[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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