[Federal Register Volume 60, Number 86 (Thursday, May 4, 1995)]
[Notices]
[Pages 22037-22044]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10918]



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DEPARTMENT OF AGRICULTURE
Forest Service
[RIN 059-AB47]


Animal Damage Management

AGENCY: Forest Service, USDA.

ACTION: Notice; adoption of final policy.

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SUMMARY: The Forest Service is adopting a revised policy for animal 
damage management on National Forest System lands. This action 
incorporates the tenets of a 1993 Memorandum of Understanding between 
the Animal and Plant Health Inspection Service (APHIS) and the Forest 
Service. The policy clarifies the role and responsibility of the Forest 
Service in coordinating with the APHIS--Animal Damage Control program 
on APHIS-sponsored animal damage management plans and in cooperating 
with APHIS to manage wild vertebrates causing damage on National Forest 
System lands under the Animal Damage Control Act of 1931, as amended. 
This final policy also outlines the procedures for settling differences 
between the two agencies and clarifies agency responsibility for 
National Environmental Policy Act (NEPA) compliance.

EFFECTIVE DATE: This policy is effective May 4, 1995.

FOR FURTHER INFORMATION CONTACT:
Tom Darden, Wildlife Program Leader, Forest Service, USDA, P.O. Box 
96090, Washington, DC 20090-6090, (202) 205-1205.

[[Page 22038]] SUPPLEMENTARY INFORMATION:

Background

    On June 13, 1994, the Forest Service published a proposed revision 
of its animal damage management direction in Forest Service Manual 
Chapter 2650 [59 FR 30334]. The proposed policy clarified the role of 
the Forest Service, and Animal and Plant Health Inspection Service 
(APHIS) in NEPA compliance for animal damage management activities on 
National Forest System lands.
    The Forest Service cooperates with APHIS under the Animal Damage 
Control Act of 1931, as amended (7 U.S.C. 426-426c), which, in part, 
authorizes animal damage management activities on National Forest 
System lands. In cooperation with the Forest Service and States, APHIS 
carries out animal damage management activities on some National Forest 
System lands, mostly to minimize livestock losses from predation by 
coyotes, black bears, and other predators. Under other authorities 
(e.g., Multiple-Use, Sustained-Yield Act of 1960 [16 U.S.C. 528(note), 
528-531]), the Forest Service conducts activities to control animal 
damage caused by small mammals and other animals to National Forest 
System resources, such as damage to timber stands and roads by beavers.
    The Secretary of Agriculture has assigned APHIS the lead 
responsibility for animal damage management activities (7 CFR 
2.51(a)(41)). The principal change proposed to existing Forest Service 
Manual policy (FSM 2650) is the designation of APHIS as the lead agency 
for preparing environmental documentation on those animal damage 
management activities conducted by APHIS that would be carried out on 
National Forest System lands. The Forest Service will be a cooperating 
agency in preparing and reviewing environmental analysis and 
documentation of actions proposed by APHIS that would occur on or 
affect National Forest System lands. In that role, the Forest Service 
would provide any mitigation measures needed to ensure that animal 
damage management activities performed by APHIS are compatible with 
direction established in the Forest Land and Resource Management Plan.
    The proposed policy would bring the Forest Service Manual direction 
into conformance with the Memorandum of Understanding (MOU) between 
APHIS and the Forest Service, signed June 18, 1993. Notice of 
availability of the MOU was published in the Federal Register on July 
13, 1993 (58 FR 37704).
    The 1993 MOU clarified the role of each Forest Supervisor in 
cooperating with APHIS and the States to ensure that animal damage 
management activities performed by APHIS are compatible with direction 
provided in forest plans. The MOU also clarified that APHIS, in 
cooperation with the Forest Service, develops annual work plans for 
animal damage management activities on National Forest System lands. 
These plans address control areas, specific control techniques, 
emergency control procedures, timeframes, and other limitations and 
restrictions on the implementation of ADM decisions based on NEPA 
analysis. The MOU recognizes APHIS annual work plans as establishing 
the guidelines for predator control actions initiated by APHIS on 
National Forest System lands.

Response to Public Comments Animal Damage Management Policy

    The public comment period on the proposed policy closed August 12, 
1994. The Forest Service received 58 letters from individuals, 
organizations, six State agencies, and one federal agency.
    Of the 58 letters submitted, two (2) letters expressed support for 
the proposed policy. Four (4) letters expressed support if specific 
changes were made to the policy. Two (2) letters requested that all 
animal damage management be abolished. One (1) letter expressed support 
for only non-lethal methods of animal damage management. Forty six (46) 
letters expressed opposition to the policy changes for a variety of 
reasons.
    The 58 letters were from 11 Western, six Eastern, two Southern and 
two Midwestern states. Of the 58 letters, 30 were written by 
individuals who identifies no affiliation with any group or 
organization. Twenty-one (21) letters represented a variety of 
organizations, including: animal rights or welfare organizations (11 
letters); environmental action organizations (3 letters); organizations 
concerned with biodiversity (3 letters); wilderness organizations (3 
letters); an organization of state agencies (1 letter). Six letters 
were from State agencies with responsibility for fish and wildlife 
management. One letter was from a federal agency. A summary of major 
comments received and the agency response to them follow.

1. Role of States

    Comment: Of the 50 States, six responded individually and comments 
were generally favorable. Six State fish and wildlife agencies and the 
International Association of Fish and Wildlife Agencies, representing 
all the 50 States, generally concurred with the proposed policy. Two 
State agencies, however, requested (1) that a statement be included 
that any animal damage management activities on National Forest System 
(NFS) lands by any individual or agency must be done in accordance with 
State law; and (2) section 2651.2 be revised to require not only 
cooperation but also consultation with the State Fish and Wildlife 
agencies to control damage caused by game animals and furbearers 
through hunting or trapping, where practical.
    Response: While ``cooperation'' requires ``consultation'', the 
Forest Service has no substantive concern with revising section 2651.2 
to include ``consultation'' and has adopted the proposed suggestion.
    The Forest Service, historically, has viewed the regulation of 
hunting and fishing as the responsibility of the States. This is 
recognized in agency direction and FS cooperative agreements with State 
fish and wildlife agencies. This policy does not infringe or modify 
that approach. Since 1897, under the federal statutes governing 
National Forests, general civil and criminal jurisdiction of States has 
extended to federal lands reserved as National Forests. 16 U.S.C. 480. 
Over the years, State wildlife and game laws have therefore controlled 
hunting and fishing in these reservations. Beginning in 1960, when 
Congress enacted modern, multiple-use provisions for forest resources, 
it carefully preserved the States' role in managing the wildlife 
resources in National Forests:

    It is the policy of Congress that the national forests are 
established and shall be administered for (multiple use). * * * 
Nothing herein shall be construed as affecting the jurisdiction of 
the several States with respect to wildlife and fish on the national 
forests (16 U.S.C. 528). More recently, Congress reiterated the 
States' role over wildlife, hunting, and fishing on national forest 
land in the Federal Land Management Policy Act of 1976: (N)othing in 
this Act shall be construed as authorizing the Secretary concerned 
to require federal permits to hunt and fish on * * * lands in the 
National Forest System * * * or as enlarging or diminishing the 
responsibility or the authority of the States for management of fish 
and resident wildlife (43 U.S.C. 1732 (b)).

    Thus, consistant with the statutory context, the Forest Service is 
strongly encouraged to rely on State regulation of hunting on National 
Forest System Lands; and the Forest Service is not expected to 
intervene, absent some overriding federal concern. See, e.g., Hunt v. 
United States, 278 U.S. 96 [[Page 22039]] (1928). The new FSM 2650 is 
consistent with this approach.

2. Loss of Administrative Appeal Opportunity

    Comment: While recognizing that APHIS is subject to the National 
Environmental Policy Act (NEPA), many reviewers opposed designating 
APHIS as the lead agency for NEPA compliance. Respondents emphasized 
that APHIS, unlike the Forest Service, has no administrative appeal 
process for NEPA decision documents. Several reviewers stated that the 
loss of this administrative process is very significant to them, 
leaving only the option of challenging animal damage management 
decisions in court.
    Response: While those interested in ADM activities carried out by 
APHIS on NFS lands have enjoyed an appeal opportunity until now, this 
is not a ``right.'' The only reason APHIS-ADC proposals affecting NFS 
lands have been subject to appeal under Forest Service procedures until 
now is that, prior to the 1993 MOU, the Forest Service has assumed lead 
agency responsibility for NEPA analysis and disclosure. Since APHIS 
will not assume these NEPA compliance duties, those interested and 
affected by an APHIS-initiated ADM proposal will no longer be able to 
use Forest Service appeals procedures, since the Forest Service will 
not be the proponent or deciding agency.
    It is true that APHIS has no formal appeal process, but APHIS must 
consider all issues and concerns presented to them by the public during 
the NEPA process and comment period. A final decision must address 
those concerns raised during public comment periods. Given the 
protections of NEPA procedures and the availability of judicial review, 
the Forest Service does not believe the loss of ADM appeal opportunity 
is sufficient grounds for revising the final policy.

3. APHIS NEPA Experience and Procedures

    Comment: Many of the reviewers who objected to transferring NEPA 
compliance from the Forest Service to APHIS asserted that APHIS has no 
formalized NEPA procedures.
    Response: This comment is not accurate and provides no compelling 
reason for the Forest Service and APHIS to revise the terms of the MOU. 
APHIS follows Council on Environmental Quality (CEQ) NEPA Regulations 
(40 CFR parts 1500-1508, et. seq.), the USDA NEPA procedures (7 CFR 
part 1b), and the APHIS NEPA Implementing Procedures (60 FR 6000-6005, 
Feb. 1, 1995) effective March 3, 1995, in meeting its NEPA compliance 
obligations.
    Comment: Twenty-six respondents, including a government agency, 
expressed concerns about differences between APHIS and Forest Service 
NEPA procedures, and differences in quality of analyses. They thought 
that APHIS lacked sufficient experience in writing environmental 
documents.
    Response: While APHIS and Forest Service NEPA procedures, and 
ultimately, NEPA documents, may be identical, they must be prepared in 
accordance with the Council on Environmental Quality (CEQ) regulations. 
Where APHIS requests NEPA analysis assistance or help with developing 
NEPA compliance procedures, the Forest Service will cooperate with 
APHIS personnel. The MOU and final policy provide the basis for such a 
partnership. Similarly, as the Forest Service or another agency reviews 
NEPA documents prepared by APHIS, each agency can note any issues 
related to quality of analyses and suggest improvement. Additionally, 
in its leadership and training roles, the Council on Environmental 
Quality has had opportunity to work with APHIS as it devised formal 
NEPA implementing procedures. CEQ will have additional opportunities as 
APHIS implements these procedures and prepares NEPA documents on animal 
damage management activities.
4. Abdication of Forest Service Responsibility

    Comment: Eleven of the response letters claimed that the Forest 
Service is ``abdicating its responsibility'' or ``turning over all 
decisionmaking procedures'' to APHIS and that as a result the Forest 
Service will not be able to ``adequately critique and challenge Animal 
Damage Control proposals and data.'' These respondents all expressed 
concern that the Forest Service would no longer take an active role in 
managing these activities. Additionally, another agency asked ``if 
APHIS would have the lead in ensuring compliance with forest land and 
resource management plans on NFS lands? To what extent might APHIS 
predator control policies conflict with such plans, and which governs 
in the event of a conflict, and who decides?
    Response: There are two assertions underlying these comments: (1) 
that the Forest Service has all [ultimate] authority for ADM activities 
and (2) that the Forest Service is abdicating its responsibilities for 
ADM on National Forest System lands (NFS). Neither of these assertions 
is accurate. The legal authorities of each agency are recognized in the 
Memorandum of Understanding (MOU) between APHIS and the Forest Service, 
signed in June 1993.
    Under the final policy and the MOU, tools and procedures for animal 
damage management activities on NFS lands are to be used ``according to 
a plan developed in compliance with National Environmental Policy Act 
(NEPA), National Forest Management Act (NFMA); and Animal Damage 
Control Act.'' This plan is the Wildlife Damage Management (WDM) Plan, 
developed by APHIS/ADC in cooperation with the land management 
agencies, including the Forest Service. The plan is assessed through 
NEPA documents that cover an entire forest or larger area and is 
developed under APHIS/ADC leadership. An annual work plan implements 
the WDM plans, which APHIS-ADC prepares to analyze impacts in logical 
geographic areas to assess damage caused by wildlife and alternative 
strategies to manage the damage, regardless of land ownership status. 
These assessments include NEPA analysis and consider the concerns of 
all affected interests. The WDM plans are completed as necessary, or 
when new or changed conditions occur, prior to specific ADM actions. 
The Forest Service also cooperates with APHIS-ADC in development and 
review of these WDM plans. The 1993 Memorandum of Understanding states 
that:

    APHIS-ADC is the agency with the authority and expertise under 
the Animal Damage Control Act of March 2, 1931, as amended; and 
pursuant to The Rural Development, Agriculture, and Related Agencies 
Appropriation Act of 1988 for providing ADM services. This includes 
maintaining technical expertise in the science of animal damage 
management, control tools and techniques, conducting ADM research, 
conducting management programs, and NEPA compliance on activities 
related to predator control [that APHIS-ADC conducts].

    This approach in the MOU is based on the Secretary of Agriculture's 
longstanding assignment of ADM activities to APHIS. Additionally, the 
Memorandum of Understanding states that both the Forest Service and 
APHIS agree to:

    Ensure interagency coordination and concurrence on the effects 
of predator control activities on National Forest resources before 
NEPA decisions on predator control are signed.

    The Secretary has delegated National Forest System forest planning 
authorities in the Chief of the Forest Service, including the 
responsibility to ensure that Forest Service authorized 
[[Page 22040]] activities are not in conflict with forest plans. The 
MOU allows the Forest Service to ensure consistency of ADM activities 
with Forest Plans, agency regulations, and policy.
    It is impossible to speculate whether, or to what degree, if any, 
APHIS Animal Damage Management activities might conflict with Forest 
Plans. If there is any conflict, the Forest Service will identify and 
APHIS will adopt these measures necessary to ensure consistency with 
the goals and objectives in the Forest Plans. The MOU formalizes the 
two agency's intent to work closely and cooperate on all activities.
    Finally, the Memorandum of Understanding also calls for annual 
meetings at the State and regional levels to evaluate and coordinate 
ADM activities. Therefore, on its face, the 1993 MOU recognizes the 
Forest Service duty to regulate use of NFS lands and ensures that the 
Forest Service plans a cooperative role in reviewing and commenting on 
proposed actions and associated NEPA documents prior to APHIS making a 
decision for predator ADM activities.
    If conflicting interpretations arise, the Forest Service will make 
the final determination of whether the proposed activity conforms to a 
standard or guideline in a forest plan. A fundamental principle of 
APHIS' ADM program is its commitment to comply with landowner/manager's 
restrictions as to where animal damage management activities can and 
cannot be conducted.

5. Animal Damage Management in Wilderness

    Comment: Three respondents expressed concerns about ADM activities 
in wilderness areas, stating that this ``is counter to the meaning and 
intent of a wilderness area.''
    Response: All ADM activities on NFS lands must be carried out in a 
manner consistent with the Wilderness Act and subsequent amendments 
establishing wilderness areas within the NFS system.

6. Compatibility With Ecosystem Management

    Comment: Nine reviewers stated that Animal Damage Management is 
incompatible with the Forest Service's ecosystem management approach on 
NFS lands.
    Response: There is nothing inherent in Animal Damage Management 
that is incompatible with ecosystem management. Under the final policy 
and the 1993 MOU, APHIS will consult with the Forest Service concerning 
any and all effects of APHIS ADM actions on NFS lands. The 1993 MOU 
states that both agencies agree to:

    Conduct ADM on NFS lands in accordance with the APHIS-ADC 
Policies, USDA policy on fish and wildlife and consistent with 
Forest Land and Resource Management Plans'' and to ``[e]nsure 
interagency coordination and concurrence on the effects of predator 
control activities on National Forest resources before NEPA 
decisions on predator control are signed.''

    Comment: In addition, another agency stated that the Forest Service 
recently signed a MOU with the Fish and Wildlife Service (FWS), Bureau 
of Land Management (BLM), National Park Service (NPS), and National 
Marine Fisheries Service (NMFS), ``* * * which encourages an ecosystem 
approach to addressing endangered species. How will FS ensure that it 
meets this commitment where APHIS is the lead agency?''
    Response: The Forest Service's cooperative role will ensure that 
ADM activities are consistent with broader goals and mandates such as 
ecosystem management. APHIS will coordinate with the Forest Service 
concerning any and all effects of their actions on Forest Service lands 
including the Forest Service's ecosystem management approach.

7. Inadequate Opportunity for Public Comment

    Comment: Ten reviewers stated that designating APHIS as the lead 
agency for NEPA compliance for Animal Damage Management was completed 
with inadequate opportunity for comment.
    Response: Intradepartmental agreements have always been considered 
a routine business operation of the agency. Such agreements are the 
mechanisms by which USDA agencies reach agreement on responsibilities 
and procedures to be followed when programs and activities involve more 
than one USDA agency. The Forest Service places intradepartmental 
agreements into Title 1500 of the Forest Service Manual to ensure that 
agency personnel across the country have access to them in carrying out 
day-to-day management activities. The Forest Service interprets such 
intra-agency agreements to be of the same nature as administrative 
support activities such as personnel, procurement, service contracting 
and other routine business practices. As such, the Agency was not 
legally required to give notice of and opportunity to comment on the 
agreement, pursuant to 36 CFR part 216. However, the Forest Service did 
give notice of the new agreement on July 13, 1993, at 58 FR 37704 and 
notice that copies were available upon request. Subsequently, the 
agency decided to give notice of revisions to its Animal Damage 
Management policy arising from implementation of the 1993 MOU. The 
notice was published in a Federal Register Notice on June 13, 1994, at 
59 FR 30334 and provided a 60-day comment period. Thus, the public has 
been given adequate notice of and adequate opportunity to comment on 
the proposed policy.

8. Legality of Animal Damage Management Activities on NFS Lands and of 
Transfer of NEPA Responsibilities

    Comment: Thirty-five respondents stated that it is ``illegal'' for 
APHIS/ADC to conduct animal damage management on NFS lands or for the 
Forest Service to ``transfer'' NEPA planning responsibilities to APHIS. 
These respondents contend that, in doing so, the Forest Service 
violates the Endangered Species Act, National Forest Management Act, 
Multiple-Use Sustained Yield Act, Wilderness Act, and the Animal Damage 
Control Act. Additionally, another agency asked if the Forest Service 
role as stated in FSM 2651.1 is consistent with APHIS approach so that 
ESA obligations are met.
    Response: The MOU serves to reemphasize the authority that APHIS 
and the State agencies already have for ADM activities on National 
Forest System lands. Under the Animal Damage Control Act of 1931, as 
amended, the Secretary of Agriculture is authorized to control 
predators and other wild animals causing damage on NFS lands. The 
Secretary has delegated this authority to APHIS at 7 CFR 2.51(a)(41). 
Animal damage management for predators has never been a Forest Service 
responsibility. APHIS is the authorized action agency and has had, and 
continues to have, responsibility for its ADM activities. Therefore, it 
is completely lawful for APHIS to conduct animal damage management on 
NFS land. It is also appropriate for APHIS to be the lead agency in 
preparing environmental documentation of APHIS-sponsored ADM activities 
on NFS lands.
    However, the policy, at FSM 2651.1, explicitly recognizes the 
responsibility of Forest Supervisors in cooperating with APHIS to 
complete necessary site-specific environmental analysis and 
documentation of actions proposed by APHIS and in providing mitigation 
measures to ensure that animal damage management activities performed 
by APHIS are compatible with direction provided in forest plans.
    As the lead agency (40 CFR 1508.16) for completing environmental 
[[Page 22041]] documentation of APHIS-sponsored ADM activities on NFS 
lands, APHIS will also be responsible for completion of all Endangered 
Species Act-mandated interagency consultations (16 U.S.C. 1536.7; FSM 
2671.4). Presently, APHIS operates under the programmatic biological 
opinion issued by the U.S. Fish and Wildlife Service for the Animal 
Damage Control Program on July 28, 1992 and will consult with the U.S. 
Fish and Wildlife Service both formally and informally, as appropriate, 
under Section 7 of the Endangered Species Act, on future actions 
including those on NFS lands.
    As to consistency of approaches to ensure Endangered Species Act 
(ESA) compliance, under the MOU, the FS and APHIS will cooperate in ESA 
compliance. In addition to changes based on public comment, the Forest 
Service, after consideration of the potential for joint responsibility 
under the ESA, developed additional policy to assure consistent 
application of protection for threatened and endangered species.
    In the final amendment this language appears in section 2650.3, 
paragraph (5) and reads as follows:

    Additionally, the lead agency responsible for completing 
environmental documentation is responsible for completion of all 
Endangered Species Act-mandated interagency consultations. However, 
the Forest Service will be a cooperating agency with APHIS during 
consultation under the Endangered Species Act where actions involve 
National Forest System resources or authorities.

    Nothing in the Forest Service policy relieves APHIS of any of its 
current responsibilities to consult with the FWS nor does it violate 
any Forest Service policies.

9. Clarification of Each Agency's Roles

    Comment: Another government agency asserted that ``the Forest 
Service and APHIS must clarify their precise roles in preparation of 
environmental impact analyses and documentation for animal damage 
management activities on National Forest System lands * * *.''
    Response: The roles have been clarified in the 1993 MOU and 
proposed FSM 2650.6. The Forest Service and APHIS have agreed that 
APHIS will ensure NEPA compliance and be the lead agency for all 
actions that APHIS initiates and carries out on NFS lands. Predator 
control to reduce livestock loss is an example of an action carried out 
by APHIS. If the Forest Service carries out the action, such as 
reducing bear or beaver damage to tree regeneration, the Forest Service 
will be the lead agency for NEPA compliance.
    APHIS has not and will not work on any Forest Service administered 
land without proper NEPA compliance. The Forest Service will cooperate 
in each effort by APHIS. Disagreements on any specific points are 
handled through annual meetings or during the development of work plans 
or NEPA documents, as appropriate. The MOU describes the specific 
framework for meetings and states that disagreements will be elevated 
to appropriate levels for resolution.
    Comment: Twenty-five reviewers noted their view that APHIS ``cannot 
comply with forest plans;'' and ten others questioned whether APHIS 
``fails to comply with the Endangered Species Act, National 
Environmental Policy Act, National Forest Management Act, Wilderness 
Act, Administrative Procedures Act, and numerous other State and 
Federal laws''.
    Response: The Department does not agree. The statement that APHIS 
``cannot comply with forest plans'' reflects a misunderstanding of law 
and authority. Under the 1993 MOU, APHIS consults with the Forest 
Service to assure that any ADC plans and actions are consistent with 
the standards and guidelines in the applicable forest plan. As already 
stated under comments on ``Forest Service Abdication of 
Responsibility'', the Forest Service retains the ability to assure that 
ADM plans and actions are consistent with forest plan requirements.

10. NEPA Analysis and Disclosure on Proposed Policy

    Comment: Seventeen respondents asserted that the Forest Service 
must ``complete an Environmental Impact Statement (EIS) to analyze the 
impact of this transfer.'' Six stated that an Environmental Assessment 
(EA) is needed.
    Response: The Forest Service disagrees. Section 31.1b of Forest 
Service Handbook 1909.15 (57 FR 43180; September 18, 1992) excludes 
``rules, regulations, or policies to establish Service-wide 
administrative procedures, program processes, or instructions.'' Based 
on consideration of the comments received on the proposed policy, and 
the nature and scope of the proposed policy, the Forest Service has 
determined that this policy falls within this category of actions and 
that no extraordinary circumstances exist which would require 
preparation of an environmental assessment or environmental impact 
statement.

11. Use of Pesticides in Animal Damage Management

    Comment: Two respondents were concerned about the use of pesticides 
on NFS lands stating that the Forest Service does not ``understand the 
public's biological concerns about the use of pesticides and the 
effects on wildlife'' and ``that no one is responsible for overseeing 
of tracking sodium cyanide in M-44s''.
    Response: By law and regulation, both APHIS and the Forest Service 
allow only certified individuals to administer pesticides being used on 
NFS lands for animal damage management activities. APHIS reports their 
use of pesticides annually to the Environmental Protection Agency 
(EPA). The Forest Service also annually reports pesticide use. Use of 
sodium cyanide present in M-44s would appear in APHIS reports.

Conclusion

    Having carefully considered the comments received in response to 
the June 13, 1994, notice of proposed policy and having reconsidered 
the 1993 Animal Damage Management MOU between the Forest Service and 
APHIS, the Forest Service is adopting the revised Animal Damage 
Management policy as proposed, except for the revisions noted in the 
response to public comments and several minor technical revisions. The 
agency believes the policy is fully responsive to the agency's legal 
and management obligations. The policy implements the 1993 Memorandum 
of Understanding which recognizes APHIS as the lead for NEPA compliance 
where APHIS is the action proposing agency. APHIS has entered into a 
similar agreement with the Bureau of Land Management of the U.S. 
Department of Interior, thus providing a fully coordinated, streamlined 
and consistent approach to NEPA compliance across all land ownerships 
on federally-funded animal damage management activities to be 
undertaken by APHIS. This partnership with APHIS will achieve 
efficiencies through both economies of scale and integrated NEPA 
documentation. The full text of the directive as it will appear in the 
Forest Service Manual is set out at the end of this notice.

Environmental Impact

    This policy provides administrative instructions to Forest Service 
field offices on the procedures and processes to follow in order to 
coordinate with APHIS on animal damage management activities and 
implements the terms of the 1993 Memorandum of Understanding between 
the Forest [[Page 22042]] Service and APHIS. As noted in the response 
to comments, section 31.1b(2) of Forest Service Handbook 1909.15 (57 FR 
43180, Sept. 18, 1992) excludes from documentation in an environmental 
assessment or impact statement ``rules, regulations, or policies to 
establish Servicewide administrative procedures, program processes, or 
instructions.'' Accordingly, the agency's assessment is that this 
policy falls within this category of action and that no extraordinary 
circumstances exist which would require preparation of an environmental 
assessment or environmental impact statement. This decision is further 
documented in a Decision Memo available from the Forest Service through 
the Wildlife Program Leader whose address is provided as a contact for 
further information at the beginning of this notice.
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 12866 on Regulatory Planning and Review. It has been determined 
that this is a significant policy.

    Dated: April 5, 1995.
David G. Unger,
Associate Chief.

FSM 2600--Wildlife, Fish, and Sensitive Plant Habitat Management

Chapter 2650--Animal Damage Management

    (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 the subject of this notice are set 
out here. The audience for this direction is Forest Service 
employees charged with coordinating with the Animal and Plant Health 
Inspection Service--Animal Damage Control Unit on animal damage 
management activities on National Forest System lands.)

    The Forest Service and Animal and Plant Health Inspection Service 
(APHIS)--Animal Damage Control program along with the states, cooperate 
under the Animal Damage Control Act of 1931, as amended, to manage 
animal damage on National Forest System lands. These activities include 
actions to provide wildlife damage management through direct control, 
as well as technical assistance to achieve desired management 
objectives. APHIS carries out animal damage management activities on 
National Forest System lands, mostly to minimize livestock losses from 
predation by coyotes, black bears, and other predators. The Forest 
Service conducts activities to control animal damage caused by small 
mammals and other animals to National Forest System resources, such as 
timber stands and roads.
    2650.1--Authority. In addition to the authorities listed in FSM 
2601, the following authorities govern animal damage management 
activities on National Forest System lands:
    1. The Animal Damage Control Act of March 2, 1931, as amended, (7 
U.S.C. 426-426c) authorizes the Secretary of Agriculture to provide 
animal damage management services, to maintain technical expertise for 
evaluating and recommending animal damage management techniques, and to 
perform animal damage research. The Secretary has delegated this 
authority to the Animal and Plant Health Inspection Service (APHIS) and 
the Animal Damage Control program in APHIS is specifically responsible 
for ADM activities.
    2. The Federal Insecticide, Fungicide, and Rodenticide Act limits 
the use of pesticides to those that are properly registered in 
accordance with federal and state requirements for animal damage 
management and that conform to policies on pesticide-use management and 
coordination (FSM 2150). (61 stat. 63, as amended; 7 U.S.C. 136 (note), 
136, 136b, 136i-m, 136p)
    3. Executive Order 12342, January 24, 1982, permits the use of 
chemical toxicants registered by the Environmental Protection Agency 
for predator damage control on federal lands.
    4. Department of Agriculture Regulation (DR) 9500-4 (FSM 2601.2) 
requires Department of Agriculture programs to include measures to 
alleviate damage by plant and animal pests; develop new techniques and 
methodologies through management and research programs to limit damage 
to agriculture or forestry production; and apply integrated pest 
management practices, where feasible, in carrying out these 
responsibilities.
    5. A Memorandum of Understanding (MOU) between APHIS and the Forest 
Service, June 18, 1993, outlines the cooperative approach to animal 
damage management on National Forest System lands. Both agencies have a 
joint responsibility for limiting damage caused by wildlife. In this 
MOU, APHIS and state agencies are recognized as having the authority 
and expertise to conduct predator control on National Forest System 
lands, to determine livestock losses, and to determine methodology for 
animal damage management. Under the MOU, APHIS is named the lead agency 
in preparing environmental documentation for predator control and other 
animal damage management activities initiated by APHIS on National 
Forest System lands.
    Also, under the MOU, the Forest Service agrees to:
    a. Cooperate to ensure that the animal damage management plans 
developed by APHIS will provide for protection of National Forest 
System resources and;
    b. Cooperate with APHIS in the development of work plans to ensure 
consistency with forest land and resource management plans. See FSM 
1543.14 for the full text of the MOU.
    2650.2--Objective. The objective of animal damage management 
activities is to protect National Forest System resources, to protect 
activities taking place on National Forest System lands, and to reduce 
threats to human health and safety.
    2650.3--Policy. National Forest System resources must be adequately 
protected during animal damage management activities authorized by the 
states and conducted by the states or Animal and Plant Health 
Inspection Service (APHIS)--Animal Damage Control program. This policy 
in no way defines or limits the authority of States to regulate the 
taking of predators according to State and other applicable Federal 
laws.
    When the Forest Service conducts animal damage management 
activities, such as controlling small mammal populations on 
plantations, the agency must comply fully with state and federal laws. 
In carrying out animal damage management activities, Forest Service 
employees shall--
    1. Rely upon APHIS or the state agencies to provide the expertise 
and conduct predator control on National Forest System lands, to 
determine livestock losses, and to determine methodology for animal 
damage management.
    2. Conduct non-predator animal damage management, such as 
controlling small mammal populations on plantations, and necessary 
environmental analysis and disclosure on National Forest System lands 
consistent with forest plans.
    3. Coordinate with the Bureau of Land Management (BLM) and other 
federal and state agencies to improve effectiveness of control program 
activities conducted on National Forest System and other public 
lands. [[Page 22043]] 
    4. Use an integrated approach to the prevention of animal damage 
and management of animal damage control programs. Consider a full range 
of methods, including physical barriers, repellents, habitat 
manipulation, biological controls, silvicultural methods (for example, 
fertilizing to improve soil fertility), pesticides, and hunting and 
trapping. Use licensed hunting, fishing, and trapping as a control 
technique where practicable.
    5. Follow direction in FSM 2670, Threatened, Endangered, and 
Sensitive Plants and Animals, to determine whether proposed control 
measures conducted by the Forest Service are likely to have an effect 
on federally proposed, threatened, endangered, or sensitive species.
    Additionally, the lead agency responsible for completing 
environmental documentation is also responsible for completion of all 
Endangered Species Act-mandated interagency consultations. However, the 
Forest Service will be a cooperating agency with APHIS during 
consultation under the Endangered Species Act where actions involve 
National Forest System resources or authorities.
    2650.4--Responsibility.
    2650.41--Deputy Chief for National Forest System. The Deputy Chief 
for the National Forest System is responsible for resolving any 
difficulties arising between Regions and the Animal and Plant Health 
Inspection Service (APHIS)--Animal Damage Control program that cannot 
be resolved by Regional Foresters under the Memorandum of Understanding 
(FSM 1543.14).
    2650.42--Regional Foresters. Regional Foresters are responsible 
for:
    1. Reviewing and approving all proposed pesticide uses for animal 
damage management on National Forest System lands (FSM 2151). Regional 
Foresters may redelegate this authority to Forest Supervisors, except 
that only Regional Foresters may approve animal damage management in 
wilderness (FSM 2323).
    2. Establishing or amending existing Memorandums of Understanding 
between the Region and appropriate State and other federal agencies 
regarding animal damage management.
    3. Reviewing all proposed Forest Service animal damage management 
activities within areas occupied by and habitat of federally proposed 
or listed threatened or endangered species and Regional Forester 
approved sensitive species. Regional Foresters may redelegate this 
authority to Forest Supervisors.
    4. Meeting with or designating a representative to meet with State 
or regional representatives, such as the APHIS Regional Director, as 
needed to coordinate animal damage management operations.
    5. Resolving any difficulties arising among APHIS personnel and 
Forest Supervisors under the Memorandum of Understanding (FSM 1543.14), 
or referring unresolved issues to the Deputy Chief, National Forest 
System, for resolution.
    2650.43--Forest Supervisors. Forest Supervisors are responsible 
for:
    1. Ensuring appropriate environmental analysis requirements are met 
for proposed non-predator control activities conducted by the Forest 
Service and ensuring consistency with forest plan direction.
    2. Recommending changes in state hunting, fishing, or trapping 
regulations to accommodate animal damage management activities on 
National Forest System lands (FSM 2640).
    3. Meeting with APHIS personnel and responsible state agencies to 
cooperate where proposed predator control is needed to ensure 
coordination of Forest Service resources or activities on National 
Forest Systems lands.
    4. Cooperating with APHIS in preparation of environmental 
documentation for predator control or other animal damage management 
activities conducted by APHIS on National Forest System lands (40 CFR 
1508.15).
    5. As necessary, referring any difficulties arising from activities 
with APHIS under the Memorandum of Understanding (FSM 1543.14) for 
resolution by the Regional Forester.
    6. When needed, requesting training from APHIS in animal damage 
management techniques.
    7. Ensuring that licensing and certification of Forest Service 
personnel performing animal damage management activities comply with 
applicable federal and state regulations and that certified pesticide 
applicators use or supervise the use of restricted-use pesticides on 
National Forest Systems Lands (FSM 2150).
    2650.6--Cooperation in Animal Damage Management Activities. Both 
the Forest Service and Animal and Plant Health Inspection Service 
(APHIS)--Animal Damage Control program have a responsibility for 
limiting damage caused by wildlife, consistent with other wildlife 
values and resource management objectives. APHIS responsibilities are 
generally directed toward the management and control of animals causing 
damage to livestock, agriculture, wildlife, and human health and 
safety. Trapping or shooting coyotes to prevent losses of sheep or 
cattle are examples of these activities.
    Forest Service animal damage management activities are related to 
the management of National Forest System resources. Examples of Forest 
Service initiated activities include, but are not limited to, removing 
beavers that are damaging roads, reducing bear damage to tree 
regeneration and controlling mice and pocket gophers to protect 
seedlings. Pursuant to the delegation of authority to APHIS at section 
2.51 (a)(41) of Title 7 of the code of Federal Regulations (7 CFR 2.51 
(a)(41)), the 1993 Memorandum of Understanding between the Forest 
Service and APHIS for animal damage management activities (FSM 
1543.14), the role of APHIS is as follows:
    1. Evaluate animal damage management needs and conduct predator 
control in cooperation with the Forest Service, state agencies, and 
permittees.
    2. Serve as lead agency for preparing environmental documentation 
on animal damage management activities initiated by APHIS on National 
Forest System lands.
    3. Develop and update animal damage management work plans in 
cooperation with the Forest Service and appropriate state and federal 
agencies, and interested publics to ensure compliance with forest 
plans.
    4. Inform the Forest Service about animal damage management 
requests, management activities, and results on a timely basis.
    5. Provide the Forest Service with technical information on 
recommended animal damage management tools and techniques.
    6. Conduct animal damage management training sessions for Forest 
Service personnel, when requested.
    2651--WILDLIFE AND FISH DAMAGE MANAGEMENT.
    2651.1--Threatened and Endangered Species. Follow specific species 
control plans for federally listed species (for example, grizzly bear 
and wolf) cleared through consultation with the Fish and Wildlife 
Service and National Marine Fisheries Service.
    2651.2--Game and Furbearers. Control damage caused by game animals 
and furbearers through hunting or trapping, where practicable, in 
cooperation and consultation with the State fish and wildlife agencies, 
and APHIS, where appropriate.
    2651.3--Nongame Species. Control damage caused by nongame species 
on National Forest System lands in close cooperation with the State 
fish and [[Page 22044]] wildlife agencies, or other involved state or 
federal agencies.
    2651.4--Birds. Nonlethal repellents, frightening devices, 
pesticides, or physical barriers may be used to prevent or reduce 
resource damage or hazards, where birds damage reforestation or other 
resources, or where they create health hazards. Obtain permits from the 
Fish and Wildlife Service for any lethal control of species protected 
under the Migratory Bird Treaty Act. Consult the Fish and Wildlife 
Service for permit requirements and procedures.
    2651.5--Fish and Aquatic Animals. States or other responsible 
agencies have the authority to control undesirable fish and aquatic 
animals in National Forest System waters. The Forest Service is 
responsible for coordinating with the responsible agencies to develop a 
work plan to ensure control activities are consistent with direction 
provided in forest plans. Control activities conducted by the Forest 
Service must meet appropriate environmental analysis requirements and 
be consistent with forest plan direction.
    2651.6--Wildlife and Fish Damage Management in Wilderness Areas. 
Follow direction in FSM 2151, FSM 2323, and FSM 4063 for management of 
wildlife or fish damage in wilderness and Research Natural Areas. 
Animal damage management is permitted in wilderness only when it was 
used prior to wilderness designation; when it conforms with direction 
in FSM 2323.33 on resource management in wilderness; and when it is 
needed for the recovery of federally listed threatened or endangered 
species.
    2652--REPORTS. Report pesticide uses annually following direction 
in FSM 2158.

[FR Doc. 95-10918 Filed 5-3-95; 8:45 am]
BILLING CODE 3410-11-M