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[House Report 116-482]
[From the U.S. Government Publishing Office]


116th Congress }                                            { Report
                         HOUSE OF REPRESENTATIVES
  2d Session   }                                            { 116-482

======================================================================

 
                 MIGRATORY BIRD PROTECTION ACT OF 2020

                                _______
                                

 September 1, 2020.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

 Mr. Grijalva, from the Committee on Natural Resources, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 5552]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (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, having considered the 
same, reports favorably thereon with an amendment and 
recommends that the bill as amended do pass.
    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

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 State fish and wildlife agencies, 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.''.

                          Purpose of the Bill

    The purpose of H.R. 5552 is 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.

                  Background and Need for Legislation

    In the 1800s, bird populations in the United States 
drastically declined due to unregulated hunting and the 
commercial trade in bird feathers. In response to this decline, 
in 1916, the United States signed a treaty with Great Britain 
(acting on behalf of Canada) that prevented the hunting of 
insectivorous and non-game birds and set hunting seasons for 
game birds.\1\ In 1918, Congress codified the agreement between 
the United States and Canada by enacting the Migratory Bird 
Treaty Act\2\ (MBTA), which criminalized the pursuit, hunt, 
take, capture, kill, and sale of migratory birds and their 
parts, nests, or eggs.\3\ The United States accomplished 
similar treaties with Mexico (in 1936), Japan (1972), and 
Russia (1976).\4\ In 1972, Congress expanded the MBTA to 
include thirty-two additional families of birds including 
eagles, hawks, owls, and corvids. Currently, the MBTA protects 
more than 1,000 species of native birds from unnecessary 
harm.\5\
---------------------------------------------------------------------------
    \1\Jesse Greenspan, The History and Evolution of the Migratory Bird 
Treaty Act, Audubon (May 22, 2015), https://www.audubon.org/news/the-
history-and-evolution-migratory-bird-treaty-act.
    \2\Ch. 128, 40 Stat. 755 (1918), https://uscode.house.gov/
statviewer.htm?volume=40&page=755 (codified as amended at 16 U.S.C. 
Sec. Sec.  703-11, https://uscode.house.gov/table3/1918_128.htm) 
(statutory compilation as amended through P.L. 116-9 at https://
www.govinfo.gov/content/pkg/COMPS-3009/pdf/COMPS-3009.pdf).
    \3\Ch. 128, Sec.  2, 40 Stat. 755 (codified as amended as 16 U.S.C. 
Sec.  703(a)).
    \4\Migratory Bird Treaty Act, U.S. Fish & Wildlife Serv., https://
www.fws.gov/birds/policies-and-regulations/laws-legislations/migratory-
bird-treaty-act.php (last updated Apr. 16, 2020).
    \5\Migratory Bird Treaty Act Protected Species (10.13 List), U.S. 
Fish & Wildlife Serv., https://www.fws.gov/birds/management/managed-
species/migratory-bird-treaty-act-protected-
species.php (last updated Apr. 16, 2020).
---------------------------------------------------------------------------
    Despite the passage of the MBTA, birds still face numerous 
threats from both natural and human-caused hazards such as 
habitat loss, climate change, entanglements, collisions with 
buildings and power lines, entrapments in oil pits, predation 
by other animals, and disease. For example, a 2014 study 
estimated that up to 57 million birds are killed each year from 
collisions with power lines in the United States.\6\ According 
to the U.S. Fish and Wildlife Service (FWS), uncovered oil pits 
and evaporation ponds account for up to one million bird deaths 
annually.\7\ Communication towers are also a large threat to 
birds, as they kill nearly 7 million birds a year in the United 
States and Canada.\8\
---------------------------------------------------------------------------
    \6\Scott R. Loss, Tom Will & Peter P. Marra, Refining Estimates of 
Bird Collision and Electrocution Mortality at Power Lines in the United 
States, 9(7) PLoS ONE e101565, at 1 (2014), available at https://
doi.org/10.1371/journal.pone.0101565.
    \7\Entrapment, Entanglement & Drowning, U.S. Fish & Wildlife Serv., 
https://www.fws.gov/birds/bird-enthusiasts/threats-to-birds/entrapment-
entanglement-drowning.php (last updated Nov. 30, 2018).
    \8\Travis Longcore et al., An Estimate of Avian Mortality at 
Communication Towers in the United States and Canada, 7(4) PLoS ONE 
e34025, at 1 (2012), available at https://doi.org/10.1371/
journal.pone.0034025.
---------------------------------------------------------------------------
    Many of these bird deaths could be avoided with simple 
modifications.\9\ A number of companies, including in the oil 
and electric utility sectors, have already developed and 
implemented best practices to protect birds, including covering 
oil pits and marking transmission lines. However, when 
companies fail to adopt these commonsense practices, the MBTA 
provides a critical tool for accountability by authorizing 
penalties, including in cases of ``incidental take.''
---------------------------------------------------------------------------
    \9\See generally Threats to Birds, U.S. Fish & Wildlife Serv., 
https://www.fws.gov/birds/bird-enthusiasts/threats-to-birds.php (last 
updated Sept. 14, 2018).
---------------------------------------------------------------------------
    ``Take'' refers to harm against an animal, including 
pursuing, wounding, killing, or capturing.\10\ Unlike 
purposeful take (such as hunting), incidental take results from 
a human activity that did not have the purpose of take. The 
2010 BP Deepwater Horizon oil spill, which killed more than one 
million birds, is a prime example of how the MBTAs incidental 
take authority can be used to hold bad actors accountable for 
their actions. BP was ordered to pay $100 million in fines 
under the MBTA--funds that were then used to restore important 
bird habitat.\11\ Out of the 452 MBTA incidental take 
violations issued since the laws enactment (as of 2018), more 
than 92 percent were issued to the oil industry, and 97 percent 
of all fines involving incidental take are from the Exxon 
Valdez and BP Deepwater Horizon oil spills.\12\
---------------------------------------------------------------------------
    \10\50 C.F.R. Sec.  10.12 (2019), https://www.govinfo.gov/content/
pkg/CFR-2019-title50-vol1/pdf/CFR-2019-title50-vol1-part10.pdf.
    \11\Audubon, The MBTA Works and the Biggest Winners Are Renewables 
1 (2018), https://www.audubon.org/sites/default/files/
audubon_mbta_industry_2018.pdf.
    \12\See id. at 2.
---------------------------------------------------------------------------
    For decades, under both Republican and Democratic 
administrations, FWS has interpreted the MBTA to cover 
incidental take. In 2015, building on the work that FWS had 
done with industries for decades to develop best practices for 
minimizing bird deaths, FWS began developing an incidental take 
permit process that would have provided regulatory certainty 
for industries while ensuring the conservation of birds.\13\ 
This process would have authorized industry sectors to 
incidentally take birds as long as certain permit conditions 
outlining best management practices were met. FWS considered 
proposing general permits for industry sectors that 
consistently take birds in the course of normal operations and 
whose conservation measures are well established, such as the 
oil and gas, communication, and transmission industries. The 
agency also considered proposing an individual permit system in 
which individual industrial operations not covered under the 
general permit could apply. The program would potentially have 
also created a regulatory mechanism to obtain compensatory 
mitigation for bird mortality that cannot be avoided or 
minimized through best practices.
---------------------------------------------------------------------------
    \13\Migratory Bird Permits, 80 Fed. Reg. 30,032 (May 26, 2015), 
https://www.gpo.gov/fdsys/pkg/FR-2015-05-26/pdf/2015-12666.pdf.
---------------------------------------------------------------------------
    However, in April 2017, the Trump administration withdrew 
the rulemaking for the permit process,\14\ and in December 2017 
issued a reinterpretation of the MBTA. The new legal opinion 
states that the prohibitions on take under the MBTA cover only 
``actions that have as their purpose the taking or killing of 
migratory birds, their nests, or their eggs.''\15\ 
Subsequently, FWS issued guidance on the new legal opinion, 
informing industries that they are no longer required to avoid 
incidental harm to birds. This unprecedented move reversed 
decades of efforts by both Republican and Democratic 
administrations to conserve and protect native birds. FWS 
proposed a new rule in February 2020 to fully implement its new 
interpretation.\16\
---------------------------------------------------------------------------
    \14\See OIRA Unified Agenda Spring 2017, RIN 1018-BA69, https://
www.reginfo.gov/public/do/eAgendaViewRule?pubId=201704&RIN=1018-BA69.
    \15\Memorandum from Daniel H. Jorjani, Principal Deputy Solicitor, 
U.S. Dep't of the Interior, at 2 (Dec. 22, 2017), https://www.doi.gov/
sites/doi.gov/files/uploads/m-37050.pdf (M-37050, ``The Migratory Bird 
Treaty Act Does Not Prohibit Incidental Take'').
    \16\Regulations Governing Take of Migratory Birds, 85 Fed. Reg. 
5915 (Feb. 3, 2020), https://www.govinfo.gov/content/pkg/FR-2020-02-03/
pdf/2020-01771.pdf.
---------------------------------------------------------------------------
    This new interpretation of the MBTA removes industry 
incentives to engage with agencies and stakeholders on actions 
that reduce harm to birds and absolves industries of 
accountability for actions that kill birds. The interpretation 
removes a critical legal tool used to recover natural resource 
damages from environmental disasters. This dramatic new 
approach also does not uphold the United Statess commitments 
under the various international migratory bird treaties to 
which it is a party and, as such, is in violation of 
international law. According to diplomatic notes obtained from 
the State Department under a Freedom of Information Act 
request, Canada and the United States had recently reconfirmed 
their shared understanding that the migratory bird treaty 
between the two nations does in fact cover incidental take.\17\
---------------------------------------------------------------------------
    \17\On file with the House Committee on Natural Resources.
---------------------------------------------------------------------------
    The Migratory Bird Protection Act legislatively affirms 
that the MBTAs prohibition on the unauthorized take or killing 
of migratory birds includes incidental take by industrial 
activities and directs FWS to establish a regulatory permitting 
program that covers such incidental take.
    The bills voluntary permitting program relies principally 
on general permits that incentivize the adoption of best 
management practices and reasonably available technologies that 
avoid or reduce avian mortality at a reasonable cost while 
providing a conservation benefit for migratory birds. This 
system provides a series of general or nationwide permits to 
industry sectors known to affect migratory birds, including oil 
and gas, electric, wind, and solar energy operations. For each 
industry sector, the bill instructs FWS to create a general 
permit with two basic requirements: (1) adherence to specified 
best management practices or adoption of technologies that 
minimize avian mortality; and (2) a mitigation fee for avian 
mortality that results. To obtain a permit, the applicant would 
self-certify with FWS along with proof of payment of the 
mitigation fee, which would be determined by FWS based on 
typical impacts to migratory birds and the costs of habitat 
restoration or other appropriate compensatory measures. 
Individual review of permits would not be required for 
eligibility except for industries that currently lack accepted 
best management practices or participate in high-risk 
activities. Permits would not exceed 10 years and would be 
eligible for renewal through self-certification of adherence to 
the permit conditions applicable at the time of renewal. FWS 
would reserve the right to reopen permits during their 10-year 
term for significantly changed circumstances.
    The bill requires permit holders to maintain records 
demonstrating compliance, subject to inspection by FWS. 
Violations of the substantive terms and conditions of general 
and individual permits, such as failing to adopt required best 
management practices, deprive the permit holder of coverage for 
incidental take that results from activities covered by the 
permit and such take would be criminally punishable under the 
MBTA. FWS may revoke a permit for violations.
    The bill also requires FWS to establish, by rulemaking, 
categories of commercial activities that constitute ``de 
minimis''' activities exempt from liability.
    Mitigation fees paid under the permit programs are directed 
to the North American Wetlands Conservation Act Fund, the 
Neotropical Migratory Bird Conservation Act Fund, or other 
programs that mitigate the impact of activities to birds.

                            Committee Action

    On June 13, 2019, the Subcommittee on Water, Oceans, and 
Wildlife held a hearing on a discussion draft of the bill. H.R. 
5552 was introduced on January 8, 2020, by Representative Alan 
Lowenthal (D-CA). The bill was referred solely to the Committee 
on Natural Resources, where it was held at full committee. On 
January 15, 2020, the Natural Resources Committee met to 
consider the bill. Representative Garret Graves (R-LA) offered 
an amendment designated Graves #1. The amendment was agreed to 
by voice vote. Representative Paul Gosar (R-AZ) offered an 
amendment designated Gosar #1. The amendment was not agreed to 
by a roll call vote of 13 yeas and 20 nays, as follows:

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Representative Gosar offered an amendment designated Gosar 
#3. The amendment was not agreed to by a roll call vote of 13 
yeas and 20 nays, as follows:

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Representative Gosar offered an amendment designated Gosar 
#4. The amendment was not agreed to by a roll call vote of 13 
yeas and 20 nays, as follows:

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    Representative Gosar offered an amendment designated Gosar 
#5. The amendment was not agreed to by a roll call vote of 14 
yeas and 20 nays, as follows:

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    Representative Gosar offered an amendment designated Gosar 
#6. The amendment was not agreed to by a roll call vote of 14 
yeas and 20 nays, as follows:

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    Representative Gosar offered an amendment designated Gosar 
#7. The amendment was not agreed to by a roll call vote of 14 
yeas and 20 nays, as follows:

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    Representative Gosar offered an amendment designated Gosar 
#8. The amendment was not agreed to by a roll call vote of 14 
yeas and 20 nays, as follows:

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    Representative Gosar offered an amendment designated Gosar 
#9. The amendment was not agreed to by a roll call vote of 14 
yeas and 20 nays, as follows:

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    Representative Gosar offered an amendment designated Gosar 
#10. The amendment was not agreed to by a roll call vote of 14 
yeas and 20 nays, as follows:

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    Representative Gosar offered an amendment designated Gosar 
#11. The amendment was not agreed to by a roll call vote of 14 
yeas and 20 nays, as follows:

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    Representative Gosar offered an amendment designated Gosar 
#12. The amendment was not agreed to by a roll call vote of 14 
yeas and 20 nays, as follows:

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    Representative Gosar offered an amendment designated Gosar 
#13. The amendment was not agreed to by a roll call vote of 14 
yeas and 20 nays, as follows:

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    Representative Gosar offered an amendment designated Gosar 
#14. The amendment was not agreed to by a roll call vote of 14 
yeas and 20 nays, as follows:

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    No additional amendments were offered. The bill, as 
amended, was adopted and ordered favorably reported to the 
House of Representatives by a roll call vote of 20 yeas and 14 
nays, as follows:

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                                Hearings

    For the purposes of section 103(i) of H. Res. 6 of the 
116th Congress--the following hearing was used to develop or 
consider H.R. 5552: legislative hearing by the Subcommittee on 
Water, Oceans, and Wildlife held on June 13, 2019.

                      Section-by-Section Analysis


Section 1. Short title

Section 2. Amendments to the Migratory Bird Treaty Act

    This section amends Section 2 of the MBTA to insert 
``incidentally take'' into the list of prohibited acts. It also 
amends the penalties section of the MBTA (Section 6) to allow 
for civil penalties if someone violates the incidental take 
prohibition of the MBTA or violates the terms of a permit. This 
provides greater flexibility for appropriate enforcement, as 
the penalties in current law are solely criminal.
    The section adds a new section (Section 14) to the MBTA to 
prescribe a permitting program to be carried out by FWS to 
provide general and individual permits for incidental take by 
commercial activities.
    General permits: FWS is directed to develop and issue 
general permits for specific industries and industrial 
activities, such as wind facilities, electric transmission 
lines, and communication towers. These general permits would 
allow for self-certification by an operator and would prescribe 
mitigation measures such as best management practices and 
technologies, a mitigation fee, and permit application fee. The 
general permit could be revised every 10 years or if new best 
management practices are developed. The permit could also be 
revised if the extent of incidental take is significantly 
different from what FWS expected when they issued the general 
permit. Timelines would be set for FWS to finalize the permit. 
A person who self-certifies, pays the mitigation and permit 
fees, and employs best management practices would be covered by 
the permit for 10 years.
    Interim coverage: To provide for safe harbor from 
prosecution for any incidental take before the issuance of a 
permit, FWS is directed to develop a simple interim coverage 
program that consists of a mitigation fee and self-
certification that a facility has done what it can to minimize 
the incidental take of migratory birds. This interim coverage 
does not apply to gross negligence.
    Individual permits: For any facilities or operations for 
which a general permit does not apply or is not being 
developed, an individual permit can be provided. These permits 
would include requirements for mitigation measures, including 
best management practices and technology, and mitigation and 
permit fees.
    De minimis activities: FWS must issue a rule identifying 
commercial activities that are exempt from liability for 
incidental take because they do not pose appreciable risks to 
migratory birds.
    Mitigation fee use: FWS is directed to deposit the 
mitigation fees into funds that mitigate the impacts of the 
permitted activities to migratory birds, including the North 
American Wetlands Fund and the Neotropical Migratory Bird 
Conservation Fund.
    Authorization of appropriations: $10,000,000 is authorized 
for each fiscal year for FWS to carry out the permitting 
programs.
    Report to Congress: FWS shall submit a report to Congress 
every five years on the conservation status of migratory birds 
and the impacts and effectiveness of the permit programs.
    Research program: FWS shall establish a research program 
for evaluating best management practices and the impacts of 
commercial activities on migratory birds. This program is 
funded by the application fees of the permit programs.
    This section also adds a new definitions section (Section 
15) to the MBTA to define terms such as ``incidental take,'' 
``commercial activity,'' and ``best management practices.''

            Committee Oversight Findings and Recommendations

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Natural Resources oversight findings and 
recommendations are reflected in the body of this report.

                  Compliance With House Rule XIII and
                        Congressional Budget Act

    1. Cost of Legislation and the Congressional Budget Act. 
With respect to the requirements of clause 3(c)(2) and (3) of 
rule XIII of the Rules of the House of Representatives and 
sections 308(a) and 402 of the Congressional Budget Act of 
1974, the Committee has received the following estimate for the 
bill from the Director of the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, June 30, 2020.
Hon. Raul M. Grijalva,
Chairman, Committee on Natural Resources,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 5552, the 
Migratory Bird Protection Act of 2020.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Janani 
Shankaran.
            Sincerely,
                                         Phillip L. Swagel,
                                                          Director.
    Enclosure.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    

    The bill would
           Prohibit the incidental killing or taking of 
        migratory birds by commercial activities without a 
        permit
           Authorize the appropriation of $10 million 
        annually for the U.S. Fish and Wildlife Service to 
        develop a permitting program
           Establish fees for those permits and for 
        migratory bird habitat restoration
           Establish a civil penalty for related 
        violations
    Estimated budgetary effects would primarily stem from
           Collection of the new fees
           Spending of the authorized amounts
    Areas of significant uncertainty include
           Projecting the number of entities that would 
        be required to obtain a permit under the bill
           Predicting how the permit program and fees 
        would be structured
    Bill summary: H.R. 5552 would prohibit the incidental take 
of migratory birds by commercial activities without a permit. 
(Incidental take means the killing or taking of migratory birds 
as the indirect result of, but not for the purpose of, 
commercial activity.) The bill would create a permitting 
program, establish fees for permit holders, and authorize 
annual appropriations of $10 million each year for the U.S. 
Fish and Wildlife Service (USFWS) to develop the program. In 
addition, the bill would establish a civil penalty for 
violations of the terms of a permit issued by USFWS.
    Estimated Federal cost: The estimated budgetary effect of 
H.R. 5552 is shown in Table 1. The costs of the legislation 
fall within budget function 300 (natural resources and 
environment).

                                                   TABLE 1.--ESTIMATED BUDGETARY EFFECTS OF H.R. 5552
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                By fiscal year, millions of dollars--
                                           -------------------------------------------------------------------------------------------------------------
                                             2020    2021    2022    2023    2024    2025    2026    2027    2028    2029    2030   2020-2025  2020-2030
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Decreases in Direct Spending
 
Estimated Budget Authority................       0     -25     -25     -25     -25     -26     -25     -25     -25     -25     -25       -126       -251
Estimated Outlays.........................       0     -25     -25     -25     -25     -26     -25     -25     -25     -25     -25       -126       -251
 
                                                     Increases in Spending Subject to Appropriation
 
Authorization.............................      10      10      10      10      10      10      10      10      10      10      10         60        110
Estimated Outlays.........................       *      16      10      10      10      10      10      10      10      10      10         56        106
--------------------------------------------------------------------------------------------------------------------------------------------------------
CBO estimates that enacting H.R. 5552 would increase revenues by an insignificant amount over the 2020-2030 period.
* = between zero and $500,000.

    Basis of estimate: For this estimate, CBO assumes that the 
legislation will be enacted late in fiscal year 2020 and that 
the authorized amounts will be appropriated in each year. Under 
that assumption, the agency could incur some costs in 2020, but 
CBO expects that most of the costs would be incurred in 2021 
and later.
    Direct spending and revenues: CBO estimates that enacting 
H.R. 5552 would reduce direct spending by $251 million over the 
2020-2030 period and increase revenues by an insignificant 
amount.
    Permit and mitigation Fees: H.R. 5552 would direct USFWS to 
establish two fees: a permit fee to cover the cost to 
administer the incidental take permit program, and an annual 
mitigation fee for the incidental take of migratory birds. 
Those fees would be classified as offsetting receipts and 
recorded in the budget as reductions in direct spending. Under 
the bill, fees would be deposited into existing funds for North 
American and neotropical bird habitat conservation. Spending of 
those fees would be subject to appropriation.
    The bill would focus on certain industries for permitting, 
including oil and gas extraction, electric power transmission 
and distribution, wind and solar power generation, and 
communication towers. Using information from the 2017 Economic 
Census and from USFWS, CBO estimates that between several 
thousand and 15,000 entities would seek incidental take permits 
under the bill. Based on other USFWS fees, CBO estimates that 
each entity would pay $100 per permit. H.R. 5552 would direct 
USFWS to issue permits within five years of enactment; thus, we 
expect that the agency would collect most of the permit fees, 
which would total about $1 million, in 2025.
    Using information from USFWS and industry experts on the 
typical costs for habitat restoration, and based on similar 
fees for the take of eagles, CBO estimates that each permitted 
entity would pay, on average, several thousand dollars annually 
in mitigation fees starting in 2021. We estimate that the 
federal government would collect about $25 million annually 
starting in 2021 and, in total, $251 million over the 2020-2030 
period.
    Penalties: H.R. 5552 would establish a civil penalty, which 
would be recorded in the budget as a revenue, for violations of 
the terms of an incidental take permit issued by USFWS. The 
bill also would expand the application of existing penalties 
under the Migratory Bird Treaty Act (MBTA). CBO estimates that 
violations would occur infrequently; thus, the increase in 
revenues would be insignificant over the 2020-2030 period.
    Under current law, fines and penalties collected under the 
MBTA are available for USFWS to spend without further 
appropriation for bird habitat conservation. CBO estimates that 
the spending of additional penalties collected under the bill 
would be insignificant over the 2020-2030 period.
    Spending subject to appropriation: H.R. 5552 would 
authorize the annual appropriation of $10 million for USFWS to 
develop a permitting program for the incidental take of 
migratory birds and to conduct related research. Based on 
historical spending patterns for similar activities, CBO 
estimates that implementing H.R. 5552 would cost $56 million 
over the 2020-2025 period.
    Uncertainty: The estimate of fee collections is uncertain 
and could be higher or lower than CBO estimates. CBO cannot 
predict with certainty the number of entities that would apply 
for an incidental take permit under the bill. CBO also cannot 
foresee how USFWS would structure the program or set the amount 
of mitigation fees, leading to a wide range of estimates.
    Pay-As-You-Go considerations: The Statutory Pay-As-You-Go 
Act of 2010 establishes budget-reporting and enforcement 
procedures for legislation affecting direct spending or 
revenues. The net changes in outlays and revenues that are 
subject to those pay-as-you-go procedures are shown in Table 2. 
The increase in revenues would be insignificant.

   TABLE 2.--CBO'S ESTIMATE OF THE STATUTORY PAY-AS-YOU-GO EFFECTS OF H.R. 5552, THE MIGRATORY BIRD PROTECTION ACT OF 2020, AS ORDERED REPORTED BY THE
                                                HOUSE COMMITTEE ON NATURAL RESOURCES ON JANUARY 15, 2020
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                By fiscal year, millions of dollars--
                                           -------------------------------------------------------------------------------------------------------------
                                             2020    2021    2022    2023    2024    2025    2026    2027    2028    2029    2030   2020-2025  2020-2030
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Net Decrease in the Deficit
 
Pay-As-You-Go Effect......................       0     -25     -25     -25     -25     -26     -25     -25     -25     -25     -25       -126       -251
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Increase in long-term deficits: None.
    Mandates: H.R. 5552 would impose intergovernmental and 
private-sector mandates as defined in the Unfunded Mandates 
Reform Act (UMRA). CBO estimates that the aggregate cost of 
complying with the mandates would exceed the annual thresholds 
established in UMRA for intergovernmental and private-sector 
mandates of $84 million and $168 million, respectively, in 2020 
(adjusted annually for inflation).
    By prohibiting the incidental take of migratory birds, H.R. 
5552 would impose mandates on industries where incidental 
takings are high such as communication and wind-generation 
towers. The bill would establish a permitting program to 
regulate the newly prohibited activities. To take advantage of 
a permit, affected entities would be required to pay a permit 
fee and an annual mitigation fee, implement best practices to 
reduce or avoid incidental take, and meet new reporting 
requirements.
    CBO estimates that approximately 7,500 entities, both 
public and private, would participate in the permitting process 
and pay the required fees, which would total about $25 million 
per year in the first five years the mandate would be in 
effect.
    Participating entities also would be required to use best 
practices to minimize or avoid incidental take of migratory 
birds. According to USFWS and environmental law experts, some 
of the mandated entities already implement such practices 
either voluntarily or in meeting other legal requirements. 
Because the MBTA protects over one thousand species of birds, 
and the mandated entities implement thousands of projects each 
year, CBO estimates enacting the bill would result in a 
substantial cost for both private and public entities.
    Estimate prepared by: Federal costs: Janani Shankaran; 
Mandates: Lilia Ledezma.
    Estimate reviewed by: Susan Willie, Chief, Natural and 
Physical Resources Cost Estimates Unit; H. Samuel Papenfuss, 
Deputy Director of Budget Analysis; Theresa Gullo, Director of 
Budget Analysis.
    2. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goals and 
objectives of this bill are to amend the Migratory Bird Treaty 
Act to affirm that the Migratory Bird Treaty Acts 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.

                           Earmark Statement

    This bill does not contain any Congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined 
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of 
the House of Representatives.

                 Unfunded Mandates Reform Act Statement

    According to CBO, H.R. 5552 would impose intergovernmental 
and private-sector mandates as defined in the Unfunded Mandates 
Reform Act (UMRA). CBO estimates that the aggregate cost of 
complying with the mandates would exceed the annual thresholds 
established in UMRA for intergovernmental and private-sector 
mandates of $84 million and $168 million, respectively, in 2020 
(adjusted annually for inflation). CBOs full analysis is 
reproduced above.

                           Existing Programs

    This bill does not establish or reauthorize a program of 
the federal government known to be duplicative of another 
program.

                  Applicability to Legislative Branch

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

               Preemption of State, Local, or Tribal Law

    Any preemptive effect of this bill over state, local, or 
tribal law is intended to be consistent with the bill's 
purposes and text and the Supremacy Clause of Article VI of the 
U.S. Constitution.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, and existing law in which no 
change is proposed is shown in roman):

                       MIGRATORY BIRD TREATY ACT



           *       *       *       *       *       *       *
  Sec. 2. (a) In General.--Unless and except as permitted by 
regulations made as hereinafter provided, it shall be unlawful 
at any time, by any means or in any manner, to pursue, hunt, 
take, capture, kill, incidentally take, attempt to take, 
capture, or kill, possess, offer for sale, sell, offer to 
barter, barter, offer to purchase, purchase, deliver for 
shipment, ship, export, import, cause to be shipped, exported, 
or imported, deliver for transportation, transport or cause to 
be transported, carry or cause to be carried, or receive for 
shipment, transportation, carriage, or export, any migratory 
bird, any part, nest, or egg of any such bird, or any product, 
whether or not manufactured, which consists, or is composed in 
whole or part, of any such bird or any part, nest, or egg 
thereof, included in the terms of the conventions between the 
United States and Great Britain for the protection of migratory 
birds concluded August 16, 1916, the United States and the 
United Mexican States for the protection of migratory birds and 
game mammals concluded February 7, 1936, the United States and 
the Government of Japan for the protection of migratory birds 
and birds in danger of extinction, and their environment 
concluded March 4, 1972 and the convention between the United 
States and the Union of Soviet Socialist Republics for the 
conservation of migratory birds and their environments 
concluded November 19, 1976.
  (b) Limitation on Application to Introduced Species.--
          (1) In general.--This Act applies only to migratory 
        bird species that are native to the United States or 
        its territories.
          (2) Native to the united states defined.--
                  (A) In general.--Subject to subparagraph (B), 
                in this subsection the term ``native to the 
                United States or its territories'' means 
                occurring in the United States or its 
                territories as the result of natural biological 
                or ecological processes.
                  (B) Treatment of introduced species.--For 
                purposes of paragraph (1), a migratory bird 
                species that occurs in the United States or its 
                territories solely as a result of intentional 
                or unintentional human-assisted introduction 
                shall not be considered native to the United 
                States or its territories unless--
                          (i) it was native to the United 
                        States or its territories and extant in 
                        1918;
                          (ii) it was extirpated after 1918 
                        throughout its range in the United 
                        States and its territories; and
                          (iii) after such extirpation, it was 
                        reintroduced in the United States or 
                        its territories as a part of a program 
                        carried out by a Federal agency.
  Sec. 3. (a) That subject to the provisions and in order to 
carry out the purposes of the conventions, the Secretary [of 
Agriculture] is authorized and directed, from time to time, 
having due regard to the zones of temperature and to the 
distribution, abundance, economic value, breeding habits, and 
times and lines of migratory flight of such birds, to determine 
when, to what extent, if at all, and by what means, it is 
compatible with the terms of the conventions to allow hunting, 
taking, capture, killing, possession, sale, purchase, shipment, 
transportation, carriage, or export of any such bird, or any 
part, nest, or egg thereof, and to adopt suitable regulations 
permitting and governing the same, in accordance with such 
determinations, which regulations shall become effective when 
approved by the President.
  (b) It shall be unlawful for any person to--
          (1) take any migratory game bird by the aid of 
        baiting, or on or over any baited area, if the person 
        knows or reasonably should know that the area is a 
        baited area; or
          (2) place or direct the placement of bait on or 
        adjacent to an area for the purpose of causing, 
        inducing, or allowing any person to take or attempt to 
        take any migratory game bird by the aid of baiting on 
        or over the baited area.
  (c) Federal Framework Closing Date for Hunting of Ducks, 
Mergansers, and Coots.--
          (1) Regulations relating to framework closing date.--
                  (A) In general.--In promulgating regulations 
                under subsection (a) relating to the Federal 
                framework for the closing date up to which the 
                States may select seasons for migratory bird 
                hunting, except as provided in paragraph (2), 
                the Secretary shall, with respect to the 
                hunting season for ducks, mergansers, and 
                coots--
                          (i) subject to subparagraph (B), 
                        adopt the recommendation of each 
                        respective flyway council (as defined 
                        in section 20.152 of title 50, Code of 
                        Federal Regulations) for the Federal 
                        framework if the Secretary determines 
                        that the recommendation is consistent 
                        with science-based and sustainable 
                        harvest management; and
                          (ii) allow the States to establish 
                        the closing date for the hunting season 
                        in accordance with the Federal 
                        framework.
                  (B) Requirement.--The framework closing date 
                promulgated by the Secretary under subparagraph 
                (A) shall not be later than January 31 of each 
                year.
          (2) Special hunting days for youths, veterans, and 
        active military personnel.--
                  (A) In general.--Notwithstanding the Federal 
                framework closing date under paragraph (1) and 
                subject to subparagraphs (B) and (C), the 
                Secretary shall allow States to select 2 days 
                for youths and 2 days for veterans (as defined 
                in section 101 of title 38, United States Code) 
                and members of the Armed Forces on active duty, 
                including members of the National Guard and 
                Reserves on active duty (other than for 
                training), to hunt eligible ducks, geese, 
                swans, mergansers, coots, moorhens, and 
                gallinules, if the Secretary determines that 
                the addition of those days is consistent with 
                science-based and sustainable harvest 
                management. Such days shall be treated as 
                separate from, and in addition to, the annual 
                Federal framework hunting season lengths.
                  (B) Requirements.--In selecting days under 
                subparagraph (A), a State shall ensure that--
                          (i) the days selected--
                                  (I) may only include the 
                                hunting of duck, geese, swan, 
                                merganser, coot, moorhen, and 
                                gallinule species that are 
                                eligible for hunting under the 
                                applicable annual Federal 
                                framework;
                                  (II) are not more than 14 
                                days before or after the 
                                Federal framework hunting 
                                season for ducks, mergansers, 
                                and coots; and
                                  (III) are otherwise 
                                consistent with the Federal 
                                framework; and
                          (ii) the total number of days in a 
                        hunting season for any migratory bird 
                        species, including any days selected 
                        under subparagraph (A), is not more 
                        than 107 days.
                  (C) Limitation.--A State may combine the 2 
                days allowed for youths with the 2 days allowed 
                for veterans and members of the Armed Forces on 
                active duty under subparagraph (A), but in no 
                circumstance may a State have more than a total 
                of 4 additional days added to its regular 
                hunting season for any purpose.
          (3) Regulations.--The Secretary shall promulgate 
        regulations in accordance with this subsection for the 
        Federal framework for migratory bird hunting for the 
        2019-2020 hunting season and each hunting season 
        thereafter.

           *       *       *       *       *       *       *

  Sec. 5. That any employee of the Department of [Agriculture 
authorized by the Secretary of Agriculture] Interior authorized 
by the Secretary to enforce the provisions of this Act shall 
have power, without warrant, to arrest any person committing a 
violation of this Act in his presence or view and to take such 
person immediately for examination or trial before an officer 
or court of competent jurisdiction; shall have power to execute 
any warrant or other process issued by an officer or court of 
competent jurisdiction for the enforcement of the provisions of 
this Act; and shall have authority, with a search warrant, to 
search any place. The several judges of the courts established 
under the laws of the United States, and United States 
commissioners may, within their respective jurisdictions, upon 
proper oath or affirmation showing probable cause, issue 
warrants in all such cases. All birds, or parts, nests, or eggs 
thereof, captured, killed, taken, sold or offered for sale, 
bartered or offered for barter, purchased, shipped, 
transported, carried, imported, exported, or possessed contrary 
to the provisions of this Act or of any regulation prescribed 
thereunder shall, when found, be seized and, upon conviction of 
the offender or upon judgment of a court of the United States 
that the same were captured, killed, taken, sold or offered for 
sale, bartered or offered for barter, purchased, shipped, 
transported, carried, imported, exported, or possessed contrary 
to the provisions of this Act or of any regulation prescribed 
thereunder, shall be forfeited to the United States and 
disposed of by the Secretary [of the Interior] in such manner 
as he deems appropriate.
  Sec. 6. (a) Except as otherwise provided in this section, any 
person, association, partnership, or corporation who shall 
violate any provisions of said conventions or of this Act, or 
who shall violate or fail to comply with any regulation made 
pursuant to this Act shall be deemed guilty of a misdemeanor 
and upon conviction thereof shall be fined not more than 
$15,000 or be imprisoned not more than six months, or both.
  (b) Whoever, in violation of this Act, shall knowingly--
          (1) take by any manner whatsoever any migratory bird 
        with intent to sell, offer to sell, barter or offer to 
        barter such bird, or
          (2) sell, offer for sale, barter or offer to barter, 
        any migratory bird shall be guilty of a felony and 
        shall be fined not more than $2,000 or imprisoned not 
        more than two years, or both.
  (c) Whoever violates section 3(b)(2) shall be fined under 
title 18, United States Code, imprisoned not more than 1 year, 
or both.
  (d) All guns, traps, nets and other equipment, vessels, 
vehicles, and other means of transportation used by any person 
when engaged in pursuing, hunting, taking, trapping, ensnaring, 
capturing, killing, or attempting to take, capture, or kill any 
migratory bird in violation of this Act with the intent to 
offer for sale, or sell, or offer for barter, or barter such 
bird in violation of this Act shall be forfeited to the United 
States and may be seized and held pending the prosecution of 
any person arrested for violating this Act and upon conviction 
for such violation, such forfeiture shall be adjudicated as a 
penalty in addition to any other provided for violation of this 
Act. Such forfeited property shall be disposed of and accounted 
for by, and under the authority of, the Secretary [of the 
Interior].
  (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.

           *       *       *       *       *       *       *

  Sec. 9. That there is authorized to be appropriated, from 
time to time, out of any money in the Treasury not otherwise 
appropriated, such amounts as may be necessary to carry out the 
provisions and to accomplish the purposes of said conventions 
and this Act and regulations made pursuant thereto, and the 
Secretary [of Agriculture] is authorized out of such moneys to 
employ in the city of Washington and elsewhere such persons and 
means as he may deem necessary for such purpose and may 
cooperate with local authorities in the protection of migratory 
birds and make the necessary investigations connected 
therewith.

           *       *       *       *       *       *       *


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 State fish and wildlife 
agencies, 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.

                            DISSENTING VIEWS

    This bill would have severe consequences for businesses and 
communities across the entire nation, and specifically for the 
rural power electric utilities. Rural electric utilities are 
the backbone of the local economies that they energize and 
without them, many Americans and their way of life will be put 
at risk. We should not allow reckless environmental policy, 
driven by special interest groups from the left, punish rural 
utilities with onerous, burdensome, over-regulation from the 
federal government.
    As a matter of fact, electric cooperatives aren't the bad 
actors in the grand scheme of things when it comes to avian 
mortality in this country. According to research done by the 
U.S. Fish and Wildlife Service, by its best estimates, the top 
three causes of bird deaths are strikes from automobiles, 
collisions with glass buildings, and death from feline 
predation. House cats account for vastly more bird deaths in 
this country than any impact from rural electric utilities, and 
yet under the language of this bill, it's electric utilities 
who will be bearing the brunt of the heavy hand of federal 
regulation. It just does not make sense.
    Migratory birds are protected from ``takings'' under the 
Migratory Bird Treaty Act (16 U.S.C. 703 et seq.). This bill 
amends that law to direct the Secretary of the Interior to 
authorize permits for the incidental take of migratory birds by 
certain commercial activities. These are any commercial 
activities that the Secretary of the Interior ``determines 
cause[s] significant harm to migratory birds'' and includes 
oil, gas, and wastewater disposal pits; methane or other gas 
burner pipes; communication towers; electric transmission and 
distribution lines; and wind and solar power generation 
facilities. In addition to obtaining these permits, which would 
include mitigation measures requiring adoption of the best 
management practices or technologies that in the Secretary's 
judgment are practicable and effective, permit holders would 
also pay a mitigation fee. The permits would be issued for up 
to 10 years. Before issuing a general permit, the Secretary 
would consult under section 7 of the Endangered Species Act of 
1973 and prepare an environmental impact statement pursuant to 
the National Environmental Policy Act of 1969. Individual 
permits may also be issued. The bill permanently authorizes 
appropriations of $10 million a year to carry out the Act.
    Republicans remain skeptical the U.S. Fish and Wildlife 
Service will be able to create the robust permitting process 
necessary to manage the expectations the bill envisions without 
overburdening the energy, telecommunications, and other 
industries. As stated above, automobiles, buildings, and 
predatory cats contribute to more bird mortality than any of 
the activities covered by the permits in this legislation. 
Given the bill's annual cost to the U.S. taxpayers of $10 
million a year, it would seem to not be a fair return without 
ensuring the permit system would substantially affect the issue 
of bird mortality.
    Of further concern are the compensatory mitigation 
measures, the mitigation fee to be paid, and consultation with 
interested outside groups and affected federal agencies. The 
bill places additional constraints and burdens on virtually 
every potential infrastructure project in the country and 
charges the U.S. Fish and Wildlife Service with implementation 
targets that could be unattainable.
    For these many reasons, many Republicans oppose this 
legislation.

                                   Rob Bishop.
                                   Louie Gohmert.
                                   Tom McClintock.
                                   Paul A. Gosar.