Animal Damage Management

DEPARTMENT OF AGRICULTURE

Forest Service

[RIN 059-AB47]

Animal Damage Management

AGENCY: Forest Service, USDA.

ACTION: Notice; adoption of final policy.

-----------------------------------------------------------------------

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