[Federal Register: March 5, 1998 (Volume 63, Number 43)]
[Page 10931-10935]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

Endangered and Threatened Wildlife and Plants; Proposed Listing 
Priority Guidance for Fiscal Years 1998 and 1999

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice.


SUMMARY: The U.S. Fish and Wildlife Service (Service) announces 
proposed guidance for assigning relative priorities to listing actions 
conducted under section 4 of the Endangered Species Act (Act) during 
fiscal year (FY) 1998 and FY 1999. Although the Service is returning to 
a more balanced listing program, serious backlogs remain and a method 
of prioritizing among the various activities is necessary. Highest 
priority will be processing emergency listing rules for any species 
determined to face a significant and imminent risk to its well being. 
Second priority will be processing final determinations on proposed 
additions to the lists of endangered and threatened wildlife and 
plants; the processing of new proposals to add species to the lists; 
the processing of administrative petition findings to add species to 
the lists, delist species, or reclassify listed species (petitions 
filed under section 4 of the Act); and a limited number of delisting 
and reclassifying actions. Processing of proposed or final designations 
of critical habitat will be accorded the lowest priority.

DATES: Comments on this guidance will be accepted until April 6, 1998. 
The FY 1997 Listing Priority Guidance (extended on October 23, 1997) 
will remain in effect until the Final FY 1998 and FY 1999 guidance is 

ADDRESSES: Comments regarding this guidance should be addressed 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).



    The Service 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 Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et 
seq.). The Service adopted those guidelines to establish a rational 
system for allocating available appropriations to the highest priority 
species when adding species to the lists of endangered or threatened 
wildlife and plants or reclassifying threatened species to endangered 
status. The system places greatest importance on the immediacy and 
magnitude of threats, but also factors in the level of taxonomic 
distinctiveness by assigning priority in descending order to monotypic 
genera, full species, and subspecies (or equivalently, distinct 
population segments of vertebrates). However, this system does not 
provide for prioritization among different types of listing actions 
such as preliminary determinations, proposed listings, and final 
    Serious backlogs of listing actions resulted from the 1995 funding

[[Page 10932]]

rescission and 1996 major reductions in funding for the listing program 
and from the 1995-96 listing moratorium. The enactment of Pub. L. 104-6 
in April 1995 rescinded $1.5 million from the Service's budget for 
carrying out listing activities through the remainder of FY 1995. Pub. 
L. 104-6 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. The net 
effect of the moratorium and reductions in funding was that the 
Service's listing program was essentially shut down. The moratorium on 
final listings and the budget constraints remained in effect until 
April 26, 1996, when President Clinton approved the Omnibus Budget 
Reconciliation Act of 1996 and exercised the authority that the Act 
gave him to waive the moratorium. At that time, the Service had accrued 
a backlog of proposed listings for 243 species. The extremely limited 
funding available to the Service for listing activities generally 
precluded petition processing and the development of proposed listings 
from October 1, 1995, through April 26, 1996.
    When the moratorium was lifted and funds were appropriated for the 
administration of the listing program, the Service faced the 
considerable task of allocating the available resources to the 
significant backlog of listing activities. The Final Listing Priority 
Guidance for FY 1996 was published on May 16, 1996 (61 FR 24722). The 
Service followed that three-tiered approach until the Final Listing 
Priority Guidance for FY 1997 was published on December 5, 1996 (61 FR 
64475). The FY 1997 Listing Priority Guidance employed four tiers for 
assigning relative priorities to listing actions to be carried out 
under section 4 of the Act. Tier 1, the Service's highest priority, was 
the processing of emergency listings for species facing a significant 
risk to their well-being. Processing final decisions on pending 
proposed listings was assigned to Tier 2. Tier 3 was to resolve the 
conservation status of species identified as candidates 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, activities which provide little or no additional 
conservation benefit to listed species, were assigned lowest priority 
(Tier 4).
    While operating the listing program under the Final FY 1997 Listing 
Priority Guidance, the Service focused its resources on issuing final 
determinations (Tier 2 listing activities); no Tier 1 actions 
(emergency listings) were required during FY 1997. During FY 1997, the 
Service made final determinations for 156 species (145 final listings 
and 11 withdrawals). As a result of this expeditious progress, only 100 
proposed species remained at the end of FY 1997 (including newly 
proposed species). After April 1, 1997, the Service began implementing 
a more balanced listing program and began processing more Tier 3 
listing actions. Thus, the Service also made expeditious progress on 
determining the conservation status of species designated by the 
Service as candidates for listing. A candidate is a species for which 
the Service has found that there is sufficient information indicating 
that a listing proposal is appropriate. Such a finding may be made on 
the Service's own initiative, or as a result of the petition process. 
Once a species is placed on the Service's list of candidates, its 
conservation status must be resolved by either proposing the species 
for listing or by completing a candidate removal form. During FY 1997, 
the Service proposed 23 species from the candidate list. In addition, 
the Service published 9 petition findings in FY 1997. The Service also 
updated the list of candidate species with the publication of the most 
recent Candidate Notice of Review published on September 19, 1997 (see 
16 U.S.C. 1533(b)(3)(B)(iii)(II)); at that time, there were 207 
candidate species. This total represents 52 additions to the list of 
    During FY 1997, the Service returned to a more balanced listing 
program, but serious backlogs remain. Besides the 100 species awaiting 
final rules and the 207 candidates awaiting resolution of their 
conservation status, there are 35 species with due/overdue 90-day 
petition findings and 30 species with due/overdue 12-month petition 
    It is important to recognize that the Service faces even greater 
backlogs in its responsibilities to implement other aspects of the Act. 
There is a large section 7 consultation and Habitat Conservation 
Planning (HCP) backlog. The recovery backlog of over 300 species 
awaiting Recovery Plans and an extreme shortage of recovery 
implementation funding make the recovery backlog most severe. The 
Service bases its funding requests on the workloads faced by all 
activities of the endangered species program. Because the magnitude of 
the other endangered species backlogs exceeds the listing backlog, the 
President's FY 1998 request for funding endangered species programs was 
focused on section 7 consultation, HCPs, and recovery rather than 
listing. However, the President's budget for FY 1999 includes a 
significant increase in funding for listing.
    In enacting the Department of the Interior's FY 1998 Appropriations 
Act (Pub. L. 105-163), Congress agreed with the President's priorities 
regarding endangered species funding, providing significant increases 
to the section 7 consultation, HCP, and recovery programs, while still 
providing for a modest increase in the listing program funding. 
Moreover, Congress expressly limited the amount the Service can spend 
on listing actions (including the designation of critical habitat) to 
$5.19 million.
    Given the backlogs of proposed species pending final action, 
candidate species awaiting proposal, and petitions awaiting 
administrative findings, it is extremely important for the Service to 
focus its efforts on listing actions that will provide the greatest 
conservation benefits to imperiled species in the most expeditious and 
biologically sound manner. It has been longstanding Service policy 
(1983 Listing and Recovery Priority Guidelines (48 FR 43098)) that the 
order in which species should be processed for listing is based 
primarily on the immediacy and magnitude of the threats they face. The 
Service will continue to base decisions regarding the order in which 
species will be proposed or listed on the 1983 listing priority 
guidelines. The Service also must prioritize among types of listing 
actions and this level of prioritization is the guidance provided 
    The Service has made this guidance applicable to FY 1999 as well as 
FY 1998 to avoid any confusion over whether this guidance will remain 
in effect if the budget process for FY 1999 is delayed. However, when 
the Service receives its FY 1999 budget, it will review this guidance, 
and, if appropriate, modify or terminate it.

Proposed Listing Priority Guidance for Fiscal Years 1998 and 1999

    To address the biological, budgetary, and administrative issues 
noted above, the Service submits the following proposed listing 
priority guidance. As with the Final Listing Priority Guidance for FY 
1997 issued December 5, 1996 (extended on October 23, 1997), this 
guidance supplements, but does not replace, the 1983 listing priority 
guidelines, which was silent on the

[[Page 10933]]

matter of prioritizing among different types of listing activities.
    As noted above, the Department of the Interior's FY 1998 
appropriation provides no more than $5.19 million for the Service's 
endangered species listing program. The $5.19 million budget for all 
listing activities will fall far short of the resources needed to 
completely eliminate the listing backlogs in FY 1998 and FY 1999. 
Therefore, some form of prioritization is still necessary, and the 
Service will implement the following listing priority guidance in FY 
1998 and FY 1999.
    The following sections describe a three-tiered approach that 
assigns relative priorities, on a descending basis, to listing actions 
to be carried out under section 4 of the Act. The 1983 listing priority 
guidelines will continue to be used to set priority among species 
within types of listing activities. The Service emphasizes that the 
Final Listing Priority Guidance for FY 1997 (extended on October 23, 
1997) will be effective until final FY 1998 and FY 1999 guidance is 
issued, unless extended or canceled by future notice. In order to 
continue to move toward a more balanced listing program, the Service 
will concurrently undertake listing actions in Tiers 1 and 2 during FY 
1998 with a listing budget of only $5.19 million. As the Service 
informed Congress in its budget justification, critical habitat 
designations (Tier 3 actions) during FY 1998 should not be expected. 
The FY 1998 listing appropriation is only sufficient to support high-
priority listing, candidate assessment, petition processing activities, 
and a minimal amount of high priority delisting/reclassification 
actions. A single critical habitat designation could consume up to 
twenty percent of the total listing appropriation, thereby disrupting 
the Service's biologically based priorities. Higher priority listing 
actions (Tiers 1 and 2) provide the greatest amount of protection for 
imperiled species while making the most efficient use of limited 
    Completion of emergency listings for species facing a significant 
risk to their well-being remains the Service's highest priority (Tier 
1). Processing final decisions on pending proposed listings, the 
resolution of the conservation status of species identified as 
candidates (resulting in a new proposed rule or a candidate removal), 
processing 90-day or 12-month administrative findings on petitions, and 
undertaking a limited number of delisting/reclassification activities 
are assigned to Tier 2. Third priority is the processing of petitions 
for critical habitat designations and the preparation of proposed and 
final critical habitat designations; these actions provide little added 
conservation benefit and are therefore assigned lowest priority (Tier 

Tier 1--Emergency Listing Actions

    The Service will immediately process emergency listings for any 
species of fish, wildlife, or plant that faces a significant and 
imminent risk to its well-being under the emergency listing provisions 
of section 4(b)(7) of the Act. This would include preparing a proposed 
rule to list the species. The Service will conduct a preliminary review 
of every petition that it receives to list a species or reclassify a 
threatened species to endangered in order to determine whether an 
emergency situation exists. If the initial review indicates an 
emergency situation, the action will be elevated to Tier 1 and an 
emergency rule to list the species will be prepared. Emergency listings 
are effective for 240 days. A proposed rule to list the species is 
usually published at the same time as an emergency rule. If the initial 
review does not indicate that emergency listing is necessary, 
processing of the petition will be assigned to Tier 2 as discussed 

Tier 2--Processing Final Decisions on Proposed Listings; Resolving the 
Conservation Status of Candidate Species (Resulting in a New Proposed 
Rule or a Candidate Removal); Processing Administrative Findings on 
Petitions To Add Species To the Lists and Petitions to Delist or 
Reclassify Species; and Delisting or Reclassifying Actions

    The majority of the unresolved proposed species face high-magnitude 
threats. Focusing efforts on completing final determinations provides 
maximum conservation benefits to those species that are in greatest 
need of the Act's protections. As proposed listings are reviewed and 
processed, they will be completed through publication of either a final 
listing or a withdrawal of a proposed listing. Completion of a 
withdrawal may not appear consistent with the conservation intent of 
this guidance. However, once a determination not to make a final 
listing has been made, publishing the withdrawal of the proposed 
listing takes minimal time and appropriations. Thus it is more cost 
effective and efficient to bring closure to the proposed listing than 
it is to postpone the action and take it up at some later time. For the 
same reasons, the Service will consider critical habitat prudency and 
determinability findings to be Tier 2 activities, although actual 
designation of critical habitat is a Tier 3 activity. The publication 
of new proposals (candidate conservation resolution) and the processing 
of petition findings to add species to the lists of threatened and 
endangered species have significant conservation benefit and these 
actions are also now placed in Tier 2. Delisting activities also have 
been placed in Tier 2 because of the indirect conservation benefits of 
these actions. Nationwide in FY 1998 and FY 1999, the Service will 
undertake the full array of listing actions in Tiers 1 and 2 as 
appropriate. However, some Regions and some Field Offices still have 
significant backlogs of proposed species, candidates, petitions, and 
delistings. Therefore, additional guidance is needed to clarify the 
relative priorities within Tier 2.

Setting Priorities Within Tier 2

    Pursuant to the 1983 listing priority guidelines, proposed rules 
dealing with taxa believed to face imminent, high-magnitude threats 
have the highest priority within Tier 2. If an emergency situation 
exists, the species will be elevated to Tier 1. Proposed listings that 
cover multiple species facing high-magnitude threats have priority over 
single-species proposed rules unless the Service has reason to believe 
that the single-species proposal should be processed first to avoid 
possible extinction. Proposed listings for species facing high-
magnitude threats that can be quickly completed have higher priority 
than proposed rules for species with equivalent listing priorities that 
still require extensive work to complete. Given species with equivalent 
listing priorities and the factors previously discussed being equal, 
proposed listings with the oldest dates of issue will be processed 
    Issuance of new proposed listings is the first formal step in the 
regulatory process for listing a species. It provides some protection 
in that all Federal agencies must ``confer'' with the Service on 
actions that are likely to jeopardize the continued existence of 
proposed species.
    Resolving the conservation status of candidates will be afforded 
the second highest priority within Tier 2. The resolution of a 
candidate species' conservation status will be accomplished through the 
publication of new proposed rules or the processing of candidate 
removal forms (which, when signed by the Director, remove species from 
the candidate list). The 1983 listing priority guidelines are the basis 
for assigning a candidate species a listing priority number. This 
system ensures that species in the greatest need

[[Page 10934]]

of protection should be processed first. New proposed listings for 
species facing imminent, high-magnitude threats (candidates with the 
highest listing priority numbers) will be processed ahead of candidates 
with lower listing priority numbers. The Service includes new proposals 
for petitioned species that are currently on the candidate list in this 
priority level within Tier 2.
    The processing of 90-day petition findings and 12-month petition 
findings to add species to the lists will be the next priority among 
Tier 2 listing activities. Once a 90-day petition finding is published, 
the Service will make every reasonable effort to complete the 12-month 
finding in the appropriate time frame. When it is practicable for the 
Service to complete a 90-day finding within 90 days, the Service is 
statutorily afforded a 12-month period from the receipt of a petition 
to completion of the 12-month finding. However, in those cases in which 
it is not practicable for the Service to complete a 90-day finding 
within 90 days of receipt of the petition, after the 90-day finding is 
completed, the Service will still require 9 months to complete a 
thorough biological status review and issue a 12-month finding.
    Finally, the Service expects to complete a small number of 
delistings and reclassifications during FY 1998 and FY 1999. The 
recovery of listed species is the ultimate goal of the endangered 
species program. The Service finds that the prompt delisting of 
recovered species and the reclassification of recovering species (from 
endangered to threatened status) is necessary to keep the public and 
other interested parties informed of a species' conservation status; 
this is especially important to reducing the section 7 consultation 
backlog since a species that is recovered and delisted will no longer 
require consultation. Monitoring of species already on the lists is 
accomplished through the recovery program; however, the small 
expenditure of funds necessary to process the change in a species' 
status will continue to be undertaken by the listing program. Delisting 
and reclassifications will be afforded the lowest priority in Tier 2. 
As with the processing of withdrawals, the conservation benefit of 
these actions may not be readily apparent. However, the Service 
believes that significant, albeit indirect, conservation benefit will 
result from the processing of certain high-priority delisting or 
reclassification actions. Moreover, the Service is obligated to 
maintain the lists of threatened and endangered species and it is of 
utmost importance to keep the lists accurate and up to date.
    The Service expects to make substantial progress in removing or 
reducing the backlogs of proposed species awaiting final determination, 
candidates awaiting resolution, and petitions awaiting findings during 
FY 1998 and FY 1999. During FY 1998 and FY 1999, the application of 
both the listing priority guidance described above and the 1983 
guidelines are critical to maintaining nationwide and program-wide 
biologically sound priorities to guide the allocation of limited 
listing resources.

Tier 3--Processing Critical Habitat Determinations

    Designation of critical habitat, when undertaken, consumes large 
amounts of the Service's listing appropriation and, in most cases, does 
not add any conservation benefit beyond those achieved when a species 
is listed as endangered or threatened. It is essential during periods 
of limited listing funds to maximize the conservation benefit of 
listing appropriations. The Service has determined that in most cases 
no additional protection is gained by designating critical habitat for 
species already on the lists and the application of the Service's 
limited resources is best utilized to add new species to the lists 
rather than designating critical habitat for species already receiving 
full protection under the Act. The Service places higher priority on 
addressing imperiled species that presently have very limited or no 
protection under the Act, than on devoting limited resources to the 
expensive process of designating critical habitat for species already 
protected by the Act. Critical habitat will remain in Tier 3, and the 
Service does not intend to process Tier 3 actions, including petitions 
related to critical habitat designation, during FY 1998; this will be 
re-evaluated when FY 1999 appropriations are received. Furthermore, 
because the protection that flows from critical habitat designation 
applies only to Federal actions, the designation of critical habitat 
provides little or no additional protection beyond the ``jeopardy'' 
prohibition of section 7, which also applies only to Federal actions.

Allocating Listing Resources Among Regions

    The Service allocates its listing appropriation among its seven 
Regional Offices based strictly on the number of proposed and candidate 
species for which the Region has lead responsibility with the exception 
of providing minimum ``capability funding'' for one listing biologist 
for each Region. The objective is to ensure that those areas of the 
country with the largest percentage of known imperiled species will 
receive a correspondingly high level of listing resources. The 
Service's experience in administering the Act for the past two decades 
has shown, however, that it needs to maintain at least a minimal 
listing program in each Region in order to respond to emergencies and 
to retain a level of expertise that permits the overall program to 
function effectively over the longer term, thus the ``capability 
funding'' to each Region. In the past, when faced with seriously uneven 
workloads, the Service has experimented with reassigning workload from 
a heavily burdened Region to less burdened Regions. This approach has 
proven to be very inefficient because the expertise developed by a 
biologist who works on a listing package will be useful for recovery 
planning and other conservation activities, and that expertise should 
be concentrated in the geographic area inhabited by the species. In 
addition, biologists in a Region are familiar with other species in 
that Region that interact with the species proposed for listing, and 
that knowledge may be useful in processing a final decision. For these 
reasons, the Service has found it unwise to reassign one Region's 
workload to personnel in another Region. Because the Service must 
maintain a listing program in each Region, Regions with few outstanding 
proposed listings may be able to address lower priority listing actions 
within Tier 2 (such as new proposed listings or petition findings), 
while Regions with many outstanding proposed listings will use most of 
their allocated funds on finalizing proposed listings.

Addressing Matters in Litigation

    The Service understands the numerous statutory responsibilities it 
bears under the Act. These responsibilities, however, do not come with 
an unlimited budget. The Service is often required to make choices 
about how to prioritize its responses to those statutory 
responsibilities in order to make the best use of its limited 
resources. Under these circumstances, technical compliance with the Act 
with respect to one species often means failure to comply with the 
technical requirements of the Act for another species. This guidance is 
part of a continuing effort to express to the public that the Service 
is striving towards compliance with the Act in the manner that best 
fulfills the spirit of the

[[Page 10935]]

Act, using the Service's best scientific expertise.
    The Service understands that some may believe they have reason to 
bring suit against the Service for failing to carry out specific 
actions with regard to specific species. These actions question the 
Service's judgment and priorities, placing the emphasis of Act 
compliance on technical fulfillment of the statute for specific species 
rather than on the best use of the Service's resources to provide the 
maximum conservation benefit to all species. There are many outstanding 
section 4 matters currently in litigation. In each case, the plaintiff 
seeks, in effect, to require the Service to sacrifice conservation 
actions which the Service believes would have major impacts for actions 
which the Service believes would have much lesser effects.
    In no case will the Service adjust its priorities to reflect the 
threat or reality of litigation. The Service has argued and will 
continue to argue before the courts that it should be allowed to 
prioritize its activities so as to best fulfill the spirit of the Act. 
Should any court not accept this argument, the Service will, of course, 
carry out the instruction of the court or the terms of any settlement 
reached. The Service believes, however, that such obligations impede 
the overall conservation effort for a much lesser benefit for a single 
    For example, during FY 1997, a plaintiff succeeded in obtaining a 
court order that required the Service to designate critical habitat for 
the southwestern willow flycatcher. The Service acknowledges that it 
had a responsibility to carry out this action and intended to meet its 
statutory requirement, like all others, when its budget and backlog of 
higher priority listing actions allowed. However, the Service still 
contends that this particular action had relatively little conservation 
benefit, especially compared to the numerous listings of wildlife and 
plants that had to be delayed to allow it to proceed when it did. The 
Service's Region 2 is suffering from their inability to prioritize its 
responsibilities and complete several high priority species issues last 

Public Comments Solicited

    The Service intends that any action resulting from this proposed 
guidance be as accurate and as effective as possible. Therefore, any 
suggestions from the public, concerned governmental agencies, the 
scientific community, environmental groups, industry, commercial trade 
entities, or any other interested party concerning any aspect of this 
proposed guidance are hereby solicited. The Service will take into 
consideration any comments and additional information received and will 
announce final guidance after the close of the public comment period 
and as promptly as possible after all comments have been reviewed and 
analyzed. The Final FY 1997 Listing Priority Guidance, extended on 
October 23, 1997, will remain in effect until publication of the Final 
FY 1998 and FY 1999 Listing Priority Guidance.


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

    Dated: March 2, 1998.
Jamie Rappaport Clark,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 98-5814 Filed 3-4-98; 8:45 am]