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March 21, 2014
In Reply Refer To:
4110 (220) P
Instruction Memorandum No. 2014-076
Expires:  09/30/2015
To:            All Field Office Officials
From:        Assistant Director, Resources and Planning
Subject:    Implementing Grazing Provisions in the Consolidated Appropriations Act, 2014  

Program Area:  Rangeland Management (1020).

Purpose:  To provide direction for implementing provisions within Public Law 113-76, the Consolidated Appropriations Act, 2014, related to livestock grazing authorizations.

Public Law (PL) 113-76, The Consolidated Appropriations Act, 2014, includes three provisions which address the Bureau of Land Management’s (BLM) livestock grazing program.  The provisions in PL 113-76 extend the end dates of provisions in PL 112-74 to the end of fiscal year 2015. One of the three provisions has two distinct parts.  This Instruction Memorandum (IM) is intended to provide direction to BLM office on how to implement these provisions. The provisional language and background materials are included in Attachment 1, Provisional Language and Background Information.

Policy/Action:  Appropriations Act provisions (in italics for easy reference) are followed by policy to implement the provision.

·        Section 122 Exhaustion of Administrative Review Required 

Policy:  This provision does not require the field office (FO) to change any current grazing decision processes. The issue of whether a would-be plaintiff has properly exhausted administrative remedies in accordance with Section 122 will almost always arise in litigation and should be examined on a case-by-case basis.  The FO should work closely with the Office of the Solicitor when this issue arises.

·        Section 125 Trailing Livestock Across Public Land 

A. Section 125 provides the Authorized Officer (AO) discretion to review existing decisions and National Environmental Policy Act (NEPA) documents to determine if additional analysis is needed.

Policy: The AO must consider the effects of issuing a crossing permit. The degree of detail and analysis is left up to the discretion of the AO. An appropriate analysis may include an Environmental Assessment (EA); an EA tiered to a Resource Management Plan NEPA document; or Determination of NEPA Adequacy (DNA), where appropriate. Typically, this will depend on the resources affected by the livestock crossing, the type and magnitude of the crossing, as well as any resource issues present. The language of Section 125 does not alter the AO responsibilities under the Endangered Species Act of 1973 (16 U.S.C. §§ 1531 et seq.), the National Historic Preservation Act of 1966 (16 U.S.C. §§ 470 et seq.) or any other applicable statutes.

B. Section 125 removes the application of the protest and administrative appeal process of 43 CFR Subpart 4160 from the issuance of crossing permits, but does not preclude notification to affected permittees or the interested public of the issuance of a crossing permit as a decision.

Policy:  When a decision is issued to authorize a crossing permit, the AO should replace the traditional administrative appeal rights language, which is included in the final decision, with a statement informing the affected permittee/lessee or the interested public that the decision is not subject to protest and/or administrative appeal under Subpart 4160. Suggested language for this revised notice is:
“Pursuant to Section 125 of PL 113-76, the Consolidated Appropriations Act, 2014, this BLM final decision is not subject to protest and/or administrative appeal under subpart E of Part 4 of Title 43, Code of Federal Regulations and subpart 4160 of part 4100 of such title.” 

The FO should consult with the Office of the Solicitor and the BLM State Office Rangeland Management Program Leads if they have questions regarding crossing permit applications.

·        Section 411  Issuing Grazing Permit Renewals & Transfers  

A. Permit Renewals

Policy: Where a FO is unable to fully process a permit renewal in compliance with all applicable laws prior to the permit expiration, it must renew the permit pursuant to Section 411. A permit renewed pursuant to Section 411 must contain the same terms and conditions as the expiring permit.  The BLM has discretion to determine the length of a new permit issued under Section 411.  The new permit is to be issued for 10 years unless one of the four provisions in 43 CFR 4130.2(d) applies.

When processing a grazing permit in compliance with applicable law and regulation in preliminary priority habitat and preliminary general habitat for Greater Sage-Grouse, use the policies and procedures in Washington Office IM 2012-043. If terms and conditions need to be changed in order to comply with Washington Office IM 2012-043, and processing has not already been initiated, then processing should be initiated immediately. 

If grazing permits are issued using the renewal authority of Section 411 between the effective date of this Instruction Memorandum and October 1, 2015, include the following statement on the permit:

“This permit or lease is issued under the authority of Section 411, PL 113-76 and contains the same terms and conditions as the previous permit or lease.  This permit or lease may be canceled, suspended, or modified, in whole or in part to meet the requirements of applicable laws and regulations.”

The BLM FOs must complete a record of performance review when processing an application for permit renewal.  The AO should specify in the grazing decision that is issued upon completion of all requirements of law and regulation that the BLM has determined that the applicant has a satisfactory record of performance.

Once a FO uses Section 411 to renew an expiring permit, it must prioritize that permit renewal against all other permit renewals for processing. In prioritizing grazing permits for full processing, the FO should consider the environmental significance of the underlying grazing allotments as well as funding considerations.  In several instances, the BLM Director has issued guidance related to the prioritization of future authorizations (refer to 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 sage-grouse and its habitat).  The statements of policy in these instruction memoranda apply to all grazing renewal circumstances as well as other program authorizations.

B. Transfers

Policy:  In accordance with Section 411, if a grazing permit is “subject to” a request for a grazing preference transfer, the BLM must issue a new permit to the qualified applicant. Ensure that the applicant is qualified pursuant to 43 CFR § 4110.1(a).  Do not approve a transfer of preference to an unqualified applicant except as provided in § 4110.2-3(e).  Attachment 2 illustrates three options for addressing an application for transfer of preference and a grazing permit.

1. Terms and conditions of a permit issued under Section 411 in the transfer context:

When a FO issues a new permit to a transferee under Section 411, the permit must contain the same mandatory terms and conditions that were contained on the transferor’s permit, to the extent of the transfer.

A permit issued pursuant to a transfer request using Section 411 as authority should be issued for the number of years that would have been remaining on the transferor’s permit had no transfer application been submitted.  For example, if in year four of a ten-year permit a transferor transfers his grazing preference, then the new permit to the transferee should be for six years.

Place the following statement in a cover letter when issuing the permit pursuant to approving a transfer of preference. Do not place it on the new permit. Placing the statement in a cover letter will help reduce confusion if the original permit was operating under authority of a previous Appropriations Act and already contains a statement referring to that Act.

“The enclosed permit or lease is issued under the authority of Section 411, PL 113-76 as the result of a transfer of grazing preference and contains the same terms and conditions as the previous permit or lease.  This permit or lease may be canceled, suspended, or modified, in whole or in part to meet the requirements of applicable laws and regulations.”

2. Permits issued under Section 411 in the context of a preference transfer do not get placed on priority list and do not require further processing:

Permits issued under Section 411 in the context of a preference transfer are, in general, not subject to additional prioritization solely on the basis of being issued as a result of a preference transfer and do not require “further processing” in compliance with applicable laws.  Priority for processing should not change unless the conditions necessitate a change.  If a FO seeks to change permit terms and conditions as part of the transfer process, the transferee’s new permit should either a) be processed before being issued, or b) issued for up to ten years with the same terms and conditions as the transferor’s permit and then processed subsequently with appropriate NEPA analysis of the proposed changes.

3. Change in the mandatory terms and conditions:

The FO continues to retain its discretion to revisit the terms and conditions of a permit at any time using existing processes in the grazing regulations. See 43 CFR § 4130.3-3. 

Any permit issued under authority of Section 411 using Section 325 processes will be designated as an “Appropriations Act” permit in the Rangeland Administration System (RAS), whether a renewal or a transfer.  A permit issued as a result of a transfer under the authority of Section 411 will be designated with the same status as the transferor’s permit. If the transferor’s permit was designated as “Active” and no terms and conditions are changed, the newly issued permit will also be designated as “Active.”  If terms and conditions need to be changed the permit should be issued as required by Section 411, and the permit issued to the transferee should be prioritized using the processes in Section 325.

Timeframe:  This policy is effective immediately.

Budget Impact:  Implementation of the Section 122 provision should reduce Equal Access to Justice Act (EAJA) fee payments, and reduce litigation costs at the Federal court level.  There will be new costs to process Trailing Permits if they were previously issued without NEPA analysis. Implementing Section 411 will decrease costs with the ability to issue permits as a result of preference transfers.

Manual/Handbook Sections Affected: None

Coordination:  This IM was prepared in coordination with the Solicitor’s Office.                                                                    

Contacts:  Dick Mayberry, Rangeland Management Specialist, WO 220, at 202-912-7229, or Bob Bolton, Senior Rangeland Management Specialist, WO 220, at 202-912-7204.

Signed by:                                                       Authenticated by:
Edwin L. Roberson                                           Robert M. Williams
Assistant Director                                            Division of IRM Governance,WO-860
Resources and Planning
2 Attachments

Last updated: 04-10-2014