Methodology for Prioritizing Status Reviews and Accompanying 12-Month Findings on Petitions for Listing Under the Endangered Species Act, 49248-49255 [2016-17818]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 81, Number 144 (Wednesday, July 27, 2016)]
[Notices]
[Pages 49248-49255]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-17818]



Fish and Wildlife Service

[Docket No. FWS-HQ-ES-2015-0169; 4500030113]


Methodology for Prioritizing Status Reviews and Accompanying 12-
Month Findings on Petitions for Listing Under the Endangered Species 
Act

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
final methodology for prioritizing status reviews and accompanying 12-
month findings on petitions for listing species under the Endangered 
Species Act. This methodology is intended to allow us to address 
outstanding workload strategically as our resources allow and to 
provide transparency to our partners and other stakeholders as to how 
we establish priorities within our upcoming workload.

DATES: The Service plans to put this methodology in place immediately 
in order to prioritize upcoming status reviews and develop our National 
Listing Workplan.

ADDRESSES: You may review the reference materials and public input used 
in the creation of this final methodology at https://www.regulations.gov 
at Docket No. FWS-HQ-ES-2015-0169. Some of these materials are also 
available for public inspection at U.S. Fish and Wildlife Service, 
Division of Conservation and Classification, MS: ES, 5275 Leesburg 
Pike, Falls Church, VA 22041-3803, during normal business hours.

FOR FURTHER INFORMATION CONTACT: Douglas Krofta, U.S. Fish and Wildlife 
Service, Division of Conservation and Classification, MS: ES, 5275 
Leesburg Pike, Falls Church, VA 22041-3803; telephone 703/358-2171; 
facsimile 703/358-1735. If you use a telecommunications device for the 
deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-
877-8339.

SUPPLEMENTARY INFORMATION: 

Background

    Under the Endangered Species Act, as amended (Act; 16 U.S.C. 1531 
et seq.), the public can petition the Service to list, delist, or 
reclassify a species as an endangered species or a threatened species. 
The Act sets forth specific timeframes in which to complete initial 
findings on petitions: The Service has, to the maximum extent 
practicable, 90 days from receiving a petition to make a finding on 
whether the petition presents substantial information indicating that 
the petitioned action may be warranted; and subsequently 12 months from 
receiving a petition for which the Service has made a positive initial 
finding to make a finding on whether the petitioned action is 
warranted, not warranted, or warranted but precluded. However, these 
statutory deadlines have often proven not to be achievable given the 
workload in the listing program and the available resources.
    As a result of petitions to list a large number of species under 
the Act received between 2007 and 2012, our workload requires us to 
complete more than 500 status reviews and accompanying 12-month 
findings on those petitions. At the same time, our resources to 
complete these findings are limited. Beginning in 2010, we took steps 
to streamline our listing program, and we continue to find efficiencies 
in our procedures for evaluating petitions and conducting listing 
actions. However, these efforts are not sufficient to keep up with the 
demands of our workload. This methodology is intended to allow us to 
address the outstanding workload of status reviews and accompanying 12-
month findings strategically as our resources allow and to provide 
transparency to our partners and other stakeholders as to how we 
establish priorities within our workload into the future.
    To balance and manage this existing and anticipated future status 
review and accompanying 12-month finding workload in the most efficient 
manner, we have developed this methodology to help us fulfill our 
mission and to use our resources in a consistent and predictable 
manner. We intend to achieve this goal by working on the highest-
priority status reviews and accompanying 12-month petition findings 
(actions) first. The methodology consists of five prioritization 
categories. For each action, we will determine where (into which 
category) each action belongs, and we will use that information to 
establish the order in which we plan to complete status reviews and 
accompanying 12-month findings on petitions to list species under the 
Act. This prioritization of status reviews and accompanying 12-month 
petition findings will inform a multi-year National Listing Workplan 
for completing all types of actions in the listing program workload--
including not only status reviews and accompanying 12-month findings, 
but also status reviews initiated by the Service, proposed and final 
listing determinations, and proposed and final critical habitat 
designations. We will share the National Listing Workplan with other 
Federal agencies, State fish and wildlife agencies, Native American 
Tribes, and other stakeholders and the public at large through our Web 
site (https://www.fws.gov/endangered/) and periodically update it as 
circumstances warrant. This methodology for prioritizing status reviews 
and accompanying 12-month petition findings to list species does not 
apply to actions to uplist a species from a threatened species to an 
endangered species, to downlist a species from an endangered species to 
a threatened species, or to delist a species. Further, this methodology 
does not replace our 1983 Endangered and Threatened Species Listing and 
Recovery Priority Guidelines (September 21, 1983; 48 FR 43098), which 
apply to species that have already been determined to warrant a listing 
proposal; rather, it complements it and can be used in conjunction with 
it. As with the 1983 guidelines, this methodology must be viewed as a 
guide and should not be looked upon as an inflexible framework for 
determining resource allocations (see 48 FR 43098). It is not intended 
to be binding. The methodology identified in this document that is to 
be used in prioritizing actions incorporates numerous objectives--
including acting on the species that are most in need of, and that 
would most benefit from, listing under the Act first, and increasing 
the efficiency of the listing program.
    We plan to evaluate unresolved status reviews and accompanying 12-
month findings for upcoming listing actions and prioritize them using 
the prioritization categories identified in this methodology to assign 
each action to one of five priority categories, or ``bins,'' as 
described below. In prioritizing status reviews and accompanying 12-
month findings, we will consider information from the 90-day finding, 
any petitions, and any other information in our files. We recognize 
that we may not always have

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in our files the information necessary to assign an action to the 
correct bin, so we plan to work also with State fish and wildlife 
agencies and Native American Tribes who have management responsibility 
for these species or relevant scientific data, as well as with any 
other appropriate conservation partners who have relevant scientific 
data, to obtain the information necessary to allow us to accurately 
categorize specific actions.

Summary of Changes From the Draft Notice

    Below is a summary of changes from the draft methodology as a 
result of public review and comment.
    1. We added to the description of Bin 1 to clarify our intent to 
include species for which there is an urgent need for protection under 
the Act.
    2. A clarification of ``reasonable timeframe'' was added to the 
description of Bin 3.
    3. The word ``Opportunities'' in the title of Bin 4 was changed to 
``Efforts'' to more closely align with language in our Policy for 
Evaluation of Conservation Efforts When Making Listing Decisions 
(PECE).
    4. We changed ``completed in time'' to ``reasonable timeframe'' in 
the description of Bin 4, clarified the phrase, and added language 
clarifying our consideration of conservation efforts.
    5. We have split the section of the draft methodology titled 
Additional Considerations into two sections for the final methodology--
``Sub-Ranking Considerations'' and ``Exceptions to Priority Order.'' We 
clarified that the sub-ranking considerations are only to be used to 
move actions for species within bins, not between bins. We also 
explained the circumstances in which the exceptions to priority order 
may be used.
    6. We made several other minor edits to increase clarity and 
readability of the methodology.

Priority Bins

    Below we describe the categories we have identified for 
prioritizing status reviews and accompanying 12-month petition findings 
and the information that we will consider when placing specific actions 
into the appropriate priority bin. An action need not meet every facet 
of a particular bin in order to be placed in that bin. If an action 
meets the conditions for more than one bin, the Service will seek to 
prioritize that action by considering any case-specific information 
relevant to determining what prioritization would, overall, best 
advance the objectives of this methodology--including protecting the 
species that are most in need of, and that would benefit most from, 
listing under the Act first, and increasing the efficiency of the 
listing program. If an action meets the definition for Bin 1 (see 
descriptions of bins, below) and one or more of the other bins, we will 
place the action in Bin 1 to address the urgency and degree of 
imperilment associated with that bin.
    The sub-ranking considerations that follow the descriptions of the 
bins will be used to determine the relative timing of actions within 
bins, not to move actions between bins. Additionally, we identify two 
exceptions to the binning methodology that may, in certain 
circumstances, result in actions being completed out of priority order.

(1) Highest Priority--Critically Imperiled

    Highest priority will be given to a species experiencing severe 
threat levels across a majority of its range, resulting in severe 
population-level impacts. Species that are critically imperiled, 
meaning they appear to be in danger of extinction now, and need 
immediate listing action in order to prevent extinction, will be given 
highest priority. Actions placed in this bin include actions for which 
we have strong information indicating an urgent need for protection of 
species under the Act as well as emergency listings. In section 4(b)(7) 
of the Act, the Secretary is granted discretion to issue a regulation 
that takes effect immediately upon publication in the Federal Register. 
Such an emergency regulation is in effect for a period of 240 days, 
during which time the Service follows routine rulemaking procedures to 
list a species as an endangered or threatened species. Given this 
statutory background, information indicating imminence of threats is a 
key factor for placement in this bin.

(2) Strong Data Already Available on Status

    Actions for which we currently have strong information concerning 
the species' status will receive next highest priority. We acknowledge 
that the Act requires that we base our decisions on the best available 
information at the time we make a determination, and we will continue 
to adhere to that requirement. Our experience implementing the Act has 
shown us that high-quality scientific information leads to stronger, 
more defensible decisions that have increased longevity. Therefore, we 
will generally place actions for which we have particularly strong 
scientific data supporting a clear decision on a species' status--
either a decision that the species likely warrants listing or likely 
does not warrant listing--at a higher priority than actions placed in 
Bins 3, 4, and 5, discussed below.

(3) New Science Underway To Inform Key Uncertainties

    As stated previously, higher-quality scientific information leads 
to better decision-making, which focuses our resources on providing the 
protections of the Act to species most in need. Scientific uncertainty 
regarding information that could affect a species' status is often 
encountered in listing decisions. With the new, emerging information, a 
more-informed decision could be made (e.g., a species' status could be 
determined fairly readily through surveys or other research). For 
circumstances when that uncertainty can be resolved within a reasonable 
timeframe because emerging science (e.g., taxonomy, genetics, threats) 
is underway to answer key questions that may influence the listing 
determination, those actions will be prioritized for completion next 
after those with existing strong information bases. The new information 
should be made available to us within a timeframe that is reasonable, 
considering what information is already known about threats, status, 
and trends for the species and how pivotal the new study would be to 
inform our status determination.
    This bin is appropriate when the emerging science or study is 
already underway, or a report is expected soon, or the data exist, but 
they need to be compiled and analyzed. Placing an action in this bin 
does not put off working on the listing action; it just prioritizes 
work on actions in Bins 1 and 2 for completion first. An action for 
which ongoing research is not expected to produce results in the near 
future would not be placed in this bin. We intend to move forward with 
decision-making after the research results become available.

(4) Conservation Efforts in Development or Underway

    Where efforts to conserve species are organized, underway, and 
likely to address the threats to the species, we will consider these 
actions as our fourth highest priority. Conservation efforts should be 
at a scale that is relevant to the conservation of the species and 
likely to be able to influence the outcome of a listing determination. 
Placing an action in this bin allows the Service to focus its resources 
on other species whose status is unlikely to change, while conservation 
efforts for this species get underway, and obtain

[[Page 49250]]

enrollment or commitments from landowners or other entities, as needed, 
so that those efforts can have an impact on the status of the species 
in time to be considered in the status review. If conservation efforts, 
although laudable, would not be able to address the major threats to a 
species, the action would not be appropriate for placement in Bin 4. 
Consistent with our Policy for Evaluation of Conservation Efforts When 
Making Listing Decisions (PECE) (68 FR 15100; March 28, 2003), we 
consider conservation efforts to be specific actions, activities, or 
programs designed to eliminate or reduce threats or otherwise improve 
the status of a species. In order for actions to be appropriately 
placed in this bin, conservation efforts should be in place now or 
within a reasonable timeframe, considering what information is already 
known about threats, status, and trends for the species and how pivotal 
the conservation efforts would be to inform our status determination. 
When conducting the status review and accompanying 12-month finding, we 
will consider conservation efforts not yet implemented or not yet shown 
to be effective according to PECE, as appropriate. Conservation efforts 
should aim to be either implemented or effective by the time of the 
listing determination or meet the PECE standard (i.e., demonstrate a 
high certainty of implementation and effectiveness). Placing an action 
in this bin does not put off working on the listing action; it just 
prioritizes work on actions in Bins 1, 2, and 3 for completion first.

(5) Limited Data Currently Available

    Actions for a species where limited information is available 
regarding its threats or status will be given fifth highest priority. 
If we do not have much information about a species without conducting 
research or further analysis, the action would be suitably placed in 
this bin. Placing an action in this bin does not put off working on the 
listing action; it just prioritizes work on actions in Bins 1, 2, 3, 
and 4 for completion first.
    According to the standard under the Act, we need to make listing 
decisions based on the best available scientific and commercial data. 
Because the best available data for species in this bin may be very 
limited even if the Service conducts further research, we will 
prioritize work on species for which we have more and better data 
already available.

Sub-Ranking Considerations

    The three considerations set forth below will only be used to 
determine the relative timing of species within their respective bins 
(i.e., as tie-breakers within a bin), and will not be used to move 
species between bins.
    a. The level of complexity surrounding the status review and 
accompanying 12-month finding, such as the degree of controversy, 
biological complexity, or whether the status review and accompanying 
12-month finding covers multiple species or spans multiple geographic 
regions of the Service.
    b. The extent to which the protections of the Act would be able to 
improve conditions for that species and its habitat or to provide 
benefits to many other species. For example, a species primarily under 
threat due to sea-level rise from the effects of climate change is 
unlikely to have its condition much improved by the protections of the 
Act. By contrast, a species primarily under threat due to habitat 
destruction or fragmentation from a specific human activity would more 
directly benefit from the protections of the Act. Although this 
consideration may be used to determine the relative timing of making 
determinations for different species within a particular bin, the 
Service does not consider this information in making status 
determinations of whether or not species warrant listing.
    c. Whether the current highest priorities are clustered in a 
geographic area, such that our scientific expertise at the field office 
level is fully occupied with their existing workload. We recognize that 
the geographic distribution of our scientific expertise will in some 
cases require us to balance workload across geographic areas.

Exceptions to Priority Order

    In some specific instances, we may complete work on actions outside 
of priority order (e.g., we may work on a Bin 3 action ahead of a Bin 2 
action). Where appropriate, the following exceptions may be used in 
scheduling the timing of actions.
    a. Where there are opportunities to maximize efficiency by batching 
multiple species for the purpose of status reviews, petition findings, 
or listing determinations. For example, actions could be batched by 
taxon, by species with like threats, by similar geographic location, or 
other similar circumstances. Batching may result in lower-priority 
actions that are tied to higher-priority actions being completed 
earlier than they would otherwise.
    b. Where there are any special circumstances whereby an action 
should be bumped up (or down) in scheduling. One limitation that might 
result in divergence from priority order is when the current highest 
priorities are clustered in a geographic area, such that our scientific 
expertise at the field office level is fully occupied with their 
existing workload. We recognize that the geographic distribution of our 
scientific expertise will in some cases require us to balance workload 
across geographic areas.

Summary of Comments and Recommendations

    On January 15, 2016, we published a document in the Federal 
Register (81 FR 2229) that requested written comments and information 
from the public on the draft methodology for prioritizing status 
reviews and accompanying 12-month findings on petitions for listing 
under the Act. The comment period was open for 30 days, ending February 
16, 2016. Comments we received are grouped into general categories 
below specifically relating to the draft methodology.

Comments Regarding National Listing Workplan

    Comment (1): We received many comments on the National Listing 
Workplan asking for details regarding the frequency of updates, 
methodology for development, public or stakeholder input, types of 
actions to be included, consistency with prior Service policies, and 
the practical implementation of such a plan.
    Our Response: Comments on the National Listing Workplan are outside 
the scope of this methodology and the open public comment period. This 
methodology is one tool that will be used to develop and maintain the 
National Listing Workplan. Other factors that will be considered in 
development of the National Listing Workplan include annual available 
funding, staffing resources, non-discretionary requirements such as 
court orders and settlement-agreement requirements, and the listing 
priority numbers of existing candidate species. This final methodology 
does not set forth the particulars of implementation or periodic 
revision of the National Listing Workplan; those details will be made 
available when the workplan is shared publicly later this summer 
through posting on our Web site and public outreach.

Comments Regarding Bin 1

    Comment (2): Several commenters requested clarifications or 
definitions of

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words or phrases in Bin 1, specifically the phrases ``critically 
imperiled,'' ``severe threat,'' ``majority of its range,'' and ``severe 
population-level impacts.'' Commenters suggested adding the phrase 
``based on the best available science'' to the definition of Bin 1. 
Another commenter suggested adding examples of how the Service would 
determine that a species is experiencing severe threat levels across a 
majority of its range, resulting in severe population-level impacts.
    Our Response: We have provided more clarity regarding the meaning 
of ``critically imperiled'' in the description of Bin 1. We consider 
that phrase to mean that a species appears to be in danger of 
extinction now (the species is currently on the brink of extinction in 
the wild), such that immediate action to list the species under the Act 
is necessary to prevent extinction. See Service 2008 for additional 
discussion of how the Service views categories of endangered species. 
In section 4(b)(7) of the Act, the Secretary is granted discretion to 
issue a regulation that takes effect immediately upon publication in 
the Federal Register. This emergency regulation is in effect for a 
period of 240 days, during which time the Service follows routine 
rulemaking procedures to list a species as endangered or threatened. 
Given this statutory background, information indicating imminence of 
threats is a key factor for placement in this bin. We have not added 
the phrase ``based on the best available science'' to the definition of 
Bin 1, because the requirement to base decisions on the best available 
science applies to the status determination, not to the binning or 
prioritization process. While we readily acknowledge that, at the time 
of bin placement, there will not yet be a determination of status, we 
will consider information from our files, the 90-day finding, any 
petitions, and from our partners (see Background section, above) 
indicating that a particular species may be experiencing severe, 
rangewide, and imminent threats in order to place a species in Bin 1.
    However, we decline to define the other phrases highlighted by the 
commenters because the particular facts of what constitutes a ``severe 
threat,'' what the ``majority of its range'' represents, and what 
``severe population-level impacts'' means are highly specific to the 
circumstances of individual species.
    Comment (3): One commenter noted that Bin 1 appears to suppose 
strong data are available to define ``critically imperiled'' and 
``severe threats,'' meaning there is significant overlap between Bins 1 
and 2. The commenter stated that the final methodology needs to make 
clear the distinction between placing species in Bin 1 or Bin 2.
    Our Response: We have added language to the final methodology to 
further distinguish between Bin 1 and Bin 2. Our intent is that an 
action will be categorized into only one bin based on the information 
available at the time of binning. Our intent is to prioritize for early 
action the species that meet the definition of Bin 1, regardless of 
whether they meet the definition of other bins.

Comments Regarding Bin 2

    Comment (4): One commenter requested that the Service clarify that 
assessing the strength of data solely relates to the availability of 
information, and will not prejudice the evaluation of whether listing 
is warranted or not warranted, which is based on the best available 
scientific and commercial information.
    Our Response: This methodology does not dispose of the Service's 
obligation to use the best available scientific and commercial data 
when assessing whether listing a species under the Act is warranted or 
not warranted. The intent of Bin 2 is not to evaluate how much 
available information there is about a particular species, but rather 
how strongly the data point in a direction relative to whether listing 
may or may not be warranted. In this final methodology, we clarify the 
description for Bin 2 as the following:

    . . . we will generally place an action for which we have 
particularly strong scientific data supporting a clear decision on 
status--either a decision that the species likely warrants listing 
or likely does not warrant listing--at a higher priority than 
species in Bins 3, 4, and 5 . . .

Combined with the intent of this methodology for prioritizing status 
reviews and accompanying 12-month petition findings, we view this 
language as clear.
    Comment (5): Several commenters questioned why the Service would 
prioritize work on 12-month findings that have strong information 
indicating listing is likely not warranted ahead of those where listing 
is likely warranted. In this same theme, another commenter stated that 
species that are imperiled should be prioritized over those that are 
relatively secure.
    Our Response: To the extent possible, the Service will equally 
prioritize actions for species for which we have strong information 
indicating listing is likely warranted or likely not warranted. Both of 
these outcomes take advantage of the high quality of the current body 
of scientific knowledge on the species. In the case where we have 
strong information for a species indicating that listing is likely 
warranted, we want to provide the protections of the Act in a timely 
fashion. In the cases where we have strong information for a species 
indicating that listing is likely not warranted, we want to provide 
that regulatory certainty to our conservation partners so that they can 
focus their conservation resources on species in need. Additionally, by 
placing species in Bin 2 for which we have strong information 
indicating listing is likely not warranted, we anticipate being able to 
quickly and efficiently reduce our overall workload.
    Comment (6): One commenter stated that because Bin 2 suggests 
adequate information is available to make a decision, candidate species 
in this bin should be either listed or determined to not warrant 
listing.
    Our Response: This prioritization methodology has been developed 
strictly to prioritize work for species awaiting status reviews and 
accompanying 12-month findings after completed 90-day findings 
indicated that the species may warrant listing. Candidate species have 
already had a 12-month finding completed and have been determined to 
warrant listing; therefore, they would not be subject to binning using 
this methodology. Candidate species receive a listing priority number 
(LPN), which is a prioritization method for candidate species that have 
been found to warrant listing but are precluded by other actions of 
higher priority.
    Comment (7): One commenter requested clarification of how the 
Service would categorize actions for species that potentially meet the 
criteria for more than one bin. In particular, the commenter questioned 
how the Service would prioritize between an action for a species with 
strong data available (Bin 2) and an action for a species with 
significant conservation efforts underway (Bin 4).
    Our Response: This final prioritization methodology is designed to 
place an action into only one bin. In general, if an action meets the 
conditions for more than one bin, the Service will prioritize that 
action by considering any case-specific information relevant to 
determining what prioritization would, overall, best advance the 
objectives of this methodology--including protecting first the species 
that are most in need of, and that would benefit most from, listing 
under the Act, and increasing the efficiency of the listing program. If 
an action meets the definition for Bin 1 and

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one or more of the other bins, we will place the action in Bin 1 to 
address the urgency and degree of imperilment associated with species 
in that bin. The Service will evaluate on a case-by-case basis other 
instances in which an action meets the criteria for more than one bin. 
In the particular instance highlighted by the commenter, where there is 
strong data indicating that listing a particular species is likely 
warranted and conservation measures likely to address the threats to 
the species are underway, the Service could choose to add the species 
to Bin 4. In this example, placement in Bin 4 would allow the Service 
to concentrate its resources on status reviews and accompanying 12-
month findings for higher-priority species for which the conservation 
status is unlikely to change in the immediate future. Meanwhile, the 
conservation efforts for the species at issue might ameliorate threats 
such that listing would not be warranted by the time the Service 
completed higher-priority actions. This approach would also 
appropriately prioritize for earlier action species for which no 
conservation efforts are underway.

Comments Regarding Bin 3

    Comment (8): One commenter requested additional clarity regarding 
the types of data, uncertainties, or ongoing studies that are needed to 
appropriately place an action in Bin 3. The commenter suggested that 
actions only be placed in Bin 3 if the uncertainty relates to whether 
the species is imperiled or not and the new information may shift the 
outcome of the 12-month finding.
    Our Response: Scientific uncertainty regarding information that 
could affect a species' status is often encountered in listing 
decisions. If the research underway would have no bearing on a status 
determination, we would not place the species in Bin 3. However, many 
types of information, in addition to degree of imperilment, inform the 
outcome of a status determination. For example, ongoing investigations 
into questions regarding taxonomy and genetics inform whether the 
entity being evaluated qualifies as a listable entity or not. 
Therefore, a variety of types of research efforts underway may qualify 
an action for placement in Bin 3.
    Comment (9): Several commenters asked for the Service to define 
``reasonable timeframe'' and also noted that the Act does not allow for 
an exception to the 12-month timeframe to complete a status review and 
12-month finding. One commenter encouraged the Service to make timely 
decisions.
    Our Response: In our draft methodology (81 FR 2229; January 15, 
2016), and in this final methodology, we readily acknowledge the 
requirements of the Act to make a status review and accompanying 12-
month petition finding within 12 months of receiving a petition. 
However, it is not possible, given our budget limitations established 
by Congress and the immense backlog of 12-month findings, to meet our 
statutory obligations under the Act for 12-month findings. Regarding 
the request to define ``reasonable timeframe,'' we cannot specify a 
particular value of months or years. Rather, we have added language to 
the Bin 3 description to provide clarification that we intend 
``reasonable timeframe'' to mean that the new information should be 
made available to us within a timeframe that is reasonable, considering 
what information is already known about threats, status, and trends for 
the species and how pivotal the new study would be to inform our status 
determination. This will allow for the necessary flexibility to assess 
case-specific facts and implement this prioritization methodology and 
thereby inform the National Listing Workplan. In this way, we envision 
being able to make decisions in a timely manner while providing 
predictability for our conservation partners.

Comments Regarding Bin 4

    Comment (10): Several commenters requested the Service clarify that 
the types of conservation measures (permanent versus temporary; 
enforceable versus unenforceable) matter when considering binning 
species.
    Our Response: Bin 4 would include species for which conservation 
efforts are organized, underway, and likely to address the threats to 
the species. These efforts could include a variety of different types 
of conservation efforts, and it is difficult to anticipate all the fact 
patterns that could arise. By using the phrase ``likely to address the 
threats to the species,'' we mean that they are at a scale that is 
relevant to the conservation of the species and that they are likely to 
be able to influence the outcome of a listing determination. If 
conservation efforts, although laudable, would not be able to address 
the major threats to a species, the species would not be appropriate 
for placement in Bin 4. Likewise, conservation efforts should aim to be 
implemented and effective by the time of the listing determination or 
to meet the PECE standard if either or both of those criteria have not 
been achieved (i.e., demonstrate a high certainty of implementation 
and/or effectiveness).
    Comment (11): Several commenters suggested the consideration of 
conservation measures (Bin 4) should be a higher priority than ``new 
science underway'' (Bin 3), while one other commenter suggested Bin 4 
be given the lowest priority to allow time for conservation measures to 
become effective and obviate the need to list species.
    Our Response: The Service chooses to maintain the order of bins as 
described in the draft and this final methodology. We have determined 
that it is more logical to keep Bin 5 as the lowest priority, rather 
than Bin 4. Placing the current Bin 5 ahead of the current Bin 4 would 
mean allocating more resources to data-deficient species rather than to 
species with higher-quality information. The order of Bin 3 also may 
have the effect of allowing time for needed scientific investigations 
to be completed and available for consideration in any 12-month 
finding. Lastly, we anticipate that Bin 5 will be used less in the 
future with more-consistent application of the 90-day finding standard; 
for example, if the proposed revised petition regulations are finalized 
as noticed to the public on April 16, 2016 (81 FR 23448), species with 
little information would be dismissed at the 90-day stage rather than 
considered for a full status review. The current order of the bins 
focuses the Service's resources first on those species whose status is 
unlikely to change, with the effect of allowing time for conservation 
measures to mature and become effective, potentially obviating the need 
to list species.
    Comment (12): One commenter stated that Bin 4 mixes two separate 
considerations under the Act, listing and recovery. The commenter 
stated that a full determination of whether ongoing conservation 
efforts are sufficient to address threats can only be made if a 
recovery plan has been developed for a species.
    Our Response: The Service has a long history of considering whether 
conservation efforts effectively ameliorate threats to species when 
making listing determinations under the Act. In particular, section 
4(b)(1)(A) of the Act specifies that we consider conservation efforts 
being made by any State or political subdivision of a State when 
conducting a review of the status of a particular species. Our status 
assessments always consider conservation efforts that have been 
implemented and effective when analyzing the overall status of a 
species. We apply PECE when we wish to rely on conservation efforts in 
our status assessments that have not yet been implemented or been shown 
to be

[[Page 49253]]

effective. A recent example of the application of PECE is the not-
warranted finding for the least chub (79 FR 51042; August 26, 2014). A 
recovery plan does not need to be in place before we can accurately 
assess whether conservation efforts are likely to affect a listing 
determination.
    Comment (13): Several commenters questioned the meaning of the 
phrase, ``completed in time for consideration in the status review'' 
and asked for a definition of this phrase.
    Our Response: We have changed the phrase ``completed in time'' to 
``reasonable timeframe'' in this final methodology. We added language 
to the description of Bin 4 stating that conservation efforts should be 
in place now or within a reasonable timeframe, considering what 
information is already known about threats, status, and trends for the 
species and how pivotal the conservation efforts would be to inform our 
status determination.
    Comment (14): A commenter questioned whether conservation efforts 
need be completed or participants only be enrolled. If the Service 
intends only the latter, the commenter recommends actions should be 
evaluated according to PECE.
    Our Response: When we refer to conservation efforts, we consider 
those to be specific actions, activities, or programs designed to 
eliminate or reduce threats or otherwise improve the status of a 
species. We have added language to the description of Bin 4 to clarify 
this point. Our intention is for this methodology to be an assessment 
tool to quickly and strategically prioritize our workload. Before we 
can rely on conservation efforts that have not been implemented or 
shown to be effective as a basis for not listing a species that would 
otherwise be warranted, we first must determine that the efforts have a 
high certainty of effectiveness and implementation in accordance with 
PECE.

Comments Regarding Bin 5

    Comment (15): One commenter suggested reevaluating species in Bin 5 
on a regular basis to determine whether they can be moved to another 
bin.
    Our Response: If we receive additional information on a species for 
which we formerly had little information, we can revisit the order in 
which we plan to address it. We may take into consideration such 
factors as: Whether moving an action for a species into another bin 
would disrupt other actions in that bin; whether resources would be 
available to address the action; whether conservation partners would be 
able to take action on that particular species; or other relevant 
factors. However, because the National Listing Workplan is designed to 
provide predictability to our stakeholders on what actions we are 
taking and when, we want to avoid delaying already scheduled actions to 
the extent possible. Therefore, we might not be able to change the 
timeframe associated with that action unless we determined that it 
qualified for Bin 1 or we have the ability to take on additional work 
with our existing resources.
    Comment (16): Many commenters disagreed with the concept of Bin 5 
altogether and suggested species in this bin should not be subjected to 
status reviews if almost no data exist regarding their status. Other 
commenters were concerned that species in this bin would be ``parked'' 
here indefinitely. A few commenters stressed that the relevant inquiry 
for a 12-month finding is not whether there is a lack of data, but 
rather an assessment of the best available scientific and commercial 
data regarding a species. Commenters reminded the Service that there is 
a significant distinction between not knowing enough about a species 
and a circumstance where the best available information does not 
indicate listing is warranted.
    Our Response: Under the Act, once we make a positive 90-day 
finding, we are required to conduct a status review of the species and 
issue a 12-month finding. If the best available scientific and 
commercial information is extremely limited, and nothing in that 
information points to operative threats to the species or its habitat, 
the Service is likely to make a not-warranted 12-month finding (or, in 
the future, if the Service is faced with such a petition, there is a 
good chance it would find at the 90-day finding stage that the petition 
does not present substantial information). We also agree that the basis 
for a not-warranted finding must be the best available scientific and 
commercial information; the concept of not knowing enough about a 
species is not a basis for a not-warranted finding. Many of the species 
that are currently appropriate for placement in Bin 5 are species from 
one or more multi-species petitions we received between 2007 and 2012. 
Faced with fulfilling our obligation to make 90-day findings for 
hundreds of species in a short period of time, we made positive 90-day 
findings for some species with little more than general habitat or 
occurrence information because we were more concerned with false 
negatives (Type 2 errors) rather than false positives (Type 1 errors). 
Those species now make up the majority of actions in Bin 5. Despite 
this, placing a species in Bin 5 does not put off working on the 
listing action, it simply prioritizes species in Bins 1, 2, 3, and 4 
for completion first. We intend to make findings on species in Bin 5 as 
our resources allow. Once we have processed the species currently 
appropriate for placement in Bin 5, we anticipate that the use of this 
bin will be infrequent in the future as we strive for greater 
consistency in our application of the 90-day standard.
    Comment (17): A commenter stated specific criteria should be 
developed to differentiate between strong versus limited data. Another 
commenter suggested rephrasing ``we know almost nothing about its 
threats or status.''
    Our Response: It has been our experience that data regarding a 
species' status are a relative measure and, thus, vary based on the 
circumstances for a particular species, so we have not further defined 
these terms. Furthermore, providing precise definitions may 
unintentionally limit our ability to bin actions appropriately.
    Regarding the request to rephrase ``we know almost nothing about 
its threats or status,'' we have rephrased the description of Bin 5 in 
this final methodology to ``limited information is available regarding 
its threats or status.''

Comments Regarding Additional Considerations

    Comment (18): Many commenters questioned how the additional 
considerations would be applied to move species between bins.
    Our Response: We have split the section of the draft methodology 
titled Additional Considerations into two sections for the final 
methodology. In the draft methodology, the first two bullets under 
Additional Considerations related to how we would consider prioritizing 
species within bins. In the final methodology, above, this information 
is now titled Sub-Ranking Considerations. We have clarified the 
language in this final methodology to reduce confusion and highlight 
that the three sub-ranking considerations will not be used to move 
species between bins, but rather will be used as tie-breakers to sub-
rank species within a particular bin.
    The third and fourth bullets under Additional Considerations in the 
draft methodology do not relate to ranking within bins, but rather are 
important considerations regarding exceptions to the priority order in 
scheduling actions in the National Listing Workplan. In the final 
methodology, above, this information is now titled Exceptions to 
Priority Order.

[[Page 49254]]

    Comment (19): Several commenters suggested the examples used in the 
second bullet under the draft methodology's Additional Considerations 
section were biased against grazing and in suggesting that the Act 
cannot ameliorate threats related to climate change. Another commenter 
suggested that using the purported ability, or lack thereof, of the Act 
to improve a species' condition was a cynical and self-fulfilling 
prophecy.
    Our Response: In our 40 years' experience implementing the Act, we 
have learned that the protections provided for under the Act better 
address some types of threats than others. For example, species that 
have been threatened by excessive human-caused mortality (e.g., bald 
eagle, peregrine falcon, gray wolf, and grizzly bear) have seen 
relatively quick increases once the sources of mortality were managed. 
The Act's provisions are less effective against other threats, such as 
sea-level rise or catastrophic events (e.g., tsunamis, drought). The 
sub-ranking considerations will be used to rank species within their 
particular bins. The consideration of whether the Act can improve 
conditions for a species' status is a useful tool to assist in the 
prioritization of listing species that need help first, and where, 
within a bin, our resources would be best spent first.
    Comment (20): Several commenters disagreed with our inclusion of 
the ``level of complexity'' and ``level of controversy'' as additional 
sub-ranking considerations, stating that the inclusion of such criteria 
is contrary to the obligation of the Service to make decisions based on 
the best available scientific and commercial data. Commenters were 
concerned that complexity and controversy could be used to delay 
decisions on ``politically sensitive'' species.
    Our Response: We will always use the best scientific and commercial 
data available when evaluating species for listing under the Act. 
However, we underscore that this prioritization methodology is not to 
be used to make decisions about whether species should be listed under 
the Act. Rather, this methodology is a system to manage our outstanding 
workload. The consideration of level of complexity and level of 
controversy are important points for managing our workload, in that 
they can inform the breadth and depth of a particular action. Knowing 
ahead of time the expected complexity and controversy of an action will 
inform our allocation of resources to address that particular action.

Other Comments

    Comment (21): One commenter suggested using State wildlife action 
plans as the principle source of information for binning species.
    Our Response: We will use appropriate information sources to assign 
species to bins, including information from State wildlife action plans 
(SWAPs). We acknowledge that the information in SWAPs is a tremendous 
resource. However, not all information needed to accurately bin species 
would necessarily be contained in SWAPs. We intend to use information 
from our files and other available resources to bin actions 
appropriately.
    Comment (22): A commenter stated that questions regarding ``what is 
a species?'' must be resolved before listing and that actions for 
species that have questionable taxonomy or questions regarding 
``listability'' under the Act should be placed in lower priority bins.
    Our Response: As stated in the draft and this final methodology, we 
will place species in Bin 3 if there is some uncertainty about taxonomy 
that can be addressed with new science that is underway. Species 
without such uncertainties and without emerging science underway to 
address uncertainties may be placed in any other bin deemed appropriate 
depending on the particular facts of the situation.
    Comment (23): Some commenters expressed support of our intentions 
to work with States, Tribes, and other appropriate conservation 
partners, while other commenters encouraged broadening the scope to 
include other parties such as industry and local governments.
    Our Response: We think it most appropriate to include the mention 
of conservation partners with management authority for species because 
it has been our experience that those entities have the most specific 
and pertinent information for the binning methodology. However, we 
accept and welcome information from interested parties at any time. We 
will consider information received from all parties while assessing the 
most appropriate bin for a species.
    Comment (24): One commenter stated that this methodology cannot 
become an excuse for not making a determination based on inadequate 
data.
    Our Response: This methodology is a prioritization process and is 
not a substitute for our independent obligations under the Act for 
determining whether species meet the definitions of ``endangered 
species'' or ``threatened species.'' It is not the Service's intent to 
use the methodology as an excuse for not making determinations based on 
inadequate data. Rather, we will continue to follow the requirements of 
the Act, including making determinations based on the best available 
scientific and commercial data at the time we make the decision.
    Comment (25): A commenter stated that the Service should be careful 
in using the strength-of-data criterion so that it does not become the 
basis for fast-tracking listing while delaying not-warranted 
determinations.
    Our Response: This binning methodology is intended to provide 
clarity for the public and stakeholders, as well as Service staff, 
about how we will prioritize our workload. As described in Bin 2, 
strength of data applies to situations where listing is likely 
warranted and where listing is likely not warranted. In both 
situations, strong data may lead to such species being prioritized 
ahead of those whose situations are less certain (Bins 3, 4, and 5). 
Therefore, we do not view the strength of data to be a fast track for 
listings at the expense of not-warranted determinations.
    Comment (26): Several commenters noted that this methodology 
appeared to endorse a departure from statutory timeframes, and those 
commenters do not agree with this departure.
    Our Response: Our intent for this methodology is to provide a means 
by which we are able to process our substantial outstanding workload 
with a transparent prioritization system. Our ability to comply with 
statutory timeframes depends directly on the funding allocated by 
Congress to do so. This amount has been capped at $1.5 million for the 
last several years. This final prioritization methodology does not 
modify our statutory obligations under the Act. While it is true that 
the Service has been unable to address the hundreds of overdue 12-month 
findings, resource limitations leave us with no conceivable scenario 
where the Service would be able to address them in their respective 
statutory timeframes.
    Comment (27): A commenter suggested the focus of the methodology 
should be a reliance on existing information to rank species rather 
than collecting new information.
    Our Response: Collection of new information is not needed in order 
to rank actions using this methodology; actions will be assigned to 
bins using the information available to the Service in our files, the 
90-day finding, any petitions, and that we have received from our 
partners. The need for additional information to clarify issues

[[Page 49255]]

related to taxonomy (Bin 3) or waiting for additional information 
regarding implementation of conservation efforts (Bin 4) is part of 
this methodology. However, we do not view these two instances as 
collection of new information that will inform placement in bins.
    Comment (28): One commenter recommended adding a Bin 6 for those 
species where strong evidence indicates listing is not warranted.
    Our Response: We believe that the commenter's concern is addressed 
by Bin 2, which includes those species for which we have strong 
information indicating that listing is likely not warranted.

Determinations Under Other Authorities

    As mentioned above, we intend to use this methodology to prioritize 
work on status reviews and accompanying 12-month findings and to assist 
with prioritizing actions. Below we make determinations provided for 
under several Executive Orders and statutes that may apply where a 
Federal action is not a binding rule or regulation.

National Environmental Policy Act (NEPA)

    We have analyzed this final methodology in accordance with the 
criteria of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 
et seq.), the Department of the Interior regulations on Implementation 
of the National Environmental Policy Act (43 CFR 46.10-46.450), and the 
Department of the Interior Manual (516 DM 1-4 and 8).
    We have determined that this methodology is categorically excluded 
from NEPA documentation requirements consistent with 40 CFR 1508.4 and 
43 CFR 46.210(i). This categorical exclusion applies to policies, 
directives, regulations, and guidelines that are ``of an 
administrative, financial, legal, technical, or procedural nature.'' 
This action does not trigger an extraordinary circumstance, as outlined 
at 43 CFR 46.215, applicable to the categorical exclusion. Therefore, 
this methodology does not constitute a major Federal action 
significantly affecting the quality of the human environment.

Paperwork Reduction Act of 1995

    This final methodology does not contain any collections of 
information that require approval by the Office of Management and 
Budget (OMB) under the Paperwork Reduction Act (44 U.S.C. 3501 et 
seq.). This final methodology will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. We may not conduct or sponsor and you are 
not required to respond to a collection of information unless it 
displays a currently valid OMB control number.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175 ``Consultation and 
Coordination with Indian Tribal Governments,'' the Department of the 
Interior Manual at 512 DM 2, and the Department of Commerce American 
Indian and Alaska Native Policy (March 30, 1995), we have considered 
possible effects on federally recognized Indian tribes and have 
determined that there are no potential adverse effects of issuing this 
final methodology. Our intent with this final methodology is to provide 
transparency to Tribes and other stakeholders in the prioritization of 
our future workload. We will work with Tribes as we implement this 
final methodology and obtain the information necessary to bin specific 
actions accurately.

Authors

    The primary authors of this final methodology are the staff members 
of the Division of Conservation and Classification, U.S. Fish and 
Wildlife Service, 5275 Leesburg Pike, Falls Church, VA 22041.

Authority

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

    Dated: July 19, 2016.
Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2016-17818 Filed 7-26-16; 8:45 am]
 BILLING CODE 4333-15-P