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Federal Register / Vol. 86, No. 150 / Monday, August 9, 2021 / Proposed Rules
Available Resources The resources available for listing actions are determined through the annual Congressional appropriations process. In FY 1998 and for each fiscal year since then, Congress has placed a statutory cap on funds that may be expended for the Listing Program spending cap. This spending cap was designed to prevent the listing function from depleting funds needed for other functions under the Act for example, recovery functions, such as removing species from the Lists, or for other Service programs see House Report 105163, 105th Congress, 1st Session, July 1, 1997. The funds within the spending cap are available to support work involving the following listing actions: Proposed and final rules to add species to the Lists or to change the status of species from threatened to endangered; 90-day and 12-month findings on petitions to add species to the Lists or to change the status of a species from threatened to endangered;
annual resubmitted petition findings on prior warranted-but-precluded petition findings as required under section 4b3Ci of the Act; critical habitat petition findings; proposed rules designating critical habitat or final critical habitat determinations; and litigation-related, administrative, and program-management functions including preparing and allocating budgets, responding to Congressional and public inquiries, and conducting public outreach regarding listing and critical habitat.
For more than two decades, the size and cost of the workload in these categories of actions have far exceeded the amount of funding available to the Service under the spending cap for completing listing and critical habitat actions under the Act. Since we cannot exceed the spending cap without violating the Anti-Deficiency Act 31
U.S.C. 1341a1A, each year we have been compelled to determine that work on at least some actions was precluded by work on higher-priority actions. We make our determinations of preclusion on a nationwide basis to ensure that the species most in need of listing will be addressed first, and because we allocate our listing budget on a nationwide basis.
Through the listing cap and the amount of funds needed to complete courtmandated actions within the cap, Congress and the courts have in effect determined the amount of money remaining after completing courtmandated actions for listing activities nationwide. Therefore, the funds that remain within the listing capafter paying for work needed to comply with
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court orders or court-approved settlement agreementsset the framework within which we make our determinations of preclusion and expeditious progress.
In FY 2019, through the Consolidated Appropriations Act of 2019 Pub. L.
1166, February 15, 2019, Congress appropriated the Service $18,318,000
under a consolidated cap for all domestic and foreign listing work, including status assessments, listing determinations, domestic critical habitat designations, and related activities. In FY 2020, through the Further Consolidated Appropriations Act, 2020
Pub. L. 11694, December 20, 2019, Congress appropriated $20,318,000 for all domestic and foreign listing work.
The amount of funding Congress will appropriate in future years is uncertain.
Costs of Listing Actions The work involved in preparing various listing documents can be extensive, and may include, but is not limited to: Gathering and assessing the best scientific and commercial data available and conducting analyses used as the basis for our decisions; writing and publishing documents; and obtaining, reviewing, and evaluating public comments and peer-review comments on proposed rules and incorporating relevant information from those comments into final rules. The number of listing actions that we can undertake in a given year also is influenced by the complexity of those listing actions; that is, more complex actions generally are more costly. The Service has developed several ways to determine the relative priorities of the actions within its workload to identify the work it can complete with the funding it has available under the spending cap for listing and critical habitat actions each year.
Prioritizing Listing Actions The Services Listing Program workload is broadly composed of four types of actions, which the Service prioritizes as follows: 1 Compliance with court orders and court-approved settlement agreements requiring that petition findings or listing determinations or critical habitat designations be completed by a specific date; 2 essential litigation-related, administrative, and listing programmanagement functions; 3 section 4 of the Act listing and critical habitat actions with absolute statutory deadlines; and 4 section 4 listing actions that do not have absolute statutory deadlines.
In previous years, the Service received many new petitions, including
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multiple petitions to list numerous speciesin one example, a single petition sought to list 404 domestic species. The emphasis that petitioners placed on seeking listing for hundreds of species at a time through the petition process significantly increased the number of actions within the third category of our workloadactions that have absolute statutory deadlines for making findings on those petitions. In addition, the necessity of dedicating all of the Listing Program funding towards determining the status of 251 candidate species and complying with other courtordered requirements between 2011 and 2016 added to the number of petition findings awaiting action. Because we are not able to work on all of these at once, the Services most recent effort to prioritize its workload focuses on addressing the backlog in petition findings that has resulted from the influx of large multi-species petitions and the 5-year period in which the Service was compelled to suspend making 12-month findings for most of those petitions. The number of petitions that are awaiting status reviews and accompanying 12-month findings illustrates the considerable extent of this backlog. As a result of the outstanding petitions to list hundreds of species, and our efforts to make initial petition findings within 90 days of receiving the petition to the maximum extent practicable, at the beginning of FY 2020, we had 36 12-month petition findings for foreign species yet to be initiated and completed and 422 12-month petition findings for domestic species yet to be initiated and completed.
To determine the relative priorities of the outstanding 12-month petition findings, the Service developed a prioritization methodology methodology 81 FR 49248; July 27, 2016 after providing the public with notice and an opportunity to comment on the draft methodology 81 FR 2229;
January 15, 2016. Under the methodology, we assign outstanding 12month petition findings to one of five priority bins. 1 The species is critically imperiled; 2 strong data are already available about the status of the species;
3 new science is underway that would inform key uncertainties about the status of the species; 4 conservation efforts are in development or underway and likely to address the status of the species; or 5 the available data on the species are limited. As a general matter, 12-month findings with a lower bin number have a higher priority than, and are scheduled before, 12-month findings with a higher bin number. However, we make some limited exceptionsfor
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