[Federal Register Volume 63, Number 57 (Wednesday, March 25, 1998)]
[Proposed Rules]
[Pages 14415-14420]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-7686]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 20

RIN 1018-AD74


Migratory Bird Hunting: Regulations Regarding Baiting and Baited 
Areas

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The Service proposes to clarify and simplify the migratory 
game bird hunting regulations regarding baiting. The Service is 
proposing these changes after an extensive review of the current 
regulations and in response to public concern about interpretation and 
clarity of the current regulations, especially with respect to current 
migratory bird habitat conservation practices (i.e., moist-soil 
management).
    The Service proposes new regulatory language for: Accidental 
scattering of agricultural crops or natural vegetation incidental to 
hunting, normal agricultural and soil stabilization practices, baited 
areas, baiting, manipulation, natural vegetation, and top-sowing of 
seeds. Proposed changes include new guidance with respect to hunting 
over natural vegetation that has been manipulated.
    The Service invites public comment on this proposed rulemaking and 
will carefully review and consider all comments received prior to any 
final rulemaking.

DATES: Comments on this proposed rulemaking must be received by May 26, 
1998.

ADDRESSES: Comments regarding this proposed rulemaking should be 
addressed to: Director, U.S. Fish and Wildlife Service, Post Office Box 
3247, Arlington, Virginia 22203-3247. Comments may be hand delivered to 
4401 North Fairfax Drive, Suite 500, Arlington, Virginia 22203. The 
public may inspect comments during normal business hours at 4401 North 
Fairfax Drive, Suite 500, Arlington, Virginia 22203.

FOR FURTHER INFORMATION CONTACT: Kevin Adams, Chief, Division of Law 
Enforcement, telephone 703/358-1949, or Paul Schmidt, Chief, Office of 
Migratory Bird Management, telephone 703/358-1714.

SUPPLEMENTARY INFORMATION:

Background

    The Fish and Wildlife Service (Service) has authority (16 U.S.C. 
703-712 and 16 U.S.C. 742a-j) to regulate activities involving the 
hunting and other taking of migratory game birds. The Service has 
promulgated regulations (50 CFR part 20) for the hunting of migratory 
game birds that includes sections for Methods of Take and Definitions 
of Terms.
    First established in 1935, the migratory game bird hunting 
regulations have been substantially modified over the last 60 years to 
allow more effective management of migratory game bird populations and 
to respond to public concerns. The Service last modified the portion of 
the regulations specific to baiting and hunting over baited areas [50 
CFR 20.21(i)] in 1973.
    The Service has recently received comments from various State 
wildlife management agencies, the general public, hunters, and 
conservation organizations to the effect that the baiting regulations 
are outdated, unclear, and difficult for the general public to 
interpret and understand. While the Service is attempting to simplify 
and clarify the regulations in this proposed rulemaking, the Service 
must also ensure that any proposed changes will both provide continued 
control over unlawful baiting activities and encourage habitat 
conservation and management for the benefit of migratory birds.
    In 1991, the Service published its intent to review multiple 
wildlife regulations, including the regulations covering migratory 
birds, in a Federal Register notice dated November 14, 1991 (56 FR 
57872). Subsequently, in a Federal Register notice dated December 1, 
1993 (58 FR 63488), the Service published its intent to further review 
the migratory bird regulations in 50 CFR parts 20 and 21, subpart D. On 
March 22, 1996, the Service announced its intent in the Federal 
Register (61 FR 11805) to review the migratory bird hunting regulations 
specific to waterfowl baiting separately from review of other portions 
of the regulations pending Service assessment of the moist-soil 
management aspect (manipulation of natural vegetation). However, the 
Service has recently decided that in order to achieve the necessary 
clarity and simplicity in the current regulations, it should review the 
baiting regulations for all migratory game birds, not just waterfowl. 
All of the public comments received by the Service in response to the 
prior Federal Register notices have been carefully considered during 
development of this proposed rule.
    In addition to the Federal Register notices detailed above inviting 
public comments, on March 22, 1996, the Service requested the 
International Association of Fish and Wildlife Agencies (International) 
to review waterfowl baiting issues involving moist-soil management and 
make recommendations to the Service. In developing its recommendations, 
the Service suggested that the International would likely need a 
working group that represented a broad range of use interests. In May 
1997, the International submitted comments to the Service that have 
been reviewed and considered during development of this proposed rule.

Overview of Proposed Changes

    The Service proposes to add new definitions to 50 CFR 20.11, 
Meaning of Terms, for the following terms: baited area, baiting, 
manipulation, natural vegetation, and normal agricultural and soil 
stabilization practice. The purpose of these additions to section 20.11 
is to provide a base of reference for terminology used in the 
regulation and to remove perceived ambiguity about what the Service 
means when using a particular term. For simplification of the 
regulations, the Service also proposes to add new language to section 
20.21(i), Methods of Take, regarding baited areas and baiting.

    The Service is proposing new regulatory language to address 
situations involving the accidental scattering of grains or seeds from 
agricultural crops or natural vegetation incidental to a migratory game 
bird hunter's activities. Specific concerns include entering or exiting 
hunting areas, placing decoys, retrieving downed birds, and using 
natural vegetation to camouflage blinds.


[[Page 14416]]


    Current exemptions allow for the hunting of migratory game birds 
over agricultural lands, and separate those practices allowed for the 
hunting of waterfowl from those allowed for the hunting of other 
migratory game birds, such as doves. In this rule, the Service proposes 
to consolidate the different practices into one term normal 
agricultural and soil stabilization practice that is intended to apply 
to the hunting of all migratory game birds. The Service is not 
proposing to change the current exemption in the regulation that allows 
the hunting of migratory game birds, except waterfowl, over wildlife 
management food plots that have been manipulated. However, in addition 
to the words except waterfowl, the Service is proposing to exclude 
cranes as well by changing the language to read except waterfowl and 
cranes.''
    The Service is proposing a new prohibition that would apply to the 
hunting of all migratory game birds over any area that has been planted 
by means of top sowing (including aerial application) where seeds 
remain on the surface of the ground as a result. The Service is 
proposing that this prohibition apply regardless of the purpose of the 
seeding, and proposes to explicitly exclude top sowing from the 
proposed definition of normal agricultural and soil stabilization 
practice.
    The Service has long supported and encouraged the use of moist-soil 
management to benefit wildlife by providing important food and habitat. 
While the Service believes it is very important to continue 
encouragement of this valuable practice on both public and private 
lands, clear guidance on what constitutes baiting should accompany this 
encouragement. Currently, hunting over manipulated moist soil areas 
could be considered illegal since seeds can be made available to 
waterfowl as a result of a manipulation. To address moist-soil 
management issues, the Service proposes to distinguish between those 
moist-soil practices that will constitute baiting for migratory birds 
and those that will not. The Service is proposing to provide for the 
hunting of waterfowl and cranes over natural vegetation that has been 
manipulated, provided that the manipulations are conducted within 
specified parameters. The hunting of migratory game birds other than 
waterfowl and cranes will not be restricted as a result of any such 
manipulation.
    As a related issue, the Service is proposing specific regulatory 
changes dealing with millet species. Millet, which is easily and 
readily naturalized, is somewhat unique in that it has applications for 
both agricultural and wildlife management (i.e., moist-soil management) 
purposes. After careful consideration and review, the Service has 
decided to include millet species in its proposed definition of natural 
vegetation.
    Violations of the Migratory Bird Treaty Act constitute criminal 
offenses and because of this, since 1916 the MBTA has provided 
significant protection to migratory birds. Enforcement of its 
regulations includes application of a ``strict liability'' doctrine. 
Under strict liability, the fact that a person acted in such a way as 
to cause a prohibited result is sufficient basis to impose liability. 
Thus, in the prosecution of a strict liability crime, the government 
need not prove ``scienter'' (that the accused knew that he or she was 
violating the law) or even that the accused should have known he or she 
was violating the law.
    In 1978, the Fifth Circuit Court of Appeals took exception to the 
strict liability standard in the judicial decision U.S. v. 
Delahoussaye, 572 F.2d 910 (5th Cir. 1978). In this decision, the court 
found that a hunter must make a determination prior to hunting about 
the legality of a hunting area and the presence or absence of any bait, 
and a law enforcement officer must show that a hunter knew or should 
have known about any bait. In 1993, in the Fifth Circuit judicial 
decision U.S. v. Garrett (5th Cir. 1993, No. 92-3483), the court 
revisited Delahoussaye and found evidence that it was, in fact, 
contrary to the intent of a subsequent Congress.
    Other Federal courts have repeatedly upheld application of the 
strict liability doctrine. In U.S. v. Schultz, 28 F. Supp. 234 (W.D. 
Kentucky 1939), the court stated: ``The beneficial purpose of the 
treaty and the act would be largely nullified if it was necessary on 
the part of the government to prove the existence of scienter on the 
part of defendants accused of violating the provisions of the act.'' In 
Holdridge v. United States, 282 F.2d 302 (8th Cir. 1960), the court 
stated that strict liability was utilized to ``enact the broad policy 
of protecting an important natural resource, migratory game birds.'' In 
U.S. v. Miller, unpublished (D. Ariz. 1982), the court stated: ``The 
importance of the goal of preserving certain migratory birds in our 
environment, the difficulty the government would have in enforcing its 
laws if it were required to prove scienter * * * and the contemplated 
leniency of the sentence need all be considered.'' In written testimony 
to the United States Congress in 1984, Judge Frederic Smalkin, District 
of Maryland, wrote: ``In addition to being a shield for the innocent, 
such a requirement [to prove scienter] could be a windfall for the 
guilty, in view of the difficulty of proving scienter beyond a 
reasonable doubt * * *. The requirement of proving scienter would 
effectively curtail enforcement of the prohibition of baiting.'' These 
are provided as mere samples of a strong foundation of existing case 
law that supports application of the strict liability doctrine.
    At this time, no changes are proposed in the application of strict 
liability to the migratory game bird baiting regulations. However, the 
Service recognizes that the application of the strict liability 
standard to the baiting regulations is of concern to many hunters. 
Unlike other Federal wildlife laws that provide for both criminal and 
civil remedies, the Migratory Bird Treaty Act is limited to criminal 
penalties. The Service invites comments that identify alternatives to 
the existing penalty provisions dealing with these regulations.
    The Service is the principal Federal agency responsible for 
conserving, protecting, and enhancing fish and wildlife and their 
habitats for the continuing benefit of all American people. As such, 
the Service must give due regard not only to the interests of migratory 
bird hunters but to the interests of all groups. Any other action would 
conflict with the Service's ability to be fair, impartial, and 
equitable in accomplishing its mission, and would serve to undermine 
enforcement efforts and negatively impact migratory birds and their 
habitat. For example, the doctrine of strict liability applies equally 
to hunters, who enjoy the privilege of hunting migratory game birds, 
and to industrial and agricultural entities, whose combined actions 
create the potential for far-reaching impact on migratory birds and 
their habitat.
    Awareness of the strict liability standard has been important in 
initiating changes in agricultural and industrial practices to protect 
migratory birds. For example, the chemical industry has made changes in 
the manufacture and use of pesticides that are toxic and deadly to 
migratory birds. In order to comply with the strict liability standard, 
the electric power industry has taken steps to prevent electrocution 
and power line strikes to migratory birds; the agriculture community 
modifies farming practices to prevent the accidental loss of migratory 
birds due to pesticide poisonings; the petroleum and mining industries 
have implemented measures to prevent contamination to migratory

[[Page 14417]]

birds at petroleum pits, open oil pits, and cyanide leach operations; 
the commercial aquaculture industry modifies its operations to reduce 
bird mortality; and developers monitor construction sites to avoid 
destruction to migratory birds, their habitat, nests, and young.
    The strict liability doctrine has long been recognized in Federal 
courts throughout the Nation as a reasonable and necessary element in 
protecting the Nation's valuable migratory bird resource. The Supreme 
Court discussed the necessity for application of the strict liability 
doctrine in ``public welfare offenses,'' such as violations of the 
migratory bird regulations, finding that since an injury is the same no 
matter the intent of the violator, intent is not specified as a 
necessary element of the offense [see Morissette v. United States, 342 
U.S. 246 (1952)].

Overview--Description of Proposed Regulations Accidental 
Distribution and Scattering of Grains or Seeds Incidental to 
Hunting

    While the Service does not believe that the accidental distribution 
and scattering of grains or seeds occurring incidental to migratory 
game bird hunting has been an enforcement problem in the past, the 
proposed regulation addresses concerns and provides clarity to law 
enforcement officers and hunters alike. Therefore, areas where grains 
or seeds from agricultural crops or natural vegetation have been 
accidentally scattered as a result of hunters entering or exiting 
areas, placing decoys, or retrieving downed birds will not be 
considered baited areas.

Natural vegetation

    North America has lost many of its original wetlands in the last 
200 years. Dahl (1990) estimates that 22 States have lost over 50%, and 
11 States have lost over 70%, of their original wetlands. Overall, 
about 53% of the original wetlands in the lower 48 States have been 
lost (Dahl and Johnson, 1991). In many of the remaining wetlands, 
large-scale land-use changes have often altered the natural water 
regime to the point that many wetlands are no longer functional. The 
Service believes that one of the most important factors affecting 
waterfowl and other migratory bird populations is the amount and 
availability of quality habitat.
    Because of the extensive loss and alteration of wetlands, managers 
have intensively managed remaining wetland areas to maximize their 
value to wildlife, especially migratory birds, through moist-soil 
management. Moist-soil management, or the management of man-made, 
seasonally flooded impoundments, is a technique that uses manipulation 
of soil, water, and vegetation to enhance habitat for migratory birds. 
Modern moist-soil management includes water level manipulation, mowing, 
burning, and other practices to: (1) Encourage production of moist soil 
plants for use by wildlife; (2) promote the production of invertebrate 
and vertebrate food sources; (3) control undesirable plants; and (4) 
increase biological diversity. Moist-soil plants provide essential 
nutritional requirements, consistently produce more pounds and 
diversity of food per acre than agricultural crops, provide seed that 
are more nutritionally complete and resistant to decay when flooded 
(providing longer and more constant use by waterfowl), and are more 
economical and efficient to manage than agricultural crops.
    To address moist-soil management issues, the Service is proposing 
several regulatory changes to ensure that this valuable wildlife 
management practice continues to be encouraged while also clarifying 
what constitutes baiting. The proposed regulations provide several new 
definitions and parameters that attempt to make it clear to the public 
how natural vegetation may be manipulated for moist-soil management 
purposes and subsequently hunted over.
    The Service proposes to define natural vegetation as any non-
agricultural, native, or naturalized plant species, including millet, 
that grows at a site in response to planting or from existing seeds or 
other propagules. This definition is not intended to include plants 
grown as agricultural crops.
    In determining how any proposed regulatory changes should deal with 
millet, the Service recognizes that millet species have both 
agricultural and moist-soil management purposes. Millet is readily 
naturalized and can be an important food source for migrating and 
wintering waterfowl. Because of these valuable wildlife management 
traits, the Service believes that the potential benefits justify 
including millet in the proposed definition of natural vegetation. 
Therefore, the Service is proposing to treat millet species separately 
from agricultural crops and include millet in the proposed definition 
for natural vegetation.

Manipulation

    Because the term is an important component of the proposed 
regulation, the Service is proposing to add a new definition for 
manipulation. The proposed definition for manipulation is mowing, 
shredding, discing, rolling, chopping, trampling, flattening, or 
wetland-associated plant propagation techniques. The term manipulation 
will not include the distributing or scattering of grain, salt, or 
other feed once it has been removed from or stored on the field where 
grown. The Service intends that the proposed definition for 
manipulation apply both to natural vegetation and agricultural crops.

Manipulation of Natural Vegetation

    The Service recognizes that the artificial maintenance and 
restoration of natural vegetation through moist-soil management often 
creates important habitat for waterfowl and other migratory bird 
species. The Service intends that any proposed changes to the 
regulations regarding natural vegetation should be readily understood, 
enforceable, and provide flexibility for habitat managers to perform 
wildlife management practices beneficial to breeding, migrating, and 
wintering migratory birds.
    The Service acknowledges that the current regulations were not 
intended to prevent the manipulation of naturally vegetated areas or to 
discourage moist-soil management practices of benefit to migratory 
birds. However, the Service recognizes that there appears to be some 
disagreement over the interpretation of the current regulations 
regarding moist-soil management, and that this disagreement could 
potentially discourage the maintenance and/or restoration of wetland 
areas. Therefore, the Service is proposing to expressly provide for the 
hunting of waterfowl and cranes in areas where natural vegetation, 
including millet, has been manipulated in accordance with certain 
restrictions. The Service is proposing no restrictions on the 
manipulation of natural vegetation when hunting migratory game birds 
other than waterfowl and cranes.
    Several commenters pointed out that in wetland situations under 
ideal conditions some improved varieties of natural vegetation can 
outproduce their wild counterparts. While seed retention rarely rivals 
that of agricultural crops, seeds from natural vegetation can persist 
in the environment for long periods of time after the manipulation of 
such plants. In recognition of this difference, some recommended that 
certain wetland plants that have been planted (as opposed to grown 
naturally), could not be hunted over for 10 days following any 
alteration (i.e., manipulation). While the Service agrees that some 
time restriction is necessary (for the reasons outlined above), the 
Service also believes that any change in

[[Page 14418]]

the regulations should be clear, consistent, enforceable, and easily 
understood by the public. Thus, the Service is proposing to treat all 
natural vegetation, whether or not it is planted, in the same manner.
    The Service is proposing that any natural vegetation may be 
manipulated and subsequently hunted over, provided that: (1) The 
manipulation must be completed 10 days prior to any waterfowl season, 
and (2) the manipulation is not done during any open waterfowl season. 
The Service believes that this proposed change will accomplish several 
objectives. First, it provides for the manipulation of planted natural 
vegetation areas (i.e., moist-soil management areas) while also 
allowing subsequent hunting. Second, it provides the public with a 
clear, specific cut-off date for legal manipulation of such areas, if 
such areas are to be hunted. Third, it provides multiple opportunities 
to manipulate the same area during the fall and winter. This is 
especially important in those areas where there may be long breaks in 
between waterfowl seasons, such as a September teal season and the 
regular waterfowl season. Fourth, it provides law enforcement with 
clear time periods when manipulations are not allowable if such areas 
are to be hunted. And finally, it does not require a determination of 
whether the area has been planted or naturally grown, and does not have 
different requirements for different plant species.

Normal Agricultural and Soil Stabilization Practice

    In response to public concerns about the need for greater clarity 
and consistency when interpreting the regulation covering those 
agricultural practices that are and are not allowed when hunting 
migratory game birds, the Service is proposing new regulatory language. 
The proposed new term to apply to all agricultural activities is normal 
agricultural and soil stabilization practice. This proposed term would 
replace the agricultural terms in the current regulations (i.e., normal 
agricultural planting and harvesting for waterfowl hunting, and bona 
fide agricultural operations for the hunting of other migratory game 
birds, such as doves). In addition, the proposed new term would add 
language to allow post-harvest manipulation activities (such as discing 
or mowing stubble after harvest and removal of grain) and soil 
stabilization practices. The proposed term, like the terms it replaces, 
is intended to apply to the hunting of all migratory game birds over 
agricultural fields.
    In the new definition of normal agricultural and soil stabilization 
practice, the Service is proposing to include specific language 
providing for the Service to rely upon recommendations by the U.S. 
Department of Agriculture (USDA) for determinations with respect to 
planting, harvesting, post-harvest manipulation, and soil stabilization 
practices. This proposed language will codify current Service policy, 
and provide the public with a reliable and consistent source of 
guidance when making determinations about the legality of hunting in 
agricultural areas. Each year, USDA State specialists, through the 
cooperative agricultural extension services, make agricultural 
recommendations that are readily available to farmers, landowners, and 
the general public. By codifying the role of the USDA, the Service 
proposes to recognize USDA's State specialists across the United States 
as an authority on agricultural matters. Since 1980, the Service has 
relied upon these specialists for assistance with questions on 
agricultural practices.
    Some commenters suggested that the term normal used in the current 
regulations was too vague and that the term accepted was a more 
accurate representation when referring to agricultural operations and 
procedures. While the final responsibility for determining the 
conditions by which migratory birds may be harvested remains with the 
Service, this new definition that relies on recommendations and 
determinations of USDA State specialists can provide the public with 
clear and concise direction for obtaining guidance on agricultural 
practices and their compatibility with migratory game bird hunting.

Baiting

    The Service is proposing to add a new definition for baiting to the 
Meaning of Terms section of the regulation. The term baiting will be 
defined as the direct or indirect placing, exposing, depositing, 
distributing, or scattering (other than by controlling flooding or 
water levels) of salt, grain, or other feed capable of attracting 
migratory game birds that could serve as a lure or an attraction to, 
on, or over any areas where hunters are attempting to take them. This 
definition differs from the language in the Hunting Methods section of 
the current regulation only in that it is shorter and more concise. The 
current wording shelled, shucked, unshucked corn wheat or other grain, 
salt, or other feed will become salt, grain, or other feed. In 
addition, the language in the current regulation so as to constitute 
for such birds a lure, attraction or enticement to is proposed to be 
shortened by elimination of the word enticement and replacement of the 
words so as to with that could. Finally, the proposed definition 
clarifies that the controlling of flooding and water levels does not 
constitute baiting.

Baited Area, Top-Sown Seeds

    To ensure compliance with the baiting laws, the current regulation 
requires hunters, landowners, or law enforcement officers to determine 
whether a hunting area has been subjected to a normal agricultural 
planting or harvesting, bona fide agricultural operation, or wildlife 
management practice. When assessing the legality of a hunting 
situation, the Service recognizes that, at times, it may be difficult 
to properly determine if a top-sown area has been planted as a normal 
agricultural planting or has been planted to lure migratory game birds 
to hunters illegally attempting to take them. Therefore, the Service is 
proposing to prohibit the taking of all migratory game birds over any 
lands where planting by top sowing of seeds (including aerial seeding) 
has occurred where seeds remain on the surface of the ground as a 
result. Any such area will be considered baited and will remain so for 
ten days following complete removal of all seeds from the surface of 
the land. The Service believes that this prohibition will allow hunters 
and others to more easily and readily determine the legality of a 
hunting area.

Hunting of Doves and Pigeons

    This proposed rule directly affects the hunting of all migratory 
game birds, including doves and pigeons, with respect to the proposed 
prohibition on hunting over any top-sown area (see top-sown seeds 
discussion above). The Service is not proposing any change to the 
current exemption that allows hunting of migratory game birds, other 
than waterfowl and cranes, over agricultural crops that have been 
manipulated for wildlife management purposes. Further, the proposed 
definition for the term manipulation is intended to apply to both 
natural vegetation and agricultural crops.

Hunting of all Migratory Game Birds

    This proposed rule maintains the current prohibition on hunting any 
migratory game bird over any areas where the placing, exposing, 
depositing, distributing, or scattering of grains, salt, or other feed 
has occurred once they are removed from or stored on the field where 
grown. This proposed rule would continue to allow the hunting of all

[[Page 14419]]

migratory game birds over an agricultural field that has been planted 
or harvested in a normal manner, in accordance with the proposed 
definition for normal agricultural and soil stabilization practice.
    The Service is proposing to maintain the current ten-day rule with 
respect to baiting and baited areas. The ten-day rule considers an area 
baited for ten days following complete removal of any salt, grain, or 
other feed that is capable of luring or attracting migratory game birds 
to, on, or over areas where hunters are attempting to take them.

Required Determinations

Paperwork Reduction Act of 1995 (Pub. L. 104-13)

    The Service has examined this proposed rule under the Paperwork 
Reduction Act of 1995 and has found it to contain no information 
collection requirements for which Office of Management and Budget 
review is required.

Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) and Unfunded 
Mandates (Executive Order 12875)

    There are no credible scenarios in which this proposed rule could 
result in a significant annual effect on the economy of $100 million or 
more. The U.S. Department of Agriculture independently accomplishes the 
publishing, distributing, and periodically updating of its agricultural 
determinations, and this is the only identifiable cost associated with 
this proposed rule. Likewise, there are no foreseen significant adverse 
effects on the economy. Therefore, the Service has determined and 
certified pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502 
et seq., that this rulemaking will not impose a cost of $100 million or 
more in any given year on local or State governments or private 
entities.

Economic Effects (Excecutive Order 12866)

    This proposed rule is a wide-ranging update to the current 
regulations governing migratory game bird hunting. The changes clarify 
definitions and simplify language, thereby benefitting both law 
enforcement officers and the hunting public by improving the efficiency 
of enforcement and protection to migratory bird resources. This 
proposed rule is not subject to Office of Management and Budget review 
under Executive Order 12866.

Endangered Species Act Considerations

    Section 7 of the Endangered Species Act (ESA) of 1972, as amended 
(16 U.S.C. 1538 et seq.) provides that Federal agencies 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 * * *'' The Service has initiated a Section 7 
consultation under the ESA for this proposed rule. The result of the 
Service's consultation under Section 7 of the ESA will be available to 
the public at the location indicated under the ADDRESSES caption.

Regulatory Flexibility Act Determination (5 U.S.C. 601)

    This proposed rule will make minor changes in the existing basic 
regulation for migratory game bird hunting and will have no significant 
effect on small entities. No dislocation or other local effects, with 
regard to hunters and others, are likely to occur. The proposed changes 
in this rule are intended to provide clarity, simplify methods whereby 
migratory game birds may be taken, and add new definitions for terms 
used in part 20. The Service will rely upon State specialists of the 
U.S. Department of Agriculture for determinations on normal 
agricultural and soil stabilization practices when questions arise. 
Accordingly, Service review of this rulemaking under the Regulatory 
Flexibility Act of 1980 (5 U.S.C. 601 et seq.) has revealed that it 
will not have a significant effect on a substantial number of small 
entities, which includes small businesses, organizations and small 
government jurisdictions.

Civil Justice Reform (Executive Order 12988)

    The Department, in promulgating this proposed rule, has determined 
that these regulations meet the applicable standards provided in 
Section 3(a) and 3(b)(2) of Executive Order 12988.

Environmental Effects (National Environmental Policy Act--42 U.S.C. 
4321 et seq.)

    The Service has determined that National Environmental Policy Act 
documentation is not required because the proposed rule qualifies as a 
categorical exclusion under the Department of the Interior's NEPA 
procedures in 516 DM 2, Appendix 1.10.

List of Subjects in 50 CFR Part 20

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

Regulation Promulgation

    For the reasons set out in the preamble, the Service proposes to 
amend Title 50, Chapter I, subchapter B of the Code of Federal 
Regulations as set forth below:

PART 20--MIGRATORY BIRD HUNTING

    1. The authority citation for part 20 continues to read as follows:

    Authority: 16 U.S.C. 703-712, 16 U.S.C. 742a-j.

    2. Revise section 20.11 by adding new paragraphs (g), (h), (i), 
(j), and (k) to read as follows:


Sec. 20.11  Meaning of terms.

* * * * *
    (g) Normal agricultural and soil stabilization practice means 
planting, harvesting, and post-harvest manipulation and soil 
stabilization practices as recommended by State specialists of the 
cooperative extension service of the U.S. Department of Agriculture, 
except that for the purposes of this part planting by means of top 
sowing (including aerial seeding) is not to be considered a normal 
agricultural or soil stabilization practice.
    (h) Baited area means any area containing salt, grain, or other 
feed capable of attracting migratory game birds that is placed, 
exposed, deposited, distributed, or scattered (other than controlling 
of flooding or water levels) that could serve as a lure or attraction 
for such birds to, on, or over areas where hunters are attempting to 
take them. Such areas will remain a baited area for ten days following 
complete removal of all such salt, grain, or other feed.
    (i) Baiting means direct or indirect placing, exposing, depositing, 
distributing, or scattering (other than by controlling of flooding or 
water levels) of salt, grain, or other feed capable of attracting 
migratory game birds that could serve as a lure or attraction to, on, 
or over any areas where hunters are attempting to take them.
    (j) Manipulation means mowing, shredding, discing, rolling, 
chopping, trampling, flattening, or wetland-associated plant 
propagation techniques with respect to natural vegetation and 
agricultural crops. The term manipulation does not include the 
distributing or scattering of grain or other feed once it has been 
removed from or stored on the field where grown.
    (k) Natural vegetation means any non-agricultural, native, or 
naturalized plant species, including millet, that grows at a site in 
response to planting or from existing seeds or other propagules.

[[Page 14420]]

    3. Amend Sec. 20.21 by revising paragraph (i) to read as follows:


Sec. 20.21  Hunting methods

* * * * *
    (i) By the aid of baiting or on or over any baited area. However, 
nothing in this paragraph shall prohibit:
    (1) The taking of all migratory game birds on or over areas where 
grains or seeds from agricultural crops or natural vegetation have been 
accidentally scattered incidental to hunters entering or exiting areas, 
placing decoys, or retrieving downed birds.
    (2) The taking of all migratory game birds on or over standing 
crops, flooded standing crops (including aquatics), flooded harvested 
croplands, grain crops properly shocked on the field where grown, or 
grains found scattered solely as the result of a normal agricultural 
and soil stabilization practice;
    (3) The taking of migratory game birds, except waterfowl and 
cranes, on or over any lands or areas where salt, grain, or other feed 
has been distributed or scattered as a result of manipulation of an 
agricultural crop or other feed on the land where grown for wildlife 
management purposes, or as a result of manipulation of natural 
vegetation;
    (4) The taking of waterfowl and cranes on or over natural 
vegetation that has been manipulated; Provided that the manipulation 
does not occur: (a) Less than 10 days before any waterfowl season 
opening, or (b) during any open waterfowl season in that area; Except 
that for the purposes of this paragraph (3), waterfowl season does not 
include special sea duck seasons or tribally-ceded land seasons;
    (5) The taking of all migratory game birds from a blind or other 
place of concealment camouflaged with natural vegetation;
* * * * *

    Dated: February 17, 1998.
William Leary,
Acting Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 98-7686 Filed 3-19-98; 5:04 pm]
BILLING CODE 4310-55-P