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The National Marine Fisheries Service and U.S. Fish and Wildlife Service (collectively referred to as the Services) propose to amend portions of our regulations that implement section 7 of the Endangered Species Act of 1973, as amended. A final rule revising the Endangered Species Act (ESA) Interagency Cooperation Regulations at 50 CFR 402 was published on April 5, 2024, and became effective on May 6, 2024. Pursuant to a review of this rule under E.O. 14154 and DOI Secretarial Order 3418, the Services are proposing to revise provisions of the 2024 final rule (89 FR 24268). The resulting rulemaking action will clarify, interpret, and implement portions of section 7 of the ESA concerning interagency cooperation procedures. This rulemaking would revise existing procedures for federal agencies, including the Services under section 7 of the ESA. Federal agencies would be the only entities directly affected by this rulemaking.

Statement of Need:

This action responds to the Executive Order ( E.O.) 14154, titled "Unleashing American Energy," which directed the removal of impediments imposed on the development and use of the country’s energy and natural resources by the previous administration's regulations, and the Department of Interior (DOI) Secretarial Order (SO) 3418, to implement EO 14154 which specifically requires that the U.S. Fish and Wildlife Service (USFWS), in cooperation with the National Marine Fisheries Service (NMFS) take action to suspend, revise, or rescind the ESA regulations that were revised in 2024.   E.O. 14219 also directs all departments and agencies to review and rescind unlawful regulations that are "based on anything other than the best reading of the underlying statutory authority."  

Summary of the Legal Basis:

This action is authorized under 16 U.S.C. 1531 et seq.  

Alternatives:

This is a joint rulemaking by NMFS and USFWS (collectively referred to as the Services) to amend portions of our regulations that implement section 7 of the Endangered Species Act of 1973, as amended. A final rule revising the Endangered Species Act (ESA) Interagency Cooperation Regulations at 50 CFR 402 was published on April 5, 2024, and became effective on May 6, 2024. Pursuant to a review of this rule under E.O.14154, E.O. 14219, and DOI Secretarial Order 3418, the Services are proposing to revise provisions of the 2024 final rule (89 FR 24268). The resulting rulemaking action will revise, interpret, and implement portions of section 7 of the ESA concerning interagency cooperation procedures. This rulemaking would revise existing procedures for Federal agencies, including the Services under section 7 of the ESA. Prior to developing and issuing a final rule, the Services will review and consider public comments received.  

Anticipated Costs and Benefits:

The rulemaking revises existing requirements for Federal agencies, including the Services, under section 7 of the ESA. Federal agencies are the only entities affected by this rule. We do not anticipate significant costs associated with the rule. This rule is intended to revise the standards with which we evaluate proposed Federal agency actions pursuant to section 7 of the ESA.

Risks:

This action addresses the ESA Interagency Cooperation provisions in the Services’ joint ESA implementing regulations. This action will receive a significant level of scrutiny and attention by a diverse set of constituents. The 2024 rule is subject to ongoing litigation and this rulemaking may influence that process.  Overall, the proposed changes will reduce the risk to ESA-listed species and designated critical habitat associated with ensuring Federal action agencies do not jeopardize the continued existence of listed species or destroy or adversely modify designated critical habitat and continue to provide for the conservation of ESA resources.