[Federal Register: May 20, 1999 (Volume 64, Number 97)]
[Page 27596-27600]
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 1999 and 2000

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice.


SUMMARY: We (the U.S. Fish and Wildlife Service) announce proposed 
guidance for assigning relative priorities to listing actions conducted 
under section 4 of the Endangered Species Act of 1973 as amended (Act) 
during fiscal years (FY) 1999 and 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. A method 
for prioritizing among the various listing activities is necessary to 
ensure that an organized system for conserving species is in place. 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. 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 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 1999 and FY 
2000 as allowed by our funding allocation for that year. Delisting 
activities are no longer part of the listing program and will be 
undertaken by the recovery program in FY 1999 and beyond.

DATES: We will accept comments on this guidance until June 21, 1999. 
The final FY 1998 and FY 1999 Listing Priority Guidance published on 
May 6, 1998 (63 FR 25502), will remain in effect until the Final FY 
1999 and FY 2000 Listing Priority Guidance is published.

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

FOR FURTHER INFORMATION CONTACT: 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

[[Page 27597]]

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 1995-96 
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. The net 
effect of the moratorium and reductions in funding 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 extremely limited funding 
available to us 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 
6, 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 7 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 as of April 30, 1999, 34 final determinations, 
17 proposed rules, 12 petition findings, 3 proposed delistings, and 2 
proposed critical habitat designations have been completed. The 
proposed critical habitat designations, Tier 3 activities, were 
undertaken to comply with a court order. However, the Service did make 
critical habitat determinations (prudency and/or determinability 
decisions) for each final listing during this period and FY 1998. Only 
two proposed species that were included in the premoratorium backlog 
remain to be finalized.
    Despite the return to a balanced listing program, backlogs remain. 
As of April 30, 1999, there are 69 proposed species awaiting final 
determinations, and 154 candidates awaiting resolution of their 
conservation status. Forty-seven species have due/overdue 90-day 
petition findings and 13 species have due/overdue 12-month petition 
findings. Various district courts and appellate courts have remanded 
not prudent critical habitat determinations to us for reconsideration.
    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 recovery implementation funding make the recovery backlog 
most severe. We base our funding requests on the workloads faced by all 
activities of the endangered species program. The President's budget 
request for FY 1999 included a significant increase in funding for 
listing activities. Nevertheless, the magnitude of the other endangered 
species backlogs exceeds the listing backlog; therefore, the 
President's FY 1999 request for funding endangered species programs 
requested even larger increases in funding for consultation and 
    In enacting the Department of the Interior's FY 1999 Omnibus and 
Emergency Supplemental Appropriations Act (Pub. L. 105-277), Congress 
rejected our requests for significant resources in all three programs 
and provided only modest increases to the consultation, recovery, and 
listing programs' funding. The Department of the Interior's 
appropriation again includes an express limit on the amount we can 
spend on listing actions (including the designation of critical 
habitat); this year the limit is $5.756 million.
    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.
    We have made this guidance applicable to FY 2000 as well to avoid 
any confusion over whether this guidance will remain in effect if the 
budget process for FY 2000 is delayed. However, when we receive our FY 
2000 budget, we will review this guidance, and, if appropriate, modify 
or terminate it.

[[Page 27598]]

Proposed Listing Priority Guidance for Fiscal Years 1999 and 2000

    To address the biological, budgetary, and administrative issues 
noted above, we submit the following proposed listing priority 
guidance. As with the Final Listing Priority Guidance for FY 1998 and 
FY 1999 issued May 6, 1998, this guidance supplements, but does not 
replace, the 1983 listing priority guidelines, which was silent on the 
matter of prioritizing among different types of listing activities.
    As noted above, the Department of the Interior's FY 1999 
appropriation provides no more than $5.756 million for our endangered 
species listing program. The $5.756 million budget for all listing 
activities will fall far short of the resources needed to completely 
eliminate all the existing listing backlogs in FY 1999. Therefore, a 
form of relative prioritization is necessary. We will implement the 
following listing priority guidance in FY 1999 and FY 2000 to aid us in 
our expeditious completion of the wide array of listing actions 
necessary to maintain a balanced listing program.
    The following sections describe how we will assign relative 
priorities 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. We 
emphasize that the Final Listing Priority Guidance for FY 1998 and FY 
1999 will remain in effect until final FY 1999 and FY 2000 guidance is 
issued, unless extended or canceled by future notice.
    In order to continue to operate a balanced listing program, we will 
concurrently undertake all types of listing actions in compliance with 
the relative priorities described below during FY 1999. It has been 
essential during periods of limited listing funds to maximize the 
conservation benefit of listing appropriations. For the past several 
years, we have determined that our limited resources were best utilized 
to add new species to the lists rather than designating critical 
habitat for species already receiving full protection under the Act. 
Designation of critical habitat, when undertaken in the past, consumed 
large amounts of our listing appropriation and, in most cases, added 
little conservation benefit beyond that achieved when a species was 
listed as endangered or threatened. For this reason, we have placed 
higher priority on addressing imperiled species that had 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.
    The reduced listing backlogs and the funding increase of $566,000, 
which we received in the listing subactivity in FY 1999, will allow us 
to devote some resources to critical habitat actions without an undue 
impact on the more important activities in the listing program. 
Therefore, we will dedicate $979,000 (17 percent of the total listing 
program funding) toward critical habitat determinations and 
designations during FY 1999. Progress toward critical habitat 
determinations and designations in FY 2000 will be governed by our 
listing appropriations for that fiscal year.
    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 
cannot estimate the number of species for which critical habitat 
designations will be prudent because each prudency determination is 
considered on a strictly biological, species-by-species basis. Although 
we consider the conservation benefits from critical habitat designation 
to be minimal for most species, we have surveyed our Regional Offices 
requesting them to identify species that would benefit from critical 
habitat designations, and are in the process of prioritizing Regional 
responses. We expect to undertake court ordered critical habitat 
determinations and designations, and non-court ordered determinations 
and designations for any species identified by Regional Offices as 
species that would benefit from critical habitat.
    We are exploring how to revise our critical habitat determination 
and designation processes in order to streamline the process and 
maximize the conservation benefit provided. We will publish a separate 
notice in the Federal Register in the near future to solicit comments 
on how to revise the process for completing critical habitat 
determinations and designations. Public comment will be sought and 
considered in developing final guidance and policy regarding critical 
habitat determinations and designations.

Relative Listing Priorities

    Nationwide in FY 1999 and 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 precedent 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 will be conducted 
within a specified amount of funding 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 would include 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

[[Page 27599]]

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 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 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. Pursuant to 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 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 the Service has made 
a warranted but precluded finding pursuant to section 4(b)(3)(iii) of 
the Act.
Priority 4--Processing Administrative Findings on Petitions to Add 
Species to the Lists and Petitions 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 two 
decades 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 

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 
painful 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 Act 
with respect to one species can mean failure to comply with the 
technical requirements of the Act for 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 expertise.
    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 the judgment 
of the Service, 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, obey 
any outstanding court orders.

Public Comments Solicited

    We intend that any action resulting from this proposed guidance be 
as accurate and as effective as possible.

[[Page 27600]]

 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. We will take 
into consideration any comments and additional information received and 
we 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 1998 and FY 1999 Listing Priority 
Guidance will remain in effect until publication of the Final FY 1999 
and FY 2000 Listing Priority Guidance.
    Executive order 12866 requires each agency to write regulations/
notices that are easy to understand. We invite your comments on how to 
make this notice easier to understand, including answers to questions 
such as the following: (1) Are the requirements in the notice clearly 
stated? (2) Does the notice contain technical language or jargon that 
interferes with the clarity? (3) Does the format of the notice 
(grouping and order of sections, use of headings, paragraphing, etc.) 
aid or reduce its clarity? (4) Is the description of the notice in the 
Supplementary Information section of the preamble helpful in 
understanding the notice? What else could we do to make the notice 
easier to understand?


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

    Dated: April 2, 1999.
Jamie Rappaport Clark,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 99-12783 Filed 5-19-99; 8:45 am]