Why we, in theory, protect migratory birds (which we don't really do)
Vol. 66, No. 11
Wednesday, January 17, 2001
Executive Order 13186 of January 10, 2001
Responsibilities of Federal Agencies To Protect Migratory
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
(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
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3854 Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Presidential Documents
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
(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
(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
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Federal Register /Vol. 66, No. 11 /Wednesday, January 17, 2001 / Presidential Documents 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
(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
(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
(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.
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3856 Federal Register / Vol. 66, No. 11 / Wednesday, January 17, 2001 / Presidential Documents
(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
(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.
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