[Federal Register Volume 91, Number 64 (Friday, April 3, 2026)]
[Notices]
[Pages 16966-16967]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-06458]
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DEPARTMENT OF THE INTERIOR
DEPARTMENT OF THE ARMY
ENVIRONMENTAL PROTECTION AGENCY
DEPARTMENT OF AGRICULTURE
DEPARTMENT OF COMMERCE
Endangered Species Committee
AGENCY: Office of the Secretary, Interior; Department of the Army;
Environmental Protection Agency; Department of Agriculture; Council of
Economic Advisors, Executive Office of the President; Department of
Commerce.
ACTION: Notice.
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SUMMARY: The Endangered Species Committee held a public meeting on
Tuesday, March 31, 2026, in Washington, DC, to address the Secretary of
War's finding that it is necessary for reasons of national security to
exempt Gulf of America Oil and Gas Activities (defined below) from the
requirements of the Endangered Species Act. By unanimous vote, the
Committee exempted under section 7(h) of the Endangered Species Act the
Gulf of America Oil and Gas Activities, which include the avoidance or
minimization measures described in the National Marine Fisheries
Service's (NMFS) 2025 biological opinion and in the U.S. Fish and
Wildlife Service's (FWS) 2018 and 2025 consultation decisions.
SUPPLEMENTARY INFORMATION: A notice in the March 16, 2026 Federal
Register, 91 FR 12672, advised that the Secretary of the Interior, who
is also the Chairman of the Endangered Species Committee, had called a
meeting of the Endangered Species Committee for Tuesday, March 31,
2026, in Washington, DC, with the meeting open to the public through
livestreaming.
Decision
On March 13, 2026, the Chairman of the Endangered Species Committee
received from the Secretary of War a March 13, 2026 Letter regarding
the Endangered Species Act. The Secretary of War notified the Chairman
that he found it necessary for reasons of national security that the
Endangered Species Committee grant an exemption from the Endangered
Species Act's requirements for the agency action reviewed in NMFS's
2025 biological opinion and in FWS's 2018 and 2025 consultation
decisions. That agency action is defined in the Secretary of War's
National Security Findings (paragraphs 90 and 103) and covers all oil
and gas exploration, development, and production activities associated
with the Bureau of Ocean Energy Management's (BOEM) and the Bureau of
Safety and Environmental Enforcement's (BSEE) Outer Continental Shelf
Oil and Gas Program.\1\ The agency action is referred to here as ``Gulf
of America Oil and Gas Activities.'' The Gulf of America Oil and Gas
Activities include both the oil and gas exploration, development, and
production activities, as well as the avoidance or minimization
measures that are described in the agency action analyzed in NMFS's
2025 biological opinion and in FWS's 2018 and 2025 consultation
decisions.
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\1\ The Secretary of War attached his National Security Findings
to the March 13 Letter that he sent to the Chairman.
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Section 7(j) of the Endangered Species Act provides:
``Notwithstanding any other provision of this chapter, the Committee
shall grant an exemption for any agency action if the Secretary of
[War] finds that such exemption is necessary for reasons of national
security.'' 16 U.S.C. 1536(j). The Secretary of War, after making this
finding, requested that the Chairman convene a meeting of the
Endangered Species Committee as soon as practicable to grant an
exemption to safeguard and protect the national security. The Chairman
then called a meeting for March 31, 2026, and the Committee convened
that day.
Based on the Secretary of War's National Security Findings, the
Committee grants pursuant to section 7(h) an exemption from the
requirements of the Endangered Species Act for Gulf of America Oil and
Gas Activities. 16 U.S.C. 1536(h). With this exemption, the federal
agencies implementing the Gulf of America Oil and Gas Activities are
not required to comply with the section 7(a)(2) procedural consultation
and substantive ``jeopardy'' and ``adverse modification'' mandates when
they authorize, fund, or carry out covered agency actions. 16 U.S.C.
1536(h). Further, any action that would ordinarily be considered a take
shall not be prohibited under the Endangered Species Act. 16 U.S.C.
1536(o)(1). This exemption applies to the full scope of the Gulf of
America Oil and Gas Activities, and for the duration of those actions.
Because the covered agency action includes robust avoidance or
minimization measures, those measures shall continue to be implemented
under this Order.
The Committee recognizes that the Endangered Species Act sets out a
process for the Committee to consider an application for an exemption
and standards for the Committee to apply when considering an
application. 16 U.S.C. 1536(g), (h)(1). The Committee concludes that
these other provisions of Section 7, including the application
requirements and standards, do not apply when the Secretary of War
finds that an exemption is necessary for reasons of national security.
When the Secretary of War makes such a finding, the statute and
regulations require the Committee to grant an exemption
``[n]otwithstanding any other provision of this chapter.'' 16 U.S.C.
1536(j); 50 CFR 453.03(d). ``[A]ny other provision'' includes the
application requirements and standards, and all other provisions in the
Endangered Species Act.
The Endangered Species Act also states: ``If the Committee
determines under subsection (h) that an exemption should be granted
with respect to any agency action, the Committee shall issue an order
granting the exemption and specifying the mitigation and enhancement
measures established pursuant to subsection (h) which shall be carried
out and paid for by the exemption applicant in implementing the agency
action.'' 16 U.S.C. 1536(l)(1). The Order need not specify any such
mitigation and enhancement measures here because the application and
other related requirements do not apply. The mitigation-and-enhancement
requirement contemplates an application and an ``exemption applicant,''
which are not present in this situation where the Secretary of War
determines that an exemption is necessary for reasons of national
security. But even if the requirement applied, it would be satisfied
here based on mitigation measures included in the Secretary of War's
findings. Specifically, the agency action that is the subject of the
Secretary of War's findings includes the avoidance or minimization
measures described in NMFS's 2025 biological
[[Page 16967]]
opinion and in FWS's 2018 and 2025 consultation documents.
The Committee understands that any person may obtain judicial
review of this decision, which is made under 16 U.S.C. 1536(h), ``in
the United States Court of Appeals for . . . any circuit wherein the
agency action concerned will be, or is being, carried out.'' 16 U.S.C.
1536(n). Here, the agency action is being carried out in the federal
waters of the Gulf of America and state waters and lands, including
coastal areas, ports, airspaces, and waterways, which means that a
person may obtain judicial review exclusively in the U.S. Courts of
Appeals for the Fifth or Eleventh Circuits. If this decision is
challenged in litigation, the Committee designates attorneys at the
U.S. Department of Justice to appear for and represent the Committee.
16 U.S.C. 1536(n).
Order
On the basis of the decision and findings stated above, the
Committee grants an exemption for Gulf of America Oil and Gas
Activities, which include the avoidance or minimization measures
described in NMFS's 2025 biological opinion and in FWS's 2018 and 2025
consultation decisions.
This decision and order are effective immediately.
Dated: March 31, 2026.
Doug Burgum,
Secretary of the Interior.
Dan Driscoll,
Secretary of the Army.
Lee Zeldin,
Administrator of Environmental Protection Agency.
Brooke Rollins,
Secretary of Agriculture.
Pierre Yared,
Acting Chairman of the Council of Economic Advisors.
Neil Jacobs,
Under Secretary of Commerce for Oceans and Atmosphere and National
Oceanic Atmospheric Administration Administrator.
[FR Doc. 2026-06458 Filed 4-2-26; 8:45 am]
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