I 
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. 
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 
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. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
VerDate Sep 11 2014 
21:37 Jan 10, 2020
Jkt 099200
PO 00000
Frm 00001
Fmt 6652
Sfmt 6201
E:\BILLS\H5552.IH
H5552
pamtmann on DSKBC07HB2PROD with BILLS
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 sec-
tion. 
‘‘(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 
similar levels of incidental take and for which generally 
applicable best management practices or technologies exist 
VerDate Sep 11 2014 
23:45 Jan 10, 2020
Jkt 099200
PO 00000
Frm 00002
Fmt 6652
Sfmt 6201
E:\BILLS\H5552.IH
H5552
pamtmann on DSKBC07HB2PROD with BILLS
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 imple-
mented by a person seeking coverage under a gen-
eral permit, including adoption of best management 
practices or technologies that the Secretary has de-
termined 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 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 ad-
ministering the research program established under 
subsection (s). 
‘‘(c) REVISION OF GENERAL PERMITS.—The Sec-
retary shall revise a general permit issued under sub-
VerDate Sep 11 2014 
21:37 Jan 10, 2020
Jkt 099200
PO 00000
Frm 00003
Fmt 6652
Sfmt 6201
E:\BILLS\H5552.IH
H5552
pamtmann on DSKBC07HB2PROD with BILLS
section (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 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 persons an opportunity to submit relevant informa-
tion. 
‘‘(e) PRIORITY GENERAL PERMITS.— 
‘‘(1) IN
GENERAL.—The Secretary shall give 
priority to development of general permits with re-
spect to industries for which substantial information 
exists regarding the extent and nature of incidental 
VerDate Sep 11 2014 
21:37 Jan 10, 2020
Jkt 099200
PO 00000
Frm 00004
Fmt 6652
Sfmt 6201
E:\BILLS\H5552.IH
H5552
pamtmann on DSKBC07HB2PROD with BILLS
of migratory birds that results from the covered commer-
cial activity after the application of any mitigation meas-
ures specified by the Secretary under subsection (b)(2). 
Such determination shall be, to the maximum extent prac-
ticable, 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 
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 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; 
VerDate Sep 11 2014 
21:37 Jan 10, 2020
Jkt 099200
PO 00000
Frm 00006
Fmt 6652
Sfmt 6201
E:\BILLS\H5552.IH
H5552
pamtmann on DSKBC07HB2PROD with BILLS
‘‘(2) annually certifies, in writing, to the Sec-
retary that such person is in compliance with this 
Act and maintains records demonstrating such com-
pliance; 
‘‘(3) adopts each best management practice or 
technology specified by the Secretary under sub-
section (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 Sec-
retary under subsection (b)(4) at the time such per-
son 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 
VerDate Sep 11 2014 
21:37 Jan 10, 2020
Jkt 099200
PO 00000
Frm 00007
Fmt 6652
Sfmt 6201
E:\BILLS\H5552.IH
H5552
pamtmann on DSKBC07HB2PROD with BILLS
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 requir-
ing individualized review. 
‘‘(l) INTERIM COVERAGE FOR COMMERCIAL ACTIVI-
TIES 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 activi-
ties 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 
VerDate Sep 11 2014 
21:37 Jan 10, 2020
Jkt 099200
PO 00000
Frm 00008
Fmt 6652
Sfmt 6201
E:\BILLS\H5552.IH
H5552
pamtmann on DSKBC07HB2PROD with BILLS
‘‘(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 
A PERMIT.—A person engaged in a commercial ac-
tivity 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 miti-
gation fee in an amount determined under para-
graph (3) and submission of a certification of com-
pliance to the Secretary in accordance with this sub-
section, 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 suf-
ficient to reasonably compensate, through habitat 
restoration or other appropriate measures, for any 
incidental take of migratory birds that results from 
the relevant commercial activity. 
VerDate Sep 11 2014 
21:37 Jan 10, 2020
Jkt 099200
PO 00000
Frm 00009
Fmt 6652
Sfmt 6201
E:\BILLS\H5552.IH
H5552
pamtmann on DSKBC07HB2PROD with BILLS
‘‘(4) CERTIFICATION
OF
MITIGATION
MEAS-
URES.—A person seeking interim coverage under 
this subsection shall submit to the Secretary a cer-
tification 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 commit-
ting to continue such measures for the duration of 
the interim 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 neg-
ligent. 
‘‘(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 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 
exceed 10 years; 
VerDate Sep 11 2014 
21:37 Jan 10, 2020
Jkt 099200
PO 00000
Frm 00010
Fmt 6652
Sfmt 6201
E:\BILLS\H5552.IH
H5552
pamtmann on DSKBC07HB2PROD with BILLS