E6-8839. Predator Damage Management in Wilderness Areas

AGENCY:

Forest Service, USDA.

ACTION:

Notice of proposed directives; request for comment.

SUMMARY:

The Forest Service is proposing to revise its directives on predator damage management in wilderness areas. Guidance to Forest officers in the management of predator damage in wilderness areas is contained in the Forest Service Manual (FSM) Title 2300, Recreation, Wilderness, and Related Resources Management and FSM 2600, Wildlife, Fish, and Sensitive Plant Habitat Management. These proposed directives would conform agency direction regarding predator damage with provisions in an interdepartmental Memorandum of Understanding (MOU) between the USDA Animal and Plant Health Inspection Service, Wildlife Services Division and the USDA Forest Service. The MOU, first entered into in 1993, was renewed in 1998, and again in 2004, with minor revisions. Comments received in response to this notice will be considered in development of the final directives for predator damage management on National Forest System lands, including wilderness.

DATES:

Comments must be received in writing by August 7, 2006.

ADDRESSES:

Send written comments to Forest Service, USDA, Attn: Director, Wilderness and Wild and Scenic Rivers Resources, 201 14th Street, SW., Washington, DC 20250; by electronic mail to [e-mail]; or by fax to [phone]. Comments may also be submitted by following the instructions at the Federal e-Rulemaking portal, http://www.regulations.gov. If comments are sent by electronic mail or by fax, the public is requested not to send duplicate written comments via regular mail. Please confine written comments to issues pertinent to the proposed directives; explain the reasons for any recommended changes; and, where possible, reference the specific section or paragraph being addressed. The Forest Service may not include in the administrative record for the proposed directives those comments it receives after the comment period closes (see DATES) or comments delivered to an address other than those listed in this ADDRESSES section.

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 on these proposed directives in the Office of the Director, Wilderness and Wild and Scenic Rivers Staff, Forest Service, USDA, 4th Floor-Central, Sidney R. Yates Federal Building, 1400 Independence Avenue, SW., Washington, DC, between the hours of 8:30 a.m. to 4 p.m. on business days. Those wishing to inspect comments are encouraged to call ahead to [phone] to facilitate entry into the building.

FOR FURTHER INFORMATION CONTACT:

Don Fisher, Wilderness Program, [phone], Forest Service, USDA.

SUPPLEMENTARY INFORMATION:

1. Background

The USDA Animal and Plant Health Inspection Service, Wildlife Service Division (APHIS-WS) and the Forest Service cooperate in wildlife damage management activities on National Forest System (NFS) lands as provided for in the Animal Damage Control Act of 1931 (7 U.S.C. 426-426b). Processes and procedures between the two agencies were adopted in a Memorandum of Understanding (MOU) signed June 18, 1993, and published in the Federal Register on July 13, 1993 (58 FR 37704). The MOU was renewed and slightly revised in 1998 and again in 2004. The 2004 version of the MOU is available from the Forest Service directives system in FSM 1543.13 and available from the World Wide Web at http://www.fs.fed.us. The purpose of the MOU is to: (1) Identify responsibilities of the respective agencies and foster a partnership in discharging the Federal obligation under the Animal Damage Control Act of March 2, 1931 (7 U.S.C. 426-426b), for the management of wild vertebrates causing damage on NFS lands, (2) establish general guidelines to assist field personnel in carrying out their wildlife damage management responsibilities consistent with policies of APHIS-WS and the Forest Service, and (3) strengthen the cooperative approach to wildlife damage management on NFS lands through the exchange of information and mutual program support. The current MOU clarifies that the APHIS-WS is the responsible agency for developing, with the cooperation of the Forest Service, predator damage work plans that are in conformance with applicable Forest land management and wilderness plans.

On May 4, 1995, the Forest Service revised agency direction in Forest Service Manual (FSM) 2651 (60 FR 22037) to clarify and conform agency directives with the MOU adopted in 1993. The changes to FSM 2323.33c and 2651 proposed in this notice are intended to further refine and clarify agency roles and procedures for wildlife damage management activities on NFS lands so that they are consistent with the 2004 revised MOU.

2. Summary of Proposed Revisions

FSM 2323.33c—Predator Damage Management

The title to FSM 2323.33c is changed from “Predator Control” to “Predator Damage Management.” The proposed revisions to this section are intended to strengthen the Forest Service's role in working with APHIS-WS and State fish and wildlife agencies in wildlife damage management activities, while recognizing that APHIS-WS and State fish and wildlife agencies have the authority and expertise to conduct wildlife damage management activities in wilderness on NFS lands. For this reason, the Forest Service is removing a provision in current policy that requires case-by-case Regional Forester approval for predator management activities in wilderness areas. In the proposed revision, predator management activities in wilderness areas may occur when they are conducted in accordance with an approved predator management plan and provisions in FSM 2651.6.

Paragraph 1 establishes objectives for predator damage management activities in wilderness, such as the protection of public health and safety and the protection of threatened or endangered species; the achievement of management goals and objectives for wildlife populations as identified in forest or wilderness plans or through other collaborative processes; and the prevention of serious loss of domestic livestock.

Paragraph 2 establishes policy for conducting predator damage management activities in wilderness by requiring minimal disturbance to wilderness visitors and resources, the protection of wilderness character, and coordination with other government entities involved in predator damage management activities. The policy also recognizes predators in the ecological integrity of wilderness and adjacent non-wilderness lands, and prohibits predator damage management activities that would jeopardize the continued viability of predator populations in the ecosystem.

Paragraph 3 provides authority for the Regional Forester to permit the use of aircraft, motorized equipment and mechanical transport, and pesticides in wilderness areas under certain conditions.

Paragraph 4 provides a framework for coordination and cooperation between APHIS-WS and the Forest Service, including agency roles and responsibilities for preparing predator management plans (para. 4a), NEPA documents (para. 4b) and provisions for conflict resolution (para. 4c).

Paragraph 5 commits the Forest Service to coordinate and cooperate with States lawfully conducting predator management activities on National Forest wildernesses.

FSM 2651.6—Wildlife and Fish Damage Management in Wilderness and Research Natural Areas

The title and areas of applicability in this section is changed from “Wildlife and Fish Damage Management in Wilderness Areas” to “Wildlife and Fish Damage Management in Wilderness and Research Natural Areas.” The proposed revisions to this section removes the criterion authorizing animal damage management only when it was used prior to wilderness designation and also expands the criteria for allowing wildlife damage management activities in a wilderness or a Research Natural Area and clarifies that meeting only one criterion is necessary for those activities to proceed.

3. Regulatory Certifications

Environmental Impact

These proposed directives revise the administrative policies and procedures for conducting animal damage management activities on National Forest System lands. Section 31.1b of Forest Service Handbook (FSH) 1909.15 (57 FR 43180, September 18, 1992) excludes from documentation in an environmental assessment or impact statement “rules, regulations, or policies to establish Service-wide administrative procedures, program processes, or instructions.” The Agency's preliminary assessment is that these proposed directives fall within this category of actions and that no extraordinary circumstances exist which would require preparation of an environmental assessment or environmental impact statement.

Regulatory Impact

These proposed directives have been reviewed under USDA procedures and Executive Order 12866 on Regulatory Planning and Review. It has been determined that this is not a significant action. The proposed directives would not have an annual effect of $100 million or more on the economy, or adversely affect productivity, competition, jobs, the environment, public health or safety, or State or local governments. The proposed directives would not interfere with an action taken or planned by another agency, or raise new legal or policy issues. Finally, these proposed directives would not alter the budgetary impacts of entitlements, grants, or loan programs or the rights and obligations of recipients of such programs.

No Takings Implications

These proposed directives have been analyzed in accordance with the principles and criteria contained in Executive Order 12630. It has been determined that the proposed directives do not pose the risk of a taking of constitutionally protected private property.

Civil Justice Reform

These proposed directives have been reviewed under Executive Order 12988, Civil Justice Reform. The Agency has not identified any State or local laws or regulations that are in conflict with these proposed directives or that would impede full implementation of the proposed directives. Nonetheless, in the event that such a conflict were to be identified, the proposed directives, if implemented, would preempt the State and local laws or regulations found to be in conflict. However, in that case, (1) no retroactive effect would be given to these proposed directives; and (2) the Department would not require the use of administrative proceedings before parties may 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), which the President signed into law on March 22, 1995, the Agency has assessed the effects of these proposed directives on State, local, and tribal governments and the private sector. These proposed directives would 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.

Federalism and Consultation and Coordination With Indian Tribal Governments

The Agency has considered these proposed directives under the requirements of Executive Order 13132 on Federalism, and has made an assessment that the proposed directives conform with the Federalism principles set out in this Executive Order; would not impose any compliance costs on the States; and would 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 of Federalism implications is necessary at this time.

Moreover, these proposed directives do not have tribal implications as defined by Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, and, therefore, advance consultation with tribes is not required.

Energy Effects

These proposed directives have been reviewed under Executive Order 13211 of May 18, 2001, “Actions Concerning Regulations That Significantly Affect Energy Supply.” It has been determined that these proposed directives do not constitute a significant energy action as defined in the Executive Order.

Controlling Paperwork Burdens on the Public

These proposed directives do not contain any recordkeeping or reporting requirements or other information collection requirements as defined in 5 U.S.C. part 1320. Accordingly, the review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its implementing regulations at 5 CFR part 1320 do not apply.

Editorial Note:

This document was received in the Office of the Federal Register on June 2, 2006.

Dated: February 16, 2006.

Sally Collins,

Associate Chief, Forest Service.

4. Proposed Revisions to Predator Management in Wilderness Directives

Note:

The Forest Service organizes its Directive System by alphanumeric codes and subject headings. Only those sections of the Forest Service Manual and Handbook that are the subject of this notice are set out here. The intended audience for this direction is Forest Service employees engaged in wildlife damage management activities in wilderness and research natural areas.

Forest Service Manual

Chapter 2320—Wilderness Management

* * * * *

2323.33c—Predator Damage Management

For further direction on predator damage management, see FSM 2651. For a copy of the Master Memorandum of Understanding between the Animal and Plant Health Inspection Service, Wildlife Services (APHIS-WS) and Forest Service, see FSM 1543.13.

1. Objectives. The objectives of predator damage management in wilderness are to:

a. Protect public health and safety.

b. Protect Federally listed threatened or endangered species.

c. Achieve management goals and objectives for wildlife populations as identified for wilderness in forest or wilderness plans, or through other collaborative processes, such as Comprehensive Wildlife Conservation Strategies, memorandums of understanding with State fish and wildlife agencies, and so forth.

d. Prevent serious loss of domestic livestock.

2. Policy.

a. Predator damage management activities shall be conducted in a manner that protects wilderness character and minimizes disturbances to wilderness resources and visitors.

b. Predator damage management control measures shall be directed at the offending animal or local population and shall not jeopardize the continued viability of predator populations in the ecosystem.

c. Predator damage management work plans shall be developed in cooperation with the APHIS-WS for specific wildernesses or for a network of wildernesses and non-wilderness lands that connect them and reviewed annually in cooperation with APHIS-WS.

d. When participating in the development and annual review of a predator damage management work plan in a wilderness area, Forest Service officers shall strongly discourage the use of poison baits, such as M-44 devices and livestock protection collars, except in specific cases where there is compelling evidence that other forms of predator damage management have proven to be ineffective.

e. Forest Service officials shall coordinate and cooperate with other government entities who have responsibility and expertise for managing predator damage, such as the APHIS-WS and State fish and game agencies.

f. The role of predator species in contributing to the ecological integrity of wilderness and adjacent non-wilderness lands shall be recognized in predator damage management work plans and National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.) documents.

3. Authorization Responsibility for Specific Uses:

a. Landing of aircraft and use of motorized equipment and mechanical transport to facilitate implementation of predator damage management activities in wilderness areas may only occur if authorized by the Regional Forester upon a determination that these uses are necessary to meet minimum requirements for the administration of the area. Determination of necessity is appropriate where:

(1) An emergency situation requires immediate, short-term relief, or

(2) An analysis indicates that one of these uses is the minimum tool necessary to accomplish the predator damage management activity.

b. The Regional Forester may authorize use of pesticides for predator damage management activities when documented on Form FS-2100-2, Pesticide Use Proposal (FSM2150).

4. Inter-Agency Coordination With the Animal and Plant Health Inspection Service, Wildlife Services. The Forest Service recognizes APHIS-WS's authority and expertise for conducting predator damage management activities on National Forest System (NFS) wildernesses. Forest Service employees shall, when coordinating with APHIS-WS on proposed predator damage management activities in wilderness, ensure that these activities support the Forest Service's objectives (para. 1) and policies (para. 2) for predator damage management in wilderness areas.

a. Predator Damage Management Plans. The Forest Service shall participate with the APHIS-WS in preparation of their predator damage management work plans for wilderness areas. Predator damage management work plans shall be reviewed and updated annually.

b. Preparation of National Environmental Policy Act Documents. The Forest Service shall cooperate with the APHIS-WS in the preparation of environmental analyses for predator damage management activities as required by the NEPA, Title 40, Code of Federal Regulations, section 1501.6, and the Memorandum of Understanding between the APHIS-WS and the Forest Service, dated June 4, 2004 (FSM 1543.13). As a cooperating agency, the Forest Service shall:

(1) Make agency expertise regarding wildlife, wilderness, range, and other staff areas available to the APHIS-WS during the NEPA process. As a minimum, Forest Service participation during the NEPA process shall involve agency experts knowledgeable in wilderness, wildlife, and range management.

(2) Assist in identifying issues; conducting and evaluating public scoping; developing alternatives; and disclosing environmental, economic, and social effects.

(3) Work with the APHIS-WS to ensure decision documents address Forest Service concerns when proposed actions would have an adverse effect upon the wilderness resource and/or the continued viability of native species.

(4) Seek expertise from State fish and wildlife agencies as appropriate.

c. Conflict Resolution. When a Forest Service representative determines that a proposed management activity may have an adverse affect on wilderness resources or the continued viability of a native species, the Forest Service representative shall work with their APHIS-WS counterpart to resolve the Forest Service's concern. If the dispute cannot be resolved, the issue shall be elevated to the next organizational level within each agency.

5. Coordination with State Governments and Private Individuals. The Forest Service recognizes that State agencies have authority and expertise to conduct predator damage management on NFS lands, including wilderness, and that State agencies and private individual may perform predator damage management on NFS lands when conducted in accordance with applicable State and Federal laws, regulations, and policies. The Forest Service shall coordinate and cooperate with States and private individuals when predator damage management is conducted under State authority to ensure that wilderness resources on NFS lands are protected.

* * * * *

Chapter 2650—Animal Damage Management

* * * * *

2651.6—Wildlife and Fish Damage Management in Wilderness and Research

Natural Areas

For additional direction of wildlife and fish management in wilderness and research natural areas, see FSM 2151, FSM 2323, and FSM 4063.

Wildlife damage management, including predator damage management (FSM 2323.33c), is permitted in wilderness when consistent with direction in FSM 2323 and when needed to address one or more of the following issues:

1. Protect public health and safety.

2. Protect Federally listed threatened or endangered species.

3. Achieve management goals and objectives for wildlife populations as identified for wilderness in forest or wilderness plans, or through other collaborative processes, such as Comprehensive Wildlife Conservation Strategies, memorandums of understanding with State fish and wildlife agencies, and so forth.

4. Prevent serious loss of domestic livestock.

Management of non-indigenous species is also permitted when consistent with the applicable Forest land management plan to reduce conflicts with indigenous species.

* * * * *