[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5552 Introduced in House (IH)]

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116th CONGRESS
  2d Session
                                H. R. 5552

  To amend the Migratory Bird Treaty Act to affirm that the Migratory 
 Bird Treaty Act's prohibition on the unauthorized take or killing of 
migratory birds includes incidental take by commercial activities, and 
to direct the United States Fish and Wildlife Service to regulate such 
                incidental take, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            January 8, 2020

Mr. Lowenthal (for himself, Mr. Van Drew, Ms. Norton, Mrs. Dingell, Mr. 
 Huffman, Mr. Grijalva, Ms. McCollum, Ms. Haaland, Ms. Velazquez, Mr. 
Gallego, Mr. Ted Lieu of California, Mr. Blumenauer, Mr. McNerney, Ms. 
  Kuster of New Hampshire, Mrs. Napolitano, Mr. Beyer, Mr. Case, Mr. 
  DeFazio, and Mr. Rooney of Florida) introduced the following bill; 
        which was referred to the Committee on Natural Resources

_______________________________________________________________________

                                 A BILL


 
  To amend the Migratory Bird Treaty Act to affirm that the Migratory 
 Bird Treaty Act's prohibition on the unauthorized take or killing of 
migratory birds includes incidental take by commercial activities, and 
to direct the United States Fish and Wildlife Service to regulate such 
                incidental take, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Migratory Bird Protection Act of 
2020''.

SEC. 2. AMENDMENTS TO THE MIGRATORY BIRD TREATY ACT.

    (a) Incidental Take.--The Migratory Bird Treaty Act (16 U.S.C. 703 
et seq.) is amended in section 2(a), by inserting ``incidentally 
take,'' before ``attempt to take,''.
    (b) Commercial Activity.--
            (1) The Migratory Bird Treaty Act (16 U.S.C. 703 et seq.) 
        is amended by inserting after section 13 the following:

``SEC. 14. INCIDENTAL TAKE OF MIGRATORY BIRDS.

    ``(a) In General.--It shall be a violation of this Act for any 
person to incidentally take a migratory bird as a result of a 
commercial activity except as authorized by this section and 
regulations issued pursuant to this section.
    ``(b) General Permits.--The Secretary shall regulate the incidental 
take of migratory birds as a result of commercial activity by issuing 
general permits for particular industries, as identified by standard 
industrial classification, that the Secretary determines have broadly 
similar levels of incidental take and for which generally applicable 
best management practices or technologies exist that can effectively 
avoid or minimize such impacts. With respect to each such industry, the 
Secretary shall, based on the best available science--
            ``(1) identify the commercial activity covered by the 
        regulation;
            ``(2) specify appropriate mitigation to be implemented by a 
        person seeking coverage under a general permit, including 
        adoption of best management practices or technologies that the 
        Secretary has determined are practicable and effective in 
        avoiding or minimizing the incidental take of migratory birds 
        as a result of such commercial activity;
            ``(3) specify a mitigation fee in an amount the Secretary 
        determines is sufficient to reasonably compensate, through 
        habitat restoration or other appropriate measures, for any 
        incidental take of migratory birds that results from such 
        commercial activity; and
            ``(4) specify a permit fee in an amount that the Secretary 
        determines is sufficient to offset the cost of developing and 
        revising such regulations and administering the research 
        program established under subsection (s).
    ``(c) Revision of General Permits.--The Secretary shall revise a 
general permit issued under subsection (b) if such Secretary determines 
that revision is appropriate, or if--
            ``(1) the extent or nature of the incidental take of 
        migratory birds caused by the commercial activity covered by 
        the regulation is significantly different than the extent or 
        nature of such incidental take that formed the basis of the 
        regulation;
            ``(2) new best management practices or technologies can 
        significantly reduce such incidental take and can practicably 
        be adopted by the persons engaged in such commercial activity; 
        or
            ``(3) such permit has not been revised in the 10 year 
        period beginning on the date such permit was issued.
    ``(d) Consultation.--The Secretary shall, before issuing a general 
permit under subsection (b), consult with persons engaged in the 
industry to which such permit would apply and other interested 
stakeholders and afford such persons an opportunity to submit relevant 
information.
    ``(e) Priority General Permits.--
            ``(1) In general.--The Secretary shall give priority to 
        development of general permits with respect to industries for 
        which substantial information exists regarding the extent and 
        nature of incidental take of migratory birds caused by such 
        industry and the efficacy and practicability of best management 
        practices and technologies in reducing such incidental take.
            ``(2) Commercial activities with specific deadlines.--The 
        Secretary shall issue general permits under subsection (b)--
                    ``(A) not later than 5 years after the date of 
                enactment of this Act with respect to--
                            ``(i) oil, gas, and wastewater disposal 
                        pits;
                            ``(ii) methane and other gas burner pipes;
                            ``(iii) communication towers;
                            ``(iv) electric transmission and 
                        distribution lines; and
                            ``(v) wind power generation facilities; and
                    ``(B) not later than 8 years after the date of 
                enactment for this Act with respect to solar powered 
                generation facilities.
    ``(f) Mitigation Fee.--The mitigation fee for each general permit 
shall be the amount that the Secretary determines reasonably 
compensates, through habitat restoration or other appropriate measures, 
for any incidental take of migratory birds that results from the 
covered commercial activity after the application of any mitigation 
measures specified by the Secretary under subsection (b)(2). Such 
determination shall be, to the maximum extent practicable, based on 
objective and standardized metrics such as the size or capacity of a 
facility for which a person seeks coverage.
    ``(g) Endangered Species Act of 1973 and National Environmental 
Policy Act.--Before issuing a general permit pursuant to subsection 
(b), the Secretary shall consult the United States Fish and Wildlife 
Service and the National Marine Fisheries Service pursuant to section 
7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C. 1536(a)(2)), 
and prepare an Environmental Impact Statement pursuant to section 
102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 
4332(2)(C)).
    ``(h) Persons Seeking Authorization for Incidental Take.--Except as 
provided in subsection (i), a person is authorized to incidentally take 
migratory birds if such person is engaged in a commercial activity with 
respect to which a general permit has been issued under subsection (b) 
and such person--
            ``(1) notifies the Secretary in writing that such person is 
        accepting coverage under such permit;
            ``(2) annually certifies, in writing, to the Secretary that 
        such person is in compliance with this Act and maintains 
        records demonstrating such compliance;
            ``(3) adopts each best management practice or technology 
        specified by the Secretary under subsection (b)(2);
            ``(4) pays the mitigation fee specified by the Secretary 
        under subsection (b)(3) at the time such person notifies the 
        Secretary pursuant to paragraph (1), and annually thereafter; 
        and
            ``(5) pays the permit fee specified by the Secretary under 
        subsection (b)(4) at the time such person notifies the 
        Secretary pursuant to paragraph (1).
    ``(i) Violation of Terms of General Permit.--The Secretary shall 
end the coverage of a person under a general permit if such person does 
not fulfill the requirements to maintain such permit under subsection 
(h).
    ``(j) Duration of Coverage Under a General Permit.--Except as 
provided in subsection (i), a person authorized to take migratory birds 
pursuant to a general permit shall be subject to the terms of such 
general permit for a period of ten years beginning on the date such 
person is first authorized for such take, irrespective of different 
terms in a subsequently issued general permit.
    ``(k) Platform for Efficient Certification.--The Secretary shall 
establish a web-based platform or other efficient mechanism for persons 
to file a certification and pay the fees required by subsection (h) 
without requiring individualized review.
    ``(l) Interim Coverage for Commercial Activities Proposed for a 
General Permit.--
            ``(1) Commercial activity with a specified deadline.--
        Persons or entities engaged in commercial activities listed in 
        subsection (e)(2) shall, upon payment of a mitigation fee in an 
        amount determined under paragraph (3) and submission of a 
        certification of compliance to the Secretary in accordance with 
        this subsection, be exempt from liability for incidental take 
        caused by such commercial activities until the earlier of--
                    ``(A) the issuance of a general permit covering 
                such commercial activity under subsection (b); or
                    ``(B) with respect to--
                            ``(i) an activity described in subsection 
                        (e)(2)(A), the date that is 5 years after the 
                        date of enactment of this section; or
                            ``(ii) an activity described in subsection 
                        (e)(2)(B), the date that is 8 years after the 
                        date of enactment of this section.
            ``(2) Commercial activity for which the secretary has given 
        notice of intent to issue a permit.--A person engaged in a 
        commercial activity for which the Secretary has given notice in 
        the Federal Register of intent to issue a general permit under 
        subsection (b) shall, upon payment of a mitigation fee in an 
        amount determined under paragraph (3) and submission of a 
        certification of compliance to the Secretary in accordance with 
        this subsection, be exempt from liability for incidental take 
        caused by such commercial activities until the earlier of--
                    ``(A) the date that is 5 years after the date of 
                issuance of such notice; or
                    ``(B) the issuance of such regulation.
            ``(3) Mitigation fee.--The amount of the mitigation fee 
        required by paragraph (1) and (2) shall be the amount the 
        Secretary determines is sufficient to reasonably compensate, 
        through habitat restoration or other appropriate measures, for 
        any incidental take of migratory birds that results from the 
        relevant commercial activity.
            ``(4) Certification of mitigation measures.--A person 
        seeking interim coverage under this subsection shall submit to 
        the Secretary a certification identifying any measures such 
        person has taken to minimize incidental take of migratory birds 
        resulting from the commercial activity for which such person is 
        seeking interim coverage and committing to continue such 
        measures for the duration of the interim coverage.
            ``(5) Reckless or grossly negligent conduct.--The exemption 
        from liability for commercial activities receiving interim 
        coverage under this subsection shall not extend to incidental 
        take that is caused by conduct that is reckless or grossly 
        negligent.
    ``(m) Individual Permits.--The Secretary may provide a permit on an 
individual basis to incidentally take migratory birds to a person 
engaged in a commercial activity for which authorizing regulations have 
not been issued. Each individual permit shall--
            ``(1) identify the commercial activity to which the permit 
        applies;
            ``(2) specify the duration of the permit, not to exceed 10 
        years;
            ``(3) specify the amount and nature of incidental take 
        authorized by the permit;
            ``(4) specify best management practices or technologies 
        that the Secretary has determined are practicable and effective 
        in avoiding or minimizing the incidental take of migratory 
        birds by such commercial activity;
            ``(5) specify a mitigation fee in an amount the Secretary 
        determines is sufficient to reasonably compensate, through 
        habitat restoration or other appropriate measures, for any 
        incidental take of migratory birds that results from such 
        commercial activity;
            ``(6) specify a permit fee, to be paid at the time such 
        person submits a certification to the Secretary pursuant to 
        paragraph (7), to offset the cost of developing and revising 
        such permit and administering the research program established 
        under subsection (s);
            ``(7) require such person to submit to the Secretary an 
        annual certification demonstrating such person's compliance 
        with the terms of the permit;
            ``(8) provide for the terms of the permit to be revised 
        during the duration of such permit if new information indicates 
        that--
                    ``(A) the extent or nature of the incidental take 
                of migratory birds caused by such commercial activities 
                is significantly different than was understood at the 
                time such permit was issued; or
                    ``(B) new best management practices, technologies 
                or other measures can significantly reduce such impacts 
                and can practicably be adopted by the applicant; and
            ``(9) provide for revocation of the permit if the applicant 
        fails to comply with the terms of such permit.
    ``(n) Compliance Certification.--The Secretary shall make each 
certification submitted under this section publicly available.
    ``(o) De Minimis Activities.--The Secretary shall make a rule 
identifying categories of commercial activities by standard industrial 
classification that are exempt from liability for the killing or taking 
of migratory birds under this Act because they do not cumulatively or 
individually pose appreciable risks to migratory birds.
    ``(p) Deposit of Mitigation Fees.--Mitigation fees paid under this 
section shall be deposited into the North American Wetlands 
Conservation Fund established under the North American Wetlands 
Conservation Act (16 U.S.C. 4401 et seq.), the Neotropical Migratory 
Bird Conservation Fund established by section 9 of the Neotropical 
Migratory Bird Conservation Act (16 U.S.C. 6108), or such other fund or 
account established by the Secretary provided that priority for use of 
such fees shall be given to mitigating impacts or restoring or 
enhancing populations of bird species--
            ``(1) affected by the permitted activities; and
            ``(2) identified as `birds of conservation concern' under 
        authority of section 13 of the Fish and Wildlife Conservation 
        Act of 1980 (16 U.S.C. 2912).
    ``(q) Authorization of Appropriations.--There is authorized to be 
appropriated $10,000,000 for each fiscal year beginning after the date 
of the enactment of this section to carry out this section.
    ``(r) Report to Congress.--Not later than 5 years after the date of 
enactment of this section, and at the end of each 5 year period 
thereafter, the Secretary shall submit a report to the Chair and 
Ranking Member of the House Natural Resources Committee and to the 
Chair and Ranking Member of the Senate Environment and Public Works 
Committee on--
            ``(1) the conservation status of migratory birds;
            ``(2) the impacts upon migratory birds of commercial 
        activities for which authorizing regulations have been issued 
        under this section;
            ``(3) the effectiveness of best management practices, 
        technologies, and other measures in reducing such impacts; and
            ``(4) such Secretary's progress in carrying out the 
        functions and responsibilities given to the Secretary under 
        this section.
    ``(s) Research Program.--The Secretary shall establish and 
maintain, in consultation with research institutions, institutions of 
higher education (as such term is defined in section 101(a) of the 
Higher Education Act of 1965 (20 U.S.C. 1001(a))), wildlife 
conservation groups, and representatives of commercial activities 
regulated under this section, a research program to--
            ``(1) evaluate the effectiveness of best management 
        practices and technologies incorporated in regulations and 
        permits under this section;
            ``(2) develop and evaluate new or improved best management 
        practices and technologies; and
            ``(3) evaluate the impacts of commercial activities 
        regulated under this section on bird populations.

``SEC. 15. DEFINITIONS.

    ``For the purposes of this Act:
            ``(1) Incidental take.--The terms `incidental take' and 
        `incidentally take' means the killing or taking of migratory 
        birds that directly and foreseeably results from, but is not 
        the purpose of, a commercial activity.
            ``(2) Commercial activity.--The term `commercial activity' 
        means----
                    ``(A) the conduct of any aspect of a business, 
                concession, or service in order to provide goods or 
                services to any person for compensation, including 
                manufacturing, distributing, transporting, and 
                marketing goods and services; and
                    ``(B) activities of Federal, State, or local 
                governments related to the management or administration 
                of government property or programs.
            ``(3) Best management practices.--The term `best management 
        practices' means operational practices, siting, and other 
        guidelines prescribed by the Secretary to avoid or minimize the 
        incidental take of migratory birds.
            ``(4) Secretary.--The term `Secretary' means the Secretary 
        of the Interior acting through the Director of the United 
        States Fish and Wildlife Service.''.
            (2) Conforming amendments.--The Migratory Bird Treaty Act 
        is amended--
                    (A) in section 3, by striking ``of Agriculture'';
                    (B) in section 5--
                            (i) by striking ``of the Interior''; and
                            (ii) by striking ``Agriculture authorized 
                        by the Secretary of Agriculture'' and inserting 
                        ``Interior authorized by the Secretary'';
                    (C) in section 6(d) by striking ``of the 
                Interior''; and
                    (D) in section 9, by striking ``of Agriculture''.
    (c) Penalties.--Section 6 of the Migratory Bird Treaty Act (16 
U.S.C. 707) is amended by inserting after subsection (d) the 
following--
    ``(e) Whoever in violation of this Act, shall incidentally take a 
migratory bird or violate the terms of a permit or any rule issued by 
the Secretary to administer section 14 of this Act may be assessed a 
civil penalty by the Secretary of not more than $10,000 per violation, 
except that unpermitted incidental take which is caused by conduct that 
is reckless or grossly negligent shall be subject to the penalties of 
subsection (a). The Secretary is authorized to commence a civil action 
for appropriate relief, including a permanent or temporary injunction, 
for any violation of the terms of a permit or regulation issued under 
such section.''.
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