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Federal Register / Vol. 86, No. 150 / Monday, August 9, 2021 / Proposed Rules but-precluded 12-month finding to the candidate list.
Therefore, all candidate species identified through our own initiative already have received the equivalent of substantial 90-day and warranted-butprecluded 12-month findings.
Nevertheless, if we receive a petition to list a species that we have already identified as a candidate, we review the status of the newly petitioned candidate species and through this CNOR publish specific section 4b3 findings i.e., substantial 90-day and warranted-butprecluded 12-month findings in response to the petitions to list these candidate species. We publish these findings as part of the first CNOR
following receipt of the petition. We have identified the candidate species for which we received petitions and made a continued warranted-but-precluded finding on a resubmitted petition by the code C in the category column on the left side of Table 4, below.
Second, the CNOR serves as a resubmitted petition finding. Section 4b3Ci of the Act requires that when we make a warranted-butprecluded finding on a petition, we treat the petition as one that is resubmitted on the date of the finding. Thus, we must make a 12-month petition finding for each such species at least once a year in compliance with section 4b3B of the Act, until we publish a proposal to list the species or make a final notwarranted finding. We make these annual resubmitted petition findings through the CNOR. To the extent these annual findings differ from the initial 12-month warranted-but-precluded finding or any of the resubmitted petition findings in previous CNORs, they supersede the earlier findings, although all previous findings are part of the administrative record for the new finding, and in the new finding, we may rely upon them or incorporate them by reference as appropriate, in addition to explaining why the finding has changed.
Third, through undertaking the analysis required to complete the CNOR, the Service determines if any candidate species needs emergency listing. Section 4b3Ciii of the Act requires us to implement a system to monitor effectively the status of all species for which we have made a warranted-but-precluded 12-month finding, and to make prompt use of the emergency listing authority under section 4b7 of the Act to prevent a significant risk to the well being of any such species. The CNOR plays a crucial role in the monitoring system that we have implemented for all candidate species by providing notice that we are
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actively seeking information regarding the status of those species. We review all new information on candidate species as it becomes available, prepare an annual species assessment form that reflects monitoring results and other new information, and identify any species for which emergency listing may be appropriate. If we determine that emergency listing is appropriate for any candidate, we will make prompt use of the emergency listing authority under section 4b7 of the Act. For example, on August 10, 2011, we emergency listed the Miami blue butterfly 76 FR
49542. We have been reviewing and will continue to review, at least annually, the status of every candidate, whether or not we have received a petition to list it. Thus, the CNOR and accompanying species assessment forms constitute the Services system for monitoring and making annual findings on the status of petitioned species under sections 4b3Ci and 4b3Ciii of the Act.
A number of court decisions have elaborated on the nature and specificity of information that we must consider in making and describing the petition findings in the CNOR. The CNOR that published on November 9, 2009 74 FR
57804, describes these court decisions in further detail. As with previous CNORs, we continue to incorporate information of the nature and specificity required by the courts. For example, we include a description of the reasons why the listing of every petitioned candidate species is both warranted and precluded at this time. 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 also because we allocate our listing budget on a nationwide basis see below. Our preclusion determinations are further based upon our budget for listing activities for unlisted species only, and we explain the priority system and why the work we have accomplished has precluded action on listing candidate species.
In preparing this CNOR, we reviewed the current status of, and threats to, the 19 foreign species candidates for which we have received a petition to list. We find that the immediate issuance of a proposed rule and timely promulgation of a final rule for each of these species has been, for the preceding months, and continues to be, precluded by higher priority listing actions. Additional information that is the basis for this finding is found in the species assessments and our administrative record for each species.

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The immediate publication of proposed rules to list these species was precluded by our work on higher priority listing actions, listed below, during the period from October 1, 2018, through September 30, 2020. Below we describe the actions that continue to preclude the immediate proposal and final promulgation of a regulation implementing each of the petitioned actions for which we have made a warranted-but-precluded finding, and we describe the expeditious progress we are making to add qualified species to, and remove species from, the Lists. We will continue to monitor the status of all candidate species, including petitioned species, as new information becomes available to determine if a change in status is warranted, including the need to emergency list a species under section 4b7 of the Act. As described above, under section 4 of the Act, we identify and propose species for listing based on the factors identified in section 4a1either on our own initiative or through the mechanism that section 4
provides for the public to petition us to add species to the Lists of Endangered or Threatened Wildlife and Plants.
Preclusion and Expeditious Progress To make a finding that a particular action is warranted but precluded, the Service must make two determinations:
1 That the immediate proposal and timely promulgation of a final regulation is precluded by pending proposals to determine whether any species is endangered or threatened; and 2 that expeditious progress is being made to add qualified species to either of the Lists and to remove species from the Lists 16 U.S.C. 1533b3Biii.
Preclusion A listing proposal is precluded if the Service does not have sufficient resources available to complete the proposal, because there are competing demands for those resources, and the relative priority of those competing demands is higher. Thus, in any given fiscal year FY, multiple factors dictate whether it will be possible to undertake work on a proposed listing regulation or whether promulgation of such a proposal is precluded by higher priority listing actions1 the amount of resources available for completing the listing function, 2 the estimated cost of completing the proposed listing regulation, and 3 the Services workload, along with the Services prioritization of the proposed listing regulation, in relation to other actions in its workload.

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