[Federal Register Volume 74, Number 43 (Friday, March 6, 2009)]
[Presidential Documents]
[Pages 9753-9754]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-4880]


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  Federal Register / Vol. 74, No. 43 / Friday, March 6, 2009 / 
Presidential Documents  

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 Title 3--
 The President

[[Page 9753]]

                Memorandum of March 3, 2009

                
The Endangered Species Act

                Memorandum for the Heads of Executive Departments and 
                Agencies

                The Endangered Species Act (ESA), 16 U.S.C. 1531 et 
                seq., reflects one of the Nation's profound 
                commitments. Pursuant to that Act, the Federal 
                Government has long required a process of broad 
                interagency consultation to ensure the application of 
                scientific and technical expertise to decisions that 
                may affect threatened or endangered species. Under that 
                interagency process, executive departments and agencies 
                (agencies) contemplating an action that may affect 
                endangered or threatened species have long been 
                required, except in certain limited circumstances, to 
                consult with, and in some circumstances obtain the 
                prior written concurrence of, the Fish and Wildlife 
                Service (FWS) and/or the National Marine Fisheries 
                Service (NMFS)--the expert agencies that have the 
                primary responsibility to ensure that the ESA is 
                implemented in accordance with the law.

                On December 16, 2008, the Departments of the Interior 
                and Commerce issued a joint regulation that modified 
                these longstanding requirements. See 73 Fed. Reg. 
                76272. This new regulation expands the circumstances in 
                which an agency may determine not to consult with, or 
                obtain the written concurrence of, the FWS or NMFS 
                prior to undertaking an action that may affect 
                threatened or endangered species. But under the new 
                regulation, agencies may continue the previous practice 
                of consulting with, and obtaining the written 
                concurrence of, the FWS and NMFS as a matter of 
                discretion.

                I hereby request the Secretaries of the Interior and 
                Commerce to review the regulation issued on December 
                16, 2008, and to determine whether to undertake new 
                rulemaking procedures with respect to consultative and 
                concurrence processes that will promote the purposes of 
                the ESA.

                Until such review is completed, I request the heads of 
                all agencies to exercise their discretion, under the 
                new regulation, to follow the prior longstanding 
                consultation and concurrence practices involving the 
                FWS and NMFS.

                This memorandum is not intended to, and does not, 
                create any right or benefit, substantive or procedural, 
                enforceable at law or in equity by any party against 
                the United States, its departments, agencies, or 
                entities, its officers, employees, or agents, or any 
                other person. Agencies shall carry out the provisions 
                of this memorandum to the extent permitted by law and 
                consistent with statutory authorities.

[[Page 9754]]

                The Secretary of the Interior is hereby authorized and 
                directed to publish this memorandum in the Federal 
                Register.
                
                
                    (Presidential Sig.)

                THE WHITE HOUSE,

                    Washington, March 3, 2009

[FR Doc. E9-4880
Filed 3-5-09; 8:45 am]
Billing code 4310-10-P