,i #aafth ,,congress #b;d ,session ,h4 ,r4 #eeeb ,,in ,,the ,,house ,,of ,,representatives ,january #h1 #bjbj,mr4 ,lowenthal 7for himself1 ,mr4 ,van ,drew1 ,ms4 ,norton1 ,mrs4 ,dingell1 ,mr4 ,huffman1 ,mr4 ,grijalva1 ,ms4 ,mc,collum1 ,ms4 ,haaland1 ,ms4 ,velzquez1 ,mr4 ,gallego1 ,mr4 ,ted ,lieu of ,california1 ,mr4 ,blumenauer1 ,mr4 ,mc,nerney1 ,ms4 ,kuster of ,new ,hampshire1 ,mrs4 ,napolitano1 ,mr4 ,beyer1 ,mr4 ,case1 ,mr4 ,de,fazio1 and ,mr4 ,rooney of ,florida7 introduced the following bill2 which was referred to the ,committee on ,natural ,resources ,a ,,bill ,to amend the ,migratory ,bird ,treaty ,act to affirm that the ,migratory ,bird ,treaty ,act's prohibition on the unauthorized take or killing of migratory birds includes incidental take by commercial activities1 and to direct the ,united ,states ,fish and ,wildlife ,service to regulate such incidental take1 and for other purposes4 #a4 ,short title ,this ,act may be cited as the ,migratory ,bird ,protection ,act of #bjbj4 #b4 ,amendments to the ,migratory ,bird ,treaty ,act 7a7 ,incidental take ,the ,migratory ,bird ,treaty ,act 7#af ,u4,s4,c4 #gjc et seq47 is amended in section #b7;a71 by inserting incidentally take1 before attempt to take14 7b7 ,commercial ,activity 7#a7 ,the ,migratory ,bird ,treaty ,act 7#af ,u4,s4,c4 #gjc et seq47 is amended by inserting after section #ac the following3 #ad4 ,incidental take of migratory birds 7a7 ,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 section4 7b7 ,general permits ,the ,secretary shall regulate the incidental take of migratory birds as a result of commercial activity by issuing general permits for particular industries1 as identified by standard industrial classification1 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 impacts4 ,with respect to each such industry1 the ,secretary shall1 based on the best available science-- 7#a7 identify the commercial activity covered by the regulation2 7#b7 specify appropriate mitigation to be implemented by a person seeking coverage under a general permit1 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 activity2 7#c7 specify a mitigation fee in an amount the ,secretary determines is sufficient to reasonably compensate1 through habitat restoration or other appropriate measures1 for any incidental take of migratory birds that results from such commercial activity2 and 7#d7 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 7s74 7c7 ,revision of general permits ,the ,secretary shall revise a general permit issued under subsection 7b7 if such ,secretary determines that revision is appropriate1 or if-- 7#a7 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 regulation2 7#b7 new best management practices or technologies can significantly reduce such incidental take and can practicably be adopted by the persons engaged in such commercial activity2 or 7#c7 such permit has not been revised in the #aj year period beginning on the date such permit was issued4 7d7 ,consultation ,the ,secretary shall1 before issuing a general permit under subsection 7b71 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 information4 7e7 ,priority general permits 7#a7 ,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 take4 7#b7 ,commercial activities with specific deadlines ,the ,secretary shall issue general permits under subsection 7b7-- 7,a7 not later than #e years after the date of enactment of this ,act with respect to-- 7i7 oil1 gas1 and wastewater disposal pits2 7ii7 methane and other gas burner pipes2 7iii7 communication towers2 7iv7 electric transmission and distribution lines2 and 7v7 wind power generation facilities2 and 7,b7 not later than #h years after the date of enactment for this ,act with respect to solar powered generation facilities4 7f7 ,mitigation fee ,the mitigation fee for each general permit shall be the amount that the ,secretary determines reasonably compensates1 through habitat restoration or other appropriate measures1 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 7b77#b74 ,such determination shall be1 to the maximum extent practicable1 based on objective and standardized metrics such as the size or capacity of a facility for which a person seeks coverage4 7g7 ,endangered ,species ,act of #aigc and ,national ,environmental ,policy ,act ,before issuing a general permit pursuant to subsection 7b71 the ,secretary shall consult the ,united ,states ,fish and ,wildlife ,service and the ,national ,marine ,fisheries ,service pursuant to section #g7;a77#b7 of the ,endangered ,species ,act of #aigc 7#af ,u4,s4,c4 #aecf7;a77#b771 and prepare an ,environmental ,impact ,statement pursuant to section #ajb7b77;,c7 of the ,national ,environmental ,policy ,act of #aifi 7#db ,u4,s4,c4 #dccb7b77;,c774 7h7 ,persons seeking authorization for incidental take ,except as provided in subsection 7i71 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 7b7 and such person-- 7#a7 notifies the ,secretary in writing that such person is accepting coverage under such permit2 7#b7 annually certifies1 in writing1 to the ,secretary that such person is in compliance with this ,act and maintains records demonstrating such compliance2 7#c7 adopts each best management practice or technology specified by the ,secretary under subsection 7b77#b72 7#d7 pays the mitigation fee specified by the ,secretary under subsection 7b77#c7 at the time such person notifies the ,secretary pursuant to paragraph 7#a71 and annually thereafter2 and 7#e7 pays the permit fee specified by the ,secretary under subsection 7b77#d7 at the time such person notifies the ,secretary pursuant to paragraph 7#a74 7i7 ,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 7h74 7j7 ,duration of coverage under a general permit ,except as provided in subsection 7i71 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 take1 irrespective of different terms in a subsequently issued general permit4 7k7 ,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 7h7 without requiring individualized review4 7l7 ,interim coverage for commercial activities proposed for a general permit 7#a7 ,commercial activity with a specified deadline ,persons or entities engaged in commercial activities listed in subsection 7e77#b7 shall1 upon payment of a mitigation fee in an amount determined under paragraph 7#c7 and submission of a certification of compliance to the ,secretary in accordance with this subsection1 be exempt from liability for incidental take caused by such commercial activities until the earlier of-- 7,a7 the issuance of a general permit covering such commercial activity under subsection 7b72 or 7,b7 with respect to-- 7i7 an activity described in subsection 7e77#b77;,a71 the date that is #e years after the date of enactment of this section2 or 7ii7 an activity described in subsection 7e77#b77;,b71 the date that is #h years after the date of enactment of this section4 7#b7 ,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 7b7 shall1 upon payment of a mitigation fee in an amount determined under paragraph 7#c7 and submission of a certification of compliance to the ,secretary in accordance with this subsection1 be exempt from liability for incidental take caused by such commercial activities until the earlier of-- 7,a7 the date that is #e years after the date of issuance of such notice2 or 7,b7 the issuance of such regulation4 7#c7 ,mitigation fee ,the amount of the mitigation fee required by paragraph 7#a7 and 7#b7 shall be the amount the ,secretary determines is sufficient to reasonably compensate1 through habitat restoration or other appropriate measures1 for any incidental take of migratory birds that results from the relevant commercial activity4 7#d7 ,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 coverage4 7#e7 ,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 negligent4 7m7 ,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 issued4 ,each individual permit shall-- 7#a7 identify the commercial activity to which the permit applies2 7#b7 specify the duration of the permit1 not to exceed #aj years2 7#c7 specify the amount and nature of incidental take authorized by the permit2 7#d7 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 activity2 7#e7 specify a mitigation fee in an amount the ,secretary determines is sufficient to reasonably compensate1 through habitat restoration or other appropriate measures1 for any incidental take of migratory birds that results from such commercial activity2 7#f7 specify a permit fee1 to be paid at the time such person submits a certification to the ,secretary pursuant to paragraph 7#g71 to offset the cost of developing and revising such permit and administering the research program established under subsection 7s72 7#g7 require such person to submit to the ,secretary an annual certification demonstrating such person's compliance with the terms of the permit2 7#h7 provide for the terms of the permit to be revised during the duration of such permit if new information indicates that-- 7,a7 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 issued2 or 7,b7 new best management practices1 technologies or other measures can significantly reduce such impacts and can practicably be adopted by the applicant2 and 7#i7 provide for revocation of the permit if the applicant fails to comply with the terms of such permit4 7n7 ,compliance certification ,the ,secretary shall make each certification submitted under this section publicly available4 7o7 ,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 birds4 7p7 ,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 7#af ,u4,s4,c4 #ddja et seq471 the ,neotropical ,migratory ,bird ,conservation ,fund established by section #i of the ,neotropical ,migratory ,bird ,conservation ,act 7#af ,u4,s4,c4 #fajh71 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-- 7#a7 affected by the permitted activities2 and 7#b7 identified as birds of conservation concern under authority of section #ac of the ,fish and ,wildlife ,conservation ,act of #aihj 7#af ,u4,s4,c4 #biab74 7q7 ,authorization of appropriations ,there is authorized to be appropriated #aj1jjj1jjj for each fiscal year beginning after the date of the enactment of this section to carry out this section4 7r7 ,report to congress ,not later than #e years after the date of enactment of this section1 and at the end of each #e year period thereafter1 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-- 7#a7 the conservation status of migratory birds2 7#b7 the impacts upon migratory birds of commercial activities for which authorizing regulations have been issued under this section2 7#c7 the effectiveness of best management practices1 technologies1 and other measures in reducing such impacts2 and 7#d7 such ,secretary's progress in carrying out the functions and responsibilities given to the ,secretary under this section4 7s7 ,research program ,the ,secretary shall establish and maintain1 in consultation with research institutions1 institutions of higher education 7as such term is defined in section #aja7;a7 of the ,higher ,education ,act of #aife 7#bj ,u4,s4,c4 #ajja7;a7771 wildlife conservation groups1 and representatives of commercial activities regulated under this section1 a research program to-- 7#a7 evaluate the effectiveness of best management practices and technologies incorporated in regulations and permits under this section2 7#b7 develop and evaluate new or improved best management practices and technologies2 and 7#c7 evaluate the impacts of commercial activities regulated under this section on bird populations4 #ae4 ,definitions ,for the purposes of this ,act3 7#a7 ,incidental take ,the terms incidental take and incidentally take means the killing or taking of migratory birds that directly and foreseeably results from1 but is not the purpose of1 a commercial activity4 7#b7 ,commercial activity ,the term commercial activity means---- 7,a7 the conduct of any aspect of a business1 concession1 or service in order to provide goods or services to any person for compensation1 including manufacturing1 distributing1 transporting1 and marketing goods and services2 and 7,b7 activities of ,federal1 ,state1 or local governments related to the management or administration of government property or programs4 7#c7 ,best management practices ,the term best management practices means operational practices1 siting1 and other guidelines prescribed by the ,secretary to avoid or minimize the incidental take of migratory birds4 7#d7 ,secretary ,the term ,secretary means the ,secretary of the ,interior acting through the ,director of the ,united ,states ,fish and ,wildlife ,service4 4 7#b7 ,conforming amendments ,the ,migratory ,bird ,treaty ,act is amended-- 7,a7 in section #c1 by striking of ,agriculture2 7,b7 in section #e-- 7i7 by striking of the ,interior2 and 7ii7 by striking ,agriculture authorized by the ,secretary of ,agriculture and inserting ,interior authorized by the ,secretary2 7,c7 in section #f7;d7 by striking of the ,interior2 and 7,d7 in section #i1 by striking of ,agriculture4 7c7 ,penalties ,section #f of the ,migratory ,bird ,treaty ,act 7#af ,u4,s4,c4 #gjg7 is amended by inserting after subsection 7d7 the following-- 7e7 ,whoever in violation of this ,act1 shall incidentally take a migratory bird or violate the terms of a permit or any rule issued by the ,secretary to administer section #ad of this ,act may be assessed a civil penalty by the ,secretary of not more than #aj1jjj per violation1 except that unpermitted incidental take which is caused by conduct that is reckless or grossly negligent shall be subject to the penalties of subsection 7a74 ,the ,secretary is authorized to commence a civil action for appropriate relief1 including a permanent or temporary injunction1 for any violation of the terms of a permit or regulation issued under such section4 4