‘‘(3) specify the amount and nature of inci-
dental 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; 
‘‘(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 de-
veloping 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 
revised during the duration of such permit if new in-
formation indicates that— 
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‘‘(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 
adopted by the applicant; and 
‘‘(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 
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U.S.C. 4401 et seq.), the Neotropical Migratory Bird Con-
servation 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 popu-
lations of bird species— 
‘‘(1) affected by the permitted activities; and 
‘‘(2) identified as ‘birds of conservation con-
cern’ 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 fis-
cal 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 sub-
mit 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; 
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‘‘(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. 
‘‘(s) RESEARCH PROGRAM.—The Secretary shall es-
tablish and maintain, in consultation with research institu-
tions, institutions of higher education (as such term is de-
fined 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 manage-
ment practices and technologies incorporated in reg-
ulations 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: 
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‘‘(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 ‘com-
mercial activity’ means—— 
‘‘(A) the conduct of any aspect of a busi-
ness, concession, or service in order to provide 
goods or services to any person for compensa-
tion, including manufacturing, distributing, 
transporting, 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 
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 Di-
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rector of the United States Fish and Wildlife Serv-
ice.’’. 
(2) CONFORMING AMENDMENTS.—The Migra-
tory 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 
(ii) by striking ‘‘Agriculture author-
ized by the Secretary of Agriculture’’ and 
inserting ‘‘Interior authorized by the Sec-
retary’’; 
(C) in section 6(d) by striking ‘‘of the In-
terior’’; and 
(D) in section 9, by striking ‘‘of Agri-
culture’’. 
(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 inciden-
tally 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 Sec-
retary of not more than $10,000 per violation, except that 
unpermitted incidental take which is caused by conduct 
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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 sec-
tion.’’. 
Æ 
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