DRAFT Memorandum of Understanding

Between the U.S. Environmental Protection Agency Office of Pesticide Programs and the Department of the Interior U.S. Fish and Wildlife Service Regarding Implementation of Executive Order 13186, “Responsibilities of Federal Agencies to Protect Migratory Birds”

This M emorandum of Understanding is entered into, by, and between the Office of Pesticide Programs at the U.S. Environmental Protection Agency and the U.S. Fish and Wildlife Service

, herein collectively referred to as the Parties.

A. Purpose

This Memorandum of Understanding (MOU) is entered into pursuant to Executive Order 13186

, “Responsibilities of Federal Agencies to Protect Migratory Birds” (66 F R 3853, January 17, 2001). The purpose of this MOU is to promote the conservation of migratory bird populations through enhanced collaboration between the Environmental Protection Agency’s (EPA) Office of Pesticide Programs (OPP) and the U.S. Fish and Wil dlife Service (FWS) regarding actions directly carried out by OPP.

This MOU does not alter or waive any responsibilities of EPA or FWS, as applicable, under the Migratory Bird Treaty Act (MBTA) , the Bald and Golden Eagle Protection Act ( Eagle Act ), the

En dangered Species Act (ESA), or any other statute , nor does it authorize the take of migratory birds. EPA actions delegated to or assumed by States, Territories, Commonwealths

, or Tribes, or carried out by States, Territories, Commonwealths

, or Tribes with EPA assistance are not subject

to this MOU. The Parties resolve to implement responsibilities and activities described herein to the extent permitted by law, subject to the availability of appropriations, within Administration budgetary limits, and in harmony with the Parties’ missions. In carrying out the activities described in this MOU, OPP does not intend or ex pect that OPP’s ability to meet its statutory deadlines for completing registration and re

- evaluation decisions wil l be impacted.

B. Authority

The Parties’ responsibilities under this MOU are authorized by or consistent with the purpose of provisions of the following laws and other authorities available to the Parties:

• Bald and Golden Eagle Protection Act of 1940, as amended (16 U.S.C. §§ 668

- 668d);

• Endangered Species Act of 1973, as amended (16 U.S.C. §§ 1531

- 1544) ;

• Executive Order 13186, Responsibilities of Federal Agencies to Protect Migratory Birds (66 FR 3853 , Jan 17, 2001 ) ;

• Federal Insecticide, Fungi cide, and Rodenticide Act ( 7 U.S.C. §§ 1 36 et seq.) ;

• Fish and Wildlife Act of 1956, amended (16 U.S.C. §§ 791a et seq. );

• Fish and Wildlife Conservation Act of 1980, as amended (16 U.S.C. §§ 2901 et seq. );

• Fish and Wildlife Coordination Act of 1980, as am ended (16 U.S.C. §§ 661 et seq

. );

• Migratory Bird Conservation Act of 1929, as amended (16 U.S.C. §§ 715 et seq. );2 • Migratory Bird Treaty Act of 1918, as amended (16 U.S.C. §§ 703

- 71 2 );

• National Environmental Policy Act of 1969, as amended ( 42 U.S.C. § § 4321

- 4347)

.

C. Missions of Both Parties

O ffice of P esticide P rograms

The mission of EPA is to protect human health and the environment. EPA is committed to ensuring that the American public has air that is safe to breathe, water that is clean and safe t o drink, food that is safe to eat , and communities that are protected from toxic chemicals. Within the context of EPA’s broad mission, OPP protects human health and safeguards the environment from potential risks associated with the use of pesticides

. 1

The primary statutes regulating pesticide use in the United States are the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7 U.S.C. §§ 1 36 et seq.) and the Federal Food, Drug, and Cosmetic Act (FFDCA) ( 21 U.S.C. §§ 346a ). FIFRA gives EPA the authority to regulate the registration (licensing) and use of pesticides and FFDCA governs the establishment of tolerances (also known as maximum residue limits) on food and animal feed to ensure that human dietary exposures are safe . In order for a pesti cide to be registered (licensed) under FIFRA, it must be demonstrated that the pesticide’s use will not result in unreasonable adverse

effects on the environment

.

FIFRA provides EPA with authority to make pesticide regulatory decisions necessary to ensu re the safe use of pesticides and to require any data the Agency determines are needed to reach those decisions. FIFRA also requires the periodic review of existing registrations to ensure pesticides continue to meet the most current scientific and regula tory standards. In connection with registration, EPA reviews and approves pesticide product labeling which, once approved, provides legally binding use instructions and limitations to ensure that use of the product will not

result in unreasonable adverse effects to the environment 2 . EPA also is authorized by FIFRA to approve use of unregistered pesticides in emergency situations. Under certain circumstances,

States are also authorized to issue S tate

- specific registrations (known as Special Local Needs

reg istrations) for additional uses of EPA registered pesticides to address pest problems within the

S tate.

1 A pesticide is defined by FIFRA as any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest. Though often misunderstood to refer only to insecticides, the term pesticide also applies to herbicides, fungicides, and various other subst ances used to control pests. Under United States law, a pesticide is also any substance or mixture of substances intended for use as a plant regulator, defoliant

, or desiccant.

2 As defined by Section 2(bb) of FIFRA, the term “unreasonable adverse effects on the environment” means (1) any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide, or (2) a human dietary risk from residues that result from a use of a pesticide in or on any food inconsistent with the standard under section 408 of the Federal Food, Drug, and Cosmetic Act (21

U.S.C. §§ 346a) The Administrator shall consider the risks and benefits of public health pesticides separate from the

risks and b enefits of other pesticides. In weighing any regulatory action concerning a public health pesticide under this act, the Administrator shall weigh any risks of the pesticide against the health risks such as the diseases transmitted by the vector to be contr olled by the pesticide.3 By controlling insect pests 3 , plant diseases, and invasive species, pesticides can be beneficial for a variety of reasons, including (but not limited to) the following: increasing food production, controlling household pests, protecting rights

- of

- way, keeping waterways navigable, restoring native habitats, and protecting human health ( e.g ., disease vector control). However, depending on their particul ar mode of action, pesticides may also be associated with risks to non

- target organisms. Therefore, pursuant to its FIFRA responsibilities, before EPA registers a pesticide under FIFRA, OPP conduct s ecological risk assessments to determine what potential risks to the environment are posed by various pesticide s , and whether changes to the use or proposed use of

such pesticide s are necessary to protect the environment from unreasonable adverse effects

. This standard of safety encompasses consideration of effects to migratory birds.

In addition, u nder the Endangered Species Act ( ESA )

, OPP consider s the potential impacts of pesticides on the species listed as endangered or threatened by the FWS and National Marine

Fisheries Service ( NMFS ) and on any designa ted critical habitat for those species. OPP is required to consult with the FWS and/or NMFS on an action if OPP determines that use of a pesticide “m ay a ffect ” a listed species or designated critical habitat.

OPP work s with the U.S. Department of Agricu lture ( USDA ) to implement research, demonstration, and education programs to support nationwide adoption of Integrated Pest Management (IPM)

. OPP assist s FWS and other Federal agencies in applying IPM techniques and approaches for pest management activities and support s efforts to promote IPM through

Federal procurement and regulatory policies. To achieve such broad collaboration and

coordination on advancing IPM techniques and policies, OPP participate s in the meetings and program activities of t he Federal IPM Coordinating Committee . As resources allow, OPP

award s financial assistance agreements for demonstrating and implementing the use of IPM in agricultural and non

- agricultural settings, especially as a means for reducing the risk of pesticide s

.

I n addition to its regulatory functions, OPP promotes a variety of partnerships related to pesticide use, including the Pesticide Environmental Stewardship Program (PESP) , a voluntary private and public partnership dedicated to reducing pesticide use a nd risk, and the IPM in Schools Program

.

F ish and W ildlife S ervice

As a Federal agency within the U.S. Department of the Interior, t he mission of the FWS is to work with others to conserve, protect, manage, and enhance fish, wildlife, plants, and their habitats for the continuing benefit of the American people. The FWS Migratory Bird Program serves as a focal point in the United State s for policy development and strategic planning, program implementation, and evaluation of actions designed to conserve migratory birds and

their habitats.

3 The term “pest” means (1) any insect, rodent, nematode, fungus, weed, or (2) and other form of terrestrial or aquatic plant or animal life or virus, bacteria, or other micro

- organisms (except viruses, bacteria, or other micro

orga nisms on or in living man or other living animals) which the Administrator declares to be a pest under section 25 c (1) Of FIFRA.4 The FWS is legally mandated to implement the conservation provisions of the MBTA

, which

includes r esponsibilities for managing migratory bird populations

, domestic and international coordination, and the development and enforcement of regulations that govern authorized take of migratory birds

. The Migratory Bird Conservation Act established the Migrat ory Bird Conservation Commission to approve land to be acquired with Migratory Bird Conservation Funds. The Fish and Wildlife Coordination Act requires consultation under certain circumstances and added provisions to recognize the important contribution o f wildlife resources to the Nation and to require equal consideration and coordination of wildlife conservation including habitat protection, through acquisition, enhancement, and/or management and

avoidance and minimization of adverse i mpacts related to f ederal activities.

FWS programs that involve bird conservation activities includ e :

1. The Division of Migratory Bird Management and the Migratory Bird P rograms in the FWS Regional Offices serve as focal points for policy development and strategic planning

. These offices develop and implement monitoring and management initiatives that help maintain healthy populations of migratory birds and their habitat s and provid e continued opportunities for citizens to enjoy bird

- related recreation.

2. The Division of Bir d Habitat Conservation is instrumental in supporting habitat conservation partnerships through the administration of bird conservation grant programs and development of Joint Ventures that serve as major vehicles for implementing the

various bird conservat ion plans across the country.

3. Ecological Services Field Offices across the country serve as the primary contacts for technical assistance and environmental reviews involving migratory bird issues. The Field Offices coordinate with the Regional Migratory Bird Offices, as necessary, during these reviews regarding permits and overall migratory bird conservation coordination.

4. The Office of Law Enforcement is the principal FWS program that enforces the legal provisions of the MBTA, Eagle Act

, ESA, and other l aws pertaining to migratory bird

conservation.

5. The National Wildlife Refuge System manages National Wildlife Refuges (NWRs) and Waterfowl Production Areas across the country, many of which were established to protect and conserve migratory birds. NWRs no t only protect important bird habitat, but also focus on monitoring migratory bird populations and restoring and maintaining native

habitats.

6. The Science Applications program works with other FWS programs and partners to ensure that the necessary science, tools, and capacity are available for planning and implementing the most efficient and effective conservation actions to protect fish and wildlife including migratory birds. They facilitate regional self

- directed science management partnerships called La ndscape Conservation Cooperatives to develop and apply shared science capacity to conservation.5 D. Statement of Mutual Interest and Benefit

When used properly, pesticides provide societal benefits such as controlling disease

- causing organisms and fostering a safe and abundant food supply. The Parties have a common interest

, however, in ensuring that pesticide use is also consistent with the proper conservation and management of Am erica’s natural resources. The Parties agree that migratory birds are important components of biological diversity and that conservation of migratory birds and their

habitats help s sustain ecological integrity, contribute s to public conservation education , and

enhance s the growing interest in outdoor recreation opportunities

. Further, the Parties mutually agree that it is important to: 1) conserve migratory bird populations and their habitats; 2) recognize that act i ons taken to benefit some migratory bird populations may adversely affect other migratory bird populations; and 3) recognize that actions that may provide long

- term benefits to migratory bird populations may have short

- term impacts to individual birds

.

E. Responsibilities of Both Parties

T o th e extent permitted by law

, subject to the availability of appropriations

, within

a dministration budgetary limits, and in harmony with OPP and FWS missions and capabilities,

both Parties resolve to:

1. S upport the conservation intent of Executive Order 13186, and the migratory bird conventions by : a) integrating bird conservation principles, measures, and practices into

agency planning and actions ; b) avoiding and/ or minimizing the take of migratory birds

and adverse effects on their habi tats; and c) p revent ing or abat ing pollution detrimental to migratory birds and their habi t ats.

2. Do the Following: FWS will provide available information on the economic, societal, and environmental benefits of migratory birds to OPP for its consideration in risk management decisions r elated to pesticide registrations.

3. Identify where legal use of registered pesticides in the United States is having, or is likely to have, a measurable negative effect on migratory bird populations and their habitats

, and work together to promote research and i nformation exchange that result in the

minimization of impacts

, increase d migratory bird conserv ation , and restore d or enhance d migratory bird habitat

.

4. I mprove post

- registration evaluation of pesticide effects on mi gratory birds by:

a. Work ing collaboratively to improve incident reporting to OPP and FWS through

increased outreach , using web

- based information and reporting tools

.

b. Improv ing mechanisms and seek ing funding opportunities for testing bird carcasses for pe sticide poisoning via partnerships with Federal Agencies, States, Universities, and NGOs , where resources permit

.6 5. Provide training and information on the MBTA, migratory birds and their habitats ( e.g ., workshops, outreach materials, web

- based training) to appropriate agency staff

. This includes developing and sponsoring training regarding:

a. Responsibilities under the MBTA and Eagle Act

.

b. Current i nformation on the biology and ecology of bird species of concern.

c. Potential ways to avoid or minimize the creation of avian stressors on migratory bird species, including nesting, rearing, feeding, migration, or over

- wintering populations and their habitats.

6. Work cooperatively to identify conservation measures that minimize avian stressors resulting from pest icide use.

7. Participate annually, as practicable , in the interagency Council for the Conservation of Migratory Birds to share information on conservation of migratory birds . The duties of

the Council include the following:

a. Sharing the latest resource inf ormation (e.g., conservation measures, data, etc

. ) to assist in the conservation and management of migratory birds.

b. Fostering partnerships to further the goals of Executive Order 13186

.

c. Report ing annually on the accomplishments and recommendations related to the

Executive Order.

d. Selecting an annual recipient of a Presidential Migratory Bird Federal Stewardship Award for contributions to the protection of migratory birds.

F. Responsibilities of OPP

Within the context of existing programs of pesticide r egistration and registration review , which includes conducting ecological risk assessments that address migratory birds, OPP intends to

i ntegrate migratory bird conservation measures into OPP activities to the extent practicable and consistent with all legal requirements when conducting its reviews

. OPP resolves to :

1. Continue to c onsider the potential effects of pesticides on migratory birds in its risk

assessment and risk management decisio ns, with emphasis on Birds of Conservation

Concern and other species of concern

.

2. Continue and improve upon its use of pesticide ecological incident data in ecological risk

assessments as part of a weight

- of

- evidence approach in making risk conclusions

.

a. FIFRA 6(a)(2) requirements stipulate that known adverse effects related to a pesticide, including pesticide ecological incidents, must be reported to OPP by the7 registrant of the pesticide ( i.e ., pesticide companies are required by law to report known pest icide incidents involving their pesticide active ingredient(s) to OPP)

.

b. Reporting of ecological incidents for non

- registrants is voluntary. Therefore, the Agency plans to continue to promote the reporting of pesticide ecological

incidents by non

- registra nts ( e.g ., continue to promote the use of the National

Pesticide Information Center web portal http://www.npic.orst.edu/ for reporting pesticide

- related ecological incidents ; continue with the OPP Incident Workgroup that was set up to improve incident reporting ).

3. Incorporate best available data (including those on birds) in pesticide risk assessments conducted for registration review as part of the weight

- of

- evidence approach when making risk conclusions

.

4. Consistent with the requirements of 40 CFR § 1 56.85, w ork to e nsure that bird hazard language appears on all labels , when appropriate

. OPP plans to post e xamples of bird hazard language on a webpage dedicated to EPA’s activities related to pesticides and migratory birds.

5. Promote migratory bird cons ervation 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

.

a. OPP plans to continue to work with national and international p artners to protect pollinators (including migratory birds) through regulatory, voluntary, education, and research programs.

b. Under the auspices of the Risk Reducti on Steering Group, Organization for

Economic Co

- operation and Development ( OECD ) Working Group on Pesticides,

and the Nort h American Free Trade Agreement Technical Working Group (NAFTA TWG)

, O PP plans to enhance awareness of migratory bird issues and maintain its support of information sharing and technical ass istance to other

industrialized c ountries on IPM techniques and approaches as strategic opt ions for reducing the risks of pesticides on the environment and wildlife.

6. Work collaboratively with FWS to obtain pertinent biological information on life histories, and ecological and behavior pa tterns of migratory birds that will help inform OPP ecological risk assessments and potential limitations on pesticide product use

.

7. Work collaboratively with other EPA o ffices on rules, permits, enforcement actions, and policies that promote and enhance the protection of migratory birds as appropriate

.

8. Work with non

- f ederal entities to further bird conservation . OPP plans to:

a. P romote and support the Pesticide Environmental Stewardship Program (PESP)

, an EPA partnership program that works with the nation’s pesticide

- user8 community to further Integrated Pest Management (IPM) practices and other

actions to promote the safe use of pesticides. To participate in the program, both agricultural and non

- agricu ltural PESP members commit to goal

- oriented strategies to focus voluntary efforts, including in some cases, specific actions to conserve and protect natural resources, while reducing pests and the risks of pesticides.

b. W ork with non

- federal partners eng aged in bird conservation on sharing

information on bird s and pesticides

.

c. Att end bird conservation meetings to promote information exchange and relationship building with our Federal and non

- Federal partners on issues related to migratory bird conservatio n.

9. Review and improve , as appropriate, OPP’s education and outreach on the impacts of pesticide use on migratory birds ; and

, where warranted

, seek to improve the quality and clarity of label language during the registration r eview process to inform users of potential risks associated with a product’s use.

10. Work with the FWS to develop and provide training to scientific staff, risk managers, and management on the conservation of migratory birds as it relates to pesticide use and registrations.

11. Develop and maintain a webpage devoted to information on the effects of pesticide use by professional pest control services and agricultural applicators, and homeowners on migratory birds that will include copies of Executive Order 13186, the signed MBTA MOU, training and educational materials intended to advance migratory bird conservation consistent with the objectives of the Executive Order 13186 , conservation

measures intended to reduce or eliminate take

, examples of bird hazard language for pesticide product labels, and links to other sites with pertinent bird and pesticide

information

.

12. In addition to assessing risks to birds from the use of pesticides, specifically for avicides, OPP plans to:

a. Ensu re that the FWS is made aware o f new registrations involving avicides within 30 days after registration ( e.g ., via a letter, e

- mail, or telephone call)

.

b. Seek implementation of appropriate label language informing users of the need to discuss with FWS any necessary migratory bird permits and comply with permit terms and conditions during bird management actions using avicidal products

, when appropriate

.

c. Encourage the development of less toxic alternatives to avicides ( e.g ., via the Agenc y’s IPM programs)

.9 13. In addition to assessing risks to birds from the use of pesticides, specifically for rodenticides, OPP plans to:

a. Ensure that the FWS is made aware o f new registrations involving rodenticides within 30 days after registration ( e.g ., via a letter, e

- mail, or telephone call)

.

b. Encourage the development of rodenticides that are less toxic to birds or alternatives to rodenticide use ( e.g ., via the Agency’s IPM programs)

.

14. Confer with FWS, as appropriate, for input on label language to reduce risk of migratory bird mortalities from pesticide products, with particular emphasis on avicidal and rodenticide products.

15. In considering whether to require label language to reduce potential risks to migratory birds, OPP will seek public comment on such proposed regulator y decisions, consistent with its public participation policies for registration and registration review decision

making.

16. E ncourage pesticide users to employ IPM techniques and approaches and “best management practices ” that reduce exposure of chemicals in the environment through

, for example, EPA partnership programs, such as PestWise. PestWise summarizes the various voluntary and grant

- giving programs in which OPP works collaboratively with companies, non

- profit organizations, communities, and individuals to promote environmental stewardship. The promotion of environmental stewardship is done through information exchange, education and promotion, technical assistance, and funding and grant opportunities , as resources permit

.

17. Where such information is collected in the course of agency actions or supported through

f

ederal financial assistance, make reasonable efforts to share such information with the

FWS and other appropriate repositories of such data

.

18. If through this MOU any significant change in pesticide risk assessment methodology for migratory birds is proposed, EPA will convene a FIFRA Scientific Advisory Panel review, which includes public c omment, before any proposed methodology would be implemented.

19. Provide the public with notification of the availability of this MOU through a notice published in the Federal Register

.

G. Responsibiliti es of FWS

FWS agrees to implement the commitments made in this MOU in each of its program areas where applicable to the extent permitted by law and in harmony with agency missions, and subject to the availability of appropriations. FWS resolves to :10 1. Provide OPP with technical information to assist in identifying avian stressors and conservation measures and practices for alleviating these stressors , for consideration in

OPP ’s decision

- making processes. This assistance may aid OPP in its pesticide

reg ulatory decisions to promote the conservation of migratory bird species and their

habitat

.

2. Work collaboratively toward developing and providing OPP with species

- specific avian conservation plans for use in developing OPP ecological risk assessments as the y relate to migratory birds and their habitat.

3. Continue to cooperate and coordinate with other Federal agencies, State agencies, universities, and independent non

- governmental organizations to develop and conduct surveys that provide reliable information on the distribution, status

, and trends of migratory bird populations on national and/ or regional scales. FWS intends to make

e xisting i nformation available in a timely manner to aid OPP in assessing impacts of pesticides to migratory birds. This include s updating the FWS Birds of Conservation

Concern at five

- year intervals.

4. To assist EPA in making informed pesticide registration decisions, the FWS will provide bird mortality incident data to EPA OPP in a timely manner, as appropriate. This

includes the development of a FWS

- wide process to facilitate efficient exchange of mortality incident data to OPP

.

a. Develop mechanism to exchange mortality data between Service Contaminants and Avian Health and Disease groups as well as disease and forensic laborat ories.

b. Promote and provide opportunities for hypothesis

- driven field research with partners to investigate acute and chronic impacts of pesticides on avian immunity and population health

5. Provide training ( e.g ., regional workshops, outreach materials, we b

- based training) on migratory bird inventory, management, and monitoring methods and practices for migratory birds and their habitats to appropriate FWS and EPA staff . This includes

d eveloping and sponsoring training regarding:

a. T he conservation of migra tory birds as it relates to pesticide use and registrations.

b. Responsibilities under the MBTA and Eagle Act

.

c. Information on the biology and ecology of bird species of concern.

d. Potential ways to avoid or minimize avian stressors on populations and habitat s including nesting, rearing, feeding, migrati ng , or over

- wintering individuals

.

6. Conduct informational and educational programs oriented toward migratory bird

conservation , including habitat restoration

.11 7. Work with OPP to develop an informal process promoting information exchange on OPP

actions related to avicides and rodenticides.

8. Work with OPP to develop and make available information on alternative controls to rodenticides and avicides including less to xic alternatives to avicides.

9. Work with OPP to explore ways to minimize pesticide exposures to migratory birds

.

10. Continue to maintain a permits web page that provides links to all FWS offices responsible for issuing permits for intentional take of migrato ry birds. Identify mechanisms, alternate approaches, or other activities that would reduce or eliminate take, or advance migratory bird conservation consistent with the objectives of Executive Order

13186.

11. Inform OPP of any new FWS regulation or policy associated with take of migratory birds. This includes providing training on such regulations or policies, when practicable.

H. Dispute Resolution

Prevention of potential conflicts or resolutions of actual disagreements between the

Parties will be attempted first at staff levels and elevated through the respective organizational levels if necessary. Conflict prevention or traditional Alternative Di spute Resolution (ADR) processes will be used to strive to achieve consensus.

Collaborative processes, including informal meetings or negotiations, will be used to avoid or minimize a dispute. If the dispute already has developed, more traditional proc esses may be appropriate, such as mediation or a negotiation assisted by a neutral third party. Notification of potential conflict or a dispute by either Party should be put in writing and attempts to resolve the

matter at the Field level should occur wit hin 30 days after receipt of written notice . If there is no resolution at this level within 30 days, FWS may elevate the issue to the appropriate officials at Regional offices. Note, EPA Regional offices are not involved in pesticide licensing. In the

ev ent that there is no resolution at that level within 30 days, the dispute may be elevated by FWS to the Washington

, D.C. office

.

I. Agreement

1

. This MOU itself does not alter, expand, or substitute for provisions of existing law s or regulations, nor is i t a regulation itself. It does not impose legally

- binding requirements on the participating agencies, States, Tribes, local governments or the regulated community. This MOU is intended to provide internal procedural guidance to Federal agency staff to assist them in carrying out their activities

.

2

. Either party may terminate this MOU, in whole or in part, at any time before the date of expiration by providing the other party with a written statement within 30 days to that effect.12 Cha nges within the scope of this MOU are to be made by the issuance of a bilaterally executed

modification , made in writing

.

3

. This MOU in no way restricts either party from participating in similar activities with other public or private agencies, governme nts, organizations, or individuals.

4

. This MOU in no way alters any applicable requirements on either party to conduct or review environmental analyse s, including those relating to National Environmental Policy Act requirements, where appropriate.

5

. Th is MOU is neither a fiscal nor a funds obligation document. Any endeavor involving reimbursement, contribution of funds, or transfer of anything of value between the Parties will be handled in accordance with applicable laws, regulations, and procedures, including those for government procurement and printing. Such endeavors will be outlined in separate agreements that shall be made in writing by representatives of the Parties and shall be independently authorized by appropriate statutory authority. This MOU does not provide such authority. Specifically, this MOU does not establish authority for noncompetitive award of any contract or other agreement. Any contract or agreement for training or other service must fully comply with all applicable requireme nts for competition.

6

. Any press releases developed and intended to be issued for the express purpose of highlighting this MOU or the relationship established between the Parties as a result of this MOU are subject

to prior approval of both Parties

.

7

. OPP and FWS plan to schedule meetings periodically to review implementation of the MOU and evaluate its effectiveness, as well as identifying opportunities for promoting conservation of migratory bird populations.

8

. This MOU does not require changes to current contracts, permits, or other third agency

agreements.

9

. This MOU 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

equ ity by a ny party against the United States, its agencies or instrumentalities, its officers or employees, or any other person.

10

. This MOU will not be construed as an admission of liability

.

J. Definitions

Action

– a program, activity, project, official policy, rule, regulation or formal plan directly carried out by a Federal agency.

Birds of Conservation Concern

– A list of priority species published and periodically updated by the FWS Division of Migratory Bird Management. The overall goal of this list is to identify the migratory and non

- migratory bird species that, in addition to species already listed under the13 ESA, represent the FWS’s h ighest conservation priorities. The most current version of the list, Birds of Conservation Concern 2008, is available at http://www.fws.gov/migratorybirds

.

Conservation measures

- measures to avoid impacts , or where avoidance is not practicable, minimize impacts, reduce or eliminate the impact over time, or compensate for impacts t o the

extent feasible and within the Parties capabilities and authorities

.

Migratory bird

– an individual of any species prote cted by the MBTA; a list of protected migratory bird s pecies can be found in 50 CFR § 10.13

.

Pest s

– Section 25 c (1) of FIFRA authorizes the Administrator, after notice and opportunity for hearing, “to declare a pest any form of plant or animal life (other than man and other than bacteria, virus, and other micro

- organisms on or in living man or other living animals) which is injurious to health or the environment. Accordingly, EPA regulations at 40 C FR § 152.5 provide

that:

a n organism is declared to be a pest under circumstances that make it deleterious to man or the environment, if it is: (a) Any vertebrate animal other than man ; (b) Any invertebrate animal, including but not limited to, any insect, other arthropod, nematode, or mollusk such as a slug and s nail , but excluding any internal parasite of living man or other living animals; ( c) Any plant growing where not wanted, including any moss, alga, liverwort, or other plant of any higher ord er, and any plant part such as a root; or (d) Any fungus, bacterium, virus, or other microorganism, except for those on or in living man or other living animals and those on or in processed food or processed animal feed, beverages, drugs (as defined in F FDCA §§ 201 (g)(1) and cosmetics (as defined in

FFDCA §§ 201(i))

.

Pesticide

- Any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest. Though often misunderstood to refer only to insecticides, the term pesticide also applies to herbicides, fungicides, and various other substances u sed to control pests. Under United States law, a pesticide is also any substance or mixture of substances intended for use as a plant regulator, defoliant

, or desiccant.

Species of concern

– refers to several categories of birds including: 1) species li sted in the periodic report, Birds of Conservation Concern (see above) ; 2) priority bird species documented in the comprehensive bird conservation plans (North American Waterbird Conservation Plan, United States Shorebird Conservation Plan, Partners in Fli ght Bird Conservation Plans); 3) species or populations of waterfowl identified as high, or moderately high, continental priority in the North American Waterfowl Management Plan; 4) listed threatened and endangered bird species in 50 CFR § 17.11

.

Stresso r

– any chemical or non

- chemical alteration or addition to the environment that when

introduced to a resource contributes to a threat to bird populations or individuals.

Take

– to pursue, hunt, shoot, wound, kill, trap, capture or collect or attempt to pu rsue, hunt, wound, kill, trap, capture or collect (50 CFR § 10.12). The Executive Order further defines

“ take ” to include intentional take, meaning take that is the purpose of the activity in question,14 and unintentional take , meaning take that results from, but is not the purpose of, the activity in question. The regulations implementing the Eagle Act define take to mean pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, destroy, molest, or disturb bald and golden eagles (50 CFR § 22.3)

. The regulation defines ‘d isturb ” to mean to agitate or bother to a degree that causes injury, decrease in productivity, or nest abandonment

.

The principal contacts for this MOU are as follows:

Steve n Bradbury, Director Brad Bortner, Chief Office of Pesticide Programs Division of Migratory Bird Management U.S. Environmental Protection Agency U.S. Fish and Wildlife Service

This MOU is executed as of the last date signed below and expires no later than five (5) years thereafter , at which time it is subject to review and renewal, or expiration.

The Parties hereto have executed this MOU as of the last date shown below

.

Steven Bradbury , Director Dan Ash e, Director

Office of Pesticide Programs U.S. Fish and Wildlife Service U.S. Environmental Protection Agency Department of Interior

1 200 Pennsylvania Avenue, NW 1849 C Street, NW Washington, DC 20240 Washington, DC 20004

Date Date