IB 

Union Calendar No. 386 

116TH CONGRESS 

2D SESSION H. R. 5552 

[Report No. 116–482] 

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. 

VELA ́ZQUEZ, 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 

SEPTEMBER 1, 2020 

Additional sponsors: Mrs. DAVIS of California, Mr. COHEN, Mr. MORELLE, 

Mr. CONNOLLY, Mr. QUIGLEY, Mr. HORSFORD, Ms. TITUS, Mr. CARTWRIGHT, Mr. MCGOVERN, Ms. LEE of California, Ms. WILD, Ms. 

DELAURO, Mr. BRENDAN F. BOYLE of Pennsylvania, Mrs. BEATTY, Ms. 

SCHAKOWSKY, Mr. KATKO, Mr. PAPPAS, Ms. BARRAGA ́N, Ms. PINGREE, 

Mr. PRICE of North Carolina, Mr. ESPAILLAT, Ms. SCANLON, Mr. HASTINGS, Mr. POCAN, Mr. COOPER, Mr. SABLAN, Ms. STEVENS, Mrs. 

HAYES, Mr. NEGUSE, Ms. LOFGREN, Mr. SCOTT of Virginia, Mr. KIM, 

Ms. JACKSON LEE, Mr. THOMPSON of California, Mr. LARSEN of Washington, Mr. KHANNA, Mr. LEVIN of Michigan, Ms. BLUNT ROCHESTER, 

Ms. DELBENE, Mr. PALLONE, Mr. KIND, Mr. SCHNEIDER, Mr. SARBANES, Ms. ESHOO, Mr. FITZPATRICK, Mr. COX of California, Mr. 

TAKANO, Mr. DESAULNIER, Mr. SOTO, Ms. DEGETTE, Mr. CICILLINE, 

Ms. ROYBAL-ALLARD, Mr. SUOZZI, Mrs. WATSON COLEMAN, Mrs. KIRKPATRICK, Mr. KILDEE, Ms. PORTER, Mrs. CAROLYN B. MALONEY of New 

York, Mr. POSEY, Ms. MUCARSEL-POWELL, Mr. GARCI ́A of Illinois, Mr. 


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CISNEROS, Mr. KILMER, Mr. JOHNSON of Georgia, Ms. BONAMICI, Ms. 

WASSERMAN SCHULTZ, Ms. HOULAHAN, Mr. CASTEN of Illinois, Mr. 

VARGAS, Ms. SPEIER, Mr. GOMEZ, Mr. HARDER of California, Mr. STANTON, Ms. JAYAPAL, Mr. GOTTHEIMER, Mr. PASCRELL, and Mr. 

O’HALLERAN

SEPTEMBER 1, 2020 

Reported with an amendment; committed to the Committee of the Whole 

House on the State of the Union and ordered to be printed 

[Strike out all after the enacting clause and insert the part printed in italic] 

[For text of introduced bill, see copy of bill as introduced on January 8, 2020] 

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. 


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1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Migratory Bird Protec5 tion Act of 2020’’. 

6 SEC. 2. AMENDMENTS TO THE MIGRATORY BIRD TREATY 

7 ACT. 

8 (a) INCIDENTAL TAKE.—The Migratory Bird Treaty 

9 Act (16 U.S.C. 703 et seq.) is amended in section 2(a), by 

10 inserting ‘‘incidentally take,’’ before ‘‘attempt to take,’’. 

11 (b) COMMERCIAL ACTIVITY.— 

12 (1) The Migratory Bird Treaty Act (16 U.S.C. 

13 703 et seq.) is amended by inserting after section 13 

14 the following: 

15 ‘‘SEC. 14. INCIDENTAL TAKE OF MIGRATORY BIRDS. 

16 ‘‘(a) IN GENERAL.—It shall be a violation of this Act 

17 for any person to incidentally take a migratory bird as a 

18 result of a commercial activity except as authorized by this 

19 section and regulations issued pursuant to this section. 

20 ‘‘(b) GENERAL PERMITS.—The Secretary shall regu21 late the incidental take of migratory birds as a result of 

22 commercial activity by issuing general permits for par23 ticular industries, as identified by standard industrial clas24 sification, that the Secretary determines have broadly simi25 lar levels of incidental take and for which generally appliVerDate Sep 11 2014 21:23 Sep 02, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6203 E:\BILLS\H5552.RH H5552

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1 cable best management practices or technologies exist that 

2 can effectively avoid or minimize such impacts. With re3 spect to each such industry, the Secretary shall, based on 

4 the best available science— 

5 ‘‘(1) identify the commercial activity covered by 

6 the regulation; 

7 ‘‘(2) specify appropriate mitigation to be imple8 mented by a person seeking coverage under a general 

9 permit, including adoption of best management prac10 tices or technologies that the Secretary has determined 

11 are practicable and effective in avoiding or mini12 mizing the incidental take of migratory birds as a re13 sult of such commercial activity; 

14 ‘‘(3) specify a mitigation fee in an amount the 

15 Secretary determines is sufficient to reasonably com16 pensate, through habitat restoration or other appro17 priate measures, for any incidental take of migratory 

18 birds that results from such commercial activity; and 

19 ‘‘(4) specify a permit fee in an amount that the 

20 Secretary determines is sufficient to offset the cost of 

21 developing and revising such regulations and admin22 istering the research program established under sub23 section (s). 

24 ‘‘(c) REVISION OF GENERAL PERMITS.—The Secretary 

25 shall revise a general permit issued under subsection (b) 


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1 if such Secretary determines that revision is appropriate, 

2 or if— 

3 ‘‘(1) the extent or nature of the incidental take 

4 of migratory birds caused by the commercial activity 

5 covered by the regulation is significantly different 

6 than the extent or nature of such incidental take that 

7 formed the basis of the regulation; 

8 ‘‘(2) new best management practices or tech9 nologies can significantly reduce such incidental take 

10 and can practicably be adopted by the persons en11 gaged in such commercial activity; or 

12 ‘‘(3) such permit has not been revised in the 10 

13 year period beginning on the date such permit was 

14 issued. 

15 ‘‘(d) CONSULTATION.—The Secretary shall, before 

16 issuing a general permit under subsection (b), consult with 

17 persons engaged in the industry to which such permit would 

18 apply and other interested stakeholders and afford such per19 sons an opportunity to submit relevant information. 

20 ‘‘(e) PRIORITY GENERAL PERMITS.— 

21 ‘‘(1) IN GENERAL.—The Secretary shall give pri22 ority to development of general permits with respect 

23 to industries for which substantial information exists 

24 regarding the extent and nature of incidental take of 

25 migratory birds caused by such industry and the effiVerDate Sep 11 2014 21:23 Sep 02, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6203 E:\BILLS\H5552.RH H5552

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1 cacy and practicability of best management practices 

2 and technologies in reducing such incidental take. 

3 ‘‘(2) COMMERCIAL ACTIVITIES WITH SPECIFIC

4 DEADLINES.—The Secretary shall issue general per5 mits under subsection (b)— 

6 ‘‘(A) not later than 5 years after the date 

7 of enactment of this Act with respect to— 

8 ‘‘(i) oil, gas, and wastewater disposal 

9 pits; 

10 ‘‘(ii) methane and other gas burner 

11 pipes; 

12 ‘‘(iii) communication towers; 

13 ‘‘(iv) electric transmission and dis14 tribution lines; and 

15 ‘‘(v) wind power generation facilities; 

16 and 

17 ‘‘(B) not later than 8 years after the date 

18 of enactment for this Act with respect to solar 

19 powered generation facilities. 

20 ‘‘(f) MITIGATION FEE.—The mitigation fee for each 

21 general permit shall be the amount that the Secretary deter22 mines reasonably compensates, through habitat restoration 

23 or other appropriate measures, for any incidental take of 

24 migratory birds that results from the covered commercial 

25 activity after the application of any mitigation measures 


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1 specified by the Secretary under subsection (b)(2). Such de2 termination shall be, to the maximum extent practicable, 

3 based on objective and standardized metrics such as the size 

4 or capacity of a facility for which a person seeks coverage. 

5 ‘‘(g) ENDANGERED SPECIES ACT OF 1973 AND NA6 TIONAL ENVIRONMENTAL POLICY ACT.—Before issuing a 

7 general permit pursuant to subsection (b), the Secretary 

8 shall consult the United States Fish and Wildlife Service 

9 and the National Marine Fisheries Service pursuant to sec10 tion 7(a)(2) of the Endangered Species Act of 1973 (16 

11 U.S.C. 1536(a)(2)), and prepare an Environmental Impact 

12 Statement pursuant to section 102(2)(C) of the National 

13 Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)). 

14 ‘‘(h) PERSONS SEEKING AUTHORIZATION FOR INCI15 DENTAL TAKE.—Except as provided in subsection (i), a 

16 person is authorized to incidentally take migratory birds 

17 if such person is engaged in a commercial activity with 

18 respect to which a general permit has been issued under 

19 subsection (b) and such person— 

20 ‘‘(1) notifies the Secretary in writing that such 

21 person is accepting coverage under such permit; 

22 ‘‘(2) annually certifies, in writing, to the Sec23 retary that such person is in compliance with this Act 

24 and maintains records demonstrating such compli25 ance; 


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1 ‘‘(3) adopts each best management practice or 

2 technology specified by the Secretary under subsection 

3 (b)(2); 

4 ‘‘(4) pays the mitigation fee specified by the Sec5 retary under subsection (b)(3) at the time such person 

6 notifies the Secretary pursuant to paragraph (1), and 

7 annually thereafter; and 

8 ‘‘(5) pays the permit fee specified by the Sec9 retary under subsection (b)(4) at the time such person 

10 notifies the Secretary pursuant to paragraph (1). 

11 ‘‘(i) VIOLATION OF TERMS OF GENERAL PERMIT.— 

12 The Secretary shall end the coverage of a person under a 

13 general permit if such person does not fulfill the require14 ments to maintain such permit under subsection (h). 

15 ‘‘(j) DURATION OF COVERAGE UNDER A GENERAL

16 PERMIT.—Except as provided in subsection (i), a person 

17 authorized to take migratory birds pursuant to a general 

18 permit shall be subject to the terms of such general permit 

19 for a period of ten years beginning on the date such person 

20 is first authorized for such take, irrespective of different 

21 terms in a subsequently issued general permit. 

22 ‘‘(k) PLATFORM FOR EFFICIENT CERTIFICATION.—The 

23 Secretary shall establish a web-based platform or other effi24 cient mechanism for persons to file a certification and pay 


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1 the fees required by subsection (h) without requiring indi2 vidualized review. 

3 ‘‘(l) INTERIM COVERAGE FOR COMMERCIAL ACTIVITIES

4 PROPOSED FOR A GENERAL PERMIT.— 

5 ‘‘(1) COMMERCIAL ACTIVITY WITH A SPECIFIED

6 DEADLINE.—Persons or entities engaged in commer7 cial activities listed in subsection (e)(2) shall, upon 

8 payment of a mitigation fee in an amount deter9 mined under paragraph (3) and submission of a cer10 tification of compliance to the Secretary in accord11 ance with this subsection, be exempt from liability for 

12 incidental take caused by such commercial activities 

13 until the earlier of— 

14 ‘‘(A) the issuance of a general permit cov15 ering such commercial activity under subsection 

16 (b); or 

17 ‘‘(B) with respect to— 

18 ‘‘(i) an activity described in subsection 

19 (e)(2)(A), the date that is 5 years after the 

20 date of enactment of this section; or 

21 ‘‘(ii) an activity described in sub22 section (e)(2)(B), the date that is 8 years 

23 after the date of enactment of this section. 

24 ‘‘(2) COMMERCIAL ACTIVITY FOR WHICH THE

25 SECRETARY HAS GIVEN NOTICE OF INTENT TO ISSUE


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1 A PERMIT.—A person engaged in a commercial activ2 ity for which the Secretary has given notice in the 

3 Federal Register of intent to issue a general permit 

4 under subsection (b) shall, upon payment of a mitiga5 tion fee in an amount determined under paragraph 

6 (3) and submission of a certification of compliance to 

7 the Secretary in accordance with this subsection, be 

8 exempt from liability for incidental take caused by 

9 such commercial activities until the earlier of— 

10 ‘‘(A) the date that is 5 years after the date 

11 of issuance of such notice; or 

12 ‘‘(B) the issuance of such regulation. 

13 ‘‘(3) MITIGATION FEE.—The amount of the miti14 gation fee required by paragraph (1) and (2) shall be 

15 the amount the Secretary determines is sufficient to 

16 reasonably compensate, through habitat restoration or 

17 other appropriate measures, for any incidental take of 

18 migratory birds that results from the relevant com19 mercial activity. 

20 ‘‘(4) CERTIFICATION OF MITIGATION MEAS21 URES.—A person seeking interim coverage under this 

22 subsection shall submit to the Secretary a certifi23 cation identifying any measures such person has 

24 taken to minimize incidental take of migratory birds 

25 resulting from the commercial activity for which such 


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1 person is seeking interim coverage and committing to 

2 continue such measures for the duration of the in3 terim coverage. 

4 ‘‘(5) RECKLESS OR GROSSLY NEGLIGENT CON5 DUCT.—The exemption from liability for commercial 

6 activities receiving interim coverage under this sub7 section shall not extend to incidental take that is 

8 caused by conduct that is reckless or grossly negligent. 

9 ‘‘(m) INDIVIDUAL PERMITS.—The Secretary may pro10 vide a permit on an individual basis to incidentally take 

11 migratory birds to a person engaged in a commercial activ12 ity for which authorizing regulations have not been issued. 

13 Each individual permit shall— 

14 ‘‘(1) identify the commercial activity to which 

15 the permit applies; 

16 ‘‘(2) specify the duration of the permit, not to ex17 ceed 10 years; 

18 ‘‘(3) specify the amount and nature of incidental 

19 take authorized by the permit; 

20 ‘‘(4) specify best management practices or tech21 nologies that the Secretary has determined are prac22 ticable and effective in avoiding or minimizing the 

23 incidental take of migratory birds by such commer24 cial activity; 


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1 ‘‘(5) specify a mitigation fee in an amount the 

2 Secretary determines is sufficient to reasonably com3 pensate, through habitat restoration or other appro4 priate measures, for any incidental take of migratory 

5 birds that results from such commercial activity; 

6 ‘‘(6) specify a permit fee, to be paid at the time 

7 such person submits a certification to the Secretary 

8 pursuant to paragraph (7), to offset the cost of devel9 oping and revising such permit and administering 

10 the research program established under subsection (s); 

11 ‘‘(7) require such person to submit to the Sec12 retary an annual certification demonstrating such 

13 person’s compliance with the terms of the permit; 

14 ‘‘(8) provide for the terms of the permit to be re15 vised during the duration of such permit if new infor16 mation indicates that— 

17 ‘‘(A) the extent or nature of the incidental 

18 take of migratory birds caused by such commer19 cial activities is significantly different than was 

20 understood at the time such permit was issued; 

21 or 

22 ‘‘(B) new best management practices, tech23 nologies or other measures can significantly re24 duce such impacts and can practicably be adopt25 ed by the applicant; and 


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1 ‘‘(9) provide for revocation of the permit if the 

2 applicant fails to comply with the terms of such per3 mit. 

4 ‘‘(n) COMPLIANCE CERTIFICATION.—The Secretary 

5 shall make each certification submitted under this section 

6 publicly available. 

7 ‘‘(o) DE MINIMIS ACTIVITIES.—The Secretary shall 

8 make a rule identifying categories of commercial activities 

9 by standard industrial classification that are exempt from 

10 liability for the killing or taking of migratory birds under 

11 this Act because they do not cumulatively or individually 

12 pose appreciable risks to migratory birds. 

13 ‘‘(p) DEPOSIT OF MITIGATION FEES.—Mitigation fees 

14 paid under this section shall be deposited into the North 

15 American Wetlands Conservation Fund established under 

16 the North American Wetlands Conservation Act (16 U.S.C. 

17 4401 et seq.), the Neotropical Migratory Bird Conservation 

18 Fund established by section 9 of the Neotropical Migratory 

19 Bird Conservation Act (16 U.S.C. 6108), or such other fund 

20 or account established by the Secretary provided that pri21 ority for use of such fees shall be given to mitigating im22 pacts or restoring or enhancing populations of bird spe23 cies— 

24 ‘‘(1) affected by the permitted activities; and 


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1 ‘‘(2) identified as ‘birds of conservation concern’ 

2 under authority of section 13 of the Fish and Wildlife 

3 Conservation Act of 1980 (16 U.S.C. 2912). 

4 ‘‘(q) AUTHORIZATION OF APPROPRIATIONS.—There is 

5 authorized to be appropriated $10,000,000 for each fiscal 

6 year beginning after the date of the enactment of this section 

7 to carry out this section. 

8 ‘‘(r) REPORT TO CONGRESS.—Not later than 5 years 

9 after the date of enactment of this section, and at the end 

10 of each 5 year period thereafter, the Secretary shall submit 

11 a report to the Chair and Ranking Member of the House 

12 Natural Resources Committee and to the Chair and Rank13 ing Member of the Senate Environment and Public Works 

14 Committee on— 

15 ‘‘(1) the conservation status of migratory birds; 

16 ‘‘(2) the impacts upon migratory birds of com17 mercial activities for which authorizing regulations 

18 have been issued under this section; 

19 ‘‘(3) the effectiveness of best management prac20 tices, technologies, and other measures in reducing 

21 such impacts; and 

22 ‘‘(4) such Secretary’s progress in carrying out 

23 the functions and responsibilities given to the Sec24 retary under this section. 


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1 ‘‘(s) RESEARCH PROGRAM.—The Secretary shall estab2 lish and maintain, in consultation with State fish and 

3 wildlife agencies, research institutions, institutions of high4 er education (as such term is defined in section 101(a) of 

5 the Higher Education Act of 1965 (20 U.S.C. 1001(a))), 

6 wildlife conservation groups, and representatives of com7 mercial activities regulated under this section, a research 

8 program to— 

9 ‘‘(1) evaluate the effectiveness of best manage10 ment practices and technologies incorporated in regu11 lations and permits under this section; 

12 ‘‘(2) develop and evaluate new or improved best 

13 management practices and technologies; and 

14 ‘‘(3) evaluate the impacts of commercial activi15 ties regulated under this section on bird populations. 

16 ‘‘SEC. 15. DEFINITIONS. 

17 ‘‘For the purposes of this Act: 

18 ‘‘(1) INCIDENTAL TAKE.—The terms ‘incidental 

19 take’ and ‘incidentally take’ means the killing or tak20 ing of migratory birds that directly and foreseeably 

21 results from, but is not the purpose of, a commercial 

22 activity. 

23 ‘‘(2) COMMERCIAL ACTIVITY.—The term ‘com24 mercial activity’ means—— 


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1 ‘‘(A) the conduct of any aspect of a busi2 ness, concession, or service in order to provide 

3 goods or services to any person for compensation, 

4 including manufacturing, distributing, trans5 porting, and marketing goods and services; and 

6 ‘‘(B) activities of Federal, State, or local 

7 governments related to the management or ad8 ministration of government property or pro9 grams. 

10 ‘‘(3) BEST MANAGEMENT PRACTICES.—The term 

11 ‘best management practices’ means operational prac12 tices, siting, and other guidelines prescribed by the 

13 Secretary to avoid or minimize the incidental take of 

14 migratory birds. 

15 ‘‘(4) SECRETARY.—The term ‘Secretary’ means 

16 the Secretary of the Interior acting through the Direc17 tor of the United States Fish and Wildlife Service.’’. 

18 (2) CONFORMING AMENDMENTS.—The Migratory 

19 Bird Treaty Act is amended— 

20 (A) in section 3, by striking ‘‘of Agri21 culture’’; 

22 (B) in section 5— 

23 (i) by striking ‘‘of the Interior’’; and 


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1 (ii) by striking ‘‘Agriculture authorized 

2 by the Secretary of Agriculture’’ and insert3 ing ‘‘Interior authorized by the Secretary’’; 

4 (C) in section 6(d) by striking ‘‘of the Inte5 rior’’; and 

6 (D) in section 9, by striking ‘‘of Agri7 culture’’. 

8 (c) PENALTIES.—Section 6 of the Migratory Bird 

9 Treaty Act (16 U.S.C. 707) is amended by inserting after 

10 subsection (d) the following: 

11 ‘‘(e) Whoever in violation of this Act, shall incidentally 

12 take a migratory bird or violate the terms of a permit or 

13 any rule issued by the Secretary to administer section 14 

14 of this Act may be assessed a civil penalty by the Secretary 

15 of not more than $10,000 per violation, except that 

16 unpermitted incidental take which is caused by conduct 

17 that is reckless or grossly negligent shall be subject to the 

18 penalties of subsection (a). The Secretary is authorized to 

19 commence a civil action for appropriate relief, including 

20 a permanent or temporary injunction, for any violation of 

21 the terms of a permit or regulation issued under such sec22 tion.’’. 


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Union Calendar No. 386 

116TH CONGRESS 

2D SESSION H. R. 5552 

[Report No. 116–482] 

A BILL 

To amend the Migratory Bird Treaty Act to affirm 

and for other purposes. Wildlife Service to regulate such incidental take, tivities, and to direct the United States Fish and birds includes incidental take by commercial acon the unauthorized take or killing of migratory that the Migratory Bird Treaty Act’s prohibition 

SEPTEMBER 1, 2020 

Reported with an amendment; committed to the Comand ordered to be printed mittee of the Whole House on the State of the Union 


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