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. BLU-
MENAUER, 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 Com-
mittee 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. CART-
WRIGHT, 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. HAS-
TINGS, 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 Wash-
ington, Mr. KHANNA, Mr. LEVIN of Michigan, Ms. BLUNT ROCHESTER, 
Ms. DELBENE, Mr. PALLONE, Mr. KIND, Mr. SCHNEIDER, Mr. SAR-
BANES, 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. KIRK-
PATRICK, Mr. KILDEE, Ms. PORTER, Mrs. CAROLYN B. MALONEY of New 
York, Mr. POSEY, Ms. MUCARSEL-POWELL, Mr. GARCI´A of Illinois, Mr. 
VerDate Sep 11 2014 
21:23 Sep 02, 2020
Jkt 099200
PO 00000
Frm 00001
Fmt 6652
Sfmt 6652
E:\BILLS\H5552.RH
H5552
pbinns on DSKJLVW7X2PROD with BILLS
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. STAN-
TON, 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 unau-
thorized take or killing of migratory birds includes inci-
dental take by commercial activities, and to direct the 
United States Fish and Wildlife Service to regulate such 
incidental take, and for other purposes. 
VerDate Sep 11 2014 
21:23 Sep 02, 2020
Jkt 099200
PO 00000
Frm 00002
Fmt 6652
Sfmt 6652
E:\BILLS\H5552.RH
H5552
pbinns on DSKJLVW7X2PROD with BILLS
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Migratory Bird Protec-
tion 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 regu-
late the incidental take of migratory birds as a result of 
commercial activity by issuing general permits for par-
ticular industries, as identified by standard industrial clas-
sification, that the Secretary determines have broadly simi-
lar levels of incidental take and for which generally appli-
VerDate Sep 11 2014 
21:23 Sep 02, 2020
Jkt 099200
PO 00000
Frm 00003
Fmt 6652
Sfmt 6203
E:\BILLS\H5552.RH
H5552
pbinns on DSKJLVW7X2PROD with BILLS
cable best management practices or technologies exist that 
can effectively avoid or minimize such impacts. With re-
spect 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 imple-
mented by a person seeking coverage under a general 
permit, including adoption of best management prac-
tices or technologies that the Secretary has determined 
are practicable and effective in avoiding or mini-
mizing the incidental take of migratory birds as a re-
sult of such commercial activity; 
‘‘(3) specify a mitigation fee in an amount the 
Secretary determines is sufficient to reasonably com-
pensate, through habitat restoration or other appro-
priate 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 admin-
istering the research program established under sub-
section (s). 
‘‘(c) REVISION OF GENERAL PERMITS.—The Secretary 
shall revise a general permit issued under subsection (b) 
VerDate Sep 11 2014 
21:23 Sep 02, 2020
Jkt 099200
PO 00000
Frm 00004
Fmt 6652
Sfmt 6203
E:\BILLS\H5552.RH
H5552
pbinns on DSKJLVW7X2PROD with BILLS
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 tech-
nologies can significantly reduce such incidental take 
and can practicably be adopted by the persons en-
gaged 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 per-
sons an opportunity to submit relevant information. 
‘‘(e) PRIORITY GENERAL PERMITS.— 
‘‘(1) IN GENERAL.—The Secretary shall give pri-
ority 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 effi-
VerDate Sep 11 2014 
21:23 Sep 02, 2020
Jkt 099200
PO 00000
Frm 00005
Fmt 6652
Sfmt 6203
E:\BILLS\H5552.RH
H5552
pbinns on DSKJLVW7X2PROD with BILLS
cacy and practicability of best management practices 
and technologies in reducing such incidental take. 
‘‘(2) COMMERCIAL
ACTIVITIES
WITH
SPECIFIC 
DEADLINES.—The Secretary shall issue general per-
mits 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 dis-
tribution 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 deter-
mines 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 
VerDate Sep 11 2014 
21:23 Sep 02, 2020
Jkt 099200
PO 00000
Frm 00006
Fmt 6652
Sfmt 6203
E:\BILLS\H5552.RH
H5552
pbinns on DSKJLVW7X2PROD with BILLS
specified by the Secretary under subsection (b)(2). Such de-
termination 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 NA-
TIONAL 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 sec-
tion 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 INCI-
DENTAL 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 Sec-
retary that such person is in compliance with this Act 
and maintains records demonstrating such compli-
ance; 
VerDate Sep 11 2014 
21:23 Sep 02, 2020
Jkt 099200
PO 00000
Frm 00007
Fmt 6652
Sfmt 6203
E:\BILLS\H5552.RH
H5552
pbinns on DSKJLVW7X2PROD with BILLS
‘‘(3) adopts each best management practice or 
technology specified by the Secretary under subsection 
(b)(2); 
‘‘(4) pays the mitigation fee specified by the Sec-
retary 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 Sec-
retary 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 require-
ments 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 effi-
cient mechanism for persons to file a certification and pay 
VerDate Sep 11 2014 
21:23 Sep 02, 2020
Jkt 099200
PO 00000
Frm 00008
Fmt 6652
Sfmt 6203
E:\BILLS\H5552.RH
H5552
pbinns on DSKJLVW7X2PROD with BILLS
the fees required by subsection (h) without requiring indi-
vidualized review. 
‘‘(l) INTERIM COVERAGE FOR COMMERCIAL ACTIVITIES 
PROPOSED FOR A GENERAL PERMIT.— 
‘‘(1) COMMERCIAL ACTIVITY WITH A SPECIFIED 
DEADLINE.—Persons or entities engaged in commer-
cial activities listed in subsection (e)(2) shall, upon 
payment of a mitigation fee in an amount deter-
mined under paragraph (3) and submission of a cer-
tification of compliance to the Secretary in accord-
ance 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 cov-
ering 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 sub-
section (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 
VerDate Sep 11 2014 
21:23 Sep 02, 2020
Jkt 099200
PO 00000
Frm 00009
Fmt 6652
Sfmt 6203
E:\BILLS\H5552.RH
H5552
pbinns on DSKJLVW7X2PROD with BILLS
A PERMIT.—A person engaged in a commercial activ-
ity 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 mitiga-
tion 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 miti-
gation 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 com-
mercial activity. 
‘‘(4) CERTIFICATION
OF
MITIGATION
MEAS-
URES.—A person seeking interim coverage under this 
subsection shall submit to the Secretary a certifi-
cation identifying any measures such person has 
taken to minimize incidental take of migratory birds 
resulting from the commercial activity for which such 
VerDate Sep 11 2014 
21:23 Sep 02, 2020
Jkt 099200
PO 00000
Frm 00010
Fmt 6652
Sfmt 6203
E:\BILLS\H5552.RH
H5552
pbinns on DSKJLVW7X2PROD with BILLS
person is seeking interim coverage and committing to 
continue such measures for the duration of the in-
terim coverage. 
‘‘(5) RECKLESS OR GROSSLY NEGLIGENT CON-
DUCT.—The exemption from liability for commercial 
activities receiving interim coverage under this sub-
section shall not extend to incidental take that is 
caused by conduct that is reckless or grossly negligent. 
‘‘(m) INDIVIDUAL PERMITS.—The Secretary may pro-
vide a permit on an individual basis to incidentally take 
migratory birds to a person engaged in a commercial activ-
ity 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 ex-
ceed 10 years; 
‘‘(3) specify the amount and nature of incidental 
take authorized by the permit; 
‘‘(4) specify best management practices or tech-
nologies that the Secretary has determined are prac-
ticable and effective in avoiding or minimizing the 
incidental take of migratory birds by such commer-
cial activity; 
VerDate Sep 11 2014 
21:23 Sep 02, 2020
Jkt 099200
PO 00000
Frm 00011
Fmt 6652
Sfmt 6203
E:\BILLS\H5552.RH
H5552
pbinns on DSKJLVW7X2PROD with BILLS
‘‘(5) specify a mitigation fee in an amount the 
Secretary determines is sufficient to reasonably com-
pensate, through habitat restoration or other appro-
priate 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 devel-
oping and revising such permit and administering 
the research program established under subsection (s); 
‘‘(7) require such person to submit to the Sec-
retary an annual certification demonstrating such 
person’s compliance with the terms of the permit; 
‘‘(8) provide for the terms of the permit to be re-
vised during the duration of such permit if new infor-
mation indicates that— 
‘‘(A) the extent or nature of the incidental 
take of migratory birds caused by such commer-
cial activities is significantly different than was 
understood at the time such permit was issued; 
or 
‘‘(B) new best management practices, tech-
nologies or other measures can significantly re-
duce such impacts and can practicably be adopt-
ed by the applicant; and 
VerDate Sep 11 2014 
21:23 Sep 02, 2020
Jkt 099200
PO 00000
Frm 00012
Fmt 6652
Sfmt 6203
E:\BILLS\H5552.RH
H5552
pbinns on DSKJLVW7X2PROD with BILLS
‘‘(9) provide for revocation of the permit if the 
applicant fails to comply with the terms of such per-
mit. 
‘‘(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 pri-
ority for use of such fees shall be given to mitigating im-
pacts or restoring or enhancing populations of bird spe-
cies— 
‘‘(1) affected by the permitted activities; and 
VerDate Sep 11 2014 
21:23 Sep 02, 2020
Jkt 099200
PO 00000
Frm 00013
Fmt 6652
Sfmt 6203
E:\BILLS\H5552.RH
H5552
pbinns on DSKJLVW7X2PROD with BILLS
‘‘(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 Rank-
ing Member of the Senate Environment and Public Works 
Committee on— 
‘‘(1) the conservation status of migratory birds; 
‘‘(2) the impacts upon migratory birds of com-
mercial activities for which authorizing regulations 
have been issued under this section; 
‘‘(3) the effectiveness of best management prac-
tices, technologies, and other measures in reducing 
such impacts; and 
‘‘(4) such Secretary’s progress in carrying out 
the functions and responsibilities given to the Sec-
retary under this section. 
VerDate Sep 11 2014 
21:23 Sep 02, 2020
Jkt 099200
PO 00000
Frm 00014
Fmt 6652
Sfmt 6203
E:\BILLS\H5552.RH
H5552
pbinns on DSKJLVW7X2PROD with BILLS
‘‘(s) RESEARCH PROGRAM.—The Secretary shall estab-
lish and maintain, in consultation with State fish and 
wildlife agencies, research institutions, institutions of high-
er 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 com-
mercial activities regulated under this section, a research 
program to— 
‘‘(1) evaluate the effectiveness of best manage-
ment practices and technologies incorporated in regu-
lations and permits under this section; 
‘‘(2) develop and evaluate new or improved best 
management practices and technologies; and 
‘‘(3) evaluate the impacts of commercial activi-
ties 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 tak-
ing of migratory birds that directly and foreseeably 
results from, but is not the purpose of, a commercial 
activity. 
‘‘(2) COMMERCIAL
ACTIVITY.—The term ‘com-
mercial activity’ means—— 
VerDate Sep 11 2014 
21:23 Sep 02, 2020
Jkt 099200
PO 00000
Frm 00015
Fmt 6652
Sfmt 6203
E:\BILLS\H5552.RH
H5552
pbinns on DSKJLVW7X2PROD with BILLS
‘‘(A) the conduct of any aspect of a busi-
ness, concession, or service in order to provide 
goods or services to any person for compensation, 
including manufacturing, distributing, trans-
porting, and marketing goods and services; and 
‘‘(B) activities of Federal, State, or local 
governments related to the management or ad-
ministration of government property or pro-
grams. 
‘‘(3) BEST MANAGEMENT PRACTICES.—The term 
‘best management practices’ means operational prac-
tices, 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 Direc-
tor 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 Agri-
culture’’; 
(B) in section 5— 
(i) by striking ‘‘of the Interior’’; and 
VerDate Sep 11 2014 
21:23 Sep 02, 2020
Jkt 099200
PO 00000
Frm 00016
Fmt 6652
Sfmt 6203
E:\BILLS\H5552.RH
H5552
pbinns on DSKJLVW7X2PROD with BILLS