[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
