[Federal Register Volume 61, Number 57 (Friday, March 22, 1996)]
[Proposed Rules]
[Pages 11805-11806]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7025]



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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 20

RIN 1018-AD74


Migratory Bird Hunting: Regulations Regarding the Prohibition 
Against Artificially Altering or Manipulating Natural Vegetation in 
Moist Soil Areas To Attract Waterfowl for Hunting Purposes

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of intent and request for comments.

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SUMMARY: The principal purpose of this action is to notify the public 
and invite comments regarding promulgation of a separate rulemaking 
that will govern the manner in which, or if at all, natural vegetation 
in moist soil areas may be altered or manipulated artificially to 
attract waterfowl for hunting purposes. Previously, the subject 
regulations [Sec. 20.21(i)] had been part of the ongoing review of 50 
CFR Part 20, but henceforth will be considered separately.

DATES: Comments on this proposal must be received by June 20, 1996.

ADDRESSES: Comments regarding this notice should be addressed to: 
Director (FWS/NAWWO), U.S. Fish and Wildlife Service, 110 ARLSQ, 1849 C 
ST., NW., Washington, DC 20240. Comments received on this notice will 
be available for public inspection during normal business hours in Room 
110, Arlington Square Building, 4401 No. Fairfax Drive, Arlington, VA 
22203.

FOR FURTHER INFORMATION CONTACT:
Dr. Byron K. Williams, Executive Director, or Dr. Keith A. Morehouse, 
Wildlife Biologist, North American Waterfowl and Wetlands Office, 703/
358-1784; Faxform 703/358-2282.

SUPPLEMENTARY INFORMATION: The Service is currently undertaking review 
and revision of the migratory bird hunting regulations contained in 50 
CFR Part 20; there have been two earlier notices regarding this review 
(56 FR 57872; 58 FR 63488). Publication of the proposed rule that 
incorporates and/or takes into consideration comments submitted as part 
of that review will occur soon.
    In the Part 20 review process, the Service has received many 
comments concerning waterfowl baiting. In particular, many commenters 
have expressed the need for changes in regulations addressing 
manipulation of natural vegetation in moist soil areas to attract 
waterfowl for hunting. Based on these comments, the Service proposes 
opening for further review and comment only the particular waterfowl 
baiting that occurs with natural vegetation in moist soil areas. 
However, it would not be judicious to treat a single concern of 
waterfowl baiting in isolation. Thus, the Service further proposes to 
remove the entire waterfowl aspect of the baiting regulations from the 
broader review of migratory bird hunting regulations and treat it as a 
separate rulemaking. Subsequently, the additional review of the 
manipulation of natural vegetation on moist soil areas will be 
incorporated with other aspects of waterfowl baiting in a single, 
proposed rulemaking.
    Waterfowl baiting has been an issue for years, possibly extending 
back to the inception of the regulations and there is a wide diversity 
of opinion on the subject. Some see the baiting regulations as highly 
definitive and clear; others believe that they lack definition and 
subject to broad, individual interpretation. The concern is how and 
whether to consider changing the waterfowl baiting regulations to allow 
for management (i.e., mowing or other artificial manipulation) of 
natural vegetation for waterfowl habitat. There are four key issues:
    (1) What are the potential impacts on available habitat? Supporters 
of a regulatory change suggest that the regulations as currently 
enforced impose unnecessary economic burdens on landowners (e.g., by 
altering otherwise cost-effective mowing schedules). As a result, some 
groups argue that the current baiting regulations will lead to loss of 
waterfowl habitats as landowners transfer these lands to other uses. 
Though such losses may occur, at present there is no way to determine 
their magnitude and importance.
    (2) What are the potential impacts on waterfowl populations? 
Waterfowl harvest is likely to increase; however, the magnitude of the 
increase and resulting impacts on populations are open to speculation 
since little or no evidence exists to support a position.
    (3) What are the potential impacts on law enforcement? Any change 
must be enforceable by law enforcement personnel and clearly define 
what constitutes ``natural vegetation.'' Hunters must be able to 
clearly recognize what is lawful and what is not lawful, so that law 
enforcement agents are not in the position of certifying areas as legal 
for hunting, or trying to enforce rules that are unclear and subject to 
wide individual interpretation.
    (4) What is the effect on existing law? Courts have interpreted the 
current baiting regulations in a number of decisions. These judicial 
opinions add to the ability of those concerned with the regulations to 
determine accurately the scope of their prohibitions. Any change to the 
regulations would render some of this existing case law inapplicable 
and, therefore, would at least temporarily increase the degree of 
uncertainty associated with the regulations.
    The Service is not offering strategies or options to resolve the 
issue at this time. The intent of this notice is to apprise the public 
that the Service is beginning a process to review and may propose to 
change the baiting regulations as they apply to natural vegetation 
manipulation and waterfowl hunting. At a later date, the Service will 
provide more detail on the nature of the process and how the Service 
proposes to involve the public.
    You may at any time submit preliminary comments regarding whether 
revision of the waterfowl baiting regulations is desirable. However, 
the Service does plan to publish a proposed rule during which specific 
comments will be solicited. In addition, the Service will consider in 
future proposed rulemakings any comments received in response to 
previous notices (referenced earlier in this section) pertaining to 
waterfowl baiting and moist soil management.
    In summary, the principal purpose of this action is to notify the 
public and invite any comments regarding promulgation of separate 
rulemakings that will govern the manner in which, or if at all, natural 
vegetation in moist soil areas may be altered or manipulated 
artificially to attract waterfowl for hunting purposes.

NEPA Consideration

    Pursuant to the requirements of section 102(2)(C) of the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4332(C)), and the 
Council on Environmental Quality's regulation for implementing NEPA (40 
CFR 1500-1508), the Service will comply with NEPA prior to adopting a 
final rule.

Endangered Species Act Considerations

    Section 7 of the Endangered Species Act (ESA), as amended (16 
U.S.C. 1531-1543; 87 Stat. 884), provides that, ``The Secretary shall 
review other programs

[[Page 11806]]
administered by him and utilize such programs in furtherance of the 
purposes of this Act'' (and) shall ``insure that any action authorized, 
funded or carried out * * * is not likely to jeopardize the continued 
existence of any endangered species or threatened species or result in 
the destruction or adverse modification of (critical) habitat * * *'' 
Consequently, the Service will initiate Section 7 consultation under 
the ESA for the final rulemaking to change, if appropriate, the 
waterfowl baiting regulations. When completed, the results of the 
Service's consultation under Section 7 of the ESA may be inspected at, 
and will be available from, the North American Waterfowl and Wetlands 
Office, Suite 110, 4401 North Fairfax Drive, Arlington, Virginia 22203.

Authorship

    The primary author of this notice is Dr. Keith A. Morehouse, U.S. 
Fish and Wildlife Service, North American Waterfowl and Wetlands 
Office, Arlington, Virginia.

List of Subjects in 50 CFR Part 20

    Exports, Hunting, Imports, Reporting and recordkeeping 
requirements, Transportation, Wildlife.

    The regulation(s) that eventually may be promulgated to govern 
baiting are authorized under the Migratory Bird Treaty Act (July 3, 
1918), as amended (16 U.S.C. 703-711); the Fish and Wildlife 
Improvement Act of 1978 (November 8, 1978), as amended (16 U.S.C. 712); 
and the Fish and Wildlife Act of 1956 (August 8, 1956), as amended (16 
U.S.C. 742 a-d and e-j).

    Dated: March 15, 1996.
George T. Frampton,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 96-7025 Filed 3-21-96; 8:45 am]
BILLING CODE 3410-55-M