[Weekly Compilation of Presidential Documents Volume 37, Number 2 (Monday, January 15, 2001)]
[Pages 77-80]
[Online from the Government Publishing Office, www.gpo.gov]

<R04>
Executive Order 13186--Responsibilities of Federal Agencies To Protect 
Migratory Birds

January 10, 2001

    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

[[Page 78]]

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 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

[[Page 79]]

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 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

[[Page 80]]

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.
    (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.
                                            William J. Clinton
 The White House,
 January 10, 2001.

 [Filed with the Office of the Federal Register, 8:45 a.m., January 12, 
2001]

Note: This Executive order was released by the Office of the Press 
Secretary on January 11, and it will be published in the Federal 
Register on January 17.