[Federal Register Volume 60, Number 53 (Monday, March 20, 1995)]
[Notices]
[Pages 14720-14723]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6904]



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DEPARTMENT OF AGRICULTURE
RIN 0596-AA


Use of Bait in Hunting

AGENCY: Forest Service, USDA.

ACTION: Notice; adoption of final policy.

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SUMMARY: The Forest Service gives notice of its final policy on the use 
of bait in hunting resident game on National Forest System lands. This 
policy has been issued to Agency employees as an amendment to the 
Forest Service Manual 2640. The intended effect of the final policy is 
to clarify the Agency's role with regard to baiting in relation to the 
role of the States and, thus, to provide a consistent approach to the 
regulation of baiting resident game on National Forest System lands.

EFFECTIVE DATE: This policy is effective March 20, 1995.

FOR FURTHER INFORMATION CONTACT: Questions about this policy should be 
addressed to Robert Nelson, Wildlife, Fish, and Rare Plants Staff, 
Forest Service, USDA, P.O. Box 96090, Washington, D.C. 20090-6090, 
(202) 205-1205.

SUPPLEMENTARY INFORMATION:

Background

    On April 14, 1994, the Forest Service published a proposed policy 
on the Agency's role in regulating the placement of bait to attract 
resident game on National Forest System lands (59 FR 17758). Public 
comment was invited. The comment period closed June 13, 1994.
    The focus of the proposed policy was that the Forest Service would 
continue to honor State regulations of fish and wildlife populations, 
including hunting and hunting practices. Where baiting is allowed by 
States, the practice would continue on National Forest System lands 
unless the authorized officer was to determine on a site-specific basis 
that the use of bait conflicts with Federal laws or regulations, forest 
plan direction, or other uses or users. In such case, the authorized 
officer could prohibit or restrict use of bait, in an area, by issuing 
a closure order. However, the authorized officer would first consult 
with the State fish and wildlife agency to see if the conflict could be 
resolved without a closure or restrictive order.
    During the public comment period, the Forest Service received 1,249 
comments on the proposed policy. Comments were received from 76 groups 
and private organizations, 29 State fish and wildlife agencies, 1 
American Indian Tribal government, 1 Federal agency, and from private 
citizens located in 46 States and the District of Columbia. Of the 
total comments received, 86 percent were from individuals representing 
themselves. Forty-five percent of the comments agreed with the proposed 
policy either in its entirety or with suggested modifications, while 
fifty-one percent did not support the proposed policy. The analysis of 
the public comments was accomplished using standard Forest Service 
procedures designed to ensure an objective and systematic analysis. The 
Agency has considered these comments and, in response, where 
appropriate the Agency is adopting modifications in the final policy. A 
summary of the comments received and the Agency's response to them 
follows.

Summary of Comments Received

    Form letters and modified form letters made up 61 percent of the 
1,249 total comments. The majority of these letters were not directed 
at specific provisions of the policy; rather, most of these comments 
objected to the practice of baiting in hunting but did not address 
State and Federal roles in the administration of a hunting practice. 
These respondents simply stated that they were against the use of bait 
in hunting and that this practice should not be allowed on National 
Forest System lands. Among reasons cited were that bait is detrimental 
to the non-hunting recreation experience; and bait may cause pollution 
or may be a risk to human health and safety. Other topics addressed 
were the need for environmental documentation under the National 
Environmental Policy Act, State versus Federal jurisdiction over 
wildlife resources, population decimation and species viability, 
threatened and endangered species being killed, conditioning of 
wildlife to human food sources, and disruption of biological diversity 
and ecological processes.
    A summary of specific comments by broad subject and the Agency's 
response to these comments follows.
    1. Comment: Impact of Baiting on Recreation. A number of 
respondents feel that baiting causes a garbage problem, is detrimental 
to recreation experience, is a source of pollution, and poses health 
and safety risks. The reviewers feel that baiting has a negative impact 
on the majority of forest users and, therefore, grants a small group 
``special advantages on land meant to be enjoyed by all.''
    Response: The fact that an activity is enjoyed by a minority of 
forest users does not mean that the activity should be banned. The 
Forest Service has consistently cooperated with State agencies to help 
them develop regulations that minimize conflict between hunters using 
baits and other forest users. Under the proposed policy, the Forest 
Service would close specific [[Page 14721]] areas to baiting if 
conflicts cannot be resolved with the State agencies regarding the 
protection of Federal resources and uses, including recreation. This 
has been retained in the final policy.
    2. Comment: Retention of Baiting Practices. Many reviewers 
characterized bear baiting as ``disgusting,'' ``offensive,'' 
``revolting,'' ``repulsive,'' ``inhumane,'' ``unsporting,'' and 
``unethical.'' These persons feel strongly that the practice of baiting 
should be outlawed on National Forest System lands.
    Response. While the Agency respects the reviews of those who object 
to baiting, the final policy is not intended to determine whether or 
not the practice of using bait in hunting is to be allowed on National 
Forest System lands, but whether the use of bait needs regulation by 
the Forest Service beyond that required by the State. The practice of 
placing bait (food or scent to attract wildlife) is a hunting activity 
subject to State law and regulations. 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. Generally, the use of bait in hunting is not 
contrary to Federal interests. The final policy acknowledges the State 
fish and wildlife agencies' authority to adopt hunting regulations and 
provides for Federal action if State regulations do not protect Federal 
interests.
    3. Comment: Clarity of Policy. Several reviewers felt that the 
reasons for closing an area to baiting were not clearly stated in the 
proposed policy. In addition, concerns were raised that the policy 
would not require review of State regulation and that Forest Service 
officers therefore would not identify problems that would be the basis 
for closure actions.
    Response. In consideration of these comments, the Forest Service 
has modified the April 14, 1994 proposal to emphasize the Agency's 
intent to monitor State regulations. Such monitoring is a routine 
practice under Agency Memorandums of Understanding (MOUs) with State 
wildlife agencies. Direction to Forest Service employees on entering 
into and operating under such MOU's is set out in a different chapter 
of FSM 2600 than the use of bait policy. Nevertheless, Forest Service 
monitoring of State regulations has been emphasized in the FSM 2640 
baiting use policy as a show of good faith to those who raised the 
concern about Forest Service review of State regulations. It should 
also be pointed out that, in the day-to-day monitoring of activities on 
National Forest System lands, Agency employees will be aware of 
practices under those regulations that appear to conflict with land and 
resource management plan standards and guidelines, which must be 
consistent with Federal law. The final policy makes explicit the 
circumstances under which the authorized officer must close an area to 
baiting as follows:
    a. The State laws and regulations on placement of bait are not 
adequate to protect forest land or other resources or users in a 
particular location. The determination of the adequacy of State laws 
and regulations shall be based on consideration of the likely impact of 
baiting on such matters as water quality, public health and safety, the 
potential for litter, sanitation problems, or the potential to threaten 
the viability of wildlife;
    b. The effects of baiting are inconsistent with direction in the 
applicable forest plan; or
    c. The State laws and regulations conflict with Federal law, such 
as the Endangered Species Act.
    2. Where the authorized officer determines that baiting should be 
restricted or prohibited, the following actions are necessary:
    a. The officer shall immediately inform the State fish and wildlife 
agency of the determination; and
    b. If, after consultation and coordination, the State is unable to 
resolve the matter with the Forest Service, the authorized officer 
shall close the area to baiting or otherwise restrict baiting by 
issuing an order pursuant to Part 261 of Title 36 of the Code of 
Federal Regulations (36 CFR Part 261).''
    4. Comment: Impact on American Indians. Two reviewers specifically 
asked what impact the proposed policy would have on American Indian 
Tribes and their treaty rights regarding hunting and fishing.
    Response. The final policy will not affect valid treaty rights 
reserved to American Indian Tribes on National Forest System lands. An 
explicit statement to this effect has been added to the final policy.
    5. Comment: Impact on Protection of Inventoried Resources. Some 
reviewers expressed the view that the proposed policy would not allow 
the Forest Service to adequately ``protect inventoried resources'' 
required by the National Forest Management Act.
    Response. The Multiple-Use Sustained-Yield Act (MUSYA) and the 
National Forest Management Act (NFMA) directs the Forest Service to 
manage and conserve the land and resources of the National Forest 
System for multiple uses. The Multiple-Use Sustained-Yield Act (MUSYA) 
specifically maintains the States' traditional wildlife management 
roles with regard to fish and wildlife on National Forest System lands. 
Accordingly, the final policy (2643.12) establishes the conditions 
under which Federal action will be taken when State regulations are not 
sufficiently protective and incorporates procedures for consulting with 
the responsible State agencies to ensure that Federal interests are 
protected.
    6. Comment: National Environmental Protection Act (NEPA) 
Compliance. The Forest Service, has made a preliminary finding using a 
Categorical Exclusion, but a number of respondents believe that an 
Environmental Assessment (EA) or an Environmental Impact Statement 
(EIS) is required because the proposed policy is highly controversial, 
and in the view of these respondents, a major Federal action of wide 
scope that will have a significant impact on wildlife.
    Response. In publishing the proposed policy, the Agency indicated 
that its preliminary conclusion was that the proposal should be 
categorically excluded from documentation in an EA or EIS. However 
after reviewing the public comments received during the 60-day comment 
period, the Forest Service prepared an Environmental Assessment and 
based on a Finding of No Significant Impact (FONSI), has determined 
that an EIS is not needed. A copy of the environmental assessment, 
decision notice and FONSI may be obtained by calling the number listed 
earlier in this notice under FOR FURTHER INFORMATION CONTACT.
    7. Comment: Use of Special Use Permits. Several reviewers indicated 
that the agency should issue special use permits for baiting and that 
this process would alleviate some of the problems associated with bear 
baiting, such as litter.
    Response. As noted in the preamble to the proposed policy, some 
Forest Service units have used special use permits in the past to 
regulate baiting. However, the policy review that has been undertaken 
over the past few years has clearly shown that the issuance of special 
use permits is not appropriate. Specifically, the Forest Service 
special use authorization regulations at 36 CFR 251.50 exempt certain 
noncommercial use and occupancy, including [[Page 14722]] ``hunting,'' 
from the special use authorization requirement.
    This was the basis for the provision in the April 14, 1994 proposed 
policy stating, ``Special use authorizations shall not be issued for 
placing bait on National Forest System lands for hunting purposes (36 
CFR 251.50(c)).'' However, since the final policy now clearly indicates 
the circumstances and process by which the authorized officer may 
restrict or prohibit baiting through the use of closure orders, the 
explicit prohibition on the issuance of special use permits to regulate 
baiting is unnecessary and, therefore, has not been retained in the 
final policy.
    8. Comment: State Jurisdiction Over National Forest System Land. 
Many reviewers felt that State wildlife agencies should not be given 
control over hunting practices on NFS lands.
    Response. As noted in the notice of proposed policy, Federal land 
management statutes acknowledge the States' traditional role in 
managing fish and wildlife. The Forest Service, therefore, is generally 
reluctant to override State fish and wildlife regulation, except where 
Federal interest, such as protection of forest land, resources, and 
users, require Federal intervention. The practice of placing bait is a 
hunting activity subject to State laws and regulations and the final 
policy retains the explicit statement to this effect.
    9. Comment: Impact on Grizzly Bear and Other At Risk Species. One 
group indicated that it was greatly concerned about the direct and 
indirect danger of mortality posed to grizzly bear and other at-risk, 
threatened, and endangered species in the Greater Yellowstone Ecosystem 
by the practice of baiting for bear.
    Response. States as well as Federal agencies have extensive 
responsibilities under the Endangered Species Act to conserve resident 
species determined to be endangered or threatened. If State regulations 
are adequate to protect grizzly bears or any other threatened or 
endangered species, no action is needed by the Forest Service. The 
final policy will not allow any practices that would endanger any 
species. By interagency agreement, and the policy already stated in 
FSM, 2676.16b, for baiting for black bear hunting is as follows:

    ``Reduce the potential for preventable mortality on National 
Forest System lands by enforcing the Inter-agency [Grizzly Bear] 
Guidelines which specify no baiting for black bear hunting in areas 
designated as Management Situation 1(FSM 2676.11, ex. 1). Make this 
information available to hunters at Forest Service offices and at 
campsites in black bear hunting areas. Work with appropriate State 
wildlife law enforcement officials to ensure compliance.
    Work with State wildlife agencies toward the elimination of 
baiting for black bear hunting in Management Situation 2 areas where 
grizzlies are know or are likely to occur. Inform black bear hunters 
in Management Situation 2 areas about the risk of shooting a grizzly 
bear (as a result of mistaking it for a black bear) that may be 
attracted to the bait.''

    10. Comment: Human Health and Safety. A number of reviewers felt 
that baiting will cause an increase in conflicts between bears and 
people, creating human health and safety issues.
    Response. There is no evidence that baiting increases human-
wildlife conflicts; moreover, the final policy specifically provides 
that the Forest Service, may close an area to baiting in cases where a 
threat to human health and safety from conflicts with bears, are likely 
to arise.
    11. Comment: Impact on Other Wildlife. One frequently raised 
concern is that other species will be attracted to bait stations only 
to be shot or otherwise harmed. These respondents assert that baiting 
practices will lead to wildlife being conditioned to search for 
unnatural food sources, thereby increasing the prevalence of campsite 
raids and other conflicts.
    Response. It is possible that wildlife species other than black 
bears could be attracted to baits. Such an occurrence does not 
necessarily mean that the species would be either shot or harmed. 
Baiting actually improves the chance that the hunted species is clearly 
identified before being shot, and therefore should improve the chances 
that other species are not shot accidentally.
    Bears do not become conditioned to baits. Bear baits are temporary 
features. Once the bait is removed, bears revert to natural foods. 
However if the authorized officer determined that the State law and 
regulations on placement of bait are not adequate to protect other 
wildlife in a particular location, the area could be closed to baiting. 
The policy provides explicitly that the determination of the adequacy 
of State laws and regulations shall be 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.
    12. Comment: Ecosystem Management. A number of respondents 
commented that bear baiting has negative implications for ecosystem 
management and disrupts the social and ecological balance of the forest 
environment.
    Response. Where properly regulated, baiting is not known to affect 
ecological processes. Forest Service management of the National Forest 
System is aimed at promoting the sustainability of ecosystems. The 
Agency's land ethic is to promote the sustainability of ecosystems by 
ensuring their health, diversity, and productivity. Ecosystem 
management is based on resource sustainability and recognizes that 
people are part of ecosystem management. The Agency believes this is 
fully consistent with its purpose and mission and therefore no change 
is made to the policy in response to this concern.

Conclusion

    Having considered the comments received, the Forest Service is 
adopting a final policy on the use of bait on National Forest System 
lands. The policy retains the long-standing reliance on State 
regulation of baiting resident game. Where State law and regulation 
permit baiting the practice is permitted on National Forest System 
lands unless the authorized officer determines on a site specific basis 
that the practice conflicts with Federal laws or regulations, or forest 
plan direction, or would adversely affect other forest uses or users. 
The text of the final policy as it is being issued to Forest Service 
employees is set out at the end of this notice.

Environmental Analysis

    An environmental assessment was prepared to identify the 
environmental effects of this policy and three alternative baiting 
policies. A finding of no significant impact (FONSI) was made, 
documenting that there are no direct, indirect or cumulative 
significant impacts to the human environment arising from the 
implementation of this policy. A copy of the environmental assessment, 
finding of no significant impact, and decision notice will be sent to 
interested publics upon request.

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 policy has been reviewed under USDA procedures and Executive 
Order 12888 on Federal Regulations. It has been determined that this is 
not a significant policy.

    [[Page 14723]] Dated: March 15, 1995.
David G. Unger,
Associate Chief.
Forest Service Manual

Chapter 2640--Stocking and Harvesting Amendment No. 95-2600

(Note: The Forest Service organizes its directive system by alpha-
numeric codes and subject headings. Only those sections of the 
Forest Service Manual that are relevant to this notice are set out 
here. The final policy also 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 
on National Forest System lands are 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 land and resource management responsibilities of the 
Forest Service or that are inconsistent with direction in forest 
plans.
    2643.12--Use of Bait for Resident Game Hunting. The use of bait 
for the purpose of taking resident game on National Forest System 
lands in a hunting practice.
    The practice is prohibited on National Forest System lands where 
State hunting regulations prohibit its use. 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 
regulation, unless the authorized officer determines on a site-
specific basis that there is a need to prohibit or restrict the 
practice.
    1. The authorized officer shall continually monitor State 
hunting regulations with regard to the use of bait. A site-specific 
restriction or prohibition on baiting shall occur when the 
authorized officer determines that one or more of the following 
circumstances exists:
    a. The State laws and regulations on placement of bait are not 
adequate to protect forest land, other resources, or users in a 
particular location. The determination of the adequacy of State laws 
and regulations shall be based on consideration of the likely impact 
of baiting on such matters as water quality, public health and 
safety, the potential for litter, sanitation problems, or the 
potential to threaten the viability of wildlife;
    b. The effects of baiting are not consistent with direction in 
the applicable forest plan; and
    c. The State laws and regulations conflict with Federal law, 
such as the Endangered Species Act.
    2. Where the authorized officer determines that baiting must be 
restricted or prohibited, the following actions are necessary:
    a. The officer shall immediately inform the State fish and 
wildlife agency of the determination; and
    b. If, after consultation and coordination, the State is unable 
to resolve the matter with the Forest Service, the authorized 
officer shall close the area to baiting or otherwise restrict 
baiting by issuing an order pursuant to Part 261 of Title 36 of the 
Code of Federal Regulations (36 CFR Part 261).
    3. Where the hunting season is underway and it would be 
impracticable to issue an order to close an area to baiting, the 
authorized officer shall take such measures as appropriate and 
practicable to ensure consistency with forest plan management 
direction; compliance with Federal laws, orders, and regulations; 
and protection of forest users and resources. For example, the 
officer might close a road or gate to restrict access.
    Closure of an area to baiting 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 as may be necessary to ensure resource 
protection. Also hunter education programs could be implemented in 
consultation with the State agencies.
    The policy in this section, in and of itself, does not compel an 
authorized officer to undertake a specific decision to allow baiting 
on National Forest System lands in those States where the practice 
is permitted. Nothing in this section shall be construed to affect 
valid existing treaty rights of American Indian Tribes. 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 (FSM 2610).

[FR Doc. 95-6904 Filed 3-17-95; 8:45 am]
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