[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]
BILLING CODE 4333-15-P