Use of Bait in Hunting

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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