[Federal Register: July 12, 2006 (Volume 71, Number 133)]
[Rules and Regulations]
[Page 39401-39509]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12jy06-17]
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Part II
Department of the Interior
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Bureau of Land Management
43 CFR Part 4100
Grazing Administration--Exclusive of Alaska; Final Rule
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DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Part 4100
[WO-220-1020-24 1A]
RIN 1004-AD42
Grazing Administration--Exclusive of Alaska
AGENCY: Bureau of Land Management, Interior.
ACTION: Final rule.
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SUMMARY: The Bureau of Land Management (BLM) amends its regulations
concerning how BLM administers livestock grazing on public lands. The
changes ensure that BLM documents its consideration of the social,
cultural, environmental, and economic consequences of grazing changes;
provide that changes in grazing use will be phased in under certain
circumstances; allow permittees, lessees, and others to share title to
range improvements with BLM in certain circumstances; make clear how
BLM will authorize grazing if a BLM decision affecting a grazing permit
is stayed pending administrative appeal; remove provisions in the
present regulations concerning conservation use grazing permits; ensure
adequate time for developing and successfully implementing an
appropriate management action when BLM finds that rangelands do not
meet standards and guidelines for rangeland health and that authorized
grazing is a significant factor in not achieving one or more land
health standards or not conforming with guidelines for grazing
administration; and revise some administrative service charges. We
intend these changes to contribute to improving working relationships
with permittees and lessees, protecting the health of the rangelands
and increasing administrative efficiency and effectiveness.
EFFECTIVE DATE: August 11, 2006.
ADDRESSES: You may send inquiries or suggestions to Director (220),
Bureau of Land Management, Room 204 LS, Eastern States Office, 7450
Boston Boulevard, Springfield, Virginia 22153.
FOR FURTHER INFORMATION CONTACT: Ken Visser, Rangeland Management
Specialist, Rangeland, Soils, Water and Air Group, (775) 861-6492, or
Ted Hudson (202) 452-5042 of the Regulatory Affairs Group. Individuals
who use a telecommunications device for the deaf (TDD) may contact them
individually through the Federal Information Relay Service at 1-800-
877-8339, 24 hours a day, seven days a week.
SUPPLEMENTARY INFORMATION:
I. Background
A. History
B. Why We Are Amending the Regulations
C. Rules of Construction: Words and Phrases
II. Changes Made Since the Proposed Rule
III. Record of Decision Under the National Environmental Policy Act
A. Decisions
B. Alternatives Considered
C. Environmentally Preferable Alternative
D. Decision Rationale
1. Analysis and Documentation of Social, Economic, and Cultural
Effects
2. Phase-in of Changes in Active Use of More Than 10 Percent
3. Sharing Title to Permanent Range Improvements
4. Cooperation With Tribal, State, County, and Local Government-
Established Grazing Boards
5. Removal of Temporary Nonuse Limit
6. Requiring Assessments and Monitoring for Determinations on
Standards and Guidelines
7. Time Frame for Taking Action
8. Conservation Use
9. Definitions of Preference, Active Use, and Removal of
Permitted Use
10. Interested Public
11. Water Rights
12. Satisfactory Performance of Applicants
13. Temporary Changes in Grazing Use Within the Terms and
Conditions of a Permit or Lease, Including Temporary Nonuse
14. Service Charges
15. Prohibited Acts
16. Decisions on Ephemeral or Annual Rangeland Grazing Use and
Nonrenewable Permits
17. Effect on Grazing Use When an Administrative Stay Has Been
Granted on an Appeal of a Decision Associated With Changes to a
Permit or Lease or Grazing Preference Transfers
18. Biological Assessments and Evaluations Are Not Decisions and
Therefore Not Subject To Protest or Appeal
IV. Response to General Comments
A. The Regulatory Process
B. General Support
C. General Opposition
D. Purpose and Need for Rulemaking
E. Environmental Effects of the Rule
F. Alternatives Considered
G. Cross-Cutting Issue-Related Comments
1. Role of the Interested Public
2. Land Use and Allotment Management Planning
3. Monitoring
4. Enforcement
H. Other Recommendations
1. Advisory Councils and Grazing Advisory Boards
2. Wild Horses and Burros
3. Reserve Common Allotments
4. Incentives for Good Stewardship
5. Encouraging Flexible Management
6. Determining Appropriate Technical Procedures
7. Access to Public Lands
8. Judicial Matters
9. Interagency Cooperation
V. Section-by-Section Analysis and Response to Comments
VI. Procedural Matters
I. Background
A. History
BLM administers livestock grazing on BLM lands within the
continental United States under the regulations found at 43 CFR part
4100. Statutory authority for these regulations includes the following:
1. The Taylor Grazing Act (TGA) as amended (43 U.S.C. 315, 43 U.S.C. 315a
through 315r);
2. The Federal Land Policy and Management Act of 1976 (FLPMA) (43
U.S.C. 1701 et seq.) as amended by the Public Rangelands Improvement
Act (PRIA) (43 U.S.C. 1901 et seq.);
3. Section 4 of the Oregon and California Railroad Lands Act (43
U.S.C. 1181d);
4. Executive orders that transfer land acquired under the Bankhead-
Jones Farm Tenant Act (7 U.S.C. 1012) to the Secretary and authorize
administration under TGA; and
5. Public land orders, executive orders and agreements authorizing
the Secretary to administer livestock grazing on specified lands under
TGA or on other lands as specified.
Section 202 of FLPMA requires the development and maintenance of
land use plans for public lands. BLM land use plans are designed to
provide guidance for future management actions and the development of
subsequent, more detailed and limited-scope plans for resources and
uses. Land use plans are developed under the multiple-use and
sustained-yield mandate of FLPMA. Land use plans identify lands that
are available for livestock grazing and the parameters under which
grazing is to occur. BLM issues grazing permits or leases for available
grazing lands. Grazing permits and leases specify the portion of the
landscape BLM authorizes to the permittee or lessee for grazing (i.e.,
one or more allotments) and establish the terms and conditions of
grazing use. Terms and conditions include, at a minimum, the number and
class of livestock, when and where they are allowed to graze, and for
how long. Grazing use must conform to any applicable allotment
management plans, the terms and conditions of the permit or lease, land
use plan decisions, the grazing regulations, and other applicable laws.
Since the first set of grazing regulations was issued after passage
of the TGA in 1934, the regulations have
[[Page 39403]]
been periodically amended and updated. The last major revision effort
was called ``Rangeland Reform ``94.'' In February 1995, BLM published
comprehensive changes to the grazing regulations and put them into
effect in August 1995. Major changes made to the regulations in 1995
included the following:
[BULLET] Revised the term ``grazing preference'' to mean a priority
position against other applicants for receiving a grazing permit,
rather than a specified amount of public land forage apportioned and
attached to a base property owned or controlled by a permittee or
lessee, and added the term ``permitted use'' to describe forage use
amounts allocated by or under the guidance of an applicable land use
plan, and authorized by grazing permits or leases;
[BULLET] Provided that BLM could issue a "conservation use''
permit to authorize permittees not to graze their permitted allotments;
[BULLET] Limited authorized temporary nonuse to 3 consecutive
years;
[BULLET] Required grazing fee surcharges for permittees who do not
own the livestock that graze under their permits;
[BULLET] Provided that the United States holds 100 percent of the
vested title to permanent range improvements, such as fences, wells,
and pipelines, constructed under cooperative agreements dated after
August 21, 1995, rather than proportionately sharing title with the
cooperators;
[BULLET] Required livestock operators and BLM to use cooperative
agreements to authorize new permanent water developments, instead of
allowing some water developments to be authorized under range
improvement permits;
[BULLET] Provided that after August 21, 1995, any water right
acquired on public land to be used for livestock watering on public
land must be acquired, perfected, maintained, and administered under
substantive and procedural laws of the state where the land is located,
and that such water rights are to be acquired in the name of the United
States, to the extent allowed by the law of the state;
[BULLET] Established fundamentals of rangeland health; and
[BULLET] Created a process for developing and applying state or
regional standards for land health and guidelines for livestock grazing
as a yardstick for grazing management performance.
Soon after the grazing regulations took effect on August 21, 1995,
a lawsuit was filed challenging the validity of several of the new
regulations. All challenged provisions except ``conservation use'' (see
the second bullet, above) were upheld. Public Lands Council v. Babbitt,
167 F.3d 1287 (10th Cir. 1999), aff'd, 529 U.S. 728 (2000).
On March 3, 2002, BLM published an Advance Notice of Proposed
Rulemaking (ANPR) and Notice of Intent (NOI) to prepare an
environmental impact statement (EIS) in the Federal Register (68 FR
9964-9966 and 10030-10032, respectively). These notices requested
public comment and input to assist BLM with the scoping process for the
proposed rule and the EIS. The comment period on the ANPR and the NOI
ended on May 2, 2003.
During the scoping process, BLM held four public meetings to elicit
comments and suggestions for the proposed rule and development of the
draft environmental impact statement (DEIS). The meetings were held
during March 2003 in Albuquerque, New Mexico; Reno, Nevada; Billings,
Montana; and Washington, DC. BLM received approximately 8,300 comments
on the ANPR and the NOI. The majority of these were varying types of
form letters.
We considered many of the issues that the public raised during the
scoping period and discussed several of them as alternatives in the
DEIS. We did not address, however, some of the issues that comments
raised, because they were either beyond the scope of the document, did
not meet the basic goals of these proposed changes to the regulations,
or BLM decided we could better address the issues through internal
policy changes. We listed and discussed these issues in the proposed
rule (68 FR 68455), and in section 1.3.2 of the DEIS, and there is no
need to repeat them here.
We published the proposed rule on December 8, 2003 (68 FR 68452),
inviting public comments until February 6, 2004. On January 16, 2004,
we published a notice to extend the comment period to March 2, 2004 (69
FR 2559). BLM held six public meetings in late January and early
February, 2004, to provide the public an opportunity to comment on the
proposed rule. Meetings were held in Salt Lake City, Utah; Phoenix,
Arizona; Boise, Idaho; Billings, Montana; Cheyenne, Wyoming; and
Washington, DC. Approximately 250 individuals attended the public
meetings and 95 provided oral comments. These were transcribed and can
be viewed on the BLM web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.blm.gov/grazing. We received about
18,000 comment letters and electronic communications. Most of the
comments were form letters or emails. An exact count of the comments is
not available because of the large amount of duplication among the
comments due to individuals or entities submitting identical comments
multiple times or via different media. We did not attempt to keep track
of all the duplications, although we observed many. You may view
comment letters, including scanned images of faxes and handwritten
letters, on BLM's regulatory comment system accessible at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.blm.gov/nhp/news/regulatory/index.html
.
B. Why We Are Amending the Regulations
The grazing regulations are being amended based largely on lessons
learned in implementing the 1995 regulations. Other changes are
designed to improve clarity, ensure internal consistency, and address
the 10th Circuit holding regarding ``conservation use'' permits.
Many changes have been made in livestock grazing management and
practices to improve the health of the public rangelands since the
passage of the TGA in 1934 and FLPMA in 1976. The final rule recognizes
the many benefits of livestock grazing on public lands, including its
social and economic contributions to rural communities and its
preservation of open space in the rapidly growing West, as well as the
importance of maintaining healthy rangelands and wildlife habitat.
When we developed this final rule, we considered whether the
changes facilitated improving working relations with grazing permittees
and lessees, protecting the health of rangelands, or increasing
administrative efficiency and effectiveness. The changes in the final
rule enhance BLM's ability to accomplish each of these objectives.
The major changes in the final rule are listed below by objective.
Improving Working Relations With Grazing Permittees and Lessees
[BULLET] Require BLM to follow a consistent approach in analyzing
and documenting the relevant social, economic, and cultural effects of
proposed changes in grazing preference and incorporate such analyses
into appropriate National Environmental Policy Act (NEPA) documents.
[BULLET] Require phase-in of changes in grazing use of more than 10
percent over a 5-year period, consistent with relevant law.
[BULLET] Provide for joint ownership of range improvements--changes
would allow BLM and a grazing permittee, or other cooperator, to share
title to certain structural range improvements, such as fences, wells,
or pipelines, if they are constructed under a Cooperative Range
Improvement Agreement.
[BULLET] Require BLM to cooperate with Tribal, state, county, and
local
[[Page 39404]]
government-established grazing boards in reviewing range improvements
and allotment management plans on public lands.
Protecting the Health of Rangelands
[BULLET] Remove the 3-consecutive-year limit on temporary nonuse of
a grazing permit but continue to require BLM to review nonuse annually
to make sure it is still necessary, whether for resource conservation,
enhancement, or protection, or for personal or business purposes.
[BULLET] Provide that a standards assessment will be used by the
authorized officer to gauge whether rangeland is failing to achieve
standards or that management practices do not conform to the
guidelines, and where assessments indicate failure to achieve standards
or to conform with guidelines, require BLM to use existing or new
monitoring data to identify the factors that significantly contribute
to failing to achieve standards or conform with guidelines.
[BULLET] Provide additional time after a determination that grazing
practices or levels of use are significant factors in failing to
achieve standards and conform to guidelines for BLM to formulate,
propose, and analyze actions; to comply with all applicable laws; and
to complete all consultation, cooperation, and coordination
requirements before reaching a final decision on appropriate actions.
Increasing Administrative Efficiency and Effectiveness
[BULLET] Eliminate the ``conservation use'' permit regulatory
provisions to comply with the Tenth Circuit Court of Appeals decision
in Public Lands Council v. Babbitt, 167 F.3d 1287 (10th Cir. 1999),
aff'd on other grounds, 529 U.S. 728 (2000).
[BULLET] Expand the definition of ``grazing preference'' to include
an amount of forage on public lands attached to a rancher's private
base property, which can be land or water. This expanded definition,
similar to one that existed from 1978 to 1995, makes clear that grazing
preference has a quantitative meaning (forage amounts, measured in
Animal Unit Months (AUMs)) as well as a qualitative one (priority of
position ``in line'' for grazing privileges).
[BULLET] Modify the definition of ``interested public'' to ensure
that only those individuals and organizations who actually participate
in the process are maintained on the list of interested publics. (The
regulations with respect to the interested public are also revised to
improve efficiency in BLM's management of public lands grazing by
reducing the occasions in which the Bureau is required to involve the
interested public. Under this provision, BLM could involve the public
in such matters as day-to-day grazing administration, but would no
longer be required to do so. BLM would continue to require
consultation, cooperation, and coordination with the interested public
in grazing planning activities such as allotment management planning or
range improvement project or program planning.)
[BULLET] Provide flexibility to the Federal government in decisions
relating to livestock water rights by removing the requirement that, if
BLM acquires water rights for livestock watering on public land under
state law, BLM must acquire, perfect, maintain, and administer those
water rights in the name of the United States where allowed by State
law.
[BULLET] Clarify that an applicant for a new permit or lease will
be deemed to have a record of satisfactory performance when the
applicant has not had any Federal or state grazing permit or lease
canceled, in whole or in part, for violation of the permit or lease
within the 36 calendar months immediately preceding the date of
application, and a court of competent jurisdiction has not barred the
applicant or an affiliate from holding a Federal grazing permit or
lease.
[BULLET] Clarify what is meant by ``temporary changes in grazing
use within the terms and conditions of permits and lease.'' Under the
1995 regulations, BLM can approve temporary changes in grazing use
within the terms and conditions of a permit or lease. The final rule
clarifies that ``temporary changes in grazing use within the terms and
conditions'' means temporary changes to livestock number, period of
use, or both, that would result in nonuse or in grazing use where
forage removal does not exceed the amount of active use specified in
the permit or lease, and such grazing use occurs not earlier than 14
days before the begin date specified on the permit or lease and not
later than 14 days after the end date specified on the permit or lease,
unless otherwise specified in the appropriate allotment management
plan.
[BULLET] Increase certain service charges to reflect more
accurately the cost of grazing administration.
[BULLET] Clarify that if a permittee or lessee is convicted of
violating a Federal or state law or regulation, and if the violation
occurs while he is engaged in grazing-related activities, BLM may take
action against his grazing permit or lease only if the violation
occurred on the BLM-managed allotment where the permittee or lessee is
authorized to graze.
[BULLET] Provide the authority for BLM to issue an immediately
effective decision on non-renewable grazing permits or leases or on
applications for grazing use on designated ephemeral or annual
rangelands. Under the final rule, if a stay on an appeal of such a
decision is granted, the decision would be inoperative and, if
appropriate considering the specific stay, the livestock may have to be
removed from the allotment.
[BULLET] Clarify how BLM will authorize grazing when the Office of
Hearings and Appeals (OHA) stays all or part of a BLM grazing decision
affecting a permit or lease. Such decisions may:
[BULLET] Cancel, suspend or change terms and conditions of a permit
or lease during its current term,
[BULLET] Renew a permit or lease, or
[BULLET] Grant or deny a permit or lease to a preference
transferee.
Under the final rule, if OHA stays all or part of such a decision,
then BLM will, with respect to any stayed portions of the decision,
authorize grazing use on the allotment(s) or portions of the
allotment(s) in question pursuant to terms or conditions that are the
same as the permit or lease that immediately preceded BLM's decision,
subject to any other provisions of the stay order.
[BULLET] Clarify that a biological assessment or biological
evaluation, prepared in compliance with the Endangered Species Act
(ESA), is not a decision and therefore is not subject to protest or
appeal.
[BULLET] Provide that the primary function of the fundamentals of
rangeland health is to describe land condition goals and to guide
development of the Standards and Guidelines that must be implemented to
ensure that the conditions described by the fundamentals of rangeland
health exist.
The reasons for the changes in the final rule are described in the
Record of Decision in Part III of this preamble.
C. Rules of Construction: Words and Phrases
For simplicity and to make the rule easier to read and understand
we use words that signify the singular to include and apply to the
plural and vice versa as provided in 43 CFR 1810.1. Words that signify
the masculine gender also include the feminine. Words used in the
present tense also apply to the future. The terms ``BLM'' and
``authorized officer'' are used interchangeably and include any person
authorized by law or by lawful
[[Page 39405]]
delegation of authority to perform the duties described in this final
rule.
II. Changes Made Since the Proposed Rule
This part of the preamble describes briefly the changes we made
since the proposed rule as a result of comments and our own review. A
reader who is interested in a quick overview of the changes we made
between the proposed and final rules may find this part useful.
However, if you are looking for a detailed description of all the final
rule changes from the existing regulations, you should look at the
section-by-section analysis which appears later in this preamble.
Section 4100.0-5 Definitions
We changed the definition section in several respects in the final
rule.
Active use. In this definition, we have substituted the word
``livestock'' for ``rangeland'' in the reference to carrying capacity.
The change makes the definition consistent with all other references to
``carrying capacity'' in the rule.
District. We have amended the definition for the term ``District''
to update the regulations as to the organization of BLM field offices.
Ephemeral rangelands. We have revised the definition for this term
by removing the misstatement that production of sufficient forage by
ephemeral range was necessarily unusual.
Interested public. We amended this section to make it clear that,
in a request to be considered a member of the interested public, a
person must identify the specific allotments in which the person or
entity is interested. We also added language providing that when
members of the interested public submit comments or otherwise
participates, they must address the management of a specific allotment.
Subpart 4110 Qualifications and Preference
Section 4110.2-3 Transfer of Grazing Preference
In the final rule we amended this section to make it clear that a
transfer application must show the base property and the grazing
preference attached to that base property.
We also removed the phrase ``if the applicant leases the base
property'' from the second sentence of paragraph (c), and removed the
third sentence entirely. This will clarify that anyone with an interest
in the base property, not just an owner who is leasing the property to
the preference holder, must provide written consent before a preference
transfer can take place. The third sentence addressed a situation
unique to the historical origins of grazing preference that is no
longer applicable.
Section 4110.3 Changes in Grazing Preference
We amended paragraph (a)(2) of section 4110.3 to make it clear that
BLM can make changes in grazing preference to assist in making progress
toward restoring ecosystems to properly functioning conditions. We also
amended paragraph (c) to make it clear that the analysis of social,
economic, and cultural factors that BLM will perform before changing
preference will be under NEPA (42 U.S.C. 4332).
Section 4110.3-1 Increasing Active Use
In the final rule we have added language in the introductory text
of section 4110.3-1 to make it clear that decisions increasing active
use are also based on monitoring or documented field observations, just
as decisions decreasing active use must be. Changes in preference,
whether increases or decreases, already must be supported by monitoring
or documented field observations.
We have also amended paragraphs (a) and (b) to make it clear that
BLM must determine that additional forage is available for livestock,
as opposed to other consumption or use, before we can authorize
livestock grazing use of it on a temporary or sustained-yield basis.
Section 4110.3-3 Implementing Changes in Active Use
We amended section 4110.3-3 in the final rule in 3 respects:
[BULLET] We changed ``shall'' to ``will'' in paragraph (b)(1) to
reflect standard usage in BLM regulations. This change has no practical
effect on the obligatory nature of the provision.
[BULLET] We added the word ``or'' in paragraph (b)(1)(i) as a
grammatical correction.
[BULLET] We corrected a cross-reference in paragraph (b)(ii).
Section 4120.2 Allotment Management Plans and Resource Activity Plans
In section 4120.2(c), we changed ``shall'' to ``will'' to reflect
standard usage in BLM regulations. This change has no practical effect
on the obligatory nature of the provision.
Section 4120.3-1 Conditions for Range Improvements
In section 4120.3-1(f), we changed ``shall'' to ``will'' to reflect
standard usage in BLM regulations. This change has no practical effect
on the obligatory nature of the provision.
Section 4120.3-2 Cooperative Range Improvement Agreements
We further amended paragraph (b) by adding the word ``will'' to
make it clear that shared ownership of range improvements is not merely
descriptive but regulatory and prospective.
Section 4120.3-3 Range Improvement Permits
We have revised paragraph (c) of section 4120.3-3 for purposes of
clarification. The language in the existing text is unnecessarily
convoluted and confusing. The point of the paragraph is to set the
stage for what this part of the regulations is really about: if BLM
lets a third party graze on your allotment, how do we address the use
and maintenance of range improvements occurring on that allotment? We
also removed a reference to conservation use.
Section 4120.5-2 Cooperation With Tribal, State, County, and Federal
Agencies
In the final rule, we have amended the introductory text and added
paragraph (c) of section 4120.5-2 to add Tribal grazing boards to the
list of entities with which we will cooperate, and to make it clear
that BLM is formally required to cooperate only with Tribal, state,
county, or local grazing boards that are established under Tribal or
government authority, as opposed to private organizations that might
assume the title ``grazing board.'' We also added ``Tribal agencies''
to the section heading and to the general provisions on cooperation.
Section 4130.1-1 Filing Applications
We further amended paragraph (b) of section 4130.1-1 to correct an
unintentional flaw, in that the paragraph seemed to refer to renewal of
new permits. We are also making it clear in paragraph (b)(2) that the
section refers to permits and leases that authorize use of new or
transferred preference.
Section 4130.3 Terms and Conditions
In the final rule, we amended proposed section 4130.3 by removing
paragraphs (b)(1) and (b)(2) in response to comments. Paragraph (b)(1)
referenced terms and conditions that are not subject to review by OHA,
and identified terms and conditions derived from biological opinions as
an example. Paragraph (b)(2) restricted the right of appeal and protest
where it was not necessary to do so. We also amended
[[Page 39406]]
paragraph (c) to make clear how BLM would authorize grazing if BLM made
numerous changes in terms and conditions of a permit or lease, and upon
an appellant's petition, OHA stayed only one or a portion of them. In
this circumstance, BLM would authorize use, with respect to the stayed
terms and conditions, according the comparable terms and conditions
that were in effect prior to BLM's decision to change them in
combination with the changed terms and conditions that were not stayed
by OHA.
Section 4130.3-2 Other Terms and Conditions
In the proposed rule, we amended section 4130.3-2 by removing
paragraph (h), which provides that the authorized officer may include
in permit and lease terms and conditions a statement disclosing the
requirement that permittees and lessees shall provide administrative
access across private and leased lands if it is necessary for the
orderly management and protection of public lands. In response to
public comments, we have restored paragraph (h) in this final rule. (We
did this by removing the amendatory text that appeared in the proposed
rule directing the removal of paragraph (h). Thus, although the
regulatory text in this final rule contains no mention of section
4130.3-2, the effect of the final rule is to leave paragraph (h)
intact.)
Section 4130.3-3 Modification of Permits or Leases
We removed the words ``biological assessments or biological
evaluations prepared under the Endangered Species Act, and other'' from
section 4130.3-3(b), because it is unnecessary to highlight biological
assessments and biological evaluations as examples of reports during
the preparation of which BLM seeks input from affected permittees,
lessees, states, and the interested public. We added the word
``otherwise'' in paragraph (b) because increasing or decreasing grazing
use is a change in terms and conditions of a grazing permit or lease.
Without the word, the paragraph seems to read that such an increase or
decrease is not a change in terms and conditions.
Section 4130.4 Authorization of Temporary Changes in Grazing Use Within
the Terms and Conditions of Permits and Leases, Including Temporary
Nonuse
In the final rule, we added ``temporary nonuse'' to the heading of
section 4130.4 as a convenience to readers. We also removed language in
paragraph (a) of the section listing reasons for allowing temporary
changes in grazing use within the terms and conditions of the grazing
authorization.
We have amended paragraph (d)(2) of section 4130.4 of the proposed
rule, which becomes paragraph (e)(2) in the final rule, by changing the
word ``will'' to ``may'' in order to avoid an interpretation of this
provision that BLM has no discretion to deny temporary nonuse.
We also amended paragraph (f) of the proposed rule, which becomes
paragraph (g) in the final rule, to provide that permittees or lessees
``must'' apply if they need temporary changes in grazing use. The
proposed rule stated that they ``should'' apply. The final rule also
makes it clear that such an application must be in writing.
We amended paragraph (b) to recognize that the same application may
cover both temporary nonuse and removal of forage either before the
begin date or after the end date, and to allow such changes that
conform to flexibility limits specified in an allotment management plan
under Sec. 4120.2(a)(3) despite the 14 day limit.
Finally, we reordered the paragraphs in the section more logically,
redesignating paragraph (a)(2) as (c) and adjusting the succeeding
paragraph designations accordingly, and made editorial changes for
purposes of clarity.
Section 4130.6-2 Nonrenewable Grazing Permits and Leases
In the final rule, we redesignated the proposed text as paragraph
(a) and added a new paragraph (b) allowing BLM to make a decision
issuing a nonrenewable grazing permit or lease, or affecting an
application for grazing use on annual or designated ephemeral
rangelands, effective immediately or on a date established in the
decision.
For purposes of clarity and ease of usage, in the final rule we
have amended the first sentence of section 4130.6-2(a) by adding a
cross-reference to section 4110.3-1(a), which provides for the
disposition of additional forage temporarily available.
Section 4130.8-1 Payment of Fees
In the final rule we further amended paragraph (h) of section
4130.8-1 to make it clear that failure to make payment within 30 days
is a violation of a prohibited act in section 4140.1 and may result in
enforcement action.
Section 4130.8-3 Service Charges
In the final rule we added language to paragraph (a) of section
4130.8-3 providing that BLM will adjust the service charges
periodically as costs change, and publish notice thereof in the Federal
Register, and revised paragraphs (a) and (b) for clarity. We also
restored supplemental grazing fee billings to the list of services for
which BLM imposes a service charge.
Section 4140.1 Acts Prohibited on Public Lands
In the final rule we made an editorial change in section
4140.1(a)(2) for purposes of clarity, and corrected a typographical
error in section 4140.1(c)(3)(ii).
Section 4150.2 Notice and Order To Remove
In the final rule we corrected an erroneous cross-reference in
paragraph (d).
Section 4150.3 Settlement
In the final rule, we amended new paragraph (f) of section 4150.3
to make it clear that ``this part'' refers to all of part 4100 and that
grazing will continue pending completion of the administrative appeal
process, as opposed to resolution of judicial appeals.
Section 4160.1 Proposed Decisions
In the final rule, we added necessary cross-references to paragraph
(c) of section 4160.1, which was not amended in the proposed rule.
These additions conform the paragraph to the addition of section
4130.6-2(b) in this rule, and the addition of section 4190.1(a) in a
previous final rule (68 FR 33804, June 5, 2003).
Section 4160.3 Final Decisions
In the final rule, we also added necessary cross-references to
paragraph (c) of section 4160.3 to conform the paragraph to the
addition of section 4130.6-2(b) in this rule, and the addition of
section 4190.1(a) in a previous final rule (68 FR 33804, June 5, 2003).
Section 4160.4 Appeals
In response to comments by OHA and others, we have removed Sec.
4160.4(c) in the final rule, and simplified paragraph (b). We have
revised Sec. 4160.4(b)(1), (2), and (3) to clarify that, when OHA
stays all or part of a decision modifying or renewing a grazing permit
or lease, or a decision offering or denying a permit or lease to a
preference transferee, grazing may proceed, with respect to the
portions of the decision that were stayed, under comparable terms and
conditions of the permit or lease that immediately preceded the
decision that was stayed, subject to any relevant provisions of the
stay order.
[[Page 39407]]
Section 4180.1 Fundamentals of Rangeland Health
We have removed the language from the introductory text of this
section that requires BLM to modify grazing management to ensure that
the conditions described by the fundamentals of rangeland health exist
only where standards and guidelines have not been established under
section 4180.2, and added in its place a characterization of the
purpose of the fundamentals of rangeland health.
We have also amended paragraph (d) of section 4180.1 to remove the
reference to ``at-risk'' species.
Section 4180.2 Standards and guidelines for grazing administration.
As in section 4180.1, in section 4180.2 also we have removed
references to ``at-risk'' species in paragraphs (d)(4), (e)(9) and
(f)(2)(viii). We also changed ``or'' to ``and'' before the phrase
``other special status species'' in (d)(4).
We have added language in section 4180.2(b) allowing BLM to extend
the deadline for making a decision following a determination when
legally required processes that are the responsibility of another
agency prevent completion within 24 months.
Finally, we made procedural changes in paragraph (c) to provide
that if a standards assessment indicates to the authorized officer that
the rangeland is failing to achieve standards or that management
practices do not conform to the guidelines, then the authorized officer
will use existing or new monitoring data to identify the significant
factors that contribute to failing to achieve the standards or to
conform with the guidelines.
III. Record of Decision Under the National Environmental Policy Act
This preamble constitutes BLM's record of decision, as required
under the Council on Environmental Quality regulations at 40 CFR
1505.2. The decision is based on the proposed action and alternatives
presented in the Final Environmental Impact Statement, ``Revisions to
Grazing Regulations for the Public Lands.''
A. Decisions
After considering all relevant issues, alternatives, potential
impacts, and management constraints, BLM selects the Proposed Action,
Alternative 2, in the Final EIS for implementation. Alternative 2
changes the existing grazing regulations in several areas as follows:
[BULLET] A new provision requiring BLM to analyze and, if
appropriate, document the relevant social, economic, and cultural
effects as part of the NEPAtemporary nonuse and substituting a provision for annual review of
temporary nonuse.
[BULLET] An amendment making BLM's finding that existing grazing
management practices or levels of grazing use on public lands are
significant factors in failing to achieve range health standards or
conform with grazing management guidelines a two-step process. The
authorized officer will use a standards assessment to gauge whether
rangeland is failing to achieve standards or management practices do
not conform to the guidelines, and, if this is the case, he will use
existing or new monitoring data to identify the significant factors
contributing to not meeting standards or conforming with guidelines.
[BULLET] An amendment providing BLM up to 24 months after making a
determination that grazing practices or levels of use are significant
factors in failure to achieve standards or conform to guidelines, (1)
to formulate, propose, and analyze appropriate action, (2) to comply
with all applicable laws, and (3) to complete all consultation,
cooperation, and coordination requirements before reaching a final
decision on the appropriate action. The amendment allows for additional
time beyond 24 months if necessary to meet legal obligations that are
the responsibility of another agency.
[BULLET] An amendment removing the provision that requires BLM to
modify grazing management to ensure that the conditions described by
the fundamentals of rangeland health exist. This amendment recognizes
that BLM relies on evaluation of achievement of the standards of
rangeland health and conformance with grazing management guidelines to
determine whether grazing management needs to be modified in order to
achieve the general descriptions of land health described by the
Fundamentals.
[BULLET] Amendments removing ``conservation use'' permit regulatory
provisions throughout the grazing regulations in accordance with Public
Lands Council v. Babbitt, supra;
[BULLET] An amendment revising the definition of ``grazing
preference'' to mean, in addition to a priority position against others
for the purpose of receiving a permit or lease, the total number of
AUMs on public lands apportioned and attached to base property owned or
controlled by a permittee, a lessee, or an applicant for a permit or
lease. Grazing preference includes active use and use held in
suspension. Related to this change, we also removed the definition of
``permitted use'' from the regulations;
[BULLET] Amendments revising the definition and role of the
``interested public'' to ensure that only those individuals and
organizations who actually participate in the process are maintained on
the list of interested publics, and to improve efficiency by reducing
the occasions in which BLM is mandated to involve the interested
public;
[BULLET] An amendment removing the requirement that, if livestock
water rights are acquired under state law, they must be acquired,
perfected, and maintained in the name of the United States;
[BULLET] An amendment clarifying the criteria that BLM considers
when determining whether an applicant for a new permit or lease or a
transfer of grazing preference has a satisfactory record of
performance;
[BULLET] An amendment defining the meaning of ``temporary changes
in grazing use within the terms and conditions of the permit or lease''
and describing when and how BLM authorizes temporary changes in grazing
use;
[BULLET] An amendment raising service charges for a crossing
permit, transfer of preference, and cancellation and replacement of a
grazing fee billing;
[BULLET] An amendment limiting the applicability of certain
prohibited acts to those allotments where the permittee or lessee is
authorized to graze;
[BULLET] An amendment providing authority for BLM to issue
immediately effective decisions on nonrenewable grazing permits or
leases or on decisions affecting applications for grazing use on
designated ephemeral or annual rangelands;
[BULLET] An amendment clarifying the effect of an administrative
stay on a decision to modify or renew a grazing permit or lease, or a
decision to offer or deny a
[[Page 39408]]
permit or lease to a preference transferee; and
[BULLET] An amendment clarifying that a biological assessment or
evaluation prepared for a Section 7 consultation under the ESA is not a
decision for purposes of protest or appeal.
Additional amendments are also effected by this decision. They are
identified in the Preamble, Part V. Section-by-Section Analysis and
Response to Comments, as well as in the regulatory text in this final
rule.
One comment on the DEIS stated that BLM ``subverted'' the NEPA
process by issuing the DEIS after the proposed rule was published and
rewriting an earlier draft.
We discuss this comment in detail under Response to General
Comments, General Opposition, section IV.C. of this preamble.
B. Alternatives Considered
BLM considered three alternatives in the EIS to address issues that
were raised by the public during the EIS scoping period and issues that
surfaced during implementation of the 1995 regulations. Alternatives
were developed for 18 issues and combined. As stated in the EIS, the
regulatory changes are narrow in scope, do not include changes in
grazing fees or the fundamentals of rangeland health, or the standards
and guidelines for grazing administration, and otherwise leave the
majority of the 1995 regulatory changes in place. The changes that are
analyzed address specific issues and concerns that have come to BLM's
attention. These issues and concerns came to the fore as areas where
BLM could improve working relations with permittees and lessees,
protect the health of the rangelands, and improve administrative
efficiency and effectiveness, including resolution of legal issues. The
alternatives included Alternative 1, the required ``no action''
alternative, which would have retained the 1995 regulations,
Alternative 2, the proposed action alternative, and Alternative 3, the
modified action alternative.
The following is a brief description of the alternatives:
Alternative 1, No Action--This alternative would not have changed
the regulations. Its consideration is required under NEPA.
Alternative 2, Proposed Final Regulations--This alternative is
BLM's proposed action and the agency's ``preferred alternative.'' We
modified the alternative between the draft and final EIS in response to
public comments. This alternative represents BLM's preferred regulatory
approach after the agency considered the results of public scoping and
comments on the December 2003 proposed rule.
Alternative 3--Modified Action Alternative--This alternative
differs from the preferred alternative in several respects:
[BULLET] The 5-year phase-in of changes in use greater than 10
percent would have been discretionary rather than mandatory,
[BULLET] Temporary nonuse would have been limited to 5 years rather
than the current limit of 3 years,
[BULLET] BLM would not have been required to use both assessments
and monitoring as bases for determinations of rangeland health,
[BULLET] Prohibited acts would have included failure to use
certified weed seed free forage, grain, straw or mulch when required by
BLM,
[BULLET] The third category of prohibited acts, which pertain to
violations of certain Federal or state laws or regulations, would have
been removed from the regulations.
C. Environmentally Preferable Alternative
The Council on Environmental Quality's regulations for implementing
NEPA (40 CFR 1505.2(b)) require that the Record of Decision specify the
environmentally preferable alternative.
We determined the environmentally preferable alternative to be the
Proposed Action (Alternative 2). The Proposed Action provides for the
beneficial use of the public lands for livestock grazing while
maintaining and improving the health of the land. The reasons why we
determined the Proposed Action to be environmentally preferable to each
of the alternatives are listed below.
The Proposed Action may result in more short-term adverse impacts
in some areas than under the No Action alternative. However, it is
expected to result in more beneficial long-term impacts than either the
No Action alternative or the Modified Action Alternative (Alternative
3).
We determined that the Proposed Action is environmentally
preferable to the No Action alternative for the following reasons:
[BULLET] Under the Proposed Action a standards assessment will be
used by the authorized officer to assess whether rangeland is failing
to achieve standards or that management practices do not conform to the
guidelines. BLM will use standards assessment and existing or new
monitoring data to identify significant contributing factors in failing
to achieve standards or conform with guidelines. The No Action
alternative does not require monitoring. Use of monitoring data will
enable more rigorous scientific analyses. As a result changes in range
management actions will be more effective and decisions to increase or
decrease active use will be more sustainable and less vulnerable to
appeal.
[BULLET] The Proposed Action allows up to 24 months (or longer if
necessary to accommodate legally-required processes of another agency)
following a determination on rangeland standards for BLM to formulate,
propose, and analyze the appropriate action. This will allow BLM to
complete required analyses and consultations, and provide additional
time to collaborate with the permittee/lessee to examine alternatives
and select the best solution for a sustainable decision with more
acceptance from the permittee/lessee and more effective action to
change grazing management to improve resource conditions. We expect the
added collaboration to result in decisions that are less likely to be
appealed. This will also allow more time to complete any necessary NEPA
analysis and to ensure compliance with all applicable and relevant laws
and regulations. BLM believes that adoption of the proposed rule will
lead to improved land conditions in the long-term as indicated in the
analysis in section 4.5 of the Addendum to the EIS. That analysis
states that some adverse impacts are unavoidable, but in the long-term
better and more sustainable decisions would be developed by using
monitoring.
[BULLET] The 5-year phase-in of reductions in active use of greater
than 10 percent (which will likely be required on only a small
percentage of allotments, as explained in detail in part III.D.3. of
this preamble) may result in short-term adverse impacts to natural
resources on some allotments. A phase-in period would avoid the adverse
impacts of sudden herd size reductions on permittees/lessees. The
ability of BLM to use the phase-in period helps BLM and the permittee/
lessee to work collaboratively to ensure the appropriate changes in
range management practices on a timely basis, while still retaining
authority to implement changes on a faster time schedule if necessary
to address ESA or other resource concerns.
[BULLET] The provision for shared ownership in range improvements
under the Proposed Action is expected to encourage investment in such
projects by cooperators and result in improvements in resource
condition.
[BULLET] The Proposed Action has no limit on the number of years of
nonuse that can be taken on an allotment. The No Action alternative has
a 3 consecutive year limit on nonuse. The removal of
[[Page 39409]]
the limit under the Proposed Action improves cooperation with the
permittee/lessee when nonuse is the best management practice to benefit
resource conditions, e.g., to remedy damage caused by fire, flood,
drought, etc. BLM would be able to authorize nonuse on an annual basis
for resource conservation, enhancement, or protection. The availability
of nonuse as an easy-to-implement, collaborative option should result
in more rapid recovery in damaged areas and more rapid progress toward
meeting resource condition objectives. Further, it is a simpler process
to approve an application for nonuse than it is to impose a formal
suspension, thereby improving management efficiency in those cases
where all involved parties agree that nonuse is warranted.
[BULLET] The Proposed Action removes requirements that BLM consult
with the interested public on day-to-day grazing matters, and requires
that BLM provide opportunities for the interested public to participate
in the decision-making process when the focus is on planning or on the
preparation of reports that evaluate data that are used in grazing
decisions. Less stringent requirements for public participation
requirements in routine grazing management matters and excising non-
participating interested publics from the list of those who it attempts
to consult will free up BLM resources for more effective management to
benefit the natural environment.
[BULLET] The Proposed Action removes the requirement that on
Federal land BLM seek livestock watering water rights in the name of
the United States to the extent allowed by State law, and thus provides
BLM additional flexibility for cooperative development of water
projects that will benefit livestock grazing management and wildlife.
[BULLET] The Proposed Action removes the provision that directs BLM
to take action to remedy improper grazing practices when the authorized
officer determines that existing livestock grazing management needs to
be changed to achieve the conditions described in the fundamentals of
rangeland health, and makes it clear that standards evaluation and
conformance determination will be the benchmark by which we determine
the need to adjust grazing management. It retains the requirement that
standards and guidelines developed by BLM State Directors be consistent
with the Fundamentals. The resulting improved efficiency in
implementing our rangeland health improvement processes will benefit
the environment.
We determined that the Proposed Action is environmentally
preferable to Alternative 3 (Modified Action) for the following
reasons:
[BULLET] Under the Proposed Action a standards assessment will be
used by the authorized officer to gauge whether rangeland is failing to
achieve standards or that management practices do not conform to the
guidelines. BLM will use standards assessment and existing or new
monitoring data to identify significant contributing factors in failing
to achieve standards or conform with guidelines. Under Alternative 3,
monitoring is discretionary. Consequently, some rangeland health
determinations would not be as rigorously developed as under the
proposed action. Using existing or new monitoring data will lead to
more scientifically sound analyses. As a result, changes in range
management actions will be more effective, and decisions to increase or
decrease active use should be less vulnerable to appeal.
[BULLET] The Proposed Action has no limit on the number of years of
nonuse that can be taken on an allotment. The Modified Action
Alternative, Alternative 3, has a 5 consecutive year limit on nonuse.
The removal of the limit under the Proposed Action enhances cooperation
with the permittee/lessee when nonuse is the best management practice
to benefit resource conditions, e.g., to remedy damage caused by fire,
flood, drought, etc. BLM would be able to authorize nonuse on an annual
basis for resource conservation, enhancement, or protection. The
availability of nonuse as an option should result in more rapid
recovery in damaged areas and more progress toward meeting resource
objectives.
[BULLET] Under the Proposed Action, BLM may impose civil penalties
on a permittee/lessee (e.g., canceling his grazing permits) if he is
convicted of violating certain specific Federal or state environmental
and cultural laws. Alternative 3 would eliminate the potential civil
penalty for a permittee/lessee because such an action is not included
under ``prohibited acts'' under Alternative 3.
[BULLET] Alternative 3 includes failing to use weed seed-free
forage products (when required by the Authorized Officer) as a
``prohibited act,'' and the Proposed Action does not include it as a
prohibited act. While a weed-seed free forage provision would be more
environmentally desirable, due to the lack of state weed seed-free
forage laws in some western states, BLM has decided to work with each
state in its efforts to develop a law, and will pursue enforcement of
weed seed-free forage on public lands through a subsequent, separate
rulemaking.
D. Decision Rationale
During the years that BLM has been working with the 1995 grazing
regulations, we recognized several areas where BLM could benefit from
amending the 1995 regulations. Based on the analysis in the EIS
(including the Revisions and Errata document issued June 17, 2005, and
the Addendum to the FEIS, published March 31, 2006), which analyzes
three alternatives for amending the regulations, and a review of public
comments, we selected Alternative 2 (Proposed Action).
BLM provided opportunities for public involvement throughout the
process of preparing the EIS and the publication of the Advanced Notice
of Proposed Rulemaking and the proposed rule in the Federal Register.
We considered all public comments, both oral and written. We made
changes in the final rule and EIS as a result of public comment and
further review.
The Congressionally mandated purposes for managing BLM-administered
lands (public lands) include both conserving the ecosystems upon which
species depend and providing raw materials and other resources that are
needed to sustain the health and economic well-being of the people of
this Nation. To balance these sometimes conflicting purposes, we
selected the alternative that will reduce confusion that has been
evident over recent years, increase clarity, enhance administrative
effectiveness, and provide for grazing use while maintaining the health
of the land. FLPMA clearly states that the Nation's public lands are to
be managed on the basis of multiple use and sustained yield principles.
FLPMA defines BLM's mission to include livestock grazing as one of many
uses of public lands. However, FLPMA does not identify where livestock
grazing will occur and how livestock grazing operations will be
conducted. Those decisions are made during the preparation of land use
plans and more site-specific decisions, such as allotment management
plans, and through issuance of grazing permits and leases. These
regulations provide the framework for managing livestock grazing where
BLM has determined it to be an appropriate use under multiple use
principles. The regulations provide for including all practical means
to avoid or minimize environmental harm in implementing BLM's livestock
grazing program and future decisions under these regulations within the
[[Page 39410]]
context of BLM's multiple use and sustained yield mission under FLPMA.
The reasons for selecting Alternative 2 are that it--
[BULLET] Best meets the purpose of and need for the action, as
described in the EIS;
[BULLET] Amends portions of the 1995 regulations and retains the
emphasis on BLM's rangeland management objectives and the 1995
regulations to maintain and improve the health of the land;
[BULLET] Builds on the relationships between BLM and livestock
permittees and lessees;
[BULLET] Makes changes in the 1995 regulations needed to comply
with court decisions; clarifies certain provisions in the 1995
regulations that have been found to be unclear;
[BULLET] Is consistent with statutory requirements and national
policy; and
[BULLET] Is the environmentally preferable alternative for the
reasons described in the Environmentally Preferable Alternative section
of this Record of Decision.
A specific rationale for the selection of each major regulatory
amendment is discussed below. Rationale for other changes in the
regulations appears in Part V of this Preamble under Section by Section
Analysis and Response to Comments
1. Analysis and Documentation of Social, Economic and Cultural Effects
The final rule amends paragraph (c) of section 4110.3 on changes in
grazing preference to provide that BLM will analyze and, if
appropriate, document the relevant social, economic, and cultural
effects of a proposed action. This will improve consistency when BLM
documents its consideration of social, economic, and cultural effects
of certain grazing decisions, thereby improving working relations with
permittees and lessees.
Generally, BLM managers consider the possible effects of their
decisions through the NEPA process. NEPA requires the analysis of
social, economic, and cultural effects of proposed actions. However,
the current grazing regulations are silent on the issue.
The preferred alternative adds a new provision requiring BLM to
analyze and, if appropriate, document the relevant social, economic,
and cultural effects of a proposed action before changing grazing
preference. This will ensure a consistent approach to the
decisionmaking process for those most directly affected by a decision
to change grazing preference. We did not select Alternative 1, the
continuation of the current regulations, because the regulations would
remain silent on this issue and potentially foster inconsistent
consideration of the social, economic, or cultural effects of changing
preference. Alternative 3 does not differ from the preferred
alternative.
2. Phase-in of Changes in Active Use of More Than 10 Percent
The final rule amends section 4110.3-3 on implementing changes in
active use by providing for a 5 year phase-in of changes in active use
when that change exceeds 10 percent. The rule provides that changes may
be implemented in less than 5 years by agreement between BLM and the
permittee or lessee. The preferred alternative gives BLM sufficient
discretion to handle a wide range of circumstances when changing active
use, while giving permittees and lessees additional time to make
changes in their overall business operations. Changes in active use
exceeding 10 percent are infrequent, but may create significant
disruptions for an individual permittee or lessee when they do occur.
On the other hand, as we have stated elsewhere in this preamble, if
conditions are such that phasing in changes exceeding 10 percent would
not prevent significant resource damage, or if conditions such as
drought, fire, flood, or insect infestation require that resources be
protected immediately, BLM can close allotments or portions of
allotments under section 4110.3-3(b).
The 1995 regulation amendments deleted the then existing provisions
regarding the timing of implementation of decisions to change grazing
use. In some instances, this lack of guidance has led to decisions for
full implementation of grazing reductions in a single season, resulting
in disruptions of ranching enterprises.
The preferred alternative provides that BLM will implement changes
in active use in excess of 10 percent over a 5-year period unless (1)
an agreement with the affected permittee or lessee is reached to
implement the change within a shorter period of time, or (2) the
changes must be made before 5 years have passed in order to comply with
applicable law. Prior to 1995, the regulations provided for a 5-year
implementation period that proved to be a practical interval for
implementing changes. The phase-in should help permittees and lessees
to avoid sudden adverse economic effects resulting from a reduction by
allowing time to plan livestock management changes such as in herd
size. The total number of allotments affected by the preferred
alternative is expected to be small, because only 16 percent of the
allotments evaluated during the last 5 years needed adjustments in
current livestock grazing management. See Section 4.3.1 of the EIS.
Most of these adjustments have been made in the season of use, or in
movement and control of livestock, rather than in active use. Finally,
the rule retains provisions for immediate, full implementation of a
decision to adjust grazing use if continued grazing use poses an
imminent likelihood of significant soil, vegetation, or other resource
damage.
We did not select Alternative 1, the continuation of existing
regulations, because the 1995 regulations were silent regarding the
timing of implementation of decisions to change grazing use. If, for
example, a permittee or lessee challenged full implementation of a
grazing reduction, appealed the decision, and was granted a stay of the
decision by IBLA, then implementation of the grazing decision would be
delayed. Until the appeal is resolved, grazing would continue at
greater levels than are desirable, and delaying implementation of
necessary changes. The ability to phase in changes may help avoid
appeals and stays, thus improving administrative efficiency.
We did not select Alternative 3, which would have made the 5-year
phase-in discretionary, because we felt that additional discretion was
not warranted when considering the small number of allotments that
would be affected. Since the rule retains provisions for immediate,
full implementation of a decision to adjust grazing use, we believe the
provision for phase-in of changes, coupled with the resulting improved
cooperation with permittees and lessees, will result in greater
efficiency and improved resource conditions in the long-term.
3. Sharing Title to Permanent Range Improvements
The final rule amends section 4120.3-2 on cooperative range
improvement agreements by providing for shared title of permanent range
improvements. Sharing title between cooperators and BLM allows
operators to maintain some asset value for investments made, improving
working relationships and encouraging private investment in range
improvements.
In 1995, the regulations were revised to provide that permittees
and lessees do not share title with the United States. BLM's data
indicate that construction of range improvements has declined since
that rule change. The 1995 rule change is one among several factors
that may have contributed to the decline. The preferred alternative
provides that BLM and cooperators share title to permanent
[[Page 39411]]
structural range improvements in proportion to their contribution to
on-the-ground project development and construction costs.
Private investment in range improvements may lead to better overall
watershed conditions and improved wildlife habitat. BLM believes this
will be the case because allowing shared title to range improvements
provides an opportunity for permittees and lessees to document
investment in their business enterprises, which is useful for securing
business capital and demonstrating the value of their overall private
investment in public and private lands. Permittees and lessees perceive
this recognition of investment as crucial to their business, and
therefore as an important factor when considering personal investment
in range improvements. Most existing and, since 1995, all new permanent
structural range improvements are implemented through Cooperative Range
Improvement Agreements that include provisions to protect the interest
of the United States in its lands and resources and ensure BLM's
management flexibility on public lands.
We did not select Alternative 1, which does not allow shared title
of range improvements, because it did not contain any incentive for
private investment on public lands or recognize the contributions made
by permittees and lessees. This lack of recognition of investments may
have contributed to the substantial drop in construction of new range
improvement projects following the removal of shared title provision in
the 1995 rule. Alternative 3 does not differ from the preferred
alternative.
4. Cooperation With Tribal, State, County, or Local Government-
Established Grazing Boards
The final rule amends section 4120.5-2 on cooperation with Tribal,
state, county, and Federal agencies by adding a requirement to
cooperate with Tribal, state, county, or local government-established
grazing boards for purposes of reviewing range improvement and
allotment management plans. This will improve our cooperative
relationship with government-established agencies and boards. The
changes also comply with Executive Order 13352 of August 26, 2004 (69
FR 52989), on Facilitation of Cooperative Conservation.
State and local grazing interests had expressed concern that BLM
has not used existing established grazing advisory boards effectively.
Grazing board review and input, to the extent consistent with the
applicable laws of the United States, will help us consider how to
apply land management practices and spend range improvement funds.
Cooperation with grazing boards, where they exist, will benefit BLM
land managers because the boards can contribute resource-related
information from local subject matter experts, thus increasing our
ability to develop appropriate strategies for managing grazing
allotments and developing range improvements. This provision is
consistent with section 4120.5-1, which requires cooperation, to the
extent appropriate, with all groups and individuals, including Tribal
entities, to achieve the objectives of grazing management. These
locally established grazing boards, where they exist, would be a
valuable tool for gathering additional local input for BLM's
decisionmaking processes and would help satisfy the FLPMA Section
401(b)(1) provision that calls for BLM to consult with local user
representatives when considering range rehabilitation, protection, and
improvement actions.
We did not select Alternative 1, which did not require cooperation
with grazing boards, because we want to encourage and institutionalize
participation by these grazing boards when we are preparing range
improvement or allotment management plans, to ensure a consistent,
cooperative approach. Alternative 3 does not differ from the preferred
alternative.
5. Removal of Temporary Nonuse Limit
The final rule moves the provisions on temporary nonuse from
section 4130.2(g) to section 4130.4 on authorization of temporary
changes in grazing use within the terms and conditions of permits and
leases including temporary nonuse, and amends this section by removing
the 3-consecutive-year limit on temporary nonuse. The agency needs the
flexibility to authorize temporary nonuse on an annual basis so that it
may adapt its management to the needs of the resources as well as the
resource user. This flexibility will improve working relationships with
permittees and lessees and provide another tool to protect the health
of rangelands.
Prior to the 1995 regulatory change, a permittee or lessee could
apply for temporary nonuse of all or a portion of his active grazing
use, and there was no restriction on the number of consecutive years of
nonuse. The 1995 rules established provisions for ``conservation use,''
which provided an alternative to annually authorized nonuse and
introduced a 3-consecutive-year limit on temporary nonuse. However, a
1999 court ruling determined that BLM did not have authority to issue
conservation use permits, resulting in a regulatory framework that
limits BLM's authority to approve temporary nonuse to 3 consecutive
years.
Temporary nonuse is one of the most efficient means BLM has at its
disposal to facilitate nonuse when drought, wildfire, or other episodic
events dictate nonuse. The 3-consecutive-year limit on temporary nonuse
restricts BLM's ability to respond to resource conservation,
enhancement, or protection needs, or the personal or business needs of
the permittee or lessee. Even if BLM believes that resources would
benefit and would like to approve nonuse, we are prevented from using
temporary nonuse after 3 years and forced to use alternative authority.
The removal of the limitation on temporary nonuse in the preferred
alternative provides regulatory flexibility for responsible and
responsive rangeland management.
We did not select Alternative 1 or 3 because they restricted
temporary nonuse to 3 or 5 consecutive years, respectively. We believe
that there should be no rigid limit on the number of consecutive years
of nonuse for reasons of resource conservation, enhancement, or
protection (as opposed to nonuse for business or personal reasons).
There may be times when nonuse is justified for longer than 5 years,
which BLM will determine based on monitoring and standards assessment
on a year-to-year basis.
6. Requiring Assessment and Monitoring for Determinations on Standards
and Guidelines
The final rule amends section 4180.2 on standards and guidelines
for grazing administration to provide that BLM will use standards
assessment and monitoring data to support a determination that existing
grazing management or levels of use are significant factors in the
failure to meet standards or conform to guidelines. If a standards
assessment indicates to the authorized officer that the rangeland is
failing to achieve standards or that management practices do not
conform to the guidelines, then he will use relevant monitoring data to
identify the significant factors contributing to the failure to achieve
the standards or to conform with the guidelines. The preferred
alternative will protect the health of the rangeland and improve
working relations with permittees and lessees because determinations on
the causes of failure to meet a standard will be based on monitoring
and assessment data, thus helping to ensure
[[Page 39412]]
comprehensive and sustainable decisions.
Many members of the public articulated a strong interest in BLM's
monitoring program, and expressed concern about the adequacy of data
used to support our decisions and determinations. Some individuals are
under the impression that BLM supports determinations with a one-time
assessment of rangeland conditions. Current regulations do not specify
the methods to be used to analyze and evaluate rangeland conditions.
However, guidance exists in policy in BLM Manual Section 4180 and
Handbook H-4180-1.
Raising the issue of monitoring from the policy level to the
regulatory level will help BLM to focus monitoring efforts in those
areas with critical resource issues, as disclosed by standards
assessments. Under the preferred alternative, monitoring will not be
necessary on every allotment in order to make a determination, but only
on those allotments that fail to meet standards or conform with
guidelines due to levels of grazing use or management practices. By the
end of Fiscal Year 2002, BLM had determined that about 16 percent of
the 7,437 allotments evaluated were not meeting land health standards
because of existing livestock grazing management. Since these
assessments were first focused on areas with known problems, it is
reasonable to assume that the proportion of allotments not likely to
meet standards because of livestock grazing management practices or
levels of use in the future will not exceed 16 percent. Thus, at a
maximum, the preferred alternative may require monitoring data to
support 16 percent of the future determinations. We expect to have
appropriate monitoring data to support a significantly larger
proportion of our determinations, regardless of whether or not they
involve a finding of failure to meet standards due to livestock
grazing. While BLM cannot control the number of appeals or lawsuits
resulting from grazing decisions, we believe ensuring sufficient
monitoring will reduce the number of instances where appropriate action
is delayed because of protracted administrative and judicial processes.
We did not select Alternative 1 because it left the regulations
unchanged, that is, silent on the basis for supporting a determination.
We did not select Alternative 3 because it required determinations to
be supported by either standards assessments or monitoring, not both.
Neither of these alternatives is responsive to the concern about
monitoring data, and neither provides the level of assurance desired
that critical management decisions would be based on appropriate
monitoring data.
7. Time Frame for Taking Actions
The final rule amends sections 4180.1 and 4180.2(c). These sections
cover fundamentals of rangeland health, and standards and guidelines
for grazing administration, respectively. We have removed the language
in section 4180.1 of the proposed rule that would have required, for
those areas where state or regional standards and guidelines have not
been established and where conditions described by the fundamentals of
rangeland health do not currently exist, that BLM modify grazing
practices before the start of the next grazing year that follows BLM's
completion of mandatory procedural and consultation requirements.
However, the fundamentals themselves remain as approved in 1995.
Section 4180.2(c) was amended to allow BLM adequate time (up to 24
months) for cooperative formulation, proposal, and analysis of
appropriate management actions when we determine that changes in
current management are necessary to ensure progress towards achieving
standards and conforming with guidelines. Allowing additional time for
this process will help improve the health of rangelands, because
cooperatively-developed management actions based on reasoned analysis
have a greater likelihood of successful implementation, and yield long-
lasting resource benefits.
The preferred alternative for section 4180.1 is Alternative 2 in
the EIS. It would have directed the authorized officer to modify
grazing management if BLM determined that conditions described by the
fundamentals of rangeland health do not currently exist because of
current grazing practices, but only where standards and guidelines have
not been established. However, as a result of comments and
implementation experience, we are adjusting the proposed action to
achieve a better reflection of the relationship between the
fundamentals and the standards and guidelines. The regulatory provision
for adjusting management to ensure progress towards rangeland health
would be in section 4180.2 rather than both sections 4180.1 and 4180.2.
While BLM still must take appropriate action to remedy grazing
management practices that are detrimental to rangeland health, now the
final rule allows time for cooperative formulation, proposal, and
analysis of appropriate management actions prior to their
implementation.
As explained in the 1995 final rule, the ``fundamentals will guide
BLM in the development of plans for public lands and in the
authorization of grazing related activities consistent with the
provisions of FLPMA and TGA, that lead toward or maintain healthy
sustainable rangelands.'' 60 FR 9954. The 1995 rule further explained
the broad nature of the fundamentals: ``[F]undamentals are statements
of the conditions that are representative of healthy rangelands across
the West, and as such, are relatively broad * * *.'' Id. The
fundamentals, therefore, reflect goals that may be incorporated into
land use plans. With respect to grazing, the 1995 rule explained
specifically that the ``State or regional standards and guidelines will
be developed under the umbrella of the fundamentals, to provide
specific measures of rangeland health and to identify acceptable or
best management practices in keeping with the characteristics of a
State or region such as climate and landform.'' Id. In essence, the
``overarching principles'' set forth in the fundamentals were to be
supplemented by standards and guidelines tailored to more local
conditions.
Although the 1995 rule established requirements for ``appropriate
action'' when either the fundamentals or established standards and
guidelines were not being met due to existing grazing, we believe
requiring ``appropriate action'' in both circumstances is unnecessary
and inefficient. Standards and guidelines have been developed in
conformance with the fundamentals and adopted for all states and
regions except southern California. These standards and guidelines
provide the basis for the application of the broadly stated
fundamentals to the management of public lands. In southern California,
the fallback standards and guidelines provide for the application of
the fundamentals to those public lands. This means that, in the
California Desert District, the fallback standards and guidelines will
be applied until standards and guidelines for the District are
developed and approved, so that requiring BLM action under section
4180.1 is unnecessary.
On all other public lands, the standards and guidelines provide
specific measures for achieving healthy rangelands within the framework
of the broad fundamentals. Therefore, a duplicate administrative
mechanism to require ``appropriate action'' under the fundamentals is
unnecessary. Further, as previously noted, the fundamentals are broad
concepts that describe healthy rangelands. Because the standards and
[[Page 39413]]
guidelines are more specific, they lend themselves to determining
whether the ecosystem functions and processes as described by the
fundamentals are in fact occurring, and to communicating achievement
status in a way that the fundamentals do not. For this same reason, the
standards also lend themselves to enforcement in a way that the
fundamentals do not. Finally, we believe that removing the
``appropriate action'' requirement under the fundamentals will better
enable authorized officers to focus on the implementation of the
standards and guidelines, which we in turn expect to result in more
efficient implementation of decisions that will maintain healthy
rangelands.
The 1995 regulations sought to implement timely and responsive
remedial action when BLM determines that existing practices are
significant factors in failing to achieve standards and conform to
guidelines. However, in practice, the requirement to take action
``before the start of the next grazing year'' has proven to be
impracticable, often allowing BLM considerably less than a year to
begin action. If BLM determines in October, for example, that an
allotment failed a standard due to grazing management, in many cases
only 4 months would be available before the typical March begin date
under current regulations to develop new management alternatives before
the beginning of the next grazing year for that allotment. This
restricted time frame has made it difficult or impractical to implement
decisions, and has damaged working relationships with permittees and
lessees. If a common allotment with several permittees or lessees does
not meet a standard because of current grazing practices, and numerous
public land users wish to participate in the formulation of remedial
management actions, the time frame for reaching consensus may be
lengthy. In these instances it is very difficult to develop and
implement appropriate action before the next grazing year. Further,
failing to meet the deadline in one case opens the involved BLM office
to legal action, to which resources and personnel must be devoted,
diminishing that office's ability to meet the deadline in all cases,
possibly leading to a snowballing effect as litigation mounts.
During the formulation, proposal, and analysis of appropriate
action, several steps are necessary to develop sustainable management
strategies that will yield long-term improvements in rangeland health.
Adequate time is needed to obtain comment and input from permittees,
lessees, states and the interested public on reports that are used as
bases for making decisions to modify permits or leases, or otherwise to
consult and cooperate with permittees, lessees, states, and Tribes; to
carry out consultation with the Fish and Wildlife Service (FWS) or the
National Oceanic and Atmospheric Administration (NOAA Fisheries), or
both, under Section 7 of the ESA, 16 U.S.C. 1536; and to complete
analysis and documentation required by NEPA.
The preferred alternative for section 4180.2(c) establishes a more
reasonable time frame within which BLM must take appropriate action if
we determine that existing grazing management or levels of use are
significant factors in the failure to meet standards or do not conform
with guidelines. Generally, under the final rule, BLM must develop
appropriate action as soon as practicable but not later than 24 months
after the determination and then implement that action no later than
the start of the next grazing year.
The final rule at section 4180.2(c) has been amended between the
proposed and final rule. It now includes a provision extending the
deadline for developing appropriate action if legally required
processes that are the responsibility of another agency prevent
completion within 24 months. For example, if an ESA Section 7
consultation is required, it may be difficult to complete the process
within the 24-month time frame.
This extended deadline will allow BLM to fulfill all required legal
obligations and should result in more sustainable and effective
decisions. Taking time at this stage of the process, and involving
those most directly affected by BLM decisions, to propose, formulate,
and analyze appropriate actions will save time in the future by
reducing the likelihood of appeals and litigation that may occur as a
result of hastily prepared management actions.
We did not select Alternative 1 because the 1995 regulations did
not provide enough time to formulate and analyze management
alternatives and complete all consultation and documentation
requirements. Alternative 3 in this respect was the same as the
proposed action.
8. Conservation Use
The final rule amends several sections of the regulations by
removing all reference to conservation use and authority to issue
conservation use permits. This affects sections 4110.0-5 Definitions,
4120.3 Range improvement permits, 4130.2 Grazing permits or leases,
4130.5 Free use grazing permits,4130.8 Service charges, 4140.1
Prohibited acts. The 1995 regulations allowed BLM to issue
``conservation use'' permits for the purpose of protecting the land,
improving rangeland conditions, or enhancing resource values. This
authority was challenged in court, resulting in a ruling that BLM did
not have authority to issue permits exclusively for conservation
purposes. By removing conservation use references from the final rule
we are bringing the regulations into compliance with the court's
holding.
We did not select Alternative 1 because it proposed to leave the
conservation use authority in the regulations. Alternative 3 does not
differ from the preferred alternative.
9. Definition of Preference, Active Use and Removal of Permitted Use
The final rule revises the definition of ``preference'' and
"active use'' in section 4110.0-5 on definitions, and removes the term
``permitted use'' from the rule. Where it occurred in the rule, the
term ``permitted use'' has been replaced by either ``preference,''
``grazing preference'' or ``active use,'' depending on the regulatory
context. These amendments make the definition of ``preference'' similar
to the meaning first formally promulgated in 1978. Elimination of the
concept of ``conservation use'' made necessary the revision of the
definition of ``active use.'' These changes will provide a consistent
framework for the efficient administration of public lands.
The definition of ``preference''--along with the synonymous term
``grazing preference''--has been revised to include the total number of
AUMs attached to base property, including active use and use held in
suspension. The definition also retains the meaning of a priority
position for the purposes of receiving a grazing permit or lease.
In 1978, BLM formally defined ``grazing preference'' to mean the
total number of AUMs of livestock grazing on public lands apportioned
and attached to base property owned or controlled by a permittee or
lessee. Grazing preference represented a specific portion of forage out
of all the vegetation that a land use plan determined to be available
for livestock. The 1995 rule introduced some inconsistencies in the
regulations by creating the term ``permitted use'' to mean the forage
allocation, and narrowing the definition of ``preference'' to mean only
a priority position as against other applicants for forage. For
example, the regulations provide that an application to transfer
preference shall describe the ``extent'' of the preference being
transferred. This usage does not comport with the concept that
[[Page 39414]]
preference is a singular ``priority position,'' but rather, that it can
be expressed in terms of its ``extent'' or quantity. Also, the current
definition of ``permitted use'' is in some cases not appropriately used
in the regulations. For example, even though permitted use encompasses
``suspended use'' and ``active use,'' the regulations state that
failure to make substantial use of the ``permitted use'' authorized by
the grazing permit or lease shall give BLM cause to take action to
cancel whatever amount of ``permitted use'' the permittee has failed to
use. This is paradoxical as ``suspended use'' is by definition not
currently available for grazing use.
In the preferred alternative, the re-revised definition of grazing
preference is once again consistent with its longstanding meaning--a
meaning that was in formal usage for 17 years before it was changed by
the 1995 grazing regulations. The definition is also consistent with
how the term ``preference AUM's'' was informally used before 1978.
Attaching a forage allocation to base property provides a reliable way
to associate ranch property transactions with the priority for use of
public land grazing privileges. This has been a foundation of BLM's
system for tracking who has priority for those grazing privileges since
the enactment of the TGA.
In revising the definition of ``preference,'' this final rule seeks
to reinstate a familiar method of identifying the total number of AUMs
apportioned and attached to base property. Preference includes both
active use and use held in suspension. This definition of
``preference'' does not override the requirement that livestock forage
allocations be made within a multiple use context as set forth in land
use plans. The proposed definition should not be erroneously construed
to imply that satisfying a permittee's or lessee's livestock forage
allocation (his preference) has the highest priority when BLM employs
land use planning or activity planning processes to determine the
appropriate combination of resource uses on BLM-administered lands.
Since 1995, ``active use'' has meant ``current authorized use,
including livestock grazing use and conservation use.'' BLM must remove
conservation use from the definition because of a court ruling that BLM
could not issue permits exclusively for conservation purposes. In the
final rule the term ``active use'' is the amount of forage that is
available for grazing use under a permit or lease based on rangeland
carrying capacity and resource conditions in an allotment.
Permitted use was introduced as a term in the 1995 regulations to
define an amount of forage allocated by a land use plan for livestock
grazing. It is expressed in terms of AUMs and includes ``active use''
and ``suspended use''. Since we have revised the definition of
preference to include this same livestock forage allocation, the term
is no longer necessary.
We did not select Alternative 1 because the definition of
preference would have remained simply a priority position to receive a
grazing permit or lease, a definition that was inconsistent with
traditional usage of the term which identified the total AUMs attached
to specific base property. The definition of active use would have
remained unchanged and inconsistent with the need to remove
``conservation use'' from the regulations. Alternative 3 does not
differ from the preferred alternative.
10. Interested Public
The final rule amends sections 4100.0-5 Definitions, 4110.2-4
Allotments, 4110.3-3 Implementing changes in active use, 4130.2 Grazing
permits and leases, 4130.3-3 Modification of permits or leases, and
4130.6-2 Nonrenewable grazing permits and leases, in order to
streamline the role of the interested public. These changes should
foster increased administrative efficiency by focusing the role of the
interested public on planning decisions and reports that influence
daily management, rather than on daily management decisions themselves.
Under the existing regulations, any person or group may obtain
``interested public'' status simply by requesting that status for a
specific allotment in writing or by submitting a written comment on the
management of livestock grazing on a specific allotment. Members of the
interested public are mailed, at government expense, documents related
to decisions on a particular grazing allotment. BLM must also consult,
cooperate, and coordinate with members of the interested public on a
host of decisions. The interested public provides valuable input, but
some of those who have enlisted as interested public rarely, if at all,
participate in the decisionmaking process. Others have obtained
``interested public'' status for numerous allotments, but only
participate in the decision-making process for a select few.
Additionally, management actions that now require consultation,
cooperation, and coordination with the interested public include common
management operations, such as the renewal or modification of
individual permits, that are preceded by grazing decisions describing
the management action to be implemented. These decisions are made
available, with right of protest and appeal, to the interested public.
Moreover, while formulation of grazing management decisions can greatly
benefit from consultation with the interested public, we have found
that consultation requirements for actions that implement those
decisions and are intended to achieve the resource management goals set
forth in those decisions are unnecessarily duplicative. These
consultation requirements can slow our ability to act promptly to
further those goals when necessary to respond to changing range
conditions or transitory management circumstances. Clerical demands
associated with maintaining non-participating members of the interested
public also divert limited BLM resources from other valuable uses.
The final rule has amended the definition of ``interested public''
so that one must actually participate in the decisionmaking process in
order to maintain interested public status. This change should improve
administrative efficiency by allowing BLM to purge the names of
nonparticipating persons from its interested public lists. The
regulations have also been amended to remove consultation, cooperation,
and coordination requirements from the following decisions: (1)
Adjustments to allotment boundaries (section 4110.2-4); (2) changes in
active use (section 4110.3-3(a)); (3) emergency allotment closures
(section 4110.3-3(b)); (4) issuance or renewal of individual permits or
leases (section 4130.2(b)); and (5) issuance of nonrenewable grazing
permits and leases (section 4130.6-2). In adopting these changes, BLM
has attempted to balance the important role of the interested public
with the need for prompt decisionmaking on day-to-day management
issues. Thousands of these decisions are made annually by BLM. Actions
are guided by broader decisions (such as allotment management plans)
and monitoring and other reports as to which the interested public will
continue to have an opportunity to review and provide input. In
addition, prior to considering any on-the-ground action, BLM must
determine whether the proposed action conforms to the applicable land
use plan. If a proposed action does not conform to the land use plan, a
land use plan amendment must be completed before BLM can further
consider the proposed action. The
[[Page 39415]]
public is assured involvement in the land use planning process.
We expect the changes in the definition and role of the interested
public in the grazing program to improve administrative efficiency and
lead to more timely decision making. It is BLM's expectation that this
increased efficiency and faster reaction time will ultimately benefit
overall rangeland health. Also note that these changes do not affect
public participation opportunities available through the NEPA
environmental analysis process, in administrative appeals of grazing
decisions, or, to the extent practicable, in the preparation of reports
and evaluations.
After publishing the Final EIS in June 2005, BLM proposed two
categorical exclusions (CX) for issuing grazing permits (71 FR 4159,
January 25, 2006). One of the proposed exclusions is for issuing
grazing permits in general, and the other is for issuing nonrenewable
permits. As proposed, the CXs would be limited to grazing permits where
land health standards have been assessed and evaluated and the
authorized officer has documented that the standards are achieved, or
if not achieved, that livestock grazing is not a causal factor; and to
permits issued as a result of administrative action such as changing
the termination date or the name of the permittee, and where none of
the 12 extraordinary circumstances listed in Appendix 2 of Departmental
Manual 516 apply. If the CXs are approved, the public would continue to
have opportunity to participate in the grazing permitting process on
those allotments that qualify for a CX--
[BULLET] Through the development of Resource Management Plans and
activity plans (section 4120.2),
[BULLET] Before a decision is made to increase a permittee s forage
allocation (section 4110.3-1(c)),
[BULLET] To the extent practicable in the preparation of reports
and evaluations that are used to support modifications of grazing
permits and leases (section 4130.3-3(b)), and
[BULLET] In protests and administrative appeals of grazing
decisions (subpart 4160).
We did not select Alternative 1, the continuation of existing
regulations, because BLM's view is that those who become ``interested
public'' oblige themselves to participate in the process that leads to
a decision affecting management of the allotment(s) in which they are
interested, and Alternative 1 does not provide for this. BLM has noted
that in some cases, interested public who have been provided
consultation opportunities regarding management of grazing on a
specific allotment have failed to participate, but then file, in a
relatively generic format, a protest and/or appeal of the final
decision--which BLM then must address through a formal administrative
process. BLM believes that it is appropriate to provide that those who
forfeit their opportunities for participation in the processes leading
up to the decision then also forfeit their opportunities to contest the
decision after it is issued. BLM has noted that in other cases, some
interested publics use the consultation opportunities provided to them
as a forum for their advocacy of a particular position that has little
direct bearing on issues at hand with respect to management of a
specific allotment. The primary purpose for BLM allowing participation
by the interested public in its grazing decision making process is to
obtain specific insights regarding specific management on specific
allotments. Such interested public participation opportunity is not
intended to serve as a forum for espousing general opposition (or
support) regarding programs and policies of the United States
Government. For this and other reasons, the interested public
provisions have proven costly to implement, have decreased
administrative efficiency, and have, at times, hindered the
administration of daily grazing management. Alternative 3 did not
differ from the preferred alternative.
11. Water Rights
The 1995 rule added section 4120.3-9 on water rights. In simplified
form, it provides that if livestock water rights are acquired under
state law, they shall be acquired, perfected, and maintained in the
name of the United States to the extent allowed by the pertinent state
law. The final rule revises the section by limiting its applicability
to water rights acquired by the United States and by removing the
language stating that the water rights shall be acquired, perfected,
and maintained in the name of the United States to the extent allowed
by the applicable state law. Removal of this requirement will clarify
BLM's flexibility in seeking water rights, and in pursuing
administrative options including joint ownership of water rights with
permittees or lessees.
Although the 1995 Federal Register preamble to the rule change
stated that joint ownership of water rights was consistent with the
regulations, some interpreted the provision to exclude cooperatively
held water rights on public lands. Many water rights are currently held
by permittees or lessees, or jointly owned with BLM. We have not seen
evidence in these instances that a permittee or lessee holding a water
right discourages cooperation or compliance with terms and conditions
of grazing permits or complicates land exchanges.
The preferred alternative retains the requirement that BLM follow
the substantive and procedural laws of the state when acquiring,
perfecting, maintaining, and administering livestock water rights on
public lands. This language makes it clear that, within the scope of
state processes, BLM may seek co-ownership of water rights with
permittees and lessees or, in certain circumstances, agree that
permittees and lessees own the water rights. BLM continues to have the
option of acquiring an exclusive water right as long as we do so in
compliance with state water law. States assign water rights under
different state laws, regulations, and policies. The flexibility
afforded by the preferred alternative will facilitate BLM's ability to
administer grazing permits and leases in varied circumstances.
We did not select Alternative 1 because it retained the wording in
the 1995 regulation, which decreases BLM's flexibility to obtain
livestock water rights to an extent that is less than that allowed
under state law when BLM deems it desirable to do so. We believe that
the preferred alternative best provides BLM with the flexibility to
seek water rights appropriate to the circumstances. Alternative 3 does
not differ from the preferred alternative.
12. Satisfactory Performance of Applicants
The final rule amends section 4130.1-1, on filing applications, to
clarify the requirements for satisfactory performance of a permit or
lease applicant. Portions of the existing section 4110.1 on mandatory
qualifications were moved to section 4130.1-1 and amended. These
changes should provide applicants with a clearer statement of BLM's
expectations, improving working relationships and increasing
administrative efficiency.
The existing regulations at section 4110.1(b)(2) list 3 situations
where an applicant for a new permit would ``be deemed not to have a
record of satisfactory performance.'' The regulation thus implied that
more situations could lead to an unsatisfactory performance
determination, but it did not specify further criteria. This produced
some confusion among applicants, and it also led to some inconsistent
application of this regulation within BLM. The final rule corrects this
situation by stating
[[Page 39416]]
that an applicant will be deemed ``to have a record of satisfactory
performance'' when the applicant (1) has not had a Federal grazing
permit or lease canceled for a violation, (2) has not had certain state
grazing permits or leases canceled, or (3) has not been barred from
holding a grazing permit or lease by a court. The 3 criteria remain
essentially unchanged from the existing section 4110.1(b)(2). By
stating the provision in a positive way, however, we make it clear that
applicants have a satisfactory record of performance unless they fail
to meet one of these criteria.
Other portions of existing section 4110.1 related to applications
for renewal were also moved but not modified.
Alternative 1, the continuation of the existing regulations, was
not adopted because: (a) Satisfactory performance requirements are more
appropriately addressed in the section of the regulations that
addresses to whom BLM will issue a grazing permit or leases, rather
than the section of the regulations that addresses who is qualified for
grazing use on public lands; and (b) BLM intends that satisfactory
performance requirements be clearly and unequivocally based on matters
directly related to livestock grazing and not be based on violations of
laws and regulations that may have no bearing on the potential ability
of the applicant to manage grazing successfully under a BLM grazing
permit or lease. This is consistent with the intent expressed by the
Department when the regulations were first promulgated in 1995 that
permittees be good stewards of the land (60 FR 9926), but sharpens the
rule's focus on grazing lands. Alternative 3 did not differ from the
preferred alternative.
13. Temporary Changes in Grazing Use Within the Terms and Conditions of
Permit or Lease, Including Temporary Nonuse
The final rule amends section 4130.4 on authorization of temporary
changes in grazing use within the terms and conditions of a permit or
lease, including temporary nonuse, by defining the phrase ``temporary
changes in grazing use within the terms and conditions of the permit or
lease.'' Under existing regulations, this phrase is not defined. The
clarification associated with this change should improve administrative
efficiency.
Most permits or leases include a period of use described by
specific dates. These dates do not always account for the natural
fluctuations that can lead to forage availability outside the listed
dates. Existing regulations allow for temporary changes but this
authority has, at times, been applied inconsistently within BLM. The
new definition clarifies the amount of flexibility BLM authorized
officers will have when considering temporary changes. Under the new
definition, a temporary change can be made to the livestock number and/
or period of use. Temporary changes cannot result in the removal of
more forage than the ``active use'' specified by the permit or lease.
Neither can a temporary change authorize grazing earlier than 14 days
before the grazing start date or later than 14 days after the grazing
end date specified in the permit or lease, unless an allotment
management plan under Sec. 4120.2(a)(3) specifies different
flexibility limits. This change will help ensure consistent application
across BLM.
We did not select Alternative 1, the continuation of existing
regulations, because of the inconsistent application associated with
the current regulations. Alternative 3 did not differ from the
preferred alternative in this regard.
14. Service Charges
The final rule amends section 4130.8-3 on service charges in order
to reflect more accurately the current costs of processing and,
thereby, contribute to administrative efficiency. Editorial
modifications have also been made to remove a reference to
``conservation use,'' a term that has been removed from the regulations
generally, and provide for increased clarity.
Current service charges are $10 for issuing a crossing permit,
transferring grazing preference, or canceling and replacing or issuing
a supplemental grazing fee bill. These charges are well below BLM's
actual processing costs. The preferred alternative increases service
charges to reasonable levels that capture more of the actual cost of
processing. The change complies with section 304(a) of FLPMA, 43 U.S.C.
1734(a), where reasonable charges are authorized. The newly effective
charges are $75 for a crossing permit; $145 to transfer grazing
preference; and $50 to cancel and replace or to issue a supplemental
grazing fee billing. These new charges are subject to later
modifications through public notice in the Federal Register.
We did not select Alternative 1, continuation of the existing
regulations, because those regulations contain a reference to
``conservation use'' that should be removed for consistency within
these regulations. Under existing regulations service charges could
still be adjusted through a Federal Register notice, but it is
efficient to make these initial changes in this well-publicized rule.
This technique has allowed for extensive public input on the issue.
Alternative 3 did not differ from the preferred alternative as to this
matter.
15. Prohibited Acts
The final rule modifies section 4140.1 on acts prohibited on public
lands in order to reduce ambiguity and contribute to administrative
efficiency. Some minor editorial modifications have also been made. The
preferred alternative maintains the 3 sets of prohibited acts present
in the existing grazing regulations.
The first set, section 4140.1(a), addresses various grazing-
specific violations made by a permittee or lessee. The final rule
clarifies that supplemental feed placed contrary to the terms and
conditions of the permit or lease is a violation. The existing rule
states only that supplemental feed placed ``without authorization'' was
a violation, and this has produced some confusion among permittees,
lessees, and BLM personnel. The added language clarifies that
supplemental feeding made contrary to permit or lease terms and
conditions is a violation even if the permittee or lessee is authorized
to undertake some level of supplemental feeding.
The second set of prohibited acts, section 4140.1(b), applies to
all persons performing acts on all BLM lands, not just permittees and
lessees. The preferred alternative clarifies that the prohibited
activity listed in the second set must occur on ``BLM-administered
lands.'' The existing phrase ``related to rangelands'' created
confusion. The rule clarifies that it is a prohibited act to graze
without a permit, lease, or other grazing use authorization. The
amended language accounts for situations where BLM allows grazing
through authorizations other than a term permit or lease, such as a
crossing permit. Also, the final rule clarifies that grazing fees must
be paid in a timely manner to avoid violating these regulations. Thus,
this section provides, among other things, useful authority to
encourage timely payment of grazing fees.
The third set of prohibited acts, section 4140.1(c), pertains to
violations of certain Federal or state laws or regulations. The final
rule now clarifies that the section applies to prohibited acts
performed by a permittee or lessee ``on the allotment where he is
authorized to graze.'' This replaces ambiguous language that stated the
provision applied to acts ``where public land administered by the [BLM]
is involved or affected [and] the violation
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is related to grazing use authorized by a permit or lease issued by the
[BLM].'' Few actions on lands outside the grazer's authorized allotment
could have triggered a violation under the existing language. The
existing language created confusion regarding its scope while providing
BLM with little useful authority. The more precise language of the
final rule will be more understandable and improve the efficiency with
which this regulation can be enforced. Violations of statutes or
regulations on non-allotment lands will continue to be subject to the
normal penalties available under those authorities, regardless of
whether the violations are related to grazing use.
We did not select Alternative 1, the continuation of existing
regulations, due to the presence of the ambiguity previously discussed.
Alternative 3, the Modified Action alternative, proposed two provisions
that differed from the Proposed Action. The first provision would have
required the use of weed seed-free forage, grain, straw, or mulch when
required by the authorized officer. We did not include the provision at
this time as we are still developing a nationwide weed-free policy for
public lands. The second provision would have deleted the third
category of prohibited acts, those pertaining to violations of certain
Federal and state laws or regulations, from the regulations. Although
relatively few violations have been documented, BLM believes this
category serves a deterrent purpose and has chosen to retain it.
16. Decisions on Ephemeral or Annual Rangeland Grazing Use and
Nonrenewable Permits
The final rule amends section 4130.6-2 on nonrenewable grazing
permits and leases by adding a new paragraph (b) allowing BLM to make a
decision issuing a nonrenewable grazing permit or lease, or affecting
an application for grazing use on annual or designated ephemeral
rangelands, effective immediately or on a date established in the
decision. The final rule has removed language from existing section
4160.3(d) on final decisions that described the effect of an
administrative stay on decisions related to designated ephemeral or
annual rangelands and temporary nonrenewable grazing. The ability to
make decisions on nonrenewable grazing permits and leases, or ephemeral
or annual rangelands grazing use, effective immediately on a date
established in the decision under final rule section 4130.6-2(b) has
largely eliminated the need for any special stay provisions. These
changes should improve administrative efficiency and effectiveness by
allowing faster responses to time-sensitive requests and clarify
compliance with legal requirements.
The existing regulations at section 4160.3(d) state that when OHA
stays a decision regarding designated ephemeral or annual rangeland
grazing ``the authorized grazing use shall be consistent with the final
decision pending'' the final determination on the appeal. In addition,
under the existing regulations a decision shall not be in effect for a
30-day period during which an appeal may be filed, and for an
additional 45-day period if a petition for stay is filed. This creates
a problem where the decision is to grant (rather than deny) the
application for nonrenewable use, or use on ephemeral or annual ranges,
because in some cases the forage quality rapidly declines and loses its
nutritional value during this combined 75-day waiting period. Thus, a
simple appeal of a decision to grant an application for use of
ephemeral or annual rangeland, or for temporary and nonrenewable use,
can render both the application and approval futile for the purpose
intended, namely, to use available forage to provide nutrition for
livestock. BLM considers this to be a procedural flaw.
When BLM grants an application for temporary and nonrenewable use,
or use on annual or ephemeral ranges, this indicates that BLM has
evaluated the merits of the application and has determined that such
use would be consistent with achieving resource management objectives
specified in land use plans. BLM intends that the simple act of an
appeal alone, with nothing more, should not render both the application
and approval an exercise in futility.
The proposed rule addressed this 75-day waiting period issue by
placing language similar to that in existing section 4160.3(c) into
section 4160.4(c) on appeals. However, in response to comments from
OHA, this section has now been removed from the final rule. Instead,
BLM may now issue nonrenewable permits as immediately effective
decisions under section