[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]
BILLING CODE 3410-11-M