Union Calendar No. 386
116th CONGRESS 2d Session |
[Report No. 116–482]
To amend the Migratory Bird Treaty Act to affirm that the Migratory Bird Treaty Act’s prohibition on the unauthorized take or killing of migratory birds includes incidental take by commercial activities, and to direct the United States Fish and Wildlife Service to regulate such incidental take, and for other purposes.
January 8, 2020
Mr. Lowenthal (for himself, Mr. Van Drew, Ms. Norton, Mrs. Dingell, Mr. Huffman, Mr. Grijalva, Ms. McCollum, Ms. Haaland, Ms. Velázquez, Mr. Gallego, Mr. Ted Lieu of California, Mr. Blumenauer, Mr. McNerney, Ms. Kuster of New Hampshire, Mrs. Napolitano, Mr. Beyer, Mr. Case, Mr. DeFazio, and Mr. Rooney of Florida) introduced the following bill; which was referred to the Committee on Natural Resources
September 1, 2020
Additional sponsors: Mrs. Davis of California, Mr. Cohen, Mr. Morelle, Mr. Connolly, Mr. Quigley, Mr. Horsford, Ms. Titus, Mr. Cartwright, Mr. McGovern, Ms. Lee of California, Ms. Wild, Ms. DeLauro, Mr. Brendan F. Boyle of Pennsylvania, Mrs. Beatty, Ms. Schakowsky, Mr. Katko, Mr. Pappas, Ms. Barragán, Ms. Pingree, Mr. Price of North Carolina, Mr. Espaillat, Ms. Scanlon, Mr. Hastings, Mr. Pocan, Mr. Cooper, Mr. Sablan, Ms. Stevens, Mrs. Hayes, Mr. Neguse, Ms. Lofgren, Mr. Scott of Virginia, Mr. Kim, Ms. Jackson Lee, Mr. Thompson of California, Mr. Larsen of Washington, Mr. Khanna, Mr. Levin of Michigan, Ms. Blunt Rochester, Ms. DelBene, Mr. Pallone, Mr. Kind, Mr. Schneider, Mr. Sarbanes, Ms. Eshoo, Mr. Fitzpatrick, Mr. Cox of California, Mr. Takano, Mr. DeSaulnier, Mr. Soto, Ms. DeGette, Mr. Cicilline, Ms. Roybal-Allard, Mr. Suozzi, Mrs. Watson Coleman, Mrs. Kirkpatrick, Mr. Kildee, Ms. Porter, Mrs. Carolyn B. Maloney of New York, Mr. Posey, Ms. Mucarsel-Powell, Mr. García of Illinois, Mr. Cisneros, Mr. Kilmer, Mr. Johnson of Georgia, Ms. Bonamici, Ms. Wasserman Schultz, Ms. Houlahan, Mr. Casten of Illinois, Mr. Vargas, Ms. Speier, Mr. Gomez, Mr. Harder of California, Mr. Stanton, Ms. Jayapal, Mr. Gottheimer, Mr. Pascrell, and Mr. O'Halleran
September 1, 2020
Reported with an amendment; committed to the Committee of the Whole House on the State of the Union and ordered to be printed
[Strike out all after the enacting clause and insert the part printed in italic]
[For text of introduced bill, see copy of bill as introduced on January 8, 2020]
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.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
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—
“(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;
“(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)—
“(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—
“(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—
“(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.
“(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—
“(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—
“(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—
“(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—
“(2) the impacts upon migratory birds of commercial activities for which authorizing regulations have been issued 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—
“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——
(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.”.
Union Calendar No. 386 | |||||
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[Report No. 116–482] | |||||
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 activities, and to direct the United States Fish and Wildlife Service to regulate such incidental take, and for other purposes. | |||||
September 1, 2020 | |||||
Reported with an amendment; committed to the Committee of the Whole House on the State of the Union and ordered to be printed |