[Federal Register Volume 59, Number 49 (Monday, March 14, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-5786]
[[Page Unknown]]
[Federal Register: March 14, 1994]
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DEPARTMENT OF AGRICULTURE
Use of Bait in Hunting
AGENCY: Forest Service, USDA.
ACTION: Notice; adoption of interim policy; request for public comment.
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SUMMARY: The Forest Service gives notice that it is issuing interim
policy on the agency's role in regulating the placement of bait on
National Forest System lands. The intended effect is to clarify the
agency's role in relation to the role of the States and, thus, to
provide a consistent approach to the regulation of baiting resident
game. Public comment is invited and will be considered in the adoption
of a final policy, notice of which will be published in the Federal
Register.
DATES: Interim Directive No. 2640-94-1 was effective on March 3, 1994,
and will expire no later than September 4, 1995, unless removed before
that date.
Comments must be received by May 13, 1994.
ADDRESSES: Send written comments to Director, Wildlife and Fisheries
(2640), Forest Service, USDA, P.O. Box 96090, Washington, DC 20090-
6090.
The public may inspect comments received on this interim policy in
the Office of the Director, Wildlife and Fisheries, 4th floor Southwest
Wing, Auditors Building, 205 14th Street SW., Washington, DC. Those
wishing to inspect comments should call ahead at (202) 205-1207 to
facilitate entry into the building.
FOR FURTHER INFORMATION CONTACT:
Tom Darden, Wildlife and Fisheries Staff, (202) 205-1207.
SUPPLEMENTARY INFORMATION: State fish and wildlife agencies have the
primary responsibility for protection and management of wildlife
populations on National Forest System lands, including adoption of
State fish and wildlife laws and regulations affecting the taking of
resident game animals. The Forest Service enters into a Memorandum of
Understanding (MOU) with each State which governs Forest Service/State
cooperation on matters of Statewide fish and wildlife policy or
procedure affecting the National Forest System. See FSM 2611.1. The
States issue regulations regarding hunting licenses, methods, seasons,
locations, and bag limits for resident game and have the primary
responsibility for enforcement of fish and wildlife laws and
regulations on National Forest System lands. Federal land management
statutes acknowledge the States' traditional role in managing fish and
wildlife; see the National Forest System Organic Administration Act at
16 U.S.C. 480, the Multiple Use-Sustained Yield Act at 16 U.S.C. 528,
the Sikes Act at 16 U.S.C. 670h, the Federal Land Policy and Management
Act, at 43 U.S.C. 1732. The Forest Service therefore is generally
reluctant to override State fish and wildlife regulation, except where
federal interests, such as protection of forest land, resources, and
users require federal intervention.
The practice of placing bait (food or scent to attract wildlife) is
a hunting activity allowed by some State laws and regulations. The
baiting of bears is particularly controversial. While the total number
of States allowing bear baiting has declined, State fish and wildlife
agencies permit the baiting of black bear as a hunting activity in
Alaska, Idaho, Oregon, Maine, Michigan, Minnesota, New Hampshire, Utah,
Washington, Wisconsin, and Wyoming. The Forest Service intends to work
diligently through its ongoing cooperative efforts to encourage the
States to evaluate their regulation of the practice of baiting bears.
In the meantime, the agency is issuing interim policy regarding the use
of bait on National Forest System lands.
In the past, some national forests have regulated the placement of
bear baits by requiring hunters and commercial guides to obtain special
use authorizations in order to prevent conflicts with other users or
other problems associated with the location and removal of bait.
Additionally, some Forest Service Regions have issued orders under 36
CFR Part 261 to control litter, as well as to close certain areas to
bear baiting where the practice would create unacceptable adverse
effects on other resources or forest users. In early 1992, the Forest
Service's role in the regulation of bear baiting on the national
forests in Wyoming became an issue. Special use authorizations for bear
baiting had been issued on a number of national forests in that State.
Typically, those special use authorizations included conditions with
which the holder had to comply to minimize adverse effects created by
placement of bear bait.
In March 1992, the Regional Foresters for the Rocky Mountain and
Intermountain Regions issued a joint closure order prohibiting bear
baiting in the national forests in Wyoming, unless the baiting activity
was conducted in compliance with the requirements of the order
pertaining to the placement and disposal of baits. Like the conditions
that previously had been included in special use authorizations, the
requirements of the order were intended too minimize adverse effects on
forest resources and users.
The Fund for Animals and the Friends of the Bow brought suit to
challenge the Forest Service's closure order and to challenge what
Plaintiffs considered a shift in established policy, that is, no longer
requiring special use authorizations for bear bait placement and using
closure orders instead (The Fund for Animals v. Robertson, (D.D.C. Civ.
No. 92-1694-TPJ)). These groups perceived this shift in method as a
diminution in the level of Forest Service regulation and wildlife
protection. The parties settled the case upon the Forest Service's
decision to rescind the closure order and, in compliance with the
National Environmental Policy Act, to analyze the effects of
eliminating the practice of issuing special use authorizations for the
placement of bear bait on National Forest System lands in Wyoming. The
Regions then prepared an Environmental Assessment to disclose effects
on the proposed action and alternatives to the proposal.
Upon completion of the Environmental Assessment and issuance of a
Decision Notice by the Rocky Mountain and Intermountain Regional
Foresters in April 1993, there were new challenges to the agency's
position. Subsequently, the Deputy Chief for the National Forest System
decided that national direction was needed to end the conflict and
controversy. Accordingly, the Decision Notice was rescinded, and bear
baiting in national forests in Wyoming was prohibited pending issuance
of national direction. However, because the spring hunting season will
begin before a final policy can be adopted, the agency has determined
that in fairness to outfitters, guides, and individual hunters, an
interim policy should be issued to ensure consistency and uniformity of
policy and practice by the Forest Service. State agency regulations
have been developed and published in Wyoming and other States governing
the use of bait in spring hunts for 1994. These new Wyoming regulations
were developed in close coordination with the Forest Service to be in
concert with federal regulation and law on the national forests
involved and to be protective of National Forest System resources. In
addition, hunters, outfitters, and guides in Wyoming have moved forward
with the normal practice of planning and booking hunting activity based
on the expectation that the Forest Service would have a final policy in
place for the spring hunting season. It is unfair to continue the bear
baiting prohibition in Wyoming when such a prohibition is not in effect
on other National Forest System lands in other States where the
practice is permitted, because of the agency's delay in adopting a
final policy. Therefore, the agency has issued an interim directive to
Forest Service Manual Chapter 2640, which is set out at the end of this
notice.
The Forest Service special use authorization regulations at 36 CFR
251.50 exempt noncommercial use and occupancy, including ``hunting,''
from the special use authorization requirement. Since hunting methods
subject to State regulation are included within the term ``hunting,''
the interim directive makes explicit that where State regulations
permit baiting, the Forest Service will not require a special use
authorization for the practice of baiting connected with hunting on
National Forest System lands. Outfitter and guide activities require a
special use authorization. Outfitters and guides must comply with
applicable State laws and regulations, and Forest Service closure
orders as a condition of special use authorizations.
However, if the placement of bait should become a land or resource
management issue and it is determined that the State regulations
governing baiting would not protect resources in an area adequately or
would otherwise be inconsistent with the applicable forest plan or
conflict with federal laws such as the Endangered Species Act, then the
authorized officer will issue an order to close the area to baiting.
The authorized officer also may close an area to baiting considering
the likely impact on a site-specific basis on water quality, public
health and sanitation, or the potential threat to the viability of
wildlife. Finally, the policy would explicitly prohibit the issuance of
a special use authorization to individuals for the specific act of
placing bait on National Forest System lands for hunting purposes.
The approach adopted in the interim policy maintains protection of
national forest resources. First, under the terms of the Memorandums of
Understanding with the State fish and wildlife or game agencies, the
Forest Service continuously participates in the review and adoption of
State game regulations as they affect National Forest System land or
resources. Second, the interim policy provides the Regional Forester or
Forest Supervisor with the flexibility and discretion to determine if
baiting should be prohibited in a specific location. Finally, if a
hunter, in placing bait to attract resident game creates litter through
improper placement or untimely removal of bait in violation of State
regulations or Forest Service closure orders, the agency has the
authority under its regulations at 36 CFR 261.11 to cite the hunter for
violating the prohibition on litter. If such bait results in violation
of State regulations, the agency has authority to cite the hunter for
violation of 36 CFR 261.8, and agency employees routinely do so where
such violations occur. In short, the agency's approach (1) relies on
existing relationships with each State, (2) prevents duplicative
regulation by Federal and State agencies, and (3) provides site-
specific environmental safeguards to address those situations where
baiting would have an adverse site-specific effect on National Forest
System land or resources.
Pursuant to the rules at 36 CFR part 316, the text of the baiting
policy as it has been issued in Interim Directive No. 2640-94-1 to the
Forest Service Manual is set out at the end of this notice. Public
comment is invited and will be considered in adoption of a final
policy.
Environmental Impact
Section 31.1b(2) of Forest Service Handbook 1909.15 (57 FR 43180,
September 18, 1992) excludes from documentation in an environmental
assessment or impact statement ``rules, regulations, or policies to
establish Servicewide administrative procedures, program processes, or
instructions.'' This interim directive would provide administrative
instructions to Forest Service field offices on the procedures and
processes to follow in the case of baiting resident game. Accordingly,
the agency's preliminary assessment is that this policy falls within
this category of actions and that no extraordinary circumstances exist
which would require preparation of an environmental assessment or
environmental impact statement. A final determination will be made upon
adoption of the final policy.
Controlling Paperwork Burden on the Public
This policy will not result in additional paperwork. Therefore, the
review provisions of the Paperwork Reduction Act of 1980 (44 U.S.C.
3507) and implementing regulations at 5 CFR Part 1320 do not apply.
Regulatory Impact
This interim policy has been reviewed under USDA procedures and
Executive Order 12866 on Federal Regulations. It has been determined
that this is not a significant rule.
Dated: March 7, 1994.
Jack Ward Thomas,
Chief.
FOREST SERVICE MANUAL
Washington, D.C.
Interim Directive: !!ID 2640-94-1
Effective Date:
Expiration Date:
Chapter: 2640--Stocking and Harvesting
Posting Notice:
Remove:
This directive clarifies roles, responsibilities, and procedures to
regulate the placement of bait on National Forest System lands.
FSM 2643 emphasizes the cooperation between the Forest Service and
State fish and wildlife agencies through memorandums of understanding.
FSM 2643.1 clarifies the States' role and emphasizes the need for
consistency of State regulations with Federal laws and forest plans.
FSM 2643.12 adds factors to consider and methods to regulate
baiting.
2643--Applicability of State Fish and Wildlife Laws and Regulations
The Forest Service actively cooperates in the development of State
fish and wildlife laws and regulations and may assist in the
enforcement of State fish and wildlife laws on National Forest System
lands. Pursuant to FSM 2610, Regional Foresters shall ensure that
memorandums with State fish and wildlife agencies recognize the role of
the Forest Service in cooperating in the development of State fish and
wildlife laws and regulations, especially those addressing hunting,
fishing, and trapping as they would apply to occupancy and use of
National Forest System lands.
2643.1--Hunting, Fishing, and Trapping Regulations
Hunting, fishing, and trapping of fish and wildlife and associated
practices are permitted on National Forest System lands subjects to
State fish and wildlife laws and regulations, unless one or both of the
following apply:
1. State fish and wildlife laws and regulations conflict with
federal laws; or
2. State laws and regulations would permit activities that conflict
with the land and resource management responsibilities of the Forest
Service or that are inconsistent with forest plans.
2643.12--Trapping Furbearers
Use of Bait for Resident Game Hunting. The use of bait as a lure or
attractant for the purpose of taking resident game on National Forest
System lands is considered a hunting practice subject to State
regulation.
Where State hunting regulations prohibit the use of bait, the
practice is prohibited on National Forest System lands.
Where States permit the use of bait for attracting resident game,
this activity is allowed on National Forest System lands, subject to
State hunting laws and regulations, unless the authorized officer
determines on a site-specific basis that there is a need to prohibit or
restrict the practice of baiting because one or more of the following
circumstances exist:
1. The State laws and regulations on placement of bait are
inadequate to protect forest land or other resources or users in a
particular location and/or to prevent trespass or litter;
2. Baiting is inconsistent with the applicable forest plan; or
3. The State law and regulations conflict with Federal law, such as
the Endangered Species Act.
In addition to the mandatory causes for prohibiting or restricting
baiting, the authorized officer also may prohibit baiting, regardless
of the adequacy of State regulations, based on consideration of the
likely impact of baiting on such matters as water quality, public
health and sanitation, the potential for litter, or the potential to
threaten the viability of wildlife.
Where the authorized officer determines that baiting is a
significant problem and should be restricted or prohibited:
1. The officer shall notify State fish and wildlife officials and
provide them the opportunity to resolve the issue through further
restrictions or the prohibition through State regulation rather than
for the Forest Service to issue the restriction or prohibition.
2. If the State does not revise its regulations to adequately
regulate or restrict baiting, the Forest Service authorized officer
shall, time permitting, close the area or otherwise restrict baiting by
issuing an order pursuant to 36 CFR part 261.
Where time does not permit closure of an area to baiting because
the hunting season is underway and it would be impracticable to issue a
closure order, the Regional Forester or Forest Supervisor shall take
such mitigation and/or enforcement measures as are appropriate and
practicable to ensure consistency with forest plan management direction
and compliance with Federal laws, orders, and regulations, and
protection of forest users and resources. For example, the agency may
close a road or gate, or cite violations of other State or Forest
Service regulations.
Closure is not the only way to address the practice of baiting. It
is expected that land managers as part of their day-to-day management
of National Forest System lands and resources will be cognizant of the
effects of hunting activities and take such proactive measures, after
consultation with the responsible fish and wildlife agency, such as
hunter education, as may be necessary to ensure resource protection
consistent with forest plan management direction.
This policy, in and of itself, does not compel an authorized
officer to undertake a specific decision or to make a determination of
whether baiting is allowed in those States where the practice is
permitted.
Special use authorization shall not be issued for placing bait on
National Forest System lands for hunting purposes (36 CFR 251.50(c)).
For the purposes of this section and to assure consistency in
coordination of national forest wildlife matters with State agencies,
the authorized officer is the Regional Forester or Forest Supervisor
responsible for executing memorandums of understanding with the State
wildlife agency.
[FR Doc. 94-5786 Field 3-11-94; 8:45 am]
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