[Federal Register Volume 66, Number 11 (Wednesday, January 17, 2001)]
[Presidential Documents]
[Pages 3853-3856]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-1387]


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                         Presidential Documents 
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  Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / 
Presidential Documents  

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 Title 3--
 The President

[[Page 3853]]

                Executive Order 13186 of January 10, 2001

                
Responsibilities of Federal Agencies To Protect 
                Migratory Birds

                By the authority vested in me as President by the 
                Constitution and the laws of the United States of 
                America, and in furtherance of the purposes of the 
                migratory bird conventions, the Migratory Bird Treaty 
                Act (16 U.S.C. 703-711), the Bald and Golden Eagle 
                Protection Acts (16 U.S.C. 668-668d), the Fish and 
                Wildlife Coordination Act (16 U.S.C. 661-666c), the 
                Endangered Species Act of 1973 (16 U.S.C. 1531-1544), 
                the National Environmental Policy Act of 1969 (42 
                U.S.C. 4321-4347), and other pertinent statutes, it is 
                hereby ordered as follows:

                Section 1. Policy. Migratory birds are of great 
                ecological and economic value to this country and to 
                other countries. They contribute to biological 
                diversity and bring tremendous enjoyment to millions of 
                Americans who study, watch, feed, or hunt these birds 
                throughout the United States and other countries. The 
                United States has recognized the critical importance of 
                this shared resource by ratifying international, 
                bilateral conventions for the conservation of migratory 
                birds. Such conventions include the Convention for the 
                Protection of Migratory Birds with Great Britain on 
                behalf of Canada 1916, the Convention for the 
                Protection of Migratory Birds and Game Mammals-Mexico 
                1936, the Convention for the Protection of Birds and 
                Their Environment- Japan 1972, and the Convention for 
                the Conservation of Migratory Birds and Their 
                Environment-Union of Soviet Socialist Republics 1978.

                These migratory bird conventions impose substantive 
                obligations on the United States for the conservation 
                of migratory birds and their habitats, and through the 
                Migratory Bird Treaty Act (Act), the United States has 
                implemented these migratory bird conventions with 
                respect to the United States. This Executive Order 
                directs executive departments and agencies to take 
                certain actions to further implement the Act.

                Sec. 2. Definitions. For purposes of this order:

                    (a) ``Take'' means take as defined in 50 C.F.R. 
                10.12, and includes both ``intentional'' and 
                ``unintentional'' take.
                    (b) ``Intentional take'' means take that is the 
                purpose of the activity in question.
                    (c) ``Unintentional take'' means take that results 
                from, but is not the purpose of, the activity in 
                question.
                    (d) ``Migratory bird'' means any bird listed in 50 
                C.F.R. 10.13.
                    (e) ``Migratory bird resources'' means migratory 
                birds and the habitats upon which they depend.
                    (f) ``Migratory bird convention'' means, 
                collectively, the bilateral conventions (with Great 
                Britain/Canada, Mexico, Japan, and Russia) for the 
                conservation of migratory bird resources.
                    (g) ``Federal agency'' means an executive 
                department or agency, but does not include independent 
                establishments as defined by 5 U.S.C. 104.
                    (h) ``Action'' means a program, activity, project, 
                official policy (such as a rule or regulation), or 
                formal plan directly carried out by a Federal agency. 
                Each Federal agency will further define what the term 
                ``action'' means with respect to its own authorities 
                and what programs should be included

[[Page 3854]]

                in the agency-specific Memoranda of Understanding 
                required by this order. Actions delegated to or assumed 
                by nonfederal entities, or carried out by nonfederal 
                entities with Federal assistance, are not subject to 
                this order. Such actions, however, continue to be 
                subject to the Migratory Bird Treaty Act.
                    (i) ``Species of concern'' refers to those species 
                listed in the periodic report ``Migratory Nongame Birds 
                of Management Concern in the United States,'' priority 
                migratory bird species as documented by established 
                plans (such as Bird Conservation Regions in the North 
                American Bird Conservation Initiative or Partners in 
                Flight physiographic areas), and those species listed 
                in 50 C.F.R. 17.11.

                Sec. 3. Federal Agency Responsibilities. (a) Each 
                Federal agency taking actions that have, or are likely 
                to have, a measurable negative effect on migratory bird 
                populations is directed to develop and implement, 
                within 2 years, a Memorandum of Understanding (MOU) 
                with the Fish and Wildlife Service (Service) that shall 
                promote the conservation of migratory bird populations.

                    (b) In coordination with affected Federal agencies, 
                the Service shall develop a schedule for completion of 
                the MOUs within 180 days of the date of this order. The 
                schedule shall give priority to completing the MOUs 
                with agencies having the most substantive impacts on 
                migratory birds.
                    (c) Each MOU shall establish protocols for 
                implementation of the MOU and for reporting 
                accomplishments. These protocols may be incorporated 
                into existing actions; however, the MOU shall recognize 
                that the agency may not be able to implement some 
                elements of the MOU until such time as the agency has 
                successfully included them in each agency's formal 
                planning processes (such as revision of agency land 
                management plans, land use compatibility guidelines, 
                integrated resource management plans, and fishery 
                management plans), including public participation and 
                NEPA analysis, as appropriate. This order and the MOUs 
                to be developed by the agencies are intended to be 
                implemented when new actions or renewal of contracts, 
                permits, delegations, or other third party agreements 
                are initiated as well as during the initiation of new, 
                or revisions to, land management plans.
                    (d) Each MOU shall include an elevation process to 
                resolve any dispute between the signatory agencies 
                regarding a particular practice or activity.
                    (e) Pursuant to its MOU, each agency shall, to the 
                extent permitted by law and subject to the availability 
                of appropriations and within Administration budgetary 
                limits, and in harmony with agency missions:
                    (1) support the conservation intent of the 
                migratory bird conventions by integrating bird 
                conservation principles, measures, and practices into 
                agency activities and by avoiding or minimizing, to the 
                extent practicable, adverse impacts on migratory bird 
                resources when conducting agency actions;
                    (2) restore and enhance the habitat of migratory 
                birds, as practicable;
                    (3) prevent or abate the pollution or detrimental 
                alteration of the environment for the benefit of 
                migratory birds, as practicable;
                    (4) design migratory bird habitat and population 
                conservation principles, measures, and practices, into 
                agency plans and planning processes (natural resource, 
                land management, and environmental quality planning, 
                including, but not limited to, forest and rangeland 
                planning, coastal management planning, watershed 
                planning, etc.) as practicable, and coordinate with 
                other agencies and nonfederal partners in planning 
                efforts;
                    (5) within established authorities and in 
                conjunction with the adoption, amendment, or revision 
                of agency management plans and guidance, ensure that 
                agency plans and actions promote programs and 
                recommendations of comprehensive migratory bird 
                planning efforts such as Partners-in-Flight, U.S. 
                National Shorebird Plan, North American Waterfowl 
                Management Plan, North American Colonial Waterbird 
                Plan, and other planning efforts, as well as guidance 
                from other sources, including the Food and Agricultural

[[Page 3855]]

                Organization's International Plan of Action for 
                Reducing Incidental Catch of Seabirds in Longline 
                Fisheries;
                    (6) ensure that environmental analyses of Federal 
                actions required by the NEPA or other established 
                environmental review processes evaluate the effects of 
                actions and agency plans on migratory birds, with 
                emphasis on species of concern;
                    (7) provide notice to the Service in advance of 
                conducting an action that is intended to take migratory 
                birds, or annually report to the Service on the number 
                of individuals of each species of migratory birds 
                intentionally taken during the conduct of any agency 
                action, including but not limited to banding or 
                marking, scientific collecting, taxidermy, and 
                depredation control;
                    (8) minimize the intentional take of species of 
                concern by: (i) delineating standards and procedures 
                for such take; and (ii) developing procedures for the 
                review and evaluation of take actions. With respect to 
                intentional take, the MOU shall be consistent with the 
                appropriate sections of 50 C.F.R. parts 10, 21, and 22;
                    (9) identify where unintentional take reasonably 
                attributable to agency actions is having, or is likely 
                to have, a measurable negative effect on migratory bird 
                populations, focusing first on species of concern, 
                priority habitats, and key risk factors. With respect 
                to those actions so identified, the agency shall 
                develop and use principles, standards, and practices 
                that will lessen the amount of unintentional take, 
                developing any such conservation efforts in cooperation 
                with the Service. These principles, standards, and 
                practices shall be regularly evaluated and revised to 
                ensure that they are effective in lessening the 
                detrimental effect of agency actions on migratory bird 
                populations. The agency also shall inventory and 
                monitor bird habitat and populations within the 
                agency's capabilities and authorities to the extent 
                feasible to facilitate decisions about the need for, 
                and effectiveness of, conservation efforts;
                    (10) within the scope of its statutorily-designated 
                authorities, control the import, export, and 
                establishment in the wild of live exotic animals and 
                plants that may be harmful to migratory bird resources;
                    (11) promote research and information exchange 
                related to the conservation of migratory bird 
                resources, including coordinated inventorying and 
                monitoring and the collection and assessment of 
                information on environmental contaminants and other 
                physical or biological stressors having potential 
                relevance to migratory bird conservation. Where such 
                information is collected in the course of agency 
                actions or supported through Federal financial 
                assistance, reasonable efforts shall be made to share 
                such information with the Service, the Biological 
                Resources Division of the U.S. Geological Survey, and 
                other appropriate repositories of such data (e.g, the 
                Cornell Laboratory of Ornithology);
                    (12) provide training and information to 
                appropriate employees on methods and means of avoiding 
                or minimizing the take of migratory birds and 
                conserving and restoring migratory bird habitat;
                    (13) promote migratory bird conservation in 
                international activities and with other countries and 
                international partners, in consultation with the 
                Department of State, as appropriate or relevant to the 
                agency's authorities;
                    (14) recognize and promote economic and 
                recreational values of birds, as appropriate; and
                    (15) develop partnerships with non-Federal entities 
                to further bird conservation.
                    (f) Notwithstanding the requirement to finalize an 
                MOU within 2 years, each agency is encouraged to 
                immediately begin implementing the conservation 
                measures set forth above in subparagraphs (1) through 
                (15) of this section, as appropriate and practicable.

[[Page 3856]]

                    (g) Each agency shall advise the public of the 
                availability of its MOU through a notice published in 
                the Federal Register.

                Sec. 4. Council for the Conservation of Migratory 
                Birds. (a) The Secretary of Interior shall establish an 
                interagency Council for the Conservation of Migratory 
                Birds (Council) to oversee the implementation of this 
                order. The Council's duties shall include the 
                following: (1) sharing the latest resource information 
                to assist in the conservation and management of 
                migratory birds; (2) developing an annual report of 
                accomplishments and recommendations related to this 
                order; (3) fostering partnerships to further the goals 
                of this order; and (4) selecting an annual recipient of 
                a Presidential Migratory Bird Federal Stewardship Award 
                for contributions to the protection of migratory birds.

                    (b) The Council shall include representation, at 
                the bureau director/administrator level, from the 
                Departments of the Interior, State, Commerce, 
                Agriculture, Transportation, Energy, Defense, and the 
                Environmental Protection Agency and from such other 
                agencies as appropriate.

                Sec. 5. Application and Judicial Review. (a) This order 
                and the MOU to be developed by the agencies do not 
                require changes to current contracts, permits, or other 
                third party agreements.

                    (b) This order is intended only to improve the 
                internal management of the executive branch and does 
                not create any right or benefit, substantive or 
                procedural, separately enforceable at law or equity by 
                a party against the United States, its agencies or 
                instrumentalities, its officers or employees, or any 
                other person.

                    (Presidential Sig.)

                THE WHITE HOUSE,

                     January 10, 2001.

[FR Doc. 01-1387
Filed 1-12-01; 8:45 am]
Billing code 3195-01-P