[Federal Register Volume 84, Number 153 (Thursday, August 8, 2019)]
[Rules and Regulations]
[Pages 38883-38885]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-16629]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 20
[Docket No. FWS-HQ-MB-2019-0008; FF09M21200-189-FXMB1231099BPP0]
RIN 1018-BD90
Migratory Bird Hunting; Normal Agricultural Operations
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: The Agriculture Improvement Act of 2018 includes a provision
that directs the Secretary of the Interior to revise the Federal
migratory bird hunting regulations in part 20 of title 50 of the Code
of Federal Regulations. The provision directs the Secretary to clarify
that rice ratooning and post-disaster flooding, when carried out as
part of a normal agricultural operation, do not constitute baiting.
Current Federal regulations in 50 CFR part 20 prohibit the use of
baiting to attract birds when hunting. This rule implements the
Congressional directives in the Agriculture Improvement Act of 2018 by
making the necessary revisions to the migratory bird hunting
regulations regarding rice ratooning and post-disaster flooding.
DATES: This action is effective August 8, 2019.
ADDRESSES: This final rule is available on the internet at http://www.regulations.gov in Docket No. FWS-HQ-MB-2019-0008.
FOR FURTHER INFORMATION CONTACT: Ron W. Kokel, U.S. Fish and Wildlife
Service, Department of the Interior, MS: MB, 5275 Leesburg Pike, Falls
Church, VA 22041-3803; (703) 358-1967. If you use a telecommunications
device for the deaf (TDD), call the Federal Relay Service at 800-877-
8339.
SUPPLEMENTARY INFORMATION:
Background
In 1916, the United States and Great Britain (on behalf of Canada),
signed a treaty to protect migratory birds. In 1918, Congress passed
the Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703-711) to implement
the treaty with Canada. Among other things, the MBTA, as enacted,
prohibited unauthorized hunting and selling of birds covered by the
treaty. The United States later signed bilateral treaties with Mexico,
Japan, and the Union of Soviet Socialist Republics to protect migratory
birds. After each treaty was signed, Congress amended the MBTA to cover
the species addressed in that treaty. Unless permitted by regulation,
the MBTA
[[Page 38884]]
prohibits the ``taking'' and ``killing'' of migratory birds (16 U.S.C.
703, 704).
``Take'' is defined in part 10 of title 50 of the Code of Federal
Regulations (CFR) as ``to pursue, hunt, shoot, wound, kill, trap,
capture, or collect, or attempt to pursue, hunt, shoot, wound, kill,
trap, capture, or collect'' (50 CFR 10.12). ``Migratory bird'' means
any bird protected by any of the treaties and currently includes those
bird species in the United States listed in 50 CFR 10.13, regardless of
whether the particular species actually migrates.
Under the MBTA, the Secretary of the Interior is authorized to
determine when ``hunting, taking, capture, killing, possession, sale,
purchase, shipment, transportation, carriage, or export'' of migratory
game birds can take place, and to adopt regulations for this purpose.
The regulations governing the hunting of migratory game birds are
located at 50 CFR part 20. The responsibility for issuing and enforcing
the migratory game bird hunting regulations has been delegated to the
U.S. Fish and Wildlife Service as the lead Federal agency for managing
and conserving migratory birds in the United States.
Congressional Action
The Agriculture Improvement Act of 2018 (Pub. L. 115-334, Act) was
enacted on December 20, 2018. A provision of that act directs the
Secretary of the Interior, within 30 days of enactment of the law and
in consultation with the Secretary of Agriculture, to revise part 20 of
title 50, Code of Federal Regulations, to clarify that rice ratooning
and post-disaster flooding, when carried out as part of a normal
agricultural operation, do not constitute baiting. Specifically,
section 12601 of the Agriculture Improvement Act of 2018 defined
``normal agricultural operation'' as having the meaning given the term
in Sec. 20.11 of title 50, Code of Federal Regulations (as in effect
on the date of enactment of this Act). Post-disaster flooding is
defined as the destruction of a crop through flooding in accordance
with practices required by the Federal Crop Insurance Corporation for
agricultural producers to obtain crop insurance under the Federal Crop
Insurance Act (7 U.S.C. 1501 et seq.) on land on which a crop was not
harvestable due to a natural disaster (including any hurricane, storm,
tornado, flood, high water, wind-driven water, tidal wave, tsunami,
earthquake, volcanic eruption, landslide, mudslide, drought, fire,
snowstorm, or other catastrophe that is declared a major disaster by
the President in accordance with section 401 of the Robert T. Stafford
Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170)) in the
crop year--
[cir] in which the natural disaster occurred; or
[cir] immediately preceding the crop year in which the natural
disaster occurred.
Section 12601of the Act defines ``rice ratooning'' to mean the
agricultural practice of harvesting rice by cutting the majority of the
aboveground portion of the rice plant but leaving the roots and growing
shoot apices intact to allow the plant to recover and produce a second
crop yield.
In addition, the Act requires the Secretary of the Interior, in
consultation with the Secretary of Agriculture, not later than 30 days
after its enactment to revise part 20 of title 50, Code of Federal
Regulations, to clarify that rice ratooning and post-disaster flooding,
when carried out as part of a normal agricultural operation, do not
constitute baiting.
Current Regulations
Terms that are used in the migratory bird hunting regulations in
title 50 of the CFR are defined at 50 CFR 20.11 (2018 Edition). https://www.govinfo.gov/content/pkg/CFR-2018-title50-vol9/pdf/CFR-2018-title50-vol9-sec20-11.pdf. This section defines ``normal agricultural
planting, harvesting, or post-harvest manipulation'' as meaning a
planting or harvesting undertaken for the purpose of producing and
gathering a crop, or manipulation after such harvest and removal of
grain, that is conducted in accordance with official recommendations of
State Extension Specialists of the Cooperative Extension Service of the
U.S. Department of Agriculture. ``Normal agricultural operation'' is
defined as meaning a normal agricultural planting, harvesting, post-
harvest manipulation, or agricultural practice that is conducted in
accordance with official recommendations of State Extension Specialists
of the Cooperative Extension Service of the U.S. Department of
Agriculture. ``Baited area'' means any area on which salt, grain, or
other feed has been placed, exposed, deposited, distributed, or
scattered, if that salt, grain, or other feed could serve as a lure or
attraction for migratory game birds to, on, or over areas where hunters
are attempting to take them. Any such area will remain a baited area
for 10 days following the complete removal of all such salt, grain, or
other feed. Finally, Sec. 20.11 defines ``bating'' to mean the direct
or indirect placing, exposing, depositing, distributing, or scattering
of salt, grain, or other feed that could serve as a lure or attraction
for migratory game birds to, on, or over any areas where hunters are
attempting to take them.
The regulations in 50 CFR 20.21 (2018 Edition) address illegal
methods of hunting migratory birds; one of the prohibited practices
includes the use of baiting to attract birds. The regulations pertinent
to this rule are found in paragraph (i) of that section, see https://www.govinfo.gov/content/pkg/CFR-2018-title50-vol9/pdf/CFR-2018-title50-vol9-sec20-21.pdf.
Effects of the Rule
This rule implements the directives set forth in section 12601 of
Public Law 115-334. In compliance with that section, we have consulted
with the office of the Secretary of Agriculture on this rule. That
office concurs with this rulemaking action. To carry out the intent of
Congress in the Agriculture Improvement Act of 2018 (Pub. L. 115-334),
we hereby amend 50 CFR 20.11, by adding definitions of ``post-disaster
flooding'' and ``rice ratooning,'' and 50 CFR 20.21(i)(1)(i), by adding
these new terms to the regulations concerning baited areas. The new
definitions and revised regulations are set forth at the end of this
document in the rule portion.
Current regulations allow rice producers to grow rice to
completion, harvest it, post-harvest manipulate it, flood it, and hunt
over it. Rice growers may also grow rice to completion, not harvest or
manipulate it, flood the rice, and hunt over it. If a rice grower
chooses to manipulate un-harvested rice, then the growing area
constitutes a baited area until all grain is removed at least 10 days
prior to hunting. Under this rule, growers can grow rice to completion,
harvest it, let the second growth establish, and hunt over it. Growers
cannot manipulate the second growth in any way that may expose seed. If
the second growth is manipulated, the growing area constitutes a baited
area until all grain is removed at least 10 days prior to hunting.
Regulations currently allow the grower of any crop to grow,
harvest, post-harvest manipulate, flood, and hunt over the crop. A
grower can raise a crop to completion, not harvest or manipulate it,
then intentionally flood the crop for the purposes of hunting. If a
grower does not harvest a completed crop and decides to manipulate it,
the grower must adhere to the 10-day baiting rule prior to hunting. The
revised regulations will allow hunting over a crop that is rendered
``not harvestable'' because of a disaster
[[Page 38885]]
declaration under the Stafford Act and for which the Federal Crop
Insurance Corporation has declared that the crop may be destroyed by
flooding (and only flooding). No other manipulation is allowed. If the
crop is manipulated by any means other than flooding, the growing area
would be considered a baited area until all the grain is removed at
least 10 days prior to hunting.
Effective Date
This rule is effective upon publication in the Federal Register.
Section 12601 of subtitle F of Public Law 115-334 directs the Secretary
of the Interior to issue, within 30 days of enactment of the law, this
final rule. Therefore, under these circumstances, we have determined,
pursuant to 5 U.S.C. 553(b)(B), that prior notice and opportunity for
public comment are impracticable and unnecessary. We have further
determined, pursuant to 5 U.S.C. 553(d)(3), that the Congressional
mandates imposed on the Department of the Interior by the Agriculture
Improvement Act of 2018 constitute good cause to make this rule
effective upon publication.
Required Determinations
This rulemaking implements section 12601 of subtitle F of Public
Law 115-334. Issuance of this rule is a nondiscretionary act for the
U.S. Fish and Wildlife Service. Therefore, the promulgation of this
rule is not subject to any other provision of statute or regulation
that applies to the issuance of Federal rules. Accordingly, in issuing
this rule, the Service has not made and is not required to make
determinations otherwise required by statute, regulation, or Executive
Order for the promulgation of Federal rules.
List of Subjects in 50 CFR Part 20
Exports, Hunting, Imports, Reporting and recordkeeping
requirements, Transportation, Wildlife.
Regulation Promulgation
Accordingly, part 20, subchapter B, chapter I of title 50 of the
Code of Federal Regulations is amended as follows:
PART 20--MIGRATORY BIRD HUNTING
0
1. The authority citation for part 20 continues to read as follows:
Authority: 16 U.S.C. 703 et seq., and 16 U.S.C. 742a-j.
0
2. Amend Sec. 20.11 by redesignating paragraphs (m) and (n) as
paragraphs (o) and (p), respectively, and adding new paragraphs (m) and
(n) to read as follows:
Sec. 20.11 What terms do I need to understand?
* * * * *
(m) Rice ratooning means the agricultural practice of harvesting
rice by cutting the majority of the aboveground portion of the rice
plant but leaving the roots and growing shoot apices intact to allow
the plant to recover and produce a second crop yield.
(n) Post-disaster flooding means the destruction of a crop through
flooding in accordance with practices required by the Federal Crop
Insurance Corporation for agricultural producers to obtain crop
insurance under the Federal Crop Insurance Act (7 U.S.C. 1501 et seq.)
on land on which a crop was not harvestable due to a natural disaster
(including any hurricane, storm, tornado, flood, high water, wind-
driven water, tidal wave, tsunami, earthquake, volcanic eruption,
landslide, mudslide, drought, fire, snowstorm, or other catastrophe
that is declared a major disaster by the President in accordance with
section 401 of the Robert T. Stafford Disaster Relief and Emergency
Assistance Act (42 U.S.C. 5170)) in the crop year--
(1) In which the natural disaster occurred; or
(2) Immediately preceding the crop year in which the natural
disaster occurred.
* * * * *
0
3. Amend Sec. 20.21 by revising paragraph (i)(1)(i) to read as
follows:
Sec. 20.21 What hunting methods are illegal?
* * * * *
(i) * * *
(1) * * *
(i) Standing crops or flooded standing crops (including aquatics);
standing, flooded, or manipulated natural vegetation; flooded harvested
croplands; or lands or areas where seeds or grains have been scattered
solely as the result of a normal agricultural planting, harvesting,
post-harvest manipulation, rice ratooning, post-disaster flooding, or
normal soil stabilization practice;
* * * * *
Dated: July 23, 2019.
Karen Budd-Falen,
Deputy Solicitor for Parks and Wildlife, Exercising the Authority of
the Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2019-16629 Filed 8-7-19; 8:45 am]
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