[Federal Register Volume 71, Number 221 (Thursday, November 16, 2006)]
[Proposed Rules]
[Pages 66715-66720]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-19197]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Parts 241, 251, 261

RIN 0596-AC33


Piscicide Applications on National Forest System Lands

AGENCY: Forest Service, USDA.

ACTION: Proposed rule; request for public comments.

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SUMMARY: The Forest Service proposes to amend Title 36 Code of Federal 
Regulations (CFR) parts 241, 251 and 261. Relevant sections of the 
Forest Service Manual (FSM) 2151, 2152, 2153, 2610, 2651 and 2719; and 
Forest Service Handbook (FSH) 2109.14, would also be revised to reflect 
the changes in the regulations. Title 36 CFR part 241 addresses the 
cooperation between the agency and State fish and game management 
agencies and governs the agency's responsibility in these partnerships. 
Part 251 sets out requirements governing special uses on National 
Forest System lands and identifies the categories of uses for which a 
special use authorization is required. Part 261, subpart A sets out the 
general prohibitions of activities on National Forest System lands, 
while subpart B provides for prohibition of activities on National 
Forest System lands by closure orders.
    The proposed amendment to the rule would result in three changes. 
The principle change, in part 241, would establish criteria for State 
piscicide use on National Forest System lands, outside designated Wild 
and Scenic Rivers or Congressionally designated Wilderness and 
Wilderness Study Areas. A provision that State piscicide applications 
outside designated Wilderness and Wilderness Study Areas are not 
``special uses'' requiring special use authorization would be added to 
36 CFR 251.50. A paragraph would be inserted into 36 CFR 261.50 to 
specifically provide for closure of an area, under specific 
circumstances, to prohibit piscicide application. In addition, the 
ambiguous phrase ``other minor uses,'' which refers to pesticide uses, 
would be eliminated in 36 CFR 261.9(f). The proposed rule changes would 
provide an efficient and standardized national approach for the 
application of piscicides by State agencies on National Forest System 
lands while retaining the Forest Service's authority over such use. 
Public comment is invited and will be considered in development of the 
final rule.

DATES: Comments must be received, in writing, January 16, 2007.

ADDRESSES: Written comments concerning this notice should be addressed 
to Dr. Jesus A. Cota at Forest Health Protection Staff, 1601 N. Kent 
St., RPC, 7th Floor (FHP), Arlington, VA 22209. Comments for Dr. Jesus 
A. Cota may be sent via e-mail to [email protected] or via 
facsimile to (703) 605-5353.
    All comments, including names and addresses when provided, are 
placed in the record and are available for public inspection and 
copying. The public may inspect comments received at the Forest Service 
office of the Forest Health Protection staff, 1601 N. Kent St., RPC, 
7th Floor (FHP), Arlington, VA 22209. Due to security requirements, 
visitors are encouraged to call ahead to (703) 605-5352 to facilitate 
entry to the building.

FOR FURTHER INFORMATION CONTACT: Dr. Jesus A. Cota at Forest Health 
Protection Staff, at (703) 605-5344 (e-mail: [email protected]) or Ronald 
Dunlap at Watershed, Fish, Wildlife, Air and Rare Plants Staff, at 
(202) 205-1790 (e-mail: [email protected]).
    Individuals who use telecommunication devices for the deaf (TDD) 
may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 
between 8 a.m. and 8 p.m., eastern standard time, Monday through 
Friday.

SUPPLEMENTARY INFORMATION: State agencies and the Forest Service share 
responsibility for the protection and management of fish and wildlife 
populations on National Forest System (NFS) lands. A number of Federal 
land management statutes acknowledge the States' traditional role in 
managing fish and wildlife populations by affirming that the statutes 
do not affect the jurisdiction or responsibilities of the States with 
respect to wildlife and fish on the National Forests; see the Organic 
Administration Act at 16 U.S.C. 480; the Multiple-Use Sustained-Yield 
Act at 16 U.S.C. 528; the Sikes Act at 16 U.S.C. 670h; the Federal Land 
Policy and Management Act at 43 U.S.C. 1732; and the Wilderness Act at 
16 U.S.C. 1131-1136. In acknowledging State

[[Page 66716]]

jurisdiction and responsibilities, however, these statutes do not 
diminish the Federal Government's coexistent jurisdiction and 
responsibilities.
    Overall, the Forest Service and State agencies have enjoyed long-
standing and mutually beneficial partnerships. On some management 
issues, such as hunting and fishing, the States generally exercise 
virtually all management responsibility. On other issues, Forest 
Service and the States exercise their responsibilities cooperatively, 
with the State and Forest Service working out issues in order to 
satisfy any concerns. This cooperative, informal approach has generally 
worked except on occasions when Forest Service special authorizations 
have been required. Under the current rules, the States must obtain 
special use authorization for the application of pesticides, including 
piscicides, on units of the NFS.
    Piscicides are chemicals intended to kill fish. Piscicides are the 
most effective means of eradicating invasive species or making 
habitat--streams, lakes or other bodies of water--available for desired 
aquatic species. A State piscicide project is generally understood to 
include the following activities: The ground transportation of 
supplies, equipment and personnel to and from the project site; the 
construction or setup of a temporary downstream barrier to ensure that 
target species do not escape the application of the piscicide 
(typically a block net, in place for a month or less); the application 
of an Environmental Protection Agency (EPA) approved piscicide to the 
target waters; the detoxification of the waters by chemically 
neutralizing the effects of the piscicide; and pretreatment and post 
treatment monitoring.
    The proposed amendment to the rule would strengthen the cooperative 
relationship between the Forest Service and the State(s) by setting 
criteria for State piscicide use on NFS lands; where a State piscicide 
use meets the criteria, it may proceed. The rule does not change the 
Forest Service's ability to use a closure order to preclude the action 
where necessary to protect NFS resources.
    Not requiring the special use authorization process for State 
piscicide applications would reduce the time between a State's 
proposing an action and the execution of that action. A State would 
know beforehand the precise information it must supply the Forest 
Service before it can proceed with a piscicide project and would need 
not wait for a special use authorization to be granted.
    Timing is important in accomplishing piscicide projects, 
particularly with respect to control and eradication of invasive 
species. Where rapid control or eradication of invasive species is not 
possible, risk to native fish can increase dramatically, as can control 
costs. The special use authorization process has often resulted in 
increased costs or failure to achieve management goals, such as control 
of invasive species; recovery, downlisting or delisting of threatened 
and endangered species; and has caused friction in long-standing State-
Federal partnerships.
    The standard set of criteria established in the rule also would 
provide consistency from NFS unit to unit, and State to State. 
Currently, a State with a number of national forests within its borders 
may have to meet a different set of criteria or conditions for each of 
those NFS units. Over time, a State may have to meet a different 
criteria within the same NFS unit. Under the proposed rule, a State 
would know the criteria it must meet on any NFS unit. Moreover, the 
same criteria would apply to every State. The criteria have been 
designed to eliminate duplicative State and Federal procedures while 
ensuring adequate protection of resources.
    Although the Forest Service proposes to change the manner in which 
it exercises its responsibilities, it does not anticipate that this 
rule change would change the frequency and manner of piscicide use by 
States on NFS land. State and Forest Service cooperation has always 
extended to such use, and, as described in the ``Section-by-section 
explanation of the proposed rule,'' the criteria that would be 
established in this Rule are practices that generally have been 
required by Forest Service authorizations, and by the States themselves 
on their operations. The reporting requirements also would formalize a 
long-standing practice. The Forest Service is required to maintain 
records of restricted-use pesticides and to annually report all 
pesticide use on its lands. In addition, field units are required to 
report to the Washington Office all accidents and incidents involving 
pesticides; this provision is included to ensure that the Forest 
Service will have a thorough accounting of use on National Forest 
System lands.
    The rule does not change the requirement that States obtain a 
special use authorization to use piscicides within congressionally 
designated wilderness and wilderness study areas, as well as designated 
wild and scenic rivers. The Wilderness Act provides that ``each agency 
administering any area designated as wilderness shall be responsible 
for preserving the wilderness character of the area,'' and also that 
``except as necessary to meet minimum requirements for the 
administration of the area for the purposes of this Act * * * there 
shall be no * * * use of motor vehicles, motorized equipment or 
motorboats, * * * no other form of mechanical transport, and no 
structure or installation within any such area.'' The Forest Service 
must retain its authority to determine whether a proposed piscicide 
application would be appropriate in wilderness, particularly where 
motorized equipment or installation of temporary structures would be 
involved, as is often the case. Likewise, it is appropriate for the 
Forest Service to require that States obtain special use authorization 
within the Wild and Scenic Rivers System, to ensure protection of the 
values for which each river has been added to the National Wild and 
Scenic Rivers System (see 16 U.S.C. 1272). Because Congress typically 
requires the Forest Service to manage wilderness study areas so as to 
maintain their presently existing wilderness character and potential 
for inclusion in the National Wilderness Preservation System (see, for 
example the Montana Wilderness Study Act, Pub. L. 95-150, 91 Stat 1243 
(1977)), the U. S. Department of Agriculture (USDA) believes that the 
Forest Service also should require special use authorization for State 
piscicide actions in such areas.

Section-by-Section Explanation of the Proposed Rule

Proposed Changes to 36 CFR Part 241

    A portion of the text of the current section 241.2 would be 
designated as paragraph (a), and new paragraphs (b)(1) through 
(b)(4)(ii) would be added to specifically refer to State application of 
piscicides within the National Forest System.
    Paragraph (b)(1) would require the State to provide notice of a 
piscicide project to the supervisor for the NFS unit within which the 
project would take place. This provision requires communication between 
State and Federal agencies regarding any fish or wildlife management 
project the State undertakes on Federal land, and specifies the 
particular information to provide regarding the piscicide project. The 
proposed rule provides that 60 days prior to the date the project is to 
take place, the State is to give the Forest Service notice of the 
reason for the project; its location and scope; the specific piscicide 
and amount to be applied; the method of application; and the time 
period in which the project would occur. The qualifications of the 
persons to apply the piscicide must be

[[Page 66717]]

stated. The Forest Service believes that 60 days is an appropriate time 
period in which the Forest Service can consider whether it has concerns 
about the project, and the State and Forest Service can address and 
satisfy those concerns. The information required to be provided would 
help ensure that the Forest Service has sufficient information to know 
that the project would fit the criteria set out in paragraphs (b)(3)(i) 
through (b)(3)(vi), so that the project may proceed.
    Paragraph (b)(3) on criteria allows the Forest Service to waive the 
60-day notice period in an emergency, when rapid action is necessary, 
such as to eradicate an invasive species that has the potential to 
increase quickly.
    Paragraph (b)(2) identifies reporting requirements. By December 1 
of each year, the State is required to report to the applicable 
supervisor all piscicide projects the State has conducted during the 
Federal fiscal year (October 1-September 30) on the administrative unit 
under the supervisor's responsibility. The information is necessary for 
the Forest Service field units to fulfill their recording of 
restricted-use pesticides as required under the Federal Insecticide, 
Fungicide, and Rodenticide Act (FIFRA) and to report to the Washington 
Office all pesticide use on National Forest System lands. This section 
also requires immediate reporting of accidents or incidents involving 
piscicide use on the administrative unit. Examples of accidents or 
incidents to report are: piscicide spills, crashes of aircraft or 
vehicle with piscicides on board, and injury or fatality of application 
personnel for any reason in the preparation or execution of the project 
piscicide.
    Paragraph (b)(3)(i) through (vi) provides that States need not 
obtain special use authorization for piscicide projects that are 
outside Congressionally designated Wilderness, Wilderness Study Areas, 
and designated Wild and Scenic Rivers and that meet certain criteria 
set out in that paragraph. The project must be in compliance with all 
Federal laws and regulations, and must be consistent with the Land and 
Resource Management Plan for the administrative unit within which the 
project will occur, in addition to any applicable or relevant aquatic 
resource recovery plan or species management plan. The piscicide to be 
applied must be registered for that purpose with EPA, and restricted 
use piscicide must be applied by certified personnel or under the 
supervision of a certified pesticide applicator.
    The purpose of the project must be for the management of aquatic 
resources. The Forest Service expects that projects would continue to 
be carried out for the reintroduction, maintenance, or enhancement of 
native and desired species, particularly in habitat occupied by 
invasive species; and to maintain sport fisheries. Also, the project 
must be designed to ensure that there is no long-term impairment to 
ecosystem functions, or unreasonable interference with other uses on 
National Forest System lands. Some short-term impairment, such as a 
temporary reduction in macro-invertebrate populations, is a common 
consequence of piscicide application, and would not preclude a 
piscicide project that meets all the criteria in the rule from going 
forward on National Forest System lands. A project of such extent and 
intensity that would result in long-term impairment of ecosystem 
functions, however, would not meet this criterion. In addition, the 
project must be designed so that it would not interfere with other 
uses, such as shortly before a holiday weekend when many visitors may 
be in the area.
    The project design must include a plan for monitoring to determine 
that the project was effective in meeting its objectives, that 
detoxification successfully neutralized the piscicide, the extent, if 
any, to which the piscicide had drifted, and the impacts to non-target 
species within and outside the treatment area. Like the other criteria, 
this criterion is not expected to impose a new responsibility on the 
States, as monitoring is always an integral part of State piscicide 
projects. Finally, the State must have reported on past piscicide 
projects, as required by this section at (b)(2).
    Paragraph (b)(4)(i) would confirm that State piscicide projects 
within Congressionally designated Wilderness, Wilderness Study Areas 
and designated Wild and Scenic Rivers remain subject to Forest Service 
special use authorization requirements. Paragraph (b)(4)(ii) affirms 
the normal requirement that States, engaged in wildlife and fish 
management activities including piscicide projects, must obtain a 
special use authorization for access over closed roads, trails or 
areas, or for construction or placement of structures and installations 
on NFS lands, unless a structure or installation would be temporary and 
necessary to a piscicide project.

Proposed Changes to 36 CFR Part 251

    Part 251, Subpart B governs special use authorization requirements 
on National Forest System lands and identifies the categories of 
activities that require a special use authorization and those that do 
not. The change to section 251.50 would include the application of 
piscicides by State fish and game management agencies on National 
Forest System lands, consistent with proposed 36 CFR 241.2(b), in the 
category of activities that do not require a special use authorization.

Proposed Changes to 36 CFR Part 261

    Part 261 governs the prohibitions of activities on National Forest 
System lands. Section 261.9(f) specifically prohibits the use of 
pesticides on National Forest System lands and also identifies the 
exceptions to this prohibition. The application of piscicides by State 
fish and game management agencies in accordance with the criteria in 
section 241.2(b) would be included in this list of exceptions. The 
phrase ``other minor uses'' would be removed from the exceptions in 
this list. The phrase is being removed to acknowledge that special use 
authority may be issued for any pesticide use, not just minor uses.
    Section 261.10(a) currently lists activities, including 
constructing, placing or maintaining any kind of road, trail, 
structure, fence, enclosure, communications equipment, or other 
improvement on National Forest System lands or facilities that are 
prohibited except as permitted under the use of such written 
instruments as a special use authorization, contract or operating plan. 
This section currently states that these activities are prohibited 
unless the requirement of such a written instrument is waived pursuant 
to section 251.50(e). Since State piscicide application activities can 
include the set up or construction of a temporary downstream barrier, 
those activities listed under paragraph (a) of section 251.50 are being 
added to section 261.10(a).
    Section 261.50 governs the use of closure orders, including the 
authority, method of posting, and the different reasons for which an 
order can be issued. The proposed changes to this section would specify 
the triggers that can result in the issue of a closure order by the 
Forest Service in order to prohibit a State piscicide project on 
National Forest System lands. One trigger would be if the criteria 
listed in 36 CFR 241.2(b) are not met. An additional trigger would 
include the occurrence of an existing fire incident or other emergency 
that threatens public safety so that a piscicide application at such 
time would not be appropiate. The Forest Service believes that it will 
rarely have to use the proposed closure

[[Page 66718]]

authority. The usual cooperative relationships with States should 
ensure that any problems will be worked out well before the point of 
issuing an order. Nevertheless, the Forest Service believes it must 
retain the option to close an area to piscicide use, if necessary.
    In summary, the principle change under the proposed rule would be 
that a special use authorization for State piscicide projects on 
National Forest Systems lands except in Wilderness and Wilderness Study 
Areas would no longer be required. Instead, States would be required to 
meet specific criteria (36 CFR 241.2(b)) to apply piscicides, and the 
Forest Service will continue to retain final authority over piscicide 
use on National Forest Service lands by means of closure orders instead 
of special use authorizations. This change would not apply to piscicide 
projects proposed in designated Wild and Scenic Rivers and 
Congressionally designated Wilderness and Wilderness Study Areas. 
Although piscicide projects in these areas are not prohibited, because 
of the additional considerations due to the special character of such 
areas, as defined in the Wild and Scenic Rivers Act and the Wilderness 
Act, State piscicide projects proposed in these areas would remain 
subject to Forest Service special use authorization requirements. The 
practice and frequency of piscicide applications by States on National 
Forest System lands is not expected to change as a result of the 
amendment of the rule. The proposed rule change would provide a 
consistent, standardized national approach for the application of 
piscicides on National Forest System lands by State agencies, would 
eliminate the delays associated with the Forest Service special use 
authorization process, and would strengthen long-term Federal and State 
partnerships. The benefit to the States, the Forest Service, and the 
public that would be realized as a result of this proposed rule change 
is the ability for State agencies to proceed in a timely manner with 
piscicide projects to achieve aquatic management objectives which 
include the restoration of aquatic ecosystems, the recovery of listed 
species, and the rapid response to discoveries of new or rapidly 
spreading invasive species.

Regulatory Certifications

Regulatory Impact

    This proposed rule has been reviewed under USDA procedures and 
Executive Order (E.O.) 12866 on Regulatory Planning and Review. The 
Office of Management and Budget (OMB) has determined that this is a 
non-significant rule as defined by E.O 12866. This proposed rule will 
not have an annual effect of $100 million or more on the economy, nor 
adversely affect productivity, competition, jobs, the environment, 
public health or safety, nor State or local governments. This proposed 
rule would not interfere with an action taken or planned by another 
agency nor raise new legal or policy issues. Finally, this proposed 
rule will not alter the budgetary impact of entitlements, grants, user 
fees, or loan programs, or the rights and obligations of recipients of 
such programs. Therefore, it has been determined that this proposed 
rule is not an economically significant regulatory action.
    This proposed rule also has been considered in light of the 
Regulatory Flexibility Act, as amended, (5 U.S.C. 601 et seq.). In 
promulgating this proposed rule, publication of an advance notice of 
proposed rulemaking was not required by law. Further, it has been 
determined that this proposed rule will not have a significant economic 
impact on a substantial number of small business entities as defined by 
that act. Therefore, it has been determined that preparation of a 
regulatory flexibility analysis is not required for this proposed rule.

Environmental Impact

    Section 31.11a of Forest Service Handbook 1909.15 (69 FR 40591; 
July 6, 2004) excludes from documentation in an environmental 
assessment or environmental impact statement ``rules, regulations, or 
policies to establish Service-wide administrative procedures, program 
processes, or instructions.'' The agency's preliminary assessment is 
that this rule falls within this category of actions and that no 
extraordinary circumstances exist which would require preparation of an 
environmental assessment or environmental impact statement. A final 
determination will be made upon adoption of the final rule. Moreover, 
this proposed rule itself has no impact on the human environment. 
Therefore, it has been determined that preparation of an environmental 
assessment or an environmental impact statement is not required in 
promulgating this proposed rule.

Federalism

    The agency has considered this proposed rule under the requirements 
of Executive Order 12612 and has made a preliminary assessment that the 
proposed rule will not have substantial direct effects on the States, 
on the relationship between the Federal Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, the agency has determined that no 
further assessment on federalism implications is necessary at this 
time.

Consultation With Tribal Governments

    This proposed rule has been reviewed under E.O. 13175 of November 
6, 2000, ``Consultation, and Coordination With Indian Tribal 
Governments.'' This proposed rule does not have substantial direct 
effects on one or more Indian Tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes. 
Nor does this proposed rule impose substantial direct compliance costs 
on Indian tribal governments or preempt tribal law. Therefore, it has 
been determined that this proposed rule does not have tribal 
implications requiring advance consultation with Indian tribes.

No Takings Implications

    This proposed rule has been reviewed for its impact on private 
property rights under Executive Order 12630. It has been determined 
that this proposed rule does not pose a risk of taking private 
property.

Controlling Paperwork Burdens on the Public

    This proposed rule does not contain any recordkeeping or reporting 
requirements or other information collection requirements as defined in 
5 CFR part 1320 and, therefore, imposes no paperwork burden on the 
public. Accordingly, the review provisions of the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3501, et seq.) and implementing regulations at 5 
CFR part 1320 do not apply.

Energy Effects

    This proposed rule has been reviewed under E.O. 13211 of May 18, 
2001, ``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use.'' This proposed rule will not have a 
significant adverse effect on the supply, distribution, or use of 
energy. Nor has the Office of Management and Budget designated this 
rule as a significant energy action. Therefore, it has been determined 
that this proposed rule does not constitute a significant energy action 
requiring the preparation of a Statement of Energy Effects.

[[Page 66719]]

Civil Justice Reform

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. After adoption of this proposed rule, (1) All 
State and local laws and regulations that conflict with this rule or 
that would impede full implementation of this rule will be preempted 
(2) no retroactive effect would be given to this proposed rule; and (3) 
this proposed rule would not require the use of administrative 
proceedings before parties could file suit in court challenging its 
provisions.

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), the agency has assessed the effects of this proposed 
rule on State, local, and tribal governments, and on the private 
sector. This proposed rule does not compel the expenditure of $100 
million or more by any State, local, or tribal government, or anyone in 
the private sector. Therefore, a statement under section 202 of the act 
is not required.

List of Subjects

36 CFR Part 241

    Fish, Intergovernmental relations, National forests, Wildlife, 
Wildlife refuges.

36 CFR Part 251

    Administrative practice and procedure, Alaska, Fish, National 
Forests, Public lands, Reporting and recordkeeping requirements, 
Wildlife.

36 CFR Part 261

    Law enforcement, National Forests.

    For the reasons stated in the Preamble, the Forest Service proposes 
to amend 36 CFR Chapter II as follows:

PART 241--FISH AND WILDLIFE

    1. The authority citation for part 241 continues to read as 
follows:

    Authority: 16 U.S.C. 472, 539, 551, 683.

Subpart A--General Provisions

    2. Revise Sec.  241.2 to read as follows:


Sec.  241.2  Cooperation in wildlife management.

    The Chief of the Forest Service, through the Regional Foresters and 
Forest Supervisors, shall determine the extent to which national 
forests or portions thereof may be devoted to fish and wildlife 
protection in combination with other uses and services of the national 
forests, and, in cooperation with the Fish and Game Department or other 
constituted authority of the State concerned, will formulate plans for 
securing and maintaining desirable populations of wildlife species, and 
may enter into such general or specific cooperative agreements with 
appropriate State officials as are necessary and desirable for such 
purposes. Officials of the Forest Service will cooperate with State 
game officials in:
    (a) The planned and orderly removal in accordance with the 
requirements of State laws of the crop of game, fish, fur-bearers, and 
other wildlife on national forest lands;
    (b) The application of piscicides within the National Forest System 
by State fish and game management agencies.
    (1) Notice. Written notice of a project involving the application 
of piscicides by State agencies on National Forest System lands must be 
provided to the Supervisor for the affected administrative unit and 
must:
    (i) Precede the project by at least 60 days, unless the Forest 
Service agrees that an emergency requiring response within a shorter 
period of time exists.
    (ii) Include a description of the purpose of the project, the 
location and scope of the project, the piscicide to be applied, the 
amount applied, the method of application, the qualifications of the 
persons that will apply the piscicides, the time period within which 
the piscicides will be applied, and the monitoring plan for the 
project.
    (2 ) Reporting. By December 1 of each year the State must provide 
to the Supervisor, in writing, information on piscicide use within the 
administrative unit under the Supervisor's jurisdiction, and monitoring 
results for such uses, including: The name of the piscicide active 
ingredients (AI), the formulation used, the amount applied, and the 
total area within the administrative unit treated during the Federal 
fiscal year. The State shall immediately report any accident or 
incident involving piscicides occurring on National Forest System lands 
to the Supervisor for the administrative unit where the accident or 
incident occurred.
    (3 ) Criteria for State piscicide projects outside Wild and Scenic 
Rivers, Wilderness, and Wilderness Study Areas. Forest Service special 
use authorization is not required for State piscicide projects that 
would occur outside designated Wild and Scenic Rivers or 
Congressionally designated Wilderness and Wilderness Study Areas and 
that meet the following criteria:
    (i) The project is in compliance with all Federal laws and 
regulations;
    (ii) The project is consistent with the Land and Resource 
Management Plan plus any relevant Aquatic Resource Recovery Plan and 
Species Management Plan;
    (iii) The piscicides to be applied are currently registered with 
EPA and restricted-use piscicides will only be applied by a certified 
pesticide applicator or those under the supervision of a certified 
pesticide applicator;
    (iv) The purpose of the project is for the management of aquatic 
resources;
    (v) The project is designed in concert with the local Forest to 
address any issues related to ecosystem functions and existing uses of 
the National Forest System lands;
    (vi) The project design includes a plan for monitoring within 60 
days of treatment, including:
    (A) Effectiveness monitoring to determine whether project 
objectives were met;
    (B) Detoxification monitoring to determine whether piscicide 
neutralization was successful; and
    (C) Non-target monitoring to determine piscicide drift and impacts 
to non-target species.
    (vii) The State has provided reports on past piscicide use as 
required by paragraph (2).
    (4) Special Use Authorization Requirements.
    (i) Piscicide projects within designated Wild and Scenic Rivers or 
Congressionally designated Wilderness and Wilderness Study Areas are 
subject to special use authorization requirements of 36 CFR part 251 
subpart B.
    (ii) Nothing in this Rule exempts a State from the requirement to 
obtain a special use authorization in accordance with 36 CFR part 251 
subpart B, for any purpose to gain access over a closed road or trail, 
or through a closed area; or to construct structures or installations 
beyond those temporary structures or installations that are a necessary 
part of a piscicide project.

PART 251--LAND USES

Subpart B--Special Uses

    3. The authority citation for subpart B continues to read as 
follows:

    Authority: 16 U.S.C. 4601-6a, 4601-6d, 472, 497b, 497c, 551, 
580d, 1134, 3210; 30 U.S.C. 185; 43 U.S.C. 1740, 1761-1771.

    4. Amend Sec.  251.50 by revising paragraph (a) to read as follows:


Sec.  251.50  Scope.

    (a) All uses of National Forest System lands, improvements, and 
resources,

[[Page 66720]]

except those authorized by the regulations governing sharing use of 
roads (Sec.  212.9); grazing and livestock use (part 222); the sale and 
disposal of timber and special forest products, such as greens, 
mushrooms, and medicinal plants (part 223); minerals (part 228); and 
the application of piscicides by State fish and game management 
agencies outside of designated Wild and Scenic Rivers and 
Congressionally designated Wilderness and Wilderness Study Areas (part 
241) are designated ``special uses.'' Before conducting a special use, 
individuals or entities must submit a proposal to the authorized 
officer and must obtain a special use authorization from the authorized 
officer, unless that requirement is waived by paragraphs (c) through 
(e)(3) of this section.
* * * * *

PART 261--PROHIBITIONS

    5. The authority citation for part 261 continues to read as 
follows:

    Authority: 7 U.S.C. 1011(f); 16 U.S.C. 472, 551, 620(f), 
1133(c), (d)(1), 1246(i).

Subpart A--General Prohibitions

    6. Revise Sec.  261.9(f) to read as follows:


Sec.  261.9  Property.

* * * * *
    (f) Using any pesticide except for:
    (1) Personal use as an insect repellent;
    (2) Application of piscicides on National Forest System lands by 
State fish and game management agencies in accordance with section 
241.2(b) of this chapter;
    (3) Other pesticide use authorized pursuant to part 251, subpart B 
of this chapter.
* * * * *
    7. Revise Sec.  261.10 (a) to read as follows:


Sec.  261.10  Occupancy and use.

* * * * *
    (a) Constructing, placing, or maintaining any kind of road, trail, 
structure, fence, enclosure, communications equipment, or other 
improvement on National Forest System lands or facilities without a 
special use authorization, contract, or approved operating plan, unless 
such authorization, contract, or operating plan is waived pursuant to 
section 251.50(a) or (e) of this chapter.
* * * * *

Subpart B--Prohibitions in Areas Designated by Order

    8. Amend Sec.  261.50 by adding paragraphs (g) to read as follows:


Sec.  261.50  Orders.

* * * * *
    (g) The Chief, each Regional Forester, each Experiment Station 
Director, the Administrator of the Lake Tahoe Basin Management Unit and 
each Forest Supervisor may issue orders to close an area to prohibit 
piscicide applications by State agencies under the following 
circumstances:
    (1) A proposed State piscicide application that does not meet the 
requirements specified under 36 CFR 241.2(b), or
    (2) Existing fire incident or other emergencies that threaten 
public safety.

    Dated: October 18, 2006.
Dale N. Bosworth,
Chief, Forest Service.
 [FR Doc. E6-19197 Filed 11-15-06; 8:45 am]
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