[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