Implementing Amended Section 402(c)(2) of the Federal Land Policy and Management Act - Continuing the Terms and Conditions of Grazing Permits or Leases that Are Terminated As a Result of Transfers of Preference or Have Expired

UNITED STATES DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
WASHINGTON, D.C. 20240
http://www.blm.gov

July 15, 2015

In Reply Refer To:

4110 (220) P

EMS TRANSMISSION 07/15/2015

Instruction Memorandum No. 2015-122

Expires: 09/30/2018

To:                   All Field Office Officials

From:               Assistant Director, Resources and Planning

Subject:          Implementing Amended Section 402(c)(2) of the Federal Land Policy and Management Act - Continuing the Terms and Conditions of Grazing Permits or Leases that Are Terminated As a Result of Transfers of Preference or Have Expired

Program Area: Rangeland Management (1020).  Note that all references to the grazing regulations in this IM are to the 1995 version of Title 43 Code of Federal Regulation (CFR) Part 4100.

Purpose:  Section 3023 of Public Law (PL) 113-291, National Defense Authorization Act (NDAA) 2015, amends Section 402 of the Federal Land Policy and Management Act of 1976 (FLPMA) and includes seven provisions related to livestock grazing.  This Instruction Memorandum (IM) provides direction for the provisions that address continuing the terms and conditions for livestock grazing when a permit or lease  has expired or was terminated due to a grazing preference transfer.  This guidance will be incorporated into Handbook H-4130-1, Authorizing Grazing Use. 

Policy/Action: When a field office (FO) is unable to complete the requirements of the National Environmental Policy Act of 1969 (NEPA) and other applicable laws prior to the expiration of a grazing permit, it must continue the terms and conditions of the expired permit by issuing a new permit with the same terms and conditions.  These nondiscretionary permits issued in accordance with Section 402(c)(2) of the FLPMA as amended by Public Law No. 113-291 are not protestable or appealable under the processes described in 43 Code of Federal Regulations (CFR) § 4160 and 43 CFR § 4.470 et seq[1].  A permit that is issued under Section 402(c)(2) of the FLPMA is to be issued for 10 years in accordance with Section 402(a) of the FLPMA unless one of the provisions of 43 CFR § 4130.2(d) applies.

If a grazing permit is subject to a request for a grazing preference transfer, the Bureau of Land Management (BLM) must issue a permit to the qualified applicant upon completion of the transfer of preference.  Prior to issuing a new permit, ensure that the applicant is qualified pursuant to 43 CFR § 4110.1(a) and (b).  Do not approve a transfer of preference to an unqualified applicant except as provided in 43 CFR § 4110.2-3(e).

The BLM FOs should endeavor to complete a record of performance review before the expiration of a permit/lease or while processing a preference transfer application and make the 43 CFR § 4110.1(a) and (b) determination before issuing or renewing a grazing permit/lease under section 402(c)(2). If the FO is unable to complete this review prior to the expiration of the permit/lease or as part of processing the preference transfer application, then the Administrative Officer (AO) must renew the permit/lease pursuant to section 402(c)(2). If, upon completion of a record of performance review,  the applicant is determined by the Authorized Officer to not qualify, due to a record of performance issue (or any other reason), the BLM must issue a decision to reject the preference transfer and permit/lease application or to not renew the permit/lease, instead of issuing or renewing the permit/lease under section 402(c)(2). 

When a permit is terminated as a result of a transfer of preference, the AO may either issue the new permit in accordance with section 402(c)(2) or prepare an appropriate NEPA document prior to such termination.  If the existing NEPA analysis is adequate, the AO may complete a Determination of NEPA Adequacy (DNA), or the AO may determine that a categorical exclusion (CX) is appropriate if the criteria of the FLPMA Section 402(h)(1) are met, or the AO may determine preparation of an Environmental Assessment (EA) is necessary.  Upon completion of a DNA, CX or EA, the AO will issue the grazing decision in accordance with 43 CFR § 4160, followed by a new permit.  Otherwise, issue a permit in accordance with FLPMA Section 402(c)(2) with the same terms and conditions that were contained on the transferor’s permit.  A permit must be issued once the transfer of preference is complete, whether with a completed NEPA document, by using the FLPMA Section 402(h)(1) statutory categorical exclusion (if applicable), or in accordance with the mandatory renewal provisions in the FLPMA Section 402(c)(2).  Permits issued in accordance with Section 402(c)(2) of the FLPMA as amended by Public Law No. 113-291 are not protestable or appealable under the processes described in 43 CFR § 4160 and 43 CFR § 4.470 et seq.  A permit that is issued under Section 402(c)(2) of the FLPMA is to be issued for up to 10 years in accordance with Section 402(a) of the FLPMA unless one of the provisions of  43 CFR § 4130.2(d) applies.

When preference is transferred from a single entity to multiple applicants, or if the transferor retains a portion of the original preference, the AO may issue multiple permits under Section 402(c)(2).  In the case where multiple permits are issued, the sum of the use authorized will be the same as that authorized by the permit terminated by the transfer of preference.  Seasons of use, periods of use, kind of livestock, and type of livestock and “other” terms and conditions must be the same in all permits as in the terminated permit.  The number of livestock and amount of use in the new permits must add up to the numbers and amount of use in the terminated permit.  Percent of public land use will be calculated based on control of private or state land within the allotment.  A permit that is issued under Section 402(c)(2) of the FLPMA is to be issued for 10 years in accordance with Section 402(a) of the FLPMA unless one of the provisions of  43 CFR § 4130.2(d) applies.  Attachment 1 illustrates three options for addressing an application for transfer of preference and issuing a new grazing permit.

Permits issued in accordance with Section 402(c)(2) of the FLPMA are not to be issued until an existing permit is expired, or terminated upon completion of the transfer of preference. The 402(c)(2) permit may be offered to the permittee up to 60 days prior to expiration if an application has been submitted and it is evident that the expiring permit will not be processed prior to expiration.  The permit is issued when the AO signs it.

The AO is responsible for setting priorities for completing the NEPA and other legal and regulatory requirements for processing grazing permits.  In prioritizing grazing permits for processing, the FO should consider the environmental significance of the underlying grazing allotments as well as funding, workload and capability considerations. In several instances, the BLM has issued guidance related to setting priorities for processing permits which have expired or will soon expire. These IMs are incorporated here and extended.  This IM specifically extends Washington Office IM 2009-018 Process for Setting Priorities for Issuing Grazing Permits and Leases and Washington Office IM 2012-043 Greater Sage-Grouse Interim Management Policies and Procedures, which is specific for permit renewals and transfers that involve greater sage-grouse and its habitat.  The statements of policy in these IM’s apply to processing grazing permits in addition to other program authorizations.

The following statement will be included in the cover letter transmitting grazing permits issued to continue the terms and conditions of expired or terminated permits in accordance with the FLPMA Section 402(c)(2).  This language will also be included in the permit for tracking purposes but is not a term and condition of the permit:

“This permit or lease is issued under the authority of Section 402(c)(2) of FLPMA, 1976 as amended, and contains the same terms and conditions as the previous permit or lease.  This permit or lease may be cancelled, suspended, or modified, in whole or in part to meet the requirements of applicable laws and regulations.”

When the requirements of the NEPA and other applicable law have been fulfilled, including a record of performance review, the AO may cancel, suspend or modify the permit issued in accordance with section 402(c)(2).  Use the administrative decision process described in 43 CFR § 4160 to cancel, suspend or modify the permit.

Background:  Section 3023 in Public Law 113-291 Carl Levin and Howard P. "Buck" McKeon National Defense Authorization Act for Fiscal Year 2015 amended Section 402 of the FLPMA by modifying one provision and adding six new provisions.  One of the new provisions in the amended text now included in FLPMA as Sec. 402(c)(2) states “CONTINUATION OF TERMS UNDER NEW PERMIT OR LEASE.—The terms and conditions in a grazing permit or lease that has expired, or was terminated due to a grazing preference transfer, shall be continued under a new permit or lease until the date on which the Secretary concerned completes any environmental analysis and documentation for the permit or lease required under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and other applicable laws.” This IM provides direction for implementing the provision that requires continuing the terms and conditions of expired or terminated grazing permits and leases until completion of NEPA documentation and other applicable laws.  Additional guidance will be issued to provide direction on the other provisions of the NDAA.

Timeframe:  This policy is effective immediately.

Budget Impact:  No budget effects are anticipated.  

Manual/Handbook Sections Affected:  Handbook H-4130-1, rel. 4-75, dated 7-31-84, Authorizing Grazing Use, is amended by this Instruction Memorandum.

Coordination: This IM was prepared in coordination with the Solicitor’s Office and the Deputy State Directors of all State Offices except Alaska and Eastern States.                                                                   

Contact(s):  Richard Mayberry, Rangeland Management Specialist, Division of Forest, Rangeland, Riparian, and Plant Conservation, at (202) 912-7229

Signed by:                                                       Authenticated by:

Michael H. Tupper                                          Robert M. Williams

Deputy Assistant Director                              Division of IRM Governance,WO-860

Resources and Planning

1 Attachment

   1 – Issuing Permits following Transfer of Preference in Accordance with Section 402©(2) (1 p)

[1] When BLM receives an application for a permit renewal and BLM issues a permit in accordance with  § 402(c)(2), the permit is issued with the same terms and conditions as the expiring permit without a decision pursuant to 43 C.F.R. § 4160.3 (1995) (unless the applicant is determined to not qualify under 43 CFR § 4110.1(b)),.  Consequently, there is no proposed decision to protest, nor any appeal review of the non-discretionary renewal of the grazing permit.