Act, 
but what actions will we delay and with respect to what species. In the 
Listing Priority Guidance, we have created a uniform policy for 
answering these questions. The Listing Priority Guidance improves our 
efficiency, thereby minimizing the need for such delays, and helps us 
determine which delays of the Act will be of the least consequence to 
imperiled species. Thus, the LPG is our blueprint for working to comply 
with the Act while providing the most conservation benefit in 
furthering the purposes of the Act.
    We have established a listing procedure through which we endeavor 
to meet statutory and regulatory guidelines to the extent made possible 
by the annual appropriations for listing activities. We are committed 
to making listing determinations based on the best available scientific 
and commercial information as required by the Act. Violation of this 
standard is no less a violation of the Act than missing a statutory 
deadline. The opening of public comment periods is necessary to ensure 
that the public has ample opportunity to provide us with any pertinent 
information of which we may not be aware. Our agency review process, 
which does contain internal deadlines for certain review stages, is 
necessary to ensure that the best available information has been used 
to make the most appropriate listing decision. In addition, various 
Executive Orders, such as Executive Order 12866, require that we obtain 
external review prior to publication of proposed and final listing 
rules. Under this Executive Order, the Office of Management and Budget 
must review significant regulatory actions. Coordinated review of 
agency rulemaking is necessary to ensure that regulations are 
consistent with applicable law and the President's priorities, and that 
decisions made by one agency do not conflict with the policies or 
actions taken or planned by another agency. This Executive Order 
requires the Office of Management and Budget to complete its review 
within 90 calendar days of receipt of the rule. In cases where a 
statutory or court-ordered deadline is applicable, this Executive Order 
directs agencies to schedule rulemakings, to the extent practicable, so 
as to permit sufficient time for the Office of Management and Budget to 
complete its review prior to the deadline. In some cases where courts 
have imposed very short deadlines for completion of rules, this has not 
been practicable. Lastly, we regularly review and revise the status of 
species after they have been listed when additional information is 
obtained that indicates such revision is appropriate. We will not 
knowingly issue ``imperfect decisions'' in order to expedite listing 
actions to meet mandated deadlines as suggested by the commenter.
    Issue 5. The proposed Listing Priority Guidance states that 
``[c]ritical habitat determinations, which were previously included in 
final listing rules published in the Federal Register, may now be 
processed separately.'' The Act does not allow this separation.
    Response 5. It is true that Section 4(a)(3) of the Act requires 
that critical habitat be designated concurrently with listing to the 
maximum extent prudent and determinable. However, as discussed in our 
response to Issue 4, we are unable to comply with all of the 
requirements of the Act at current funding levels. In some cases, 
making prudency and determinability findings, as well as actual 
critical habitat designations, will divert limited listing resources 
from other listing actions required by the Act. Therefore, in 
appropriate cases, we will delay all critical habitat determinations 
for a species in order to comply with other statutory requirements that 
provide greater conservation benefit in furtherance of the purposes of 
the Act.
    Issue 6. The Service's position that critical habitat is relatively 
unimportant is contradicted by the Act and its legislative history.
    Response 6. We believe that protection of habitat is paramount to 
successful species' conservation. On June 14, 1999, we published a 
Notice of Intent to Clarify the Role of Habitat in Endangered Species 
Conservation (64 FR 31871). As we stated in that notice, we believe 
that the process of habitat protection via critical habitat designation 
is most properly examined in the broad context of the overall 
importance of habitat in endangered species conservation.

    Habitat considerations are a key part of virtually every process 
called for in the Act. We describe the habitat needs of species, and 
threats to habitat, in detail in all listing rules. In fact, Factor 
A of the ``Summary of Factors Affecting the Species'' section of all 
proposed and final listing rules discusses ``The Present or 
Threatened Destruction, Modification, or Curtailment of the Habitat 
or Range'' of the species. For most species, the threats to habitat 
are the most important consideration when determining if a species 
qualifies for protection under the Act. Habitat considerations are 
prominent in all recovery plans, and recovery plans include maps and 
descriptions of the habitat needed to recover the species. The 
section 7 consultation process addresses the dynamic and seasonal 
characteristics of the habitat needs of listed species. New 
information concerning species' habitat use becomes available 
throughout the listing, consultation, habitat conservation planning, 
and recovery processes. It is essential that we consider current and 
complete habitat information in these processes. The analysis of 
habitat alteration and/or destruction is the cornerstone of the 
Act's section 7 consultation process and the section 10 habitat 
conservation planning process; this is true for species that have 
designated critical habitat, as well as for those species that do 
not. Habitat is identified, communicated to affected parties, 
protected, and conserved through all phases of applying the Act's 
protections. The conservation and recovery of imperiled species are 
dependent upon habitat protection and restoration. When species are 
listed as threatened or endangered, the habitats or ecosystems upon 
which they depend are recognized. Conservation and recovery actions 
are directed not only to the imperiled species, but to the species' 
habitat, as well. (64 FR 31871).

    The designation of critical habitat has only one regulatory impact: 
under section 7(a) (2), Federal agencies must, in consultation with us, 
insure that any action they authorize, fund, or carry out is not likely 
to result in the destruction or adverse modification of critical 
habitat. Destruction or adverse modification is a direct or indirect 
alteration that appreciably diminishes the value of critical habitat 
for both the

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survival and recovery of a listed species. However, section 7 also 
prohibits Federal agencies from taking actions that jeopardize the 
continued existence of a listed species. To jeopardize the continued 
existence of a species is to engage in an action that reasonably would 
be expected, directly or indirectly, to reduce appreciably the 
likelihood of both the survival and recovery of a listed species in the 
wild by reducing the reproduction, numbers, or distribution of species. 
For almost all species, the section 7 critical habitat adverse 
modification and jeopardy standards are the same, resulting in an 
unnecessarily duplicative and expensive regulatory process.
    Therefore, while we firmly believe that attention to and protection 
of habitat is paramount to successful conservation actions, we have 
found that, in most circumstances, the designation of ``official'' 
critical habitat is of little additional value for most listed species.
    Issue 7. The Service's position that it will not allow litigation 
to affect its priorities violates the Act's citizen suit provision, and 
unnecessarily burdens the courts and others with protracted litigation. 
The Service should respond to 60-day notices and enter into settlement 
agreements to avoid protracted litigation.
    Response 7. As we stated in the proposed Listing Priority Guidance 
(64 FR 27596), we will not adjust our biological priorities to reflect 
the threat of litigation. This position does not violate the Act's 
provision that allows for citizen suits. According to section 11 (g) 
(1) (c), any person may commence a civil suit on his own behalf against 
the Secretary where there is alleged a failure of the Secretary to 
perform any act or duty under section 4 which is not discretionary with 
the Secretary. In cases where such citizen suits have been filed 
regarding the processing of listing actions in accordance with our 
Listing Priority Guidance, we continue to seek from the courts 
recognition of our need to allocate our limited listing budget so as to 
best fulfill the spirit and intent of the Act. We will, of course, 
comply with all court orders. When possible and when consistent with 
our biologically-based priorities, we have entered into, and will 
continue to seek settlement agreements to resolve outstanding 
litigation. However, adopting the commenter's position would result in 
allocating scarce resources based on litigation rather than biology. 
For instance, in response to litigation, we might spend our entire 
listing budget designating critical habitat for species already listed 
and therefore subject to most of the protections of the Act, while a 
gravely imperilled species without the benefit of an interested 
litigant would be denied the Act's protection.

Final Listing Priority Guidance for Fiscal Year 2000

Relative Listing Priorities

    Nationwide in FY 2000, we will undertake the full array of listing 
actions consistent with the relative priority guidance described below. 
However, some Regions and some Field Offices within Regions have 
significant backlogs of proposed species, candidates, and petitions. 
Therefore, additional guidance is needed to clarify the relative 
priorities among the various listing activities.
    Completion of emergency listings for species facing a significant 
risk to their well-being remains our highest priority. Emergency 
actions take precedence over all other section 4 listing actions. With 
the exception of emergency actions, all other listing activities may be 
undertaken simultaneously. Regions should assign relative priorities 
for their remaining non-emergency listing actions based on the 
following priority levels. Processing final decisions on pending 
proposed listings are Priority 2 actions. Priority 3 actions are the 
resolution of the conservation status of species identified as 
candidates (resulting in a new proposed rule or a candidate removal). 
Priority 4 actions are the processing of 90-day or 12-month 
administrative findings on petitions.
    The processing of petitions requesting critical habitat 
designations and the preparation of proposed and final critical habitat 
determinations and/or designations will no longer be prioritized with 
other section 4 listing actions. Critical habitat actions will be 
conducted within a specified amount of funding ($979,000 (17% of total) 
for FY99) which has been set aside out of the listing subactivity.
Priority 1--Emergency Listing Actions
    We will immediately process emergency listings for any species of 
fish, wildlife, or plant that faces a significant and imminent risk to 
its well-being under the emergency listing provisions of section 
4(b)(7) of the Act. This includes preparing a proposed rule to list the 
species. Every petition to list a species or reclassify a threatened 
species to endangered will be reviewed in order to determine whether an 
emergency situation exists. If the initial review indicates an 
emergency situation, the action will be a Priority 1 action and an 
emergency rule to list the species will be prepared immediately. 
Emergency listings are effective for 240 days. A proposed rule to list 
the species is usually published concurrently with the emergency rule 
to ensure that the final listing and full protection of the Act are 
established before the 240-day emergency protection expires. If the 
initial review does not indicate that emergency listing is necessary, 
processing of the petition will be assigned to Priority 4 as discussed 
Priority 2--Processing Final Decisions on Proposed Listings
    Proposed species are just one step away from receiving the most 
important protections under the Act. The majority of the unresolved 
proposed species face high-magnitude threats. By focusing our efforts 
on completing final determinations, we can provide the maximum 
conservation benefits to the largest numbers of those species that are 
in greatest need of the Act's protections. As proposed listings are 
reviewed and processed, they will be completed through publication of 
either a final listing or a withdrawal of the proposed listing. 
Completion of a withdrawal may not appear consistent with the 
conservation intent of this guidance. However, once a determination not 
to make a proposed listing final has been made, publishing the 
withdrawal of the proposed listing takes minimal time and 
appropriations. Thus, it is more cost effective and efficient to bring 
closure to the proposed listing than it is to postpone the action and 
take it up at some later time.
Priority 3--Resolving the Conservation Status of Candidate Species 
(Resulting in a New Proposed Rule or a Candidate Removal)
    The publication of new proposals (candidate conservation 
resolution) to add species to the lists of threatened and endangered 
species has significant conservation benefit. Under the 1983 listing 
priority guidelines, proposed rules dealing with taxa believed to face 
imminent, high-magnitude threats have the highest relative priority 
within Priority 3. If an emergency situation exists, the species will 
be elevated to Priority 1. Proposed listings that cover multiple 
species facing high-magnitude threats have priority over single-species 
proposed rules unless we have reason to believe that the single-species 
proposal should be processed first to avoid possible extinction. 
Proposed listings for species facing high-magnitude threats that can be 
quickly completed have higher priority than proposed rules for species 
with equivalent listing

[[Page 57119]]

priorities that require extensive work to complete.
    Issuance of a new proposed listing is the first formal step in the 
regulatory process for listing a species. It provides some protection 
in that all Federal agencies must ``confer'' with us on actions that 
are likely to jeopardize the continued existence of proposed species. 
The resolution of a candidate species' conservation status will be 
accomplished through the publication of new proposed rules or the 
processing of candidate removal forms (which, when signed by the 
Director, remove species from the candidate list). Candidate species 
include species petitioned for listing, for which we have made a 
warranted but precluded finding pursuant to section 4(b)(3)(B)(iii) of 
the Act.
Priority 4--Processing Administrative Findings on Petitions to Add 
Species to the Lists and Petitions to Reclassify Species
    The processing of 90-day petition findings and 12-month petition 
findings to add species to the lists or reclassify species will be 
Priority 4 activities. Once a 90-day petition finding is published, we 
will make every reasonable effort to complete the 12-month finding in 
the appropriate time frame. When it is practicable for us to complete a 
90-day finding within 90 days, we are statutorily afforded a 12-month 
period from the receipt of a petition to completion of the 12-month 
finding. However, in those cases in which it is not practicable for us 
to complete a 90-day finding within 90 days of receipt of the petition, 
after the 90-day finding is completed, we will require 9 months to 
complete a thorough biological status review and issue a 12-month 

Allocating Listing Resources Among Regions

    We allocate the listing appropriation among our seven Regions based 
strictly on the number of proposed and candidate species for which the 
Region has lead responsibility, with the exception of providing minimum 
``capability funding'' for each Region. The objective is to ensure that 
those areas of the country with the largest percentage of known 
imperiled species will receive a correspondingly high level of listing 
resources. Our experience in administering the Act for the past twenty 
five years has shown, however, that we need to maintain at least a 
minimal listing program in each Region in order to respond to 
emergencies and to retain a level of expertise that permits the overall 
program to function effectively over the longer term, thus the 
``capability funding'' to each Region. In the past, when faced with 
seriously uneven workloads, we have experimented with reassigning 
workloads from heavily burdened Regions to less burdened Regions. This 
approach has proven to be very inefficient because the expertise 
developed by a biologist who works on a species' listing is useful in 
recovery planning and other conservation activities for that species. 
Additionally, biologists in a Region are familiar with other species in 
that Region that interact with the species proposed for listing, and 
that knowledge is useful in processing a final decision. For these 
reasons, we have found it unwise to reassign one Region's workload to 
personnel in another Region. Because we must maintain a listing program 
in each Region, Regions with few outstanding proposed listings may be 
able to address more lower priority listing actions, while Regions with 
many outstanding proposed listings will use most of their allocated 
funds on Priority 2 actions (finalizing proposed listings) or Priority 
3 actions (completing new proposals to add species to the lists). It is 
the responsibility of individual Regions to recognize their workloads 
and backlogs and undertake priorities (1-4) as their regional workloads 
permit. We will provide critical habitat funding on a project-by-
project basis in FY 2000.

Addressing Matters in Litigation

    The numerous statutory responsibilities we bear under the Act do 
not come with an unlimited budget. We are sometimes required to make 
difficult choices about how to prioritize carrying out those statutory 
responsibilities in order to make the best use of our limited 
resources. Under these circumstances, technical compliance with the 
various sections of the Act with respect to one species can mean 
failure to comply with the other technical requirements of the Act for 
the same or another species. This guidance is part of a continuing 
effort to strive to achieve compliance with the Act in the manner that 
best fulfills the spirit of the Act, using our best scientific 
    Individuals or organizations occasionally bring suit against us for 
failing to carry out specific actions with regard to specific species. 
Many of these suits question our judgment and priorities, and seek 
compliance with the Act in circumstances that do not, in our judgment, 
lead to the best use of our resources to provide the maximum 
conservation benefit to all species. In many of the outstanding section 
4 matters currently in litigation, the effect of what the plaintiff 
seeks is to require us to postpone or sacrifice conservation actions 
that we believe would have major conservation benefits in favor of 
actions that we believe would have lesser conservation benefits.
    In no case will we adjust our biological priorities to reflect the 
threat of litigation. We have sought and will continue to seek from the 
courts recognition of our need to allocate our limited listing budget 
so as to best fulfill the spirit of the Act. We will, of course, comply 
with all court orders.

National Environmental Policy Act

    We do not consider the implementation of this guidance to be a 
major Federal action significantly affecting the quality of the human 
environment for the purposes of the National Environmental Policy Act 
(NEPA) of 1969 (42 U.S.C. 4321 et seq.). Further, the Department of the 
Interior's Departmental Manual (DM) categorically excludes from 
consideration under NEPA, ``Policies, directives, regulations, and 
guidelines of an administrative, financial, legal, technical, or 
procedural nature or the environmental effects of which are too broad, 
speculative, or conjectural to lend themselves to meaningful analysis 
and will be subject later to the NEPA process, either collectively or 
case-by-case.'' This guidance clearly qualifies as an administrative 
matter under this exclusion. We also believe that the exceptions to 
categorical exclusions (DM 2 Appendix 2) would not be applicable to 
such a decision, especially in light of environmental effects for such 


    The authority for this notice is the Endangered Species Act of 
1973, as amended, 16 U.S.C. 1531 et seq.

    Dated: September 15, 1999.
Marshall P. Jones,
Acting Director,
U.S. Fish and Wildlife Service.
[FR Doc. 99-27689 Filed 10-21-99; 8:45 am]