[Federal Register Volume 59, Number 72 (Thursday, April 14, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-9014]


[[Page Unknown]]

[Federal Register: April 14, 1994]


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DEPARTMENT OF AGRICULTURE
Forest Service

 

Use of Bait in Hunting

AGENCY: Forest Service, USDA.

ACTION: Notice of withdrawal of interim policy, notice of proposed 
policy; and request for public comment.

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SUMMARY: On March 14, 1994, the Forest Service published an interim 
policy, with a request for public comment, on the agency's role in 
regulating the placement of bait on National Forest System lands (59 FR 
11765). This notice withdraws the interim policy and republishes it as 
a proposed policy. The intended effect of the proposed policy 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: Comments must be received in writing by June 13, 1994.

ADDRESSES: Send written comments to Director, Wildlife, Fish, and Rare 
Plants (2640), Forest Service, USDA, P.O. Box 96090, Washington, DC 
20090-6090.
    The public may inspect comments received on this proposed policy in 
the Office of the Director, Wildlife, Fish, and Rare Plants, 4th floor 
Southwest Wing, Auditors Building, 205 14th Street SW., Washington, DC. 
Those wishing to inspect comments should call ahead at (202) 205-1159 
to facilitate entry into the building.

FOR FURTHER INFORMATION CONTACT:
Tom Darden, Wildlife, Fish, and Rare Plants Staff, (202) 205-1206.

SUPPLEMENTARY INFORMATION: 

Background

    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 (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, 
and 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 subject to 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 proposed 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. Special use authorizations 
for bear baiting had been issued on a number of national forests in 
Wyoming. 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 early 1992, the Forest 
Service's role in the regulation of bear baiting on the national 
forests in Wyoming became an issue.
    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 to 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 
of the proposed action and alternatives to that 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.
    An interim policy was issued by the Forest Service, on March 4, 
1994, and published in the Federal Register on March 14, 1994.
    On March 28, 1994, a lawsuit was filed by the fund for Animals and 
others, in the U.S. District Court for the District of Columbia 
challenging, in part, the absence of a public comment period prior to 
issuance of the interim policy. In a stipulation to stay proceedings in 
the suit, the agency agreed to withdraw the interim policy and 
republish it as proposed with a 60-day public comment period prior to 
issuance of a final policy. As a result, effective March 30, 1994, the 
Forest Service policy on bear baiting reverted to that which was in 
effect prior to the interim policy of March 14.

Proposed Policy

    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 proposed policy makes explicit that, where State regulations permit 
baiting, the Forest Service would prohibit the practice of issuing a 
special use authorization for the practice of baiting connected with 
hunting on National Forest System lands. However, outfitter and guide 
activities still require special use authorization and, as a condition 
of that authorization, outfitters and guides must comply with 
applicable State laws and regulations as well as any applicable Forest 
Service closure orders.
    However, if the placement of bait should become a land or resource 
management issue and if 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, 
under the proposed policy, the authorized officer would issue an order 
to close the area to baiting. The authorized officer also could close 
an area to baiting after 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 proposed 
policy would explicitly prohibit the practice of issuing a special use 
authorization to individuals for the specific act of placing bait on 
National Forest system lands for hunting purposes.
    The approach contemplated in the proposed 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 proposed policy would provide 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 also 
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 proposed approach (1) relies on existing relationships 
with each State, (2) prevents duplicative regulation by Federal and 
State agencies, and (3) provide site-specific environmental safeguards 
to address those situations where baiting would have an adverse site-
specific effect on National Forest System land or resources.
    The proposed baiting policy would be an amendment to the Forest 
Service Manual. Accordingly, pursuant to 36 CFR part 216, the text of 
the proposed policy 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

    Publication of this proposed policy is an integral part of the 
agency's scoping process by which it determines the scope and level of 
any environmental effects of proposed actions. According to the agency 
NEPA procedures, scoping is required for all proposed actions, 
including those that might be categorically excluded. 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 Service-wide 
administrative procedures, program processes, or instructions.'' This 
proposed policy would provide administrative instructions to Forest 
Service field offices on the procedures and processes to follow in the 
case of placing bait for 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. The agency particularly invites comment on this 
preliminary finding. Following consideration of public comments, the 
Forest Service will make a final determination regarding the level of 
environmental analysis.

Controlling Paperwork Burden on the Public

    This policy will not result in addition 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 proposed policy has been reviewed under USDA procedures and 
Executive Order 12866 on Federal Regulations. It has been determined 
that this is not a significant policy.

    Dated: April 7, 1994.
Mark A. Reimers,
Acting Chief.

Proposed Policy--Forest Service Manual Chapter 2640

    Note: The Forest Service organizes its directive system by 
alpha-numeric codes and subject headings. Only those sections of the 
Forest Service Manual including policy direction that are the 
subject of this notice are set out here. The proposed policy 
includes minor revisions to existing codes and subject headings. The 
audience for this direction is Forest Service employees responsible 
for coordinating wildlife management on National Forest System lands 
with State fish and wildlife agencies.
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 subject 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--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 laws 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 for 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 the 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. 94-9014 Filed 4-13-94; 8:45 am]
BILLING CODE 3410-11-M