[Federal Register Volume 64, Number 106 (Thursday, June 3, 1999)]
[Rules and Regulations]
[Pages 29799-29805]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-14039]
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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: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service, amend the baiting
regulations that apply to any person taking migratory game birds in the
United States and/or preparing areas where migratory game birds are
hunted. We include new definitions for ``baiting,'' ``baited areas,''
``normal agricultural planting, harvesting, and post-harvest
manipulation'', ``normal agricultural operation,'' ``normal soil
stabilization practice,'' ``natural vegetation'' and ``manipulation,''
and use these terms to identify allowable hunting methods.
EFFECTIVE DATE: This rule is effective July 6, 1999.
ADDRESSES: You may inspect public written comments by appointment
between the hours of 8:00 a.m. and 4:30
[[Page 29800]]
p.m., Monday through Friday, in Room 500, Arlington Square Building,
4401 N. Fairfax Drive, Arlington, Virginia 22203-3247; telephone (703)
358-1949.
FOR FURTHER INFORMATION CONTACT: Questions may be directed to either:
Refuges and Wildlife: Paul Schmidt, 703-358-1769.
Office of Law Enforcement: Kevin Adams, 703-358-1949.
SUPPLEMENTARY INFORMATION:
Statutory Authority for Rulemaking
We have statutory authority and responsibility for enforcing the
Migratory Bird Treaty Act (MBTA) in 16 U.S.C. 703-712 and 16 U.S.C.
742a-j. The MBTA regulates activities involving migratory birds, such
as take, possession, transport, sale, and barter. Additionally, the
MBTA authorizes us to make determinations about the conditions under
which migratory game birds may be hunted. In general, these
determinations include prohibitions on certain activities, such as
baiting, and provisions that allow hunting in certain areas, such as
agricultural areas and areas of natural vegetation. Regulations
covering migratory game bird hunting are contained in 50 CFR Part 20.
Purpose of Rulemaking
This rule clarifies the current migratory bird hunting regulations.
It provides a framework for sound habitat management, normal
agricultural activities, and other practices as they relate to lawful
migratory game bird hunting.
Related Federal Register Documents
The review process that produced this rule began in 1991. The
review process consisted of numerous, related Federal Register
documents, as follows: (1) November 14, 1991 (56 FR 57872), notice of
intent to review multiple wildlife regulations (50 CFR Parts 12, 13,
14, 20, 21, 22); (2) December 1, 1993 (58 FR 53488), notice of intent
to review the migratory bird regulations (50 CFR Parts 20 and 21); (3)
March 22, 1996 (61 FR 11805), notice of intent to review the migratory
game bird baiting regulations for moist soil management aspects (50 CFR
Part 20); (4) March 25, 1998 (63 FR 11415), proposed rule to clarify
and simplify the migratory game bird baiting regulations for migratory
game bird hunting (50 CFR Part 20); (5) May 22, 1998 (63 FR 28343),
notice to extend the comment period on No. 4 (above) to October 1, 1998
(50 CFR Part 20); and (6) October 6, 1998 (63 FR 53635), notice to
extend the comment period on No. 4 (above) to October 22, 1998 (50 CFR
Part 20).
Summary of Comments on the Notice of Intent and Proposed Rule
In the March 22, 1996, notice of intent, we specified four issues
of concern regarding moist-soil management: potential impacts on
available habitat, waterfowl populations, law enforcement and existing
case law. In the March 25, 1998, proposed rule, we then invited
comments on proposed changes to the migratory game bird baiting
regulations. We received 509 comments in response. We have carefully
reviewed and considered all comments received, including those from
hunters, land managers, natural resource professionals, and law
enforcement officers during preparation of this rule.
Comments received in response to the proposed rule primarily
addressed the following issues: (1) Application of the strict liability
standard to migratory game bird baiting regulations, (2) alternate
penalties, (3) agricultural terms and definitions, (4) hunting over
top-sown seeds, (5) manipulating natural vegetation, (6) millet as
natural vegetation, (7) accidental scattering of seeds or grains
incidental to hunting activities, (8) concealing blinds with natural
vegetation, and (9) concerns about potential impacts on migratory bird
habitat and populations.
(1) Application of the Strict Liability Standard
The proposed rule was published before passage of a new Public Law
that affects the application of strict liability to migratory game bird
baiting offenses. On October 30, 1998, Public Law 105-312 replaced the
strict liability standard with a new standard. This law now prohibits
the taking of migratory game birds by the aid of baiting, or on or over
any baited area, if the person knows or reasonably should know that the
area is a baited area. In addition, it is now a separate offense to
place or direct the placement of bait on or adjacent to an area for the
purpose of causing, inducing, or allowing any person to take or attempt
to take any migratory game bird by the aid of baiting or on or over the
baited area. The final rule reflects these changes to the underlying
statute.
(2) Alternate Penalties
Because violations of the MBTA are criminal offenses, the proposed
rule invited the public to identify alternatives to the existing
penalty provisions for baiting. We received 19 comments about this
issue, but due to recent legislation do not include any changes from
the comments in this rule. In addition to removing strict liability for
baiting offenses, Public Law 105-312 changes the penalty provisions by
increasing the penalty for any person who takes migratory game birds
with the aid of bait or over a baited area, and adds a penalty for any
person found responsible for the placement of bait. This rule
incorporates the statutory revisions concerning baiting.
(3) Agricultural Terms and Definitions
The proposed rule addressed two current exemptions allowing
migratory game bird hunting over agricultural lands. The current
exemptions are separated into those practices allowed for hunting
waterfowl, and those allowed for the hunting of other migratory game
birds, such as doves. We proposed to consolidate the allowed practices
into one term, normal agricultural and soil stabilization practice,
that would apply to the hunting of all migratory game birds in
agricultural areas. We received 43 comments about this issue. Although
we intended to simplify the rules using one term, the comments
reflected concern that this change could potentially restrict hunting
methods currently allowed in agricultural areas. Other comments
reflected concern that the new term could potentially liberalize the
regulations for migratory game bird hunting in agricultural areas,
especially for waterfowl.
After careful consideration of the comments, we decided to maintain
the current distinction between those agricultural practices allowed
for the hunting of waterfowl, cranes, and coots, and those agricultural
practices allowed for the hunting of other migratory game birds, such
as doves and pigeons, by the addition of three new agricultural terms
and definitions: (1) Normal agricultural planting, harvesting, and
post-harvest manipulation, (2) normal agricultural operation, and (3)
normal soil stabilization practice. The hunting of any migratory game
bird, including waterfowl, coots, and cranes, is allowed over lands
where either a normal agricultural planting, harvesting, and post-
harvest manipulation or normal soil stabilization practice has
occurred, as defined in this rule. The term normal soil stabilization
practice includes plantings made solely for agricultural soil erosion
control or post-mining land reclamation. Finally, the hunting of
migratory game birds, except waterfowl, coots, and cranes, is allowed
over a normal agricultural operation, also defined in this rule. In
order to meet the definitions in this rule, all of these practices must
be conducted in accordance with official recommendations of State
Extension
[[Page 29801]]
Specialists of the Cooperative Extension Service of the U.S. Department
of Agriculture.
(4) Hunting Over Top-Sown Seeds
The current regulations require a hunter to determine before
hunting whether a hunting area has been subjected to a normal
agricultural planting or harvesting, a bona fide agricultural
operation, a wildlife management practice, or whether the area had been
baited with seeds or grains to illegally lure migratory game birds. The
proposed rule included a change to prohibit the hunting of all
migratory game birds over any lands planted by means of top sowing or
aerial seeding where seeds remained on the ground as a result. The
prohibition was intended to apply regardless of the purpose of the
seeding, and top sowing was explicitly excluded from the proposed term,
normal agricultural and soil stabilization practice.
We received 221 comments about this issue. The majority of comments
opposing this change reflected concern that the change could restrict a
valid agricultural practice affecting large areas of land, and
discourage both habitat management and migratory game bird hunting in
those areas. Other comments reflected concern that this change would
adversely affect a time-honored, traditional form of hunting,
especially for doves, over prepared agricultural fields. Comments that
supported the change indicated that farmers would continue to plant
using this method regardless of the hunting prohibition because they
could still hunt migratory game birds, specifically doves, using other
allowable hunting methods. Other comments supported the change as the
only way to resolve the difficulty in determining whether a top-sown
field had been planted for agricultural purposes.
After careful consideration, we will not prohibit the hunting of
migratory game birds over lands planted by means of top sowing or
aerial seeding. Instead, we will allow the hunting of any migratory
game bird, including doves, over lands planted by means of top sowing
or aerial seeding if seeds are present solely as the result of a normal
agricultural planting, or a normal soil stabilization practice.
We have included post-mining land reclamations that are consistent
with plantings for agricultural soil erosion control in the definition
of a normal soil stabilization practice. These lands were included to
provide hunting opportunities on land reclamations in non-agricultural
areas.
Whether agricultural plantings, harvestings, post-harvest
manipulations, operations, or soil stabilization practices are
``normal'' must be gauged against an objective standard. Therefore,
this rule incorporates our policy to rely upon State Extension
Specialists of the Cooperative Extension Service of the U.S. Department
of Agriculture (USDA) as the best source of factual and objective
information on recommended planting, cultivation, harvest, and
utilization of agricultural crops. These State Extension Specialists
make recommendations about agricultural practices that may vary from
state-to-state or region-to-region within a state. The recommendations
may be site-specific, and may or may not be published. However, the
Service will continue to make final determinations about whether the
official recommendations were followed.
(5) Manipulating Natural Vegetation
We recognize the value derived from the manipulation of soil,
water, and vegetation to enhance migratory bird and other wildlife
habitat. Such manipulation, or moist-soil management, often involves
the artificial maintenance and restoration of natural vegetation. In
response to concerns about various moist-soil management techniques
that could result in potential baiting situations, the proposed rule
attempted to provide hunters, landowners, land managers, and law
enforcement officers with guidance about what constitutes baiting in
areas of natural vegetation. We invited the public to comment on the
proposed rule to ensure that it could be readily understood and
enforced, and was flexible enough to allow habitat managers to perform
needed wildlife management practices. The proposed rule would have
allowed the hunting of migratory waterfowl and cranes over any natural
vegetation that had been manipulated at least 10 days before the
opening of any waterfowl season and not during any open waterfowl
season. The 10-day limitation was not intended to apply to the hunting
of other migratory game birds, such as doves.
We received 215 comments about this issue. Comments supporting
unrestricted manipulation of natural vegetation reflected concern that
this change, if adopted with the 10-day, open-season requirement, could
potentially further restrict current moist-soil management activities
rather than provide the needed flexibility for habitat managers.
Comments opposing manipulation of natural vegetation reflected concern
that this change could potentially liberalize the current regulations,
and create situations where a determination about the timing and
presence of seeds would be difficult and onerous for all affected
parties. The current regulations were never intended to prevent the
manipulation of naturally-vegetated areas, or discourage moist-soil
management practices that benefit migratory birds. After due
consideration of all concerns, we decided to allow the hunting of any
migratory game bird over manipulated natural vegetation without any
restrictions.
(6) Millet as Natural Vegetation
Millet can be utilized both as an agricultural crop and as a
species of natural vegetation for moist-soil management. Because millet
can be readily naturalized and serve as an important food source for
migrating and wintering waterfowl, the proposed rule invited comments
on whether to include millet as a form of natural vegetation and allow
its manipulation prior to subsequent hunting. We received 136 comments
about this issue. Comments supporting the inclusion of millet expressed
concerns that the restrictions on its manipulation were too
restrictive, burdensome, and not as effective for moist-soil management
as possible. Comments opposing the inclusion of millet reflected
concerns that the manipulation of millet before subsequent hunting
could potentially conflict with the current regulations that prohibit
hunting over manipulated agricultural crops.
After consideration of these comments, we concluded that inclusion
of millet as natural vegetation and its manipulation could conflict
with current regulations. Therefore, this rule explicitly excludes
planted millet from the new term, natural vegetation. However, planted
millet that grows on its own in subsequent years (naturalized) is
considered natural vegetation that can be manipulated at any time
without restriction.
(7) Accidental Scattering
The proposed rule included a provision to allow hunting where
grains or seeds from agricultural crops or natural vegetation had been
scattered as a result of hunters entering or exiting areas, placing
decoys, or retrieving downed birds. This provision was included to
provide clarity to hunters about concerns that seeds or grains
accidentally scattered during lawful hunting activities could create
potential baiting situations.
We received 37 comments about this issue. Comments that supported
this provision reflected concerns about
[[Page 29802]]
application of the strict liability standard to hunting over such seeds
or grains. Comments that opposed this provision reflected concerns that
it could potentially encourage hunters to bait an area and then claim
that accidental scattering had occurred, and result in considerable
difficulty for enforcement officers and the courts.
To alleviate the concerns of hunters, we will allow hunting over
grains that are inadvertently scattered from standing or flooded
standing crops solely as the result of a hunter entering or exiting a
hunting area, placing decoys, or retrieving downed birds. Because this
final rule also allows hunting over manipulated natural vegetation, no
provision is needed for the inadvertent scattering of seeds from
standing natural vegetation.
(8) Concealing Blinds With Natural Vegetation
To effectively hunt in areas of natural vegetation, hunters use
natural vegetation to conceal themselves. The use of natural vegetation
on blinds or places of concealment may result in the scattering of
seeds and may create a potential baiting situation. The proposed rule
included a provision to allow the hunting of any migratory game birds
from a blind or other place of concealment camouflaged with natural
vegetation. We received 18 comments about this issue. Although this
rule does not restrict the manipulation of natural vegetation, we
provide clarity to hunters by including a provision that allows the
take of migratory game birds from a blind or other place of concealment
camouflaged with natural vegetation. In addition, we include a
provision that allows the hunting of migratory game birds from a blind
or other place of concealment camouflaged with vegetation from
agricultural crops as long as the use of such camouflage does not
result in the exposing, depositing, distributing, or scattering of
grain or other feed.
(9) Concerns About Potential Impacts on Migratory Bird Habitat and
Populations
As we indicated in the March 25, 1998, proposed rule, we believe
that one of the most important factors affecting waterfowl and other
migratory bird populations is the amount and availability of quality
habitat. For waterfowl, we believe the loss and degradation of habitat
is the most serious threat facing North America's populations. North
America has lost many of its original wetlands. Overall, the lower 48
States have lost about 53% of their original wetlands. In many of the
remaining wetlands, large-scale land-use changes have often altered the
natural water regime to the point that they are no longer ecologically
functional.
One of the primary ways we have attempted to address this loss of
wetland habitat is through implementation of the North American
Waterfowl Management Plan (Plan). Established in 1986, the Plan
identifies key waterfowl habitat areas and through habitat joint
ventures implements habitat conservation projects. Habitat joint
ventures are regional public/private partnerships composed of
individuals, corporations, conservation organizations, and local,
state, and federal agencies that work together to protect and restore
habitat.
For example, the Central Valley Habitat Joint Venture is comprised
of California's San Joaquin and Sacramento valleys. This vitally
important migratory bird area provides wintering habitat for 60 percent
of the waterfowl in the Pacific Flyway and includes the primary
wintering area for cackling Canada geese, the threatened Aleutian
Canada goose, and a number of other endangered species. Almost 4
million acres (95 percent) of wetlands in the Central Valley have been
lost to drainage and conversion to agricultural land. Only about
300,000 acres remain to support and maintain waterfowl. Central Valley
Habitat Joint Venture efforts focus on protecting and enhancing
remaining wetlands, restoring or creating additional wetlands,
enhancing private agricultural lands, and securing dependable water
supplies for wetland areas.
To mitigate for the extensive loss and alteration of wetlands, it
is critical that wildlife managers intensively manage many of the
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, planting, mowing, burning, and other
practices to: (1) Encourage production of moist soil plants for use by
wildlife, especially migratory birds; (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
seeds 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 help stem wetland habitat loss, the migratory bird management
community realized that it would take the concerted effort of many
parties working together toward a common goal. Principal among this
concerted effort is the involvement of private landowners, since the
vast majority of wetland and other migratory bird habitat will always
remain in private ownership. Thus, to actively invite and encourage
participation from private landowners in migratory bird habitat
conservation efforts, we believe new and innovative approaches to our
traditional habitat protection and management programs are required.
We believe that our programs should not discourage private
landowners and others in their efforts to conserve, restore, and manage
wetland areas for the benefit of migratory birds and other wildlife.
Thus, practices such as moist-soil management should not be
discouraged, but openly encouraged. However, modern moist-soil
management presented us with several issues and potential conflicts
regarding moist-soil management practices and baiting. Several
commenters throughout this process have pointed out that some of these
moist-soil management practices could technically result in the
creation of potential baiting situations when seeds from moist-soil
management plants become available as a result of a manipulation. In
the proposed rule, we acknowledged that the current baiting regulations
were not intended to prevent the manipulation of natural vegetation
such as that found in moist-soil management areas or to discourage
moist-soil management practices benefitting migratory birds.
To address the moist-soil management issues, we made several
specific regulatory changes to ensure that this valuable wildlife
management practice continues to be encouraged while also clarifying to
land managers and hunters what constitutes baiting. By allowing the
manipulation of natural vegetation at any time, this rule enables
wildlife habitat managers to conduct valuable moist-soil management in
wetland areas and promote increased benefits to migratory birds and
other wildlife. By encouraging moist-soil management techniques such as
manipulation of natural vegetation, waterfowl populations will benefit
from additional feeding, roosting, and resting habitat in important
migration and wintering areas.
[[Page 29803]]
Summary of Changes
1. New Definitions for Section 20.11, Meaning of Terms
We define Normal agricultural planting, harvesting, or post-harvest
manipulation and use the term in Section 20.21(i) to allow the hunting
of any migratory game birds in agricultural areas over seeds and grains
that are present solely as the result of a normal agricultural
planting, harvesting, or post-harvest manipulation.
We define Normal agricultural operation and use the term in Section
20.21(i) to allow a hunter to take migratory game birds, except
waterfowl, cranes, and coots, in agricultural areas over seeds or
grains that are present solely as the result of a normal agricultural
operation.
We define Normal soil stabilization practice and use the term in
Section 20.21(i) to allow the hunting of any migratory game bird in
agricultural or post-mining land reclamation areas over seeds that are
present solely as the result of a normal soil stabilization practice.
We define Manipulation and use the term in 20.21(i) to explain
which hunting activities are permitted over manipulated lands.
Migratory game birds, except waterfowl, coots, and cranes, may be
hunted over a manipulated agricultural crop. Any migratory game bird,
including waterfowl, coots, and cranes, may be hunted over manipulated
natural vegetation.
We define Natural vegetation and use the term in 20.21(i) to allow
the hunting of migratory game birds over manipulated natural
vegetation.
We define Baited area and use the term in 20.21(i) to prohibit the
hunting on or over any baited area where a person knows or reasonably
should know that the area is or has been baited.
We define Baiting and use the term in section 20.21(i) to prohibit
the hunting by the aid of baiting where a person knows or reasonably
should know that the area is or has been baited.
2. New Methods of Take, Section 20.21(i)
We revised the current prohibition in the introductory text to this
paragraph to incorporate the new standard created by Public Law 105-
312.
The introductory text for paragraph 20.21(i) of this rule does not
prohibit the following:
The taking of any migratory game bird, including waterfowl, coots,
and cranes, on or over the following lands or areas that are not
otherwise baited areas--
Paragraph 20.21(i)1(i) of this rule allows the hunting of any
migratory game birds over lands planted by means of top sowing or
aerial seeding if seeds are present solely as the result of a normal
agricultural planting or a normal soil stabilization practice. This
rule also allows the take of any migratory game birds over areas where
natural vegetation has been manipulated by such activities as mowing or
burning, and treats all natural vegetation in the same manner.
Paragraph 20.21(i)1(ii) includes a provision to allow the take of
migratory game birds from a blind or other place of concealment
camouflaged with natural vegetation.
Paragraph 20.21(i)1(iii) includes language to allow the take of
migratory game birds from a blind or other place of concealment
camouflaged with vegetation from agricultural crops if it does not
result in the exposing, depositing, distributing, or scattering of
grain or other feed that would constitute a potential baiting
situation.
Paragraph 20.21(i)1(iv) of this rule allows the hunting of any
migratory game bird over an area of standing or flooded standing
agricultural crops where the hunter has inadvertently scattered grains.
This provision does not address the scattering of seeds from natural
vegetation because this rule allows the manipulation of natural
vegetation at the site where grown.
Paragraph 20.21(i)2 of this rule changes the current regulation
that allowed the hunting of migratory game birds, except waterfowl,
over a bona fide agricultural operation, and replaces it with the term
normal agricultural operation.
Required Determinations
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule contains no information collection requirements under the
Paperwork Reduction Act of 1995 requiring Office of Management and
Budget review.
Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1502 et seq.)
This rule will not result in a significant annual effect on the
economy of $100 million or more. The U.S. Department of Agriculture
publishes a directory of State Extension Specialists who provide
factual and objective information on recommended plantings,
cultivation, harvest, and utilization of agricultural crops. This rule
has no foreseen significant adverse effects on the economy. Therefore,
we have 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 State, local or
tribal governments or private entities.
Federalism
As discussed above, this rule does not have sufficient federalism
implications to warrant the preparation of a Federalism Assessment
under Executive Order 12612.
Regulatory Planning and Review (Executive Order 12866)
This document has been reviewed by the Office of Management and
Budget in accordance with the criteria in 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. We found that no Section 7 consultation under
the ESA was required for this rule.
Small Business Regulatory Enforcement Fairness Act
As discussed below, this rule is not a major rule under 5 U.S.C.
804(2), the Small Business Regulatory Enforcement Fairness Act. This
rule does not have an annual effect on the economy of $100 million or
more and will not cause a major increase in costs or prices for
consumer, individual industries, Federal, State, or local government
agencies, or geographic regions. Also, this rule will not have
significant adverse effects on competition, employment, investment,
productivity, innovation, or the ability of U.S.--based enterprises to
compete with foreign-based enterprises.
Regulatory Flexibility Act Determination (5 U.S.C. 601)
This rulemaking will have no significant effect on small entities.
This rule is an update to the current regulations governing baiting and
migratory game bird hunting. Hunters and other affected parties are not
likely to suffer dislocation or other local effects. The changes
clarify and modify the ways that migratory game birds may be hunted,
and add new definitions for terms used in Part 20. This rule adds our
policy to rely upon State Extension Specialists of the Cooperative
Extension Service of the U.S. Department of
[[Page 29804]]
Agriculture as the best source of factual and objective information on
recommended planting, cultivation, harvest, and utilization of
agricultural crops. The changes may encourage some landowners to open
their land for migratory game bird hunting. This additional land would
improve the hunting experience for 2.4 million people who hunt
migratory game birds on private land. The estimated value of this
benefit is $3.8 to $14.6 million per year. Farmers who lease their land
may capture $2.4 million of this benefit. Many of the parties affected
are small entities and we believe they will receive minor economic
benefits if any.
Civil Justice Reform (Executive Order 12988)
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of section 3(a) and 3(b)(2)
of the Order.
Takings
In accordance with Executive Order 12630, the rule does not have
significant takings implications. A takings implication assessment is
not required because migratory birds are a federally managed resource
under laws implementing international treaties and are not personal
property.
Environmental Effects (National Environmental Policy Act--42 U.S.C.
4321 et seq.)
We have determined that National Environmental Policy Act
documentation is not required because this rule qualified as a
categorical exclusion under the Department of the Interior's NEPA
procedures in 516 DM 2, Appendix 1.10. Results of this finding are
available to the public by contacting us at the number listed under
ADDRESSES. This final rule provides added benefits to the migratory
bird resource by promoting available habitat through moist-soil
management and by changing and clarifying current methods for hunting
migratory game birds in agriculture areas, areas of natural vegetation,
and over post-mining land reclamation areas.
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, we 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 the title of Sec. 20.11 and add new paragraphs (g), (h),
(i), (j), (k), (l) and (m) to read as follows:
Sec. 20.11 What terms do I need to understand?
* * * * *
(g) Normal agricultural planting, harvesting, or post-harvest
manipulation means a planting or harvesting undertaken for the purpose
of producing and gathering a crop, or manipulation after such harvest
and removal of grain, that is conducted in accordance with official
recommendations of State Extension Specialists of the Cooperative
Extension Service of the U.S. Department of Agriculture.
(h) Normal agricultural operation means a normal agricultural
planting, harvesting, post-harvest manipulation, or agricultural
practice, that is conducted in accordance with official recommendations
of State Extension Specialists of the Cooperative Extension Service of
the U.S. Department of Agriculture.
(i) Normal soil stabilization practice means a planting for
agricultural soil erosion control or post-mining land reclamation
conducted in accordance with official recommendations of State
Extension Specialists of the Cooperative Extension Service of the U.S.
Department of Agriculture for agricultural soil erosion control.
(j) Baited area means any area on which salt, grain, or other feed
has been placed, exposed, deposited, distributed, or scattered, if that
salt, grain, or other feed could serve as a lure or attraction for
migratory game birds to, on, or over areas where hunters are attempting
to take them. Any such area will remain a baited area for ten days
following the complete removal of all such salt, grain, or other feed.
(k) Baiting means the direct or indirect placing, exposing,
depositing, distributing, or scattering of salt, grain, or other feed
that could serve as a lure or attraction for migratory game birds to,
on, or over any areas where hunters are attempting to take them.
(l) Manipulation means the alteration of natural vegetation or
agricultural crops by activities that include but are not limited to
mowing, shredding, discing, rolling, chopping, trampling, flattening,
burning, or herbicide treatments. The term manipulation does not
include the distributing or scattering of grain, seed, or other feed
after removal from or storage on the field where grown.
(m) Natural vegetation means any non-agricultural, native, or
naturalized plant species that grows at a site in response to planting
or from existing seeds or other propagules. The term natural vegetation
does not include planted millet. However, planted millet that grows on
its own in subsequent years after the year of planting is considered
natural vegetation.
3. Amend Sec. 20.21 by revising the section title and paragraph (i)
to read as follows:
Sec. 20.21 What hunting methods are illegal?
* * * * *
(i) By the aid of baiting, or on or over any baited area, where a
person knows or reasonably should know that the area is or has been
baited. However, nothing in this paragraph prohibits:
(1) the taking of any migratory game bird, including waterfowl,
coots, and cranes, on or over the following lands or areas that are not
otherwise baited areas--
(i) Standing crops or flooded standing crops (including aquatics);
standing, flooded, or manipulated natural vegetation; flooded harvested
croplands; or lands or areas where seeds or grains have been scattered
solely as the result of a normal agricultural planting, harvesting,
post-harvest manipulation or normal soil stabilization practice;
(ii) From a blind or other place of concealment camouflaged with
natural vegetation;
(iii) From a blind or other place of concealment camouflaged with
vegetation from agricultural crops, as long as such camouflaging does
not result in the exposing, depositing, distributing or scattering of
grain or other feed; or
(iv) Standing or flooded standing agricultural crops where grain is
inadvertently scattered solely as a result of a hunter entering or
exiting a hunting area, placing decoys, or retrieving downed birds.
(2) The taking of any migratory game bird, except waterfowl, coots
and cranes, on or over lands or areas that are not otherwise baited
areas, and where grain or other feed has been distributed or scattered
solely as the result of manipulation of an agricultural crop or other
feed on the land where grown, or solely as the result of a normal
agricultural operation.
* * * * *
[[Page 29805]]
Dated: March 22, 1999.
Donald J. Barry,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 99-14039 Filed 6-2-99; 8:45 am]
BILLING CODE 4310-55-P
